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Pre-week in Criminal Law 2

By: Justice Lopez




1. Unlawful taking- the prop was not delivered to the accused but taken by the accused without
the consent of the victim ( if delivered but taken, it maybe theft or estafa)

Kinds of possession:
a. Physical/material-
b. Juridical- there’s a contractual relation
c. Ownership – with contractual relation

If the possessor can put up a right against the owner (even temporary possession), it is juridical
possession. Otherwise, it is physical/material. In juridical possession, there is a contract that binds
the accused with the victim.

Mutuum/deposit/guaranty. In mutuum, what is transferred is not merely juridical possession but

one of ownership. Hence, no estafa but only civil liability.

Contract of bailment, lease, usufructuary, sale (if buyer disappeared and did not pay, no deceit- not
liable for estafa because he already acquired ownership, not juridical possession).

2. Intent to gain- absent of intent to gain, no robbery or theft. Possible that there is unlawful
taking, but without intent to gain. This is a rebuttable presumption. If no intent to gain in the
unlawful taking of prop- crime maybe grave or light coercion when taking is intended to
compensate the indebtedness of the owner of the property
3. Personal property- in criminal law, anything that is subject to taking/can be taken away is
personal property. It is not the same with the personal property as contemplated under the Civil
Code. Ex: fruits in the tress; fish in the fishpond.

Note: mere taking of the property already consummates robbery. The moment the accused already
acquired control over the property is sufficient to consummate robbery, regardless of its disposition. No
such crime as frustrated robbery or frustrated theft.

No frustrated rape.

If all the above 3 are present, crime committed is THEFT, not robbery. Only upon presence of the 4 th
element which will make the crime as ROBBERY.

4. Employment of force against person or upon things

Is dwelling an aggravating circumstance in robbery? Yes, if it is directed against person. But if it
is robbery – force upon things, dwelling is not AC, inherent.

What determines penalty for robbery? If upon persons- injury caused

If upon things- value of the property.
If mixed (force upon person and property)- basis is force upon person because life of the person
is more valuable than the property. However, if penalty for force upon things than that upon
persons, it becomes a complex crime.

Art. 294- para 1 to 3- by reason or on occasion of…

Para 4 & 5- in the employment or in the course of …

Robbery- plain robbery even if it caused slight physical injuries

Note: intent is very material (ex. If real intent is to rape or kill and taking of prop is merely
incidental- not robbery)
Robbery with homicide- even if attended by rape or arson (burning of the property). Rape or
arson maybe considered are not aggravating circumstances but will increase the penalty.

In force upon things:

a. Force to effect entry

Use of false key

Key stolen- robbery

Key entrusted to accused- qualified theft

Key was taken forcibly- robbery

Force upon things applies also to a force upon the wardrobe, not the door

Subjects- personal property subject to taking:

1. Motor vehicle
 If subject of taking is car, crime is carnapping provided that the car was moved from one place
to another
 There is a composite crime of carnapping with rape or carnapping with homicide- when owner,
driver or occupant (limited to these persons only) were killed or raped by reason or on occasion
of carnapping.
 No such thing as carnapping with attempted or frustrated homicide- the law uses homicide in its
generic sense.
 If original intent/purpose is carnapping but the victim was raped and killed- crime is carnapping
with homicide
2. Large cattle-
3. Mail matter- penalty is higher under Art. 302 (but absence of force / intimidation, invoke art.
Art 226- mail matter classified as document, custodian who took the mail matter is liable for
infidelity in the custody of document. This applies only to letters, not packages.
4. Document- person is compelled to sign a document with value (Art. 298)- document with value
ex: deed of sale, deed of mortgage. If no more value, no intent to gain, crime may be grave
5. Real property- usurpation of real rights (art 312)- SC ruled in one case that where there is a case
of usurpation of property, there is a Art. 312 imposing a fine in addition to the crime committed
– ex . Art. 312 plus grave threat; Art 312 plus serious physical injury. The victim may only be a
possessor, not necessarily the owner.

Simulation of authority- robbery if it is done upon a dwelling/inhabited place. If done in an uninhabited

place (ex. Warehouse), mere theft.


1. Intended crime- not necessarily consummated, maybe attempted, frustrated or consummated.

2. Composite crime- accompanying crime- must always be consummated

Example: Attempted robbery with homicide, attempted rape with homicide

What if robbery was committed but the victim survived?—no such thing as robbery with attempted or
frustrated homicide- separate crimes of robbery and either attempted or frustrated homicide

ESTAFA thru issuance of check- crime against property- attended by deceit- there must be simultaneous
exchange of property and check to constitute estafa

BP 22 thru issuance of check- penalized by special law- punishes the mere act of issuing the unfunded
check (mala prohibita).

If issuance of check is done in good faith, it is a violation of BP22 because the latter punishes the mere
act of issuance of unfunded check regardless of the purpose of issuance (such as evidence of
indebtedness, memorandum check). Whether it is a local or foreign check- constitutes Bp22. PH court
has jurisdiction over issuance of foreign check because this is a continuing crime.

Necessity of notice/demand- in Estafa, this is not essential while in BP 22, this is required. In estafa, not
necessary because issue in estafa is deceit/fraud employed by the accused, it is not material that the
offender be first notified that the check bounced. Sometimes, notice/demand is being made merely to
establish knowledge on the part of the accused that he issued an unfunded check, but this is a
rebuttable presumption which maybe countered by other proofs/evidence that the accused is
knowledgeable of his issuance of unfunded check.
In BP22, notice must be in writing (indispensable). Also required that the issuer must receive the notice
so he can pay the value of the check within 5 days (prejudicial requirement before one can institute
violation of BP22).

ARSON with homicide- special complex crime

What laws governs arson:

1. Destructive arson- Art 320.-if arson with homicide- death

2. PD 1613- simple arson . if simple arson with homicide- penalty is reclusion perpetua to death

Arson is committed even only a part of the house is burned

Murder- if intent/purpose is to kill but use fire/burning to kill

Check recording No. 46 (1

If burning is preceded with killing

All kinds of burning constitute arson- now, burning of any property is arson (simple, no longer malicious
mischief- old law)

Absolutory cause- applies to plain estafa, qualified theft

If crime is estafa thru falsification- no absolutory cause

Common- law spouses are covered.

In absolutory cause, while accused is exempt from criminal liab, still civilly liable.


1. Rebellion
Over act in rebellion- armed group of people (violence, killings are absorbed being indispensable
element of the crime)
Purpose: Political (to remove allegiance; military; defy the purpose of the gov’t
Offender: any /collectively
Preparatory Act: CPI
2. Sedition
Overt act- tumultuous public uprising , not necessarily armed with weapon (if armed, acts of
violence are not absorbed)
Purpose: Political (not same with political purpose of rebellion- total deprivation of government-
sedition is one of a lesser degree) and social
Ex. Group of people who went to the senate to stop the fact finding investigation re: pork
Offender: any/collectively
Preparatory Act: CI
3. Coup d’etat-
Overt act: swift attack
Purpose: diminish state power
Offender: any collectively
Preparatory Act: CP
4. Direct assault- 2 kinds:
a. Direct assault proper- purpose: contempt of person in authority or agent of PIA

Direct assault with murder/homicide- one who killed hueteng lord

Offencer: public officer

b. Quasi-direct assault- purpose: rebellion or sedition but no armed public uprising or

tumultuous public uprising (example: group of 5 pesons who went to malacanang to protest
for the removal of the president)
Overt act: force/ intimidation
Offender: any
Preparatory Act

Similarities of the above-4 crimes-

Direct assault- must be in actual performance or maybe after but motivated due to past performance of
official function.

TREASON- 2 witness rule on confession

PIRACY- title I and PD 532

RPc- does not distinguish high seas and internal water- offenders are outsiders

Qualified piracy- if piracy was attended by killing or rape (no matter how many people were killed)

PD 532- distinguishes the offenders- maybe passengers/insiders

Robbery in a highway- considered as 1 crime no matter the # of victims

ARBITRARY DETENTION – relate to rule 113 section 5 (arrest without a warrant)- with warrant, arbitrary
detention not applicable because the arrest and detention is already justified.

In case of good faith due to reasonable belief that the accused committed the crime- not arbitrary

Arbitrary detention- there must be intent to detain the accused.

Human security act in relation to arbitrary detention

If private commits arbitrary detention (art 267)

Citizens arrest which is legal but the arrested person was not delivered to the proper authority- art 267,
regardless there is or w/out valid ground.

If above is committed by a public officer- crime committed is delay in the delivery of arrested person

Terrorism- a terrorist who is apprehended (mere suspect) maybe detained for 3 days provided that the
person apprehended was a subject of prior surveillance in accordance with authority of anti-terrorism
council. Suppose there is an actual /imminent terrorism committed, and was apprehended, in flagrante,
maybe detained within 3 days or indefinitely subject to the approval of the courts (any court to include
Sandiganbayan) or human rights commission.

Jurisdiction of terrorism law- even committed outside PH territory can be prosecuted in PH courts

Note: prosecution is one thing, jurisdiction is another thing (may require extradition treaty)

In terrorism, predicate crimes are:

1. Causing widespread fear/panic

For purposes of surveillance, police officers may wire tap (excused from the application of this law) the
communication of the terrorists, upon approval of CA.

Money laundering – predicate crime which is the source of dirty money which is:

1. Placement of money (in a bank)

2. Layering (ex. Investment in stocks/insurance)
3. Integration (back to the owner of money)

All the persons liable in the aforesaid process are liable for money laundering

Terrorism committed in money laundering is an independent crime.

The duty of the bank to report suspicious transactions that may constitute a violation of Anti-money
laundering act is an exception to the bank secrecy law.

Court of appeals- will freeze the account of the accused in money laundering (freezing is 20 days but
maybe extended for another 60 days)

New rule on freezing: 6 months


FORGERY- subject matters are:

1. Lotto tickets

FALSIFICATION OF PRIVATE DOCUMENTS- subject matter is a document

Nature of the document:

1. Public- notarized documents (ex. Deed of sale, deed of mortgage)

2. Official- documents executed by public officers in the exercise of their official functions
3. Commercial- bills of exchange, PN, (Nego instruments) and other commercial docs
4. Private

The document must either establish a right or extinguish an obligation.

Once a document (public and official docs) is falsified, regardless of the intent of the accused, crime of
falsification is committed due to damage it caused to public interest. Unlike in private doc, intent to
damage the falsified doc is required. Private docs that are merely falsified, no intent to damage is not

Estafa thru falsification of private document- common element which is the intent to cause damage. If
falsification is used as a means to commit estafa.

2 crimes- estafa or falsification of private documents- if both damage were caused. The falsification of
private document to deceive a victim (plain falsification).

Example: presentation of falsified LOA- mere falsification of private document, no estafa.

Commission of misappropriation of collection by the collecter and when he accounts the collection to
the company, he falsified private document to conceal the deceit made- in this case, falsification of the
private document is not necessary to commit estafa, crime therefore is ESTEFA no falsification of private
document because it was made without intent to create damage.

Case is different when the collector is a government, ex. Municipal treasurer who committed
malversation of funds and to conceal it, falsified public docs- separate crimes of estafa and falsification
of public documents.

Blank document/check is not a document.

PERJURY- affidavit/document under oath

FALSE NARRATION OF FACTS- what was falsified are the factual circumstances, not the conclusion of

Ex. Pedro is a qualified applicant for the position of Manager. The conclusion of being qualification
(conclusion of law) was based on falsified facts disclosed in his application (ex. He represented that he is
a college graduate where in fact not).
Such document is required by law.

Case (galeos v people- refer to handout) re: SALN submission. Normally, SALN would only result to a
crime of perjury. If the SALN are attached to the employee’s/officer’s personal data sheet- example:
accused left in blank in the PDS whether or not he has a relative w/in the 4th civil degree. No answer was

SC ruled that where a material matter, the law requires the person to provide an answer but withheld
the facts (check recording no. 48 23

Good faith is a defense in falsification. If document has a colorable truth, there is no falsification.

The notary public who notarized the SALN attached to the PDS of the public officer/employee- liable for
falsification (because he personally know the person who submitted the SALN- in fact a relative of NP).

Art. 183- Perjury (know the requisites)

1. Other false testimonies

2. False affidavits

Requisites of other false testimonies:

1. Statement must be of a material matter- main fact in issue/subject matter of inquiry

2. Involves those needed to establish the fact in issue

In crime involving immorality, declaration by the person that he is single, is it immoral?

Depends whether the declaration is material to the nature of the crime. Example is issue is cohabitation
with someone, no legal marriage. Declaration that he is single is immoral

In admin case, declaration of being single where in fact already married, …. (check recording # 48 29


Union bank case- involves venue/jurisdiction of perjury- for purposes of perjury, the moment it is
notarized, that perjury is already consummated. Venue is the place where the document was made
under oath (normally where it is notarized).

If the document notarized is intended to be submitted in court (normally after 12 pm)

USURPATION OF AUTHORITY- distinguish from the usurpation involving the 3 branches of the gov’t (art
239, 140 and 241

Chief Executive or judiciary- liable for usurpation of legislative functions.

Legislative officers are not liable for usurpation of authority.

PDAF- assumed by Jlo as usurpation of executive functions.

There is no usurpation of executive functions by the legislature.

Dangerous drugs act – Sec. 21-

Chain of Custody- involves the authentication of evidence

If the chain of custody cannot be established, the dangerous drugs seized is not admissible.

Planting of evidence-

Inventory, photograph, DOJ representative, media rep, elective public official to comply with the
requirement of chain of custody.

Suppose Sec 21 is not complied at all or there are lapses, the drug that was confiscated by the accused

If there is a major lapses in the compliance of Sec 21 of DDA might cause the acquittal of accused not
because of inadmissibility of evidence but because of lack to prove the credibility of the evidence.

Admissibility is governed by the rules on evidence, while credibility involves the evaluation of the
court/weight of evidence.

As a prosecutor, if the police officers failed to comply with the requirement on chain of custody, under
the IRR, require the police officer to explain/justify the lapses and prosecution will proceed proving the
chain of custody (that evidence presented is the same evidence confiscated from the accused)- establish
chain of custody to sustain credibility of the evidence.

RA 9165- Plea bargaining is prohibited, probation is allowed as long as the 6 years below requirement is
met except: drug pushing or drug trafficking, even a minor is involved- not entitled to probation.

Commission of crime under influence of drug- qualifying aggravating circumstance

There is also attempted or conspiracy to commit violation of rA 9165

RA 9165- violations hereof are penalized with peculiarity under the special law, RPC penalties, nor ISL
not applicable.

Special law can penalize an attempted violation as consummated if the special law specify the same.

RA 9165- PDEA is the lead office in charge of its implementation but others (pnp or nbi) can conduct the

SUSPENSION OF SENTENCE OF MINOR- also applies in RA 9165. Suspension of minor does not require
distinction of the nature of crime committed by the minor

LIMITED APPLICATION OF THE RPC- if accused is minor, life imprisonment will become RP to death,
hence, can avail the PMC.


Grave scandal


RA 9208- maybe committed by a recruiter, with or without a license.

If victim is a minor, it is regarded as an aggravating circumstance.

If the recruited is unlicensed, he maybe convicted of illegal recruitment separately from trafficking of
persons (not double jeopardy).


Refusal to discharge a public officer

Who is a public officer? – salary is not necessary, regardless an officer or employee as long as one is
performing a public function.

Sandiganbayan has jurisdiction over private individuals who acted in conspiracy with the public officer,
principal by inducer, guilty of anti graft and corrupt practices act, relatives of public officers or those
who has connection with a gov’t official who takes advantage the relationship to deal with the public

Crime committed by judges for unjust judgment- based on bad faith, not the unjustness of the judgment

Determination if there was unjust judgment is conducted by the court administrator (art. 204)

DIRECT BRIBERY- regardless whether gift is accepted or not, liable (no attempted or frustrated stage)

Private person who gives the bribe is guilty of Anti-Graft and Corrupt practices act (there is attempted or
frustrated stage)

FALSIFICATION OF PUBLIC DOCUMENTS- civil registrar who falsified is liable for bribery (gift from the
private person- whether received or not as long as there is an agreement) and falsification

Ghost project- done thru falsification of docs- crimes are falsification of documents and (check recording
No. 49 31

UNDUE INJURY- accused filed a case against a prosecutor who slept on the decision of the case. The
prosecutor did not act for certain period of time. When required to make a decision, the prosecutor
inhibits. Offended party filed a case against the prosecutor- SC ruled that the INJURY must be one which
is actual- same with a public officer who delayed delivery service causing injury to another person.

Qualified bribery- committed only by prosecutors and law enforcement agents who solicit money for
them not to perform their function involving a crim punishable by reclusion perpetua to death.

Prisoner entrusted to private individual-

Private individual entrusted with public money- liable for malversation. Private property may also be the
subject of malversation, not only public property.

The private individual is not within the jurisdiction of the ombudsman even he committed malversation
of public funds because he is not a public officer.

Public officer liable for malversation- not determined on position title but based on the actual job
description of the officer/employee.

If the charge is technical malversation- accused cannot be convicted

GR: subject of malversation is public property. Exception: Private property intended for public purpose.

Boys Scout of the PH is a public fund- subject to audit by COA

Presumption in malversation- public fund/property entrusted to a public officer and cannot explain the
whereabouts of the public prop/fund raises the presumption of misappropriation (rebuttable)

Case of Abdulah vs DBM- Illegal use of fund/technical malversation- fund intended for payment of salary
of regular employees was re-aligned to pay casual employees.

EVASION OF SERVICE OF SENTENCE- one must be a prisoner by final judgment

Maltreatment of prisoners- relate to anti-torture act – in maltreatment, person liable is the person who
is in custody of the prisoner. One becomes a prisoner upon enrolment- from the time he is booked in
the record of prisoners.

Under anti-torture act- no need to wait for the enrolment of the prisoner before one can be guilty of
torture. Who are liable? any person in authority or agent or any responsible for the maltreatment.

Torture is considered an aggravating circumstance to title 8 and 9 of RPC

Note: Not all crimes under RPC are mala inse. There are some which are mala prohibita (ex.
Malversation- use of fund contrary to the ordinance which defines the use and guidelines for the use of
the fund)


Several acts/series or combination of acts:

1. Malversation, corruption, kickbacks….

2. More than 50m
3. Separate acts

Wheel conspiracy- several persons have common understanding towards accumulation of P50m.


Parricide- qualifying circumstance is the relationship arising from consanguinity and not by fiction of law,
except spouse. Adopted son/parent not covered by parricide. 1st degree of relationship- father and son,
legitimacy of relationship not necessary. Between spouses, yes.

Murder- use of band is not a qualifying circumstance; in case treachery is employed but victim was able
to put up a fight/defense, no treachery. Treachery must be employed at the inception, not during or
after commission of the crime. If treachery employed during the commission of crime, becomes an
aggravating circumstance.

Outraging/scoffing – an aggravating circumstance done after the commission of crime

Victim behead/castrated after being killed—murder not homicide due to outraging/scoffing

A child with intra-uterine life of less than 7 months but died immediately- abortion, not infanticide (fetus
did not acquire a personality.

Child who was born but died within 3 days from birth- infanticide

Mutilation is a kind of physical injury, purposely committed (castration) resulting in deformity

Slight physical injury- both medical attendance and incapacity must fall within the period of recovery
required by law. If either of the two falls beyond the recovery period, it will be considered as serious
physical injury.

Rape- crime against person, no longer crime against chastity. Hence, principles arising under title 11 no
longer apply to rape. Pardon of the offended party has no effect, while in chastity, pardon prevents the
institution of the crime. If pardon was not extended before the institution but after, pardon is useless (in

Rape, being a crime against person, marriage by the offended party to the offender will extinguish
criminal liab as well as the penalty (even accused has already been convicted).

Pardon of offended spouse in crime of rape- extinguish both crime and penalty

Multiple rapes- marriage by offended party not allowed. The offender maybe pardoned for the rape he
committed but cannot be applied with his responsibility for the rape committed by his co-conspirators

Rape by sexual assault- victim either male or female

Rape with homicide

Purpose is to kill and subsequently raped- the rape may not be crime anymore but can be an act of
outraging the victim, hence, an aggravating circumstance.


KIDNAPPING with ransom- serious illegal detention (ransom- not necessarily money, anything asked by
the kidnapper as consideration in exchange for the release of the victim)

Gravely coercing a woman to be taken from one place to another- grave coercion

In kidnapping- determine the intention of the accused.

If purpose is to deprive victim of his freedom then rape or killed thereafter, Art 267- kidnapping with
rape or kidnapping with homicide

If no showing that the victim was deprived of freedom but purpose is to kill or rape-plain or simple rape
or homicide/murder. In this case, kidnapping is a mere preparatory act to commit

Characteristics of special complex crime- even several rapes committed if purpose is deprivation of
freedom/detention- kidnapping with rape.

Abduction with lieud design wth rape- forcible abduction with rape.

Check recording No. 50 30

Adultery- even the marriage is void, will still constitute a crime of adultery.

Characteristics of Private crime-

1. cannot be filed de officio

2. if victim is adult, he is the only one who can file
3. if victim is minor, parents followed by grandparents (but minor can file by himself alone)
Note: minor cannot extend pardon, must be with concurrence of parents

Crime against chastity- requires virginity

Simple seduction- virginity is not a requisite; a widow with good reputation can be a victim

Qualified seduction- there is a victim who is not a virgin (one qualified by relationship- woman not
necessarily a minor or virgin but can be a victim for qualified seduction)

RA 7610- Acts of lasciviousness committed against a minor

If minor is below 12 years- RPC will always apply (crime of statutory rape must be imposed under RPC)

Acts of lasciviousness, apply RPC but penalty is higher by 1 degree.

Penalty prescribed- what is provided by the code

Penalty imposable- penalty modified by the circumstances attendant to the commission of the crime
Penalty imposed- sentence derived

If victim minor is 12 but below 18-sexual abuse/acts of lasciviousness/rape-

Victim who is @ 12 (interpreted as pro reo- not covered by statutory rape)

RA 7610- applies when there is Sexual Abuse/Acts of Lasciviousness + prostitution or other sexual abuse
(coercion by an adult against a minor to engage in sexual intercourse or acts of lasciviousness)- all these
elements must be alleged and proven to secure conviction of the accused.

Sweetheart theory-not a valid defense if the victim is a minor prostitute.

Crimes against status of a person-

Bigamy- even if marriage is void ab initio and accused contracted subsequent marriage, without securing
judicial declaration of nullity of the 1st marriage, liable for bigamy.

Bigamy- even if 2nd marriage is void, as long as the accused contracted 2nd marriage regardless of the
nature of 2nd marriage, the accused is liable for bigamy.

Suppose the accused secured the declaration of nullity of the 2nd marriage, the accused is still liable for
bigamy. The civil code principle on retroactivity of effect of void ab initio marriage will not apply.

If the accused subsequently converted to Muslim religion and contracted subsequent marriage/s, if
celebrated under catholic ceremony, liable for bigamy. However, if he complies with the muslim law, he
will not be liable.

LIBEL- Art 353 and 355. Even a corporation maybe awarded with moral damages when there is a libel
(pilipinas broadcasting case) or even a dead person.

Requisites of libel:

1. defamatory imputation (PI expression does not constitute libel)

2. identity (ex. Imputation against a class- not libel; against certain family- libel)
3. publication- known by a third person. If there is publication, liability is not limited to the
author/writer but also to the manager or owner of the publishing company
place of publication or residence of the victim- venue of libel case
it must be alleged in the information the place… where the publication takes place/where victim
resides and libellous article was released
4. malice:
a. malice in law- presumed when there is libel
b. malice in fact- if the writing is qualified (not absolute) privilege communication- prosecution
must prove actual motive. In case of qualified privilege communication does not constitute
libel unless done with malice

Exceptions from libel: public officer/public figure

Is proof of truth a defense in libel- Art 361- if it involves a private individual – imputation of crime, no
matter how true it was, must be coupled with good intention. If with good intention, proof of truth
maybe a defense.

Even it involves a public official and imputation involves a crime arising from his official function, proof
of truth is an absolute defense regardless of malice or intention. If he was not able to prove the truth, he
is liable if he acted with malice. But if he wrote the libellous material out of good faith, though truth not
proven, he is not liable for libel. Otherwise, this suppresses freedom of expression.

Acts of lasciviousness- motivated by lust/lieud design, without this, mere to vex or annoyance- unjust
vexation but if humiliation is the purpose- slander by deed.