Professional Documents
Culture Documents
Ortega Notes Criminal Law Ii
Ortega Notes Criminal Law Ii
TITLE I. CRIMES AGAINST NATIONAL Almost all of these are crimes committed in
SECURITY AND THE LAW OF NATIONS times of war, except the following, which
can be committed in times of peace:
Crimes against national security (1) Espionage, under Article 114 – This
is also covered by Commonwealth
1. Treason (Art. 114); Act No. 616 which punishes
conspiracy to commit espionage.
2. Conspiracy and proposal to commit This may be committed both in times
treason (Art. 115); of war and in times of peace.
3. Misprision of treason (Art. 116); and (2) Inciting to War or Giving Motives for
Reprisals, under Article 118 – This
4. Espionage (Art. 117). can be committed even if the
Philippines is not a participant.
Exposing the Filipinos or their
Crimes against the law of nations properties because the offender
performed an unauthorized act, like
1. Inciting to war or giving motives for those who recruit Filipinos to
reprisals (Art. 118); participate in the gulf war. If they
involve themselves to the war, this
2. Violation of neutrality (Art. 119); crime is committed. Relevant in the
cases of Flor Contemplacion or
3. Corresponding with hostile country Abner Afuang, the police officer who
(Art. 120); stepped on a Singaporean flag.
4. Flight to enemy's country (Art. 121); (3) Violation of Neutrality, under Article
and 119 – The Philippines is not a party
to a war but there is a war going on.
5. Piracy in general and mutiny on the This may be committed in the light of
high seas (Art. 122). the Middle East war.
1. There is a war in which the While in treason, even aliens can commit
Philippines is involved; said crime because of the amendment to
the article, no such amendment was made
2. At least two persons come to an in misprision of treason. Misprision of
agreement to – treason is a crime that may be committed
only by citizens of the Philippines.
a. levy war against the
government; or The essence of the crime is that there are
persons who conspire to commit treason
b. adhere to the enemies, and the offender knew this and failed to
giving them aid or comfort; make the necessary report to the
government within the earliest possible
3. They decide to commit it. time. What is required is to report it as soon
as possible. The criminal liability arises if
the treasonous activity was still at the
Elements of proposal to commit treason conspiratorial stage. Because if the treason
already erupted into an overt act, the
1. There is a war in which the implication is that the government is already
Philippines is involved; aware of it. There is no need to report the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
4. Disloyal acts or words in times of Penal Code was enacted, rebellion was
war; carried out only with bolos and spears;
hence, national security was not really
5. Conspiracy to violate preceding threatened. Now, the threat of rebellion or
sections; and internal wars is serious as a national threat.
Elements
Article 121. Flight to Enemy's Country
1. There is a war in which the Philippines is
not involved; Elements
4. The preceding were committed under Republic Act No. 6235 (The Anti Hi-
any of the following circumstances: Jacking Law)
law makes a distinction between aircraft of and were told to proceed to the aircraft to fly
a foreign registry and of Philippine registry. it to a foreign destination. The armed men
If the aircraft subject of the hi-jack is of walked with the pilots and went on board
Philippine registry, it should be in flight at the aircraft. But before they could do
the time of the hi-jacking. Otherwise, the anything on the aircraft, alert marshals
anti hi-jacking law will not apply and the arrested them. What crime was committed?
crime is still punished under the Revised
Penal Code. The correlative crime may be The criminal intent definitely is to
one of grave coercion or grave threat. If take control of the aircraft, which is hi-
somebody is killed, the crime is homicide or jacking. It is a question now of whether the
murder, as the case may be. If there are anti-hi-jacking law shall govern.
some explosives carried there, the crime is
destructive arson. Explosives are by nature The anti hi-jacking law is applicable
pyro-techniques. Destruction of property in this case. Even if the aircraft is not yet
with the use of pyro-technique is destructive about to fly, the requirement that it be in
arson. If there is illegally possessed or flight does not hold true when in comes to
carried firearm, other special laws will apply. aircraft of foreign registry. Even if the
problem does not say that all exterior doors
On the other hand, if the aircraft is of are closed, the crime is hi-jacking. Since
foreign registry, the law does not require the aircraft is of foreign registry, under the
that it be in flight before the anti hi-jacking law, simply usurping or seizing control is
law can apply. This is because aircrafts of enough as long as the aircraft is within
foreign registry are considered in transit Philippine territory, without the requirement
while they are in foreign countries. that it be in flight.
Although they may have been in a foreign
country, technically they are still in flight, Note, however, that there is no hi-
because they have to move out of that jacking in the attempted stage. This is a
foreign country. So even if any of the acts special law where the attempted stage is
mentioned were committed while the not punishable.
exterior doors of the foreign aircraft were
still open, the anti hi-jacking law will already 2. A Philippine Air Lines aircraft
govern. is bound for Davao. While the pilot and co-
pilot are taking their snacks at the airport
Note that under this law, an aircraft is lounge, some of the armed men were also
considered in flight from the moment all there. The pilots were followed by these
exterior doors are closed following men on their way to the aircraft. As soon as
embarkation until such time when the same the pilots entered the cockpit, they pulled
doors are again opened for disembarkation. out their firearms and gave instructions
This means that there are passengers that where to fly the aircraft. Does the anti hi-
boarded. So if the doors are closed to bring jacking law apply?
the aircraft to the hangar, the aircraft is not
considered as in flight. The aircraft shall be No. The passengers have yet to
deemed to be already in flight even if its board the aircraft. If at that time, the
engine has not yet been started. offenders are apprehended, the law will not
apply because the aircraft is not yet in flight.
Note that the aircraft is of Philippine registry.
Questions & Answers
3. While the stewardess of a
Philippine Air Lines plane bound for Cebu
1. The pilots of the Pan Am was waiting for the passenger manifest, two
aircraft were accosted by some armed men of its passengers seated near the pilot
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
surreptitiously entered the pilot cockpit. At packing of such kind of articles, the quantity
gunpoint, they directed the pilot to fly the in which they may be loaded at any time,
aircraft to the Middle East. However, before etc. Otherwise, the anti hi-jacking law does
the pilot could fly the aircraft towards the not apply.
Middle East, the offenders were subdued
and the aircraft landed. What crime was However, under Section 7, any physical
committed? injury or damage to property which would
result from the carrying or loading of the
The aircraft was not yet in flight. flammable, corrosive, explosive, or
Considering that the stewardess was still poisonous substance in an aircraft, the
waiting for the passenger manifest, the offender shall be prosecuted not only for
doors were still open. Hence, the anti hi- violation of Republic Act No. 6235, but also
jacking law is not applicable. Instead, the for the crime of physical injuries or damage
Revised Penal Code shall govern. The to property, as the case may be, under the
crime committed was grave coercion or Revised Penal Code. There will be two
grave threat, depending upon whether or prosecutions here. Other than this
not any serious offense violence was situation, the crime of physical injuries will
inflicted upon the pilot. be absorbed. If the explosives were planted
in the aircraft to blow up the aircraft, the
However, if the aircraft were of circumstance will qualify the penalty and
foreign registry, the act would already be that is not punishable as a separate crime
subject to the anti hi-jacking law because for murder. The penalty is increased under
there is no requirement for foreign aircraft to the anti hi-jacking law.
be in flight before such law would apply.
The reason for the distinction is that as long All other acts outside of the four are merely
as such aircraft has not returned to its home qualifying circumstances and would bring
base, technically, it is still considered in about higher penalty. Such acts would not
transit or in flight. constitute another crime. So the killing or
explosion will only qualify the penalty to a
higher one.
As to numbers 3 and 4 of Republic Act No.
6235, the distinction is whether the aircraft
is a passenger aircraft or a cargo aircraft. Questions & Answers
In both cases, however, the law applies only
to public utility aircraft in the Philippines.
Private aircrafts are not subject to the anti 1. In the course of the hi-jack, a
hi-jacking law, in so far as transporting passenger or complement was shot and
prohibited substances are concerned. killed. What crime or crimes were
committed?
If the aircraft is a passenger aircraft, the
prohibition is absolute. Carrying of any The crime remains to be a violation
prohibited, flammable, corrosive, or of the anti hi-jacking law, but the penalty
explosive substance is a crime under thereof shall be higher because a
Republic Act No. 6235. But if the aircraft is passenger or complement of the aircraft
only a cargo aircraft, the law is violated only had been killed. The crime of
when the transporting of the prohibited homicide or murder is not committed.
substance was not done in accordance with
the rules and regulations prescribed by the 2. The hi-jackers threatened to
Air Transportation Office in the matter of detonate a bomb in the course of the hi-
shipment of such things. The Board of jack. What crime or crimes were
Transportation provides the manner of committed?
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
10. Offending the religious feelings (Art. 3. The person detained has no ailment
133); which requires compulsory
confinement in a hospital.
to the investigating officer who booked him the accused may be detained without formal
and filed a charge of reckless imprudence charge. But he must cause a formal charge
against him, then the crime would be or application to be filed with the proper
unlawful arrest. The detention of the driver court before 12, 18 or 36 hours lapse.
is incidental to the supposed crime he did Otherwise he has to release the person
not commit. But if there is no supposed arrested.
crime at all because the driver was not
charged at all, he was not given place under Note that the period stated herein does not
booking sheet or report arrest, then that include the nighttime. It is to be counted
means that the only purpose of the offender only when the prosecutor’s office is ready to
is to stop him from driving his jeepney receive the complaint or information.
because he refused to contribute to the
tong. This article does not apply if the arrest is
with a warrant. The situation contemplated
here is an arrest without a warrant.
Article 125. Delay in the Delivery of
Detained Persons to the Proper Judicial
Authorities Question & Answer
Elements
Within what period should a police
1. Offender is a public officer or employee; officer who has arrested a person under a
warrant of arrest turn over the arrested
person to the judicial authority?
2. He detains a person for some legal
ground; There is no time limit specified
except that the return must be made within
3. He fails to deliver such person to the a reasonable time. The period fixed by law
proper judicial authorities within – under Article 125 does not apply because
the arrest was made by virtue of a warrant
a. 12 hour for light penalties; of arrest.
At the beginning, it may happen that the In Article 153, the offender need not
assembly is lawful and peaceful. If in the be a public officer. The essence of
course of the assembly the participants the crime is that of creating a
commit illegal acts like oral defamation or serious disturbance of any sort in a
inciting to sedition, a public officer or law public office, public building or even
enforcer can stop or dissolve the meeting. a private place where a public
The permit given is not a license to commit function is being held.
a crime.
There are two criteria to determine whether Article 132. Interruption of Religious
Article 131 would be violated: Worship
In Article 131, the offender must be There must be deliberate intent to hurt the
a public officer and, without any feelings of the faithful.
legal ground, he prohibits, interrupts,
or dissolves a peaceful meeting or
assembly to prevent the offended
party from exercising his freedom of
speech and that of the assembly to
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
TITLE III. CRIMES AGAINST PUBLIC 17. Tumults and other disturbances of
ORDER public order (Art. 153);
1. Rebellion or insurrection (Art. 134); 19. Alarms and scandals (Art. 155);
2. Conspiracy and proposal to commit 20. Delivering prisoners from jails (Art.
rebellion (Art. 136); 156);
The essence of this crime is a public to its amendment by the Republic Act No.
uprising with the taking up of arms. It 6968 (An Act Punishing the Crime of Coup
requires a multitude of people. It aims to D’etat), which became effective on October
overthrow the duly constituted government. 1990. Prior to its amendment by Republic
It does not require the participation of any Act No. 6968, Article 135 punished those
member of the military or national police “who while holding any public office or
organization or public officers and generally employment, take part therein” by any of
carried out by civilians. Lastly, the crime these acts: engaging in war against the
can only be committed through force and forces of Government; destroying property;
violence. committing serious violence; exacting
contributions, diverting funds for the lawful
purpose for which they have been
Rebellion and insurrection are not appropriated.
synonymous. Rebellion is more frequently
used where the object of the movement is Since a higher penalty is prescribed for the
completely to overthrow and supersede the crime of rebellion when any of the specified
existing government; while insurrection is acts are committed in furtherance thereof,
more commonly employed in reference to a said acts are punished as components of
movement which seeks merely to effect rebellion and, therefore, are not to be
some change of minor importance, or to treated as distinct crimes. The same acts
prevent the exercise of governmental constitute distinct crimes when committed
authority with respect to particular matters on a different occasion and not in
of subjects (Reyes, citing 30 Am. Jr. 1). furtherance of rebellion. In short, it was
because Article 135 then punished said acts
as components of the crime of rebellion that
Rebellion can now be complexed with precludes the application of Article 48 of the
common crimes. Not long ago, the Revised Penal Code thereto. In the eyes of
Supreme Court, in Enrile v. Salazar, the law then, said acts constitute only one
186 SCRA 217, reiterated and crime and that is rebellion. The Hernandez
affirmed the rule laid down in People doctrine was reaffirmed in Enrile v. Salazar
v. Hernandez, 99 Phil 515, that because the text of Article 135 has
rebellion may not be complexed with remained the same as it was when the
common crimes which are committed Supreme Court resolved the same issue in
in furtherance thereof because they the People v. Hernandez. So the Supreme
are absorbed in rebellion. In view of Court invited attention to this fact and thus
said reaffirmation, some believe that it stated:
has been a settled doctrine that
rebellion cannot be complexed with “There is a an apparent need to restructure
common crimes, such as killing and the law on rebellion, either to raise the
destruction of property, committed on penalty therefore or to clearly define and
the occasion and in furtherance delimit the other offenses to be considered
thereof. absorbed thereby, so that it cannot be
conveniently utilized as the umbrella for
This thinking is no longer correct; there is every sort of illegal activity undertaken in its
no legal basis for such rule now. name. The court has no power to effect
such change, for it can only interpret the law
The statement in People v. Hernandez that as it stands at any given time, and what is
common crimes committed in furtherance of needed lies beyond interpretation.
rebellion are absorbed by the crime of Hopefully, Congress will perceive the need
rebellion, was dictated by the provision of for promptly seizing the initiative in this
Article 135 of the Revised Penal Code prior matter, which is purely within its province.”
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
lower penalty for those who are only communication networks, public
followers of the rebellion. utilities or other facilities needed for
the exercise and continued
Distinctions between rebellion and sedition possession of power;
Article 143. Acts Tending to Prevent the 1. Using force, intimidation, threats, or
Meeting of the Congress of the frauds to prevent any member of
Philippines and Similar Bodies Congress from attending the
meetings of Congress or of any of its
Elements committees or subcommittees,
constitutional commissions or
1. There is a projected or actual committees or divisions thereof, or
meeting of Congress or any of its from expressing his opinion or
committees or subcommittees, casting his vote;
constitutional committees or
divisions thereof, or of any provincial Elements
board or city or municipal council or
board; 1. Offender uses force,
intimidation, threats or fraud;
2. Offender, who may be any person,
prevents such meetings by force or 2. The purpose of the offender
fraud. is to prevent any member of
Congress from –
1. Any meeting attended by armed If any person present at the meeting carries
persons for the purpose of an unlicensed firearm, it is presumed that
committing any of the crimes the purpose of the meeting insofar as he is
punishable under the Code; concerned is to commit acts punishable
under the Revised Penal Code, and he is
Elements considered a leader or organizer of the
meeting.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Elements
2. In illegal association, it is the act of
forming or organizing and 1. Offender makes an attack,
membership in the association that employs force, makes a
are punished. serious intimidation, or
makes a serious resistance;
In illegal assembly, it is the meeting
and attendance at such meeting that 2. The person assaulted is a
are punished. person in authority or his
agent;
3. In illegal association, the persons
liable are (1) the founders, directors 3. At the time of the assault, the
and president; and (2) the members. person in authority or his
agent is engaged in the
In illegal assembly, the persons actual performance of official
liable are (1) the organizers or duties, or that he is assaulted
leaders of the meeting and (2) the by reason of the past
persons present at meeting. performance of official duties;
Acts punished
Article 149. Indirect Assault
1. By refusing, without legal excuse, to
Elements obey summons of Congress, its
special or standing committees and
1. A person in authority or his agent is subcommittees, the Constitutional
the victim of any of the forms of Commissions and its committees,
direct assault defined in Article 148; subcommittees or divisions, or by
any commission or committee
2. A person comes to the aid of such chairman or member authorized to
authority or his agent; summon witnesses;
A person in authority is one directly vested Article 153. Tumults and Other
with jurisdiction, that is, the power and Disturbances of Public Order
authority to govern and execute the laws.
Acts punished
An agent of a person in authority is one
charged with (1) the maintenance of public 1. Causing any serious disturbance in
order and (2) the protection and security of a public place, office or
life and property. establishment;
2. Interrupting or disturbing
Examples of persons in authority performances, functions or
gatherings, or peaceful meetings, if
1. Municipal mayor; the act is not included in Articles 131
and 132;
2. Division superintendent of schools;
3. Making any outcry tending to incite
3. Public and private school teachers; rebellion or sedition in any meeting,
association or public place;
4. Teacher-nurse;
4. Displaying placards or emblems
5. President of sanitary division; which provoke a disturbance of
public order in such place;
6. Provincial fiscal;
5. Burying with pomp the body of a
7. Justice of the Peace; person who has been legally
executed.
8. Municipal councilor;
possible crimes under the Revised Penal Charivari is a mock serenade wherein the
Code: supposed serenaders use broken
cans, broken pots, bottles or other
(1) Alarms and utensils thereby creating discordant
scandals if the firearm when notes. Actually, it is producing noise,
discharged was not directed to any not music and so it also disturbs
particular person; public tranquility. Understand the
nature of the crime of alarms and
(2) Illegal discharge of firearm under scandals as one that disturbs public
Article 254 if the firearm is directed tranquility or public peace. If the
or pointed to a particular person annoyance is intended for a particular
when discharged but intent to kill is person, the crime is unjust vexation.
absent;
Even if the persons involved are engaged in
(3) Attempted homicide, murder, or nocturnal activity like those playing patintero
parricide if the firearm when at night, or selling balut, if they conduct their
discharged is directed against a activity in such a way that disturbs public
person and intent to kill is present. peace, they may commit the crime of
alarms and scandals.
In this connection, understand that it is not
necessary that the offended party be
wounded or hit. Mere discharge of firearm Article 156. Delivering Prisoners from
towards another with intent to kill already Jail
amounts to attempted homicide or
attempted murder or attempted parricide. It Elements
can not be frustrated because the offended
party is not mortally wounded. 1. There is a person confined in a jail
or penal establishment;
In Araneta v. Court of Appeals, it was held
that if a person is shot at and is 2. Offender removes therefrom such
wounded, the crime is automatically person, or helps the escape of such
attempted homicide. Intent to kill is person.
inherent in the use of the deadly
weapon. Penalty of arresto mayor in its maximum
period to prision correccional in its minimum
The crime alarms and scandal is only one period is imposed if violence, intimidation or
crime. Do not think that alarms and bribery is used.
scandals are two crimes.
Penalty of arresto mayor if other means are
Scandal here does not refer to moral used.
scandal; that one is grave scandal in Article
200. The essence of the crime is Penalty decreased to the minimum period if
disturbance of public tranquility and public the escape of the prisoner shall take place
peace. So, any kind of disturbance of outside of said establishments by taking the
public order where the circumstance at the guards by surprise.
time renders the act offensive to the
tranquility prevailing, the crime is
committed.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
In relation to infidelity in the custody of prisoner knows of the plot to remove him
prisoners, correlate the crime of from jail and cooperates therein by
delivering person from jail with escaping, he himself becomes liable for
infidelity in the custody of delivering prisoners from jail as a principal
prisoners punished under Articles by indispensable cooperation.
223, 224 and 225 of the Revised
Penal Code. In both acts, the If three persons are involved – a stranger,
offender may be a public officer the custodian and the prisoner – three
or a private citizen. Do not think crimes are committed:
that infidelity in the custody of
prisoners can only be committed (1) Infidelity in the custody of prisoners;
by a public officer and delivering
persons from jail can only be (2) Delivery of the prisoner from jail; and
committed by private person.
Both crimes may be committed (3) Evasion of service of sentence.
by public officers as well as
private persons.
Article 157. Evasion of Service of
In both crimes, the person involved may be Sentence
a convict or a mere detention prisoner.
Elements
The only point of distinction between the
two crimes lies on whether the offender is 1. Offender is a convict by final judgment;
the custodian of the prisoner or not at the
time the prisoner was made to escape. If 2. He is serving sentence which consists in
the offender is the custodian at that time, the deprivation of liberty;
the crime is infidelity in the custody of
prisoners. But if the offender is not the 3. He evades service of his sentence by
custodian of the prisoner at that time, even escaping during the term of his
though he is a public officer, the crime he imprisonment.
committed is delivering prisoners from jail.
(3) Violating the condition of conditional The leaving from the penal establishment is
pardon under Article 159. not the basis of criminal liability. It
is the failure to return within 48
In leaving or escaping from jail or prison, hours after the passing of the
that the prisoner immediately calamity, conflagration or mutiny
returned is immaterial. It is enough had been announced. Under
that he left the penal establishment Article 158, those who return within
by escaping therefrom. His 48 hours are given credit or
voluntary return may only be deduction from the remaining
mitigating, being analogous to period of their sentence equivalent
voluntary surrender. But the same to 1/5 of the original term of the
will not absolve his criminal liability. sentence. But if the prisoner fails
to return within said 48 hours, an
added penalty, also 1/5, shall be
Article 158. Evasion of Service of imposed but the 1/5 penalty is
Sentence on the Occasion of Disorders, based on the remaining period of
Conflagrations, Earthquakes, or Other the sentence, not on the original
Calamities sentence. In no case shall that
penalty exceed six months.
Elements
Those who did not leave the penal
1. Offender is a convict by final establishment are not entitled to the 1/5
judgment, who is confined in a penal credit. Only those who left and returned
institution; within the 48-hour period.
a. conflagration;
b. earthquake;
c. explosion; or
d. similar catastrophe; or
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
The mutiny referred to in the second form of In violation of conditional pardon, as a rule,
evasion of service of sentence the violation will amount to this
does not include riot. The mutiny crime only if the condition is
referred to here involves violated during the remaining
subordinate personnel rising period of the sentence. As a rule,
against the supervisor within the if the condition of the pardon is
penal establishment. One who violated when the remaining
escapes during a riot will be unserved portion of the sentence
subject to Article 157, that is, has already lapsed, there will be
simply leaving or escaping the no more criminal liability for the
penal establishment. violation. However, the convict
maybe required to serve the
Mutiny is one of the causes which may unserved portion of the sentence,
authorize a convict serving sentence in the that is, continue serving original
penitentiary to leave the jail provided he penalty.
has not taken part in the mutiny.
The administrative liability of the convict
The crime of evasion of service of sentence under the conditional pardon is different and
may be committed even if the has nothing to do with his criminal liability
sentence is destierro, and this is for the evasion of service of sentence in the
committed if the convict sentenced event that the condition of the pardon has
to destierro will enter the prohibited been violated. Exception: where the
places or come within the violation of the condition of the pardon will
prohibited radius of 25 kilometers constitute evasion of service of sentence,
to such places as stated in the even though committed beyond the
judgment. remaining period of the sentence. This is
when the conditional pardon expressly so
If the sentence violated is destierro, the provides or the language of the conditional
penalty upon the convict is to be served by pardon clearly shows the intention to make
way of destierro also, not imprisonment. the condition perpetual even beyond the
This is so because the penalty for the unserved portion of the sentence. In such
evasion can not be more severe than the case, the convict may be required to serve
penalty evaded. the unserved portion of the sentence even
though the violation has taken place when
the sentence has already lapsed.
Article 159. Other Cases of Evasion of
Service of Sentence In order that the conditional pardon may be
violated, it is conditional that the pardonee
Elements of violation of conditional pardon received the conditional pardon. If he is
released without conformity to the
1. Offender was a convict; conditional pardon, he will not be liable for
the crime of evasion of service of sentence.
2. He was granted pardon by the Chief
Executive;
12. Falsification of wireless, cable, 27. Substituting and altering trade marks
telegraph and telephone messages and trade names or service marks
and use of said falsified messages (Art. 188);
(Art. 173);
28. Unfair competition and fraudulent
13. False medical certificates, false registration of trade mark or trade
certificates of merit or service (Art. name, or service mark; fraudulent
174); designation of origin, and false
description (Art. 189).
14. Using false certificates (Art. 175);
15. Manufacturing and possession of The crimes in this title are in the nature of
instruments or implements for fraud or falsity to the public. The essence
falsification (Art. 176); of the crime under this title is that which
defraud the public in general. There is
16. Usurpation of authority or official deceit perpetrated upon the public. This is
functions (Art. 177); the act that is being punished under this
title.
17. Using fictitious name and concealing
true name (Art. 178);
Article 161. Counterfeiting the Great
18. Illegal use of uniforms or insignia Seal of the Government of the Philippine
(Art. 179); Islands, Forging the Signature or Stamp
of the Chief Executive
19. False testimony against a defendant
(Art. 180); Acts punished
20. False testimony favorable to the 1. Forging the great seal of the
defendant (Art. 181); Government of the Philippines;
21. False testimony in civil cases (Art. 2. Forging the signature of the
182); President;
22. False testimony in other cases and 3. Forging the stamp of the President.
perjury (Art. 183);
23. Offering false testimony in evidence Article 162. Using Forged Signature or
(Art. 184); Counterfeit Seal or Stamp
develop the expertise to make the (2) Offender gains from the precious
counterfeiting more or less no longer metal dust abstracted from the coin;
discernible or no longer noticeable, they and
could make use of their ingenuity to
counterfeit coins of legal tender. From that (3) It has to be a coin.
time on, the government shall have difficulty
determining which coins are counterfeited Mutilation is being regarded as a crime
and those which are not. It may happen because the coin, being of legal tender, it is
that the counterfeited coins may look better still in circulation and which would
than the real ones. So, counterfeiting is necessarily prejudice other people who may
penalized right at the very start whether the come across the coin. For example, X
coin is legal tender or otherwise. mutilated a P 2.00 coin, the octagonal one,
by converting it into a round one and
extracting 1/10 of the precious metal dust
from it. The coin here is no longer P2.00
Question & Answer
but only P 1.80, therefore, prejudice to the
public has resulted.
X has in his possession a coin which
was legal tender at the time of Magellan and There is no expertise involved here. In
is considered a collector’s item. He mutilation of coins under the Revised Penal
manufactured several pieces of that coin. Is Code, the offender does nothing but to
the crime committed? scrape, pile or cut the coin and collect the
dust and, thus, diminishing the intrinsic
Yes. It is not necessary that the coin value of the coin.
be of legal tender. The provision punishing
counterfeiting does not require that the Mutilation of coins is a crime only if the coin
money be of legal tender and the law mutilated is legal tender. If the coin whose
punishes this even if the coin concerned is metal content has been depreciated
not of legal tender in order to discourage through scraping, scratching, or filing the
people from practicing their ingenuity of coin and the offender collecting the precious
imitating money. If it were otherwise, metal dust, even if he would use the coin
people may at the beginning try their after its intrinsic value had been reduced,
ingenuity in imitating money not of legal nobody will accept the same. If it is not
tender and once they acquire expertise, legal tender anymore, no one will accept it,
they may then counterfeit money of legal so nobody will be defrauded. But if the coin
tender. is of legal tender, and the offender
minimizes or decreases the precious metal
dust content of the coin, the crime of
(2) Mutilation of coins -- This refers to mutilation is committed.
the deliberate act of diminishing the
proper metal contents of the coin In the example, if the offender has collected
either by scraping, scratching or 1/10 of the P 2.00 coin, the coin is actually
filling the edges of the coin and the worth only P 1.80. He is paying only P1.80
offender gathers the metal dust that in effect defrauding the seller of P .20.
has been scraped from the coin. Punishment for mutilation is brought about
by the fact that the intrinsic value of the coin
Requisites of mutilation under the Revised is reduced.
Penal Code
The offender must deliberately reduce the
(1) (1) Coin mutilated is of legal tender; precious metal in the coin. Deliberate intent
arises only when the offender collects the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
precious metal dust from the mutilated coin. 3. Sometime before martial law
If the offender does not collect such dust, was imposed, the people lost confidence in
intent to mutilate is absent, but Presidential banks that they preferred hoarding their
Decree No. 247 will apply. money than depositing it in banks. Former
President Ferdinand Marcos declared upon
declaration of martial law that all bills
Presidential Decree No. 247 without the Bagong Lipunan sign on them
(Defacement, Mutilation, Tearing, will no longer be recognized. Because of
Burning or Destroying Central Bank this, the people had no choice but to
Notes and Coins) surrender their money to banks and
exchange them with those with the Bagong
It shall be unlawful for any person to willfully Lipunan sign on them. However, people
deface, mutilate, tear, burn, or destroy in who came up with a lot of money were also
any manner whatsoever, currency notes being charged with hoarding for which
and coins issued by the Central Bank. reason certain printing presses did the
stamping of the Bagong Lipunan sign
themselves to avoid prosecution. Was there
Mutilation under the Revised Penal Code is a violation of Presidential Decree No. 247?
true only to coins. It cannot be a crime
under the Revised Penal Code to mutilate Yes. This act of the printing presses
paper bills because the idea of mutilation is a violation of Presidential Decree No.
under the code is collecting the precious 247.
metal dust. However, under Presidential
Decree No. 247, mutilation is not limited to 4. An old woman who was a
coins. cigarette vendor in Quiapo refused to
accept one-centavo coins for payment of
the vendee of cigarettes he purchased.
Then came the police who advised her that
Questions & Answers
she has no right to refuse since the coins
are of legal tender. On this, the old woman
1. The people playing cara y accepted in her hands the one-centavo
cruz, before they throw the coin in the air coins and then threw it to the face of the
would rub the money to the sidewalk vendee and the police. Was the old woman
thereby diminishing the intrinsic value of the guilty of violating Presidential Decree No.
coin. Is the crime of mutilation committed? 247?
money is the one who is the violator of 2. Actually uttering such false or
Presidential Decree No. 247. The intention mutilated coin, knowing the same to
of Presidential Decree No. 247 is not to be false or mutilated.
punish the act of defrauding the public but
what is being punished is the act of Elements
destruction of money issued by the Central
Bank of the Philippines. 1. Actually uttering; and
2. Knowledge.
Note that persons making bracelets out of
some coins violate Presidential Decree No.
247. Article 166. Forging Treasury or Bank
Notes or Other Documents Payable to
The primary purpose of Presidential Decree Bearer; Importing and Uttering Such
No. 247 at the time it was ordained was to False or Forged Notes and Documents
stop the practice of people writing at the
back or on the edges of the paper bills, Acts punished
such as "wanted: pen pal".
1. Forging or falsification of treasury or
So, if the act of mutilating coins does not bank notes or other documents
involve gathering dust like playing cara y payable to bearer;
cruz, that is not mutilation under the
Revised Penal Code because the offender 2. Importation of such false or forged
does not collect the metal dust. But by obligations or notes;
rubbing the coins on the sidewalk, he also
defaces and destroys the coin and that is 3. Uttering of such false or forged
punishable under Presidential Decree No. obligations or notes in connivance
247. with the forgers or importers.
3. He either –
Questions & Answers
a. uses any of such forged or
falsified instruments; or
1. Instead of the peso sign (P),
b. possesses with intent to use somebody replaced it with a dollar sign ($).
any of such forged or falsified Was the crime of forgery committed?
instruments.
No. Forgery was not committed.
The forged instrument and currency note
How forgery is committed under Article 169 must be given the appearance of a true and
genuine document. The crime committed is
1. By giving to a treasury or bank note or a violation of Presidential Decree No. 247.
any instrument payable to bearer or Where the currency note, obligation or
to order mentioned therein, the security has been changed to make it
appearance of a true and genuine appear as one which it purports to be as
document; genuine, the crime is forgery. In checks or
commercial documents, this crime is
2. By erasing, substituting, committed when the figures or words are
counterfeiting, or altering by any changed which materially alters the
means the figures, letters, words, or document.
sign contained therein.
2. An old man, in his desire to
earn something, scraped a digit in a losing
Forgery under the Revised Penal Code sweepstakes ticket, cut out a digit from
applies to papers, which are in the form of another ticket and pasted it there to match
obligations and securities issued by the the series of digits corresponding to the
Philippine government as its own winning sweepstakes ticket. He presented
obligations, which is given the same status this ticket to the Philippine Charity
as legal tender. Generally, the word Sweepstakes Office. But the alteration is so
“counterfeiting” is not used when it comes to crude that even a child can notice that the
notes; what is used is “forgery.” supposed digit is merely superimposed on
Counterfeiting refers to money, whether the digit that was scraped. Was the old man
coins or bills. guilty of forgery?
a. Counterfeiting or imitating
any handwriting, signature or For example, a customer in a hotel did not
rubric; write his name on the registry book, which
was intended to be a memorial of those who
b. Causing it to appear that got in and out of that hotel. There is no
persons have participated in complete document to speak of. The
any act or proceeding when document may not extinguish or create
they did not in fact so rights but it can be an evidence of the facts
participate; stated therein.
Acts punished
Article 178. Using Fictitious Name and
1. Making or introducing into the Concealing True Name
Philippines any stamps, dies, marks,
or other instruments or implements Acts punished
for counterfeiting or falsification;
1. Using fictitious name
2. Possession with intent to use the
instruments or implements for Elements
counterfeiting or falsification made in
or introduced into the Philippines by 1. Offender uses a name other
another person. than his real name;
Article 179. Illegal Use of Uniforms or 3. False testimony in other cases under
Insignia Article 183.
Elements
Article 181. False Testimony Favorable
1. Offender makes use of insignia, to the Defendant
uniforms or dress;
Elements
2. The insignia, uniforms or dress pertains
to an office not held by such person 1. A person gives false testimony;
or a class of persons of which he is
not a member; 2. In favor of the defendant;
without the consent of the owner of the good faith by which he shall pass off the
registered mark: goods manufactured by him or in which he
deals, or his business, or services for those
155.1. Use in commerce any of the one having established such goodwill,
reproduction, counterfeit, copy, or colorable or who shall commit any acts calculated to
imitation of a registered mark or the same produce said result, shall be guilty of unfair
container or a dominant feature thereof in competition, and shall be subject to an
connection with the sale, offering for sale, action therefor.
distribution, advertising of any goods or
services including other preparatory steps 168.3. In particular, and without in
necessary to carry out the sale of any goods any way limiting the scope of protection
or services on or in connection with which against unfair competition, the following
such use is likely to course confusion, or to shall be deemed guilty of unfair competition:
cause mistake, or to deceive; or
(a) Any person, who is selling his
155.2. Reproduce, counterfeit, copy goods and gives them the general
or colorably imitate a registered mark or a appearance of goods of another
dominant feature thereof and apply such manufacturer or dealer, either as to the
reproduction, counterfeit, copy or colorable goods themselves or in the wrapping of the
imitation to labels, signs, prints, packages, packages in which they are contained, or
wrappers, receptacles or advertisement the devices or words thereon, on in any
intended to be used in commerce upon or in other feature or their appearance, which
connection with the sale, offering for sale, would be likely to influence purchasers to
distribution, or advertising of goods or believe that the goods offered are those of a
services on or in connection with which manufacturer or dealer, other than the
such use is likely to cause confusion, or to actual manufacturer or dealer, or who
cause mistake, or to deceive shall be liable otherwise clothes the goods with such
in a civil action for infringement by the appearance as shall deceive the public and
registrant for the remedies hereinafter set defraud another of his legitimate trade, or
forth: Provided, that the infringement takes any subsequent vendor of such goods or
place at the moment any of the acts stated any agent of any vendor engaged in selling
in Subsection 155.1 or this subsection are such goods with a like purpose; or
committed regardless of whether there is
actual sale of goods or services using the (b) Any person who by any
infringing material. artifice, or device, or who employs any other
means calculated to induce the false belief
Section 168. Unfair Competition, that such person is offering the services of
Rights, Regulation and Remedies. another who ahs identified such services in
the mind of the public; or
168.1. Any person who has
identified in the mind of the public the goods (c) Any person who shall make
he manufactures or deals in, his business or any false statement in the course of trade or
services from those of others, whether or who shall commit any other act contrary to
not a registered mark is employed, has a good faith of a nature calculated to discredit
property right in the goodwill of the said the goods, business or services of another.
goods, business or service so identified,
which will be protected in the same manner 168.4. The remedies provided by
as other property rights. Section 156, 157 and 161 shall apply
mutatis mutandis.
168.2. Any person who shall employ
deception or any other means contrary to
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
card games, palk que, domino, mahjong, his possession any lottery list, paper, or
high and low, slot machines, roulette, pinball other matter containing letter, figures, signs
and other mechanical inventories or or symbols which pertain to or in any
devices, dog racing, boat racing, car raising manner used in the game of jueteng, jai-alai
and other races, basketball, volleyball, or horse racing bookies and similar game or
boxing, seven-eleven dice games and the lottery which has taken place or about to
like and other contests to include game take place.
fixing, point shaving and other machinations
banking or percentage game, or any other Section 2. Barangay Official. –
game or scheme, whether upon chance or Any barangay official in whose jurisdiction
skill, which do not have a franchise from the such gambling house is found and which
national government, wherein wagers house has the reputation of a gambling
consisting of money, articles of value of place shall suffer the penalty of prision
representative of value are made; correccional in its medium period and a fine
ranging from Five Hundred to Two
(b) Any person who shall Thousand Pesos and temporary absolute
knowingly permit any form of gambling disqualifications.
referred to in the preceding subdivision to
be carried on in inhabited or uninhabited
places or any building, vessel or other While the acts under the Revised Penal
means of transportation owned or controlled Code are still punished under the new law,
by him. If the place where gambling is yet the concept of gambling under it has
carried on has a reputation of a gambling been changed by the new gambling law.
place or that prohibited gambling is
frequently carried on therein or the place is Before, the Revised Penal Code considered
a public or government building or barangay the skill of the player in classifying whether
hall, the culprit shall be punished by the a game is gambling or not. But under the
penalty provided for in its maximum period new gambling law, the skill of the players is
and a fine of Six Thousand Pesos. immaterial.
(2) The merchandise is not really 2. Such act or acts be highly scandalous
saleable because of its inferior as offending against decency or
quality. A certain manufacturer, good customs;
Bhey Company, manufacture
cigarettes which is not saleable 3. The highly scandalous conduct is not
because the same is irritating to the expressly falling within any other
throat, sponsored a lottery and a article of this Code; and
coupon is inserted in every pack of
cigarette so that one who buys it 4. The act or acts complained of be
shall have a chance to participate. committed in a public place or within
Due to the coupons, the public the public knowledge or view.
started buying the cigarette.
Although there was no price
increase in the cigarettes, the lottery In grave scandal, the scandal involved
can be considered a gambling game refers to moral scandal offensive to
because the buyers were really after decency, although it does not disturb public
the coupons not the low quality peace. But such conduct or act must be
cigarettes. open to the public view.
If without the lottery or raffle, the In alarms and scandals, the scandal
public does not patronize the involved refers to disturbances of the public
product and starts to patronize them tranquility and not to acts offensive to
only after the lottery or raffle, in decency.
effect the public is paying for the
price not the product. Any act which is notoriously offensive to
decency may bring about criminal liability
for the crime of grave scandal provided
Under this decree, a barangay captain who such act does not constitute some other
is responsible for the existence of gambling crime under the Revised Penal Code.
dens in their own locality will be held liable Grave scandal is a crime of last resort.
and disqualified from office if he fails to
prosecute these gamblers. But this is not
being implemented.
Distinction should be made as to the place eight in the evening. So that at this
where the offensive act was hour of the night, you can expect
committed, whether in the public people outside gathered in front of
place or in a private place: her window looking at her silhouette.
She was charged of grave scandal.
(1) In public place, the criminal liability Her defense was that she was doing
arises irrespective of whether the it in her own house.
immoral act is open to the public
view. In short public view is not It is no defense that she is doing it in
required. her private home. It is still open to
the public view.
(2) When act offensive to decency is
done in a private place, public view (4) In a particular building in Makati
or public knowledge is required. which stands right next to the house
of a young lady who goes
Public view does not require numerous sunbathing in her poolside. Every
persons. Even if there was only one person morning several men in the upper
who witnessed the offensive act for as long floors would stick their heads out to
as the third person was not an intruder, get a full view of said lady while in
grave scandal is committed provided the act her two-piece swimsuit. The lady
does not fall under any other crime in the was then charged with grave
Revised Penal Code. scandal. Her defense was that it is
her own private pool and it is those
Illustrations: men looking down at her who are
malicious.
(1) A man and a woman enters a movie
house which is a public place and This is an act which even though
then goes to the darkest part of the done in a private place is
balcony and while there the man nonetheless open to public view.
started performing acts of
lasciviousness on the woman.
Article 201. Immoral Doctrines, Obscene
If it is against the will of the woman, Publications and Exhibitions and
the crime would be acts of Indecent Shows
lasciviousness. But if there is
mutuality, this constitutes grave Acts punished
scandal. Public view is not
necessary so long as it is performed 1. Those who shall publicly expound or
in a public place. proclaim doctrines openly contrary to
public morals;
(2) A man and a woman went to Luneta
and slept there. They covered 2. a. The authors of obscene
themselves their blanket and made literature, published with their
the grass their conjugal bed. knowledge in any form, the editors
publishing such literature; and the
This is grave scandal. owners/operators of the
establishment selling the same;
(3) In a certain apartment, a lady tenant
had the habit of undressing in her b. Those who, in theaters, fairs,
room without shutting the blinds. cinematographs, or any other place,
She does this every night at about exhibit indecent or immoral plays,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
3. Any idle or dissolute person who ledges The law is not concerned with the moral of
in houses of ill fame; one person. As long as the pornographic
matter or exhibition is made privately, there
4. Ruffians or pimps and those who is no crime committed under the Revised
habitually associate with prostitutes; Penal Code because what is protected is
the morality of the public in general. Third
5. Any person who, not being included in party is there. Performance of one to
the provisions of other articles of this another is not.
Code, shall be found loitering in any
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(2) Attempted theft under Article 308, 4. Malicious delay in the administration
paragraph 3, if the estate is fenced of justice (Art. 207);
and the offender entered the same
to hunt therein or fish from any 5. Prosecution of offenses; negligence
waters therein or to gather any farm and tolerance (Art. 208);
products therein without the consent
of the owner or overseer thereof; 6. Betrayal of trust by an attorney or
solicitor – Revelation of secrets (Art.
(3) Vagrancy under Article 202 if the 209);
estate is not fenced or there is no
clear prohibition against entering. 7. Direct bribery (Art. 210);
In law the mere indulging in lascivious 13. Prohibited transactions (Art. 215);
conduct habitually because of money or
gain would amount to prostitution, even if 14. Possession of prohibited interest by
there is no sexual intercourse. Virginity is a public officer (Art. 216);
not a defense. Habituality is the controlling
factor; is has to be more than one time. 15. Malversation of public funds or
property – Presumption of
There cannot be prostitution by conspiracy. malversation (Art. 217)
One who conspires with a woman in the
prostitution business like pimps, taxi drivers 16. Failure of accountable officer to
or solicitors of clients are guilty of the crime render accounts (Art. 218);
under Article 341 for white slavery.
17. Failure of a responsible public officer
to render accounts before leaving
TITLE VII. CRIMES COMMITTED BY the country (Art. 219);
PUBLIC OFFICERS
18. Illegal use of public funds or property
Crimes committed by public officers (Art. 220);
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
19. Failure to make delivery of public 36. Usurpation of legislative powers (Art.
funds or property (Art. 221); 239);
21. Evasion through negligence (Art. 38. Usurpation of judicial functions (Art.
224); 241);
24. Officer breaking seal (Art. 227); 41. Unlawful appointments (Art. 244);
and
25. Opening of closed documents (Art.
228); 42. Abuses against chastity (Art. 245).
2. His authority to take part in the perform an official duty which his
performance of public functions or to office requires him to perform.
perform public duties must be –
3. Judgment is unjust;
Originally, Title VII used the phrase “public
officer or employee” but the latter word has 4. The judge knows that his judgment is
been held meaningless and useless unjust .
because in criminal law, “public officer”
covers all public servants, whether an
official or an employee, from the highest to Article 205. Judgment Rendered through
the lowest position regardless of rank or Negligence
class; whether appointed by competent
authority or by popular election or by direct
1. Offender is a judge;
provision of law.
2. He renders a judgment in a case
Under Republic Act No. 3019 (The Anti-
submitted to him for decision;
Graft and Corrupt Practices Act), the term
public officer is broader and more
comprehensive because it includes all 3. The judgment is manifestly unjust;
persons whether an official or an employee,
temporary or not, classified or not, 4. It is due to his inexcusable negligence or
contractual or otherwise. Any person who ignorance.
receives compensation for services
rendered is a public officer.
Article 206. Unjust Interlocutory Order
Breach of oath of office partakes of three
forms: 1. Offender is a judge;
(1) Malfeasance - when a public officer 2. He performs any of the following acts:
performs in his public office an act
prohibited by law. a. Knowingly rendering an
unjust interlocutory order or
Example: bribery. decree; or
(3) He may be held liable for violating But in the crime of theft or robbery, where
the Anti-Graft and Corrupt Practices the policeman shared in the loot and
Act. allowed the offender to go free, he becomes
a fence. Therefore, he is considered an
However, in distant provinces or offender under the Anti-Fencing Law.
municipalities where there are no municipal
attorneys, the local chief of police is the Relative to this crime under Article 208,
prosecuting officer. If he is the one who consider the crime of qualified bribery.
tolerates the violations of laws or otherwise Among the amendments made by Republic
allows offenders to escape, he can be Act No. 7659 on the Revised Penal Code is
prosecuted under this article. a new provision which reads as follows:
“entrusted with enforcement” whose official by a penalty lower than reclusion perpetua,
duties authorize then to arrest or prosecute the crime is direct bribery.
offenders. Apparently, they are peace
officers and public prosecutors since the In the latter situation, three crimes are
nonfeasance refers to “arresting or committed: direct bribery and dereliction of
prosecuting.” But this crime arises only duty on the part of the fiscal; and corruption
when the offender whom such public officer of a public officer by the giver.
refrains from arresting or prosecuting, has
committed a crime punishable by reclusion
perpetua and/or death. If the crime were Article 209. Betrayal of Trust by An
punishable by a lower penalty, then such Attorney or Solicitor – Revelation of
nonfeasance by the public officer would Secrets
amount to direct bribery, not qualified
bribery. Acts punished
If the crime was qualified bribery, the 1. Causing damage to his client, either—
dereliction of the duty punished under
Article 208 of the Revised Penal Code a. By any malicious breach of
should be absorbed because said article professional duty;
punishes the public officer who “maliciously
refrains from instituting prosecution for the b. By inexcusable negligence or
punishment of violators of the law or shall ignorance.
tolerate the commission of offenses”. The
dereliction of duty referred to is necessarily Note: When the attorney acts with
included in the crime of qualified bribery. malicious abuse of his employment
or inexcusable negligence or
On the other hand, if the crime was direct ignorance, there must be damage to
bribery under Article 210 of the Revised his client.
Penal Code, the public officer involved
should be prosecuted also for the 2. Revealing any of the secrets of his
dereliction of duty, which is a crime under client learned by him in his
Article 208 of the Revised Penal Code, professional capacity;
because the latter is not absorbed by the
crime of direct bribery. This is because in 3. Undertaking the defense of the
direct bribery, where the public officer opposing party in the same case,
agreed to perform an act constituting a without the consent of his first client,
crime in connection with the performance of after having undertaken the defense
his official duties, Article 210 expressly of said first client of after having
provides that the liabilty thereunder shall be received confidential information
“in addition to the penalty corresponding to from said client.
the crime agreed upon, if the crime shall
have been committed.
Under the rules on evidence,
Illustration: communications made with prospective
clients to a lawyer with a view to engaging
A fiscal, for a sum of money, refrains from his professional services are already
prosecuting a person charged before him. privileged even though the client-lawyer
If the penalty for the crime involved is relationship did not eventually materialize
reclusion perpetua, the fiscal commits because the client cannot afford the fee
qualified bribery. If the crime is punishable being asked by the lawyer. The lawyer and
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
his secretary or clerk cannot be examined what was narrated to him there is no
thereon. betrayal of trust since B is acting as a
notary public and not as a counsel. The
That this communication with a prospective lawyer must have learned the confidential
client is considered privileged, implies that matter in his professional capacity.
the same is confidential. Therefore, if the
lawyer would reveal the same or otherwise Several acts which would make a lawyer
accept a case from the adverse party, he criminally liable:
would already be violating Article 209.
Mere malicious breach without damage is (1) Maliciously causing damage to his
not violative of Article 209; at most he will client through a breach of his
be liable administratively as a lawyer, e.g., professional duty. The breach of
suspension or disbarment under the Code professional duty must be malicious.
of Professional Responsibility. If it is just incidental, it would not
give rise to criminal liability, although
Illustration: it may be the subject of
administrative discipline;
B, who is involved in the crime of seduction
wanted A, an attorney at law, to handle his (2) Through gross ignorance, causing
case. A received confidential information damage to the client;
from B. However, B cannot pay the
professional fee of A. C, the offended party, (3) Inexcusable negligence;
came to A also and the same was accepted.
(4) Revelation of secrets learned in his
A did not commit the crime under Article professional capacity;
209, although the lawyer’s act may be
considered unethical. The client-lawyer (5) Undertaking the defense of the
relationship between A and B was not yet opposite party in a case without the
established. Therefore, there is no trust to consent of the first client whose
violate because B has not yet actually defense has already been
engaged the services of the lawyer A. A is undertaken.
not bound to B. However, if A would reveal
the confidential matter learned by him from Note that only numbers 1, 2 and 3 must
B, then Article 209 is violated because it is approximate malice.
enough that such confidential matters were
communicated to him in his professional A lawyer who had already undertaken the
capacity, or it was made to him with a view case of a client cannot later on shift to the
to engaging his professional services. opposing party. This cannot be done.
committed that are covered by the crime of damages. The mere breach of confidential
betrayal of trust if the lawyer should relation is punishable.
undertake the case of opposing party or
otherwise divulge confidential information of In a conjugal case, if the lawyer disclosed
a client. the confidential information to other people,
he would be criminally liable even though
Under the law on evidence on privileged the client did not suffer any damage.
communication, it is not only the lawyer who
is protected by the matter of privilege but The client who was suing his wife disclosed
also the office staff like the secretary. that he also committed acts of
unfaithfulness. The lawyer talked about this
The nominal liability under this article may to a friend. He is, thus, liable.
be constituted either from breach of
professional duties in the handling of the
case or it may arise out of the confidential Article 210. Direct Bribery
relation between the lawyer and the client.
Acts punished
Breach of professional duty
1. Agreeing to perform, or performing,
Tardiness in the prosecution of the case for in consideration of any offer,
which reason the case was dismissed for promise, gift or present – an act
being non-prosecuted; or tardiness on the constituting a crime, in connection
part of the defense counsel leading to with the performance of his official
declaration of default and adverse duties;
judgment.
2. Accepting a gift in consideration of
Professional duties – Lawyer must appear the execution of an act which does
on time. But the client must have suffered not constitute a crime, in connection
damage due to the breach of professional with the performance of his official
duty. Otherwise, the lawyer cannot be held duty;
liable.
3. Agreeing to refrain, or by refraining,
If the prosecutor was tardy and the case from doing something which it is his
was dismissed as non-prosecuted, but he official duty to do, in consideration of
filed a motion for consideration which was gift or promise.
granted, and the case was continued, the
lawyer is not liable, because the client did
not suffer damage. Elements
If lawyer was neglectful in filing an answer, 1. Offender is a public officer within the
and his client declared in default, and there scope of Article 203;
was an adverse judgment, the client
suffered damages. The lawyer is liable. 2. Offender accepts an offer or a
promise or receives a gift or present
Breach of confidential relation by himself or through another;
Note however that what may begin as an (1) If the corruptor offers a
indirect bribery may actually ripen into direct consideration to a custodian of a
bribery. public record to remove certain files,
the mere agreement, without
Illustration: delivery of the consideration, brings
about the crime of direct bribery and
corruption of public official.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If he changed the transcript, another Direct bribery may be committed only in the
crime is committed: falsification. attempted and consummated stages
because, in frustrated felony, the offender
must have performed all the acts of
The same criterion will apply with respect to execution which would produce the felony
a public officer who agrees to refrain from as a consequence. In direct bribery, it is
performing his official duties. If the possible only if the corruptor concurs with
refraining would give rise to a crime, such the offender. Once there is concurrence,
as refraining to prosecute an offender, the the direct bribery is already consummated.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Note that the penalty is qualified if the public Before the bribe-giver may be dropped from
officer is the one who asks or demands the information, he has to be charged first
such present. with the receiver. Before trial, prosecutor
may move for dropping bribe-giver from
information and be granted immunity. But
Presidential Decree No. 46 first, five conditions have to be met:
The decree grants immunity from The immunity granted the bribe-giver is
prosecution to a private person or public limited only to the illegal transaction where
officer who shall voluntarily give information the informant gave voluntarily the testimony.
and testify in a case of bribery or in a case If there were other transactions where the
involving a violation of the Anti-graft and informant also participated, he is not
Corrupt Practices Act. immune from prosecution. The immunity in
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
one transaction does not extend to other (2) By receiving, directly or indirectly,
transactions. any commission, gift, share,
percentage, kickbacks or any other
The immunity attaches only if the form of pecuniary benefit from any
information given turns out to be true and person and/or entity in connection
correct. If the same is false, the public with any government contract or
officer may even file criminal and civil project by reason of the office or
actions against the informant for perjury and position of the public officer;
the immunity under the decree will not
protect him. (3) By illegal or fraudulent conveyance
or disposition of asset belonging to
the national government or any of its
Republic Act No. 7080 (Plunder) subdivisions, agencies or
instrumentalities or government-
Plunder is a crime defined and penalized owned or controlled corporations
under Republic Act No. 7080, which and their subsidiaries;
became effective in 1991. This crime
somehow modified certain crimes in the (4) By obtaining, receiving, or accepting
Revised Penal Code insofar as the overt directly or indirectly any shares of
acts by which a public officer amasses, stock, equity or any other form of
acquires, or accumulates ill-gotten wealth interest or participation including the
are felonies under the Revised Penal Code promise of future employment in any
like bribery (Articles 210, 211, 211-A), fraud business or undertaking;
against the public treasury [Article 213],
other frauds (Article 214), malversation (5) By establishing agricultural,
(Article 217), when the ill-gotten wealth industrial, or commercial monopolies
amounts to a total value of P50,000,000.00. or other combinations and/or
The amount was reduced from implementations of decrees and
P75,000,000.00 by Republic Act No. 7659 orders intended to benefit particular
and the penalty was changed from life persons or special interests; or
imprisonment to reclusion perpetua to
death. (6) By taking undue advantage of official
position, authority, relationship,
Short of the amount, plunder does not arise. connection or influence to unjustly
Any amount less than P50,000,000.00 is a enrich himself or themselves at the
violation of the Revised Penal Code or the expense and to the damage and
Anti-Graft and Corrupt Practices Act. prejudice of the Filipino people, and
the Republic of the Philippines.
Under the law on plunder, the prescriptive
period is 20 years commencing from the
time of the last overt act. While the crime appears to be malum
prohibitum, Republic Act No. 7080 provides
Plunder is committed through a combination that “in the imposition of penalties, the
or series of overt acts: degree of participation and the attendance
of mitigating and aggravating circumstances
(1) Through misappropriation, shall be considered by the court”.
conversion, misuse, or malversation
of public funds or raids on the public
treasury;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Republic Act No. 3019 (Anti-Graft and that he performed the prohibited act
Corrupt Practices Act) voluntarily. Even though the prohibited act
may have benefited the government. The
The mere act of a public officer demanding crime is still committed because the law is
an amount from a taxpayer to whom he is to not after the effect of the act as long as the
render public service does not amount to act is prohibited.
bribery, but will amount to a violation of the
Anti-graft and Corrupt Practices Act. Section 3 (g) of the Anti-Graft and Corrupt
Practices Act – where a public officer
Illustration: entered into a contract for the government
which is manifestly disadvantageous to the
A court secretary received P500 .00 from a government even if he did not profit from
litigant to set a motion for an early hearing. the transaction, a violation of the Anti-Graft
This is direct bribery even if the act to be and Corrupt Practices Act is committed.
performed is within his official duty so long
as he received a consideration therefor. If a public officer, with his office and a
private enterprise had a transaction and he
If the secretary persuaded the judge to allows a relative or member of his family to
make a favorable resolution, even if the accept employment in that enterprise, good
judge did not do so, this constitutes a faith is not a defense because it is a malum
violation of Anti-Graft and Corrupt Practices prohibitum. It is enough that that the act
Act, Sub-Section A. was performed.
Under the Anti-Graft and Corrupt Practices Where the public officer is a member of the
Act, particularly Section 3, there are several board, panel or group who is to act on an
acts defined as corrupt practices. Some of application of a contract and the act
them are mere repetitions of the act already involved one of discretion, any public officer
penalized under the Revised Penal Code, who is a member of that board, panel or
like prohibited transactions under Article group, even though he voted against the
215 and 216. In such a case, the act or approval of the application, as long as he
omission remains to be mala in se. has an interest in that business enterprise
whose application is pending before that
But there are acts penalized under the Anti- board, panel or group, the public officer
Graft and Corrupt Practices Act which are concerned shall be liable for violation of the
not penalized under the Revised Penal Anti-Graft and Corrupt Practices Act. His
Code. Those acts may be considered as only course of action to avoid prosecution
mala prohibita. Therefore, good faith is not under the Anti-graft and Corrupt Practices
a defense. Act is to sell his interest in the enterprise
which has filed an application before that
Illustration: board, panel or group where he is a
member. Or otherwise, he should resign
Section 3 (e) of the Anti-Graft and Corrupt from his public position.
Practices Act – causing undue injury to the
government or a private party by giving Illustration:
unwarranted benefit to the party whom does
not deserve the same. Sen. Dominador Aytono had an interest in
the Iligan Steel Mills, which at that time was
In this case, good faith is not a defense being subject of an investigation by the
because it is in the nature of a malum Senate Committee of which he was a
prohibitum. Criminal intent on the part of chairman. He was threatened with
the offender is not required. It is enough prosecution under Republic Act No. 3019 so
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
he was compelled to sell all his interest in booked and incarcerated no matter how
that steel mill; there is no defense. Because short the time may be.
the law says so, even if he voted against it,
he commits a violation thereof. The policeman could not be said as having
assisted the escape of the offender
These cases are filed with the Ombudsman because as the problem says, he is
and not with the regular prosecutor’s office. assigned to direct traffic in a busy corner
Jurisdiction is exclusively with the street. So he cannot be considered as
Sandiganbayan. The accused public officer falling under the third 3rd paragraph of
must be suspended when the case is Article 19 that would constitute his as an
already filed with the Sandiganbayan. accessory.
Under the Anti-Graft and Corrupt Practices The same is true with the civilian because
Act, the public officer who is accused the crime committed by the offender, which
should not be automatically suspended is snatching or a kind of robbery or theft as
upon the filing of the information in court. It the case may be, is not one of those crimes
is the court which will order the suspension mentioned under the third paragraph of
of the public officer and not the superior of Article 19 of the Revised Penal Code.
that public officer. As long as the court has
not ordered the suspension of the public Where the public officer is still incumbent,
officer involved, the superior of that public the prosecution shall be with the
officer is not authorized to order the Ombudsman.
suspension simply because of the violation
of the Anti-Graft and Corrupt Practices Act. Where the respondent is separated from
The court will not order the suspension of service and the period has not yet
the public officer without first passing upon prescribed, the information shall be filed in
the validity of the information filed in court. any prosecution’s office in the city where
Without a hearing, the suspension would be the respondent resides. The prosecution
null and void for being violative of due shall file the case in the Regional Trial Court
process. unless the violation carries a penalty higher
than prision correccional, in which case the
Illustration: Sandiganbayan has jurisdiction.
A public officer was assigned to direct traffic The fact that the government benefited out
in a very busy corner. While there, he of the prohibited act is no defense at all, the
caught a thief in the act of lifting the wallet violation being mala prohibita.
of a pedestrian. As he could not leave his
post, he summoned a civilian to deliver the Section 3 (f) of the Anti-Graft and Corrupt
thief to the precinct. The civilian agreed so Practices Act – where the public officer
he left with the thief. When they were neglects or refuses to act on a matter
beyond the view of the policeman, the pending before him for the purpose of
civilian allowed the thief to go home. What obtaining any pecuniary or material benefit
would be the liability of the public officer? or advantage in favor of or discriminating
against another interested party.
The liability of the traffic policeman would
be merely administrative. The civilian has The law itself additionally requires that the
no liability at all. accused’s dereliction, besides being without
Firstly, the offender is not yet a prisoner so justification, must be for the purpose of
there is no accountability yet. The term obtaining from any person interested in the
“prisoner” refers to one who is already matter some pecuniary or material benefit
or for the purpose of favoring any interested
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
1. Entering into an agreement with any The essence of this crime is making the
interested party or speculator or government pay for something not received
making use of any other scheme, to or making it pay more than what is due. It is
defraud the government, in dealing also committed by refunding more than the
with any person with regard to amount which should properly be refunded.
furnishing supplies, the making of This occurs usually in cases where a public
contracts, or the adjustment or officer whose official duty is to procure
settlement of accounts relating to supplies for the government or enter into
public property or funds; contract for government transactions,
connives with the said supplier with the
2. Demanding, directly or indirectly, the intention to defraud the government. Also
payment of sums different from or when certain supplies for the government
larger than those authorized by law, are purchased for the high price but its
in collection of taxes, licenses, fees, quantity or quality is low.
and other imposts;
Illustrations:
3. Failing voluntarily to issue a receipt,
as provided by law, for any sum of (1) A public official who is in charge of
money collected by him officially, in procuring supplies for the
the collection of taxes, licenses, government obtained funds for the
fees, and other imposts; first class materials and buys inferior
quality products and pockets the
4. Collecting or receiving, directly or excess of the funds. This is usually
indirectly, by way of payment or committed by the officials of the
otherwise, things or objects of a Department of Public Works and
nature different from that provided by Highways.
law, in the collection of taxes,
licenses, fees, and other imposts. (2) Poorest quality of ink paid as if it
were of superior quality.
Elements of frauds against public treasury (3) One thousand pieces of blanket for
under paragraph 1 certain unit of the Armed Forces of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
the Philippines were paid for but Elements of illegal exactions under
actually, only 100 pieces were paragraph 2
bought.
1. Offender is a public officer entrusted
(4) The Quezon City government with the collection of taxes, licenses,
ordered 10,000 but what was fees and other imposts;
delivered was only 1,000 T-shirts,
the public treasury is defrauded 2. He is guilty of any of the following
because the government is made to acts or omissions:
pay that which is not due or for a
higher price. a. Demanding, directly or
indirectly, the payment of
Not all frauds will constitute this crime. sums different from or larger
There must be no fixed allocation or amount than those authorized by law;
on the matter acted upon by the public or
officer.
b. Failing voluntarily to issue a
The allocation or outlay was made the basis receipt, as provided by law,
of fraudulent quotations made by the public for any sum of money
officer involved. collected by him officially; or
This provision of the Revised Penal Code abstract the P100.00, issued a
was provided before the Bureau of Internal receipt for only P400.00. The
Revenue and the Tariff and Customs Code. taxpayer would naturally ask the
Now, we have specific Code which will municipal treasurer why the receipt
apply to them. In the absence of any was only for P400.00. The treasurer
provision applicable, the Revised answered that the P100.00 is
Administrative Code will apply. supposed to be for documentary
stamps. The taxpayer left.
The essence of the crime is not
misappropriation of any of the amounts but He has a receipt for P400.00. The
the improper making of the collection which municipal treasurer turned over to
would prejudice the accounting of collected the government coffers P400.00
amounts by the government. because that is due the government
and pocketed the P100.00.
On the first form of illegal exaction
The mere fact that there was a
In this form, mere demand will consummate demand for an amount different from
the crime, even if the taxpayer shall refuse what is due the government, the
to come across with the amount being public officer already committed the
demanded. That will not affect the crime of illegal exaction.
consummation of the crime.
On the P100.00 which the public
In the demand, it is not necessary that the officer pocketed, will it be
amount being demanded is bigger than malversation or estafa?
what is payable to the government. The
amount being demanded maybe less than In the example given, the public
the amount due the government. officer did not include in the official
receipt the P100.00 and, therefore, it
Note that this is often committed with did not become part of the public
malversation or estafa because when a funds. It remained to be private. It
public officer shall demand an amount is the taxpayer who has been
different from what the law provides, it can defrauded of his P100.00 because
be expected that such public officer will not he can never claim a refund from the
turn over his collection to the government. government for excess payment
since the receipt issued to him was
Illustrations: only P400.00 which is due the
government. As far as the P100.00
(1) A taxpayer goes to the local is concerned, the crime committed is
municipal treasurer to pay real estafa.
estate taxes on his land. Actually,
what is due the government is (3) A taxpayer pays his taxes. What is
P400.00 only but the municipal due the government is P400.00 and
treasurer demanded P500.00. By the public officer issues a receipt for
that demand alone, the crime of P500.00 upon payment of the
illegal exaction is already committed taxpayer of said amount demanded
even though the taxpayer does not by the public officer involved. But he
pay the P500.00. altered the duplicate to reflect only
P400.00 and he extracted the
(2) Suppose the taxpayer came across difference of P100.00.
with P500.00. But the municipal
treasurer, thinking that he would
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
In this case, the entire P500.00 was trust by a public officer entrusted to
covered by an official receipt. That make the collection which is
act of covering the whole amount penalized under such article. The
received from the taxpayer in an falsification or alteration made on
official receipt will have the the duplicate can not be said as a
characteristics of becoming a part of means to commit malversation. At
the public funds. The crimes most, the duplicate was altered in
committed, therefore, are the order to conceal the malversation.
following: So it cannot be complexed with the
malversation.
(a) Illegal exaction – for
collecting more than he is It cannot also be said that the
authorized to collect. The falsification is a necessary means to
mere act of demanding is commit the malversation because
enough to constitute this the public officer can misappropriate
crime. the P100.00 without any falsification.
All that he has to do is to get the
(b) Falsification – because there excess of P100.00 and
was an alteration of official misappropriate it. So the
document which is the falsification is a separate accusation.
duplicate of the official
receipt to show an amount However, illegal exaction may be
less than the actual amount complexed with malversation
collected. because illegal exaction is a
necessary means to be able to
(c) Malversation – because of collect the P100.00 excess which
his act of misappropriating was malversed.
the P100.00 excess which
was covered by an official In this crime, pay attention to
receipt already, even though whether the offender is the one
not payable to the charged with the collection of the
government. The entire tax, license or impost subject of the
P500.00 was covered by the misappropriation. If he is not the
receipt, therefore, the whole one authorized by disposition to do
amount became public the collection, the crime of illegal
funds. So when he exaction is not committed.
appropriated the P100 for his
own benefit, he was not If it did not give rise to the crime of
extracting private funds illegal exaction, the funds collected
anymore but public funds. may not have become part of the
public funds. If it had not become
Should the falsification be part of the public funds, or had not
complexed with the malversation? become impressed with being part
of the public funds, it cannot be the
As far as the crime of illegal exaction subject of malversation. It will give
is concerned, it will be the subject of rise to estafa or theft as the case
separate accusation because there, may be.
the mere demand regardless of
whether the taxpayer will pay or not, (3) The Municipal Treasurer demanded
will already consummate the crime P500.00 when only P400.00 was
of illegal exaction. It is the breach of due. He issued the receipt at
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
P400.00 and explained to taxpayer give rise to illegal exaction even though a
that the P100 was for documentary provisional receipt has been issued. What
stamps. The Municipal Treasurer the law requires is a receipt in the form
placed the entire P500.00 in the prescribed by law, which means official
vault of the office. When he needed receipt.
money, he took the P100.00 and
spent it. Illustration:
Although the excess P100.00 was Under the rules and regulations of the
not covered by the Official Receipt, it government, payment of checks not
was commingled with the other belonging to the taxpayer, but that of
public funds in the vault; hence, it checks of other persons, should not be
became part of public funds and accepted to settle the obligation of that
subsequent extraction thereof person.
constitutes malversation.
Illustration:
Note that numbers 1 and 2 are complexed A taxpayer pays his obligation with a check
as illegal exaction with estafa, while in not his own but pertaining to another.
number 3, malversation is a distinct offense. Because of that, the check bounced later
on.
The issuance of the Official Receipt is the
operative fact to convert the payment into The crime committed is illegal exaction
public funds. The payor may demand a because the payment by check is not
refund by virtue of the Official Receipt. allowed if the check does not pertain to the
taxpayer himself, unless the check is a
In cases where the payor decides to let the manager’s check or a certified check,
official to “keep the change”, if the latter amended already as of 1990. (See the
should pocket the excess, he shall be liable case of Roman Catholic.)
for malversation. The official has no right
but the government, under the principle of Under Article 213, if any of these acts
accretion, as the owner of the bigger penalized as illegal exaction is committed
amount becomes the owner of the whole. by those employed in the Bureau of
Customs or Bureau of Internal Revenue, the
On the second form of illegal exaction law that will apply to them will be the
Revised Administrative Code or the Tariff
The act of receiving payment due the and Customs Code or National Revenue
government without issuing a receipt will Code.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Section 2, Article IX-A of the Constitution 3. Those funds or property were public
funds or property for which he was
No member of a Constitutional accountable;
Commission shall, during his tenure, hold
any office or employment. Neither shall he 4. He appropriated, took,
engage in the practice of any profession or misappropriated or consented or,
in the active management or control of any through abandonment or negligence,
business which in any way may be affected permitted another person to take
by the functions of his office, nor shall he be them.
financially interested, directly or indirectly, in
any contract with, or in any franchise or
privilege granted by the government, or any This crime is predicated on the relationship
of its subdivisions, agencies, or of the offender to the property or funds
instrumentalities, including government- involved. The offender must be
owned or controlled corporations or their accountable for the property
subsidiaries. misappropriated. If the fund or property,
though public in character is the
responsibility of another officer,
Article 217. Malversation of Public malversation is not committed unless there
Funds or Property – Presumption of is conspiracy.
Malversation
It is not necessary that the offender profited
Acts punished because somebody else may have
misappropriated the funds in question for as
1. Appropriating public funds or long as the accountable officer was remiss
property; in his duty of safekeeping public funds or
property. He is liable for malversation if
2. Taking or misappropriating the such funds were lost or otherwise
same; misappropriated by another.
his money short. What crimes have been funds or property belong to a private
committed? individual.
(3) When the private person is made With that act of changing the cash of
the custodian in whatever capacity the government with the check of a
of public funds or property, whether private person, even though the
belonging to national or local check is good, malversation is
government, and he misappropriates committed. The reason is that a
the same; check is cleared only after three
days. During that period of three
(4) When he is constituted as the days, the government is being
depositary or administrator of funds denied the use of the public fund.
or property seized or attached by With more reason if that check
public authority even though said bounce because the government
suffers.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(2) An accountable public officer, out of Note that the moment any money is
laziness, declares that the payment commingled with the public fund even if not
was made to him after he had due the government, it becomes impressed
cleaned his table and locked his with the characteristic of being part of public
safe for the collection of the day. A funds. Once they are commingled, you do
taxpayer came and he insisted that not know anymore which belong to the
he pay the amount so that he will not government and which belong to the private
return the next day. So he accepted persons. So that a public vault or safe
the payment but is too lazy to open should not be used to hold any fund other
the combination of the public safe. that what is due to the government.
He just pocketed the money. When
he came home, the money was still When does presumption of
in his pocket. The next day, when misappropriation arise?
he went back to the office, he
changed clothes and he claims that When a demand is made upon an
he forgot to put the money in the accountable officer and he cannot produce
new funds that he would collect the the fund or property involved, there is a
next day. Government auditors prima facie presumption that he had
came and subjected him to converted the same to his own use. There
inspection. He was found short of must be indubitable proof that thing
that amount. He claimed that it is in unaccounted for exists. Audit should be
his house -- with that alone, he was made to determine if there was shortage.
charged with malversation and was Audit must be complete and trustworthy. If
convicted. there is doubt, presumption does not arise.
Any overage or excess in the collection of Presumption arises only if at the time the
an accountable public officer should not be demand to produce the public funds was
extracted by him once it is commingled with made, the accountability of the accused is
the public funds. already determined and liquidated. A
demand upon the accused to produce the
Illustration: funds in his possession and a failure on his
part to produce the same will not bring
When taxpayers pay their accountabilities to about this presumption unless and until the
the government by way of taxes or licenses amount of his accountability is already
like registration of motor vehicles, the known.
taxpayer does not bother to collect loose
change. So the government cashier In Dumagat v. Sandiganbayan, 160 SCRA
accumulates the loose change until this 483, it was held that the prima facie
amounts to a sizable sum. In order to avoid presumption under the Revised
malversation, the cashier did not separate Penal Code arises only if there is no
what is due the government which was left issue as to the accuracy,
to her by way of loose change. Instead, he correctness and regularity of the
gets all of these and keeps it in the public audit findings and if the fact that
vault/safe. After the payment of the taxes public funds are missing is
and licenses is through, he gets all the indubitably established. The audit
official receipts and takes the sum total of must be thorough and complete
the payment. He then opens the public down to the last detail, establishing
vault and counts the cash. Whatever will be with absolute certainty the fact that
the excess or the overage, he gets. In this the funds are indeed missing.
case, malversation is committed.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 218. Failure of Accountable Who can commit this crime? A responsible
Officer to Render Accounts public officer, not necessarily an
accountable one, who leaves the country
Elements without first securing clearance from the
Commission on Audit.
1. Offender is public officer, whether in the
service or separated therefrom by The purpose of the law is to discourage
resignation or any other cause; responsible or accountable officers from
leaving without first liquidating their
2. He is an accountable officer for public accountability.
funds or property;
Mere leaving without securing clearance
constitutes violation of the Revised Penal
3. He is required by law or regulation to Code. It is not necessary that they really
render account to the Commission misappropriated public funds.
on Audit, or to a provincial auditor;
4. He fails to do so for a period of two Article 220. Illegal use of public funds or
months after such accounts should property
be rendered.
Elements
of applying it to the public purpose to which possible to do the cementing, the owner of
the fund or property was already the garage started using some of the
appropriated by law, the public officer cement in paving his own garage. The
applied it to another purpose. crime of technical malversation is also
committed.
Since damage is not an element of
malversation, even though the application
made proved to be more beneficial to public Note that when a private person is
interest than the original purpose for which constituted as the custodian in whatever
the amount or property was appropriated by capacity, of public funds or property, and he
law, the public officer involved is still liable misappropriates the same, the crime of
for technical malversation. malversation is also committed. See Article
222.
If public funds were not yet appropriated by
law or ordinance, and this was applied to a Illustration:
public purpose by the custodian thereof, the
crime is plain and simple malversation, not The payroll money for a government
technical malversation. If the funds had infrastructure project on the way to the site
been appropriated for a particular public of the project, the officers bringing the
purpose, but the same was applied to money were ambushed. They were all
private purpose, the crime committed is wounded. One of them, however, was able
simple malversation only. to get away from the scene of the ambush
until he reached a certain house. He told
Illustration: the occupant of the house to safeguard the
amount because it is the payroll money of
The office lacked bond papers. What the the government laborers of a particular
government cashier did was to send the project. The occupant of the house
janitor, get some money from his collection, accepted the money for his own use. The
told the janitor to buy bond paper so that crime is not theft but malversation as long
the office will have something to use. The as he knew that what was entrusted in his
amount involved maybe immaterial but the custody is public fund or property.
cashier commits malversation pure and
simple.
because the proceeds of the auction sale 4. He was in connivance with the
was turned over to the plaintiff, such prisoner in the latter’s escape.
proceeds is impressed with the
characteristic of being part of public funds.
The sheriff is accountable therefore Classes of prisoners involved
because he is not supposed to use any part
of such proceeds. 1. If the fugitive has been sentenced by
final judgment to any penalty;
liable. The prevailing ruling is against laxity possession of the document but it is not his
in the handling of prisoners. duty to be the custodian thereof, this crime
is not committed.
Illustration:
Illustration:
A prison guard accompanied the prisoner in
the toilet. While answering the call of A letter is entrusted to a postmaster for
nature, police officer waiting there, until the transmission of a registered letter to
prisoner escaped. Police officer was another. The postmaster opened the letter
accused of infidelity. and finding the money, extracted the same.
The crime committed is infidelity in the
There is no criminal liability because it does custody of the public document because
not constitute negligence. Negligence under Article 226, the law refers also to
contemplated here refers to deliberate papers entrusted to public officer involved
abandonment of duty. and currency note is considered to be within
the term paper although it is not a
Note, however, that according to a recent document.
Supreme Court ruling, failure to accompany
lady prisoner in the comfort room is a case With respect to official documents, infidelity
of negligence and therefore the custodian is is committed by destroying the document,
liable for infidelity in the custody of prisoner. or removing the document or concealing the
document.
Prison guard should not go to any other
place not officially called for. This is a case Damage to public interest is necessary.
of infidelity in the custody of prisoner However, material damage is not
through negligence under Article 224. necessary.
Illustration:
Article 226. Removal, Concealment, or
Destruction of Documents If any citizen goes to a public office, desiring
to go over public records and the custodian
Elements of the records had concealed the same so
that this citizen is required to go back for the
1. Offender is a public officer; record to be taken out, the crime of infidelity
is already committed by the custodian who
2. He abstracts, destroys or conceals a removed the records and kept it in a place
document or papers; where it is not supposed to be kept. Here, it
is again the breach of public trust which is
3. Said document or papers should punished.
have been entrusted to such public
officer by reason of his office; Although there is no material damage
caused, mere delay in rendering public
4. Damage, whether serious or not, to service is considered damage.
a third party or to the public interest
has been caused. Removal of public records by the custodian
does not require that the record be brought
Crimes falling under the section on infidelity out of the premises where it is kept. It is
in the custody of public documents can only enough that the record be removed from
be committed by the public officer who is the place where it should be and transferred
made the custodian of the document in his to another place where it is not supposed to
official capacity. If the officer was placed in be kept. If damage is caused to the public
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
service, the public officer is criminally liable 4. He breaks the seal or permits them
for infidelity in the custody of official to be broken.
documents.
Illustration:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
As regard the payroll, which has not been 4. Damage, great or small, is
signed by the Mayor, no infidelity is caused to the public interest.
committed because the document is not yet
a payroll in the legal sense since the 2. Delivering wrongfully papers or
document has not been signed yet. copies of papers of which he may
have charge and which should not
In "breaking of seal", the word "breaking" be published.
should not be given a literal meaning. Even
if actually, the seal was not broken, because Elements
the custodian managed to open the parcel
without breaking the seal. 1. Offender is a public officer;
4. He does not have proper authority. Article 230. Public Officer Revealing
Secrets of Private individual
2. An order is issued by his superior for A government physician, who had been
execution; subpoenaed to appear in court to testify in
connection with physical injury cases or
3. He has for any reason suspended cases involving human lives, does not want
the execution of such order; to appear in court to testify. He may be
charged for refusal of assistance. As long
4. His superior disapproves the as they have been properly notified by
suspension of the execution of the subpoena and they disobeyed the
order; subpoena, they can be charged always if it
can be shown that they are deliberately
5. Offender disobeys his superior refusing to appear in court.
despite the disapproval of the
suspension. It is not always a case or in connection with
the appearance in court that this crime may
be committed. Any refusal by the public
Article 233. Refusal of Assistance officer to render assistance when
demanded by competent public authority, as
1. Offender is a public officer; long as the assistance requested from them
is within their duty to render and that
2. A competent authority demands from the assistance is needed for public service, the
offender that he lend his cooperation public officers who are refusing deliberately
towards the administration of justice may be charged with refusal of assistance.
or other public service;
Note that the request must come from one
3. Offender fails to do so maliciously. public officer to another.
Illustration:
Any public officer who, upon being
requested to render public assistance within A fireman was asked by a private person for
his official duty to render and he refuses to services but was refused by the former for
render the same when it is necessary in the lack of “consideration”.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
authorized by the
It was held that the crime is not refusal of regulations; or
assistance because the request did not
come from a public authority. But if the (2) By inflicting such
fireman was ordered by the authority to put punishments (those
out the fire and he refused, the crime is authorized) in a cruel
refusal of assistance. and humiliating
manner; or
If he receives consideration therefore,
bribery is committed. But mere demand will b. By maltreating such
fall under the prohibition under the provision prisoners to extort a
of Republic Act No. 3019 (Anti-Graft and confession or to obtain some
Corrupt Practices Act). information from the prisoner.
Article 234. Refusal to Discharge This is committed only by such public officer
Elective Office charged with direct custody of the prisoner.
Not all public officer can commit this
Elements offense.
Illustration:
Article 235. Maltreatment of Prisoners
Make him drink dirty water, sit on ice, eat on
Elements a can, make him strip, hang a sign on his
neck saying “snatcher”.
1. Offender is a public officer or
employee; But if as a result of the maltreatment,
physical injuries were caused to the
2. He has under his charge a prisoner prisoner, a separate crime for the physical
or detention prisoner; injuries shall be filed. You do not complex
the crime of physical injuries with the
3. He maltreats such prisoner in either maltreatment because the way Article 235
of the following manners: is worded, it prohibits the complexing of the
crime.
a. By overdoing himself in the
correction or handling of a If the maltreatment was done in order to
prisoner or detention prisoner extort confession, therefore, the
under his charge either – constitutional right of the prisoner is further
violated. The penalty is qualified to the next
(1) By the imposition of higher degree.
punishment not
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Illustration:
Article 236. Anticipation of Duties of A
A certain snatcher was arrested by a law Public Office
enforcer, brought to the police precinct,
turned over to the custodian of that police Elements
precinct. Every time a policeman entered
the police precinct, he would ask, “What is 1. Offender is entitled to hold a public
this fellow doing here? What crime has he office or employment, either by
committed?”. The other policeman would election or appointment;
then tell, “This fellow is a snatcher.” So
every time a policeman would come in, he 2. The law requires that he should first
would inflict injury to him. This is not be sworn in and/or should first give a
maltreatment of prisoner because the bond;
offender is not the custodian. The crime is
only physical injuries. 3. He assumes the performance of the
duties and powers of such office;
But if the custodian is present there and he
allowed it, then he will be liable also for the 4. He has not taken his oath of office
physical injuries inflicted, but not for and/or given the bond required by
maltreatment because it was not the law.
custodian who inflicted the injury.
But if it is the custodian who effected the Article 237. Prolonging Performance of
maltreatment, the crime will be Duties and Powers
maltreatment of prisoners plus a separate
charge for physical injuries. Elements
If a prisoner who had already been booked 1. Offender is holding a public office;
was make to strip his clothes before he was
put in the detention cell so that when he 2. The period provided by law,
was placed inside the detention cell, he was regulations or special provision for
already naked and he used both of his holding such office, has already
hands to cover his private part, the crime of expired;
maltreatment of prisoner had already been
committed. 3. He continues to exercise the duties
and powers of such office.
After having been booked, the prisoner was
made to show any sign on his arm, hand or
his neck; “Do not follow my footsteps, I am Article 238. Abandonment of Office or
a thief.” That is maltreatment of prisoner if Position
the offended party had already been
booked and incarcerated no matter how Elements
short, as a prisoner.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Elements Elements
Acts punished
The name of the crime is misleading. It
1. Soliciting or making immoral or implies that the chastity of the offended
indecent advances to a woman party is abused but this is not really the
interested in matters pending before essence of the crime because the essence
the offending officer for decision, or of the crime is mere making of immoral or
with respect to which he is required indecent solicitation or advances.
to submit a report to or consult with
a superior officer; Illustration:
2. He solicits or makes immoral or Three instances when this crime may arise:
indecent advances to a woman;
(1) The woman, who is the offended
3. Such woman is – party, is the party in interest in a
case where the offended is the
a. interested in matters pending investigator or he is required to
before the offender for render a report or he is required to
decision, or with respect to consult with a superior officer.
which he is required to
submit a report to or consult
with a superior officer; or This does not include any casual or
incidental interest. This refers to
b. under the custody of the interest in the subject of the case
offender who is a warden or under investigation.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
As to the taking of human life, you have: The relationship between the offender and
the offended party must be legitimate,
(1) Parricide; except when the offender and the offended
party are related as parent and child.
(2) Murder;
If the offender and the offended party,
(3) Homicide; although related by blood and in the direct
line, are separated by an intervening
(4) Infanticide; and illegitimate relationship, parricide can no
longer be committed. The illegitimate
(5) Giving assistance to suicide. relationship between the child and the
parent renders all relatives after the child in
Note that parricide is premised on the the direct line to be illegitimate too.
relationship between the offender and the
offended. The victim is three days old or The only illegitimate relationship that can
older. A stranger who conspires with the bring about parricide is that between
parent is guilty of murder. parents and illegitimate children as the
offender and the offended parties.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
As far as A is concerned, the crime is based Article 247. Death or Physical Injuries
on his relationship with B. It is therefore Inflicted under Exceptional
parricide. The treachery that was employed Circumstances
in killing Bong will only be generic
aggravating circumstance in the crime of Elements
parricide because this is not one crime that
requires a qualifying circumstance. 1. A legally married person, or a
parent, surprises his spouse or his
But that same treachery, insofar as C is daughter, the latter under 18 years
concerned, as a stranger who cooperated in of age and living with him, in the act
the killing, makes the crime murder; of committing sexual intercourse
treachery becomes a qualifying with another person;
circumstance.
2. He or she kills any or both of them,
In killing a spouse, there must be a valid or inflicts upon any or both of them
subsisting marriage at the time of the killing. any serious physical injury in the act
Also, the information should allege the fact or immediately thereafter;
of such valid marriage between the accused
and the victim. 3. He has not promoted or facilitated
the prostitution of his wife or
daughter, or that he or she has not
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
consented to the infidelity of the problem. If the killing was done when
other spouse. sexual intercourse is finished, a problem
arises. First, were they surprised in actual
sexual intercourse? Second, were they
Two stages contemplated before the article killed immediately thereafter?
will apply:
The phrase “immediately thereafter” has
(1) When the offender surprised the been interpreted to mean that
other spouse with a paramour or between the surprising and the
mistress. The attack must take killing of the inflicting of the
place while the sexual intercourse is physical injury, there should be
going on. If the surprise was before no break of time. In other words,
or after the intercourse, no matter it must be a continuous process.
how immediate it may be, Article
247 does not apply. The offender in The article presumes that a legally married
this situation only gets the benefit of person who surprises his or her better half
a mitigating circumstance, that is, in actual sexual intercourse would be
sufficient provocation immediately overcome by the obfuscation he felt when
preceding the act. he saw them in the act that he lost his head.
The law, thus, affords protection to a
(2) When the offender kills or inflicts spouse who is considered to have acted in
serious physical injury upon the a justified outburst of passion or a state of
other spouse and/or paramour while mental disequilibrium. The offended
in the act of intercourse, or spouse has no time to regain his self-
immediately thereafter, that is, after control.
surprising.
If there was already a break of time
You have to divide the stages because as between the sexual act and the killing or
far as the first stage is concerned, it does inflicting of the injury, the law presupposes
not admit of any situation less than sexual that the offender regained his reason and
intercourse. therefore, the article will not apply anymore.
So if the surprising took place before any As long as the act is continuous, the article
actual sexual intercourse could be done still applies.
because the parties are only in their
preliminaries, the article cannot be invoked
anymore.
Where the accused surprised his wife and intended more for the protection of the
his paramour in the act of illicit accused than a punishment. Death under
intercourse, as a result of which he exceptional character can not be qualified
went out to kill the paramour in a fit by either aggravating or mitigating
of passionate outburst. Although circumstances.
about one hour had passed between
the time the accused discovered his In the case of People v. Abarca, 153 SCRA
wife having sexual intercourse with 735, two persons suffered physical injuries
the victim and the time the latter was as they were caught in the crossfire when
actually killed, it was held in People the accused shot the victim. A complex
v. Abarca, 153 SCRA 735, that crime of double frustrated murder was not
Article 247 was applicable, as the committed as the accused did not have the
shooting was a continuation of the intent to kill the two victims. Here, the
pursuit of the victim by the accused. accused did not commit murder when he
Here, the accused, after the fired at the paramour of his wife. Inflicting
discovery of the act of infidelity of his death under exceptional circumstances is
wife, looked for a firearm in not murder. The accused was held liable
Tacloban City. for negligence under the first part, second
paragraph of Article 365, that is, less
Article 247 does not provide that the victim serious physical injuries through simple
is to be killed instantly by the accused after negligence. No aberratio ictus because he
surprising his spouse in the act of was acting lawfully.
intercourse. What is required is that the
killing is the proximate result of the outrage A person who acts under Article 247 is not
overwhelming the accused upon the committing a crime. Since this is merely an
discovery of the infidelity of his spouse. exempting circumstance, the accused must
The killing should have been actually first be charged with:
motivated by the same blind impulse.
(1) Parricide – if the spouse is killed;
Illustration:
(2) Murder or homicide – depending on
A upon coming home, surprised his wife, B, how the killing was done insofar as
together with C. The paramour was fast the paramour or the mistress is
enough to jump out of the window. A got concerned;
the bolo and chased C but he disappeared
among the neighborhood. So A started (3) Homicide – through simple
looking around for about an hour but he negligence, if a third party is killed;
could not find the paramour. A gave up and
was on his way home. Unfortunately, the (4) Physical injuries – through reckless
paramour, thinking that A was no longer imprudence, if a third party is
around, came out of hiding and at that injured.
moment, A saw him and hacked him to
death. There was a break of time and If death results or the physical injuries are
Article 247 does not apply anymore serious, there is criminal liability although
because when he gave up the search, it is a the penalty is only destierro. The
circumstance showing that his anger had banishment is intended more for the
already died down. protection of the offender rather than a
penalty.
Article 247, far from defining a felony merely
grants a privilege or benefit, more of an
exempting circumstance as the penalty is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Illustration:
Elements
Homicide is qualified to murder if any of the
1. A person was killed; qualifying circumstances under Article 248
is present. It is the unlawful killing of a
2. Accused killed him; person not constituting murder, parricide or
infanticide.
3. The killing was attended by any of
the following qualifying In murder, any of the following qualifying
circumstances – circumstances is present:
constituting treachery, in which case was alleged was not proven and
the crime is murder. instead another circumstance, not
alleged, was established during the
The essence of treachery is that the trial, even if the latter constitutes a
offended party was denied the qualifying circumstance under Article
chance to defend himself because of 248, the same can not qualify the
the means, methods, form in killing to murder. The accused can
executing the crime deliberately only be convicted of homicide.
adopted by the offender. It is a
matter of whether or not the Generally, murder cannot be
offended party was denied the committed if at the beginning, the
chance of defending himself. offended had no intent to kill
because the qualifying
If the offended was denied the circumstances must be resorted to
chance to defend himself, treachery with a view of killing the offended
qualifies the killing to murder. If party. So if the killing were at the
despite the means resorted to by the “spur of the moment”, even though
offender, the offended was able to the victim was denied the chance to
put up a defense, although defend himself because of the
unsuccessful, treachery is not suddenness of the attack, the crime
available. Instead, some other would only be homicide. Treachery
circumstance may be present. contemplates that the means,
Consider now whether such other methods and form in the execution
circumstance qualifies the killing or were consciously adopted and
not. deliberately resorted to by the
offender, and were not merely
Illustration: incidental to the killing.
with both arms and legs around the it would be arson with homicide, or
tree. They thought they would give murder.
him a lesson by whipping him with
branches of gumamela until the When a person is killed by fire, the
victim fell unconscious. The primordial criminal intent of the
accused left not knowing that the offender is considered. If the
victim died. primordial criminal intent of the
offender is to kill and fire was only
The crime committed was murder. used as a means to do so, the crime
The accused deprived the victim of is only murder. If the primordial
the chance to defend himself when criminal intent of the offender is to
the latter was tied to a tree. destroy property with the use of
Treachery is a circumstance pyrotechnics and incidentally,
referring to the manner of somebody within the premises is
committing the crime. There was no killed, the crime is arson with
risk to the accused arising from the homicide. But this is not a complex
defense by the victim. crime under Article 48. This is single
indivisible crime penalized under
Although what was initially intended Article 326, which is death as a
was physical injury, the manner consequence of arson. That
adopted by the accused was somebody died during such fire
treacherous and since the victim would not bring about murder
died as a consequence thereof, the because there is no intent to kill in
crime is murder -- although the mind of the offender. He
originally, there was no intent to kill. intended only to destroy property.
However, a higher penalty will be
When the victim is already dead, applied.
intent to kill becomes irrelevant. It is
important only if the victim did not In People v. Pugay and Samson,
die to determine if the felony is 167 SCRA 439, there was a town
physical injury or attempted or fiesta and the two accused were at
frustrated homicide. the town plaza with their
companions. All were uproariously
So long as the means, methods and happy, apparently drenched with
form in the execution is deliberately drink. Then, the group saw the
adopted, even if there was no intent victim, a 25 year old retard walking
to kill, there is treachery. nearby and they made him dance by
tickling his sides with a piece of
(2) In consideration of price, reward or wood. The victim and the accused
promises; Pugay were friends and, at times,
slept in the same place together.
(3) Inundation, fire, poison, explosion, Having gotten bored with their form
shipwreck, stranding of a vessel, of entertainment, accused Pugay
derailment or assault upon a street went and got a can of gasoline and
car or locomotive, fall of an airship, poured it all over the retard. Then,
by means of a motor vehicle, or with the accused Samson lit him up,
the use of other means involving making him a frenzied, shrieking
great waste and ruin; human torch. The retard died.
The only problem insofar as the It was held that Pugay was guilty of
killing by fire is concerned is whether homicide through reckless
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(5) When several assailants not acting It is not a tumultuous affray which brings
in conspiracy inflicted wounds on a about the crime; it is the inability to
victim but it cannot be determined ascertain actual perpetrator. It is necessary
who inflicted which would which that the very person who caused the death
caused the death of the victim, all can not be known, not that he can not be
are liable for the victim’s death. identified. Because if he is known but only
his identity is not known, then he will be
Note that while it is possible to have a crime charged for the crime of homicide or murder
of homicide through reckless imprudence, it under a fictitious name and not death in a
is not possible to have a crime of frustrated tumultuous affray. If there is a conspiracy,
homicide through reckless imprudence. this crime is not committed.
5. It can not be ascertained who (1) The persons who inflicted serious
actually killed the deceased; physical injury upon the victim;
6. The person or persons who inflicted (2) If they could not be known, then
serious physical injuries or who used anyone who may have employed
violence can be identified. violence on that person will answer
for his death.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
The following are holdings of the Supreme 2. Offender had no intention to kill that
Court with respect to this crime: person.
The offender may actually be the parent of If the child is born dead, or if the child is
the child. But you call the crime infanticide, already dead, infanticide is not committed.
not parricide, if the age of the victim is less
than three days old. If the victim is three
days old or above, the crime is parricide. Article 256. Intentional Abortion
An unmarried woman, A, gave birth to a 1. Using any violence upon the person
child, B. To conceal her dishonor, A of the pregnant woman;
conspired with C to dispose of the child. C
agreed and killed the child B by burying the 2. Acting, but without using violence,
child somewhere. without the consent of the woman.
(By administering drugs or
If the child was killed when the age of the beverages upon such pregnant
child was three days old and above already, woman without her consent.)
the crime of A is parricide. The fact that the
killing was done to conceal her dishonor will 3. Acting (by administering drugs or
not mitigate the criminal liability anymore beverages), with the consent of the
because concealment of dishonor in killing pregnant woman.
the child is not mitigating in parricide.
It is abortion if the victim is not viable but If it could be shown that the child, if not
remains to be a fetus. killed, would not have survived beyond 24
hours, the crime is abortion because what
was killed was a fetus only.
Abortion is not a crime against the woman
but against the fetus. If mother as a In abortion, the concealment of dishonor as
consequence of abortion suffers death or a motive of the mother to commit the
physical injuries, you have a complex crime abortion upon herself is mitigating. It will
of murder or physical injuries and abortion. also mitigate the liability of the maternal
grandparent of the victim – the mother of
In intentional abortion, the offender must the pregnant woman – if the abortion was
know of the pregnancy because the done with the consent of the pregnant
particular criminal intention is to cause an woman.
abortion. Therefore, the offender must
have known of the pregnancy for otherwise, If the abortion was done by the mother of
he would not try an abortion. the pregnant woman without the consent of
the woman herself, even if it was done to
If the woman turns out not to be pregnant conceal dishonor, that circumstance will not
and someone performs an abortion upon mitigate her criminal liability.
her, he is liable for an impossible crime if
the woman suffers no physical injury. If she But if those who performed the abortion are
does, the crime will be homicide, serious the parents of the pregnant woman, or
physical injuries, etc. either of them, and the pregnant woman
consented for the purpose of concealing her
Under the Article 40 of the Civil Code, birth dishonor, the penalty is the same as that
determines personality. A person is imposed upon the woman who practiced the
considered born at the time when the abortion upon herself .
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
2. Violence is used upon such pregnant Under Article 4, paragraph 1 of the Revised
woman without intending an Penal Code, any person committing a
abortion; felony is criminally liable for all the direct,
natural, and logical consequences of his
3. The violence is intentionally exerted; felonious acts although it may be different
from that which is intended. The act of
4. As a result of the violence, the fetus employing violence or physical force upon
dies, either in the womb or after the woman is already a felony. It is not
having been expelled therefrom. material if offender knew about the woman
being pregnant or not.
Unintentional abortion requires physical If the act of violence is not felonious, that is,
violence inflicted deliberately and voluntarily act of self-defense, and there is no
by a third person upon the person of the knowledge of the woman’s pregnancy, there
pregnant woman. Mere intimidation is not is no liability. If the act of violence is not
enough unless the degree of intimidation felonious, but there is knowledge of the
already approximates violence. woman’s pregnancy, the offender is liable
for unintentional abortion.
If the pregnant woman aborted because of
intimidation, the crime committed is not Illustration:
unintentional abortion because there is no
violence; the crime committed is light The act of pushing another causing her to
threats. fall is a felonious act and could result in
physical injuries. Correspondingly, if not
If the pregnant woman was killed by only physical injuries were sustained but
violence by her husband, the crime abortion also resulted, the felonious act of
committed is the complex crime of parricide pushing is the proximate cause of the
with unlawful abortion. unintentional abortion.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Illustration:
Article 258. Abortion Practiced by the
Woman Herself or by Her Parents A woman who is pregnant got sick. The
doctor administered a medicine which
Elements resulted in Abortion. The crime committed
was unintentional abortion through
1. There is a pregnant woman who has negligence or imprudence.
suffered an abortion;
None. This is a case of therapeutic liable for homicide or murder, as the case
abortion which is done out of a state of may be.
necessity. Therefore, the requisites under
Article 11, paragraph 4, of the Revised The concept of duel under the Revised
Penal Code must be present. There must Penal Code is a classical one.
be no other practical or less harmful means
of saving the life of the mother to make the
killing justified. Article 261. Challenging to A Duel
Acts punished
Article 260. Responsibility of
Participants in A Duel 1. Challenging another to a duel;
that is, to deprive the In one case, the accused, while conversing
offended party of some with the offended party, drew the latter’s
essential organ for bolo from its scabbard. The offended party
reproduction caught hold of the edge of the blade of his
bolo and wounded himself. It was held that
2. Intentionally making other mutilation, since the accused did not wound, beat or
that is, by lopping or clipping off any assault the offended party, he can not be
part of the body of the offended guilty of serious physical injuries.
party, other than the essential organ
for reproduction, to deprive him of
that part of his body. Serious physical injuries
a. Becomes deformed; or
Article 263. Serious Physical Injuries
b. Loses any other member of
How committed his body; or
4. When the injured person becomes ill physical injuries. The medical
or incapacitated for labor for more treatment may have lasted for nine
than 30 days (but must not be more days, but if the offended party is still
than 90 days), as a result of the incapacitated for labor beyond nine
physical injuries inflicted. days, the physical injuries are
already considered less serious
physical injuries.
The crime of physical injuries is a crime of
result because under our laws the crime of (2) Between less serious physical
physical injuries is based on the gravity of injuries and serious physical injuries,
the injury sustained. So this crime is always you do not consider the period of
consummated, notwithstanding the opinion medical treatment. You only
of Spanish commentators like Cuello Calon, consider the period when the
Viada, etc., that it can be committed in the offended party is rendered
attempted or frustrated stage. incapacitated for labor.
If the act does not give rise to injuries, you If the offended party is incapacitated
will not be able to say whether it is to work for less than 30 days, even
attempted slight physical injuries, attempted though the treatment continued
less serious physical injuries, or attempted beyond 30 days, the physical
serious physical injuries unless the result is injuries are only considered less
there. serious because for purposes of
classifying the physical injuries as
The reason why there is no attempted or serious, you do not consider the
frustrated physical injuries is because the period of medical treatment. You
crime of physical injuries is determined on only consider the period of
the gravity of the injury. As long as the incapacity from work.
injury is not there, there can be no
attempted or frustrated stage thereof. (3) When the injury created a deformity
upon the offended party, you
Classification of physical injuries: disregard the healing duration or the
period of medical treatment
(1) Between slight physical injuries and involved. At once, it is considered
less serious physical injuries, you serious physical injuries.
have a duration of one to nine days
if slight physical injuries; or 10 days So even though the deformity may
to 20 days if less serious physical not have incapacitated the offended
injuries. Consider the duration of party from work, or even though the
healing and treatment. medical treatment did not go beyond
nine days, that deformity will bring
The significant part here is between about the crime of serious physical
slight physical injuries and less injuries.
serious physical injuries. You will
consider not only the healing Deformity requires the concurrence
duration of the injury but also the of the following conditions:
medical attendance required to treat
the injury. So the healing duration (1) The injury must produce
may be one to nine days, but if the ugliness;
medical treatment continues beyond
nine days, the physical injuries (2) It must be visible;
would already qualify as less serious
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(3) The ugliness will not Serious physical injuries is punished with
disappear through natural higher penalties in the following
healing process. cases:
In a case decided by the Supreme Court, Section 2 requires a written notice to school
accused was charged with serious physical authorities from the head of the organization
injuries because the injuries produced a seven days prior to the rites and should not
scar. He was convicted under Article 263 exceed three days in duration.
(4). He appealed because, in the course of
the trial, the scar disappeared. It was held Section 3 requires supervision by head of
that accused can not be convicted of the school or the organization of the rites.
serious physical injuries. He is liable only
for slight physical injuries because the Section 4 qualifies the crime if rape, sodomy
victim was not incapacitated, and there was or mutilation results therefrom, if the person
no evidence that the medical treatment becomes insane, an imbecile, or impotent or
lasted for more than nine days. blind because of such, if the person loses
the use of speech or the power to hear or
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
2. Physical injuries which did not “For purposes of this Act, the penalty for the
prevent the offended party from commission of acts punishable under
engaging in his habitual work or Articles 248, 249, 262 (2) and 263 (1) of Act
which did not require medical No 3815, as amended of the Revised Penal
attendance; Code for the crimes of murder, homicide,
other intentional mutilation, and serious
3. Ill-treatment of another by deed physical injuries, respectively, shall be
without causing any injury. reclusion perpetua when the victim is under
twelve years of age.”
This involves even ill-treatment where there
is no sign of injury requiring medical The provisions of Republic Act No. 7160
treatment. modified the provisions of the Revised
Penal Code in so far as the victim of the
Slapping the offended party is a form of ill- felonies referred to is under 12 years of age.
treatment which is a form of slight physical The clear intention is to punish the said
injuries. crimes with a higher penalty when the victim
is a child of tender age. Incidentally, the
But if the slapping is done to cast dishonor reference to Article 249 of the Code which
upon the person slapped, the crime is defines and penalizes the crime of homicide
slander by deed. If the slapping was done were the victim is under 12 years old is an
without the intention of casting dishonor, or error. Killing a child under 12 is murder, not
to humiliate or embarrass the offended homicide, because the victim is under no
party out of a quarrel or anger, the crime is position to defend himself as held in the
still ill-treatment or slight physical injuries. case of People v. Ganohon, 196 SCRA
431.
Illustration:
For murder, the penalty provided by the
If Hillary slaps Monica and told her “You Code, as amended by Republic Act No.
choose your seconds . Let us meet behind 7659, is reclusion perpetua to death –
the Quirino Grandstand and see who is the higher than what Republic Act no. 7610
better and more beautiful between the two provides. Accordingly, insofar as the crime
of us”, the crime is not ill-treatment, slight is murder, Article 248 of the Code, as
physical injuries or slander by deed; it is a amended, shall govern even if the victim
form of challenging to a duel. The criminal was under 12 years of age. It is only in
intent is to challenge a person to a duel. respect of the crimes of intentional
mutilation in paragraph 2 of Article 262 and
The crime is slight physical injury if there is of serious physical injuries in paragraph 1 of
no proof as to the period of the offended Article 263 of the Code that the quoted
party’s incapacity for labor or of the required provision of Republic Act No. 7160 may be
medical attendance.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
applied for the higher penalty when the 3. The act of sexual assault is
victim is under 12 years old. accomplished under any of the
following circumstances:
b. When the woman is deprived Republic Act No. 8353 (An Act Expanding
of reason or otherwise the Definition of the Crime of Rape,
unconscious; Reclassifying the Same as A Crime
against Persons, Amending for the
c. By means of fraudulent Purpose the Revised Penal Code)
machination or grave abuse repealed Article335 on rape and added a
of authority; or chapter on Rape under Title 8.
(3) Where the rape was made possible (4) Death/reclusion temporal --
because of fraudulent machination
or abuse of authority; or (a) Where the victim is under 18
years of age and the offender
(4) Where the victim is under 12 years is her ascendant, stepfather,
of age, or demented, even though guardian, or relative by
no intimidation nor violence is affinity or consanguinity
employed. within the 3rd civil degree, or
the common law husband of
Sexual assault is committed under the the victim’s mother; or
following circumstances:
(b) Where the victim was under
(1) Where the penis is inserted into the the custody of the police or
anal or oral orifice; or military authorities, or other
law enforcement agency;
(2) Where an instrument or object is
inserted into the genital or oral (c) Where the rape is committed
orifice. in full view of the victim’s
husband, the parents, any of
If the crime of rape / sexual assault is the children or relatives by
committed with the following circumstances, consanguinity within the 3rd
the following penalties are imposed: civil degree;
It has also been held that although the In a case where the accused jumped upon
offended woman who is the victim of the a woman and threw her to the ground,
rape failed to adduce evidence regarding although the accused raised her skirts, the
the damages to her by reason of the rape, accused did not make any effort to remove
the court may take judicial notice that there her underwear. Instead, he removed his
is such damage in crimes against chastity. own underwear and placed himself on top
The standard amount given now is P of the woman and started performing sexual
30,000.00, with or without evidence of any movements. Thereafter, when he was
moral damage. But there are some cases finished, he stood up and left. The crime
where the court awarded only P 20,000.00. committed is only acts of lasciviousness
and not attempted rape. The fact that he
An accused may be convicted of rape on did not remove the underwear of the victim
the sole testimony of the offended woman. indicates that he does not have a real
It does not require that testimony be intention to effect a penetration. It was only
corroborated before a conviction may stand. to satisfy a lewd design.
This is particularly true if the commission of
the rape is such that the narration of the Is there a complex crime under Article 48 of
offended woman would lead to no other kidnapping with rape? Read kidnapping.
conclusion except that the rape was
committed.
TITLE IX. CRIMES AGAINST PERSONAL
Illustration: LIBERTY AND SECURITY
7. Exploitation of child labor (Art. 273); Article 267. Kidnapping and Serious
Illegal Detention
8. Services rendered under compulsion
in payment of debts (Art. 274). Elements
(2) When the offended party is a female, provision. The liability of the parent
even if the detention lasted only for is provided for in the last paragraph
minutes; of Article 271;
(3) If the offended party is a minor or a (3) A paragraph was added to Article
public officer, no matter how long or 267, which states:
how short the detention is;
When the victim is
(4) When threats to kill are made or killed or dies as a
serious physical injuries have been consequence of the
inflicted; and detention or is raped,
or is subjected to
(5) If it shall have been committed torture, or
simulating public authority. dehumanizing acts,
the maximum penalty
Distinction between illegal detention and shall be imposed.
arbitrary detention
This amendment brings about a
Illegal detention is committed by a private composite crime of kidnapping with
person who kidnaps, detains, or otherwise homicide when it is the victim of the
deprives another of his liberty. kidnapping who was killed, or dies
as a consequence of the detention
Arbitrary detention is committed by a public and, thus, only one penalty is
officer who detains a person without legal imposed which is death.
grounds.
The penalty for kidnapping is higher than for Article 48, on complex crimes, does not
forcible abduction. This is wrong because if govern in this case. But Article 48 will
the offender knew about this, he would govern if any other person is killed aside,
perform lascivious acts upon the woman because the provision specifically refers to
and be charged only for forcible abduction “victim”. Accordingly, the rulings in cases of
instead of kidnapping or illegal detention. People v. Parulan, People v. Ging Sam,
He thereby benefits from this absurdity, and other similar cases where the accused
which arose when Congress amended were convicted for the complex crimes of
Article 267, increasing the penalty thereof, kidnapping with murder have become
without amending Article 342 on forcible academic.
abduction.
In the composite crime of kidnapping with
Article 267 has been modified by Republic homicide, the term “homicide” is used in the
Act No. 7659 in the following respects: generic sense and, thus, covers all forms of
killing whether in the nature of murder or
(1) Illegal detention becomes serious otherwise. It does not matter whether the
when it shall have lasted for more purpose of the kidnapping was to kill the
than three days, instead of five days victim or not, as long as the victim was
as originally provided; killed, or died as a consequence of the
kidnapping or detention. There is no more
(2) In paragraph 4, if the person separate crime of kidnapping and murder if
kidnapped or detained was a minor the victim was kidnapped not for the
and the offender was anyone of the purpose of killing her.
parents, the latter has been
expressly excluded from the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If the victim was raped, this brings about the Article 48 on complex crimes may not apply
composite crime of kidnapping with rape. when serious illegal detention and rape are
Being a composite crime, not a complex committed by the same offender. The
crime, the same is regarded as a single offender will be charged for the composite
indivisible offense as in fact the law crime of serious illegal detention with rape
punishes such acts with only a single as a single indivisible offense, regardless of
penalty. In a way, the amendment the number of times that the victim was
depreciated the seriousness of the rape raped.
because no matter how many times the
victim was raped, there will only be one Also, when the victim of the kidnapping and
kidnapping with rape. This would not be the serious illegal detention was subjected to
consequence if rape were a separate crime torture and sustained physical injuries, a
from kidnapping because each act of rape composite crime of kidnapping with physical
would be a distinct count. injuries is committed.
In People v. Bernal, 131 SCRA 1, the (1) The offended party is voluntarily
appellants were held guilty of separate released within three days from the
crimes of serious illegal detention and of start of illegal detention;
multiple rapes. With the amendment by
Republic Act No. 7659 making rape a (2) Without attaining the purpose;
qualifying circumstance in the crime of
kidnapping and serious illegal detention, the (3) Before the institution of the criminal
jurisprudence is superseded to the effect action.
that the rape should be a distinct crime.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
One should know the nature of the illegal with the reimposition of the death penalty,
detention to know whether the voluntary this crime is penalized with the extreme
release of the offended party will affect the penalty of death.
criminal liability of the offender.
What is ransom? It is the money, price or
When the offender voluntarily releases the consideration paid or demanded
offended party from detention within three for redemption of a captured
days from the time the restraint of liberty person or persons, a payment
began, as long as the offender has not that releases a person from
accomplished his purposes, and the release captivity.
was made before the criminal prosecution
was commenced, this would serve to The definition of ransom under the Lindberg
mitigate the criminal liability of the offender, law of the U.S. has been adopted in our
provided that the kidnapping or illegal jurisprudence in People v. Akiran, 18
detention is not serious. SCRA 239, 242, such that when a creditor
detains a debtor and releases the latter only
If the illegal detention is serious, however, upon the payment of the debt, such
even if the offender voluntarily released the payment of the debt, which was made a
offended party, and such release was within condition for the release is ransom, under
three days from the time the detention this article.
began, even if the offender has not
accomplished his purpose in detaining the In the case of People v. Roluna, decided
offended party, and even if there is no March 29, 1994, witnesses saw a person
criminal prosecution yet, such voluntary being taken away with hands tied behind his
release will not mitigate the criminal liability back and was not heard from for six years.
of the offender. Supreme Court reversed the trial court
ruling that the men accused were guilty of
One who furnishes the place where the kidnapping with murder. The crime is only
offended party is being held generally acts slight illegal detention under Article 268,
as an accomplice. But the criminal liability aggravated by a band, since none of the
in connection with the kidnapping and circumstances in Article 267 has been
serious illegal detention, as well as the proved beyond a reasonable doubt. The
slight illegal detention, is that of the principal fact that the victim has been missing for six
and not of the accomplice. years raises a presumption of death, but
from this disputable presumption of death, it
Before, in People v. Saliente, if the should not be further presumed that the
offended party subjected to serious illegal persons who were last seen with the
detention was voluntarily released by the absentee is responsible for his
accused in accordance with the provisions disappearance.
of Article 268 (3), the crime, which would
have been serious illegal detention, became
slight illegal detention only. Article 269. Unlawful Arrest
Under the first act, the offender is liable only 2. If the life of the minor was in danger
when he can render such assistance because of the abandonment.
without detriment to himself, unless such
omission shall constitute a more serious
offense. Where the person is already Article 277. Abandonment of Minor by
wounded and already in danger of dying, Person Entrusted with His Custody;
there is an obligation to render assistance Indifference of Parents
only if he is found in an uninhabited place.
If the mortally wounded, dying person is Acts punished
found in a place not uninhabited in legal
contemplation, abandonment will not bring 1. Delivering a minor to a public
about this crime. An uninhabited place is institution or other persons without
determined by possibility of person the consent of the one who
receiving assistance from another. Even if entrusted such minor to the care of
there are many houses around, the place the offender or, in the absence of
may still be uninhabited if possibility of that one, without the consent of the
receiving assistance is remote. proper authorities;
3. Employing any descendant under 12 But remember Republic Act No. 7610
years of age in dangerous (Special Protection of Children against Child
exhibitions enumerated in the next Abuse, Exploitation and Discrimination Act).
preceding paragraph, the offender It applies to minors below 18 years old, not
being engaged in any of the said 16 years old as in the Revised Penal Code.
callings; As long as the employment is inimical –
even though there is no physical risk – and
4. Delivering a child under 16 years of detrimental to the child’s interest – against
age gratuitously to any person moral, intellectual, physical, and mental
following any of the callings development of the minor – the
enumerated in paragraph 2, or to establishment will be closed.
any habitual vagrant or beggar, the
offender being an ascendant, Article 278 has no application if minor is 16
guardian, teacher or person years old and above. But the exploitation
entrusted in any capacity with the will be dealt with by Republic Act No. 7610.
care of such child; and
If the minor so employed would suffer some
5. Inducing any child under 16 years of injuries as a result of a violation of Article
age to abandon the home of its 278, Article 279 provides that there would
ascendants, guardians, curators or be additional criminal liability for the
teachers to follow any person resulting felony.
engaged in any of the callings
mentioned in paragraph 2 or to Illustration:
accompany any habitual vagrant or
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
On violence, Cuello Calon opines that Pursuant to Section 6, Rule 113 of the
violence may be committed not Rules of Court, a person who believes that
only against persons but also a crime has been committed against him
against things. So, breaking the has every right to go after the culprit and
door or glass of a window or door arrest him without any warrant even if in the
constitutes acts of violence. Our process he enters the house of another
Supreme Court followed this view against the latter’s will.
in People v. Tayag. Violence or
intimidation must, however, be Article 281. Other forms of trespass
anterior or coetaneous with the
entrance and must not be Elements
posterior. But if the violence is
employed immediately after the 1. Offender enters the closed premises
entrance without the consent of or the fenced estate of another;
the owner of the house, trespass
is committed. If there is also 2. The entrance is made while either of
violence or intimidation, proof of them is uninhabited;
prohibition to enter is no longer
necessary. 3. The prohibition to enter is manifest;
Distinction between qualified trespass to 4. The trespasser has not secured the
dwelling and violation of domicile permission of the owner or the
caretaker thereof.
Unlike qualified trespass to dwelling,
violation of domicile may be committed only Article 282. Grave Threats
by a public officer or employee and the
violation may consist of any of the three Acts punished:
acts mentioned in Article 128 – (1) entering
the dwelling against the will of the owner 1. Threatening another with the
without judicial order; (2) searching papers infliction upon his person, honor or
or other effects found in such dwelling property or that of this family of any
without the previous consent of the owner wrong amounting to a crime and
thereof; and (3) refusing to leave the demanding money or imposing any
dwelling when so requested by the owner other condition, even though not
thereof, after having surreptitiously entered unlawful, and the offender attained
such dwelling. his purpose;
Cases when Article 280 does not apply: 2. Making such threat without the
offender attaining his purpose;
(1) When the purpose of the entrance is
to prevent serious harm to himself, 3. Threatening another with the
the occupant or third persons; infliction upon his person, honor or
property or that of his family of any
(2) When the purpose of the offender in wrong amounting to a crime, the
entering is to render some service to threat not being subject to a
humanity or justice; condition.
property or upon that of his family of some In threat, the wrong or harm done is future
wrong which may or may not amount to a and conditional. In coercion, it is direct and
crime: personal.
(1) Grave threats – when the wrong Distinction between threat and robbery:
threatened to be inflicted amounts to
a crime. The case falls under Article (1) As to intimidation – In robbery, the
282. intimidation is actual and immediate;
in threat, the intimidation is future
(2) Light threats – if it does not amount and conditional.
to a crime. The case falls under
Article 283. (2) As to nature of intimidation – In
robbery, the intimidation is personal;
But even if the harm intended is in the in threats, it may be through an
nature of a crime, if made orally and in the intermediary.
heat of anger and after the oral threat, the
issuer of the threat did not pursue the act, (3) As to subject matter – Robbery
the crime is only other light threats under refers to personal property; threat
Article 285. may refer to the person, honor or
property.
To constitute grave threats, the threats must
refer to a future wrong and is committed by (4) As to intent to gain – In robbery,
acts or through words of such efficiency to there is intent to gain; in threats,
inspire terror or fear upon another. It is, intent to gain is not an essential
therefore, characterized by moral pressure element.
that produces disquietude or alarm.
(5) In robbery, the robber makes the
The greater perversity of the offender is danger involved in his threats
manifested when the threats are made directly imminent to the victim and
demanding money or imposing any the obtainment of his gain
condition, whether lawful or not, and the immediate, thereby also taking rights
offender shall have attained his purpose. to his person by the opposition or
So the law imposes upon him the penalty resistance which the victim might
next lower in degree than that prescribed for offer; in threat, the danger to the
the crime threatened to be committed. But victim is not instantly imminent nor
if the purpose is not attained, the penalty the gain of the culprit immediate.
lower by two degrees is imposed. The
maximum period of the penalty is imposed if
the threats are made in writing or through a Article 283. Light Threats
middleman as they manifest evident
premeditation. Elements
1. Threatening another with a weapon, Grave coercion arises only if the act which
or by drawing such weapon in a the offender prevented another to do is not
quarrel, unless it be in lawful self- prohibited by law or ordinance. If the act
defense; prohibited was illegal, he is not liable for
grave coercion.
2. Orally threatening another, in the
heat of anger, with some harm If a person prohibits another to do an act
constituting a crime, without because the act is a crime, even though
some sort of violence or intimidation is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
employed, it would not give rise to grave In Lee v. CA, 201 SCAR 405, it was held
coercion. It may only give rise to threat or that neither the crime of threats nor
physical injuries, if some injuries are coercion is committed although the
inflicted. However, in case of grave accused, a branch manager of a
coercion where the offended party is being bank made the complainant sign a
compelled to do something against his will, withdrawal slip for the amount
whether it be wrong or not, the crime of needed to pay the spurious dollar
grave coercion is committed if violence or check she had encashed, and also
intimidation is employed in order to compel made her execute an affidavit
him to do the act. No person shall take the regarding the return of the amount
law into his own hands. against her better sense and
judgment. According to the court,
Illustration: the complainant may have acted
reluctantly and with hesitation, but
Compelling the debtor to deliver some of his still, it was voluntary. It is different
properties to pay a creditor will amount to when a complainant refuses
coercion although the creditor may have a absolutely to act such an extent that
right to collect payment from the debtor, she becomes a mere automaton and
even if the obligation is long over due. acts mechanically only, not of her
own will. In this situation, the
The violence employed in grave coercion complainant ceases to exits as an
must be immediate, actual, or imminent. In independent personality and the
the absence of actual or imminent force or person who employs force or
violence, coercion is not committed. The intimidation is, in the eyes of the law,
essence of coercion is an attack on the one acting; while the hand of the
individual liberty. complainant sign, the will that moves
it is the hand of the offender.
The physical violence is exerted to (1)
prevent a person from doing something he
wants to do; or (2) compel him to do Article 287. Light Coercions
something he does not want to do.
Elements
Illustration:
1. Offender must be a creditor;
If a man compels another to show the
contents of the latter’s pockets, and takes 2. He seizes anything belonging to his
the wallet, this is robbery and not grave debtor:
coercion. The intimidation is a means of
committing robbery with violence or 3. The seizure of the thing be
intimidation of persons. Violence is inherent accomplished by means of violence
in the crime of robbery with violence or or a display of material force
intimidation upon persons and in usurpation producing intimidation;
of real properties because it is the means of
committing the crime. 4. The purpose of the offender is to
apply the same to the payment of
Exception to the rule that physical violence the debt.
must be exerted: where intimidation is so
serious that it is not a threat anymore – it
approximates violence. The first paragraph deals with light
coercions wherein violence is employed by
the offender who is a creditor in seizing
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
It is distinguished from grave coercion 2. Paying the wages due his laborer or
under the first paragraph by the absence of employee by means of tokens or
violence. object other than the legal tender
currency of the Philippines, unless
Illustration: expressly requested by such laborer
or employee.
Persons stoning someone else’s house. So
long as stoning is not serious and it is Elements:
intended to annoy, it is unjust vexation. It
disturbs the peace of mind. 1. Offender pays the wages due
a laborer or employee
The main purpose of the statute penalizing employed by him by means
coercion and unjust vexation is precisely to of tokens or object;
enforce the principle that no person may
take the law into his hands and that our 1. Those tokens or objects are
government is one of laws, not of men. The other than the legal tender
essence of the crimes is the attack on currency of the Philippines;
individual liberty.
3. Such employee or laborer
does not expressly request
Article 288. Other Similar Coercions that he be paid by means of
tokens or objects.
Acts punished:
Elements:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
This is a crime against the security of one’s Revelation of secrets discovered not an
papers and effects. The purpose must be element of the crime but only increases the
to discover its effects. The act violates the penalty.
privacy of communication.
The last paragraph of Article 290 expressly 2. He learns the secrets of his principal
makes the provision of the first and second or master in such capacity;
paragraph thereof inapplicable to parents,
guardians, or persons entrusted with the 3. He reveals such secrets.
custody of minors placed under their care or
custody, and to the spouses with respect to
the papers or letters of either of them. The
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
21. Other forms of arson (Art. 321); Article 294. Robbery with Violence
against or Intimidation of Persons
22. Arson of property of small value (Art.
323); Acts punished
homicide is used in the generic sense. It In People v. Quiñones, 183 SCRA 747, it
refers to any kind of death. was held that there is no crime of
robbery with multiple homicides.
Although it is a crime against property and The charge should be for robbery
treachery is an aggravating circumstance with homicide only because the
that applies only to crimes against persons, number of persons killed is
if the killing in a robbery is committed with immaterial and does not increase
treachery, the treachery will be considered a the penalty prescribed in Article 294.
generic aggravating circumstance because All the killings are merged in the
of the homicide. composite integrated whole that is
robbery with homicide so long as the
When two or more persons are killed during killings were by reason or on
the robbery, such should be appreciated as occasion of the robbery.
an aggravating circumstance.
In another case, a band of robbers entered
As long as there is only one robbery, a compound, which is actually a sugar mill.
regardless of the persons killed, you only Within the compound, there were quarters
have one crime of robbery with homicide. of the laborers. They robbed each of the
Note, however, that “one robbery” does not quarters. The Supreme Court held that
mean there is only one taking. there was only one count of robbery
because when they decided and
Illustration: determined to rob the compound, they were
only impelled by one criminal intent to rob.
Robbers decided to commit robbery in a
house, which turned out to be a boarding With more reason, therefore, if in a robbery,
house. Thus, there were different boarders the offender took away property belonging
who were offended parties in the robbery. to different owners, as long as the taking
There is only one count of robbery. If there was done at one time, and in one place,
were killings done to different boarders impelled by the same criminal intent to gain,
during the robbery being committed in a there would only be one count of robbery.
boarder’s quarter, do not consider that as
separate counts of robbery with homicide In robbery with homicide as a single
because when robbers decide to commit indivisible offense, it is immaterial who gets
robbery in a certain house, they are only killed. Even though the killing may have
impelled by one criminal intent to rob and resulted from negligence, you will still
there will only be one case of robbery. If designate the crime as robbery with
there were homicide or death committed, homicide.
that would only be part of a single robbery.
That there were several killings done would Illustration:
only aggravate the commission of the crime
of robbery with homicide. On the occasion of a robbery, one of the
offenders placed his firearm on the table.
While they were ransacking the place, one
of the robbers bumped the table. As a
result, the firearm fell on the floor and
discharged. One of the robbers was the
one killed. Even though the placing of the
firearm on the table where there is no safety
precaution taken may be considered as one
of negligence or imprudence, you do not
separate the homicide as one of the product
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
of criminal negligence. It will still be robbery In People v. Domingo, 184 SCRA 409, on
with homicide, whether the person killed is the occasion of the robbery, the
connected with the robbery or not. He need storeowner, a septuagenarian,
not also be in the place of the robbery. suffered a stroke due to the extreme
fear which directly caused his death
In one case, in the course of the struggle in when the robbers pointed their guns
a house where the robbery was being at him. It was held that the crime
committed, the owner of the place tried to committed was robbery with
wrest the arm of the robber. A person homicide. It is immaterial that death
several meters away was the one who got supervened as a mere accident as
killed. The crime was held to be robbery long as the homicide was produced
with homicide. by reason or on the occasion of the
robbery, because it is only the result
Note that the person killed need not be one which matters, without reference to
who is identified with the owner of the place the circumstances or causes or
where the robbery is committed or one who persons intervening in the
is a stranger to the robbers. It is enough commission of the crime which must
that the homicide was committed by reason be considered.
of the robbery or on the occasion thereof.
Remember also that intent to rob must be
Illustration: proved. But there must be an allegation as
to the robbery not only as to the intention to
There are two robbers who broke into a rob.
house and carried away some valuables.
After they left such house these two robbers If the motive is to kill and the taking is
decided to cut or divide the loot already so committed thereafter, the crimes committed
that they can go of them. So while they are are homicide and theft. If the primordial
dividing the loot the other robber noticed intent of the offender is to kill and not to rob
that the one doing the division is trying to but after the killing of the victims a robbery
cheat him and so he immediately boxed was committed, then there are will be two
him. Now this robber who was boxed then separate crimes.
pulled out his gun and fired at the other one
killing the latter. Would that bring about the Illustration:
crime of robbery with homicide? Yes. Even
if the robbery was already consummated, If a person had an enemy and killed him
the killing was still by reason of the robbery and after killing him, saw that he had a
because they quarreled in dividing the loot beautiful ring and took this, the crime would
that is the subject of the robbery. be not robbery with homicide because the
primary criminal intent is to kill. So, there
will be two crimes: one for the killing and
one for the taking of the property after the
victim was killed. Now this would bring
about the crime of theft and it could not be
robbery anymore because the person is
already dead.
homicide are separate offenses when the consummated. If during the robbery,
homicide is not committed “on the occasion” attempted rape were committed, the crimes
or “by reason” of the robbery. would be separate, that is, one for robbery
and one for the attempted rape.
Where the victims were killed, not for the
purpose of committing robbery, and The rape committed on the occasion of the
the idea of taking the money and robbery is not considered a private crime
other personal property of the because the crime is robbery, which is a
victims was conceived by the crime against property. So, even though
culprits only after the killing, it was the robber may have married the woman
held in People v. Domingo, 184 raped, the crime remains robbery with rape.
SCRA 409, that the culprits The rape is not erased. This is because the
committed two separate crimes of crime is against property which is a single
homicide or murder (qualified by indivisible offense.
abuse of superior strength) and
theft. If the woman, who was raped on the
occasion of the robbery, pardoned the rapist
The victims were killed first then their who is one of the robbers, that would not
money was taken the money from erase the crime of rape. The offender
their dead bodies. This is robbery would still be prosecuted for the crime of
with homicide. It is important here robbery with rape, as long as the rape is
that the intent to commit robbery consummated.
must precede the taking of human
life in robbery with homicide. The If the rape is attempted, since it will be a
offender must have the intent to take separate charge and the offended woman
personal property before the killing. pardoned the offender, that would bring
about a bar to the prosecution of the
It must be conclusively shown that the attempted rape. If the offender married the
homicide was committed for the offended woman, that would extinguish the
purpose of robbing the victim. In criminal liability because the rape is the
People v. Hernandez, appellants subject of a separate prosecution.
had not thought of robbery prior to
the killing. The thought of taking the The intention must be to commit robbery
victim’s wristwatch was conceived and even if the rape is committed before the
only after the killing and throwing of robbery, robbery with rape is committed.
the victim in the canal. Appellants But if the accused tried to rape the offended
were convicted of two separate party and because of resistance, he failed
crimes of homicide and theft as to consummate the act, and then he
there is absent direct relation and snatched the vanity case from her hands
intimate connection between the when she ran away, two crimes are
robbery and the killing. committed: attempted rape and theft.
rape. Robbery must not be a mere accident the owner of the house chased them and
or afterthought. the robbers fought back. If only less serious
physical injuries were inflicted, there will be
In People v. Flores, 195 SCRA 295, separate crimes: one for robbery and one
although the offenders plan was to get the for less serious physical injuries.
victim’s money, rape her and kill her, but in
the actual execution of the crime, the But if after the robbery was committed and
thoughts of depriving the victim of her the robbers were already fleeing from the
valuables was relegated to the background house where the robbery was committed,
and the offender’s prurient desires the owner or members of the family of the
surfaced. They persisted in satisfying their owner chased them, and they fought back
lust. They would have forgotten about their and somebody was killed, the crime would
intent to rob if not for the accidental still be robbery with homicide. But if serious
touching of the victim’s ring and wristwatch. physical injuries were inflicted and the
The taking of the victim’s valuables turned serious physical injuries rendered the victim
out to be an afterthought. It was held that impotent or insane or the victim lost the use
two distinct crimes were committed: rape of any of his senses or lost a part of his
with homicide and theft. body, the crime would still be robbery with
serious physical injuries. The physical
In People v. Dinola, 183 SCRA 493, it was injuries (serious) should not be separated
held that if the original criminal design of the regardless of whether they retorted in the
accused was to commit rape and after course of the commission of the robbery or
committing the rape, the accused even after the robbery was consummated.
committed robbery because the opportunity
presented itself, two distinct crimes – rape In Article 299, it is only when the physical
and robbery were committed – not robbery injuries resulted in the deformity or
with rape. In the latter, the criminal intent to incapacitated the offended party from labor
gain must precede the intent to rape. for more than 30 days that the law requires
such physical injuries to have been inflicted
in the course of the execution of the
On robbery with physical injuries robbery, and only upon persons who are not
responsible in the commission of the
To be considered as such, the physical robbery.
injuries must always be serious. If the
physical injuries are only less serious or But if the physical injuries inflicted are those
slight, they are absorbed in the robbery. falling under subdivision 1 and 2 of Article
The crime becomes merely robbery. But if 263, even though the physical injuries were
the less serious physical injuries were inflicted upon one of the robbers
committed after the robbery was already themselves, and even though it had been
consummated, there would be a separate inflicted after the robbery was already
charge for the less serious physical injuries. consummated, the crime will still be robbery
It will only be absorbed in the robbery if it with serious physical injuries. There will
was inflicted in the course of the execution only be one count of accusation.
of the robbery. The same is true in the case
of slight physical injuries. Illustration:
If the robbers quarreled over the loot and Robbery with homicide, robbery with
one of the robbers hacked the other robber intentional mutilation and robbery with rape
causing a deformity in his face, the crime are not qualified by band or uninhabited
will only be robbery and a separate charge place. These aggravating circumstances
for the serious physical injuries because only qualify robbery with physical injuries
when it is a deformity that is caused, the law under subdivision 2, 3, and 4 of Article 299.
requires that the deformity must have been
inflicted upon one who is not a participant in When it is robbery with homicide, the band
the robbery. Moreover, the physical injuries or uninhabited place is only a generic
which gave rise to the deformity or which aggravating circumstance. It will not qualify
incapacitated the offended party from labor the crime to a higher degree of penalty.
for more than 30 days, must have been
inflicted in the course of the execution of the In People v. Salvilla, it was held that if in a
robbery or while the robbery was taking robbery with serious physical injuries, the
place. offenders herded the women and children
into an office and detained them to compel
If it was inflicted when the thieves/robbers the offended party to come out with the
are already dividing the spoils, it cannot be money, the crime of serious illegal detention
considered as inflicted in the course of was a necessary means to facilitate the
execution of the robbery and hence, it will robbery; thus, the complex crimes of
not give rise to the crime of robbery with robbery with serious physical injuries and
serious physical injuries. You only have serious illegal detention.
one count of robbery and another count for
the serious physical injuries inflicted. But if the victims were detained because of
the timely arrival of the police, such
If, during or on the occasion or by reason of that the offenders had no choice but
the robbery, a killing, rape or serious to detain the victims as hostages in
physical injuries took place, there will only exchange for their safe passage, the
be one crime of robbery with homicide detention is absorbed by the crime
because all of these – killing, rape, serious of robbery and is not a separate
physical injuries -- are contemplated by law crime. This was the ruling in People
as the violence or intimidation which v. Astor.
characterizes the taking as on of robbery.
You charge the offenders of robbery with
homicide. The rape or physical injuries will On robbery with arson
only be appreciated as aggravating
circumstance and is not the subject of a Another innovation of Republic Act No.
separate prosecution. They will only call for 7659 is the composite crime of robbery with
the imposition of the penalty in the arson if arson is committed by reason of or
maximum period. on occasion of the robbery. The composite
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
c. By using false keys, Two predicates that will give rise to the
picklocks or similar tools; or crime as robbery:
3. Once inside the building, offender 2. The entering will not give rise to
took personal property belonging to robbery even if something is taken
another with intent to gain. inside. It is the breaking of the
receptacle or closet or cabinet
where the personal property is kept
Elements under subdivision (b): that will give rise to robbery, or the
taking of a sealed, locked receptacle
1. Offender is inside a dwelling house, to be broken outside the premises.
public building, or edifice devoted to
religious worship, regardless of the If by the mere entering, that would already
circumstances under which he qualify the taking of any personal property
entered it; inside as robbery, it is immaterial whether
the offender stays inside the premises. The
2. Offender takes personal property breaking of things inside the premises will
belonging to another, with intent to only be important to consider if the entering
gain, under any of the following by itself will not characterize the crime as
circumstances: robbery with force upon things.
If the entering does not characterize the (3) a place devoted to religious worship.
taking inside as one of robbery with force
upon things, it is the conduct inside that The law also considers robbery committed
would give rise to the robbery if there would not in an inhabited house or in a private
be a breaking of sealed, locked or closed building.
receptacles or cabinet in order to get the
personal belongings from within such Note that the manner of committing the
receptacles, cabinet or place where it is robbery with force upon things is not the
kept. same.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
When the robbery is committed in a house A found B inside his (A’s) house. He asked
which is inhabited, or in a public building or B what the latter was doping there. B
in a place devoted to religious worship, the claimed he is an inspector from the local
use of fictitious name or pretension to city government to look after the electrical
possess authority in order to gain entrance installations. At the time B was chanced
will characterize the taking inside as upon by A, he has already entered. So
robbery with force upon things. anything he took inside without breaking of
any sealed or closed receptacle will not give
rise to robbery because the simulation of
public authority was made not in order to
Question & Answer
enter but when he has already entered.
dwelling house, not a public building, 2. Such picklock or similar tools are
or not an edifice devoted to religious especially adopted to the
worship; commission of robbery;
2. Any of the following circumstances 3. Offender does not have lawful cause
was present: for such possession.
c. The entrance was effected 3. Any key other than those intended
through the use of false keys, by the owner for use in the lock
picklocks or other similar forcibly opened by the offender.
tools;
Under Article 303, if the robbery under 2. They formed a band of robbers;
Article 299 and 302 consists in the taking of
cereals, fruits, or firewood, the penalty 2. The purpose is any of the following:
imposable is lower.
a. To commit robbery in the
highway;
Article 304. Possession of Picklock or
Similar Tools b. To kidnap persons for the
purpose of extortion or to
Elements obtain ransom; or
committed on a highway. The purpose of hunt or fish upon the same or gather
brigandage is indiscriminate robbery in fruits, cereals or other forest or farm
highways. If the purpose is only a particular products.
robbery, the crime is only robbery or
robbery in band, if there are at least four
armed participants. Elements
5. The property stolen is fish taken Use the degree of intimidation to determine
from a fishpond or fishery; or the degree of the penalty to be applied for
the usurpation.
6. If property is taken on the occasion
of fire, earthquake, typhoon, volcanic Usurpation under Article 312 is committed
eruption, or any other calamity, in the same way as robbery with
vehicular accident, or civil violence or intimidation of persons.
disturbance. The main difference is that in
robbery, personal property is
involved; while in usurpation of real
Article 311. Theft of the Property of the rights, it is real property. (People v.
National Library or National Museum Judge Alfeche, July 23, 1992)
If the property stolen is any property of the Usurpation of real rights and property
National Library or of the National Museum should not be complexed using Article 48
when violence or intimidation is committed.
Article 312. Occupation of Real Property There is only a single crime, but a two-
or Usurpation of Real Rights in Property tiered penalty is prescribed to be
determined on whether the acts of violence
Acts punished: used is akin to that in robbery in Article 294,
grave threats or grave coercion and an
1. Taking possession of any real incremental penalty of fine based on the
property belonging to another by value of the gain obtained by the offender.
means of violence against or
intimidation of persons; Therefore, it is not correct to state that the
threat employed in usurping real property is
2. Usurping any real rights in property absorbed in the crime; otherwise, the
belonging to another by means of additional penalty would be meaningless.
violence against or intimidation of
persons. The complainant must be the person upon
whom violence was employed. If a tenant
was occupying the property and he was
Elements threatened by the offender, but it was the
owner who was not in possession of the
property who was named as the offended
party, the same may be quashed as it does
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(3) It does not cover checks where the 3. The person who makes or
purpose of drawing the check is to draws and issued the check
guarantee a loan as this is not an knows at the time of issue
obligation contemplated in this that he does not have
paragraph sufficient funds in or credit
with the drawee bank for the
The check must be genuine. If the check is payment of such check in full
falsified and is cashed with the bank or upon its presentment;
exchanged for cash, the crime is estafa thru
falsification of a commercial document. 3. The check is subsequently
dishonored by the drawee
The general rule is that the accused must bank for insufficiency of
be able to obtain something from the funds or credit, or would
offended party by means of the check he have been dishonored for the
issued and delivered. Exception: when the same reason had not the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
In Allied Bank Corporation v. Secretary drawer had been notified of the dishonor
Ordonez, 192 SCRA 246, it was and inspite of such notice fails to pay the
held that under Section 13 of holder of the check the full amount due
Presidential Decree No. 115, the thereon within five days from notice.
failure of an entrustee to turn over
the proceeds of sale of the goods Under Batas Pambansa Blg. 22, a drawer
covered by the Trust Receipt, or to must be given notice of dishonor and given
return said goods if they are not five banking days from notice within which
sold, is punishable as estafa Article to deposit or pay the amount stated in the
315 (1) (b). check to negate the presumtion that drawer
knew of the insufficiency. After this period,
it is conclusive that drawer knew of the
On issuance of a bouncing check insufficiency, thus there is no more defense
to the prosecution under Batas Pambansa
The issuance of check with insufficient Blg. 22.
funds may be held liable for estafa and
Batas Pambansa Blg. 22. Batas Pambansa The mere issuance of any kind of check
Blg. 22 expressly provides that prosecution regardless of the intent of the parties,
under said law is without prejudice to any whether the check is intended to serve
liability for violation of any provision in the merely as a guarantee or as a deposit,
Revised Penal Code. Double Jeopardy makes the drawer liable under Batas
may not be invoked because a violation of Pambansa Blg. 22 if the check bounces. As
Batas Pambansa Blg. 22 is a malum a matter of public policy, the issuance of a
prohibitum and is being punished as a crime worthless check is a public nuisance and
against the public interest for undermining must be abated.
the banking system of the country, while
under the RevisedPenal Code, the crime is In De Villa v. CA, decided April 18, 1991, it
malum in se which requires criminal intent was held that under Batas Pambansa Blg.
and damage to the payee and is a crime 22, there is no distinction as to the kind of
against property. check issued. As long as it is delivered
within Philippine territory, the Philippine
In estafa, the check must have been issued courts have jurisdiction. Even if the check
as a reciprocal consideration for parting of is only presented to and dishonored in a
goods (kaliwaan). There must be Philippine bank, Batas Pambansa Blg. 22
concomitance. The deceit must be prior to applies. This is true in the case of dollar or
or simultaneous with damage done, that is, foreign currency checks. Where the law
seller relied on check to part with goods. If makes no distinction, none should be made.
it is issued after parting with goods as in
credit accommodation only, there is no In People v. Nitafan, it was held that as
estafa. If the check is issued for a pre- long as instrument is a check under the
existing obligation, there is no estafa as negotiable instrument law, it is covered by
damage had already been done. The Batas Pambansa Blg. 22. A memorandum
drawer is liable under Batas Pambansa Blg. check is not a promissory note, it is a check
22. which have the word “memo,” “mem”,
“memorandum” written across the face of
For criminal liability to attach under Batas the check which signifies that if the holder
Pambansa Blg. 22, it is enough that the upon maturity of the check presents the
check was issued to "apply on account or same to the drawer, it will be paid
for value" and upon its presentment it was absolutely. But there is no prohibition
dishonored by the drawee bank for against drawer from depositing
insufficiency of funds, provided that the memorandum check in a bank. Whatever
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
be the agreement of the parties in respect 2. Offender who is not the owner
of the issuance of a check is represents himself as the owner
inconsequential to a violation to Batas thereof;
Pambansa Blg. 22 where the check
bounces. 3. Offender executes an act of
ownership such as selling, leasing,
But overdraft or credit arrangement may be encumbering or mortgaging the real
allowed by banks as to their preferred property;
clients and Batas Pambansa Blg. 22 does
not apply. If check bounces, it is because 4. The act is made to the prejudice to
bank has been remiss in honoring the owner or a third person.
agreement.
The check must be presented for payment Under paragraph 2 – by disposing of real
within a 90-day period. If presented for property as free from encumbrance,
payment beyond the 90 day period and the although such encumbrance be not
drawer’s funds are insufficient to cover it, recorded
there is no Batas Pambansa Blg. 22
violation. Elements
Where check was issued prior to August 8, 1. The thing disposed is a real
1984, when Circular No. 12 of the property:
Department of the Justice took
effect, and the drawer relied on the 2. Offender knew that the real property
then prevailing Circular No. 4 of the was encumbered, whether the
Ministry of Justice to the effect that encumbrance is recorded or not;
checks issued as part of an
arrangement/agreement of the 3. There must be express
parties to guarantee or secure representation by offender that the
fulfillment of an obligation are not real property is free from
covered by Batas Pambansa Blg. encumbrance;
22, no criminal liability should be
incurred by the drawer. Circular 4. The act of disposing of the real
should not be given retroactive property is made to the damage of
effect. (Lazaro v. CA, November another.
11, 1993, citing People v. Alberto,
October 28, 1993)
Under paragraph 3 – by wrongfully taking by
the owner of his personal property from its
Article 316. Other Forms of Swindling lawful possessor
Acts punished
Elements:
Arson
1. Personal property is
mortgaged under the Chattel Kinds of arson
Mortgage Law;
1. Arson, under Section 1 of
2. Offender knows that such Presidential Decree No. 1613;
property is so mortgaged;
2. Destructive arson, under Article 320
3. Offender removes such of the Revised Penal Code, as
mortgaged personal property amended by Republic Act No. 7659;
to any province or city other
than the one in which it was 3. Other cases of arson, under Section
located at the time of the 3 of Presidential Decree No. 1613.
execution of the mortgage;
4. The removal is permanent; Article 327. Who Are Liable for Malicious
Mischief
5. There is no written consent of
the mortgagee or his Elements
executors, administrators or
assigns to such removal. 1. Offender deliberately caused
damage to the property of another;
2. Selling or pledging personal property
already pledged, or any part thereof, 2. Such act does not constitute arson
under the terms of the Chattel or other crimes involving destruction;
Mortgage Law, without the consent
of the mortgagee written on the back 3. The act of damaging another’s
of the mortgage and noted on the property was committed merely for
record thereof in the office of the the sake of damaging it;
register of deeds of the province
where such property is located.
There is destruction of the property of
Elements: another but there is no misappropriation.
Otherwise, it would be theft if he gathers the
1. Personal property is already effects of destruction.
pledged under the terms of
the Chattel Mortgage Law;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 328. Special Case of Malicious Persons exempted from criminal liability
Mischief
1. Spouse, ascendants and
Acts punished descendants, or relatives by affinity
in the same line;
1. Causing damage to obstruct the
performance of public functions; 2. Widowed spouse with respect to the
property which belonged to the
2. Using any poisonous or corrosive deceased spouse before the same
substance; passed into the possession of
another
3. Spreading any infection or contagion
among cattle; 3. Brothers and sisters and brothers-in-
law and sisters-in-law, if living
4. Causing damage to the property of together.
the National Museum or National
Library, or to any archive or registry,
waterworks, road, promenade, or Only the relatives enumerated incur no
any other thing used is common by liability if the crime relates to theft (not
the pubic. robbery), swindling, and malicious mischief.
Third parties who participate are not
exempt. The relationship between the
Article 329. Other Mischiefs spouses is not limited to legally married
couples; the provision applies to live-in
All other mischiefs not included in the next partners.
preceding article
Estafa should not be complexed with any
other crime in order for exemption to
Article 330. Damage and Obstruction to operate.
Means of Communication
This is committed by damaging any railway, TITLE XI. CRIMES AGAINST CHASTITY
telegraph or telephone lines.
Crimes against chastity
Note that there are two kinds of acts of Always remember that there can be no
lasciviousness under the Revised Penal frustration of acts of lasciviousness, rape or
Code: (1) under Article 336, and (2) under adultery because no matter how far the
Article 339. offender may have gone towards the
realization of his purpose, if his participation
1. Article 336. Acts of Lasciviousness amounts to performing all the acts of
execution, the felony is necessarily
Under this article, the offended party produced as a consequence thereof.
may be a man or a woman. The
crime committed, when the act Intent to rape is not a necessary element of
performed with lewd design was the crime of acts of lasciviousness.
perpetrated under circumstances Otherwise, there would be no crime of
which would have brought about the attempted rape.
crime of rape if sexual intercourse
was effected, is acts of
lasciviousness under this article. Article 337. Qualified Seduction
This means that the offended party
is either – Acts punished
This crime also involves sexual intercourse. Article 338. Simple Seduction
The offended woman must be over 12 but
below 18 years. Elements
The distinction between qualified seduction 1. Offender party is over 12 and under
and simple seduction lies in the fact, among 18 years of age;
others, that the woman is a virgin in
qualified seduction, while in simple 2. She is of good reputation, single or
seduction, it is not necessary that the widow;
woman be a virgin. It is enough that she is
of good repute. 3. Offender has sexual intercourse with
her;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Unlike in qualified seduction, virginity is not Article 341. White Slave Trade
essential in this crime. What is required is
that the woman be unmarried and of good Acts punished
reputation. Simple seduction is not
synonymous with loss of virginity. If the 1. Engaging in the business of
woman is married, the crime will be prostitution;
adultery.
2. Profiting by prostitution;
The failure to comply with the promise of
marriage constitutes the deceit mentioned 3. Enlisting the services of women for
in the law. the purpose of prostitution.
2. The acts are committed upon a 2. The abduction is against her will;
woman who is a virgin or single or
widow of good reputation, under 18 3. The abduction is with lewd designs.
years of age but over 12 years, or a
sister or descendant, regardless of
her reputation or age; A woman is carried against her will or
brought from one place to another against
3. Offender accomplishes the acts by her will with lewd design.
abuse of authority, confidence,
relationship, or deceit. If the element of lewd design is present, the
carrying of the woman would qualify as
Article 340. Corruption of Minors abduction; otherwise, it would amount to
kidnapping. If the woman was only brought
to a certain place in order to break her will
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
and make her agree to marry the offender, person abducted need not be shown. The
the crime is only grave coercion because intent to seduce a girl is sufficient.
the criminal intent of the offender is to force
his will upon the woman and not really to If there is a separation in fact, the taking by
restrain the woman of her liberty. the husband of his wife against her will
constitutes grave coercion.
If the offended woman is under 12 years
old, even if she consented to the abduction, Distinction between forcible abduction and
the crime is forcible abduction and not illegal detention:
consented abduction.
When a woman is kidnapped with lewd or
Where the offended woman is below the unchaste designs, the crime committed is
age of consent, even though she had gone forcible abduction.
with the offender through some deceitful
promises revealed upon her to go with him When the kidnapping is without lewd
and they live together as husband and wife designs, the crime committed is illegal
without the benefit of marriage, the ruling is detention.
that forcible abduction is committed by the
mere carrying of the woman as long as that But where the offended party was forcibly
intent is already shown. In other words, taken to the house of the defendant to
where the man cannot possibly give the coerce her to marry him, it was held that
woman the benefit of an honorable life, all only grave coercion was committed and not
that man promised are just machinations of illegal detention.
a lewd design and, therefore, the carrying
of the woman is characterized with lewd
design and would bring about the crime of Article 343. Consented Abduction
abduction and not kidnapping. This is also
true if the woman is deprived of reason and Elements
if the woman is mentally retardate. Forcible
abduction is committed and not consented 1. Offended party is a virgin;
abduction.
2. She is over 12 and under 18 years
Lewd designs may be demonstrated by the of age;
lascivious acts performed by the offender
on her. Since this crime does not involve 3. Offender takes her away with her
sexual intercourse, if the victim is subjected consent, after solicitation or cajolery;
to this, then a crime of rape is further
committed and a complex crime of forcible 4. The taking away is with lewd
abduction with rape is committed. designs.
view adopted in cases of similar nature is to is his or hers alone, because the indignity or
the effect that where more than one person dishonor brought about by these crimes
has effected the forcible abduction with affects more the offended party than social
rape, all the rapes are just the order. The offended party may prefer to
consummation of the lewd design which suffer the outrage in silence rather than to
characterizes the forcible abduction and, vindicate his honor in public.
therefore, there should only be one forcible
abduction with rape. In the crimes of rape, abduction and
seduction, if the offended woman had given
In the crimes involving rape, abduction, birth to the child, among the liabilities of the
seduction, and acts of lasciviousness, the offender is to support the child. This
marriage by the offender with the offended obligation to support the child may be true
woman generally extinguishes criminal even if there are several offenders. As to
liability, not only of the principal but also of whether all of them will acknowledge the
the accomplice and accessory. However, child, that is a different question because
the mere fact of marriage is not enough the obligation to support here is not founded
because it is already decided that if the on civil law but is the result of a criminal act
offender marries the offended woman or a form of punishment.
without any intention to perform the duties
of a husband as shown by the fact that after It has been held that where the woman was
the marriage, he already left her, the the victim of the said crime could not
marriage would appear as having been possibly conceive anymore, the trial court
contracted only to avoid the punishment. should not provide in its sentence that the
Even with that marriage, the offended accused, in case a child is born, should
woman could still prosecute the offender support the child. This should only be
and that marriage will not have the effect of proper when there is a probability that the
extinguishing the criminal liability. offended woman could give birth to an
offspring.
Pardon by the offended woman of the
offender is not a manner of extinguishing
criminal liability but only a bar to the TITLE XII. CRIMES AGAINST THE CIVIL
prosecution of the offender. Therefore, that STATUS OF PERSONS
pardon must come before the prosecution is
commenced. While the prosecution is Crimes against the civil status of persons
already commenced or initiated, pardon by
the offended woman will no longer be 1. Simulation of births, substitution of
effective because pardon may preclude one child for another and
prosecution but not prevent the same. concealment or abandonment of a
legitimate child (art. 347);
All these private crimes – except rape –
cannot be prosecuted de officio. If any 2. Usurpation of civil status (Art. 348);
slander or written defamation is made out of
any of these crimes, the complaint of the 3. Bigamy (Art. 349);
offended party is till necessary before such
case for libel or oral defamation may 4. Marriage contracted against
proceed. It will not prosper because the provisions of law (Art. 350);
court cannot acquire jurisdiction over these
crimes unless there is a complaint from the 5. Premature marriages (Art. 351);
offended party. The paramount decision of
whether he or she wanted the crime 6. Performance of illegal marriage
committed on him or her to be made public ceremony (Art. 352).
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If the child is being kidnapped and they This crime is committed when a person
knew that the kidnappers are not the real represents himself to be another and
parents of their child, then simulation of assumes the filiation or the parental or
birth is committed. If the parents are parties conjugal rights of such another person.
to the simulation by making it appear in the
birth certificate that the parents who bought
the child are the real parents, the crime is Thus, where a person impersonates
not falsification on the part of the parents another and assumes the latter's right as
and the real parents but simulation of birth. the son of wealthy parents, the former
commits a violation of this article.
could not yet be presumed dead Distinction between bigamy and illegal
according to the Civil Code; marriage:
1. A widow who is married within 301 7. Intriguing against honor (Art. 364).
days from the date of the death of
her husband, or before having
delivered if she is pregnant at the Article 353. Definition of Libel
time of his death;
A libel is a public and malicious imputation
2. A woman who, her marriage having of a crime, or of a vice or defect, real or
been annulled or dissolved, married imaginary, or any act, omission, condition,
before her delivery or before the status, or circumstances tending to cause
expiration of the period of 301 days the dishonor, discredit, or contempt of a
after the date of the legal separation. natural or juridical person, or to blacken the
memory of one who is dead.
TITLE XIII. CRIMES AGAINST HONOR 5. The imputation must tend to cause
the dishonor, discredit or contempt
Crimes against honor of the person defamed.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Distinction between malice in fact and will be admitted to take the place of malice
malice in law in law. When the defamatory statement or
utterance is qualifiedly privileged, the malice
Malice in fact is the malice which the law in law is negated. The utterance or
presumes from every statement whose statement would not be actionable because
tenor is defamatory. It does not need proof. malice in law does not exist. Therefore, for
The mere fact that the utterance or the complainant to prosecute the accused
statement is defamatory negates a legal for libel, oral defamation or slander, he has
presumption of malice. to prove that the accused was actuated with
malice (malice in fact) in making the
In the crime of libel, which includes oral statement.
defamation, there is no need for the
prosecution to present evidence of malice. When a libel is addressed to several
It is enough that the alleged defamatory or persons, unless they are identified in the
libelous statement be presented to the court same libel, even if there are several
verbatim. It is the court which will prove persons offended by the libelous utterance
whether it is defamatory or not. If the tenor or statement, there will only be one count of
of the utterance or statement is defamatory, libel.
the legal presumption of malice arises even
without proof. If the offended parties in the libel were
distinctly identified, even though the libel
Malice in fact becomes necessary only if the was committed at one and the same time,
malice in law has been rebutted. there will be as many libels as there are
Otherwise, there is no need to adduce persons dishonored.
evidence of malice in fact. So, while malice
in law does not require evidence, malice in Illustration:
fact requires evidence.
If a person uttered that “All the Marcoses
Malice in law can be negated by evidence are thieves," there will only be one libel
that, in fact, the alleged libelous or because these particular Marcoses
defamatory utterance was made with good regarded as thieves are not specifically
motives and justifiable ends or by the fact identified.
that the utterance was privileged in
character. If the offender said, “All the Marcoses – the
father, mother and daughter are thieves.”
In law, however, the privileged character of There will be three counts of libel because
a defamatory statement may be absolute or each person libeled is distinctly dishonored.
qualified.
If you do not know the particular persons
When the privileged character is said to be libeled, you cannot consider one libel as
absolute, the statement will not be giving rise to several counts of libel. In
actionable whether criminal or civil because order that one defamatory utterance or
that means the law does not allow imputation may be considered as having
prosecution on an action based thereon. dishonored more than one person, those
persons dishonored must be identified.
Illustration: Otherwise, there will only be one count of
libel.
As regards the statements made by
Congressmen while they are deliberating or Note that in libel, the person defamed need
discussing in Congress, when the privileged not be expressly identified. It is enough that
character is qualified, proof of malice in fact he could possibly be identified because
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
The crime is libel is the defamation is in Article 355. Libel by Means of Writings
writing or printed media. or Similar Means
the crime – hush money. (US v. Eguia, et 2. Such act is performed in the
al., 38 Phil. 857) Blackmail is possible in presence of other person or
(1) light threats under Article 283; and (2) persons;
threatening to publish, or offering to prevent
the publication of, a libel for compensation, 3. Such act casts dishonor, discredit or
under Article 356. contempt upon the offended party.