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Professor: Dean Carlos M.

Ortega

Transcribers:
Marc Roby de Chavez (MARX)

Mon Cristhoper Pasia (MON)


Jennielyn Reyes (JEN)
Angela dela Cruz (ANGELA)

This is the updated version of


2007 TAPSI NOTES
CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

CRIMES AND PENALTIES


The crimes against the law of nations under Title 1 are only
Under Book 2 of the Code, you have specific felonies. You will piracy and mutiny. Therewith, you have, qualified piracy,
have to contend with these provisions if the question would qualified mutiny. And relative to this provision on piracy, you
ask you what crime is committed. have PD 532.

Now you know that under the Rules on Criminal Procedure Now the crimes against national security for the most part
you have to give the designation of the crime given under the can only be committed in times of war. So now there a no
law. You are only allowed to state the provision number, the World War, these crimes are dormant. There are only 3
Article and the subsection if the crime does not have a name crimes here which maybe incurred even in times of peace,
or designation under the law. and these are espionage, violation of neutrality, and giving
motives for reprisals.
Now in the RPC, all felonies arc given their designation. So
you are supposed to make use of such designation. Because if Crimes against national security, generally, cannot be
there is no definite designation of the crime committed, you committed when there is no world war taking place, where
do not know what provision to apply. the Philippines is a participant in that war.

Now your problem here is how to differentiate felonies which General Rule: in times of peace crimes against national
security cannot be committed
shape into similarities. So you give attention to these felonies
where I invite your attention to correlate with corresponding Treason vs Rebellion
felonies. Because these are the usual areas of problems in If offenders confederated to overthrow the Philippine
Criminal Law, where the acts or the circumstances of the Government, what would be the liability of the offenders if
crime are similar. So you will have to think what crime is they were be apprehended?
committed. Absent a state of war taking place, any such
conspiracy to overthrow the government is a
The RPC in Book 2 is divided into Titles. There are 15 titles all conspiracy to commit rebellion.
in all. But the 15th Title only contains transitory provisions.
The felonies arc under the 14 Titles. But in times of war where the Philippines is
involved, any such conspiracy to overthrow the
Now in each of these Titles, you have an average of no less government is treason.
than 10 felonies. So Just on the coverage, to cover 14 titles.
you will have to go over 140 felonies. And you cannot MISPRSION OF TREASON
possibly put this all in mind. Because there are also crimes
Art. 116. Misprision of treason. — Every person owing allegiance to (the
under special laws that you have to consider. United States) the Government of the Philippine Islands, without being a
foreigner, and having knowledge of any conspiracy against them, conceals or
So here you have to be very selective on the crimes which are does not disclose and make known the same, as soon as possible to the
current. Provisions of the Code have been so antiquated that governor or fiscal of the province, or the mayor or fiscal of the city in which
he resides, as the case may be, shall be punished as an accessory to the
there are provisions there which you need not bother about crime of treason.
anymore either because the acts involved arc those where
society has become tolerant, or simply not worth litigating Elements;
anymore. And that is why no Jurisprudence has been 1. Offender owes allegiance to the government, and
Developed on such Articles. not a foreigner;
2. He has knowledge of conspiracy to commit treason
We will go by these felonies. Title by Title. So that your against the government;
remembering them would be systematic. You cannot afford 3. He conceals or does not disclose and make known
Just to be reading, and reading this without assimilating what the same as soon as possible to the governor or
you should remember. fiscal of the province in which he resides, or the
mayor or fiscal of the city in which he resides.
TITLE ONE - CRIMES AGAINST NATIONAL SECURITY AND THE
LAW OF NATIONS Of these crimes under this class of crimes against national
security, first the crime of misprision of treason. The essence
Now under Title I of Book 2, you have two classifications of of the crime is the failure of a person to make known to the
felonies there; one against the Law of Nations; one against Government any conspiracy to overthrow the Government as
National Security. soon as possible.
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CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

The persons mentioned in Article 116 are not limited to INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS
mayor, fiscal or governor. Any person in authority having
equivalent jurisdiction, like a provincial commander, will Art. 118. Inciting to war or giving motives for reprisals. — The penalty of
reclusion temporal shall be imposed upon any public officer or employee,
already negate criminal liability. and that of prision mayor upon any private individual, who, by unlawful or
unauthorized acts provokes or gives occasion for a war involving or liable to
Whether the conspirators arc parents or children, and the involve the Philippine Islands or exposes Filipino citizens to reprisals on their
ones who learn the conspiracy is a parent or child, they are persons or property.
required to report the same. The reason is that although
blood is thicker than water so to speak when it comes to Elements:
security of the state, blood relationship is always subservient 1. Offender performs unlawful or unauthorized acts;
to national security. Article 20 does not apply here because 2. The acts provoke or give occasion for—
the persons found liable for this crime are not considered a. a war involving or liable to involve the
accessories; they are created as principals. Philippines; or
b. exposure of Filipino citizens to reprisals on their
Now since the crime cannot be committed except in times of persons or property
war, any conspiracy to overthrow the Government in times of
peace is rebellion. Misprision of rebellion is not punishable Of the 3 crimes that may be committed even in times of
under the Code. peace, it is the crime of inciting to war or giving motives for
reprisals due you should give attention to. Find this in Art
So it is the element of war going that characterizes the 118.
criminal liability for the crime. Without war, this crime cannot ,
be committed. Example:
The situation where this domestic helper, Flor
Contemplacion, was put to death. She claims that the
Problem was given on this before. So any conspiracy to
employer, her master, was killed by her because he tried to
overthrow the Government hatched when there is no war abuse and subject her to a crime against her honor. She
going on would be conspiracy to commit rebellion. And under was sentenced to death and was actually put to death. At
the Code, the failure to report or bring to the attention of the that that she was convicted despite her protestation that
Government any such conspiracy is not punishable. It is only she was acting in defense of her honor, there were
in times of war that it is punishable. protests, street demonstrations, indignations raised. There
were even groups, who tried to invade Singaporean
In the 1994 bar examination, a problem was given with Embassy in Makati, but there were Makati policemen and
respect to misprision of treason. The text of the provision soldiers went there to prevent them.
simply refers to A conspiracy to overthrow the government.
The examiner failed to note that this crime can only be If they were to intrude in a in the embassy of a foreign
committed in times of war. The conspiracy adverted to must country in the Philippines, they are in law invading the
territory or sovereignty of that foreign country because the
be treasonous in character. In the problem given, it was
embassy grounds and premises of foreign country in
rebellion. A conspiracy to overthrow the government is a
another country is an extension of their territory. If you
crime of rebellion because there is no war. Under the Revised invade that, it is tantamount to invade the Singaporean
Penal Code, there is no crime of misprision of rebellion. country itself and that will invite war.
Crimes that can be committed in times of peace: There are But it invited reprisals. There were domestic helpers in
only 3 felonies classified under Title 1 Book 2 of the Code Singapore who were simply dismissed. There were wages
as a crime against national security and yet may be they have earned were not paid to them. Even their
committed even in time of peace. These are the crimes that passports were not returned to them, kept by their
you should guard against because they are the exceptions employers so they could not leave Singapore. They were
to the rule, that even if there is no war a crime against subject to arrest and detention. So they went on refuge to
national security can be committed. the Philippine Embassy. They stayed there for months and
• Espionage the Philippine government cannot provide them food during
• Inciting to war and giving motives for reprisal their stay.
• Violation of neutrality
Singaporean authorities cannot get them from the
Philippine Embassy there. Otherwise, that would definitely
bring about a state of war. An act of aggression in a foreign
embassy is an act of war. So they stayed there but they
cannot board any aircraft because they have no passport.
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CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

They have no travel documents. Philippine government had Elements of Piracy:


to do it for themselves, but it required processing. They may 1. The vessel is on the high seas or Philippine waters
be illegal entrant, but because the domestic helpers went 2. Offenders are neither members of its complement
there under the authority of the POEA, Philippine nor passengers of the vessel
government did not prosecute those who allowed them to 3. Offenders either:
go there because they went there.
a. Attack or seize a vessel on the high seas or
On a legal manner. They have passports. The only reason Philippine waters
that they could not return is because their passports were b. seize in the vessel while on the high seas or
not given to them by their employers when they were in Philippine waters the whole or part of its
dismissed. That is an act of reprisal that would have fallen cargo, its equipment or personal belongings
under this felony if there is a private interest involved. But of its complement or passengers
because they were brought there with the blessing of the c. There is intent to gain
DOLE, Philippine government cannot prosecute anybody.
The current aspect that you have to note here: piracy under
This crime may be committed as against those who in any the Code now includes such crimes committed in Philippines
manner committed unauthorized acts that have the territorial waters. Before, the Code only covers piracy in the
tendency to invite war or invite reprisals. high seas or outside the Philippine territorial waters.
This case of PIATCO against a German Entity that is ____. If Crimes against law of nations under the title are:
it was not undertaken by the government, this may have
• Piracy and
invited reprisals from Germany, because there is apparent
• Mutiny
bad faith. The Philippine government entered into a
contract. The German entity spent so much money. Now,
These are crimes which know no boundaries, because
they do not want to pay this entity. But because it is the
these are crimes against humanity.
Philippine government who transacted this, this provision of
the Code cannot be implemented because the act is
Illustration:
authorized even though it is in bad faith.
If the piracy is committed in the Sea of Japan and the
pirates, after committing the crime, went to the Philippines,
So this is the article under crimes against national security entered Philippine territory, Philippine courts can acquire
that you may give attention to. In the present global jurisdiction over them. The crime of piracy can be filed in
interaction between countries. It is the crime that becomes Philippine courts. That means the pirates can be arrested
relevant. here even though the piracy was committed in Japan. That
is because it is a crime against the family of nations. It is a
CRIMES AGAINST THE LAW OF NATIONS crime against humanity in general. The offenders may be
prosecuted and punished anywhere, where the offenders
Regarding the crimes against the law of nations, piracy and sought refuge in any country belonging to the family of
mutiny and therewith, qualified piracy and qualified mutiny. nations under the UN.

PIRACY With these two crimes you have qualified piracy, qualified
mutiny.
Art. 122. Piracy in general and mutiny on the high seas or in Philippine 1. know the difference between piracy and mutiny.
waters. — The penalty of reclusion perpetua shall be inflicted upon any 2. what circumstances may qualify, the crime of
person who, on the high seas, or in Philippine waters shall attack or seize a piracy to be bring about qualified piracy; and what
vessel or, not being a member of its complement nor a passenger, shall seize circumstances may bring about qualified mutiny
the whole or part of the cargo of said vessel, its equipment, or personal and render the offender liable for this crime
belongings of its complement or passengers.

The same penalty shall be inflicted in case of mutiny on the high seas or in
The epigram of Art 123 is qualified piracy, but a reading of
Philippine waters. the provision will tell you that these circumstances apply
not only to the crime of piracy but also to the crimes
Acts punished as piracy: referred to in the preceding article, and the preceding
1. Attacking or seizing a vessel on the high seas or in article refers both to piracy and mutiny.
Philippine waters;
Laws governing piracy: There are 2 laws governing piracy in
2. Seizing in the vessel while on the high seas or in
the Philippine territorial waters.
Philippine waters the whole or part of its cargo, its • Piracy under Art 122 of the RPC as amended
equipment or personal belongings of its complement • PD 532
or passengers.
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CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

Where piracy is committed


PD 522 governs only piracy in Philippine territorial waters. The amended in Art 122 is the one that provides a conflict
for purposes of bar exams. This is where you have to pay
The RPC formerly governs only piracy in the international attention to.
waters or in the high seas, but the lawmakers amended
this to include piracy in the Philippine waters not knowing If the offender is a member of the vessel or a passenger of
that there is already a law governing piracy in the Philippine that vessel which is flying Philippine waters the RPC will not
waters which is PD 532. apply.

Does the amendment of Art 122 of the Code repeal PD The RPC applies only when the offender committing the
532? piracy, whether in the high seas or in Philippine waters is a
No, even with the amendment PD 532 still stranger to the vessel or an outsider to the vessel, not a
governs. member of the complement or passenger to the vessel.
Otherwise the Code will not apply.
When will it be the RPC that shall govern piracy in the
Philippine waters? When will it be PD 532? Beyond this, if the piracy in Philippine waters is governed by
the amendment in the RPC because the offender is not a
Offender passenger or member of the complement of the vessel but
PD 532 punishes piracy committed in the Philippine waters an outsider of the vessel, then the participant may be
whether the offender is a stranger to the vessel or a principal, accomplice or accessory. This classification
passenger of member of the complement of the vessel. obtains when the crime is governed by the RPC.

Whereas reading the article of the code, Art 122, only those Receiving or accepting loot from the pirates
who are strangers to the vessel, not as passenger nor a If the crime is governed by PD 532, there is no accomplice,
complement of the vessel, can commit the crime of piracy. no accessories. The offenders are punished in the same
So the change made by the law makers, including manner unless the law provide otherwise. So whatever
Philippine waters, did not affect any change because the exceptions there are under the Code which applies to
intended change is only on the venue where the crime is accessories do not apply to the violation of PD 532. Hence,
committed. acts of an accessory under Art 19 of the Code do not apply
to those who are similarly involved in piracy under PD 532.
As to who the offender is has not been expanded, because Instead take note of Sec 4 of PD 532.
under the Code, there must be a principal offender one who
is an outsider to the vessel, as stranger to the vessel – not One who would benefit from the loot of the pirates if the
a passenger nor a member of the complement of the piracy is governed by the Code is accessories to the piracy
vessel. (par 1 Art 19).

But in Philippine waters, common act of piracy is committed Under PD 532 one who would participate in the loot of the
by members of the complement of the vessel, taking pirates are not accessories, but offenders violating Sec 4 of
advantage of the passenger who board the watercrafts the Decree. They incur the crime of aiding in or abetting
navigated in the Philippine waters. Unlike in the high seas piracy. Under this section the liability will be that of an
where the offender is really an outsider to the vessel. That accomplice. So one who receive or accept any part of the
is an international water, you cannot expect bancas to be loot of the pirates, if the piracy is governed by PD 532, will
sailing there. But within our Philippine waters, within our incur the crime of aiding in or abetting piracy (Sec 4).
rivers you can expect bancas, any watercraft and these are
the ones used. So the amended is meaningless. It did not Essence of piracy
change who the offender is. Under PD 532, piracy in Philippine waters may be
committed by anyone, whether a stranger to the vessel or a
In short if the offender committing piracy in Philippine passenger of the vessel or a member of the complement of
waters is member of the complement of that vessel or as a the vessel.
passenger of that vessel, the RPC as amended will not
apply. It will still be PD 532 that will apply. The amendment The essence of piracy under decree is one of robbery
in the RPC did not entirely repeal PD 532. characterized by intent to gain except that the object of the
depredation is:
Other crimes punished under PD 532 • a vessel in the sea or territorial waters, or
PD 532 punishes not only piracy but also Highway • the cargoes of the vessels or the belongings of the
Robbery or Brigandage. passengers, or
• the belongings of the members of the complement
So this decree is important insofar as the crimes of the vessel
under the RPC are thereby modified or expanded.
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CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

It is a piracy where the criminal intent of the offender is to


Under the RPC, piracy whether in the high seas or gain because, as I said, piracy is simply robbery committed in
international waters or in Philippine waters when the the seas or body of water or any tributaries within the
principal offender is a stranger to the vessel, not a Philippine Archipelago.
passenger of the vessel nor a member of the complement
of the vessel. Otherwise, piracy cannot be committed by
In mutiny, the offenders are passengers or members of the
such offender.
complement of the vessel.
No robbery in the high seas
Commentaries tells you that if the offender in a piracy This differs from piracy under PD 532, in that, in piracy, the
under the Code is not a stranger to the vessel but a offenders acted with intent to gain, the so-called animus
member of the complement or a passenger thereof the lucrandi, whereas in mutiny, the offenders rise in
crime is robbery in the high seas. Under the RPC there is no commotions, disturbances during the voyage of the vessel by
such crime. way of defying, disobeying or going against the lawful
command of the captain of the vessel.
The high seas is regarded as an uninhabited place. You
have under the RPC robbery in an uninhabited place not Distinction between mutiny and piracy:
piracy. So that it is the crime if the offender involved does (1) As to offenders,
not qualify to be committing piracy because he is a
• Mutiny is committed by members of the
passenger or a member of the complement of the vessel,
complement or the passengers of the vessel.
not entirely an outsider to vessel.
• Piracy is committed by persons who are not
members of the complement or the passengers
Now, even if the water craft involved is only moored or tied
of the vessel
or anchored, if robbery is committed by outsiders against that
(2) As to criminal intent:
vessel of the cargo thereof or the personal belongings of the
passengers or members of the complement of the vessel, • In mutiny, there is no criminal intent.
such robbery is known as piracy. • In piracy, the criminal intent is for gain.

The taking, characterized by violence against or intimidation QUALIFIED PIRACY / QUALIFIED MUTINY
of, persons or force upon things, the object may be the vessel
Art. 123. Qualified piracy. — The penalty of reclusion temporal to death shall
itself or the cargo of the vessel or any part thereof, or the be imposed upon those who commit any of the crimes referred to in the
personal belongings of the passengers or members of the preceding article, under any of the following circumstances:
complement of the vessel, this is piracy. 1. Whenever they have seized a vessel by boarding or firing upon
the same;
2. Whenever the pirates have abandoned their victims without
MUTINY means of saving themselves; or
3. Whenever the crime is accompanied by murder, homicide,
Mutiny is the unlawful resistance to a superior officer, or the physical injuries or rape.
raising of commotions and disturbances aboard a ship against
the authority of its commander. In Art 123. you have there qualified piracy as the epigram of
the article. On reading the text of the provision, you will note,
Elements of mutiny: even mutiny is included there. But among the circumstances
nd rd
1. The vessel is on the High seas or Philippine waters; that will qualify mutiny are only those in the 2 and 3
2. Offenders are either members of its complement or circumstances.
passengers of the vessel
3. Offenders either: The 1st circumstance where the offenders boarded the vessel
a. Attack or seize the vessel; or firing upon the same contemplates of offenders outside the
b. Seize the whole or part of the cargo, its vessel. Now that is not possible in mutiny because in mutiny,
equipment, or personal belongings of the the offenders are inside the vessel already. So it is only the
nd rd
crew or passengers 2 and 3 circumstances in Art 123 that would qualify
mutiny.
Now mutiny differs from piracy in that the essence of mutiny
is that of defying or going against the lawful command of the More important among the circumstances are chose
captain of the vessel. Intent to gain is not the criminal intent mentioned in the 3rd enumeration, where the piracy or the
here. Whatever benefit the mutineers would, derive Is simply mutiny are attended by murder, homicide, physical injuries,
secondary or incidental here. or rape.

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CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

Now you should take note of this. The murder, homicide, When it comes to the aircraft the reference under laws of
physical injuries, or rape do not stand here as crimes. They other countries is aircraft piracy. Here this is governed by
stand here only as circumstance that qualifies the piracy or RA 6235. But even that law does not refer to this crime as
the mutiny. Hence, in a piracy where there was a killing you hijacking. The law simply refers to an Act Inimical to Civil
do not call crime as piracy with homicide. It is simply qualified Aviation.
piracy. So regardless of the number of persons killed in the
So if you encounter a problem of this, do not say hijacking
piracy, the crime is simply qualified piracy. because that is a street name in the same manner as
rd shabu is not a legal term. The legal term for shabu is
In the same way, since rape is included in the 3 methamphetamine hydrochloride. This is the term used in
circumstance, regardless of the number of times the victim the Dangerous Drugs Law.
was raped, there will only be one crime of qualified piracy or
Qualified mutiny. If you encounter a problem which constitutes a violation of
RA 6235 the crime is Violation of RA 5235 commonly
You will not complex any of these crimes under the 3rd known as Hijacking.
circumstance because they do not stand here as crimes but
only as qualifying circumstances. Acts punished under RA 5235
Under this law there are 4 acts which constitute as violation
Now if the crime committed by reason or on the occasion of thereof:
the piracy or mutiny is not one of them, the crimes may be • Firstly, seizing or usurping control of an aircraft of
Philippine Registry or compelling a change in the
complexed. So it does not mean qualified piracy or qualified
course or destination of the aircraft while it is in
mutiny anymore.
flight
• usurping or seizing control over aircraft of foreign
For instance, the captain of the vessel during the voyage registry to land in any part of Philippine territory or
thereof is a person in authority vested with jurisdiction over usurp or seize control thereof while in Philippine
the vessel. That is why you have learned that during the territory.
voyage, the captain may solemnize validly a marriage in • carrying or transporting on board a “passenger”
articulo mortis. But not when the vessel is not on voyage. aircraft any explosive, flammable, corrosive or
poisonous substance or material.
Now being a person in authority during the voyage of the • loading or transporting or shipping on board a
vessel, if during the piracy or the mutiny the captain is cargo aircraft operating as a public utility in the
subjected to such force or violence, crime of direct assault Philippines any of the said prohibited substances if
will arise. And under par 3 or Art 123, direct assault is not the same was done not in accordance with the
included there. So if this crime attends the piracy or the rules and regulations laid down by the Civil
mutiny, you will have to complex. It will then be piracy with Aeronautics Administration now know as the Air
direct assault or mutiny with direct assault. This is only, Transportation Office (ATO).
however, insofar as the captain of the vessel is concerned. Section
Section 1. It shall be unlawful for any person to compel a change in the
course or destination of an aircraft of Philippine registry, or to seize or
REPUBLIC ACT No. 6235 usurp the control thereof, while it is in flight. An aircraft is in flight from the
moment all its external doors are closed following embarkation until any of
such doors is opened for disembarkation. X x x x x
AN ACT PROHIBITING CERTAIN ACTS INIMICAL TO CIVIL
AVIATION,
AVIATION, AND FOR OTHER PURPOSES
In flight
This term “piracy” in some other penal codes is also On this first violation the point that you should bear in mind
the law applies only when the aircraft is in flight.
applied to aircrafts. In some penal codes there is a crime of
aircraft piracy, which in our jurisdiction is commonly known
The phrase “in flight” is defined in the law itself as when all
as “hijacking,” under RA 6235. But a reading of this law
tells you that the crime thereunder is not referred to as exterior doors of the aircraft had been closed following an
embarkation, that means that there are passengers that
hijacking because hijacking is commonly used in waylaying
boarded the aircraft, up to such time the same exterior
of cargo trucks. We also use that here. Cargo trucks
doors are again opened for disembarkation.
transporting cargoes from Clark fields to some other points
in Luzon are waylaid along the highway. The offenders bring
Note that, it is not required that the aircraft be airborne. It
the truck to an isolated place after dumping off the driver
is not required that the aircraft be flying. Even if the aircraft
and the helpers in the truck and they unload the cargoes of
is parked at the tarmac of the airport, if all exterior doors
the truck in unknown warehouse. That is why in other
there have all been closed because passengers have all
countries hijacking is confined to this kind of robbery.
boarded that aircraft is already in flight. From that time, on
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CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

the law governing the violation inside the aircraft will be RA Lotion also is not allowed because this is corrosive to the
6235. Before that it would be the RPC or some other penal skin of those who want to be beautiful. It removes the stain.
law. It may be only checked in with the other baggage which is
hand carried.
The crime under RPC when this will be the one governing
will be grave threats, or grave coercion aside from a Section 4. The shipping, loading or carrying of any substance or material
possible killing or inflicting of serious physical injuries for mentioned in the preceding section in any cargo aircraft operating as a
public utility within the Philippines shall be in accordance with regulations
that purpose. issued by the Civil Aeronautics Administration.

Note that under this violation in par. 1 of RA 6235 the Last violation under this law is that of loading or
requirement that the aircraft be in flight before this law will transporting or shipping on board a cargo aircraft operating
govern is true only to an aircraft of Philippine registry. as a public utility in the Philippines any of the said
prohibited substances if the same was done not in
Section 1. x x x x x x accordance with the rules and regulations laid down by the
It shall likewise be unlawful for any person to compel an aircraft of foreign Civil Aeronautics Administration now know as the Air
registry to land in Philippine territory or to seize or usurp the control Transportation Office (ATO).
thereof while it is within the said territory.
Not when it comes to a cargo aircraft, the prohibition is not
It is the 2nd violation which refers to aircrafts of foreign absolute. The shipmen are allowed provided it is done in
registry. When it comes to aircraft of foreign registry it is not accordance with the rules and regulations prescribed by
required that the aircraft be in flight, because foreign the ATO. This office, the packing or packaging of this
aircraft are regarded as in transit for as long they have substances, the quantity that may be allowed a single
returned to their home base. shipment. Only where the rules and regulations prescribed
are violated will the same amount to a violation of the RA
Under the second violation of RA 6235 the act is that of 6235.
usurping or seizing control over aircraft of foreign registry to
land in any part of Philippine territory or usurp or seize Any other culpable act provided for in this law is only a
control thereof while in Philippine territory. circumstance affecting the penalty prescribe for this law –
like exploding the aircraft or trying to destroy the aircraft,
If while it is unloading cargoes, unloading passengers, one the penalty is mandatory death. It is not itself an act
would take over control of the aircraft that is already punished as violation of this law. It is only a circumstance
governed by RA 6235 of the acts punished under anyone of the four. The
circumstance under which it was committed determines
Section 3. It shall be unlawful for any person, natural or juridical, to ship, the penalty.
load or carry in any passenger aircraft operating as a public utility within
the Philippines, and explosive, flammable, corrosive or poisonous
substance or material. The violation of the prohibition under the 3rd and 4th
situations referring to the carrying of prohibited substances
The third violation of this law is that of carrying or will bring about additional prosecution for any injury to
transporting on board a “passenger” aircraft. person or damage to property which is punished under the
RPC. So as far as those prohibited substances are
Underscore the word “passenger.” This violation does not concerned the violation will not only be RA 6235 but also
apply to an aircraft which is not a passenger aircraft. physical injuries or death if this would be consequence of
such violation. There will be separate prosecution for this
Passenger aircraft operating in the Philippines as a public under the RPC.
utility aircraft, that means not a private aircraft, any
substances which is flammable, corrosive, poisonous or TITLE 2 – CRIMES AGAINST THE FUNDAMENTAL LAW OF
explosive. THE STATE

The mere carrying on board, if it a passenger aircraft The fundamental law of the state is the Constitution. The
operating as a public utility in the Philippines, is a violation Constitution is primarily crafted to protect the rights of the
of RA 6235. citizen against abuses by those who are in the government
administering the law to govern the country.
Illustration:
If you have been riding in these aircraft, even inter-islands It is required that the principal offender must be a public
aircraft, you are bringing any liquid there which is vinegar, officer, and not just any public officer, he must be a public
they will not allow you because this is a corrosive officer acting under the color of his authority.
substance.

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The important crimes here are Arbitrary Detention and


Violation of Domicile The commission of a crime, or violent insanity or any other ailment requiring
the compulsory confinement of the patient in a hospital, shall be considered
legal grounds for the detention of any person.
Arbitrary Detention has a counterpart crime of Illegal
detention under Title 9, Book 2 of the Code (crime against
personal liberty and security) – know the distinction Elements:
between the two, the manner of committing the crime and 1. Offenders is a public officer or employee
who the offenders may be. 2. He detains a person
3. The detention is without legal grounds
The crime of Violation of Domicile has a counterpart crime
under Art. 280 of Title 9, Book 2, the crime of Qualified Meaning of absence of legal grounds
trespass to dwelling (also a crime against personal liberty 1. No crime was committed by the detained
and security). In the crime of Violation of domicile, the 2. There is no violent insanity of the detained person;
principal offender must be a public officer which official and
duties confer on him the authority to make searches and 3. The person detained has no ailment which requires
seizure inside a citizen’s dwelling. (Note: when it should be compulsory confinement in a hospital
a violation of domicile and when it should be qualified
trespass to dwelling). Not any public officer can incur this
The crime of arbitrary detention assumes several forms;
crime.
(1) Detaining a person without legal grounds under Art.
ARBITRARY DETENTION (Articles 124, 125 and 126) 124
(2) Having arrested the offended party for legal
Art. 124 – where from the very beginning the detention is grounds but without warrant of arrest, and the
regarded as arbitrary public officer does not deliver the arrested person
to the proper judicial authority within the period of
Art. 125 – where the detention becomes arbitrary only 12, 18, or 36 hours, as the case may be (Art. 125); or
after the lapse of the period of time allowed the arresting or (3) Delaying release by competent authority with the
detaining officer to hold the arrested person without any same period mentioned in number 2 (Art.126)
charge yet being filed in court. Here the detention becomes
arbitrary only when the period specified under Art 125 has In Article 124, from the very beginning the detention is
already expired and still no criminal complaint has been already arbitrary, hence felonious. The detention is without
filed against the arrested person whereas the arrested any legal cause/ground
person continued to be held under detention
The principal offender in this crime must be a public officer
Art. 126 – where the offended party is legally held under whose official duties confer the authority to make arrest
detention but his release/discharge had been ordered by and detain persons. Although the offender is a public
higher authorities. A public officer who is holding such officer, if his official duties do not authorize him to make
detained person shall incur arbitrary detention if he would arrest and detain persons, any such detention done by him
delay the release of such detained person even after such would be committed in a private capacity. The crime
release had been ordered by higher authorities. therefore is not arbitrary detention but illegal detention. So
not any public officer who detains an offended party will
All these 3 felonious acts may be designated as Arbitrary incur the crime of arbitrary detention. The offender must be
Detention, although Article 125 and Article 126 specifies a acting under the color of his authority, meaning to say
different epigram for the violation involved. Generically, purportedly exercising the legal limits of his authority. But if
they are known as Arbitrary Detention. he has no authority at all, the crime will be committed in a
private capacity. The crime is not arbitrary detention but
ARBITRARY DETENTION illegal detention.

Art. 124. Arbitrary detention. — Any public officer or employee who, without In Administrative law, there is a basic proposition that a
legal grounds, detains a person, shall suffer; public officer is regarded as a public officer only when he
1. The penalty of arresto mayor in its maximum period to prision
acts within the parameters of his public authority. The
correccional in its minimum period, if the detention has not
exceeded three days; moment he would transgress the limits of that authority he
2. The penalty of prision correccional in its medium and maximum is no better than an ordinary citizen. He cannot receive the
periods, if the detention has continued more than three but not protection given by the law because he is acting unlawfully
more than fifteen days; already.
3. The penalty of prision mayor, if the detention has continued for
more than fifteen days but not more than six months; and
Although the principal offender in these felonies need be a
4. That of reclusion temporal, if the detention shall have exceeded
six months.
public officer, if a civilian would cooperate with such public
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CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

officer as an accomplice or accessory or would conspire purposely to file a criminal complaint against the arrested
with such public officer, the civilian will also incur the crime person and charge him in court, although the arrest is
of arbitrary detention/violation of domicile, as the case may unlawful, the detention being merely incidental to the
be. In short, you should not split the crime. As far as this unlawful arrest, will not necessarily amount to an arbitrary
public officer is concerned the crime is arbitrary detention detention when the person who made the unlawful arrest is
and as far as the participating civilian is concerned the a public officer.
crime is illegal detention – that is wrong. You do not split
the crime committed on one occasion. The crime of unlawful arrest under Art. 269 is committed
not because the person has not committed a crime and yet
So even a public officer will be committing not arbitrary he was arrested and detained. Even though the person
detention but illegal detention if he is acting in a private arrested and detained had committed a crime, the crime of
capacity not in his capacity as a public officer with the unlawful arrest is still committed if the arrest was without a
authority to make arrest and detain the arrested person. warrant of arrest and the situation where the warrantless
arrest was done is not any of the situation provided under
Example : A janitor in the city hall is a public officer. sec. 5 Rule 113 of the Rules of Criminal Procedure, where
Because a visitor in the city hall entered the men’s room warrantless arrest is authorized by law. The arrest is not an
and started to urinate carelessly, that instead of urinating unlawful arrest because the person arrested has not
in the urinal bowl he is urinating in the floor that the janitor committed a crime. Even if the person arrested has
is moping, the janitor disappointed with this fellow, locked committed a crime, if the arrest done is without a warrant
the men’s room outside so the fellow cannot go out when or the warrantless arrest is not one of those covered by sec.
he wanted to go out already. The janitor did not unlocked 5 Rule 113, the arrest is unlawful. So the question is only
the room so it is already past 5 o’ clock. What is the crime whether the detention of the person unlawfully arrested will
committed? bring about further the crime of Arbitrary Detention, since
Do not say arbitrary detention because the janitor the arrest is not lawful.
has no right to make arrests and detain persons,
he doing so in a private capacity and therefore he It is not necessarily arbitrary detention because Art. 269
is no better than a civilian. Crime committed is authorizes the detention of the person arrested purposely
illegal detention. to file a criminal complaint against him. You do not arrest a
person only to release him, precisely he is being arrested to
Problem along this thrusts have been given in the past bar file a case against him.
exams to emphasize the difference between the crime of
illegal detention and arbitrary detention. The distinction lies If, however, the officer who arrested the offended party did
on who the offender is. And it is not merely the offender is a not take steps to file a criminal case against the arrested
public officer or not. It is also a question of what kind of person, it would appear that the arrest was done not for
public officer he is. the purpose of delivering him to the proper authorities for
the wrong that he has done, rather it would appear that the
Arbitrary Detention under Art 124 in relation to Unlawful person arrested was only so arrested to detain him and
arrest under Art 269 deprive him of his liberty. If this would be the situation the
offender, a public officer, will be incurring not just the crime
Art. 269. Unlawful arrest. — The penalty of arresto mayor and a of unlawful arrest but also the crime of arbitrary detention.
fine not exceeding 500 pesos shall be imposed upon any person So the crime committed by such public officer would be a
who, in any case other than those authorized by law, or without complex crime – Arbitrary detention through unlawful
reasonable ground therefor, shall arrest or detain another for the
purpose of delivering him to the proper authorities.
arrest. This was the subject of a bar problem in the mid
70’s.
Relative to the crime of arbitrary detention under Art. 124
you should correlate this with Art. 269 (UNLAWFUL The detention becomes arbitrary if the officer who made
ARREST). You should have already learned that Unlawful the unlawful arrest would not take steps to file a criminal
Arrest carries with it the act of the arresting public officer or complaint against the arrested person. So it would appear
civilian in detaining the arrested person purposely to that the arrest was done only to detain him and deprive him
prepare a criminal complaint against him, to deliver him to of his liberty. But if the unlawful arrest brought about the
the proper authorities. In other words, you should readily detention of this person arrested, the officer prepared the
see that the arrest is covered by Art. 269, where the papers to file a case against him in court, the incidental
offender made the arrest to deliver the arrested person to detention of the person arrested is part of the unlawful
the proper authorities. Meaning to say, to file a case arrest because under Art. 269 person unlawfully arrested
against him in court. may be detained for the purpose of delivering him to the
proper authorities. Read carefully Art. 269.
So the detention of the arrested person would be incidental
to the crime of unlawful arrest. Since the detention is done But if that was not done, the detention would therefore not
an incident of the arrest. The detention is done as a
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CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

consequence of the arrest. The arrest was done purposely Art. 125. Delay in the delivery of detained persons to the proper judicial
to deprive him of his liberty. That is why the crime authorities. — The penalties provided in the next preceding article shall be
committed is a complex one, Arbitrary detention through imposed upon the public officer or employee who shall detain any person for
some legal ground and shall fail to deliver such person to the proper judicial
unlawful arrest. authorities within the period of; twelve (12) hours, for crimes or offenses
punishable by light penalties, or their equivalent; eighteen (18) hours, for
Distinction between arbitrary detention and illegal crimes or offenses punishable by correctional penalties, or their equivalent
detention and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or
capital penalties, or their equivalent.
In arbitrary detention:
• The principal offender must be a public In every case, the person detained shall be informed of the cause of his
officer. civilians can not commit the crime detention and shall be allowed upon his request, to communicate and confer
of arbitrary detention except when they at any time with his attorney or counsel.
conspire with a public officer committing
this crime, or become an accomplice or Elements:
accessory to the crime committed by the 1. Offender is a public officer or employee
public officer; and 2. He detains a person for some legal ground
• The offender who is a public office has a 3. He fails to deliver such person to the proper judicial
duty which carries with it the authority to authorities within:
detain a person. a. 12 hour for light penalties
b. 18 hours for correctional penalties; and
In illegal detention: c. 36 hours for afflictive or capital penalties.
• The principal offender is a private person.
The requirements that would bring about the application of
But a public officer can commit the crime of this article:
illegal detention when he is acting in a (1) that the arrested person has indeed committed a
private capacity or beyond the scope of his crime;
official duty, or when he becomes an (2) that the arrest was without warrant of arrest but
accomplice or accessory co the crime made under the circumstances provided under
committed by a private person. sec. 5 Rule 113 of the Rules of Criminal
• The offender, even if he is a public officer, Procedure;
does not include as his function the power (3) that the arrested person is held under detention
to arrest and detain a person, unless he purposely to file a criminal complaint against him
conspires with a public officer committing as a mode of delivering him to the proper judicial
arbitrary detention. authorities;
(4) that the arrested person has been held without any
criminal complaint having been filed in court
Arbitrary Detention vs Illegal Detention
whereas the period of:
One who unlawfully detains or deprives another of
his liberty or freedom of movement may incur a • 12 hours from the commencement of
crime of arbitrary detention or illegal detention. detention had already lapsed if the crime
involved carries a light penalty or its
Arbitrary detention is categorized as a Crime equivalent;
against the Fundamental Law of the State, Title 2 • 18 hours from the time of detention had
Book 2 of the Code. already lapsed if the crime imputed to him
carries a penalty which is only correctional
On the other hand, Crime of Illegal Detention is or its equivalent;
categorized as a Crime Against Personal Security • 36 hours where the crime imputed carries
and Liberty under Title 9 Book 2 of the Code. afflictive penalty or its equivalent or the
death penalty.
The gravamen of the crime is the same yet in a
certain situation where this is committed the crime So the period when the arresting or detaining person is
is arbitrary detention, while in another situation allowed to hold the arrested person without a criminal case
where the same crime is committed, the crime is being filed yet depends on the gravity of the crime for which
illegal detention. This is the nature of the problem such person was arrested. The period of 12, 18, 36 hours
you will encounter in respect of each specific is the period the arresting officer is allowed to hold the
felonies. arrested person without a criminal complaint yet filed in
court against him. When any of these periods, as the case
may be, had already lapsed and there is yet no criminal
complaint filed in court against the arrested person, the

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arresting officer or detaining officer will incur the crime of assisted by a counsel preferably of his own choice
arbitrary detention under Art. 125. and
(3) if he cannot afford to engage a counsel of his
These periods do not apply to Arbitrary Detention under choice, the government will provide one for him.
Article 124 because, in this case, the detention of the
offended party is arbitrary from the very beginning. All these are required of the arresting officer to inform the
arrested person at that instance of the arrest when the
Article 125 of the Code is not applicable when the arrest arrested person is being taken into custody. And under this
made there under is by virtue of a valid warrant of arrest. RA 7438 if the public officer making the arrest did not
You only apply these when the arrest is without a warrant. comply with this, the penalty prescribed under this law is
equal to prision mayor in the medium period. Imprisonment
these periods of 12, 18 and 36 hours do not run when the from 8-10 years. You should correspondingly read this law
courts are close to receive the filing of cases. So the because there are other provisions there on the right of the
arresting or detaining person cannot be faulted for not filing arrested person to be visited by his family, by people who is
a criminal complaint against the arrested person if after all close to him including his boyfriend or girlfriend at any time
the court is closed to receive the filing of such case. The of day or night. The right of the person to refuse invitation
periods of 12, 18 and 36 hours will run only when the court by law enforcers without the benefit of the warrant is also
is open to receive the filing of cases. So during the period mentioned in this special law.
that the courts are closed, these periods are suspended. So
during holidays, weekends, night time, the running of these Section 2. Rights of Persons Arrested, Detained or Under Custodial
periods is suspended. At night time these periods will run Investigation; Duties of Public Officers. –
only if there was a night court and the night court is still (a) Any person arrested detained or under custodial investigation shall at
open to receive the filing of the cases. So these periods all times be assisted by counsel.
continue to run. But the moment the night court closes,
these periods are suspended. (b) Any public officer or employee, or anyone acting under his order or his
place, who arrests, detains or investigates any person for the commission
of an offense shall inform the latter, in a language known to and
You will recall under Rule 112 of the Rules in Criminal understood by him, of his rights to remain silent and to have competent
Procedure, you have the so called preliminary investigation and independent counsel, preferably of his own choice, who shall at all
in criminal cases. If an offender was arrested without a times be allowed to confer privately with the person arrested, detained or
under custodial investigation. If such person cannot afford the services of
warrant of arrest because he was arrested in flagrante or his own counsel, he must be provided with a competent and independent
about to commit, or while committing or had just committed counsel by the investigating officer.lawphi1Ÿ
a crime. If the crime committed calls for a preliminary
investigation, Section 6 of Rule 112, the offender who (c) The custodial investigation report shall be reduced to writing by the
investigating officer, provided that before such report is signed, or
decides the benefit of preliminary investigation is required thumbmarked if the person arrested or detained does not know how to
to execute a waiver of Article 125 of the Code so that the read and write, it shall be read and adequately explained to him by his
arresting officer may not be liable for Arbitrary detention. counsel or by the assisting counsel provided by the investigating officer in
The said Rule of Criminal Procedure requires that the the language or dialect known to such arrested or detained person,
otherwise, such investigation report shall be null and void and of no effect
waiver must be in writing and made with the assistance whatsoever.
and presence of a counsel. So if that waiver cannot be
done as required the arrested person may be immediately (d) Any extrajudicial confession made by a person arrested, detained or
charged in court to save the neck of the arresting or under custodial investigation shall be in writing and signed by such person
in the presence of his counsel or in the latter's absence, upon a valid
detaining officer from incurring the crime of arbitrary waiver, and in the presence of any of the parents, elder brothers and
detention. So the correlation of this provision of Sec 6 of sisters, his spouse, the municipal mayor, the municipal judge, district
Rule 112 and Art 125 of the Code is your duty. school supervisor, or priest or minister of the gospel as chosen by him;
otherwise, such extrajudicial confession shall be inadmissible as evidence
in any proceeding.
Also relevant at this stage when an offender is arrested in
flagrante, without a warrant of arrest is RA 7438 which (e) Any waiver by a person arrested or detained under the provisions of
requires the arresting officer to inform the person arrested Article 125 of the Revised Penal Code, or under custodial investigation,
of his constitutional rights at the moment he is being taken shall be in writing and signed by such person in the presence of his
counsel; otherwise the waiver shall be null and void and of no effect.
into custody. This law also provide that the officer making
the arrest should comply with what is known as MIRANDA (f) Any person arrested or detained or under custodial investigation shall
WARNING in criminal procedure (a landmark legal process be allowed visits by or conferences with any member of his immediate
laid down in the case of Miranda v. State of Arizona). Any family, or any medical doctor or priest or religious minister chosen by him
or by any member of his immediate family or by his counsel, or by any
arresting officer upon the taking the offender into custody national non-governmental organization duly accredited by the
must inform him of Commission on Human Rights of by any international non-governmental
(1) his right to remain silent, organization duly accredited by the Office of the President. The person's
(2) that any statement he may give or make may be "immediate family" shall include his or her spouse, fiancé or fiancée,
parent or child, brother or sister, grandparent or grandchild, uncle or aunt,
used against him in evidence in any courts of law, nephew or niece, and guardian or ward.
(3) he must be informed that he has a right to be
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As used in this Act, "custodial investigation" shall include the practice of The corollary provision on this is found under the Rules of
issuing an "invitation" to a person who is investigated in connection with Criminal Procedure, Rule 112. You should correlate this
an offense he is suspected to have committed, without prejudice to the
liability of the "inviting" officer for any violation of law. (RA 7438) with this matter.

RA 7348 Art. 126. Delaying release. — The penalties provided for in Article 124 shall
be imposed upon any public officer or employee who delays for the period of
time specified therein the performance of any judicial or executive order for
Whether the arrest is by virtue of a warrant or without a the release of a prisoner or detention prisoner, or unduly delays the service
warrant, the arresting officer is required to inform the of the notice of such order to said prisoner or the proceedings upon any
arrested person of his constitutional rights. That is required petition for the liberation of such person.
if a supposed offender is to be taken into custody so that
anything the arrested person may state when already under Acts punished:
custody will be considered as covered by his right to remain • Delaying the performance of a judicial or executive
silent. He must be informed thereof. This rights of the order for the release of a prisoner
arrested person to be informed of his constitutional rights
upon being placed under arrest for custodial interrogation • Unduly delaying the service of the notice of such
is laid down in the case of Miranda vs Arizona and so the order to said prisoner
same has been known as Miranda warnings to apprise the • Unduly delaying the proceedings upon any petition
arrested person of his constitutional rights in the event that for the liberation of such person.
he is not aware thereof.
Elements:
The statement whether incriminatory or not will not be 1. Offender is a public officer or employee;
admissible in evidence during the trial of any case that may 2. There is a judicial or executive order for the release
be filed against the arrested person. Beyond that the of a prisoner or detention prisoner, or that there is
arresting person is subject to penal sanction under RA a proceeding upon a petition for the liberation of
7348. Penalty is stiff because it is within the range of such person;
prision mayor medium 8 - 10 years imprisonment. 3. Offender without good reason delays:
a. the service of the notice of such order to
In other words, upon arrest of a person to be taken under
custody the implication is that the person to be arrested the prisoner;
has committed a crime. So eventually proceedings in court b. the performance of such Judicial or
will follow. Whatever may be obtained from him after he is executive order for the release of the
taken into custody is not admissible him unless he is prisoner; or
forewarned of his constitutional right. c. the proceedings upon a petition for the
release of such person.
A waiver of his right requires the assistance of a counsel
and in the presence of a counsel. This found in Sec 6 of The 3rd form or arbitrary detention involves one already
Rule 112 of the Rules on Criminal Procedure. being held under detention but whose release has been
ordered by higher authorities. So the public officer
It may happen that the crime for which the offender was detaining the subject is bound to obey the order to
placed under arrest calls for preliminary investigation. discharge the person held.
Whereas under Art 125, the arresting officer is allowed only
a period of 12, 18, or 36 hours as the case may be to hold Where higher authorities already ordered the discharge or
the arrested person without a case being filed in court yet. release of the person being detained, the detaining officer
After that, any further detention of the arrested person will have to follow. If he unnecessarily delay the release of
would be regarded as arbitrary and therefore the penal the detained person to the extent the release is delayed,
sanction under Art 125 will therefore apply against the crime of arbitrary detention is incurred by the public officer
arresting officer. So the arresting officer will be compelled who should obey the order of release but did not
to file the case in court, forgo the preliminary investigation reasonably obeyed the same. So this 3rd form of arbitrary
in order to save his neck from possible liability for arbitrary detention arises not out of arresting the offended party but
detention. out of not releasing the offended party within the time that
he should be released from detention.
If the arrested person would want to avail of his right to a
preliminary investigation, he should waive the period fixed
under Art 125 of the RPC. That waiver is not valid if not
done with the assistance of a counsel and in the presence
of a counsel.

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VIOLATION OF DOMICILE This crime of violation of domicile has a counterpart crime


under Art 280 of Title 9 Book 2 of the Code (Qualified
Art. 128. Violation of domicile. — The penalty of prision correccional in its trespass to dwelling)
minimum period shall be imposed upon any public officer or employee who,
not being authorized by judicial order, shall enter any dwelling against the For this crime of violation of domicile, again the offender
will of the owner thereof, search papers or other effects found therein must be a public officer acting the supposed authority that
without the previous consent of such owner, or having surreptitiously
entered said dwelling, and being required to leave the premises, shall refuse
he has but in fact acting unlawfully. So the public officer
to do so. who may incur this are those whose official duties confer
on them the authority make searches and seizures. They
If the offense be committed in the night-time, or if any papers or effects not are the public officers who implement search warrants.
constituting evidence of a crime be not returned immediately after the
search made by the offender, the penalty shall be prision correccional in its The offender may be a public officer, but if his official
medium and maximum periods.
duties do not give him any authority to make searches and
seizures any unlawful intrusion into the dwelling of another
Acts punished: to make a search will not amount to violation of domicile
1. Entering any dwelling against the will of the owner but rather to a crime of qualified trespass to dwelling. Any
thereof; public officer in a public capacity will be liable not as a
2. Searching papers or other found therein without the public officer but as a private citizen. He is only acting as a
previous consent of such owner; or public officer if he is acting within his authority conferred by
3. Refusing to leave the premises, after having law.
surreptitiously entered said dwelling and after
having been required to leave the same. Do not think that just because public officer whose official
duties carry with it the authority to make searches and
Common elements: seizures would not incur the crime just because he is acting
on the strength of a search warrant.
1. Offender is a public officer or employee;
2. He is not authorized by judicial order to enter the
Search warrant is nothing but an authority issued by the
dwelling or to make, a search therein for papers or court to conduct a search for some contraband. Any act
other effects. outside the parameters of making the search is not
included within the authority given. The right of the citizen
Circumstances qualifying the offense to enjoy the privacy and sanctity of his dwelling is of
1. If committed at nighttime; or paramount significance.
2. If any papers or effects not constituting evidence of
a crime are not returned immediately after the What is important to bear in mind are the instances where
search made by offender. although the public officer who may conduct a search and
possibly a seizure would nevertheless incur the violation of
Now the crime of Violation of Domicile. This crime has a domicile even though he is acting on the strength of a
counterpart crime also under Title 9, Book 2 of the Code. search warrant.
Counterpart crime is Qualified Trespass to Dwelling.
The instances are:
Art. 280. Qualified trespass to dwelling. — Any private person who shall
• When the search warrant was irregularly obtained
enter the dwelling of another against the latter's will shall be punished by by such public officer
arresto mayor and a fine not exceeding 1,000 pesos. • When the public officer implementing the warrant
exceeded the scope of his authority in doing so
If the offense be committed by means of violence or intimidation, the
• Where such the public officer despite the search
penalty shall be prision correccional in its medium and maximum periods and
a fine not exceeding 1,000 pesos.
warrant employ unnecessary severity and
destruction in the domicile being searched
The provisions of this article shall not be applicable to any person who shall • Public officer made the search in the absence of
enter another's dwelling for the purpose of preventing some serious harm to the person whose papers and effects would be
himself, the occupants of the dwelling or a third person, nor shall it be searched nor any member of his family being
applicable to any person who shall enter a dwelling for the purpose of
present during the search
rendering some service to humanity or justice, nor to anyone who shall enter
cafes, taverns, inn and other public houses, while the same are open.
When the search warrant was irregularly
irregularly obtained by such
The other important crime under Title 2, Book 2 of the Code public officer, meaning to say it was obtained without
is Violation of Domicile. probable cause.

The essence of this is one of qualified trespass to dwelling. For a warrant to be obtained without probable cause the
implication is that the officer who applied for it had misled
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the court in to believing that there is probable cause to The public officer to conduct the search should not bring
issue the warrant. Both the fundamental law and Rules of the witness with him or the witnesses should not be from
Court requires that before the court should issue any other place.
warrant, whether warrant of arrest or search warrant, the
court should examine the applicant thereof and his witness The law requires that the witnesses be from the locality so
through searching questions under oath or affirmation. that they shall be more sympathetic to the owner of the
That means any falsity given by the applicant would be place being search than the public officer conducting the
done in violation of the oath or the affirmation. Hence in Art search.
129 you will see there that aside from the violation of
domicile, public officer who applied for search warrant Art. 130. Searching domicile without witnesses. — The penalty of
which has probable cause may be held liable for some arresto mayor in its medium and maximum periods shall be
other crime. The other crime is perjury or falsification as the imposed upon a public officer or employee who, in cases where a
search is proper, shall search the domicile, papers or other
case may be. belongings of any person, in the absence of the latter, any
member of his family, or in their default, without the presence of
So in a case where the search warrant is null and void for two witnesses residing in the same locality.
lack of probable cause to possible criminal liabilities shall
be incurred. In all these 4 instances the fact that the public officer
involved is acting under a search warrant does not absolve
Art. 129. Search warrants maliciously obtained and abuse in the him from liability for violation of domicile. With more reason
service of those legally obtained. — In addition to the liability if a public officer would intrude into the dwelling of another
attaching to the offender for the commission of any other
even for purposes of making a search of contraband
offense, the penalty of arresto mayor in its maximum period to
prision correccional in its minimum period and a fine not
cannot be legalized or sanctioned unless there is a search
exceeding P1,000 pesos shall be imposed upon any public officer warrant duly issued by a court of law.
or employee who shall procure a search warrant without just
cause, or, having legally procured the same, shall exceed his Art 128 gives 3 instances where any such act of entering
authority or use unnecessary severity in executing the same. the dwelling of the offended party would bring about the
crime of violation of domicile.
When the public officer implementing the warrant exceeded
the scope of his authority in doing so Under the 3 instances mention in the said article, the
purpose of the public officer must be to search. Otherwise,
If he started searching premises which are not included in the violation of the public officer will not be violation of
the description of the premises to be searched to the domicile but for some other crime.
extent that he included premises not covered by the
warrant, the search made would amount to violation of The implication of the crime of violation of domicile is a
domicile. warrantless search in the dwelling of the offended party.
The search, however, must not be a justified warrantless
The law requires that the warrant shall issue only for one search.
offense precisely to avoid a general authority to any public
officer to conduct a blanket search. The 3 instances where the crime of violation of domicile is
committed because he public officer doing this is not
Where such the public officer despite the search warrant authorized by any search warrant are as follows:
employ unnecessary severity and destruction in the 1. Entering the dwelling of the offended party against
domicile being searched the will of the latter
2. Where the public officer entered the dwelling of
The warrant is only an authority to make a search. It is not another not against the will of the occupant but
an authority to destroy or violate the privacy of the offended upon entering he acted to make a search without
party’s abode. any previous consent from the occupant of the
dwelling
Public officer made the search in the absence of the person 3. Where public officer succeeded in entering the
whose papers and effects would be searched nor any dwelling of another such that the occupants of the
member of his family being present during the search dwelling found him already inside his dwelling. If in
that situation the occupant of the dwelling ordered
In case where the owner of the place to be searched and or directed the public officer involved to leave the
any member of his family were absent the law requires that premises, the failure or refusal of such public
the officer making the search must avail of 2 witnesses officer to leave the premises would render him
that will be present during the search and such witnesses liable for violation of domicile provided that he
must be residing in the same locality. gained entry into the dwelling of the offended party

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surreptitiously, that means without the consent of Where public officer succeeded in entering the dwelling of
the occupant of the dwelling. another such that the occupants of the dwelling found him
already inside his dwelling. If in that situation the occupant
Entering the dwelling of the offended party against the will of the dwelling ordered or directed the public officer
of the latter involved to leave the premises, the failure or refusal of
Note that the entering is not merely without the consent of such public officer to leave the premises would render him
the occupant of the dwelling. The entering must be against liable for violation of domicile provided
provided that he gained entry
the will of such occupant. into the dwelling of the offended party surreptitiously, that
means without the consent of the occupant of the dwelling.
It is not required, however, that the occupant of the
dwelling during the commission of the crime. The SC In this situation, the crime of violation of domicile arises not
already clarified that the entry against the will of the owner in the act of entering but in the act of refusing to leave the
or occupant of the dwelling if there was a prohibition dwelling after his presence inside the same is already
against entering and the offender did enter in violation of known and refused by the occupant of the dwelling.
such prohibition. The prohibition may be expressed or
implied. If the entering is not surreptitious this predicate of the
crime will not accrue or will not arise.
So mere entering the dwelling of another without the
consent of the occupant thereof will not be trespass to Other crimes under this title:
dwelling nor violation of domicile as the case may be. • Crimes against popular representation, you have
better learned this in Constitutional law.
Note that under Art 280 of the Code that even in the crime • Right of the citizens to peaceably assemble; to
of qualified trespass to dwelling the gravamen of the crime address their grievances against the government.
is that of entering the dwelling of another against the will of This is also a matter that is better learn under
the occupant thereof. Constitutional Law.

Mere entering without any prohibition against this is only You must have learned 2 criteria for this whether the act
unjust vexation, unless it is an act that would be may be considered legitimate or derogatory to the guaranty
preparatory to the commission of some other crime. of Constitution.
• The so called dangerous tendency rule; and
Where the public officer entered the dwelling of another not • The so called clear and present danger rules
against the will of the occupant but upon entering he acted
to make a search without any previous consent from the The ramifications and incidents of these rules must be
occupant of the dwelling learned by you in constitutional law, not in criminal law.
The occupant of the dwelling may have received the public The crimes against Title 2 requires as principal offender a
officer inside his dwelling. That does not carry with it any public officer acting under color of his authority, except the
authority or consent for the public officer to conduct a last felony under Art 133. You notice the offender may be
search. So the SC ruled that mere permission to enter is any person - Crime offending religious feelings. That is so
not a permission to make a search. because the criminal consequence of the act would be the
same whether the violation is committed by a public officer
Even where the occupant of the dwelling received the or a private citizen.
public officer, if the public officer upon making known to
the occupant of the dwelling that he would be looking Relative to the crimes discussed consider the equivalent
inside the dwelling but the owner or occupant objected and crimes under Title 9 that of illegal detention, that of
he could not do any search. Otherwise, he would be qualified trespass to dwelling so that you would no know
incurring the crime of violation of domicile. The act would exactly the distinctions when these crimes may arise.
therefore be derogatory to the privacy and sanctity of the
occupants abode When the principal offender is public officer under the color
of his authority, a private citizen who cooperates or
Plain view doctrine does not operate when the public officer conspires in the commission of the act would also incur the
involved was acting purposely to make a search. same liability as the one incurred by the public officer being
liable under Title 2 Book 2 of the Code.

In short, do not split the nature of the crime where a public


officer of a civilian acted in conspiracy in detaining the
offended party that you would consider the public officer
liable for arbitrary detention and the civilian would be liable
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for illegal detention. That is wrong. As long as the principal


offender is a public officer acting within the suppose It is only valid to the point that it is regulatory. The moment
authority conferred on him by law, the civilian who the permit appears to be a denial of the constitutional right
unlawfully participated therein will be liable for the same of peaceably assembles, that permit would amount to a
crime. violation of Art. 131.
So the crime committed in a private capacity would be
incurred if Title 2 Book 2 of the could does not apply. The court in resolving this used the standards of Clear and
Present Danger Rule and that Dangerous Tendency Rule.
Dangerous tendency rule — applicable in times of national
The other crimes under this title are no longer significant.
unrest such as to prevent coup d’ etat
Society had become tolerant. A crime of Prohibition,
interruption, dissolution of peaceful assemblies, almost every
Clear and present danger rule — applied in times of peace.
week you are privy to this people who are demonstrating
Stricter rule.
even without any valid cause at all. That place there at
Mendiola Bridge has been so much abused. That no week will
The authority to grant a permit in denying or giving the
pass without any group of people there obstructing traffic
permit may he determined on these criteria, whether the
claiming to be airing their grievance against the Government.
gathering will poise a clear and present danger or will poise a
dangerous tendency. In which case, the same may be
Although the gathering may be peaceful, if this was held
prohibited or dissolved.
without a permit from the Local Government, the same may
be prohibited, interrupted and dissolved.
Distinctions between prohibition, interruption or dissolution
of peaceful meetings under Article 131 and tumults and
Our SC has already upheld the validity of requiring a permit
other disturbances, under Article 153
before a group of persons may lawfully assemble to air their
grievances against the Government.
(1) As to the participation of the public officer.
But in order that the permit may not be utilized to abridge
In Article 131, the public officer is not a participant.
the freedom of speech or the freedom of the citizens to
As far as the gathering is concerned, the public
peaceably assemble, that permit is valid only if it was for
officer is a third party.
regulatory purpose. In other words, the permit to assemble
would be valid if it would determine the time when the
If the public officer is a participant of the assembly
assembling would be held, the date, and the place where
and he prohibits, interrupts, or dissolves the same,
they will assemble. The permit may regulate these to protect
Article 153 is violated if the same is conducted in a
the rights of the other citizens to use that same place where
public place.
the assembling would be held.
(2) As to the essence of the crime
If the requirement of the permit would be one where a local
government would prohibit or grant the holding of the
In Article 131, the offender must be a public officer
gathering, that is no longer legal. This will amount to a
and, without any legal ground, he prohibits,
violation of Art. 131. Because that will be tantamount to
interrupts, or dissolves a peaceful meeting or
abridging the right of the citizens to peaceably assemble.
assembly to prevent the offended party from
exercising his freedom of speech and that of the
The permit is only to regulate the day, the time, and the place
assembly to petition a grievance against the
when it will be held. so that the required preparations to
government.
protect the persons and properties within the area may be
maintained.
In Article 153, the offender need not be a public
officer. The essence of the crime is that of creating a
But if the permit, for instance, grants the people wanting to
serious disturbance of any sort in a public office,
assemble to gather in a place where no one will be listening
public building or even a private place where a
to them, like for instance, they required to hold their
public function is being held.
gathering at the back of the Jones Bridge. Only the fish and
the birds will be there. That is not regulatory anymore. That
So these are the aspects of the felonies under Title Two that
permit is a violation of this provision because it practically
you should focus your attention to.
amounts to a prohibition against the holding of the peaceful
assembly.
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TITLE THREE The crime cannot be committed without arms and the arms
CRIMES AGAINST PUBLIC ORDER taken by the offender must have been deliberately adopted
to meet the forces of government.
Under Title Three. Crimes against Public Order. Now you must
know the distinctions between Rebellion and Coup d'Etat In a rebellion, the offenders are aware that they will be
meeting resistance from the forces of government. So it is
illusory to think that the rebels could simply pick up
REBELLION whatever weapon they can simply gather from the streets.
That is not rebellion. That is only a mob.
Art. 134. Rebellion or insurrection; How committed. — The crime of
rebellion or insurrection is committed by rising publicly and taking In rebellion, the offenders must have purposely chosen a
arms against the Government for the purpose of removing from the
particular weapon to equal the weapons of the forces of the
allegiance to said Government or its laws, the territory of the
government who will resist the rebellion.
Philippine Islands or any part thereof, of any body of land, naval or
other armed forces, depriving the Chief Executive or the Legislature,
If the supposed rebellion made up of people who merely
wholly or partially, of any of their powers or prerogatives.
gathered stones and picked up wooden clubs along the
way, removed iron fences to be use as a club, that is not a
rebellion.
Elements:
1. There is a public uprising and taking arms against the In a rebellion, from the very beginning, the purpose of the
government; rebels is to overthrow or replace the existing government.
2. The purpose of the uprising or movement is: Do not think any mass movement would amount to a
a. to remove from the allegiance to the rebellion.
government or its laws. Philippine territory
or any part thereof or any body of land, It may amount to a sedition,
sedition because sedition is nothing
naval, or other armed forces; or but a public uprising brought about by a commotion or
b. to deprive the Chief Executive or Congress, disturbances. The idea is merely to defy the government,
wholly or partially, of any of their powers or but not the overthrow the government. That is the why the
prerogatives. use of arms is not a requisite to the crime of sedition.

The penalty for the crime of rebellion is found in Art 135.


In the crime of rebellion as defined in Art 134 of this title,
This is significant.
the mere public uprising with arms by the participants
therein already constitutes the crime of rebellion if the
In other articles of the penal code defining a felony, the
same was done to overthrow the existing government or
penalty is found in the article.
otherwise remove allegiance therefrom.
But, in this Art 134 no penalty is no found there for the
Under that definition the crime of rebellion, there is no
crime of rebellion. Penalty is found in Art 135.
mention of any killing, any encounter between the rebels
and the forces of the government, no destruction of
In the original provision of Art 135 a higher penalty is
property. Do not make this part of the definition.
prescribed if the rebellion is coupled with common crimes –
killing, destructions of property, misappropriation of public
The mere public uprising with arms, if the purpose is to
funds. That is why you have the ruling that rebellion cannot
overthrow or otherwise remove allegiance therefrom would
be complexed with common crimes because common
already consummate the crime of rebellion.
crimes committed in furtherance of a rebellion is treated as
part and parcel of the rebellion.
Can the crime of rebellion be committed in the frustrated
stage?
The ruling of the SC in the case of Ramos vs Judge ____
No, the mere public arising with arms if the
that when common crimes are committed in furtherance of
purpose is to overthrow the government rebellion
a rebellion they lose their complexion as common crimes
is already committed.
and acquire the political complexion of a rebellion. So the
common crime becomes a rebellion. So that is why there is
The nature of the crime calls for Error! Bookmark
no complex crime of rebellion with common crime because
not defined. without waiting for any adverse result
common crime constitutes part of the rebellion.
of the apprising. Without a single shot being fired
rebellion can be consummated.
The ruling that rebellion cannot be complexed with
common crimes is no longer true now,
now because Art 135 has
been amended by the Coup d’état law, RA 6968 and those

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provisions referring to common crimes in punishing the policeman was corrupt taking money from the vendors
crime of rebellion have been deleted in Art 135. does not justify a charge for rebellion.

The amendment of the article was made as a rider to the Any common crime committed as such should punished as
Coup d’état Law. The common crimes that were deleted a common crime unless there is proof that the same was
from Art 135. So there is no more basis that when common committed to further the objectives of the rebellion. In other
crimes are committed in furtherance of a rebellion they lose words, you are not supposed to complex this with rebellion
their complexion as common crimes and become part and just because the offender is a rebel. You only complex this
parcel of the rebellion. when it is clear the common crime was a necessary means
to commit the rebellion. That is where the crime is
The amendment demonstrates the legislative intention to complexed under Art 48.
make a common crime committed even in furtherance or
on the occasion of the rebellion as separate crime. That is So even the SC took cognizance of the amendment. It does
the reason they were removed from Art 135. not mean that just because Art 135 is amended, that a
rebel commits a common crime his liability will be
the ruling in People vs Hernandez, People vs Geronimo, and complexed. He shall be charged like any ordinary offender
the more recent application of the rule to Enrile vs Judge unless there is proof, not just evidence, that the common
Jaime Salazar, all these were handed down before the crime was committed to foster or promote the objective of
amendment to Art 135 was made by the lawmakers. the rebellion. Then it will appear that the common crime
Precisely the lawmakers got hold of the ruling of the SC in was necessary means to commit the rebellion. That is
the case of Enrile vs Judge Salazar so that they would know covered by the second form of complex crime under Art 48.
whether the SC would still uphold older resolutions in
People vs Hernandez and People vs Geronimo, but the SC Distinctions between rebellion and sedition:
upheld the same in Enrile vs Judge Salazar but the SC 1. As to nature
explained why the rebellion cannot be complexed with
common crimes.
• In rebellion, there must be taking up of arms
against the government.
In the case of Enrile vs Judge Salazar SC made an
admission in its resolution that it does not subscribe in the
making of rebellion as an umbrella for common crimes but • In sedition, it is sufficient that the public uprising
there is nothing the court can do because the court cannot be tumultuous.
question the wisdom of the law. That is for the lawmakers
determine. What the court can only do is to apply the law at 2. As to purpose
any given time.
• In rebellion, the purpose is always political.
The amendment of the law should come from the law
makers themselves. • In sedition, the purpose may be political or
social.
So for as long as the lawmakers have not removed from
the penalty of the rebellion, the common crimes which are
punished thereunder, there can be no complex crime of Example: the uprising of squatters against
rebellion with common crimes because common crimes are Forbes park residents. The purpose in sedition is
part of the rebellion. Art 48 cannot operate because the to go against established government, not to
common crimes committed during the rebellion are overthrow it.
punished as part of the rebellion. How can you complex the
crimes? It is in the nature of a single and indivisible Between Rebellion and coup d etat, the brief distinctions
offense. The lawmakers obviously noted this and that is are as follows:
why they amended Art 135 and the amendment was made Firstly, as to the crime of rebellion
as rider to the Bill on Coup d etat. The nature of this crime is public uprising with
arms against the existing government
The amendment shows that the lawmakers do not want the
common crimes to be punished as part and parcel of the The criminal intent is to overthrow the existing
rebellion. It should be punished under the article where government and replace the same or otherwise
they are penalized respectively. remove allegiance thereto.

However the SC, in one of their relatively later cases, called This crime requires a multitude of people without
the attention that the fact the offender is a rebel being a the necessary participation of military men,
member of the liquidation unit of the NPA and he shot a members of the Philippine National Police, or
policeman. Inside a public market purposely because the incumbent public officers and
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This crime is carried out by violence and force The resort to violence or force to attain any of the
objectives of rebellion or sedition but without a public
On the other hand, As regards the crime of Coup d etat uprising because the offenders are not really numerous
the nature of this crime is a swift attack against enough to constitute a public uprising the which would be
government facilities and utilities, military camps, rebellion or sedition would amount only to a crime of direct
any installation, communication networks and assault of the first form.
other facilities and utilities essential to the
continued position and exercise of governmental Take note of this manner of committing the crime of direct
powers assault. An expression hate or revenge against a social
The criminal objective is simply to paralyze or class.
destabilize the existing government through a
diminution of its governmental powers Illustration:
If a group of person who have been suffering from the
This crime may be committed singly or miseries of life in the depressed areas would enter a
simultaneously but requires as principal offenders subdivision started stoning the mansions there, started
members of the military or Philippine National stoning the expensive cars inside the subdivision. Such any
Police or incumbent public officers with or without reason for them to be grudged the people residing there,
civilian support the indication is that there acts are done out of hate or
revenges against a social class. The crime is direct assault.
This crime may be carried out not only true force
and violence but also through strategy and stealth 3 armed men who deplored the fact that the families in that
community could hardly have 3 meals a day and yet the
The principal distinction here is as to who the principal government warehouse of the NGA is stocked with stock of
offenders are. With this you could easily characterize rice up to the rafters. So these 3 men destroyed the lock to
whether the movement would be a case of rebellion or a the warehouse called on the family within the vicinity to
case is of coup d etat. help themselves with the supply of this staple commodity.
They started carrying out their needs for rice. After they
As to the crime of Sedition have already satisfied their needs this 3 men left. The
this crime is in the nature of a public uprising also problem says they did not even take a grain of rice for
but does not require the use of arms since the themselves. They just left after the families have already
purpose is simply to bring about public satisfied their needs for the supply of rice. What crime did
disturbances not the overthrow of the government they commit?
Not robbery. The fundamental element of robbery
the criminal objective is to go against government must be intent to gain. But the problems say these
plan or actions by way of disobeying government 3 men did not even take a grain of rice for
actions by way of decent or disagreement with themselves. This statement is precisely to lay down
what the government have resolved the fact that they did not act with intent to gain. It
cannot be theft or robbery.
the criminal purpose of this crime is not limited to
political end but may refer to social demands or The destruction the property of the government,
change the NGA warehouse is an act of despoiling property
belonging to the government and that is one of the
the public uprising may be an expression of hate objectives of sedition par. 5 of Art 139. Hence
against a social or political group or class applying force or violence to despoil property of
any private party or of the government is an
So here again you can readily see that in a sedition objective of sedition. Carried out without a public
although it involves also public disturbance by way of uprising the crime is direct assault.
uprising the objective is not really violent because it is only
to disobey or defy what the government had resolved not The common thinking is that a direct assault is an attack to
really to bring about a changer in the government. person in authority or agent of a person in authority. That is
only the second form of direct assault.
Take note of the objective of a sedition which may be
political or social because these acts if carried out by a The crime of direct assault is in the nature of rebellion or
group of persons short of a public uprising, but against a sedition, except that participant cannot constitute a public
social class or a political resolve of the government will uprising.
bring about the first form of direct assault.
Crime of direct assault cannot be committed when there is
So relate this to the first form of direct assault in Art 148. a public uprising taking place. So during a rebellion or
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sedition crime of direct assault cannot be committed. The So what may be penalized is a proposal already or a
offenders involved in the public uprising will be liable for conspiracy. But not inciting to such crime.
rebellion or sedition, not direct assault.
The essence of the crime of coup d’etat is a swift attack upon
Minus the public uprising the crime is direct assault. the facilities of the Philippine government, military camps
and installations, communication networks, public utilities
Take note of the enumerated purposes of sedition because
these purposes having to do with the social expression of and facilities essential to the continued possession of
hatred are capable of becoming the basis for direct, governmental powers. It may be commuted singly or
because rarely will the offenders resort to rebellion if they collectively and does not require a multitude of people. The
are not numerous enough to confront the forces of the objective may not be to overthrow the government but only
government. Rarely will it be direct assault by way of to destabilize or paralyze the government through the seizure
expressing hate or revenge against the government. of Facilities and utilities essential to the continued possession
and exercise of governmental powers. It requires as
COUP D'ETAT principal offender a member of the AFP or of the PNP
organization or a public officer with or without civilian
Article 134-A. Coup d'etat; How committed. — The crime of coup d'etat is a support. Finally, it may be carried out not only by force or
swift attack accompanied by violence, intimidation, threat, strategy or violence but also through stealth, threat or strategy.
stealth, directed against duly constituted authorities of the Republic of the
Philippines, or any military camp or installation, communications network,
public utilities or other facilities needed for the exercise and continued SEDITION
possession of power, singly or simultaneously carried out anywhere in the
Philippines by any person or persons, belonging to the military or police or Art. 139. Sedition; How committed. — The crime of sedition is committed by
holding any public office of employment with or without civilian support or persons who rise publicly and tumultuously in order to attain by force,
participation for the purpose of seizing or diminishing state power. intimidation, or by other means outside of legal methods, any of the
following objects:
Elements 1. To prevent the promulgation or execution of any law or the
holding of any popular election;
1. Offender is a person or persons belonging to the 2. To prevent the National Government, or any provincial or
military or police or holding any public office or municipal government or any public officer thereof from freely
employment; exercising its or his functions, or prevent the execution of any
2. It is committed by means of a swift attack administrative order;
3. To inflict any act of hate or revenge upon the person or property
accompanied by violence, intimidation, threat, of any public officer or employee;
strategy or stealth; 4. To commit, for any political or social end, any act of hate or
3. The attack is directed against the duly constituted revenge against private persons or any social class; and
authorities of the Republic of the Philippines, or any 5. To despoil, for any political or social end, any person, municipality
or province, or the National Government (or the Government of
military camp or installation, communication the United States), of all its property or any part thereof.
networks, public utilities or other facilities needed
for the exercise and continued possession of power; Elements:
4. The purpose of the attack is to seize or diminish 1. Offenders rise publicly and tumultuously;
state power. 2. Offenders employ force, intimidation, or other
means outside of legal methods;
In the same title, the crime of coup d'etat is penalized. 3. Purpose is to attain any of the following objects:
a. To prevent the promulgation or execution
So you also have proposal and conspiracy to commit coup of any law or the holding of any popular
d'etat. But, although you have the crime of inciting to election;
rebellion, note that there is no crime of inciting to coup b. To prevent the national government or any
d'etat. provincial or municipal government, or any
public officer from exercising its or his
So if, some civilians had conversed with ranking military functions or prevent the execution of an
officers to arouse them to carry out a coup d'etat, the act administrative order;
may amount to inciting to coup d’etat. There is no Art. c. To inflict any act of hate or revenge upon
punishing this. the person or property of any public officer
or employee;
The lawmakers obviously had overlooked that there is such d. To commit, for any political or social end
crime as inciting to rebellion, but they forgot to include there any act of hate or revenge against private
inciting also to coup d'etat. persons or any social classes;

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e. To despoil for any political or social end, SC called the attention of the judge who dismissed an
any person, municipality or province, or the information before him for sedition. where the unlicensed
national government of all its property or firearm was used.
any part thereof.
SC said, the dismissal is wrong. Because the crime of illegal
As to the crime of sedition, you should familiarize yourself possession of firearm can co-exist with sedition, not being an
with the purpose of sedition under Art. 139. ingredient of the crime of sedition. This ruling is already
abrogated by the express provision of the New Firearms Law.
This is the important aspect for sedition. Because when any RA 8294.
of these acts is committed but there is no public uprising, the
crime of direct assault of the first form is committed. Now, the use of such unlicensed firearm is absorbed by the
crimes of Rebellion, Coup d'etat, and Sedition.
You go over Art. 148. and you will notice there, when force
and violence is employed minus a public uprising for the ILLEGAL ASSEMBLIES AND ILLEGAL ASSOCIATIONS
attainment of any of the objectives of rebellion or sedition,
the crime is direct assault. Art. 146. Illegal assemblies. — The penalty of prision correccional in its
maximum period to prision mayor in its medium period shall be imposed
upon the organizers or leaders of any meeting attended by armed persons
Now as far as rebellion is concerned, this is very rare, because for the purpose of committing any of the crimes punishable under this Code,
the purpose of rebellion is always political. or of any meeting in which the audience is incited to the commission of the
crime of treason, rebellion or insurrection, sedition or assault upon a person
in authority or his agents. Persons merely present at such meeting shall
It is in respect of sedition where the purpose is political or
suffer the penalty of arresto mayor, unless they are armed, in which case the
social, that commonly the crime is direct assault, not sedition. penalty shall be prision correccional.
And that is because of the absence of a public uprising.
If any person present at the meeting carries an unlicensed firearm, it shall be
presumed that the purpose of said meeting, insofar as he is concerned, is to
Direct assault cannot be committed during a public uprising.
commit acts punishable under this Code, and he shall be considered a leader
or organizer of the meeting within the purview of the preceding paragraph.
So this crime is incompatible with rebellion or sedition.
As used in this article, the word "meeting" shall be understood to include a
gathering or group, whether in a fixed place or moving.
It is in the affirmative, that if it is not rebellion or sedition
because there is no public uprising, it will be a case of direct
assault in the first form. Acts punished
1. Any meeting attended by armed persons for the
Now you note, in connection with rebellion, coup d'etat, and purpose of committing any of the crimes punishable
sedition, the use of an unlicensed firearm is not subject to a under the Code:
separate prosecution.
Elements:
The use of an unlicensed firearm or explosive is absorbed by a. There is a meeting or gathering of group of
the crime of rebellion, coup d'etat, or sedition. Hence, the persons, whether in fixed place or moving;
offender when prosecuted for rebellion, coup d’etat, or b. The meeting is attended by armed persons;
sedition cannot be prosecuted any further for illegal c. The purpose, of the meeting is to commit
possession of the firearm used in any of these crimes. any of the crimes punishable under the
Code.
Neither is the use of the unlicensed firearm or explosive an
aggravating circumstance. It is not aggravating. 2. Any meeting in which the audience, whether armed
or not, is indeed to the commission of the crime of
When we say it is absorbed, it is simply considered as already treason, rebellion or insurrection, sedition, or
part of the crime. assault upon person in authority or his agents.

So it has not to be alleged in the information. It is simply Elements


disregarded, because it is deemed to be part and parcel of a. There is a meeting, a gathering or group of
the rebellion, the coup d'etat, or the sedition. persons, whether in a fixed place or
moving;
Under the RPC, the use of arms is not an ingredient of b. The audience, whether armed or not, is
sedition. So in the earlier case of People vs. Judge Asuncion. incited to the commission of the crime of

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treason, rebellion or insurrection, sedition (2) Associations totally or partially organized for some
or direct assault. purpose contrary to public morals.

Persons liable for illegal assembly Persons liable for illegal associations:
1. The organizer or leaders of the meeting; 1. Founders, directors and president of the association;
2. Persons merely present at the meeting, who must 2. Mere members of the association.
have a common intent to commit the felony of illegal
assembly. You should know the distinctions between Illegal Assembly
and Illegal Association. These distinctions have been asked
If any person present at the meeting carries an unlicensed several times in past Bar Examinations.
firearm, it is presumed that the purpose of the meeting
insofar as he is concerned is to commit acts punishable under What is punishable in the crime of illegal assembly is the
the Revised Penal Code, and he is considered a leader or gathering of people whose purpose is to commit a crime
organizer of the meeting. punishable under the RPC.

The gravamen of the offense is mere assembly of or gathering So it is the mere gathering for that purpose which constitutes
of people for illegal purpose punishable by the Revised Penal the violation.
Code. Without gathering, there is no illegal assembly. If
unlawful purpose is a crime under a special law, there is no The crime, however, may be committed in two ways. One of
illegal assembly. For example, the gathering of drug pushers which requires the participation of armed persons. The other
to facilitate drug trafficking is not illegal assembly because one, would bring about the crime of illegal assembly even
the purpose is not violative of the Revised Penal Code but of though there is no armed person involved.
The Dangerous Drugs Act of 1972, as amended, which is a
special law. Now where In the gathering, the people gathered are incited
to commit treason, rebellion, insurrection, sedition, or assault
Two forms of illegal assembly: on a person in authority or his agent, even without the
(1) No attendance of aimed men, but persons in the attendance or participation of armed men, the gathering
meeting are incited to commit treason, rebellion or alone will being about criminal liability
insurrection, sedition or assault upon a person in
authority. When the illegal purpose of the gathering A problem on this was given before, where students
is to incite people to commit the crimes mentioned assembled at the campus of this Polytechnic University, and
above, the presence of armed men is unnecessary. formed a supposed court. And there, some government
The mere gathering for the purpose is sufficient to officials were supposedly tried and found guilty. And there
bring about the crime already. effigies were set on fire, because the court sentenced them
(2) Armed men attending the gathering — If the illegal to death.
purpose is other than those mentioned above, the
presence of armed men during the gathering brings Now these students became very unruly. And so attracted the
about the crime of illegal assembly. attention of law enforcers. They were all apprehended and
brought to the police headquarters at the UN Avenue.
Example: Persons conspiring to rob a bank were
arrested. Some were with firearms. Liable for illegal They were charged for this crime, illegal assembly, because
assembly, not for conspiracy, but for gathering with the purpose there was to inspire sedition, since the act done
armed men. demonstrates hatred against public officers. But because, at
that time, it was nearing elections, the students were simply
Art. 147. Illegal associations. — The penalty of prision correccional in its warned and released.
minimum and medium periods and a fine not exceeding 1,000 pesos shall be
imposed upon the founders, directors, and presidents of associations totally
or partially organized for the purpose of committing any of the crimes Now there, although none of the students was found to be
punishable under this Code or for some purpose contrary to public morals. armed, criminal liability for illegal assembly is incurred.
Mere members of said associations shall suffer the penalty of arresto mayor.
On the other hand, if the gathering was for the purpose of
Acts punished: committing some other crime under the RPC, not to incite
(1) Associations totally or partially organized for the treason, rebellion, or insurrection, sedition, or assault upon a
purpose of committing any of the crimes punishable person in authority or agent, presence of armed men is
under the Code; necessary to bring about the crime of illegal assembly.

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The provision referring to crimes against public morals had


Now here with respect to this second way of incurring the been clarified to mean crimes prejudicial to public interest or
crime, if people gathered, and that gathering was called to public welfare, not necessarily a law where the crime
plot a bank robbery, although the conspiracy to rob a bank is involved offends decency.
not a crime, unless the actual robbery of the bank is carried
out, now that gathering of people is participated in by armed So the word there any law against, involving a crime against
men, like policemen or soldiers, would already constitute a public morals should not be interpreted by you to refer to a
crime, although they are conspiring to commit a crime under crime which offends decency or morality.
the RPC it is the participation of armed men, in that
gathering, studying how the crime will be committed, that RECAP:
would make the assembly a crime already. You keep this in
mind, because given a problem here, if you would view the Distinction between illegal association and illegal assembly:
situation as a conspiracy to commit robbery, that is not 1. In illegal association, it is not necessary that there be
punishable under the code. So you may end up saying no an actual meeting.
criminal liability.
In illegal assembly, it is necessary that there is an
Bear in mind, however, this crime of illegal assembly punishes actual meeting or assembly or armed persons for the
the mere gathering of people for the purpose of committing purpose of committing any of the crimes punishable
any crime under the RPC. So although it appears to be a mere under the Code, or of individuals who, although not
conspiracy, if there are more than two already, it may armed, are incited to the commission of treason,
amount to the crime of illegal assembly. And if attended by rebellion, sedition, or assault upon a person in
armed men, criminal liability will arise. Otherwise, if it is not authority or his agent.
clear that their purpose is to commit a crime under the code,
if one among those gathered is found to be possessing 2. In illegal association, it is the act of forming or
unlicensed firearm, in so far as he is concerned, he would be organizing and membership in the association that
prosecuted for illegal assembly. So you give this a thought. are punished.

In illegal assembly, the gathering must be for a crime under In illegal assembly, it is the meeting and attendance
the RPC. So if the gathering is to bring about the violation of at such meeting that are punished.
the Dangerous Drugs Law, that gathering cannot be an illegal
assembly because illegal assembly is limited only to a 3. In illegal association, the persons liable are:
gathering whose criminal purpose is to pursue a crime under a. the founders, directors and president; and
the RPC. b. the members.

So if drug users gathered, discussing about their use of In illegal assembly, the persons liable are:
prohibited, drugs or dangerous drugs, that gathering will not a. the organizers or leaders of the meeting
amount to an illegal assembly. and
b. the persons present ac meeting.
Simple reason, their purpose is not a crime under the RPC.
DIRECT ASSAULT
On the other hand, in the crime of illegal association,
gathering of persons is not necessary. The mere forming of an Art. 148. Direct assaults. — Any person or persons who, without a public
uprising, shall employ force or intimidation for the attainment of any of the
association or a group, if they formed that association, purpose enumerated in defining the crimes of rebellion and sedition, or shall
corporation, or entity to engage in criminal Activities, attack, employ force, or seriously intimidate or resist any person in authority
whether the crime is under the RPC or under a special law, if or any of his agents, while engaged in the performance of official duties, or
it would be prejudicial to public interest or public welfare, on occasion of such performance, shall suffer the penalty of prision
correccional in its medium and maximum periods and a fine not exceeding
that association or organization will be constituting the crime P1,000 pesos, when the assault is committed with a weapon or when the
of illegal association. So the members thereof will be made offender is a public officer or employee, or when the offender lays hands
criminally liable upon a person in authority. If none of these circumstances be present, the
penalty of prision correccional in its minimum period and a fine not
exceeding P500 pesos shall be imposed.
In illegal association, the crime being pursued need not be a
crime under the RPC. It may include crimes under special laws
Acts punished:
involving public welfare or public interest.
1. Without public uprising, by employing force or
intimidation for the attainment of any of the
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purposes enumerated in defining the crimes of There are Two forms of direct assault, one I called your
rebellion and sedition attention, is where offenders not constituting a public
uprising would resort to force and violence for the
Elements: attainment of any of the objectives of rebellion or sedition.
a. Offender employs force or Intimidation;
b. The aim of the offender is to attain any of Now here, it is not necessary that there be a person in
the purposes of the crime of rebellion or authority or an agent of a person in authority as offended
any of the objects of the crime of sedition; party.
c. There is no public uprising
In the second form of direct assault, the offended party must
2. Without, public uprising by stacking, by employing be a person in authority or an agent of a person in authority
force or by seriously intimidating or by seriously within the definition of these terms in Art.152
resisting any person in authority or any of his agents,
while engaged in the performance of official duties So you must be conversant with the terms as defined in
or on occasion of such performance. Art.152.

Elements: In this second way of incurring the direct assault, the person
a. Offender makes an attack, employs force, in authority or agent of a person in authority is attacked or
makes a serious intimidation, or makes a seriously resisted or seriously intimidated while exercising his
serious resistance; official functions or by the reason of the exercise of such
b. The person assaulted is a person in functions.
Authority or his agent;
c. At the time of the assault the person in The direct assault is defiance to the authority being
authority or his agent is engaged the actual possessed and exercised by the offended party.
performance of official duties, or that he is
assaulted by reason of the past So for as long as the attack has something to do with the
performance of official duties; exercise of the functions, even though the exercise of the
d. Offender knows that the one he is function had already passed, the crime of direct assault is
assaulting is a person in authority or his committed if the offended party was still a person in
agent in the, exercise of his duties authority or an agent of a person in authority.
e. There is no public uprising.
In the first form of direct assault, the mere fact that the
Now direct assault this is most important crime under Title offenders are trying to carry out the purpose of rebellion or
Three sedition is itself demonstrative of lawlessness. It is in itself
defiance to the prevailing authority of the Government. That
Whenever you encounter a problem in the Bar Exam, where is why here, even if there is no offended party involved who
there is a public officer who is an offended party, you figure is a person in authority or an agent, criminal liability for direct
out whether he is a person in authority or an agent of a assault will arise.
person in authority.
Crime of direct assault being the spirit behind the act, is
Unwittingly, if he was exercising his functions at the time he always complexed with the material consequence of the
was subjected to the crime that would bring about the crime crime.
of direct assault aside from the crime actually brought about
as a material consequence of the act Its is not the material consequence itself that amounts to the
direct assault. That material consequence will constitute any
Direct assault punishes the spirit of lawlessness, the ordinary felony.
contempt of authority, the hatred for the rule of law shown
by the commission of the crime by the offender. It is the spirit, behind the way it is committed that brings
about the crime of direct assault.
This is not the crime which is the material result of the
felonious act. This is the crime punishing the spirit of So it is always complexed with the consequence of the act
lawlessness behind the act. committed

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For instance, if a litigant would kill a judge because the judge cleverly pleaded guilty to the information of the slight
had decided a case adverse to him, the direct assault is not physical injuries.
the killing of the Judge. That killing may be murder or
homicide. When he was to be arraigned for the direct assault he filed
a motion to quash on ground of double jeopardy. He
contend that he cannot be prosecuted anymore because he
The direct assault is the reason behind the killing which is the
was already convicted for the slight physical injuries which
past performance of the function of the Judge which would arose out of the same act.
show the lawlessness of the offender, that just because that
Judge had performed his official duties and rendered a This issue went as far as the SC. The SC ruled that there
Judgment against him, he took the life of the Judge. will be double jeopardy because the direct assault punishes
the spirit behind the act that brought about the slight
Now that is lawlessness. For that reason, there will be direct physical injuries. You cannot split this. Constitutional
assault. So, direct assault with murder. prohibition against double jeopardy will be violated.

But if the killing of the Judge has nothing to do with the So if the direct assault brought about only slight physical
exercise of his functions as a Judge, there will be no crime of injuries, the offender should be prosecuted only for direct
direct assault. Crime will only be homicide or murder for the assault. The slight physical injuries shall be absorbed by
killing of the Judge. the direct assault because this is the more serious crime.

It is a complex crime generally, unless the resulting crime Where a person in authority or an agent of a person in
out of the direct assault is only a light felony. Since you authority is attacked while performing his official functions,
cannot complex a light felony, the crime will be the more whatever be the reason for the attack, even though it has
serious crime which is the direct assault. something to do with the private affair between the offender
and the offended person in authority or agent, there will be
Illusration: the crime of direct assault.
If the litigant was scolded by the judge while he was
testifying and he was so embarrassed before the public in This is so because, the law wants that any person, who has a
the court. So after the recess the judge was already out of score to settle with a person in authority or an agent of a
the court room this litigant followed the judge and boxed person in authority, should not carry out his ire against the
the judge on the head. The resulting crime is slight physical
latter, while the latter is performing official functions. He
injuries only.
should wait.
There is no crime of direct assault with slight physical
injuries because you can only complex the resulting crimes To bring about the direct assault of the second form, the
out of a single act if the resulting felony was grave or less assault or attack must be by reason of the exercise of the
grave (Art 48). official duties by the offended party or while the offended
party was exercising official duties.
But if the resulting felony was grave and light felony or less
grave and light felony the light felony cannot be complexed If the assault was not by reason of the exercise of official
with a grave or less grave felony. The offender should be duties generally the attack will not bring about direct
prosecuted only for the grave or less grave felony as the assault.
case may be. It is wrong to prosecute the offender
separately for the light felony and for the grave and less Illustration:
grave felony. A young woman stabbed the offended party at the back,
who happened to be a policeman but at that time he
So if the direct assault resulted to slight physical injuries already was off-duty. Woman stabbed him because he had
only it is erroneous to accuse the offender for direct assault given birth to child with this woman and simply abandoned
separately in one information and another information for her.
slight physical injuries. The two arose from a single act, you
cannot do that. The rule against double jeopardy will bar So the reason for the assault has nothing to do with the
any further prosecution. exercise of the official duty of the policeman who is an
agent of a person in authority. There will be no direct
So in a case like this where the direct assault brought assault.
about slight physical injuries, prosecutor filed one
information for direct assault one information for the slight But if the policeman was conducting traffic of otherwise
physical injuries because article 48 cannot apply, one of performing his official duty at the time he was stabbed.
the resulting crimes is only a light felony. The accused There will be direct assault.

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In other words, you will only look into the reason of the
assault or attack when the person in authority or the agent Study very well the crime of indirect assault Art 149.
of the person in authority was not performing official duties Relative to the crime of indirect assault correlate the
when he was attacked. amendment to Art 152 that if the offender party in a direct
assault is a person in authority any civilian who will rush to
For as long as the offended party, a person in authority or his assistance at that at moment the civilian is regarded in
an agent of a person in authority was performing official the eyes of the law as an agent of a person in authority.
duties whatever may be the reason for the attack crime of Underscore this amendment to Art 152 only if the victim in
direct assault will arise if the attack was done while the the direct assault is a person in authority.
person in authority or the agent was performing official
duties. In the crime of indirect assault should not himself be a
person in authority or an agent of a person in authority.
So if a judge had required his secretary to stay late at night Otherwise it will be another count of direct assault.
because they are going to finish a decision. The secretary
stayed behind. So only the judge and the secretary were in Illustration:
the officer of the judge. All have already gone home. The If judge is being mauled because of judgment rendered by
judge lost control of himself started making advances, him a fellow judge in another sala and the other judge was
embracing the secretary. So that evening the secretary also mauled. The crime is not indirect assault. The crime is
went home crying. also direct assault because that judge is also a person in
authority vested with jurisdiction.
The father came to know what the judge did. So early in the
morning when the judge was already promulgating the Art 149 has not been amended with amendment of Art
judgment which was prepared the night before the father of 152. So if you would just read Art 149 you will get an
the secretary appeared there shot judge. impression that even when the victim of the direct assault
is person in authority you can have an agent of a person in
Although the reason for the killing was a private matter not authority or one who is coming to the help of the person in
connected with the duties of a judge yet because the father authority if attacked would bring about indirect assault.
of the secretary shot the judge while the judge was already That was before, because a civilian who comes to the aid of
promulgating the decision there will be direct assault a person in authority before does not become an agent. He
because the judge was already performing his official remains a civilian.
duties.
With the amendment a civilian who comes to the aid of
In other words, where the attack was brought about by a person in authority at that moment is considered in the
private reason or affair in order to avoid liability of the eyes of the law as a person in authority.
direct assault the offender should not carry out the attack
while the offender party performing official duties. He must Considering that the offended party in indirect assault is
wait until the person in authority or the agent has finished not a person in authority or an agent of person in authority
performing official duties before the attack him. If he were but is a civilian, with that the whole picture of the situation
to attack while he is performing official duties there will be is changed. And this is not reflected in Art 149.
an added crime of direct as the long as the offended party
is person in authority or an agent of a person in authority. The lawmakers amended Art 152 without correspondingly
But if here were to attack when he already finished amending the provision on indirect assault which reflects
performing his official duties, he was resting already, there the importance of the amendment.
will be no direct assault anymore.
The attack on the civilian is not indirect assault because
Similarly if the reason for the attack was the exercise of a the civilian having come to the aid of the person in
past duty of the person in authority or the agent, but the authority, under the amendment, he is not a civilian
attack was carried out when the offended party is already anymore. He is an agent of a person in authority by coming
resigned or retired from his position as public officer the to the aid of a person in authority. So when he is attacked
protection of law treating him as person in authority or an the attack is not upon a civilian. The attack is upon one
agent of a person in authority will likewise cease already. whom the law regards as person in authority. Hence it
There in no direct assault anymore. cannot be indirect assault. It is also a direct assault or a
form of resistance under Art 151.
Although the attack was by reason of the decision rendered
by the judge while he was a judge, the attack was carried However, it is not necessary that the offender should know
out when the judge was automatically retired for having who under Art. 152 of the RPC are considered persons in
reached the age of 70 already. There will be no direct authority and who are considered agents or persons in
assault anymore because his position which was the basis authority. This is so, because this is a matter of law. And
of the protection for the direct assault has already ended.
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ignorance of the law is never excused. It is enough that when In the latter part of Art. 148. there are three circumstances
the offender attacked the offended party, the latter was there which you will note, bring about a higher penalty than
exercising an authority. in ordinary case of direct assault.

Now if the offended party by the exercise of that authority The three circumstances mentioned there are:
happened to be a person in authority or an agent of a person • Where the offender is himself a public officer;
in authority, too bad for the offender. Because there will be • Where the offender is armed in committing a crime;
the crime of direct assault complexed with the material and
consequence, of the act. • Where an offender laid hand upon the person in
authority by way of defying the authority of the
If it turned out that the person attacked although exercising offended party.
an authority at the time, was not a person in authority or an
agent of a person in authority, then the offender is fortunate, Problems given in the Bar arc predicated on this third
because there will be no liability for direct assault of the circumstance that qualifies the direct assault to a higher
second kind. penalty.

The information for direct assault must allege that the Because of the effect of the circumstances, the direct assault
offended party is a person in authority or an agent of a qualified by this is loosely referred to as Qualified Direct
person in authority, and known to the offender as such, Assault.
although the SC has already ruled that it is not necessary in
this crime that the accused should be aware of Art. 152 on So if you are asked: What is qualified direct assault?
who are persons in authority or who are agents of persons in It is a direct assault committed with any of these
authority. circumstances attending the same. So you have
three.
So, in a case where a teacher punished a pupil for coming to
class late and said pupil run home. His father saw the boy Now in the third circumstance qualifying the direct assault,
crying, father became furious. So after the father learned that the laying of the hand is limited only to the person in
the teacher whipped the boy, the father ran to the school authority.
house. And even while the teacher was conducting classes,
the father barged in and slapped the teacher. The agent of a person in authority is not included.

Teacher however, did not retaliate. So a ended there. This is significant,, when the offender laid hand on a person in
authority, and that; was done in defiance of the authority
The father of the boy was charged for direct assault. being exercised by the offended party, it would always result
to the crime of direct assault.
His defense was he should only be liable for slight physical
injuries, because he is not aware that a teacher under the On the Other hand, if the laying of hand is done to an agent
code is a person in authority. So not being aware thereof his of a person in authority, it will only bring about the crime of
liability should only be for slight physical injuries resistance and disobedience, unless the contempt or hatred
for the authority possessed or exercised by the agent.
This issue reached the SC And the SC ruled, it is not necessary
that the Accused should know who are persons in authority, To illustrate this: Let us say that during a town fiesta, there
who are agents of persons in authority under Art. 152 of the was a public dance held at night. The mayor was invited to
RPC because this is a matter of law and ignorance of the law grace the occasion. So the mayor attended the same with a
are never excused. It is enough that the accused was aware at police body guard. While the mayor was there, enjoying the
the time he attacked the offended party that the latter was couples who are dancing he noticed that the couples who
exercising an authority. He should respect that authority. were dancing were being irritated by one who is so
intoxicated dancing also in the middle of the floor.
Now if it turned out that the offended party is not a person in
authority or an agent, then he is fortunate, But if it turned So the mayor approached this fellow. Accosted him, and told
out that the offended party is a person in authority or an him to go home, let his intoxication wear off. And if he would
agent, then he will bear all the consequences of his felonious already be sober he can return.
act, even though it may be different from what he intended.

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But this fellow, asked the mayor, “who are you?” The mayor sensed that there will be trouble, because the parents were
replied, “I am just the mayor of this place.” so furious.

And this intoxicated fellow pushed the mayor. I don't care, I So the Barangay chairman followed them, and the parents
am not doing anything wrong. The mayor fell on his ass, barged into the room, and the father slapped the teacher.
although the mayor did not suffer any injury. By that act of
laying hand on the mayor, a person in authority, in defiance The Barangay chairman immediately held the father by the
of the authority exercised, crime of direct assault is waistline, so that he could not inflict further injury to the
committed. teacher. The son boxed the Barangay chairman in order to
free his hold on his father.
The law regards as serious one who defies the authority of a
person in authority to the extent of laying hand because due Now that boxing of the Barangay chairman amounting to
ordinarily is a challenge. So that is a display of defiance to the laying of hand to a person in authority to defy the exercise of
authority of the mayor. chat authority would already bring about criminal liability for
direct assault.
On the other hand, if let us say, instead of the mayor
accosting this intoxicated fellow, the mayor requested his In that Bar problem, there was a follow-up question asked:
police body guard to cake the fellow one of the dance floor, Would your answer be the same if instead of a Barangay
so it was the policeman in uniform who went to this fellow, chairman it was a Barangay tanod who was boxed?
accosted him, and requested him to leave the dance floor.
Although direct assault may be committed against a person in
But this fellow pushed the policeman, and told him, I am not authority or an agent of a person in authority, the particular
doing anything wrong. Policeman fell on his ass. issue here refers to the laying of hand.

The crime will not be direct assault. The crime would only be You will notice here, the boy boxed the Barangay chairman
resistance and disobedience under Art 151. This is so, not by way of defying his authority but in order simply to
because the laying of hand on an agent of a person in release his father from the holds of the chairman, but
authority is not considered always as serious. because he laid hand on the Barangay chairman who is a
person in authority that will amount automatically to direct
SC explained, the nature of the functions of an agent of a assault.
person in authority, which is to maintain peace and order,
provide protection to persons and property, always Now if it were a Barangay Tanod, the answer would be
occasionally invite resistance. And if any such resistance different, because laying of hand under this Art. Is limited
would constitute direct assault, there will be more direct only to a person in authority. And a Barangay Tanod is not a
assault where the offended party is only an agent of a person person in authority, but only an agent of a person in
in authority than the person in authority himself authority.

Since the provision of Art. 148 limits the laying of hands only So you give attention to these circumstances.
to a person in authority, this will show that same seriousness
of the crime is not accorded when the victim is an agent of a When two public officers who are persons in authority or
person in authority only. who are agents of a person in authority quarreled because of
a disagreement on who should exercise authority or who
This was indirectly asked in the Bar Exams, where a barangay should exercise jurisdiction that quarrel, even though
chairman tried to break-off a quarrel between the teacher attended violence, will not bring about the crime of direct
and the parents of a school boy. assault. This is because, the quarrel is precisely brought about
by an earnest claim of authority, the Quarrel is precisely to
The facts given in one of these relatively recent Bar Exams, assume jurisdiction.
approximates the facts that was decided by the High-court
earlier as I am telling you. So if two policemen quarreled because one claimed that he
has the jurisdiction over the crime, the other said no this is
The pupil was sent home, pupil went home, reported to the my jurisdiction. So they quarreled on the issue of jurisdiction,
parents. The parents rushed to the school house. Barangay even if that quarrel resulted to violence, there will be no
chairman was following the parents along the road, and direct assault.

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The violence will only bring about the crime of physical So if he was beaten out of that challenge, he cannot
injuries. complain and avail of the protection of the law,
because it was he who provoked the quarrel.
But, if let us say, a policeman caught a snatcher, collared him
and brought him to the police precinct. Another policeman, So the situation would differ, depending on who
who is the protector of the snatcher, approached the made the challenge.
apprehending policeman, and requested that the snatcher be
released to him. INDIRECT ASSAULT

This policeman, who is the protector of the snatcher, asked Art. 149. Indirect assaults. — The penalty of prision correccional in its
minimum and medium periods and a fine not exceeding P500 pesos shall be
the apprehending policeman “Ibalato mo na sakin yan.” But
imposed upon any person who shall make use of force or intimidation upon
the apprehending policeman would not yield. So this fellow any person coming to the aid of the authorities or their agents on occasion of
quarreled, with the apprehending policeman. the commission of any of the crimes defined in the next preceding article.

Now since the quarrel does not really involve the exercise of Elements:
jurisdiction, but more of a request to release the offender 1. A person in authority or his agent is the victim of any
from the exercise of jurisdiction, the policeman who wanted of the forms of direct assault defined in Art. 148.
to forego with the exercise of the function of the other will be 2. A person comes to the aid of such person in
incurring the crime of direct assault. authority or his agent;
3. Offender makes use of force or intimidation upon
Now these are cases that actually happened in a trial, the such person coming to the aid of the person in
lawyer was so much irked because every time he stood up to authority or his agent
object or to raise a point, the judge always denies or
overrules what he wanted to say. And he is so embarrassed The act which is the basis of the crime of indirect assault is
before his client who was there also in the gallery. So this that of employing force and violence upon one who is coming
lawyer murmured to the judge "ang yabang mo. Mabuti to the aid or assistance of a victim of direct assault. However,
lumabas nalang tayo." So the judge said that "Sige”. So the even if this is the situation, indirect assault may not always
judge went out with the lawyer. They boxed each other. The accrue.
judge was beaten.
In the crime of indirect assault, the offended party should not
Is the lawyer liable for direct assault? himself be a person in authority or an agent of a person in
The answer is yes, because he initiated or provoked authority. Otherwise, if the person coming to the aid of the
the assault. The Judge did not strip himself of the victim of a direct assault is himself a person in authority or an
protection of the law as a person in authority, agent of a person in authority, the attack on him may bring
because he was provoked. And it is natural instinct about another count of direct assault if it was so serious as to
for a person who is being provoked to do something demonstrate lawlessness, contempt of the authority
to ward off the provocation. possessed by the person in authority of the agent, or if not so
serious, it will only amount to resistance and disobedience
But in a parallel case, where it was so sharp in Procedural law under Art. 151, but not the crime of indirect assault.
that when the judge makes a ruling the lawyer would
embarrass him because the lawyer cities the provision that For this reason, it becomes decisive for you to know, that
unmask the ignorance of the judge. So the judge was the one under Art. 152, in the definition of who are agents of a
who uttered, “ang yabang mo, gusto mo suntukan na lang person in authority, the provision has been amended a long
tayo sa labas?" And the lawyer said, “Sige” So they went out. time ago to consider any person coming to the aid of a
The Lawyer mauled the Judge. person in authority as an agent of a person in authority at
that particular moment.
Is the lawyer liable for direct assault?
The decision says no, because when the judge went So if the victim of the direct assault was a person in authority,
down to the level of an aggressor and made the a civilian saw this, civilian tried to give assistance, and the
challenge, he strips himself of the protection of the civilian himself was attacked or mauled, that mauling of the
law as a person in authority. He steps down to the civilian coming to the aid of the person in authority who is
level of an ordinary citizen. the victim of the direct assault, will not be indirect assault
anymore, because by coming to the aid of a person in
authority, that civilian is now considered in the eyes of the

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law, as an agent of a person in authority at that moment. person, by means of violence, intimidation, or bribery. If other means are
used, the penalty of arresto mayor shall be imposed.
Hence, the attack on him is an attack upon an agent of a
person in authority. If the escape of the prisoner shall take place outside of said establishments
by taking the guards by surprise, the same penalties shall be imposed in their
This is precisely designed to bring about a more serious crime minimum period.
than, ordinarily, indirect assault only.
Elements:
So if the attack on the civilian is so serious, crime will be 1. There is a person confined in a jail or penal
direct assault with the physical injuries inflicted on him. establishment;
Direct assault is always complexed with the material 2. Offender removes therefrom such person, or helps
consequence of the crime, unless the resulting crime was a the escape of such person.
light felony only, in which case, the crime will only be direct
assault, because the light felony will be absorbed. Penalty of arresto mayor in its maximum period to prision
correcional in its minimum period is imposed if violence,
intimidation or bribery is used.
The light felony is never made subject of a separate
accusation from the direct assault. Because the direct assault Penally of arresto mayor if other means are used.
is thee spirit behind the commission of the felony.
Penalty decreased to the minimum period if the escape of the
Now, because of this amendment, in order that there may be prisoner shall take place outside of said establishments by caking the
an indirect assault, the victim of the direct assault taking guards by surprise.
place should not be a person in authority, but only an agent
of a person in authority. So that if the victim of the direct You correlate this with the crime of infidelity in the custody of
assault was only an agent of a person in authority, a civilian prisoners under Art. 223, 224, 225.
who will come to his aid, will not become another agent
anymore. That amendment to Art. 152 will not apply to him, The gravamen of this crime is that of helping a prisoner to
because he is coming to the assistance not of a person in escape from the place of confinement.
authority but an agent only.
Now on the part of the custodian, if the custodian connives to
The confusion here is brought about by the fact that the enable a prisoner to escape, or if the custodian was negligent,
definition of who are persons in authority has been amended and that negligence brought about the escape of the
to include any person coming to the aid of a person in prisoner, the custodian will incur the crime of infidelity in the
authority. Whereas, Art. 149 has not been corresponding custody of prisoners.
amended to limit the direct assault to an agent of a person in
authority only so that a civilian coming to the aid of the victim When the custodian allows the prisoner to violate the
of the direct assault will not be an agent of a person in conditions of his sentence, such as allowing the prisoner to go
authority anymore, And so that attack upon the civilian will home at night, sleep at his house because the jail is so
be indirect assault. You consider this premise, because this congested, that there is no more place there for the prisoner
has been subject of repeated Bar problems to test your to sleep, even though the prisoner is only a detention
observation on the result of the amendment. The prisoner, that permission for the prisoner to leave that place
amendment to Art. 152 making a civilian or a person who is of confinement, allow him to be at liberty to stay in his house
coming to the aid of a person in authority, an agent of a is a case of infidelity in the custody of prisoners.
person in authority at that moment. So any attack on him is
not just an attack upon a civilian, any attack on him because This was subject of a Bar problem before.
of that assistance he is giving will be an attack upon an agent
of a person in authority. So even if the prisoner would return in the early morning,
there is infidelity because there is a violation of the sentence
DELIVERING PRISONERS FROM JAIL or of the rules and regulations governing the prisoner.

Another important crime under Title Three is found in Art. In this crime of delivering prisoners from jail, just like in the
156, crime of delivering prisoners from jail. crime of infidelity in the custody of the prisoner, the prisoner
involved may be a detention prisoner only or he may be a
Art. 156. Delivery of prisoners from jails. — The penalty of arresto mayor in convicted prisoner serving his sentence by final judgment. for
its maximum period of prision correccional in its minimum period shall be as long as the act is that of enabling a prisoner to escape or
imposed upon any person who shall remove from any jail or penal
establishment any person confined therein or shall help the escape of such
otherwise evade service of sentence if he was already a

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convict. The crime of delivering prisoner from jail will be If the prisoner who was made to escape was only a detention
incurred if the offender is not the custodian of the prisoner, prisoner, there is no sentence to evade; generally, he is not
otherwise, the crime will be infidelity in the custody of criminally liable for escaping. The law accepts that it is human
prisoners if the offender is the custodian. instinct to escape from any form of confinement. So the mere
escaping from confinement by the detention prisoner does
So it may happen that a non-custodian would conspire with not bring about criminal liability, unless in so escaping, he
the custodian, for the latter to relax the handling of the committed some destruction on the premises where he is
prisoner purposely to help the prisoner escape, although being held as a detention prisoner, then, he will be incurring
there was a conspiracy, and in conspiracy, the act of one is the crime of damage to property.
the act of all, since their crimes are penalized differently,
given different designations under the RPC, that conspiracy But if the detention prisoner learned of a plan to make him
will not bring about only one crime. It will bring about a escape, or he knew of the plan to make him escape, and he
common criminal liability, but the crimes committed are escaped pursuant to that plan, he will be incurring liability for
different the crime of delivering prisoner from Jail, even though he is
the very prisoner who is enabled to escape from Jail. And that
On the part of the non-custodian, the crime is delivering is because, by so escaping pursuant to that plan, he becomes
prisoner from jail. Art. 156 is violated. a co-principal by indispensable cooperation. So that crime,
will be also delivering prisoner from Jail.
On the part of the custodian, the crime is infidelity in the
custody of prisoners. EVASION OF SERVICE OF SENTENCE

If it was done deliberately, then Art. 223 is violated. Art. 157. Evasion of service of sentence. — The penalty of prision correccional
in its medium and maximum periods shall be imposed upon any convict who
shall evade service of his sentence by escaping during the term of his
If it was done simply by relaxing; so it is negligence, Art. 224 is imprisonment by reason of final judgment. However, if such evasion or
violated. escape shall have taken place by means of unlawful entry, by breaking doors,
windows, gates, walls, roofs, or floors, or by using picklocks, false keys,
deceit, violence or intimidation, or through connivance with other convicts or
You will notice, in Art. 225, that in the crime of infidelity in
employees of the penal institution, the penalty shall be prision correccional
the custody of prisoner, the offender may be a civilian. in its maximum period.

In Art. 225, a civilian to whom the custody of the prisoner is Elements:


entitled, and who, by the same acts of conniving or through 1. Offender is a convict by final Judgment;
negligence would allow the prisoner to escape, the crime of 2. He is serving sentence which consists in the
the civilian is not delivering prisoner from jail, but infidelity in deprivation of liberty;
the custody of prisoners, because the custody of the prisoner 3. He evades service of his sentence by escaping during
is entrusted to him. the term of his imprisonment.

This situation has been subject of so many Bar Problems. And Qualifying circumstances is to penalty imposed
this is because, where the prisoner involved is a convict
serving sentence by final judgment, by escaping, that prisoner If such evasion or escape takes place
incurs the crime of evasion of service of sentence. 1. By means of unlawful entry (this should be “by
scaling” – Reyes)
So given a problem on this fact, your answer must be three 2. By breaking doors, windows, gate, walls, roofs or
crimes: floors
a. Delivering prisoner from jail, on the part; of the non- 3. By using picklock, false keys, disguise, deceit,
custodian who worked it out to bring about the violence or intimidation; or
escape of the prisoner: 4. Through connivance with other convicts or
b. Infidelity in the custody of prisoners, on the part of employees of the penal institution.
the custodian who connived, or otherwise, relaxed
the handling of the prisoner, enabling the latter to So, In the case of a convict who escapes, the crime of evasion
escape; and of service of sentence is committed.
c. The crime of evasion of service of sentence, on the
part of the prisoner who escaped if he was already Another Important crime under this title in the crime of
serving sentence by final Judgment. delivering prisoner from jail, art. 156. This crime must be
related by you to the crime of infidelity in the custody of the

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prisoner under title 7 Book 2 of the code particularly art. sentence. This is not already borne by jurisprudence. The
223-225. definition in the service of the felony destierro in Art. 87 ___
now this will be evaded. And the definition that has been
The 2 crimes delivering prisoner from jail and that of limit of 250km where the convict cannot be banished by
infidelity in the custody of prison are identical in character the court now if the convict goes beyond the 250km he is
and in manner of committing it. Both crimes involve the act not committing evasion of service of sentence that 250km
of enabling a prisoner under confinement escape from the is a limitation on the authority of the court in banishing the
place of confinement. In both crimes the prisoner who was convict. The court cannot banished the convict further than
made to escape maybe a detention prisoner only or a 250km from the places specified by the court in the
convicted prisoner serving sentence. judgment where the convict is prohibited to enter so if it
was the convict who wanted to go further that is better for
The gravamen of the crime is that of helping the prisoner the sentence of destierro that would not be an evasion of
through connivance or through negligence escape from the service of sentence rather that would be in furtherance of
place of confinement. They only differ on who the offender the banishment which is the nature of the penalty for
was. If the offender was the custodian of the prisoner at the destierro. So even the penalty of destierro maybe subject of
time of escape the crime is infidelity in the custody of the Art. 157.
prisoner. The custodian occupies a fiduciary position in
respect of the prisoner. On the other hand, if the offender Now how must it done you must be aware of. Where the
who brought it out for the prisoner to escape was not the sentence evaded is destierro although art. 157 speaks of a
custodian at the time of the escape of the prisoner, the prison term this prison term will be translated to the
crime is delivering prisoner from jail under Art. 156. penalty of destierro also, it should not be that the sentence
evaded is destierro and yet the penalty is imprisonment. SC
If therefore the non custodian connive with the custodian, pronounced the penalty for the evasion of service of the
they conspired to allow the prisoner to escape although sentence should not be more severe than the violation of
there was a conspiracy between the non custodian and the the sentence. So if the sentence was destierro the penalty
custodian and you have learned that once there is for the evasion should also by way of destierro also the
conspiracy the act of one is the act of all since the law convict will therefore undergo extended destierro not
punishes the act of each participant with the certain ___ of imprisonment. The essence of evasion of service of
crime the 2 will not be prosecuted for the same crime. As sentence under art. 157 is that the convict will leave this
far as the custodian is infidelity while the non custodian place of confinement without any authorization.
delivering prisoner from jail. So this notwithstanding there
was conspiracy because the act of 2 are punished under Art. 158. Evasion of service of sentence on the occasion of disorder,
separate articles of the code penalty for the non custodian conflagrations, earthquakes, or other calamities. — A convict who shall
is lower than the penalty for the custodian because of the evade the service of his sentence, by leaving the penal institution where he
shall have been confined, on the occasion of disorder resulting from a
breach of the fiduciary position occupied by custodian. Now
conflagration, earthquake, explosion, or similar catastrophe, or during a
if the prisoner who was or made escape was a convict mutiny in which he has not participated, shall suffer an increase of one-fifth
serving sentence by final judgment the prisoner himself will of the time still remaining to be served under the original sentence, which in
incur the crime evasion of service of sentence. So the no case shall exceed six months, if he shall fail to give himself up to the
problem given on this it is common that there are 3 felonies authorities within forty-eight hours following the issuance of a proclamation
committed one by a non custodian, another by custodian, by the Chief Executive announcing the passing away of such calamity.
and another by prisoner who escape. (Favorite BAR
Convicts who, under the circumstances mentioned in the preceding
Question) paragraph, shall give themselves up to the authorities within the above
mentioned period of 48 hours, shall be entitled to the deduction provided in
As far as the evasion of service of sentence is concerned, Article 98.
this is governed by Art. 157. The wording of the article
impresses an evasion of service of sentence by one who is You have another form of evasion of service of sentence in
confined in jail but that is not true to the penalty of art. 158 where the evasion arises not from the act of
destierro. If the convict is serving sentence of destierro he leaving the place of confinement but from the act of not
is not in jail and if you would limit this crime only to those returning to the place of confinement of the convict.
escaped from jail then those who are serving destierro
cannot commit the crime of evasion of service of sentence As far as the convict leaving the place of confinement is
but that is wrong because even the sentence of destierro confirmed the law authorizes him to do so because of the
can be evaded. occasion of a calamity or a conflagration. The convict in a
place which was visited by a calamity or any civil
If the convict may have been sentenced to destierro, if he disturbance may leave the place of confinement to avoid
would enter any of the places specified in the sentence the same but he is required to return within 48 hrs. after
which he is prohibited from entering or he would come near the proclamation that the calamity had already passed. If
of those places at a distance of a less than 25km he he fails to return within that 48 hrs. Evasion of service of
thereby commits the crime of evasion of service of sentence will arise. The evasion does not arise from the act
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of leaving to the place of confinement. The evasion arises Included in this crime for evasion of service of sentence
from the act not returning therein within 48 hrs. after the under art. 158 is the mutiny in the place of confinement.
proclamation of calamity had already passed. The mutiny referred to here is not in the nature of mutiny
for which these military officers by reason of his ___ are
if those who left the place of confinement while the same is given amnesty the mutiny they are charged for are violation
visited by a calamity or a catastrophe return within the 48 for articles of war. The penalty there is not punitive but
hrs. after the proclamation of the calamity or catastrophe administrative only dismissal from the service. The mutiny
had already passed the convict is rewarded with a discount refers to under art. 158 is a form of public uprising or
on the unserved portion of the sentence at the time he disobedience on the part of the subordinate in ____ of the
escape. He is given discount of 1/5 of the remaining penal establishment or place of confinement against the
unserved sentence. This is called allowance for loyalty superiors if any of the convicted prisoners serving sentence
under art. 98 of the code because they return that place of participate in that uprising he is not to be given any credit
confinement but the irony of that those who did not leave because he should not took part in the mutiny which
the place of confinement in spite of the calamity or expresses the satisfaction by the subordinate against the
catastrophe that visited the same is not given that credit. superior. Prisoners have no right to participate in that kind
of movement.
Between those who abandoned that place of confinement
and those who stick it out then come what may there can Art. 159. Other cases of evasion of service of sentence. — The penalty of
be no discussion that the one who stick it out there are prision correccional in its minimum period shall be imposed upon the convict
more loyal than those who abandoned the place and yet who, having been granted conditional pardon by the Chief Executive, shall
violate any of the conditions of such pardon. However, if the penalty
they are not rewarded only those who left and return are
remitted by the granting of such pardon be higher than six years, the convict
rewarded. So this will tell you the reward is not really shall then suffer the unexpired portion of his original sentence.
because of loyalty those who stayed behind are not really
given the credit because they are stupid people. That will The other evasion of service of sentence refers to a pardonee
only demonstrate to you that the law does not reward
who violated the conditions of the pardon.
stupidity. It is a form of reckless imprudence, a form of
simple negligence. If the calamity that visited the place of
confinement was at ___ intensity 8 the walls of the prison If the remaining sentence that was remitted by the pardon is
establishment are already collapsing this convict still stay not higher than six (6) years, for the violation of the condition
there. These people do not have instinct of self of the pardon, that convict will suffer a new penalty for
preservation, these are useless human beings they shall violating the condition of the pardon. You have penalty there
not be rewarded so that next time this swill come they will of prision correccional minimum.
know their lesson.
But if the sentence that was remitted by the conditional
This is because if something happened with this convict it pardon is higher than six (6) years, the violation will not be
will be the headaches of the government, you must have penalized anymore. The convict will only be required to
learned that convicted prisoners are chattel to the resume serving the original sentence.
government. So if in a jail capacity is 300 but the inmates
are 7000. If these inmates would suffer physical injuries
So the violation does not bring about, criminal liability for a
because of the problem of looking for a hospital where they
will be treated and if they all die then they have the new crime. Although you have here evasion of service of
problem spending for the coffins where they will be buried. sentence because he violated the condition, there will be no
And that is why the law encourages them to leave so that penalty if the sentence that was remitted by the conditional
the government will have no problem. If they still do not pardon is higher than six (6) years. Hence, this was asked in
leave no credit because they risk the government the the Bar.
expenses which the government may not be able to cope
with. Examinations: Is the violation of the conditional pardon a
substantive offense?
It is hypocrisy to claim that the credit is for loyalty because Now you have to observe two distinctions, if the
they are more loyal because they stay there they are like remaining sentence that was remitted by the
military unit that has been besieged by the enemy those conditional pardon is not higher than six (6) years,
who leave are not really loyal they are deserted those who the violation of the condition is penalized. There is a
stand it out are the one who are loyal. But in this case the
penalty there of prision correccional minimum. So
equation is different those who abandoned are the one
rewarded but those who did not abandoned are not that means it is a substantive offense on that
rewarded because the law regard them as stupid people situation. Otherwise, there would be no basis for
they will not receive any reward. The law wanted them to imposing the new penalty.
leave the place but they need to return.

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But if the sentence that was remitted by the The penalty of arresto mayor shall be imposed upon any person who in any
meeting, association, or public place, shall make any outcry tending to incite
conditional pardon is higher than six (6) years, there
rebellion or sedition or in such place shall display placards or emblems which
is no more penalty for the violation. In this regard, it provoke a disturbance of the public order.
is not a substantive offense anymore. Because there
is no penalty for the violation of the condition of the The penalty of arresto menor and a fine not to exceed P200 pesos shall be
imposed upon these persons who in violation of the provisions contained in
pardon.
the last clause of Article 85, shall bury with pomp the body of a person who
has been legally executed.
The crime is evasion of service of sentence. But
the convict who was given conditional pardon is The disturbance contemplated here is a serious one, not just
out of the place of confinement. He is release that
a disturbance of the prevailing tranquility.
is why it called evasion of service of sentence. The
reason is because is when a convict is offered a
conditional pardon the convict must accept the Disturbance of public order under Art. 153 is a serious
conditions of a pardon. If he did not want to accept disturbance that would send people running to different
the conditions of pardon then he will not be directions.
discharged but if he accept the conditions of
pardon he is expected to comply with the This is exemplified by a situation m a crowded movie house.
conditions of pardon. Now if he accept the
conditions of pardon and he violated the same the A movie goer, in order to get a seat, he shouted "fire! Fire!
implication is that he only accepted the conditional Fire!” So the people inside starts scampering to Get out.
pardon to be able to evade serving his sentence
and this is shown subsequently by violating the Now should it turn out that really there is no fire, the one
conditions he accepted that is why the crime is who shouted will be incurring the crime of disturbance of
known as evasion of service of sentence under art.
public order.
159.
Where the disturbance was carried out by the persons
RECAP:
bearing arms, the crime becomes tumultuous disturbance of
Evasion of service of sentence has three forms:
public order. Penalty higher in degree will be imposed.
(1) By simply leaving or escaping from the penal
establishment under Article 157:
The SC, on this crime, ruled that even though the offenders
(2) Failure to return within 48 hours after having left the
carry only stones, if the stones are big enough to cause fatal
penal; establishment because of a calamity,
injuries, these are considered already as arms. And therefore,
conflagration or mutiny and such calamity,
the higher penalty for the disturbance of the public order is
conflagration or mutiny has been announced as
committed.
already passed under Article 158;
(3) Violating the condition of conditional pardon under
So during a rumble, where the parties involved armed,
Article 159
imposed. Otherwise it is only plain disturbance of public
order.
TUMULTS AND OTHER DSTURBANCES OF PUBLIC ORDER
So if in a rumble they only exchanged fist blows, it is only a
You have also under this Title the crime of disturbance of
disturbance of public order.
public order.

Art. 153. Tumults and other disturbance of public orders; Tumultuous


But if they are armed with iron pipes, dubs, knives, then it is
disturbance or interruption liable to cause disturbance. — The penalty of tumultuous.
arresto mayor in its medium period to prision correccional in its minimum
period and a fine not exceeding 1,000 pesos shall be imposed upon any When it is a tumultuous disturbance of public order, the idea
person who shall cause any serious disturbance in a public place, office, or
establishment, or shall interrupt or disturb public performances, functions or
of conspiracy is inconsistent.
gatherings, or peaceful meetings, if the act is not included in the provisions
of Articles 131 and 132. So given this crime, although several acted on the occasion
therefore, do not consider conspiracy among them. Because
The penalty next higher in degree shall be imposed upon persons causing any
disturbance or interruption of a tumultuous character.
in this idea, conspiracy cannot co–exist with the disturbance.
That is why it is regarded tumultuous.
The disturbance or interruption shall be deemed to be tumultuous if caused
by more than three persons who are armed or provided with means of
violence.

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BURY WITH POMP his crime will only be as a disturbance of the public order. It
will be under Art.153.
A convict put to death by death penalty is not allowed to be
buried with pomp; otherwise this crime is committed. ALARMS AND SCANDALS

In this case of Echegaray, the family was to bury the body of Art. 155. Alarms and scandals. — The penalty of arresto menor or a fine not
exceeding P200 pesos shall be imposed upon:
the executed convict, asked permission to conduct a vigil for 1. Any person who within any town or public place, shall discharge
the deceased. any firearm, rocket, firecracker, or other explosives calculated to
cause alarm or danger;
DOJ allowed this, but limited this only to three days. 2. Any person who shall instigate or take an active part in any
charivari or other disorderly meeting offensive to another or
prejudicial to public tranquility;
The family was asking for five days, DOJ did not approve. 3. Any person who, while wandering about at night or while engaged
in any other nocturnal amusements, shall disturb the public
Now more than that the DOJ imposed as a condition, no peace; or
4. Any person who, while intoxicated or otherwise, shall cause any
singing, no flowers. Because the purpose of the law in disturbance or scandal in public places, provided that the
prohibiting such burial with pomp is to avoid creating an circumstances of the case shall not make the provisions of Article
impression upon the minds of those who are close to the 153 applicable.
executed convict that he was a martyr of Government, and
that may inspire hatred against the Government, and Acts punished:
eventually bring about a disturbance of the public order. 1. discharging any firearm, rocket, firecracker or other
explosive within any town or public place, calculated
You apply this only to a convict who had been legally put to to cause (which produces) alarm of danger;
death. 2. Instigating or taking an active part in any charivari or
other disorderly meeting offensive to another or
So if the one to be buried was found dead out of salvage, prejudicial to public tranquility:
even though the people attending his burial we so furious, 3. Disturbing the public peace while wandering about
and they were then displaying their hatred in a pompous at night or while engaged in any other nocturnal
burial, this crime is not committed amusement
4. Causing any disturbance or scandal in public places
You also have under this Title, a case of disturbance of public while intoxicated or otherwise, provided Article 153
order where a person delivering a public speech would make is not applicable.
outcries chat would incite the audience to rise in rebellion or
insurrection. This crime is worthwhile with respect to the discharge of
firearm.
You have to know when inciting to rebellion or inciting to
sedition is committed, and not just the crime of disturbance Under par. (1) of Alarms and scandals, one of the ways of
of public order. incurring the crime is by discharging a firearm in a public
place.
In other words, you have to correlate this with the crimes of
inciting to rebellion or inciting to sedition. The discharge of a firearm is also punished under Art. 254 of
the Code as Illegal Discharge of Firearms.
The distinction lies on this points.
Under this Art.155; that discharge is punished as a crime of
If the speaker even before he delivered his speech, already Alarms and Scandals
had the criminal intent to incite the listeners to rise to
sedition, the crime would be inciting to sedition. However, if And you know that the discharge of firearm may yet amount,
the offender had no such criminal intent, but in the course of to a crime of attempted homicide or attempted murder when
his speech, tempers went high and so the speaker started intent to kill is shown
inciting the audience to rise in sedition against the
government, the crime is disturbance of the public order. In other words, a discharge of the firearm may bring about
any of three felonies:
Under this second situation, considering that the intent to a. Alarms and Scandals;
incite rebellion or sedition was absent from the speaker at b. Illegal discharge of firearms
the beginning when he started delivering his public speech, c. Attempted Homicide or Murder

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So the word particular here becomes decisive. It must be a


These arise when no one is injured by the discharge of the particular person, because illegal discharge of firearm is a
firearms. prelude to the commission of attempted homicide or
attempted murder.
The moment there is somebody who is injured, alarms and
scandals is out of the picture already. If really, you do not know who is the person fired upon, then,
it cannot be attempted homicide or attempted murder.
So these three crimes are involved if the discharge of the Because the only element that differentiates illegal discharge
firearms did not bring about any injury to anyone. from attempted homicide or murder is the intent to kill.

The crime will be alarms and scandals, if the firearm when If that is proven, attempted homicide or murder. Not proven,
discharged was not directed to a particular person. illegal discharged of firearm; provided, that the firearm is
directed to a particular person when it was discharged.
The firearm may be discharged upwards, downward,
sideward, or any direction as long as it is not directed to a RECAP:
particular person.
When a person discharges a firearm in public, the act may
If the firearm, when discharged, was directed to a particular constitute any of the possible crimes under the Revised Penal
person, but the intent to kill is absent, because the person Code:
fired at is beyond the range of the firearm or the firearm was 1. Alarms and scandals if the firearm when discharged
discharged without evident intent to kill, the liability of the Was not directed to any particular person;
offender will only be illegal discharge of firearm. 2. Illegal discharge of firearm under Article 254 if the
firearm is directed or pointed to a particular person
Now if that discharge of the firearm directed to a person, is when discharged but intent to kill is absent;
shown to have been attended by intent to kill, then the crime 3. Attempted homicide, murder or parricide if the
becomes attempted homicide or attempted murder, as the firearm when discharged is directed against a person
case may be, depending upon the circumstances under which and intent to kill is present.
the firearm was discharged.
In this connection understand that it is not necessary that the
So although the firearm was discharged towards persons, if offended party be wounded or hit. Mere discharge of firearm
there were so numerous persons and it is not established towards another with intent to kill already amounts to
who in particular was fired upon, the crime is only alarms and attempted homicide or attempted murder or attempted
scandals. parricide. It cannot be frustrated because the offended party
is not mortally wounded.
So, in a case where a person was being chased by several
young fellows because he created trouble in the Then under the same article on alarms and scandals, you
neighborhood, the young males in the neighborhood all have there the word charivari. A person who instigated or
pursued him, chased him. And he ran away with so many take part in a charivari xxx incurs the crime of alarms and
young people running after him. scandals.

Now to dissuade them, to stop running after him, he pulled You take note of this word. At one time, this was number one
out a paltik, fired a the several people pursuing him, but question in the Bar. What is charivari? What crime does it
nobody was wounded. constitute in the RPC?

Now because the discharged was directed to persons, the Charivari is a mock serenade where person or persons
offender was prosecuted for illegal discharged of firearm pretend to be serenading, but in fact disturbing the public
under Art. 254. tranquility as shown by their use of broken cans, broken pots,
broken utensils, and not musical instruments
Atlhough the lower court convicted him for this crime, on
appeal, SC ruled, the crime is only alarms and scandals. Now this is a crime when done at a time when there is
already prevailing public tranquility.
The reason: the fire arm was not directed to a particular
person.

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Now during the advent of New Year, this crime cannot be urinating there. What is the crime committed? That is not
committed. People, are trying to make as much noise as they alarm and scandal although it may cause alarm that is an
can make. offense against decency title 6 of book 2 and that is
covered by indecent exhibition.
So this crime will only arise when there is already a prevailing
All these acts as you will notice are not per se criminal or
public tranquility. and this people are unmindful of that
wrongful like engaging in nocturnal amusements. Those
tranquility. playing basketball while people in the vicinity are already
asleep so the stamping of the basketball irritates those
Although they seem to be serenading only, but the fact that who are resting already the act may not per se evil or bad
they are not using musical instruments, would indicate that so you may be thinking it is a form of malum prohibitum
they are maliciously disturbing the public tranquility. that would be correct if in another art. 3 under RPC. Under
RPC to constitute a felony the act must be done with dolo
Included here are those who are engaged in nocturnal or culpa so either criminal intent or criminal negligence.
amusements, like playing basketball at night, playing hide and Without that civil liability only. The act will amount to quasi
seek when it is full moon, if they create so much noise, delict or a tort not really a felony. So example a balot
already disturbing people who are already resting, criminal vendor who enters a dark alley and shout at a top of his
liability will arise. voice “BALOT!” awakening people who are already asleep.
Question may he be charged of alarm and scandal? The act
may be wrong but not all wrong amounts to a crime
This crime is only a light felony. The equivalent of this, in local
particularly a felony under the code do not overlook the
ordinances, is breach of the peace. requirement that the act or omission must be characterized
by dolo or by culpa. Otherwise it is not a felony if that is not
If the offender is prosecuted under Title Three of the code for a felony there is no criminal liability. It is only a civil wrong
Alarms and Scandals, you will note, under the Probation Law, only civil liability will arise.
if the crime is against Public order, the offender who would
be found guilty is disqualified from availing of Probation. So Art. 202. Vagrants and prostitutes; penalty. — The following are vagrants:
no probation for the crimes here. 1. Any person having no apparent means of subsistence, who has
the physical ability to work and who neglects to apply himself or
herself to some lawful calling;
In a case of direct assault, no probation. Because this is a 2. Any person found loitering about public or semi-public buildings
crime against public order. or places or trampling or wandering about the country or the
streets without visible means of support;
3. Any idle or dissolute person who ledges in houses of ill fame;
Now about this nocturnal amusements and this act of
ruffians or pimps and those who habitually associate with
serenading, this nocturnal amusements at night xxx, create prostitutes;
noise, wandering at night, the act is in the nature of a malum 4. Any person who, not being included in the provisions of other
prohibitun. because they are not inherently wrong, bad or articles of this Code, shall be found loitering in any inhabited or
evil uninhabited place belonging to another without any lawful or
justifiable purpose;
5. Prostitutes.
So should you encounter the question: Is there any act in the
nature of a malum prohibitum under the RPC? For the purposes of this article, women who, for money or profit, habitually
The answer is, Yes. And you have this alarms and indulge in sexual intercourse or lascivious conduct, are deemed to be
prostitutes.
scandals in the act of nocturnal amusement, playing
basketball, playing hide and seek. Any person found guilty of any of the offenses covered by this articles shall
be punished by arresto menor or a fine not exceeding 200 pesos, and in case
You also point under the same article the ____ to one who of recidivism, by arresto mayor in its medium period to prision correccional
in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in
is commits his conduct while under intoxication. This
the discretion of the court.
conduct refers to here is a disturbance of the prevailing
public peace not a scandal in the sense of moral decency.
So if a person who was being so intoxicated unmindful of Now also in the crime of vagrancy, people who wander
the people around waiting for a ride simply unzip his pants around without any visible means of livelihood may be
starting urinating there because he was already so much arrested and charged for vagrancy. The act is not inherently
compelled to urinate, crime is not alarm and scandal a bad, evil, or wrong. But under the RPC, it is a malum in se,
crime is an offense against decency and that is indecent because here, dolo or culpa is required to bring about
exhibition. The common problem here was a fellow who criminal liability, although the nature of the act is one of
was so intoxicated cannot hold it anymore and while malum prohibitum.
walking the street while there are several people lining
waiting for a ride he simply unzipper his pants and started

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TITLE FOUR
CRIMES AGAINST PUBLIC INTEREST The law does not want any person to try his ingenuity in
imitating money. Even though at the start the offender tried
Under this Title, you should notice the nature of the violation to test his ingenuity on money which is not of legal tender,
is one which defrauds the public at large. time will come when that person would become an expert
in imitating money designed by the government. By that
time that he acquired expertise in counterfeiting money, it
The Characteristic of the acts here is a deceit on the Public. would be difficult for the government to detect which is
genuine money which is counterfeit money.
So under this Title, you have counterfeiting which applies to
currency; Do not think that if the offender counterfeit money issued
during the Japanese occupation of the Philippines that
Mutilation Of Coins; Forgery of bank notes, and obligation there is no liability. Observe the provision of the code on
and securities issued by the Government; counterfeiting that there is no requirement that the
currency counterfeited is legal tender.
Then, the most important crime here, falsification.
The mere possession of counterfeit money knowing that it
Now also false testimony: usurpation. is counterfeit would bring about Crime of Illegal Possession
of the Counterfeit Currency, if the possession demonstrates
an intention to circulate the counterfeit money as legal
MUTILATION OF COINS
tender. Such intention will be deduced from the
circumstances of possession that the offender has been
Art. 164. Mutilation of coins; Importation and utterance of mutilated coins.
— The penalty of prision correccional in its minimum period and a fine not to found in the process.
exceed P2,000 pesos shall be imposed upon any person who shall mutilate
coins of the legal currency of the United States or of the Philippine Islands or If the liability of the offender is simply possessing the
import or utter mutilated current coins, or in connivance with mutilators or counterfeit money, there is no proof that he is the one who
importers. counterfeited the currency, the provision of the Code
requires the same must be possessed by him with the
Acts punished: intent to utter or circulate the same. Otherwise, the intent
1. Mutilating coins of the legal currency, with the to defraud the public at large will be negative. Without that
further requirements that there be intent to damage intent to circulate, the fraud which is being penalized under
or to defraud another; the title will not accrue or will not happen.
2. Importing or uttering such mutilated coins, with the
further requirement that there must be connivances Illustration:
with the mutilator or importer in case of uttering. If a person was found to have received a P500 bill
which turned counterfeit, placed this in a picture
frame, displayed it in his room. The fact that he
The first acts of falsification or falsity are —
had placed the counterfeit money in a picture-
(1) Counterfeiting – refers to money or currency; frame indicate that he does not have intention to
(2) Forgery — refers to instruments of credit and spend it or introduce it to commerce as a medium
obligations and securities issued by the Philippine of exchange.
government or any banking institution authorized
by the Philippine government to issue the same: If that counterfeit money was found among the
(3) Falsification — can only be committed in respect of genuine bills in his wallet, that circumstance will
documents. imply that he intends to spend it among the other
money which is not counterfeit. If he is aware of
In so far as coins in circulation are concerned, there are two the fact that currency is counterfeit then there will
crimes that may be committed: criminal liability.
1. counterfeiting coins
2. Mutilation of coins If he is not aware then there is no liability. The
mind is not criminal.
counterfeiting coins — This is the crime of remaking or
Mutilation of coins – this refers to the deliberate act of
manufacturing without any authority to do so.
diminishing the proper metal contents of the coin either by
Even though the currency counterfeited is no longer legal scraping, scratching or filling the edges of the coin and the
tender, withdrawn from circulation already. A person who offender gathers the metal dust that has been scraped from
tries his ingenuity in imitating that money incurs criminal the coin.
liability.
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This crime involves - The act of diminishing the precious When the vandalism on currencies became rampant, draw
metal coating of a coin or precious metal content of the some caricature on the faces of the heroes, write on the
coin through scraping, scratching, filing the edge of the coin marginal space of the currency. This is a crime under PD
and the offender must collect the precious metal dust 247 but not under the RPC. This is because mutilation
eroded from the coin. This is where the criminal intent of under the RPC can only be committed on coins.
the offender is demonstrated.
The word “mutilation” under the RPC has a technical
Regarding mutilation of coins, under the RPC this is meaning – diminishes the precious metal of the coins. But
committed by deliberately diminishing the precious metal under the decree any act which would destroy the currency
contents of a coin and the offender is collecting the metal as medium exchange is punishable, because it lessens the
dust being remove from the coin. volume of money in circulation and that would work a
hardship on the economy of the country.
The criminal intent of the offender is precisely shown by the So you co-relate PD 427 with the crime destroying in any
fact that he is collecting the metal dust, which is being eroded manner currencies of legal tender issued by the CB of the
from the coin. Philippines as medium of exchange in the Philippines,
whether it be coins or paper bills.
Now this is done by scratching the precious metal coating,
the silver coating, or filing the edge of the coin FORGERY

The offender collects the metal dust and will mint this to Art. 169. How forgery is committed. — The forgery referred to in this section
some Jewelry. may be committed by any of the following means:
1. By giving to a treasury or bank note or any instrument, payable to
bearer or order mentioned therein, the appearance of a true
There is no expertise involved here. In mutilation of coins genuine document.
under the Revised Penal Code, the offender does nothing but 2. By erasing, substituting, counterfeiting or altering by any means
to scrape, pile or cut the coin and collect the dust and, thus, the figures, letters, words or signs contained therein.
diminishing the intrinsic value of the coin.
Now the crime of forgery, this is the crime applicable to
Now this is a crime only when the coin is legal tender. So if instruments of credit-bank notes, obligations and securities,
the coin is not legal tender, mutilation under the RPC cannot like sweepstakes ticket, ticket of the lotto.
be committed.
Any falsity made on these instruments of credit or obligations
PD 47 and securities of the Government is covered by Art. 169. The
If the offender simply brought about the reduction of the crime is forgery.
precious metals of the coin without, however, collecting
these the crime will be governed by PD 247. Forgery is committed when the forged instrument had been
given the appearance of a true and genuine instrument. You
Those small gamblers playing this game known as Cara y noticed that in the provision of Art. 169.
Cruz.
So if the offender was able to complete the forgery, the
Before they toss the coins they rub these on the sidewalk
then throw these. Since they do not collect the metal dust imitation, but just the same, the forged instrument clearly
eroded from the coin the crime known mutilation is not appears to be spurious, not appearing to be a true and
committed because the criminal mind of the offender in genuine instrument, the crime is only frustrated forgery. Not
committing the felony against public interest is simply forgery but frustrated forgery.
demonstrated in his collecting the precious metal dust that
he is eroding from the coin. But the act of eroding the Where the instrument is a substitute for money, like bank
precious metal dust, coating, content of the coin was only notes, obligations or securities of the government whether
incidental, because this was done not as the purpose of the payable to bearer or payable to holder, the alteration made
offender, but simply in the course of playing the game the thereon will be a crime of forgery (Art 169), not falsification.
violation will be of PD 247.
The essence of the Crime of Forgery is that an instrument
The term mutilation is not limited to coins, because the which is in the nature of a bank note or obligation or
term mutilation under the decree carries its ordinary securities of the government is so altered, or otherwise
meaning to a layman – that of destroying in any manner the erased and superimposed to give it an appearance of a
medium of exchange issued by the central bank of the true and genuine instrument. The crime is committed if the
Philippines. instrument that was forged could passed on as a genuine
instrument.
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In law, a document is a writing capable of creating a right


Art 169 tells you that the crime of forgery is defined ___ and/or extinguishing an obligation; or it is a writing which is
making alterations, substitution or erasures on an taken as competent evidence of the fact stated therein.
instrument of credit, securities, obligations of the Philippine
government or of a foreign government accepted and Where the writing may not be extinguishing an obligation or
honored in the Philippines, the appearance of a true and creating of right, but if in law it is accepted as competent
genuine instrument. memorial of what is written there, it is accepted as
competent evidence, that writing is a document also.
If the forged instrument already resembled a true and
genuine instrument, but somehow there are imperfections i.e. Hotel registers maintained by hotel operators, generally
that would betray the fact that it is not really genuine, the those who enter these places just write their fictitious name
SC’s ruling on this is that the crime committed is only there, they state their community tax no. which is not really
frustrated forgery. Not really a forgery which implies a true. A crime of falsification is committed, because that
consummated felony. register is evidence of the fact that register is competent
evidence of the fact that may be there - who entered the
It may be difficult for the offender to hide the fact that the hotel on a particular date and time, how long he stayed,
forged instrument is a mere imitation of a genuine. When whether he is alone or with somebody else. It is a public
that nature of the forgery is visible to the naked eye but one registry.
who unsuspectingly considers the forged instrument as
genuine will not notice that, the instrument failed to appear The writing must be complete. If it is incomplete it is not a
as a true and genuine instrument. The crime is not simply writing. It is a form.
forgery, which means it is consummated. SC said the crime
is frustrated forgery. The offender was able to perform the Illustrations:
acts of execution to bring about the forgery but for reason If a person selling community tax certificate under the
beyond his own action, he failed to perfect the forgery. under pass near the Plaza Miranda. Those who do not want
to suffer the inconvenience of getting their residence
FALSIFICATION certificate at the city hall refer to these people. In a case
where there was a report that the certificate being issued
Five classes of falsifications by this fellow is not really printed by the Bureau of Treasury,
(1) Falsification of legislative documents; not an accountable form but printed by a private printing
(2) Falsification of a document by a public officer, press. The form is spurious, not really an official form. The
employee or notary public; City Hall, upon that report, organized a team to apprehend
(3) Falsification of a public or official, or commercial the fellow selling such spurious tax certificate. The team
proceeded to the place designated and they found that this
document by a private individual;
fellow have many booklets of community tax certificate laid
(4) Falsification of a private document by any person; on his table. The members of the team simply collected all
(5) Falsification of wireless, telegraph and telephone of these, arrested the fellow. Eventually it was found that
messages. the forms are not from the government, they are not
accountable forms, and they are printed by private printing
This is a crime applicable only to documents. press. This fellow was charged by the prosecutor for a
crime of falsification. The trial court convicted the accused
There are four kinds of documents: for the crime of falsification. He appealed to the SC ruled
(1) Public document in the execution of which, a that the crime of falsification is not committed because the
person in authority or notary public has taken exhibit presented are not documents, they are mere forms
part; because they are still to be completed, there are blanks to
(2) Official document in the execution of which a filled up. So as long as they are completed they are not
public official takes part; documents. SC pointed out that the crime is under Art 176
if the RPC - the Illegal production, importation or use of
(3) Commercial document or any document,
materials, supplies, inks, dyes, or plates used in the crime
recognized by the Code of Commerce or any of counterfeiting forgery, or falsification, but not a crime of
commercial law; and, falsification. So Art 176 the unauthorized use, or
(4) Private document in the execution of which only unauthorized possession with intent to use, not of
private individuals take part. documents, but of supplies, materials, inks, dyes, plates
which are implements used in counterfeiting, forgery or
This can only be committed on writing which qualify in law falsification.
as a document. So not any writing may bring about the
crime of falsification. The writing must be a document in If an impostor posing as a traffic enforcer stopped vehicles
the legal sense. which incurred violations of traffic rules and they have this
booklet of supposed traffic violation receipts but actually
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the booklet was not printed by the MMDA. The crime 2. The false document is in Articles 171 or 172 (1 or
committed by this fellow is not falsification, but the 2)
unauthorized possession of materials which may be used in 3. He introduced said document in evidence in any
counterfeiting, forgery, or falsification under Art 176. judicial proceeding.

USE OF FALSE DOCUMENTS In use in any other transaction —


1. Offender knew that a document was falsified by
Art. 172. Falsification by private individual and use of falsified documents. —
The penalty of prision correccional in its medium and maximum periods and
another person;
a fine of not more than P5,000 pesos shall be imposed upon: 2. The false document is embraced in Articles 171 or
1. Any private individual who shall commit any of the falsifications 172 (1 or 2)
enumerated in the next preceding article in any public or official 3. He used such document;
document or letter of exchange or any other kind of commercial
document; and
4. The use caused damage to another or at least
2. Any person who, to the damage of a third party, or with the intent used with intent to cause damage.
to cause such damage, shall in any private document commit any
of the acts of falsification enumerated in the next preceding Another important factor of falsification – this Title 4 Book
article. 2 of RPC punishes the crime of falsification of documents
Any person who shall knowingly introduce in evidence in any judicial
as well as the use of a false or falsified document. The
proceeding or to the damage of another or who, with the intent to cause crime of the user and the crime of the one who falsified are
such damage, shall use any of the false documents embraced in the next different.
preceding article, or in any of the foregoing subdivisions of this article, shall
be punished by the penalty next lower in degree. In crime of FALSIFICATION of a document, the nature of the
document as a public document, private document or
Acts punished: public document is controlling. So if it is a crime of
1. Falsification of public, official or commercial falsification you must give attention to what document is
document by a private individual; falsified.
2. Falsification of private document by any person:
3. Use of falsified document. Take note of this aspect in the crime of use of false or
falsified document under the last paragraph of Art 172.
Elements under paragraph 1
If the crime was mere USE of a false or falsified document
1. Offender is a private individual or public officer or
the nature of the document which appears to be falsified is
employee who did not take advantage of his official not controlling. What is controlling or decisive is the
position purpose for which the falsified document was used.
2. He committed any act of falsification;
3. The falsification was committed in a public, official, Although an offender may have been arrested while he was
or commercial document or letter of exchange using a false or falsified document, this is not a crime that
you will impute to him.
Elements under paragraph 2:
1. Offender committed any of the acts of falsification Bear in mind that even though the offender was
except Article I7I (7), that is, issuing in an apprehended in act of using a false or falsified document,
authenticated form a document purporting to be a the crime to be imputed to him is not the crime of use of a
copy of an original document when no such original false or falsified document. Instead, the crime to be
properly imputed to the offender is the crime of falsification
exists, or including in such a copy a statement
itself. This is so because in criminal law there is a
contrary to, or different from, that of the genuine
presumption that the possessor and user of a false or
original; falsified document is the one who falsified the same. He
2. Falsification was committed in any private has to show that he is not the one who falsified the
document; document.
3. Falsification causes damage to a third party or at
least the falsification was committed with intent to Even if the accused was acquitted from the crime of
cause such damage. falsification of document of which he was found to be
using, still he can be prosecuted for the use of false of
Elements under the last paragraph: falsified document. The acquittal from charge of
In introducing in a judicial proceeding — falsification will not be a bar for prosecution for the crime of
1. Offender knew that the document was falsified by use of falsified document. There is no double-jeopardy
another person; because as the SC observed the accused may have been
acquitted from the crime of falsification of document he
tried to make use of, either because of reasonable doubt
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or it was shown that he was not the one who falsified the prosecution would split the elements and bring about
document. But that does not mean that such accused was different crimes. So the offender will be prosecuted for
not aware that at the time he made use of that document many crimes. That will run counter to the protection against
that it was not falsified. And this is the gravamen of the double jeopardy.
crime of use of a false or falsified document – the offender
at the time of the use of the document, the offender knows This is the common predicate Bar problems, where the
it is falsified. document falsified was a private document, and then,
subsequently used to defraud another. Now if you write that
But if such offender was found guilty of crime of the crime is estafa through falsification of a private
falsification, you cannot further prosecute him for use of a document, that is the end of it. There is no such crime.
false or falsified document. The logical Inference is that he
falsified the document purposely to use the same. You
cannot split the continuity of the criminal liability and hold It is either estafa only or falsification of private document
him liable for two crimes. only.

****** So, the question arises: Which is the correct crime to impute
In the crime of falsification of document the nature of the to the offender?
document is decisive or controlling, whether the document
is private document, or public document or a commercial The criterion is this:
document. If you encounter a problem, while your answer is If the swindling could not be perpetuated without
falsification, the answer is meaningless if you have not the falsified document, the falsification, therefore,
stated the nature of the document falsified – falsification of becomes the principal offense without which the
private document, falsification of public document, swindling could not have been carried out; hence,
falsification of commercial document, because the legal the falsification becomes the main crime. The
consequence of the falsification are not the same. swindling becomes only the resultant crime. The
correct crime, therefore, to impute to the offender is
Falsification of Private Document
falsification of a private document.
Where the document falsified is a private document
criminal liability for the falsification will only arise if the
falsification resulted to damage, or there is evidence that Now if the swindling could be perpetrated even
the accused made the falsification with a criminal intent to without the falsified document, but the offender
cause damage. made use of the falsified document to make the
swindling more convincing, the falsification of the
Absent any evidence of damage or intent to cause damage private document merely facilitated the commission
would only bring about civil liability for falsification of of the swindling, which may be carried out even
private document, minus criminal liability. without the falsification of the document, hence, the
falsification is only an incidental crime. The swindling
Because of this, if the private document after having been or estafa is the principal crime. Hence, the correct
falsified was used by the offender to defraud another crime to impute to the offender is estafa.
brining about the crime of estafa or swindling, even though
the crime of falsification was committed as a necessary
This is a common situation given in the Bar.
means to perpetrate a crime of swindling or estafa, the two
crime of falsification and estafa cannot be complexed. So
Falsification of a public or commercial document
there is no crime of estafa through falsification of “private”
On the other hand, if the document falsified was a public or
document.
commercial document, damage or intent to cause damage
on the part of the offender is not required to be
Falsification of private document cannot be complexed with
established. It is enough that the offender acted with intent
the crime of estafa because both crimes require damage or
to pervert the truth. Even though there is no damage or
at least proof of the offenders’ intent to cause damage. So
there is no evidence to show that the accused acted with
whatever damage or intent to cause damage attended, the
the intent to cause damage.
falsification of the private document will also be the same
damage or intent to cause damage attending the swindling
Criminal liability may arise as long as the intent to pervert
or estafa.
the truth, because in falsifications of public and
commercial documents the law is interested in preserving
In short, damage or intent to cause damage is an element
the faith and credit of the document.
which is requisite of falsification of private document and of
swindling or estafa. We are not allowed to make use of the
There is crime of estafa through falsification of public
same element to build up more than one crime. Otherwise,
documents and there is a crime of estafa through
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CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

falsification of a commercial documents because damage Relative to this act of falsifying, the document may be wrong,
that may attend estafa is not a requisite for falsification of but not all wrong will amount to a crime.
such public or commercial document.
Where the act that caused the falsity was deliberately
Shall it be crime of swindling or shall it be a crime of executed, absent the intent to pervert the truth, no criminal
falsification private document?
liability will follow.
The guide is this: If the swindling could not have
been perpetrated without the falsified private
document, then the swindling or estafa is just a SC laid down two (2) conditions to detect whether the
resultant crime which cannot be committed offender acted with intent to pervert the truth or not.
without going through the falsification. Hence the
proper crime to accuse the offender of is Now SC said, if these two conditions are present, intent to
FALSIFICATION of a private document. The pervert the truth would be negative. Hence, no criminal
swindling is in the nature only of an accompanying liability will arise.
or resultant crime.
The conditions are:
But if the swindling could have been carried out even • The accused did not gain or benefit anything out of
without going through falsification of a private document, the falsification; and
but the offender committed the falsification to make the
• No party, public or private, suffered damage out of
swindling more convenient or believable, the falsification is
merely an incident to facilitate the swindling. The principal the falsity of the document
crime is the SWINDLING. Hence that is the crime for which
the offender shall be prosecuted, not the crime for When these two conditions concur, the conclusion is that the
falsification. accused did not act with intent to pervert the truth.

When the crime is simply use of a false or falsified This was ruled in a case given in the Bar Exam, sometime in
document because the accused was acquitted from the 1984 or 1985. The facts run like this: A government employee,
charge of falsification or at the outset the evidence shows during the last stage of his illness, filed an application for
that somebody else falsified the document. The user was accumulated sick leave. As usual, the government was so slow
not the one who falsified the document. In such a case, the in processing the application for computation of the
user could incur criminal liability if it could be shown that at accumulated sick leave. When the application was approved,
the time he made use of such document, he already knows the applicant was already dead. So it was the widow who
that the same was falsified. In this crime it is not the nature
received the notice that the application was approved and the
of the document which will control, rather it is the purpose
check is already available for pick-up at the office where her
for which the falsified document was used. Study carefully
the wordings of the last paragraph of Art 172 – using a husband was formerly employed. So the widow went to that
false or falsified document. office to receive the check. And she signed several supporting
documents to evidence the receipt of the check. She signed
Now some commentaries may impress you that since damage the name of her husband, because the check was payable to
or intent to cause damage is not required in falsification of a her husband. But she never exerted effort to imitate the
public or a commercial document to bring about Criminal handwriting of her husband. It is simply that she wrote the
liability, it does not follow that the mere falsification, when name of her husband.
the document is public or commercial, would already bring
about criminal liability. The COA representative learned that at the time the check
was released, the applicant was already dead. So an
SC has clarified this: investigation was conducted on who received the check. And
these evidence signed by the wife or the widow pointed to her
Falsification of whatever document is still a felony. And to as the one who received the check and signed for it
bring about criminal liability, the act must be characterized by
dolo or characterized by culpa. On this basis, a criminal case was filed against the widow for
falsification of a public document.
The crime will be attended by the dolo __y when the offender
acted with intent to pervert the truth. Absent this intent, or The trial court convicted her on the premise that criminal
the same was not proven, no criminal liability will arise, even liability is incurred from the mere falsification of a public or
though the document falsified is public or commercial. Only commercial document. Even though no damage was caused
civil liability and, possibly, administrative liability will arise. or no evidence of intent to cause damage was ever offered.

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The widow appealed, to the CA. And the CA affirmed the So whatever was done to the amount, this is due to
conviction on the premise that in falsification of a public or a the deceased, and since he is dead, the wife is the
commercial document damage or intent to cause damage is one to apply this to the indebtedness of the
not necessary. The mere act of rendering the document false deceased.
would already bring about the criminal liability.
Based on these conditions, the intent to pervert the truth is
On further appeal to the SC, SC acquitted the widow. absent. And therefore, the act not being deliberate, there is
no criminal intent.
SC clarified that not because the document that was
rendered false is a public document or a commercial So the SC reiterated, the act may be wrong, but not all
document, the criminal liability for falsification wrongs amount to a crime. Only civil liability and possibly,
would already be incurred. administrative liability may arise out of the wrongful act, but
not necessarily criminal liability.
Falsification is still a felony. And to give rise to
criminal liability, the act must be committed with XXX
dolo, or, at least, with culpa
This is not the first case where the SC applied these
In this particular case, what is relevant is dolo. And standards.
the criminal intent employed as applied to
falsification, refers to intent to pervert the truth. The conditions were also invoked in the early case of Yamaso
vs. Sandiganbayan. In this Yamaso Case, the accused were
That intent is absent when these two conditions concur: engineers of DPWH. They were engaged in the construction of
an infrastructure project distant from their engineering office.
• Firstly, the accused did not gain or benefit anything Now because they would leave at the sight of the project,
out of the falsification; nobody will be left in that office. So they fear that the
engineering equipment and supplies there may be pilfered.
Now here, the evidence show that the accused used They, therefore, hired a casual laborer to oversee their office
the proceeds of the check in paying the while they were away. So the casual laborer stayed in the
hospitalization expenses of her husband during the office to prevent any pilferages of the office supplies, office
latter's illness. equipment, and other engineering equipment that the office
keeps.
So all the widow did was to apply the proceeds of
the check, not to her use, but to liquidate the The engineers returned after 10 days. A voucher was prepared
hospitalization expenses which is the obligation of to pay the wages of the casual laborer for 10 days. But the xxx
her late husband. to dear the voucher, for the reason that there is no item for
that.

She applied the balance to burial expenses of her So the engineers met and conferred on how the wages of the
husband. casual laborer would be paid. One of them suggested that
since in the xxx xxx in the payroll as a stand-in so that the
The amount was not even enough to cover all burial wage payable to the absent/laborer will be paid to casual
expenses that she had to spend her own money to laborer.
fill up such expenses.
This was done for 10 days. So every laborer who is absent, the
So the High Court said, under this situation, it is name of this fellow is placed in the payroll. Another laborer
never reasonable to impute crimimal liability to the absent again the name of this fellow is reflected in the
accused. payroll, making it appear that he is a stand-in for the absent
laborer.
• Second condition, no party suffered damage,
whether public or private. The COA auditor tried to figure out how these engineers were
able to pay the wages of the casual laborer to oversee their
The amount involved is really due to the deceased office. And he found out that this was done through the
husband of the accused. payroll where the name of the casual laborer was made as a
stand-in.

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Hence, the SC said, the intent to pervert the truth


Now that is a Falsification. Because it is made to appear that being absent, the act being deliberate, the criminal
this laborer worked at the infrastructure project when in fact intent to make it a felony is absent.
he did not.
Intent to pervert the truth is relevant only when falsification
Causing it to appear that a person participated in an act or was done in DOLO.
proceeding, when in fact he did not, is one of the acts of
falsification enumerated in Art. 171. The intent to pervert the truth, however, is irrelevant when
the falsification was the product of culpa.
So, all the engineers were prosecuted before the
Sandiganbayan for a crime of falsification of a public So in case where the work of the accused was to scrutinize
document. vouchers before the payee thereof would present this to the
cashier of the office for payment.
Sandiganbayan here convicted all the engineers on the
ground that since the document falsified was a public The accused was to check on the items, the mathematical
document, even without damage or intent to cause damage computations there, and if he finds everything to be in order,
being proven, the accused are all criminally liable. he affixed his initial to the voucher. The payee then brings the
voucher to the office cashier, the cashier release the amount.
So the accused engineers brought this matter to the SC
In an audit, it was discovered that many of the vouchers are
SC acquitted them. erroneous. The amounts paid are not really correct. Some of
them bloated, some were distorted.
SC pointed out that they did not act with criminal
intent. So this fellow, who affixed his signature in the voucher,
virtually attested to the correctness of the amount that will be
The criminal intent in falsification is the intent to paid to the payee of the voucher.
pervert the truth.
So he was charged for falsification.
That intent is absent when these two conditions concur:
• Firstly, the accused did not benefit or gain anything The defense of this accused was that he was suffering from
out of the falsification; failing eyesight. To this effect, he presented in evidence a
• Secondly, no party, public or private, suffered any sworn medical certificate from an ophthalmologist showing
damage out of the Falsification. that his eyesight is equivalent to that of a 74 yr. old man,
although at that time, he was only 69 years Old.
Now in this case, SC pointed out, through Justice Teehankee,
that the act of the accused is not characterized with criminal So he claimed that the error was brought about by the fact
intent, but only an error of the heart. that he could hardly discern the figures in the voucher.

They pitied the casual laborer, who after rendering service for The lower courts convicted him. On appeal, SC affirmed the
10 days would not be able to receive anything out of the conviction.
services he had rendered to the government. The High Court said, since he could hardly discern
SC said, it would be highly unfair unreasonable, and the figures on the vouchers, knowing that this is
unjust that this person who served the government, presented to him for verification, he should not have
and prevented the pilferage of the property of the affixed his signature thereto, knowing that when he
government inside the engineerings office will not affixed his signature thereto, he clears the payment
be compensated after all of the voucher, implying that the amount is correct

The wages offered is even below the minimum Claiming that he could hardly see the computation,
wage. So paying this amount is much less than the he should not affix his signature thereto without
value of the property involved which could have eyeglasses.
been pilfered if nobody was left at the office of the
engineers. So failing to use eyeglasses before he certify the
voucher, he is simply recklessly imprudent. His claim
for lack of intent to pervert the truth is misplaced.

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because the act here is not the result of dolus, but He asked a subpoena there, a certain case there, he made his
brought about by culpa. name appear as respondent in a case of estafa, the name of
the fiscal, the room number at the City Hall, correct. He
So he was found guilty of falsification resulting from mailed this to his house. Made certain that his wife would
reckless imprudence. receive the subpoena.

But since he was already 69 yrs. old, and the So when the wife received the subpoena, the wife was
eyesight corresponds to that of one over 70, SC gave alarmed why her husband would be sued for estafa.
him the benefit of a mitigating circumstance And this husband called his wife that he had to borrow
analogous to one who is already over 70 at the time money, because the amount given him was not sufficient.
of the commission of the crime. So mitigating And unless he would pay the money, he would be criminally
circumstance, lower the penalty to the minimum liable.
period.
xxx So the wife asked him. how will you bring about the dismissal
of the case. Then the lawyer, the husband said, simple, pay
Now when the document, when falsified, was a private the amount.
document, but the offender knew that the document would
be filed with a public office to form part of public records, Now, the wife asked, how much? And he said, three thousand
that falsification shall be considered as a falsification of a pesos. At that time, P3.000 is more than P300,000 now. So it
public document. Therefore, even without damage or proof was a big amount.
of intent to cause damage, criminal liability shall be incurred.
So the wife told him, first thing in the morning she would go
The contention that a false document cannot be falsified is downtown, and withdraw the amount so that the husband
wrong. could pay the supposed creditor.

So even if somebody already falsifies the document, now So this husband remained in the house waiting for the wife to
here comes another who falsified the document, he will still come home with the money. But he underestimated the
be criminally liable. intelligence of his wife. He was thinking that from the bank,
the wife, after withdrawing the money, would come home,
So in a case where a lawyer married a spinster who is so give him the money so that he could pay his supposed
wealthy. creditor.

The lawyer resigned from his work as justice of the peace, From the bank, the wife went to the City Hall of Manila,
because the salary is negligible. So he thought his life would bringing the spurious subpoena. Looked for the room number
be comfortable after being married to this spinster. But it there, the name of the prosecutor.
turned out different from what he expected, because the
spinster also gave him allowances. But the wife, the spinster, So the wife went there not because she doubted the case but
put up a law office for him, for him to exercise his profession because she doubted the amount. The amount may be less
as a member of the bar. than P3,000. So she wanted to verify that.

One afternoon, the wife visited the law office, and found Now there is that room, there is that fiscal. So she asked the
there women with the husband and the other associate fiscal about the case. The fiscal ordered the secretary to look
lawyers there drinking beer. for the expediente, the records of the case. And they have
already turned everything out, no such case. So the fiscal
So the wife closed the law office, and told the husband, just issued a real subpoena to the husband.
to go around, no practice of the profession anymore. She
would just give him a fixed allowance daily. So the lawyer was When the wife came home, the husband learned that the
receiving the amount, but it was not enough for his wife had gone to the City Hall. And so, he learned that he is
extravagance. now facing a situation when he would be criminally liable.

So in order to raise a meager amount, the lawyer typed a His defense to the case was, since the subpoena, which he
subpoena in a bond paper copying a subpoena which is made in his house, is spurious, the crime of falsification
regularly issued by the City hall of Manila. cannot be committed in respect thereof, Because a false
document cannot be made false any further.

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This was ruled differently, because following the theory of 4. The penalty of arresto mayor, if the defendant shall have been
sentenced to a correctional penalty or a fine, or shall have been
the accused, one who will falsify a document by simply
acquitted.
making an alteration would be criminally liable, whereas, one
who falsified the entire document can escape prosecution. So In cases provided in subdivisions 3 and 4 of this article the offender shall
this is absurd. further suffer a fine not to exceed 1,000 pesos.

So even if the falsity was reflected in a document that is Elements:


totally spurious, criminal liability for this crime shall be 1. There is a criminal proceeding;
incurred. SC he was made criminally liable. 2. offender testifies falsely under oath against the
defendant therein
False document offered as evidence in judicial proceedings 3. Offender who gives false testimony knows that it is
If the false or falsified document was offered as evidence in false
a judicial proceedings, it is not required that damage would 4. Defendant against whom the false testimony is given
be cost. Even without requiring damage, there is criminal is either acquitted or convicted in a final judgment
liability. The mere offer in a judicial proceeding knowing
that it is falsified is already a crime. Three forms of false testimony:
1. False testimony in criminal cases under Article 180
Falsified document used in other proceedings
and 181;
If the false or falsified document was used in any other
proceeding or transaction, damage or proof of intent to 2. False testimony in civil case under Article 182;
cause damage is required. Otherwise, only civil liability will 3. False testimony in other cases under Article 183.
be incurred.
Applying this to a false testimony in a criminal case
Illustration: AGAINST the accused. This is the false testimony covered
A litigant knowing a documentary exhibit to be false offered by Art 180. Note there the penalty upon the false witness
this in evidence in a judicial proceeding (special follows the penalty for a crime committed by the accused
proceedings for the settlement of the estate of a deceased which will be imposed upon the accused. The higher
person). The document shows the deceased owns the penalty imposed upon the accused the higher penalty upon
claimant a certain amount, which however is fictitious. the false witness.
Upon the offer of the exhibit as an evidence of the
document to prove his claim, the executor objected on the If the false testimony was given in a judicial proceeding in a
ground that the document was not properly identified by criminal case and against the accused. The liability of the
the one who supposedly issued the document as receipt. false will determine the outcome of that criminal case,
So it was not admitted. whether the accused was acquitted or whether the accused
was convicted. This is not true when the false testimony
Will the claimant who offered this exhibit which was was in favor of the accused.
rejected by court incur criminal liability?
Yes, because the law does not require damage or If the false testimony is against the accused the false
evidence of intent to cause damage. What the law testimony cannot be prosecuted yet until the criminal case
requires is the use of the false or falsified against the accused has been decided with finality already
document by offering it as evidence knowing that it because the liability of the false witness will depend upon
is false or falsified. Damage is necessary only the outcome of that decision.
when the false or falsified document is used in any
other proceedings other than a judicial The liability if the accused is acquitted only arresto mayor
proceedings and any other transactions not on the part of the false witness. If the penalty upon the
involving an offer of evidence. accused is reclusion temporal, liability of the false witness
may be within prision mayor because the liability of the
false witness follows the gravity of the penalty imposed
FALSE TESTIMONY
upon the accused.
Art. 180. False testimony against a defendant. — Any person who shall give
false testimony against the defendant in any criminal case shall suffer: In this case of a false testimony against the accused in a
1. The penalty of reclusion temporal, if the defendant in said case criminal case the prosecution of the accused is suspended
shall have been sentenced to death; during the pendency of the criminal case. So the
2. The penalty of prision mayor, if the defendant shall have been prescriptive period of the crime does not run. This is not the
sentenced to reclusion temporal or reclusion perpetua; case in other false testimony.
3. The penalty of prision correccional, if the defendant shall have
been sentenced to any other afflictive penalty; and
Right after the false testimony was given, the next day the
false witness can already be prosecuted. ____ the
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prescriptive period of the crime in such cases would already Now because in the false testimony against an accused, the
commence to run. penalty upon the false witness depends on the outcome of
the case, the prosecution of the false witness cannot be
In all problems given on false testimony under Art 180 in commenced until the criminal case where he testified falsely
the previous bar exams the issue is prescription - The false had already been adjudged with finality, either the accused is
witness upon being prosecuted after the accused was
convicted or acquitted.
already convicted filed a motion to quash contending the
crime of false testimony for which he is being prosecuted
has already prescribed. So during the time such criminal case is pending, the
prescriptive period of the false testimony does not run. It is
During the pendency of the criminal case the prescriptive suspended.
period does not run. You do not count the time that has
lapsed while the false witness was not being prosecuted for This is true only when the false testimony is against the
the crime of false testimony. accused, precisely because the penalty is dependent upon the
outcome of the criminal case.
Art. 181. False testimony favorable to the defendants. — Any person who
shall give false testimony in favor of the defendant in a criminal case, shall
If the false testimony was given in favor of the accused, just
suffer the penalties of arresto mayor in its maximum period to prision
correccional in its minimum period a fine not to exceed 1,000 pesos, if the like a false testimony in a civil case, the next day after the
prosecution is for a felony punishable by an afflictive penalty, and the false testimony was given; the false witness can already be
penalty of arresto mayor in any other case. prosecuted on the crime of false testimony.

Elements: It is only in this case, where the false testimony was given
1. A person gives false testimony; against the accused that the prosecution of the false witness
2. In favor of the defendant; must await the outcome of the criminal case. So it is only in
3. In a criminal case this case, where the prescriptive period of the crime does not
run until the criminal case had been decided with finality.
Art. 182. False testimony in civil cases. — Any person found guilty of false
testimony in a civil case shall suffer the penalty of prision correccional in its
minimum period and a fine not to exceed 6,000 pesos, if the amount in Now when they give you a problem in the Bar, invariably, this
controversy shall exceed 5,000 pesos, and the penalty of arresto mayor in its is the false testimony. And, in the past Bar Exams where this
maximum period to prision correccional in its minimum period and a fine not was the problem, always the issue of prescription of the
to exceed 1,000 pesos, if the amount in controversy shall not exceed said
crime.
amount or cannot be estimated.

Elements: False witness when prosecuted after several years, because it


1. Testimony given in a civil case; took several years before the criminal case was decided,
2. Testimony relates to the issues presented in said upon the prosecution of the false witness, he invokes
case; prescription. And the examinees were asked to rule on
3. Testimony is false; whether the crime has prescribed or not.
4. Offender knows that testimony is false;
5. Testimony is malicious and given with an intent to The issue here is when will the prescription period commence
affect the issues presented in said case. to run. Not what is the duration of the prescriptive period. It
is when the prescriptive period will commence to run. And
The next important crime is false testimony. The false that will only commence to run when the criminal case where
testimony you would give attention to, is false testimony the false testimony was given against the accused had
against an accused in a criminal case. This is found in Art. 180. already been decided with finality. So it is already known,
what is the outcome of that criminal case.
Note, under the article the penalty upon the false witness
follows the penalty imposed upon the accused against whom PERJURY
the false testimony is given
You have the crime commonly known as perjury. This is
This Article applies when the false testimony is against the punished under Art. 183.
accused.
Art. 183. False testimony in other cases and perjury in solemn affirmation. —
The penalty of arresto mayor in its maximum period to prision correccional in
If the false testimony was in favor of the accused, this Article its minimum period shall be imposed upon any person, who knowingly
is not the one to govern. makes untruthful statements and not being included in the provisions of the
next preceding articles, shall testify under oath, or make an affidavit, upon

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any material matter before a competent person authorized to administer an required to write there, where he was on the date
oath in cases in which the law so requires.
given, and the time, specify there.
Any person who, in case of a solemn affirmation made in lieu of an oath,
shall commit any of the falsehoods mentioned in this and the three Now this suspect stated that on that date and time
preceding articles of this section, shall suffer the respective penalties he was at home, because it was the birthday of his
provided therein.
wife, they were taking dinner together. They were
feasting on the lechon since it was the birthday of
Acts punished: his wife. And they were, therefore, there together.
1. By falsely testifying under oath;
2. By making a false affidavit. Actually, on that date and time. he was at home.
They were really eating together with his family, but
Elements of perjury: they were not eating lechon but dried fish. So the
1. Offender makes a statement under oath or executes birthday of the wife is being celebrated, as usual,
an affidavit upon a material matter; with dried fish, at there, variance for what they are
2. The statement or affidavit is made before a eating.
competent officer authorized to receive and
administer oaths; So in that respect there is a falsity. But that is only a
3. Offender makes a willful and deliberate assertion of collateral falsity. The subject of inquiry is his
a falsehood in the statement or affidavit; whereabouts on that date and time.
4. The sworn statement or affidavit containing the
falsity is required by law, that is, it is made for a legal As long as, on that point, the statement is true, he
purpose. cannot be prosecuted for perjury, just because there
are some collateral falsities.
Perjury is a false testimony in a non-judicial proceeding or in a
narration of facts in an affidavit. SO that falsity notwithstanding will not discredit the
affidavit.
When the false testimony is given in a judicial proceeding the
crime is not perjury but false testimony.
• Four, the testimony for the affidavit containing the
false assertion must have been given or executed to
The requisites of perjury are:
fulfill a requirement of law or for a legal purpose.
• One, there must be a testimony given under oath in
a non-judicial proceedings, or a narration of the fact So not all testimonies or affidavits specially may bring about
in an affidavit. liability for perjury.
Do not write affidavit under oath. That would be The example I gave here to emphasize this requisite, a man
redundant. It is not an affidavit if it is not under had been courting a woman for sometime, and the man asked
oath. It is just like saying a sworn statement under the woman "how long shall I wait?" The woman answered, I
oath. like you, but I cannot convince myself that you are not yet
married." So this man told the woman, "Next weekend when I
• Two, the oath must be administered by an officer visit you, I will bring proof that I am still a bachelor."
competent to do so, because the oath, must be
valid. So the next weekend when this fellow visited the woman, he
was carrying an affidavit. In that affidavit, he stated there xxx
• Three, there must be a willful and deliberate then he alleged xxx. He seated there he grew up in a
assertion of a falsehood on a material matter. seminary; and, therefore he had no relationship with any
woman. In the last paragraph he stated there that the only
The material matter contemplated here is the woman he ever fell in love with is this lady whom he had been
subject of inquiry. courting. xxx

So falsity in collateral matters is not a basis for The Affidavit was sworn to before a notary public who was
perjury. the next-door neighbor of the woman. So this fellow showed
the affidavit to the woman. The woman recognized that the
So if, let us say, a suspect picked-up from his house, notary public was her next-door neighbor.
taken to the police headquarters. Upon arrival there,
he was given a blank sheet of paper. He was
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So she accepted the affidavit and was convinced that the If that witness was acquitted from perjury, crime of
affiant who was courting her was still a bachelor. subornation is not committed by the procurer.

Within two months, she gave herself to him. Later, she found Since under Art 17 of the RPC a person who directly
out that this fellow is heavily married. induces another or directly forces another to commit a
crime is also criminally liable as a principal in the crime
committed, the article on subornation of perjury was
Can she file a criminal case for perjury against this fellow? deemed unnecessary because the liability of the suborner
The affidavit was executed not for any public is that of an inducer.
purpose. The affidavit was executed purely to satisfy
this woman and gain her trust. So the reason why there is no more article on subornation
of perjury in the RPC is not because the crime has been
Bear in mind that perjury is a crime against public decriminalized but because the article thereabout is
interest (Title Four) not against any private interest. regarded as unnecessary already in the light of Art 17.

So if the affidavit will not serve that purpose, a crime Under the RPC therefore the suborner will be prosecuted
under this title is not committed. with the false witness for the crime of perjury, the crime
committed by the false witness, but the nature of the
Possibly, the crime committed there, if the woman is liability of the suborner is what is known as subornation of
perjury, one who inspires the perjury.
still below 18, is simply one of seduction. The false
affidavit is the mechanism for deceit that would What is the difference between the crime of subornation
bring about the crime of simple seduction. But not perjury and the offering false testimony under Art 184?
the crime of perjury, because the interest sub served In subornation of perjury the liability of the
by the narrations in the affidavit is not of public suborner arises only if the person induced by him
concern. actually perjured and having been prosecuted for
perjury was found guilty of perjury. And that is why
So you get this clear under that last requisite. Not all the suborner incurs liability as a co-principal by
affidavits are actionable as a basis for perjury. inducement.

SUBORNATION OF PERJURY OFFERING FALSE TESTIMONY IN EVIDENCE

You cannot find an article in the RPC about subornation of Elements:


perjury. 1. Offender offers in evidence a false witness or
testimony;
Under the old penal code there is an article specifically 2. He knows that the witness or the testimony was
prescribing a penalty for a crime of subornation of perjury. false;
That article was not reproduce in the RPC. Does it mean 3. The offer is made in any judicial or official
that subornation of perjury under the old penal code is no
proceeding.
longer punishable under the RPC?
No, subornation of perjury is still a crime even
under the RPC. the provision prescribing a penalty Now under Art. 184, you have there the crime of false
for this crime has been eliminated from the RPC testimony.
because it was regarded as a surplusage,
unnecessary. You read the provision, and this includes offering a false
witness.
The essence of subornation of perjury is that the offender
procures a false witness to testify in a civil or criminal case In the Bar exam, during the mid-70's, the examinees were
and the false witness so procured actually testified, asked: How subordination of perjury differs from the crime of
perjured and prosecuted for perjury was found guilty. offering false testimony under Art.184?
The procurer of the false witness, who acted like a principal The distinction is manifest.
by Inducement, incurs the crime of subornation of perjury.

Note that the procurer of the false witness will only this In subornation of perjury, the false witness must actually
crime if the false witness actually perjured, was prosecuted testify, commit perjury, must be prosecuted for perjury, and
for perjury, and was convicted for perjury. must be convicted for perjury, (for the suborner-offerer to be
criminally liable for subordination of perjury.)

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application to take the bar. He is withdrawing already his


In this crime of false testimony, however, the mere offer of a application.
false witness would render the offerer criminally liable even
though the false witness would not actually perjure, (note: Even if he withdraw his application, it will not erase the
the offerer must knowingly offer to be criminally liable) prejudice done to public interest. This has already been
ruled by the SC.
So this article is better than that of subornation of perjury The supposed withdrawal is only a matter which is of form,
but the application will still form part of the public records.
Illustration: Only it is discontinued. The application containing the falsity
If in a case a false witness was procured by one who is will still form part of the archives. And that is why the SC
related to the accused. He promised the accused that he said that the withdrawal will only mean the discontinuance
will work it that he will be acquitted because he has a good of the supposed application. But the application containing
witness who is very good in telling falsehood. The offer of the perjured statement remains part of the public records.
oral testimony, upon the witness being called to the witness So there will still be criminal liability even though the
stand the offer will already be made, unlike in the other application has been discontinued.
offer of evidence.
On the other hand, not any statement that has been sworn
Before the first question will be asked of him, the lawyer to will bring about liability if the facts sworn to turn out to
will have to make an offer of his testimony, state what are be false.
the matters that will be brought out in the testimony of the
witness, and what is the purpose. So there and then it will If the falsity is not in a testimony but in a statement made
be known already whether really the witness is intended to under oath perjury will only arise if the statement forms
state a falsehood or to testify properly. If while he was part of a narration of fact.
stating the preliminaries to his testimony he could hardly
speak because he found out that the judge appears to be Illustration:
stern. So the judge shouted at him, “Speak louder!” The In a case where the offender issued a post-dated check to
more he became nervous. The more his voice could hardly pay an obligation to the offended party. The offended party
come out. The judge got mad and shouted, “I told you wrote on the dorsal side of the check a certification that on
speak louder the judge cannot hear you!” The more he due date the check will be fully funded, then signature of
trembled. So he confessed, “Your honor I do not really know the person who issued the check. Subscribed and sworn to
about this case, only I cannot say know to my compadre. He before me – it was acknowledged before a notary public.
requested me to testify.” The judge asked him, “Who is your
compadre? The witness pointed _____. The judge called The payee of the check would want a case of perjury
him what do you know about the testimony of this fellow? because the penalty is higher than that under the Bouncing
So it was shown that he was the one who induced the Check Law. Upon depositing the check with the drawee
fellow. _____ that fellow can be liable under Art 184, bank, the check was dishonored because of lack of
offering a false witness. This is different from subornation sufficient funds. The payee filed a case of perjury.
of perjury.
Although the trial court found the person who issued the
Withdrawal of the affidavit check guilty, the SC said no perjury is committed because
The common thinking is that if the perjury was committed there is no narration of fact. Not any statement of fact
in an application made under oath in an affidavit the which does not constitute a narration of fact may be a basis
withdrawal from the records of the application or the for perjury because the falsity in the narration, whether it is
affidavit will already negate the crime and the criminal material or not, cannot be determined if it is not a narration
liability of the one who filed the same with the public office. of fact.
That is already resolved by the SC, it does not erase the
criminal liability. If a person simply states there “This is to attest that I am
bachelor,” and he made this under oath. It cannot be
Illustration: perjury if found out to be false because there is no
If an applicant to take the bar exams, filed an application narration there.
where there is a question if had been previously charged,
whether in a civil, criminal, or administrative case. He
answered there never. Actually he had been charged by
women for having committed acts violating promise to
marry. When several women filed a complaint against this
fellow that he should not be allowed to take the bar exams.
He filed a motion stating that he is discontinuing his

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USURPATION OF AUTHORITY OFFICIAL FUNCTIONS RA 10


RA 10 punishes identically the usurpation of authority and
Art. 177. Usurpation of authority or official functions. — Any person who usurpation of official functions, in substance identical to Art
shall knowingly and falsely represent himself to be an officer, agent or 177.
representative of any department or agency of the Philippine Government or
of any foreign government, or who, under pretense of official position, shall But under RA 10, with or without false pretence of
perform any act pertaining to any person in authority or public officer of the
Philippine Government or any foreign government, or any agency thereof,
authority, the person accused of usurpation would incur
without being lawfully entitled to do so, shall suffer the penalty of prision criminal liability.
correccional in its minimum and medium periods.
There are commentators who advance the view that RA 10
Acts punished: already superseded Art 177 of the Code. It is not correct.
1. Usurpation of authority;
The crime covered by Art 177 is still a felony under the
Code, and criminal liability arises as from this as a felony
Elements:
only if the act is attended by dolo or by culpa.
a. Offender knowingly and falsely represents
himself; Backdrop of RA 10
b. As an officer, agent or representative RA 10 was enacted way back in 1946. At that time the
of any department or agency of the subversives known the HUKBLAHAB under the command of
Philippine government or of any foreign Supremo Luis Taruc was powerful that almost all the
government. municipalities in Central Luzon was overrun. That is the
reason why Mr. Ramon Magsaysay was appointed as the
2. Usurpation of official functions. Secretary of national defense because he is close to the
peasants. To ward off the control of the communist over the
Elements: different provinces, municipalities and barrios in Central
a. Offender performs any act; Luzon. Mr. Magsaysay organize the so-called Batallion
b. Pertaining to any person in authority or Combat Team (BCT), to help increase mobility because
there were ambushes everywhere and the military is
public officer of the Philippine government
demoralized. When the BCT was able to repel the rebels,
or any foreign government, or any agency
they were eventually captured one-by-one and they were
thereof; prosecuted for this crime – usurpation of authority,
c. Under pretense of official position; usurpation of public function, because naturally when they
d. Without being lawfully entitled to do so. overrun a certain municipality or province they took over
the public officers administering the government, that is
The important aspect of this crime is in the light of RA 10 their bounty. They succeeded. So they were prosecuted for
violation of Art 177. Under the article the liability arises only
RA 10 also punishes, usurpation of official authority exactly if they acted under false pretense. But they did not do so.
the same as Art.177, except that under RA 10, the offender They assumed because they succeed in their insurrection.
usurping the official authority or function is criminally liable, So they were all acquitted. To plug the loop-hole, the law-
whether he acted with or without false pretense. makers enacted immediately RA 10. but that does not
change the situation because the preamble of the law
referred to the backdrop under which the legislation was
Under Art. 177, the criminal liability will only arise in the
enacted. Hence it shall only apply when such situation
exercise of official functions if the offender usurping the same
exist, but not in social life.
acted under false pretense of authority.
Right now you have so many volunteer fire brigades. They
The commentaries of some authors advanced the view that perform the role of the firemen better than the firemen
RA 10 has in effect amended Art. 177 that in usurpation of themselves. If you prosecute them under RA 10, this is
official authority now the act brings about criminal liability, nonsense. They are not acting out of criminal intent, they
although the accused did not act under false pretense of were acting out of civic-spirit. Otherwise, people who collect
authority. That does not appear to be accurate. garbage in the subdivision will be prosecuted for usurpation
of public function, because the regular garbage collectors
Usurpation of authority under Art. 177 is still a felony. So this do not perform garbage collection. That is only an exercise
requires dolo or, at least, culpa. And the dolo here is the false of civic spirit.
pretense that the offender has the official authority to
When there is traffic jam, a jobless fellow started unwinding
perform the official act.
the traffic. They perform better than the MMDA traffic
enforcers. They have a can where the motorist appreciative
of the efforts of this istambay threw coins there. You cannot
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prosecute this fellow for usurpation of function because he TITLE FIVE - CRIMES RELATIVE TO OPIUM AND OTHER
performed the function of a traffic enforcer. PROHIBITED DRUGS

The distinction between what is a felony and what is a civic COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 (RA
spirit only must be maintained. There is nothing in law 9165)
which punishes one who out of civic spirit performs
functions which public officer should perform. Otherwise,
Most important provisions: Sec 21-26 then Sec 70 on the
people sweeping the roads in front of their houses which is
Probation, the first time offender who is a minor is entitled
the work of street sweepers will be prosecuted for
to; the for penalty illegal use the differently from the illegal
usurpation of function. Its something which is out of sanity.
possession of a drug (Sec 11 and Sec 15)
Alteration of Trademarks In a nutshell the liability under the law depends on whether
Art. 188. Substituting and altering trademarks, tradenames, or the apprehending officers have properly observed the
servicemarks requirement to preserve the integrity and authenticity of the
dangerous drugs confiscated or seized from the offenders.
Illustration: The chain in the custody of the drugs form the time it was
If a person has an empty bottle of priceless a wine, filled it seized or confiscated from the offender up to the time this
up with a local one to express that it is a priceless one that drugs are presented as evidence in court must be fully
he has. accounted for. This is what is referred to as the rule chain
of custody. Every chain in the flow of the custody must be
If he displayed it for sale to the public at large the crime is disclosed in court by a public officer authorized to be
under Title 4, Substituting and altering trademarks, involved in the movement of the drugs. The word, “chain of
tradenames, or servicemarks. custody” is even defined in the implementing rules of this
law. The liability came from this.
But if that offender went to a friend to impress his friend
that he is short of money and that his priceless collection The moment the supposed chain of custody is violated
will be disposed of by him at a price cheaper than what it doubt arises as to whether the drugs confiscated or seized
should really cost. His friend, trusting in his honesty, bought from the offender is the same drugs that is before the court
the bottle of wine not knowing that the contents had been on which the court will impose penalty upon the accused.
substituted with one not really genuine. The crime is not The moment there is doubt in the flow of custody of drugs,
against public interest anymore, because the fraud is made there is chain there that is not explained, there is an officer
upon a particular person, not the public at large. The crime that received the drugs and passed the drugs on and he
is swindling or estafa under Title 10 as a Crime Against was not presented in court, the chain of custody fails, the
Property. accused will be acquitted.
The SC said there is doubt as to whether the penalty
It is not necessary that the deceit is be consummated. imposed by the court is deserved by him or not because
under the Dangerous Act the penalty is based on the
In the said illustration, it is enough that the offender quantity and the quality of the dangerous drugs involved.
displayed the bottle of wine with the substituted content for So the moment the quantity of the dangerous drugs is
public sale. Even if no body has yet acquired it the crime of lessened, because somebody removed part of the quantity
Substituting and altering trademarks, tradenames, or penalty goes down.
servicemarks is already committed.
On the other hand if the law enforcers demanded some
If said person displayed such bottle in his house among his consideration, the offender could not afford to give a
supposed collections to impress his visitors, no crime is consideration so they other added quantity, penalty goes up
committed because he did not offer it for sale to the public. to the penalty of life imprisonment. When that possibility
exists SC is opt to throw out the case. The high court would
rather acquit an innocent person, regardless how many
they no matter how many they are than to convict one
innocent offender. This is a saying in criminal procedure -
“Better acquit a hundred of guilty person than the convict
one innocent accused.”

In lieu of Title 5 Book 2 of the Code we have to traverse the


special law of dangerous drugs.

Originally it was the RA 6425 the Dangerous Drugs law of


1972, but this was amened by the Heinous Crimes Law.
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The amendment was _____ so much so that the lawmakers remote provinces or municipalities. And the worst part of it
were alarmed and they enacted a more strict dangerous the offenders are aliens coming here to make the
drugs act in 2002. Now this is the prevailing legislation – Philippines a laboratory for supplying dangerous drugs to
Comprehensive Dangerous Drugs Act of 2002, RA 9165. the world. This alarmed our citizenry, our mechanism in the
administration of justice but also attracted the attention of
The act which was punished as criminal under Dangerous the lawmakers to make a drastic amendment of the law.
Drugs Law of 1972 are still punishable under the new law. This came about RA 9185, Comprehensive Dangerous
Drugs Act of 2002.
What are those new acts which are not punishable under
the former law but which are made criminal under the new In this law the lawmakers have overacted. They laid
law as well as the changes made under the new law? provisions which are almost impossible to comply with and
that defeated implementation of the law.
The former Dangerous Drugs Law of 1972 was amended by
the Heinous Crimes Law. The amendment deleted the Sec 21
penalties prescribed for the violation thereunder and Study this very well because decisions of the SC resulted in
replaced them with penalties under the RPC. That change acquittal even of confirmed drug offenders because of
in the penalty prescribed for by the law was under the failure to comply with this provision by law enforcers.
influence of the drug lords. But those who do not
understand the amendment thought that the Heinous Physical inventory
Crimes Law amended this legislation to make the violations In substance, under the said Sec 21 upon arrest of the drug
more strict crime more strict. It is the other way around. The offender the dangerous drugs seized or confiscated from
only amendment or change brought about by the Heinous the offender should be immediately subject of physical
Crimes Law, which relaxed the crime, is the violation of the inventory. The impossibility of implementing this
Dangerous Drugs Act of 1972. It is only in this regard that requirement of physical inventory lies in the persons
the SC had ruled that the amendment should be given required to be present during the actual inventory. Those
retroactive effect. When a penal law is given retroactive person required under the provision are not really available
effect it is because it is beneficial to the offender than the immediately with the law enforcer upon arrest of the
law that was previously imposed. offender. They have to be called in their houses or wherever
they are at night just for them to be present during the
The violations became more intense. Drug dependents had physical inventory. And if they are not around there is a
been killing not only the individual offended parties but failure to comply with the provision of the law. For that
families. They massacre them. Because the penalties failure the SC has been acquitting offenders ruling that the
under the Code admits of the lowering the penalty by dangerous drugs confiscated are not admissible in
decree,_____ imposition of divisible penalty by periods. This evidence.
is not true in violations special law. The lowering of
penalties by degree, the imposition of penalties by period Representative from the DOJ
(minimum, medium, maximum periods) is true only to For one thing it is required under par 1 of Sec 21 there
crimes mala in se. That is because there is a scale in Art 71 must be a representative from the DOJ be present during
of the RPC which provides for the lowering of penalty by the raid.
degree and Art 76 of the RPC which prescribes the
imposition of the divisible penalty only by periods. So these So in the early stage of implementing this law, there were
were adopted and made applicable under Dangerous Drugs symposiums held in the central conference room of Camp
Act of 1972. Crame of how this provision of the new law will have to be
complied with (Dean Ortega had been invited to speak in
SC laid down this rule under in the case of People vs Martin several of this).
Simon, which is a far reaching ruling. Although the crime
committed is malum prohibitum, if a special law adopted Photographer
the nomenclature of penalties under the RPC this For one thing is often required that there be a
demonstrates the legislative intention to punish the photographer, who will be taking pictures during the actual
violation in the same manner that violations in the RPC are inventory. But, the law enforcers disclosed that commonly
penalized. This means mitigating circumstances, including they are found at night, when there are troubles in the
privilege mitigating, shall be appreciated. Penalties may be community, there are disturbance of peace and order in the
lowered by degree because the scale of Art 71 is also community. So they react to that trouble which do not imply
deemed adopted by the special law. The offenders are any involvement of dangerous drugs.
penalized on the basis of their participation – as principal,
accomplice or accessory. This does not apply in violations Upon the arrest of the troublemaker it is a standard
of special law. So all in all the crime has been depreciated operating procedure to make a body search for the purpose
and drug lords multiplied, proliferated. There are so many of determining whether the offender is armed with some
drug laboratories found in the Philippines, even in the dangerous weapons. In the course of that body search they
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came upon (commonly trouble makers are under the


influence of drugs) they came up with dangerous drugs Understand the legal meaning of the so called “chain of
which they are confiscate and seize. Now the new law custody”. This has been defined under the Implementing
comes in. Rules and Regulations adopted by the Philippine Drugs
Enforcement Agency. The public officers who have had a
Under the new law there must be physical inventory. In that hand in the handling of the drugs must be authorized
physical inventory there must be a photographer taking personnel only.
pictures. They are summoned for the trouble. They do not
have any camera to take pictures. So how could they The moment that there is an unauthorized public officer
comply with this provision? handling the drugs, receiving the drugs, storing the drugs
the accused must be acquitted because there is a
The lawmakers made the provision so strict that it amounts possibility that the drugs have been tampered with. When
to acquittal of many offenders, until the SC honored the that possibility is shown, the acquittal of the accused must
Implementing Rules and Regulations by the PDEA adopting follow as a matter of course.
the standard of custody of the drugs. As long as the custody
of the drugs from the time of confiscation or seizure would The changes under the new law
be properly accounted for up to the offer in evidence of the
dangerous drugs involved, so much so that the integrity and Firstly, penalties under the RPC have all been replaced with
authenticity of the dangerous drugs confiscated or seized penalties strictly applicable to crimes mala prohibita. So the
from the offender are shown to be not tampered with, on designation of the penalties under the code have all been
that score, the court may convict the offender. So the SC removed.
adopted this standard of chain of custody.
Under the law now the highest penalty is life imprisonment
Chain of Custody because the death penalty has been prohibited, but keep
Under the Implementing Rules and Regulations of the New track with the sentiments of the lawmakers to revive the
Dangerous Drugs Act of 2002, the movement of the drugs death penalty law. But, at present death penalty law
from the time of confiscation or seizure by the law remains to be prohibited.
enforcers must be explained and each authorized public
officer who participated in the handling of such drugs must So the highest penalty under the Dangerous Drugs Law is
be presented in court to testify. So it must be shown that life imprisonment, not reclusion perpetua. And relative to
there is no tampering as to the quantity and quality of the this you must bear in mind the difference between the two
dangerous drugs that was seized. penalties. They are not the same. Know the distinction.

The ultimate purpose is to punish the accused for the By way of an exception to this under Sec 28 of the
violations committed, that there is no possibility of Dangerous Drugs Act of 2002, where the offender
substitution of the drugs confiscated and the drugs offered convicted for violation of this law is a minor and the penalty
in court has never taken place. for the violation would be life imprisonment, instead of this
penalty, it shall be the penalty of reclusion perpetua that
The implication is that what may have been confiscated is shall be imposed on the minor. This is because if you
opium or cocaine, but what is presented in court is simply impose life imprisonment on the minor, literally you will
shabu or methamphetamine hydrochloride. The penalty is have to stay under imprisonment __ unless chief executive
much lesser than that of a prohibited drugs. Or, possibility will pardon him. If he is forgotten already he will die in vain.
that the quantity has been diminished. The penalty for the
violation of Dangerous Drugs Law (even under the former The law in a way became compassionate upon a minor. So
law) is based on the quantity and quality of the dangerous instead of life imprisonment, exceptionally reclusion
drugs confiscated from the offender. The penalty goes perpetua only, which has the duration of 40 years, unlike
higher as the quantity becomes higher. life imprisonment which has no duration at all.

So if the chain of custody in the movement of the drugs Another change, is the quantity of dangerous drugs and
from hand to hand on the time of confiscation to the time quality thereof where penalty of life imprisonment and
of submitting it to the forensic laboratory for examination death before the death penalty became prohibited have
down to the storing ____ for purposes of preparing the been prescribed by the new law. In otherwords, the quantity
Information, the weighing to determine the quantity, the has been considerably lowered when the penalty of life
report of the forensic chemist as to the dangerous drugs imprisonment and death is prescribed. From the usual 40 g
involved. If the authenticity and integrity thereof is shown to that penalty is now prescribed even when the quantity
be untampered with, then under the jurisprudence laid involved is only 10 g. so this practically renders the
down by the SC, a conviction is proper. But if not, on the violation not bailable, because those offenders of this law
ground of reasonable doubt ____ in a criminal case the who were able to post bail under the previous provision of
doubt must be resolved in favor of the acquittal accused. the dangerous drugs act were never rearrested and
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prosecuted. They fled. So it became imperative to prevent cuddling, which partakes the involvement of an accessory
them from posting bail. Quantity has no been reduced, the and assisting drugs offenders to evade arrest and
penalty already life imprisonment. At that penalty the prosecution.
violation is not bailable.
The offender is known as cuddler. The crime is known as
Third Change,
Change plea bargaining is not allowed under the new cuddling. The nature of violation is that of an accessory, but
law no matter what the quantity and quality of the drug they are not called accessory. There are no accessories
involved in the violation, nor of the penalty prescribed under the law which is malum prohibitum.
therefore.
Now also those who lend money to borrowers knowing the
Under the former Dangerous Drugs Act of the 1972, which borrower is engaged in drug related activities incur criminal
was amended, plea bargaining is not allowed only when the liability as financier.
violation involved is punishable by reclusion perpetua
and/or death. Otherwise, where the penalty is lower than So lending money knowing that the borrower is engaged in
even where the penalty is reclusion mayor, reclusion drug related activities is a crime and the new law imposes
temporal, prision mayor or prision correctional, the offender not only the imprisonment of the offender but also the
may enter into a plea bargaining. And the most common confiscation of all his assets which may appear to have
plea bargaining under the Rules on Criminal Procedure is been accumulated out of his lending activities to those
that of allowing the accused to plead guilty to a lesser involved in drug trafficking.
offense and at the discretion of the prosecutor in
connivance with the judge __ the accused is allowed to The new law also show compassion to minor who may be
offer a plea of guilty to a much lesser offense than what is duped on the use of dangerous drugs. But if the violation is
charged in the information. That is no longer allowed under simply use of dangerous drugs without possession thereof
the Comprehensive Dangerous Drugs Law eventhough the or any other violation as a user, the minor who is a first
violation carries only a penalty of 1 year, 2 years, 3 years or offender shall not be sentenced to the penalty prescribed
4 years. by the new, but instead will be put on probation for not less
than 6 months in a rehabilitation center. So no
Another change, offenders found guilty of drug pushing or imprisonment. No conviction. The law considers the user as
drug trafficking have been disqualified from applying for a victim of the dangerous drugs rather than as a violator of
probation. The disqualification is absolute from the the law.
character of the violation committed, regardless of the
penalty. But for as second violation or oftener the full force of the
law will be applied to him. Or if the minor is not only a user
Relative to this violation under Sec 24 of the new law, even but also a possessor of dangerous drugs, criminal liability
where the convicted offender was offender criminally liable for the illegal possession of the dangerous drugs shall be
for the crime committed he shall not get the benefit of imposed on him, not just rehabilitation.
probation if the violation for which he was convicted
involved drug pushing or drug trafficking. In other words, Another change in the new law, the creation of super body
the provision of RA 9344 otherwise known as the Juvenile known as the Philippine Drug Enforcement Agency (PDEA)
Justice and Welfare Act of 2006, which gives offenders who to undertake the enforcement, supervision and
are minors the benefit of probation preferentially from administration of government programs in combating the
imprisonment cannot prevail over the specific provision of drug menace in the Philippines. So not only the Dangerous
the Dangerous Drugs Act. RA 9344 is a general law Drugs Board shall oversee the enforcement of the new law,
governing offenders who are minors, but the provision of the super body made up of cabinet members or their
the Comprehensive Dangerous Drugs Law is specific, representatives will be the one to implement supervise and
particular in violations where the accused is found guilty of lay down rules and regulations regarding the effective
drug pushing and drug trafficking cannot apply or implementation of the law. The Dangerous Drugs Board will
probation. only be complementary as far as those function assigned to
it still remain under their authority.
Under the new law where a case involving violations of the
Comprehensive Dangerous Drugs Law is already filed in Dismissal based on negligent handling of the case
court, the court should within 24 hours from the filing of the It is noteworthy that under the new law, if a case involving
criminal case conduct and ocular inspection of the violation of the this law was dismissed and the accused
dangerous drugs involved in the violation and within 72 was acquitted and it would appear that such dismissal or
hours direct the destruction thereof by burning the same in acquittal was brought about by the negligent handling of
an official manner. the case by the prosecutor assigned thereto, the prosecutor
himself will incur criminal liability for his malfeasance or
Another change made under this new law, there are new misfeasance in the handling the criminal prosecution. The
acts punished as violation of this law such as crime of implication is that the prosecutor may have been bought by
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the accused or the drug lord behind the accused. So should


it appear that the prosecutor did not exercise earnest Violation on the basis of quantity and quality
efforts in the prosecution of the case involving dangerous, The violation of the Dangerous Drugs law is penalized on
he himself will incur criminal liability for the negligence. He the basis of the quantity AND quality of the drugs involved
will suffer even criminal penalties. in the violation. So if during a raid of a known den of drug
users there were offenders found in possession of opium,
Same is true to law enforcers who previously took part in in possession of shabu. The quality of these drugs are
the investigation of violations involving dangerous drugs, different although they are classified as dangerous drugs.
but who upon being subpoenaed to testify in court during Under the law different penalties are prescribed. They are
the prosecution of the offender would manage to evade the not to be prosecuted in one information.
subpoena and make himself unavailable. The new law
aside from requiring his superior why the subpeona was not Two Information are incurred – one for the opium, one for
honoured the law enforcer will suffer criminal liability and the shabu, although the violation is for illegal possession.
may even be dismissed from the service, but always
observing due process. The violations of this law are penalized not only on the
basis of the quantity involved in the violation but also in the
RA 9344 authorizes minors to use rugby, inhaling rugby. It quality of the dangerous drugs. The high grade cocaine or
exempts them from prosecution. That is the lowest form of opium carries a higher penalty than a mere crack, known in
experimenting on dangerous drugs. So even our lawmakers the underworld as shabu. This is a poor man’s dangerous
have become participants in the destruction of mankind. drugs so the penalty prescribed is lesser. It is not correct to
file one Information for the illegal possession, because
Possession what is illegally possessed is punished by law differently.
Under this law not only the possession of the dangerous You have to prosecute them separately and distinctly.
drugs that brings about liability, the possession of
implements, or any form of mechanism apparatus for Because the violations are punished on the basis of the
imbibing or administering dangerous drugs is also quantity involved in each violation, you have to prosecuted
punishable because some of this drugs cannot be used the offender for each violation and for the quantity of
without some apparatus being involved. dangerous drugs involved in each of these violations.

The mere possession of the apparatus brings about Illustration:


criminal liability separate from the possession of the drug If the offender is a confirmed user of dangerous drugs and
itself. he belong to an affluent family in rest house – 4 all in all.
When he was apprehended the law enforcers raided all
If a person is found with an apparatus for imbibing shabu these four vacation houses in the different beach resorts,
and he is also found with shabu and the raw materials for and they (shabu or methamphetamine hydrochloride) were
him to sell, two Information should be filed - one for illegal found there. Although there is one violation only (illegal
possession dangerous drugs, another for the illegal possession of the drugs) because there are four places,
possession of instruments, implements or apparatus for there will be four Information filed. For every Information
administering, imbibing or applying dangerous drugs. the quantity kept in that particular resort must be the one
disclosed in that particular Information.
An offender found possessing an opium pipe and also
possessing opium, because use of opium by smoking has It is not correct to lump up all the quantity and make it
already been sustained as incurring two violations – one for subject of one Information, because the higher the quantity
the illegal possession of the prohibited drugs and another the higher the penalty.
for the possession of the opium pipe. Each violation must be prosecuted on the basis of the
quantity involved in that violation. So four prosecutions will
But if the offender was caught while smoking opium, the have to be filed, although they are all for illegal possession
use of the opium pipe is absorbed by the illegal use of the of the dangerous drugs, and the quantity in each
prohibited drugs, only one Information should be filed – the possession will be the subject of each Information.
illegal use of the prohibited drugs.
To bring about the prosecution of the offender the rule on
SC reasoned out that since the accused uses the prohibited chain of custody must be observed in every Information.
drugs by smoking (an opium cannot be smoked in any
ordinary pipe but requires specialized kind of pipe known Sec 26-28
as the opium pipe) the use by smoking could not be Although this is a special law, under the provisions of this
possible without the use of the opium pipe. law sections 26-28 a mere attempt to do acts enumerated
under that provisions shall be punished as if the act itself
But if he is not using, he is found possessing these – 2 was carried out. So you have here an attempted stage, not
violations. the attempted stage in Art 6 of the Code, not attempted
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stage in the particular provision of the law. This is limited This is common even in boxing contest. There is wagering.
only to those specific acts enumerated under that In fact this is often seen in the TV cameras. They bet on the
provision. fighters. Under the old concept this is not a crime, but
under the new concept this is a crime.
Moreover, the same provision punishes conspiracy. So
mere conspiracy, which is a preparatory act, is also However there are games which are prohibited and so even
punishable under this new law. without betting the conduct of such game is subject to
criminal prosecution unless authorized by appropriate
It is not therefore necessary that they actually carried out government authority.
the prohibited act. Merely conspiring to commit the
prohibited act under the provision will be treated as though Example:
the act had been carried out. Dog racing is not allowed not because it is gambling but
because it is regarded as cruelty to our dogs. The society
Planting of dangerous drugs to incriminate for the prevention of cruelty to animals objected to this.
The new law imposes the extreme penalty for crime of Unless authorized by the government as a form of
planting dangerous drugs to incriminate innocent persons entertainment it is contrary to the law creating the society.
as having violated this law.
There are also games which are prohibited because of the
Before, this crime is punished under the RPC as a crime of influence that they __ on the family. These are game of
incriminating innocent person under Art 362 or 363 on numbers like jueteng, masiao ____ . the players who get
Incriminatory Machinations. hooked on these games forget their conjugal duties to their
families, bringing about broken homes. That is why the
Under the Comprehensive Dangerous Drugs Law whether game of jueteng despite recommendations to make it a
the offender is a public officer or a law enforcer or a plain legitimate game under the control of PAGCOR can never
civilian, the act of planting evidence consisting of sanctioned under that name jueteng. This is considered
dangerous drugs to incriminate an innocent person is pernicious to the solidarity of the family. When the father
punishable as a violation of the dangerous drugs law itself gets hooked on these games he abandons the needs of his
and the penalty prescribed there is death penalty (only one family. When the mother gets hooked on this normally she
penalty) . Because it is now prohibited penalty will be becomes immoral. So these are games which brought
lowered to life imprisonment without the benefit of parole. about broken homes. That is why regardless of betting or
what this is prohibited.
TITLE SIX - CRIMES AGAINST PUBLIC MORALS
But ironically the Government has even established an
2 Chapters instrumentality to administer gambling in the country. So
1. Gambling the biggest gambler is the government.
2. Offenses against decency
GRAVE SCANDAL
Chapter on Gambling
The current concept of gambling no longer distinguishes Art. 200. Grave scandal. — The penalties of arresto mayor and public
games where the element chance or hazard predominate censure shall be imposed upon any person who shall offend against decency
over the skill of the players. or good customs by any highly scandalous conduct not expressly falling
within any other article of this Code.

The former concept of the gambling under the RPC refers


to any game of scheme where the element of chance or Elements:
hazard dominates the skill of the players. If the skill of the 1. Offender performs an act or acts;
player controls the game, it is not regarded as gambling. 2. Such act or acts be highly scandalous as offending
But this concept was taken over by PD 1602 and instead against decency or good customs;
any game or skill where there is betting or wagering is 3. The highly scandalous conduct is not expressly railing
considered as a gambling game as far as those who bet or within any other article of this Code; and
wager even though the skill of the player dominates the 4. The act or acts complained of be committed in a
game or skill. So even in sport contests those who bet may public place or within the public knowledge or view.
be prosecuted for gambling, not because the sport contest
is a game of gambling but because of betting. In Art. 200. you have here the crime of grave scandal. This is
different from Alarms and Scandals which is a crime against
It is the wagering or betting that brings about the gambling
public order. Here, the crime is against decency.
as far as the debtor is concerned - all those who
participated in betting.
So the scandal referred to here has something to do with
sexual activities. The crime of Grave Scandal involves the act
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which is highly offensive to decency. This may be committed In the problem give, the intercourse with the girl amounts to
in a public or in a private place. statutory rape. So this crime cannot be incurred, because this
is a crime of last resort.
When the act offensive to decency is committed in a public
place, even though nobody is, watching, the public character Although it was the girl who invited the intercourse, you
of the place supplies the public requisite of the act. know that any intercourse with a girl less than 12 yrs. old is
rape. It is the law which makes the condition than intercourse
The performance of the act offensive to decency is already a with a girl less than 12 yrs. old is rape. No argument about
crime if committed in a public place, even though there is no that. That is why this is known as statutory rape.
third party looking at it.
Now that being obvious from the problem given, the crime of
It is only when the act offensive to decency was performed in grave scandal cannot be incurred. Because this crime, as
a private place, that to be actionable, it must be open to provided in Art. 200, will only arise, if the act offensive to
public view. decency is not punishable under some other provision of the
code.
So you expect a third party watching the conduct offensive to
decency as a requisite of this crime only when the act or the The test of obscenity on this, has become already obsolete.
conduct which offends decency is being performed in a Whether the act is highly offensive to decency or not, is now
private place. a matter of whether it offends the senses of society.

Most important of this crime, this can only be committed if The test of obscenity, which before had been asked in the
the act does not constitute any other crime under the RPC. In bar, has been abandoned, because it is useless.
short, grave scandals only a crime of last resort.
Under this test a material is obscene, if it has the tendency to
So although the conduct or act involved is highly offensive to corrupt or deprave the mind of the person open to the
decency, if it would constitute another crime, it is that crime influences thereof.
and not grave scandal which is committed.
So you will notice, the test is relative, depending upon the
A problem on this point was given in the Bar Exam of 1994. viewer. If the viewer can no longer be influenced by the act
involved, the act as far as they are concerned cannot be
Under the facts given, a girl barely 12 yrs. Old promised her considered obscene.
fiancée that on the latter's coming birthday she would give
herself to him as a gift. But if the viewers can be depraved or corrupted by the act or
conduct, then, as far as they are concerned, the act is
Came that day, the girl and her fiancée who is a tricycle considered obscene.
driver, 15 years of age, went on board the tricycle to a
secluded public place. And there, they had intercourse on the Now they have classified this. There are exhibitions where,
grass. Unknown to them, there was a roving policeman who for adults only. That mean the adults will not be corrupted or
came upon them and arrested them. depraved anymore. So the exhibition is not regarded as
obscene.
Now the question: What crime did they commit?
So, if let us say, a woman with a sickly body walked co the
There were so many who immediately concluded that the beach to take a swim in abbreviated bikini. At that time, there
crime is grave scandal. They explained that since the sexual were several persons catching fresh air from the beach, but
intercourse was carried out in a public place, even though the all of them are on wheelchair because they are senior
same is not open to public view, criminal liability for grave citizens.
scandal is incurred.
So even if this woman would perform any lewd act there, that
Obviously, the examinees overlooked the provision of Art. cannot be considered obscene, because it has no more effect
200 which brings about this crime only if the act is not a crime on the viewers. Now if the viewers are, let us say, 80 yrs. old.
under other provisions of the RPC So they simply look, but it cannot corrupt or deprave their
minds anymore.

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But if the same act is done by the woman where there are No, because it is only the morality of his friend
boys gathered around, 15 -17yrs. old, to take the swim. then which is. What are intended to be protected are
that conduct of the woman is offensive to decency. That is public morals. The law is not concerned with the
why this crime is relative. And that is why it is a crime of last morality of any particular person. So irregardless of
resort. What may be offensive to some may not be offensive how erotic it may be, how pornographic it may
appear, if it does not affect public morals no
to others: depending on whose standard of decency is being
criminal liability will arise.
applied.
In a case where a lady coming home from work, everytime
Art. 201. Immoral doctrines, obscene publications and exhibitions and
indecent shows. — The penalty of prision mayor or a fine ranging from six
she would already changer her clothes from office she does
thousand to twelve thousand pesos, or both such imprisonment and fine, it in a room with lights on, but only the curtain separates
shall be imposed upon: her from the viewer who were already lined up at the
(1) Those who shall publicly expound or proclaim doctrines openly sidewalk, because by that time she knows that she will be
contrary to public morals; removing here clothes piece by piece and they were there
(2) (a) the authors of obscene literature, published with their watching the silhouette on the curtain. The lady was
knowledge in any form; the editors publishing such literature; and
questioned on this because obviously she was aware that
the owners/operators of the establishment selling the same;
these people are lined up there by that time, after that they
(b) Those who, in theaters, fairs, cinematographs or any other disappear because they are excited by the silhouette where
place, exhibit, indecent or immoral plays, scenes, acts or shows, lady undresses piece by piece.
whether live or in film, which are prescribed by virtue hereof,
shall include those which (1) glorify criminals or condone crimes; That was held to be a violation of the law on public morals.
(2) serve no other purpose but to satisfy the market for violence,
lust or pornography; (3) offend any race or religion; (4) tend to
abet traffic in and use of prohibited drugs; and (5) are contrary to When any of the acts performed is offensive to decency in a
law, public order, morals, and good customs, established policies, private place, criminal liability arises if there are viewers
lawful orders, decrees and edicts; from the public who will be witnessing the public exhibition.

(3) Those who shall sell, give away or exhibit films, prints, engravings, On the other hand offensive to decency is not open to
sculpture or literature which are offensive to morals. public view, if the same was performed in a public place,
the fact that it was committed in a public place brings
about criminal liability.
Art 201, Art 202 have become common nowadays. These
will not pose any problem to you anymore.
So being open to public view is a requirement in incurring
criminal liability here only if the offender is performing in a
Understand, however, that the provisions of the code under
private place.
this chapter is intended to protect the morals of those who
are ____ to the influence of these exhibitions. So these do
But if the offender is doing the offensive act in a public
not apply to the morality of a particular person. These refer place, whether it is open to public view or not is immaterial
to the morality of the public.
because the fact is the act is being done in a public place.
The problem is how to prove that the act was committed.
Illustrations: If a man could not sleep at night without
viewing dancer of erotic dances. He used to spend his
evenings in the bars and clubs, until he became so old that VAGRANCY & PROSTITUTION
he cannot walk anymore. He just stayed in the house. But
Art. 202. Vagrants and prostitutes; penalty. — The following are vagrants:
every evening before he goes to bed he recruits a dancer to
1. Any person having no apparent means of subsistence, who has
dance for him until he falls asleep. the physical ability to work and who neglects to apply himself or
herself to some lawful calling;
The dancer exhibiting it to him only does not engage in 2. Any person found loitering about public or semi-public buildings
public exhibition. It is only between the dancer and this or places or trampling or wandering about the country or the
fellow. No violation. streets without visible means of support;
3. Any idle or dissolute person who ledges in houses of ill fame;
ruffians or pimps and those who habitually associate with
The moment that there is an outsider, a third person who prostitutes;
view this, that it becomes public because the influence will 4. Any person who, not being included in the provisions of other
affect a third party. This is what the law seeks to protect. articles of this Code, shall be found loitering in any inhabited or
uninhabited place belonging to another without any lawful or
A person who knows that his friend is celebrating his justifiable purpose;
birthday is a lover of nude photographs so he gifted him 5. Prostitutes.
with thousand photos of nude women as a birthday gift. Is For the purposes of this article, women who, for money or profit, habitually
he committing a crime? indulge in sexual intercourse or lascivious conduct, are deemed to be
prostitutes.
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prohibition against entering, and the offender is found inside


Any person found guilty of any of the offenses covered by this articles shall
that estate. This is different from trespass to dwelling, in the
be punished by arresto menor or a fine not exceeding 200 pesos, and in case
of recidivism, by arresto mayor in its medium period to prision correccional sense that, the trespass is committed not inside a place of
in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in habitation but only an estate.
the discretion of the court.
Thirdly, the crime will be theft under par.3 of Art. 308, if the
Offenders below 18 are exempt from prosecution for these estate was fenced and the offender was found inside that
offenses. estate without the consent of the owner or overseer thereof,
purposely for him to hunt, to fish, or gather any farm product
Vagrants within the estate.
1. Any person having no apparent means of
subsistence, who has the physical ability to work and Vagrancy
who neglects to apply himself or herself to some As to the crime of vagrancy, you have in par. 4 of the article,
lawful calling; the act of wandering in an estate belonging to another
2. Any person found loitering about public or semi- without any reasonable cause and without the consent of
public buildings or places or trampling or wandering the owner of the estate.
about the country or the streets without visible
means of support; The crime is vagrancy provided that the act does not
3. Any idle or dissolute person who ledges in houses of constitute some other crime under the RPC.
ill fame;
What other crimes will may act of wandering in an estate
4. Ruffians or pimps and those who habitually associate belonging to another will bring about?
with prostitutes; It may only amount to vagrancy, a light felony, if
5. Any person who, not being included in the provisions does not amount to some other crime under the
of other articles of this Code, shall be found loitering Code.
in any inhabited or uninhabited place belonging to
another without any lawful or justifiable purpose; The other crimes under the Code are found in: Art 281 as
Trespass to Property
Vagrancy
As to the crime of vagrancy, you have in par. 4 of the article, Art 308 as a crime of Theft
the act of wandering in an estate belonging to another
without any reasonable cause and without the consent of So the crime is vagrancy only if it does not amount to a
the owner of the estate. trespass to property nor to a crime of theft.

Prostitutes are women, who for money or profit habitually The premises on which the crime is determined are these:
indulge in sexual intercourse or lascivious conduct. First, the crime is vagrancy if the estate where the
offender has been loitering or wandering without
Under this title, you have the crime of vagrancy. More legal cause is not fenced but belonging to another
and without the latter’s consent
important of this crime is where a vagrant is found loitering in
an estate belonging to another without any lawful purpose Second, the crime is trespass to property under Art
and without the consent of the owner or overseer of that 281 when the estate in which the offender has
estate. The same may amount to trespass to property under been wandering about or loitering was fenced and
Art. 281. Also the same act may amount to the crime of theft there is a manifest prohibition against entering and
under the last paragraph of Art. 308. the offender did enter without the consent of the
owner thereof.
So that act of loitering in an estate belonging to another may
either constitute vagrancy or trespass to property or theft. Third, the crime would amount to theft under the
last enumeration in Art 308 if the offender entered
You must know the difference between these. the estate which is fenced without the consent of
the owner thereof and he did so to hunt or to fish
The act of loitering in an estate belonging to another without within such estate or to gather farm products
inside the same.
any lawful purpose would bring about the crime of vagrancy
only if the estate is not fenced. These are the possible crime that may result from the
offenders entering in a fenced estate. So he cannot just
The crime will be trespass to property under Art. 281 when claim vagrancy if he did enter in order to hunt within the
the estate is fenced and there is a clear and manifest estate or to fish within the body of water within the estate
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or to gather any farm product within the estate as long as it


will be done without the consent of the owner of the estate. Firstly, the term public officer is defined in Art 203. And you
Whatever is found in the estate owned another belongs to should take note of this by now, that all public servants from
the owner, because that is an accessory to the principal the President down to the garbage collector if employed and
which is the estate. paid by the government comes within the term public officer.

Prostitution and vagrancy are both punished by the same So when you use this term do not add any further the phrase
article, but prostitution can only be committed by a woman. "employees", "or employees", because that would be a mere
surplusage. It is enough that you write the term public officer.
The term prostitution is applicable to a woman who for profit And that would save you time.
or money habitually engage in sexual or lascivious conduct. A
man if he engages in the same conduct — sex for money — is BRIBERY
not a prostitute, but a vagrant.
First, is the crime of bribery. This is the crime of the receiver
In law the mere indulging in lascivious conduct habitually not the giver.
because of money or gain would amount to prostitution,
even if there is no sexual intercourse. So bribery is committed by the public officer who will receive
money, gift or present for the performance of a public duty or
Virginity is not a defense. Habituality is the controlling factor, refraining from performing that public duty.
it has to be more than one time.
Under this Title, bribery may be direct or indirect.
There cannot be prostitution by conspiracy. One who
conspires with a woman in the prostitution business like Art. 210. Direct bribery. — Any public officer who shall agree to perform an
pimps, taxi drivers, solicitor of clients are guilty of the crime act constituting a crime, in connection with the performance of this official
under Art. 341 for white slavery duties, in consideration of any offer, promise, gift or present received by
such officer, personally or through the mediation of another, shall suffer the
penalty of prision mayor in its medium and maximum periods and a fine [of
TITLE SEVEN - CRIME COMMITTED BY PUBLIC OFFICERS. not less than the value of the gift and] not less than three times the value of
the gift in addition to the penalty corresponding to the crime agreed upon, if
Although the Title gives the impression that the crimes here the same shall have been committed.
are committed by public officers; yet, you get it clear that If the gift was accepted by the officer in consideration of the execution of an
only the principal offender need be a public officer. act which does not constitute a crime, and the officer executed said act, he
shall suffer the same penalty provided in the preceding paragraph; and if said
A civilian who conspires or cooperates with the public officer act shall not have been accomplished, the officer shall suffer the penalties of
prision correccional, in its medium period and a fine of not less than twice
committing any of the crimes under this title will also incur the value of such gift.
such crime.
If the object for which the gift was received or promised was to make the
There are some crimes here where the offender is purely a public officer refrain from doing something which it was his official duty to
do, he shall suffer the penalties of prision correccional in its maximum period
civilian without the participation of a public officer. For and a fine [of not less than the value of the gift and] not less than three times
instance, in the crime of malversation, private citizens can the value of such gift.
incur this crime alone.
In addition to the penalties provided in the preceding paragraphs, the culprit
shall suffer the penalty of special temporary disqualification.
PUBLIC OFFICERS
The provisions contained in the preceding paragraphs shall be made
Requisites to be a public officer under Article 203: applicable to assessors, arbitrators, appraisal and claim commissioners,
1. Taking part in the performance of public functions in experts or any other persons performing public duties.
the government; or
2. Performing in said government or in any of its Acts punished:
branches public duties as an employee, agent or 1. Agreeing to perform, or performing, in consideration
subordinate official, or any rank or class: of any offer, promise, gift or present — an act
3. His authority to take part in the performance of constituting a crime, in connection with the
public functions or to perform public duties must be performance of his official duties;
- 2. Accepting a gift in consideration of the execution of
a. By direct provision of the law; an act which does not constitute a crime, in
b. By popular election; or connection with the performance of his official duty;
c. By appointment by competent authority.
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3. Agreeing to refrain, or by refraining, from doing one crime because the code itself the felonious act
something, which it is his official duty to do, in different designations.
consideration of gift or promise.
Relative to indirect bribery, you also should read PD 46.
Elements:
The bribery is DIRECT when the public officer who receives
1. Offender is a public officer within the scope of
the bribe money, gift or present is to perform or refrain from
Article 203 performing an official duty involving the exercise of his
2. Offender accepts an offer or a promise receives a gift public office because of the consideration in money, gift or
or present by himself or another. present that he is to receive. The nature of the transaction
3. Such offer or promise be accepted, or gift or present is reciprocal.
received by the public officer.
a. With a view to committing some crime; or On the other hand, the bribery is indirect when the public
b. In consideration of the execution of an act officer merely receives money, gift or present by reason of
which does not constitute a crime, but the his being a public officer holding the position that he
act must be unjust; or performs without his doing or refraining from doing any act
c. To refrain from doing something which it is involving the duties of his office. The essence of the
his official duty to do. violation is not reciprocal but unilateral.
4. the act which offender agrees to perform or which
Because of this distinction, indirect bribery is always
he executes be connected with the performance of
consummated. There is no attempted nor frustrated
his official duties. indirect bribery. On the other hand, direct bribery being
reciprocal may be committed in the attempted and
Art. 211. Indirect bribery. — The penalties of prision correccional in its
medium and maximum periods, and public censure shall be imposed upon
consummated stages. There is no frustrated stage in
any public officer who shall accept gifts offered to him by reason of his office. bribery whether direct or indirect because the crime cannot
be completed without being consummated.
Elements:
It is a requirement in the frustrated stage of a felony that
1. Offender is a public officer;
the offender must have perform all the acts of execution
2. He accepts gifts;
and in bribery, the moment the offender have performed all
3. The gifts are offered to him by reason of his office. acts of execution, the bribery is consummated.
The common crime that is committed under this title is Direct bribery will be attempted only if the giver of the bribe
bribery which may be direct or indirect. money, gift or present was not minded to corrupt the public
officer seeking the bribery but only pretended to agree
Although you have the crime of qualified bribery under thereto in order to entrap or bring about the arrest of the
article 211-A, qualified bribery is a kind of direct bribery. If public officer committing the bribery.
the article on qualified bribery is not applicable, the article
on direct bribery will apply. This not possible in an indirect bribery because in indirect
bribery there is a voluntary delivery of gifts or present to the
About bribery, you should have in mind that this is a crime public officer involved. The public officer simply acts in a
of the receiver not of the giver. passive way receiving or accepting the bribe money, gift or
present.
The common newspaper publications portrayed bribery as a
crime of the one corrupting public official. From the nature of the crime, in a direct bribery, there is a
consideration involved because the transaction is
Bear in mind, bribery is a crime of the public officer who reciprocal. The corruptor will give the money, gift or present
receives the bribe money. while public officer, on his part will perform an act involving
the duties of his office or he refrain from performing a duty
On the part of the giver of the bribe money, the crime is required by his office. So the transaction is beneficial to
corruption of public official. both. That is why it admits of the attempted stage.
So although there is a conspiracy between the giver of the It may happen that at the outset, the public officer received
bribe money and the receiver thereof, and you have a rule or accepts the bribe money, gift or present delivered to him
in conspiracy that the act of one is the act of all, yet without requiring him to perform any act or refrain from
because of the code gives different designation to the performing such act involving the duties of his office. In
crime committed by the giver of the bribe money and the which case, the crime is indirect bribery. But if such public
public officer who receives the bribe money, the conspiracy officer is impressed or influenced by the amount of the
between them will not bring about the commission only of money or the character of the gift or present delivered to
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him, and so he return the favor to the giver of the gift or So this means to say, the law would only tolerate gift giving to
present or money by doing an act involving the duties of his a public officer which would not be of material value, so like
office or refraining from doing an act involving the duties of simple greeting cards.
his office, what is initially indirect bribery becomes a direct
bribery. This is the situation you should guard against The giving of gifts of material value, even during Christmas,
because the crime is not indirect bribery as what appears,
during Birthdays, or wedding anniversaries is a violation of PD
but rather direct bribery because the public officer returns
the favor and therefore a consideration is brought about for 46 if the value of the gift given is material.
the money, gift or present ____ ___. (Conversion from
indirect to direct bribery) To illustrate: One of the problems given in a relatively recent
Bar Exam is to this effect.
But you must get clear, it is not indirect bribery if a public
officer simply receives a gift or present delivered to his or to On Christmas Day, an RTC judge received a basket full of
his home. SC ruled, the public officer must have done any assorted fruits easily worth P1O.OOO
act appropriating the gift or present delivered to him, that is
the acceptance that brings about the crime as indirect Q: Is there a crime committed by the Judge?
bribery.
Although it was Christmas, and it was really an occasion for
It may happen that the public officer is not really willing to giving gifts in the nature of fruits, but because the value of
accept the gift or present delivered to his office or home
the gift is already material or considerable being valued at P
but he cannot simply return the same because he does not
know who delivered the same or brought to his office or 10.000. if the giver of the gift has a reason to give such
home. In short, it is the acceptance the gift or present or material gift, then, the giving thereof even on this occasion
money given that will bring about indirect bribery since this violates PD 46.
crime is always consummated.
Under the Decree, both the giver of the gift and the public
SC said, if this would not be the interpretation of the law, officer shall be prosecuted for violation thereof.
very few public officer will remain in office because some
unscrupulous citizen can simply give a gift or present to the It is not even necessary that the public officer receiving the
office or home of the public officer. And because they gift has rendered some service to the giver of the gift in the
cannot return this because he does not know who made past, or there is an anticipated service to be given to the giver
the delivery, they would be committing this felony, so some of the gift. Even though there is no such reason, but the gift
unscrupulous citizen can simply removed a public officer was given because of no other reason except the person
by doing this.
receiving the gift is a public officer, then, PD 46 is violated.
The SC said, there must be proof of acceptance. The SC
made mention of acceptance like, calling his subordinates Exception:
to partake of the gift or the present given to him. So if the
gift or present is something that can be eaten and the If the giver of such basket fruits, however, is related to the
public officer to whom it was delivered called his judge, member of his family, or a close relative, then, it is not
subordinate to have him ____ with the gift, then that is his being a judge or a public officer that is the reason for the
acceptance and that will bring about indirect bribery. Or if giving of the gift. So PD 46 will not be violated.
the public officer kept the money, gift or present in the
drawer of his table or in the cabinet of his office, that is a Included in the violation of PD 46 by express provision
manifestation of acceptance, or if the public officer thereof is the throwing of parties for a public officer or his
involved called on his driver to bring the gift to his car and immediate relatives.
bring it home, that is a manifestation of acceptance of the
same.
So when the daughter of a public officer is to celebrate her
18th birthday, her debut, and a private citizen gave a gift — in
Indirect bribery vs. PD 46:
the problem given in the bar, a small refrigerator. Although
there is that occasion to give the gift if the giver has no
The only difference between indirect bribery and PD 46 is
reason to give that gift except the fact that the father or
that PD 46 punishes the gift giving even when there is an
mother of the celebrant is a public officer, then PD 46 is
occasion for the giving of the gift as long as the value of the
violated.
gift given is material.
This is a practice which has become accepted currently. But
though it is tolerated, it violates PD 46 which is still enforced.

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The nature of the violation by the public officer charged


So many problems have been given in the bar on this decree. with law enforcement is that of refraining from arresting or
Unless you are aware of this, you may take the situation as prosecuting an offender who had committed a crime. But to
already tolerated or current under the prevailing customs of constitute qualified bribery, the crime committed by the
the people in the Philippines. But that is a violation of PD 46. offender who was not arrested nor prosecuted should carry
a penalty of reclusion perpetua and/or death penalty.
It is a common practice that when the head of the office or So if the penalty was lower than reclusion perpetua or
his wife celebrates a birthday, anniversary. The subordinates death, crime of qualified bribery is not committed.
in the office organize sort of "asallo". They go to the house of
the superior – upon the invitation of the superior of course - Under the crime, the public officer refrains from arresting or
but in going there, they have to bring some gifts of prosecuting the person who had committed a crime,
extravagant value to impress the superior. Now that is a because of the money, gift or present, promise or offer
crime under PD 46. made to him for refraining from arresting or prosecuting
that offender. And under the provision of the code, if it was
A problem given in the Bar along this line was about an the public officer himself who asked for such corrupt
appointee to the Bureau of Customs at the NAIA. And his consideration the penalty for the qualified bribery is no less
close friends organized a party to honor him at the Manila than death penalty. Since the death penalty is prohibited, it
Hotel. will be reclusion perpetua without the benefit of parole.

The article on qualified bribery refers only to the crime


Q: Is there a violation committed? committed by the person who was not arrested or
prosecuted as reclusion perpetua and/or death. So if the
Readily, PD 46. Giving a party at that place is no joke. penalty for the crime was life imprisonment and because of
Because, definitely, it is considerable and material. the bribery, the public officer charged with the enforcement
of the law refrain from arresting or prosecuting the
When the public officer is prosecuted under PD 46, the giver offender, the crime is direct bribery not qualified bribery.
of the gift should not be prosecuted for corruption of public The law must be strictly construed, what is not there should
officials, because the decree also punishes the giver of the not be included there.
gift. So the giver must be prosecuted also under PD 46 jointly
with public officer accused thereof It will be a crime of direct bribery because the transaction in
a qualified bribery is reciprocal, the public officer refrains
If the public officer, however, is prosecuted under the RPC, from doing an official duty and he is refraining because he
receives money, gift, present, offer or promise. If the act
then the giver should be made answerable for the crime of
would have been qualified bribery but the same cannot be
corruption of public official
considered as qualified bribery because of the requisites of
this crime, the offender-public officer who refrained from
Art. 211-A. QUALIFIED BRIBERY arresting or prosecuting the person who committed a crime
will be prosecuted not only for direct bribery but also for the
You have a form of direct bribery known as qualified bribery. crime of dereliction of duty under art 208. The reason for
this is in Article 210, and in that article, u will find in the
Elements: last paragraph thereof, that in the direct bribery if the act
1. Offender is a public officer entrusted with law agreed upon between the corruptor and the public officer
enforcement; committing direct bribery constitutes a crime for violation of
2. He refrains from arresting or prosecuting an law and that crime was committed, then there will be an
offender who has committed a crime; additional penalty to be imposed meaning to say, you will
3. Offender has committed a crime punishable by not complexed the violations. So although the dereliction of
duty was brought about by the direct bribery, the wordings
reclusion perpetua and/or death;
of the provision of art 210 would not allow a complexing of
4. Offender refrains from arresting or prosecuting in
the 2 crimes because the same refers to a penalty or
consideration of any offer, promise, gift, or present. liability in addition to what is provided for direct bribery in
article 210. This is not true to qualified bribery, if the crime
Relative to the crime of qualified bribery, the peculiar is qualified bribery, then there will be no further prosecution
aspect of the crime is that only public officers charged with for dereliction of duty. We do not find in the article for
enforcement of the law, arresting or prosecuting those who qualified bribery the same provision we find in art 210 and
commit crimes may incur qualified bribery. So not any that is because the essence of qualified bribery is a
public officer can commit this crime. dereliction of duty. The public officer refrains from what the
duties of his office require him to perform.

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PD 749 – to be discussed later further prosecution for dereliction of duty, because the
essence of qualified bribery is precisely a dereliction of duty.
DERELICTION OF DUTY And you do not find a provision under Art. 211-A, on qualified
bribery, the same as the provision in the latter part of par. 1
Art. 208. Prosecution of offenses; negligence and tolerance. — The penalty of of Art. 210 on direct bribery.
prision correccional in its minimum period and suspension shall be imposed
upon any public officer, or officer of the law, who, in dereliction of the duties
of his office, shall maliciously refrain from instituting prosecution for the So if it is qualified bribery, only one prosecution. If it was
punishment of violators of the law, or shall tolerate the commission of direct bribery, two prosecutions. Aside from the prosecution
offenses. for direct bribery, another prosecution for dereliction of duty,
if the public officer receiving the bribe money is one charged
Acts Punished: with the prosecution of an offender, and he maliciously
1. Maliciously refraining from instituting prosecution refrain from doing so thereby tolerating the commission of
against violators of the law; crimes.
2. Maliciously tolerating the commission of offenses.
PD. 749 - GRANTING IMMUNITY FROM PROSECUTION TO GIVERS OF
Elements of dereliction of duty in the prosecution of BRIBES AND OTHER GIFTS AND TO THEIR ACCOMPLICES IN BRIBERY AND
offenses: OTHER GRAFT CASES AGAINST PUBLIC OFFICERS
1. Offender is public officer or officer of the law who
has a duty to cause the prosecution of, or to Relative to Bribery, you should also go over PD 749. The
prosecute, offenses; decree affords immunity to a bribe giver or an accomplice to
2. There is a dereliction of the duties of his office, that the corrupt transaction of a public officer if such bribe giver
is, knowing the commission of the crime, he does would voluntarily disclose informations concerning the
not cause the prosecution of the criminal, or corrupt transaction of the public officer and he will willingly
knowing that a crime is about to be committed, he testify in the prosecution of the public officer.
tolerates its commission
3. Offender acts with malice and deliberate intent to If therefore, the bribe giver or an accomplice to such bribery
favor the violator of the law. or other corrupt transactions of a public officer would be
willing to testify against the public officer when the latter is
Under Art. 208, you have there the crime commonly known prosecuted, and he provided the information that would
as Dereliction of duty, where a public officer maliciously supply the prosecution, then, the bribe giver may qualify for
refrain from prosecuting an offender who had committed a the immunity provided under PD 749.
violation of law, or otherwise, tolerate the commission of
crimes. Under this decree, you note. there are five (5) conditions
provided under the Rules on Criminal Procedure governing an
Dereliction of duty may be committed by a prosecution accused who is utilized as a state witness.
officer or any officer of the law.
Under this Art. it is not necessary that such public officer So the bribe giver under PD 749 will enjoy the immunity in
refrain from prosecuting the offender because of money, gift, the same manner that a state witness is given immunity
present, promise or offer. under the law.

The mere malicious refusal to prosecute one who has Because of these five conditions that are also found in PD
committed a crime or otherwise, tolerate the commission of 749. SC clarified, it is not the mere testifying of the bribe giver
offenses is already a dereliction of duty. against a public officer that will earn him immunity.

If that was done because of some monetary consideration, That bribe giver or accomplice must first be charged under
then there is direct bribery and dereliction of duty committed the same information as the public officer against whom he
by the public officer. And this is because in the latter part of voluntarily gave information, but before the presentation of
par.1 of Art. 210 on direct bribery, you have there a provision evidence for the prosecution, the bribe giver must be
that the penalty for direct bribery shall be in addition to the dropped from the information.
penalty for direct bribery shall be in addition to the penalty
for the crime agreed upon if it was committed. It is in that process of dropping the bribe giver from the
information that the five (5) conditions set forth in the decree
Now if the bribery is qualified, because the crime committed will have to be followed.
by the offender who was not arrested or prosecuted carries a
penalty of Reclusion Perpetua and/or Death, there will be no
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This is just like one of several accused who would be utilized which he testified against the public officer accused or the
as a state witness. Before he may be utilized as a state violation.
witness, the court will have to determine whether he would
qualify as such, and that is also true here. So if the public officer had, let us say, five corrupt
transactions, the bribe giver was a participant in those five
The conditions are almost identical as the conditions required transactions but he availed of PD 749 with respect to. one
for a state witness. transaction only. So there are still four remaining. To that 4
remaining, he is not automatically immune from prosecution.
So it is explained that what would give immunity to the bribe He will have to follow again the same routine as was followed
giver is not alone his disclosure and the testimony he would in the first transaction where he will earn immunity because
give but the protection against double jeopardy that he of the protection against double jeopardy.
would earn because he was dropped from the information
and utilized as a witness for the government. Also, the Decree provided that any prosecution against the
bribe giver by the public officer involved for the crime of false
So it is not the automatic testifying. It is because he was testimony or perjury is not covered by the immunity.
initially charged and he was dropped to be utilized as a
witness for the Government that he will enjoy protection So if the bribe giver in testifying against the public officer
against double jeopardy. So he cannot be charged any involved had committed false testimony or perjury, the
further. immunity under this decree will not cover prosecution for
such false testimony or perjury. The only limitation is that the
This, therefore, will also be subject to the Rules in Criminal public officer involved is not allowed to file a criminal case
Procedure that although an accused was dropped from the against such public officer is still pending. Public officer
information to be utilized as a witness for the state, if that accused of the violation may only proceed against the bribe
accused after having been dropped, testifies in a manner giver for a false testimony or a perjury committed if the case
different from what is expected of him, then he violated his against the public officer had already been decided with
arrangement with the Government. And so doing, he will not finality. Otherwise, his right to prosecute the bribe giver is
qualify for the protection against double jeopardy. He will suspended until the crime charged against that public officer
only be protected by the principle of double jeopardy if he had already been decided with finality.
would really testify as he had manifested that he would give
the testimony. RECAP:

That is why now, you know, that when an accused would be PRESIDENTIAL DECREE NO. 749
dropped to be utilized as a witness for the State, the new
Rules require that the State witness must be taken down, The decree grants immunity from prosecution to a private
placed under oath and filed with the court. So the court will person or public officer who shall voluntarily give information
be the one to assess whether really the testimony would and testify in a case of bribery or in a case involving a
suffice to bring about the conviction of the accused. Because violation of the Anti-graft and Corrupt Practices Act.
if the testimony would not, after all, bring about the
conviction of the accused, the court will deny the dropping of It provides immunity to the bribe-giver provided he does
that accused from the information and for him to enjoy two things;
immunity. 1. He voluntarily discloses the transaction he had with
the public officer constituting direct or indirect
This also will have to be followed for the immunity given bribery, or any other corrupt transaction;
under PD 749. 2. He must willingly testify against the public officer
involved in the case to be filed against the latter
You go over this because this has been subject of so many Bar
problems in the past. Before the bribe-giver may be dropped from the information,
he has to be charged first with the receiver. Before trial,
When this matter was asked in the Bar, the examiner at that prosecutor may move for dropping bribe-giver from
time was Justice Plana, the correlative question was asked "to information and be granted immunity. But first, five
what extent does the immunity apply?" conditions have to be met.
1. Information must refer to consummated bribery;
Under the Decree itself, the immunity will only apply to that 2. Information is necessary for the proper conviction of
particular transaction revealed by the bribe giver and on the public officer involved;

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3. That the information, or testimony to be given is not 2. Demanding, directly or indirectly the payment of
yet in the possession of the government or known to sums different from or larger than those authorized
the government; by law, in collection of taxes, licenses, fees, and
4. That the information can be corroborated in its other imposts;
material points; 3. Failing voluntarily to issue a receipt, as provided by
5. That the information has not been convicted law, for any sum of money collected by him officially,
previously for any crime involving moral turpitude, in the collection of taxes, licenses, fees, and other
imposts;
These conditions are analogous to the conditions under the 4. Collecting or receiving, directly, or indirectly, by way
State Witness Rule under Criminal Procedure. of payment or otherwise, things or objects of a
nature different from that provided by law, in the
The immunity granted the bribe-giver is limited only to the collection of taxes, licenses, fees and other imposts.
illegal transaction where the informant gave voluntarily the
testimony. If there were other transactions where the Another important crime under this Title Seven is the crime
informant also participated, he is not immune from of illegal exaction found in the second subdivision of Art. 213.
prosecution. The immunity in one transaction does not
extend to other transactions. Elements illegal exactions under paragraph 2
1. Offender is a public officer entrusted with the
The immunity attaches only if the information given turns out collection of taxes, licenses, fees and other imposes;
to be true and correct. If the same is false, the public officer 2. He is guilty of any or the following acts or omissions:
may even file criminal and civil actions against the informant a. Demanding, directly or indirectly, the
for perjury and the immunity under the decree will not payment of sums different from or larger
protect him. than those authorized by law; or
b. Failing voluntarily to issue a receipt, as
ILLEGAL EXACTION provided by law, for any sum of money
collected by him officially; or
Art. 213. Frauds against the public treasury and similar offenses. — The c. Collecting or receiving, directly or indirectly,
penalty of prision correccional in its medium period to prision mayor in its
by way of payment or otherwise, things or
minimum period, or a fine ranging from 200 to 10,000 pesos, or both, shall
be imposed upon any public officer who: objects of a nature different from that
1. In his official capacity, in dealing with any person with regard to provided by law.
furnishing supplies, the making of contracts, or the adjustment or
settlement of accounts relating to public property or funds, shall
In Art. 213, you have there the crime of fraud against public
enter into an agreement with any interested party or speculator
or make use of any other scheme, to defraud the Government; treasury. In the second subdivision thereof, you have the
2. Being entrusted with the collection of taxes, licenses, fees and crime of illegal exaction. This crime can only be committed by
other imposts, shall be guilty or any of the following acts or a public officer whose official duties are to collect taxes,
omissions:
licenses, and impose due to the Government. So not any
(a) Demanding, directly, or indirectly, the payment of
sums different from or larger than those authorized by public officer can commit this crime.
law.
(b) Failing voluntarily to issue a receipt, as provided by The crime arises from the irregular manner of making the
law, for any sum of money collected by him officially.
collection.
(c) Collecting or receiving, directly or indirectly, by way of
payment or otherwise things or objects of a nature
different from that provided by law. So whether the money collected was misappropriated,
malversed, squandered is not covered by the crime. Another
When the culprit is an officer or employee of the Bureau of Internal Revenue
prosecution will have to be initiated. The illegal exaction only
or the Bureau of Customs, the provisions of the Administrative Code shall be
applied. has something to do with how the collection officer followed
the law or the rules and regulations governing case
Acts punished: collections.
1. Entering into an agreement with any interested
party or speculator or making use of any other There are three ways of committing the crime. The most
scheme, to defraud the government, in dealing with common given in the Bar is the first one demanding an
any person with regard to furnishing supplies, the amount different from or larger than what is authorized by
making of contracts, or the adjustment or law.
settlement of accounts relating to public property or
funds;
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Note that the word used here is "demanding" not - collecting. collected an amount larger than what the law
So although the taxpayer upon whom the demand was made authorizes him to collect.
refused to pay the amount demanded, because he knew that
the same was over the amount required by law, as long as the For erasing the duplicate and triplicate copies of the official
demand by the collecting officer is persistent and receipt, he incurs the crime of falsification of a public
determined, criminal liability for illegal exaction will arise document. That official receipt is an official document. And all
because the law here uses the word demanding not official documents are necessarily public documents.
collecting.
Now when he pocketed the P100. he is committing already
It is immaterial that the amount demanded was used by the the crime of malversation not just estafa. Because that P1OO
collecting officer or not used by him. The crime is committed, was included in the official receipt of the Government which
as I said, on the irregular manner the collection is being done. the collecting officer issued to the taxpayer. That writing out
of the official receipt of the Government of the amount of
Now you realize this because the preparation of the yearly P500 is operative act that impressed the whole P500 with the
budget is considered on the basis of these collections. character of being already fund of the Government.

So if the collecting officers will do the collections irregularly. So when he extracted the P100 although this is not really
the amount will be fluctuating difficult to prepare a reliable payable as part of the taxes, because he covered this with the
budget. official receipt of the Government, the same acquire the
character of being part of the funds of the Government. So
So if, let us say, the amount payable to the Government is when he spend this after covering this up with that receipt,
P400. The collecting officer envied the taxpayer because the he is already misappropriating public funds.
taxpayer appeared to be more handsome than him. So
instead of requiring the taxpayer to pay only the amount due Now you understand why. When a taxpayer has an official
the Government, the collecting officer demanded P500. receipt of the Government for the amount he paid, and it
Taxpayer paid P500. The collecting officer is happy because turned out that he paid more than what is due to the
he put one over the taxpayer. Now although he is ugly he is Government, with that official receipt he apply for a refund
more intelligent than the taxpayer. So he is happy. or for tax credit. So ultimately it is the Government who will
suffer for the loss of the P100. That is why the crime with
The entire P500 collected by him was placed in the public respect to that because it was covered already by the official
vault or safe of the Government. So the Government made an receipt of the Government is one of malversation already.
excess of P100 out of that collection. The Government
benefited. Is there a crime of illegal exaction? These are not complexed. These are all separate and distinct.
The answer is yes. It is immaterial, as I have said, Art. 48 cannot apply because the acts committed were not
whether the Government benefited or was means to commit the illegal exaction.
disadvantaged by the manner the collection was
done. Now you note also, under the last part of Art. 213. the
provision, therefore, does not apply to collecting officers of
The usual problem given here is where the collecting officer the BIR and the Bureau of Customs.
demanded an amount larger than what the taxpayer should
pay, and he pocketed the excess amount, and spent this for So when the collecting officer is that of the BIR or the Bureau
his own private use and benefit. of Customs, you do not apply this Art.
One of the problems given before run like this. The amount
payable to the Government is only P400. The collecting The reason for that is this: If you would apply this crime of
officer demanded from the taxpayer P500. He wrote out a illegal exaction to a public officer who collects for the Bureau
receipt for P500, gave this to the taxpayer. After the taxpayer of Customs or the BIR, all of them will be out of office,
left, collecting officer erased the amount reflected on the because they do not really collect what is required by law for
duplicate and triplicate copies of the official receipt made it them to collect. Invariably, they impose penalties, they slap
appear that he collected only P400. And he pocketed the surcharges. interest. Then, they enter a compromise. It is in
difference. What crime or crime the compromising that corruption is always committed. As to
Analyzing the facts given, crime of illegal exaction is how much it would be lowered, that depends on the
committed. This is the first crime. Because the agreement of the parties. So here, the amount collected is
collecting officer not only demanded but even always different from the amount required by law for him to
collect. Now that is because he has the discretion to impose

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penalties, interests, slap surcharges. They always find a way 2. He had the custody or control of funds or property
of finding a violation where they can impose penalties. So the by reason of the duties of his office
amount that they collect is always fluctuating. There is no 3. those funds or property were public funds or
fixed amount, unless the taxpayer is so honest that he will property for which he was accountable
really comply with the letter of the law for what he should 4. he appropriated, took , misappropriated or
pay the BIR or the Bureau of Customs. But there is always a consented or through abandonment or negligence,
room for finding a violation, and so, there is always the permitted another person to take them.
surcharges, there is always thee penalties. And the taxpayer
will then make some negotiations on how to lower that. So In the last Bar Examination there are 3 problems given on
the amount they collected always fluctuates. Now if you will malversation.
apply Art.213 on illegal exaction to them, because the
amount collected is different from what the law requires The common thinking is that this is a crime. committed by
them to collect, none of them will stay in office. Because they public officers who are accountable officers like cashiers,
always collect amounts different from what the law requires treasurers, supply officers, this payroll clerks. That is not
them to collect. correct.

MALVERSATION Any public officer can commit malversation. But the crime
can only be committed in respect of funds or property which
Art. 217. Malversation of public funds or property; Presumption of the public officer is legally bound to account to the
malversation. — Any public officer who, by reason of the duties of his office,
Government
is accountable for public funds or property, shall appropriate the same or
shall take or misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public funds, or It is on that obligation imposed on the public officer to
property, wholly or partially, or shall otherwise be guilty of the account for the fund or property involved that brings about
misappropriation or malversation of such funds or property, shall suffer:
the crime of malversation if such public officer would not
1. The penalty of prision correccional in its medium and maximum
periods, if the amount involved in the misappropriation or account for that fund or property. And, instead, utilizes it for
malversation does not exceed two hundred pesos. his own private benefit or gain.
2. The penalty of prision mayor in its minimum and medium periods,
if the amount involved is more than two hundred pesos but does
When a demand is made to such public officer for the fund or
not exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion property under his accountability, generally, failure on his
temporal in its minimum period, if the amount involved is more part to have that fund or property forthcoming or available,
than six thousand pesos but is less than twelve thousand pesos. would bring about the presumption that he has converted it
4. The penalty of reclusion temporal, in its medium and maximum
to his own private use.
periods, if the amount involved is more than twelve thousand
pesos but is less than twenty-two thousand pesos. If the amount
exceeds the latter, the penalty shall be reclusion temporal in its It is not necessary that the property involved should come
maximum period to reclusion perpetua. from the government. Property involved may come from a
private citizen or from a foreign country.
In all cases, persons guilty of malversation shall also suffer the penalty of
perpetual special disqualification and a fine equal to the amount of the funds
malversed or equal to the total value of the property embezzled. What is material is that the accused is under the law required
to account for that, but he did not account for it. Hence, the
The failure of a public officer to have duly forthcoming any public funds or
presumption arises that he has misappropriated the same.
property with which he is chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put such missing funds or
property to personal use. Now if the public officer who misappropriated the fund or
property involved is not the one required for that his crime is
Acts punished: not malversation.
1. Appropriating public funds or property;
2. Taking or misappropriating the same; So this crime arises from the relation of the accused to the
3. Consenting, or through abandonment or negligence, fund or property involved. He must be the one accountable
permitting any other person to take such public for such fund or property. Otherwise, his crime is not
funds or property; and malversation.
4. Being otherwise guilty of the misappropriation or
malversation of such funds or property In a public office, one of the employees was assigned to
fieldwork. And to carry out the duties of his office in the field,
Elements common to all acts of malversation under Art. 217 that particular worker is given the privilege to withdraw cash
1. Offender is a public officer from the office cashier. The routine was as follows: After this

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particular employee report to the office, he will write a Even though the fellow who is legally obligated to account for
disbursement voucher for the amount he needed. And this he that fund or property is not the one who misappropriated the
will present to the office cashier, office cashier gives him the amount, but somebody else, if he was negligent or remiss in
amount. Now when he comes back from his field work to the the safekeeping of the fund or property involved he will be
office to time out, he will liquidate the amount of the liable for malversation.
advance given him in the morning. He will state there how
and where the amount was spent. Whatever balance would Now the fellow who misappropriated the same, is not liable
remain, return this back over to the cashier. for malversation even though he knows that that is
Government property. His liability will be only for estafa or
Now here was one of the co-employees in the office who for qualified theft or simple theft. But not for malversation.
happened to have a need for money. Now he does not know
how to raise the amount. So he forged the signature of that Now on the part of the public officer who is accountable for
co-employee who is assigned to the field, making it appear the fund or property, if he were negligent that amount to
that the voucher covers an amount to be used by that abandoning his duties that enabled the third party to
employee who is assigned to field work. And this fellow who misappropriate the amount, he will be liable for
has the need for money presented the voucher to the malversation.
cashier. So he was given the amount corresponding thereto.
This is one crime where the penalty is the same whether
For sometime, the voucher was not liquidated. So the cashier committed through dolo or incurred through culpa.
called the attention of this fellow who has that privilege
because he is assigned to field work. And this fellow looked In fact, the first question asked in one Bar Examination a long
over the voucher and said, "that is not my signature." So he time ago required the examinees to give a crime under the
denied that the money was received by him. The cashier RPC where the penalty is the same whether committed with
remembered that amount was received by a co-employee in dolo or incurred through culpa.
the office. And it was the co-employee who presented the
voucher. Generally, when the crime is committed through. culpa
penalty is lower. And that is understandable. In dolo, that act
So an investigation was conducted. And this co-employee is deliberate. In culpa, it is nothing but the omission of the
who presented the voucher was discovered to be the one diligence to safeguard the property.
who falsified the voucher and received the amount.
The answer to that question: malversation.
After the investigation, this fellow was prosecuted before the
Sandiganbayan for the crime of malversation through Under this Article 217. whether it was deliberately
falsification. Sandiganbayan convicted him. misappropriated or misappropriated because of the
negligence of the public officer accountable therefore, crime
He appealed to the SC On appeal, SC ruled, the crime is not of malversation will be incurred by him.
malversation through falsification but estafa through
falsification. It cannot be malversation because the accused is So understand this. Malversation can be committed by any
not the one required to liquidate the amount received from public officer. It is a crime arising from the accountability of
the cashier on such voucher. So the obligation to account the public officer involved for the fund or property that is
does not rest on him, but rest on the other employee who under his custody.
has that authority to withdraw cash from the cashier.
One question asked before was a simple one: Can a traffic
Absent that accountability for the amount he had withdrawn. policeman commit the crime of malversation?
SC ruled, the misappropriation, therefore, cannot bring about
the crime of malversation. Common answer no, because he is not an
accountable officer. That answer is wrong.
This is what I am calling your attention to. It is only
malversation if the person accused of the crime is the one Every public officer can commit the crime of malversation as
who under the law has the obligation to account for the fund long as he has in his custody any fund or property which
or property that was missing or to account for the fund or under the law he should account to the Government.
property which should be accounted for the Government.

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A traffic policeman has his service revolver, which he is Now it does not follow that because a public officer cannot
accountable to the Government. If he would sell this, he will produce the fund or property under his custody that the
be incurring malversation, presumption would already arise.

In fact, in one of the Bar Problems given, problem no.10 was The jurisprudence here clarified that the presumption will
to this effect. Two policemen were assigned to the only arise when there is no doubt at all that the fund or
checkpoint. They were able to check a motorist who was property involved should be in the possession of the public
carrying in his vehicle a sophisticated firearm without any officer; that said fund or property was not utilized by the
license or permit to carry. The two policemen made a Government for any other public purpose.
proposal to the motorist, whether he would choose just to
forget the firearm, he can go, or they will have to take him to Thus, in Dumagat vs Sandiganbayan, 160 SCRA 483, it was
the police headquarters for investigation. This motorist opted held that the prima facie presumption under the Revised
to accept the first one. Forget about the firearm, he can go. Penal Code arises only if there is no issue as to the accuracy,
So he left the firearm with the two, and he was allowed correctness and regularity of the audit findings and if the fact
already to go. that public funds are missing is indubitably established. The
audit must be thorough and complete down to the fast detail,
After he left, the two policemen went to a third party who establishing with absolute certainty the face that the funds
was interested to buy a handgun. And they offered this are indeed missing.
handgun to the latter. The latter paid for the handgun.
So when there is a need to audit the accounts of the public
May this buyer of the firearm be prosecuted for fencing? officer, the presumption will only arise if the audit was
complete.
What crime is committed by the two policemen?
If it was only a partial audit, there is soil doubt on whether
You know that fencing is a crime incurred in relation to the the missing funds or property was used for public purpose of
proceeds of theft or robbery. So if you answered yes. you are the accountable officer, presumption does not arise here.
implying that the two policemen committed theft or robbery.
But that is not the crime committed by the two policemen. Although there was an audit conducted, the audit must be
The policemen committed the crime of malversation. complete, must be thorough. So that the result of the audit is
Because they are supposed to account for that firearm, since reliable.
it was carried by the motorist in violation of law. So a crime is
committed. The law enforcers are required to turn over the Where there is any circumstance that would show that the
firearm to the property custodian of the command. Because result of the audit is not reliable, the presumption will not
this is evidence of the crime. Now when they did not do so, arise.
instead, they make money out of it, they are committing
malversation. So, in the case of an audit conducted of a treasurer. Treasurer
was assured that if he could show the vouchers that would
Now as to the crime committed by the buyer, then he will explain the missing funds, he would be credited therewith.
incur the crime of malversation as an accessory and also the The COA auditor returned to Manila, and reported the paper
crime of illegal possession of firearm. So two crimes not, shortage. Subsequently, a case of malversation was filed
fencing. against the treasurer. In the course of the trial, the treasurer
appeared on three different occasions bringing with him
On the part of the two policemen, the crime is malversation. vouchers which were not taken up in the audit. So during that
They cannot be an accessory to the illegal possession, trial, the information had to be amended. The amount
because that is a malum prohibitum. originally stated to be stricken out. The voucher brought by
the accused would be credited. And the amount accordingly
PRESUMPTION OF MALVERSATION adjusted. This occurred three times.

About this crime, you have here a presumption that when Now when the accused did not come up with any further
demand is made upon the public officer who has funds or voucher, the Sandiganbayan convicted him already for the
property under his custody, and that public officer cannot outstanding balance on the presumption that the same was
have the fund or property forthcoming, presumption arises used by him and misappropriated for his private benefit.
that he had misappropriated such fund or property.

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On appeal to the SC. SC set aside the judgment of conviction Malversation is one crime where the penalty is the same
by the Sandiganbayan. whether committed thru dolo or incurred thru culpa.

SC said, the presumption would not suffice to convict the A felony that is incurred thru culpa or criminal negligence
accused where there is doubt as to the shortage evidenced by carries a penalty, generally, one degree lower than the
same crime committed thru dolo or criminal intent. But in
the audit.
Malversation (note: Art. 270) the penalties are the same
whether it was brought about by negligence of the public
Considering that on three occasions, the accused came forth officer having custody of the funds or properties
with vouchers that were not credited to his account, but accountable to the Philippine Government or it was brought
which upon examination a report turned out to be authentic about by his own misappropriation.
and should be credited to the accounts of the accused, this
would only demonstrate that the audit is not thorough. That One Bar problem: the accused is a public officer in custody
the results of the audit are not reliable. For that reason, the of the funds that was missing was charged with
presumption does not arise. Presumption will only arise when malversation. The evidence showed that he was not the
it is indubitable that the fund or property which the Public one who misappropriated the missing amount. It was
officer cannot produce has not been used for the somebody else in the same office but nevertheless, the
Government. Sandiganbayan found him negligent in not exercising
proper custody of the funds involved. He was convicted. He
challenged the validity of conviction explaining that his
In this case, the accused can only be convicted not on
constitutional right to be informed of the nature and the
presumption but on direct evidence of malversation. cause of accusation against him is violated. He argued that
he was prosecuted for malversation brought about by dolo
What the SB should have done, said the SC, was to suspend and yet the court convicted him for malversation brought
the trial and order a re-audit, and not to proceed with the about by culpa. Resolved the merit of the appeal to the SC
trial and convict the accused on the amount that is no longer Answer: whether it is thru dolo or culpa, the
supported by the voucher. punishment is the same. There is no substantive
right of the accused that was violated. Between the
Now that would imply that the accuse was convicted on mere crime brought about by dolo and the crime
presumption of malversation. And this is not proper where it incurred thru culpa, the same crime incurred thru
would appear, that the audit was not thorough. culpa is the lesser crime than a crime brought by
dolo. Under the rules on criminal procedure, an
The OSG here argued that when the accused signed the audit accused may be convicted for a crime necessarily
included in the crime charged. The contention of
report indicative of a shortage, the accused in effect admitted
the accused in that problem is wrong. The
that part of the shortage was misappropriated by him or used
conviction is valid because after all, the penalty is
by him unofficially. the same.

SC, however, countered that this is not proper, because when In Malversation, it is not necessary that the fund or property
the accused was required to sign the audit report showing misappropriated should come from the Philippine
the shortage, he was never reminded of his right to be government. What is required is that the fund or property
assisted by counsel And there being no counsel assisting him misappropriated is accountable to the government but the
at the time, the signature on the audit report cannot be taken public officer who should account for it for the government
as an admission of the shortage. At most, that signature on did not do so, precisely, because the misappropriated the
the audit report is only, an admission that an audit was same or by being negligent allowed others to
conducted. But not due a shortage existed. Because insofar as misappropriate the same.
it would incriminate him, the same cannot be admitted as
Example: a mayor from a 3rd class municipality of the
such, since he was never informed of his Constitutional right
Philippines was among those who attended a convention
as required under Sec.12 Art III of the Constitution.
and during the discussion he made known the
handicapped that he is suffering from his local
The point, however, here is that, do not rely alone on the administration because there is no ambulance for the
presumption of malversation, if after all, there is doubt as to province. That was taken note of the secretariat of the
whether the accused actually misappropriated the fund or convention. After the convention this mayor came back in
property that was missing, or there is probability that this the Philippines. And this particular mayor who brought out
was not properly accounted for although utilized by the the fact that his constituents were not even have the
Government. necessity of an ambulance. About 2 months later, an
ambulance had arrived addressed to the mayor. That
mayor thought that the ambulance is his, he stripped the
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ambulance of all the medical facilities and equipment and involves money, fund or property of the
made it a private van, but a notice is posted in the door of government.
the vehicle “for official use only” but it was being used by
the family of the mayor and some higher official of the When a cashier make a reconciliation and discussed it on
municipality. The oppositionist mayor who lost in the past hand and cashed supposedly on hand shown by the
election filed a criminal case against him for malversation. receipts he issued considering that there are tax payers
His defense was the government property did not come would did not bother to collect the change for the amount
from the Philippine government. The SB convicted him. In they paid. “Keep the changed” Eventually during the
the appeal in the SC, the SC affirmed the conviction. reconciliation, the cash count is more than the amount that
No person or entity would get any value with an is supposed to be on hand. This was the situation where
ambulance unless it is a hospital because that the cashier after making the reconciliation found out that
vehicle is for public service. It was addressed to the cash on hand is more than the cash which should be
the accused because he was the chief executive of on hand per official receipt issued by him, so he got the
the municipality he represents. So that property is difference and pocketed it. Is there a crime committed?
accountable to the Philippine government thru that Yes, once any money not belonging to the
municipality. When he defeated that purpose and government or forming part of the public funds is
makes it for private use, that is misappropriation deposited and co-mingled with the public fund of
already. the government in the government safe or vault,
the same acquires the character of being part of
This case is an example that the fund or property the public funds. Once it was co-mingled in the
need not come from the Philippine government. It amount in the public safe or vault, nobody can say
may be donated. As long as it is donated to the which is public and which is private. Under the civil
government, since the government is incorporeal law rule of accession, the owner of the lesser bulk
this has to be coursed thru a government official. loses ownership of the lesser bulk which is
But it does not mean that the government official absorbed by the bigger bulk. The owner of the
who was the one who is the beneficiary. Any such bigger bulk becomes the owner of the entire bulk.
misappropriation of what is donated to the
government will bring about malversation if the TECHNICAL MALVERSATION
one who misappropriated this is the one who
should account for the fund or property received by Art. 220. Illegal use of public funds or property. — Any public officer who
him to the government he represents. shall apply any public fund or property under his administration to any public
use other than for which such fund or property were appropriated by law or
In the crime of Malversation, it is not necessary that the ordinance shall suffer the penalty of prision correccional in its minimum
period or a fine ranging from one-half to the total of the sum misapplied, if
offender should consume or misappropriate the fund or
by reason of such misapplication, any damages or embarrassment shall have
property involved. It is enough that the public officer resulted to the public service. In either case, the offender shall also suffer the
entrusted with the custody of the fund and property penalty of temporary special disqualification.
involved have made use of such fund or property as if it
was his own. If no damage or embarrassment to the public service has resulted, the
penalty shall be a fine from 5 to 50 per cent of the sum misapplied.
Example: a woman cashier whose husband came to her
after 3pm. The husband requested her to change in cash Elements:
the personal check of the husband because the bank is 1. Offender is a public officer;
already closed. The cashier got the check changed it with 2. There are public funds or property under his
the face value of the check Php3000. Put the check among administration;
those collected by her. Is there a crime committed? 3. Such fund or properties were appropriated by law or
Under civil law, payment by check is no payment at ordinance;
all until the check is encashed. When the wife get 4. He applies such public fund or property to any public
Php3000 from the government, it is the legal use other than for which it was appropriated for.
tender, changed the check of her husband, she is
already appropriating money of the government,
that check is only a mere piece of paper. Unless it Under this chapter on Malversation, you also have the crime
is cashed it is nothing but a piece of paper and yet of technical malversation or illegal use of public funds and
she got money of the government. Even though the property.
money will be restituted during three days that the
check has not been cleared, the cashier has made In technical malversation under Art. 220, you understand, the
use of the money and that is the one which will fund or property involved are already appropriated by law or
suffice to amount to the crime of malversation. A ordinance to a particular public purpose. The public officer
public office is a public trust. Especially when it here is simply to administer or apply such fund or property to

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the public purpose for which it is appropriated. But instead of Under the new information for technical malversation is filed,
applying it to that public purpose, the same was applied to the accused should not proceed with the trial
another purpose.
xxx What the trial court should do is require the prosecutor to
Since damage is not an element of malversation, whether the file a new information for technical malversation. The original
Government suffered damage or benefited from the information, however, should not be dismissed until the new
application of said funds to another public purpose, there is information is filed. And, the accused, if detained, should not
still criminal liability. The fact that the Government did not be discharged.
suffer damage will only bring about the non-imposition of the
fine. The original should only be dismissed when the new
information for technical malversation is already filed.
But as far as the criminal liability is concerned, there is
criminal liability. On that new information, the accused should be re-arraigned.
So a new plea will have to be entered. And, the evidences
Now you notice here, the fund or property subject to supporting this crime, that which were already adduces under
technical malversation is already appropriated for a particular the old information, must be re-offered.
public purpose.
The re-offer however, does not mean that the witness will be
So if the fund or property that was applied to a public called back to the witness stand. The prosecution and the
purpose was not appropriated yet by law or ordinance to a defense may simply agree or stipulate on the evidence that
particular public purpose, the crime is not technical will be offered and admitted. Only then, may the court
malversation but simple malversation. proceed with the case on the basis of an information for
technical malversation. Otherwise, the judgment that the trial
Now here, the evidence required to prove technical court may render finding the accused guilty of technical
malversation is different from plain and simple malversation malversation is null and void, because this crime is not
where the fund or property is said to have been used by the necessarily included in the crime charged. Hence, the right of
accused for his own private benefit. Hence, where the the accused under the Constitution to be informed of the
accused was charged of plain and simple malversation under nature and cause of the accusation against him shall be
Art.217, but in the course of the trial, it was found out that violated. This is the reason why the court should not proceed,
the fund or property subject of the accusation was actually if after all, the evidences would show that the crime is not
applied to a public purpose, the court cannot, on the basis of simple malversation but technical malversation.
that information for simple malversation, convicted the
accused for technical malversation because technical A problem on this was given not so long ago.
malversation is not necessarily included in the crime of plain
and simple malversation, If the accused was charged, however, for intentional
malversation, but during the trial the evidences showed that
So if the accused was charged for plain and simple somebody else misappropriated the fund or property
malversation, and in the course of the trial, the evidence involved, not the accused. If the evidence would show that
showed that the crime is one of technical malversation xxx If the accused was negligent or remiss in his accountability that
the evidence would show that the crime is not simple is why a third party was able to misappropriate the fund or
malversation but technical malversation, the court should property involved, SC ruled, the accused may be validly
suspend the proceedings, require the prosecution to file an convicted for reckless imprudence resulting to such
information for technical malversation because the court can malversation. This is so, because the penalty for malversation
never render a valid judgment on technical malversation whether committed deliberately by the accused himself or
under Art. 220 if the information charges the accused for through his abandonment or negligence was misappropriated
simple malversation under Art. 217. by somebody else, the penalty is the same. And between dolo
and culpa, dolo is the more serious; the crime committed
Thus, in Parungao v. Sandiganbayan, 197 SCRA 173, it was with dolo is the more serious crime. Hence, the crime
held that a public officer charged with malversation couldn't brought about by culpa is necessarily included in such crime.
be convicted of technical malversation (illegal use ofpublic
funds under Article 220). To do so would violate accused's Now a private citizen, as said earlier, can incur the crime of
right to be informed of nature of accusation against him. malversation.

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In the last Bar Exam, three problems were on malversation. Example: a public officer who is a treasurer, in a surprised
Two were involving private citizens or non-public officers. audit it was found short of what should be the fund on
hand. He admitted to the COA auditor that he went to the
A private citizen may incur the crime of malversation in the hospital when he was undergoing hospitalization treatment
following situations: and made use of the amount for his medical treatment. But
he said that his salary will be used to pay the same. The
COA auditor noted the explanation, he reported the amount
First, when such private citizen conspires with a public officer of the deficiency and the explanation made by the officer.
who commits the crime of malversation. When the auditor returned to manila, the matter was
reported to the officer of COA and a criminal case was filed
Second, when a private citizen cooperates with a public against the treasurer before the Sandiganbayan. At the
officer as accomplice or accessory to the crime of time when the criminal case is filed, there was no shortage
malversation committed by the public officer. anymore because the treasurer already restored the
amount, he just used it when he was hospitalized on that
Third, when a private citizen is made the custodian of the day. His defense was, at the time the information was filed
funds or property and in whatever capacity and whether such in the Sandiganbayan, there was no shortage and as a
funds or property belong to the national government or to matter of fact this was confirmed by the municipality whose
the local government, if the private citizen would funds are involved. The COA auditor then was presented as
misappropriate the same, crime of malversation is witness by the special prosecutor of the SB and COA
auditor testified as to the disclosure made by the accused
committed.
to him. The accused admitted that he made used of the
fund that was missing during the surprised audit for his
Fourth, where a private citizen is made the depositary or the hospitalization.
administrator of fund or property attached, seized, or The SC affirmed the conviction. Primarily on the
deposited by public authority, and such private citizen principle that a public office is a public trust.
misappropriated the fund or property involved, even though Nobody may use any government fund or property
the same belongs to a private individual, this is the provision as though he is the owner thereof. The SC noted
of Art. 222. the fact that the amount had been restituted, that
at the time the case was filed, there was really no
Now you understand, when a private fund or property have shortage. The SC said that the restitution of the
been the subject of attachment or seizure by the public amount does not erase the crime committed
authority that fund or property is constituted in custodia because in malversation, it is not necessary that
legis. Therefore, it becomes impressed with the character of the accused would actually misappropriate the
fund or property involved. It is enough that any
being public. Should the custodian or the depositary
fund or property of the government is used for the
therefore misappropriate this, he is committing the crime of
purpose which should not be appropriated by him.
malversation not theft or estafa, even though that fund or The SC pronounced the fact that the amount was
property came from a private individual. The seizure, the already restored as of the time the information for
attachment, the deposit renders the same in custodia legis, malversation was filed may be appreciated as a
and that would clothe the fund or property involved with the mitigating circumstance that the offender did not
character of being public. intend to commit so grave a wrong as that which
was committed (praeter intentionem)
Once the funds or property are commingled with those of the
Government, so much so that the funds or property Example: A governor of tarlac and a director of a non-
commingled no longer show the identity as which is public governmental organization also in tarlac. Before Cory
which is private, the whole will be impressed with the Aquino’s assumption of power, a law was enacted providing
character of a public fund or public property, so that nobody for hundred million of government fund to be utilized to
finance worthy livelihood projects of local government. In
may take any part of that fund or property where the identity
tarlac, the same was given to assist the government to
can no longer be established. Or, by commingling, will be
finance worthy livelihood projects. It was supposedly
considered as property of the Government. undertaken by the office of the governor. But since this
involves the laying of study to show the worthiness of
He, who would cake it after such commingling, where his projects, the provincial government of tarlac designated a
property has already lost its identity as private, would be non-government entity known as “lingkod ng kaunlaran ng
committing malversation. tarlac” and this NGO was to process the application and
after processing the application, they approved this then
forward such in the office of the governor. The office of the
governor will then provide the funds for the projects as
found to be viable and worthy. Some 56 million was given
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to the province of tarlac to be used to finance the livelihood Article 225. Escape of Prisoner under the Custody of a Person
projects. After 3 years, an audit was made from the not a Public Officer
supposed livelihood projects, many of them are ghost
projects. The COA summoned the auditor to trace the items Elements:
of disbursement of these funds and they found that the 1. Offender is a private person;
many of them are really ghost projects. Since this was
2. The conveyance or custody of a prisoner or person
received by the provincial government under the office of
the governor and the office of the governor undertake the under arrest is confided to him
release of the funds, there being no such projects which 3. The prisoner or person under arrest escapes;
appear to be funded, the governor of tarlac and the office 4. Offender consents to the escape, or that the escape
of the treasurer together with the director of the NGO were takes place through his negligence.
prosecuted for the crime of malversation. SB found them
guilty for multiple counts of malversation. Even their motion Your attention is called to the infidelity under Art 224 where
for reconsideration in the SB was denied. But when Cory the custodian has enabled the prisoner to escape because of
assumed presidency, SC enterained the MR and came out his negligence.
with the ruling that there is no malversation because the
amount released was in the nature of a loan. The In the earlier ruling of the SC, in the case of Nava vs. CA, the
beneficiary of the amount is a debtor and therefore the SC made a pronouncement that mere laxity in the handling of
relationship between the government and the people who prisoners will not bring about criminal liability under this Art.
availed the financing was that of creditor and debtor
relationship. The SC said that it is a civil not a criminal
obligation. If the prosecution was for the violation of RA The negligence contemplated here must be one which would
3019, causing undue injury under subsection e of section amount to a virtual abandonment of duty.
3, whether a public or private entity due to manifest
partiality, evident bad faith or gross negligence, the So in that case of Nava vs. CA where the police escort of a
accused will have a hard time being acquitted from liability. prisoner whi is being brought to the municipal hall of
If it partakes the nature of the loan, it is not subject to audit Caloocan — at that time it was still a municipality — and who
of COA because it is a private fund already. upon request of the prisoner, allowed the prisoner to enter
the men's room alone.
So if the amount is released as a financial assistance by
way of loan to undertake private livelihood projects, the After a while the police escort was tired of waiting so he tried
amount ceases to be public funds. Once it is received by to force the door of the CR, and he found the prisoner
the supposed private citizen to undertake the livelihood already gone. The back walk of the CR was so dilapidated that
program and the remedy is not a criminal case but only a
the prisoner was able to make an opening in that back wall
civil action.
where he escaped. Nava was prosecuted for infidelity but he
was acquitted on appeal to the SC
INFIDELITY IN THE CUSTODY OF PRISONERS
On a similar case several years later, case of Rodillas vs. SB,
Another crime under this title that has been subject of Bar
the prisoner was escorted to the City Hall of Manila to attend
Problems, every now and then. Infidelity in the custody of
a hearing. Also suffered the same situation.
prisoners.

Art. 224. Evasion through negligence. — If the evasion of the prisoner shall
Rodillas accompanied a female prisoner to the City Hall in
have taken place through the negligence of the officer charged with the Manila for hearing. The prisoner would have been escorted
conveyance or custody of the escaping prisoner, said officer shall suffer the by the policewoman, but the escort assigned to her was
penalties of arresto mayor in its maximum period to prision correccional in absent that morning. And so, it was Rodillas who
its minimum period and temporary special disqualification.
accompanied the prisoner to the City Hall of Manila.
Elements:
Upon arriving to the courtroom, the police escort Rodillas
1. Offender is a public officer;
allowed the prisoner to sit on the bench for prisoners but the
2. He is charged with the conveyance or custody of a
husband was there. And so, the husband conferred with the
prisoner or prisoner by final judgment
woman prisoner.
3. Such prisoner escapes through negligence
SC noted that this is negligence. That when a prisoner is taken
out of his or her cell, he should never be allowed to converse
with any outsider. Because it is in such conversation where
the plan to escape could be hatched. Moreover, since the

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sheriff lasted up to 12nn or past 12nn, the woman prisoner police escorts be strictly made to follow their trust given
with her husband requested Rodillas that they be allowed to them over the prisoner. Any violation of this, which resulted
take lunch together. And Rodillas allowed them to do that. to the disappearance or loss of the prisoner, must be the
They ate at the canteen of the City Hall in Manila. liability of the police escort.

SC noted this also as negligence, because the authority given So now, a different criterion is used. The Nava ruling is no
to Rodillas was only to take the prisoner to the courtroom. longer to be followed.
And therefore, to bring her back to the City Jail where she is
confined. When Rodillas violated that instruction, he is remiss Infidelity in the custody of the prisoner my also be committed
in the performance of his duties. by a private citizen.

After they had taken lunch together, the woman prisoner You will notice that this crime can also be committed by a
requested Rodillas to accompany her to the ladies' room private citizen.
allegedly because she was visited by her monthly period. So
Rodillas accompanied the woman prisoner to the ladies In Art. 225 when a prisoner is entrusted to the custody of a
room. But because he was a male, he just stayed outside by private citizen, if that private citizen through connivance or
the door of that room. negligence, would allow the prisoner to escape, crime of
infidelity in the custody of prisoners is, likewise, incurred by
SC noted this as negligence. The High Court said, one who him.
escorts a prisoner outside of his or her cell should never
allow, for any moment, such prisoner to be out of his sight. INFIDELITY IN THE CUSTODY OF DOCUMENTS
Whatever the prisoner is doing, the escort must be around
and be aware of what the prisoner was doing. You also have here the crime of removal, concealment, or
destruction of documents constituting the crime of infidelity
Rodillas explained that he cannot be expected to enter the in the custody of official documents.
ladies room that is why he just waited by the door.
Art. 226. Removal, concealment or destruction of documents. — Any public
officer who shall remove, destroy or conceal documents or papers officially
But the SC rejected this. The high court said, when the
entrusted to him, shall suffer:
accused, after waiting so long, managed to request the other 1. The penalty of prision mayor and a fine not exceeding 1,000
ladies, who wanted to use the ladies' room, to defer their pesos, whenever serious damage shall have been caused thereby
entry thereto, because he was to look for the prisoner, he to a third party or to the public interest.
2. The penalty of prision correccional in its minimum and medium
should have done this in the first place when the prisoner
period and a fine not exceeding 1,000 pesos, whenever the
entered the ladies' room. He should have escorted the damage to a third party or to the public interest shall not have
woman prisoner inside the ladies' room, because, he should been serious.
never allow a prisoner out of his sight when entrusted to be
In either case, the additional penalty of temporary special disqualification in
escorted out of the cell. Failing in this, Rodillas was convicted
its maximum period to perpetual disqualification shall be imposed.
for infidelity under Art.224, because the prisoner here was
able to escape. The prisoner disappeared. So it must be that Elements
the prisoner was able to wear a disguise, that she was able to 1. Offender is a public officer
leave the ladies' room unnoticed by Rodillas. So it was after 2. he abstracts, destroys or conceals a document or
sometime that Rodillas requested the other ladies to defer papers
their entering to the ladies' room, because he was going to 3. Said documents or papers should have been
look for the prisoner. So Rodillas went inside. There is no face entrusted to such public officer by reason of his
of the prisoner. office
4. Damage, whether serious or not, to a third party or
So whereas in the Nava case, the same situation was to the public interest has been caused.
presented, and the SC said, mere laxity in the handling of the
prisoner will not give rise to this criminal liability. The police This crime can only be committed by a custodian. So this
escort may be held administratively liable but not criminally. crime of infidelity in the custody of public records or official
documents is a crime of the custodian. Not just any public
But here, the SC even made a pronouncement that it is in officer.
situations like this where a policeman escorts a prisoner out
of his cell to a purported hearing in court that many prisoners In the infidelity in Art 226, the removal, concealment, or
were able to escape. So it is now high times said the SC, that destruction of public document or public papers. damage is
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an essential element. Without damage, the crime cannot be But on review. SC said, the crime is not malversation. because
incurred. the currency was placed under the custody of the accused
not as money but as a document, because they are adduced
SC however, said that mere delay in rendering public service as exhibits. And, therefore, form part of the records of the
is already damage. court. Hence, the crime is infidelity in the custody of public
So where the person interested to view a Certificate Of Title, records
went to the office of the Registrar of Deeds, and he asked for
the copy of the Certificate of Title he was interested in. The In a similar case, it was the court stenographer who found
Certificate could not be located. So this interested taxpayer herself in need of money. So that folder containing the
had to return every now and then while that office of the RD marked money that was used. The court stenographer took
had been trying to locate that title. one of the denominations there. And when she had already
the amount and she returned, she replaced this. But during
After so much time had been consumed, the taxpayer gave the offer also it was discovered that this is not the original
up, and reported that the document is missing. money. An investigation was conducted. The court
Thereafter, the document was simply found. And so, the stenographer was eventually prosecuted.
custodian, the RD, was charged for infidelity in the custody of
public documents or public records. Following this early decision on the matter, the court
stenographer was prosecuted and convicted by the lower
The defense was, damage is an essential element of this court for the crime of infidelity in the custody of public
crime. And there was no damage because the certificate of records that he has.
title, after all, is still there and nothing happened to it.
On appeal SC said the charge is wrong. Infidelity can only be
SC upheld the conviction of the accused. And seated that committed by custodians. Since the court stenographer is not
mere delay in rendering the public service to a taxpayer is the custodian legally of the records of the court but the
already damage. So because of that the accused was branch clerk of court, crime committed by the court
convicted. stenographer in extracting that exhibit is not infidelity in the
custody of the document. It is a case of Theft.
Regarding this infidelity in the custody of public records,
where money is used as evidence in a case for bribery, or a So the focus is on the offender — who is the offender? - If the
case involving selling of dangerous drugs where marked offender is not the custodian legally assigned for the
money was used to entrap a drug pusher, that marked money document, this crime cannot be incurred.
as introduced in court is not to be regarded as a medium of
exchange or as money, they are to be regarded as a MALTREATMENT OF PRISONERS
document because they are there marked as exhibits. So If
the trial was not completed on that day, and so, the marked Another provision under Title Seven which has been subject
money was left with the custodian of all the documents of of Bar Problems in the past is the crime of maltreatment of
that branch. The branch clerk of court, however, had a need prisoners under Art 235.
for money. And so he took one of the denominations marked
in evidence. When he returned the next day, however, he Art. 235. Maltreatment of prisoners. — The penalty of arresto mayor in its
medium period to prision correccional in its minimum period, in addition to
restituted this with the same denominations. And since he is
his liability for the physical injuries or damage caused, shall be imposed upon
the one xxx xxx the officer noted that the serial number was any public officer or employee who shall overdo himself in the correction or
changed. But they have a list of the marked money that was handling of a prisoner or detention prisoner under his charge, by the
used in entrapping the offender. And the same marked imposition of punishment not authorized by the regulations, or by inflicting
such punishment in a cruel and humiliating manner.
money were the ones adduced in evidence. When the
marked money was to be offered in evidence there was one If the purpose of the maltreatment is to extort a confession, or to obtain
where the serial number differs from what were listed in the some information from the prisoner, the offender shall be punished by
list of the apprehending unit. prision correccional in its minimum period, temporary special disqualification
and a fine not exceeding 500 pesos, in addition to his liability for the physical
injuries or damage caused.
So an Investigation was found, the branch clerk of court
admitted that he had done this. Elements:
1. Offender is a public officer or employee;
He was prosecuted for the crime of malversation. And he was 2. He has under his charge a prisoner or detention
found guilty because he spent the amount. prisoner;

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3. He maltreats such prisoner in either of the following


manners: So if the offender is not yet a prisoner in the legal sense —
a. By overdoing himself in the correction or the booking sheet and arrest report is still not yet fully
handling of a prisoner or detention prisoner accomplished — any maltreatment done to him is only
under his charge either: physical injuries.
i. By the imposition of punishment
not authorized by the regulations; But under this Art. 235, if the prisoner suffered injuries, two
or charges will be filed. One for maltreatment of prisoners.
ii. By inflicting such punishments Another for Physical Injuries.
(those authorized) in a cruel and
humiliating manner; or ABUSES AGAINST CHASTITY
b. By maltreating such prisoners to extort a
confession or to obtain some information Another crime under this Title that is worth passing on is the
from the prisoner. crime of abuse against chastity under Art 245.

Only such public officer charged with direct custody of the Art. 245. Abuses against chastity; Penalties. — The penalties of prision
correccional in its medium and maximum periods and temporary special
prisoner commits this.
disqualification shall be imposed:
1. Upon any public officer who shall solicit or make immoral or
If the public officer is not the custodian of the prisoner, and indecent advances to a woman interested in matters pending
he manhandles the latter, the crime is physical injuries. before such officer for decision, or with respect to which he is
required to submit a report to or consult with a superior officer;
2. Any warden or other public officer directly charged with the care
The maltreatment does not really require physical injuries. and custody of prisoners or persons under arrest who shall solicit
Any kind of punishment not authorized or though authorized or make immoral or indecent advances to a woman under his
if executed in excess of the prescribed degree. custody.

If the person solicited be the wife, daughter, sister of relative within the
Also, the important thing here is that the offended party same degree by affinity of any person in the custody of such warden or
must already booked. The booking sheet and arrest report officer, the penalties shall be prision correccional in its minimum and
must have been fully accomplished already. Otherwise, for medium periods and temporary special disqualification.
purposes of this crime, one who is only arrested and detained
is not a prisoner within the meaning of Art. 235. Any Acts punished:
maltreatment done to him would only bring about the crime 1. Soliciting or making immoral or indecent advances to
of Physical Injuries not this crime of maltreatment of a woman interested in matters pending before the
prisoners. offending officer for decision, or with respect to
which he is required to submit a report to or consult
The prisoner contemplated here is one already covered by a with a superior officer;
booking sheet and arrest report fully accomplished — The 2. Soliciting or making immoral or indecent advances to
fingerprints of the prisoner had already been taken. The left a woman under the offender's custody;
and right side profile and the front appearance of the 3. Soliciting or making immoral or indecent advances to
prisoner had already been photograph and attached thereto. the wife, daughter, sister or relative within the same
The distinguishing marks of the prisoner are already reflected degree by affinity of any person in the custody of the
there. — Only then will the prisoner becomes a chattel of the offending warden or officer.
Government. And, therefore, an accountability of the
Government. Elements:
1. Offender is a public officer
Any maltreatment done would bring about this crime. 2. He solicits or makes immoral or indecent advances
to a woman;
Before that, the crime is only Physical Injuries. 3. Such woman is —
a. Interested in matters pending before the
When there is the maltreatment already, aside from this offender for decision, or with respect to
crime, if the prisoner suffered physical injuries, there will be a which he is required to submit a report to
separate prosecution for the physical injuries suffered by the or consult with a superior officer; or
prisoner. You note this from Art.235 where the criminal b. Under the custody of the offender who is a
liability for maltreatment of prisoners shall be in addition to warden or other public officer directly
whatever physical injuries may be suffered by that prisoner. charged with the care and custody of
prisoners or persons under arrest; or
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c. The wife, daughter, sister or relative within In a case where a woman was convicted, so she was sent to
the same degree by affinity of the person in jail. In her cell, she was being visited by religious nuns or
the custody of the offender. sisters, bringing her some religious articles for her to read and
pray. At the start, the woman prisoner appeared to be
This has caught attention of the Senate that there has been a perfectly single, but as these religious nuns had been visiting
pending bill calling for the amendment of this Art. Instead of her, weeks and months, they notice that the prisoner is
Abuse against chastity, the suggested title is Sexual becoming pregnant. So they reported this to the higher
Harassment by public officers. The nature of the violation authorities in charge of the penal establishment.
here does not really require an abuse on the chastity of the
woman involved. You will notice the gravamen of the crime is An investigation was conducted; the jail warden admitted
the mere making of immoral or indecent solicitations or that he was the author of the pregnancy. So he was accused
advances upon a woman either in a situation where the for this crime.
woman is a party to a case being investigated by the public
officer, or the public officer is to render a report or consult Now his defense was, he does not commit this crime, because
with superiors about such case where one of the parties is he never made any immoral or indecent solicitations or
the woman. Or, the offender for this crime may be a jail advances upon the prisoner. Their relationship was simply the
warden making the immoral or indecent advances upon a product of mutual consent and affection. So the jail warden
prisoner. explained that it is simply that at night there were only the
two of them there, they feel miserable. And so, they love the
Now here, it is not alone the position of ascendancy that the company of each other. Out of that friendship, developed
jail warden occupies that will bring about this crime. The kindness, out of kindness, developed love. So they had a
relationship between the jail warden and the prisoner is one relationship. Just the same, the jail warden was convicted of
that involves a certain fidelity. That is why if a prisoner this crime, because he had taken advantage of his position of
disappears, the jail warden and the custodian will incur the ascendancy over the woman prisoner.
crime of fidelity.
Now he raised a question of law to the SC claiming that how
As far as the jail warden is concerned, the crime may be could he be convicted of this crime where it is the solicitation
incurred where the prisoner is a female, or even if the or advances of an immoral character that is being penalized.
prisoner was a male, if the immoral or indecent solicitation or And as testified to by the woman prisoner herself, the jail
advances were made upon the wife of the prisoner, or upon warden did not make any solicitations or advances to her.
thee daughter of the prisoner, or upon the sister, or upon a Everything was simply spontaneous. They fell in love with
relative by affinity of the prisoner in the same degree, that each other. And that brought about the pregnancy.
making of indecent or immoral solicitations or advances
would bring about the crime of abuse against chastity. The SC affirmed the conviction. And the High Court said,
actions speak louder than words. The best evidence of the
Even if the woman consented, there is still this crime of abuse immoral or indecent advances is the pregnancy. So with that,
against chastity, because the offender here occupies a the jail warden was convicted. Now this is because, as I have
position of ascendancy over the woman against whom the intimated to you before, a prisoner under our system of
immoral or indecent solicitations or advances were made. criminal law is regarded as a chattel of the Government -
And so, the offender took advantage of his official position of Government property. So the public officer entrusted with
ascendancy over the woman. the custody of a prisoner should never tinker with the
prisoner because that is Government Property. That is why
You note the woman is a party to a case where the public the word G.I. has been used. In this case of soldiers, they are
officer charged for this crime is conducting an investigation, called G.I.'s — Government Issue. They are regarded as
or is to make a report, or to consult with superiors regarding Government Chattels. That is the same status that prisoners
the disposition of the case, or where the offender is a jail occupy. And so, the custodian should never tinker with the
warden and he makes the immoral or indecent solicitations prisoner.
or advances, upon a woman prisoner under his charge, or
even if the immoral or indecent advances was not made to So even if the jail warden, let us say, was a bachelor who cries
the prisoner, if this was made to the wife, the daughter, or to court the prisoner, for as long as that is their relationship
the sister, or a female relative by affinity in the same degree, — jail warden and prisoner - he is not free to tinker with the
the crime is committed also. prisoner, because the prisoner is a Government Property. So
he should first resign his position in the Government,
because, as such, he is entrusted with that property. He is not

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supposed to take advantage of his position. So this crime is at 2. The woman who is the offended party in the crime is
once committed. a prisoner under the custody of a warden or the
jailer who is the offender.
Now you will notice here, where the immoral advances is
made to the mother of the prisoner, this crime is not This crime cannot be committed if the warden is a
committed. The mother of the prisoner is not included among woman and the prisoner is a man. Men have no
the woman to whom the immoral or indecent solicitations or chastity.
advances if made would also bring about this crime. Only the If the jail officer forced himself against the will of the
wife, the daughter, the sister, or a female relative by affinity woman, another crime is committed, that is, rape
in the same degree. The mother, not included. aside from abuse against chastity.

Now it does not mean, however, that if the jail warden made You cannot consider the abuse against chastity as
the immoral or indecent solicitations upon the mother that absorbed in the rape because the basis of penalizing
there is no criminal liability. There will still be criminal liability the acts is different from each other.
but not under this Art. anymore. It will be under the ANTI-
GRAFT and CORRUPT PRACTICES ACT under Sec. 3 thereof — 3. The crime is committed upon a female relative of a
demanding, soliciting, or receiving a gift from someone who prisoner under the custody of the offender, where
transact with his office as a corrupt practice. So it is there. the woman is the daughter, sister or relative by
affinity in the same line as of the prisoner under the
Now one of the questions asked before is whether this crime custody of the offender who made the indecent or
can be committed if the jail warden was a homosexual, the immoral solicitation.
prisoner is a handsome male, and the jail warden makes
immoral or indecent advances upon the prisoner under his The mother is not included so that any immoral or
custody? indecent solicitation upon the mother of the
The answer is NO. Because under criminal law males prisoner does not give rise to this crime, but the
do not have chastity. So there is no chastity to talk offender may be prosecuted under the Section 28 of
about, to violate or to abuse. This is a privilege of Republic Act No. 3019 (And-graft and Corrupt
women Practices Act).

Now also, question was asked: Supposing the National Why is the mother left out?
Correccional Institute for Women, the jail warden was a Because it is the mother who easily succumbs to
lesbian, and she made immoral or indecent advances upon a protect her child.
female prisoner. Is the crime committed?
The answer is YES. As long as the offended party is a If the offender were not the custodian, then crime would fall
woman, and the offender is a jail warden. The law under Republic Act No. 3019 (The Anti- Graft and Corrupt
does not distinguish whether the jail warden is a Practices Act).
male or female.
ANTI GRAFT AND CORRUPT PRACTICES ACT
RECAP: (RA 3019. AS AMENDED)

Three instances when this crime may arise: XXX the bulk of the violations of this law are covered by Sec 3
1. The woman, who is the offended party, is the party thereof. Familiarize yourselves with the different subsections
in interest in a case, where the offended is the under sec 3 of this law.
investigator or he is required to render a report or
he is required to consult with a superior officer. Section 3. Corrupt practices of public officers. In addition to acts or omissions
of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to
It is immaterial whether the woman did not agree or be unlawful:
agreed to the solicitation. If the woman did not
agree and the public officer involved pushed through (a) Persuading, inducing or influencing another public officer to
perform an act constituting a violation of rules and regulations
with the advances, attempted rape may have been
duly promulgated by competent authority or an offense in
committed. connection with the official duties of the latter, or allowing
himself to be persuaded, induced, or influenced to commit such
violation or offense.

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(b) Directly or indirectly requesting or receiving any gift, present, The person giving the gift, present, share, percentage or benefit referred to
share, percentage, or benefit, for himself or for any other person, in subparagraphs (b) and (c); or offering or giving to the public officer the
in connection with any contract or transaction between the employment mentioned in subparagraph (d); or urging the divulging or
Government and any other part, wherein the public officer in his untimely release of the confidential information referred to in subparagraph
official capacity has to intervene under the law. (k) of this section shall, together with the offending public officer, be
punished under Section nine of this Act and shall be permanently or
(c) Directly or indirectly requesting or receiving any gift, present or temporarily disqualified in the discretion of the Court, from transacting
other pecuniary or material benefit, for himself or for another, business in any form with the Government.
from any person for whom the public officer, in any manner or
capacity, has secured or obtained, or will secure or obtain, any
The most commonly violated provision is subsection e —
Government permit or license, in consideration for the help given
or to be given, without prejudice to Section thirteen of this Act. causing undue injury to another, whether private public, by
giving unwarranted benefits through manifest partiality,
(d) Accepting or having any member of his family accept employment evident bad faith, gross inexcusable negligence.
in a private enterprise which has pending official business with
him during the pendency thereof or within one year after its
termination. Regarding this subsection e, the injury contemplated here
must be material injury — one which is quantifiable in
(e) Causing any undue injury to any party, including the Government, money.
or giving any private party any unwarranted benefits, advantage
or preference in the discharge of his official administrative or
judicial functions through manifest partiality, evident bad faith or And although in crimes mala prohibita, evidence of good faith
gross inexcusable negligence. This provision shall apply to officers or lack of malice or criminal intent is not a defense, under
and employees of offices or government corporations charged subsection e, if the complaint is premised on alleged evident
with the grant of licenses or permits or other concessions.
bad faith, SC has already ruled, by way of exception to the
(f) Neglecting or refusing, after due demand or request, without principle that in mala prohibita, evidence of good faith, lack
sufficient justification, to act within a reasonable time on any of malice or criminal intent is not admissible, in this particular
matter pending before him for the purpose of obtaining, directly case, it should be allowed.
or indirectly, from any person interested in the matter some
pecuniary or material benefit or advantage, or for the purpose of
favoring his own interest or giving undue advantage in favor of or So when the complaint is based on alleged evident bad faith,
discriminating against any other interested party. the accused should be allowed to prove that he did not act in
bad faith but in good faith, and that he acted without malice
(g) Entering, on behalf of the Government, into any contract or
nor criminal intent. This is because, otherwise, the complaint
transaction manifestly and grossly disadvantageous to the same,
whether or not the public officer profited or will profit thereby. having been premised on this cause, to deny the accused to
present evidence that he acted in good faith, that he acted
(h) Director or indirectly having financing or pecuniary interest in any without malice or criminal intent, would be to deprive his of
business, contract or transaction in connection with which he
any defense for himself.
intervenes or takes part in his official capacity, or in which he is
prohibited by the Constitution or by any law from having any
interest. So by way of exception, this would allow evidence of good
faith, evidence of lack of malice or criminal intent, although
(i) Directly or indirectly becoming interested, for personal gain, or
violations of the Anti Graft and Corrupt Practices Act are
having a material interest in any transaction or act requiring the
approval of a board, panel or group of which he is a member, and concededly mala prohibita.
which exercises discretion in such approval, even if he votes
against the same or does not participate in the action of the It is important for you to bear in mind that all violations of
board, committee, panel or group.
this law are mala prohibita. That in these violation, the law is
Interest for personal gain shall be presumed against those public not interested with the effect but simply, on the violation of
officers responsible for the approval of manifestly unlawful, the prohibition.
inequitable, or irregular transaction or acts by the board, panel or
group to which they belong.
So although in the act committed against the prohibition
(j) Knowingly approving or granting any license, permit, privilege or here, the government benefited, the government profited,
benefit in favor of any person not qualified for or not legally that notwithstanding, the public officer involved will be
entitled to such license, permit, privilege or advantage, or of a criminally liable.
mere representative or dummy of one who is not so qualified or
entitled.
So in a case where the newly elected municipal mayor
(k) Divulging valuable information of a confidential character, assumed office without any money left in the municipal
acquired by his office or by him on account of his official position coffers. So his problem was how to deliver the basic services
to unauthorized persons, or releasing such information in advance
to the constituents of the municipality since there is no
of its authorized release date.
money. He could not even think of where to pay the salaries
of the employees of the municipality.
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government will get all the benefits. There is no


So he met with the municipal board or municipal council. And disbursement, there is no expenses because the expenses
they discussed about how to raise revenues for the were all shouldered by the son of the mayor who will operate
municipality. They thought that one of the spaces in the this.
municipal hall be leased to the concessionaire to be operated
as a canteen and convenience store so that the municipality SB, nevertheless, convicted the mayor because the thrust of
will have some revenues. his defense is one of good faith.

So bids were invited for this purpose but none of the bids So he appealed to the SC. And this time, he emphasized on
proved favorable because the interested parties wanted the the benefits and the advantage received by the municipal
municipal government to make some preparations for that government
space suitable to make it a canteen or a convenience store.
And the municipality has no funds at all to make the SC qualified that even if the prohibited act may have
necessary renovations. redounded to the benefit of the government, as long as it is
prohibited, one who violates the prohibition would incur a
So the bids start out to be futile. Because of that, the crime. This is the nature of crimes mala prohibita. It is enough
municipal council resolved to entertain negotiated bids. So that the prohibited act be voluntarily committed. Criminal
the municipal council started accepting proposals from liability will at once attach whether the act proved
interested parties on how to operate the space. The son of advantageous to the government or otherwise. The act is
the mayor was interested and he offered that he will prohibited. And so, anyone who voluntarily commits the act
shoulder all the expense to improve the place, make it will incur criminal liability. So the mayor was convicted.
suitable for a convenience store and a canteen at his own
expense, but the municipality must reimburse him when Take note of the subsection and the case because this has not
the municipality already has money. yet been the subject of a bar problem.

Now, likewise, he is willing to operate the place. All income Under subsection f, you have here a situation where the
will go to the municipality because, allegedly, he wanted only public officer neglected or refused to act on a matter pending
to help his father who is the mayor. He will advance the before him. And he, in spite of demand from the interested
expenses and the municipality will simply reimburse the parties, refused to act thereon without any justification.
expenses. All income will go to the municipality.
A process server of the RTC was accused on the basis of a
This was considered as most advantageous. So the municipal violation of this subsection.
council passed a resolution accepting such proposal
The process server delayed the service of notice of judgment
A contract was prepared. And naturally the contract had to to the judgment debtor. Now you know that for as long as the
be signed by the mayor because he is the chief executive of notice of judgment has not been served to any of the party
the municipality. So the contract turned out to be father and litigants, the period for finality of the judgment will never
son. commence to run.

The interested parties filed a civil case in the local RTC for the The process server delayed the service of the notice of
annulment of the contract. But the RTC found nothing judgment to the defendant for five months. So although the
violative of civil law that will bring about the nullification of counsel for the plaintiff had been egging him to serve already
the contract. So dismissed the complaint. the notice, for one reason or another, he simply does not
serve the notice until the defendant, was able to move out of
Te plaintiffs thought of filing a criminal case against the father his old residence.
— the mayor. And they filed this with the SB for violation of
the Anti-Graft and Corrupt Practices Act. So he had to look for the new address. And when he found
this, he served the notice of judgment.
The defense of the father that this is the only offer that would
raise revenues for the municipality. That the municipality was The defendant did not appeal from the judgment so it
bankrupt and does not even have the money to pay the became final and executory, the plaintiff then moved for the
salaries of the employees. So this appears to be necessary for issuance of a writ of execution. The court issued a writ of
the municipality in order that it may raise revenues. And as execution. Again this process server delayed the service of
the proposal was presented, the municipality or the the writ.

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whatever interest he has in that enterprise interested in that


Now when he finally came upon the place of the judgment application, or resigns his membership in that board, panel,
debtor to levy in satisfaction of the judgment, there was or group.
nothing lo levy upon anymore. The judgment debtor has
nothing left which is not exempt from execution. Everything It is expressly stated in that subsection i, that even though
he has is exempt from execution. the public officer who is a member of that board, panel, or
group would vote against the application or would abstain,
So the plaintiff was left holding a paper judgment. Because of criminal liability is still incurred.
that, they were so mad at this process server, they filed a
criminal case before the SB for violation of sec 3, subsection f So the only option available to hi to avoid criminal liability
of the Anti Graft and Corrupt Practices Act. under the Anti Graft and Corrupt Practices Act is to renounce
his financial interest in the enterprise or entity interested in
SB convicted the process server because there was really the application or for him to resign his membership of that
unexplained delay. And damage was suffered by the plaintiff. board, panel, or group.

The process server appealed to the SC, the SC acquitted him. His voting against the application would not suffice, or his
abstaining from acting on that application would not suffice.
SC called attention that under subsection f, it is not alone the
neglect or refusal to act on a matter pending before a public Now this is the situation where then Trade Secretary
officer that would bring about the violation. It is the essence Concepcion found himself
of the violation that the neglect or refusal to act was dictated
by pecuniary interest or a demand for a certain amount. As Secretary of Trade and Industry, he was also the Chairman
of the Board of Investments. And this board acts on
So unless this is proven, mere delay or neglect in acting on a applications of new industries to import, free from tariff and
matter pending before a public officer can only bring about customs duties, machineries and equipment of new
administrative case not a criminal case. There is no doubt industries to encourage their setting up in this country.
that the neglect to act is answerable, and therefore an
administrative case, if filed, would be against the process One of such applicant was the Concepcion Industries in which
server. But not criminally because under subsection f, what this Trade Secretary was the President. And that is why there
brings about the criminal liability is when the neglect or were so many importations of Concepcion Industries which
refusal to act is dictated by pecuniary interest or pecuniary came in without any payment of customs duties or tariffs
demand by that public officer. Meaning to say, public officer because they were brought in under the Omnibus
was demanding certain amount, and for as long as that Investments Act.
amount was not given, he would not act on the paper
pending before him. X X So Secretary Concepcion has been approving this. And that is
why the complaint that in a matter of short time Concepcion
It is not alone the neglect or the delay. There must be Industries bloated, bigger than San Miguel. Whereas San
evidence to show that, that neglect or delay was brought Miguel has been doing business in the Philippines for
about by a demand for money or by certain pecuniary centuries already. And this group of companies only came out
interest. And that without that, the public officer involved during the Marcos Regime.
would not act on papers pending before him.
The Senate X X X on the Ombudsman. And the Senate
Now also you should note in subsection i, regarding the filing conducted an investigation.
of an application before a board, panel or group requiring the
exercise of discretion, and a public officer who is a member of The defense of Secretary Concepcion was that he divested
that board, panel, or group has financial interest in the himself of interest in the Concepcion Industries. The
enterprise applying before that board, panel, or group. divestment, however, was in favor of his son. So this became
questionable. But he claimed that his son is already of age,
Note here, firstly, the act of the board, panel, or group on has his own family, and therefore, he is legally separated
such application must involve discretion. If it is only from his family. Therefore, this is like a renunciation to a third
ministerial, the subsection will not govern. party.

Next, you take note, a public officer who is a member of that Of course, we cannot accept this. But because the Senate
board, panel, or group has no choice except to renounce jumped on this and cleared him, the Congressmen cannot act

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anymore because the Senate already cleared him. Although Section 13. Suspension and loss of benefits. Any public officer against whom
any criminal prosecution under a valid information under this Act or under
the Senate is not supposed to be the body to act on this. You
the provisions of the Revised Penal Code on bribery is pending in court, shall
see how immoral the looting was handled. be suspended from office. Should he be convicted by final judgment, he shall
lose all retirement or gratuity benefits under any law, but if he is acquitted,
There is clear violation of Section 3i of the Anti-Graft and he shall be entitled to reinstatement and to the salaries and benefits which
he failed to receive during suspension, unless in the meantime administrative
Corrupt Practices Act.
proceedings have been filed against him.

Now under this law, when a public officer is under This provision of the law has been construed to be mandatory
investigation for unexplained wealth amassed in violation of but it is not automatic. In other words, it does not mean that
this law, his bank accounts and those of his wife, his children when an information is already filed with the SB against a
below 18, his nominees, his assignees, and transferees shall public officer that, that public officer may already be
be examined to determine whether there is probable cause suspended by his superior or by the head of the office.
for the investigation against him.
The law requires that the court which is now the SB having
In a case where this Banco Filipino Savings and Mortgage exclusive Jurisdiction for violations of the Anti-Graft and
Bank was the depositary, the bank refused to allow an Corrupt Practices Act must first make a finding that indeed
examination of the records invoking the law on secrecy of there is a valid information filed against the public officer.
bank deposits (RA 1405). So this became an issue that
reached the SC because the bank would not allow the The purpose is to avoid elimination of public officers who do
examination of the records regarding the bank accounts of a not belong to the same political administration running the
ranking public officer who is under investigation for government because on trumped up charges, public officers
accumulated ill gotten wealth. may simply be ousted from his office, if every time they file a
case against a public officer for alleged violation of this law
SC ruled that this examination done pursuant to the provision that public officer can already be suspended out of office.
of the Anti Graft and Corrupt Practices Act should be
regarded as an exception to the prohibition; otherwise the The law requires that the court where the case is filed must
investigation would be useless. find a valid information against the accused.
So although among the exception stated in the law It is the court who will order the suspension. So when an
maintaining secrecy of bank deposits, this examination of information is filed against the public officer with the SB, SB
bank accounts should be considered as an added exception may issue an order to the public officer charged to show
where the bank cannot invoke this law to prevent the cause why he should not be suspended. Or the SB may
examination of the accounts of a public officer who is under schedule the case for a pre-suspension hearing. You have
investigation for the violation of the Anti Graft and Corrupt learned this in Administrative Law. There is such a thing as
Practices Act. the so-called pre-suspension hearing. That before a public
officer may be suspended from office, he should be given the
In other words, there is already a precedent. That is why benefit of due process. He must be heard.
during this impeachment proceedings against Mr. Estrada,
the Equitable Bank at first refused to bring out the records One of the problems given in Remedial Law, I think this was
but they were advised about this ruling that the bank cannot 2003 or 2002, I think the answer is wrong. Because in the
invoke the law on secrecy of bank deposits to prevent any facts given, after the Ombudsman forwarded the information
examination of bank accounts of public officers under with the records of the investigation, the affidavits of the
investigation for violation of the Anti-Graft and Corrupt parties, the SB found that there is a prima facie case against
Practices Act. the accused public officer. And so, the SB issued an order for
suspension of the public officer involved.
So now it is seeded, that law on secrecy of bank deposits
cannot prevent the examination of bank accounts of public The question was whether the order was valid?
officers charged with violation of the Anti-Graft and Corrupt
Practices Act. The panel readily answered valid because suspension under
this law is mandatory. What was overlooked was the
Now under Sec 13 of this law, a public officer who had been pronouncement in the case of Estrella vs CA — this is the case
charged in court to; violation of this law shall be suspended of the former mayor in Makati — that although suspension is
upon a finding by the court of a valid information against him. mandatory, it is not automatic. The court must first
determine that there is merit in the violation charged. For
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this purpose, the public officer accused of the crime must be offender violated the provision of the law and he did so
given the opportunity to be heard. voluntarily or not under duress.

So considering especially the current attitude that the Under subsection e, one of the grounds for the case
employment of a person is his source of livelihood, that you covered thereunder is manifest partiality, evident bad faith
and gross inexcusable negligence, the SC already rule that
cannot deprive him of his livelihood without the benefit of
if the criminal case against the accused was premised on
due process, because that would be tantamount to depriving alleged evident bad faith by way of exception to the rule
him of his life. And this is prohibited under the Constitution. that good faith or lack of criminal intent is not a defense in
crimes mala prohibita, in this particular section under
The public officer must be served with notice to explain why subsection e of section 3, evidence of good faith or lack of
or to show cause why he should not be suspended from criminal intent is a admissible if the case is predicated on
public office. There must be a hearing. He must be given his alleged evident bad faith. This should be considered an
day in court. Only then will the suspension order be valid. exception, otherwise the accused who is charged on the
ground of evident bad faith will not be able to defend
So although the suspension is mandatory, it is not automatic. himself from the prosecution. Although that the violation is
This is a settled jurisprudence on this. So you do not view this a malum prohibitum, exceptionally on that particular
only from one aspect. ground only, that the undue injury was brought about by
evident bad faith, the accused should be allowed to adduce
evidence that he did not act in bad faith, or acted without
When it is already shown that there is merit in the
criminal intent.
accusation, the SB which is now the court exercising exclusive
jurisdiction over violations of the Anti Graft and Corrupt The injury referred in this subsection is material injury. If it
Practices Act will then be issuing the, order of suspension. would be by way of lost earnings that is not covered by the
subsection. Filing a case under this subsection for a
In the case of Libanan, this Congressman. He was ordered purported loss in the nature of moral damages, this is not
suspended by the SB for a violation committed while he was a the material injury purported here. The injury must be
member of the provincial board — Sangguniang tangible or actual and not merely speculated which may or
Panlalawigan. The order came when he was already elected may not really true.
as vice governor. So he claimed he cannot be suspended from
that elective office because the charge for violation of this X X Under subsection F
(f) Neglecting or refusing, after due demand or request, without
X whatever public office is held by the accused when the sufficient justification, to act within a reasonable time on any
order of suspension was issued, he shall be suspended from matter pending before him for the purpose of obtaining, directly
that public office even though it is not in that office where or indirectly, from any person interested in the matter some
pecuniary or material benefit or advantage, or for the purpose
the violation of this law was committed by him. of favoring his own interest or giving undue advantage in favor
of or discriminating against any other interested party.
So it is clear, that the suspension order will not be in respect
of the office where the violation was committed. Suspension Pay attention to the nature of the violation. Neglect or
order will affect the accused in whatever public office he was refusal of a public officer to act on a matter pending before
holding at the time that suspension order was issued, even him without justification and despite repeated demands.
though it is not in that office where the violation was The SC, in this respect, ruled that it is not enough that the
accused-public officer should neglect or refused to act on a
committed. SC noted there is no qualification. Sec 13 says
matter pending before him despite demands from
public office: So any office as long as it is a public office will interested party and without justification. It is of the
bring about his suspension pursuant to the order issued by essence of the violation that the accused-public officer
the SB. must be impelled by pecuniary interest in the matter he is
to act upon. Otherwise, mere neglect or refusal to act on a
The most violated provision in Section 3 is subsection e matter pending before a public officer would only be a
(e) Causing any undue injury to any party, including the Government,
or giving any private party any unwarranted benefits, advantage or
ground for administrative sanction not criminal liability. To
preference in the discharge of his official administrative or judicial bring about criminal liability from the public officer involved,
functions through manifest partiality, evident bad faith or gross there must be proof that the accused refuses or neglects to
inexcusable negligence. This provision shall apply to officers and act on the matter pending before him because of some
employees of offices or government corporations charged with the
grant of licenses or permits or other concessions.
pecuniary interest or demand that he wants to be satisfied.

Violations of RA 3019 are considerably mala probihita. In In subsection I


(i) Directly or indirectly becoming interested, for personal gain, or
crime mala prohibita, the criminal intent or the good faith of having a material interest in any transaction or act requiring the
the offender is not a defense, it is not enough that the approval of a board, panel or group of which he is a member,
and which exercises discretion in such approval, even if he
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votes against the same or does not participate in the action of When a public officer is charged before the SB for violation
the board, committee, panel or group. of RA 3019, the suspension of such public officer is
Interest for personal gain shall be presumed against those mandatory. The SB cannot proceed with the hearing of the
public officers responsible for the approval of manifestly case without issuing an order of suspension for the
unlawful, inequitable, or irregular transaction or acts by the accused-public officer. The suspension, however, is not
board, panel or group to which they belong. automatic. The SB which is the court having exclusive
jurisdiction over violations of the RA 3019 should first
The situation refers to an entity having filed an application assessed the validity of the information filed against the
before a board panel or group composed of public officer to public officer and when there is merit in the prosecution of
approve the application. The provision covers only the accused-public officer shall the court issue an order of
applications requiring the exercise of discretion in the suspension. The suspension is only good for 90 days. On
approval thereof. Any public officer who is a member of that the other hand even a regular RTC or even a MTC can issue
board panel or group to act on the application should resign an order of suspension of a public officer accused for
therefrom or renounce his financial interest in the violation of penal laws involving the duties of his office
enterprise making the application. Otherwise, even if the which do not constitute violation of RA 3019. This is an
public officer which is a member of that board or group inherent prerogative of a court when the court deems it
would vote against the application he would incur a necessary to suspend the accused public officer from
violation of this provision of subsection i. the only way to exercising his public office. The purpose of suspension is to
avoid liability is to resign membership to that board panel preserve the evidence or to safeguard the authenticity of
or group or renounce his interest in the enterprise which integrity of public records.
aspire application for approval involving the exercise of
discretion of that board panel or group.
RA 6713 –code of conduct and ethical standards of public
officials and employees
The approval must involve exercise of discretion, if the
approval is merely ministerial action, the prohibition does
Many of the acts prohibited or penalize under this law are
not apply
also prohibited and penalized under the RPC and in the
Anti-graft and corrupt practices act. But most significant are
Example: in an airport in Cebu city, the board of canvassers
those covered by sections 8 and 9 of this law.
there approving the payment of the amount of the lights
were prosecuted, the SB convicted them but the SC Section 8. Statements and Disclosure. - Public officials and employees
acquitted them because their involvement requires only a have an obligation to accomplish and submit declarations under oath of,
ministerial duty in approving the appropriation of the and the public has the right to know, their assets, liabilities, net worth and
amount which is fixed by some other group or authority in financial and business interests including those of their spouses and of
unmarried children under eighteen (18) years of age living in their
that entity. households.

Under this RA 3019, when a public officer is under (A) Statements of Assets and Liabilities and Financial Disclosure. -
investigation for accumulating or amassing ill-gotten wealth All public officials and employees, except those who serve in an
honorary capacity, laborers and casual or temporary workers,
in violation of this law, the property of the public officer may shall file under oath their Statement of Assets, Liabilities and
be examined including his bank accounts, those of his Net Worth and a Disclosure of Business Interests and Financial
relatives, dummies, associates and family except children Connections and those of their spouses and unmarried children
over 18 yrs old already. In that examination, bank accounts under eighteen (18) years of age living in their households.
are included. In respect of this, take note of the law on The two documents shall contain information on the following:
secrecy of bank deposit (RA1405). When the examination (a) real property, its improvements, acquisition costs,
of bank account is to be undertaken pursuant to an assessed value and current fair market value;
investigation conducted under this law (RA3019), the SC (b) personal property and acquisition cost;
(c) all other assets such as investments, cash on hand or
ruled that the secrecy of bank deposit cannot preclude or in banks, stocks, bonds, and the like;
prevent the examination of bank accounts of the public (d) liabilities, and;
officers under investigation or ill-gotten wealth. Otherwise, (e) all business interests and financial connections.
the very law will be the instrument to defeat the
The documents must be filed:
investigation. Although the law on secrecy of bank deposits (a) within thirty (30) days after assumption of office;
does not expressly include as exception thereto (violation of (b) on or before April 30, of every year thereafter; and
corrupt practices act) necessarily this should be considered (c) within thirty (30) days after separation from the
as an exception against the law prohibiting the examination service.
of bank deposits. All public officials and employees required under this section to
file the aforestated documents shall also execute, within thirty
RA 1405 cannot stand against the investigation an (30) days from the date of their assumption of office, the
examination of accounts against public officer charged with necessary authority in favor of the Ombudsman to obtain from
all appropriate government agencies, including the Bureau of
having amassed or accumulated ill-gotten wealth. Internal Revenue, such documents as may show their assets,
liabilities, net worth, and also their business interests and
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financial connections in previous years, including, if possible, and network as well as other specified statements of
the year when they first assumed any office in the Government. disclosures. The statements of disclosures are:
Husband and wife who are both public officials or employees • Disclosures of such public officers financial
may file the required statements jointly or separately. interest in the government
• Disclosures of the ____ collections of the same
The Statements of Assets, Liabilities and Net Worth and the
Disclosure of Business Interests and Financial Connections public officer in the government
shall be filed by: • Disclosures of his relatives employed in the
government in so far as they are known to him by
(1) Constitutional and national elective officials, with the
national office of the Ombudsman;
the ____
(2) Senators and Congressmen, with the Secretaries of
the Senate and the House of Representatives, Failure of the public officer to comply with this will bring
respectively; Justices, with the Clerk of Court of the about the prosecution under the Anti-graft and corrupt
Supreme Court; Judges, with the Court Administrator;
and all national executive officials with the Office of
practices act.
the President.
(3) Regional and local officials and employees, with the However expressly excluded by this law from filing these
Deputy Ombudsman in their respective regions; statements are:
(4) Officers of the armed forces from the rank of colonel
or naval captain, with the Office of the President, and • Those holding public office in an honorary capacity
those below said ranks, with the Deputy Ombudsman • Laborers
in their respective regions; and • Casual or temporary workers
(5) All other public officials and employees, defined in
Republic Act No. 3019, as amended, with the Civil
Service Commission. The above public officers need not file a statement of
assets and liabilities and networks and even statement of
(B) Identification and disclosure of relatives. - It shall be the duty of disclosure required.
every public official or employee to identify and disclose, to the
best of his knowledge and information, his relatives in the
Government in the form, manner and frequency prescribed by Under section 9, if the public officer involved was elected or
the Civil Service Commission. appointed to a public office whereas he also holds a
position in a private enterprise or he has financial interest
(C) Accessibility of documents. –
(1) Any and all statements filed under this Act, shall be
by way of shareholding and investments in a private
made available for inspection at reasonable hours. enterprise, should there be a conflicting interest between
(2) Such statements shall be made available for copying said private enterprise and the public office which he
or reproduction after ten (10) working days from the assumes, this law requires of him to resign or renounce his
time they are filed as required by law.
(3) Any person requesting a copy of a statement shall be
position in the private enterprise or otherwise his position
required to pay a reasonable fee to cover the cost of in the public office. He is given 30 days after assumption of
reproduction and mailing of such statement, as well public office to divest himself of such interest.
as the cost of certification.
(4) Any statement filed under this Act shall be available
to the public for a period of ten (10) years after
And if he has investments in the private enterprise with
receipt of the statement. After such period, the conflicting interest with the public office he has assumed,
statement may be destroyed unless needed in an he is allowed with a period of 60 days within which to divest
ongoing investigation. himself of his shareholdings or investment in the private
(D) Prohibited acts. - It shall be unlawful for any person to obtain or
enterprise.
use any statement filed under this Act for:
(a) any purpose contrary to morals or public policy; or However, this law likewise expressly excludes the following
(b) any commercial purpose other than by news and from complying from this requirement of divesting
communications media for dissemination to the
general public.
conflicting interest:
• Those who hold the public office in a temporary
Section 9. Divestment. - A public official or employee shall avoid conflicts capacity
of interest at all times. When a conflict of interest arises, he shall resign
from his position in any private business enterprise within thirty (30) days
• Laborers
from his assumption of office and/or divest himself of his shareholdings or • Casuals and temporary workers
interest within sixty (60) days from such assumption.
The requirements of section 8 and 9 are not absolute. The
The same rule shall apply where the public official or employee is a
partner in a partnership.
above public officers are the exceptions

The requirement of divestment shall not apply to those who serve the
Government in an honorary capacity nor to laborers and casual or
temporary workers.

Under section 8, every public officer upon assumption of


public office should file statement of assets and liabilities

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RA 7080 - Plunder plunder, the 2 acts at least that would bring about the
crime must be separately enumerated in each of the 6
The common idea is that if the amount in gross value of the paragraphs. If the 2 acts that brought about no less than
ill-gotten wealth already exceeds or amounted to no less 50M in gross value are both punished under paragraph 1
than Php50,000,000 the crime of plunder is already of section 1, subsection D, that is not a combination. The
committed. THIS IS A WRONG NOTION. combination implies that each of the 2 acts must be
punished under each of the 6 enumerations and not under
Even though the amount accumulated is much more than the same enumeration.
50M in gross value, the act by which the amount is
accumulated determines whether the crime of plunder had So if the amount of no less than 50M was accumulated out
been committed or not. In the case filed by then President of malversation which is found in the 1st enumeration also
Estrada questioning the constitutionality of this law, the SC out of bribery found also in the same enumeration, that will
called attention to the manner of committing the crime of not be a basis for plunder.
Plunder. There are 2 ways mentioned:
• Thru a combination of overt or criminal acts Each of the 2 acts must be provided in different
• Thru a series of overt or criminal acts enumerations. The first act is by malversation, the 2nd act is
kick back from government transaction which is
The acts referred to are enumerated in 6 paragraphs under enumerated under the 2nd enumeration then we have a
subsection D section 1 of this law combination. So if the amount of the ill-gotten wealth under
that combination amounts already to no less than 50M in
Section 1. Definition of Terms - As used in this Act, the term - gross value, then the crime of plunder is committed
e) Ill-gotten wealth means any asset, property, business enterprise
or material possession of any person within the purview of
On the second manner by which the crime may be
Section Two (2) hereof, acquired by him directly or indirectly considered, the law uses merely the word “series”. This
through dummies, nominees, agents, subordinates and/or implies more than 2 acts without reference to the nature of
business associates by any combination or series of the the violation committed. So if the amount of no less than
following means or similar schemes:
2) Through misappropriation, conversion, misuse, or
50M in gross value was accumulated out of 3 acts of
malversation of public funds or raids on the public malversation even though the crime that brought about the
treasury; accumulation is found in one paragraph only of subsection
3) By receiving, directly or indirectly, any commission, D, plunder is already incurred.
gift, share, percentage, kickbacks or any other form
of pecuniary benefit from any person and/or entity in
connection with any government contract or project So we only observe the difference of the acts if it were
or by reason of the office or position of the public under the first manner of committing the crime and that is
officer concerned; because the word uses combination. It must not be the
4) By the illegal or fraudulent conveyance or disposition
of assets belonging to the National Government or
same act but it should be different acts, but if it were a
any of its subdivisions, agencies or instrumentalities series, then it can admit of the same act but it should be no
or government-owned or -controlled corporations and less than 3.
their subsidiaries;
5) By obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other
If the amount although in excess of 50M in gross value was
form of interest or participation including promise of not accumulated in this manner, the crime of plunder is not
future employment in any business enterprise or incurred. The act would be penalized under the Anti-graft
undertaking; and corrupt practices act, the procedure provided in RA
6) By establishing agricultural, industrial or commercial
monopolies or other combinations and/or
3019 will be the one applicable.
implementation of decrees and orders intended to
benefit particular persons or special interests; or In the crime of plunder, the SC has pronounced that the
7) By taking undue advantage of official position, violations are mala inse, not mala prohibita. So the same
authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense
principles observed in respect of crimes under RPC will
and to the damage and prejudice of the Filipino equally apply here because the acts punished hereunder
people and the Republic of the Philippines. are not mala prohibita. That pronouncement by the SC
must have been made because this law provides that the
The SC took note of the word combination which means “to degree of accomplishment of the crime shall be taken into
act at least”. So even though 350M of purported ill-gotten account. When it is degree of accomplishment, we only
wealth was accumulated, if it is by single kick back, the have this in the RPC (attempted, frustrated, consummated).
crime of plunder is not committed. In other words, it is not Moreover the law expressly provides that mitigating and
alone the amount, it is also the manner by which the ill- extenuating circumstances shall be considered in fixing the
gotten wealth was accumulated. penalty. This is true to felonies under the code. In short,
plunder is not a malum prohibitum.
Since the law uses the word combination, reference is
made to the different paragraphs constituting acts of
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This crime prescribes in 20 years from the time the last act It is only when the offender and the offended party are
accumulating ill-gotten wealth was committed and the husband and wife that there is no blood relationship. But the
amount of no less than 50M in gross value is already marriage should be valid to justify the treatment of a crime as
reached. So if the amount involved were accumulated in 5 one of parricide. All others to bring about parricide must be
different acts, during the 1st, 2nd, 3rd and the 4th, no plunder brought about by relationship by blood.
yet, it is when the last act, the 5th act that would already
complete the amount of no less than 50M will the crime of
The blood relationship, however, is limited only to the direct
plunder be considered committed. So the 20 yrs
prescriptive period will start from there not from the 1st, 2nd, line (ascending or descending). Blood relationship in the
3rd, or 4th act. collateral line is not included.

But for purposes of the violation of the Anti-graft and So when a person kills a brother or a sister although of full
corrupt practices act, the prescriptive period is 15 yrs blood, that is not parricide because the relationship is in the
collateral line.
If it was not a violation of the anti-graft and corrupt
practices act, and the act involve is a felony, then the RPC This must be in the direct ascending line or direct descending
will control the prescriptive period. line.

TITLE EIGHT - CRIMES AGAINST PERSONS Also, the relationship between the offender and the offended
party must be legitimate, except when the offender and the
The crimes against persons are of the essence involving offended party are related as parent and child.
destructions of human life or limb. It is only the crime of rape
that is foreign to this. But since the crime of rape had been If the offender and the offended party, although related by
transposed to Title 8 as a crime against persons, the attitude blood and in the direct line are separated by an intervening
about this crime is no longer centered on the gender of the illegitimate relationship, parricide can no longer be
offended party. This is more regarded now as a violation of committed because it sever the continuity of the blood
the person of the victim. That is why the offended party may relationship between the ascendant and the descendant.
be a male, not anymore limited to a female. So the sexual The illegitimate relationship between the child and the
aspect of the crime of rape is only secondary. parent renders all relatives after the child in the direct line to
be illegitimate too.
Under this title, you have different forms of killing with
different designations. You should familiarize yourselves on The only illegitimate relationship that can bring about
the element that makes one crime different from the other. parricide is that between parents and illegitimate children as
the offender and the offended parties.
For instance, first crime here is Parricide.
as between husband and wife, it will only be parricide if the
PARRICIDE marriage is not null and void. If the marriage is null and void
ab initio, the killing cannot be parricide. It will be ordinary
Art. 246. Parricide. — Any person who shall kill his father, mother, or child,
homicide or murder.
whether legitimate or illegitimate, or any of his ascendants, or descendants,
or his spouse, shall be guilty of parricide and shall be punished by the penalty
of reclusion perpetua to death. Also, as between spouses, there is a ruling by the
Supreme Court, that in the case of Muslim husband,
Elements: who under the Muslim code, allowed to marry 4
1. A person is killed wives. Parricide would only arise from the killing of
2. The deceased is killed by the accused the first wife. The killing of the 2nd, 3rd or 4th wife
3. The deceased is the father, mother, or child, cannot be regarded as parricide anymore. The SC
whether legitimate or illegitimate, or a legitimate said that the reason for this is that a catholic
other ascendant or other descendant, or the husband can commit parricide only once. Muslim
legitimate spouse, of the accused. Husband are authorized by law to marry according
to their customs 4 times. If such Muslim husband
It is the blood relation between the offender and the victim. would be liable for more than one parricide
That blood relationship qualifies the crime and, therefore, because he had married much as four times, in
must be alleged in the information charging the accused of effect, he would be penalized for what the law had
Parricide. authorized to do.

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Since parricide is a crime of relationship, if a stranger INFANTICIDE VS. ABORTION


conspired in the commission of the crime, he cannot be held
liable for parricide. His participation would make him liable In the crime of Infanticide, you take this in contradistinction
for murder or for homicide, as the case may be. The rule of with the crime of Abortion.
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 common thinking about abortion is the violent expulsion
the offended party. of the fetus from the maternal womb. Although in law, that is
also abortion, yet, abortion is not limited to that. Even though
INFANTICIDE the offspring was already delivered out of the maternal
womb, if the umbilical cord was not yet cut when the
Art. 255. Infanticide. — The penalty provided for parricide in Article 246 and offspring was killed, that killing will still be abortion because
for murder in Article 248 shall be imposed upon any person who shall kill any
the victim is still a fetus.
child less than three days of age.

If the crime penalized in this article be committed by the mother of the child In Infanticide, the victim must be a person, but less than 3
for the purpose of concealing her dishonor, she shall suffer the penalty of days old.
prision correccional in its medium and maximum periods, and if said crime be
committed for the same purpose by the maternal grandparents or either of
them, the penalty shall be prision mayor. So your knowledge of civil law will come in here. When will a
new born become a person?
Elements: For as long as the new born is not yet a person, the
1. A child was killed by the accused; killing cannot be infanticide. It is only a destruction
2. The deceased child was less than 3 days of age of the fetus. Hence, abortion only.

Now although the killing of a child whether legitimate or In Civil Law, personality is determined by the cutting of that
illegitimate, by a parent is parricide, yet if the child is less umbilical cord. If the newborn even after the umbilical cord
than 3 days old when killed, the crime is not parricide was cut is already living apart from the mother, is already
anymore but infanticide. viable, it will acquire personality.

In the crime infanticide, it is the circumstance of age that For as long as the newborn is attached by the umbilical cord
controls, not anymore that circumstance of blood to the mother, it is a part of the mother because it is drawing
relationship. life from the mother. Hence, if that was destroyed, the crime
is abortion even though the newborn is already out of the
So although the killer may be the parent of the child, if the maternal womb.
child when killed was less than 3 days old, not years, days
only, or 72 hours, the crime is infanticide. This is crucial So if let us say, a woman who is married was raped. Because
because if a mother wanted to kill her child to conceal her of the rape, she became pregnant. On the date that she would
dishonor but she could not do the killing, she had to request deliver her pregnancy, she was attended to by a midwife and
her brother to do it. Now you are asked, what crime or crimes the husband was assisting. As soon as the offspring was
did the mother and her brother committed? brought out of the mother's womb, the husband saw the face
If the child when killed was less than 3 days old, both which is a carbon copy of the rapist. So the husband cannot
the mother and her brother commits infanticide. withstand the face of the boy throughout his life has the face
Here, the relationship is immaterial. So only one of the rapist. So he got a bolo,
information will have to be filed. that killing is abortion because the umbilical cord
which connects the newborn to the mother has not
But if the child was 3 days old or more, the crime of been cut yet.
the mother would be parricide. The crime of her
brother would be murder. Two informations In Civil Law, however, when a conceived child had an intra
therefore will have to be filed. uterine life of less than 7 months, even after the umbilical
cord is cut, he must live for at least 24 hours before he will
acquire personality. So during that 24 hours, he remains as a
fetus. It does not acquire personality yet. It is not a person
yet. The destruction will not be infanticide but abortion.

Now you explain this from the legal sense based on your
learning of how personality is acquired. This is because in

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infanticide, the victim must be a person but less than 3 days DEATH OR PHYSICAL INJURIES INFLICTED UNDER
old. In abortion, the victim is only a fetus. EXCEPTIONAL CIRCUMSTANCES

Abortion is not a crime upon the pregnant woman. Abortion Art. 247. Death or physical injuries inflicted under exceptional circumstances.
— Any legally married person who having surprised his spouse in the act of
is a crime upon the fetus. So if the pregnant woman suffered
committing sexual intercourse with another person, shall kill any of them or
from the felonious act, there will be an added crime both of them in the act or immediately thereafter, or shall inflict upon them
committed upon the pregnant woman aside from the any serious physical injury, shall suffer the penalty of destierro.
abortion. Usually the crimes are complexed where, therefore,
If he shall inflict upon them physical injuries of any other kind, he shall be
in the course of the quarrel the husband lost his temper. He
exempt from punishment.
got hold of an empty family size soft drink bottle, hit die wife
at the buttocks. The wife moaned in pain. She took some These rules shall be applicable, under the same circumstances, to parents
steps and she collapsed. There was massive bleeding and with respect to their daughters under eighteen years of age, and their
seducer, while the daughters are living with their parents.
abortion followed. The wife eventually died. The crime is
Parricide with Unintentional Abortion. Any person who shall promote or facilitate the prostitution of his wife or
daughter, or shall otherwise have consented to the infidelity of the other
In a case where there was a quarrel, violent quarrel, testified spouse shall not be entitled to the benefits of this article.
by the neighbors. Now the quarrel suddenly became silent in
the house. The quarrel died down. So the neighbors thought Elements:
that it was the usual quarrel between the spouses. That after 1. A legally married person, or a parent, surprises his
a violent quarrel they are as sweet as newlyweds. So they just spouse or his daughter, the latter under 18 years of
dismissed this. But in this last quarrel which they heard, they age and living with him, in the act of committing
saw the next day, the wife was hanging in a tree. Obviously it sexual intercourse with another person:
was made to app ear that the wife committed suicide. 2. He or she kills any or both of them, or inflicts upon
any or both of them any serious physical injury in the
So the authorities brought the body of the wife from the tree. act or immediately thereafter;
And this was examined by a medico-legal officer. It was found 3. He has not promoted or facilitated the prostitution
out that the wife had a broken leg. So it was not possible for of his wife or daughter, or that he or she has not
her to go up the tree and commit suicide. consented to the infidelity of the other spouse.

The husband with whom there was a quarrel the night before Now relative to the relationship of husband and wife, you
was hunted by the law enforcers. Eventually, he was arrested. have this exceptional circumstance in Art 247 where a spouse
He was charged for parricide. surprised his better half or worse half committing sexual
intercourse with a paramour or mistress.
The husband claimed that during the quarrel he announced
to his wife that he would leave her forever. And because the If such spouse who surprised the other would kill or inflict
wife had no means of livelihood, she must have become serious physical injuries, the penalty is only destierro. And if
desperate and hung herself. Now since there was nobody the physical injuries are only less serious or slight, then is no
who saw the hanging of the wife, the imputation upon thee penalty prescribed.
husband was only brought about by circumstantial evidence.
For you to be guided on this exceptional circumstance, think
The husband was convicted for the crime of Parricide. And of 2 stages here.
because the death penalty was imposed, the case goes to the
SC on automatic review. Two stages contemplated before the article will apply:
1. when the legally married offender surprised that
The SC centered on the medico-legal report, the necropsy his/her spouse with a paramour or mistress, the
report. SC noted the findings by the medico-legal officer that attack must take place while the sexual intercourse
the victim was two months on the family way. Now because is going on. For this article to apply, the suprising
of this, SC said the crime is not only Parricide. The crime is must take place while the sexual intercourse is going
Parricide with Unintentional Abortion. Being a complex crime, on. If the surprise was before or after the
the maximum penalty for the more serious crime-which is intercourse, no matter how immediate it may be,
death is really to be imposed. So the SC affirmed the death Article 247 does not apply. The offender, in this
penalty. situation, only gets the benefit of mitigating
circumstance that is sufficient provocation
immediately preceding the act.

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2. When the offender kills or inflicts serious physical If it is not a penalty, therefore, the crime of evasion
injury upon the other spouse and/or paramour while of service of sentence will not arise if such legally
in the act of intercourse, or immediately thereafter, married person would violate the deprivation
that is, after surprising. prescribed under Art 87 on the penalty of destierro.
If the legally married person, therefore, would enter
The first stage is the surprising. The second stage is the killing the places specified in the sentence which he is
or inflicting serious physical injuries. prohibited from entering under the destierro or
within the radius of less than 25km therefrom,
Before the exceptional circumstance may be invoked, the ordinarily, there would be an evasion of service of
surprising must have taken place while the sexual intercourse sentence. This is how the penalty of destierro is
between the other spouse and the paramour or mistress was evaded. But in the light of this pronouncement by
still continuing. So if the sexual intercourse between the the SC, that the destierro here is not a punishment,
other spouse and the paramour or mistress had not yet therefore it cannot be evaded.
begun or it had already ended when they were surprised, this
exceptional circumstance is no longer available. In the second stage, which is the killing or the inflicting of
serious physical injuries the provision requires that this be
It is the basis here that the other spouse and the paramour or done while the sexual intercourse was going on or
mistress must have been surprised while the sexual immediately thereafter.
intercourse is going on — no more, no less. This is because of
the reason of the law that when a legally married person The immediately thereafter refers to the killing or the
surprised his or her spouse having sexual intercourse with a inflicting of serious Physical injuries. Do not apply this to the
paramour or mistress, that spouse who surprised the other surprising. If the offended parties were surprised immediately
would be suffering from an instantaneous mental blackout. after the sexual intercourse, the benefit of the exceptional
circumstance does not apply anymore. As I said, that first
So whatever acts he would be committing there would be stage when the accused surprised his or her spouse, the
without reason. So it is considered an act without freedom of sexual intercourse between the spouse and the paramour or
action, without intelligence. And that is why it is the view that mistress must still be going on.
this circumstance is absolutory, no criminal liability. That
there is no crime committed here. In the second stage when the killing or the serious physical
injuries were inflicted, if these were done while sexual
If the sexual intercourse had not yet begun or it is intercourse was taking place, then there is no problem.
already ended, this article is no longer applicable. Because that means the accused surprised the victims or the
We do not have to go on the 2nd stage and discuss offended parties while the sexual intercourse was going on.
this if, in the first place, the first stage is not in
conformity with what is required under the Problem arises when the accused killed or inflicted serious
circumstance. physical injuries when the offended parties are no longer in
sexual intercourse.
The penalty of destierro is prescribed. This is cleared
by the SC that the same is not a penalty but more Two questions arise:
of a prevention of any retaliation from the family of • were they surprised while the sexual intercourse was
the other spouse and/or the paramour or mistress. taking place?
In short, the destierro here is regarded as only a • were they killed or serious physical injuries inflicted
preventive measure. Which, however, is not really immediately after the sexual intercourse?
true because the preventive measures provided
under the RPC (Art 24). And destierro is not These 2 need be answered in the affirmative, otherwise. Art
mentioned there. 247 cannot be invoked.

In the case of People v. Coringcor, however, SC The phrase "immediately thereafter" is relative. It requires
made a pronouncement that destierro here is not a that the accused must still be under the influence of the
penalty but more of a protection of the legally overwhelming outrage that engulfed him or her when he
married person against any retaliation from the surprised the other spouse in sexual intercourse with the
family of the offended spouse and/or that of the paramour or mistress.
paramour or mistress.

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So if the accused is no longer under the influence of that their daughter was borrowed by Abarca's sister who is from
outrage, he is already acting normally. The benefit of that Art Dolores, Samar. So Abarca lost no time to go to Samar. He
cannot be invoked anymore. Because the contemplation here went to the bus terminal that would take him to Samar. But
is that the accused had killed or inflicted serious physical he missed the first trip. So in order not to miss the second
injuries while he is still out of his mental equanimity. trip, he stayed within the bus terminal and was able to take
the second and last trip.
So the word "immediately thereafter" is a relative term. it is
up for you to observe whether at the time of the killing or in Now somewhere along the way the bus bogged down. So
the inflicting of the serious physical injuries, the accused is Abarca had to walk home. He cannot proceed anymore. It
still acting under the so-called mental blackout. If not, the act was then, upon coming home, that he heard animated voices
cannot be benefited by the circumstance anymore. inside the house. Instead of immediately entering the
bedroom, he went atop the cabinets that separates the
In the case of People vs Francisco Abarca, about 60 minutes bedroom from the living room. And from the top he looked
or 1 Hour had transpired between the surprising and the down below. Now his wife saw his face, pushed the
killing. SC gave Abarca the benefit of this exceptional paramour. Paramour was frustrated and ran after Abarca. He
circumstance. Whereas, in an earlier case of People v. even threatened Abarca not to return otherwise he would kill
Gonzales. although about 30 minutes had lapsed between the him.
surprising and the killing, SC ruled that in as much as the
accused had already returned to his work, he must be no So Abarca had to run away, go back to town, borrow a
longer affected by what he saw in the earlier part of the day. firearm. It was not until he was able to borrow an armalite
So that cannot be invoked for purposes of this circumstance did he return. So all these would indicate somehow that he
at the time he killed his wife. must have regained his senses already.

Now in the Abarca case. the accused surprised his wife in But through Justice Sarmiento, SC gave Abarca the benefit of
actual sexual intercourse but the paramour chased him. So Art 247. the decision penned by Justice Sarmiento explained
this is unprecedented in that instead of the husband running that for as long as the circumstance would show that at the
after the paramour, it was the paramour who ran after the time of the killing or inflicting of serious physical injuries, the
husband. So Abarca had to run away because the paramour accused was still suffering from the overwhelming outrage
had a firearm. So Abarca went back to town in Tacloban, that engulfed him or her when he saw the other spouse in
looked for a friend from whom he could borrow a firearm. sexual intercourse, there, is no reason why the benefit of Art
And not until he was able to borrow an armalite did he 247 shall not be accorded to him.
return. When he returned, the wife and the paramour were
no longer in his house. So he looked for the paramour in the It is not the time element that transpired, it is whether he
usual places where he could be found. And he found him was already acting in full possession of his mental faculties or
already playing mahjong. So thereupon, he shouted at the he is still under the influence of the outrage.
other players, SCRAM! And he fired at the paramour from
behind. The paramour was hit with 4 bullets and died The circumstances mentioned by Justice Sarmiento was that
instantaneously. the outrage was continuing even when he went from house
to house of his friends. He was insistent to secure a firearm
The trial court in fact did not give Abarca the benefit of this precisely because that burning anger in him is still there. And
exceptional circumstance because of the time that had he returned, and even looked for the paramour in the places
transpired indicative that Abarca was already in possession of where he usually hung around precisely because the outrage
his sound mind. Because he had to go from one house to continues.
another borrowing a firearm.
Now for as long as that outrage continues to hound the
But the SC gave Abarca the benefit of Art 247 presumably offender, there is no reason why he should not be given the
because they pitied him since he just came from the taking of benefit of Art 247. That is the philosophy behind this article.
the Bar exams. He was here in Manila preparing for the Bar And there is no reason to deny him the circumstance.
when his wife engaged in extra-marital relations.
Abarca, however, was held liable for reckless imprudence
Abarca was a law graduate. He reviewed for the Bar in resulting in physical injuries because when he fired at the
Manila, took the Bar, and immediately rushed home because paramour, behind the wall of that room, there was a man and
he wanted to see his only child, a daughter. When he arrived a woman on bed.
home, the daughter was not there. The wife told him that

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And they were the ones hit by the bullets that went through MURDER
the body of the paramour. So as far as the paramour is
concerned, Art 247 applies. As far as those two behind the Art. 248. Murder. — Any person who, not falling within the provisions of
Article 246 shall kill another, shall be guilty of murder and shall be punished
wall are concerned, Abarca was regarded to have acted with
by reclusion temporal in its maximum period to death, if committed with any
reckless imprudence in not considering the possibility that of the following attendant circumstances:
there are other people on the other side of the room. This is 1. With treachery, taking advantage of superior strength, with the
sensible because if Abarca was acting out of the fury, you aid of armed men, or employing means to weaken the defense or
of means or persons to insure or afford impunity.
cannot expect him to be examining first before firing.
2. In consideration of a price, reward, or promise.
3. By means of inundation, fire, poison, explosion, shipwreck,
So clearly the decision was to accommodate Abarca without stranding of a vessel, derailment or assault upon a street car or
however freeing him from liability for the two who were locomotive, fall of an airship, by means of motor vehicles, or with
the use of any other means involving great waste and ruin.
seriously wounded. For these two, he was held liable only for
4. On occasion of any of the calamities enumerated in the preceding
physical injuries although the prosecutor charged him for paragraph, or of an earthquake, eruption of a volcano, destructive
frustrated murder. SC ruled there is no intent to kill and it cyclone, epidemic or other public calamity.
cannot be qualified by any aggravating circumstance since 5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the
under Art 247, there is no felony committed, at most, this is
suffering of the victim, or outraging or scoffing at his person or
only the result of failure to anticipate the possible injury that corpse.
may be caused. Hence, brought about only by negligence or
reckless imprudence. Elements:
1. A person was killed;
Now this was considered as lax because the accused was a 2. Accused killed him;
Bar reviewee. He wanted to become a lawyer. He found 3. The killing was attended by any of the following
himself to be one who is lawless. He has been convicted. But qualifying circumstances:
then the conviction will not involve moral turpitude. So if he a. With treachery, taking advantage of
wants to take the Bar exams again, he can take it. superior strength, with the aid or armed
men, or employing means to waken the
Now incidentally about this exceptional circumstance under b. defense, or of means or persons to insure
Art 247, the parents also are given this benefit if they would or afford impunity;
kill a daughter surprised under the same circumstances c. In consideration of a price, reward or
having sexual intercourse in the parental home with a lover promise;
or seducer. d. By means of inundation, fire, poison,
explosion, shipwreck, stranding of a vessel,
The daughter must be below 18 so as to be under parental derailment or assault upon a railroad, fall of
authority here. However, it is not the disregard of the an airship, by means of motor vehicles, or
parental authority that would give the parent the benefit of with the use of any other means involving
the exceptional circumstance. It is the fact of indiscretion on great waste and ruin
the part of the daughter to have the sexual intercourse in the e. On occasion of any of the calamities
parental home. If, therefore, this was committed not in the enumerated in the preceding paragraph, or
home of the parents, the benefit of Art 247 cannot be of an earthquake, eruption of a volcano,
invoked by the parents. It is regarded as the reason for giving destructive cyclone, epidemic, or any other
the parents the exceptional circumstance because the public calamity;
daughter had defied, demeaned, or dishonored the respect f. With evident-premeditation;
due the parental home, or just the parental authority. g. With cruelty, by deliberately and inhumanly
augmenting the suffering of the victim, or
So if the intercourse was done not in the parental home, do outraging or scoffing at his person or
not apply the benefit of the article to the parents. corpse.
h. The killing is not parricide or infanticide.
It is because of the disgrace, the dishonor to the parental
home that is considered as the reason that made the parents Now in the crime of Murder, more important here, the killing
furious against the daughter. would have been homicide but attended by any of the
aggravating circumstances mentioned in Art 248.
If this was committed in the boarding house of the latter, the
parents cannot invoke the benefit of the article. About this crime of murder, the common issue in Bar
problems is where free is used.
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In order that the killing with the use of fire may bring about So the High Court said there is no indication on record that
the crime of murder, the offender must be acting with intent the two committed the acts with intent to kill. Although it
to kill in using the fire. was fire that caused the death, the aggravating circumstances
that will qualify a killing from homicide to murder must be
So if the fire was used in a jest or as a joke and the victim was attended by intent to kill. This is correct.
burned to death, the killing would only be reckless
imprudence resulting to homicide or simply homicide but not The thinking that just because any of these circumstances
murder. attended the crime it will already be murder. These
circumstances must have been resorted to precisely with
in the case of People vs Pugay and Samson, SC through intent to kill. If these are only incidental, that will not qualify
Justice Makaraig ruled on this. In this case, the accused has a the killing to murder. It may only be appreciated as generic.
ward who is a retarded boy. They are the ones taking care of
the victim as their ward. With cruelty, by deliberately and inhumanly augmenting the
suffering of the victim, or outraging or scoffing at his person
Now during a town fiesta, there were merry making. The two or corpse.
were intoxicated with the local wine called tuba. In the
evening, they were roaming at the place where there were Now another circumstance under Art 248, you have here in
carnival rides because it was town fiesta. There was music par 6, cruelty.
along the carnival rides so they were dancing there. They saw
their ward. They called on him to dance. The ward being a Note that in that paragraph, aside from cruelty, you have
retardate simply danced without inhibitions. People gathered there another circumstance where the offender had scoffed
around happy. at the person or corpse of the victim. (SCOFFING)

Now while in that situation, Pugay out of extreme happiness Between cruelty and this circumstance you have there the
simply picked up a can containing liquid, splashed it over the disjunctive word "or". Hence, the SC considered this as 2
body of the ward by way of a Joke. It turned out the liquid separate circumstances that would qualify a killing to murder.
was gasoline being used by the carnival rides to fuel the
motor. In a case where the accused was charged with murder
qualified by cruelty. The information alleged the cruelty as
The other fellow, Samson, saw a thread while the ward was chopping off the head of the victim. The trial court convicted
dancing and he got out his lighter and lighted the thread. In a the accused for murder. The accused appealed because there
moment, the ward became a human torch. The two became was no evidence adduced that the victim was still alive when
frantic, they got water and used water on him. The more the his head was chopped off the body. So he claimed that he
flames grew intense. There was one who pushed the ward should only be liable for homicide.
down and doused him with sand. Only then was the fire put
out. But the ward suffered already third degree burns. On scrutiny of the records, SC agreed that cruelty should not
Eventually he died. be appreciated as qualifying circumstance to murder because
for cruelty to be appreciated, there must be evidence that
The two were prosecuted for murder. They were convicted by the victim was still alive when the supposed cruel wounds
the trial court. were inflicted. Beyond that, it must be shown that the
accused inflicted the cruelty by other acts while enjoying
On review, SC ruled Pugay who poured the liquid over the seeing the victim suffer slowly but gradually while in pain.
body of the victim may only be held liable for reckless
imprudence resulting to homicide because he failed to see or So the High Court said (really there is no) cruelty should not
provide for the precautions that the liquid being gasoline is be appreciated but under this paragraph it is not only cruelty
highly flammable. He should not have used his even as a joke. that may qualify a killing to murder.

On the other hand, the one who lighted was made liable for However in a case like this, where the prosecution
homicide because the records do not show intent to kill. failed to proved that the victim is still alive when the
There was no reason for them to desire the death of the ward supposed cruel wounds were inflicted, the
because the ward was their errand boy. In fact, they are the allegation in the information only sub-mentioned
one rearing the ward. They have loved him, stayed with about acts unnecessary to the killing which the
them. accused committed against the corpse of the

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victim. Cutting off the extremities and decapitating death because of the arson, the crime will only be
the body of the victim. This was construed by the SC arson because the pertinent article of the RPC only
to come under 2nd circumstance in the same quailed the penalty to mandatory death if a person
paragraph 6 of Art 248. And the SC called attention died as a consequence of the arson. The arson
to the conjunctive word “or” scoffing the person or where death resulted is only considered as a single
corpse of the offended party. This stands as a indivisible offense and therefore death can only
separate qualifying circumstance to cruelty. So qualify the penalty to a higher degree. But because
even the absence of evidence to show that the of RA 9346, death penalty cannot be imposed. At
cruelty was resorted to while the victim is still alive, if most, in such a case, where the arson brought
however, after the killing, the offender resorted to about the death of the person as a consequence
acts that would insult or scoff the corpse of the thereof, the penalty will be reclusion perpetua
victim, like decapitating the body of the victim; without the legibility for parole.
cutting the arms and legs of the victim. These are
acts which would qualify a killing from homicide to The distinguishing point whether it will be arson or
murder. The SC regarded the act unusual because murder is the primordial criminal intent of the
the killing is already consummated and yet offender in making use of fire. If the offender
circumstance brought about after the killing will still resorted with the use of fire in order to kill a person,
qualify the killing to murder, instead of only the crime will be murder because the criminal
homicide. But the SC, clarified this that, normally, a intent is not to destroy property by burning, but to
person who would kill his adversary will somehow take the life of the intended victim.
commiserate with the victim who already lose his
life. So respect is accorded to one who is already On the other hand, if the criminal intent of the
dead. If therefore the offender after the killing his offender was to destroy property making use of fire,
adversary would not respect the body of the victim but the offender was not aware that there was an
but instead subject this to some acts that would infant inside the house when he set fire the house,
humiliate or dishonor the corpse of the victim, it the crime is arson. The fact that there was a person
would only show that the accused is one who is a burned to death would only call for the penalty of
cold-blooded killer; one who is highly criminally death.
perverse. And this justifies the higher imposition of a
penalty for the crime which is qualified as murder. Relative to this, in the same paragraph where the
manner of killing is carried out by the use of fire, we
Illustration: when 2 persons engaged in combat, have there also the use of explosives. In the light of
one killed the other. After that point, the crime is the new firearms law, a specific provision included
homicide. If the successful killer who killed his there that a use of unlicensed firearm and
adversary got a can of gasoline, pour it on the face homicide or murder will only be an aggravating
of the victim so that the victim will not be identified. circumstance. The language of the law does not
That act is an act of humiliating the corpse of the refer to the circumstance as qualifying and
victim. That is an act of scoffing and that would therefore those who were indicted after the new
qualify the killing to murder under the second part firearms law to effect considered that art 248 of the
of par 6 of art 248. RPC had already been modified by the new
firearms law, where the use of unlicensed firearm
By means of inundation, fire, poison, explosion, shipwreck, and/or unauthorized or improvised explosive will not
stranding of a vessel, derailment or assault upon a street car be murder anymore. The SC rejected this view. The
or locomotive, fall of an airship, by means of motor vehicles, SC said that it is never the intention of the new
or with the use of any other means involving great waste and firearms law to modify the crime of murder. So the
ruin. use of the explosives remains as a circumstance to
qualify a killing to murder. But in view of the fact
A case decided by the SC in 2010, on the crime of that the explosives under the new firearms law are
whether it should be arson or murder or arson with those illegitimately manufactured, those which are
homicide because the person died as a unlawfully made, the same will only qualify murder if
consequence of the arson. the explosive used was under that circumstance
that it is not legitimately produced.
Currently, there is no more complex crime of arson
with homicide. Even when a person is burned to
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So parallel to the use of unlicensed firearm, if the 5. When several assailants not acting in conspiracy
explosive used is one that is lawfully manufactured, inflicted wounds on a victim but it cannot be
it will not qualify the killing to murder because that is determined who inflicted which would which caused
simply an ordinary means of carrying out the killing. the death of the victim, all are liable for the victim's
It would qualify the killing into murder if the death.
explosive used is unlawfully manufacture or
produced. Note that while it is possible to have a crime of homicide
through, reckless imprudence, it is not possible to have a
HOMICIDE crime of frustrated homicide through reckless imprudence.

Art. 249. Homicide. — Any person who, not falling within the provisions of ABORTION
Article 246, shall kill another without the attendance of any of the
circumstances enumerated in the next preceding article, shall be deemed
Art. 256. Intentional abortion. — Any person who shall intentionally cause an
guilty of homicide and be punished by reclusion temporal.
abortion shall suffer:
1. The penalty of reclusion temporal, if he shall use any violence
Elements upon the person of the pregnant woman.
1. A person was killed; 2. The penalty of prision mayor if, without using violence, he shall
act without the consent of the woman.
2. Offender killed him without any justifying
3. The penalty of prision correccional in its medium and maximum
3. Offender had die intention to kill, which is periods, if the woman shall have consented.
presumed;
4. The killing was not attended by any of the qualifying Acts punished:
circumstances of murder, or by that of parricide or 1. Using any violence upon the person of the pregnant
infanticide. woman;
2. Acting, but without using violence, without the
Homicide is the unlawful killing of a person not constituting consent of the woman. (By administering drugs or
murder, parricide or infanticide. beverages upon such pregnant woman without her
consent.)
Distinction between homicide and physical injuries; 3. Acting (by administering drugs or beverages),
with the consent of the pregnant woman.
In attempted or frustrated homicide, there is no intent to kill
Elements:
In physical injuries, there is none. However, if as a result of 1. There is a pregnant woman;
the physical injuries inflicted, the victim died, the crime will 2. Violence is exerted, or drugs or beverages
be homicide because the law punishes the result, and not the administered, or that the accused otherwise acts
intent of the act. upon such pregnant woman;
3. As a result of the use of violence or drugs or
The following are holdings of the Supreme Court with respect beverages upon her or any other act of the accused,
to the crime of homicide: the fetus dies, either in the womb or after having
1. Physical injuries are included as one or the essential been expelled therefrom;
elements of frustrated homicide. 4. The abortion is intended.
2. If the deceased received two wounds from 2 persons
acting independently of each other and the wound Art. 257. Unintentional abortion. — The penalty of prision correccional in its
inflicted by either could have caused death, both of minimum and medium period shall be imposed upon any person who shall
cause an abortion by violence, but unintentionally.
them are liable for the death of the victim and each
of than is guilty of homicide.
Elements
3. If the injuries were mortal but were only due to
1. There is a pregnant woman;
negligence, the crime committed will be serious
2. Violence is used upon such pregnant woman without
physical injuries through reckless imprudence as the
intending an abortion;
element of intent to kill in frustrated homicide is
3. The violence is intentionally exerted;
incompatible with negligence or imprudence.
4. As a result of the violence, the fetus dies, either in
4. Where the intent to kill is not manifest, the crime
the womb or after having been expelled therefrom.
committed has been generally considered as
physical injuries and not attempted or frustrated
Unintentional abortion requires physical violence inflicted
murder or homicide.
deliberately and voluntarily by a third person upon the
person of the pregnant woman. Mere intimidation is not
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enough unless the degree of intimidation already


approximates violence. Art. 259. Abortion practiced by a physician or midwife and dispensing of
abortives. — The penalties provided in Article 256 shall be imposed in its
maximum period, respectively, upon any physician or midwife who, taking
If the pregnant woman aborted because of intimidation, the advantage of their scientific knowledge or skill, shall cause an abortion or
crime committed is not unintentional abortion because assist in causing the same.
there is no violence; the crime committed is light threats.
Any pharmacist who, without the proper prescription from a physician, shall
dispense any abortive shall suffer arresto mayor and a fine not exceeding
If the pregnant woman was killed by violence by her husband, 1,000 pesos.
the crime committed is the complex crime of parricide with
unlawful abortion. Elements:
Questions & Answers 1. There is a pregnant woman who has suffered an
abortion;
A pregnant woman decided to commit suicide. She jumped 2. The abortion is intended;
out of a window of a building but she landed on a passerby. 3. Offender, who must be a physician or midwife,
She did not die but an abortion followed. Is she liable for caused or assisted in causing the abortion;
unintentional abortion? 4. Said physician or midwife took advantage of his or
No. What is contemplated in unintentional abortion her scientific knowledge or skill
is that the force or violence must come from
another. If it was the woman doing the violence If a physician to save the life of the mother produces the
upon herself, it must be to bring about an abortion, abortion, there is no liability. This is known as a therapeutic
and therefore, the crime will be intentional abortion. abortion. But abortion without, medical necessity to warrant
In this case where the woman tried to commit it is punishable even with the consent of the woman or her
suicide, the act of trying to commit suicide is not a husband.
felony under the Revised Penal Code. The one
penalized in suicide is the one giving assistance and Question & Answer
not the person trying to commit suicide.
What is the liability of a physician who aborts the fetus to
If the abortive drug used in abortion is a prohibited drug or save the life of the mother?
regulated drug, what are the crimes committed? None. This is 2 case of therapeutic abortion which is
The crimes committed are: done out of a scare of necessity. Therefore, the
1. Intentional abortion; and requisites under Article II, paragraph 4 of the
2. violation of the Comprehensive Dangerous Revised Penal Code must be present. There must be
Drugs Act of 2002 (RA 9165). no other practical or less harmful means of saving
the life of the mother to make the killing justified.
Art. 258. Abortion practiced by the woman herself of by her parents. — The
penalty of prision correccional in its medium and maximum periods shall be
imposed upon a woman who shall practice abortion upon herself or shall Abortion is penalized as intentional or unintentional.
consent that any other person should do so.
Now do not think that unintentional abortion is the product
Any woman who shall commit this offense to conceal her dishonor, shall
of culpa. Unintentional abortion is also committed through
suffer the penalty of prision correccional in its minimum and medium
periods. dolo.

If this crime be committed by the parents of the pregnant woman or either The physical violence applied upon the person of the
of them, and they act with the consent of said woman for the purpose of
pregnant woman must be intentional. And that physical
concealing her dishonor, the offenders shall suffer the penalty of prision
correccional in its medium and maximum periods. violence is the one that resulted to an abortion. What is
absent is only the specific intent to abort.
Elements:
1. There is a pregnant woman who has suffered an If the abortion was the result of reckless imprudence, the
abortion; crime is not unintentional abortion the crime is Reckless
2. The abortion is intended; Imprudence resulting in Unintentional Abortion.
3. Abortion is caused by:
a. The pregnant woman herself; So if a pregnant woman was riding in a tricycle that was
b. Any other person, with her consent; or bumped from behind by a reckless Jeepney driver. She was
c. Any of her parents, with her consent for the thrown out of the tricycle, abortion followed. The crime will
purpose of concealing her dishonor. be Reckless Imprudence resulting in Unintentional Abortion
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with Physical Injuries upon the mother if the mother suffered victim. The law proceeds on this premise because
physical injuries. the particular killer cannot be ascertained.

DEATH CAUSED IN A TUMULTUOUS AFFRAY If that person or persons, who inflicted serious
physical injuries upon the victim who was found
Art. 251. Death caused in a tumultuous affray. — When, while several dead during the tumultuous affray, cannot be
persons, not composing groups organized for the common purpose of
assaulting and attacking each other reciprocally, quarrel and assault each
ascertained also then next in line to answer for this
other in a confused and tumultuous manner, and in the course of the affray crime is the person or persons who may have
someone is killed, and it cannot be ascertained who actually killed the employed any form of violence upon the victim.
deceased, but the person or persons who inflicted serious physical injuries
can be identified, such person or persons shall be punished by prision mayor.
And if this person or persons (who may have
If it cannot be determined who inflicted the serious physical injuries on the employed any form of violence upon the victim)
deceased, the penalty of prision correccional in its medium and maximum cannot be identified also, nobody will answer for
periods shall be imposed upon all those who shall have used violence upon the death of the victim.
the person of the victim.

Here, we notice that if the circumstance would


Elements:
warrant this crime, not everybody who took part in
1. There are several persons;
the tumultuous affray would be accused of this
2. They do not compose groups organized for the
crime. Observed the article that only the person or
common purpose of assaulting and attacking each
persons who may have inflicted serious physical
other reciprocally;
injuries upon the victim who will be accused of this
3. These several persons quarreled and assaulted
crime. The other who took part in the tumultuous
one another in a confused and tumultuous manner;
affray but does not come within the offender who
4. Someone was killed in the course of the affray;
will be charged of this crime, will only be
5. It cannot be ascertained who actually killed the
prosecuted for disturbance of the public order. They
deceased;
will not be prosecuted for a crime of death caused
6. The person or persons who inflicted serious physical
by tumultuous affray.
injuries or who used violence can be identified.
When there is a tumultuous affray, conspiracy is out. So in a
Tumultuous affray simply means a commotion in a
situation like this, conspiracy cannot be appreciated.
tumultuous and confused manner, to such an extent that it
Conspiracy cannot co-exist with a tumultuous affray.
would not be possible to identify whom the killer is if death
results, or who inflicted the serious physical injury, but the
Understand, however, the idea of a tumultuous affray is that
person or persons who used violence are known.
there is no organized group formed to attack each other. It is
simply a free for all where one simply hits anybody without
The crime of Death Caused in a Tumultuous Affray is not
any specific adversary. It is called a rumble.
based on the tumultuous affray. The crime is brought about
by the fact that the particular killer cannot be ascertained or
So if you have one group, another group they attack each
identified. And that is precisely because there was a
other, if they are formed purposely to attack each other, it
tumultuous affray when the killing took place.
will not be a tumultuous affray. The liability of those in one
group will be collective insofar as the crime inflicted on the
Now if despite the tumultuous affray, the particular killer can
other group.
be ascertained, the crime committed is Homicide or Murder,
not Death Caused in a Tumultuous Affray.
So tumultuous affray presupposes that they are not
organized. They simply engaged in what you call labo-labo. If
You will only impute the crime if the particular killer cannot
that is not the nature, do not apply this article.
be ascertained. And that is precisely because of the
tumultuous affray.
PHYSICAL INJURIES CAUSED IN A TUMULTUOUS AFFRAY
The one who will answer for the crime is not the Art. 252. Physical injuries inflicted in a tumultuous affray. — When in a
killer. The one who will answer for the crime is the tumultuous affray as referred to in the preceding article, only serious
person or persons who inflicted physical injuries physical injuries are inflicted upon the participants thereof and the person
upon the victim because the law considers that it is responsible thereof cannot be identified, all those who appear to have used
violence upon the person of the offended party shall suffer the penalty next
his/their act that brought about the death of the lower in degree than that provided for the physical injuries so inflicted.

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When the physical injuries inflicted are of a less serious nature and the
person responsible therefor cannot be identified, all those who appear to
So here what is necessary that you should give attention to,
have used any violence upon the person of the offended party shall be
punished by arresto mayor from five to fifteen days. the initiative to end his life must come from the victim who
wanted to end his life.
Elements:
1. There is a tumultuous affray; A problem was given in the Bar exams before on this point
2. A participant or some participants thereof suffered where the head of the family was bedridden in the hospital.
serious physical injuries or physical injuries of a less The family was feeling already the burden of maintaining him
serious nature only; at the hospital. So the family met to discuss what they should
3. The person responsible thereof cannot be identified; do because they are slowly being driven to poverty by the
4. All those who appear to have used violence upon the exorbitant hospital bills.
person of the offended party are known.
So in that gathering of the members of the family, they
The important thing you should notice here, you can only arrived at a consensus that their father be laid to rest. So they
have this crime if the physical injuries inflicted are serious or have to decide who will effect that. So they started drawing
less serious. lots — who will be able to pull the bigger stick will carry out
the means to put their father to rest. It was the son.
If the physical injuries resulting in the tumultuous affray is
slight, that is not included in the crime, because slight And they then went to the hospital to visit their father. After
physical injuries are inherent in a tumultuous affray. The kissing their father and bidding him goodbye, the son pulled
offended party is himself to blame for participating in a the tube connecting the father to the oxygen tank. In a little
tumultuous affray. So only when the physical injuries inflicted while, the father started dying. He died.
are serious or less serious will this bring about this crime.
What was the crime committed, if any?
The crime will be imputed to the person or persons who Now that is not giving assistance to suicide because
employed any form of violence upon the victim. And if that the father never intimated his desire to end his life.
person cannot be identified or ascertained, nobody will
answer for the crime. In this crime of Art 253, it must be on the part of the
person was put to death due the initiative to end his
GIVING ASSISTANCE TO SUICIDE life in a determined manner must come or must
have originated.
Art. 253. Giving assistance to suicide. — Any person who shall assist another
to commit suicide shall suffer the penalty of prision mayor; if such person So in this problem given in the Bar, the crime of
leads his assistance to another to the extent of doing the killing himself, he
Parricide was committed because the act carried out
shall suffer the penalty of reclusion temporal. However, if the suicide is not
consummated, the penalty of arresto mayor in its medium and maximum the killing. All the others who are co-conspirators
periods, shall be imposed. will be criminally liable, because they unanimously
decided to put their father to death.
Acts punished:
1. Assisting another to commit suicide, whether the If a man for instance is courting a lady for quite
suicide is consummated or not; sometime. Then the lady told him that she cannot
2. Lending his assistance to another to commit suicide possibly like him. This fellow invited his friend for a
to the extent of doing the killing himself. drink and he said that there is no more reason for
him to live, he wanted to end his life. And his friend
You also have here the crime of Giving Assistance to Suicide. said “I think so”. He asked his friend to accompany
him to get on top of a building and from there he
When this was asked in the Bar, the examinees were also will jump down below. They went up and he ask his
asked what is euthanasia. Is this penalized under the RPC? friend to push him. But his friend said, “you just
jump”. But such fellow is afraid to jump, that means
Now euthanasia is mercy killing where the offended party is that he is not determined to end his life.
suffering from terminal illness or terminal injuries. This is If his friend pushed him, he will be the one to
included in our crime of Giving Assistance to Suicide because answer for homicide or at least suffer the
here it is not required that the victim of this killing be penalty for homicide
suffering from some terminal illness or some terminal
injuries.

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DUEL classification of the crime is on the seriousness of the


injuries inflicted.
Art. 260. Responsibility of participants in a duel. — The penalty of reclusion
temporal shall be imposed upon any person who shall kill his adversary in a
duel.
Where the determination is whether the physical
injuries inflicted are slight or less serious, you
If he shall inflict upon the latter physical injuries only, he shall suffer the consider both the healing duration of the wound
penalty provided therefor, according to their nature. and the period of incapacity from labor of which
In any other case, the combatants shall suffer the penalty of arresto mayor,
the offended party was deprived. If any of these
although no physical injuries have been inflicted. (period of incapacity from labor and period of
medical attention required) lasted beyond 9 days,
The seconds shall in all events be punished as accomplices. the crime is less serious physical injuries.
Art. 261. Challenging to a duel. — The penalty of prision correccional in its
minimum period shall be imposed upon any person who shall challenge To be considered as slight physical injuries, both the
another, or incite another to give or accept a challenge to a duel, or shall period of incapacity from labor and period of
scoff at or decry another publicly for having refused to accept a challenge to medical attention required, should not go beyond 9
fight a duel.
days.
Now after this, you have the crime of Duel — responsibility of
If we are to determine whether the physical injuries
participants in a duel, challenging to a duel. You disregard this
are serious or less serious, we should note that under
crime. The duel contemplated here is a classical duel. This is
the articles here that the period of medical
no longer carried out at present. The duel contemplated here
treatment required by the wound is not taken into
is one which is attended by seconds and there is a referee to
account. What is taken into account only is the
administer the duel. Without this, it is not a classical duel and
period of incapacity from labor. To be considered
the provisions of the RPC will not apply.
serious that period should go beyond 30 days. If
that period does not go beyond 30 days, even
In a case where a neighbor had a quarrel with another. So he
though the medical treatment continued for
armed himself with a bolo, went by the house of his
months, the crime is only less serious physical injuries.
adversary, and there calling his adversary to come out of the
In other words, the predicate we use in the RPC for
house, come down, to see who is the better man between
them, and see whose intestines would come out. The fellow classifying the injuries as less serious, slight or serious
are not uniform.
who was being challenged to a duel simply called for police
assistance and the one who was making the challenge was
arrested. Because he was making a challenge to a duel, he There is one injury here, where we do not consider
was charged of the crime of Challenging to a Duel. at all the duration of incapacity from labor that the
offended party may have suffered and also the
The trial court convicted the fellow for this crime. But on during of medical treatment required for the
appeal, SC said it cannot be a crime of challenging to a duel wound, that is where the physical injuries inflicted
because this duel under the Code is a classical duel where brought about an ugliness on the offended party.
there are seconds who stipulate on the terms and conditions This is what known in law as a legal deformity.
of the duel, the instruments that would be used or the
Art. 262. Mutilation. — The penalty of reclusion temporal to reclusion
weapons that would be used. perpetua shall be imposed upon any person who shall intentionally mutilate
another by depriving him, either totally or partially, or some essential organ
The crime committed in this case is Grave Coercion, not of reproduction.
challenging to a duel
Any other intentional mutilation shall be punished by prision mayor in its
medium and maximum periods.
So although you have that crime there of challenging to a
duel, that is not the crime because the duel referred to there Acts punished:
is a classical duel, not just a combat between two persons. 1. Intentionally mutilating another by depriving him,
either totally or partially, of some essential organ for
PHYSICAL INJURIES reproduction:

the nature of this crime abhor the stages. It cannot ELEMENTS


be committed in the attempted or frustrated a. There be a castration, that is, mutilation of
stages. Only consummated because the organs necessary for generation, such as
the penis or ovarium;
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b. The mutilation is caused purposely and


The provisions of the preceding paragraph shall not be applicable to a parent
deliberately, that is, to deprive the
who shall inflict physical injuries upon his child by excessive chastisement.
offended party of some essential organ for
reproduction How committed
1. By wounding;
2. Intentionally making other mutilation, that is, by 2. By beating;
lopping or clipping off any part of the body of the 3. By assaulting; or
offended party, other than the essential organ for 4. By administering injurious substance.
reproduction, to deprive him of that part of his body.
In one case, the accused, while conversing with the offended
Mutilation is the lopping or clipping off of some part of the party, drew the latter's bolo from its scabbard. The offended
body. party caught holds of the edge of the blade of his bolo and
wounded himself. It was held that since the accused did not
The intent to deliberately cut off the particular part of the wound, beat or assault the offended party, he cannot be
body that was removed from the offended party must be guilty of serious physical injuries.
established. If there is no intent to deprive victim of particular
part of body, the crime is only serious physical injury. Serious physical injuries:
1. When the injured person becomes insane, imbecile,
The common mistake is to associate this with the impotent or blind in consequence of the physical
reproductive organs only. Mutilation includes any part of the injuries inflicted:
human body that is not susceptible to grow again. 2. When the injured person —
a. Loses the use of speech or the power to
If what was cut off was a reproductive organ, the penalty is hear or to smell, or loses an eye, a hand, a
much higher than, that for homicide. foot, an arm, or a leg;
b. Loses the use of any such member; or
This cannot be committed although criminal negligence. c. Becomes incapacitated for the work in
which he was theretofore habitually
Art. 263. Serious physical injuries. — Any person who shall wound, beat, or
assault another, shall be guilty of the crime of serious physical injuries and engaged, in consequence of the physical
shall suffer: injuries inflicted;
1. The penalty of prision mayor, if in consequence of the physical 3. When the person injured —
injuries inflicted, the injured person shall become insane,
a. Becomes deformed; or
imbecile, impotent, or blind;
2. The penalty of prision correccional in its medium and maximum b. Loses any other member of his body; or
periods, if in consequence of the physical injuries inflicted, the c. Loses the use thereof; or
person injured shall have lost the use of speech or the power to d. Becomes ill or incapacitated for the
hear or to smell, or shall have lost an eye, a hand, a foot, an arm,
performance of the work in which he was
or a leg or shall have lost the use of any such member, or shall
have become incapacitated for the work in which he was therefor habitually engaged for more than 90 days in
habitually engaged; consequence of the physical injuries
3. The penalty of prision correccional in its minimum and medium inflicted,
periods, if in consequence of the physical injuries inflicted, the
4. When the injured person becomes ill or
person injured shall have become deformed, or shall have lost any
other part of his body, or shall have lost the use thereof, or shall incapacitated for labor for more than 30 days (but
have been ill or incapacitated for the performance of the work in must not be more than 90 days), as a result of the
which he as habitually engaged for a period of more than ninety physical injuries inflicted.
days;
4. The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period, if the physical injuries inflicted The crime of physical injuries is a crime of result because
shall have caused the illness or incapacity for labor of the injured under our laws the crime of physical injuries is based on the
person for more than thirty days. gravity of the injury sustained. So this crime is always
consummated, notwithstanding the opinion of Spanish
If the offense shall have been committed against any of the persons
enumerated in Article 246, or with attendance of any of the circumstances commentators like Cuello Calon, Viada, etc, that it can be
mentioned in Article 248, the case covered by subdivision number 1 of this committed in the attempted or frustrated stage.
Article shall be punished by reclusion temporal in its medium and maximum
periods; the case covered by subdivision number 2 by prision correccional in
If the act does not give rise to injuries, you will not be able to
its maximum period to prision mayor in its minimum period; the case
covered by subdivision number 3 by prision correccional in its medium and say whether it is attempted slight physical injuries, attempted
maximum periods; and the case covered by subdivision number 4 by prision less serious physical injuries, or attempted serious physical
correccional in its minimum and medium periods. injuries unless the result is there.
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Deformity requires the concurrence of the following


The reason why there is no attempted or frustrated physical conditions:
injuries is because the crime of physical injuries is determined 1. The injury must produce ugliness;
on the gravity of the injury. As long as the injury is not there, 2. It must be visible;
there can be no attempted or frustrated stage thereof. 3. The ugliness will not disappear through natural
healing process.
Classification of physical injuries:
1. Between slight physical injuries and less serious Illustration:
physical injuries, you have a duration of one to nine Loss of molar tooth — This is not deformity as it is
days if slight physical injuries; or 10 days to 20 days if not visible.
less serious physical injuries. Consider the duration Loss of permanent front tooth — This is deformity as
of healing and treatment. it is visible and permanent
Loss of milk front tooth — This is not deformity as it
The significant part here is between slight physical is visible but will be naturally replaced.
injuries and less serious physical injuries. You will
consider not only the healing duration of the injury Question & Answer
but also the medical attendance required to treat
the injury. So the healing duration may be one to The offender threw acid on the face of the offended party.
nine days, but if the medical treatment continues Were it not for timely medical attention, a deformity would
beyond nine days, the physical injuries would have been produced on the face of the victim. After the plastic
already qualify as less serious physical injuries. The surgery, the offended party was more handsome than before
medical treatment may have lasted for nine days, the injury. What crime was committed? In what stage was it
but if the offended party is still incapacitated for committed?
labor beyond nine days, the physical injuries are The crime is serious physical injuries because the
already considered less serious physical injuries. problem itself states that the injury would have
produced a deformity. The fact that the plastic
2. Between less serious physical injuries and serious surgery removed the deformity is immaterial
physical injuries, you do not consider the period of because in law what is considered is not the artificial
medical treatment. You only consider the period treatment but the natural healing process.
when the offended party is rendered incapacitated
for labor. In a case decided by the Supreme Court, accused
was charged with serious physical injuries because
If the offended party is incapacitated to work for less the injuries produced a scar. He was convicted under
than 30 days, even though the treatment continued Article 263 (4). He appealed because, in the course
beyond 30 days, the physical injuries are only of the trial, the scar disappeared. It was held that
considered less serious because for purposes of accused cannot be convicted of serious physical
classifying the physical injuries as serious, you do not injuries. He is liable only for slight physical injuries
consider the period of medical treatment. You only because the victim was not incapacitated, and there
consider the period of incapacity from work. was no evidence due the medical treatment lasted
for more than nine days.
3. When the injury created a deformity upon the
offended party, you disregard the healing duration When the injuries inflicted brought about a legal
or the period of medical treatment involved. At deformity, the period of incapacity from labor and
once, it is considered serious physical injuries. the period for medical treatment required by the
injury are immaterial. If it is the ugliness that makes it
So even though the deformity may not have at once serious physical injuries (par 3 of art 263)
incapacitated the offended party from work, or even
though the medical treatment did not go beyond When we say deformity, it means ugliness.
nine days, that deformity will bring about the crime
of serious physical injuries. If 2 persons exchanged fist blows, one of them is
crossed-eyed and the other one gave him a strong
fist blow on the head and the eyes went straight, it
is not a deformity.

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In a case where 2 drivers quarreled because they adding ignominy to the offense in addition to the penalty of arresto mayor, a
fine not exceeding 500 pesos shall be imposed.
out race peeking a passenger, the driver who was
ahead of the road and the other simply __ to get Any less serious physical injuries inflicted upon the offender's parents,
the passenger, went down from his jeep carrying a ascendants, guardians, curators, teachers, or persons of rank, or persons in
___ and immediately swung this to the other driver. authority, shall be punished by prision correccional in its minimum and
medium periods, provided that, in the case of persons in authority, the deed
The other driver evaded the blow but his eyebrows does not constitute the crime of assault upon such person.
was scratched. On the next day, he just put a bond
aid there. although the wound did not disqualify Matters to be noted in this crime:
him from driving, it produces a deformity and 1. Offended party is incapacitated for labor for 10 days
therefore the physical injuries is one that is serious. or more (but not more than 30 days), or needs
medical attendance tor the same period of time;
The ugliness must be visible. So if a person boxed a 2. The physical injuries must not be those described in
person in the front part of the mouth, then a tooth the preceding articles
was removed. Immediately that is serious physical
injuries, unless it was an artificial tooth, then it is only
slight physical injuries. Qualified as to penalty
1. A fine not exceeding P 500.00. in addition to arresto
If a person boxed a victim on the jaw and an inner mayor, shall be imposed for less serious physical
molar was removed, since it is not visible, it is not injuries when -
considered a deformity unless the one whose molar a. There is a manifest intent to insult or offend
is removed have a very wide mouth and every time the injured person; or
he talk, the missing molar could be seen. b. There are circumstances adding ignominy to
the offense.
Serious physical injuries is punished with higher penalties in 2. A higher penalty is imposed when the victim is either
the following cases: —
1. If it is committed against any of the persons referred a. The offender's parents, ascendants,
to in the crime of parricide under Article 246; guardians, curators or teachers; or
2. If any of the circumstances qualifying murder b. Persons of rank or person in authority,
attended its commission. provided the crime is not direct assault.

Thus, a father who inflicts serious physical injuries upon his If the physical injuries do not incapacitate the offended party
son will be liable for qualified serious physical injuries. nor necessitate medical attendance slight physical injuries is
committed. But if the physical injuries heal after 30 days,
Art. 264. Administering injurious substances or beverages. — The penalties
established by the next preceding article shall be applicable in the respective
serious physical injuries is committed under Article 263,
case to any person who, without intent to kill, shall inflict upon another any paragraph 4.
serious, physical injury, by knowingly administering to him any injurious
substance or beverages or by taking advantage of his weakness of mind or Article 265 is an exception to Article 48 in relation to complex
credulity.
crimes as the latter only takes place in cases where the
Revised Penal Code has no specific provision penalizing the
Elements:
same with a definite, specific penalty. Hence, there is no
1. Offender inflicted upon another any serious physical
complex crime of slander by deed with less serious physical
injury;
injuries but only less serious physical injuries If the act which
2. It was done by knowingly administering to him any
was committed produced the less serious physical Injuries
injurious substance or beverages or by taking
with the manifest intent to insult or offend the offended
advantage of his weakness of mind or credulity;
party, or under circumstances adding ignominy to the
3. He had no intent to kill
offense.
Art. 265. Less serious physical injuries. — Any person who shall inflict upon
another physical injuries not described in the preceding articles, but which Art. 266. Slight physical injuries and maltreatment. — The crime of slight
shall incapacitate the offended party for labor for ten days or more, or shall physical injuries shall be punished:
require medical assistance for the same period, shall be guilty of less serious 1. By arresto menor when the offender has inflicted physical injuries
physical injuries and shall suffer the penalty of arresto mayor. which shall incapacitate the offended party for labor from one to
nine days, or shall require medical attendance during the same
Whenever less serious physical injuries shall have been inflicted with the period.
manifest intent to kill or offend the injured person, or under circumstances 2. By arresto menor or a fine not exceeding 20 pesos and censure
when the offender has caused physical injuries which do not

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prevent the offended party from engaging in his habitual work nor
require medical assistance.
XXX
3. By arresto menor in its minimum period or a fine not exceeding
50 pesos when the offender shall ill-treat another by deed
without causing any injury. Also, if the offended party was running in a crowded street,
he bumped somebody who fell. So this fellow who fell stood
Acts punished: up and slapped him, the crime is maltreatment because the
1. Physical injuries incapacitated the offended party for purpose is to punish him for what he had done.
labor from one to nine days, or required medical
attendance during the same period; But if a person challenged another to a Fight, the latter would
2. Physical injuries which did not prevent the offended not accept. So in order to make it appear that he is a coward,
party from engaging in his habitual work or which this fellow who is challenging him slapped him just to make
did not require medical attendance; him accept the challenge. Now that is slander by deed
3. Ill-treatment of another by deed without causing any because clearly the purpose was done to humiliate, to
injury. belittle, to discredit, to dishonor the person who was slapped.

The common question here, the distinction between the However, bear in mind that slander by deed is a crime against
crime of maltreatment or ill-treatment from the crime of honor. And the crimes against honor cannot be committed if
slander by deed under Art 359. it was not in public.

The crime of maltreatment is found in par 3 of Art 266. This is So if a person followed his enemy entering a comfort room.
a form of slight physical injuries except that no wound was He locked the door of the CR. There were only two of them
inflicted. inside. So, he started slapping the other, this cannot be
slander by deed because that element of being public is
Slapping the offended party may be a form of maltreatment absent.
or ill-treatment or it may be slander by deed.
REPUBLIC ACT 7610 (Special Protection of Children Against
Slapping the offended party will only be a form of slight Child Abuse, Exploitation and Discrimination Act)
physical injuries which is commonly called maltreatment or
ill-treatment when the offender did the act to punish the In relation to murder, mutilation or injuries to a child:
offended party.
The last paragraph of Article VI of RA 7610. provides:
It would be a case of slander by deed if the offender
performed the act to humiliate, embarrass, dishonor, or "For purposes of this Act, the penalty for the commission of
cast discredit upon the offended party. acts punishable under Articles 248, 249. 262(2) and 263(1) of
Act. 3815, as amended, of the Revised Penal Code for the
Art. 359. Slander by deed. — The penalty of arresto mayor in its maximum crimes of murder, homicide, other intentional mutilation, and
period to prision correccional in its minimum period or a fine ranging from serious-physical injuries, respectively, shall be reclusion
200 to 1,000 pesos shall be imposed upon any person who shall perform any perpetua when the victim is under twelve years of age."
act not included and punished in this title, which shall cast dishonor, discredit
or contempt upon another person. If said act is not of a serious nature, the
penalty shall be arresto menor or a fine not exceeding 200 pesos. The provisions of RA 7610 modified the provisions of the RPC
in so far as the victim of the felonies referred to is under 12
Illustration: years of age. The clear intention is to punish the said crimes
If Hillary slaps Monica and told her "You choose your with a higher penalty when the victim is a child of tender age.
seconds. Let us meet behind the Quirino Grandstand Incidentally, the reference to Article 249 of the Code which
and see who is the better and more beautiful defines and penalizes the crime of homicide where the victim
between the two of us", is under 12 years old is an error. Killing a child under 12 is
the crime is not ill-treatment, slight physical murder, not homicide, because the victim is under no
injuries or slander by deed; it is a form of position to defend himself as held in the case of People Y.
challenging to a duel. The criminal intent is Ganohon, 196 SCRA 431.
to challenge a person to a duel.
For murder the penalty provided by the Code, as amended by
The crime is slight physical injury if there is no proof RA 7659, is reclusion perpetua to death—higher than what
as to the period of the offended party's incapacity RA 7610 provides. Accordingly, in so far as the crime is
for labor or of the required medical attendance. murder. Article 248 of the Code as amended, shall govern

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even if the victim was under 12 years of age. It is only in • Sexual assault - committed with an instrument or an
respect of the crimes of intentional mutilation in paragraph 2 object or use of the penis with penetration of mouth
of Article 262 and of serious physical injuries in 263(1) of the or anal orifice. The offended party or the offender
Code that the quoted provision of RA 7610 may be applied can either be man or woman, that is, if a woman or a
for the higher penalty when the victim is under 12 years old. man uses an instrument on anal orifice of male, she
or he can be liable for rape.
RAPE
Before Oct 22, 1997, the second form of rape will
Article 266-A. Rape, When and How Committed only constitute as acts of lasciviousness. It is only
after oct 22, 1997, when the new rape law took
Elements under paragraph I: effect, that we should consider as rape a sexual
1. Offender is a man assault brought about by any of the 2 acts stated
2. Offender had carnal knowledge of a woman under the new law.
3. Such act is accomplished under any of the following
circumstances: Since this is a crime against persons, the liability for
a. By using force or intimidation; impossible crime may now be incurred.
b. When the woman is deprived of reason or Treachery may be utilized as an aggravating
otherwise unconscious; circumstance. Also cruelty may be appreciated as
c. By means of fraudulent machination or an aggravating circumstance.
grave abuse of authority; or
d. When the woman is under 12 years of age When the offender tied the victim to the four
or demented. corners of the bed and while raping the victim,
every time the victim cries, the offender trust his
Elements under paragraph 2: lighted cigarette on the body of the victim, the SC
1. Offender commits an act of sexual assault; held that cruelty is aggravating.
2. The act of sexual assault is committed by any of the
following means: The three underlying principles that the SC has laid
a. By inserting his penis into another person's down as a guide to the court in resolving rape
mouth or anal orifice; or cases are as follows:
b. By inserting any instrument or object into • A complaint for rape can easily be
the genital or anal orifice of another fabricated although difficult to prove, it is
person; more difficult for the accused to disprove.
3. The act of sexual assault is accomplished under any This simply implies that the court should not
of the following circumstances: readily believe a complaint for rape but
a. By using force or intimidation; or must look into the circumstances on the
b. When the woman is deprived of reason or credibility of the imputation
otherwise unconscious; or • The intrinsic nature of the crime of rape is
c. By means of Fraudulent machination or that only the offender and the offended
grave abuse of authority; or party knew what really happened between
d. When the woman is under 12 years of age them. Hence the version given by each
or demented. party must be thoroughly scrutinized to
determine which between the 2 versions is in
Republic Act No. 8353 (An Act Expanding the Definition of accord with human nature and experience,
the Crime of Rape. Reclassifying the Same as A Crime hence more credible.
against Persons. Amending for the Purpose the Revised • The prosecution’s evidence should not draw
Penal Code) repealed Article 335 on rape and added a strength from the witness of the defense
chapter on Rape under Title 8. (Oct 22, 1997) evidence but should rise or fall on each own
merit. If the prosecution’s evidence is weak
Classification of rape even though the defense evidence is
• Traditional concept under Article 335 - carnal weaker, the accused must be acquitted.
knowledge with a woman against her will. The
offended party is always a woman and the offender A 4th rule that has been drafted in some cases by
is always a man. the trial courts, this is as follows:

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• The assessment by the trial court of the a. Where the victim of the rape has become
testimonies of the witnesses deserve great insane; or
respect and almost conclusive because trial b. Where the rape is attempted but a killing
courts are in the best position to appreciate was committed by the offender on the
such testimony than appellate courts who occasion or by reason of the rape.
rely only on the records shown by the
transcript. 3. Death / reclusion perpetua —
a. Where homicide is committed by reason or
So unless the trial court committed serious on occasion of a consummated rape.
errors in the appreciation of the facts, the
finding of facts of the trial court must be 4. Death/reclusion temporal —
respected. a. Where the victim is under 18 years of age
and the offender is her ascendant
As far as this crime of rape is concerned, we have stepfather, guardian, or relative by affinity
one crime of rape with homicide as an indivisible or consanguinity within the 3rd civil degree,
offense, a special complex crime. Here, the criminal or the common law, husband of the victim's
intent must be rape. If the criminal intent was to kill mother; or
and then the victim was raped, then there will be 2 b. Where the victim was under the custody of
separate crimes for the intended killing and for the the police or military authorities, or other
rape if the victim was still alive when she was raped. law enforcement agency;
Otherwise, when the rape is done when the victim is c. Where the rape is committed in full view of
already dead, it will amount into an impossible the victim's husband, the parents, any of
crime. the children or relatives by consanguinity
rd
within the 3 civil degree;
Rape is committed when a man has carnal knowledge of a d. Where the victim is a religious, that is, a
woman under the following circumstances: member of a legitimate religious vocation
1. Where intimidation or violence is employed with a and the offender knows the victim as such
view to have carnal knowledge of a woman: before or at the time of the commission of
2. Where the victim is deprived of reason or otherwise the offense;
unconscious; e. Where the victim is a child under 7 yrs of
3. Where the rape was made possible because of age;
fraudulent machination or abuse of authority; or f. Where the offender is a member of the
4. Where the victim is under 12 years of age, or AFP, its paramilitary arm, the PNP, or any
demented, even though no intimidation or violence law enforcement agency and the offender
is employed. took advantage of his position;
g. Where the offender is afflicted with AIDS or
Sexual assault is committed under the following other sexually transmissible diseases, and
circumstances: he is aware thereof when he committed
1. Where the penis is inserted into the anal or oral rape, and the disease was transmitted;
orifice; or h. Where the victim has suffered permanent
2. Where an instrument or object is inserted into the physical mutilation;
genital or oral orifice. i. Where the pregnancy of the offended party
is known to the rapist at the time of the
If the crime of rape/sexual assault is committed with the rape; or
following circumstances, the following penalties are j. Where the rapist is aware of the victim's
imposed: mental disability, emotional disturbance or
1. Reclusion perpetua to death/ prision mayor to physical handicap.
reclusion temporal —
a. Where rape is perpetrated by the accused Prior to the amendment of the law on rape, a complaint must
with a deadly weapon; or be filed by the offended woman. The persons who may file
b. Where it is committed by two or more the same in behalf of the offended woman if she is a minor or
persons. if she was incapacitated to file, were as follows:
• a parent:
2. Reclusion perpetua to death/ reclusion temporal - • in default of parents, a grandparent;

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• in default of grandparent, the judicial guardian. corroborated before a conviction may stand. This is
particularly true if the commission of the rape is such that the
Since rape is not a private crime anymore, it can be narration of the offended woman would lead to no other
prosecuted even if the woman does not file a complaint. conclusion except that the rape was committed.

If carnal knowledge was made possible because of fraudulent Now you take note of this, in the new law on rape, there
machinations and grave abuse of authority, the crime is rape. were added 2 grounds that would bring about any carnal
This absorbs the crime of qualified and simple seduction knowledge or sexual assault as rape.
when no force or violence was used, but the offender abused
his authority to rape the victim. One, where the offender gains carnal knowledge of a woman
with grave abuse of authority; and two, when the offender
Under Article 266-C, the offended woman may pardon the on gains carnal knowledge of a woman through fraudulent
offender through a subsequent valid marriage, the effect of machinations.
which would be the extinction of the offender's liability.
Similarly, the legal husband may be pardoned by forgiveness Before the new law on rape was enacted, one who would
of the wife provided that the marriage is not void ab initio. gain sexual intercourse with another with grave abuse of
Obviously, under the new law, the husband may be liable for authority commits qualified seduction. This, before, was a
rape if his wife does not want to have sex with him. It is means of incurring qualified seduction. But the seduction can
enough that there is indication of any amount of resistance as only be incurred if the victim is a virgin below 18 but not less
to make it rape. than 12, because if the victim is less than 12, it will be
statutory rape.
Incestuous rape was coined in Supreme Court decisions. It
refers to rape committed by an ascendant of the offended So, in Art 337, gaining sexual intercourse with a woman who
woman. In such cases, the force and intimidation need not be is a virgin below 18 but not less dun 12, by a person in
of such nature as would be required in rape cases had the authority, a priest, a teacher, a person who is entrusted with
accused been a stranger. Conversely, the Supreme Court the care and education of the woman, this would bring about
expected that if the offender is not known to woman, it is a grave abuse of authority. And this is now a basis for rape.
necessary that there be evidence of affirmative resistance put
up by the offended woman. Mere "no, no" is not enough if Qualified seduction will now be limited to a case where there
the offender is a stranger, although if the rape is incestuous, is an abuse of confidence, not anymore an abuse of authority,
this is enough. such as when the offender is a domestic, a co-boarder, a
friend.
The new rape law also requires that there be a physical overt
act manifesting resistance, if the offended party was in a Art. 337. Qualified seduction. — The seduction of a virgin over twelve years
and under eighteen years of age, committed by any person in public
situation where he or she is incapable of giving valid consent, authority, priest, home-servant, domestic, guardian, teacher, or any person
this is admissible in evidence to show that carnal knowledge who, in any capacity, shall be entrusted with the education or custody of the
was against his or her will woman seduced, shall be punished by prision correccional in its minimum
and medium periods.
When the victim is below 12 years old, mere sexual The penalty next higher in degree shall be imposed upon any person who
intercourse with her is already rape. Even if it was she who shall seduce his sister or descendant, whether or not she be a virgin or over
wanted the sexual intercourse, the crime will be rape. This is eighteen years of age.
referred to as statutory rape.
Under the provisions of this Chapter, seduction is committed when the
offender has carnal knowledge of any of the persons and under the
In People vs. Luna (2003), it was held that it would be circumstances described herein.
unrealistic to expect a uniform reaction from rape victims.
Art. 338. Simple seduction. — The seduction of a woman who is single or a
widow of good reputation, over twelve but under eighteen years of age,
Note that it has been held that in the crime of rape, committed by means of deceit, shall be punished by arresto mayor.
conviction does not require medico-legal finding of any
penetration on the part of the woman. A medico-legal Now likewise, the ground of gaining carnal knowledge of a
certificate is not necessary or indispensable to convict the woman through fraudulent machinations. Since the crime of
accused of the crime of rape. simple seduction is committed through deceit, you have to
draw a line between fraudulent machinations and simple
An accused may be convicted of rape on the sole testimony deceit.
of the offended woman. It does not require that testimony be

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The essence of seduction is also sexual intercourse. Now, if crime of rape, not limiting it anymore to mere
that sexual intercourse was gained through fraudulent intercourse.
machinations not just by simple deceit, the crime is now rape. • Thirdly, under the absurdity rule of statutory
construction, the courts should avoid giving a law
Fraudulent machinations implies deceit, but this that interpretation which would result to absurdity.
contemplates of an insidious act resorted to by the offender Here, it would be absurd to consider that in object
to influence the mind of the victim to submit. It is different like a toothpick or a ball pen if inserted into the
from simple deceit. genitals of a woman would amount to rape; and yet,
if it were 2 finger it would not amount to rape. This
Fraudulent machinations contemplates of some insidious interpretation is absurd and therefore, it cannot be
ways by which the offender would defraud the victim making adopted as this is against the absurdity rule.
the victim believe that he is worthwhile being a companion in • Lastly, under the law dictionary, this Bouvier's Law
life. But if it is purely deceit, seduction only, provided that the Dictionary, the word object includes a thing, and a
woman is not less than 12 years old but she must be below finger is regarded as a thing. So within the term
18. If less than 12, automatically it is statutory rape. object, finger is included.

About this inserting an instrument or object into the genitals The explanation made by the CA here is indeed sound
of the victim. and reasonable to consider this as a case of rape but this
will be rape of the second form effected through sexual
Before, there had been discussions whether the act of assault.
fingering would bring about the crime of rape. The common
thinking is that this would only bring about acts of QUALIFIED RAPE
lasciviousness.
More important about the crime of rape are the
Art. 336. Acts of lasciviousness. — Any person who shall commit any act of circumstances that will bring about the death penalty. This is
lasciviousness upon other persons of either sex, under any of the
circumstances mentioned in the preceding article, shall be punished by
what you call qualified rape.
prision correccional.
When the rape is attended by any circumstance that would
Art. 339. Acts of lasciviousness with the consent of the offended party. — The call for the penalty of death, the crime is known as qualified
penalty of arresto mayor shall be imposed to punish any other acts of
lasciviousness committed by the same persons and the same circumstances
rape.
as those provided in Articles 337 and 338.
Now here, the inclination is to find the accused liable only for
A case, however, was decided by the CA. simple rape so that the penalty would only be reclusion
perpetua.
In the case of Una Ovania v. Hon. Judge Soriano of Bulacan
and Jaime Liroco, the CA considered inserting a finger into the So given a problem where there appears to be a circumstance
genitals of a woman, a girl, as rape. that would qualify the rape and therefore would bring about
the death penalty, do not jump into conclusion that it is
The clarification made is sound and so unless there is a qualified rape. You look for any loophole to avoid the
decision by the SC to the contrary, this decision is of qualified rape bringing it only to simple rape.
persuasive authority.
This is because the moment you consider the crime as
The clarification made by the CA why inserting a finger into qualified rape, there is no penalty except death. And the SC
the genitals of a female is rape: has shown an inclination to avoid imposing the death penalty
• Firstly, the crime of rape was transposed to Title 8 as for the crime of rape. So, they would rather held the accused
a crime against persons precisely to consider the act liable only for simple rape.
which violates the person of a woman as a crime of
rape against persons. This emphasis is not on the sex So in a case where the circumstance was that the victim was
but on the violence done to the person of the victim. less than 18 and the offender was her own father, although
That is why this was taken out of the classification of the father admitted the age of the victim, yet because the
crimes against chastity. birth certificate was not adduced in evidence, SC ruled that
• Secondly, the title of the new law on rape (RA 8353) there is doubt as to the age of the victim. And therefore, the
itself indicates that it is to expand the concept of the accused can only be found guilty of simple rape.

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In a case where the victim was less than 18 and the accused
was her stepfather. The mother of the victim testified about The court should not believe the version given by the
her marriage to the accused. Because the marriage contract complainant. He must determine the version also
was not presented. SC ruled there is doubt as to the given by the accused, find out which conforms, to
relationship due the accused is the stepfather of the victim. human experience and human reasonable belief.
And so with that doubt, the accused can only be held liable
for simple rape. • Third, the evidence of the prosecution must stand or
fall on its own merits and should not draw strength
You follow the same inclination. from the weakness of the defense's evidence.

XXX and the offending spouse is valid. So if the marriage is This means to say no matter how weak the evidence
not valid, or they were not married at all, the crime cannot be of the defense may be, if the evidence of the
marital rape. The importance of this, if it were marital rape, prosecution is doubtful, the accused must be
pardon would suffice to extinguish criminal liability. But if it acquitted.
was not marital rape, the only way for the offender to
extinguish the criminal liability is to marry the offended In a case where the woman testified, her testimony was
woman, not by pardon. straightforward, and the court already felt that indeed the
crime of rape was committed.
Now in the case of marriage by the offender with the
offended woman, it is no longer Art 344 that will govern. I During the presentation of the defense, the accused disclosed
called your attention to this. It is a specific provision of the the details of the sexual encounter between him and the
new Marriage Law which is incorporated as Chapter 3 of Title complainant even picturing the erotic ways by means they
8 of the RPC have been making love with each other.

The marriage will extinguish the liability only of the offender In order to controvert this, the prosecution moved for
who married. The co-principals by inducement or by presentation of rebuttal testimony. So after the accused had
indispensable cooperation as well as the accomplice and the testified, the case was again set for the presentation of the
accessory will not benefit out of the marriage. The marriage rebuttal testimony of the girl. In the meantime, the hearing is
law is silent on this, unlike in Art 344 where co-principals by reset.
inducements, co-principal by indispensable cooperation,
accomplice, and accessory will benefit from the marriage. Now during the period that the case was reset, the
complainant went to the house of the accused alone. When
Now about these cases of rape, there are 3 underlying she testified on rebuttal, the defense counsel asked her if
guidelines which the SC has repeatedly called for in deciding indeed she went to the house of the accused. And she
or reviewing cases of rape. And these are: admitted she went there. It was established she went there
alone. But when she was asked what she did there, she
• First, a complaint for rape can easily be made. explained that she went there to the accused for telling lies
Although it is difficult to prove, it is more difficult to about their erotic ways of having sexual intercourse.
disprove.
Because that was explained by the girl the court convicted
So a complaint for rape can be made with facility, the accused.
although it is difficult to prove, is more difficult to
disprove. This suggests that the court should be On appeal, SC acquitted the accused. SC noted it is not
cautious in believing a complaint for rape. believable that a victim of a rape would return to the place
where she was raped alone because the crime of rape brings
• Secondly, the inherent nature of the crime involves about such traumatic memories that the girl who was raped
only the offender and the offended party who knows would not even want to remember anything about it. For the
what really happened between the two because this complainant to go back to the house where allegedly she was
crime is committed in private. Now, this means to raped is something unusual, beyond human experience. It
say that the court will have to examine the version only suggested that what took place in that house was
of the complainant, the version of the accused to something which is not really traumatic but something to
know which is believable since this crime is remember. So the High Court said the accused must be
committed in private and only the two know what acquitted.
really happened to them.

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Now this conforms with that second guiding principle, that TITLE IX CRIMES AGAINST PERSONAL LIBERTY AND SECURITY
the inherent nature of the crime of rape involves only two
persons who knew what really happened between them Article 267. Kidnapping and Serious Illegal Detention — Any private
individual who shall kidnap or detain another, or in any other manner
because this is a crime committed in private. So you will apply
deprive him of his liberty, shall suffer the penalty of reclusion perpetua to
there the common experiences of man to find out the death:
credibility of one version from the other. 1. If the kidnapping or detention shall have lasted more than five
days.
2. If it shall have been committed simulating public authority.
Now because of the act alone of going to the house of the
3. If any serious physical injuries shall have been inflicted upon the
accused, the High Court said, this is unusual because rape is person kidnapped or detained; or if threats to kill him shall have
one crime that produces so much traumatic effect that the been made.
victim who had been deflowered would not even want to 4. If the person kidnapped or detained shall be a minor, female or a
public officer.
think about it, much less return to the place where she had
been deflowered. The suggestion is that, that place does not The penalty shall be death where the kidnapping or detention was
really bring about traumatic thinking or traumatic feeling but committed for the purpose of extorting ransom from the victim or any other
something to remember. And that is why the girl had the person, even if none of the circumstances above-mentioned were present in
the commission of the offense.
courage to go there. Now this should also be your attitude.

Give attention to those circumstances that qualifies rape Elements


which requires knowledge on the part of the offender. 1. Offender is a private individual;
2. He kidnaps or detains another, or in any other
Where the offender raped a woman who is already pregnant, manner deprives the latter of his liberty;
the circumstance would bring about qualified rape only if 3. The act of detention or kidnapping must be illegal;
before or during the rape the offender knew that the woman 4. In the commission of the offense, any of the
is pregnant. following circumstances is present:
a. The kidnapping lasts for more than 3 days;
So if he learned this after the rape, it will not qualify the rape b. It is committed simulating public authority;
anymore. c. Any serious physical injuries are inflicted
upon the person kidnapped or detained or
So also, where the accused is afflicted with AIDS virus, the threats to kill him are made; or
circumstance requires that the offender is aware that he had d. The person kidnapped or detained is a
the AIDS virus. So if he is not aware that he has this, it cannot minor, female, or a public officer.
qualify the rape for the death penalty.
The essence of the crime under art 267 and art 268
Also, where the woman is a religious person, a nun or a sister, is that the purpose of the offender is lock up the
the circumstance requires that the accused must be aware of offended party. To deprive the offended party of
that. If not, it will not qualify the rape. his liberty. So if the offender had some other
purpose not really to lock up and deprived the
So you give attention to those circumstances. They are the offended party of his or her freedom of movement,
ones which may be fitting for a problem in the crime of rape. the crime will not be one of detention. It will not be
under this title because it will not be a crime against
If the woman or if the victim of the rape is below 18 but not personal liberty.
less than 12, SC ruled that the prosecution should be under
RA 7610 for a rape under the RPC XXX. Commonly, the crime committed where it will not
be a case of illegal detention is one of grave
If the rape, however, involved a victim below 12 or it is a coercion. The offended party was compelled to do
qualified rape, the prosecution cannot be under RA 7610. it something against his/her will, or otherwise, the
will always be under the RPC. offended party was prevented on what he wanted
to do.
So that pronouncement that the prosecution will be under RA
7610 is true only in simple rape where the victim is below 18 If there is any crime under Title IX which has no
but not less than 12. corresponding provision with crimes under Title II, then, the
offender may be a public officer or a private person. If there
is a corresponding crime under Title II, the offender under
Title IX for such similar crime is a private person.

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When a public officer conspires with a private person in the considered merely as the "passion of a lover'. But if the man
commission of any of the crimes under Title IX, the crime is is already married, you cannot consider that as legitimate but
also one committed under this title and not under Title II immoral and definitely amounts to lewd design.

Illustration: If a woman is carried against her will but without lewd design
If a private person commits the crime of kidnapping on the part of the offender, the crime is grave coercion.
or serious illegal detention, even though a public
officer conspires therein, the crime cannot be Illustration:
arbitrary detention. As far as that public officer is Tom Cruz invited Nicole Chizmacks for a snack. They
concerned, the crime is also illegal detention. drove along Roxas Boulevard, along the Coastal Road
and to Cavite. The woman was already crying and
In the actual essence of the crime, when one says kidnapping, wanted to be brought home. Tom imposed the
this connotes the idea of transporting the offended party condition that Nicole should first marry him. Nicole
from one place to another. When you think illegal detention, found this as, simply, a mission impossible. The
it connotes the idea that one is restrained of his liberty crime committed in this case is grave coercion. But if
without necessarily transporting him from one place to after they drove to Cavite, the suitor placed the
another. woman in a house and would not let her out until
she agrees to marry him, the crime would be serious
The crime of kidnapping is committed if the purpose of the illegal detention.
offender is to extort ransom either from the victim or from
any other person. But if a person is transported not for If the victim is a woman or a public officer, the
ransom, the crime can be illegal detention. Usually, the detention is always serious — no matter how short
offended party is brought to a place other than his own, to the period of detention is.
detain him there.
Circumstances which make illegal detention serious:
When one thinks of kidnapping, it is not only that of 1. When the illegal detention lasted for three days,
transporting one person from one place to another. One also regardless of who the offended party is;
has to think of the criminal intent. 2. When the offended party is a female, even if the
detention lasted only for minutes;
Forcible abduction — If a woman is transported from one 3. If the offended party is a minor or a public officer, no
place to another by virtue of restraining her of her liberty, matter how long or how short the detention is;
and that act is coupled with lewd designs. 4. When threats to kill are made or serious physical
injuries have been inflicted; and
Serious illegal detention - If a woman is transported just to 5. If it shall have been committed simulating public
restrain her of her liberty. There is no lewd design or lewd authority.
intent.
Distinction between illegal detention and arbitrary detention:
Grave coercion - If a woman is carried away just to break her
will, to compel her to agree to the demand or request by the Illegal detention is committed by a private person
offender. who kidnaps, detains, or otherwise deprives another
of his liberty.
In a decided case, a suitor, who cannot get a favorable reply
from a woman, invited the woman to ride with him, Arbitrary detention is committed by a public officer
purportedly to take home the woman from class. But while who detains a person without legal grounds.
the woman is in his car, he drove the woman to a far place
and told the woman to marry him. On the way, the offender The penalty for kidnapping is higher than for forcible
had repeatedly touched the private parts of the woman. It abduction. This is wrong because if the offender
was held that the act of the offender of touching the private knew about this, he would perform lascivious acts
parts of the woman could not be considered as lewd designs upon the woman and be charged only for forcible
because he was willing to marry the offended party. The abduction instead of kidnapping or illegal detention.
Supreme Court ruled that when it is a suitor who could He thereby benefits from this absurdity, which arose
possibly marry the woman, merely kissing the woman or when Congress amended Article 267, increasing the
touching her private parts to "compel" her to agree to the penalty thereof without amending Article 342 on
marriage, such cannot be characterized as lewd design. It is forcible abduction.

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However for the crime to be kidnapping with rape. the


Article 267 has been modified by Republic Act No. 7659 offender should not have taken the victim with lewd designs
(Heinous Crimes) in the following respects: as otherwise the crime would be forcible abduction; and if
1. Illegal detention becomes serious when it shall have the victim was raped, the complex crime of forcible abduction
lasted for more than three days, instead of five days with rape would be committed. If the taking was forcible
as originally provided; abduction, and the woman was raped several times, there
2. In paragraph 4, if the person kidnapped or detained would only be one crime of forcible abduction with rape, and
was a minor and the offender was anyone of the each of the other rapes would constitute distinct counts of
parents, the latter has been expressly excluded from rape. This was the ruling in the case of People v. Bacalso.
the provision. The liability of the parent is provided
for in the last paragraph of Article 271;. In People v. Lactao, decided on October 29, 1993. the
3. A paragraph was added to Article 267, which states: Supreme Court stressed that the crime is serious illegal
detention if the purpose was to deprive the offended party of
"When the victim is killed or dies as a her liberty. And if in the course of the illegal detention, the
consequence of the detention or is raped, offended party was raped, a separate crime of rape would be
or is subjected to torture, or dehumanizing committed. This is so because there is no complex crime of
acts, the maximum penalty shall be serious illegal detention with rape since the illegal detention
imposed." was not a necessary means to the commission of rape.

This amendment brings about a composite crime of In People v. Bernal, 131 SCRA 1, the appellants were held
kidnapping with homicide when it is the victim of the guilty of separate crimes of serious illegal detention and of
kidnapping who was killed, or dies as a consequence of the multiple rapes. With the amendment by Republic Act No.
detention and. thus, only one penalty is imposed which is 7659 making rape a qualifying circumstance in the crime of
death. kidnapping and serious illegal detention, the jurisprudence is
superseded to the effect that the rape should be a distinct
Article 48, on complex crimes, does not govern in this case. crime. Article 48 on complex crimes may not apply when
But Article 48 will govern if any other person is killed aside, serious illegal detention and rape are committed by the same
because the provision specifically refers to "victim". offender. The offender will be charged for the composite
Accordingly, the rulings in cases of People v, Parulan, People crime of serious illegal detention with rape as a single
v. Ging Sam, and other similar cases where the accused were indivisible offense. regardless of the number of times that the
convicted for the complex crimes of kidnapping with murder victim was raped.
have become academic.
Also, when the victim of the kidnapping and serious illegal
In the composite crime of kidnapping with homicide, the term detention was subjected to torture and sustained physical
"homicide" is used in the generic sense and thus, covers all injuries, a composite crime of kidnapping with physical
forms of killing whether in the nature of murder or otherwise. injuries is committed.
It does not matter whether the purpose of the kidnapping
was to kill the victim or not, as long as the victim was killed, Kidnapping should be punished with death if this
or died as a consequence of the kidnapping or detention. was carried out for the purposes of ransom. The
There is no more separate crime of kidnapping and murder if crime of kidnapping for ransom is still a heinous
the victim was kidnapped not for the purpose of killing her. crime. In this case, we have to observe the
definition of the term “ransom” which is identified
If the victim was raped, this brings about the composite crime with the crime of kidnapping. It is not necessary
of kidnapping with rape. Being a composite crime, not a though that the offender would be able to obtain
complex crime, the same is regarded as a single indivisible ransom. It is enough that this was committed by the
offense as in fact the law punishes such acts with only a single offender for the purpose of extorting ransom
penalty. In a way, the amendment depreciated the whether the ransom extorted or not, it is immaterial.
seriousness of the rape because no matter how many times For as long as it is the purpose of the offender in
the victim was raped, there will only be one kidnapping with kidnapping the offended party.
rape. This would not be the consequence if rape were a
separate crime from kidnapping because each act of rape The word ransom as used under the article was
would be a distinct count. already construed by the SC to carry the definition
that this word has in ___ dictionary. Under such
dictionary, ransom is any price or money paid as a
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condition for the release of a person held in that a minor have been taken and there was a
captivity. So any demand for ransom before, would demand for money or some consideration.
bring about death penalty already. Except that
now the death penalty has been prohibited and so The SC pointed out that if the minor was taken by
the reason why it cannot be imposed. the offender without knowledge nor consent of the
parent of the minor or of a person legally charged
Under the Limberg law which the SC also adopted with the custody of the minor, the crime would be
as a matter of determining whether there was serious illegal detention under art 267.
ransom or not being demanded, the Limberg law
defined ransom as any price or money paid or But if the offender befriended a minor and then
given as a condition for the release of a person asked the permission of the parents to allow the
held in captivity. minor to taken around the city, the parents agreed.
Then the child was taken around the city until it is
One of the circumstances that would make the already dark, in such a situation the SC held that
detention serious is when the victim was a minor. the crime is merely under Art 270, kidnapping and
We also have article 270, where the subject is also a failure to return a minor.
minor. Hence we have to know the distinction The SC is clear that the crime is kidnapping and
between the 2 crimes Art 267 and Art 270 as far as a serious illegal detention if the minor was taken
minor who had been kidnapped is concerned. without the knowledge or consent of the parent or
of a person exercising legal authority over such
Under the limberg law, as adopted by the SC, minor. Otherwise the crime will be one of
ransom may not be in terms of money. It is a kidnapping and failure to return a minor.
demand required for the release of a person held in
captivity. It may be a demand which the offender Art. 268. Slight Illegal Detention — The penalty of reclusion temporal shall be
imposed upon any private individual who shall commit the crimes described
demanding had a right to demand. For as long as it in the next preceding article without the attendance of any of circumstances
is made as a condition on the release of a person enumerated therein.
held in captivity, it is regarded as ransom.
The same penalty shall be incurred by anyone who shall furnish the place for
the perpetration of the crime.
Illustration: if a person was indebted to another and
it had been a long time that he kept on promising If the offender shall voluntarily release the person so kidnapped or detained
that he would pay but no substantial payment was within three days from the commencement of the detention, without having
ever made, so the creditor send his hand-helpers attained the purpose intended, and before the institution of criminal
proceedings against him, the penalty shall be prision mayor in its minimum
and invited the debtor to his place to discuss the and medium periods and a fine not exceeding seven hundred pesos.
obligation to be paid. The debtor went to the house
of the creditor and the creditor directed his boys to Elements
lock him up, then allowed him a chance to write to 1. Offender is a private individual;
his family to disclose that he will not be allowed to 2. He kidnaps or detains another, or in any other
leave until he had paid the amount of the manner deprives him of his liberty.
indebtedness. 3. The act of kidnapping or detention is illegal;
In this case the SC rules that the demand will 4. The crime is committed without the attendance of
partake the nature of a ransom. A creditor any of the circumstances enumerated in Article 267.
has no right to detain his debtor just so he
can collect. A demand for the obligation as This felony is committed if any of the five circumstances in
a condition for the release of a person held the commission of kidnapping or detention enumerated in
in captivity is clearly a case of ransom. The Article 267 is not present.
moment there is ransom, the penalty will be
death. The penalty is lowered if—
1. The offended party is voluntarily released within
As to the kidnapping of a minor, when it will be three days from the start of illegal detention;
governed by art 267 as a case of kidnapping and 2. Without attaining the purpose;
serious illegal detention and when will it be a case 3. Before the institution of the criminal action.
of kidnapping on failure to return a minor where art
270 shall governed. The SC had the occasion to
point out when art 267 would governed considering
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One should know the nature of the illegal detention to know In the case of People v. Roluna, decided March 29, 1994,
whether the voluntary release of the offended party will witnesses saw a person being taken away with hands tied
affect the criminal offender. behind his back and was not heard from for six years.
Supreme Court reversed the trial court ruling that the men
When the offender voluntarily releases the offended party accused were guilty of kidnapping with murder. The crime is
from detention within three days from the time the restraint only slight illegal detention under Article 268, aggravated by a
of liberty began, as long as the offender has not band, since none of the circumstances in Article 267 has been
accomplished his purposes, and the release was made before proved beyond a reasonable doubt. The fact that the victim
the criminal prosecution was commenced, this would serve to has been missing for six years raises a presumption of death,
mitigate the criminal liability of the offender, provided that but from this disputable presumption of death, it should not
the kidnapping or illegal detention is not serious. be further presumed that the persons who were last seen
with the absentee is responsible for his disappearance.
If the illegal detention is serious, however, even if the
offender voluntarily released the offended party, and such In contrast to the crime of kidnapping and serious
release was within three days from the time the detention illegal detention we have a crime of slight illegal
began, even if the offender has not accomplished his purpose detention.
in detaining the offended party, and even if there is no
criminal prosecution yet, such voluntary release will not The crime is slight illegal detention if none any of the
mitigate the criminal liability of the offender. circumstances committed in a detention regarded
as serious or in an act regarded as kidnapping
One who furnishes the place where the offended party is attended the commission of the crime. If there was
being held generally acts as an accomplice. But the criminal ransom demanded then it will fall under art 267, the
liability in connection with the kidnapping and serious illegal crime cannot be slight illegal detention.
detention, as well as the slight illegal detention, is that of the
principal and not of the accomplice. The significance of this, under art 268 on slight illegal
detention, we have a circumstance there that
Before, in People v. Salience, if the offended party subjected mitigates the criminal liability of the offender known
to serious illegal detention was voluntarily released by the as voluntary release of the offended party by the
accused in accordance with the provisions of Article 268 (3), offender. This circumstance has been construed
the crime, which would have been serious illegal detention, ultimately as true only if the illegal detention was
became slight illegal detention only. slight.

The prevailing rule now is Asistio v. Judge, which provides If the illegal detention is governed by art 267 as a
that voluntary release will only mitigate criminal liability if case of kidnapping and serious illegal detention,
crime was slight illegal detention. If serious, it has no effect. voluntary release by the offender cannot at all
affect the criminal liability of the offender.
In kidnapping for ransom, voluntary release will not mitigate
the crime. This is because, with the reimposition of the For the voluntary release of the offended party by
death penalty, this crime is penalized with the extreme the offender, there are requisites that must be
penalty of death. complied with:
• The voluntary release must have been
What is ransom? effected within 3 days following the date of
It is the money, price or consideration paid or detention. This is because otherwise, the
demanded for redemption of a captured person or crime will become serious illegal detention
persons, a payment that releases a person from and that voluntary release will not anymore
captivity. mitigate the liability of the offender
• The release must have been made before
The definition of ransom under the Lindberg law of the US, criminal prosecution is commenced
has been adopted in our jurisprudence in People v. Akiran, 18 • The offender effected the voluntary release
SCRA 239,242, such that when a creditor detains a debtor and without accomplishing his purpose. If the
releases the latter only upon the payment of the debt, such offender had already accomplished his
payment of the debt, which was made a condition for the purpose and that is why the offended party
release is ransom, under this article. was voluntarily released, that release will not

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mitigate the liability anymore of the Article 270. Kidnapping and Failure to Return A Minor — The penalty of
reclusion perpetua shall be imposed upon any person who, being entrusted
offender with the custody of a minor person, shall deliberately fail to restore the latter
to his parents or guardians.
Article 269. Unlawful Arrest — The penalty of arresto mayor and a fine not
exceeding 500 pesos shall be imposed upon any person who, in any case
other than those authorized by law, or without reasonable ground therefor, Elements
shall arrest or detain another for the purpose of delivering him to the proper 1. Offender is entrusted with the custody of a minor
authorities. person (whether over or under seven years but less
than 21 years of age);
Elements 2. He deliberately fails to restore the said minor to his
1. Offender arrests or detains another person; parents or guardians.
2. The purpose of the offender is to deliver him to the
proper authorities; If any of the foregoing elements is absent, the kidnapping of
3. The arrest or detention is not authorized by law or the minor will then fall under Article 267.
there is no reasonable ground therefor.
If the accused is any of the parents, Article 267 does not
This felony consists in making an arrest or detention without apply; Articles 270 and 271 apply.
legal or reasonable ground for the purpose of delivering the
offended party to the proper authorities. If the taking is with the consent of the parents, the crime in
Article 270 is committed.
The offended party may also be detained but the crime is not
illegal detention because the purpose is to prosecute the In People v. Generosa, it was held that deliberate failure to
person arrested. The detention is only incidental, the primary return a minor under one's custody constitutes deprivation of
criminal intention of the offender is to charge the offended liberty. Kidnapping and failure to return a minor is necessarily
party for a crime he did not actually commit. included in kidnapping and serious illegal detention of a
minor under Article 267(4).
Generally, this crime is committed by incriminating innocent
persons by the offender's planting evidence to justify the In People v. Mendoza, where a minor child was taken by the
arrest — a complex crime results, that is, unlawful arrest accused without the knowledge and consent of his parents, it
through incriminatory machinations under Article 363. was held that the crime is kidnapping and serious illegal
detention under Article 267, not kidnapping and failure to
If the arrest is made without a warrant and under return a minor under Article 270.
circumstances not allowing a warrantless arrest, the crime
would be unlawful arrest. As to the kidnapping of a minor, when it will be
governed by art 267 as a case of kidnapping and
If the person arrested is not delivered to the authorities, the serious illegal detention and when will it be a case
private individual making the arrest incurs criminal liability for of kidnapping on failure to return a minor where art
illegal detention under Article 267 or 268. 270 shall governed. The SC had the occasion to
point out when art 267 would governed considering
If the offender is a public officer, the crime is arbitrary that a minor have been taken and there was a
detention under Article 124. demand for money or some consideration.

If the detention or arrest is for a legal ground, but the public The SC pointed out that if the minor was taken by
officer delays delivery of the person arrested to the proper the offender without knowledge nor consent of the
judicial authorities, then Article 125 will apply. parent of the minor or of a person legally charged
with the custody of the minor, the crime would be
Note that this felony may also be committed by public serious illegal detention under art 267.
officers.
But if the offender befriended a minor and then
asked the permission of the parents to allow the
minor to taken around the city, the parents agreed.
Then the child was taken around the city until it is
already dark, in such a situation the SC held that
the crime is merely under Art 270, kidnapping and
failure to return a minor.
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The SC is clear that the crime is kidnapping and Article 271. Inducing A Minor to Abandon His Home — The penalty of prision
correccional and a fine not exceeding seven hundred pesos shall be imposed
serious illegal detention if the minor was taken upon anyone who shall induce a minor to abandon the home of his parent or
without the knowledge or consent of the parent or guardians or the persons entrusted with his custody.
of a person exercising legal authority over such
minor. Otherwise the crime will be one of If the person committing any of the crimes covered by the two preceding
articles shall be the father or the mother of the minor, the penalty shall be
kidnapping and failure to return a minor. arresto mayor or a fine not exceeding three hundred pesos, or both.

So in a situation where there was a parent-teachers Elements


meeting, a mother of one of the pupils in a 1. A minor (whether over or under seven years of age)
secondary school took along her young child, a girl, is living in the home of his parents or guardians or
with her to attend such meeting. Another lady the person entrusted with his custody;
whom the parent of the minor thought will also be 2. Offender induces said minor to abandon such home.
attending the meeting, befriended the young girl
until this stranger had earned the confidence and Article 272. Slavery — The penalty of prision mayor and a fine of not
trust of the minor. At that point, seeing that the child exceeding 10,000 pesos shall be imposed upon anyone who shall purchase,
is already open to her, the offender asked the sell, kidnap or detain a human being for the purpose of enslaving him.
permission of the mother to allow her to bring the If the crime be committed for the purpose of assigning the offended party to
child to a nearby ice peddler. She offered to buy some immoral traffic, the penalty shall be imposed in its maximum period.
ice cream for the child. The mother agreed thinking
that, after all, the woman is also there to attend the Elements
meeting. Hence this woman took the minor to the 1. Offender purchases, sells, kidnaps or detains a
nearby ice peddler. The meeting of the association human being;
began when the mother is looking for her child, the 2. The purpose of the offender is to enslave such
child is nowhere to be found together with the human being.
woman asked the permission to take the minor to
the nearby ice vendor. The mother went to the NBI This is committed if anyone shall purchase, kidnap, or detain
and the child was traced to a childless couple in a human being for the purpose of enslaving him. The penalty
tondo. And there the childless family that the is increased if the purpose of the offender is to assign the
mother of the child brought the child there and let Offended party to some immoral traffic
the child for money. Allegedly, this has to be spent
by the mother of the child for suing her common- This is distinguished from illegal detention by the purpose. If
law husband with the fortune of the family. The NBI the purpose of the kidnapping or detention is to enslave the
traced the woman and proceeded to Samar offended parry, slavery is committed.
where the woman was traced. Eventually, they
were able to apprehend the woman who The crime is slavery if the offender is not engaged in the
conveyed the girl to the childless couple. Because business of prostitution. If he is, the crime is white slave trade
of the situation where the offender appear to have under Article 341.
intended to demand the ransom, the case was
filed under art 267. Anti-Trafficking of Persons Act of 2003 (RA 9208)
The SC ruled that the condition was for a
crime which is wrong because the child was Sec 4 enumerates the following as unlawful:
obtained from the custody of the mother 1. recruiting, transporting, harboring, transferring,
where the mother consented. The providing or receiving persons, even under the
contemplation in art 267 is that the child is pretext of overseas employment, for purposes of
taken without the knowledge or consent of prostitution, pornography, sexual exploitation,
the parent. Instead the SC said that if the forced labor, slavery, involuntary servitude and debt
child was taken without the consent and bondage;
knowledge of the parent, then the crime will 2. facilitating, for profit or consideration introductions
be under art 267. But if the child was taken or mail-order bride schemes between Filipinas and
with the knowledge and conformity of the foreigners for purposes of prostitution,
parent, the crime committed by the pornography, sexual exploitation, forced labor,
offender is kidnapping and failure to return slavery, involuntary servitude and debt bondage;
a minor under art 270
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3. offering and contracting marriages for purposes of 2. Misappropriating the earnings of the child and/or
prostitution, pornography, sexual exploitation, failure to set up a trust fund for the latter and render
forced labor, slavery, involuntary servitude and debt a semi-annual accounting of such;
bondage; 3. using, procuring or offering the child for purposes of
4. organizing sex tours and similar travel packages; prostitution or pornographic activities;
5. hiring persons for purposes of prostitution or 4. Making the child work in hazardous working
pornography; conditions;
6. adopting children for purposes of prostitution, 5. Subjecting the Child to various forms of slavery as
pornography, sexual exploitation, forced labor, defined in RA 9208, including trafficking of children,
slavery, involuntary servitude and debt bondage; recruitment of child soldiers, etc.
7. engaging in illegal trade of body organs, including
abducting and forcing persons to sell/donate Article 274. Services Rendered under Compulsion in Payment of Debt - The
penalty of arresto mayor in its maximum period to prision correccional in its
organs/tissues;
minimum period shall be imposed upon any person who, in order to require
8. adopting/recruiting child soldiers for armed conflict or enforce the payment of a debt, shall compel the debtor to work for him,
against his will, as household servant or farm laborer.
Sec 5 also penalizes acts that promote, facilitate or otherwise
assist in the commission of the acts enumerated in Sec. 4. Elements
1. Offender compel a debtor to work for him, either as
Under Sec 6. trafficking is qualified when: household servant or farm laborer;
1. the trafficked person is a child; the inter-country 2. It is against the debtor's will;
adoption is effected for purposes of prostitution, 3. The purpose is to require or enforce the payment of
pornography, sexual exploitation, forced labor, a debt.
slavery, involuntary servitude and debt bondage;
2. trafficking is committed by a syndicate (large scale);
3. offender is an ascendant, parent, sibling, guardian or Article 275. Abandonment of Persons in Danger and Abandonment of One's
Own Victim — The penalty of arresto mayor shall be imposed upon:
otherwise exercises authority over the trafficked
person or a public officer or employee; 1. Any one who shall fail to render assistance to any person whom
4. trafficking is made for purposes of engaging in he shall find in an uninhabited place wounded or in danger of
prostitution with law enforcement/military agencies; dying, when he can render such assistance without detriment to
himself, unless such omission shall constitute a more serious
5. offender is a member of law
offense.
enforcement/military agencies; 2. Anyone who shall fail to help or render assistance to another
6. by reason of trafficking, the victim dies, becomes whom he has accidentally wounded or injured.
insane, suffer mutilation or is infected with HIV 3. Anyone who, having found an abandoned child under seven years
of age, shall fail to deliver said child to the authorities or to his
virus/AIDS.
family, or shall fail to take him to a safe place.

Article 273. Exploitation of Child Labor — The penalty of prision correccional


in its minimum and medium periods and a fine not exceeding 500 pesos shall Acts punished
be imposed upon anyone who, under the pretext of reimbursing himself of a 1. Failing to render assistance to any person whom the
debt incurred by an ascendant, guardian or person entrusted with the offender finds in an uninhabited place wounded or
custody of a minor, shall, against the latter's will, retain him in his service.
in danger of dying when he can render such
assistance without detriment to himself, unless such
Elements: omission shall constitute a more serious offense.
1. Offender retains a minor in his services; Elements
2. It is against the will of the minor; i. The place is not inhabited;
3. It is under the pretext of reimbursing himself of a ii. Accused found there a person
debt incurred by an ascendant, guardian or person wounded or in danger of dying
entrusted with the custody of such minor. iii. Accused can render assistance
without detriment to himself;
Anti-Child Labor Act of 2003 (RA 9231) iv. Accused fails to render assistance.
2. Failing to help or render assistance to another whom
RA 9231 amended RA 7160 by imposing heavier penalties on the offender has accidentally wounded or injured;
parents, guardians and employers of children 18 years and 3. By failing to deliver a child, under seven years of age,
below who commit any of the following acts: whom the offender has found abandoned, to the
1. Making the child work beyond the maximum authorities or to his family, or by failing to take him
number of working hours provided by said law; to a safe place.
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CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

Under the first act, the offender is liable only when he can Acts punished
render such assistance without detriment to himself, unless 1. Delivering a minor to a public institution or other
such omission shall constitute a more serious offense. persons without the consent of the one who
Where the person is already wounded and already in danger entrusted such minor to the care of the offender or,
of dying, there is an obligation to render assistance only if he in the absence of that one, without the consent of
is found in an uninhabited place. If the mortally wounded,