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1 Elements and Notes in Criminal Law Book II by RENE CALLANTA

TITLE ONE

CRIMES AGAINST NATIONAL SECURITY
Crimes against national security 1. 2. 3. 4. Treason (Art. 114); Conspiracy and proposal commit treason (Art. 115); to

1) Levies war against the government, 1. breech of allegiance 2. actual assembling of men 3. for the purpose of executing a treasonable design 2) Adheres to the enemies, giving them aid and comfort 1. breech of allegiance 2. adherence 3. giving aid or comfort to the enemy
Requirements of levying war 1) Actual assembling of men; 2) To execute a treasonable design by force; 3) Intent is to deliver the country in whole or in part to the enemy; and 4) Collaboration with foreign enemy or some foreign sovereign

Misprision of treason (Art. 116); and Espionage (Art. 117).

Crimes against the law of nations 1. 2. 3. 4. 5. Inciting to war or giving motives for reprisals (Art. 118); Violation of neutrality (Art. 119); Corresponding with country (Art. 120); hostile

Flight to enemy's country (Art. 121); and Piracy in general and mutiny on the high seas (Art. 122).

Success is not important. What matters is the actual assembly of men and the execution of treasonable design by force.
• Ways of proving treason:

a. 2 witnesses testifying to same overt act The testimonies must refer to the same act, place and moment of time. Treason cannot be proved by circumstantial evidence or by extrajudicial confession. Example: X saw arms landed in La Union and loaded into a motor vehicle. At this stage, not sufficient to convict yet. Y later saw the arms unloaded in a warehouse. Will X + Y be sufficient witnesses to convict? Answer: NO. Because the law requires that 2 witnesses see the SAME OVERT ACT.

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

Article 114 TREASON
ELEMENTS: a. That the offender owes allegiance to the Government of the Philippines b. That there is a war in which the Philippines is involved c. That the offender either –

b. Confession of the accused in
open court. Arraignment, pre-trial, trial – OK. 1. If he has pleaded NOT guilty already during arraignment, he can still confess in open court by stating the particular acts constituting treason.

2 Elements and Notes in Criminal Law Book II by RENE CALLANTA
2. During trial, simply saying “I’m guilty” is not enough. 3. Withdrawing plea of “not guilty” during arraignment not necessary 4. If during arraignment he pleads guilty, court will ask if the accused understands is plea. Submission of affidavit during trial, even if assisted by counsel is not enough. alien must be committed in the Philippines. b. Only Filipino citizens or permanent resident aliens can be held liable

c. Alien:

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

Treason: breach of allegiance to the government, committed by a person who owes allegiance to it. Allegiance: obligation of fidelity and obedience. It is permanent or temporary depending on whether the person is a citizen or an alien. Evident premeditation, superior strength and treachery are circumstances inherent in treason, and are, therefore, not aggravating. Treason cannot be committed in times of peace, only in times of war – actual hostilities. But no need for declaration of war

• •

Actual hostilities may determine the date of the commencement of war No such thing as attempted treason; mere attempt consummates the crime Giving aid or comfort – material element, enhances forces of the enemy country.

Acts which strengthen or tend to strengthen the enemy in the conduct of war against the traitor’s country or that which weaken and tend to weaken the power of the same. Example: Financing arms procurement of enemy country. But giving of shelter is not necessarily “giving aid and comfort.”

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

• •

Adherence and giving aid or comfort must concur together.

b. Serving

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

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

c. Purpose of offender: to deliver the Philippines to enemy country; if merely to change officials – not treason On Citizenship a. Filipino citizens can commit treason outside the Philippines. But that of an

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

When this adherence or sympathies are converted into aid and comfort, only then they take material forM. This material form is now what is made

3 Elements and Notes in Criminal Law Book II by RENE CALLANTA
punishable. It is usually manifested by the offender in giving information, commandeering foodstuffs, serving as spy and supplying the enemy with war materials. arson or falsification may be committed by the offender. BUT the offender does not commit the crime of treason complexed with common crimes because such crimes are inherent to treason, being an indispensable element of the same. Treason Rebellion. distinguished from

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

Treason is a continuing offense. It can be committed by a single act or by a series of acts. It can be committed in one single time or at different times and only one criminal intent. In construing the provisions relating to the commission of several acts, the same must be done in pursuance or furtherance of the act of treason. No matter how many acts of treason are committed by the offender, he will be liable for only one crime of treason.

The manner in which both crimes are committed in the same. In treason however, the purpose of the offender is to deliver the government to the enemy country or to a foreign power. In rebellion , the purpose of the rebels is to substitute the government with their own form of government. No foreign power is involved.
Treason distinguished from Sedition. In treason , the offender repudiates his allegiance to the government by means of force or intimidation. He does not recognize the supreme authority of the State. He violates his allegiance by fighting the forces of the duly constituted authorities. In sedition , the offender disagrees with certain policies of the State and seeks to disturb public peace by raising a commotion or public uprising.

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

In the imposition of the penalty for the crime of treason, the court may disregard the presence of mitigating and aggravating circumstances. It may consider only the number, nature and gravity of the acts established during the trial. The imposition of the penalty rests largely on the exercise of judicial discretion. Defenses that may be availed of by the accused. 1. 2. Duress or uncontrollable fear of immediate death; and Lawful obedience to a de facto government. When killings and other common crimes are charged as overt act of treason, they cannot be regarded as (1) separate crimes or (2) as complex with treason.

Article 115 CONSPIRACY TO COMMIT TREASON
• ELEMENTS: a. In time of war b. 2 or more persons come to an agreement to 1. levy war against the government, or 2. adhere to the enemies and to give them aid or comfort, c. They decide to commit it

In the act of levying war or giving aid or comfort to the enemy, murder, robbery,

This is a felony by omission although committed with dolo. In the presence of mitigating and aggravating circumstances. 1. accessory. yet he is penalized only as an . it is already conspiracy. the offender is punished two degrees lower than the penalty for the crime of treason. and not a foreigner b. blood relationship is always subservient to national security. The reason is that although blood is thicker than water so to speak. A person who has decided to levy war against the government. or to adhere to the enemies and to give them aid or comfort. • ELEMENTS: a. If the other accepts. Whether the conspirators are parents or children. Misprision of treason is a crime that may be committed only by citizens of the Philippines. proposes its execution to some other person/s. photographs or other data of a confidential nature relative to the defense of the Philippines. no such amendment was made in misprision of treason. warship. That he has knowledge of any conspiracy (to commit treason) against the government c. • Offender is punished as an accessory to the crime of treason Article 117 Espionage by entering. plans. place and circumstance – the RPC did not fix time. they are required to report the same. even aliens can commit said crime because of the amendment to the article. • Article 116 MISPRISION OF TREASON • ELEMENTS: a. • • Mere agreement and decisions to commit treason is punishable Mere proposal even without acceptance is punishable too. not with culpa. The criminal liability arises if the treasonous activity was still at the conspiratorial stage • This crime does not apply if the crime of treason is already committed Crime of omission • While Treason as a crime should be established by the two-witness rule. the court is not bound by the provisions of Article 63 and 64. In the imposition of the penalty. RPC states 4 individuals. or naval or military establishments or reservation to obtain any information. That the offender must be owing allegiance to the government. In time of war b. the same is not observed when the crime committed conspiracy to commit treason or when it is only a proposal to commit treason. when it comes to security of the state. PNP Director? Judge Pimentel says any gov’t official of the DILG is OK. referring to indivisible penalties. • “To report within a reasonable time” – depends on time. That the offender enters any of the places mentioned therein Take note that the offender is a principal to the crime of misprision of treason. fort. That he conceals or does not disclose and make known the same as soon as possible to the governor or fiscal of the province or the mayor or fiscal of the city in which he resides While in treason. and the ones who learn the conspiracy is a parent or child. they are treated as principals.4 Elements and Notes in Criminal Law Book II by RENE CALLANTA • ELEMENTS OF PROPOSAL TO COMMIT TREASON a. without authority therefor. what if you report to some other high-ranking government official? Ex. Article 20 does not apply here because the persons found liable for this crime are not considered accessories.

the offenders can be prosecuted anywhere in the world because these crimes are considered as against humanity in general. like piracy and mutiny. data or information by reason of the office he holds. • Not necessary that Philippines is at war with the country to which the information was revealed. Disloyal acts or words in times of peace. Disloyal acts or words in times of war. Unlawfully obtaining or permitting to be obtained information affecting national defense. Here. the offender is any private individual. transmitting. believe that the information is to be used to the injury of the Philippines or the advantage of any foreign nation. which he had in his possession by reason of the public office holds ELEMENTS: a. and Photographing vital military 7. • Espionage: the offense of gathering. Crimes against national security can be tried only in the Philippines. he reveals or discloses the information which are confidential and are relevant to the defense of the Philippines. information • Purpose: to gather data CRIMES AGAINST LAWS OF NATIONS In crimes against the law of nations. 4. or a public officer. Conspiracy sections. Under the second mode. That his purpose is to obtain information. the offender must have the intention to obtain information relative to the defense of the PHIL. The acts against national security may be committed abroad and still be punishable under our law. That the offender is a public officer b. or information referred to in paragraph 1 of Article 117. to violate preceding Espionage by disclosing to the representative of a foreign nation the contents of the articles. 5. but it can not be tried under foreign law. Taking advantage of his official position. Harboring or concealing violators of law. the offender must be a public officer who has in possession the articles. That he has no authority therefore. What is important is that the information related is connected with the defense system of the Philippines. or losing information respecting the national defense with the intent or reason to Article 118 . That he discloses their contents to a representative of a foreign nation 2. Unlawful disclosing of information affecting national defense. by reason of the public office he holds c. 616 – An Act to Punish Espionage and Other Offenses against National Security Acts punished 1. That he has in his possession the articles. 3. It is sufficient that he entered the prohibited premises. b. 6. Wiretapping is NOT espionage if the purpose is not something connected with the defense • Commonwealth Act No. data. photographs or other data of a confidential nature relative to the defense of the Philippines Under the first mode of committing espionage. plans. data or information referred to in par 1 of art 117. whether an alien or a citizen of the Philippines. as there is a need to bring the offender here before he can be made to suffer the consequences of the law.5 Elements and Notes in Criminal Law Book II by RENE CALLANTA 2 3 2. It is not conditioned on citizenship.

that is already reprisal. it could be economic reprisals. That such acts provoke or give occasion for a war involving or liable to involve the Philippines or expose Filipino citizens to reprisals on their persons or property Crime is committed in time of peace. or denial of entry into their country. That there is a regulation issued by competent authority for the purpose of enforcing neutrality c. That the correspondence is either – 1. 2.6 Elements and Notes in Criminal Law Book II by RENE CALLANTA INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS • ELEMENTS: a. no need for prohibition If ciphers were not used. intent is immaterial Inciting to war – offender is any person Reprisals is not limited to military action. or by the • • Example. Article 120 CORRESPONDENCE HOSTILE COUNTRY WITH • ELEMENTS: a. or 3. It is not correspondence with private individual in enemy country If ciphers were used. notice or information might be useful to the enemy b. So violation of neutrality can be committed through reckless imprudence. That it is in time of war in which the Philippines is involved b. That there is war in which the Philippines is not involved b. That the offender performs unlawful or unauthorized acts b. That the offender violates such regulation • Gov’t must have declared the neutrality of the Phil in a war between 2 other countries • The regulation must be issued by a competent authority like the President of the Philippines or the Chief of Staff of the Armed Forces of the Philippines. • • It is neutrality of the Phil that is violated Congress has the right to declare neutrality • • • . prohibited government. If China bans the entry of Filipinos into China. there is a need for prohibition Article 119 VIOLATION OF NEUTRALITY ELEMENTS: a. carried on in ciphers or conventional signs. The violations can be done either by means of dolo or by means of culpa. containing notice or information which might be useful to the enemy • 1 2 3 • Circumstances qualifying the offense: a. offender intended to aid the enemy Hostile country exist only during hostilities or after the declaration of war Correspondence to enemy country – correspondence to officials of enemy country – even if related to you. That the offender makes correspondence with an enemy country or territory occupied by enemy troops c. X burns Chinese flag. during a war between different countries in which the Philippines is not taking sides.

If none. 532 may still apply where the offender is not stranger to the vessel since it provides: “Any attack upon or seize of any vessel. That a vessel is on the high seas/Philippine waters b. the crime is not piracy but robbery in the high seas) 2. the crime is robbery. piracy can only be committed by a person who is not a passenger nor member of the complement of the vessel irrespective of venue. not piracy. That the offenders are not members of its complement or passengers of the vessel c. That going to enemy country is prohibited by competent authority • • Mere attempt crime consummates the • High seas: any waters on the sea coast which are without the boundaries of the low water mark although such waters may be in the jurisdictional limits of a foreign gov’t Piracy in high seas – jurisdiction is with any court where offenders are found or arrested Piracy in internal waters – jurisdiction is only with Philippine courts For purpose of Anti-Fencing Law. its equipment or personal belongings of its complement or passengers • Article 121 FLIGHT TO ENEMY’S COUNTRY • ELEMENTS a. So if a passenger or complement of the vessel commits acts of robbery in the high seas. No. Mutiny Unlawful resistan the raising of co on board a ship commander Article 122 PIRACY • 2 Ways of Committing Piracy a. • • under the amended article. piracy is part of robbery and theft • • • There must be a prohibition. That the offender attempts to flee or go to enemy country d.7 Elements and Notes in Criminal Law Book II by RENE CALLANTA • In any case. if committed by crew or passengers. even if went to enemy country – no violation Alien resident may be guilty here. • Piracy Robbery or forcible degradation on the high seas. irrespective of the value hereof. waters still piracy However. attack or seize that vessel or (hence. punishable 1. its equipment or personal belongings of its complement or passengers • Elements: a. That there is a war in which the Philippines is involved b.D. By seizing the whole or part of the cargo of said vehicles. equipment or the personal belongings of its complement or passengers. by . No criminal inten Attack from outside. That the offender (Filipino or resident alien) must be owing allegiance to the government c. it must be correspondence with the enemy country Doesn’t matter if correspondence contains innocent matters – if prohibited. That the offenders – Intent to gain is an element. despite the amendment. P. seize the whole or part of the cargo of said vessel. By attacking or seizing a vessel on the high seas or in the Philippine waters (PD 532) b. or the taking away of the whole of part thereof or its cargo. Offenders are Attack from the in strangers to the vessel. without lawful authority and done with animo lucrandi and in the spirit and intention of universal hostility. If in the Phil.

7659 since there is nothing in the amendatory law is inconsistent with said section. under the Revised Penal Code. or rape. Whenever the crime is accompanied by murder. 532. Robbery. any taking in a vessel with force upon things or with violence or intimidation against person is employed will always be piracy. Also. Considering that the essence of piracy is one of robbery. cannot be committed on board a vessel. physical injuries. Whenever the pirates have abandoned their victims without means of saving themselves c. or passengers of the vessel. homicide. It cannot co-exist with the crime of robbery. it is expressly provided in the same section that the offender shall be considered as an accomplice of the principal offenders and punished in accordance with the Revised Penal Code. however. for one to be called a pirate. (the above may result to qualified mutiny) Murder. But if the taking is without violence or intimidation on persons or force upon things. committed by any person. or in any manner derives any benefit therefrom. 532 states that the attack upon or seizure of any vessel. This provision of Presidential Decree No. equipment or personal belongings of its complement or passengers committed by any person including a passenger or member of the complement of said vessel shall be considered Piracy.8 Elements and Notes in Criminal Law Book II by RENE CALLANTA means of violence against or intimidation of persons or force upon things. 2) Offenders are either members of its complement. or seize the whole or part of the cargo. or acquires or receives property taken by such pirates. The offenders shall be considered as pirates and punished as hereinafter provided. attack or seize the vessel. Neither may it be considered repealed by Republic Act No. homicide. that in Section 4 of Presidential Decree No. or personal belongings of the crew or passengers. the crime of piracy cannot be committed. or taking away the whole or part thereof or its cargo. including a passenger or member of the complement of said vessel. Whenever they have seized a vessel by boarding or firing upon the same b. its equipment. 3) Offenders either – a. the act of aiding pirates or abetting piracy is penalized as a crime distinct from piracy. Said section penalizes any person who knowingly and in any manner aids or protects pirates. 532 with respect to piracy in Philippine water has not been incorporated in the Revised Penal Code. b. there is still the crime of abetting piracy in Philippine waters under Presidential Decree No. shall be considered as piracy. Article 123 QUALIFIED PIRACY • QUALIFYING CIRCUMSTANCES: a. or who directly or indirectly abets the commission of piracy. • • Parricide/infanticide should included (Judge Pimentel) be Murder/rape/homicide/physical injuries must have been committed on the passengers or complement . but only theft. rape. Elements of mutiny 1) The vessel is on the high seas or Philippine waters. Mutiny is the unlawful resistance to a superior officer. such as giving them information about the movement of the police or other peace officers of the government. Apparently. therefore. the offender must be a stranger to the vessel. in Philippine waters .” After all. nor can they be complexed with piracy.D. P. Note. • While the Article 122 limits the offenders to non-passengers or nonmembers of the crew. 532. physical injuries are mere circumstances qualifying piracy and cannot be punished as separate crimes. or the raising of commotions and disturbances aboard a ship against the authority of its commander.

because they have to move out of that foreign country. This means that even if the accused enters a plea of guilty. Philippines. murder or homicide is committed. it should be in flight at the time of the hi-jacking. corrosive. any flammable. where rape. an aircraft is considered in flight from the moment all exterior doors are closed following embarkation until such time when the same doors are again opened for disembarkation. or poisonous substance if this was done not in accordance with the rules and regulations set and promulgated by the Air Transportation Office on this matter. If the aircraft subject of the hi-jack is of Philippine registry. If there are some explosives carried there. whatever crimes committed shall be governed by the Revised Penal Code. (2) (3) . this crime is known as aircraft piracy. 6235 (The Anti Hi-Jacking Law) Anti hi-jacking is another kind of piracy which is committed in an aircraft. or physical injuries. the anti hi-jacking law will already govern.9 Elements and Notes in Criminal Law Book II by RENE CALLANTA In piracy. (2) Note that the first circumstance which qualifies piracy does not apply to mutiny. the aircraft must be in flight. any flammable. or transporting on board a cargo aircraft operating as a public utility in the Philippines. as the case may be. The law makes a distinction between aircraft of a foreign registry and of Philippine registry. In other countries. The important thing is that before the anti hi-jacking law can apply. homicide. the penalty of death will still be imposed because death is a single and indispensable penalty. technically they are still in flight. if the aircraft is of foreign registry. If somebody is killed. carrying or loading on board an aircraft operating as a public utility passenger aircraft in the Between numbers 1 and 2. compelling the pilots thereof to land in any part of Philippine territory. usurping or seizing control of an aircraft of foreign registry while within Philippine territory. Although they may have been in a foreign country. The correlative crime may be one of grave coercion or grave threat. So even if any of the acts mentioned were committed while the exterior doors of the foreign aircraft were still open. Mutiny is qualified under the following circumstances: (1) When the offenders abandoned the victims without means of saving themselves. the anti hi-jacking law will not apply and the crime is still punished under the Revised Penal Code. explosive. So if the doors are closed to bring the aircraft to the hangar. Republic Act No. Although in Article 123 merely refers to qualified piracy. The aircraft shall be deemed to be already in flight even if its engine has not yet been started. Explosives are by nature pyro-techniques. Destruction of property with the use of pyro-technique is destructive arson. Rodriguez. murder. or When the mutiny is accompanied by rape. The presence of mitigating or aggravating circumstances will be ignored by the court. the mandatory penalty of death should be imposed. This means that there are passengers that boarded. (People vs. the law does not require that it be in flight before the anti hi-jacking law can apply. and (4) loading. The common bar question on this law usually involves number 1. there is also the crime of qualified mutiny. 135 SCRA 485) The penalty for qualified piracy is reclusion perpetua to death. the crime is homicide or murder. other special laws will apply. explosive. the mandatory penalty of death is imposable. Otherwise. Four situations governed by anti hijacking law: (1) usurping or seizing control of an aircraft of Philippine registry while it is in flight. If not in flight. Note that under this law. the point of distinction is whether the aircraft is of Philippine registry or foreign registry. the aircraft is not considered as in flight. compelling the pilots thereof to change the course or destination of the aircraft. corrosive. On the other hand. This is because aircrafts of foreign registry are considered in transit while they are in foreign countries. or poisonous substance. If any of the circumstances enumerated under the law is proven or established. If there is illegally possessed or carried firearm. the crime is destructive arson. shipping.

the law applies only to public utility aircraft in the Philippines. However. This is a special law where the attempted stage is not punishable. corrosive. they directed the pilot to fly the aircraft to the Middle East. under the Revised Penal Code. However. It is a question now of whether the anti-hi-jacking law shall govern. two of its passengers seated near the pilot surreptitiously entered the pilot cockpit. depending upon whether or not any serious offense violence was inflicted upon the pilot. Private aircrafts are not subject to the anti hi-jacking law. But if the aircraft is only a cargo aircraft. A Philippine Air Lines aircraft is bound for Davao. or poisonous substance in an aircraft. the quantity in which they may be loaded at any time. in so far as transporting prohibited substances are concerned. the circumstance will qualify the penalty and that is not punishable as a separate crime for murder. What crime was committed? The criminal intent definitely is to take control of the aircraft. the law is violated only when the transporting of the prohibited substance was not done in accordance with the rules and regulations prescribed by the Air Transportation Office in the matter of shipment of such things. they pulled out their firearms and gave instructions where to fly the aircraft. The Board of Transportation provides the manner of packing of such kind of articles. There will be two prosecutions here. The pilots of the Pan Am aircraft were accosted by some armed men and were told to proceed to the aircraft to fly it to a foreign destination. the offenders are apprehended. however. 3. the act would already be subject to the anti hi-jacking law because there is no requirement for foreign aircraft to be in flight before such law would apply. the offender shall be prosecuted not only for violation of Republic Act No. Does the anti hi-jacking law apply? No. As soon as the pilots entered the cockpit. flammable. if the aircraft were of foreign registry. As to numbers 3 and 4 of Republic Act No. Questions & Answers 1. which is hijacking. However. Note. The armed men walked with the pilots and went on board the aircraft. some of the armed men were also there. Other than this situation. however. In both cases. the prohibition is absolute. explosive. as the case may be. The reason for the distinction is that as long as such aircraft has not returned to its home base. The crime committed was grave coercion or grave threat. 2. Instead. If at that time. If the explosives were planted in the aircraft to blow up the aircraft. the crime of physical injuries will be absorbed. any physical injury or damage to property which would result from the carrying or loading of the flammable. Hence. simply usurping or seizing control is enough as long as the aircraft is within Philippine territory. What crime was committed? . but also for the crime of physical injuries or damage to property. corrosive. or explosive substance is a crime under Republic Act No. the law will not apply because the aircraft is not yet in flight. But before they could do anything on the aircraft. before the pilot could fly the aircraft towards the Middle East. the requirement that it be in flight does not hold true when in comes to aircraft of foreign registry. under Section 7. The penalty is increased under the anti hi-jacking law. etc. technically. under the law. the Revised Penal Code shall govern. the crime is hi-jacking. Carrying of any prohibited. it is still considered in transit or in flight.10 Elements and Notes in Criminal Law Book II by RENE CALLANTA The aircraft was not yet in flight. The anti hi-jacking law is applicable in this case. Otherwise. Even if the problem does not say that all exterior doors are closed. the offenders were subdued and the aircraft landed. While the stewardess of a Philippine Air Lines plane bound for Cebu was waiting for the passenger manifest. If the aircraft is a passenger aircraft. At gunpoint. the doors were still open. 6235. the anti hi-jacking law does not apply. 6235. The passengers have yet to board the aircraft. Note that the aircraft is of Philippine registry. 6235. Even if the aircraft is not yet about to fly. Considering that the stewardess was still waiting for the passenger manifest. the distinction is whether the aircraft is a passenger aircraft or a cargo aircraft. the anti hijacking law is not applicable. The pilots were followed by these men on their way to the aircraft. that there is no hijacking in the attempted stage. alert marshals arrested them. Since the aircraft is of foreign registry. without the requirement that it be in flight. While the pilot and co-pilot are taking their snacks at the airport lounge.

b. the crime is violation of the anti hi-jacking law. The separate crime of grave threat is not committed. the offenders are public officers. which refers to any person. 9. Interruption of religious worship (Art. The crime of homicide or murder is not committed. without Classes of Arbitrary Detention: a. Prohibition. That the offender is a public officer or employee (whose official duties include the authority to make an arrest and detain persons. and dissolution of peaceful meetings (Art. What is required is that the principal offender must be a public officer. Violation of domicile (Art. Delay in the delivery of detained persons to the proper judicial authorities (Art. Thus. Expulsion (Art. and Offending the religious feelings (Art. Delaying release (Art. a passenger or complement was shot and killed. Only those public officers whose official duties carry with it the authority to make an . 125). except as to the last crime – offending the religious feelings under Article 133. interruption. c. Under this title. Delaying release Article 124 ARBITRARY DETENTION • ELEMENTS: a.11 Elements and Notes in Criminal Law Book II by RENE CALLANTA All other acts outside of the four are merely qualifying circumstances and would bring about higher penalty. 124). But a private person acting alone cannot commit the crimes under Article 124 to 132 of this title. 129). 126). 8. 10. But private persons may also be liable under this title as when a private person conspires with a public officer. That the detention was without legal grounds (cannot be committed if with warrant). 131). Such acts would not constitute another crime. but the penalty thereof shall be higher because a passenger or complement of the aircraft had been killed. The hi-jackers threatened to detonate a bomb in the course of the hi-jack. if a private person conspires with a public officer. or becomes an accessory or accomplice. The public officers who may be held liable are only those acting under supposed exercise of official functions. 2. Delay in the delivery of detained persons to the proper judicial authorities c. Arbitrary detention (Art. albeit illegally. 132). So the killing or explosion will only qualify the penalty to a higher one. What crime or crimes were committed? The crime remains to be a violation of the anti hi-jacking law. That he detains a person (actual restraint). Detention: when a person is placed in confinement or there is a restraint on his person. 127). 133). the private person also becomes liable for the same crime. 4. Search warrants maliciously obtained and abuse in the service of those legally obtained (Art. 2. Searching domicile witnesses (Art. 6. • 7. 5. This is considered as a qualifying circumstance that shall serve to increase the penalty. TITLE TWO CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE Crimes against the fundamental laws of the State 1. Questions & Answers 1. 130). In the course of the hi-jack. 128). 3. By detaining a person without legal ground b. What crime or crimes were committed? Again. jurisdiction to maintain peace and order).

and 4. So. . • Legal grounds for the detention of any person: a. Arrest can be made without a warrant because this is a continuing crime. According to the SC. the crime committed by him is illegal detention. Arbitrary detention can be committed thru simple imprudence or negligence. he has not committed any crime or no reasonable ground of suspicion that he has committed a crime b. 3. commission of a crime b. Civilians cannot commit the crime of arbitrary detention except when they conspire with a public officer committing this crime. once you have committed rebellion and have not been punished or amnestied. In the maintenance of such peace and order. Detention for more than 15 days but not more than 6 months. Detention for more than three days but not more than 15 days. or become an accomplice or accessory to the crime committed by the public officer. then the detention becomes arbitrary. According to the SC. Misa) Periods of Detention penalized: 1. escaped prisoner When the peace officers acted in good faith even if the three (3) grounds mentioned above are not obtaining. is being. • Continuing crime is different from a continuous crime Ramos v. Officers got a tip and arrested X. • Though the elements specify that the offender be a public officer or employee. the officers had a right to arrest him. there was NO arbitrary detention. • Without legal grounds: a. he may cause the arrest and detention of troublemakers or those who disturb the peace and order within his barangay. private individuals who conspire with public officers can also be liable. then the rebels continue to engage in rebellion. But if the legal basis for the apprehension and detention does not exist. Officer must have probable cause to believe based on personal knowledge of facts and circumstances that the person probably committed the crime • Distinction between arbitrary detention and illegal detention 1. and The offender who is a public officer has a duty which carries with it the authority to detain a person. In a case decided by the Supreme Court a Barangay Chairman who unlawfully detains another was held to be guilty of the crime of arbitrary detention. Detention for more than 6 months. X was detained immediately. unless the rebels renounce his affiliation. In arbitrary detention -The principal offender must be a public officer. has been committed in his presence b.12 Elements and Notes in Criminal Law Book II by RENE CALLANTA arrest and detain persons can be guilty of this crime. X voluntarily admitted to the officers that he did it although he was not asked. Enrile: Rebels later on retire. Why? Because once X made a confession. not suffering from violent insanity or any other ailment requiring compulsory confinement in a hospital • Grounds for warrantless arrest: a. Crime is about to be. violent insanity or other ailment requiring compulsory confinement of the patient in a hospital c. (People vs. 2. • • For escaped prisoner – no need for warrant Example: Y was killed by unknown assailant. there is no Arbitrary Detention. This is because he is a person in authority vested with the jurisdiction to maintain peace and order within his barangay. if the offender does not possess such authority. Detention not exceeding three days.

13 Elements and Notes in Criminal Law Book II by RENE CALLANTA 2. • • Really means delay in filing necessary information or charging of person detained in court. However. Article 125 DELAY IN THE DELIVERY OF DETAINED PERSONS • ELEMENTS: a. for crimes/offenses punishable by capital punishment or afflictive penalties. In unlawful arrest. even though there have been warnings. 12 hours. 18 or 36 hours. The offender. If he . When a person is unlawfully arrested. unless he conspires with a public officer committing arbitrary detention. he would have to waive in writing his rights under Article 125 so that the arresting officer will not immediately file the case with the court that will exercise jurisdiction over the case. 36 hours. the offender may be any person. or their equivalent 2. (2) As to criminal intent In arbitrary detention. depending on whether the crime is punished by light. does not include as his function the power to arrest and detain a person. then the crime of either arbitrary or illegal detention is still committed. However. May be waived if a preliminary investigation is asked for. In illegal detention -The principal offender is a private person. 2) to deliver the person to the proper authority. 18 hours and 36 hours as the case may be. If there is no actual restraint. the detention becomes arbitrary when the period thereof exceeds 12. if the victim is under guard in his movement such that there is still restraint of liberty. it is necessary that there must be an actual restraint of liberty of the offended party. the purpose is 1) to accuse the offended party of a crime he did not commit. the detention is legal since it is in the pursuance of a lawful arrest. for crimes/offenses punishable by correctional penalties. the offender is a public officer possessed with authority to make arrests. his subsequent detention is without legal grounds. That he fails to deliver such person to the proper judicial authority within: 1. the crime of arbitrary detention or illegal detention is not committed. 18 hours. But a public officer can commit the crime of illegal detention when he is acting in a private capacity or beyond the scope of his official duty. Whether the crime is arbitrary detention or illegal detention. Distinction between arbitrary detention and unlawful arrest (1) As to offender In arbitrary detention. or their equivalent or 3. or their equivalent Article 125 covers situations wherein the person detained has been arrested without a warrant but his arrest is nonetheless lawful. as the case may be. even if he is a public officer. when the person arrested is arrested for a crime which gives him the right to preliminary investigation and he wants to avail his right to a preliminary investigation. It is a felony committed by omission because of the failure of the offender to deliver the detained person to the proper judicial authority within 12 hours. correctional or afflictive penalty or their equivalent. There is either grave or light threat. That the offender is a public officer or employee b. Under the Revised Rules of Court. and 3) to file the necessary charges in a way trying to incriminate him. as the offended party may still go to the place where he wants to go. the main reason for detaining the offended party is to deny him of his liberty. if detained for crimes/offenses punishable by light penalties. or when he becomes an accomplice or accessory to the crime committed by a private person. That he has detained a person for some legal grounds c. At the beginning. In unlawful arrest.

prosecutors – though technically not a judicial authority. it is necessary that initially. Such waiver is not violative of the accused constitutional right. the arrest is pure and simple arbitrary detention. or that there is a proceeding upon a petition for the liberation of such person c. for purposes of this article. Within what period should a police officer who has arrested a person under a warrant of arrest turn over the arrested person to the judicial authority? A. • Does not contemplate actual physical delivery but at least there must be a complaint filed. Neither does it affect the legality of the confinement under process issued by the court. may ask for preliminary investigation. not Article 125. A police officer has no authority to arrest and detain a person on the basis merely of the complaint of the offended party. The period fixed by law under Article 125 does not apply because the arrest was made by virtue of a warrant of arrest. If the arrest is not based on legal grounds. (Judge Pimentel) Article does not apply when arrest is via a warrant of arrest Arbitrary Detention (124) Detention is illegal from the beginning. or 2. That the offender is a public officer or employee b. It does not involve the physical delivery of the prisoner before the judge (Sayo vs. Duty complied with upon the filing of the complaint with the judicial authority (courts. crime is illegal detention Before Article 125 may be applied. To escape from this. That the offender without good reason delays: 1. Article 269(unlawful arrest). officers usually ask accused to execute a waiver which should be under oath and with assistance of counsel. In such case. In this case.14 Elements and Notes in Criminal Law Book II by RENE CALLANTA does not want to waive this in writing. What is length of waiver? Light offense – 5 days.) • Delivery of detained person consists in making charge of filing a compliant against the prisoner with the proper judicial authority. That there is a judicial or executive order for the release of a prisoner or detention prisoner. the arresting officer will have to comply with Article 125 and file the case immediately in court without preliminary investigation. or • • Q. If the arrest is made without a warrant. Chief of Police). Article 125 contemplates a situation where the arrest was made without warrant but based on legal grounds. . the detention of the arrested person must be lawful because the arrest is based on legal grounds. this constitutes an unlawful arrest. he’s considered as one. What the complainant may do is to file a complaint with the court and ask for the issuance of a warrant of arrest. even if after investigation he becomes convinced that the accused is guilty of the offense charged. the arrested person. • The filing of the information in court does not cure illegality of detention. Delay Detention starts from periods w been deliv • Article 126 DELAYING RELEASE ELEMENTS: a. the public officer who made the arrest will no longer be liable for violation of Article 125. within five days after learning that the case has been filed in court without preliminary investigation. will apply. • • If offender is a private person. the service of the notice of such order to the prisoner. the performance of such judicial or executive order for the release of the prisoner. Serious and less serious offenses – 7 to 10 days. There is no time limit specified except that the return must be made within a reasonable time. This is known as citizen’s arrest.

the proceedings upon a petition for the release of such person • Three acts are punishable: a. the mayor of the City of Manila wanted to make the city free from prostitution. because a Filipino cannot be deported. delaying the performance of a judicial or executive order for the release of a prisoner b. what crime is committed? Article 127 EXPULSION ELEMENTS: a. That the offender is not authorized to do so by law • 2 acts punishable: a. • Does not include undesirable aliens. • Article 128 VIOLATION OF DOMICILE ELEMENTS: a. only the President of the Republic has the power to deport aliens whose continued stay in the country constitutes a menace to the peace and safety of the community. by compelling a person change his residence to Grave coercion. . or compels a person to change his residence c. Certain aliens were arrested and they were just put on the first aircraft which brought them to the country so that they may be out without due process of law.15 Elements and Notes in Criminal Law Book II by RENE CALLANTA 3. by final judgment. In the Philippines. That he expels any person from the Philippines. • If X (Filipino) after he voluntarily left. searching papers or other effects found therein without The essence of this crime is coercion but the specific crime is “expulsion” when committed by a public officer. Was there a crime committed? Yes. is refused re-entry – is considered forcing him to change his address here Threat to national security is not a ground to expel or change his address. Expulsion. He ordered certain prostitutes to be transferred to Davao. or when sent to prison Questions & Answers • • Wardens and jailers are the persons most likely to violate this provision Provision legislation does not include 1. 39 Phil 778. That he is not authorized by judicial order to enter the dwelling and/or to make a search therein for papers or other effects c. can order a person to change his residence. Lukban. not expulsion. only the court. In the case of Filipino citizens. That the offender is a public officer or employee b. the crime is grave coercion. by expelling a person from the Philippines b. entering any dwelling against the will of the owner thereof 2. That the offender is a public officer or employee b. delaying the proceedings upon any petition for the liberation of such person In Villavicencio v. This crime refers only to aliens. That he commits any of the following acts: 1. If a Filipino citizen is sent out of the country. If committed by a private person. 2. It was held that the crime committed was expulsion. destierro. delaying the service of notice of such order to said prisoner c. without observing due processes since they have not been charged with any crime at all.

or • • “Being authorized by law” – means with search warrant. if there is no violence or intimidation (Art 287) A public officer without a search warrant cannot lawfully enter the dwelling against the will of the owner. crime may be unjust vexation. to save . If the door is locked. public officer should be legally entitled to be in the place where the effects were found. • If the offender who enters the dwelling against the will of the owner thereof is a private individual. person entered secretly and refuses to leave after being asked to The act punished is not the entry but the refusal to leave. The primary object of the law is to preserve the privacy of abode of the offended party. followed and left. if the privacy is already lost. can break into the premise. if violence or intimidation is used (Art 286). refusing to leave the premises. But if entering was done against the will of the occupant of the house. person enters and searches for papers and effects Public officer who enters with consent searches for paper and effects without the consent of the owner. the crime committed by the public officer is grave coercion. the entry must be against the will of the owner. thus. as when the offender has been allowed by the owner to enter the dwelling together with other persons. Hence. Even if he is welcome in the dwelling. If the signs “Do not enter” and “Strangers keep out” are posted in front of the house or dwelling. or even if it is open but these are barriers to indicate the manifest intention of the owner to bar strangers from entering. the public officer. trespass to dwelling or violation of domicile cannot be committed. c. the crime committed is trespass to dwelling (Art 280) When a public officer searched a person “outside his dwelling” without a search warrant and such person is not legally arrested for an offense. then the prohibition is express. even if the occupant does not direct him to leave. b. meaning there was express or implied prohibition from entering the same. person enters dwelling w/o consent or against the will In the plain view doctrine. • 3 acts punishable: a. the crime of violation of domicile is already committed because it would fall in number 1. the crime of violation of domicile is not committed. Entry must be done surreptitiously. there is no crime of violation of domicile. he is liable for violation of domicile. without this. doctrine inapplicable. The prohibition may be expressed or implied. it does not mean he has permission to search. He shall not be liable for violation of domicile. Papers or effects not constituting evidence of a crime be not returned immediately • In order to commit this crime. If the offender upon being directed to leave. even if he knew that someone in that dwelling is having unlawful possession of opium Under Rule 113(sec. 11) of the Revised Rules of Court. there is implied prohibition. If the entry is only without the consent of the owner. any subsequent change of attitude will not restore the privacy which was already lost. • Aggravating Circumstance (medium and maximum of penalty imposed): a. Offense committed at nighttime b. when a person to be arrested enters a premise and closes it thereafter. When privacy is waived. If he entered the place illegally and he saw the effects. after giving notice of an arrest.16 Elements and Notes in Criminal Law Book II by RENE CALLANTA the previous consent of such owner 3. after having surreptitiously entered said dwelling and after having been required to leave the same • unjust vexation.

(1) (2) Search made incidental to a valid arrest. he must have perjured himself or induced someone to commit perjury to convince the court. to be determined by a judge after examination under oath of the complainant and the witnesses he may produce. One remedy is a motion to quash the search warrant. That he procures a search warrant c. That the offender is a public officer or employee b. because for him to succeed in The officer exceeded his authority under the warrant – To illustrate. the search warrant is entitled to respect because of presumption of regularity. therefore. Eventually. it must be based on probable cause in connection with one offense. ABUSE IN THE SERVICE OF WARRANT OR EXCEEDING AUTHORITY OR USING UNNECESSARY SEVERITY IN EXECUTING A SEARCH WARRANT LEGALLY PROCURED ELEMENTS: a. Where the search was made on a moving vehicle or vessel such that the exigency of he situation prevents the searching officer from securing a search warrant. That there is no just cause • • In order that a search warrant may be issued. the person with the same name was found but in a different address. That he has legally procured a search warrant c.17 Elements and Notes in Criminal Law Book II by RENE CALLANTA himself or do some things good for humanity There are only three recognized instances when search without a warrant is considered valid. The . all details must be with particularity Article 129 SEARCH WARRANTS MALICIOUSLY OBTAINED ELEMENTS: a. The PNP Narcotics Group obtained a search warrant but the name of person in the search warrant did not tally with the address stated. The public officer may also be prosecuted for perjury. search would be invalid and the objects seized would not be admissible in evidence. the seizure of any evidence done is also valid. not refusal to abide by it. signed by the judge and directed to a public officer. • • This means there was no probable cause determined in obtaining the search warrant. That he exceeds his authority or uses unnecessary severity in executing the same • Search warrant is valid for 10 days from its date Search warrant is an order in writing issued in the name of the People. and particularly describing the place to be searched and the persons or things to be seized. commanding him to search for personal property described therein and bring it before the court No just cause – warrant is unjustified Search – limited to what is described in the warrant. obtaining a search warrant without a probable cause. When the article seized is within plain view of the officer making the seizure without making a search therefore. The true test of lack of just cause is whether the sworn statement filed in support of the application for search warrant has been done in such a manner that perjury could be charged and the affiant can be held liable for making such false statement. (3) • Papers and effects need not be part of a crime. and. let us say that there was a pusher in a condo unit. • Although void. That the offender is a public officer or employee b. Outside of these. The oath required refers to the truth of the facts within the personal knowledge of the applicant and his witnesses.

Members of the family sufficient age and discretion of c. Example. or any member of his family. acts: 1. Tank was used to ram gate prior to announcement that a search will be made The search warrant is not a license to commit destruction. box or envelope. Abuse examples: a. warehouse. . For instance. b. Responsible members of the community (can’t be influenced by the searching party) • Validity of the search warrant can be questioned only in 2 courts: 1) where issued or 2) where the case is pending. to enter. • Malicious warrant. • c. 2203. search and examine any vessel or aircraft. prohibiting or interrupting. The gun did not belong to X and the witness had no personal knowledge that there is a gun in that place. and to inspect. Offender is a public officer or employee b. enclosure. plain view doctrine does not apply. store or building. Homeowner Article 131 PROHIBITION. or any person on board. AND DISSOLUTION OF PEACEFUL MEETINGS • ELEMENTS: a. Persons who were respondents were searched not Article 130 SEARCHING DOMICILE WITHOUT WITNESSES • ELEMENTS : a. That he is armed with a search warrant legally procured c. or two witnesses residing in the same locality are not present • Order of those who must witness the search: a. There are searches and seizures which are authorized by law and which can be done without the attendance of witnesses. X was a respondent of a search warrant for illegal possession of firearms. pass through or search any land.g.18 Elements and Notes in Criminal Law Book II by RENE CALLANTA occupant resisted but the public officer insisted on the search. Latter is preferred for objective determination. not being used as a dwelling house. That he searches the domicile. or dissolving the same (e. Since the entry was illegal. package. That the owner. the Tariff and Customs Code authorizes persons with police authority under Sec. papers or other belongings of any person d. The Supreme Court acquitted him because the public officers are required to follow the search warrant to the letter. They have no discretion on the matter. and any trunk. Plain view doctrine is inapplicable since it presupposes that the officer was legally entitled to be in the place where the effects where found. That the offender is a public officer or employee b. He performs any of the ff. A return was made. beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law. denial of permit in arbitrary manner). or to stop and search and examine any vehicle. Drugs were found and seized and occupant was prosecuted and convicted by the trial court. X owner was handcuffed while search was going-on. INTERRUPTION. without legal ground the holding of a peaceful meeting. b. Article 130 has no application to search and seizure made on moving vehicles because the application of this law is limited to dwelling and personal properties such as papers and effects found therein.

In Article 153. the public officer is not a participant. interruption. The essence of the crime is that of creating a serious disturbance of any sort in a public office. Stricter rule. it’s unjust vexation Interrupting and dissolving a meeting of the municipal council by a public officer is a crime against the legislative body. public building or even a private place where a public function is being held. he prohibits. not a participant. or dissolves the same. As far as the gathering is concerned. the crime is disturbance of public order (Art 153) Meeting must be peaceful and there is no legal ground for prohibiting. under Article 153 (1) As to the participation of the public officer In Article 131. If the public officer is a participant of the assembly and he prohibits. without any legal ground. • • • Meeting is subject to regulation If the permit is denied arbitrarily. hindering any person from joining any lawful association or from attending any of its meetings. not punishable under this article The person talking on a prohibited subject at a public meeting contrary to agreement that no speaker should touch on politics may be stopped • • Article 132 INTERRUPTION WORSHIP • ELEMENTS: OF RELIGIOUS .19 Elements and Notes in Criminal Law Book II by RENE CALLANTA 2. • Offender must be a stranger. • • Two criteria to determine whether Article 131 would be violated: (1) Dangerous tendency rule – applicable in times of national unrest such as to prevent coup d’etat. a public officer or law enforcer can stop or dissolve the meeting. or dissolves a peaceful meeting or assembly to prevent the offended party from exercising his freedom of speech and that of the assembly to petition a grievance against the government. the offender must be a public officer and. Clear and present danger rule – applied in times of peace. • If the offender is a private individual. Example: Ordinance requires permits for meetings in public places. Article 131 is violated. interrupts. Article 153 is violated if the same is conducted in a public place. The permit given is not a license to commit a crime. and tumults and other disturbances. the public officer is a third party. (2) Distinctions between prohibition. either alone or together with others. If the officer would not give the permit unless the meeting is held in a particular place which he dictates defeats the exercise of the right to peaceably assemble. • prohibiting or hindering any person from addressing. otherwise. any petition to the authorities for the correction of abuses or redress of grievances • But stopping the speaker who was attacking certain churches in public meeting is a violation of this article Prohibition must be without lawful cause or without lawful authority Those holding peaceful meetings must comply with local ordinances. interrupts. or dissolution of peaceful meetings under Article 131. officer is liable for stopping the meeting. Article 131 is violated. in the peaceful meeting. dissolving or interrupting that meeting If in the course of the assembly the participants commit illegal acts like oral defamation or inciting to sedition. (2) As to the essence of the crime In Article 131. But if police stops a meeting in a private place because there’s no permit. the offender need not be a public officer.

only the place is material) 2. There is a deliberate intent to hurt the feelings of the faithful. The offender is any person d. there is no need for an ongoing religious ceremony Example of religious ceremony (acts performed outside the church). Ex.20 Elements and Notes in Criminal Law Book II by RENE CALLANTA a. public order private persons. That the offender prevents or disturbs the same • faithful (deliberate intent to hurt the feelings) c. Mass. although in other cases. a private person. Baes. baptism. or (for this element. a manifestation of religion. That the officer is a public officer or employee b. That the acts complained of were performed – 1. • • • • • • • In determining whether an act is offensive to the feelings of the faithful. but only a meeting of a religious sect. 203). during the celebration of any religious ceremony CRIME Prohibition. boxed a priest while the priest was giving homily and while the latter was maligning a relative of X. Is X liable? X may be liable under Art 133 because X is a private person. marriage X. Processions and special prayers for burying dead persons but NOT prayer rallies Acts must be directed against religious practice or dogma or ritual for the purpose of ridicule. he is a person in authority. outsiders b. as mocking or scoffing or attempting to damage an object of religious veneration There must be deliberate intent to hurt the feelings of the faithful. the same must be viewed or judged from the standpoint of the offended religion and not from the point of view of the offender (People vs. fundamental law of Outsiders the state Crime against the Public officers. he’s not. When priest is solemnizing marriage. mere arrogance or rudeness is not enough • Circumstance qualifying the offense: if committed with violence or threats Reading of Bible and then attacking certain churches in a public plaza is not a ceremony or manifestation of religion. Interruption and Dissolution of Peaceful Meeting (131) Interruption of Religious Worship (132) Nature of Crime Who are Liable Crime against the Public officers. directed against religious tenet If in a place devoted to religious purpose. 68 Phil. no need of religious ceremony. it’s a religious service Religious Worship: people in the act of performing religious rites for a religious ceremony. That religious ceremonies or manifestations of any religion are about to take place or are going on c. But if done in a private home. in a place devoted to religious worship. fundamental law of Outsiders the state Offending the Religious Feeling (133) Crime against Public officers. Article 133 OFFENDING RELIGIOUS FEELINGS • ELEMENTS: a. That the acts must be notoriously offensive to the feelings of the .

Direct assaults (Art. 134-A) 2. Disobedience to summons issued by Congress. Coup d’ etat (Art. 142). 154). 156). Conspiracy to commit sedition (Art. 20. 8. 145). its committees. That the purpose of the uprising or movement is either 1. etc. That there be – 1. 22. 24. Indirect assaults (Art. 139). TITLE THREE CRIMES AGAINST PUBLIC ORDER Crimes against public order 1. 151). Evasion on occasion of disorders (Art. 13. Unlawful use of means of publication and unlawful utterances (Art. Illegal assemblies (Art. 3. taking arms against the government (force/violence) 10. 147). Resistance and disobedience to a person in authority or the agents of such person (Art. 7. Conspiracy and proposal commit rebellion (Art. 2. 12. Evasion of service of sentence (Art. Article 134 REBELLION OR INSURRECTION • ELEMENTS: a. and Commission of another crime during service of penalty imposed for another previous offense (Art. Alarms and scandals (Art. 160). 144). Sedition (Art. 149). 143). etc. Inciting to rebellion (Art. 136). 16. Rebellion or insurrection (Art. 137).21 Elements and Notes in Criminal Law Book II by RENE CALLANTA 11. 141). Violation of conditional pardon (Art. 4. 5. Illegal associations (Art. public uprising and 9. b. 134). to remove from the allegiance to said government or its laws – . 6. its committees. 159). 153). Violation of parliamentary immunity (Art. Disloyalty to public officers or employees (Art. to 19. 146).. 18. Delivering prisoners from jails (Art. 155). 138). Inciting to sedition (Art. 158). 148). 157). Disturbance of proceedings of Congress or similar bodies (Art. Tumults and other disturbances of public order (Art. (Art. 21. by the constitutional commissions. 17. 15. 14. 150). Acts tending to prevent the meeting of Congress and similar bodies (Art. 23.

exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated (Note: “diverting public funds” is malversation absorbed in rebellion).22 Elements and Notes in Criminal Law Book II by RENE CALLANTA 4 5 i. It does not require the participation of any member of the military or national police organization or public officers and generally carried out by civilians. Lastly. engaging in war against the forces of the government 2. Any person merely participating or executing the command of others in rebellion The essence of this crime is a public uprising with the taking up of arms. represented by its officials. duress or intimidation. to exact obedience of laws and regulations duly enacted The crime of rebellion cannot be committed by a single individual. heads a rebellion or insurrection. takes part therein by: 1. Any person who: 1. It also includes the efforts of the rebel to deprive the President of the Philippines of the exercise of his power to enforce the law. 4. wholly or partially. • • Allegiance is a generic term which includes loyalty. Invariably. of any of their powers or prerogatives • Persons liable for rebellion a. any body of land. The intention of the rebel is to substitute himself in place of those who are in power. the territory of the Philippines or any part thereof. assassination or the commission of common crimes like murder. known to the ordinary citizen as a symbol of Government would be the barangay. • Rebellion used where the object of the movement is completely to overthrow and supersede the existing government Insurrection refers to a movement which seeks merely to effect some change of minor importance to prevent the exercise of gov’t authority w/ respect to particular matters or subjects The phrase “to remove allegiance from the government’ is used to emphasize that the object of the uprising could be limited to certain areas. • Success is immaterial. kidnapping. or 2 To deprive the chief executive or congress. The law on rebellion however. or 6 7 ii. purpose is always political The crime of rebellion is essentially a political crime. the local government represented by the provincial and municipal officials. or b. it is committed by several persons for the purpose of overthrowing the duly constituted or organized government. maintains. It aims to overthrow the duly constituted government. His method of placing himself in authority with the use of violence. the crime can only be committed through force and violence. arson. the Chief Justice and the Senate President and the Speaker of the House of Representatives. robbery and other heinous crimes in what we call rebellion. does not speak only of allegiance or loss of territory. destroying property or committing serious violence 3. naval or other armed forces. like isolating a barangay or municipality or a province in its loyalty to the duly constituted government or the national government. civil obedience and civil service. In the Philippines. while holding any public office or employment. and the national government represented by the President. Any person who. what is . It requires a multitude of people. promotes 2. or 3.

that rebellion may not be complexed with common crimes which are committed in furtherance thereof because they are absorbed in rebellion. diverting funds for the lawful purpose for which they have been appropriated. such as killing and destruction of property.23 Elements and Notes in Criminal Law Book II by RENE CALLANTA and promulgated by the duly constituted authorities. committing serious violence. The acts of the accused who is not a member of the Hukbalahap organization of sending cigarettes and food supplies to a Huk leader. Not long ago. are not to be treated as distinct crimes. . 7 SCRA 900). 99 Phil 515. • Mere giving of aid or comfort is not criminal in the case of rebellion. 6968 (An Act Punishing the Crime of Coup D’etat). committed on the occasion and in furtherance thereof. Salazar. If there is no public uprising. When any of the objectives of rebellion is pursued but there is no public uprising in the legal sense. 6968. • Actual clash of arms w/ the forces of the gov’t. the changing of dollars into pesos for a top level communist. therefore. not necessary to convict the accused who is in conspiracy w/ others actually taking arms against the gov’t Purpose of the uprising must be shown but it is not necessary that it be accomplished A change of government external participation w/o Common crimes perpetrated in furtherance of a political offense are divested of their character as “common” offenses and assume the political complexion of the main crime which they are mere ingredients. which became effective on October 1990. the Supreme Court. The statement in People v. ORTEGA OPINION: Rebellion can now be complexed with common crimes.. In the eyes of • • • RISING PUBLICLY and TAKING ARMS AGAINST GOVERNMENT – actual participation. Hernandez. cannot be punished separately from the principal offense. Article 135 punished those “who while holding any public office or employment. it was because Article 135 then punished said acts as components of the crime of rebellion that precludes the application of Article 48 of the Revised Penal Code thereto. Hernandez that common crimes committed in furtherance of rebellion are absorbed by the crime of rebellion. In view of said reaffirmation. the crime is direct assault of the first form. the crime is of direct assault. there is no legal basis for such rule now. Prior to its amendment by Republic Act No. Merely sympathizing is not participation. People. and the helping of Huks in opening accounts with the bank of which he was an official. In short. exacting contributions. there must be ACTUAL participation There must be a public apprising and taking up of arms for the specified purpose or purposes mentioned in Article 134. direct assault cannot be committed. do not constitute Rebellion. Since a higher penalty is prescribed for the crime of rebellion when any of the specified acts are committed in furtherance thereof. et al. was dictated by the provision of Article 135 of the Revised Penal Code prior to its amendment by the Republic Act No. take part therein” by any of these acts: engaging in war against the forces of Government. (Carino vs. reiterated and affirmed the rule laid down in People v. The same acts constitute distinct crimes when committed on a different occasion and not in furtherance of rebellion. No encounter needed. said acts are punished as components of rebellion and. 186 SCRA 217. This thinking is no longer correct. • Not necessary that there is killing. or complexed with the same. destroying property. Mere public uprising with arms enough. with public uprising. in Enrile v. But if there is rebellion. • Rebellion cannot be complexed with any other crime. mere threat of removing Phil is sufficient Rebellion may be committed even without a single shot being fired. and consequently. some believe that it has been a settled doctrine that rebellion cannot be complexed with common crimes.

so that it cannot be conveniently utilized as the umbrella for every sort of illegal activity undertaken in its name. Rape. possessions of firearms. and/or destructions of property. To reiterate. (2) As to purpose . After the amendment. while holding any public office or employment takes part therein [rebellion or insurrection]. common crimes involving killings. Hernandez. illegal possession of firearms in furtherance of rebellion is distinct from the crime of rebellion. like serious acts of violence. the crime would be separately be punished and would not be embraced by rebellion (People v. The court has no power to effect such change. "War" connotes anything which may be carried out in pursuance of war. overt acts which used to be punished as components of the crime of rebellion have been severed therefrom by Republic Act No. or rebellion with arson as the case may be. robbing were done for private purposes or for profit. Hopefully. good faith and absence of criminal intent are not valid defenses. and what is needed lies beyond interpretation. 6968. Fernando) Person deemed leader of rebellion in case he is unknown: Any person who in fact: a. Ortega cites no case overturning Enrile v. for it can only interpret the law as it stands at any given time. signed receipts and other documents issued in their name d. therefore. the acts which used to be component crimes of rebellion. or rebellion with robbery. The Hernandez doctrine was reaffirmed in Enrile v. Salazar. before Article 135 was amended. These are now distinct crimes. Congress will perceive the need for promptly seizing the initiative in this matter.24 Elements and Notes in Criminal Law Book II by RENE CALLANTA the law then. there must be taking up or arms against the government. engaging in war against the forces of government. in enacting Republic Act No. • • Furthermore. it is sufficient that the public uprising be tumultuous. even if not in furtherance of rebellion cannot be complexed If killing. it did not only provide for the crime of coup d’etat in the Revised Penal Code but moreover.” Obviously. • However. even though committed by rebels in furtherance of rebellion. performed similar acts on behalf of the rebels rebellion and • • Distinctions between sedition (1) As to nature In rebellion. either to raise the penalty therefore or to clearly define and delimit the other offenses to be considered absorbed thereby. Examples: killing. The legal obstacle for the application of Article 48. in which case. The offense of illegal possession of firearm is a malum prohibitum. spoke for them c. destroying property or committing serious violence. illegal association are absorbed. it is a continuing crime such along with the crime of conspiracy or proposal to commit such A private crime may be committed during rebellion. a higher penalty is imposed when the offender engages in war against the government. exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated …” Hence. has been removed. This implies that all acts of war or hostilities like serious violence and destruction of property committed on occasion and in pursuance of rebellion are component crimes of rebellion which is why Article 48 on complex crimes is inapplicable. have been deleted. The legal impediment to the application of Article 48 to rebellion has been removed. said acts constitute only one crime and that is rebellion. Congress took notice of this pronouncement and. without any political motivation. So the Supreme Court invited attention to this fact and thus stated: “There is a an apparent need to restructure the law on rebellion. In amending Article135. thus. In sedition. Salazar because the text of Article 135 has remained the same as it was when the Supreme Court resolved the same issue in the People v. directed the others b. shall bring about complex crimes of rebellion with murder/homicide. 6968. which is purely within its province. Ortega says legislators want to punish these common crimes independently of rebellion. deleted from the provision of Article 135 that portion referring to those – “…who.

Any person who: • The objective may not be to overthrow the government but only to destabilize . from the duly constituted government. Committed by any person or persons belonging to the military or police or holding any public office or employment. It may be committed singly or collectively and does not require a multitude of people. Coup (134-A) Nature Crime against Crime against Crime o National Security Public Order against f Public O C r i m e Overt levying war Public uprising See art A against the gov’t. other facilities needed for the exercise and continued possession of power How do you distinguish between coup d’etat and rebellion? Rebellion is committed by any person whether a private individual or a public officer whereas in coup d’etat. Directed against: 1. any military camp or installation 3. whether wholly or partially. With or without civilian support or participation f. Finally. with or without civilian support or participation e. The purpose in sedition is to go against established government. duly constituted authorities 2. In sedition. intimidation. Singly or simultaneously carried out anywhere in the Philippines d. Treason (114) Rebellion (134) d. in coup d’etat. communication networks.25 Elements and Notes in Criminal Law Book II by RENE CALLANTA In rebellion. threat. the object is to alienate the allegiance of a people in a territory. AND c OR Taking up arms t adherence and against the gov’t s giving aid or comfort to enemies Purpose Deliver the gov’t See article. communication networks or public utilities 4. Purpose of seizing or diminishing state power The essence of the crime is a swift attack upon the facilities of the Philippine government. military camps and installations. In both instances. It requires as principal offender a member of the AFP or of the PNP organization or a public officer with or without civilian support. the object or purpose is to seize or diminish state power. Example: the uprising of squatters against Forbes park residents. In rebellion. the offenders intend to substitute themselves in place of those who are in power. the purpose is always political. the offender is a member of the military or police force or holding a public office or employment. or paralyze the government through the seizure of facilities and utilities essential to the continued possession and exercise of governmental powers. not to overthrow it. the purpose may be political or social. Article 134-A COUP D’ ETAT • ELEMENTS: a. threat or strategy. Seizing of to enemy during diminish objectiv war state po e Article 135 PENALTIES • Who are liable? a. public utilities and facilities essential to the continued possession of governmental powers. it may be carried out not only by force or violence but also through stealth. Swift attack b. Accompanied by violence. strategy or stealth c.

A person who has decided to rise publicly and take arms the government b. It is not a defense in rebellion that the accused never took the oath of allegiance to. • Serious violence is that inflicted upon civilians. engaging in war against the forces of the gov’t 2. REBELLION OR INSURRECTION (136) • ELEMENTS: a. heads a insurrection Subversion. directs. It is not limited to hostilities against the armed force. or that they never recognized the government c. would be separately punished and would not be absorbed in the rebellion. Killing. the principal of criminal liability under Article 17 of the Revised Penal Code is not followed. For any of the purposes of rebellion c. just like the crimes of rebellion. takes part therein 1. They decide to commit it When conspiracy is present in the • commission of the crime. even if conspiracy as a means to commit the crime is established. which may result in homicide. conspiracy or proposal to commit the crimes of rebellion or subversion and crimes or offenses committed in furtherance thereof constitute direct assaults against the State and are in the nature of continuing crimes ( Umil vs. Proposes its execution to some other person/s • Organizing a group of soldiers. Rebellion cannot be complexed with murder and other common crimes committed in pursuance of the movement to overthrow the government PROPOSAL TO COMMIT COUP D’ ETAT. Any person who. 2 more persons come to an agreement to rise publicly and take arms against the government b. rebellion or b. and soliciting funds for the organization show conspiracy to overthrow the gov’t The mere fact of giving and rendering speeches favoring Communism would not make the • • . d. exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated c.26 Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. Maintains 3. robbing etc for private persons or for profit. Public officer must take active part because mere silence or omission not punishable in rebellion b. In Government Service Anyone who leads. without any political motivation. In committing rebellion and coup d’etat. the act of one is the act of all. destroying property or committing serious violence 3. while holding any public office or employment. soliciting membership in. commands others to undertake a coup. Ramos). Diverting public funds is malversation absorbed in rebellion NOTES: a. REBELLION OR INSURRECTION ELEMENTS: a. Any person merely participating or executing the command of other in a rebellion Article 136 CONSPIRACY TO COMMIT COUP D’ ETAT. For any of the purposes of rebellion c. Promotes 2.

Article 139 SEDITION • ELEMENTS: a. Article 138 INCITING TO REBELLION OR INSURRECTION • ELEMENTS: a. writings. maintains or heads a rebellion and who act at the same time incites or influences others to join him in his war efforts against the duly constituted government cannot be held criminally liable for the crime of inciting to rebellion because. Continuing to discharge the duties of their offices under the control of rebels c. emblems. banners or other representations tending to the same end • • Intentionally calculated to seduce others to rebellion There must be uprising to take up arms and rise publicly for the purposes indicated in Art 134 Article 137 DISLOYALTY OF OFFICERS EMPLOYEES • PUBLIC AND ACTS PUNISHED: a. then it is already taking part in it. That the inciting is done by means of speeches. decided to com The person who proposes the execution The inciting is d of the crime uses secret means. dereliction of duty and violations of the anti-Graft and Corrupt Practices Act. the act of inciting to commit a rebellion is inherent to the graver crime of rebellion. Disloyalty as a crime is not limited to rebellion alone but should now include the crime of coup d’etat. If there are no means. he will no longer be charged for the simple crime of disloyalty but he shall be proceeded against for the grave offense of rebellion or coup d’etat. no fault If position is accepted in order to protect the people. acts constituting the crime of rebellion or coup d’etat. Failing to resist rebellion by all the means in their power b. bribery. then there’s disloyalty. That the offenders rise – . as the principal to the crime of rebellion. not covered by this The collaborator must not have tried to impose the wishes of the rebels on the people.27 Elements and Notes in Criminal Law Book II by RENE CALLANTA accused guilty of conspiracy if there’s no evidence that the hearers then and there agreed to rise up in arms against the gov’t • • Conspiracy must be immediately prior to rebellion If it is during the rebellion. Accepting appointment to office under rebels • • • Presupposes existence of rebellion Must not be in conspiracy with rebels or coup plotters If there are means to prevent the rebellion but did not resist it. • • One who promotes. proclamations. If the public officer or employee. Rebellion is essentially a crime committed by private individuals while coup d’etat is a crime that should be classified as a crime committed by public officers like malversation. That he incites others to the execution of any of the acts of rebellion c. aside from being disloyal. That the offender does not take arms or is not in open hostility against the government b. does or commits Proposal to Commit Rebellion (136) Inciting The person who proposes has decided to Not required commit rebellion.

or any public thereof from freely exercising its or his functions. The crime of sedition is committed by rising publicly and tumultuously. The crime of sedition does not contemplate the taking up of arms • • • . This is like the so-called civil disobedience except that the means employed. Its ultimate object is a violation of the public peace or at least such measures that evidently engenders it. That the offenders employ any of those means to attain any of the following objects: 1. 2. Notice from the purpose of the crime of sedition that the offenders rise publicly and create commotion and disturbance by way of protest to express their dissent and obedience to the government or to the authorities concerned. For sedition – sufficient that uprising is tumultuous. Sedition – purpose may be either political or social. • • Preventing election through legal means – NOT sedition But when sugar farmers demonstrated and destroyed the properties of sugar barons – sedition Persons liable for sedition: a. Umali. is illegal. That they employ intimidation. and b. means b. Crimes committed in that case were independent of each other. to despoil. other persons participating in the sedition • Sedition: raising of commotion or disturbances in the State. In rebellion – always political “Tumultuous ” is a situation wherein the disturbance or confusion is caused by at least four persons. to prevent the promulgation or execution of any law or the holding of any popular election 2. municipality or province. or other outside of legal methods c. for any political or social end. SC held that NO. The two elements must concur. or any provincial or municipal government. to inflict any act or hate or revenge upon the person or property of any public officer or employee • Difference from rebellion – object or purpose of the uprising.28 Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. any person. There is no requirement that the offenders should be armed. or the national government of all its property or any part thereof • • In sedition – offender may be a private or public person (Ex. Publicly (if no public uprising = tumult and other disturbance of public order) against the government because the purpose of this crime is not the overthrow of the government. In rebellion – there must be taking up of arms against the government. which is violence. or prevent the execution of any administrative order 3. leader of the sedition. even private persons may be offended parties) 5. Soldier) Public uprising and the object of sedition must concur Q: Are common crimes absorbed in sedition? • In P v. Tumultuously (vis-à-vis rebellion where there must be a taking of arms) force. any act of hate or revenge against private persons or any social class (hence. to commit for any political or social end. • Preventing public officers from freely exercising their functions 4. to prevent the national government.

The conspiracy must be to prevent the promulgation or execution of any law or the holding of any popular election. b. or c. actual disturbance not necessary) Different acts of inciting to sedition: a. Uttering seditious words or speeches which tend to disturb the public peace or writing. when they tend to instigate others to cabal and meet together for unlawful purposes. cause commotion not exactly against the government. resort to force or violence. Knowingly concealing such evil practices • When punishable: a. banners. But when the protest in manifested in the form of rallies where the participants. proclamations. That the inciting is done by means of speeches. That the offender does not take a direct part in the crime of sedition b. writings.29 Elements and Notes in Criminal Law Book II by RENE CALLANTA The objective of the law in criminalizing sedition is to put a limit to the freedom of expression or the right of the people to assemble and petition the government for redress of grievance. Conspiracy to Commit Sedition In this crime. • Article 141. emblems. Article 142 INCITING TO SEDITION • ELEMENTS: a. proclamations. which tend to disturb the public peace c. or other representations tending to the same end (purpose: Inciting to sedition is an element of sedition. the mantle of protection guaranteed under the Constitution to express their dissent peacefully. or to prevent the execution of an administrative order. • The demonstrations conducted or held by the citizenry to protest certain policies of the government is not a crime. or b. or d. when they lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community. shall cease to exist. cartoons. the participants have encroached or stayed in the domain or realm of criminal law. writing. in order to attain their objective of overcoming the will of the government. It may also be a conspiracy to prevent national and local public officials from freely exercising their duties and functions. the safety and order of the government Only non-participant in sedition may be liable. Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches. emblems etc. Considering that the objective of sedition is to express protest against the government . there must be an agreement and a decision to rise publicly and tumultuously to attain any of the objects of sedition. mean. when they tend to disturb or obstruct any lawful officer in executing the functions of his office. publishing. when they suggest or incite rebellious conspiracies or riots. It cannot be treated as a separate offense against one who is a part of a group that rose up publicly and tumultuously and fought the forces of government. as in the meantime. There is no proposal to commit sedition. libelous] libels against the government or any of the duly constituted authorities thereof. or circulating scurrilous [vulgar. That he incites others to the accomplishment of any of the acts which constitute sedition (134) c.

Lambasting government officials to discredit the government is Inciting to sedition. That there be a meeting of Congress or any of its committees. That there be a projected or actual meeting of Congress or any of its committees or subcommittees. The three branches of government must continue to exist and perform their duties. He behaves while in the presence of any such bodies in such a manner as to interrupt its proceedings or to impair the respect due it CRIMES AGAINST POPULAR REPRESENTATION Article 143 ACTS TENDING TO PREVENT THE MEETING OF CONGRESS AND SIMILAR BODIES • ELEMENTS: a. or frauds to prevent any member of Congress from – 1. or from 2. threats. But if the objective of such preparatory actions is the overthrow of the government. any act that will generate hatred against the government or a public officer concerned or a social class may amount to Inciting to sedition. When these legislative bodies are prevented from meeting and performing their duties. • Complaint must be filed by member of the Legislative body. • Chief of Police and mayor who prevented the meeting of the municipal council are liable under Art 143. when the defect of the meeting is not manifest and requires an investigation before its existence can be determined. That the offender who may be any persons prevents such meeting by force or fraud The crime is against popular representation because it is directed against officers whose primary function is to meet and enact laws. By using force. expressing his opinions or 3. The mere meeting for the purpose of discussing hatred against the government is inciting to sedition. speeches or any form of expressing dissent which is not done peacefully but implemented in such a way that it substantially interrupts the meeting of the assembly or adversely affects the respect due to the assembly of its members. Article 142 is. He disturbs any of such meetings 2. attending the meeting of the assembly or any of its committees. quite broad. constitutional commissions or committees or division thereof. Article 145 VIOLATION OF PARLIAMENTARY IMMUNITY • Acts punishable: a. or of any provincial board or city or municipal council or board b. therefore. intimidation. constitutional commissions or committees or divisions thereof. The disturbance can be in the form of utterances. or of any provincial board or city or municipal council or board b. DISTURBANCE PROCEEDINGS • OF ELEMENTS: a. That the offender does any of the following acts 1. constitutional commissions or committees or divisions thereof. casting his vote Article 144 .30 Elements and Notes in Criminal Law Book II by RENE CALLANTA and in the process creating hate against public officers. the system of government is disturbed. Accused may also be punished for contempt. the crime is inciting to rebellion.

or licensed firearms. the phrase "by a penalty higher than prision mayor" in Article 145 should be amended to read: "by the penalty of prision mayor or higher. That the offender is a public officer or employee 2. is incited to the commission of the crime of treason. to 12 years) is not liable Article 145. purpose of the meeting is to commit acts punishable under the RPC b. Meeting. gathering or group of persons whether in a fixed place or moving 2. rebellion or insurrection.31 Elements and Notes in Criminal Law Book II by RENE CALLANTA b. Audience whether armed or not. According to Reyes. purpose : to commit any of crimes punishable under the code 3. to be consistent with the Constitution. the organizers or leaders of the meeting b. meeting attended armed persons b. That the member searched has not committed a crime punishable under the code by a penalty higher than prision mayor (1987 constitution: privilege from arrest while congress in session in all offenses punishable by not more than 6 years imprisonment). if they carry arms. • Not all the persons present at the meeting of the first form of illegal assembly must be armed Persons liable for illegal assembly a. considered as leader organizer of the meeting or ILLEGAL ASSEMBLIES AND ASSOCIATIONS Article 146 ILLEGAL ASSEMBLIES • Two (2) Types assemblies: of illegal . By arresting or searching any member thereof while Congress is in a regular or special session. is in a regular or special session a. That Congress. at the time of arrest or search. Under Section 11. persons merely present at the meeting (except when presence is out of curiosity – not liable) • Responsibility of persons merely present at the meeting by 4. gathering or group of persons whether in a fixed place or moving 2. like bolos or knives. threat. Meeting of the second form 1. • a. penalty is prision correccional Presumptions if person present at the meeting carries an unlicensed firearm: a. a public officer who arrests a member of Congress who has committed a crime punishable by prision mayor (six years and one day. except in case such member has committed a crime punishable under the code by a penalty higher than prision mayor ( 6 years up ) Elements: 1. intimidation or fraud to prevent him from attending the meeting of Congress. penalty is arresto mayor b. Meeting of the first form 1. That he arrests or searches any member of Congress 3. has not committed any crime to justify the use of force. Article VI of the Constitution." • The offender is any person and the offended party who is a member of Congress. if they are not armed. sedition or direct assault. Meeting.

32 Elements and Notes in Criminal Law Book II by RENE CALLANTA
Those who incite the audience, by means of speeches, printed matters, and other representation, to commit treason, rebellion or insurrection, sedition or assault a person in authority, shall be deemed leaders or organizers of said meeting.

violation of a special law or those against public morals. Meaning of public morals: inimical to public welfare; it has nothing to do with decency., not acts of obscenity.

Article 147 ILLEGAL ASSOCIATIONS
• ELEMENTS: a. Organized totally or partially for the purpose of committing any of the crimes in RPC Or b. For some purpose contrary to public morals Persons liable: a. founders, directors and president of the association b. mere members of the association Illegal Assembly (146) Must be an actual meeting of armed persons to commit any of the crimes punishable under the RPC, or of individuals who, although not armed, are incited to the commission of treason, rebellion, sedition or assault upon a person in authority of his agent. It is the meeting and the attendance at such that are punished Persons liable: leaders and those present

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

Two forms of illegal assembly (1) No attendance of armed men, but persons in the meeting are incited to commit treason, rebellion or insurrection, sedition or assault upon a person in authority. When the illegal purpose of the gathering is to incite people to commit the crimes mentioned above, the presence of armed men is unnecessary. The mere gathering for the purpose is sufficient to bring about the crime already. Armed men attending the gathering – If the illegal purpose is other than those mentioned above, the presence of armed men during the gathering brings about the crime of illegal assembly. Example: Persons conspiring to rob a bank were arrested. Some were with firearms. Liable for illegal assembly, not for conspiracy, but for gathering with armed men. Distinction between illegal assembly and illegal association In illegal assembly, the basis of liability is the gathering for an illegal purpose which constitutes a crime under the Revised Penal Code. In illegal association, the basis is the formation of or organization of an association to engage in an unlawful purpose which is not limited to a violation of the Revised Penal Code. It includes a

Illeg No need for

Act of for membership Founders, members

(2)

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

ASSAULT, RESISTANCE AND DISOBEDIENCE Article 148 DIRECT ASSAULT •
ELEMENTS OF THE 1ST FORM OF DIRECT ASSAULT a. That the offender employs force or intimidation.

b.

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

33 Elements and Notes in Criminal Law Book II by RENE CALLANTA
c. That there is no public uprising.
Example of the first form of direct assault: Three men broke into a National Food Authority warehouse and lamented sufferings of the people. They called on people to help themselves to all the rice. They did not even help themselves to a single grain. The crime committed was direct assault. There was no robbery for there was no intent to gain. The crime is direct assault by committing acts of sedition under Article 139 (5), that is, spoiling of the property, for any political or social end, of any person municipality or province or the national government of all or any its property, but there is no public uprising.

resulting in a light felony, in which case, the consequence is absorbed
The crime is not based on the material consequence of the unlawful act. The crime of direct assault punishes the spirit of lawlessness and the contempt or hatred for the authority or the rule of law. To be specific, if a judge was killed while he was holding a session, the killing is not the direct assault, but murder. There could be direct assault if the offender killed the judge simply because the judge is so strict in the fulfillment of his duty. It is the spirit of hate which is the essence of direct assault. So, where the spirit is present, it is always complexed with the material consequence of the unlawful act. If the unlawful act was murder or homicide committed under circumstance of lawlessness or contempt of authority, the crime would be direct assault with murder or homicide, as the case may be. In the example of the judge who was killed, the crime is direct assault with murder or homicide. The only time when it is not complexed is when material consequence is a light felony, that is, slight physical injury. Direct assault absorbs the lighter felony; the crime of direct assault can not be separated from the material result of the act. So, if an offender who is charged with direct assault and in another court for the slight physical Injury which is part of the act, acquittal or conviction in one is a bar to the prosecution in the other.

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

c.

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

Hitting the policeman on the chest with fist is not direct assault because if done against an agent of a person in authority, the force employed must be of serious character The force employed need not be serious when the offended party is a person in authority (ex. Laying of hands) The intimidation or resistance must be serious whether the offended party is an agent only or a person in authority (ex. Pointing a gun) Force Employed Need not be serious Must be of serious character

d.

That the offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties (with intention to offend, injure or assault). e. That there is no public uprising. Crime of direct assault can only be committed by means of dolo. It cannot be committed by culpa.

In

Person in Authority Agent

Always complexed with the material consequence of the act (e.g. direct assault with murder) except if

Person in authority: any person directly vested with jurisdiction (power or authority to govern and

34 Elements and Notes in Criminal Law Book II by RENE CALLANTA
execute the laws) whether as an individual or as a member of some court or governmental corporation, board or commission • A barangay captain is a person in authority, so is a Division Superintendent of schools, President of Sanitary Division and a teacher The offender and the offended party are both public officers. The Supreme Court said that assault may still be committed, as in fact the offender is even subjected to a greater penalty (U.S. vs. Vallejo, 11 Phil. 193). • When assault is made by reason of the performance of his duty there is no need for actual performance of his official duty when attacked

In applying the provisions of Articles 148 and 151, teachers, professors, and persons charged with the supervision of public or duly recognized private schools, colleges and universities and lawyers in the actual performance of their duties or on the occasion of such performance, shall be deemed a person in authority.

In direct assault of the first form, the stature of the offended person is immaterial. The crime is manifested by the spirit of lawlessness. In the second form, you have to distinguish a situation where a person in authority or his agent was attacked while performing official functions, from a situation when he is not performing such functions. • If attack was done during the exercise of official functions, the crime is always direct assault. It is enough that the offender knew that the person in authority was performing an official function whatever may be the reason for the attack, although what may have happened was a purely private affair. On the other hand, if the person in authority or the agent was killed when no longer performing official functions, the crime may simply be the material consequence of he unlawful act: murder or homicide. For the crime to be direct assault, the attack must be by reason of his official function in the past. Motive becomes important in this respect. Example, if a judge was killed while resisting the taking of his watch, there is no direct assault. In the second form of direct assault, it is also important that the offended knew that the person he is attacking is a person in authority or an agent of a person in authority, performing his official functions. No knowledge, no lawlessness or contempt. For example, if two persons were quarreling and a policeman in civilian clothes comes and stops them, but one of the protagonists stabs the policeman, there would be no direct assault unless the offender knew that he is a policeman. In this respect it is enough that the offender should know that the offended party was exercising some form of authority. It is not necessary that the offender knows what is meant by person in authority or an agent of one because ignorantia legis non excusat.

Agent: is one who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property. (Example. Barrio councilman and any person who comes to the aid of the person in authority, policeman, municipal treasurer, postmaster, sheriff, agents of the BIR, Malacañang confidential agent) Even when the person in authority or the agent agrees to fight, still direct assault. When the person in authority or the agent provoked/attacked first, innocent party is entitled to defend himself and cannot be held liable for assault or resistance nor for physical injuries, because he acts in legitimate self-defense

The offended party in assault must not be the aggressor. If there is unlawful aggression employed by the public officer, any form of resistance which may be in the nature of force against him will be considered as an act of legitimate defense. (People vs. Hernandez, 59 Phil. 343) • There can be no assault upon or disobedience to one authority by another when they both contend that they were in the exercise of their respective duties.

the crime would be direct assault May direct assault be committed upon a private individual? Yes. the person coming to the aid of the person in authority being considered as an agent and an attack on the latter is already direct assault). or with serious physical injuries. when any person comes in aid of a person in authority. and he is likewise assaulted. Take note that under Article 152. That a person comes to the aid of such authority or his agent. Under Republic Act No. b. 57 Phil. • Indirect assault committed only direct assault committed can be when a is also . to obey summons issued by the House of Representatives or the Senate. It shall be absorbed by the greater crime of direct assault. That a person in authority or his agent is the victim of any of the forms of direct assault defined in ART. when the assault is committed with a weapon b. The victim cannot be the person in authority or his agent. as amended. 148. refusing to answer any legal inquiry to produce books. records etc. refusing to be sworn or placed under affirmation c.35 Elements and Notes in Criminal Law Book II by RENE CALLANTA • Circumstances qualifying the offense (Qualified Assault): a. 1978. (People vs. If such person were the one attacked. If the crime of direct assault is committed with the use of force and it resulted in the infliction of slight physical injuries. inducing disobedience to a summons or refusal to be sworn The act punished is refusal. independent of the judicial Article 149 INDIRECT ASSAULT • ELEMENTS: a. 614) • Direct assault cannot be committed during rebellion. d. If a Constitutional Commission is created. c. the latter shall not be considered as a separate offense. it shall enjoy the same privilege. Article 150 DISOBEDIENCE TO SUMMONS • Acts punishable: a. without legal excuse. The exercise by the legislature of its contempt power is a matter of selfpreservation. restraining another from attending as witness in such body e. when the offender lays hand upon a person in authority • Complex crime of direct assault with homicide or murder. Aiding a policeman under attack. When a private person comes to the aid of a person in authority. said person at that moment is no longer a civilian – he is constituted as an agent of the person in authority. That the offender makes use of force or intimidation upon such person coming to the aid of the authority or his agent. refusing without legal excuse to obey summons b. the person who should be aided is the agent (not the person in authority because it is already direct assault. when the offender is a public officer or employee c. The assault is upon a person who comes in aid of the agent of a person in authority. • To be indirect assault. Example. Acierto. The victim in indirect assault should be a private person who comes in aid of an agent of a person in authority. • a private person who comes to the aid of a person in authority is by fiction of law deemed or is considered an agent of a person in authority.

c.36 Elements and Notes in Criminal Law Book II by RENE CALLANTA branch. Municipal mayor in • . c. orders directly issued by the authorities in the exercise of their official duties. there must be an express grant of the same. even a case of simple resistance to an arrest. his the or the Use of force aga so serious. Resistant and D in Authority o PIA or his age performance of h Committed by disobeying a PIA Article 151 RESISTANCE/DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENT OF SUCH PERSON (par. That such disobedience is not of a serious nature. Ramayrat. no m law and the office b. as there is no manifest intention to defy the law and the officers enforcing it. and seriously resisting a PIA or his agent. otherwise. In both resistance against an agent of a person in authority and direct assault by resisting an agent of a person in authority. nor to judicial decisions defining or declaring the rights and obligations of the parties for the same give reliefs only in the form of civil actions. the disobedience or resistance is to the Article 152 PERSONS AUTHORITY/AGENTS PERSONS IN AUTHORITY: • IN OF Persons in Authority – any person directly vested with jurisdiction.” Direct Assault (148) PIA or his agent must be engaged in the performance of official duties or that he is assaulted Direct assault is committed in 4 ways – by attacking. The reason given is that local legislative bodies are but a creation of law and therefore. That an agent of a person in authority is engaged in the performance of official duty gives a lawful order to the offender. 1) • ELEMENTS: a. That a person in authority or agent is engaged in performance of official duty gives a lawful order to offender. SIMPLE DISOBEDIENCE (par. The contempt power of the legislature is inherent and sui generis. 149 and 150. the use of any kind or degree of force will give rise to direct assault. 2) • ELEMENTS: a. If no force is employed by the offender in resisting or disobeying a person in authority. Use of force against an agent of PIA must be serious and deliberate. but the use of force in resistance is not so serious. the crime committed is resistance or serious disobedience under the first paragraph of Article 151. US vs. That the offender disobeys such agent of a person in authority. That the act of the offender is not included in the provisions of arts. Barangay chairman c. board or commission. 22 Phil. Barangay captain b. But when the one resisted is a person in authority. there is force employed. 183 The Supreme Court held that: “the • violation does not refer to resistance or disobedience to the legal provisions of the law. 148. Examples of Persons Authority : a. That the offender resists or seriously disobeys such person in authority or his agent. Rather. for them to exercise the power of contempt. whether as an individual or as a member of some court or governmental corporation. The attack or employment of force which gives rise to the crime of direct assault must be serious and deliberate. which always requires the use of force of some kind. would constitute direct assault and the lesser offense of resistance or disobedience in Article 151 would entirely disappear. The power to punish is not extended to the local executive bodies. employing force. b.

sangguniang barangay members and members of the lupong tagapamayapa in each barangay shall be deemed as persons in authority in their jurisdictions. Making any outcry tending to incite rebellion or sedition in any meeting.37 Elements and Notes in Criminal Law Book II by RENE CALLANTA d. Teachers h. this article applies. Barrio policeman c. protection and the security of life. by operation of law. Examples of agents of PIA : a. gatherings or peaceful meetings. or the maintenance of a desirable and balanced environment. a private individual comes to his rescue. such private individual. Barangay leader d. Any assault committed against such person is direct assault. and any barangay member who comes to the aid of persons in authority shall be deemed AGENT of persons in authority. colleges and universities j. Any person who comes to the aid of persons in authority Section 388 of the Local Gov’t Code provides that “for purposes of the RPC. while other barangay officials and members who may be designated by law or ordinance and charged with the maintenance of public order. functions. But if the person assaulted OTHER PUBLIC • b. Burying with pomp the body of a person who has been legally executed. the crime committed is indirect assault. and not indirect assault. Justice of the peace f. office or establishment • Agent of Person in Authority – any person who. Causing any serious disturbance in a public place. CRIMES AGAINST PUBLIC DISORDERS Article 153 TUMULTS AND DISTURBANCES OF ORDER • TYPES: a. the punong barangay. Professors i. Lawyers in the actual performance of their professional duties or on the occasion of such performance is an agent of a person in authority. is charged with the maintenance of public order and the protection and security of life and property. mutates mutandis becomes an agent of a person in authority. and a private individual comes to his rescue and is himself assaulted while giving the assistance. Displaying placards or emblems which provoke a disturbance of public order in such place e. When the offended party is a person in authority and while being assaulted. Persons charged with the supervision of public or duly recognized private schools. by direct provision of law or by election or by appointment by competent authority. although rebellious or seditious in nature. Barrio councilman b. association or public place d. c. Provincial fiscal e. Art 131 and 132 punishes the same acts if committed by public officers who are NOT participants in the meeting The outcry is merely a public disorder if it is an unconscious outburst which. Interrupting or disturbing public performances. if the act is not included in Art 131 and 132 (Public Officers interrupting peaceful meetings or religious worship). Municipal councilor g. is not intentionally calculated to induce others to commit rebellion or • . as earlier discussed. or if committed by public officers who are not participants therein. property. • • • If the act of disturbing or interrupting a meeting or religious ceremony is NOT committed by public officers.

b. In the latter case. otherwise. tempers went high and so the speaker started inciting the audience to rise in sedition against the government. the crime cannot be committed. In the act of making outcry during speech tending to incite rebellion or sedition. by means of printing. • For a crime to be under this article. it might incite others to hatred. the crime would be inciting to sedition. What makes it inciting to rebellion or sedition is the act of inciting the audience to commit rebellion or sedition. the situation must be distinguished from inciting to sedition or rebellion. The disturbance of the pubic order is tumultuous and the penalty is increased if it is brought about by armed men. by the same . This crime is brought about by creating serious disturbances in public places. lithography or any other means of publication as news any false news which may endanger the public order. even before he delivered his speech. which tends to incite rebellion or sedition in the meeting. the meeting is unlawful from the beginning and the utterances made are deliberately articulated to incite others to rise publicly and rebel against the government. but in the course of his speech. if the offender had no such criminal intent. Without a public gathering in a private place. already had the criminal intent to incite the listeners to rise to sedition. Encouraging disobedience to the law or to the constituted authorities or by praising. public buildings. It becomes unlawful only because of the outcry made. In the former. interruption. Tumultuous – if caused by more than 3 persons who are armed or provided with means of violence (circumstance qualifying the disturbance/interruption) – “tumultuous in character” • • It is also disturbance of the public order if a convict legally put to death is buried with pomp. justifying or extolling any act punished by law. If committed in a private place. • The essence is creating public disorder. If the speaker. it must not fall under Articles 131 (prohibition. its inciting to rebellion or sedition. the crime is disturbance of the public order. The term “armed” does not refer to firearms but includes even big stones capable of causing grave injury. He should not be made out as a martyr.38 Elements and Notes in Criminal Law Book II by RENE CALLANTA sedition. and dissolution of peaceful meetings) and 132 (interruption of religious worship). the law is violated only where the disturbance is made while a public function or performance is going on. Publishing or causing to be published. Article 154 UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL UTTERANCES • TYPES: a. However. the meeting is legal and peaceful. The crime of disturbance of public order may be committed in a public or private place. or cause damage to the interest or credit of the State. • This article should be distinguished from inciting to rebellion or sedition as discussed under Article 138 and 142. and even in private places where public functions or performances are being held.

understand that it is not necessary that the offended party be wounded or hit. the crime is automatically attempted homicide. or before they have been published officially d. Court of Appeals. It can not be frustrated because the offended party is not mortally wounded. reproduction or republication of government publications and official documents without previous authority the act is not covered by Art 153 (tumult). (3) Article 155 ALARMS AND SCANDALS • TYPES: a. 248 prohibits the reprinting. • Charivari – mock serenade or discordant noises made with kettles. firecracker. If the annoyance is intended for a particular person. insult or annoy When a person discharges a firearm in public. Instigating or taking active part in any charivari or other disorderly meeting offensive to another or prejudicial to public tranquility c. not the intent CRIME Nature of Crime . pamphlets. Maliciously publishing or causing to be published any official resolution or document without proper authority. Republic Act No. provided In this connection. Illegal discharge of firearm under Article 254 if the firearm is directed or pointed to a particular person when discharged but intent to kill is absent. distrust and divide people in their loyalty to the duly constituted authorities. Printing. or other explosive within any town or public place. In Araneta v.39 Elements and Notes in Criminal Law Book II by RENE CALLANTA means or by words. Mere discharge of firearm towards another with intent to kill already amounts to attempted homicide or attempted murder or attempted parricide. calculated to cause alarm or danger b. tin horns etc. The purpose of the law is to punish the spreading of false information which tends to cause panic. confusion. Intent to kill is inherent in the use of the deadly weapon. utterances or speeches c. the crime is unjust vexation. publishing or distributing or (causing the same) books. murder. Attempted homicide. Disturbing the public peace while wandering about at night or while engaged in any other nocturnal amusement d. Discharging any firearm. designed to deride. the act may constitute any of the possible crimes under the Revised Penal Code: (1) Alarms and scandals if the firearm when discharged was not directed to any particular person. Understand the nature of the crime of alarms and scandals as one that disturbs public tranquility or public peace. Actual public disorder or actual damage to the credit of the State is not necessary. periodicals or leaflets which do not bear the real printer’s name or which are classified as anonymous. it was held that if a person is shot at and is wounded. (2) The article also punishes any person who knowingly publishes official acts or documents which are not officially promulgated. (4) Grave Threats – If the weapon is not discharged but merely pointed to another (5) Other Light Threats – If drawn in a quarrel but not in self defense • What governs is the result. or parricide if the firearm when discharged is directed against a person and intent to kill is present. Causing any disturbance or scandal in public places while intoxicated or otherwise. rocket.

the crime is infidelity in the custody of prisoners. If three persons are involved – a stranger. Offender is a private individual • Prisoner may be detention prisoner or one sentenced by virtue of a final judgment prisoners punished under Articles 223. Do not think that infidelity in the custody of prisoners can only be committed by a public officer and delivering persons from jail can only be committed by private person. c. the crime he committed is delivering prisoners from jail. a formal complaint or information has been filed in court. and Even if the prisoner is in the hospital or asylum or any place for detention of prisoner. or helps the escape of such person (if the escapee is serving final judgement.40 Elements and Notes in Criminal Law Book II by RENE CALLANTA Tumults and other Crime against Public Order correlate the crime of delivering person from Disturbances (153) Alarms and Scandals (155) Crime against Public Order jail with infidelity in the custody of Article 156 DELIVERING PRISONERS FROM JAILS • ELEMENTS : a. the custodian and the prisoner – three crimes are committed: (1) (2) Infidelity in the custody of prisoners. the offender may be a public officer or a private citizen. If the prisoner who escapes is only a detention prisoner. But if such prisoner knows of the plot to remove him from jail and cooperates therein by escaping. 224 and 225 of the Revised Penal Code. The only point of distinction between the two crimes lies on whether the offender is the custodian of the prisoner or not at the time the prisoner was made to escape. Delivery of the prisoner from jail. and he has been officially categorized as a prisoner. Mitigating circumstance – if it takes place outside the penal establishment by taking the guards by surprise • . Liability of the prisoner or detainee who escaped – When these crimes are committed. even though he is a public officer. intimidation or bribery. • If the offender is the custodian at that time. That the offender removes therefor such person. he himself becomes liable for delivering prisoners from jail as a principal by indispensable cooperation. b. whether infidelity in the custody of prisoners or delivering prisoners from jail. In both acts. But if the offender is not the custodian of the prisoner at that time. In both crimes. the person involved may be a convict or a mere detention prisoner. he is guilty of evasion of sentence). Both crimes may be committed by public officers as well as private persons. the one who removed him from jail is liable. he does not incur liability from escaping if he does not know of the plan to remove him from jail. • A policeman assigned to the city jail as guard who while off-duty released a prisoner is liable here Even if the prisoner returned to the jail after several hours. That there is a person confined in a jail or penal establishment. the prisoner so escaping may also have criminal liability and this is so if the prisoner is a convict serving sentence by final judgment. • It may be negligence committed through • Circumstances qualifying the offense – is committed by means of violence. this article applies. The crime of evasion of service of sentence is committed by the prisoner who escapes if such prisoner is a convict serving sentence by final judgment. as such place is considered extension of the penal institution. that is. as long as he is classified as a prisoner.

b. That the offender is a convict by final judgment. c. the penalty upon the convict is to be served by way of destierro also. (fact of return immaterial). the jail warden. being analogous to voluntary surrender. But the same will not absolve his criminal liability. Provided that Juan comes across with P5. It is possible that several crimes may be committed in one set of facts . it cannot be committed when the prisoner involved is merely a detention prisoner. 212. For instance. not imprisonment. But it applies to persons convicted by final judgment with a penalty of destierro. His voluntary return may only be mitigating.41 Elements and Notes in Criminal Law Book II by RENE CALLANTA (3) Evasion of service of sentence. Juan will be liable for the crime of delivering a prisoner from jail and for corruption of public official under Art. SERVICE OF ELEMENTS : a. Violating the condition of conditional pardon under Article 159. The arrangement was not known to Maria but when she noticed the unlocked gate of the city jail she took advantage of the situation and escaped. If the sentence violated is destierro. Thus. assuming that Pedro. A detention prisoner even if he escapes from confinement has no criminal liability. if she is a detention prisoner. EVASION OF SENTENCE OR SERVICE Evasion of service of sentence has three forms: (1) By simply leaving or escaping from the penal establishment under Article 157. Failure to return within 48 hours after having left the penal establishment because of a calamity. He will also be able for the crime of bribery. From the facts given. she will be liable for evasion of service of sentence under Article 157. Offenders – not minor delinquents nor detention prisoners If escaped within the 15 day appeal period – no evasion No applicable to deportation as the sentence (2) (3) Article 157 EVASION OF SENTENCE • The crime of evasion of service of sentence may be committed even if the sentence is destierro. agreed with Juan to allow Maria to escape by not locking the gate of the city jail. If Maria is a sentenced prisoner. escaping from his prison cell when his case is still on appeal does not make said prisoner liable for Evasion of Service of Sentence. This is so because the penalty for the evasion can not be more severe than the penalty evaded. conflagration or mutiny has been announced as already passed under Article 158. she commits no crime. • • • • A continuing offense. • By the very nature of the crime. conflagration or mutiny and such calamity. and this is committed if the convict sentenced to destierro will enter the prohibited places or come within the prohibited radius of 25 kilometers to such places as stated in the judgment. That he evades the service of his sentence by escaping during the term if his sentence. there is no question that Pedro.000. is liable for the crime of infidelity in the custody of the prisoner.00 pesos as bribe money. In leaving or escaping from jail or prison. unlawful entry (by “scaling”) . That he is serving his sentence which consists in deprivation of liberty (destierro included) • Circumstances qualifying the offense (done thru): a. It is enough that he left the penal establishment by escaping therefrom. that the prisoner immediately returned is immaterial. as the jail warden.

d. there is a need for the Chief Executive to make such announcement. 2. also 1/5. not participate d. That the offender fails to give himself up to the authorities within 48 hours following the issuance of a proclamation by the chief executive announcing the passing away of such calamity. Loo Hoe. on the occasion of such disorder or during the mutiny. roofs or floors c. Later on. using picklocks.42 Elements and Notes in Criminal Law Book II by RENE CALLANTA b. Even if the prisoner will return to the penal institution where he was confined. . Even if the events herein mentioned may be considered as calamity. or 5. That there is disorder. not on the original sentence. intimidation false keys. mutiny . resulting from1. walls. explosion. He must issue a proclamation to the effect that the calamity is over. he returned to the Philippines in violation of the sentence. or 4. the President must declared it to be so. EARTHQUAKES OR OTHER CALAMITIES • ELEMENTS : a. (U. and was ordered by the court to be deported. disguise. deceit. In no case shall that penalty exceed six months. not under the present article but for pure evasion of service of sentence under Article 157. conflagration or mutiny had been announced. the same is of no moment as in the meantime he has committed a violation of the law.S. a foreigner. That the offender is a convict by final judgement who is confined in a penal institution. windows. But if the prisoner fails to return within said 48 hours. Absent such declaration. conflagration. earthquake . violence or c. 867). similar catastrophe . That the offender evades the service of his sentence by leaving the penal institution where he is confined. breaking doors. an added penalty. was found guilty of violation of the law. vs. connivance with other convicts or employees of the penal institution A. shall be imposed but the 1/5 penalty is based on the remaining period of the sentence. The leaving from the penal establishment is not the basis of criminal liability. gates. or 3. It is the failure to return within 48 hours after the passing of the calamity. • For such event to be considered as a calamity. CONFLAGRATIONS. Only those who left and returned within the 48-hour period. • Offender must escape to be entitled to allowance Those who did not leave the penal establishment are not entitled to the 1/5 credit. Under Article 158. b. Article 158 EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS. 36 Phil. those who return within 48 hours are given credit or deduction from the remaining period of their sentence equivalent to 1/5 of the original term of the sentence. Held: He is not guilty of Evasion of Service of Sentence as the law is not applicable to offenses executed by deportation. d.

Exception: where the violation of the condition of the pardon will constitute evasion of service of sentence. simply leaving or escaping the penal establishment. even though committed beyond the remaining period of the sentence. Article 159 VIOLATION PARDON • OF CONDITIONAL ELEMENTS: a. This is when the conditional pardon expressly so provides or the language of the conditional pardon clearly shows the intention to make the condition perpetual even beyond the unserved portion of the sentence. no conviction necessary. the violation will amount to this crime only if the condition is violated during the remaining period of the sentence. It includes those punished under Special Law. The mutiny referred to in the second form of evasion of service of sentence does not include riot. (People vs. • The administrative liability of the convict under the conditional pardon is different and has nothing to do with his criminal liability for the evasion of service of sentence in the event that the condition of the pardon has been violated. the convict may be required to serve the unserved portion of the sentence even though the violation has taken place when the sentence has already lapsed. • Disarming the guards is not mutiny • Violation attributed to the accused is no longer referred to the court for judicial inquiry or resolution. Gonzales. It is a substantive crime. It is only extended to one who returns but made inside the 48 hours delimited by the proclamation. 357). et al. The mutiny referred to here involves subordinate personnel rising against the supervisor within the penal establishment. it may also be an administrative action by referring the violation to the court of origin and praying for the issuance of a warrant of arrest justified under Section 64 of the Revised Administrative Code.43 Elements and Notes in Criminal Law Book II by RENE CALLANTA • Mutiny – organized unlawful resistance to a superior officer. Corral. a sedition. the violation is not substantive but administrative in nature. offender was a Offender must have been found guilty of the subsequent offense before he can be prosecuted under this Article. President has power to arrest. In such case. c. That he violated any of the conditions of such pardon. Only after a final judgment has been rendered against him may he suffer the penalty prescribed under Article 159 (Torres vs. That the convict. But if under Revised Admin Code. the remedy against the accused may be in the form of prosecution under Article 159. This disquisition will not apply if the offender who escapes taking advantage of the calamities enumerated herein is apprehended by the authorities after 48 hours from the declaration that the calamity is over. reincarnate offender without trial b. If the condition of the pardon is violated. the prisoner must be formally charged in court. He will be entitled to a full blown hearing. For one to suffer the consequence of its violation. that is. • Condition extends to special laws – violation of illegal voting The condition imposed upon the prisoner not to be guilty of another crime is not limited to those punishable under the Revised Penal Code. The law has provided sufficient guidelines for the jail warden to follow.. At this stage. 74 Phil. as a rule. One who escapes during a riot will be subject to Article 157. That he was granted a conditional pardon by the chief executive. a revolt In violation of conditional pardon. Article 159 is a distinct felony. 152 SCRA 292) VIOLATION OF PARDON ORDINA Infringement of conditions/terms of To evade the pena President – disturbs the publ . in full enjoyment of his right to due process.

There will be no occasion for the court to consider imposing the minimum. or while serving the same. (People vs. Except: Unworthy or Habitual Delinquent If new felony is evasion of sentence – offender is not a quasi-recidivist Penalty: maximum period of the penalty for the new felony should be imposed TITLE FOUR CRIMES AGAINST PUBLIC INTEREST Crimes against public interest 1. 162). Using forged signature or counterfeiting seal or stamp (Art. et al. without connivance (Art. 95 SCRA 227) Quasi-recidivism is an aggravating circumstance which cannot be offset by any mitigating circumstance. Bautista. medium or maximum period of the penalty. prision correccional in its minimum period – if the penalty remitted does not exceed 6 years Quasi-recidivism is a special aggravating circumstance which directs the court to impose the maximum period of the penalty prescribed by law for the new felony. 165). Forging treasury or bank notes or other documents payable to bearer. b. That the offender was already convicted by final judgement of one offense. 164). 166). • • 6. The mandate is absolute and is justified by the finding that the accused is suffering from some degree of moral perversity if not total incorrigibility.44 Elements and Notes in Criminal Law Book II by RENE CALLANTA • Two penalties provided: a. Second crimes must belong to the RPC. 4. That he committed a new felony before beginning to serve such sentence or while serving the same. not special laws. 161). (People vs. Selling of false or mutilated coins. Minority) b. To be appreciated as a special aggravating circumstance. . it must be alleged in the information. Counterfeiting the great seal of the Government of the Philippines (Art. 65 SCRA 460) • Quasi-Recidivism may be offset by a special privileged mitigating circumstance (ex. importation and uttering of mutilated coins (Art. Alicia. • 2. • Quasi-recidivism : a person after having been convicted by final judgement shall commit a new felony before beginning to serve such sentence. First crime may be either from the RPC or special laws Reiteracion: offender shall have served out his sentence for the prior offense A quasi-recidivist may be pardoned at age 70. 163). • 5.. the unexpired portion of his original sentence – if the penalty remitted is higher than 6 years COMMISSION OF ANOTHER CRIME Article 160 COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSEPENALTY: (quasi-recidivism) • ELEMENTS a. The court will do away or will ignore mitigating and aggravating circumstances in considering the penalty to be imposed. Making and importing and uttering false coins (Art. Mutilation of coins. • 3. importing and uttering of such false or forged notes and documents (Art.

Offering false testimony evidence (Art. 22. False testimony against defendant (Art. Forging the great seal of the Government b. Illegal possession and use of forged treasury or bank notes and other instruments of credit (Art. 19. 16. 11. This is the act that is being punished under this title. Importation and disposition of falsely marked articles or merchandise made of gold. 21. The essence of the crime under this title is that which defraud the public in general. cable. 27. Using fictitious name and concealing true name (Art. 174).45 Elements and Notes in Criminal Law Book II by RENE CALLANTA 7. 13. 10. 171). or service mark. others signed it – not the President. 8. 188). . 26. False testimony in other cases and perjury (Art. 20. 189). Using 175). false certificates of merit or service (Art. Forging the signature of the President c. Monopolies and combinations in restraint of trade (Art. Unfair competition and fraudulent registration of trade mark or trade name. 28. Falsification by private individuals and use of falsified documents (Art. Substituting and altering trade marks and trade names or service marks (Art. 183). 18. it is not falsification but forging of signature under this article Signature must be forged. There is deceit perpetrated upon the public. or other precious metals or their alloys (Art. Falsification of legislative documents (Art. False testimony favorable to the defendant (Art. 23. 181). 186). 9. Forging the stamp of the President • When the signature of the President is forged. 25. Falsification by public officer. telegraph and telephone messages and use of said falsified messages (Art. a Article 161 COUNTERFEITING GREAT SEAL OF GOVERNMENT • TYPES: a. Illegal use of uniforms or insignia (Art. 167). 12. 178). 15. The crimes in this title are in the nature of fraud or falsity to the public. and false description (Art. importing and uttering instruments not payable to bearer (Art. 179). Falsification of wireless. 182). fraudulent designation of origin. 176). false certificates (Art. False testimony in civil cases (Art. 187). 17. 173). That the great seal of the republic was counterfeited or the signature or stamp of the Machinations in public auction (Art. False medical certificates. silver. Usurpation of authority or official functions (Art. Manufacturing and possession of instruments or implements for falsification (Art. 184). 172). 185). 180). Counterfeiting. in • Article 162 USING FORGED SIGNATURE OR COUNTERFEIT SEAL OR STAMP ELEMENTS: a. 170). 177). 24. 14. 168). employee or notary (Art.

This refers to the deliberate act of diminishing the proper metal contents of the coin either by scraping. Article 163 MAKING AND IMPORTING AND UTTERING FALSE COINS • ELEMENTS : a. imported or uttered such coins. That in case of uttering such false or counterfeited coins. c. the law wants to prevent people from trying their ingenuity in their imitation of the manufacture of money. there are two crimes that may be committed: (1) Counterfeiting coins -. Falsification – can only be committed in respect of documents. regardless if it is of no value (3) Kinds of coins the counterfeiting of which is punished 1. Coin of the currency of a foreign country. with the further requirements that there be intent to damage or to defraud another. or if it is not an article of the government as legal tender. 3. (2) Mutilation of coins -. • • . the law is not concerned with the fraud upon the public such that even though the coin is no longer legal tender. Silver coins of the Philippines or coins of the Central Bank of the Philippines. That the offender either made.This is the crime of remaking or manufacturing without any authority to do so. 2. b. Mutilating coins of the legal currency. • Offender is NOT the forger/not the cause of the counterfeiting • • Both Philippine and foreign state coins Applies also to coins withdrawn from circulation Essence of article: making of coins without authority • Acts punished 1. Forgery – refers to instruments of credit and obligations and securities issued by the Philippine government or any banking institution authorized by the Philippine government to issue the same. In so far as coins in circulation are concerned. c. That there be false or counterfeited coins (need not be legal tender). scratching or filling the edges of the coin and the offender gathers the metal dust that has been scraped from the coin. • Coin is counterfeit – if it is forged. Importing or uttering such mutilated coins. Coins of the minor coinage of the Philippines or of the Central Bank of the Philippines. deliver or give away Import – to bring to port the same In the crime of counterfeiting. b. In punishing the crime of counterfeiting. That he used the counterfeit seal or forged signature or stamp. 2. different design) such as to deceive an ordinary person in believing it to be genuine Utter – to pass counterfeited coins. • Counterfeiting – imitation of legal or genuine coin (may contain more silver. with the further requirement that there must be connivances with the mutilator or importer in case of uttering. That the offender knew of the counterfeiting or forgery. the act of imitating or manufacturing the coin of the government is penalized. he connives with counterfeiters or importers. The first acts of falsification or falsity are – (1) (2) Counterfeiting – refers to money or currency.46 Elements and Notes in Criminal Law Book II by RENE CALLANTA chief executive was forged by another person.

On this. It cannot be a crime under the Revised Penal Code to mutilate paper bills because the idea of mutilation under the code is collecting the precious metal dust. willful defacement b. If it is not legal tender anymore. under the Revised Penal Code. diminishing the intrinsic value of the coin. 247 because if no one ever picks up the coins. is there a violation of Presidential Decree No. If the offender does not collect such dust. mutilation is not limited to coins. 247. Was the old woman guilty of violating Presidential Decree No. and It has to be a coin. Mutilation. the old woman accepted in her hands the one-centavo coins and then threw it to the face of the vendee and the police.00 bill to light his cigarette. Deliberate intent arises only when the offender collects the precious metal dust from the mutilated coin. Must be intention to mutilate. There is no expertise involved here. the acts punishable are: a. mutilation c. Presidential Decree No. In mutilation of coins under the Revised Penal Code. Burning or Destroying Central Bank Notes and Coins) Under this PD. The offender must deliberately reduce the precious metal in the coin. 247? Mutilation of coins is a crime only if the coin mutilated is legal tender. to diminish by inferior means (to diminish metal contents). • • Foreign notes and coins included. her act would result in the diminution of the coin in circulation. thus. But if the coin is of legal tender. burning e. The people playing cara y cruz.47 Elements and Notes in Criminal Law Book II by RENE CALLANTA Requisites of mutilation under the Revised Penal Code (1) (2) Coin mutilated is of legal tender. this will amount to violation of Presidential Decree No. Then came the police who advised her that she has no right to refuse since the coins are of legal tender. pile or cut the coin and collect the dust and. However. is not committed because they do not collect the precious metal content that is being scraped from the coin. but Presidential Decree No. 2. inferior quality. destruction of Central Bank notes and coins • Mutilation – to take off part of the metal either by filling it or substituting it for another metal of . 247? Yes. Tearing. 247. 247 is violated by such act. before they throw the coin in the air would rub the money to the sidewalk thereby diminishing the intrinsic value of the coin. tearing d. However. not (3) • Mutilation under the Revised Penal Code is true only to coins. 247? She was guilty of violating Presidential Decree No. Article 164 • MULTILATION OF COINS – IMPORTATION AND UTTERANCE: This has been repealed by PD 247. 247 will apply. and the offender minimizes or decreases the precious metal dust content of the coin. 4. Is the crime of mutilation committed? Mutilation. 5. the crime of mutilation is committed. under Presidential Decree No. (Defacement. Offender gains from the precious metal dust abstracted from the coin. When the image of Jose Rizal on a five-peso bill is transformed into that of Randy Santiago. An old woman who was a cigarette vendor in Quiapo refused to accept one-centavo coins for payment of the vendee of cigarettes he purchased. A certain customer in a restaurant wanted to show off and used a P 20. the offender does nothing but to scrape. Questions & Answers 1. intent to mutilate is absent. so nobody will be defrauded. Must be legal tender. no one will accept it. Was he guilty of violating Presidential Decree No.

counterfeited or mutilated by another person. But by rubbing the coins on the sidewalk. Forging – by giving a treasury or bank note or document payable to bearer/order an appearance of a true and genuine document Falsification – by erasing. counterfeiting or altering by any means the figures and letters. The primary purpose of Presidential Decree No. knowing the same to be false or mutilated. Note that persons making bracelets out of some coins violate Presidential Decree No. Actually uttering such false or mutilated coin. with intent to utter. certificate of deposits. ELEMENTS: 1. knowledge b. with intent to utter the same. signs contained therein E. Possession of coin. Kong Leon). knowledge. knowing that it is false or mutilated. • • Possession does not require legal tender in foreign coins Includes constructive possession On counterfeiting coins. Uttering of such false or forged obligations and notes in connivance with forgers and importers Article 165 SELLING OF FALSE OR MUTILATED COIN.g.48 Elements and Notes in Criminal Law Book II by RENE CALLANTA He was guilty of arrested for violating of Presidential Decree No. 247. actually and uttering. it is immaterial whether the coin is legal tender or not because the intention of the law is to put an end to the practice of imitating money and to discourage anyone who might entertain the idea of imitating money (People vs. WITHOUT CONNIVANCE • • 2 Types a. coupons. Forging or falsity of treasury/bank notes or documents payable to bearer b. that is not mutilation under the Revised Penal Code because the offender does not collect the metal dust. bills. 247 at the time it was ordained was to stop the practice of people writing at the back or on the edges of the paper bills. he also defaces and destroys the coin and that is punishable under Presidential Decree No. possession 2. 247. The intention of Presidential Decree No. substituting. certificate of indebtedness. Anyone who is in possession of defaced money is the one who is the violator of Presidential Decree No. So. Attempted estafa through falsification of an obligation or security of the Phil PNB checks not included here – it’s falsification of commercial document under Article 172 Obligation or security includes: bonds. 247. 247. and 3. such as "wanted: pen pal". national bank notes. Article 166 FORGING TREASURY OR BANK NOTES – IMPORTING AND UTTERING • Acts punishable: a. 2. 247 is not to punish the act of defrauding the public but what is being punished is the act of destruction of money issued by the Central Bank of the Philippines. treasury notes. drafts for money. sweepstakes money • • • • . words. checks. ELEMENTS: 1. Importing of such notes c. falsifying – lotto or sweepstakes ticket. if the act of mutilating coins does not involve gathering dust like playing cara y cruz.

the crime committed is forgery. IMPORTING. whether coins or bills. That he performs any of these acts – 1. somebody replaced it with a dollar sign ($). The forged instrument and currency note must be given the appearance of a true and genuine document. That the offender knows that any of those instruments is forged or falsified. Generally. then the crime is punished under Article 166. Was the crime of forgery committed? No. Notice that mere change on a document does not amount to this crime. 247. Instead of the peso sign (P). it would only be frustrated forgery. That in case of uttering. • Act sought to be punished: Knowingly possessing with intent to use any of such forged treasury or bank notes Article 169 FORGERY • How forgery is committed: a. or any instrument payable to order or other document of credit not payable to bearer is forged or falsified by another person. figure or design would amount to forgery. • if all acts done but genuine appearance is not given. or 2. the appearance of a true and genuine document b. At most. Forgery under the Revised Penal Code applies to papers. if it is not a government security. counterfeiting. That there be an instrument payable to order or other document of credit not payable to bearer. then the offender may either have violated Article 171 or 172. he connived with the forger or importer. the word “counterfeiting” is not used when it comes to notes. . c. substituting. c. The essence of forgery is giving a document the appearance of a true and genuine document. which is given the same status as legal tender. Not any alteration of a letter. the crime is frustrated Article 167 COUNTERFEITING. which are in the form of obligations and securities issued by the Philippine government as its own obligations. Article 168 ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER INSTRUMENT OF CREDIT • ELEMENTS: a. The crime committed is a violation of Presidential Decree No. Questions & Answers 1.49 Elements and Notes in Criminal Law Book II by RENE CALLANTA If the falsification is done on a document that is classified as a government security. possessing with intent to use any of such forged or falsified instrument. which under the Revised Penal Code is given a status of money or legal tender. what is used is “forgery. altering by any means the figures. b. That any treasury or bank note or certificate or other obligation and security payable to bearer. letters or words. by giving to a treasury or bank note or any instrument payable to bearer or to order. number. imported or uttered such instruments. by erasing. AND UTTERING INSTRUMENTS NOT PAYABLE TO BEARER • ELEMENTS : a. Forgery was not committed.” Counterfeiting refers to money. That the offender either forged. or signs contained therein. using any of such forged or falsified instrument. On the other hand. b. When what is being counterfeited is obligation or securities.

it is at most frustrated. But the alteration is so crude that even a child can notice that the supposed digit is merely superimposed on the digit that was scraped. employee or notary public. in his desire to earn something. The writing must be complete in itself and capable of extinguishing an obligation or creating rights or capable of becoming evidence of the facts stated therein. Was the crime of forgery committed? The Supreme Court ruled that it was only frustrated forgery because although the offender has performed all the acts of execution. or wireless. 2. Article 170 FALSIFICATION OF LEGISLATIVE DOCUMENTS • ELEMENTS : a. the Supreme Court of Spain ruled that the crime is frustrated. the crime of falsification cannot be committed in respect thereto. public or official. He cut it out. cut out a digit from another ticket and pasted it there to match the series of digits corresponding to the winning sweepstakes ticket. that the decision has been criticized. After sometime. After sometime. In a case like this. Distinction between falsification and forgery: Falsification is the commission of any of the eight acts mentioned in Article 171 on legislative (only the act of making alteration). or commercial documents by a private individual.50 Elements and Notes in Criminal Law Book II by RENE CALLANTA Where the currency note. He took the reverse side of the P20 bill. the crime is forgery. Note. Until and unless the writing has attained this quality. the crime is frustrated because he has done all the acts of execution which would bring about the felonious consequence but nevertheless did not result in a consummation for reasons independent of his will. 3. obligation or security has been changed to make it appear as one which it purports to be as genuine. Where the alteration is such that nobody would be deceived. He was apprehended and was prosecuted and convicted of forgery. An old man. or telegraph messages. applied toothache drops and reversed the mimeo paper and pressed it to the paper. Note that forging and falsification are crimes under Forgeries. Otherwise. the printing was inverted. it could be seen that it is not genuine. Five classes of falsification: (1) (2) Falsification documents. He has a mimeograph paper similar in texture to that of the currency note and placed it on top of the twenty-peso bill and put some weight on top of the paper. therefore. he removed it and the printing on the twenty-peso bill was reproduced on the mimeo paper. of legislative Falsification of a document by a public officer. Falsification of wireless. That these be a bill. it is not possible because by simply looking at the forged document. commercial. A person has a twenty-peso bill. In checks or commercial documents. one could easily see that it is a forgery. He presented this ticket to the Philippine Charity Sweepstakes Office. scraped a digit in a losing sweepstakes ticket. Falsification of a private document by any person. What he overlooked was that. The term forgery as used in Article 169 refers to the falsification and counterfeiting of treasury or bank notes or any instruments payable to bearer or to order. It can only be a consummated forgery if the document which purports to be genuine is given the appearance of a true and genuine document. Was the old man guilty of forgery? NO Because of the impossibility of deceiving whoever would be the person to whom that ticket is presented. telegraph and telephone messages. however. He applied toothache drops on one side of the bill. when he placed the bill. resolution or ordinance enacted or approved or pending approval by the . it will not be considered as document in the legal sense and. (3) (4) (5) The crime of falsification must involve a writing that is a document in the legal sense. or private documents. the Supreme Court ruled that what was committed was an impossible crime. scraped it a little and went to a sari-sari store trying to buy a cigarette with that bill. Falsification of a public or official. this crime is committed when the figures or words are changed which materially alters the document. he removed it and it was reproduced.

If committed on a simulated. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate. Requisites: i. no proper d. b. bear some resemblance. 2) 2. That the offender is a public officer. That the offender caused it to appear in a document that a person/s participated in an act or a proceeding. (required by law to be done) and iii. That the offender (any person) alters the same. Article 171 FALSIFICATION OF DOCUMENTS BY PUBLIC OFFICER. That the offender makes in a document statements in a narration of facts ii. The words "municipal council" should include the city council or municipal board – Reyes. spurious or fabricated legislative document. or any municipal handwritings. and ii. • Accused must not be a public official entrusted with the custody or possession of such document otherwise Art 171 applies . or notary public. That there be an intent to imitate. Requisites: i. Making untruthful statements in a narration of facts. true and authentic legislative document. 1 but such is not an impediment to conviction under par. the crime is not punished under this article but under Article 171 or 172. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them. OR NOTARY OR ECCLESTASTICAL MINISTER • ELEMENTS: a. EMPLOYEE. c. That he falsifies a document by committing any of the following acts: 1. the genuine and the forged. The falsification must be committed on a genuine. That the signatures two or 4. signature or rubric. That he has a legal obligation to disclose the truth of the facts narrated by him. That the narrated by facts the . or an attempt to imitate ii. That he has authority therefor. That such person/s did not in fact so participate in the act or proceeding b. Counterfeiting or imitating any handwriting. Requisites: i. employee. 3.51 Elements and Notes in Criminal Law Book II by RENE CALLANTA national assembly provincial board or council. That he takes advantage of his official position. That the alteration has changed the meaning of the document. to each other  (lack of similitude/imitation of a genuine signature will not be a ground for conviction under par. c.

iv.52 Elements and Notes in Criminal Law Book II by RENE CALLANTA offender are absolutely false. The falsification can be done in two ways. the date of the document must be material to the right created or to the obligation that is extinguished. 8. – date must be essential For falsification to take place under this paragraph. 7. Altering true dates. the act of falsification is committed with respect to any record or document of such character that its falsification may affect the civil status of persons. Must be on a material matter For one to be held criminally liable for falsification under paragraph 4. Making any alteration or intercalation in a genuine document which changes its meaning. It can be a certification purporting to show that the document issued is a copy of the original on record when no such original exists. In case the offender is an ecclesiastical minister.  Legal obligation means that there is a law requiring the disclosure of the truth of the facts narrated. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists. Requisites: i. Intercalating any instrument or note relative to the issuance thereof in a protocol. entries which are not found on contrary to. It can also be in the form of a certification to the effect that the document on file contains statements or including in the copy issued. . (genuine document) d. That it was made on a genuine document That the alteration/intercalation has changed the meaning of the document That the change made the document speak something false. This kind of falsification may be committed by omission 5. registry. (if no knowledge. or different from the original genuine document on file. iii. Ex. the untruthful statement must be such as to effect the integrity of the document or to change the effects which it would otherwise produce. Residence certificates  The person making the narration of facts must be aware of the falsity of the facts narrated by him. That the perversion or truth in the narration of facts was made with the wrongful intent of injuring a third person  There must be a narration of facts. and iv. or official book. falsification through negligence) or The acts of falsification mentioned in this paragraph are committed by a public officer or by a notary public who takes advantage of his official position as custodian of the document. It can also refer to a public officer or notary who prepared and retained a copy of the document. 6. or different from. that of the genuine original. That there be an alteration (change) or intercalation (insertion) on a document ii. or including in such copy a statement contrary to. not a conclusion of law.

he will still be liable for falsification but definitely not under this Article but under Article 172. (falsification of documents by a private person) (4) Document: Any written instrument which establishes a right or by which an obligation is extinguished. whether the document is genuine or not. A deed or agreement executed by a person setting forth any disposition or condition wherein rights and obligations may arise. notwithstanding the fact that said co-accused is a private individual. Public document is broader than the term official document. the case against him will fall under the jurisdiction of the Sandiganbayan. if her causes the falsification of a document which is not in his official custody or if the falsification committed by him is not related whatsoever to the performance of his duties. Official document in the execution of which a public official takes part. Example: A cashier is required to issue an official receipt for the amount he receives. or rubric out of one of which does not in fact exist Alteration or changes to make the document speak the truth do not constitute falsification. If the public officer is found guilty. There are four kinds of documents: (1) Public document in the execution of which. the Sandiganbayan shall maintain jurisdiction over the person of the coaccused. Mateo. commits a crime in relation to the performance of his official functions. there must be a law which requires a public officer to issue or to render such document. employee or notary public or ecclesiastical minister Either he has duty to intervene in the preparation of the document or it may be a situation wherein the public officer has official custody of the document. Liability of a private individual in falsification by a public officer when there is conspiracy. and Private document in the execution of which only private individuals take part.53 Elements and Notes in Criminal Law Book II by RENE CALLANTA • There is no crime of attempted or frustrated falsification of public document • Feigning – simulating a signature. handwriting. To become an official document. The official receipt is a public document which is an official document. it is considered a document. the crime of falsification may be committed. (US vs. the same liability and penalty shall be . Even if the writing was through and through false. Even totally false documents may be falsified. Commercial document or any document recognized by the Code of Commerce or any commercial law. when a public officer who holds a position classified as Grade 27 or higher. Before a document may be considered official. 324) It does not require that the writing be genuine. • Counterfeiting – imitating handwriting. • Persons liable – public officer. But not all public documents are official documents. it must first be a public document. signature or rubric any Under Republic Act 7975. a person in authority or notary public has taken part. enough that it gives an appearance of a genuine article As long as any of the acts of falsification is committed. (2) (3) • So even if the offender is a public officer. if it appears to be genuine. If a private person is included in the accusation because of the existence of conspiracy in the commission of the crime. the crime of falsification is nevertheless committed. • Not necessary that what is falsified is a genuine or real document. Writing may be on anything as long as it is a product of the handwriting. 25 Phil.

official or commercial document. it is not necessary that there be present the idea of gain or the intent to injure a • . journals. That the offender is a private individual or a public officer or employee who did not take advantage of his official position. ledgers. Sandiganbayan) Article 172 FALSIFICATION OF PUBLIC. b. what we have is a complex crime defined and punished under Article 48 of the Revised Penal Code. What is punished under the law is the violation of public faith and the perversion of the truth as solemnly proclaimed by the nature of the document. 3. That the falsification was committed in any public or official or commercial document. kept in the • Examples of commercial documents – warehouse receipts. Public records Philippines. • Cash disbursement vouchers or receipts evidencing payments are not commercial documents A mere blank form of an official document is not in itself a document • Under this paragraph. cash files. • • Defense: lack of malice or criminal intent The following writings are public: a. it is presumed If the falsification of public. Making untruthful statements in a narration of facts. vs. The two offenses can co-exist as they have distinct elements peculiar to their nature as a crime. b. 171. official or commercial documents. judicial and executive. 5. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them. That he committed any of the acts of falsification enumerated in ART. damage or intent to cause damage is not an element. OR COMMERCIAL DOCUMENT BY A PRIVATE INDIVIDUAL (par 1) • ELEMENTS a. damage is not essential. 2. c. 4. When the falsification is committed because it is necessary to commit estafa. and of the public officers. 1. It is sufficient that the offender committed or performed the acts of falsification as defined and punished under Article 171. letters of credit and other negotiable instruments There is a complex crime of estafa through falsification of public. legislative. 6. (U. Counterfeiting or imitating any handwriting. bank checks. deposit slips and bank statements. whether of the Philippines or of a foreign country.S. books. OFFICIAL. (Sarep vs. 20 Phil. signature or rubric. Altering true dates. drafts. whether they be public official or by private individuals. 379) third person. airway bills.54 Elements and Notes in Criminal Law Book II by RENE CALLANTA imposed on the private individual. Ponce. Making any alteration or intercalation in a genuine document which changes its meaning. the written acts or records of acts of the sovereign authority of official bodies and tribunals. In the crime of estafa. There is a complex crime of falsification of pubic documents through reckless imprudence. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participated.

That the offender committed any of the acts of falsification. The third person mentioned herein may include the government. damage or intent to cause damage is an indispensable element of the crime. 2) He must have performed an independent act which operates to cause damage or prejudice to a third person. Criteria to determine whether the crime is estafa only or falsification only : IF the falsification of the private document was essential in the commission of estafa because the There is no falsification through reckless imprudence if the document is a private document.55 Elements and Notes in Criminal Law Book II by RENE CALLANTA • The possessor of falsified document is presumed to be the author of the falsification • Falsification by omission FALSIFICATION UNDER PARAGRAPH 2 OF ART. That the falsification caused damage (essential element. b. Remember that in estafa. Paras. That the falsification was committed in any private document (must affect the truth or integrity of the document) Mere falsification of a private document is not enough to commit crime under paragraph 2 of Article 172. reputation or good name is included. • Falsification is offense not a continuing If a private document is falsified to cause damage to the offended party. Damage is not limited to money or pecuniary prejudice. There is no complex crime of estafa with falsification because deceit is a common element of both. It is either estafa or falsification. except those in paragraph 7 and 8. The same element is necessary to commit the crime of falsification of private document. hence. The intention is therefore must be malicious or there is deliberate intent to commit a wrong. Two acts must be done by the offender. Damage to one’s honor. 172. (Lopez vs. Since they have a common element. One and the same deceit or damage cannot give rise to more than one crime. 1) He must have performed in the private document the falsification contemplated under Article 171. There must be intent to cause damage or damage is actually caused. 36 Phil. 146) What is emphasized at this point is the element of falsification of private document. no crime of estafa thru falsification of private document) to a third party or at least the falsification was committed with intent to cause such damage. OF PRIVATE DOCUMENT • ELEMENTS : a. enumerated in art. . • Not necessary that the offender profited or hoped to profit from the falsification • Falsification of a private document is consummated when such document is actually falsified with the intent to prejudice a third person whether such falsified document is or is not thereafter put to illegal use for which it is intended. such element cannot be divided into the two parts and considered as two separate offenses. official or commercial There is no complex crime of estafa through falsification of a private document because the immediate effect of the latter is the same as that of estafa c. Reckless imprudence is incompatible with malicious intent. • A document falsified as a necessary means to commit another crime must be public. 171. the crime committed is falsification of a private document.

That he used such documents (not in judicial proceedings). 1. IF the estafa can be committed even without resorting to falsification. Introducing proceeding: in a judicial Rules to observe in the use of a falsified document. 172. Knowingly introducing a falsified document in a judicial proceeding. the crime is falsification. 171 or in any subdivisions nos. 172) • ELEMENTS: a. USE OF FALSIFIED DOCUMENT (par. (intent to cause damage not necessary) b. the main crime is estafa. One who will take the civil service examination for another and makes it appear that he is the examinee is guilty of falsification of a public document. estafa can be committed.56 Elements and Notes in Criminal Law Book II by RENE CALLANTA falsification. estafa becomes the consequence of the crime. estafa cannot be committed. That the false document is embraced in art. falsification is merely incidental. the falsification is not punishable. • If the estafa was already consummated at the time of the falsification of a private document was committed for the purpose of concealing the estafa. The user of the falsified document is deemed the author of falsification. the use is so closely connected in time with the falsification b. 2. because as regards the falsification of the private document there was no damage or intent to cause damage. Falsification of Private Documents Falsification of P Prejudice to third party is an element Prejudice to third p of the offense. punished is the v perversion of tru proclaims. 3. That the offender knew that a document was falsified by another person. It is a crime when knowingly introduced in a judicial proceeding even if there is not intent to cause damage to another. 3. if: a. A private document which is falsified to obtain money from offended party is a falsification of private document only. That he introduced said document in evidence in any judicial proceeding. That the offender knew that a document was falsified by another person. art. since even without falsification. 1 and 2 of art. • A private document may acquire the character of a public document when it becomes part of an official record and is certified by a public officer duly authorized by law The crime is falsification of public documents even if falsification took place before the private document becomes part of the public records • 3. 4. 1. 2. the user had the capacity of falsifying the document • Examples: An employee of a private company who punches the bundy clock on behalf on a co-employee is guilty of falsification of a private document. the latter being resorted only to facilitate estafa. 171 or in any of subdivisions nos. That the use of the documents caused damage to another or at least was used with intent to cause such damage. 1 and 2 of art. 172. the use alone is not a crime. That the false document is embraced in art. Use in any other transaction: 1. The mere introduction .

uttering fictitious wireless. AND USE OF SAID FALSIFIED MESSAGES • Acts punishable: 1. Falsification of document is a separate and distinct offense from that of the use of falsified documents. cable and telegraph or telephone message Article 173 FALSIFICATION OF WIRELESS. or . in a. issued a false certificate (note: such . the use alone is not a crime. 173. That the accused commits any of the following acts: . b. cable. c. But when the falsified document is knowingly introduced in an administrative proceeding. Falsifying wireless. That the use of the falsified dispatch resulted in the prejudice of a third party. CERTIFCATES OF MERIT OR SERVICE AND THE LIKE: • Persons liable: a. telegraph. Using such falsified message Requisites: a. 3. telegraph or telephone message Requisites: a.falsifying wireless. in connection with the practice of his profession. AND TELEPHONE MESSAGES. cable. Physician or surgeon who. cable or telephone message. cable or telephone message. CABLE. cable. telegraph. b. cable. So if the falsification of document was done or performed because it was necessary to the use of the same and in the commission of the crime. That the offender is an officer or employee of the government or an officer or employee of a private corporation. or that the use thereof was with intent to cause such prejudice. wireless.57 Elements and Notes in Criminal Law Book II by RENE CALLANTA of the forged document is the crime itself. TELEGRAPH. engaged in the service of sending or receiving wireless. engaged in the service of sending or receiving wireless. Good faith is a defense falsification of public document.falsifying wireless. That the accused knew that wireless. to be liable must be engaged in the service of sending or receiving wireless. telegraph or telephone message Requisites: Article 174 FALSIFICATION OF MEDICAL CERTIFICATES. That the offender is an officer or employee of the government or an officer or employee of a private corporation. telegraph. or telephone message 3. cable. or . There must be intent to cause damage or damage is actually inflicted. b. or telephone message.uttering fictitious wireless. Uttering fictitious. or telephone message 2. • The public officer. or telephone message. That the accused used such falsified dispatch. telegraph. 2. telegraph. That the accused commits any of the following acts: . or telephone message was falsified by any of the person specified in the first paragraph of art. then we may have a complex crime defined and punished under Article 48 of the Revised Penal Code.

good conduct or similar circumstances c. b. agent or representative of any department or agency of the Philippine government or of any foreign government. and without being lawfully entitled to do so. • In usurpation of official functions: It is essential that the offender should have performed an act pertaining to a person in authority Elements 1. Article 175 USING FALSE CERTIFICATES • ELEMENTS: a. or similar circumstances. 2. . That the offender knew that the certificate was false. Possessing with intent to use the instruments or implements for counterfeiting or falsification made in or introduced into the Philippines by another person • • The implement confiscated need not form a complete set Constructive punished possession is also Elements 1.58 Elements and Notes in Criminal Law Book II by RENE CALLANTA certificate must refer to the illness or injury of a person) b. That a physician or surgeon has issued a false medical certificate. or a public officer has issued a false certificate of merit or service. 2. By knowingly and falsely representing oneself to be an officer. 3. b. Not necessary that he performs an act pertaining to a public officer. That he used the same. • In usurpation of authority: The mere act of knowingly and falsely representing oneself is sufficient. agent or representative of any department or agency of the Philippine gov’t or any foreign gov’t. c. Offender performs any act. good conduct. Article 176 MANUFACTURING AND POSSESSION OF INTRUMENTS OR IMPLEMENTS FOR FALSIFICATION: • Acts punishable: a. By performing an act pertaining to any person in authority or public officer of the Phil gov’t or foreign gov’t under the pretense of such official position. Public officer who issued a false certificate of merit of service. Pertaining to any person in authority or public officer of the Philippine government or any foreign government. or any agency thereof. Under pretense of official position. Making or introducing into the Philippines any stamps. dies or marks or other instruments or implements for counterfeiting or falsification b. or a private person had falsified any of said certificates. As an officer. Private individual who falsified a certificate under (1) and (2) OTHER FALSITIES Article 177 USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS: • 2 ways of committing the crime: a. Offender knowingly and falsely represents himself.

or 3. That the purpose of the offender is – 1. just enough to conceal the name of the offender. Any other name which a person publicly applies to himself without authority of law is a fictitious name. to evade the Purpose is execution of a judgement. cinema. all circumstances. Exception: Pseudonym solely for literary. In the use of fictitious name. upon being interrogated. television. to the gov’t b. the offender presents himself before the public with another name. lawfully Signing fictitious name for a passport) The name of a person is what appears in his birth certificate. That the offender uses a name other than his real name. The law cannot refer to other foreign governments as its application may bring us to legal problems which may infringe on constitutional boundaries. What the offender does to violate or commit this act is for him to conceal his true name and other personal circumstances. The elements of false pretense is necessary to commit the crime of usurpation of official function. To evade the execution of a judgment. • ELEMENTS (concealing true name): a. radio. 2. That he uses that fictitious name publicly. The name of a person refers to his first name. In concealment of true name. to any person in authority c. or to cause damage Commonwealth Act No. b. 142 (Regulating the Use of Aliases) No person shall use any name different from the one with which he was registered at birth in the office of the local civil registry. surname. is guilty of this crime. Use of Fictitious Name (178) Conce Element of publicity must be present Publicity n Purpose is to conceal a crime. To conceal a crime. If the offender commits the acts of usurpation as contemplated herein. and he does it because he is a rebel and pursuant to the crime of rebellion or insurrection or sedition.59 Elements and Notes in Criminal Law Book II by RENE CALLANTA 4. to any public office Foreign government adverted to in this article refers to public officers duly authorized to perform governmental duties in the Philippines. his true name. His only motive in doing so is to conceal his identity. (ex. or with which he was registered in the bureau of immigration upon entry. c. A person under investigation by the police who gives a false name and false personal circumstances. or such substitute name as may have been authorized by a competent court. b. • • Without being entitled to do so. and other personal A public officer may also be an offender The act performed without being lawfully entitled to do so must pertain: a. the deception is done momentarily. he will not be liable under this article because what is attributed against him as a crime of usurpation is in fact one of the elements of committing rebellion. that the offender conceals – 1. 2. Article 178 USING FICTITIOUS NAME AND CONCEALING TRUE NAME • ELEMENTS (using fictitious name) : a. To cause damage to public interest. or other entertainment and in athletic events where . and maternal name. that the purpose is only to conceal his identity.

Nature of the crime of false testimony. or to alter essentially the truth. uniform or dress pertains to an office not held by the offender or to a class of persons of which he is not a member. False testimony in criminal cases under Article 180 and 181. That the offender makes use of insignia. False testimony in other cases under Article 183. 2. respect. If the false testimony is due to honest mistake or error or there was good faith in making the false testimony. c. That the offender who gives false testimony knows that it is false. • That the defendant against whom the false testimony is given is either acquitted or convicted in a final judgment (prescriptive period starts at this point) Requires criminal intent. b. can’t be committed through negligence. the crime is not committed. a colorable resemblance calculated to deceive the common run of people is sufficient. Need not impute guilt upon the accused The defendant must at least be sentenced to a correctional penalty or a fine or must have been acquitted The witness who gave false testimony is liable even if the court did not consider his testimony d. no crime is committed. It cannot be committed through reckless imprudence because false testimony requires criminal intent or intent to violate the law is an essential element of the crime. but . That said insignia. So also. the crime of false testimony is still committed. uniform or dress. since it is punished not because of the effect it produces. But whether the testimony is credible or not or whether it is appreciated or not in the context that the false witness wanted it to be. uniform or dress is used publicly and improperly. dignity. The wearing of insignia. or to deny the same. False testimony. or insignia of a non-existing office or establishment is not a crime. Article 179 ILLEGAL USE OF UNIFORM OR INSIGNIA • ELEMENTS: a. 1. It is necessary that the uniform or insignia represents an office which carries authority. The wearing of a uniform. an exact imitation of a uniform or dress is unnecessary. Article 180 FALSE TESTIMONY AGAINST A DEFENDANT • ELEMENTS: a. 2. b. It may not be considered at all by the judge. That the insignia. badge or emblem of rank of the members of the armed forced of the Philippines or constabulary (now PNP) is punished by Republic Act No.60 Elements and Notes in Criminal Law Book II by RENE CALLANTA the use of pseudonym is a normally accepted practice. or influence which the public looks up to. That there proceeding. c. 493. • • Three forms of false testimony 1. defined It is the declaration under oath of a witness in a judicial proceeding which is contrary to what is true. When the uniform or insignia is used to emphasize the pageantry of a play or drama or in moving picture films. be a criminal That the offender testifies falsely under oath against the defendant therein. The probative value of the testimonial evidence is subject to the rules of evidence. False testimony in civil case under Article 182. 3.

That the false testimony must be given by the defendant knowing the same to be false. Basis of penalty: gravity of the felony charged against the defendant • Distinctions between perjury and false testimony: PERJURY FALSE TESTIMONY 1. That the testimony must relate to the issues presented in said case. In a criminal case. (People vs. If he merely denies the commission of the offense. That in that statement or affidavit. immaterial 4. material. c. Given in a proceedings. • IN CIVIL ELEMENTS: That the testimony must be given in a civil case. That the statement or affidavit was made before a competent officer. Amount involved involved is not in civil cases is material. Article 181 FALSE TESTIMONY IN FAVOR OF DEFENDANT in a criminal case: Elements: 1. c. 2. Amount 3. law. The false testimony need not influence the acquittal A defendant who voluntarily goes up on the witness stand and falsely imputes the offense to another person the commission of the offense is liable under this article. Testimony need testimony is not be required by required by law. he is not liable. and Article 182 FALSE TESTIMONY CASES a. false. False testimony statement is in defendant by negative favor of the • Not applicable when testimony given in a special proceeding (in this case. Non-judicial 1. testimony is favorable or not to the accused. the accused made a willful and deliberate assertion of a falsehood. Reyes) • Penalty is dependent upon sentence imposed on the defendant d. • A person gives false testimony. In favor of the defendant. judicial proceeding.61 Elements and Notes in Criminal Law Book II by RENE CALLANTA because of its tendency to favor the accused. • Article183 FALSE TESTIMONY IN OTHER CASES AND PERJURY IN SOLEMN AFFIRMATION ELEMENTS: a. 4. 3. That the testimony must be malicious and given with an intent to affect the issues presented in the said case e. b. authorized to receive and administer oath. the crime is perjury) Basis of penalty: amount involved in the civil case • • • • False testimony need not in fact benefit the defendant A statement of a mere opinion is not punishable Conviction or acquittal is not necessary (final judgement is not necessary). 3. That an accused made a statement under oath or made an affidavit upon a material matter. That the testimony must be . It is always whether material in criminal statement or cases. Statement or 2. b. 2.

by making a false statement Subornation of perjury: procures another to swear falsely. there is no perjury committed through reckless imprudence or simple negligence under Article 365. • Even if there is no law requiring the statement to be made under oath. (People vs. In false testimony. the crime committed is perjury.I. Bella David). it is not required that the offender asserts a falsehood on a material matter. In perjury. which is the willful and corrupt assertion of a falsehood. (Diaz vs. the crime committed is false testimony. the witness must testify or assert a fact . Bnazil). then good faith or lack of malice is a good defense False testimony vs. 191 SCRA 86) • Perjury is an offense which covers false oaths other than those taken in the course of judicial proceedings False testimony before the justice of the peace during the P. even if the allegations are false. Since admittedly perjury can only be committed by means of dolo. • There is no perjury through negligence or imprudence since the assertion of falsehood must be willful and deliberate • Because of the nature of perjury. 40 Phil. 902) • A matter is material when it is directed to prove a fact in issue The test of materiality is whether a false statement can influence the court (People vs. by falsely testifying under oath b. there is no Perjury considering the phrases “oath in cases in which the law so requires” in Article 183. That the sworn statement or affidavit containing the falsity is required by law. as long as it is made for a legal purpose. • 2 ways of committing perjury: a. may give rise to the crime of perjury because false testimony in judicial proceedings contemplates an actual trial where a judgment of conviction or acquittal is rendered A person who knowingly and willfully procures another to swear falsely commits subornation of perjury and the witness suborned does testify under circumstances rendering him guilty of perjury. The false testimony is not in a judicial proceeding Two contradictory sworn statements are not sufficient to convict the affiant for the crime of perjury. The same must be established or proved from sources other than the two contradictory statements. Perjury When one testifies falsely before the court. It is enough that he testifies falsely with deliberate intent. So if the affidavit was made but the same is not required by law. it is sufficient • • • If there is no requirement of law to place the statement or testimony under oath. The affidavit or sworn statement must be required by law like affidavit of adverse claim to protect one’s interest on real property. If one testifies falsely in a non-judicial proceeding. Solemn affirmation: refers to nonjudicial proceedings and affidavits A false affidavit to a criminal complaint may give rise to perjury when one is indicted for the crime of perjury. People.62 Elements and Notes in Criminal Law Book II by RENE CALLANTA d. or an affidavit of good moral character to take the bar examination. Capistrano. There must be evidence to show which is false. the crime of perjury is not committed. • • A “competent person authorized to administer an oath” means a person who has a right to inquire into the questions presented to him upon matters under his jurisdiction • There is no perjury if the accused signed and swore the statement before a person not authorized to administer oath (People vs.

is also the person responsible in inducing or convincing the false witness to lie. In this case. The false witness need not be convicted of false testimony. b That the accused solicited any gift or a promise from any of the bidders. Article 184 OFFERING FALSE TESTIMONY IN EVIDENCE • ELEMENTS: a That the offender offered in evidence a false witness or false testimony. the person offering the false testimony must have nothing to do in the making of the false testimony. or 183 as the case may be.63 Elements and Notes in Criminal Law Book II by RENE CALLANTA on a material matter with a full knowledge that the information given is essentially contrary to the truth. That the offer was made in a judicial or official proceeding. 181. nevertheless offers the same in evidence. d That the accused had the intent to cause the reduction of the price of the thing auctioned. There is a formal offer of testimonial evidence in the proceedings. Padol. 66 Phil. gifts. testifies falsely. It is for this reason that subornation of perjury is no longer treated as a specific felony with a separate article of • ELEMENTS OF ATTEMPTING TO CAUSE BIDDERS TO STAY AWAY: a That there be a public auction. The offenders in this case will be charged with perjury. b c • That he knew the witness or the testimony was false. 365) FRAUDS Article 185 MACHINATIONS AUCTION • IN PUBLIC ELEMENTS: a That there be a public auction. Article 184 will not apply. the inducer as principal by inducement and the induced party as the principal by direct participation. The offender in this article knows that the witness to be presented is a false witness or that the witness will lie while testifying. it is a crime defined and punished under the Revised Penal Code. He knows that the witness is false and yet he asks him to testify and thereafter offers the testimony in evidence. The applicable article will be Article 180. aside from being such. d That the accused had the intent to cause the reduction of the price of the thing auctioned. its own. Material matter means the main fact which is the subject or object of the inquiry. The crime committed by one who induces another to testify falsely and the person who agrees and in conspiracy with the inducer. or any other artifice. c That such gifts or promise was the consideration for his refraining from taking part in that public auction. promises. Nevertheless. The proceedings is either judicial or official. The mere offer is sufficient. is perjury. knowing the testimony is given by the witness to be false. So if the offeror. b That the accused attempted to cause the bidders to stay away from that public auction c That it was done by threats. Article 186 MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE: • Acts punished: . The witness is able to testify and the offender. (People vs. 182.

manufacturer b. conspiring or agreeing with any person to make transactions prejudicial to lawful commerce or to increase the market price of the merchandise. 3. agent/representative c. 1. processor d. To restrain free competition in the market • • • Person/s liable: a. to make transactions prejudicial to lawful commerce b. motor fuel or lubricants c. or by combining with any other person or persons to monopolize said merchandise or object. SILVER. Manufacturer. produced. corporation/association b. b. importer Crime is committed by: a.64 Elements and Notes in Criminal Law Book II by RENE CALLANTA a. Combines. processed. In order to alter the prices thereof by spreading false rumors or making use of any other artifice. OR OTHER . • d. By entering into a contract or agreement or taking part in any conspiracy or combination in the form of a trust or otherwise. combining b. 2. Manufacturer. processor or importer of any merchandise or object of commerce. producer or processor or importer combining. conspires or agrees with any person. conspiring c. producer c. assembled or imported into the Philippines. Monopoly to restrain free competition in the market Elements 1. By monopolizing any merchandise or object of trade or commerce. goods of prime necessity • 2. produced. agreeing with another person The purpose is: a. Combination to prevent free competition in the market Elements 1. 3. director/manager – who willingly permitted or failed to prevent commission of above offense Aggravated if items are: a. It is not necessary that there be actual restraint of trade) c. in restraint of trade or commerce or prevent by artificial means free competition in the market (It is enough that initial steps are taken. assembled or imported into the Phil Also liable as principals: a. to increase the market price of any merchandise or object of commerce manufactured. Entering into any contract or agreement or taking part in any conspiracy or combination in the form of a trust or otherwise. Elements Article 187 IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR MERCHANDISE MADE OF GOLD. 2. food substance b. Purpose is to make transactions prejudicial to lawful commerce or to increase the market price of any merchandise or object of commerce manufactured. In restraint of trade or commerce or to prevent by artificial means free competition in the market. producer. processed.

To be criminally liable. c That the offender knows that the said stamp. knowing that the t/n or t/m has been fraudulently used Take note that after making the substitution the goods are displayed in the store or market for sale. Article 189 UNFAIR COMPETITION. by altering the label. silver and other precious metals. TRADENAME. AND FALSE DESCRIPTION . estafa is committed. or marks or those articles or merchandise fails to indicate the actual fineness or quality of said metals or alloys. Hence. lithographing or reproducing t/n. or a colorable imitation of such marks. dishonesty is an essential element of the crime. What the law punishes herein is the selling of misbranded goods made of gold. Article 188 is violated. as in the case of locally manufactured goods. FRAUDULENT DESIGNATION OF ORIGIN. TRADEMARK SERVICE MARK. But if the falsely mislabeled goods are displayed in a store and offered for sale to the public in general. it must be shown that the seller knows that the merchandise is misbranded. the existence of such fact may be seriously considered as a defense. or mark fails to indicate the actual fineness or quality of the metals or alloys. If the importer has no expertise on the matter such that he has no way of knowing how the fraud was committed. sells or disposes of any of those articles or merchandise.65 Elements and Notes in Criminal Law Book II by RENE CALLANTA PRECIOUS METALS OR THEIR ALLOYS • ELEMENTS: a That the offender imports. The pendency of the administrative aspect of the case is not a prejudicial question in the resolution of the criminal case. • c By using or substituting the service mark of some other person. the crime committed is undoubtedly estafa as far as the particular person is concerned. in the sale or advertising of services By printing. Therefore. Article 188 is already committed even if no customer comes to buy any of the goods on display. b That the stamps. So. knowing the fraudulent purpose for which it is to be used. If the fraud is employed against the public. brand. for the t/n or t/m of the real manufacturer or dealer upon any article of commerce and (b) selling the same. The mere offer for sale to the public consummates the crime. or a colorable limitation thereof. brands. it is important to establish that the offender knows the fact that the imported merchandise fails to indicate the actual fineness or quality of the precious metal. Must not be another manufacturer otherwise unfair competition • Article 188 SUBSTITUTING – ALTERING TRADE-MARK. if the deception is isolated and is confined to a particular person or group of persons. are made to appear as imported articles and sold to a particular person. FRAUDULENT REGISTRATION OF TRADENAME. OR SERVICE MARK • Acts punishable: a By (a) substituting the trade name (t/n) or trademark (t/m) of some other manufacturer or dealer or a colorable imitation thereof. to enable another person to fraudulently use the same. which the offender. t/m or service mark of one person. d If a particular person is defrauded by the offender. the crime committed is punished under Article 188. b By selling or by offering for sale such article of commerce.

vs. 166. 224) • ELEMENTS: a That the offender gives his goods the general appearance of the goods of another manufacturer or dealer b That the general appearance is shown in the (a) goods themselves. The imitator is also a manufacturer of the same kind of product but of inferior quality. 54 Phil.S. The true test of unfair competition is whether certain goods have been clothed with an appearance which is TITLE FIVE CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS (190-194) COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 (RA No.. or in (d) any other feature of their appearance That the offender offers to sell or sells those goods or gives other persons a chance or opportunity to do the same with a like purpose. he profits from the goodwill of another. or any false description or representation. t/m or service mark. or in the (c) device or words therein. unfair competition is defined as follows: It consists in employing deception or any other means contrary to good faith by which any person shall pass off the goods manufactured by him or in which he deals. In unfair competition. the offender uses the trade name or trademark of another in selling his goods. or in the (b) wrapping of their packages. c For unfair competition to take place. vs. 9165) . If the labeling or clothing of the goods is not done by another manufacturer. and (b) selling such goods or services Fraudulent registration by procuring fraudulently from the patent office the registration of t/m. paragraph 2.66 Elements and Notes in Criminal Law Book II by RENE CALLANTA • Acts punished: a Unfair competition by selling his goods. or committing any acts calculated to produce such result. the crime committed is not unfair competition but substitution of trademark or trade name under Article 188. New Hesslein Corp. it must be the manufacturer of the goods who will cloth or label his goods with the trade name or trademark of another manufacturer. Section 29. 7 Phil. (U. the offended party has a peculiar symbol or mark on his goods which is considered a property right which must therefore be protected. while in unfair competition. the offended party has identified in the mind of the public the goods he manufactures to distinguish it from the goods of the other manufacturers. In infringement of trade name or trademark. When the honorable Supreme Court declared that unfair competition is broader and more inclusive than infringement of trade name or trademark. false description by (a) affixing to his goods or using in connection with his services a false designation of origin. c d Under Republic Act No. who has established a good name or good will in the mind of the public because of the quality of the merchandise manufactured by him. Manuel. or services for those of the one having established goodwill. or his business. 221) b Fraudulent designation of origin. That there is actual intent to deceive the public or defraud a competitor. By labeling his product with the trademark or trade name of said manufacturer. In infringement of trade name or trademark. the offender gives his goods the general appearance of the goods of another manufacturer and sells the same to the public. Spinner & Co. giving them the general appearance of the goods of another manufacturer or dealer likely to deceive the ordinary purchaser exercising ordinary care. (E.

etc. or sold to a minor who is allowed to use the same in such place. Shabu c. sale. Life Imprisonment and a fine of P400.00 5-10 gms.00-500. possession or use g. being employees or visitors of drug den e. failure to comply with provisions relative to keeping of records of prescription i.000. dive or resort. ** Property escheated in favor of the government Qualifying Circumstance – where a prohibited/regulated drug is administered. Opium. the maximum of the penalty shall be imposed. Life to death & fine of 500. adding or attaching directly or indirectly. whatever quantity of any dangerous drug and/or controlled precursor and essential chemical in the person. the maximum penalty herein shall be imposed. sale. house. dive. maintenance of a den. unnecessary prescription j. incriminating or imputing the commission of any violation of this Act.000 to 10 million regardless of the Quantity and purity involved ( includes BROKER ) Qualifying Circumstances – 1) if the victim of the offense is a minor or should a prohibited/regulated drug involve in any offense under this section be the proximate cause of the death of a victim thereof. PLANTING OF EVIDENCE – the willful act by any person of maliciously and surreptitiously inserting. 50 gms. .000 to 10 million regardless of the Quantity and purity involved MAXIMUM PENALTY : 1) Use of diplomatic Passport 2) Financier .67 Elements and Notes in Criminal Law Book II by RENE CALLANTA I. administration. placing. Acts Punishable: a. Importation. administration. delivered. Marijuana b.000. manufacture of prohibited drugs f. marijuana resin and Ecstasy. Shabu PENALTY : Life to death & fine of 500.00 10-50 gms. delivery. heroine. of of DRUG SYNDICATE – any organized group of two(2) or more persons forming or joining together with the intention of committing any offense prescribed under the act. possession of opium pipe and other paraphernalia k. through any overt or covert act. 2) Financier 3) Sale made within 100m from school • Maintenance of a den.000. distribution and transportation of prohibited drugs c. dive or resort for prohibited drug users d. or should a prohibited drug be the proximate cause of the death of the person using the same in such den.000. Manufacture prohibited/regulated drugs. of • • Possession prohibited/regulated drugs.00-P500. effects. P D E A – Philippine Drug Enforcement Unit • Importation prohibited/regulated drugs. of regulated drugs • Sale.000 to 10 million 10 gms. Shabu 500 gms.NOT BAILABLE PENALTY : Life to death & fine of 500. cultivation of plants h. delivery. PENALTY : a. morphine. or in the immediate vicinity of an innocent individual for the purpose of implicating. cocaine. importation of prohibited drugs b. distribution and transaction of prohibited/regulated drugs. 20 years to Life and a fine of 400. or resort for prohibited/regulated drug users.

Manufacturer. That this section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act. Provided. Failure to keep records of prescription. Dentist.000 plus revocation of license Persons Liable: Physician or dentist who shall prescribe any prohibited/regulated drug for any person whose physical/physiological condition does not require the use of thereof. he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve(12) years and a fine ranging from Fifty thousand pesos (P50. unless the owner thereof can prove that he did not know of such cultivation or culture despite the exercise of due diligence on his part. Provided. the Court shall immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and all the assets and properties of the accused either owned or held by him or in the name of some other persons if the same shall be found to be manifestly out of proportion of his/her income.000.00) to Two hundred thousand pesos (P200. who is found to be positive for use of any dangerous drug. Veterinarian. including the properties of the proceeds derived from the illegal trafficking of dangerous drugs.00-400. Importer.000. Wholesaler. shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense.68 Elements and Notes in Criminal Law Book II by RENE CALLANTA d. If apprehended using any dangerous drug act for the second time. sales.00 to P10 Million a Note: The land/portions thereof and/or greenhouses in which any of the said plants is cultivated or cultured shall be confiscated and escheated to the State.000. the maximum of penalty herein provided shall imposed.000.000. however. Distributor.000 to P10 Million Unnecessary prescription prohibited/regulated drugs of Penalty – 12 to 20 years and fine of P100.00 Less than 5 gms.Life to death and a fine of P500. Confiscation and forfeiture of the proceeds or instruments of the unlawful act.000 to P500. That if the forfeited property is a vehicle. subject to the provisions of Article VIII of this Act. acquisitions and/or deliveries of prohibited/regulated drugs Persons liable: Pharmacist.000 – 50. & fine of 10. Forfeited infavor of the government After the conviction in the Regional Trial Court in the appropriate criminal case filed. purchases. in which case the provisions stated therein shall apply. 12 – 20 years and a fine of 300. If the land involved is part of public domain. Dealer. Physician.000 Use of Dangerous Drugs – A person apprehended or arrested. 2. Of any dangerous drugs Possession of paraphernalia 1. Retailer Unlawful prescription prohibited/regulated drugs of Penalty – life to death and a fine of P500. b Qualifying Circumstance – . – 4 yrs.00). Maximum penalty imposed financier the the be on 6 mos. after a confirmatory test. the same shall be auctioned off not later than five Penalty . Cultivation of plants which are sources of prohibited drugs.

After ocular inspection by the court. such drug shall be submitted to the PDEA forensic laboratory for a qualitative and quantitative examination. equipment. Qualifying Aggravating Circumstance A positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender and the application of the penalty provided for in the RPC. PDEA shall issue a certification of such destruction and samples of the dangerous drugs shall be submitted to the court. seized and/or surrendered dangerous drugs. Probation Law Any person convicted for drug trafficking regardless of the penalty imposed cannot avail of the privilege granted by the probation law. no property. ingesting. shall be disposed. Apprehending team immediately after seizure shall make physical inventory and photograph the seized drugs in the presence of the accused or his counsel. seized and/or surrendered dangerous drugs within 24 hours in the presence of the accused or his counsel. consumed. administered to himself. PDEA shall destroy or burn the confiscated. the proper court shall conduct and ocular inspection within 72 hours of the confiscated. Within 24 hours upon confiscation/seizure of dangerous drugs. or otherwise using opium or any other prohibited drug. distribution and transportation of dangerous drugs Maintenance of a den. 4. a representative of the media and DOJ and any elected public official who shall sign the copies of the inventory. Attempt and conspiracy to commit the following offenses: a Importation of dangerous drugs b Sale. Possession of opium pipe. injected or used a prohibited drug.69 Elements and Notes in Criminal Law Book II by RENE CALLANTA (5) days upon order of confiscation or forfeiture. administration. injecting. . representative of the media and the DOJ. After the filing of the criminal case. shall be prima facie evidence that the possessor has smoked. seized and/or surrendered dangerous drugs PDEA in charge and custody for proper disposition Procedure in Disposal 1. consuming. civil society groups and any elected public officer. During the pendency of the case in the Regional Trial Court. Plea-Bargaining Any person charged under any commission of this act regardless of the imposable penalty shall not be allowed to avail of the provision on pleabargaining. Certification of the forensic examination results shall be issued within 24 hours. which may be confiscated and forfeited. 5. dive or resort for prohibited drugs Manufacture of dangerous drugs Cultivation or culture of plants which are sources of prohibited drugs c d e • Other persons liable: a If the violation of the Act is committed by a partnership. apparatus or any paraphernalia fit or intended for smoking. alienated or transferred and the same shall be in custodia legis and no bond shall be admitted for the release of the same. 2. administering. Custody and disposition of confiscated. 6. or income derived therefrom. delivery. 3.

00 Additional penalty – revocation of license to practice and closure of the drug testing center II. Any elective local or national official found to have benefited from the proceeds of the trafficking of dangerous drugs or have received any financial or material contributions from persons found guilty of drug trafficking dangerous drugs. the partner. aircraft. Issuance of False or fraudulent drug test results (whether willfully or through gross negligence) Penalty – 6 to 12 years and fine P100. arrest. or cause the apprehension or arrest of any person who shall violate any of the said provision. Applicants for firearms license and for permit to carry . vessel. or consents to the use of a vehicle. if such vehicle. or aircraft as an instrument in the importation. b Partner.000. shall be removed from office and perpetually disqualified from holding any elective or appointive positions in the government. Officers and members of the military. president. manager. seized and/or surrendered dangerous drugs Penalty . director. officer or stockholder.70 Elements and Notes in Criminal Law Book II by RENE CALLANTA corporation. For the purpose of enforcing the provisions of this Act. Applicants for driver’s license mandatory 2. Drug Testing . 5. machines or other instruments in the manufacture of any dangerous drugs. association or judicial entity to which they are affiliated. supervisors and teachers shall be deemed to be persons in authority and. 1. vessel. all school heads. delivery. association or any judicial person. is owned or under the control and supervision of the partnership. All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. president. or other instrument.000. police and other law enforcement agencies – annual mandatory 6.life to death and a fine of P500.00 to P10 Million in addition to absolute perpetual disqualification from any public office. shall suffer the penalty of death. corporation. are vested with the power to apprehend. as such. equipment. or to the use of their equipment. Criminal liability of a public officer or employee for misappropriation. Planting of Evidence Any person who is found guilty of planting any dangerous drug regardless of the quantity and purity. Students of secondary and tertiary schools – random (school shall shoulder expenses) 4.mandatory 3. director. who knowingly authorizes. 282 of the Labor Code and pertinent provisions of the Civil Service Law. distribution or transportation of dangerous drugs. tolerates. or manager who consents to or knowingly tolerates such violation shall be held criminally liable as coprincipal. sale. Officers and employees of private and public offices – random (employer shall shoulder expenses) Any officer or employee found positive for use of dangerous drug shall be dealt with administratively which shall be a ground for suspension or termination subject to Art. All persons charged before the prosecutor’s office with a criminal offense having an impossible penalty of imprisonment of not less than six (6) years and one (1) day shall have to undergo a mandatory drug test 7.00 to P500. misapplication or failure to account for the confiscated.000.

shall suspend all further proceedings and transmit records of the case to the Board. the fiscal or court as the case may be. subsequent to such recommitment. treatment and rehabilitation by the drug dependent himself or through his parent. the judgement shall. Any teacher or school employee who discovers or finds that any person in the school or within its immediate vicinity is violating this Act shall have the duty to report the violation to the school head or supervisor who shall. supervisors or teachers. if the accused is certified by the treatment and rehabilitation center to have maintained good behavior. after hearing. Voluntary submission of a drug dependent to confinement. report the matter to the proper authorities. In case of conviction. to be a drug dependent. h. guardian or relative within the 4th civil degree of consanguinity or affinity. d. Should the drug dependent escape from the center. III. he may submit himself for confinement within 1 week from the date of his escape. f. the Court shall issue an order for .71 Elements and Notes in Criminal Law Book II by RENE CALLANTA a. If. e. g. in a center and compliance with such conditions therefor as the Dangerous Drugs Board may prescribe shall exempt from criminal liability for possession or use of the prohibited/regulated drug. c. within the same period surrender him for confinement. If accused is a minor (under 18 years of age at the time of the commission of the offense but not more than 21 years of age when the judgement should have been promulgated. NOTE: When the offense is use of dangerous drugs and the accused is not a recidivist. he shall be prosecuted for such violation. If a person charged with an offense is found by the fiscal or by the Court at any stage of the proceedings. the penalty thereof shall be deemed to have been served in the center upon his release therefrom. After his rehabilitation. Failure to report in either case shall. Requisites of suspension of sentence for first offense in a minor: 1. Rules regarding rehabilitation of drug dependents Voluntary submission a. NOTE: They shall be considered as persons in authority if they are in the school or within its immediate vicinity. The period of prescription of the offense charged shall not run during the time that the respondent/accused is under detention or confinement in a center. Upon application of the Board. indicate that he shall be given full credit for the period he was confined in the center. b. in turn. recommitment if the drug dependent does not resubmit himself for confinement or if he is not surrendered for recommitment. or beyond such immediate vicinity if they are in attendance in any school or class function in their official capacity as school heads. of his parent guardian or relative may. he should escape again. (Applicable only to those liable for use of dangerous drugs and not to possession and sale) b. he shall no longer be exempt from criminal liability for the use or possession of any dangerous drug. constitute sufficient cause for disciplinary action.

The member of the law enforcement agency or any other government employee mentioned in the preceding Section 90.000.  If accused did not violate conditions of probation. the prosecutor of the court as the case may be. The number of court designated in each judicial region shall be based on population and the number of cases pending in their respective jurisdiction. after due notice. Section 91. the corresponding information shall be filed in court within 24 hours from the termination of the investigation. the corresponding information shall be filed by the proper prosecutor within 48 hours from the receipt of the records of the case.000 and in addition. Jurisdiction – The Supreme Court shall designate special courts from among the existing Regional Trial Court in each judicial region to exclusively try and hear cases involving violations of this Act. The immediate superior of a member of the law enforcement agency or any other government employee mentioned in the preceding paragraph shall be penalized with imprisonment of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than P10. The DOJ shall designate special prosecutors to exclusively handle cases involving violations of this Act. fails or refuses intentionally or negligently. He has not been previously convicted of violating any provision of this Act or of the RPC or placed on probation. to be a drug dependent. involving violations of this Act. court shall pronounce judgment of conviction and he shall serve sentence. in addition to the administrative liability he/she may be meted out by his/her immediate superior and/or appropriate body.00. shall be punished with imprisonment of not less than twelve (12) years and one (1) day to 20 years and a fine of not less than P500. and is found by the prosecutor or by the court. shall suspend all further proceedings and transmit copies of the record of the case to the Board. the former does not exert reasonable effort to present the latter to the court. at any stage of the proceedings. Responsibility and Liability of Law Enforcement Agencies and Other Government Officials and Employees Testifying as Prosecution Witnesses in Dangerous Drugs Cases – Any member of law enforcement agencies or any other government official and employees who. perpetual absolute disqualification from public office if despite due notice to them and to the witness concerned.  Sentence shall be deferred and the accused shall be placed on probation under the supervision of the Board.00 but not more than P50. If the preliminary investigation is conducted by a judge and a probable cause is found to exist. The preliminary investigation of cases filed under this Act shall be terminated . Jurisdiction Over Dangerous Drug Cases within a period of thirty (30) days from the date of their filing. When the preliminary investigation is conducted by a public prosecutor and a probable cause is established.72 Elements and Notes in Criminal Law Book II by RENE CALLANTA 2.000. case shall be dismissed upon expiration of the designated period.  In case of violation of conditions of pardon. without any valid reason. to appear as a witness for the prosecution in any proceedings. Compulsory submission If a person charged with an offense where the imposable penalty is imprisonment of not more than six (6) years and one (1) day.

Delay and Bungling in the Prosecution of Drug Cases. P v. Provided further.Any government officer or employee tasked with the prosecution of drug-related cases under this Act. Hilario Moscaling – court may take judicial notice of the word “shabu” 6. 1. Criminal liabilities of a policeman who sold the drugs confiscated from a pusher: violation of RA 9165 and malversation under RPC. the burden to prove that the accused is not aware that drugs are prohibited falls on the defense (P v. Anthony Belgar) 3. However. Rosalinda Ramos) 2. . Romeo Macara) d g Possession – constructive or . within 24 hours from its approval. Under the RA. That his/her immediate superior shall be penalized with imprisonment of not less than two (2) months and one (1) day but not less than six (6) years and a fine of not less than P10.00 and in addition. That his/her immediate superior shall notify the court where the case is pending of the order of transfer or re-assign. through patent laxity. Delivery or Sale of Prohibited Drugs – the accused must be aware that what he is selling or delivering was prohibited drug. Angelito Manalo – burden of proving the authority to possess shabu is a matter of defense 5. If prosecution can prove the crime without presenting the informer or asset – not necessary because their testimonies are merely corroborative. Carlos Franca) actual – not necessary to adduce the marked money as evidence (P v. P v. unreasonable delay or deliberately causes the unsuccessful prosecution and/or dismissal ranging from 12 years and 1 day to 20 years without prejudice to his/her prosecution under the pertinent provisions of the Revised Penal Code. the concerned member of the law enforcement agency or government employee may be transferred or re-assigned for compelling reasons. Poseur buyer – it depends on whether the prosecution can prove the crime without their testimonies (P v. perpetual absolute disqualification from public office. Provided. Section 92.73 Elements and Notes in Criminal Law Book II by RENE CALLANTA paragraphs shall not be transferred or reassigned to any other territorial jurisdiction during the pendency of the case in court. Prosecution and punishment under this Section shall be without prejudice to any liability for violation of any existing law.000. inexcusable neglect.000. Aranda) 4. Alberto) – not necessary to have prior police surveillance (P v. who.00 but not more than P50. a Buy Bust Operation – no law or rule to require policemen to adopt a uniform way of identifying BUY MONEY (P v. But the moment the fact of sale or delivery is proved by prosecution. should he/she fail to notify the court of such order to transfer or reassign. Abedes) b Absence of ultraviolet powder is not fatal in the prosecution Transportation/importation of MJ – immaterial whether there may or may not be a distinction for the MJ Distinguish Entrapment and Instigation: e Planting evidence – to implicate another c f Buy Bust Operation – form of entrapment (P v. special aggravating circumstance if a crime has been committed while the accused was high on drugs (P v.

policy. i 1. . or percentage game. banking. Illegal betting on horse races (Art. Taking part directly or indirectly in – a. 197). or representative of value are made. Immoral doctrines. 202). obscene publications and exhibitions (Art. or any other form of lottery. any game of monte. Illegal cockfighting (Art. 201).74 Elements and Notes in Criminal Law Book II by RENE CALLANTA h Separate crimes – sale/possession of MJ found in his possession after he was frisked but he can’t be convicted for possession of MJ that he sold If victim is minor or drug is proximate cause of death – max penalty is imposed TITLE SIX CRIMES AGAINST PUBLIC MORALS Crimes against public morals Gambling (Art. jueteng. 196). First offense of a minor – suspension of sentence CONDITIONS:  under 18 at time of commission but not more than 21 at time when judgment was promulgated  found guilty of possession or use of prohibited or regulated drugs  not been previously convicted of violating any provision of this Act or the RPC  not been placed on probation  defer sentence. Grave scandal (Art. or the exploitation or use of any other mechanical invention or contrivance to determine by chance the loser or winner of money or any object or representative of value. 199). Betting in sport contests (Art. articles of value. What Acts Punishable in Gambling Acts punished 1. 195). place on probation for 6 months to 1 year  violation of probation – pronounce sentence – convict and serve sentence  no violation – discharge him and dismiss the proceeding  if minor is drug dependent – commit to a center for treatment and rehabilitation Are b. and Vagrancy and prostitution (Art. 200). 198). dog races. sale and possession of lottery tickets or advertisements (Art. or wherein wagers consisting of money. Article 195. Importation. or any other game or scheme the results of which depend wholly or chiefly upon chance or hazard.

Importing into the Philippines from any foreign place or port any lottery ticket or advertisement. SALE AND POSSESSION OF LOTTERY TICKETS OR ADVERTISEMENTS Acts punished 1. If the prizes do not come out of the funds or contributions of the participants. or Selling or distributing the same without connivance with the importer of the same. 4. . Article 197. knowingly and with intent to use them. the result of which depends wholly or chiefly upon chance or hazard. there will be no need or requirement to go into the methods upon how the game is played. or 3. there is no lottery. The manner of determining whether the game played is prohibited or not is whether the result will depend wholly or chiefly upon chance or hazard. or other matter containing letters. or agreed to pay. there is no gambling. Selling or distributing the same in connivance with the importer. Game-fixing: Article 196. Game-fixing or Point-shaving and Machinations in Sport Contests): What is lottery? It is a scheme for the distribution of prizes by chance among persons who have paid. et al. 3. BETTING IN SPORT CONTESTS This article has been repealed by Presidential Decree No. distribute or use the same in the Philippines. a valuable consideration for a chance to obtain a prize. Being maintainer. 4. lottery tickets or advertisements. races. figures. 27 SCRA 287) PENALIZING BETTING. Filart. (Uy vs. or banker in a game of jueteng or similar game.75 Elements and Notes in Criminal Law Book II by RENE CALLANTA 2. So. any arrangement. Knowingly permitting any form of gambling to be carried on in any place owned or controlled by the offender. (US vs. Possessing. What is gambling? It is a game or device or method. if the game has been identified and declared as a form of gambling by express provision of law. combination. if the game depends wholly upon skill or ability of the players. races and other sports contests. 30 Phil.. signs or symbol which pertain to or are in any manner used in the game of jueteng or any similar game. 80) Pinball machines or slot machines are considered gambling devices because the result depends upon chance or hazard. Betting: Betting money or any object or article of value of representative value upon the result of any game. Palomar. Knowingly and without lawful purpose possessing lottery list. 483 (Betting. b. conductor. Note that possession of any lottery ticket or advertisement is prima facie evidence of an intent to sell. 2. scheme or agreement by which the result of any game. GAMEFIXING OR POINT-SHAVING AND MACHINATIONS IN SPORTS CONTESTS PD 483 • Acts Punishable: a. paper. or sports contests shall be predicated and/or known other than on the basis of the honest playing skill or ability of the players or participants. IMPORTATION. Significantly.

Cockpits shall be constructed and operated within the appropriate areas as prescribed in the Zoning Law or ordinance.76 Elements and Notes in Criminal Law Book II by RENE CALLANTA c. Rules: A. 449 (The Cockfighting Law of 1974): . Only one cockpit shall be allowed in each city or municipality with a population of 100. d. C. Cockfighting shall be allowed only in licensed cockpits during Sundays and legal holidays and during local fiestas for not more than 3 days. D. scheme or agreement by which the skill or ability of any player or participant in a fame. carnival or exposition shall be allowed within the month of the local fiesta or for more than 2 II. Limitations: a) No cockfighting on the occasion of such fair. player or participant. subject to the approval of the Chief of Constabulary or his authorized representative. or sports contests to make points of scores shall be limited deliberately in order to influence the result thereof in favor of one or other team. operation. 229). or 2. Article 199. city or municipal. 180. During provincial. manner or practice employed for the purpose of influencing the result of any game. 946). December 30 (Republic Act No. deceitful. Any registration or voting days (Republic Act No. Revised Election Code). races. agricultural. manage and operated cockpits.000 or less. When allowed: 1. COCKFIGHTING LAW OF 1974 PD 449 I. Game Machination: any other fraudulent. commercial or industrial fair. Article 198. carnival or exposition for a similar period of 3 days upon resolution of the province. Point-shaving: any such arrangement combination. and Holy Thursday and Good Friday (Republic Act No. unfair or dishonest means. Only Filipino citizens not otherwise inhibited by existing laws shall be allowed to own. city or municipality where such fair. method. ILLEGAL COCKFIGHTING This article has been modified or repealed by Presidential Decree No. Scope – This law shall govern the establishment. races or sports contest. carnival or exposition is to be held. When horse races not allowed: July 4 (Republic Act No. ILLEGAL BETTING ON HORSE RACE Acts punished Betting on horse races during periods not allowed by law. maintenance and ownership of cockpits. 137). B. Maintaining or employing a totalizer or other device or scheme for betting on races or realizing profit therefrom during the periods not allowed by law.

conductor of the above gambling schemes. point shaving and other machinations banking or percentage game. boat racing. Election Day and during registration days for such election/referendum. or for returning balikbayans.alai or horse racing to include game fixing) and other lotteries. Pesos to Six Thousand Pesos shall be imposed upon: (a) Any person other than those referred to in the succeeding subsection who in any manner. June 12. the culprit shall be punished by the penalty provided for in its maximum period and a fine of Six Thousand Pesos. bookies (jai. Violations and Penalties. b) No cockfighting shall be held on December 30. pinball and other mechanical inventories or devices. vessel or other means of transportation owned or controlled by him. roulette. basketball. boxing. figures.November 30. Limitations: This privilege shall be extended for only one time. black jack. E. jueteng. or any other game or scheme. domino. monte. in licensed cockpits or in playgrounds or parks. articles of value of representative of value are made. Good Friday. within a year to a province. dog racing. The penalty of prision correccional in its maximum degree and a fine of Six Thousand Pesos shall be imposed upon the maintainer. referee. (b) Any person who shall knowingly permit any form of gambling referred to in the preceding subdivision to be carried on in inhabited or uninhabited places or any building. If the place where gambling is carried on has a reputation of a gambling place or that prohibited gambling is frequently carried on therein or the place is a public or government building or barangay hall.77 Elements and Notes in Criminal Law Book II by RENE CALLANTA occasions a year in the same city of municipality. 3. If the purpose is for the entertainment of foreign dignitaries or for tourists. paper. or if a player. The penalty of prision correccional in its medium degree and a fine ranging from Five Hundred pesos to Two Thousand Pesos shall be imposed upon any person who shall knowingly and without lawful purpose in any hour of any day shall have in his possession any lottery list. whether upon chance or skill. judge or coach in cases of game-fixing. seven-eleven dice games and the like and other contests to include game fixing. or other matter containing letter. jai-alai Presidential Decree No. The penalty of prision mayor in its medium degree and temporary absolute disqualification and a fine of Six Thousand Pesos shall be imposed if the maintainer.The penalty of prision mayor in its medium degree or a fine ranging from Five Hundred Pesos to Two Thousand Pesos and in case of recidivism the penalty of prision correccional in its medium degree or a fine of ranging from One Thousand . signs or symbols which pertain to or in any manner used in the game of jueteng. Holy Thursday. wherein wagers consisting of money. promoter. slot machines. City or municipal mayors are authorized to issue licenses for the operation and maintenance of cockpits. shall directly or indirectly take part in any game of cockfighting. point-shaving and other game machination. F. lucky nine. which do not have a franchise from the national government. cara y cruz or pompiang and the like. city or municipal council. No gambling of any kind shall be permitted on the premises of the cockpit or place of cockfighting during cockfights. for a period not exceeding 3 days. umpire. or for the support of national fundraising campaigns for charitable purposes as may be authorized by the Office of the President upon resolution of a provincial board. palk que. conductor or banker is a government official. “pusoy” or Russian Poker. baccarat and other card games. -. volleyball. car raising and other races. mahjong. high and low. city or municipality. 1602 (Simplifying and Providing Stiffer Penalties for Violations of Philippine Gambling Laws) Section 1.

the public is paying for the lottery and not for the merchandise. yet the concept of gambling under it has been changed by the new gambling law. If the possessor was caught. the skill of the players is immaterial. Section 2. Whenever someone buys from that supermarket. Mere possession is not enough. he gets a coupon which is to be dropped at designated drop boxes to be raffled on a certain period. the offshoot of the exemption is the intentional prolonging of the wake of the dead by gambling lords. lottery becomes a gambling game. If the public is made to pay not only for the merchandise that he is buying. Barangay Official. Exceptions: These are games which are expressly prohibited even without bets. these are habitforming and addictive to players. In effect. (1) Mere possession of lottery tickets or lottery lists is a crime punished also as part of gambling. the game is not considered gambling but a sport. jueteng or any form of lottery. Pursuant to a memorandum circular issued by the Executive Branch. It was because of this that betting in boxing and basketball games proliferated. bringing about the pernicious effects to the family and economic life of the players. Under the old penal code. but with the lottery the public starts patronizing such merchandise. so that the public actually does not buy them. slot machines. The increase in the price is the consideration for the chance to win . The increase of the price is to answer for the cost of the valuable prices that will be covered at stake. X cannot be convicted of gambling or illegal possession of lottery list without proving that such game was indeed played on the date stated. Monte. While the acts under the Revised Penal Code are still punished under the new law. chances are he will not go on with it anymore. As a general rule. 2. Any game is considered gambling where there are bets or wagers placed with the hope to win a prize therefrom. However. Under this law. any form of gambling is illegal. but also for the chance to win a prize out of the lottery. If the date therein refers to the past. To defray the cost of the prices offered in the lottery. Public is made to pay a higher price. and therefore the lottery is a gambling game. dog races. Public is not made to pay a higher price. This will already bring about criminal liability and there is no need to prove that the game was played on the date stated. – Any barangay official in whose jurisdiction such gambling house is found and which house has the reputation of a gambling place shall suffer the penalty of prision correccional in its medium period and a fine ranging from Five Hundred to Two Thousand Pesos and temporary absolute disqualifications. If the merchandise is not saleable because of its inferior quality. he pays 10 cents more for each merchandise and for his purchase. X can be convicted by the mere possession with intent to use. There are two criteria as to when the lottery is in fact becomes a gambling game: 1. “Unless authorized by a franchise. There are so-called parlor games which have been exempted from the operation of the decree like when the games are played during a wake to keep the mourners awake at night. Before. Illustration: X was accused one night and found in his possession was a list of jueteng. If the date refers to the future. if the skill of the player outweighs the chance or hazard involved in winning the game. the Revised Penal Code considered the skill of the player in classifying whether a game is gambling or not. even sports contents like boxing.78 Elements and Notes in Criminal Law Book II by RENE CALLANTA or horse racing bookies and similar game or lottery which has taken place or about to take place. But under the new gambling law. the management increased their prices of the merchandise by 10 cents each. Illustrations: A certain supermarket wanted to increase its sales and sponsored a lottery where valuable prices are offered at stake. would be gambling insofar as those who are betting therein are concerned.” So said the court in the recent resolution of the case against the operation of jai-alai. it is necessary to make a distinction whether a ticket or list refers to a past date or to a future date. betting or wagering determines whether a game is gambling or not.

the scandal involved refers to moral scandal offensive to decency. the public started buying the cigarette. In alarms and scandals. In grave scandal. the lottery can be considered a gambling game because the buyers were really after the coupons not the low quality cigarettes. the public does not patronize the product and starts to patronize them only after the lottery or raffle. And the sponsors thereof may be prosecuted for illegal gambling under Presidential Decree No. manufacture cigarettes which is not saleable because the same is irritating to the throat. you have to determine whether the increase in the price was due to the lottery or brought about by the normal price increase. Due to the coupons. Highly scandalous conduct does not expressly fall within any other article of the RPC d. a barangay captain who is responsible for the existence of gambling dens in their own locality will be held liable and disqualified from office if he fails to prosecute these gamblers. the number of people who sees it is not material). A certain manufacturer. Offender performs an act b. and the like. But such conduct or act must be open to the public view. Christmas caroling. (2) The merchandise is not really saleable because of its inferior quality. the fact that a lottery is sponsored does not appear to be tied up with the increase in prices.79 Elements and Notes in Criminal Law Book II by RENE CALLANTA in the lottery and that makes the lottery a gambling game. is legal when Fund-raising campaigns are not gambling. But if the increase in prices of the articles or commodities was not general. If the increase in price is brought about by the normal price increase [economic factor] that even without the lottery the price would be like that. Committed in a public place or within the public knowledge or view. but only on certain items and the increase in prices is not the same. authorized by law. Bhey Company. For public knowledge. Although there was no price increase in the cigarettes. Act is highly scandalous as offending against decency or good customs c. there is no consideration in favor of the lottery and the lottery would not amount to a gambling game. the scandal involved refers to disturbances of the public . If without the lottery or raffle. They are for charitable purposes but they have to obtain a permit from Department of Social Welfare and Development. But this is not being implemented. in effect the public is paying for the price not the product. If the increase in the price is due particularly to the lottery. although it does not disturb public peace. sponsored a lottery and a coupon is inserted in every pack of cigarette so that one who buys it shall have a chance to participate. Necessarily. • Grave scandal: consists of acts which are offensive to decency and good customs. in case of manufacturers. This includes concerts for causes. 1602. Also. OFFENSES AGAINST DECENCY AND GOOD CUSTOMS Article 200 GRAVE SCANDAL • ELEMENTS: a. it is sufficient if in public place. therefore not illegal. give rise to public scandal to persons who have accidentally witnessed the acts The crime of grave scandal is a crime against public morals. Gambling. the offender must commit the crime in a public place or within the view of the public. They are committed publicly and thus. it may occur even in a private place. (The public view is not required. of course. then the lottery is a gambling game. Under this decree.

Illustrations: (1) A man and a woman enters a movie house which is a public place and then goes to the darkest part of the balcony and while there the man started performing acts of lasciviousness on the woman. this constitutes grave scandal. Even if there was only one person who witnessed the offensive act for as long as the third person was not an intruder. (3) In a certain apartment. the crime would be acts of Article 201 IMMORAL DOCTRINES. She does this every night at about eight in the evening. Authors of obscene literature. the criminal liability arises irrespective of whether the immoral act is open to the public view. you can expect people outside gathered in front of her window looking at her silhouette. published with their knowledge in any form . good taste etc Customs: refers to established usage. lasciviousness. But if there is mutuality. Public view is not necessary so long as it is performed in a public place. (4) In a particular building in Makati which stands right next to the house of a young lady who goes sunbathing in her poolside. The lady was then charged with grave scandal. social conventions carried on by tradition and enforced by social disapproval in case of violation If the acts complained of are punishable under another provision of the RPC. Those who publicly expound or proclaim doctrines that are contrary to public morals b. public view or public knowledge is required. • The essence of grave scandal is publicity and that the acts committed are not only contrary to morals and good customs but must likewise be of such character as to cause public scandal to those witnessing it. Art 200 is not applicable • • Any act which is notoriously offensive to decency may bring about criminal liability for the crime of grave scandal provided such act does not constitute some other crime under the Revised Penal Code. So that at this hour of the night. (2) A man and a woman went to Luneta and slept there. In short public view is not required. Her defense was that she was doing it in her own house. This is an act which even though done in a private place is nonetheless open to public view. a lady tenant had the habit of undressing in her room without shutting the blinds. She was charged of grave scandal. When act offensive to decency is done in a private place. OBSCENE PUBLICATIONS AND EXHIBITIONS: • Persons liable: a. Distinction should be made as to the place where the offensive act was committed. grave scandal is committed provided the act does not fall under any other crime in the Revised Penal Code. (2) Public view does not require numerous persons. whether in the public place or in a private place: (1) In public place.80 Elements and Notes in Criminal Law Book II by RENE CALLANTA tranquility and not to acts offensive to decency. • Decency: means properly observing the requirements of modesty. Every morning several men in the upper floors would stick their heads out to get a full view of said lady while in her two-piece swimsuit. It is no defense that she is doing it in her private home. Grave scandal is a crime of last resort. If it is against the will of the woman. This is grave scandal. It is still open to the public view. They covered themselves their blanket and made the grass their conjugal bed. Her defense was that it is her own private pool and it is those men looking down at her who are malicious.

those w/c glorify criminals or condone crimes . Persons tramping or wandering around the country or the streets with no visible means of support In committing this crime. lust or pornography c. those w/c tend to abet the traffic in and the use of prohibited drugs e. good customs. those w/c serve no other purpose but to satisfy the market for violence. they expose themselves to public scrutiny. those w/c offend against any race or religion d. • • The test is objective. Those who exhibit indecent or immoral plays. those that are contrary to law. morals. decrees and edicts • • Mere nudity in paintings and pictures is not obscene Pictures w/ a slight degree of obscenity having no artistic value and intended for commercial purposes fall within this article Publicity is an essential element d. As long as the pornographic matter or exhibition is made privately. fairs. Owners or operators of establishments selling obscene literature e. Art 201 enumerates what are considered as obscene literature or immoral or indecent plays. The moment the parties carry their private rights and privileges to public view. Article 202 VAGRANTS AND PROSTITUTES: • Who are considered vagrants: a. distribute. criminal liability arises. acts or shows ion theaters. • However. public order. or exhibit prints. sculptures or literature which are offensive to morals • Morals: implies conformity to generally accepted standards of goodness or rightness in conduct or character Test of obscenity: whether the matter has a tendency to deprave or corrupt the minds of those who are open to immoral influences. Sexual indulgence is not in itself immoral if done within the bounds of privacy and performed normally. It means the act or acts done must come to the knowledge of third persons. scenes or acts: a. If the material has the tendency to deprave and corrupt the mind of the viewer then the same is obscene and where such obscenity is made publicly. established policies. there must be publicity. engraving. Those who have no apparent means of subsistence and who have the physical ability to work yet neglect to apply themselves to some useful calling b. scenes. Those who sell. Editors publishing obscene literature such b. Persons found loitering around public and semipublic places without visible means of support c. cinemas or any other place f. It is more on the effect upon the viewer and not alone on the conduct of the performer. A matter can also be considered obscene if it shocks the ordinary and common sense of men as indecency. there is no crime committed under the Revised Penal Code because what is protected is the morality of the public in general. The law is not concerned with the moral of one person. lawful orders.81 Elements and Notes in Criminal Law Book II by RENE CALLANTA c.

19.82 Elements and Notes in Criminal Law Book II by RENE CALLANTA d. Persons found loitering in inhabited or uninhabited places belonging to others. Idle or dissolute persons lodging in houses of illfame e. Prosecution of offenses. unjust 18. Malicious delay in the administration of justice (Art. There cannot be prostitution by conspiracy. 207). Virginity is not a defense. 219). 208). negligence and tolerance (Art. 20. Malversation of public funds or property – Presumption of malversation (Art. it has to be more than one time. Corruption of public officials (Art. In law the mere indulging in lascivious conduct habitually because of money or gain would amount to prostitution. Prohibited 215). Judgment rendered negligence (Art. 220). 2. Qualified bribery (Art. 21. Conniving with or consenting to evasion (Art. TITLE SEVEN CRIMES COMMITTED BY PUBLIC OFFICERS Crimes committed by public officers 1. 209). to 3. 16. 223). 214). 224). Illegal use of public funds or property (Art. Failure to make delivery of public funds or property (Art. through . Evasion through negligence (Art. Indirect bribery (Art. Betrayal of trust by an attorney or solicitor – Revelation of secrets (Art. Other frauds (Art. transactions (Art. taxi drivers or solicitors of clients are guilty of the crime under Article 341 for white slavery. 206). Direct bribery (Art. 204). 4. 212). 205). 7. Knowingly rendering judgment (Art. 17. Habituality is the controlling factor. • Who are considered prostitutes refer to women who habitually indulge in sexual intercourse or lascivious conduct for money or profit (if a man indulges in the same conduct: vagrancy) Possession of prohibited interest by a public officer (Art. 211). 217) Failure of accountable officer to render accounts (Art. without any lawful or justifiable reason provided the act does not fall within any other article of the RPC Trespass dwelling Attempted theft 11. 210). 216). Ruffians or pimps and those who habitually associate with prostitutes (may include even the rich) f. 213). 13. Vagrancy 12. even if there is no sexual intercourse. Frauds against the public treasury and similar offenses (Art. 15. 14. 221). 218). 10. 6. If fenced and with prohibition of entry If fenced and entered to hunt/fish If not fenced and with no prohibition of entry 9. One who conspires with a woman in the prostitution business like pimps. 5. Failure of a responsible public officer to render accounts before leaving the country (Art. 211-A). 8. Unjust interlocutory order (Art.

31. 41. Any person who Orders or requests by executive officers to any judicial authority (Art. 37. 231). when the latter become a conspirator with a public officer. agent or subordinate official in the gov’t or any of its branches 30. or b. 225). 235). Public officer must derive his authority from: 1. Abandonment of position (Art. 227). 240). 26. 234). 243). Open disobedience (Art. The designation of the title is misleading. Removal. The public officer has to be the principal. 230). 23. popular election 3. He thus becomes a public officer because of his appointment by competent authority or because he is elected to public office. direct provision of law 2. 40. Escape of prisoner under the custody of a person not a public officer (Art. 236). 238). Prolonging performance duties and powers (Art. 25.appointment by competent authority Usurpation of legislative powers (Art. 232). 239). Performs public duties as an employee. Usurpation of functions (Art. classified or not. Anticipation of duties of a public office (Art. 32. 3019 (The AntiGraft and Corrupt Practices Act). Revelation of secrets by an officer (Art. 237). Unlawful 244). and appointments (Art. . 27. 242). 226). temporary or not. 233). Opening of closed documents (Art. Crimes under this title can be committed by public officers or a non-public officer. 28. In some cases. office of or 42. Officer breaking seal (Art. Maltreatment of prisoners (Art. 38. Refusal of assistance (Art. 39.83 Elements and Notes in Criminal Law Book II by RENE CALLANTA 22. or an accomplice. Article 203 • WHO ARE PUBLIC OFFICERS: a. concealment or destruction of documents (Art. 245). contractual or otherwise. 34. Takes part in the performance of public functions in the Government. the law makes the reference to the manner by which he is appointed to public office. 36. 241). or accessory to the crime. Abuses against chastity (Art. Refusal to discharge elective office (Art. 228). Disobeying request disqualification (Art. Public officers: embraces every public servant from the lowest to the highest rank Under Republic Act No. 33. 29. 229). the term public officer is broader and more comprehensive because it includes all persons whether an official or an employee. Usurpation of judicial functions (Art. for b. executive In defining the term “public officers”. it can even be committed by a private citizen alone such as in Article 275 (infidelity in the custody of a prisoner where the offender is not a public officer) or in Article 222 (malversation). • Notes: a. Public officer revealing secrets of private individual (Art. 24. 35. Disobedience to order of superior officer when said order was suspended by inferior officer (Art.

A government laborer is not a public officer. However. It is not presumed To be liable for the above crime. Breach of oath of office partakes of three forms: is a final consideration and determination by a court of competent jurisdiction of the issues submitted to it in an action or proceeding d. or both c. or greed against one of the parties. Malfeasance: f. It must contain a clear and distinct statement of facts proved or admitted by the defendant and upon which the judgment is based. or not supported by the evidence.84 Elements and Notes in Criminal Law Book II by RENE CALLANTA receives compensation rendered is a public officer. Nonfeasance: Malfeasance Misfeasance Nonfeasance Article 204: KNOWINGLY RENDERING UNJUST JUDGMENT • ELEMENTS: a. ill-will or revenge 3. There must be evidence that the decision rendered is unjust. Renders a judgment in the case submitted to him for judgment c. Unjust judgment: one which is contrary to law. for services • Notes: a. An unjust judgment may result from: 1. Judgment is unjust d. There must be a conscious and deliberate intent to do an injustice. temporary performance by a laborer of public functions makes him a public officer Crimes committed by public officers are nothing but corruption in public service. Judgment: c. Abuse of discretion or mere error of judgment cannot likewise serve as basis for rendering an unjust judgment in the absence of proof or even an allegation of bad faith (motive or improper consideration). Offender is a judge AN b. personally and directly prepared by the judge. not only must the judgment be proved to be unjust . Misfeasance: means improper performance of an act which might be properly be performed means performance of an act which ought not to be done means omission of an act which ought to be done Doing of an act which a public officer should not have done Improper doing of an act which a person might lawfully do Failure of an agent to perform his undertaking for the principal The law requires that the judgment must be written in the official language. and signed by him. error (with bad faith) 2. b. e. bribery d.it must likewise be established to have been knowingly rendered. revenge. e. Knowledge that the decision is unjust Article 205 JUDGMENT RENDERED THROUGH NEGLIGENCE • ELEMENTS: a. envy. Offender is a judge . This usually occurs when the judge entertains hatred.

renders a manifestly unjust interlocutory order or decree through inexcusable negligence or ignorance. That he delays administration of justice. OFFENSES. Renders a judgment in a case submitted to him for decision c. and before the Regional Trial Court and Metropolitan Trial Court. The crime of knowingly rendering an unjust judgment. That the offender is a judge. c. Maliciously tolerating commission of offenses. • Manifestly unjust judgment: one that is so contrary to law that even a person having meager knowledge of the law cannot doubt the injustice Article 207 MALICIOUS DELAY IN THE ADMINISTRATION OR JUSTICE • ELEMENTS: a. that is. That he performs any of the following acts: 1. b. These have been interpreted by the Supreme Court to refer only to judges of the trial court. It is not a final determination of the issues of the action or proceeding The Constitution provides that cases submitted for decision before the Supreme Court must be resolved within two years.85 Elements and Notes in Criminal Law Book II by RENE CALLANTA b. An appellate court functions as a division and the resolutions thereof are handed down only after deliberations among the members of a division so that it cannot be said that Article 208 PROSECUTION OF NEGLIGENCE TOLERANCE Acts Punished 1. Malice is present where the delay is sought to favor one party to the prejudice of the other. Mere delay without malice is not punishable ELEMENTS: a. That there is a proceeding in his court. Due to inexcusable negligence or ignorance there is malice or inexcusable negligence or ignorance in the rendering of a judgment or order that is supposedly unjust as held by the Supreme Court in one administrative case. Judgment is manifestly unjust d. not only one magistrate renders or issues the interlocutory order. There must be an apparent and notorious manifestation of lack of logic and false interpretation of the law. may be committed only by a judge of a trial court and never of an appellate court. knowingly renders unjust interlocutory order or decree. or knowingly issuing an unjust interlocutory order. such cases must be decided within a period of three months or ninety days. . • Interlocutory order: one issued by the court deciding a collateral or incidental matter. That the delay is malicious. the delay is caused by the judge with deliberate intent to inflict damage on either party in the case. Catral. the 2. 279 SCRA 1) Article 206 UNJUST ORDER • INTERLOCUTORY • d. such cases must be resolved within 1 year. Malice must be proven. Before the Court of Appeals. (Cortes vs. That the offender is a judge. AND Maliciously refraining from instituting prosecution against violators of the law. b. or 2. the The unjust judgment is merely the result of inexcusable negligence or ignorance of the law. The reason for this is that in appellate court. The ignorance may refer to substantive or procedural law.

He is not an accessory Article not applicable to revenue officers • • There must be a duty on the part of the public officer to prosecute or move for the prosecution of the offender. he can be prosecuted under this article. conceals. This is also true in the case of a barangay chairman. state prosecutors. he becomes a fence. 7659 on the Revised Penal Code is a new provision which reads as follows: Article. • The crime must be proved first before an officer can be convicted of dereliction of duty A public officer who harbors. or He may be held liable for violating the Anti-Graft and Corrupt Practices Act. the local chief of police is the prosecuting officer. • PREVARICACION: negligence and tolerance in the prosecution of an offense A public officer engaged in the prosecution of offenders shall maliciously tolerate the commission of crimes or refrain from prosecuting offenders or violators of the law. those officers who are not duty bound to perform these obligations cannot commit this crime in the strict sense. Illustration: The offender was caught for white slavery. Therefore. or (2) Article 19. that is. he is considered an offender under the Anti-Fencing Law. The policeman allowed the offender to go free for some consideration. (3) b. no. However. Among the amendments made by Republic Act No. This crime can only be committed by a public officer whose official duty is to prosecute offenders. Rosales.R. they can be prosecuted for this crime. that a fiscal is under no compulsion to file an information based upon a complaint if he is not convinced that the evidence before him does not warrant filing an action in court • When a policeman tolerates the commission of a crime or otherwise refrains from apprehending the offender. That the offender is a public officer or officer of the law who has a duty to cause the prosecution of. He may become a fence if the crime committed is robbery or theft. in distant provinces or municipalities where there are no municipal attorneys. Hence. 42648) or (b) knowing that a crime is about to be committed he tolerates its commission (if gift/promise is a consideration for his conduct: direct bribery) c. If he is the one who tolerates the violations of laws or otherwise allows offenders to escape. knowing the commission of the crime. when it is his duty to prosecute him is liable as principal in the crime of dereliction of duty in the prosecution of offenses. They are supposed to prosecute violators of laws within their jurisdiction. Note however. That there is dereliction of the duties of his office. he does not cause (a) the prosecution of the criminal (People vs. in which case he violates the AntiFencing Law. The policeman does not violate Article 208 but he becomes an accessory to the crime of white slavery. But in the crime of theft or robbery. where the policeman shared in the loot and allowed the offender to go free. such peace officer cannot be prosecuted for this crime but they can be prosecuted as: (1) An accessory to committed by the the crime principal in Relative to this crime under Article 208. 211-A. If they do not do so. or assists in the escape of an offender. Qualified Bribery – If any public officer is entrusted . that is. accordance with paragraph 3. consider the crime of qualified bribery. That the offender acts with malice and deliberate intent to favor the violator of the law. or to prosecute offenses.86 Elements and Notes in Criminal Law Book II by RENE CALLANTA • ELEMENTS OF DERELICTION OF DUTY IN THE PROSECUTION OF OFFENSES: a. G.

This is because in direct bribery. if the crime shall have been committed. where the public officer agreed to perform an act constituting a crime in connection with the performance of his official duties. The dereliction of duty referred to is necessarily included in the crime of qualified bribery. there must be damage to his client.87 Elements and Notes in Criminal Law Book II by RENE CALLANTA with law enforcement and he refrains from arresting or prosecuting an offender who has committed a crime punishable by Reclusion Perpetua and/or death in consideration of any offer. the public officer involved should be prosecuted also for the dereliction of duty. Causing damage to client (prejudice is essential) either 1. Undertaking the defense of the opposing party of the 1st client and/or having received confidential information from the latter and without the latter’s consent (damage not necessary) Note: When the attorney acts with malicious abuse of his employment or inexcusable negligence or ignorance. Actually the crime is a kind of direct bribery where the bribe. by inexcusable negligence or ignorance. Revealing any of the secrets of his client learned by him in his professional capacity (damage not necessary) c. If the penalty for the crime involved is reclusion perpetua. If it is the public officer who asks or demands such gift or present. the dereliction of the duty punished under Article 208 of the Revised Penal Code should be absorbed because said article punishes the public officer who “maliciously refrains from instituting prosecution for the punishment of violators of the law or shall tolerate the commission of offenses”. or 2. or present. and corruption of a public officer by the giver. promise. then such nonfeasance by the public officer would amount to direct bribery. that is refraining from arresting or prosecuting the offender in consideration for such offer. has committed a crime punishable by reclusion perpetua and/or death. he shall suffer the penalty of death. If the crime is punishable by a penalty lower than reclusion perpetua. this new provision modifies Article 210 of the Revised Penal Code on direct bribery. promise. because the latter is not absorbed by the crime of direct bribery. by any malicious breach of professional duty. three crimes are committed: direct bribery and dereliction of duty on the part of the fiscal. Apparently. refrains from prosecuting a person charged before him.” But this crime arises only when the offender whom such public officer refrains from arresting or prosecuting. the fiscal commits qualified bribery. gift or present has a consideration on the part of the public officer. he shall suffer the penalty for the offense which was not prosecuted. Illustration: A fiscal. Article 210 expressly provides that the liabilty thereunder shall be “in addition to the penalty corresponding to the crime agreed upon. which is a crime under Article 208 of the Revised Penal Code. the crime is direct bribery. In the latter situation. In a way. Under the rules on evidence. the crime of qualified bribery may be committed only by public officers “entrusted with enforcement” whose official duties authorize then to arrest or prosecute offenders. If the crime was qualified bribery. b. communications made with prospective clients to a lawyer with a view to engaging his professional services are already privileged even though the client-lawyer . Article 209 BETRAYAL OF TRUST BY AN ATTORNEY OR SOLICITOR (NOT NECESSARILY A PUBLIC OFFICER ALTHOUGH ALL LAWYERS ARE OFFICERS OF THE COURT) • ACTS PUNISHED: a. However. for a sum of money. gift. promise. not qualified bribery. they are peace officers and public prosecutors since the nonfeasance refers to “arresting or prosecuting. On the other hand. if the crime was direct bribery under Article 210 of the Revised Penal Code. If the crime were punishable by a lower penalty. offer. gift or present.

at most he will be liable administratively as a lawyer. Professional duties – Lawyer must appear on time. Here. It is not the duty of the lawyer to give advice on the commission of a future crime. or tardiness on the part of the defense counsel leading to declaration of default and adverse judgment. If it is just incidental.g. who is involved in the crime of seduction wanted A. to have a document notarized. B cannot pay the professional fee of A. But the client must have suffered damage due to the breach of professional . implies that the same is confidential. to handle his case. A lawyer who had already undertaken the case of a client cannot later on shift to the opposing party. matters that are considered confidential must have been said to the lawyer with the view of engaging his services. it is not only the lawyer who is protected by the matter of privilege but also the office staff like the secretary. then Article 209 is violated because it is enough that such confidential matters were communicated to him in his professional capacity. The lawyer is not bound by the mandate of privilege communication if he reports such commission of a future crime. came to A also and the same was accepted. he would already be violating Article 209.88 Elements and Notes in Criminal Law Book II by RENE CALLANTA relationship did not eventually materialize because the client cannot afford the fee being asked by the lawyer. suspension or disbarment under the Code of Professional Responsibility.. C. if A would reveal the confidential matter learned by him from B. The client-lawyer relationship between A and B was not yet established. a lawyer/notary public. A did not commit the crime under Article 209. However. Undertaking the defense of the opposite party in a case without the consent of the first client whose defense has already been undertaken. The breach of (2) (3) (4) (5) professional duty must be malicious. therefore. if the lawyer would reveal the same or otherwise accept a case from the adverse party. Therefore. not privileged in character. A is not bound to B. Revelation of secrets learned in his professional capacity. The nominal liability under this article may be constituted either from breach of professional duties in the handling of the case or it may arise out of the confidential relation between the lawyer and the client. It is only confidential information relating to crimes already committed that are covered by the crime of betrayal of trust if the lawyer should undertake the case of opposing party or otherwise divulge confidential information of a client. there is no trust to violate because B has not yet actually engaged the services of the lawyer A. The lawyer must have learned the confidential matter in his professional capacity. A narrated to B the detail of the criminal case. the communication shall not be considered privileged and no trust is violated. Breach of professional duty Tardiness in the prosecution of the case for which reason the case was dismissed for being non-prosecuted. If B will disclose what was narrated to him there is no betrayal of trust since B is acting as a notary public and not as a counsel. Mere malicious breach without damage is not violative of Article 209. although the lawyer’s act may be considered unethical. A received confidential information from B. the offended party. although it may be the subject of administrative discipline. Inexcusable negligence. Under the circumstances. Illustration: B. causing damage to the client. The lawyer and his secretary or clerk cannot be examined thereon. or it was made to him with a view to engaging his professional services. it is necessary that the confidential matters or information was confided to the lawyer in the latter’s professional capacity. Several acts which would make a lawyer criminally liable: (1) Maliciously causing damage to his client through a breach of his professional duty. Under the law on evidence on privileged communication. it would not give rise to criminal liability. Illustration: A went to B. e. It is. That this communication with a prospective client is considered privileged. an attorney at law. This cannot be done. Therefore. Note that only numbers 1. 2 and 3 must approximate malice. Otherwise. However. Through gross ignorance.

the offender could not have performed all the acts of execution to produce the felony without consummating the same. to refrain from doing something which is his official duty to do d. That such offer or promise be accepted or gift/present received by the public officer (mere agreement consummates the crime) Direct bribery may be committed only in the attempted and consummated stages because. He is. It cannot be said. • • Article 210 DIRECT BRIBERY • ELEMENTS: a. If the prosecutor was tardy and the case was dismissed as non-prosecuted. and the case was continued. if the lawyer disclosed the confidential information to other people. the crime was not committed. A private person may commit this crime only in the case in which custody of prisoners is entrusted to him Applicable also to assessors. but he filed a motion for reconsideration which was granted. in consideration of an execution of an act which does not constitute a crime. that one has performed all the acts of execution which would produce the felony as a consequence but for reasons independent of the will. That the offender accepts an offer or promise or receives a gift or present by himself or through another • c. the client suffered damages. Breach of confidential relation Revealing information obtained or taking advantage thereof by accepting the engagement with the adverse party. you cannot have a giver unless there is one who is willing to receive and there cannot be a receiver unless there is one willing to give. That the act which the offender agrees to perform or which he executes be connected with the performance of his official duties Bribery refers to the act of the receiver and the act of the giver is corruption of public official. therefore. That the offender be a public officer within the scope of Art 203 b. thus. Actually. temporary performance of public functions is sufficient to constitute a person a public officer. the direct bribery is already consummated. The lawyer is liable. the lawyer is not liable. The lawyer talked about this to a friend. only attempted or consummated. and there was an adverse judgment. because the client did not suffer damage. therefore. unjust (delivery consideration necessary). • For purposes of this article. he would be criminally liable even though the client did not suffer any damage. the offender must have performed all the acts of execution which would produce the felony as a consequence. It is now settled. Once there is concurrence. that the crime of bribery and corruption of public officials 1. So this crime requires two to commit. Otherwise. or of is 3. If lawyer was neglectful in filing an answer. There is no need to prove that the client suffered damages. it is possible only if the corruptor concurs with the offender. In direct bribery. in frustrated felony. but the act must be .89 Elements and Notes in Criminal Law Book II by RENE CALLANTA duty. with a view to committing some crime (delivery of consideration is not necessary) or 2. the lawyer cannot be held liable. liable. The mere breach of confidential relation is punishable. arbitrators. The client who was suing his wife disclosed that he also committed acts of unfaithfulness. In short. and his client declared in default. experts or any other person performing public duties Cannot be frustrated. appraisal and claim commissioners. In a conjugal case.

solicited by the public officer but the private person delivers it out of fear of the consequences should the public officer perform his functions (here the crime by giver is not corruption of public officials due to involuntariness) • Actual receipt of the gift is not only if acts constitutes a crime necessary. Be sure that what is involved is a crime of bribery. he shall be liable for the penalty corresponding to the crime in addition to the penalty for bribery • In direct bribery. If the records were actually removed. if the offer is not accepted. even without the delivery of the consideration. bribery is already committed on the part of the public officer. only the person offering the gift is liable for . The official did not agree to be corrupted. without delivery of the consideration. even without the public officer performing the act amounting to a crime. which is infidelity in the custody of the public records for which they shall be liable as principals. is a crime or not. If it were extortion. the crime of the public official is attempted bribery. Corruption is already committed on the part of the supposed giver. The court stenographer agreed and he demanded P 2. (2) If a public official demanded something from a taxpayer who pretended to agree and use marked money with the knowledge of the police. he. voluntarily offered by a private person b. it is not necessary that the corruptor should deliver the consideration or the doing of the act. consider whether the official act. will also be liable for the crime committed. which the public officer agreed to do.90 Elements and Notes in Criminal Law Book II by RENE CALLANTA cannot be committed in the frustrated stage because this requires two to commit and that means a meeting of the minds. one as principal by inducement. It could be in the form of money. both the public officer and the corruptor will in addition to the two felonies above. the mere agreement. Illustrations: (1) If the public official accepted the corrupt consideration and turned it over to his superior as evidence of the corruption. he allowed himself to be corrupted. brings about the crime of direct bribery and corruption of public official. the offense is attempted corruption only and not frustrated. The reason is that the agreement is a conspiracy involving the duty of a public officer. • Bribery exists when the gift is: a. the crime is not bribery. The public officer also becomes equally liable for consummated bribery. The reason is that because the giver has no intention to corrupt her and therefore. If the public officer commits the act which constitutes the crime. The moment there is a meeting of the minds. The corruptor becomes liable for consummated corruption of public official.000. An accepted offer or promise of a gift is sufficient. The mere agreement is a felony already. as well as the corruptor shall be liable also for that other crime. property or services If the act required of the public officer amounts to a crime and he commits it. he could not perform all the acts of execution.00. However. If it will amount to a crime. the other as principal by direct participation. solicited by the public officer and voluntarily delivered by the private person c. If the public officer did not report the same to his superior and actually accepted it. The one who yielded to the demand does not commit corruption of a public officer because it was involuntary. Illustrations: (1) If the corruptor offers a consideration to a custodian of a public record to remove certain files. not extortion. (2) A party litigant approached the court’s stenographer and proposed the idea of altering the transcript of stenographic notes. attempted corruption of a public officer • The gift must have a value or capable of pecuniary estimation. but robbery.

he asked who the giver was. Note however that what may begin as an indirect bribery may actually ripen into direct bribery. The same criterion will apply with respect to a public officer who agrees to refrain from performing his official duties. So they were waiting for the chance to entrap him. the crime is not committed. If he changed the transcript. there were law enforcers who already had a tip that the court stenographer had been doing this before. a gift or promise is given in consideration of the omission. a taxi operator gave an expensive suiting material to a BLT registrar. Upon receipt by the BLT registrar of his valuable suiting material. the mere agreement to do so will consummate the bribery and the corruption. If he simply accepts a gift or present given to him by reason of his public position. what originally would have been indirect bribery becomes direct bribery. the mere agreement to commit the act. it would only amount to bribery if the consideration be delivered to him. which amounts to a crime. the bribery will only arise when there is already the acceptance of the consideration because the act to be done is not a crime. he is giving this by reason of the office or position of the public officer involved. such as refraining to prosecute an offender. It is necessary that there must be delivery of monetary consideration. Here. Unless the public officer receives the consideration for doing his official duty. He is not supposed to demand additional compensation from the public before performing his public service. is already bribery. He found out that he is a taxi operator. So. As far as the giver is concerned. Under Article 210. Illustration: Without any understanding with the public officer. Bribery (210) When the victim has committed a crime and gives money/gift to avoid arrest or prosecution. If it is not a crime. there is no bribery. the public officer actually performed what he is supposed to perform. It is just that he would not perform what he is required by law to perform without an added consideration from the public which gives rise to the crime. It is just indirect bribery If the BLT registrar calls up his subordinates and said to take care of the taxis of the taxi operator so much so that the registration of the taxis is facilitated ahead of the others. • The third type of bribery and prevaricacion (art 208) are similar offenses. or if he performs what he is supposed to perform in anticipation of being paid the money. Robbery (294) When the victim did not commit a crime and he is intimidated with arrest and/or prosecution to . That stenographer becomes liable already for consummated crime of bribery and the party who agreed to give that money is already liable for consummated corruption.91 Elements and Notes in Criminal Law Book II by RENE CALLANTA Unknown to them. The prohibition will apply only when the money is delivered to him. In direct bribery however. present or consideration given to him. If the refraining is not a crime. not "in consideration" thereof. Mere agreement. They were apprehended and they said they have not done anything yet. the crime is indirect bribery.” The public officer in Indirect bribery is not to perform any official act. both consisting of omissions to do an act required to be performed. even if no money was delivered to him. So never use the term “consideration. without the acceptance. If the refraining would give rise to a crime. Bear in mind that the gift is given "by reason of his office". This is not necessary in prevaricacion Distinction between direct bribery and indirect bribery Bribery is direct when a public officer is called upon to perform or refrain from performing an official act in exchange for the gift. the consideration must be delivered by the corruptor before a public officer can be prosecuted for bribery. This is so because in the second situation. The idea of the law is that he is being paid salary for being there. even though not a single centavo is delivered yet and even though the stenographer had not yet made the alterations. another crime is committed: falsification. is not enough to constitute the crime because the act to be done in the first place is legitimate or in the performance of the official duties of the public official.

. • There is no attempted or frustrated indirect bribery The principal distinction between direct and indirect bribery is that in the former. That he accepts gifts. That the said gifts are offered to him by reason of his office. the crime is Robbery. In consideration of any offer. it is not necessary that the officer do any act. If the victim actually committed a crime. threatening to arrest him if he will not come across with some consideration. promise or gift Note that the penalty is DEATH if the public officer is the one who asks or demands such present. the crime is Bribery. par. Merely delivering the gift to the public officer does not bring about the crime. his family or employees. b. If there is only a promise of a gift or money. the officer agrees to perform or refrain from doing an act in consideration of the gift or promise. say a policeman. money or property by force or intimidation. the crime is direct bribery) c. That the offender is a public officer. The Supreme Court has laid down the rule that for indirect bribery to be committed. Otherwise it would be very easy to remove a public officer: just deliver a gift to him. • The gift is given in anticipation of future favor from the public officer Indirect bribery. the public officer receives or accepts gifts. money or anything of value by reason of his office. and the policeman demanded money so he will not be arrested. Refrains from arresting/prosecuting offender for crime punishable by reclusion perpetua and/or death (if lower penalty than stated above. no crime is committed because of the language of the law which uses the phrase “shall accept gifts. Mere physical receipt unaccompanied by any other sign. including Christmas are liable under PD 46.” • There must be clear intention on the part of the public officer to take the gift offered and consider the property as his own for that moment. the public officer must have performed an act of appropriating of the gift for himself.92 Elements and Notes in Criminal Law Book II by RENE CALLANTA deprive him of his personal property. It is sufficient that he accepts the gift offered by reason of his office Public officers receiving gifts and private persons giving gifts on any occasion. The criminal penalty or imprisonment is distinct from the administrative penalty of suspension from the service • • Article 211 INDIRECT BRIBERY • ELEMENTS: a. But if no crime has been committed and the policeman is falsely charging him of having committed one. In the latter case. Public officer entrusted with law enforcement b. c. employing intimidation and threatening to arrest the latter if he will not come across with money may be guilty of Robbery (Article 294. He need not receive the gift or present because a mere offer or promise is sufficient. Victim parts with his Victim is money or property deprived of his voluntarily. It is the act of appropriating that signifies acceptance. extorts money from a person. circumstance or act to show such acceptance is not sufficient to convict the officer • Article 211-A QUALIFIED BRIBERY • ELEMENTS: a. 5) or Bribery (Article 210). Robbery should be distinguished from Bribery where a law enforcer.

That the information can be corroborated in its material points. That the information or testimony to be given is not yet in the possession of the government or known to the government.93 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 212 CORRUPTION OFFICIALS • (2) He must willingly testify against the public officer involved in the case to be filed against the latter. It provides immunity to the bribe-giver provided he does two things: (1) He voluntarily discloses the transaction he had with the public officer constituting direct or indirect bribery. 46 (5) Presidential Decree No. OF PUBLIC ELEMENTS: a. 7080 (Plunder) Plunder is a crime defined and penalized under Republic Act No. malversation (Article 217). he is not immune from prosecution. The immunity granted the bribe-giver is limited only to the illegal transaction where the informant gave voluntarily the testimony. 7080. Presidential Decree No. or any gift-giving anniversary. regardless of whether or not the same is for past or future favors. New Year. That the offender makes offers or promises or gives gifts or present to a public officer. . acquires. he has to be charged first with the receiver. prosecutor may move for dropping bribe-giver from information and be granted immunity. or accumulates ill-gotten wealth are felonies under the Revised Penal Code like bribery (Articles 210. The giving of parties by reason of the promotion of a public official is considered a crime even though it may call for a celebration. The prohibition giving and receiving gifts given by reason of official position. That the offers or promises are made or the gifts or presents given to a public officer. The immunity in one transaction does not extend to other transactions. other frauds (Article 214). The act may or may not be accomplished (4) Presidential Decree No. These conditions are analogous to the conditions under the State Witness Rule under Criminal Procedure. 46 prohibits giving and acceptance of gifts by a public officer or to a public officer. 211-A). (3) • The offender is the giver of the gift or the offeror of the promise. b. The giving of a party is not limited to the public officer only but also to any member of his family. But first. The Presidential Decree punishes both receiver and giver. If there were other transactions where the informant also participated. 749 The decree grants immunity from prosecution to a private person or public officer who shall voluntarily give information and testify in a case of bribery or in a case involving a violation of the Anti-graft and Corrupt Practices Act. five conditions have to be met: (1) (2) Information must consummated bribery. which became effective in 1991. even during anniversary. or any other corrupt transaction. Before trial. under circumstances that will make the public officer liable for direct bribery or indirect bribery Before the bribe-giver may be dropped from the information. This crime somehow modified certain crimes in the Revised Penal Code insofar as the overt acts by which a public officer amasses. The immunity attaches only if the information given turns out to be true and correct. That the informant has not been convicted previously for any crime involving moral turpitude. 211. fraud against the public treasury [Article 213]. the public officer may even file criminal and civil actions against the informant for perjury and the immunity under the decree will not protect him. or when there is an occasion like Christmas. If the same is false. Republic Act No. refer to Information is necessary for the proper conviction of the public officer involved.

or benefit for himself or for any other person in connection with any contract or transaction between the government and any other party wherein the public officer in his official capacity has to intervene under the law. Directly. Republic Act No. misuse. or malversation of public funds or raids on the public treasury. 3. for himself or for another. or will secure or obtain. inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter. industrial. share. induced.00 is a violation of the Revised Penal Code or the Anti-Graft and Corrupt Practices Act. By obtaining. or other pecuniary or material benefit. 4. or accepting directly or indirectly any shares of stock. connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people. authority. the degree of participation and the attendance of mitigating and aggravating circumstances shall be considered by the court”. present. from any person for whom the public officer. ANTI-GRAFT AND CORRUPT PRACTICES ACT RA 3019 • Persons Liable: Any public officer who shall perform any of the following acts: 1. any Government permit or license. 7080 provides that “in the imposition of penalties. Plunder is committed through a combination or series of overt acts: (1) Through misappropriation. Persuading. has secured or obtained. plunder does not arise. gift. conversion.00 by Republic Act No. agencies or instrumentalities or governmentowned or controlled corporations and their subsidiaries. Under the law on plunder. (2) (3) (4) (5) (6) .000. share. Accepting or having any member of his family accept employment in a private enterprise which has a.000. percentage. 7659 and the penalty was changed from life imprisonment to reclusion perpetua to death. By illegal or fraudulent conveyance or disposition of asset belonging to the national government or any of its subdivisions. While the crime appears to be malum prohibitum. present. or influenced to commit such violation or offense. kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project by reason of the office or position of the public officer. relationship. in consideration for the held given or to be given. or By taking undue advantage of official position. By receiving. or allowing himself to be persuaded.00. equity or any other form of interest or participation including the promise of future employment in any business or undertaking.94 Elements and Notes in Criminal Law Book II by RENE CALLANTA when the ill-gotten wealth amounts to a total value of P50.000.000.000. in any manner of capacity. Directly or indirectly requesting or receiving any gift. The amount was reduced from P75. directly or indirectly. By establishing agricultural. Short of the amount. or commercial monopolies or other combinations and/or implementations of decrees and orders intended to benefit particular persons or special interests. percentage. receiving. 2. Any amount less than P50. any commission.000. the prescriptive period is 20 years commencing from the time of the last overt act. or indirectly requesting or receiving any gift. and the Republic of the Philippines.

b. into any contract or transaction manifestly and grossly disadvantageous to the same. 7. within the 3rd civil degree. prior to the assumption of office of . without sufficient justification. 8. including the Government. or benefit in favor of any person not qualified for or not legally entitled to such license. Any person who. or having a material interest in any transaction or act requiring the approval of a board. Any person who shall knowingly induce or cause any public official to commit any of the offenses under (A). application. or giving any private party any unwarranted benefits. of the president of the Philippines. panel. the vice-president. and which exercises discretion in such approval. This prohibition shall not apply to: 1. panel or group. from any person interested in the matter some pecuniary or material benefit or advantage. contract or transaction in connection with which he intervenes or take part in his official capacity. privilege. or of a mere representative or dummy of one who is not so qualified or entitled. for personal gain. transaction. acquired by his office or by him on account of his official position to unauthorized persons. committee. even if he votes against the same or does not participate in the action of the board. or group of which he is a member. or in which he is prohibited by the constitution or by any law from having any interest. Entering. or releasing such information in advance of its authorized release date. or pecuniary advantage from any person having some business. evident bad faith or gross inexcusable negligence. Divulging valuable information of a confidential character. Any person having family or close personal relation with any public official who shall capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present. 4) c. or contact with the government in which such public official has to intervene (Sec. Causing any undue injury to any party. gift. permit. Directly or indirectly having financial or pecuniary interest in any business. the president of the Senate. contract or application with the gov’t (Sec. 10. or advantage. by consanguinity or affinity. or for the purpose of favoring his own interest of giving undue advantage in favor of or discriminating against any other interested party. after due demand or request. 11. whether or not the public officer profited or will profit thereby. permit. 5. on behalf of the Government. 6. privilege. who shall intervene. in any business transaction. request. Knowingly approving or granting any license. Spouse or any relative. or material. Directly or indirectly becoming interested. directly or indirectly. 4) d.95 Elements and Notes in Criminal Law Book II by RENE CALLANTA pending official business with him during the pendency thereof or within one year after its termination. advantage. or speaker of the house of Representatives. Neglecting or refusing. (Sec. administrative or judicial function through manifest partiality. 5). This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. to act within a reasonable time on any matter pending before him for the purpose of obtaining directly or indirectly. or preference in the discharge of his official. 9.

The decision of the court in these cases shall be appealable to the Sandiganbayan which exercises exclusive appellate jurisdiction over them. Bank deposits in the name of or manifestly excessive expenditures incurred by the public official. Competent court: All prosecutions under this Act shall be within the original jurisdiction of the Sandiganbayan (Sec. who shall acquire or receive any personal pecuniary interest in any specific business enterprise which shall be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by Congress during his term. 11). Any act lawfully performed an official capacity or in the exercise of a profession. III. his spouse or any of their dependents including but not limited to activities in any club or association or any ostentatious display of wealth including frequent travel abroad of a non-official character by any public official when such activities entail expenses evidently out of proportion to legitimate income. • If a public official has been found to have acquired during his incumbency. when their acquisition through legitimate means cannot be satisfactorily shown. • • III. or rules or regulations issued pursuant to law. Properties in the name of the spouse and dependents of such public official may be taken into consideration. as well as upon the expiration of his term of office. contract or application already existing or pending at the time of such assumption of public office. whether in his name or in the name of other persons. exclusive jurisdiction over the case shall be vested in the proper Regional Trial Court. Any public officer who shall fail to file a true. In case none of the principal accused are occupying positions corresponding to salary grade 27 or higher. Any member of congress. has been already dealing with the gov’t along the same line of business. 7). detailed and sworn statement of assets and liabilities within 30 days after assuming office and thereafter on or before the 15th day of April following the close of every calendar year. 4. PNP officers occupying the rank of superintendent or higher of their equivalent. f. Prescription of offenses: all offenses punishable under this Act shall prescribe in 15 years (Sec. 10). 8) .96 Elements and Notes in Criminal Law Book II by RENE CALLANTA any of the above officials to whom he is related. an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income. during the term for which he has been elected. 2. IV. Prima Facie Evidence of and Dismissal due to unexplained Wealth (Sec. Any transaction. 3. Metropolitan Trial Court and Municipal Circuit Trial Court as the case may be. the approval of which is not discretionary on the part of the official(s) concerned but depends upon compliance with requisites provided by law. Exceptions: Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude of friendship according to local customs or usage. e. Any application filed by him. V. or upon his resignation or separation from office (Sec.

et al. It is enough that he . No. there are several acts defined as corrupt practices.e. Such right of the accused to challenge the validity of the information covers (a) the right to challenge the sufficiency of the recitals of the information vis-à-vis the essential elements of the offense as defined by substantive law. Sandiganbayan.”(Segovia vs. If the secretary persuaded the judge to make a favorable resolution. Illustration: “ CATCH ALL PROVISION” Section 3 (e) of the Anti-Graft and Corrupt Practices Act – causing undue injury to the government or a private party by giving unwarranted benefit to the party whom does not deserve the same.97 Elements and Notes in Criminal Law Book II by RENE CALLANTA shall be excepted from the provisions of this act (Sec. 3019. In this case. he may frustrate his prosecution to commit further acts of malfeasance or both (Bayot vs. 128 SCRA 383). or that the acts for which he stands charged do not constitute a violation of the provisions of R.. Sandiganbayan) ORTEGA NOTES: The mere act of a public officer demanding an amount from a taxpayer to whom he is to render public service does not amount to bribery. 14).00 from a litigant to set a motion for an early hearing. which would warrant his mandatory suspension from office under Section 13 of this Act. that he has not been afforded the right of due preliminary investigation. the respondent shall be automatically reinstated in the service: Provided. the period of delay shall not be counted in computing the period of suspension herein provided. In such a case. like prohibited transactions under Article 215 and 216. good faith is not a defense. the act or omission remains to be mala in se.. particularly Section 3. But there are acts penalized under the AntiGraft and Corrupt Practices Act which are not penalized under the Revised Penal Code. Once the information is found to be sufficient in form and substance. (b) the right to challenge the validity of the criminal proceedings leading to the filing of the information.. Some of them are mere repetitions of the act already penalized under the Revised Penal Code. but will amount to a violation of the Anti-graft and Corrupt Practices Act. “When the administrative case against the officer or employee under preventive suspension is not finally disposed of by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee. Sandiganbayan. However. supra). i. even if the judge did not do so. Those acts may be considered as mala prohibita. before the order of suspension is issued. the court must issue the suspension order as a matter of course and there are no ifs and buts about it (Bayot vs. it is necessary that a pre-suspension hearing be held by the court wherein the accused is afforded the opportunity to challenge the validity of the information filed against him. Rule 117 of the Rules of Court (People vs. That when the delay in the disposition of the case is due to the fault. This is direct bribery even if the act to be performed is within his official duty so long as he received a consideration therefor. Albano. it becomes incumbent upon the court to place under preventive suspension the public officer who stands accused before it. good faith is not a defense because it is in the nature of a malum prohibitum. Illustration: A court secretary received P500 . et al. this constitutes a violation of Anti-Graft and Corrupt Practices Act. and (c) the right to raise the issue that the information can be quashed under any of the grounds provided in Section 2.A. negligence or petition of the respondent. Under the Anti-Graft and Corrupt Practices Act. Criminal intent on the part of the offender is not required. Sub-Section A. Therefore. 163 SCRA 511). Once the case is filed with the Sandiganbayan. Preventive suspension is resorted to in order to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office because the presumption is that unless the accused is suspended. by express provision of the law.

Illustration: Sen. a violation of the Anti-Graft and Corrupt Practices Act is committed. His only course of action to avoid prosecution under the Anti-graft and Corrupt Practices Act is to sell his interest in the enterprise which has filed an application before that board. These cases are filed with the Ombudsman and not with the regular prosecutor’s office. The civilian agreed so he left with the thief. The prosecution shall file the case in the Regional Trial Court unless the violation carries a penalty higher than prision correccional. even though he voted against the approval of the application. even if he voted against it. in which case the Sandiganbayan has jurisdiction. which is snatching or a kind of robbery or theft as the case may be.98 Elements and Notes in Criminal Law Book II by RENE CALLANTA performed the prohibited act voluntarily. The term “prisoner” refers to one who is already booked and incarcerated no matter how short the time may be. the information shall be filed in any prosecution’s office in the city where the respondent resides. panel or group who is to act on an application of a contract and the act involved one of discretion. Or otherwise. 3019 so he was compelled to sell all his interest in that steel mill. good faith is not a defense because it is a malum prohibitum. It is the court which will order the suspension of the The same is true with the civilian because the crime committed by the offender. the public officer who is accused should not be automatically suspended upon the filing of the information in court. He was threatened with prosecution under Republic Act No. with his office and a private enterprise had a transaction and he allows a relative or member of his family to accept employment in that enterprise. Without a hearing. Illustration: A public officer was assigned to direct traffic in a very busy corner. as long as he has an interest in that business enterprise whose application is pending before that board. the prosecution shall be with the Ombudsman. So he cannot be considered as falling under the third 3rd paragraph of Article 19 that would constitute his as an accessory. the violation being mala prohibita. Jurisdiction is exclusively with the Sandiganbayan. the civilian allowed the thief to go home. the offender is not yet a prisoner so there is no accountability yet. The court will not order the suspension of the public officer without first passing upon the validity of the information filed in court. The accused public officer must be suspended when the case is already filed with the Sandiganbayan. As he could not leave his post. Firstly. public officer and not the superior of that public officer. he should resign from his public position. The fact that the government benefited out of the prohibited act is no defense at all. panel or group. the suspension would be null and void for being violative of due process. Even though the prohibited act may have benefited the government. Where the public officer is still incumbent. It is enough that that the act was performed. The civilian has no liability at all. is not one of those crimes mentioned under the third paragraph of Article 19 of the Revised Penal Code. any public officer who is a member of that board. While there. If a public officer. Dominador Aytono had an interest in the Iligan Steel Mills. he is assigned to direct traffic in a busy corner street. Under the Anti-Graft and Corrupt Practices Act. the public officer concerned shall be liable for violation of the Anti-Graft and Corrupt Practices Act. he summoned a civilian to deliver the thief to the precinct. panel or group where he is a member. As long as the court has not ordered the suspension of the public officer involved. there is no defense. The crime is still committed because the law is not after the effect of the act as long as the act is prohibited. What would be the liability of the public officer? The liability of the traffic policeman would be merely administrative. which at that time was being subject of an investigation by the Senate Committee of which he was a chairman. . he commits a violation thereof. Section 3 (g) of the Anti-Graft and Corrupt Practices Act – where a public officer entered into a contract for the government which is manifestly disadvantageous to the government even if he did not profit from the transaction. Where the public officer is a member of the board. Because the law says so. the superior of that public officer is not authorized to order the suspension simply because of the violation of the AntiGraft and Corrupt Practices Act. When they were beyond the view of the policeman. The policeman could not be said as having assisted the escape of the offender because as the problem says. he caught a thief in the act of lifting the wallet of a pedestrian. Where the respondent is separated from service and the period has not yet prescribed. panel or group.

c. The basic difference is that the preliminary investigation is conducted by the prosecutor. That he should have taken advantage of his office. Republic Act No. The law itself additionally requires that the accused’s dereliction. If the Solicitor General finds probable cause. connives with the said supplier with the intention to defraud the government. 1993. That the offender be a public officer. he would file a petition requesting the court to issue a writ commanding the respondent to show cause why the ill-gotten wealth described in the petition should not be forfeited in favor of the government. This element is indispensable. The public officer must act in his official capacity b. the neglect or refusal to act must motivated by gain or benefit. Thereafter trial would proceed. or purposely to favor the other interested party as held in Coronado v. • Notes: a. In other words. The felony is consummated by merely entering into an agreement with any interested party or speculator or by merely making use of any scheme to defraud the Government The essence of this crime is making the government pay for something not received or making it pay more than what is due.99 Elements and Notes in Criminal Law Book II by RENE CALLANTA Section 3 (f) of the Anti-Graft and Corrupt Practices Act – where the public officer neglects or refuses to act on a matter pending before him for the purpose of obtaining any pecuniary or material benefit or advantage in favor of or discriminating against another interested party. That he entered into an agreement with any interested party or speculator or made use of any other scheme with regard to (a) furnishing supplies (b) the making of contracts. Any taxpayer having knowledge that a public officer has amassed wealth out of proportion to this legitimate income may file a complaint with the prosecutor’s office of the place where the public officer resides or holds office. This occurs usually in cases where a public officer whose official duty is to procure supplies for the government or enter into contract for government transactions. or (c) the adjustment or settlement of account relating to a public property or funds. . The respondent is given 15 days to answer the petition. The prosecutor conducts a preliminary investigation just like in a criminal case and he will forward his findings to the office of the Solicitor General. This provides the procedure for forfeiture of the ill-gotten wealth in violation of the Anti-Graft and Corrupt Practices Act. 1) a. decided on August 18. That the accused had intent to defraud the government. Remember that this is not a criminal proceeding. It is also committed by refunding more than the amount which should properly be refunded. he intervened in the transaction in his official capacity. FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS Article 213 FRAUDS AGAINST PUBLIC TREASURY • ELEMENTS: (par. d. 1379 (Forfeiture of Ill-gotten Wealth) Correlate with RA 1379 -. besides being without justification. Also when certain supplies for the government are purchased for the high price but its quantity or quality is low.properly under Remedial Law. The Solicitor General will determine whether there is reasonable ground to believe that the respondent has accumulated an unexplained wealth. This is covered by the Rules on Civil Procedure. must be for the purpose of obtaining from any person interested in the matter some pecuniary or material benefit or for the purpose of favoring any interested party. SB. Judgment is rendered and appeal is just like in a civil case. that is. or discriminating against another interested party. The proceedings are civil and not criminal in nature. b.

100 Elements and Notes in Criminal Law Book II by RENE CALLANTA
Not all frauds will constitute this crime. There must be no fixed allocation or amount on the matter acted upon by the public officer. The allocation or outlay was made the basis of fraudulent quotations made by the public officer involved. For example, there was a need to put some additional lighting along a street and no one knows how much it will cost. An officer was asked to canvass the cost but he connived with the seller of light bulbs, pricing each light bulb at P550.00 instead of the actual price of P500.00. This is a case of fraud against public treasury. If there is a fixed outlay of P20,000.00 for the lighting apparatus needed and the public officer connived with the seller so that although allocation was made a lesser number was asked to be delivered, or of an inferior quality, or secondhand. In this case there is no fraud against the public treasury because there is a fixed allocation. The fraud is in the implementation of procurement. That would constitute the crime of “other fraud” in Article 214, which is in the nature of swindling or estafa. Be sure to determine whether fraud is against public treasury or one under Article 214.

things or objects of a nature different from that provided by law. • Notes:

This can only be committed principally by a public officer whose official duty is to collect taxes, license fees, import duties and other dues payable to the government. Not any public officer can commit this crime. Otherwise, it is estafa. Fixers cannot commit this crime unless he conspires with the public officer authorized to make the collection. The essence of the crime is not misappropriation of any of the amounts but the improper making of the collection which would prejudice the accounting of collected amounts by the government.

a. Mere demand of a larger or different amount is sufficient to consummate the crime. The essence is the improper collection (damage to gov’t is not required)
On the first form of illegal exaction In this form, mere demand will consummate the crime, even if the taxpayer shall refuse to come across with the amount being demanded. That will not affect the consummation of the crime. In the demand, it is not necessary that the amount being demanded is bigger than what is payable to the government. The amount being demanded maybe less than the amount due the government.

ILLEGAL EXACTIONS (par 2)
• ELEMENTS: a. The offender is a public officer entrusted with the collection of taxes, licenses, fees and other imposts. b. He is guilty of any of the following acts or omissions: 1. demanding, directly or indirectly the payment of sums different from or larger than those authorized by law, or 2. failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially, or 3. Collecting or receiving, directly or indirectly, by way of payment or otherwise,

b. If sums are received without demanding the same, a felony under this article is not committed. However, if the sum is given as a sort of gift or gratification, the crime is indirect bribery c. When there is deceit in demanding larger fees, the crime committed is estafa d. May be complexed malversation with

Note that this is often committed with malversation or estafa because when a public officer shall demand an amount different from what the law provides, it can

101 Elements and Notes in Criminal Law Book II by RENE CALLANTA
be expected that such public officer will not turn over his collection to the government. Illustrations: (1) A taxpayer goes to the local municipal treasurer to pay real estate taxes on his land. Actually, what is due the government is P400.00 only but the municipal treasurer demanded P500.00. By that demand alone, the crime of illegal exaction is already committed even though the taxpayer does not pay the P500.00. Suppose the taxpayer came across with P500.00. But the municipal treasurer, thinking that he would abstract the P100.00, issued a receipt for only P400.00. The taxpayer would naturally ask the municipal treasurer why the receipt was only for P400.00. The treasurer answered that the P100.00 is supposed to be for documentary stamps. The taxpayer left. He has a receipt for P400.00. The municipal treasurer turned over to the government coffers P400.00 because that is due the government and pocketed the P100.00. The mere fact that there was a demand for an amount different from what is due the government, the public officer already committed the crime of illegal exaction. On the P100.00 which the public officer pocketed, will it be malversation or estafa? In the example given, the public officer did not include in the official receipt the P100.00 and, therefore, it did not become part of the public funds. It remained to be private. It is the taxpayer who has been defrauded of his P100.00 because he can never claim a refund from the government for excess payment since the receipt issued to him was only P400.00 which is due the government. As far as the P100.00 is concerned, the crime committed is estafa. (3) A taxpayer pays his taxes. What is due the government is P400.00 and the public officer issues a receipt for P500.00 upon payment of the taxpayer of said amount demanded by the public officer involved. But he altered the duplicate to reflect only P400.00 and he extracted the difference of P100.00. In this case, the entire P500.00 was covered by an official receipt. That act of covering the whole amount received from the taxpayer in an official receipt will have the characteristics of becoming a part of the public funds. The crimes committed, therefore, are the following: (a) Illegal exaction – for collecting more than he is authorized to collect. The mere act of demanding is enough to constitute this crime. Falsification – because there was an alteration of official document which is the duplicate of the official receipt to show an amount less than the actual amount collected. Malversation – because of his act of misappropriating the P100.00 excess which was covered by an official receipt already, even though not payable to the government. The entire P500.00 was covered by the receipt, therefore, the whole amount became public funds. So when he appropriated the P100 for his own benefit, he was not extracting private funds anymore but public funds.

(2)

(b)

(c)

Should the falsification be complexed with the malversation? As far as the crime of illegal exaction is concerned, it will be the subject of separate accusation because there, the mere demand regardless of whether the taxpayer will pay or not, will already consummate the crime of illegal exaction. It is the breach of trust by a public officer entrusted to make the collection which is penalized under such article. The falsification or alteration made on the duplicate can not be said as a means to commit malversation. At most, the duplicate was altered in order to conceal the malversation. So it cannot be complexed with the malversation.

102 Elements and Notes in Criminal Law Book II by RENE CALLANTA
It cannot also be said that the falsification is a necessary means to commit the malversation because the public officer can misappropriate the P100.00 without any falsification. All that he has to do is to get the excess of P100.00 and misappropriate it. So the falsification is a separate accusation. However, illegal exaction may be complexed with malversation because illegal exaction is a necessary means to be able to collect the P100.00 excess which was malversed. In this crime, pay attention to whether the offender is the one charged with the collection of the tax, license or impost subject of the misappropriation. If he is not the one authorized by disposition to do the collection, the crime of illegal exaction is not committed. If it did not give rise to the crime of illegal exaction, the funds collected may not have become part of the public funds. If it had not become part of the public funds, or had not become impressed with being part of the public funds, it cannot be the subject of malversation. It will give rise to estafa or theft as the case may be. (3) The Municipal Treasurer demanded P500.00 when only P400.00 was due. He issued the receipt at P400.00 and explained to taxpayer that the P100 was for documentary stamps. The Municipal Treasurer placed the entire P500.00 in the vault of the office. When he needed money, he took the P100.00 and spent it. The following committed: (a) crimes were – for different subsequent extraction constitutes malversation. thereof

Note that numbers 1 and 2 are complexed as illegal exaction with estafa, while in number 3, malversation is a distinct offense. The issuance of the Official Receipt is the operative fact to convert the payment into public funds. The payor may demand a refund by virtue of the Official Receipt. In cases where the payor decides to let the official to “keep the change”, if the latter should pocket the excess, he shall be liable for malversation. The official has no right but the government, under the principle of accretion, as the owner of the bigger amount becomes the owner of the whole. On the second form of illegal exaction The act of receiving payment due the government without issuing a receipt will give rise to illegal exaction even though a provisional receipt has been issued. What the law requires is a receipt in the form prescribed by law, which means official receipt. Illustration: If a government cashier or officer to whom payment is made issued a receipt in his own private form, which he calls provisional, even though he has no intention of misappropriating the amount received by him, the mere fact that he issued a receipt not in the form prescribed by law, the crime of illegal exaction is committed. There must be voluntary failure to issue the Official Receipt. On the third form of illegal exaction Under the rules and regulations of the government, payment of checks not belonging to the taxpayer, but that of checks of other persons, should not be accepted to settle the obligation of that person. Illustration: A taxpayer pays his obligation with a check not his own but pertaining to another. Because of that, the check bounced later on. The crime committed is illegal exaction because the payment by check is not allowed if the check does not pertain to the taxpayer himself, unless the check is a manager’s check or a certified check, amended already as of 1990. (See the case of Roman Catholic.)

Illegal exaction demanding a amount;

(b) (c)

Estafa – for deceiving the taxpayer; and Malversation – for getting the P100.00 from the vault.

Although the excess P100.00 was not covered by the Official Receipt, it was commingled with the other public funds in the vault; hence, it became part of public funds and

103 Elements and Notes in Criminal Law Book II by RENE CALLANTA
Under Article 213, if any of these acts penalized as illegal exaction is committed by those employed in the Bureau of Customs or Bureau of Internal Revenue, the law that will apply to them will be the Revised Administrative Code or the Tariff and Customs Code or National Revenue Code. This crime does not require damage to the government.

d. That he becomes interested in the transaction during his incumbency. • Notes:

a. Examples of transactions
of exchange or speculation are: buying and selling stocks, commodities, land etc wherein one hopes to take advantage of an expected rise or fall in price b. Purchasing of stocks or shares in a company is simple investment and not a violation of the article. However, regularly buying securities for resale is speculation

Officers and employees of the BIR or Customs are not covered by the article. The NIRC or Administrative Code is the applicable law
These officers are authorized to make impositions and to enter into compromises. Because of this discretion, their demanding or collecting different from what is necessary is legal

Article 214 OTHER FRAUDS
• ELEMENTS: a. That the offender is a public officer. b. That he takes advantage of his official position.

Article 216 POSSESSION OF INTERESTS BY OFFICER

PROHIBITED A PUBLIC

Who are liable: a. Public officer – in any contract or business in which it is his official duty to intervene.

c. That he commits any of the
frauds or deceits enumerated in art. 315 to 318. (estafa; swindling) • Note: RTC has jurisdiction over the offense because the principal penalty is disqualification

b. Experts, arbitrators and private
accountants – in any contract or transaction connected with the estate or property in the approval, distribution or adjudication of which they had acted.

c. Guardians and executors – Article 215 PROHIBITED TRANSACTIONS
• ELEMENTS: a. That the offender is appointive public officer. • an with respect to property belonging to their wards or the estate. Notes: a. Actual fraud necessary. is not

b. That he becomes interested, directly or indirectly, in any transaction of exchange or speculation. c. That the transaction takes place within the territory subject to his jurisdiction.

b. Act is punished because of the possibility that fraud may be committed or that the officer may place his own interest above that of the Government or party which he represents The mere violation of the prohibition is already punished even if no actual fraud

104 Elements and Notes in Criminal Law Book II by RENE CALLANTA
occurs because of the possibility that fraud may be committed or that the officer may place his own interest above that of the government or party he represents. (U. S. vs. Udarbe, 28 Phil. 383)

MALVERSATION OF PUBLIC FUNDS OR PROPERTY Article 217 MALVERSATION OF PUBLIC FUNDS OR PROPERTY
• ELEMENTS COMMON TO ALL ACTS MALVERSATION OF PUBLIC FUNDS OR PROPERTY : a. That the offender be a public officer (or private person if entrusted with public funds or connived with public officers)

Section 14, Article VI of the Constitution No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasijudicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the government for his pecuniary benefit or where he may be called upon to act on account of his office. Section 13, Article VII of the Constitution The President, Vice-President, the Members of the Cabinet and their deputies or assistant shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. Section 2, Article IX-A of the Constitution No member of a Constitutional Commission shall, during his tenure, hold any office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which in any way may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the government, or any of its subdivisions, agencies, or instrumentalities, including governmentowned or controlled corporations or their subsidiaries.

b. That he had the custody or
control of funds or property (if not accountable for the funds, theft or qualified theft)

c. That those funds or property
were public funds or property (even if private funds if attached, seized, deposited or commingled with public funds) d. That he: 1. Appropriated funds or property 2. Took misappropriated them the or

3.

Consented or, through abandonment or negligence, permitted any other person to take such public funds or property. (it is not necessary that the offender profited thereby. His being remiss in the duty of safekeeping public funds violates the trust reposed) Concept of Malversation It consists in the misappropriation or conversion of public funds or property to one’s personal use or knowingly, or through abandonment or negligence allowing other to use or appropriate the same. The offender is made liable because of the nature of his duties to take care of the funds or property entrusted to him with the diligence of a

malversation is committed also. If he is not the one accountable but somebody else. Any public officer having custody of public funds or property for which he is accountable can commit the crime of malversation if he would misappropriate such fund or property or allow others to do so. The offender appropriates personally the funds or property. It is not necessary that the offender profited because somebody else may have misappropriated the funds in question for as long as the accountable officer was remiss in his duty of safekeeping public funds or property. the crime committed is theft. must be accountable for the funds or property misappropriated by him. it is the nature of the duties of the public officer that controls. what is controlling is whether in performing his duties as a public officer. • It can be committed either with malice or through negligence or imprudence There is no crime of malversation through negligence. While the name of the office is important. Illustration: If a sheriff levied the property of the defendants and absconded with it. For as long as the public officer is the one accountable for the fund or property that was misappropriated. disbursing officers or property custodian. Malversation Committed by accountable public officers The object is public fund or property. Accountable officer does not refer only to cashier. he has to account or is required by the nature of the performance of a duty. the crime could be theft. The seizure of the property or fund impressed it with the character of being part of the public funds it being in custodia legis. The offender must be accountable for the property misappropriated. he can be liable for the crime of malversation. malversation is not committed unless there is conspiracy. There is no crime of malversation under Article 365 – on criminal negligence – because in malversation under Article 217. When private property is attached or seized by public authority and the public officer accountable therefor misappropriates the same. plain and simple. Absent such relation. to render an account on the money or property that came into his possession. to commit malversation. He is accountable by virtue of the nature of his office to account for funds or properties that come to his possession. though public in character is the responsibility of another officer. The offender. The crime is malversation. If he is not accountable for the funds or properties and he misappropriates the same. • Malversation is embezzlement otherwise called This crime is predicated on the relationship of the offender to the property or funds involved. the same penalty is imposed whether the malversation results from negligence or was the product of deliberate act. simple or qualified. whether committed through dolo or culpa. the crime committed is estafa In determining whether the offender is liable for malversation. what is controlling is the nature of his office and not the designation Estafa It is usually committed by a private individual Funds or property of misappropriation are privately owned. Otherwise. It will be qualified theft if there is abuse of confidence. he is not liable of qualified theft but of malversation even though the property belonged to a private person. • In determining whether the offender is a public officer. He is liable for malversation if such funds were lost or otherwise misappropriated by another. Personal appropriation is not indispensable because allowing others to commit the .105 Elements and Notes in Criminal Law Book II by RENE CALLANTA good father of a family. If the fund or property. the crime will not be malversation but estafa under Article 315. • The funds or property must be received in an official capacity.

when the public officer leaves his post without locking his drawer. the denial of the request for a second audit is fatal to the cause of the prosecution because in the meantime. 1986) Note that the moment any money is commingled with the public fund even if not due the government. approximating fraud or malice Under jurisprudence. R. or the obligation to account for them. there is negligence. lack of criminal intent or good faith is a defense The failure of a public officer to have any duly forthcoming public funds or property upon demand. • The measure of negligence to be observed is the standard of care commensurate with the occasion When malversation is not committed through negligence. So that a public vault or safe should not be used to hold any fund other that what is due to the government. No. (Mahinay vs. • When a public officer has official custody or the duty to collect or receive funds due the government. the prosecution must prove the actual misappropriation of the missing funds. • There is also no malversation when the accountable officer is obliged to go out of his office and borrow the amount corresponding to the shortage and later. May 9. correctness and regularity in the conduct of audit. the legal presumption of prima facie evidence of guilt will not apply. he is liable for the loss. you do not know anymore which belong to the government and which belong to the private persons. 68233. his misappropriation of the same constitutes malversation If a public officer reports the loss of money before a cash examination is conducted and the cause of the loss as reported has a distinct ring of truth to it. In order to support conviction. However. The Sandiganbayan. G. it becomes impressed with the characteristic of being part of public funds. (Palma Gil vs. July 11. the presumption does not arise To rebut the presumption of guilt prima facie under Article 217. the accountable officer is notified. The Honorable Sandiganbayan. No. it is only mitigating • • Payment of the amount misappropriated or restitution of property misappropriated does not erase criminal liability but only civil liability. It is enough . Once they are commingled. the accused must raise the issue of accuracy. by any authorized officer. shall be prima facie evidence that he has put such missing funds or property to personal use. and during the trial. 61442. the negligence of the accountable public officer must be positively and clearly shown to be inexcusable. the evidence introduced does not establish a fact beyond reasonable doubt.106 Elements and Notes in Criminal Law Book II by RENE CALLANTA misappropriation is also malversation. if at the very moment when the shortage is discovered. some disbursement vouchers were introduced which were not considered in the first audit. 1989) • Returning the embezzled funds is not exempting. R. Thus. • In malversation thru negligence. G. People) • It is not necessary that the accountable public officer should actually misappropriate the fund or property involved.(Salvacion vs. Had the reaudit requested by the accused been accorded due course. the missing amount is found in an unaccustomed place A person whose negligence made possible the commission of malversation by another can be held liable as a principal by indispensable cooperation An accountable public officer may be convicted even if there is no direct evidence of misappropriation and the only evidence is the shortage in his account which he has not been able to explain satisfactorily. and he immediately pays the amount from his pocket. If asked for a second audit before the filing of the information against him and the same was denied. the remaining balance could have been satisfactorily accounted for.

d. Sandiganbayan) A private person may also commit malversation under the following situations: (1) (2) Conspiracy with a public officer in committing malversation. It is not necessary that the offender prevent the situation of the crime being committed because of the failure of the accountable officer to render an account. c. or to a provincial auditor. • Demand as well as damage to the government are not necessary elements Note that damage on the part of the government is not considered an essential element. the public officer applies the public funds or property under his administration to another public use different from that for which the public fund Article 219 FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY • ELEMENTS: a. which is punishable by law. Note: Demand and misappropriation are not necessary • (3) (4) It is sufficient that there is a law or regulation requiring him to render an account. b. was appropriated by law or ordinance. When the private person is made the custodian in whatever capacity of public funds or property. There is no law or regulation allowing accountable officers to extend loans to anyone against the “vales” or chits given in exchange by the borrowers. That he fails to do so for a period of two months after such accounts should be rendered. Recourse: File the proper information. When he has become an accomplice or accessory to a public officer who commits malversation. In technical malversation. whether in the service or separated therefrom. . 1. or allows any other person to take such funds or property for the latter’s own personal use. Article 218 FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS • ELEMENTS: a. It is the failure to follow the requirement of the law that is made punishable. That the offender is a public officer.107 Elements and Notes in Criminal Law Book II by RENE CALLANTA that he has violated the trust reposed on him in connection with the property. the offender misappropriates public funds or property for his own personal use. whether belonging to national or local government. Technical malversation is not included in the crime of malversation. 3. That he must be an accountable officer for public funds property. cashiers storekeepers warehousemen and those who by the nature of their position become custodian or public funds or property. That the offender is a public officer. In malversation. (Meneses vs. It is enough that the proprietary rights of the government over the funds have been disturbed through breach of trust. When he is constituted as the depositary or administrator of funds or property seized or attached by public authority even though said funds or property belong to a private individual. To tolerate such a practice is to give a license to every disbursing officer to conduct a lending operation with the use of public funds. That he is required by law or regulation to render accounts to the commission on audit. The public officers who are bound to render accounts are the following: The grant of loans through the vale system is a clear case of an accountable officer consenting to the improper or unauthorized use of public funds by other persons. and he misappropriates the same. 2. 4.

even though the application made proved to be more beneficial to public interest than the original purpose for which the amount or property was appropriated by law. The amount involved maybe immaterial but the cashier commits malversation pure and simple. That he must have unlawfully left (or be on the point of leaving) the Philippines without securing from the Commission on Audit a certificate showing that his accounts have been finally settled. asked the owner if he could possibly deposit the bags of cement in his garage to prevent the same from being wet. It is not necessary that they really misappropriated public funds. not necessarily an accountable one. not technical malversation. If the funds had been appropriated for a particular public purpose. b. the public officer involved is still liable for technical malversation. who leaves the country without first securing clearance from the Commission on Audit. and this was applied to a public purpose by the custodian thereof. If public funds were not yet appropriated by law or ordinance. the funds are merely devoted to some other public use Absence of damage is only a mitigating circumstance • • Note: The act of leaving the Philippines must be unauthorized or not permitted by law Mere leaving without securing clearance constitutes violation of the Revised Penal Code.108 Elements and Notes in Criminal Law Book II by RENE CALLANTA b. Illustration: A certain road is to be cemented. That the offender is a public officer. . The owner of the house. Instead of applying it to the public purpose to which the fund or property was already appropriated by law. What the government cashier did was to send the janitor. rain began to fall so the supervisor of the road building went to a certain house with a garage. The offender is entrusted with such fund or property only to administer or apply the same to the public purpose for which it was appropriated by law or ordinance. agreed. That there is public fund or property under his administration. it is simple malversation even if applied to other public purpose). This crime can also be committed by a private person. c. and the workers had left because it is not Article 220 ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY (technical malversation) • ELEMENTS: a. Illustration: The office lacked bond papers. Since damage is not an element of malversation. But then. just remember that in illegal use of public funds or property. That such public fund or property has been appropriated by law or ordinance (without this. Olive. told the janitor to buy bond paper so that the office will have something to use. but the same was applied to private purpose. c. the crime is plain and simple malversation. get some money from his collection. the public officer applied it to another purpose. Bags of cement were already being unloaded at the side. the offender does not derive any personal gain. That he must be an accountable officer for public funds or property. d. So the bags of cement were transferred to the garage of the private person. The term technical malversation is used because in this crime. After the public officer had left. • To distinguish this article with Art 217. the fund or property involved is already appropriated or earmarked for a certain public purpose. the crime committed is simple malversation only. That he applies the same to a public use other than for which such fund or property has been appropriated by law or ordinance. Who can commit this crime? A responsible public officer.

provincial or municipal funds. charged with the or custody of a either detention prisoner by final • Article 222 PERSONS WHO MAY BE HELD LIABLE UNDER ARTS 217 TO 221 c. the funds or property belong to private individuals. That such prisoner escaped from his custody . See Article 222. Note that when a private person is constituted as the custodian in whatever capacity. The occupant of the house accepted the money for his own use. Or 3) if they are ordered deposited pending determination of ownership in the administrative or judicial proceedings. of public funds or property. Private individual who. Offender has gov’t funds or property in his possession b. Illustration: The payroll money for a government infrastructure project on the way to the site of the project. or property b. but they are considered public funds or property if they come to the possession of the public officer because of 1) a writ of attachment. the owner of the garage started using some of the cement in paving his own garage. He is under obligation to either: 1. One of them. have charge of any national. however. the crime of malversation is also committed. The crime is not theft but malversation as long as he knew that what was entrusted in his custody is public fund or property. b. seized or deposited by public authority. in any capacity. and he misappropriates the same. or 2) if they are seized by virtue of a search warrant. They were all wounded. Administrator or depositary of funds or property that has been attached.109 Elements and Notes in Criminal Law Book II by RENE CALLANTA possible to do the cementing. That he is conveyance prisoner. a. the officers bringing the money were ambushed. That the offender is a public officer (on duty). revenue. was able to get away from the scene of the ambush until he reached a certain house. to deliver property in his custody or administration when ordered by competent authority c. Private individuals may also be liable for malversation if they act as conspirators in the commission of the crime. He told the occupant of the house to safeguard the amount because it is the payroll money of the government laborers of a particular project. INFIDELITY OF PUBLIC OFFICERS Article 223 CONNIVING WITH CONSENTING TO EVASION • OR ELEMENTS: a. make payment from such funds 2. He maliciously fails or refuses to do so Note: Penalty is based on value of funds/property to be delivered Here. prisoner or judgment. even if owned by a private individual • • Sheriffs and receivers fall under the term “administrator” A judicial administrator in charge of settling the estate of the deceased is not covered by the article Article 221 FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY ELEMENTS: a. The crime of technical malversation is also committed.

So that if a policemen on guard duty unlocked the door of the jail to let a detention prisoner go out so he can clean the premises. That the conveyance or custody of a prisoner or person under arrest is confined to him.G. d. The negligence which is punishable however is not such definite laxity at all but that which amounts to deliberate nonperformance of the jailer or the guard. charged with the or custody of a either detention prisoner by final Article 225 ESCAPE OF PRISONERS UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER • ELEMENTS: a.G. including using him as a cook is liable for faithlessness in the custody of prisoner (Art. C. c. C. the crime is not committed. (People vs. • Article 224 EVASION THROUGH NEGLIGENCE • ELEMENTS: a. 223) even though the convict may not have fled. Neither is mere leniency or laxity in the performance of duty constitutive of infidelity There is real and actual evasion of service of sentence when the custodian permits the prisoner to obtain a relaxation of his imprisonment • • A municipal mayor who utilized the prisoner’s services for domestic chores in his house. Solis. That such prisoner escapes through his negligence. prisoner or judgment. 158). • The fact that the public officer recaptured the prisoner who had escaped from his custody does not afford complete exculpation The liability of an escaping prisoner: a. (People vs. but on the latter’s third trip to a nearby faucet.110 Elements and Notes in Criminal Law Book II by RENE CALLANTA d. 580). if he is a detention prisoner. the negligence must be notorious and apparent. 38 O. Penalty based on nature of imprisonment • The article punishes a definite laxity which amounts to deliberate nonperformance of a duty . • Detention prisoner: refers to a person in legal custody. That he is conveyance prisoner. That he was in connivance with the prisoner in the latter’s escape Not every error is negligence under this article. Evangelista. That the offender consents to the escape of the prisoner or person under arrest. That the offender is a private person (note: must be on duty) b. 43 O. he does not incur criminal liability (unless cooperating with the offender). in as much as the prisoner’s leaving the prison was effected through him.A. The laxity must be definite and must seriously suggest a deliberate nonperformance of a duty. To be liable. or that the escape takes place through his negligence c. d.A. if he is a prisoner by final judgment. arrested for and charged with some crime or public offense The release of a detention prisoner who could not be delivered to judicial authorities within the time fixed by law is not infidelity in the custody of a prisoner. That the prisoner or person under arrest escapes. he walked behind the police headquarters climbed over the wall and escape. he is liable for evasion of service (art 157) b. That the offender is a public officer. b.

He commits the crime of delivering prisoners from jail. So the crime committed by him is infidelity in the custody of prisoners and bribery. Failure to do so will render the custodian liable. that according to a recent Supreme Court ruling. the crime is infidelity. But under Article 225 in infidelity. he went to a nearby house. this policeman was shot at with a view to liberate the prisoner from his custody. this crime is delivering prisoners from jail. Note that you do not apply here the principle of conspiracy that the act of one is the act of all. whether the prisoner is a convict or a detention prisoner. what is basically punished is the breach of trust because the offender is the custodian. is not the custodian. There is no criminal liability because it does not constitute negligence. The infidelity is only committed by the custodian. until the prisoner escaped. The prevailing ruling is against laxity in the handling of prisoners. the head of the family of that private house asked the prisoner if he could afford to give something so that he would allow him to go. failure to accompany The offender under this article is not the one who arrested the escaping prisoner but one who agreed to have the custody or charge of the prisoner or person under arrest. Question & Answer If a private person approached the custodian of the prisoner and for a certain consideration. The policeman fought the attacker but he was fatally wounded. What crime had been committed? It is not infidelity in the custody of prisoners because as far as the private person is concerned. The party who is not the custodian who conspired with the custodian in allowing the prisoner to escape does not commit infidelity in the custody of the prisoner. he allowed him to go.” This private persons went with the prisoner and when the money was given. if you would allow me to leave. While answering the call of nature. ORTEGA NOTES: The crime is infidelity in the custody of prisoners if the offender involved is the custodian of the prisoner. If the jail guard who allowed the prisoner to escape is already off-duty at that time and he is no longer the custodian of the prisoner. For that. A higher degree of vigilance is required. The crime of infidelity in the custody of prisoners can be committed only by the custodian of the prisoner. while performing a private function by virtue of a provision of law. Note. This crime can be committed also by a private person if the custody of the prisoner has been confided to a private person. bribery is just a means. the crime committed by him is delivering prisoners from jail. Police officer was accused of infidelity. The prisoner said. Illustration: . If the crime is delivering prisoners from jail. shall accept any consideration or gift for the non-performance of a duty confided to him. “Yes. If he violates the trust because of some consideration. After the prisoner was handcuffed in his hands. What crime/s had been committed? Under Article 225. Where such private person. Bribery is also committed. After the court hearing. under Article 156. the crime is delivering prisoners from jail under Article156. talked to the head of the family of that house and asked him if he could give the custody of the prisoner to him. the policeman expired. but not a separate charge of bribery under Article 156. however. police officer waiting there. He said yes. that would call for the imposition of a heavier penalty. Negligence contemplated here refers to deliberate abandonment of duty.111 Elements and Notes in Criminal Law Book II by RENE CALLANTA • Note: This article is not applicable if a private person made the arrest and he consented to the escape of the person he arrested A policeman escorted a prisoner to court. Illustration: A prison guard accompanied the prisoner in the toilet. When he could no longer control the prisoner. bribery is also committed. If the offender who aided or consented to the prisoner’s escaping from confinement. you can come with me and I will give the money to you. Thereafter. the crime can be committed by a private person to whom the custody of a prisoner has been confided. told the custodian to leave the door of the cell unlocked for the prisoner to escape.

pamphlets etc are not documents “Papers” would include checks. but damage to public interest may consist in mere alarm to the public or the alienation of its confidence on any branch of the government service. • • Removal of a document presupposes unlawful appropriation of the official document. c. • A post office official who retained the mail without forwarding the letters to their destination is guilty of infidelity in the custody of papers Removal of a document or paper must be for an illicit purpose. such considerations acquires the . People. If damage is caused to the public service. 64750. Destruction means to render the document useless. promissory notes and paper money • Removal of public records by the custodian does not require that the record be brought out of the premises where it is kept.R. Its nature to prove the existence of a fact is lost Infidelity in the custody of documents through destruction or concealment does not require proof of an illicit purpose Where in case for bribery or corruption. destroys or conceals a document or papers. destruction or concealment should be coupled with criminal intent or malice (Manzanaris vs. Jan. That the said document or paper should have been entrusted to such public officer by reason of his office. to secure the same from imminent danger or loss. OR DESTRUCTION OF DOCUMENTS • ELEMENTS: a. 45). destruction or concealment must cause damage to a third party or to the public interest. Prison guard should not go to any other place not officially called for. periodicals. No. to a third party or to the public interest should have been caused. G. such that it cannot anymore prove the probability or improbability of a fact in issue. This is a case of infidelity in the custody of prisoner through negligence under Article 224. That he abstracts. 74 Phil. tamper with it b. d. whether serious or not. It is immaterial whether or not the illicit purpose of the offender has been accomplished • The document must be complete and one by which a right could be established or an obligation could be extinguished Books. CONCEALMENT. 1984). the public officer is criminally liable for infidelity in the custody of official documents. Concealment on the other hand means to make it appear that the document is not available. • Removal is consummated upon removal or secreting away of the document from its usual place. Damage to a third party is usually pecuniary. et al. (Kataniag vs. the monetary considerations was marked as exhibits.112 Elements and Notes in Criminal Law Book II by RENE CALLANTA lady prisoner in the comfort room is a case of negligence and therefore the custodian is liable for infidelity in the custody of prisoner. It is enough that the record be removed from the place where it should be and transferred to another place where it is not supposed to be kept. b. That damage. The act of obstruction. to commit any act constituting a breech of trust in the official thereof The act of removal. • If the removal of the document is for a lawful purpose and that is. to profit by it c. Sandiganbayan. That the offender be a public officer. there is no crime committed under the law. • There is illicit purpose when the intention of the offender is to: a.. 30. INFIDELITY IN CUSTODY OF DOCUMENTS Article 226 REMOVAL.

In estafa. estafa and malicious mischief In infidelity in the custody of public document. damage is presumed • • Delivering the document to the wrong party is infidelity in the custody thereof The damage may either be great or small • Damage to public interest is necessary. . the offender purposely destroyed and damaged the property/document. Example. That he is charged with the custody of papers or property. d. Public trust is already violated if he managed to look into the contents of the document. • The offender must be in custody of such documents Distinction between infidelity in the custody of public document. • It is the breaking of the seals and not the opening of a closed envelope which is punished Damage or intent to cause damage is not necessary. Illustration: As regard the payroll. because the money adduced as exhibits partake the nature of a document and not as money. That these papers or property are sealed by proper authority. mere delay in rendering public service is considered damage. c. b. That the offender is a public officer. which has not been signed by the Mayor. The offender does not have to misappropriate the same. the element of damage is not required. However. because the custodian managed to open the parcel without breaking the seal. If the writings are mere form. Although there is no material damage caused. If the official document is sealed or otherwise placed in an official envelope. There is theft if there is intent to gain when the offender took the money. the word "breaking" should not be given a literal meaning. A crime is already committed regardless of whether the contents of the document are secret or private. there is no crime. Even if actually. Distinction between infidelity and theft There is infidelity if the offender opened the letter but did not take the same. Although such monetary consideration acquires the nature of a document.113 Elements and Notes in Criminal Law Book II by RENE CALLANTA nature of a document such that if the same would be spent by the custodian the crime is not malversation but Infidelity in the custody of public records. no infidelity is committed because the document is not yet a payroll in the legal sense since the document has not been signed yet. Just trying to discover or look what is inside is infidelity already. photocopies may be presented in evidence. Note that the document must be complete in legal sense. the best evidence rule does not apply here. the seal was not broken. In "breaking of seal". That he breaks the seals or permits them to be broken. the offender is the custodian of the official document removed or concealed. the offender is not the custodian of the document removed or concealed. Article 228 OPENING DOCUMENTS • OF CLOSED ELEMENTS: a. It is enough that it is entrusted to him in a sealed form or in a closed envelope and he broke the seal or opened the envelop. That the offender is a public officer. The mere breaking of the seal or the mere opening of the document would already bring about infidelity even though no damage has been suffered by anyone or by the public at large. material damage is not necessary. In malicious mischief. Article 227 OFFICER BREAKING SEAL • ELEMENTS : a.

Secrets of a private individual is not included c. That he opens or permits to be opened said closed papers. If regarding military secrets or secrets affecting state security. documents. and the public officer having charge thereof removes and delivers them wrongfully to a third person. That any closed papers. In both offenses. That the delivery is wrongful. revelation of the same is classified as espionage. a crime in violation of the national security of the State. d. If the papers contain secrets which should not be published. • Note: Damage also not necessary In Article 227 . It does not include secret information regarding private individuals. b. their removal for an illicit purpose is infidelity in the custody of documents The secrets referred to in this article are those which have an official or public character. (damage is essential) • Notes: a. e. d. Notes: That damage be caused to public interest. c. be caused to the public interest. b. documents or objects. That damage. b. That the offender is a public officer. REVELATION OF SECRETS Article 229 REVELATION OF SECRET BY AN OFFICER • ELEMENTS OF PAR. Secret must affect public interest • c. d. he is not liable under this article b. That the offender is a public officer. the crime may be espionage. “Charge”: means custody or control.1: BY REASON OF HIS OFFICIAL CAPACITY a. Espionage for the benefit of another State is not contemplated by the article. the mere opening of closed documents is enough to hold the offender criminally liable. That he does not have proper authority. if the papers do not contain secrets. If he is merely entrusted with the papers and not with the custody thereof. a. the mere breaking of the seal is what is made punishable while in Article 228 . The breaking of the seal or the opening of the closed document must be done without lawful authority or order from competent authority. On the other hand. c. That he knows of a secret by reason of his official capacity. That those papers should not be published. • ELEMENTS OF PAR 2 – DELIVERING WRONGFULLY PAPERS OR COPIES OF PAPERS OF WHICH HE MAY HAVE CHARGE AND WHICH SHOULD NOT BE PUBLISHED: a. That he reveals such secret without authority or justifiable reasons. damage to the public interest is not required. Nor does it include military or State secrets in as much as the .114 Elements and Notes in Criminal Law Book II by RENE CALLANTA b. That he has charge of papers. f. great or small. That he delivers those papers or copies thereof to a third person. the crime is revelation of secrets. or objects are entrusted to his custody.

decision or order was made within the scope of the jurisdiction of the superior authority and issued with all the legal formalities. c. • • Revelation to one person is sufficient If the offender is an attorney. he is afforded an opportunity to suspend the execution of the order. Damage is essential to the act committed The gravamen of the offense is the open refusal of the offender to execute the order without justifiable reason. he is properly liable under Art 209 (betrayal of trust by an attorney) Damage to private individual is not necessary Article 232 DISOBEDIENCE TO ORDER OF SUPERIOR OFFICER WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER • ELEMENTS: a. c. decision or order may also direct the nonperformance of an act. That he reveals such secrets without authority or justification reason. so as to give him time to further study the same. That his superior disapproves the suspension of the execution of the order. That such judgment. That the offender disobeys his superior despite the disapproval of the suspension. if he continues to suspend the execution of the order notwithstanding the disapproval by his . e. He commits no crime for doing this act. that the offender without any legal justification openly refuses to execute the said judgment. b. d. That the offender is a public officer. decision or order which he is duty bound to obey. That the offender is a public officer b. c.115 Elements and Notes in Criminal Law Book II by RENE CALLANTA c. That he knows of the secret of a private individual by reason of his office. decision or order of superior authority. • Note: A public officer is not liable if the order of the superior is illegal What is contemplated here is a situation where the subordinate has some doubts regarding the legality of the order. Article 230 PUBLIC OFFICER SECRETS OF INDIVIDUAL • REVEALING PRIVATE • Note: Judgment should have been rendered in a hearing and issued within proper jurisdiction with all legal solemnities required ELEMENTS: a. The term “execute” as found in the law does not only means performance of an act since the judgment. Hence. • OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS Article 231 OPEN DISOBEDIENCE • ELEMENTS: a. That he has for any reason suspended the execution of such order. That there is a judgment. d. That the offender is a judicial or executive officer. b. The article does not apply to the members of Congress. However. That an order is issued by his superior for execution.

116 Elements and Notes in Criminal Law Book II by RENE CALLANTA superior of the stay of the execution. the remedy may not be limited to incurring criminal liability under this article because the refusal may already be punished as direct or indirect contempt of court. Competent authority may refer to persons in authority who are charged by the law to help in the administration of justice. Note that the refusal must be done with malice. But the penalty is affected by the seriousness of the damage. That he has under charge a prisoner or detention prisoner (otherwise the crime is physical injuries) c. That the offender fails to do so maliciously. b. That a competent authority demands from the offender that he lend his cooperation towards the administration of justice or other public service. The term may refer to police authorities. That he refuses to be sworn in or discharge the duties of said office. when a case under investigation reaches the court. Damage is essential whether great or small. then his refusal to perform such duty is punishable under the law. Article 233 REFUSAL OF ASSISTANCE • ELEMENTS: a. He tried to assail the subpoena so that ultimately the case would be dismissed. However. b. to testify against the offenders. it becomes his duty to render public service. That the offender is a public officer or employee. After proclamation of a candidate to a public office. c. which a policeman may commit when. That he maltreats such prisoner in either of the following manners: . That there is no legal motive for such refusal to be sworn in or to discharge the duties of said office. • Demand is necessary • Note: Even if the person did not run for the office on his own will as the Constitution provides that every citizen may be required to render service The situation contemplated herein may refer to the administration of justice before the case is filed in court. being subpoenaed to appear in court in connection with a crime investigated by him but because of some arrangement with the offenders. Since it is his duty. It was already held that the policeman could be prosecuted under this crime of refusal of assistance and not that of dereliction of duty. b. This is a crime. such refusal on his part already constitutes a crime punishable under this article. That the offender is a public officer. c. the policeman does not appear in court anymore Article 235 MALTREATMENT OF PRISONERS • ELEMENTS: a. • • Involves a request from one public officer to another Damage to the public interest or third party is essential Article 234 REFUSAL TO ELECTIVE OFFICE • DISCHARGE ELEMENTS: a. That the offender is elected by popular election to a public office.

That the law requires that he should first be sworn in and/or should first give a bond. This is not maltreatment of prisoner because the offender is not the custodian. either by election or appointment. or by inflicting such punishments (those authorized) in a cruel and humiliating manner.G. The other policeman would then tell. et al. turned over to the custodian of that police precinct. If a Barangay Captain maltreats a person after the latter’s arrest but before confinement. By overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge either –  by the imposition of punishments not authorized by the regulations. • Offender may also be held liable for physical injuries or damage caused Article 236 ANTICIPATION OF DUTIES OF A PUBLIC OFFICE • ELEMENTS: a. (People vs. the person arrested must . c. • To be considered a detention prisoner.That the offender is entitled to hold a public office or employment. and he manhandles the latter. The penalty is qualified to the next higher degree. it prohibits the complexing of the crime. by maltreating such prisoner to extort a confession or to obtain some information from the prisoner. “What is this fellow doing here? What crime has he committed?”. he would inflict injury to him.. The victim must actually be confined either as a convict or a detention prisoner for Art. 37 O. Illustration: A certain snatcher was arrested by a law enforcer. But if the custodian is present there and he allowed it. Any kind of punishment not authorized or though authorized if executed in excess of the prescribed degree. 235 to apply. But if as a result of the maltreatment. the constitutional right of the prisoner is further violated. but not for maltreatment because it was not the custodian who inflicted the injury. The mere fact that a private citizen had been apprehended or arrested by a law enforcer does not constitute him a prisoner. therefore. physical injuries were caused to the prisoner. But if it is the custodian who effected the maltreatment.” So every time a policeman would come in. Every time a policeman entered the police precinct. brought to the police precinct. he would ask. he must have been booked and incarcerated no matter how short it is. the crime is physical injuries. To be a prisoner. • The public officer must have actual charge of the prisoner in order to be held liable If the public officer is not the custodian of the prisoner. the crime will be maltreatment of prisoners plus a separate charge for physical injuries. the offense is not maltreatment but physical injuries. Baring. then he will be liable also for the physical injuries inflicted. or be placed in jail even for just a short while The offended party here must be a prisoner in the legal sense. “This fellow is a snatcher. That he assumes the performance of the duties and powers of such office. a separate crime for the physical injuries shall be filed.  2.That he has not taken his oath of office and /or given the bond required by law. You do not complex the crime of physical injuries with the maltreatment because the way Article 235 is worded. The crime is only physical injuries. d. b. The maltreatment does not really require physical injuries. If the maltreatment was done in order to extort confession.117 Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. 1366).

b. disloyalty to public officers m. That his resignation has not yet been accepted. correspondence with hostile country h. rebellion k. Article 239 USURPATION POWERS OF LEGISLATIVE ELEMENTS: a. That he formally resigns from his position. The law is intended to put an end to the “principle of hold – over”. inciting to rebellion n. sedition o. inciting to sedition The crime is committed only if the public officer has lost every right to the office because there are offices which require the officer to continue serving as such properly relieved. That the offender is a public officer. The resignation must be in writing and directed to the appointing power who has the authority to accept or disapprove the same. • There must be formal or written resignation Abandonment of Office or Position Dereli (238) There is actual abandonment through Public officer d resignation to evade the discharge of but merely fails duties. That he continues to exercise the duties and powers of such office. the law. misprision of treason d. That he abandons his office to the detriment of the public service. inciting to war or giving motives to reprisals f. violation of neutrality g. piracy and mutiny on the high seas j. That he (a. prosecuting or punishing any of the crimes against national security. b. That the offender is executive or judicial officer. b. This requirement is indispensable because the letter of resignation goes into a process. espionage e.118 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 237 PROLONGING PERFORMANCE OF DUTIES AND POWERS • ELEMENTS: a. separated or declared over-aged or dismissed • The offense is qualified if the purpose behind the abandonment is to evade the discharge of duties consisting of preventing. conspiracy and proposal to commit rebellion l. c.) makes general rules or regulations beyond the scope of his authority or (b. c. flight to enemy country i. • Note: The article contemplates officers who have been suspended. conspiracy and proposal to commit conspiracy c. d. an Oral resignation is not allowed. Article 240 USURPATION OF EXECUTIVE FUNCTIONS . That the offender is holding a public office. This involves the following crimes: a. regulations or special provisions for holding such office has already expired. conspiracy to commit sedition p. Article 238 ABANDONMENT OF OFFICE OR POSITION ELEMENTS: a. treason b.) attempts to repeal a law or (c.) suspends the execution thereof. That the period provided by law. The penalty is higher ( one degree ).

That he (a. which is not yet decided. or (b. That such person lacks the legal qualification therefor. That he proceeding. Article 241 USURPATION OF JUDICIAL FUNCTIONS ELEMENTS: a. c. b. That he addresses any order or suggestion to any judicial authority. That the offender is a public officer. FOR ELEMENTS: a. • d.) assumes a power pertaining to the executive authorities. c. b. b. That he has been lawfully required to refrain from continuing the proceeding. That the offender is an officer of the executive branch of the government.” To nominate is to . That the offender is an executive officer. That the offender is a public officer. d.) obstruct the execution of any order decision rendered by any judge within his jurisdiction.119 Elements and Notes in Criminal Law Book II by RENE CALLANTA e. b. ELEMENTS: a. knowing that the person recommended is not qualified is not a crime The word “nominate” is not the same as “recommend. b. That the order or suggestion relates to any case or business coming within the exclusive jurisdiction of the courts of justice. or (b. c. That he nominates or appoints a person to a public office. That the offender is a judge. continues the • Note: Legislative officers are not liable for usurpation of executive functions Even if the jurisdiction of the offender is later upheld or sustained. That a proceeding is pending before such public officer.) assumes judicial powers. That he (a. That there is a question brought before the proper authority regarding his jurisdiction. • Note: A mayor is guilty under this article when he investigates a case while a justice of the peace is in the municipality • Note: Legislative or judicial officers are not liable under this article Article 244 UNLAWFUL APPOINTMENTS Article 242 DISOBEYING REQUEST DISQUALIFICATION ELEMENTS: a. Article 243 ORDERS OR REQUESTS BY EXECUTIVE OFFICER TO ANY JUDICIAL AUTHORITY ELEMENTS: a. Recommending. but whether he obeyed or disobeyed the temporary restraining order issued by the higher authority.) obstructs executive authorities in the lawful exercise of their powers. he is still liable because what is in issue is not the legality of his jurisdiction. That the offender knows that his nominee or appointee lacks the qualification at the time he made the nomination or appointment.

• There must be a law providing for the qualifications of a person to be nominated or appointed to a public office This crime is also committed if the woman is a prisoner and the offender is her jail warden or custodian. Otherwise. • The mother of the person in the custody of the public officer is not included This crime cannot be committed if the warden is a woman and the prisoner is a man. • The crime is consummated by mere proposal It is not necessarily for the offended party to surrender her virtue to consummate the crime. or 3. . If the woman did not agree and the public officer involved pushed through with the advances. or even if the prisoner may be a man if the jail warden would make the immoral solicitations upon the wife. Recommendation on the other hand does not make any guarantee as to the legal fitness of the candidate to public office. Mere indecent solicitation or advances of a woman over whom the public officer exercises a certain influence because the woman is involved in a case where the offender is to make a report of result with superiors or otherwise a case which the offender was investigating. The word “solicit” means to demand earnestly. sister or relative within the same degree by affinity of the person in the custody of the offender Only a lady can be a complainant here so that a gay guard or warden who makes immoral proposals or indecent advances to a male prisoner is not liable under this law. the demand is for sexual favor. It is immaterial whether the woman did not agree or agreed to the solicitation. That he solicits or makes immoral or indecent advances to a woman. If the warden is also a woman but is a lesbian. abuse against chastity is committed. So the custodian is not supposed to interfere. the wife. advantage or preference to a person under his custody. daughter. a prisoner is an accountability of the government. he is not supposed to do that. Legally. • Solicit: means to propose earnestly and persistently something unchaste and immoral to a woman c. Even if the woman may have lied with the hearing officer or to the public officer and acceded to him. It must be immoral or indecent and done by the public officer taking advantage of his position as one who can help by rendering a favorable decision or unwarranted benefits. under the custody of the offender who is a warden or other public officer directly charged with care and custody of prisoners or person under arrest. b. Even if the prisoner may like it. that does not change the crime because the crime seeks to penalize the taking advantage of official duties. attempted rape may have been committed. In this case. Mere proposal is sufficient to consummate the crime.120 Elements and Notes in Criminal Law Book II by RENE CALLANTA guarantee to the appointing power that the person nominated has all the qualifications to the office. daughter. That such woman must be – 1. That the offender is a public officer. or relative by affinity within the same degree of the prisoner involved. sister. it is submitted that this crime could be committed. or with respect to which he is required to submit a report to or consult with a superior officer. Men have no chastity. as the law does not require that the custodian be a man but requires that the offended be a woman. Article 245 ABUSES AGAINST CHASTITY ELEMENTS: a. or 2. interested in matters pending before the offender for decision.

2. or otherwise requires any sexual favor from the other regardless of whether the demand. 261). Duel (Art. Abortion practiced by a physician or midwife and dispensing of abortives (Art. 9. 253). or granting of scholarship or honors. 4. benefits. Unintentional 257). 260). influence or moral ascendancy over another in a work. 6. rape aside from abuse against chastity. Complaints to be handled by a committee on decorum. allowances. Death caused in a tumultuous affray (Art. or payment of a stipend. Physical injuries inflicted in a tumultuous affray (Art. Infanticide (Art. 10. 249). 246). 7. requests. 8. 254). training or education environment when he or she demands. favorable compensation terms. Giving assistance to suicide (Art. Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment. Challenging to a duel (Art. 255). • Proof of solicitation is not necessary when there is sexual intercourse Republic Act No. abortion (Art. 12. or who cooperates in the commission. Homicide (Art. You cannot consider the abuse against chastity as absorbed in the rape because the basis of penalizing the acts is different from each other. Intentional abortion (Art. Also holds liable any person who directs or induces another to commit any act of sexual harassment. that is. 248). Committed by any person having authority. considerations. request or requirement for submission is accepted by the object of the said act (for a passing grade. Murder (Art. Abortion practiced by the woman herself or by her parents (Art. 258). 251). Parricide (Art. 3. 11. conditions. which shall be determined by rules and regulations on such. . 14. 256). another crime is committed. promotions or when the refusal to do so results in a detrimental consequence for the victim). 7877 Sexual Harassment Act) (AntiTITLE EIGHT CRIMES AGAINST PERSONS Crimes against persons 1. educational or training institution solidarily. 13. 259). 252). 5.121 Elements and Notes in Criminal Law Book II by RENE CALLANTA If he forced himself against the will of the woman. Discharge of firearms (Art. the head of the office.

18. The relationship of the offender with the victim is the essential element of the felony The relationship must be in the direct line and not in the collateral line. the crime cannot be parricide anymore because of the intervening illegitimacy. The relationship between A and D is no longer legitimate. 265). Serious physical injuries (Art. the crime is infanticide and intent to conceal her dishonor is considered mitigating. On the other hand. great grandparents. mother. the information should allege the fact of such valid marriage between the accused and the victim. Administering injurious substances or beverages (Art.122 Elements and Notes in Criminal Law Book II by RENE CALLANTA 15. Slight physical injuries and maltreatment (Art. great grandchildren. 17. Hence. 3. the father. 2. or a legitimate other ascendant or other descendant. the crime committed is homicide or murder. Parents and children are not included in the term “ascendants” or “descendants” 3. are separated by an intervening illegitimate relationship. would kill A. If D. or child. it was held that if the information did not allege that the accused was legally married to the victim. 5. except when the offender and the offended party are related as parent and child. Except between husband and wife. 16. The child should not be less than 3 days old. 264). grandchildren. or the legitimate spouse of the accused. etc. DESTRUCTION OF LIFE Article 246 PARRICIDE ELEMENTS: 1. 20. This is immaterial to the crime of parricide. That a person is killed. 19. Otherwise. he could not be convicted of parricide even . That the deceased is killed by the accused. Mutilation (Art. A. who killed the legitimate father of the latter. 266). Relationship alleged must be In killing a spouse. unlike in the case of infanticide. the grandmother. although related by blood and in the direct line. The same is true with other descendants – that is. the illegitimate daughter. In a ruling by the Supreme Court. is not guilty of Parricide because in case of other ascendants (grandparents.). 2. B married C and they begot a legitimate child D. the relationship with the killer must be legitimate. an illegitimate son of B. 263). the offense is infanticide That the mother killed her child in order to conceal her dishonor is not mitigating. 262). The illegitimate relationship between the child and the parent renders all relatives after the child in the direct line to be illegitimate too. Notes: 1. daughter of B and C. etc. 4. mother or child may legitimate or illegitimate be If the offender and the offended party. 266-A). whether legitimate or illegitimate. the offender must be related to the offended party by blood. That the deceased is the father. If the child is less than three days old when killed. The other ascendant or descendant must be legitimate. and Rape (Art. Also. Illustration: A is the parent of B. there must be a valid subsisting marriage at the time of the killing. The relationship between the offender and the offended party must be legitimate. Less serious physical injuries (Art. The only illegitimate relationship that can bring about parricide is that between parents and illegitimate children as the offender and the offended parties. parricide can no longer be committed.

The Supreme Court has also ruled that Muslim husbands with several wives can be convicted of parricide only in case the first wife is killed. This is demonstrated in a situation where a person wanting to kill a stranger. Illustration: A spouse of B conspires with C to kill B. as a stranger who cooperated in the killing. Even if the offender did not know that the person he had killed is his son. he is still liable for parricide because the law does not require knowledge of the relationship Article 365 expressly provides that parricide can be committed through reckless imprudence. 6. or that he has not consented to the infidelity of the other spouse. as the case may be. This is so because a Catholic man can commit the crime only once. in effect. more of an exempting circumstance as the penalty is intended more for the protection of the accused than a punishment. The rule of conspiracy that the act of one is the act of all does not apply here because of the personal relationship of the offender to the offended party. It is therefore parricide. He has not promoted or facilitated the prostitution of his wife or daughter. The penalty will If the accused fails to establish the circumstances called for in Article 247. Not necessary that the parent be legitimate . C is the stranger in the relationship. he/she will be guilty of Parricide and Murder or Homicide if the victims were killed. insofar as C is concerned. There is no parricide if the other wives are killed although their marriage is recognized as valid. Article does not define or penalize a felony Article 247. kills his own father by mistake. the crime is based on his relationship with B. he cannot be held liable for parricide. Although the crime committed is parricide. which prescribes a penalty much lower than that provided under Article 246. His participation would make him liable for murder or for homicide. parricide can be committed by mistake. relationship shall be appreciated as generic aggravating circumstance. 7. treachery becomes a qualifying circumstance. Article 247 DEATH OR PHYSICAL INJURIES UNDER EXCEPTIONAL CIRCUMSTANCES Requisites: 1. As far as A is concerned. not be under Article 246 but under Article 365. C killed B with treachery. Similarly. Death under exceptional character can not be qualified by either aggravating or mitigating circumstances.123 Elements and Notes in Criminal Law Book II by RENE CALLANTA if the marriage was established during the trial. 2. The means employed is made known to A and A agreed that the killing will be done by poisoning. In such cases. A stranger who cooperates in committing parricide is liable for murder or homicide Since parricide is a crime of relationship. Notes: 1. the offender will not be punished under Article 246 but under Article 49. he is being punished for the marriage which the law itself authorized him to contract. far from defining a felony merely grants a privilege or benefit. He/she kills any or both of them or inflicts upon any or both of them any serious physical injury in the act or immediately thereafter 3. if a stranger conspired in the commission of the crime. The treachery that was employed in killing Bong will only be generic aggravating circumstance in the crime of parricide because this is not one crime that requires a qualifying circumstance. But that same treachery. A legally married person or parent surprises his spouse or daughter (the latter must be under 18 and living with them) in the act of committing sexual intercourse with another person 2. If a Muslim husband could commit this crime more than once. makes the crime murder.

It is enough that he/she surprised them under such circumstances that no other reasonable conclusion can be inferred but that a carnal act was being performed or has just been committed. However. The killing should have been actually motivated by the same blind impulse. two persons suffered physical injuries as they were caught in the crossfire when the accused shot the victim. 9. In other words.124 Elements and Notes in Criminal Law Book II by RENE CALLANTA 3. Immediately thereafter: means that the discovery. the accused did not commit murder when he fired at the paramour of his wife. it must be a continuous process. there should be no break of time. less serious physical injuries through simple negligence. pursuit and the killing must all form parts of one continuous act . 4. killed them. the accused must first be charged with: (1) Parricide – if the spouse is killed. No criminal liability is incurred when less serious or slight physical injuries are inflicted. Sexual intercourse does not include preparatory acts So if the surprising took place before any actual sexual intercourse could be done because the parties are only in their preliminaries. 153 SCRA 735. and believing the woman to be his wife. the accused is not liable. A complex crime of double frustrated murder was not committed as the accused did not have the intent to kill the two victims. Art 247 is applicable when the accused did not see his spouse in the act sexual intercourse with another person. escape. A person who acts under Article 247 is not committing a crime. second paragraph of Article 365. What is required is that the killing is the proximate result of the outrage overwhelming the accused upon the discovery of the infidelity of his spouse. this article may be applied if the mistake of facts is proved. The accused was held liable for negligence under the first part. 6. 7. The killing must be the direct by-product of the rage of the accused Article 247 does not provide that the victim is to be killed instantly by the accused after surprising his spouse in the act of intercourse. that is. If there was already a break of time between the sexual act and the killing or inflicting of the injury. it is enough that circumstances reasonably show that the carnal act is being committed or has been committed It is not necessary that the spouse actually saw the sexual intercourse being committed. the article cannot be invoked anymore. Abarca. Inflicting death under exceptional circumstances is not murder. Since this is merely an exempting circumstance. the article will not apply anymore. Moreover. the law presupposes that the offender regained his reason and therefore. If the offender surprised a couple in sexual intercourse. Surprise: means come upon suddenly unexpectedly to or 5. Article applies only when the daughter is single The phrase “immediately thereafter” has been interpreted to mean that between the surprising and the killing of the inflicting of the physical injury. The article does not apply where the wife was not surprised in flagrant adultery but was being abused by a man as in this case there will be defense of relation. Here. in case third persons caught in the crossfire suffer physical injuries. No aberratio ictus because he was acting lawfully. The principle that one is liable for the consequences of his felonious act is not applicable because he is not committing a felony In the case of People v. 8. The benefits of this article do not apply to the person who consented to the infidelity of his spouse or who facilitated the prostitution of his wife.

48) 3. it would be attempted or frustrated murder Killing a person with treachery is murder even if there is no intent to kill. or employing means to weaken the defense or of means or persons to insure or afford impunity b. 530) 2. eruption of a volcano. by means of inundation. any of the following qualifying circumstances is present: . 92 Phil. derailment or assault upon a street car or locomotive. it would seem that if the killers constituted a band. (People vs. there is no criminal liability. If the crime committed is less serious physical injuries or slight physical injuries. with cruelty. with the aid or armed men. with treachery. Ortega Notes: In murder. Remalante. Notes: Article 248 MURDER ELEMENTS : 1. by means of motor vehicles or with the use of any other means involving great waste or ruin d. 3. stranding of vessel. fire. if a third party is injured. 2. Cagoco.125 Elements and Notes in Criminal Law Book II by RENE CALLANTA (2) Murder or homicide – depending on how the killing was done insofar as the paramour or the mistress is concerned. Homicide – through simple negligence. 58 Phil. taking advantage of superior strength. there is criminal liability although the penalty is only destierro. fall of airship. if a third party is killed. While the circumstance of “by a band” is not among those enumerated that could qualify killing to murder. Treachery and premeditation are inherent in murder with the use of poison c. 1. 4. on occasion of any of the calamities enumerated in the preceding paragraph. The victim must be killed in order to consummate the offense. Otherwise. poison. destructive cyclone. shipwreck. or of an earthquake. by deliberately and inhumanely augmenting the suffering of the victim or outraging or scoffing at his person or corpse is not parricide or (3) (4) Physical injuries – through reckless imprudence. The killing infanticide. If death results or the physical injuries are serious. That a person was killed. the crime is murder because the circumstance of “with the aid of armed men” is included in the qualifying circumstances. Any of the qualifying circumstances must be alleged in the information. The banishment is intended more for the protection of the offender rather than a penalty. That the accused killed him. Otherwise. (People vs. in consideration reward or promise of price. they cannot be treated or separated as generic aggravating circumstances. epidemic or any other public calamity e. explosion. with evident premeditation f. they will only be considered as generic aggravating circumstances When the other circumstances are absorbed or included in one qualifying circumstance. That the killing was attended by any of the following qualifying circumstances a.

. One attendant qualifying circumstance is enough. This is based on the rule that a person committing a felony shall be liable for the consequences thereof although different from that which he intended.126 Elements and Notes in Criminal Law Book II by RENE CALLANTA (1) Treachery. or of means or persons to insure or afford impunity. Instead. One might think the killing is homicide unless nocturnity is considered as constituting treachery. But if the victim was able to put up an unsuccessful resistance. murder cannot be committed if at the beginning. not alleged. It is a matter of whether or not the offended party was denied the chance of defending himself. form in executing the crime deliberately adopted by the offender. in which case the crime is murder. the offended had no intent to kill because the qualifying circumstances must be resorted to with a view of killing the offended party. although unsuccessful. The essence of treachery is that the offended party was denied the chance to defend himself because of the means. The treachery must be alleged in the information. taking advantage of superior strength. methods. was established during the trial. only one circumstance will qualify the killing to murder and the other circumstances will be taken as generic. there is no more treachery but the use of superior strength can be alleged and it also qualifies the killing to murder. some other circumstance may be present. To be considered qualifying. even though the victim was denied the chance to defend himself because of the suddenness of the attack. If what was alleged was not proven and instead another circumstance. The accused can only be convicted of homicide. the treachery absorbs the same. even if the latter constitutes a qualifying circumstance under Article 248. This circumstance involves means. methods and form in the execution were consciously adopted and deliberately resorted to by the offender. or employing means to waken the defense. Nocturnity becomes a means that constitutes treachery and the killing would be murder. So if the killing were at the “spur of the moment”. If the offender may have not intended to kill the victim but he only wanted to commit a crime against him in the beginning. form in the execution of the killing which may actually be an aggravating circumstance also. If the offended was denied the chance to defend himself. the crime would only be homicide. there is treachery. Consider now whether such other circumstance qualifies the killing or not. Generally. Illustration: A person who is determined to kill resorted to the cover of darkness at nighttime to insure the killing. There is treachery when the offender commits any of the crimes against the person employing means. If there are more than one qualifying circumstance alleged in the information for murder. Illustration: If the offender used superior strength and the victim was denied the chance to defend himself. methods or forms in the execution thereof that tend directly and especially to insure its execution without risk to himself arising from the defense which the offended party might make. If despite the means resorted to by the offender. Treachery contemplates that the means. methods. he will still be liable for murder if in the manner of committing the felony there was treachery and as a consequence thereof the victim died. treachery is not available. and were not merely incidental to the killing. aid or armed men. it is not one of those which qualify a homicide to murder. the particular circumstance must be alleged in the information. But if the aggravating circumstance of nocturnity is considered by itself. in which case. treachery qualifies the killing to murder. the offended was able to put up a defense. the same can not qualify the killing to murder.

or an earthquake. Inundation. derailment or assault upon a street car or locomotive. it does not qualify killing to Murder unless the use of fire was employed to kill the victim. All were uproariously happy. there is treachery. slept in the same place together. even if there was no intent to kill. Having gotten bored with their form of entertainment. The retard died. So one evening. shipwreck. The accused deprived the victim of the chance to defend himself when the latter was tied to a tree. Treachery is a circumstance referring to the manner of committing the crime. which is death as a consequence of arson. the crime is murder -. apparently drenched with drink. they are criminally liable. The accused left not knowing that the victim died. the group saw the victim. This is single indivisible crime penalized under Article 326.although originally. after the victim had visited the girl. They thought they would give him a lesson by whipping him with branches of gumamela until the victim fell unconscious. Then. there was a town fiesta and the two accused were at the town plaza with their companions. reward or promises. If the primordial criminal intent of the offender is to destroy property with the use of pyrotechnics and incidentally. the crime is only murder. with both arms and legs around the tree. with the mitigating circumstance of no intention to commit so grave a wrong. There was no risk to the accused arising from the defense by the victim. It was held that Pugay was guilty of homicide through reckless imprudence. three young men. That somebody died during such fire would not bring about murder because there is no intent to kill in the mind of the offender. It is important only if the victim did not die to determine if the felony is physical injury or attempted or frustrated homicide. But this is not a complex crime under Article 48. The crime committed was murder. intent to kill becomes irrelevant. at times. So long as the means. Then. In People v. methods and form in the execution is deliberately adopted. fire. by means of a motor vehicle. the accused Samson lit him up. there was no intent to kill. a 25 year old retard walking nearby and they made him dance by tickling his sides with a piece of wood. the crime is arson with homicide. (4) On occasion of any of the calamities enumerated in the preceding paragraph c. When a person is killed by fire. or with the use of other means involving great waste and ruin. somebody within the premises is killed. (2) (3) In consideration of price.127 Elements and Notes in Criminal Law Book II by RENE CALLANTA Illustration: The accused. When the victim is already dead. accused Pugay went and got a can of gasoline and poured it all over the retard. explosion. destructive . shrieking human torch. 167 SCRA 439. The only problem insofar as the killing by fire is concerned is whether it would be arson with homicide. eruption of volcano. poison. When killing was accomplished “by means of fire” alleged in the information. If the primordial criminal intent of the offender is to kill and fire was only used as a means to do so. resented the fact that the victim continued to visit a girl in their neighborhood despite the warning they gave him. stranding of a vessel. The victim and the accused Pugay were friends and. It was merely a part of their fun making but because their acts were felonious. He intended only to destroy property. Although what was initially intended was physical injury. Pugay and Samson. the manner adopted by the accused was treacherous and since the victim died as a consequence thereof. There was no animosity between the two accused and the victim such that it cannot be said that they resort to fire to kill him. or murder. making him a frenzied. a higher penalty will be applied. they seized and tied him to a tree. the primordial criminal intent of the offender is considered. fall of an airship. Samson only guilty of homicide. However.

with stockings. murder and not kidnapping with murder is committed. reward or promise. when the cruel wounds were inflicted and.128 Elements and Notes in Criminal Law Book II by RENE CALLANTA cyclone. if without the premeditation the inductor would not have induced the other to commit the act but not as regards the one induced. (5) Evident premeditation. 307) (6) Cruelty. Where the accused housemaid gagged a three year old boy. When the actual victim turns out to be different from the intended victim. she also should be convicted of murder but the relationship should be appreciated as aggravating. or outraging or scoffing at his person or corpse. was the wife of the deceased but here relationship to the deceased was not alleged in the information. Under Article 14. the crime is homicide. must be evidence to that effect. to conceal his body and then demand money before discovery of the body. 85 Phil. Treachery is inherent in poison. Cruelty includes the situation where the victim is already dead and yet. placed him in a box with head down and legs upward and covered the box with some sacks and other boxes. the killing is still qualified to murder although the acts done no longer amount to cruelty. Article 249 HOMICIDE . Guillen. then what would have murder because this circumstance is recognized under Article 248. The crime becomes murder. Ransom was only a part of the diabolical scheme to murder the child. premeditation is not aggravating. Illustration: Two people engaged in a quarrel and they hacked each other. therefore. The accused was well aware that the child could be suffocated to death in a few minutes after she left. However. in murder. by deliberately and inhumanly augmenting the suffering of the victim. and then the accused demanded ransom from the parents. The following are holdings of the Supreme Court with respect to the crime of murder: (1) Killing of a child of tender age is murder qualified by treachery because the weakness of the child due to his tender age results in the (3 (4) (5) (6) (7) The essence of kidnapping or serious illegal detention is the actual confinement or restraint of the victim or deprivation of his liberty. If there is no showing that the accused intended to deprive their victims of their liberty for some time and there being no appreciable interval between their being taken and their being shot. Up to that point. who were charged with murder. epidemic or any other public calamity. if the killer tried to dismember the different parts of the body of the victim. one killing the other. Where one of the accused. any act that would amount to scoffing or decrying the corpse of the victim will qualify the killing to murder. and (2) absence of any danger to the aggressor. son of her master. (People vs. acts were committed which would decry or scoff the corpse of the victim. aside from cruelty. and the child instantly died because of suffocation. It goes beyond that because even if the victim is already a corpse when the acts deliberately augmenting the wrong done to him were committed. Evident premeditation is absorbed in price. even though it was inflicted or was committed when the victim was already dead. Abuse of superior strength is inherent in and comprehended by the circumstance of treachery or forms part of treachery. Killing of the victims hit by hand grenade thrown at them is murder qualified by explosion not by treachery. this is not actually limited to cruelty. indicative of an intention to scoff at or decry or humiliate the corpse of the victim. such did not convert the offense into kidnapping with murder. Yet. Hence. the generic aggravating circumstance of cruelty requires that the victim be alive.

Where the intent to kill is not manifest. (4) injuries through reckless imprudence as the element of intent to kill in frustrated homicide is incompatible with negligence or imprudence. 2. parricide or infanticide. Porras. the victim died. Court of Appeals. the crime is Homicide. there must be satisfactory evidence of (1) the fact of death and (2) the identity of the victim Distinction between homicide and physical injuries: In attempted or frustrated homicide. That the accused killed him without any justifying circumstances. 3. If he intentionally hit his opponent on that part of his body causing the death. (People vs. the crime will be homicide because the law punishes the result. The shooting of a peace officer who was fully aware of the risks in pursuing the malefactors when done in a spur of the moment is only Homicide. If a boxer killed his opponent in a boxing bout duly licensed by the Government without any violation of the governing rules and regulations. both of them are liable for the death of the victim and each of them is guilty of homicide. When several assailants not acting in conspiracy inflicted wounds on a victim but it cannot be determined who inflicted which would which caused the death of the victim. In all crimes against persons in which the death of the victim is an element. there must be proof of the fact of death and identity of the victim. The following are holdings of the Supreme Court with respect to the crime of homicide: (1) Physical injuries are included as one of the essential elements of frustrated homicide. In physical injuries. Intent to kill is conclusively presumed when death resulted. However. the crime committed has been generally considered as physical injuries and not attempted or frustrated murder or homicide. In all crimes against persons in which the death of the victim is an element of the crime. (Cortez vs. and not the intent of the act. there is intent to kill. or by that of parricide or infanticide. it is not possible to have a crime of frustrated homicide through reckless imprudence. That the killing was not attended by any of the qualifying circumstances of murder. evidence of intent to kill is required only in attempted or frustrated homicide 2. all are liable for the victim’s death. MURDER OR HOMICIDE . 4. there is no Homicide to speak of. If the deceased received two wounds from two persons acting independently of each other and the wound inflicted by either could have caused death. if as a result of the physical injuries inflicted. 255 SCRA 514). Common misconception meaning of corpus delicti. That a person was killed. which is presumed. 162 SCRA 139) (3) Article 250 PENALTY FOR FRUSTRATED PARRICIDE. there is none. on the (2) Corpus delicti means body of the crime. (5) 1. Hence. Notes: Homicide is the unlawful killing of a person not constituting murder. That the accused had the intention to kill. If the injuries were mortal but were only due to negligence. the crime committed will be serious physical Note that while it is possible to have a crime of homicide through reckless imprudence.129 Elements and Notes in Criminal Law Book II by RENE CALLANTA ELEMENTS: 1. It does not refer to the body of the murdered person. If he hit his opponent below the belt without any intention to do so. it is Homicide Through Reckless Imprudence if the latter died as a result.

It is not a tumultuous affray which brings about the crime. or who inflicted the serious physical injury. if it is not known who inflicted serious physical injuries on the deceased. but the person or persons who used violence are known. it could be tumultuous disturbance. 6. It is necessary that the very person who caused the death can not be known. Tumultuous affray exists when at least 4 persons take part in it 2. person/s who inflicted serious physical injuries b. a free-for-all. or if participants are armed. this crime is not committed. 2. That these several persons quarreled and assaulted one another in a confused and tumultuous manner. Notes: 1. they will be the ones to be held liable. That they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally. If there is a conspiracy. 3. That someone was killed in the course of the affray. That it cannot be ascertained who actually killed the deceased. there must be: (1) a quarrel. 4. nobody will answer. When there are 2 identified groups of men who assaulted each other. The crimes committed might be disturbance of public order. and someone who is injured or killed because of the fight. it could be malicious mischief. or if property was destroyed. To be considered death in a tumultuous affray. If nobody could still be traced to have employed violence upon the victim. 5. which should not involve organized group. If they could not be known. A TUMULTOUS ELEMENTS: 1. not that he can not be identified. That there be several persons. all persons who used violence upon the person of the victim If those who actually killed the victim can be determined. Because if he is known but only his identity is not known. it is the inability to ascertain actual perpetrator. (3) . all of those persons who inflicted serious physical injuries will be collectively answerable for the death of that fellow. The Revised Penal Code sets priorities as to who may be liable for the death or physical injury in tumultuous affray: (1) (2) The persons who inflicted serious physical injury upon the victim. (2) The person killed in the affray need not be one of the participants. there is no tumultuous affray 3.130 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 251 DEATH IN AFFRAY Tumultuous affray simply means a commotion in a tumultuous and confused manner. As long as it cannot be determined who killed the victim. to such an extent that it would not be possible to identify who the killer is if death results. and those who inflicted serious or less serious or slight physical injuries shall be punished for said corresponding offenses provided no conspiracy is established with the killers. then anyone who may have employed violence on that person will answer for his death. That the person or persons who inflicted serious physical injuries or who used violence can be identified. then he will be charged for the crime of homicide or murder under a fictitious name and not death in a tumultuous affray. Persons liable are: a.

So anyone who may have employed violence will answer for such serious or less serious physical injury. He becomes a co-conspirator in the crime of inciting to sedition. In this case. Article 252 PHYSICAL INJURIES INFLICTED IN A TUMULTOUS AFFRAY ELEMENTS: 1. Euthanasia/mercy-killing is the practice of painlessly putting to death a person suffering from some incurable disease. this is considered as inherent in a tumultuous affray.). poison. the person does not want to die. the fetus in her womb was expelled. which is reclusion temporal. That a participant or some participants thereof suffer serious physical injuries or physical injuries of a less serious nature only. the penalty is similar to that of homicide. 2. A doctor who resorts to euthanasia may be held liable for murder If the person does the killing himself. the injured party in the crime of physical injuries inflicted in tumultuous affray must be one or some of those involved in the quarrel.) or whatever manner of positive and direct cooperation (intellectual aid. 1. 4. If the physical injury sustained is only slight. that there is a tumultuous affray as referred to in the preceding article. where the victim need not be one of the participants. Unlike in Article 251. is not liable for abortion 3. A person who attempts to commit suicide is not criminally liable In this crime. but not of giving assistance to suicide because the assistance must be given to one who is really determined to commit suicide. if with consent. There can be no qualifying circumstance because the determination to die must come from the victim. the offender shall be prosecuted in the ordinary course of law. Note that in slight physical injuries is inflicted in the tumultuous affray and the identity of the offender is established. A pregnant woman who tried to commit suicide by means of poison but instead of dying. Lending his assistance to another to commit suicide to the extent of doing the killing himself • Notes: Giving assistance to suicide means giving means (arms. the crime is held to be inciting to sedition. if without consent. In physical injuries caused in a tumultuous affray. Assistance to suicide is different from mercy-killing. Article 253 GIVING ASSISTANCE TO SUICIDE • Acts punishable: . the provisions of this article will not be observed. whether the suicide is consummated or not 2. that the person responsible therefor cannot be identified.131 Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. 3. the conditions are also the same. 2. That all those who appear to have used violence upon the person of the offended party are known. etc. Assisting another to commit suicide. If the intention is not to commit suicide. Instead. etc. as when he just wanted to have a picture taken of him to impress upon the world that he is committing suicide because he is not satisfied with the government. covered by Article 253. The offended party cannot complain if he cannot identify who inflicted the slight physical injuries on him. This does not contemplate euthanasia or mercy killing where the crime is murder. But you do not have a crime of physical injuries resulting from a tumultuous affray if the physical injury is only slight. suggestions regarding the mode of committing suicide. the intention must be for the person who is asking the assistance of another to commit suicide. The physical injury should be serious or less serious and resulting from a tumultuous affray.

132 Elements and Notes in Criminal Law Book II by RENE CALLANTA In mercy killing. Penalty is mitigated if suicide is not successful Even if the suicide did not materialize. In giving assistance to suicide. A person can be held liable for discharge even if the gun was not pointed at the offended party when it fired for as long as it was initially aimed at or against the offended party The following are holdings of the Supreme Court with respect to this crime: (1) If serious physical injuries resulted from discharge. 2. his sweetheart. the crime may constitute alarm and scandal. That the offender has no intention to kill that person. Intent to kill is negated by the fact that the distance between the victim and the offender is 200 yards 5. Both in euthanasia and suicide. If the firearm is not discharged at a person. . On the other hand. the act is not punished under this article The gun used in the crime must be licensed. otherwise. accused may also be held liable for illegal possession of firearm under Republic Act No. or if less serious physical injury. A discharge towards the house of the victim is not discharge of firearm. The following are holdings of the Supreme Court with respect to this crime: (1) The crime is frustrated if the offender gives the assistance by doing the killing himself as firing upon the head of the victim but who did not die due to medical assistance. the purpose of the offender is only to intimidate or frighten the offended party 4. 4. that the offender discharges a firearm against or at another person. 3. The victim must persistently induce the offender to end his life. the principal actor is the person committing the suicide. If the firearm is directed at a person and the trigger was pressed but did not fire. • Notes: (2) This crime cannot be committed through imprudence because it requires that the discharge must be directed at another. The accused is liable if he kills the victim. because of a suicide pact. 1866 as amended by Republic Act No. or the person using the firearm must be authorized to carry the same. it is only alarm under art 155. the intention to the end life comes from the victim himself. in addition to the crime punished under this article. 2. firing a gun against the house of the offended party at random. the crime committed is the complex crime of serious physical injury with illegal discharge of firearm. the crime is frustrated discharge of firearm. Firing a gun at a person even if merely to frighten him constitutes illegal discharge of firearm. 8294. the person giving assistance to suicide is also liable but the penalty shall be one or two degrees lower depending on whether it is frustrated or attempted suicide. Whoever would heed his advice is not really giving assistance to suicide but doing the killing himself. The offender must shoot at another with any firearm without intention of killing him. (2) Article 254 DISCHARGE OF FIREARMS ELEMENTS: 1. not knowing in what part of the house the people were. the complex crime of less serious physical injury with illegal discharge of firearm will apply. The person attempting to commit suicide is not liable if he survives. If the discharge is not directed at a person. 1. Usually. the victim is not in a position to commit suicide. otherwise the article does not apply.

3. he shall suffer the penalty prescribed for parricide. the crime of A is parricide. When the offender is the father. 3. or although born alive it could not sustain an independent life when it was killed In our study of persons and family relations. if it is shown that the infant cannot survive within 24 hours. So fetus becomes a person by the legal fact of birth. The penalty however. That a child was killed. That the accused killed the said child. the crime is still Infanticide and not Parricide. A legal problem occurs when a fetus having an intra-uterine life of less than 7 months. gave birth to a child. concealment of dishonor as a motive for the mother to have the child killed is mitigating. If the crime committed by A is parricide because the age of the child is three days old or above. the crime committed is not infanticide but abandonment under Article 276. the proper qualification for the offense is infanticide Even if the killer is the mother or the father or the legitimate grandparents. A. That the deceased child was less than three days (72 hours) of age. Illustration: An unmarried woman. such fact is only mitigating . otherwise if it can survive. The fact that the killing was done to conceal her dishonor will not mitigate the criminal liability anymore because concealment of dishonor in killing the child is not mitigating in parricide. In such a case. Notes: 1. The Civil Code provides that. It merely lowers the penalty. if the fetus had an intra-uterine life of less than seven (7) months. When infanticide is committed by the mother or maternal grandmother in order to conceal the dishonor. 4. had it not been killed. 2. both the mother and the stranger commits infanticide because infanticide is not predicated on the relation of the offender to the offended party but on the age of the child. To conceal her dishonor. the penalty is that for murder. the crime would be infanticide. This is so because there is difficulty of determining whether the crime committed is infanticide or abortion. the crime of the co-conspirator C is murder. B. Hence. So. the court may avail of expert testimony in order to help it arrive at a conclusion. It is not parricide because he is not related to the victim. There is no infanticide when the child was born dead. infanticide through imprudence is not committed because the purpose of concealing the dishonor is incompatible with the absence of malice in culpable felonies. 2. the crime committed is abortion. it will be considered born only if it survives 24 hours after the umbilical cord is cut. if she is a prostitute. If the child is less than three days old when killed. In such a situation. mother or legitimate ascendant.133 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 255 INFANTICIDE ELEMENTS: 1. born alive. is killed within 24 hours from the time the umbilical cord is cut. we have to determine if it would have survived or it would have died nonetheless. If the child is abandoned without any intent to kill and death results as a consequence. If such fetus is killed within the 24-hour period. is that for Parricide. If the child was killed when the age of the child was three days old and above already. In either case. C agreed and killed the child B by burying the child somewhere. If the purpose of the mother is to conceal her dishonor. A conspired with C to dispose of the child. we have learned that birth determines personality. If the offender is any other person. The delinquent mother who claims that she committed the offense to conceal the dishonor must be of good reputation. she is not entitled to a lesser penalty because she has no honor to conceal Concealment of dishonor is not an element of infanticide.

the child was killed. (By administering drugs or beverages upon such pregnant woman without her consent. he is liable for an impossible crime if the woman suffers no physical injury. etc. with the consent of the pregnant woman. Distinction between infanticide and abortion It is infanticide if the victim is already a person less that three days old or 72 hours and is viable or capable of living separately from the mother’s womb. Abortion is not a crime against the woman but against the fetus. 4. Acting. 3. it is still a fetus and not a person. Under the Article 40 of the Civil Code. If the abortion was done by the mother of the pregnant woman without the consent of the woman herself. or either of them. that circumstance will not mitigate her criminal liability. you have a complex crime of murder or physical injuries and abortion. if it is killed. 2. without the consent of the woman. and the pregnant woman consented for the purpose of concealing her dishonor. But even though the umbilical cord has been cut. . either in the womb or after having been expelled therefrom. or any other act of the accused. but without using violence. the penalty is the same as that imposed upon the woman who practiced the abortion upon herself . or drugs or beverages administered. if not killed. If she does. Ortega Notes: Acts punished 1. Article 41 of the Civil Code provides that if the fetus had an intra-uterine life of less than seven months. Illustration: A mother delivered an offspring which had an intra-uterine life of seven months. If the woman turns out not to be pregnant and someone performs an abortion upon her. or that the accused otherwise acts upon such pregnant woman. even if it was done to conceal dishonor. If the means are not sufficient or adequate. the crime would be an impossible crime of 3. would not have survived beyond 24 hours.) Acting (by administering drugs or beverages). not dead as abortion did not result despite the employment of adequate and sufficient means to make the pregnant woman abort. serious physical injuries. Therefore. if not killed. 2. If the fetus has been delivered but it could not subsist by itself. Thus. the concealment of dishonor as a motive of the mother to commit the abortion upon herself is mitigating. In abortion. In intentional abortion. that child. the crime is infanticide because that conceived child is already considered born. would have survived beyond 24 hours. the fetus dies.134 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 256 INTENTIONAL ABORTION ELEMENTS: 1. the offender must know of the pregnancy because the particular criminal intention is to cause an abortion. Frustrated abortion is committed if the fetus that is expelled is viable and. the offender must have known of the pregnancy for otherwise. That as a result of the use of violence or drugs or beverages upon her. A person is considered born at the time when the umbilical cord is cut. the crime is abortion because what was killed was a fetus only. the crime committed is abortion not infanticide. Before the umbilical cord is cut. It will also mitigate the liability of the maternal grandparent of the victim – the mother of the pregnant woman – if the abortion was done with the consent of the pregnant woman. That violence is exerted. it must survive at least 24 hours after the umbilical cord is cut for it to be considered born. If mother as a consequence of abortion suffers death or physical injuries. That the abortion is intended. birth determines personality. If it could be shown that the child. He then acquires a personality separate from the mother. That there is a pregnant woman. Abortion is the violent expulsion of a fetus from the maternal womb. he would not try an abortion. therefore. Using any violence upon the person of the pregnant woman. the crime will be homicide. But if those who performed the abortion are the parents of the pregnant woman. If it could be shown that had the umbilical cord been cut. It is abortion if the victim is not viable but remains to be a fetus.

Criticism: Under Article 4. if not only physical injuries were sustained but abortion also resulted. and one who looks for a physician to make his sweetheart abort is an accomplice. Article 257 UNINTENTIONAL ABORTION ELEMENTS: 1. nonetheless. The accused can only be held liable if he knew that the woman was pregnant . In People v. with a soft drink bottle on the hip. only the abortion is unintended. act of self-defense. the fetus must be dead. If the act of violence is not felonious. however. there is no liability. Jeffry. 15 Phil. Correspondingly. Mere intimidation is not enough unless the degree of intimidation already approximates violence. If the pregnant woman aborted because of intimidation. but there is knowledge of the woman’s pregnancy. the crime committed is the complex crime of parricide with unlawful abortion. The physician will be punished under Article 259 of the Revised Penal Code. Take note that while unintentional abortion appears to be a crime that should be committed with deliberate intent because of the requirement that the violence employed on the victim must be intentional. 2. paragraph 1 of the Revised Penal Code. That violence is used upon such pregnant woman without intending an abortion. Illustration: The act of pushing another causing her to fall is a felonious act and could result in physical injuries. 1964. That there is a pregnant woman. if the circumstances of the case justifies the application of the other means of committing a felony (like culpa). nevertheless. the felonious act of 1. Instead. husband. 2. 3.135 Elements and Notes in Criminal Law Book II by RENE CALLANTA abortion. then the same should be applied but the penalty will not be the penalty provided under Article 257. Abortion resulted and B died. the Supreme Court held that knowledge of pregnancy is required in unintentional abortion. Notes: Unintentional abortion requires physical violence inflicted deliberately and voluntarily by a third person upon the person of the pregnant woman. Unintentional abortion can also be committed through negligence Unintentional abortion may be committed through negligence as it is enough that the use of violence be voluntary. decided on April 7. 391. that is. the crime committed is not unintentional abortion because there is no violence. If the pregnant woman was killed by violence by her husband. the crime committed is light threats. Carnaso. and B.DEBATABLE In US v. That the violence is intentionally exerted. the offender shall be subject to the penalty prescribed for simple or reckless imprudence under Article 365. Illustration: . In consummated abortion. the violence that he employs on the pregnant woman must be intentional. 4. A became so angry that he struck B. either in the womb or after having been expelled therefrom. While there is no intention on the part of the accused to cause an abortion. the offender is liable for unintentional abortion. A quarrel ensued between A. wife. any person committing a felony is criminally liable for all the direct. One who persuades her sister to abort is a co-principal. If the act of violence is not felonious. The act of employing violence or physical force upon the woman is already a felony. It is not material if offender knew about the woman being pregnant or not. In other words. and there is no knowledge of the woman’s pregnancy. and logical consequences of his felonious acts although it may be different from that which is intended. who was then pregnant. the Supreme Court said that knowledge of pregnancy of the offended party is not necessary. That as a result of the violence that fetus dies. natural.

This is not so for art 258 No. That the abortion is intended. She jumped out of a a building but she landed on a She did not die but an abortion Is she liable for unintentional c. any of her parents.136 Elements and Notes in Criminal Law Book II by RENE CALLANTA pushing is the proximate cause of the unintentional abortion. the pregnant woman herself b. as amended. the act of trying to commit suicide is not a felony under the Revised Penal Code. 2. But abortion without medical necessity to warrant it is punishable even . If it was the woman doing the violence upon herself. Liability of the pregnant woman is mitigated if the purpose is to conceal her dishonor. That the offender. What is punished is the act of dispensing an abortive without the proper prescription. If there is no intention to cause abortion and neither was violence exerted. with her consent. It is not necessary that the abortive be actually used 2. what are the crimes committed? The crimes committed are (1) intentional abortion. Article 259 ABORTION PRACTICED BY A PHYSICIAN OR MIDWIFE AND DISPENSING OF ABORTIVES ELEMENTS: 1. it must be to bring about an abortion. 3. 3. causes or assists in causing the abortion. and (2) violation of the Dangerous Drugs Act of 1972. In infanticide. That the abortion is caused by – a. followed. 3. That there is a pregnant woman who has suffered an abortion. It is not necessary that the pharmacist knew that the abortive would be used to cause abortion. What is contemplated in unintentional abortion is that the force or violence must come from another. with her consent for the purpose of concealing her dishonor. If the abortive drug used in abortion is a prohibited drug or regulated drug under Presidential Decree No. there is no Mitigation for the parents of the pregnant women even if their purpose is to conceal their daughter’s dishonor 2. where the woman tried to commit suicide. he is liable as an accomplice If the abortion is produced by a physician to save the life of the mother. Notes: Article 258 ABORTION PRACTICED BY THE WOMAN HERSELF OR BY HER PARENTS ELEMENTS : 1. 4. or 1. 2. That said physician or midwife takes advantage of his or her scientific knowledge or skill. Notes: 1. However. 6425 (The Dangerous Drugs Act of 1972). This is known as a therapeutic abortion. That there is a pregnant woman who has suffered an abortion. parents can avail of the mitigating circumstance of concealing the dishonor of their daughter. 2. If the pharmacist knew that the abortive would be used to cause abortion and abortion results. That the abortion is intended. to commit window of passerby. abortion? A pregnant woman decided suicide. and therefore. arts 256 and 257 does not apply Questions & Answers 1. In this case. any other person. the crime will be intentional abortion. who must be a physician or midwife. The one penalized in suicide is the one giving assistance and not the person trying to commit suicide. there is no liability.

If both survive. the crime committed will only be grave or light threat as the case may be. Challenger 2. The seconds will be held liable as accomplices.137 Elements and Notes in Criminal Law Book II by RENE CALLANTA with the consent of the woman or her husband. left the place at the same time and pursuant to their agreement. after a verbal heated argument in a bar. Illustration: If one challenges another to a duel by shouting “Come down. Illustration: A woman who is pregnant got sick. Killing one’s adversary in a duel OF Article 261 CHALLENGING TO A DUEL Acts punishable: 1. Challenging another to a duel 2. Article 260 RESPONSIBILITY PARTICIPANTS IN A DUEL Acts punished: 1. without the challenger having in mind a formal combat to be agreed upon with the assistance of seconds as contemplated under the law. Notes: 1. Question & Answer What is the liability of a physician who aborts the fetus to save the life of the mother? None. the penalty is the same as that for homicide While the agreement is to fight to the death. the crime committed would be Homicide. Duel: a formal or regular combat previously concerted between 2 parties in the presence of 2 or more seconds of lawful age on each side. There is no such crime nowadays because people hit each other even without entering into any pre-conceived agreement. Inciting another to give or accept a challenge to a duel 3. paragraph 4. the law will disregard the “intent to kill. This is a case of therapeutic abortion which is done out of a state of necessity. . Principals – person who killed or inflicted physical injuries upon his adversary. This is an obsolete provision.” if only physical injuries is inflicted. Instigators If the challenge is only to fight. There must be no other practical or less harmful means of saving the life of the mother to make the killing justified. who make the selection of arms and fix all the other conditions of the fight 2. If one was killed. If the accused and the deceased. The doctor administered a medicine which resulted in Abortion. let us 2. The crime committed was unintentional abortion through negligence or imprudence. Inflicting upon the adversary serious physical injuries 3. Accomplices – as seconds The person who killed or injured his adversary. If death results. went to the plaza to fight each other to death with knives which they bought on the way. the requisites under Article 11. Therefore. of the Revised Penal Code must be present. the facts do not constitute the crime of dueling since there were no seconds who fixed the conditions of the fight in a more or less formal manner. Olympia. or both combatants in any other cases 2. both will be liable for the crime of duel as principals by direct participation. Scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel Persons liable: 1. Making a combat although no physical injuries have been inflicted Persons liable: 1. The crime will not be classified as attempted or frustrated homicide.

a hand. totally or partially. 1. of some essential organ for reproduction 2. drew the latter’s bolo from its scabbard. Mutilation is caused purposely and deliberately Notes: Mutilation is the lopping or clipping off of some part of the body. There be a castration i. The offended party caught hold of the edge of the blade of his bolo and wounded himself. paragraph 1 of the Revised Penal Code. If what was cut off was a reproductive organ. arm or leg b. We will see whose intestines will come out. the accused. What are serious physical injuries: 1. other than the essential organ for reproduction. Wounding 2. loses any other member of his body c. Injured person – a. the crime is only serious physical injury. This cannot be committed through criminal negligence. lopping. What is committed is the crime of light threats under Article 285. the crime of challenging to a duel is not committed. Article 263 SERIOUS PHYSICAL INJURIES How Committed 1. while conversing with the offended party. beat or assault the offended party. the penalty is much higher than that for homicide. impotent or blind 2. becomes deformed b. made purposely.e. If there is no intent to deprive victim of particular part of body. Beating 3. loses the use of speech or the power to hear or to smell. to deprive him of that part of the body Elements: 1. clipping off any part of the body of the offended party. The common mistake is to associate this with the reproductive organs only. loses an eye. it will be considered as mutilation of the second kind Mayhem: refers to any other intentional mutilation 2. In the first kind of mutilation. mutilation of organs necessary for generation 2. loses the use thereof d. i.138 Elements and Notes in Criminal Law Book II by RENE CALLANTA measure your prowess. Administering injurious substances In one case. Assaulting 4. he can not be guilty of serious physical injuries. becomes ill or incapacitated for the performance of the work in which he had been habitually insane. You are a coward if you do not come down”. Intentionally making another mutilation. Injured person becomes imbecile. Intentionally mutilating another by depriving him. PHYSICAL INJURIES Article 262 MUTILATION Kinds of Mutilation 1.e. The intent to deliberately cut off the particular part of the body that was removed from the offended party must be established. Mutilation includes any part of the human body that is not susceptible to grow again. the castration must be . Otherwise. foot. It was held that since the accused did not wound. loses the use of any such member c. becomes incapacitated for the work in which he had been habitually engaged 3. Injured person – a.

not medical attendance In determining incapacity. Not curable by natural means or by 8. . Loss of one incisor is not. nature. The reason why there is no attempted or frustrated physical injuries is because the crime of physical injuries is determined on the gravity of the injury. When the category of the offense of serious physical injuries depends on the period of the illness or incapacity for labor. Work: includes studies or preparation for a profession 16. the illness of the offended party may be considered as lasting more than 30 days. other than a principal member Deformity: means physical ugliness. Blindness requires lost of vision in both eyes. There must be no intent to kill Impotent should include inability to copulate and sterility 3. Meanwhile. Deformity by loss of teeth refers to injury which cannot be impaired by the action of the nature 11. Thus. not a principal one of his body or use of the same 13. it would not be conspicuous and visible 9. there must be evidence of the length of that period. if the scar is usually covered by a dress. Under par 4. loss of one tooth which impaired appearance is a deformity 10. all that is required is illness or incapacity. loss of the lobule of the ear is only a deformity 12. If the injury would require medical attendance for more than 30 days.139 Elements and Notes in Criminal Law Book II by RENE CALLANTA engaged in for more than 90 days 4. 17. the injured party must have an avocation at the time of the injury. Loss of the power to hear in the right ear is considered as merely loss of use of some other part of the body 14. It must be conspicuous and visible. As long as the injury is not there. it will be considered as serious physical injuries under par 3 5. Injured person becomes ill or incapacitated for labor for more than 30 days (but not more than 90 days) Notes: The crime of physical injuries is a crime of result because under our laws the crime of physical injuries is based on the gravity of the injury sustained. The loss of 3 incisors is a visible deformity. a front tooth is considered as a member of the body. there can be no attempted or frustrated stage thereof. Loss of use of hand or incapacity of usual work in par 2 must be permanent 6. Par 2 refers to principal members of the body. Loss of both outer ears constitutes deformity and also loss of the power to hear. However. Mere weakness in vision is not contemplated 4. Otherwise. The fact that there was medical attendance for that period of time shows that the injuries were not cured for that length of time 15. Loss of the index and middle fingers is either a deformity or loss of a member. Serious physical injuries may be committed through reckless imprudence or simple imprudence 2. Otherwise. Loss of power to hear must involve both ears. Par 3 on the other hand. 1. In this respect. 7. covers any other member which is not a principal part of the body. permanent and definite abnormality. So this crime is always consummated.

The ugliness will not disappear through natural healing process. What crime was committed? In what stage was it committed? The crime is serious physical injuries because the problem itself states that the injury would have produced a deformity. the offended party was more handsome than before the injury. even though the treatment continued Illustration: Loss of molar tooth – This is not deformity as it is not visible.140 Elements and Notes in Criminal Law Book II by RENE CALLANTA the offense will only be considered as slight physical injuries 18. There is no incapacity if the injured party could still engage in his work although less effectively than before Serious physical injuries is qualified when the crime is committed against the same persons enumerated in the article on parricide or when it is attended by any of the circumstances defining the crime of murder. The medical treatment may have lasted for nine days. After the plastic surgery. Question & Answer The offender threw acid on the face of the offended party. So even though the deformity may not have incapacitated the offended party from work. When the injury created a deformity upon the offended party. but if the offended party is still incapacitated for labor beyond nine days. Ortega Notes: Classification of physical injuries: (1) Between slight physical injuries and less serious physical injuries. It must be visible. or 10 days to 20 days if less serious physical injuries. the physical injuries are only considered less serious because for purposes of classifying the physical injuries as serious. you do not consider the period of medical treatment. You only consider the period when the offended party is rendered incapacitated for labor. serious physical injuries resulting from excessive chastisement by parents is not qualified serious physical injuries 19. The significant part here is between slight physical injuries and less serious physical injuries. Loss of permanent front tooth – This is deformity as it is visible and permanent. The fact that the plastic surgery removed the deformity is immaterial because in law what is . you do not consider the period of medical treatment. it is considered serious physical injuries. or even though the medical treatment did not go beyond nine days. (3) beyond 30 days. the physical injuries would already qualify as less serious physical injuries. (2) Between less serious physical injuries and serious physical injuries. At once. Were it not for timely medical attention. that deformity will bring about the crime of serious physical injuries. a deformity would have been produced on the face of the victim. Deformity requires the concurrence of the following conditions: (1) (2) (3) The injury must produce ugliness. you disregard the healing duration or the period of medical treatment involved. but if the medical treatment continues beyond nine days. Consider the duration of healing and treatment. You only consider the period of incapacity from work. However. you have a duration of one to nine days if slight physical injuries. Loss of milk front tooth – This is not deformity as it is visible but will be naturally replaced. So the healing duration may be one to nine days. the physical injuries are already considered less serious physical injuries. You will consider not only the healing duration of the injury but also the medical attendance required to treat the injury. If the offended party is incapacitated to work for less than 30 days.

Organizations include any club or AFP. It was held that accused can not be convicted of serious physical injuries. an arm or a leg. 1-9 days. Section 2 requires a written notice to school authorities from the head of the organization seven days prior to the rites and should not exceed three days in duration. mental. He had no intent to kill Notes: The article under consideration does not deal with a crime. officers and members who planned.This is any initiation rite or practice which is a prerequisite for admission into membership in a fraternity or sorority or any organization which places the neophyte or applicant in some embarrassing or humiliating situations or otherwise subjecting him to physical or psychological suffering of injury. Republic Act No. PMA or officer or cadet corps of the CMT or CAT. accused was charged with serious physical injuries because the injuries produced a scar. present alumni of the organization. PNP. thus throwing of the acid in the face is not contemplated . (2) Thus. Also if the victim is below 12. and there was no evidence that the medical treatment lasted for more than nine days. in the course of the trial. Article 264 ADMINISTERING INJURIOUS SUBSTANCES OR BEVERAGES ELEMENTS: 1. school authorities who consented or who had actual knowledge if they did nothing to prevent it. 2. Section 4 qualifies the crime if rape. He is liable only for slight physical injuries because the victim was not incapacitated. That it was done knowingly administering to him any injurious substances or beverages or by taking advantage of his weakness of mind of credulity 3. Serious physical injuries is punished with higher penalties in the following cases: (1) If it is committed against any of the persons referred to in the crime of parricide under Article 246. Section 3 requires supervision by head of the school or the organization of the rites. If any of the qualifying murder commission. a father who inflicts serious physical injuries upon his son will be liable for qualified serious physical injuries. These do not include any physical. or becomes incapacitated for the work he habitually engages in for 30. psychological testing and training procedure and practice to determine and enhance the physical and psychological fitness of the prospective regular members of the below. In a case decided by the Supreme Court. It holds the parents. Makes presence a prima facie presumption of guilt for such. or the use of any such member or any of the serious physical injuries or the less serious physical injuries. an imbecile. He was convicted under Article 263 (4). That the offender inflicted upon another person any serious physical injury 2. 8049 (The AntiHazing Law) Hazing -. knowingly cooperated or were present. a foot.141 Elements and Notes in Criminal Law Book II by RENE CALLANTA considered is not the artificial treatment but the natural healing process. sodomy or mutilation results therefrom. owner of the place where such occurred liable. if the person loses the use of speech or the power to hear or smell or an eye. or impotent or blind because of such. 10. He appealed because. 1. the scar disappeared. if the person It is frustrated murder when there is intent to kill Administering means introducing into the body the substance. It refers to means of committing serious physical injuries. circumstances attended its becomes insane.

the penalty for the commission of acts punishable under Articles 248. 7610 (Special Protection of Children against Child Abuse. Article 265 is an exception to Article 48 in relation to complex crimes as the latter only takes place in cases where the Revised Penal Code has no specific provision penalizing the same with a definite. or to humiliate or embarrass the offended party out of a quarrel or anger. If the slapping was done without the intention of casting dishonor. ascendants. guardians. That the offended party is incapacitated for labor for 10 days or more (but not more than 30 days). But if the slapping is done to cast dishonor upon the person slapped. 2. Black-eye) 3. the healing duration must be more than nine (9) days but not more than thirty (30) days. The crime is slight physical injury if there is no proof as to the period of the offended party’s incapacity for labor or of the required medical attendance. or needs medical attendance for the same period of time That the physical injuries must not be those described in the preceding articles qualifying the PHYSICAL injuries if the act which was committed produced the less serious physical injuries with the manifest intent to insult or offend the offended party. Slapping the offended party is a form of illtreatment which is a form of slight physical injuries. provided the crime is not direct assault 2. as amended of the Revised Penal Code for the crimes of murder. when the victim is a person of rank or person in authority. That which did not prevent the offended party from engaging in his habitual work or which did not require medical attendance (ex. Circumstances offense: a. provides: “For purposes of this Act. 7610.142 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 265 LESS SERIOUS INJURIES ELEMENTS: 1. in relation to murder. the offended party is incapacitated from work for ten (10) days or more but not more than thirty (30) days. It falls under this article even if there was no incapacity but the medical treatment was for 13 days In this article. when there is manifest intent to insult or offend the injured person b. the crime is still illtreatment or slight physical injuries. 249. That which incapacitated the offended party for labor from 1-9 days or required medical attendance during the same period 2. Article 266 SLIGHT PHYSICAL INJURIES 3 Kinds: 1. homicide. mutilation or injuries to a child The last paragraph of Article VI of Republic Act No. there is no complex crime of slander by deed with less serious physical injuries but only less serious physical Republic Act No. Notes: 1. If the injury causes the illness of the victim. 262 (2) and 263 (1) of Act No 3815. . or under circumstances adding ignominy to the offense. specific penalty. the crime is slander by deed. Ill-treatment of another by deed without causing any injury (ex. when the victim is either the offender’s parents. when there are circumstances adding ignominy to the offense c. curators or teachers d. Exploitation and Discrimination Act). Hence. slapping but without causing dishonor) This involves even ill-treatment where there is no sign of injury requiring medical treatment.

or b. as amended. under any of the circumstances mentioned in par 1 hereof. victim became insane by reason or on the occasion of rape b. any instrument or object. is reclusion perpetua to death – higher than what Republic Act no. a. ascendant iii. DEATH when a. shall govern even if the victim was under 12 years of age. Killing a child under 12 is murder. By a man who have carnal knowledge of a woman under any of the following circumstances: 3. common law spouse of parent of victim . threat or intimidation b. because the victim is under no position to defend himself as held in the case of People v.143 Elements and Notes in Criminal Law Book II by RENE CALLANTA other intentional mutilation. step-parent iv. by means of fraudulent machination or grave abuse of authority d. into the genital or anal orifice of another person Rape committed under par 1 is punishable by: 1. when the offended party is under 12 years of age or is demented. his penis into another person’s mouth or anal orifice. 7160 modified the provisions of the Revised Penal Code in so far as the victim of the felonies referred to is under 12 years of age. 7610 provides. reclusion perpetua 2. insofar as the crime is murder. shall be reclusion perpetua when the victim is under twelve years of age. victim under 18 years and offender is: i. guardian v. shall commit an act of sexual assault by inserting 2. as amended by Republic Act No. through force. relative by consanguinity or affinity with the 3rd civil degree or vi. when the offended party is deprived of reason or otherwise unconscious c. 7659. even though none of the circumstances mentioned above be present By any person who. It is only in respect of the crimes of intentional mutilation in paragraph 2 of Article 262 and of serious physical injuries in paragraph 1 of Article 263 of the Code that the quoted provision of Republic Act No. Accordingly. For murder. not homicide. homicide is committed b. reclusion perpetua to DEATH when a. Article 248 of the Code. Incidentally.” The provisions of Republic Act No. 7160 may be applied for the higher penalty when the victim is under 12 years old. and serious physical injuries. respectively. a. parent ii. The clear intention is to punish the said crimes with a higher penalty when the victim is a child of tender age. the reference to Article 249 of the Code which defines and penalizes the crime of homicide were the victim is under 12 years old is an error. 196 SCRA 431. the rape is attempted and a homicide is committed by reason or on the occasion thereof RAPE ART 266-A RAPE The Anti-Rape Law of 1997 (RA 8353) now classified the crime of rape as Crime Against Persons incorporated into Title 8 of the RPC to be known as Chapter 3 ELEMENTS: Rape is committed 1. Ganohon. the penalty provided by the Code.

144 Elements and Notes in Criminal Law Book II by RENE CALLANTA c. under the custody of the police or military authorities or any law enforcement or penal institution committed in full view of the spouse. victim suffered permanent physical mutilation or disability the offender knew of the pregnancy of the offended party at the time of the commission of the crime.g. when the offender took advantage of his position to facilitate the commission of the crime i. parent or any of the children or other relatives within the 3rd degree of consanguinity victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime a child below 7 years old 4. 88724. parent etc). statutory rape c. The case of People vs. Thus. as it finally did away with frustrated rape and allowed only attempted rape and consummated rape to remain in our statute books. and j. offender. Orita (G. less than 7 yrs old. prision mayor to reclusion temporal a. by two or more persons 3. or the PNP. prision mayor 2. that is. No. if there is inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. 6. when the offender knew of the mental disability. or any law enforcement agency or penal institution. e. offender knows he is afflicted with HIV or AIDS or any other sexually transmissible disease and the virus is transmitted to the victim h.R. reclusion temporal to reclusion pepetua – rape is attempted and homicide is committed reclusion perpetua – homicide is committed by reason or on occasion of rape reclusion temporal – committed with any of the 10 aggravating circumstances mentioned above d. emotional disorder and/or physical handicap or the offended party at the time of the commission of the crime Rape committed under par 2 is punishable by: 1. and not merely for the penis to stroke the surface of the female organ. an impossible crime may now be committed in case of rape. grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute rape. mandatory death b. Campuhan) f. g. use of deadly weapon or b. Notes: 1. k. member of the AFP. less than 12 yrs old. Dividing age in rape: a. 5. reclusion temporal – when the victim has become insane . April 3. laid a new doctrine in Philippine penal law insofar as the crime of rape is concerned. ( Pp vs. Jurisprudence dictates that the labia majora (or he outer lips of the female organ) must be entered for rape to be consummated. mandatory death Because of this amendment which reclassified rape as a crime against persons. The act of “touching” should be understood as inherently part of the entry of the penis into the labia of the female organ and not the mere touching alone of the mons pubis or the pudendum. 1990). less than 18 yrs old and there is relationship (e. or para-military units thereof.

If carnal knowledge was made possible because of fraudulent machinations and grave abuse of authority. 900). and there is consent. Similarly. If the victim however is exactly twelve (12) years old (she was raped on her birthday) or more. Republic Act No. feeble-minded or idiotic woman is Rape pure and simple. It is necessary that there be evidence of some resistance put up by the offended woman. Canada. Carnal knowledge with a woman who is asleep constitutes Rape since she was either deprived of reason or otherwise unconscious at that time. The new rape law also requires that there be a physical overt act manifesting resistance. 61 Phil. but the offender abused his authority to rape the victim. the crime is rape. However. . she or he can be liable for rape. the Supreme Court expected that if the offender is not known to the woman. 7610. mental abnormality or deficiency is sufficient. It is enough that there is indication of any amount of resistance as to make it rape. Conversely. which does not indicate refusal on the part of the offended party to the sexual intercourse. if a woman or a man uses an instrument on anal orifice of male. Caballero. This absorbs the crime of qualified and simple seduction when no force or violence was used. mere sexual intercourse with her is already rape. Mere “no. will not be enough to bring about the crime of rape. the crime will be rape. (2) Since rape is not a private crime anymore. Where the victim is over 12 years old. the legal husband may be pardoned by forgiveness of the wife provided that the marriage is not void ab initio. It is not necessary that the force or intimidation employed be so great or of such character as could not be resisted – it is only necessary that it be sufficient to consummate the purpose which the accused had in mind. When the victim is below 12 years old. the offended woman may pardon the offender through a subsequent valid marriage. no” is not enough if the offender is a stranger. this is admissible in evidence to show that carnal knowledge was against his or her will. Mere initial resistance. there is no rape. Sec. In other cases. 5 (b) provides that: Even if the victim is over twelve (12) year old and the carnal act was with her consent as long as she falls under the classification of a child exploited in prostitution and other sexual abuse. Obviously. if the offended party was in a situation where he or she is incapable of giving valid consent. 253 SCRA 277). Incestuous rape was coined in Supreme Court decisions. it would appear that the carnal intercourse is against her will. (People vs. It refers to rape committed by an ascendant of the offended woman. This is referred to as statutory rape. Sexual assault . The offended party is always a woman and the offender is always a man. or violence proven to have been exerted to bring about carnal knowledge or the woman must have been deprived of reason or otherwise unconscious. it must be shown that the carnal knowledge with her was obtained against her will. the effect of which would be the extinction of the offender’s liability. necessary that the offended party should exert all her efforts to prevent the carnal intercourse. intimidation. Sexual intercourse with an insane. In such cases. it can be prosecuted even if the woman does not file a complaint. the force and intimidation need not be of such nature as would be required in rape cases had the accused been a stranger.committed with an instrument or an object or use of the penis with penetration of mouth or anal orifice. there must be force. however.145 Elements and Notes in Criminal Law Book II by RENE CALLANTA Classification of rape (1) Traditional concept under Article 335 – carnal knowledge with a woman against her will. the crime is rape. Even if it was she who wanted the sexual intercourse. The offended party or the offender can either be man or woman. that is. The deprivation of reason contemplated by law need not be complete. the husband may be liable for rape if his wife does not want to have sex with him. this is enough. (People vs. It is not. Under Article 266-C. it is necessary that there be evidence of affirmative resistance put up by the offended woman. although if the rape is incestuous. deranged or mentally deficient. under the new law. It is enough that from her resistance.

A person in authority who maneuvered a scheme where a woman landed in jail. court must always be guided by the following principles: 1. Instead. It would seem that if a woman of majority age had sexual intercourse with a man through the latter’s scheme of pretending to marry her which is the condition upon which the woman agreed to have sex with him. So also. manipulating a sham marriage. if that intention is not proven. The standard amount given now is P 50. However. when he was finished. It has also been held that although the offended woman who is the victim of the rape failed to adduce evidence regarding the damages to her by reason of the rape. The crime committed is only acts of lasciviousness and not attempted rape. (People vs. willingly consented to the sexual act. The new law.146 Elements and Notes in Criminal Law Book II by RENE CALLANTA Note that it has been held that in the crime of rape.A. when carnal knowledge was had by means of fraudulent machinations or grave abuse of authority. the offender can only be convicted of acts of lasciviousness. although the accused raised her skirts. Illustration: Daughter accuses her own father of having raped her. An accusation of rape can be made with facility. the testimony of the complainant must be scrutinized with extreme caution. Allegation of several accused that the woman consented to their sexual intercourse with her is a proposition which is revolting to reason that a woman would allow more than one man to have sexual intercourse with her in the presence of the others. The main distinction between the crime of attempted rape and acts of lasciviousness is the intent to lie with the offended woman. An accused may be convicted of rape on the sole testimony of the offended woman. added new circumstance – that is.00. This is particularly true if the commission of the rape is such that the narration of the offended woman would lead to no other conclusion except that the rape was committed. The slightest penetration – contact with the labia – will consummate the rape. with or without evidence of any moral damage. though innocent. In view of the intrinsic nature of the crime where only two persons are usually involved. 8353. and 3. and who upon promise of being released after having sex with the officer. but more difficult for the person accused.000. the accused did not make any effort to remove her underwear. he stood up and left. may be guilty of Rape if later on he refuses to pay the said amount. conviction does not require medicolegal finding of any penetration on the part of the woman. It has also been ruled that rape can be committed in a standing position because complete penetration is not necessary. may also be found guilty of Rape under this new section. it is difficult to prove. although unsuccessful. It does not require that testimony be corroborated before a conviction may stand. It was only to satisfy a lewd design. A medico-legal certificate is not necessary or indispensable to convict the accused of the crime of rape. In a case where the accused jumped upon a woman and threw her to the ground. a prostitute who willingly had sexual congress with a man upon the latter’s assurance that she would be paid handsomely. R. the court may take judicial notice that there is such damage in crimes against chastity. 2. Ricafort) . and cannot be allowed to draw strength from the weakness of the evidence for the defense. he removed his own underwear and placed himself on top of the woman and started performing sexual movements. the man would be guilty of Rape under this Section. the crime becomes attempted rape. The fact that he did not remove the underwear of the victim indicates that he does not have a real intention to effect a penetration. as long as there is an intent to effect sexual cohesion. In Rape cases. On the other hand. to disprove. Thereafter. The evidence for the prosecution must stand or fall on its own merits.