Professional Documents
Culture Documents
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 TCME (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 IVCFP 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.
4. Disloyal acts or words in times of carried out only with bolos and spears;
war; hence, national security was not really
threatened. Now, the threat of rebellion or
5. Conspiracy to violate preceding internal wars is serious as a national threat.
sections; and
Elements
Article 118. Inciting to War or Giving
Motives for Reprisals 1. It is in time of war in which the
Philippines is involved;
Elements O-Pwe
2. Offender makes correspondence
1. Offender performs unlawful or with an enemy country or territory
unauthorized acts; occupied by enemy troops;
considered as against humanity in general, Originally, the crimes of piracy and mutiny
like piracy and mutiny. Crimes against can only be committed in the high seas, that
national security can be tried only in the is, outside Philippine territorial waters. But
Philippines, as there is a need to bring the in August 1974, Presidential Decree No.
offender here before he can be made to 532 (The Anti-Piracy and Anti-Highway
suffer the consequences of the law. The Robbery Law of 1974) was issued,
acts against national security may be punishing piracy, but not mutiny, in
committed abroad and still be punishable Philippine territorial waters. Thus came
under our law, but it can not be tried under about two kinds of piracy: (1) that which is
foreign law. punished under the Revised Penal Code if
committed in the high seas; and (2) that
which is punished under Presidential
Article 122. Piracy in general and Mutiny Decree No. 532 if committed in Philippine
on the High Seas or in Philippine Waters territorial waters.
4. The preceding were committed Republic Act No. 6235 (The Anti Hi-
under any of the following Jacking Law)
circumstances:
Anti hi-jacking is another kind of piracy
a. whenever they have seized a which is committed in an aircraft. In other
vessel by boarding or firing countries, this crime is known as aircraft
upon the same; piracy.
10. Offending the religious feelings (Art. 3. The person detained has no ailment
133); which requires compulsory
confinement in a hospital.
not deliver the arrested person to the arrest and detain persons can be guilty of
proper judicial authority within the this crime. So, if the offender does not
period of 12, 18, or 36 hours, as the possess such authority, the crime
case may be; or committed by him is illegal detention. A
public officer who is acting outside the
(3) Delaying release by competent scope of his official duties is no better than
authority with the same period a private citizen.
mentioned in number 2.
another was held to be guilty of the crime of In arbitrary detention, the offender is
arbitrary detention. This is because he is a a public officer possessed with
person in authority vested with the authority to make arrests.
jurisdiction to maintain peace and order
within his barangay. In the maintenance of In unlawful arrest, the offender may
such peace and order, he may cause the be any person.
arrest and detention of troublemakers or
those who disturb the peace and order (2) As to criminal intent
within his barangay. But if the legal basis
for the apprehension and detention does not In arbitrary detention, the main
exist, then the detention becomes arbitrary. reason for detaining the offended
party is to deny him of his liberty.
Whether the crime is arbitrary detention or
illegal detention, it is necessary that there In unlawful arrest, the purpose is to
must be an actual restraint of liberty of the accuse the offended party of a crime
offended party. If there is no actual he did not commit, to deliver the
restraint, as the offended party may still go person to the proper authority, and
to the place where he wants to go, even to file the necessary charges in a
though there have been warnings, the crime way trying to incriminate him.
of arbitrary detention or illegal detention is
not committed. There is either grave or light When a person is unlawfully arrested, his
threat. subsequent detention is without legal
grounds.
However, if the victim is under guard in his
movement such that there is still restraint of
liberty, then the crime of either arbitrary or Question & Answer
illegal detention is still committed.
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 officer who has arrested a person under a
employee; 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
a reasonable time. The period fixed by law
3. He fails to deliver such person to the
under Article 125 does not apply because
proper judicial authorities within –
the arrest was made by virtue of a warrant
of arrest.
a. 12 hour for light penalties;
the court. This is done by filing the There was a violation of Article 125.
necessary complaint or information against The crime committed was arbitrary
the person arrested in court within the detention in the form of delay in the delivery
period specified in Article 125. The purpose of arrested person to the proper judicial
of this is for the court to determine whether authority. The typhoon or flood is a matter
the offense is bailable or not and if bailable, of defense to be proved by the accused, the
to allow him the right to bail. arresting officer, as to whether he is liable.
In this situation, he may be exempt under
Under the Rule 114 of the Revised Rules of paragraph 7 of Article 12.
Court, the arrested person can demand
from the arresting officer to bring him to any
judge in the place where he was arrested Before Article 125 may be applied, it is
and post the bail here. Thereupon, the necessary that initially, the detention of the
arresting officer may release him. The arrested person must be lawful because the
judge who granted the bail will just forward arrest is based on legal grounds. If the
the litimus of the case to the court trying his arrest is made without a warrant, this
case. The purpose is in order to deprive the constitutes an unlawful arrest. Article 269,
arrested person of his right to post the bail. not Article 125, will apply. If the arrest is not
based on legal grounds, the arrest is pure
Under the Revised Rules of Court, when the and simple arbitrary detention. Article 125
person arrested is arrested for a crime contemplates a situation where the arrest
which gives him the right to preliminary was made without warrant but based on
investigation and he wants to avail his right legal grounds. This is known as citizen’s
to a preliminary investigation, he would arrest.
have to waive in writing his rights under
Article 125 so that the arresting officer will
not immediately file the case with the court Article 126. Delaying Release
that will exercise jurisdiction over the case.
If he does not want to waive this in writing, Acts punished
the arresting officer will have to comply with
Article 125 and file the case immediately in 1. Delaying the performance of a
court without preliminary investigation. In judicial or executive order for the
such case, the arrested person, within five release of a prisoner;
days after learning that the case has been
filed in court without preliminary 2. Unduly delaying the service of the
investigation, may ask for preliminary notice of such order to said prisoner;
investigation. In this case, the public officer
who made the arrest will no longer be liable 3. Unduly delaying the proceedings
for violation of Article 125. upon any petition for the liberation of
such person.
Common elements
The essence of this crime is coercion but
the specific crime is “expulsion” when
1. Offender is a public officer or
committed by a public officer. If committed
employee;
by a private person, the crime is grave
coercion.
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2. He is not authorized by judicial order (3) When the article seized is within
to enter the dwelling or to make a plain view of the officer making the
search therein for papers or other seizure without making a search
effects. therefore.
Under Rule 113 of the Revised Rules of (3) Refusing to leave premises after
Court, when a person to be arrested enters surreptitious entry and being told to
a premise and closes it thereafter, the public leave the same. The act punished is
officer, after giving notice of an arrest, can not the entry but the refusal to leave.
break into the premise. He shall not be If the offender upon being directed to
liable for violation of domicile. eave, followed and left, there is no
crime of violation of domicile. Entry
There are only three recognized instances must be done surreptitiously; without
when search without a warrant is this, crime may be unjust vexation.
considered valid, and, therefore, the seizure But if entering was done against the
of any evidence done is also valid. Outside will of the occupant of the house,
of these, search would be invalid and the meaning there was express or
objects seized would not be admissible in implied prohibition from entering the
evidence. same, even if the occupant does not
direct him to leave, the crime of is
(1) Search made incidental to a valid already committed because it would
arrest; fall in number 1.
Article 129. Search Warrants Maliciously 4. The owner, or any members of his
Obtained, and Abuse in the Service of family, or two witnesses residing in
Those Legally Obtained the same locality are not present.
Acts punished
Crimes under Articles 129 and 130 are
1. Procuring a search warrant without referred to as violation of domicile. In these
just cause; articles, the search is made by virtue of a
valid warrant, but the warrant
Elements notwithstanding, the liability for the crime is
still incurred through the following situations:
1. Offender is a public officer or
employee; (1) Search warrant was irregularly
obtained – This means there was no
2. He procures a search probable cause determined in
warrant; obtaining the search warrant.
Although void, the search warrant is
3. There is no just cause. entitled to respect because of
presumption of regularity. One
remedy is a motion to quash the
2. Exceeding his authority or by using search warrant, not refusal to abide
unnecessary severity in executing a by it. The public officer may also be
search warrant legally procured. prosecuted for perjury, because for
him to succeed in obtaining a search
Elements warrant without a probable cause,
he must have perjured himself or
1. Offender is a public officer or induced someone to commit perjury
employee; to convince the court.
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a. prohibiting or by interrupting,
(2) The officer exceeded his authority without legal ground, the
under the warrant – To illustrate, let holding of a peaceful
us say that there was a pusher in a meeting, or by dissolving the
condo unit. The PNP Narcotics same;
Group obtained a search warrant but
the name of person in the search b. hindering any person from
warrant did not tally with the address joining any lawful
stated. Eventually, the person with association, or attending any
the same name was found but in a of its meetings;
different address. The occupant
resisted but the public officer c. prohibiting or hindering any
insisted on the search. Drugs were person from addressing,
found and seized and occupant was either alone or together with
prosecuted and convicted by the trial others, any petition to the
court. The Supreme Court acquitted authorities for the correction
him because the public officers are of abuses or redress of
required to follow the search warrant grievances.
to the letter. They have no
discretion on the matter. Plain view
doctrine is inapplicable since it The government has a right to require a
presupposes that the officer was permit before any gathering could be made.
legally entitled to be in the place Any meeting without a permit is a
where the effects where found. proceeding in violation of the law. That
Since the entry was illegal, plain being true, a meeting may be prohibited,
view doctrine does not apply. interrupted, or dissolved without violating
Article 131 of the Revised Penal Code.
(3) When the public officer employs
unnecessary or excessive severity in But the requiring of the permit shall be in
the implementation of the search exercise only of the government’s regulatory
warrant. The search warrant is not a powers and not really to prevent peaceful
license to commit destruction. assemblies as the public may desire.
Permit is only necessary to regulate the
(4) Owner of dwelling or any member of peace so as not to inconvenience the
the family was absent, or two public. The permit should state the day,
witnesses residing within the same time and the place where the gathering may
locality were not present during the be held. This requirement is, therefore,
search. legal as long as it is not being exercised in
as a prohibitory power.
Article 131. Prohibition, Interruption, If the permit is denied arbitrarily, Article 131
and Dissolution of Peaceful Meetings is violated. If the officer would not give the
permit unless the meeting is held in a
Elements particular place which he dictates defeats
the exercise of the right to peaceably
1. Offender is a public officer or assemble, Article 131 is violated.
employee;
At the beginning, it may happen that the
2. He performs any of the following assembly is lawful and peaceful. If in the
acts: course of the assembly the participants
commit illegal acts like oral defamation or
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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 TITLE III. CRIMES AGAINST PUBLIC
party from exercising his freedom of ORDER
speech and that of the assembly to
petition a grievance against the
government. Crimes against public order
In Article 153, the offender need not 1. Rebellion or insurrection (Art. 134);
be a public officer. The essence of
the crime is that of creating a serious 2. Conspiracy and proposal to commit
disturbance of any sort in a public rebellion (Art. 136);
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Rebellion and insurrection are not Since a higher penalty is prescribed for the
synonymous. Rebellion is more frequently crime of rebellion when any of the specified
used where the object of the movement is acts are committed in furtherance thereof,
completely to overthrow and supersede the said acts are punished as components of
existing government; while insurrection is rebellion and, therefore, are not to be
more commonly employed in reference to a treated as distinct crimes. The same acts
movement which seeks merely to effect constitute distinct crimes when committed
some change of minor importance, or to on a different occasion and not in
prevent the exercise of governmental furtherance of rebellion. In short, it was
authority with respect to particular matters because Article 135 then punished said acts
of subjects (Reyes, citing 30 Am. Jr. 1). as components of the crime of rebellion that
precludes the application of Article 48 of the
Revised Penal Code thereto. In the eyes of
Rebellion can now be complexed with the law then, said acts constitute only one
common crimes. Not long ago, the crime and that is rebellion. The Hernandez
Supreme Court, in Enrile v. Salazar, 186 doctrine was reaffirmed in Enrile v. Salazar
SCRA 217, reiterated and affirmed the rule because the text of Article 135 has
laid down in People v. Hernandez, 99 Phil remained the same as it was when the
515, that rebellion may not be complexed Supreme Court resolved the same issue in
with common crimes which are committed in the People v. Hernandez. So the Supreme
furtherance thereof because they are Court invited attention to this fact and thus
absorbed in rebellion. In view of said stated:
reaffirmation, some believe that it has been
a settled doctrine that rebellion cannot be “There is a an apparent need to restructure
complexed with common crimes, such as the law on rebellion, either to raise the
killing and destruction of property, penalty therefore or to clearly define and
committed on the occasion and in delimit the other offenses to be considered
furtherance thereof. absorbed thereby, so that it cannot be
conveniently utilized as the umbrella for
This thinking is no longer correct; there is no every sort of illegal activity undertaken in its
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.”
to its amendment by the Republic Act No.
6968 (An Act Punishing the Crime of Coup Obviously, Congress took notice of this
D’etat), which became effective on October pronouncement and, thus, in enacting
1990. Prior to its amendment by Republic Republic Act No. 6968, it did not only
Act No. 6968, Article 135 punished those provide for the crime of coup d’etat in the
“who while holding any public office or Revised Penal Code but moreover, deleted
employment, take part therein” by any of from the provision of Article 135 that portion
these acts: engaging in war against the referring to those –
forces of Government; destroying property;
committing serious violence; exacting “…who, while holding any public office or
contributions, diverting funds for the lawful employment takes part therein [rebellion or
purpose for which they have been insurrection], engaging in war against the
appropriated. forces of government, destroying property
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Acts punished
d. To commit, for any political or
social end, any act of hate or 1. Inciting others to the
revenge against private accomplishment of any of the acts
persons or any social which constitute sedition by means
classes; of speeches, proclamations,
writings, emblems, etc.;
e. To despoil for any political or
social end, any person, 2. Uttering seditious words or
municipality or province, or speeches which tend to disturb the
the national government of public peace;
all its property or any part
thereof. 3. Writing, publishing, or circulating
scurrilous libels against the
government or any of the duly
The crime of sedition does not contemplate constituted authorities thereof, which
the taking up of arms against the tend to disturb the public peace.
government because the purpose of this
crime is not the overthrow of the
government. Notice from the purpose of the Elements
crime of sedition that the offenders rise
publicly and create commotion ad 1. Offender does not take direct part in
disturbance by way of protest to express the crime of sedition;
their dissent and obedience to the
government or to the authorities concerned. 2. He incites others to the
This is like the so-called civil disobedience accomplishment of any of the acts
except that the means employed, which is which constitute sedition; and
violence, is illegal.
3. Inciting is done by means of
speeches, proclamations, writings,
Persons liable for sedition under Article 140 emblems, cartoons, banners, or
other representations tending
1. The leader of the sedition; and towards the same end.
There is no proposal to commit sedition. The mere meeting for the purpose of
discussing hatred against the government is
inciting to sedition. Lambasting government
Article 142. Inciting to Sedition officials to discredit the government is
Inciting to sedition. But if the objective of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
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. There is a meeting, a
gathering or group of The gravamen of the offense is mere
persons, whether in fixed assembly of or gathering of people for illegal
place or moving; purpose punishable by the Revised Penal
Code. Without gathering, there is no illegal
2. The meeting is attended by assembly. If unlawful purpose is a crime
armed persons; under a special law, there is no illegal
assembly. For example, the gathering of
3. The purpose of the meeting drug pushers to facilitate drug trafficking is
is to commit any of the not illegal assembly because the purpose is
crimes punishable under the not violative of the Revised Penal Code but
Code. of The Dangerous Drugs Act of 1972, as
amended, which is a special law.
2. Any meeting in which the audience,
whether armed or not, is incited to Two forms of illegal assembly
the commission of the crime of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(2) Armed men attending the gathering 2. Mere members of the association.
– If the illegal purpose is other than
those mentioned above, the
presence of armed men during the Distinction between illegal association and
gathering brings about the crime of illegal assembly
illegal assembly.
1. In illegal association, it is not
Example: Persons conspiring to rob necessary that there be an actual
a bank were arrested. Some were meeting.
with firearms. Liable for illegal
assembly, not for conspiracy, but for In illegal assembly, it is necessary
gathering with armed men. that there is an actual meeting or
assembly or armed persons for the
Distinction between illegal assembly and purpose of committing any of the
illegal association crimes punishable under the Code,
or of individuals who, although not
In illegal assembly, the basis of liability is armed, are incited to the commission
the gathering for an illegal purpose which of treason, rebellion, sedition, or
constitutes a crime under the Revised Penal assault upon a person in authority or
Code. his agent.
people to help themselves to all the rice. functions, the crime is always direct assault.
They did not even help themselves to a It is enough that the offender knew that the
single grain. person in authority was performing an
official function whatever may be the reason
The crime committed was direct assault. for the attack, although what may have
There was no robbery for there was no happened was a purely private affair.
intent to gain. The crime is direct assault by
committing acts of sedition under Article 139 On the other hand, if the person in authority
(5), that is, spoiling of the property, for any or the agent was killed when no longer
political or social end, of any person performing official functions, the crime may
municipality or province or the national simply be the material consequence of he
government of all or any its property, but unlawful act: murder or homicide. For the
there is no public uprising. crime to be direct assault, the attack must
be by reason of his official function in the
Person in authority is any person directly past. Motive becomes important in this
vested with jurisdiction, whether as an respect. Example, if a judge was killed
individual or as a member of some court or while resisting the taking of his watch, there
government corporation, board, or is no direct assault.
commission. A barangay chairman is
deemed a person in authority. In the second form of direct assault, it is
also important that the offended party knew
Agent of a person in authority is any person that the person he is attacking is a person in
who by direct provision of law or by election authority or an agent of a person in
or by appointment by competent authority, authority, performing his official functions.
is charged with the maintenance of public No knowledge, no lawlessness or contempt.
order and the protection and security of life For example, if two persons were quarreling
and property, such as a barangay and a policeman in civilian clothes comes
councilman, barrio policeman, barangay and stops them, but one of the protagonists
leader and any person who comes to the stabs the policeman, there would be no
aid of a person in authority. direct assault unless the offender knew that
he is a policeman.
In applying the provisions of Articles 148
and 151, teachers, professors, and persons In this respect it is enough that the offender
charged with the supervision of public or should know that the offended party was
duly recognized private schools, colleges exercising some form of authority. It is not
and universities and lawyers in the actual necessary that the offender knows what is
performance of their duties or on the meant by person in authority or an agent of
occasion of such performance, shall be one because ignorantia legis non excusat.
deemed a person in authority.
In direct assault of the first form, the stature Article 149. Indirect Assault
of the offended person is immaterial. The
crime is manifested by the spirit of Elements
lawlessness.
Elements of simple disobedience under the direct assault must be serious and
second paragraph deliberate; otherwise, even a case of
simple resistance to an arrest, which
1. An agent of a person in authority is always requires the use of force of
engaged in the performance of some kind, would constitute direct
official duty or gives a lawful order to assault and the lesser offense of
the offender; resistance or disobedience in Article
151 would entirely disappear.
2. Offender disobeys such agent of a
person in authority; But when the one resisted is a
person I authority, the use of any
3. Such disobedience is not of a kind or degree of force will give rise
serious nature. to direct assault.
2. Instigating or taking an active part in The crime alarms and scandal is only one
any charivari or other disorderly crime. Do not think that alarms and
meeting offensive to another or scandals are two crimes.
prejudicial to public tranquility;
Scandal here does not refer to moral
3. Disturbing the public peace while scandal; that one is grave scandal in Article
wandering about at night or while 200. The essence of the crime is
engaged in any other nocturnal disturbance of public tranquility and public
amusements; peace. So, any kind of disturbance of public
order where the circumstance at the time
4. Causing any disturbance or scandal renders the act offensive to the tranquility
in public places while intoxicated or prevailing, the crime is committed.
otherwise, provided Article 153 in
not applicable. Charivari is a mock serenade wherein the
supposed serenaders use broken cans,
broken pots, bottles or other utensils
When a person discharges a firearm in thereby creating discordant notes. Actually,
public, the act may constitute any of the it is producing noise, not music and so it
possible crimes under the Revised Penal also disturbs public tranquility. Understand
Code: the nature of the crime of alarms and
scandals as one that disturbs public
(1) Alarms and scandals if the firearm tranquility or public peace. If the annoyance
when discharged was not directed to is intended for a particular person, the crime
any particular person; is unjust vexation.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Even if the persons involved are engaged in The only point of distinction between the
nocturnal activity like those playing patintero two crimes lies on whether the offender is
at night, or selling balut, if they conduct their the custodian of the prisoner or not at the
activity in such a way that disturbs public time the prisoner was made to escape. If
peace, they may commit the crime of alarms the offender is the custodian at that time,
and scandals. the crime is infidelity in the custody of
prisoners. But if the offender is not the
custodian of the prisoner at that time, even
Article 156. Delivering Prisoners from though he is a public officer, the crime he
Jail committed is delivering prisoners from jail.
(2) Failure to return within 48 hours after 4. He fails to give himself up to the
having left the penal establishment authorities within 48 hours following
because of a calamity, conflagration the issuance of a proclamation by
or mutiny and such calamity, the Chief Executive announcing the
conflagration or mutiny has been passing away of such calamity.
announced as already passed under
Article 158;
The leaving from the penal establishment is
(3) Violating the condition of conditional not the basis of criminal liability. It is the
pardon under Article 159. failure to return within 48 hours after the
passing of the calamity, conflagration or
In leaving or escaping from jail or prison, mutiny had been announced. Under Article
that the prisoner immediately returned is 158, those who return within 48 hours are
immaterial. It is enough that he left the given credit or deduction from the remaining
penal establishment by escaping therefrom. period of their sentence equivalent to 1/5 of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
the original term of the sentence. But if the 2. He was granted pardon by the Chief
prisoner fails to return within said 48 hours, Executive;
an added penalty, also 1/5, shall be
imposed but the 1/5 penalty is based on the 3. He violated any of the conditions of
remaining period of the sentence, not on the such pardon.
original sentence. In no case shall that
penalty exceed six months.
In violation of conditional pardon, as a rule,
Those who did not leave the penal the violation will amount to this crime only if
establishment are not entitled to the 1/5 the condition is violated during the
credit. Only those who left and returned remaining period of the sentence. As a
within the 48-hour period. rule, if the condition of the pardon is violated
when the remaining unserved portion of the
The mutiny referred to in the second form of sentence has already lapsed, there will be
evasion of service of sentence does not no more criminal liability for the violation.
include riot. The mutiny referred to here However, the convict maybe required to
involves subordinate personnel rising serve the unserved portion of the sentence,
against the supervisor within the penal that is, continue serving original penalty.
establishment. One who escapes during a
riot will be subject to Article 157, that is, The administrative liability of the convict
simply leaving or escaping the penal under the conditional pardon is different and
establishment. has nothing to do with his criminal liability
for the evasion of service of sentence in the
Mutiny is one of the causes which may event that the condition of the pardon has
authorize a convict serving sentence in the been violated. Exception: where the
penitentiary to leave the jail provided he violation of the condition of the pardon will
has not taken part in the mutiny. constitute evasion of service of sentence,
even though committed beyond the
The crime of evasion of service of sentence remaining period of the sentence. This is
may be committed even if the sentence is when the conditional pardon expressly so
destierro, and this is committed if the provides or the language of the conditional
convict sentenced to destierro will enter the pardon clearly shows the intention to make
prohibited places or come within the the condition perpetual even beyond the
prohibited radius of 25 kilometers to such unserved portion of the sentence. In such
places as stated in the judgment. case, the convict may be required to serve
the unserved portion of the sentence even
If the sentence violated is destierro, the though the violation has taken place when
penalty upon the convict is to be served by the sentence has already lapsed.
way of destierro also, not imprisonment.
This is so because the penalty for the In order that the conditional pardon may be
evasion can not be more severe than the violated, it is conditional that the pardonee
penalty evaded. received the conditional pardon. If he is
released without conformity to the
conditional pardon, he will not be liable for
Article 159. Other Cases of Evasion of the crime of evasion of service of sentence.
Service of Sentence
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 of
falsification (Art. 176); 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
with impunity just because it is no longer Requisites of mutilation under the Revised
legal tender, people would try to counterfeit Penal Code
non-legal tender coins. Soon, if they
develop the expertise to make the(1) (1) Coin mutilated is of legal tender;
counterfeiting more or less no longer
discernible or no longer noticeable, they (2) Offender gains from the precious
could make use of their ingenuity to metal dust abstracted from the coin;
counterfeit coins of legal tender. From that and
time on, the government shall have difficulty
determining which coins are counterfeited (3) It has to be a coin.
and those which are not. It may happen
that the counterfeited coins may look better Mutilation is being regarded as a crime
than the real ones. So, counterfeiting is because the coin, being of legal tender, it is
penalized right at the very start whether the still in circulation and which would
coin is legal tender or otherwise. necessarily prejudice other people who may
come across the coin. For example, X
mutilated a P 2.00 coin, the octagonal one,
Question & Answer 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
X has in his possession a coin which but only P 1.80, therefore, prejudice to the
was legal tender at the time of Magellan and public has resulted.
is considered a collector’s item. He
manufactured several pieces of that coin. Is There is no expertise involved here. In
the crime committed? mutilation of coins under the Revised Penal
Code, the offender does nothing but to
Yes. It is not necessary that the coin scrape, pile or cut the coin and collect the
be of legal tender. The provision punishing dust and, thus, diminishing the intrinsic
counterfeiting does not require that the value of the coin.
money be of legal tender and the law
punishes this even if the coin concerned is Mutilation of coins is a crime only if the coin
not of legal tender in order to discourage mutilated is legal tender. If the coin whose
people from practicing their ingenuity of metal content has been depreciated through
imitating money. If it were otherwise, scraping, scratching, or filing the coin and
people may at the beginning try their the offender collecting the precious metal
ingenuity in imitating money not of legal dust, even if he would use the coin after its
tender and once they acquire expertise, intrinsic value had been reduced, nobody
they may then counterfeit money of legal will accept the same. If it is not legal tender
tender. anymore, no one will accept it, so nobody
will be defrauded. But if the coin is of legal
tender, and the offender minimizes or
(2) Mutilation of coins -- This refers to decreases the precious metal dust content
the deliberate act of diminishing the of the coin, the crime of mutilation is
proper metal contents of the coin committed.
either by scraping, scratching or
filling the edges of the coin and the In the example, if the offender has collected
offender gathers the metal dust that 1/10 of the P 2.00 coin, the coin is actually
has been scraped from the coin. worth only P 1.80. He is paying only P1.80
in effect defrauding the seller of P .20.
Punishment for mutilation is brought about
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
by the fact that the intrinsic value of the coin that of Randy Santiago, is there a violation
is reduced. of Presidential Decree No. 247?
The offender must deliberately reduce the Yes. Presidential Decree No. 247 is
precious metal in the coin. Deliberate intent violated by such act.
arises only when the offender collects the
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
Mutilation under the Revised Penal Code is there a violation of Presidential Decree No.
true only to coins. It cannot be a crime 247?
under the Revised Penal Code to mutilate
paper bills because the idea of mutilation Yes. This act of the printing presses
under the code is collecting the precious is a violation of Presidential Decree No.
metal dust. However, under Presidential 247.
Decree No. 247, mutilation is not limited to
coins. 4. An old woman who was a
cigarette vendor in Quiapo refused to
accept one-centavo coins for payment of
Questions & Answers the vendee of cigarettes he purchased.
Then came the police who advised her that
she has no right to refuse since the coins
1. The people playing cara y are of legal tender. On this, the old woman
cruz, before they throw the coin in the air accepted in her hands the one-centavo
would rub the money to the sidewalk coins and then threw it to the face of the
thereby diminishing the intrinsic value of the vendee and the police. Was the old woman
coin. Is the crime of mutilation committed? guilty of violating Presidential Decree No.
247?
Mutilation, under the Revised Penal
Code, is not committed because they do not She was guilty of violating
collect the precious metal content that is Presidential Decree No. 247 because if no
being scraped from the coin. However, this one ever picks up the coins, her act would
will amount to violation of Presidential result in the diminution of the coin in
Decree No. 247. circulation.
20.00 bill to light his cigarette. Was he 2. With intent to utter; and
guilty of violating Presidential Decree No.
247? 3. Knowledge.
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 a violation of Presidential Decree No. 247.
or any instrument payable to bearer Where the currency note, obligation or
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
coins or bills. man guilty of forgery?
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(4) Private document in the execution of 1. Offender committed any of the acts
which only private individuals take of falsification except Article 171(7),
part. that is, issuing in an authenticated
form a document purporting to be a
Public document is broader than the term copy of an original document when
official document. Before a document may no such original exists, or including
be considered official, it must first be a in such a copy a statement contrary
public document. But not all public to, or different from, that of the
documents are official documents. To genuine original;
become an official document, there must be
a law which requires a public officer to issue 2. Falsification was committed in any
or to render such document. Example: A private document;
cashier is required to issue an official
receipt for the amount he receives. The 3. Falsification causes damage to a
official receipt is a public document which is third party or at least the falsification
an official document. was committed with intent to cause
such damage.
2. As an officer, agent or
b. Public officer issues a representative of any
false certificate of department or agency of the
merit of service, good Philippine government or of
conduct or similar any foreign government.
circumstances;
2. Usurpation of official functions.
c. Private person
falsifies a certificate Elements
falling within the
classes mentioned in 1. Offender performs any act;
the two preceding
subdivisions. 2. Pertaining to any person in
authority or public officer of
2. Offender knows that the the Philippine government or
certificate was false; any foreign government, or
any agency thereof;
3. He uses the same.
3. Under pretense of official
position;
Article 176. Manufacturing and
Possession of Instruments or 4. Without being lawfully
Implements for Falsification entitled to do so.
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 1. A person gives false testimony;
person or a class of persons of
which he is not a member; 2. In favor of the defendant;
Acts punished
Article 183. False Testimony in Other
Cases and Perjury in Solemn Affirmation 1. Soliciting any gift or promise as a
consideration for refraining from
Acts punished taking part in any public auction;
Elements
Article 186. Monopolies and
Combinations in Restraint of Trade 1. Manufacturer, producer,
processor or importer of any
Acts punished merchandise or object of
commerce;
1. Combination to prevent free
competition in the market; 2. Combines, conspires or
agrees with any person;
Elements
3. Purpose is to make
1. Entering into any contract or transactions prejudicial to
agreement or taking part in lawful commerce or to
any conspiracy or increase the market price of
combination in the form of a any merchandise or object of
trust or otherwise; commerce manufactured,
produced, processed,
2. In restraint of trade or assembled or imported into
commerce or to prevent by the Philippines.
artificial means free
competition in the market.
Article 187. Importation and Disposition
2. Monopoly to restrain free of Falsely Marked Articles or
competition in the market; Merchandise Made of Gold, Silver, or
Other Precious Metals of Their Alloys
Elements
Elements
1. By monopolizing any
merchandise or object of 1. Offender imports, sells or disposes
trade or commerce, or by articles made of gold, silver, or other
combining with any other precious metals or their alloys;
person or persons to
monopolize said 2. The stamps, brands, or marks of
merchandise or object; those articles of merchandise fail to
indicate the actual fineness or
2. In order to alter the prices quality of said metals or alloys;
thereof by spreading false
rumors or making use of any 3. Offender knows that the stamps,
other artifice; brands, or marks fail to indicate the
actual fineness or quality of the
3. To restrain free competition metals or alloys.
in the market
good faith of a nature calculated to discredit Acts punished by the Republic Act No. 6425
the goods, business or services of another.
1. Importation of prohibited drugs;
168.4. The remedies provided by
Section 156, 157 and 161 shall apply 2. Sale, administration, delivery,
mutatis mutandis. distribution and transportation of
prohibited drugs;
Section 169. False Designation or
Origin; False Description or Representation. 3. Maintenance of a den, dive or resort
for prohibited drug users;
169.1. Any person who, on or in
connection with any goods or services, or 4. Being employees and visitors of
any container for goods, uses in commerce prohibited drug den;
any word, term, name, symbol, or device, or
any combination thereof, or any false 5. Manufacture of prohibited drugs;
designation of origin, false or misleading
description of fact, or false or misleading
6. Possession or use of prohibited
representation of fact, which:
drugs;
(a) Is likely to cause confusion,
7. Cultivation of plants which are
or to cause mistake, or to deceive as to the
sources of prohibited drugs;
affiliation, connection, or association of such
person with another person, or as to the
origin, sponsorship, or approval of his or her 8. Failure to comply with the provisions
goods, services, or commercial activities by of the Act relative to the keeping of
another person; or records of prescriptions, sales,
purchases, acquisitions and/or
(b) In commercial advertising or deliveries of prohibited drugs;
promotion, misrepresents the nature,
characteristics, qualities, or geographic 9. Unlawful prescription of prohibited
origin of his or her or another person's drugs;
goods, services or commercial activities,
shall be liable to a civil action for damages 10. Unnecessary prescription of
and injunction provided in Section 156 and prohibited drugs;
157 of this Act by any person who believes
that he or she is or likely to be damaged by 11. Possession of opium pipe and other
such act. paraphernalia for prohibited drugs;
intent to sell, distribute or use the same in 4. Holy Thursday and Good Friday
the Philippines. (Republic Act No. 946).
This article has been repealed by This article has been modified or repealed
Presidential Decree No. 483 (Betting, by Presidential Decree No. 449 (The
Game-fixing or Point-shaving and Cockfighting Law of 1974):
Machinations in Sport Contests):
Only allows one cockpit per
Section 2. Betting, game-fixing, municipality, unless the population
point-shaving or game machination exceeds 100,000 in which case two
unlawful. – Game-fixing, point-shaving, cockpits may be established;
game machination, as defined in the
preceding section, in connection with the Cockfights can only be held in
games of basketball, volleyball, softball, licensed cockpits on Sundays and
baseball; chess, boxing bouts, jai-alia, sipa, legal holidays and local fiestas for
pelota and all other sports contests, games not more than three days;
or races; as well as betting therein except
as may be authorized by law, is hereby Also allowed during provincial,
declared unlawful. municipal, city, industrial, agricultural
fairs, carnivals, or exposition not
more than three days;
Article 198. Illegal Betting on Horse
Race Cockfighting not allowed on
December 30, June 12, November
Acts punished 30, Holy Thursday, Good Friday,
Election or Referendum Day, and
1. Betting on horse races during registration days for referendums
periods not allowed by law; and elections;
(a) Any person other than those umpire, judge or coach in cases of game-
referred to in the succeeding subsection fixing, point-shaving and other game
who in any manner, shall directly or machination.
indirectly take part in any game of
cockfighting, jueteng, bookies (jai- alai or The penalty of prision correccional
horse racing to include game fixing) and in its medium degree and a fine ranging
other lotteries, cara y cruz or pompiang and from Five Hundred pesos to Two Thousand
the like, black jack, lucky nine, “pusoy” or Pesos shall be imposed upon any person
Russian Poker, monte, baccarat and other who shall knowingly and without lawful
card games, palk que, domino, mahjong, purpose in any hour of any day shall have in
high and low, slot machines, roulette, pinball his possession any lottery list, paper, or
and other mechanical inventories or other matter containing letter, figures, signs
devices, dog racing, boat racing, car raising or symbols which pertain to or in any
and other races, basketball, volleyball, manner used in the game of jueteng, jai-alai
boxing, seven-eleven dice games and the or horse racing bookies and similar game or
like and other contests to include game lottery which has taken place or about to
fixing, point shaving and other machinations take place.
banking or percentage game, or any other
game or scheme, whether upon chance or Section 2. Barangay Official. –
skill, which do not have a franchise from the Any barangay official in whose jurisdiction
national government, wherein wagers such gambling house is found and which
consisting of money, articles of value of house has the reputation of a gambling
representative of value are made; place shall suffer the penalty of prision
correccional in its medium period and a fine
(b) Any person who shall ranging from Five Hundred to Two
knowingly permit any form of gambling Thousand Pesos and temporary absolute
referred to in the preceding subdivision to disqualifications.
be carried on in inhabited or uninhabited
places or any building, vessel or other
means of transportation owned or controlled While the acts under the Revised Penal
by him. If the place where gambling is Code are still punished under the new law,
carried on has a reputation of a gambling yet the concept of gambling under it has
place or that prohibited gambling is been changed by the new gambling law.
frequently carried on therein or the place is
a public or government building or barangay Before, the Revised Penal Code considered
hall, the culprit shall be punished by the the skill of the player in classifying whether
penalty provided for in its maximum period a game is gambling or not. But under the
and a fine of Six Thousand Pesos. new gambling law, the skill of the players is
immaterial.
The penalty of prision correccional
in its maximum degree and a fine of Six Any game is considered gambling where
Thousand Pesos shall be imposed upon the there are bets or wagers placed with the
maintainer, conductor of the above hope to win a prize therefrom.
gambling schemes.
Under this law, even sports contents like
The penalty of prision mayor in its boxing, would be gambling insofar as those
medium degree and temporary absolute who are betting therein are concerned.
disqualification and a fine of Six Thousand Under the old penal code, if the skill of the
Pesos shall be imposed if the maintainer, player outweighs the chance or hazard
conductor or banker is a government involved in winning the game, the game is
official, or if a player, promoter, referee, not considered gambling but a sport. It was
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
because of this that betting in boxing and There are two criteria as to when the lottery
basketball games proliferated. is in fact becomes a gambling game:
“Unless authorized by a franchise, any form 1. If the public is made to pay not only
of gambling is illegal.” So said the court in for the merchandise that he is
the recent resolution of the case against the buying, but also for the chance to
operation of jai-alai. win a prize out of the lottery, lottery
becomes a gambling game. Public
There are so-called parlor games which is made to pay a higher price.
have been exempted from the operation of
the decree like when the games are played 2. If the merchandise is not saleable
during a wake to keep the mourners awake because of its inferior quality, so that
at night. Pursuant to a memorandum the public actually does not buy
circular issued by the Executive Branch, the them, but with the lottery the public
offshoot of the exemption is the intentional starts patronizing such merchandise.
prolonging of the wake of the dead by In effect, the public is paying for the
gambling lords. lottery and not for the merchandise,
and therefore the lottery is a
As a general rule, betting or wagering gambling game. Public is not made
determines whether a game is gambling or to pay a higher price.
not. Exceptions: These are games which
are expressly prohibited even without bets. Illustrations:
Monte, jueteng or any form of lottery; dog
races; slot machines; these are habit- (1) A certain supermarket wanted to
forming and addictive to players, bringing increase its sales and sponsored a
about the pernicious effects to the family lottery where valuable prices are
and economic life of the players. offered at stake. To defray the cost
of the prices offered in the lottery,
Mere possession of lottery tickets or lottery the management increased their
lists is a crime punished also as part of prices of the merchandise by 10
gambling. However, it is necessary to make cents each. Whenever someone
a distinction whether a ticket or list refers to buys from that supermarket, he pays
a past date or to a future date. 10 cents more for each merchandise
and for his purchase, he gets a
Illustration: coupon which is to be dropped at
designated drop boxes to be raffled
X was accused one night and found in his on a certain period.
possession was a list of jueteng. If the date
therein refers to the past, X cannot be The increase of the price is to
convicted of gambling or illegal possession answer for the cost of the valuable
of lottery list without proving that such game prices that will be covered at stake.
was indeed played on the date stated. The increase in the price is the
Mere possession is not enough. If the date consideration for the chance to win
refers to the future, X can be convicted by in the lottery and that makes the
the mere possession with intent to use. lottery a gambling game.
This will already bring about criminal liability
and there is no need to prove that the game But if the increase in prices of the
was played on the date stated. If the articles or commodities was not
possessor was caught, chances are he will general, but only on certain items
not go on with it anymore. and the increase in prices is not the
same, the fact that a lottery is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
sponsored does not appear to be Under this decree, a barangay captain who
tied up with the increase in prices, is responsible for the existence of gambling
therefore not illegal. dens in their own locality will be held liable
and disqualified from office if he fails to
Also, in case of manufacturers, you prosecute these gamblers. But this is not
have to determine whether the being implemented.
increase in the price was due to the
lottery or brought about by the Gambling, of course, is legal when
normal price increase. If the authorized by law.
increase in price is brought about by
the normal price increase [economic Fund-raising campaigns are not gambling.
factor] that even without the lottery They are for charitable purposes but they
the price would be like that, there is have to obtain a permit from Department of
no consideration in favor of the Social Welfare and Development. This
lottery and the lottery would not includes concerts for causes, Christmas
amount to a gambling game. caroling, and the like.
act does not constitute some other crime (3) In a certain apartment, a lady tenant
under the Revised Penal Code. Grave had the habit of undressing in her
scandal is a crime of last resort. room without shutting the blinds.
She does this every night at about
Distinction should be made as to the place eight in the evening. So that at this
where the offensive act was committed, hour of the night, you can expect
whether in the public place or in a private people outside gathered in front of
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;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
b. Those who, in theaters, fairs, 5. Any person who, not being included
cinematographs, or any other place, in the provisions of other articles of
exhibit indecent or immoral plays, this Code, shall be found loitering in
scenes, acts, or shows, it being any inhabited or uninhabited place
understood that the obscene belonging to another without any
literature or indecent or immoral lawful or justifiable purpose;
plays, scenes, acts or shows,
whether live or in film, which are 6. Prostitutes, who are women who, for
proscribed by virtue hereof, shall money or profit, habitually indulge in
include those which: (1) glorify sexual intercourse or lascivious
conduct.
criminals or condone crimes; (2)
serve no other purpose but to satisfy
the market for violence, lust or Prostitutes are women who, for money or
pornography; (3) offend any profit, habitually indulge in sexual
race, or religion; (4) tend to abet intercourse or lascivious conduct, are
traffic in and use of prohibited deemed to be prostitutes.
drugs; and (5) are contrary to law,
public order, morals, good customs, Test of Obscenity: Whether or not the
established policies, lawful orders, material charged as obscene has the
decrees and edicts; and tendency to deprave and corrupt the minds
of those open to the influence thereof, or
3. Those who shall sell, give away, or into whose hands such material may come
exhibit films, prints, engravings, to (Kottinger Rule).
sculptures, or literature which are
offensive to morals. The test is objective. It is more on the effect
upon the viewer and not alone on the
conduct of the performer.
Article 202. Vagrants and Prostitutes;
Penalty If the material has the tendency to deprave
and corrupt the mind of the viewer then the
Vagrants same is obscene and where such obscenity
is made publicly, criminal liability arises.
1. Any person having no apparent
means of subsistence, who has the Because there is a government body which
physical ability to work and who deliberates whether a certain exhibition,
neglects to apply himself or herself movies and plays is pornographic or not, if
to some lawful calling; such body approves the work the same
should not be charged under this title.
2. Any person found loitering about Because of this, the test of obscenity may
public or semi-public buildings or be obsolete already. If allowed by the
places or trampling or wandering Movies and Television Review and
about the country or the streets Classification Board (MTRCB), the question
without visible means of support; is moot and academic.
3. Any idle or dissolute person who The law is not concerned with the moral of
ledges 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
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
the morality of the public in general. Third liable. This holds true for those printing or
party is there. Performance of one to selling Playboy Magazines.
another is not.
The common concept of a vagrant is a
Illustration: person who loiters n public places without
any visible means of livelihood and without
A sexy dancing performed for a 90 year old any lawful purpose.
is not obscene anymore even if the dancer
strips naked. But if performed for a 15 year While this may be the most common form of
old kid, then it will corrupt the kid’s mind. vagrancy, yet even millionaires or one who
(Apply Kottinger Rule here.) has more that enough for his livelihood can
commit vagrancy by habitually associating
In some instances though, the Supreme with prostitutes, pimps, ruffians, or by
Court did not stick to this test. It also habitually lodging in houses of ill-repute.
considered the intention of the performer.
Vagrancy is not only a crime of the
In People v. Aparici, the accused was a privileged or the poor. The law punishes
performer in the defunct Pacific Theatre, a the act involved here as a stepping stone to
movie house which opens only at midnight. the commission of other crimes. Without
She was arrested because she was dancing this article, law enforcers would have no
in a “different kind of way.” She was not way of checking a person loitering in the
really nude. She was wearing some sort of wrong place in the wrong time. The
an abbreviated bikini with a flimsy cloth over purpose of the law is not simply to punish a
it. However, on her waist hung a string with person because he has no means of
a ball reaching down to her private part so livelihood; it is to prevent further criminality.
that every time she gyrates, it arouses the Use this when someone loiters in front of
audience when the ball would actually touch your house every night.
her private part. The defense set up by
Aparici was that she should not be Any person found wandering in an estate
criminally liable for as a matter of fact, she belonging to another whether public or
is better dressed than the other dancers. private without any lawful purpose also
The Supreme Court ruled that it is not only commits vagrancy, unless his acts
the display of the body that gives it a constitutes some other crime in the Revised
depraved meaning but rather the movement Penal Code.
of the body coupled with the “tom-tom
drums” as background. Nudity alone is not
the real scale. (Reaction Test) Question & Answer
Illustration:
If a person is found wandering in an
A sidewalk vendor was arrested and estate belonging to another, whether public
prosecuted for violation of Article 201. It or private, without any lawful purpose, what
appears that the fellow was selling a ballpen other crimes may be committed?
where one who buys the ballpen can peep
into the top of the pen and see a girl When a person is apprehended
dancing in it. He put up the defense that he loitering inside an estate belonging to
is not the manufacturer and that he was another, the following crimes may be
merely selling it to earn a living. The fact of committed:
selling the ballpen was being done at the
expense of public morals. One does not (1) Trespass to property under Article
have to be the manufacturer to be criminally 281 if the estate is fenced and there
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);
25. Opening of closed documents (Art. 42. Abuses against chastity (Art. 245).
228);
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
been held meaningless and useless is 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
3. The judgment is manifestly unjust;
comprehensive because it includes all
persons whether an official or an employee,
temporary or not, classified or not, 4. It is due to his inexcusable
contractual or otherwise. Any person who negligence or 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;
which case he violates the Anti- does not violate Article 208 but he becomes
Fencing Law; or an accessory to the crime of white slavery.
(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:
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,
dereliction of the duty punished under either—
Article 208 of the Revised Penal Code
should be absorbed because said article a. By any malicious breach of
punishes the public officer who “maliciously professional duty;
refrains from instituting prosecution for the
punishment of violators of the law or shall b. By inexcusable negligence or
tolerate the commission of offenses”. The ignorance.
dereliction of duty referred to is necessarily
included in the crime of qualified bribery. Note: When the attorney acts with
malicious abuse of his employment
On the other hand, if the crime was direct or inexcusable negligence or
bribery under Article 210 of the Revised ignorance, there must be damage to
Penal Code, the public officer involved his client.
should be prosecuted also for the dereliction
of duty, which is a crime under Article 208 of 2. Revealing any of the secrets of his
the Revised Penal Code, because the latter client learned by him in his
is not absorbed by the crime of direct professional capacity;
bribery. This is because in direct bribery,
where the public officer agreed to perform 3. Undertaking the defense of the
an act constituting a crime in connection opposing party in the same case,
with the performance of his official duties, without the consent of his first client,
Article 210 expressly provides that the after having undertaken the defense
liabilty thereunder shall be “in addition to the of said first client of after having
penalty corresponding to the crime agreed received confidential information
upon, if the crime shall have been from said client.
committed.
That this communication with a prospective must have learned the confidential matter in
client is considered privileged, implies that 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 not (1) Maliciously causing damage to his
violative of Article 209; at most he will be client through a breach of his
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.
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;
Under Article 210, the mere The idea of the law is that he is being paid
agreement to commit the act, which salary for being there. He is not supposed
amounts to a crime, is already to demand additional compensation from
bribery. That stenographer the public before performing his public
becomes liable already for service. The prohibition will apply only
consummated crime of bribery and when the money is delivered to him, or if he
the party who agreed to give that performs what he is supposed to perform in
money is already liable for anticipation of being paid the money.
consummated corruption, even
though not a single centavo is Here, the bribery will only arise when there
delivered yet and even though the is already the acceptance of the
stenographer had not yet made the consideration because the act to be done is
alterations. not a crime. So, without the acceptance,
the crime is not committed.
If he changed the transcript, another
crime is committed: falsification. Direct bribery may be committed only in the
attempted and consummated stages
because, in frustrated felony, the offender
The same criterion will apply with respect to must have performed all the acts of
a public officer who agrees to refrain from execution which would produce the felony
performing his official duties. If the as a consequence. In direct bribery, it is
refraining would give rise to a crime, such possible only if the corruptor concurs with
as refraining to prosecute an offender, the the offender. Once there is concurrence,
mere agreement to do so will consummate the direct bribery is already consummated.
the bribery and the corruption, even if no In short, the offender could not have
money was delivered to him. If the performed all the acts of execution to
refraining is not a crime, it would only produce the felony without consummating
the same.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If the public officer did not report the The Supreme Court has laid down the rule
same to his superior and actually that for indirect bribery to be committed, the
accepted it, he allowed himself to be public officer must have performed an act of
corrupted. The corruptor becomes appropriating of the gift for himself, his
liable for consummated corruption of family or employees. It is the act of
public official. The public officer also appropriating that signifies acceptance.
becomes equally liable for Merely delivering the gift to the public officer
consummated bribery. does not bring about the crime. Otherwise it
would be very easy to remove a public
(2) If a public official demanded officer: just deliver a gift to him.
something from a taxpayer who
pretended to agree and use marked
money with the knowledge of the Article 211-A. Qualified Bribery
police, the crime of the public official
is attempted bribery. The reason is Elements
that because the giver has no
intention to corrupt her and 1. Offender is a public officer entrusted
therefore, he could not perform all with law enforcement;
the acts of execution.
2. He refrains from arresting or
Be sure that what is involved is a prosecuting an offender who has
crime of bribery, not extortion. If it committed a crime;
were extortion, the crime is not
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
4. Offender refrains from arresting or (2) He must willingly testify against the
prosecuting in consideration of any public officer involved in the case to
offer, promise, gift, or present. be filed against the latter.
(2) By receiving, directly or indirectly, The mere act of a public officer demanding
any commission, gift, share, an amount from a taxpayer to whom he is to
percentage, kickbacks or any other render public service does not amount to
form of pecuniary benefit from any bribery, but will amount to a violation of the
person and/or entity in connection Anti-graft and Corrupt Practices Act.
with any government contract or
project by reason of the office or Illustration:
position of the public officer;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
A court secretary received P500 .00 from a government even if he did not profit from the
litigant to set a motion for an early hearing. transaction, a violation of the Anti-Graft and
This is direct bribery even if the act to be 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
that he performed the prohibited act he was compelled to sell all his interest in
voluntarily. Even though the prohibited act that steel mill; there is no defense. Because
may have benefited the government. The the law says so, even if he voted against it,
crime is still committed because the law is he commits a violation thereof.
not after the effect of the act as long as the
act is prohibited. These cases are filed with the Ombudsman
and not with the regular prosecutor’s office.
Section 3 (g) of the Anti-Graft and Corrupt Jurisdiction is exclusively with the
Practices Act – where a public officer Sandiganbayan. The accused public officer
entered into a contract for the government must be suspended when the case is
which is manifestly disadvantageous to the already filed with the Sandiganbayan.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
The policeman could not be said as having In other words, the neglect or refusal to act
assisted the escape of the offender because must motivated by gain or benefit, or
as the problem says, he is assigned to purposely to favor the other interested party
direct traffic in a busy corner street. So he as held in Coronado v. SB, decided on
cannot be considered as falling under the August 18, 1993.
third 3rd paragraph of Article 19 that would
constitute his as an accessory.
Republic Act No. 1379 (Forfeiture of Ill- officer, under circumstances that will
gotten Wealth) make the public officer liable for
direct bribery or indirect bribery.
Correlate with RA 1379 -- properly under
Remedial Law. This provides the procedure
for forfeiture of the ill-gotten wealth in Article 213. Frauds against the Public
violation of the Anti-Graft and Corrupt Treasury and Similar Offenses
Practices Act. The proceedings are civil and
not criminal in nature. Acts punished
Any taxpayer having knowledge that a 1. Entering into an agreement with any
public officer has amassed wealth out of interested party or speculator or
proportion to this legitimate income may file making use of any other scheme, to
a complaint with the prosecutor’s office of defraud the government, in dealing
the place where the public officer resides or with any person with regard to
holds office. The prosecutor conducts a furnishing supplies, the making of
preliminary investigation just like in a contracts, or the adjustment or
criminal case and he will forward his settlement of accounts relating to
findings to the office of the Solicitor General. public property or funds;
The Solicitor General will determine whether
there is reasonable ground to believe that 2. Demanding, directly or indirectly, the
the respondent has accumulated an payment of sums different from or
unexplained wealth. larger than those authorized by law,
in collection of taxes, licenses, fees,
If the Solicitor General finds probable and other imposts;
cause, he would file a petition requesting
the court to issue a writ commanding the 3. Failing voluntarily to issue a receipt,
respondent to show cause why the ill-gotten as provided by law, for any sum of
wealth described in the petition should not money collected by him officially, in
be forfeited in favor of the government. This the collection of taxes, licenses,
is covered by the Rules on Civil Procedure. fees, and other imposts;
The respondent is given 15 days to answer
the petition. Thereafter trial would proceed. 4. Collecting or receiving, directly or
Judgment is rendered and appeal is just like indirectly, by way of payment or
in a civil case. Remember that this is not a otherwise, things or objects of a
criminal proceeding. The basic difference is nature different from that provided
that the preliminary investigation is by law, in the collection of taxes,
conducted by the prosecutor. licenses, fees, and other imposts.
made use of any other scheme with pay that which is not due or for a
regard to furnishing supplies, the higher price.
making of contracts, or the
adjustment or settlement of accounts Not all frauds will constitute this crime.
relating to public property or funds; There must be no fixed allocation or amount
on the matter acted upon by the public
4. He had intent to defraud the officer.
government.
The allocation or outlay was made the basis
of fraudulent quotations made by the public
The essence of this crime is making the officer involved.
government pay for something not received
or making it pay more than what is due. It is For example, there was a need to put some
also committed by refunding more than the additional lighting along the a street and no
amount which should properly be refunded. one knows how much it will cost. An officer
This occurs usually in cases where a public was asked to canvass the cost but he
officer whose official duty is to procure connived with the seller of light bulbs,
supplies for the government or enter into pricing each light bulb at P550.00 instead of
contract for government transactions, the actual price of P500.00. This is a case
connives with the said supplier with the of fraud against public treasury.
intention to defraud the government. Also
when certain supplies for the government If there is a fixed outlay of P20,000.00 for
are purchased for the high price but its the lighting apparatus needed and the
quantity or quality is low. public officer connived with the seller so that
although allocation was made a lesser
Illustrations: number was asked to be delivered, or of an
inferior quality, or secondhand. In this case
(1) A public official who is in charge of there is no fraud against the public treasury
procuring supplies for the because there is a fixed allocation. The
government obtained funds for the fraud is in the implementation of
first class materials and buys inferior procurement. That would constitute the
quality products and pockets the crime of “other fraud” in Article 214, which is
excess of the funds. This is usually in the nature of swindling or estafa.
committed by the officials of the
Department of Public Works and Be sure to determine whether fraud is
Highways. against public treasury or one under Article
214.
(2) Poorest quality of ink paid as if it
were of superior quality.
Elements of illegal exactions under
(3) One thousand pieces of blanket for paragraph 2
certain unit of the Armed Forces of
the Philippines were paid for but 1. Offender is a public officer entrusted
actually, only 100 pieces were with the collection of taxes, licenses,
bought. fees and other imposts;
This can only be committed principally by a Note that this is often committed with
public officer whose official duty is to collect malversation or estafa because when a
taxes, license fees, import duties and other public officer shall demand an amount
dues payable to the government. different from what the law provides, it can
be expected that such public officer will not
Not any public officer can commit this crime. turn over his collection to the government.
Otherwise, it is estafa. Fixers cannot
commit this crime unless he conspires with Illustrations:
the public officer authorized to make the
collection. (1) A taxpayer goes to the local
municipal treasurer to pay real
Also, public officers with such functions but estate taxes on his land. Actually,
are in the service of the Bureau of Internal what is due the government is
Revenue and the Bureau of Customs are P400.00 only but the municipal
not to be prosecuted under the Revised treasurer demanded P500.00. By
Penal Code but under the Revised that demand alone, the crime of
Administrative Code. These officers are illegal exaction is already committed
authorized to make impositions and to enter even though the taxpayer does not
into compromises. Because of this pay the P500.00.
discretion, their demanding or collecting
different from what is necessary is legal. (2) Suppose the taxpayer came across
with P500.00. But the municipal
This provision of the Revised Penal Code treasurer, thinking that he would
was provided before the Bureau of Internal abstract the P100.00, issued a
Revenue and the Tariff and Customs Code. receipt for only P400.00. The
Now, we have specific Code which will taxpayer would naturally ask the
apply to them. In the absence of any municipal treasurer why the receipt
provision applicable, the Revised was only for P400.00. The treasurer
Administrative Code will apply. answered that the P100.00 is
supposed to be for documentary
The essence of the crime is not stamps. The taxpayer left.
misappropriation of any of the amounts but
the improper making of the collection which He has a receipt for P400.00. The
municipal treasurer turned over to
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
3. Consenting, or through
Section 13, Article VII of the Constitution abandonment or negligence,
permitting any other person to take
The President, Vice-President, the such public funds or property; and
Members of the Cabinet and their deputies
or assistant shall not, unless otherwise 4. Being otherwise guilty of the
provided in this Constitution, hold any other misappropriation or malversation of
office or employment during their tenure. such funds or property.
They shall not, during said tenure, directly
or indirectly, practice any other profession,
participate in any business, or be financially Elements common to all acts of
interested in any contract with, or in any malversation under Article 217
franchise, or special privilege granted by the
Government or any subdivision, agency or 1. Offender is a public officer;
instrumentality thereof, including
government-owned or controlled 2. He had the custody or control of
corporations or their subsidiaries. They funds or property by reason of the
shall strictly avoid conflict of interest in the duties of his office;
conduct of their office.
3. Those funds or property were public
funds or property for which he was
Section 2, Article IX-A of the Constitution accountable;
involved. The offender must be between the offender and the funds or
accountable for the property property involved.
misappropriated. If the fund or property,
though public in character is the The offender, to commit malversation, must
responsibility of another officer, be accountable for the funds or property
malversation is not committed unless there misappropriated by him. If he is not the one
is conspiracy. accountable but somebody else, the crime
committed is theft. It will be qualified theft if
It is not necessary that the offender profited there is abuse of confidence.
because somebody else may have
misappropriated the funds in question for as Accountable officer does not refer only to
long as the accountable officer was remiss cashier, disbursing officers or property
in his duty of safekeeping public funds or custodian. Any public officer having
property. He is liable for malversation if custody of public funds or property for which
such funds were lost or otherwise he is accountable can commit the crime of
misappropriated by another. malversation if he would misappropriate
such fund or property or allow others to do
There is no malversation through simple so.
negligence or reckless imprudence, whether
deliberately or negligently. This is one
crime in the Revised Penal Code where the Questions & Answers
penalty is the same whether committed with
dolo or culpa.
1. An unlicensed firearm was
confiscated by a policeman. Instead of
turning over the firearm to the property
custodian for the prosecution of the
Question & Answer offender, the policeman sold the firearm.
What crime was committed?
What crime under the Revised Penal
Code carries the same penalty whether The crime committed is malversation
committed intentionally or through because that firearm is subject to his
negligence? accountability. Having taken custody of the
firearm, he is supposed to account for it as
Malversation under Article 217. evidence for the prosecution of the offender.
There is no crime of malversation through
negligence. The crime is malversation, 2. Can the buyer be liable
plain and simple, whether committed under the Anti-fencing law?
through dolo or culpa. There is no crime of
malversation under Article 365 – on criminal No. The crime is neither theft nor
negligence – because in malversation under robbery, but malversation.
Article 217, the same penalty is imposed
whether the malversation results from 3. A member of the Philippine
negligence or was the product of deliberate National Police went on absence without
act. leave. He was charged with malversation of
the firearm issued to him. After two years,
he came out of hiding and surrendered the
The crime of malversation can be firearm. What crime was committed?
committed only by an officer accountable for
the funds or property which is appropriated. The crime committed was
This crime, therefore, bears a relation malversation. Payment of the amount
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
When private property is attached or seized A government cashier did not bother to put
by public authority and the public officer the public fund in the public safe/vault but
accountable therefor misappropriates the just left it in the drawer of his table which
same, malversation is committed also. has no lock. The next morning when he
came back, the money was already gone.
Illustration: He was held liable for malversation through
negligence because in effect, he has
If a sheriff levied the property of the abandoned the fund or property without any
defendants and absconded with it, he is not safety.
liable of qualified theft but of malversation
even though the property belonged to a A private person may also commit
private person. The seizure of the property malversation under the following situations:
or fund impressed it with the character of
being part of the public funds it being in (1) Conspiracy with a public officer in
custodia legis. For as long as the public committing malversation;
officer is the one accountable for the fund or
property that was misappropriated, he can (2) When he has become an
be liable for the crime of malversation. accomplice or accessory to a public
Absent such relation, the crime could be officer who commits malversation;
theft, simple or qualified.
(3) When the private person is made the
custodian in whatever capacity of
Question & Answer public funds or property, whether
belonging to national or local
government, and he misappropriates
There was a long line of payors on the same;
the last day of payment for residence
certificates. Employee A of the municipality (4) When he is constituted as the
placed all his collections inside his table and depositary or administrator of funds
requested his employee B to watch over his or property seized or attached by
table while he goes to the restroom. B took public authority even though said
advantage of A’s absence and took P50.00 funds or property belong to a private
out of the collections. A returned and found individual.
his money short. What crimes have been
committed? Illustration:
Note that damage on the part of the he went back to the office, he
government is not considered an essential changed clothes and he claims that
element. It is enough that the proprietary he forgot to put the money in the
rights of the government over the funds new funds that he would collect the
have been disturbed through breach of next day. Government auditors
trust. came and subjected him to
inspection. He was found short of
It is not necessary that the accountable that amount. He claimed that it is in
public officer should actually misappropriate his house -- with that alone, he was
the fund or property involved. It is enough charged with malversation and was
that he has violated the trust reposed on convicted.
him in connection with the property.
Any overage or excess in the collection of
Illustration: an accountable public officer should not be
extracted by him once it is commingled with
(1) It is a common practice of the public funds.
government cashiers to change the
checks of their friends with cash in Illustration:
their custody, sometimes at a
discount. The public officer knows When taxpayers pay their accountabilities to
that the check is good because the the government by way of taxes or licenses
issuer thereof is a man of name. So like registration of motor vehicles, the
he changed the same with cash. taxpayer does not bother to collect loose
The check turned out to be good. change. So the government cashier
accumulates the loose change until this
With that act of changing the cash of amounts to a sizable sum. In order to avoid
the government with the check of a malversation, the cashier did not separate
private person, even though the what is due the government which was left
check is good, malversation is to her by way of loose change. Instead, he
committed. The reason is that a gets all of these and keeps it in the public
check is cleared only after three vault/safe. After the payment of the taxes
days. During that period of three and licenses is through, he gets all the
days, the government is being official receipts and takes the sum total of
denied the use of the public fund. the payment. He then opens the public
With more reason if that check vault and counts the cash. Whatever will be
bounce because the government the excess or the overage, he gets. In this
suffers. case, malversation is committed.
(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 safe with the characteristic of being part of public
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 misappropriation
in his pocket. The next day, when arise?
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Elements
Article 219. Failure of A Responsible
Public Officer to Render Accounts before 1. Offender is a public officer;
Leaving the Country
2. There are public funds or property
Elements under his administration;
already appropriated or earmarked for a owner if he could possibly deposit the bags
certain public purpose. of cement in his garage to prevent the same
from being wet. The owner of the house,
The offender is entrusted with such fund or Olive, agreed. So the bags of cement were
property only to administer or apply the transferred to the garage of the private
same to the public purpose for which it was person. After the public officer had left, and
appropriated by law or ordinance. Instead the workers had left because it is not
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 the crime is not theft but malversation as long
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.
that amount. He gave the balance to the 2. He had in his custody or charge a
plaintiff and executed a promissory note to prisoner, either detention prisoner or
pay the plaintiff the amount spent by him. Is prisoner by final judgment;
there a crime committed?
3. Such prisoner escaped from his
The Supreme Court ruled that the custody;
sheriff committed the crime of malversation
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;
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.
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Elements
Article 229. Revelation of Secrets by An
Officer 1. Offender is a public officer;
Elements
Article 231. Open Disobedience
1. Offender is a public officer;
Elements
2. He knows of a secret by
reason of his official capacity;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
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 is
of the following manners:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
worded, it prohibits the complexing of the maltreatment of prisoner had already been
crime. committed.
If the maltreatment was done in order to After having been booked, the prisoner was
extort confession, therefore, the made to show any sign on his arm, hand or
constitutional right of the prisoner is further his neck; “Do not follow my footsteps, I am a
violated. The penalty is qualified to the next thief.” That is maltreatment of prisoner if the
higher degree. offended party had already been booked
and incarcerated no matter how short, as a
The offended party here must be a prisoner prisoner.
in the legal sense. The mere fact that a
private citizen had been apprehended or Before this point in time, when he is not yet
arrested by a law enforcer does not a prisoner, the act of hanging a sign on his
constitute him a prisoner. To be a prisoner, neck will only amount to slander because
he must have been booked and the idea is to cast dishonor. Any injury
incarcerated no matter how short it is. inflicted upon him will only give rise to the
crime of physical injuries.
Illustration:
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
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
10. Unintentional abortion (Art. 257); In infanticide, the victim is younger than
three days or 72 hours old; can be
11. Abortion practiced by the woman committed by a stranger. If a stranger who
herself or by her parents (Art. 258); conspires with parent, both commit the
crime of infanticide.
12. Abortion practiced by a physician or
midwife and dispensing of abortives
(Art. 259); Article 246. Parricide
The essence of crime here involves the The relationship must be in the direct line
taking of human life, destruction of the fetus and not in the collateral line.
or inflicting injuries.
The relationship between the offender and
As to the taking of human life, you have: the offended party must be legitimate,
except when the offender and the offended
(1) Parricide; party are related as parent and child.
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
with another person;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(1) When the offender surprised the The phrase “immediately thereafter” has
other spouse with a paramour or been interpreted to mean that between the
mistress. The attack must take surprising and the killing of the inflicting of
place while the sexual intercourse is the physical injury, there should be no break
going on. If the surprise was before of time. In other words, it must be a
or after the intercourse, no matter continuous process.
how immediate it may be, Article 247
does not apply. The offender in this The article presumes that a legally married
situation only gets the benefit of a person who surprises his or her better half
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 spouse
in the act of intercourse, or has no time to regain his self-control.
immediately thereafter, that is, after
surprising. If there was already a break of time
between the sexual act and the killing or
You have to divide the stages because as inflicting of the injury, the law presupposes
far as the first stage is concerned, it does that the offender regained his reason and
not admit of any situation less than sexual therefore, the article will not apply anymore.
intercourse.
As long as the act is continuous, the article
So if the surprising took place before any still applies.
actual sexual intercourse could be done
because the parties are only in their Where the accused surprised his wife and
preliminaries, the article cannot be invoked his paramour in the act of illicit intercourse,
anymore. as a result of which he went out to kill the
paramour in a fit of passionate outburst.
If the surprising took place after the actual Although about one hour had passed
sexual intercourse was finished, even if the between the time the accused discovered
act being performed indicates no other his wife having sexual intercourse with the
victim and the time the latter was actually
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
killed, it was held in People v. Abarca, 153 was not committed as the accused did not
SCRA 735, that Article 247 was applicable, have the intent to kill the two victims. Here,
as the shooting was a continuation of the the accused did not commit murder when
pursuit of the victim by the accused. Here, he fired at the paramour of his wife.
the accused, after the discovery of the act of Inflicting death under exceptional
infidelity of his wife, looked for a firearm in circumstances is not murder. The accused
Tacloban City. was held liable for negligence under the first
part, second paragraph of Article 365, that
Article 247 does not provide that the victim is, less serious physical injuries through
is to be killed instantly by the accused after simple negligence. No aberratio ictus
surprising his spouse in the act of because he 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. The exempting circumstance, the accused must
killing should have been actually motivated first be charged with:
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 If the crime committed is less serious
exempting circumstance as the penalty is physical injuries or slight physical injuries,
intended more for the protection of the there is no criminal liability.
accused than a punishment. Death under
exceptional character can not be qualified The article does not apply where the wife
by either aggravating or mitigating was not surprised in flagrant adultery but
circumstances. was being abused by a man as in this case
there will be defense of relation.
In the case of People v. Abarca, 153
SCRA 735, two persons suffered physical If the offender surprised a couple in sexual
injuries as they were caught in the crossfire intercourse, and believing the woman to be
when the accused shot the victim. A his wife, killed them, this article may be
complex crime of double frustrated murder applied if the mistake of facts is proved.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
was alleged was not proven and with both arms and legs around the
instead another circumstance, not tree. They thought they would give
alleged, was established during the him a lesson by whipping him with
trial, even if the latter constitutes a branches of gumamela until the
qualifying circumstance under Article victim fell unconscious. The
248, the same can not qualify the accused left not knowing that the
killing to murder. The accused can victim died.
only be convicted of homicide.
The crime committed was murder.
Generally, murder cannot be The accused deprived the victim of
committed if at the beginning, the the chance to defend himself when
offended had no intent to kill the latter was tied to a tree.
because the qualifying Treachery is a circumstance
circumstances must be resorted to referring to the manner of
with a view of killing the offended committing the crime. There was no
party. So if the killing were at the risk to the accused arising from the
“spur of the moment”, even though defense by the victim.
the victim was denied the chance to
defend himself because of the Although what was initially intended
suddenness of the attack, the crime was physical injury, the manner
would only be homicide. Treachery adopted by the accused was
contemplates that the means, treacherous and since the victim
methods and form in the execution died as a consequence thereof, the
were consciously adopted and crime is murder -- although
deliberately resorted to by the originally, there was no intent to kill.
offender, and were not merely
incidental to the killing. When the victim is already dead,
intent to kill becomes irrelevant. It is
If the offender may have not important only if the victim did not
intended to kill the victim but he only die to determine if the felony is
wanted to commit a crime against physical injury or attempted or
him in the beginning, he will still be frustrated homicide.
liable for murder if in the manner of
committing the felony there was So long as the means, methods and
treachery and as a consequence form in the execution is deliberately
thereof the victim died. This is adopted, even if there was no intent
based on the rule that a person to kill, there is treachery.
committing a felony shall be liable
for the consequences thereof (2) In consideration of price, reward or
although different from that which he promises;
intended.
(3) Inundation, fire, poison, explosion,
Illustration: shipwreck, stranding of a vessel,
derailment or assault upon a street
The accused, three young men, car or locomotive, fall of an airship,
resented the fact that the victim by means of a motor vehicle, or with
continued to visit a girl in their the use of other means involving
neighborhood despite the warning great waste and ruin;
they gave him. So one evening,
after the victim had visited the girl, The only problem insofar as the
they seized and tied him to a tree, killing by fire is concerned is whether
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(1) Physical injuries are included as one 3. These several persons quarreled
of the essential elements of and assaulted one another in a
frustrated homicide. confused and tumultuous manner;
(2) If the deceased received two 4. Someone was killed in the course of
wounds from two persons acting the affray;
independently of each other and the
wound inflicted by either could have 5. It can not be ascertained who
caused death, both of them are actually killed the deceased;
liable for the death of the victim and
each of them is guilty of homicide. 6. The person or persons who inflicted
serious physical injuries or who used
(3) If the injuries were mortal but were violence can be identified.
only due to negligence, the crime
committed will be serious physical
injuries through reckless imprudence Tumultuous affray simply means a
as the element of intent to kill in commotion in a tumultuous and confused
frustrated homicide is incompatible manner, to such an extent that it would not
with negligence or imprudence. be possible to identify who the killer is if
death results, or who inflicted the serious
(4) Where the intent to kill is not physical injury, but the person or persons
manifest, the crime committed has who used violence are known.
been generally considered as
physical injuries and not attempted It is not a tumultuous affray which brings
or frustrated murder or homicide. about the crime; it is the inability to
ascertain actual perpetrator. It is necessary
(5) When several assailants not acting that the very person who caused the death
in conspiracy inflicted wounds on a can not be known, not that he can not be
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
identified. Because if he is known but only even if you cannot identify who, in
his identity is not known, then he will be particular, committed the killing, the adverse
charged for the crime of homicide or murder party composing the organized group will be
under a fictitious name and not death in a collectively charged for the death of that
tumultuous affray. If there is a conspiracy, person.
this crime is not committed.
Illustration:
To be considered death in a tumultuous
affray, there must be: If a fight ensued between 20 Sigue-Sigue
Gang men and 20 Bahala-Na- Gang men,
(1) a quarrel, a free-for-all, which and in the course thereof, one from each
should not involve organized group; group was killed, the crime would be
and homicide or murder; there will be collective
responsibility on both sides. Note that the
(2) someone who is injured or killed person killed need not be a participant in the
because of the fight. fight.
(2) If they could not be known, then 3. The person responsible thereof can
anyone who may have employed not be identified;
violence on that person will answer
for his death. 4. All those who appear to have used
violence upon the person of the
(3) If nobody could still be traced to offended party are known.
have employed violence upon the
victim, nobody will answer. The
crimes committed might be If in the course of the tumultuous affray,
disturbance of public order, or if only serious or less serious physical injuries
participants are armed, it could be are inflicted upon a participant, those who
tumultuous disturbance, or if used violence upon the person of the
property was destroyed, it could be offended party shall be held liable.
malicious mischief.
In physical injuries caused in a tumultuous
The fight must be tumultuous. The affray, the conditions are also the same.
participants must not be members of an But you do not have a crime of physical
organized group. This is different from a injuries resulting from a tumultuous affray if
rumble which involves organized groups the physical injury is only slight. The
composed of persons who are to attack physical injury should be serious or less
others. If the fight is between such groups, serious and resulting from a tumultuous
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
affray. So anyone who may have employed determination to die must come from the
violence will answer for such serious or less victim. This does not contemplate
serious physical injury. euthanasia or mercy killing where the crime
is homicide (if without consent; with
If the physical injury sustained is only slight, consent, covered by Article 253).
this is considered as inherent in a
tumultuous affray. The offended party
cannot complain if he cannot identify who The following are holdings of the Supreme
inflicted the slight physical injuries on him. Court with respect to this crime:
If the intention is not to commit suicide, as In mercy killing, the victim is not in a
when he just wanted to have a picture taken position to commit suicide. Whoever would
of him to impress upon the world that he is heed his advice is not really giving
committing suicide because he is not assistance to suicide but doing the killing
satisfied with the government, the crime is himself. In giving assistance to suicide, the
held to be inciting to sedition. principal actor is the person committing the
suicide.
He becomes a co-conspirator in the crime of
inciting to sedition, but not of giving Both in euthanasia and suicide, the intention
assistance to suicide because the to the end life comes from the victim
assistance must be given to one who is himself; otherwise the article does not
really determined to commit suicide. apply. The victim must persistently induce
the offender to end his life. If there is only
If the person does the killing himself, the slight persuasion to end his life, and the
penalty is similar to that of homicide, which offender readily assented thereto.
is reclusion temporal. There can be no
qualifying circumstance because the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 256. Intentional Abortion It is abortion if the victim is not viable but
remains to be a fetus.
Acts punished
1. Using any violence upon the person Abortion is not a crime against the woman
of the pregnant woman; but against the fetus. If mother as a
consequence of abortion suffers death or
2. Acting, but without using violence, physical injuries, you have a complex crime
without the consent of the woman. of murder or physical injuries and abortion.
(By administering drugs or
beverages upon such pregnant In intentional abortion, the offender must
woman without her consent.) know of the pregnancy because the
particular criminal intention is to cause an
3. Acting (by administering drugs or abortion. Therefore, the offender must have
beverages), with the consent of the known of the pregnancy for otherwise, he
pregnant woman. would not try an abortion.
Distinction between infanticide and abortion If it could be shown that had the umbilical
cord been cut, that child, if not killed, would
have survived beyond 24 hours, the crime is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Acts punished
Article 263. Serious Physical Injuries
1. Intentionally mutilating another by
depriving him, either totally or How committed
partially, of some essential organ for
reproduction; 1. By wounding;
Elements 2. By beating;
The intent to deliberately cut off the 2. When the injured person –
particular part of the body that was removed
from the offended party must be a. Loses the use of speech or
established. If there is no intent to deprive the power to hear or to smell,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
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 injuries
serious physical injuries unless the result is are only considered less serious
there. because for purposes of classifying
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
the physical injuries as serious, you The offender threw acid on the face
do not consider the period of of the offended party. Were it not for timely
medical treatment. You only medical attention, a deformity would have
consider the period of incapacity been produced on the face of the victim.
from work. After the plastic surgery, the offended party
was more handsome than before the injury.
(3) When the injury created a deformity What crime was committed? In what stage
upon the offended party, you was it committed?
disregard the healing duration or the
period of medical treatment involved. The crime is serious physical injuries
At once, it is considered serious because the problem itself states that the
physical injuries. injury would have produced a deformity.
The fact that the plastic surgery removed
So even though the deformity may the deformity is immaterial because in law
not have incapacitated the offended what is considered is not the artificial
party from work, or even though the treatment but the natural healing process.
medical treatment did not go beyond
nine days, that deformity will bring In a case decided by the Supreme Court,
about the crime of serious physical accused was charged with serious physical
injuries. injuries because the injuries produced a
scar. He was convicted under Article 263
Deformity requires the concurrence (4). He appealed because, in the course of
of the following conditions: the trial, the scar disappeared. It was held
that accused can not be convicted of
(1) The injury must produce serious physical injuries. He is liable only
ugliness; for slight physical injuries because the
victim was not incapacitated, and there was
(2) It must be visible; no evidence that the medical treatment
lasted for more than nine days.
(3) The ugliness will not
disappear through natural Serious physical injuries is punished with
healing process. higher penalties in the following cases:
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.”
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
For murder, the penalty provided by the 2. The act of sexual assault is
Code, as amended by Republic Act No. committed by any of the following
7659, is reclusion perpetua to death – means:
higher than what Republic Act no. 7610
provides. Accordingly, insofar as the crime a. By inserting his penis into
is murder, Article 248 of the Code, as another person's mouth or
amended, shall govern even if the victim anal orifice; or
was under 12 years of age. It is only in
respect of the crimes of intentional b. By inserting any instrument
mutilation in paragraph 2 of Article 262 and or object into the genital or
of serious physical injuries in paragraph 1 of anal orifice of another
Article 263 of the Code that the quoted person;
provision of Republic Act No. 7160 may be
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:
(1) Traditional concept under Article 335 (1) Reclusion perpetua to death/ prision
– carnal knowledge with a woman mayor to reclusion temporal --
against her will. The offended party
is always a woman and the offender (a) Where rape is perpetrated by
is always a man. the accused with a deadly
weapon; or
(2) Sexual assault - committed with an
instrument or an object or use of the (b) Where it is committed by two
penis with penetration of mouth or or more persons.
anal orifice. The offended party or
the offender can either be man or (2) Reclusion perpetua to death/
woman, that is, if a woman or a man reclusion temporal --
uses an instrument on anal orifice of
male, she or he can be liable for (a) Where the victim of the rape
rape. has become insane; or
Rape is committed when a man has carnal (b) Where the rape is attempted
knowledge of a woman under the following but a killing was committed
circumstances: by the offender on the
occasion or by reason of the
(1) Where intimidation or violence is rape.
employed with a view to have carnal
knowledge of a woman; (3) Death / reclusion perpetua --
(1) Where the penis is inserted into the (b) Where the victim was under
anal or oral orifice; or the custody of the police or
military authorities, or other
law enforcement agency;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(f) Where the offender is a Under Article 266-C, the offended woman
member of the AFP, its may pardon the offender through a
paramilitary arm, the PNP, or subsequent valid marriage, the effect of
any law enforcement agency which would be the extinction of the
and the offender took offender’s liability. Similarly, the legal
advantage of his position; husband may be pardoned by forgiveness
of the wife provided that the marriage is not
(g) Where the offender is void ab initio. Obviously, under the new
afflicted with AIDS or other law, the husband may be liable for rape if
sexually transmissible his wife does not want to have sex with him.
diseases, and he is aware It is enough that there is indication of any
thereof when he committed amount of resistance as to make it rape.
the rape, and the disease
was transmitted; Incestuous rape was coined in Supreme
Court decisions. It refers to rape committed
(h) Where the victim has by an ascendant of the offended woman. In
suffered permanent physical such cases, the force and intimidation need
mutilation; not be of such nature as would be required
in rape cases had the accused been a
(i) Where the pregnancy of the stranger. Conversely, the Supreme Court
offended party is known to expected that if the offender is not known to
the rapist at the time of the woman, it is necessary that there be
rape; or evidence of affirmative resistance put up by
the offended woman. Mere “no, no” is not
(j) Where the rapist is aware of enough if the offender is a stranger,
the victim’s mental disability, although if the rape is incestuous, this is
emotional disturbance or enough.
physical handicap.
The new rape law also requires that there
be a physical overt act manifesting
Prior to the amendment of the law on rape, resistance, if the offended party was in a
a complaint must be filed by the offended situation where he or she is incapable of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
It has also been held that although the In a case where the accused jumped upon a
offended woman who is the victim of the 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 of
The standard amount given now is P 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
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
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
c. Any serious physical injuries When one thinks of kidnapping, it is not only
are inflicted upon the person that of transporting one person from one
kidnapped or detained or place to another. One also has to think of
threats to kill him are made; the criminal intent.
or
Forcible abduction -- If a woman is
d. The person kidnapped or transported from one place to another by
detained is a minor, female, virtue of restraining her of her liberty, and
or a public officer. that act is coupled with lewd designs.
When a public officer conspires with a In a decided case, a suitor, who cannot get
private person in the commission of any of a favorable reply from a woman, invited the
the crimes under Title IX, the crime is also woman to ride with him, purportedly to take
one committed under this title and not under home the woman from class. But while the
Title II. woman is in his car, he drove the woman to
a far place and told the woman to marry
Illustration: him. On the way, the offender had
repeatedly touched the private parts of the
If a private person commits the crime of woman. It was held that the act of the
kidnapping or serious illegal detention, even offender of touching the private parts of the
though a public officer conspires therein, the woman could not be considered as lewd
crime cannot be arbitrary detention. As far designs because he was willing to marry the
as that public officer is concerned, the crime offended party. The Supreme Court ruled
is also illegal detention. that when it is a suitor who could possibly
marry the woman, merely kissing the
In the actual essence of the crime, when woman or touching her private parts to
one says kidnapping, this connotes the idea “compel” her to agree to the marriage, such
of transporting the offended party from one cannot be characterized as lewd design. It
place to another. When you think illegal is considered merely as the “passion of a
detention, it connotes the idea that one is lover”. But if the man is already married,
restrained of his liberty without necessarily you cannot consider that as legitimate but
transporting him from one place to another. immoral and definitely amounts to lewd
design.
The crime of kidnapping is committed if the
purpose of the offender is to extort ransom If a woman is carried against her will but
either from the victim or from any other without lewd design on the part of the
person. But if a person is transported not offender, the crime is grave coercion.
for ransom, the crime can be illegal
detention. Usually, the offended party is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If the victim is a woman or a public officer, Article 267 has been modified by Republic
the detention is always serious – no matter Act No. 7659 in the following respects:
how short the period of detention is.
(1) Illegal detention becomes serious
Circumstances which make illegal detention when it shall have lasted for more
serious than three days, instead of five days
as originally provided;
(1) When the illegal detention lasted for
three days, regardless of who the (2) In paragraph 4, if the person
offended party is; kidnapped or detained was a minor
and the offender was anyone of the
(2) When the offended party is a female, parents, the latter has been
even if the detention lasted only for expressly excluded from the
minutes; provision. The liability of the parent
is provided for in the last paragraph
(3) If the offended party is a minor or a of Article 271;
public officer, no matter how long or
how short the detention is; (3) A paragraph was added to Article
267, which states:
(4) When threats to kill are made or
serious physical injuries have been When the victim is
inflicted; and killed or dies as a
consequence of the
(5) If it shall have been committed detention or is raped,
simulating public authority. or is subjected to
torture, or
Distinction between illegal detention and dehumanizing acts,
arbitrary detention the maximum penalty
shall be imposed.
Illegal detention is committed by a private
person who kidnaps, detains, or otherwise This amendment brings about a
deprives another of his liberty. composite crime of kidnapping with
homicide when it is the victim of the
kidnapping who was killed, or dies
as a consequence of the detention
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
and, thus, only one penalty is several times, there would only be one
imposed which is death. crime of forcible abduction with rape, and
each of the other rapes would constitute
distinct counts of rape. This was the ruling
Article 48, on complex crimes, does not in the case of People v. Bacalso.
govern in this case. But Article 48 will
govern if any other person is killed aside, In People v. Lactao, decided on October
because the provision specifically refers to 29, 1993, the Supreme Court stressed that
“victim”. Accordingly, the rulings in cases of the crime is serious illegal detention if the
People v. Parulan, People v. Ging Sam, purpose was to deprive the offended party
and other similar cases where the accused of her liberty. And if in the course of the
were convicted for the complex crimes of illegal detention, the offended party was
kidnapping with murder have become raped, a separate crime of rape would be
academic. committed. This is so because there is no
complex crime of serious illegal detention
In the composite crime of kidnapping with with rape since the illegal detention was not
homicide, the term “homicide” is used in the a necessary means to the commission of
generic sense and, thus, covers all forms of rape.
killing whether in the nature of murder or
otherwise. It does not matter whether the In People v. Bernal, 131 SCRA 1, the
purpose of the kidnapping was to kill the appellants were held guilty of separate
victim or not, as long as the victim was crimes of serious illegal detention and of
killed, or died as a consequence of the multiple rapes. With the amendment by
kidnapping or detention. There is no more Republic Act No. 7659 making rape a
separate crime of kidnapping and murder if qualifying circumstance in the crime of
the victim was kidnapped not for the kidnapping and serious illegal detention, the
purpose of killing her. jurisprudence is superseded to the effect
that the rape should be a distinct crime.
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.
This felony is committed if any of the five Before, in People v. Saliente, if the
circumstances in the commission of offended party subjected to serious illegal
kidnapping or detention enumerated in detention was voluntarily released by the
Article 267 is not present. accused in accordance with the provisions
of Article 268 (3), the crime, which would
The penalty is lowered if – have been serious illegal detention, became
slight illegal detention only.
(1) The offended party is voluntarily
released within three days from the The prevailing rule now is Asistio v. Judge,
start of illegal detention; which provides that voluntary release will
only mitigate criminal liability if crime was
(2) Without attaining the purpose; slight illegal detention. If serious, it has no
effect.
(3) Before the institution of the criminal
action. In kidnapping for ransom, voluntary release
will not mitigate the crime. This is because,
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 for
offended party from detention within three redemption of a captured person or
days from the time the restraint of liberty persons, a payment that releases a person
began, as long as the offender has not from captivity.
accomplished his purposes, and the release
was made before the criminal prosecution The definition of ransom under the Lindberg
was commenced, this would serve to law of the U.S. has been adopted in our
mitigate the criminal liability of the offender, jurisprudence in People v. Akiran, 18
provided that the kidnapping or illegal SCRA 239, 242, such that when a creditor
detention is not serious. detains a debtor and releases the latter only
upon the payment of the debt, such
If the illegal detention is serious, however, payment of the debt, which was made a
even if the offender voluntarily released the condition for the release is ransom, under
offended party, and such release was within this article.
three days from the time the detention
began, even if the offender has not In the case of People v. Roluna, decided
accomplished his purpose in detaining the March 29, 1994, witnesses saw a person
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
being taken away with hands tied behind his unlawful arrest through incriminatory
back and was not heard from for six years. machinations under Article 363.
Supreme Court reversed the trial court
ruling that the men accused were guilty of If the arrest is made without a warrant and
kidnapping with murder. The crime is only under circumstances not allowing a
slight illegal detention under Article 268, warrantless arrest, the crime would be
aggravated by a band, since none of the unlawful arrest.
circumstances in Article 267 has been
proved beyond a reasonable doubt. The If the person arrested is not delivered to the
fact that the victim has been missing for six authorities, the private individual making the
years raises a presumption of death, but arrest incurs criminal liability for illegal
from this disputable presumption of death, it detention under Article 267 or 268.
should not be further presumed that the
persons who were last seen with the If the offender is a public officer, the crime is
absentee is responsible for his arbitrary detention under Article 124.
disappearance.
If the detention or arrest is for a legal
ground, but the public officer delays delivery
Article 269. Unlawful Arrest of the person arrested to the proper judicial
authorities, then Article 125 will apply.
Elements
Note that this felony may also be committed
1. Offender arrests or detains another by public officers.
person;
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;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
But remember Republic Act No. 7610 2. He enters the dwelling of another;
(Special Protection of Children against Child
Abuse, Exploitation and Discrimination Act). 3. Such entrance is against the latter’s
It applies to minors below 18 years old, not will.
16 years old as in the Revised Penal Code.
As long as the employment is inimical –
even though there is no physical risk – and Two forms of trespass
detrimental to the child’s interest – against
moral, intellectual, physical, and mental 1. Qualified trespass to dwelling – This
development of the minor – the may be committed by any private
establishment will be closed. person who shall enter the dwelling
of another against the latter’s will.
Article 278 has no application if minor is 16 The house must be inhabited at the
years old and above. But the exploitation time of the trespass although the
will be dealt with by Republic Act No. 7610. occupants are out. Or offender
breaks in with force and violence
If the minor so employed would suffer some (Article 280).
injuries as a result of a violation of Article
278, Article 279 provides that there would 2. Trespass to property - Offender
be additional criminal liability for the enters the closed premises or
resulting felony. fenced estate of another; such close
premises or fenced estate is
Illustration: uninhabited; there is a manifest
prohibition against entering such
The owner of a circus employed a child closed premises or fenced estate;
under 16 years of age to do a balancing act and offender has not secured the
on the tightrope. The crime committed is permission of the owner or caretaker
exploitation of minors (unless the employer thereof (Article 281).
is the ascendant of the minor who is not
below 12 years of age). If the child fell and (See also Presidential Decree No. 1227
suffered physical injuries while working, the regarding unlawful entry into any military
employer shall be liable for said physical base in the Philippines.)
injuries in addition to his liability for
exploitation of minors.
Dwelling – This is the place that a person
inhabits. It includes the dependencies
Article 280. Qualified Trespass to which have interior communication with the
Dwelling house. It is not necessary that it be the
permanent dwelling of the person. So, a
Elements person’s room in a hotel may be considered
a dwelling. It also includes a room where
one resides as a boarder.
crime. But if the purpose is not shown and Unlike qualified trespass to dwelling,
while inside the dwelling he was found by violation of domicile may be committed only
the occupants, one of whom was injured by by a public officer or employee and the
him, the crime committed will be trespass to violation may consist of any of the three
dwelling and frustrated homicide, physical acts mentioned in Article 128 – (1) entering
injuries, or if there was no injury, unjust the dwelling against the will of the owner
vexation. without judicial order; (2) searching papers
or other effects found in such dwelling
If the entry is made by a way not intended without the previous consent of the owner
for entry, that is presumed to be against the thereof; and (3) refusing to leave the
will of the occupant (example, entry through dwelling when so requested by the owner
a window). It is not necessary that there be thereof, after having surreptitiously entered
a breaking. such dwelling.
“Against the will” -- This means that the Cases when Article 280 does not apply:
entrance is, either expressly or impliedly,
prohibited or the prohibition is presumed. (1) When the purpose of the entrance is
Fraudulent entrance may constitute to prevent serious harm to himself,
trespass. The prohibition to enter may be the occupant or third persons;
made at any time and not necessarily at the
time of the entrance. (2) When the purpose of the offender in
entering is to render some service to
To prove that an entry is against the will of humanity or justice;
the occupant, it is not necessary that the
entry should be preceded by an express (3) Anyone who shall enter cafes,
prohibition, provided that the opposition of taverns, inns and other public
the occupant is clearly established by the houses while they are open .
circumstances under which the entry is
made, such as the existence of enmity or Pursuant to Section 6, Rule 113 of the
strained relations between the accused and Rules of Court, a person who believes that
the occupant. a crime has been committed against him
has every right to go after the culprit and
On violence, Cuello Calon opines that arrest him without any warrant even if in the
violence may be committed not only against process he enters the house of another
persons but also against things. So, against the latter’s will.
breaking the door or glass of a window or
door constitutes acts of violence. Our Article 281. Other forms of trespass
Supreme Court followed this view in People
v. Tayag. Violence or intimidation must, Elements
however, be anterior or coetaneous with the
entrance and must not be posterior. But if 1. Offender enters the closed premises
the violence is employed immediately after or the fenced estate of another;
the entrance without the consent of the
owner of the house, trespass is committed. 2. The entrance is made while either of
If there is also violence or intimidation, proof them is uninhabited;
of 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.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(1) Grave threats – when the wrong (1) As to intimidation – In robbery, the
threatened to be inflicted amounts to intimidation is actual and immediate;
a crime. The case falls under Article in threat, the intimidation is future
282. and conditional.
It is distinguished from grave coercion under 2. Paying the wages due his laborer or
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;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 289. Formation, Maintenance, The last paragraph of Article 290 expressly
and Prohibition of Combination of makes the provision of the first and second
Capital or Labor through Violence or paragraph thereof inapplicable to parents,
Threats guardians, or persons entrusted with the
custody of minors placed under their care or
Elements custody, and to the spouses with respect to
the papers or letters of either of them. The
1. Offender employs violence or teachers or other persons entrusted with the
threats, in such a degree as to care and education of minors are included
compel or force the laborers or in the exceptions.
employers in the free and legal
exercise of their industry or work; In a case decided by the Supreme Court, a
spouse who rummaged and found love
2. The purpose is to organize, maintain letters of husband to mistress does not
or prevent coalitions of capital or commit this crime, but the letters are
labor, strike of laborers or lockout of inadmissible in evidence because of
employers. unreasonable search and seizure. The
ruling held that the wife should have applied
for a search warrant.
Article 290. Discovering Secrets through
Seizure of Correspondence Distinction from estafa, damage to property,
and unjust vexation:
Elements
If the act had been executed with intent of
1. Offender is a private individual or gain, it would be estafa;
even a public officer not in the
exercise of his official function; If, on the other hand, the purpose was not to
defraud, but only to cause damage to
2. He seizes the papers or letters of another’s, it would merit the qualification of
another; damage to property;
16. Other forms of swindling (Art. 316); 2. There is unlawful taking of that
property;
17. Swindling a minor (Art. 317);
3. The taking must be with intent to
18. Other deceits (Art. 318); gain; and
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
Violence or intimidation upon persons may In robbery with force upon things, the things
result in death or mutilation or rape or must be brought outside the building for
serious physical injuries. consummated robbery to be committed.
sense, but also with robbery with murder. during the robbery being committed in a
So, any kind of killing by reason of or on the boarder’s quarter, do not consider that as
occasion of a robbery will bring about the separate counts of robbery with homicide
crime of robbery with homicide even if the because when robbers decide to commit
person killed is less than three days old, or robbery in a certain house, they are only
even if the person killed is the mother or impelled by one criminal intent to rob and
father of the killer, or even if on such there will only be one case of robbery. If
robbery the person killed was done by there were homicide or death committed,
treachery or any of the qualifying that would only be part of a single robbery.
circumstances. In short, there is no crime of That there were several killings done would
robbery with parricide, robbery with murder, only aggravate the commission of the crime
robbery with infanticide – any and all forms of robbery with homicide.
of killing is referred to as homicide.
In People v. Quiñones, 183 SCRA 747, it
Illustration: was held that there is no crime of robbery
with multiple homicides. The charge should
The robbers enter the house. In entering be for robbery with homicide only because
through the window, one of the robbers the number of persons killed is immaterial
stepped on a child less than three days old. and does not increase the penalty
The crime is not robbery with infanticide prescribed in Article 294. All the killings are
because there is no such crime. The word merged in the composite integrated whole
homicide as used in defining robbery with that is robbery with homicide so long as the
homicide is used in the generic sense. It killings were by reason or on occasion of
refers to any kind of death. the robbery.
Although it is a crime against property and In another case, a band of robbers entered
treachery is an aggravating circumstance a compound, which is actually a sugar mill.
that applies only to crimes against persons, Within the compound, there were quarters
if the killing in a robbery is committed with of the laborers. They robbed each of the
treachery, the treachery will be considered a quarters. The Supreme Court held that
generic aggravating circumstance because there was only one count of robbery
of the homicide. because when they decided and determined
to rob the compound, they were only
When two or more persons are killed during impelled by one criminal intent to rob.
the robbery, such should be appreciated as
an aggravating circumstance. With more reason, therefore, if in a robbery,
the offender took away property belonging
As long as there is only one robbery, to different owners, as long as the taking
regardless of the persons killed, you only was done at one time, and in one place,
have one crime of robbery with homicide. impelled by the same criminal intent to gain,
Note, however, that “one robbery” does not there would only be one count of robbery.
mean there is only one taking.
In robbery with homicide as a single
Illustration: indivisible offense, it is immaterial who gets
killed. Even though the killing may have
Robbers decided to commit robbery in a resulted from negligence, you will still
house, which turned out to be a boarding designate the crime as robbery with
house. Thus, there were different boarders homicide.
who were offended parties in the robbery.
There is only one count of robbery. If there Illustration:
were killings done to different boarders
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
On the occasion of a robbery, one of the In People v. Domingo, 184 SCRA 409, on
offenders placed his firearm on the table. the occasion of the robbery, the storeowner,
While they were ransacking the place, one a septuagenarian, suffered a stroke due to
of the robbers bumped the table. As a the extreme fear which directly caused his
result, the firearm fell on the floor and death when the robbers pointed their guns
discharged. One of the robbers was the at him. It was held that the crime committed
one killed. Even though the placing of the was robbery with homicide. It is immaterial
firearm on the table where there is no safety that death supervened as a mere accident
precaution taken may be considered as one as long as the homicide was produced by
of negligence or imprudence, you do not reason or on the occasion of the robbery,
separate the homicide as one of the product because it is only the result which matters,
of criminal negligence. It will still be robbery without reference to the circumstances or
with homicide, whether the person killed is causes or persons intervening in the
connected with the robbery or not. He need commission of the crime which must be
not also be in the place of the robbery. considered.
In one case, in the course of the struggle in Remember also that intent to rob must be
a house where the robbery was being proved. But there must be an allegation as
committed, the owner of the place tried to to the robbery not only as to the intention to
wrest the arm of the robber. A person rob.
several meters away was the one who got
killed. The crime was held to be robbery If the motive is to kill and the taking is
with homicide. committed thereafter, the crimes committed
are homicide and theft. If the primordial
Note that the person killed need not be one intent of the offender is to kill and not to rob
who is identified with the owner of the place but after the killing of the victims a robbery
where the robbery is committed or one who was committed, then there are will be two
is a stranger to the robbers. It is enough separate crimes.
that the homicide was committed by reason
of the robbery or on the occasion thereof. Illustration:
and the offender’s prurient desires surfaced. the owner or members of the family of the
They persisted in satisfying their lust. They owner chased them, and they fought back
would have forgotten about their intent to and somebody was killed, the crime would
rob if not for the accidental touching of the still be robbery with homicide. But if serious
victim’s ring and wristwatch. The taking of physical injuries were inflicted and the
the victim’s valuables turned out to be an serious physical injuries rendered the victim
afterthought. It was held that two distinct impotent or insane or the victim lost the use
crimes were committed: rape with homicide of any of his senses or lost a part of his
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 committed even after the robbery was consummated.
robbery because the opportunity presented
itself, two distinct crimes – rape and robbery In Article 299, it is only when the physical
were committed – not robbery with rape. In injuries resulted in the deformity or
the latter, the criminal intent to gain must incapacitated the offended party from labor
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:
will still be robbery with serious physical intimidation upon persons is a separate
injuries. crime from robbery with force upon things.
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 that the
If, during or on the occasion or by reason of offenders had no choice but to detain the
the robbery, a killing, rape or serious victims as hostages in exchange for their
physical injuries took place, there will only safe passage, the detention is absorbed by
be one crime of robbery with homicide the crime of robbery and is not a separate
because all of these – killing, rape, serious crime. This was the ruling in People v.
physical injuries -- are contemplated by law Astor.
as the violence or intimidation which
characterizes the taking as on of robbery.
You charge the offenders of robbery with On robbery with arson
homicide. The rape or physical injuries will
only be appreciated as aggravating Another innovation of Republic Act No.
circumstance and is not the subject of a 7659 is the composite crime of robbery with
separate prosecution. They will only call for arson if arson is committed by reason of or
the imposition of the penalty in the on occasion of the robbery. The composite
maximum period. crime would only be committed if the
primordial intent of the offender is to commit
If on the occasion of the robbery with robber and there is no killing, rape, or
homicide, robbery with force upon things intentional mutilation committed by the
was also committed, you will not have only offender during the robbery. Otherwise, the
one robbery but you will have a complex crime would be robbery with homicide, or
crime of robbery with homicide and robbery robbery with rape, or robbery with
with force upon things (see Napolis v. CA). intentional mutilation, in that order, and the
This is because robbery with violence or arson would only be an aggravating
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Moreover, it should be noted that arson has 1. He was a member of the band;
been made a component only of robbery
with violence against or intimidation of 2. He was present at the commission
persons in said Article 294, but not of of a robbery by that band;
robbery by the use of force upon things in
Articles 299 and 302. 3. The other members of the band
committed an assault;
So, if the robbery was by the use of force
upon things and therewith arson was 4. He did not attempt to prevent the
committed, two distinct crimes are assault.
committed.
b. By breaking any wall, roof or of the property from within the premises, the
floor, or breaking any door or crime will only be theft.
window;
Two predicates that will give rise to the
c. By using false keys, crime as robbery:
picklocks or similar tools; or
1. By mere entering alone, a robbery
d. By using any fictitious name will be committed if any personal
or pretending the exercise of property is taken from within;
public authority.
2. The entering will not give rise to
3. Once inside the building, offender robbery even if something is taken
took personal property belonging to inside. It is the breaking of the
another with intent to gain. receptacle or closet or cabinet where
the personal property is kept that will
give rise to robbery, or the taking of
Elements under subdivision (b): a sealed, locked receptacle to be
broken outside the premises.
1. Offender is inside a dwelling house,
public building, or edifice devoted to If by the mere entering, that would already
religious worship, regardless of the qualify the taking of any personal property
circumstances under which he inside as robbery, it is immaterial whether
entered it; the offender stays inside the premises. The
breaking of things inside the premises will
2. Offender takes personal property only be important to consider if the entering
belonging to another, with intent to by itself will not characterize the crime as
gain, under any of the following robbery with force upon things.
circumstances:
Modes of entering that would give rise to the
a. By the breaking of doors, crime of robbery with force upon things if
wardrobes, chests, or any something is taken inside the premises:
other kind of locked or sealed entering into an opening not intended for
furniture or receptacle; or entrance or egress, under Article 299 (a).
On a sari-sari store, a vehicle bumped the But if it is the door of a cabinet that is
wall. The wall collapsed. There was a broken and the valuable inside the cabinet
small opening there. At night, a man was taken, the breaking of the cabinet door
entered through that opening without would characterize the taking as robbery.
breaking the same. The crime will already Although that particular door is not included
be robbery if he takes property from within as part of the house, the cabinet keeps the
because that is not an opening intended for contents thereof safe.
the purpose.
Use of picklocks or false keys refers to the
Even of there is a breaking of wall, roof, entering into the premises – If the picklock
floor or window, but the offender did not or false key was used not to enter the
enter, it would not give rise to robbery with premises because the offender had already
force upon things. entered but was used to unlock an interior
door or even a receptacle where the
Breaking of the door under Article299 (b) – valuable or personal belonging was taken,
Originally, the interpretation was that in the use of false key or picklock will not give
order that there be a breaking of the door in rise to the robbery with force upon things
contemplation of law, there must be some because these are considered by law as
damage to the door. only a means to gain entrance, and not to
extract personal belongings from the place
Before, if the door was not damaged but where it is being kept.
only the lock attached to the door was
broken, the taking from within is only theft. The law classifies robbery with force upon
But the ruling is now abandoned because things as those committed in:
the door is considered useless without the
lock. Even if it is not the door that was (1) an inhabited place;
broken but only the lock, the breaking of the
lock renders the door useless and it is (2) public buildings;
therefore tantamount to the breaking of the
door. Hence, the taking inside is (3) a place devoted to religious worship.
considered robbery with force upon things.
The law also considers robbery committed
If the entering does not characterize the not in an inhabited house or in a private
taking inside as one of robbery with force building.
upon things, it is the conduct inside that
would give rise to the robbery if there would Note that the manner of committing the
be a breaking of sealed, locked or closed robbery with force upon things is not the
receptacles or cabinet in order to get the same.
personal belongings from within such
receptacles, cabinet or place where it is When the robbery is committed in a house
kept. which is inhabited, or in a public building or
in a place devoted to religious worship, the
If in the course of committing the robbery use of fictitious name or pretension to
within the premises some interior doors are possess authority in order to gain entrance
broken, the taking from inside the room will characterize the taking inside as robbery
where the door leads to will only give rise to with force upon things.
theft. The breaking of doors contemplated in
the law refers to the main door of the house
and not the interior door. Question & Answer
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Under Article 303, if the robbery under 2. The purpose is any of the following:
Article 299 and 302 consists in the taking of
cereals, fruits, or firewood, the penalty a. To commit robbery in the
imposable is lower. highway;
2. Such picklock or similar tools are Article 307. Aiding and Abetting A Band
especially adopted to the of Brigands
commission of robbery;
Elements
3. Offender does not have lawful cause
for such possession. 1. There is a band of brigands;
depredation wherein the unlawful acts are 5. The taking is accomplished without
directed not only against specific, intended the use of violence against or
or preconceived victims, but against any intimidation of persons of force upon
and all prospective victims anywhere on the things.
highway and whoever they may potentially
be.
Fencing under Presidential Decree No.
1612 is a distinct crime from theft and
Article 308. Who Are Liable for Theft robbery. If the participant who profited is
being prosecuted with person who robbed,
Persons liable the person is prosecuted as an accessory.
If he is being prosecuted separately, the
1. Those who with intent to gain, but person who partook of the proceeds is liable
without violence against or for fencing.
intimidation of persons nor force
upon things, take personal property In People v. Judge de Guzman, it was
of another without the latter’s held that fencing is not a continuing offense.
consent; Jurisdiction is with the court of the place
where the personal property subject of the
2. Those who having found lost robbery or theft was possessed, bought,
property, fails to deliver the same to kept, or dealt with. The place where the
the local authorities or to its owner; theft or robbery was committed was
inconsequential.
3. Those who, after having maliciously
damaged the property of another, Since Section 5 of Presidential Decree No.
remove or make use of the fruits or 1612 expressly provides that mere
objects of the damage caused by possession of anything of value which has
them; been subject of theft or robbery shall be
prima facie evidence of fencing, it follows
4. Those who enter an enclosed estate that a possessor of stolen goods is
or a field where trespass is forbidden presumed to have knowledge that the
or which belongs to another and, goods found in his possession after the fact
without the consent of its owner, of theft or robbery has been established.
hunt or fish upon the same or gather The presumption does not offend the
fruits, cereals or other forest or farm presumption of innocence in the
products. fundamental law. This was the ruling in
Pamintuan v. People, decided on July 11,
1994.
Elements
Burden of proof is upon fence to overcome
1. There is taking of personal property; presumption; if explanation insufficient or
unsatisfactory, court will convict. This is a
2. The property taken belongs to malum prohibitum so intent is not material.
another; But if prosecution is under the Revised
Penal Code, as an accessory, the criminal
3. The taking was done with intent to intent is controlling.
gain;
When there is notice to person buying, there
4. The taking was done without the may be fencing such as when the price is
consent of the owner; way below ordinary prices; this may serve
as notice. He may be liable for fencing
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
even if he paid the price because of the penalties provided for theft of large cattle
presumption. under the Revised Penal Code and
amended Article 309 and 310. This is
Cattle Rustling and Qualified Theft of Large explicit from Section 10 of the Presidential
Cattle – The crime of cattle-rustling is Decree. Consequently, the trial court
defined and punished under Presidential should not have convicted the accused of
Decree No. 533, the Anti-Cattle Rustling frustrated murder separately from cattle-
law of 1974, as the taking by any means, rustling, since the former should have been
method or scheme, of any large cattle, with absorbed by cattle-rustling as killing was a
or without intent to gain and whether result of or on the occasion of cattle-rustling.
committed with or without violence against It should only be an aggravating
or intimidation of person or force upon circumstance. But because the information
things, so long as the taking is without the did not allege the injury, the same can no
consent of the owner/breed thereof. The longer be appreciated; the crime should,
crime includes the killing or taking the meat therefore be only, simple cattle-rustling.
or hide of large cattle without the consent of (People v. Martinada, February 13, 1991)
the owner.
Since the intent to gain is not essential, the Article 310. Qualified Theft
killing or destruction of large cattle, even
without taking any part thereof, is not a Theft is qualified if
crime of malicious mischief but cattle-
rustling. 1. Committed by a domestic servant;
The Presidential Decree, however, does not 2. Committed with grave abuse of
supersede the crime of qualified theft of confidence;
large cattle under Article 310 of the Revised
Penal Code, but merely modified the 3. The property stolen is a motor
penalties provided for theft of large cattle vehicle, mail matter, or large cattle;
and, to that extent, amended Articles 309
and 310. Note that the overt act that gives 4. The property stolen consists of
rise to the crime of cattle-rustling is the coconuts taken from the premises of
taking or killing of large cattle. Where the a plantation;
large cattle was not taken, but received by
the offender from the owner/overseer 5. The property stolen is fish taken
thereof, the crime is not cattle-rustling; it is from a fishpond or fishery; or
qualified theft of large cattle.
6. If property is taken on the occasion
Where the large cattle was received by the of fire, earthquake, typhoon, volcanic
offender who thereafter misappropriated it, eruption, or any other calamity,
the crime is qualified theft under Article 310 vehicular accident, or civil
if only physical or material possession disturbance.
thereof was yielded to him. If both material
and juridical possession thereof was yielded
to him who misappropriated the large cattle, Article 311. Theft of the Property of the
the crime would be estafa under Article 315 National Library or National Museum
(1b).
If the property stolen is any property of the
Presidential Decree No. 533 is not a special National Library or of the National Museum
law in the context of Article 10 of the
Revised Penal Code. It merely modified the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 312. Occupation of Real Property that in robbery in Article 294, grave threats
or Usurpation of Real Rights in Property or grave coercion and an incremental
penalty of fine based on the value of the
Acts punished: gain obtained by the offender.
1. Taking possession of any real Therefore, it is not correct to state that the
property belonging to another by threat employed in usurping real property is
means of violence against or absorbed in the crime; otherwise, the
intimidation of persons; additional penalty would be meaningless.
2. Usurping any real rights in property The complainant must be the person upon
belonging to another by means of whom violence was employed. If a tenant
violence against or intimidation of was occupying the property and he was
persons. threatened by the offender, but it was the
owner who was not in possession of the
property who was named as the offended
Elements party, the same may be quashed as it does
not charge an offense. The owner would, at
1. Offender takes possession of any most, be entitled to civil recourse only.
real property or usurps any real
rights in property;
On carnapping and theft of motor vehicle
2. The real property or real rights
belong to another; The taking with intent to gain of a motor
vehicle belonging to another, without the
3. Violence against or intimidation of latter’s consent, or by means of violence or
persons is used by the offender in intimidation of persons, or by using force
occupying real property or usurping upon things is penalized as carnapping
real rights in property; under Republic Act No. 6539 (An Act
Preventing and Penalizing Carnapping),
4. There is intent to gain. as amended. The overt act which is being
punished under this law as carnapping is
also the taking of a motor vehicle under
Use the degree of intimidation to determine circumstances of theft or robbery. If the
the degree of the penalty to be applied for motor vehicle was not taken by the offender
the usurpation. but was delivered by the owner or the
possessor to the offender, who thereafter
Usurpation under Article 312 is committed in misappropriated the same, the crime is
the same way as robbery with violence or either qualified theft under Article 310 of the
intimidation of persons. The main Revised Penal Code or estafa under Article
difference is that in robbery, personal 315 (b) of the Revised Penal Code.
property is involved; while in usurpation of Qualified theft of a motor vehicle is the
real rights, it is real property. (People v. crime if only the material or physical
Judge Alfeche, July 23, 1992) possession was yielded to the offender;
otherwise, if juridical possession was also
Usurpation of real rights and property yielded, the crime is estafa.
should not be complexed using Article 48
when violence or intimidation is committed.
There is only a single crime, but a two-tiered On squatting
penalty is prescribed to be determined on
whether the acts of violence used is akin to
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
According to the Urban Development and This covers the three different ways
Housing Act, the following are squatters: of committing estafa under Article
315; thus, estafa is committed –
1. Those who have the capacity or
means to pay rent or for legitimate a. With unfaithfulness or abuse
housing but are squatting anyway; of confidence;
1. The paper with the signature of the 2. Such postdating or issuing a check
offended party is in blank; was done when the offender had no
funds in the bank, or his funds
2. Offended party delivered it to the deposited therein were not sufficient
offender; to cover the amount of the check.
(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
check is issued not in payment of an drawer, without any valid
obligation. reason, ordered the bank to
stop payment.
It must not be promissory notes, or
guaranties.
B. 1. A person has sufficient funds
Good faith is a defense. in or credit with the drawee
bank when he makes or
If the checks were issued by the defendant draws and issues a check;
and he received money for them, then
stopped payment and did not return the 2. He fails to keep sufficient
money, and he had an intention to stop funds or to maintain a credit
payment when he issued the check, there is to cover the full amount of
estafa. the check if presented within
90 days from the date
Deceit is presumed if the drawer fails to appearing;
deposit the amount necessary to cover the
check within three days from receipt of 3. The check is dishonored by
notice of dishonor or insufficiency of funds the drawee bank.
in the bank.
(2) Estafa under Article 315 (2) (d) is a The drawee must cause to be written or
crime against property while Batas stamped in plain language the reason for
Pambansa Blg. 22 is a crime against the dishonor.
public interest. The gravamen for
the former is the deceit employed, If the drawee bank received an order of
while in the latter, it is the issuance stop-payment from the drawer with no
of the check. Hence, there is no reason, it must be stated that the funds are
double jeopardy. insufficient to be prosecuted here.
(3) In the estafa under Article 315 (2) The unpaid or dishonored check with the
(d), deceit and damage are material, stamped information re: refusal to pay is
while in Batas Pambansa Blg. 22, prima facie evidence of (1) the making or
they are immaterial. issuance of the check; (2) the due
presentment to the drawee for payment &
(4) In estafa under Article 315 (2) (d), the dishonor thereof; and (3) the fact that
knowledge by the drawer of the check was properly dishonored for the
insufficient funds is not required, reason stamped on the check.
while in Batas Pambansa Blg. 22,
knowledge by the drawer of
insufficient funds is reqired. Acts punished under paragraph (e)
Estafa through any of the following from that agreed upon, is a misappropriation
fraudulent means under Article 315 (3) and conversion to the prejudice of the
owner. Conversion is unauthorized
Under paragraph (a) assumption an exercise of the right of
ownership over goods and chattels
1. Offender induced the offended party belonging to another, resulting in the
to sign a document; alteration of their condition or exclusion of
the owner’s rights.
2. Deceit was employed to make him
sign the document; In Allied Bank Corporation v. Secretary
Ordonez, 192 SCRA 246, it was held that
3. Offended party personally signed the under Section 13 of Presidential Decree No.
document; 115, the failure of an entrustee to turn over
the proceeds of sale of the goods covered
4. Prejudice was caused. by the Trust Receipt, or to return said goods
if they are not sold, is punishable as estafa
Article 315 (1) (b).
Under paragraph (b)
Under Batas Pambansa Blg. 22, a drawer But overdraft or credit arrangement may be
must be given notice of dishonor and given allowed by banks as to their preferred
five banking days from notice within which clients and Batas Pambansa Blg. 22 does
to deposit or pay the amount stated in the not apply. If check bounces, it is because
check to negate the presumtion that drawer bank has been remiss in honoring
knew of the insufficiency. After this period, agreement.
it is conclusive that drawer knew of the
insufficiency, thus there is no more defense The check must be presented for payment
to the prosecution under Batas Pambansa within a 90-day period. If presented for
Blg. 22. payment beyond the 90 day period and the
drawer’s funds are insufficient to cover it,
The mere issuance of any kind of check there is no Batas Pambansa Blg. 22
regardless of the intent of the parties, violation.
whether the check is intended to serve
merely as a guarantee or as a deposit, Where check was issued prior to August 8,
makes the drawer liable under Batas 1984, when Circular No. 12 of the
Pambansa Blg. 22 if the check bounces. As Department of the Justice took effect, and
a matter of public policy, the issuance of a the drawer relied on the then prevailing
worthless check is a public nuisance and Circular No. 4 of the Ministry of Justice to
must be abated. the effect that checks issued as part of an
arrangement/agreement of the parties to
In De Villa v. CA, decided April 18, 1991, guarantee or secure fulfillment of an
it was held that under Batas Pambansa Blg. obligation are not covered by Batas
22, there is no distinction as to the kind of Pambansa Blg. 22, no criminal liability
check issued. As long as it is delivered should be incurred by the drawer. Circular
within Philippine territory, the Philippine should not be given retroactive effect.
courts have jurisdiction. Even if the check is (Lazaro v. CA, November 11, 1993, citing
only presented to and dishonored in a People v. Alberto, October 28, 1993)
Philippine bank, Batas Pambansa Blg. 22
applies. This is true in the case of dollar or
foreign currency checks. Where the law Article 316. Other Forms of Swindling
makes no distinction, none should be made.
Under paragraph 1 – By conveying, selling,
In People v. Nitafan, it was held that as encumbering, or mortgaging any real
long as instrument is a check under the property, pretending to be the owner of the
negotiable instrument law, it is covered by same
Batas Pambansa Blg. 22. A memorandum
check is not a promissory note, it is a check Elements
which have the word “memo,” “mem”,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Elements
3. Other cases of arson, under Section All other mischiefs not included in the next
3 of Presidential Decree No. 1613. preceding article
Article 327. Who Are Liable for Malicious Article 330. Damage and Obstruction to
Mischief Means of Communication
Persons exempted from criminal liability 8. White slave trade (Art. 34);
5. Simple seduction (Art. 338); Adultery is a crime not only of the married
woman but also of the man who had
6. Acts of lasciviousness with the intercourse with a married woman knowing
consent of the offended party (Art. her to be married. Even if the man proves
339); later on that he does not know the woman
to be married, at the beginning, he must still
7. Corruption of minors (Art. 340); be included in the complaint or information.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Illustration:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Although in qualified seduction, the age of This crime is committed if the offended
the offended woman is considered, if the woman is single or a widow of good
offended party is a descendant or a sister of reputation, over 12 and under 18 years of
the offender – no matter how old she is or age, the offender has carnal knowledge of
whether she is a prostitute – the crime of her, and the offender resorted to deceit to
qualified seduction is committed. be able to consummate the sexual
intercourse with her.
Illustration:
The offended woman must be under 18 but
If a person goes to a sauna parlor and finds not less than 12 years old; otherwise, the
there a descendant and despite that, had crime is statutory rape.
sexual intercourse with her, regardless of
her reputation or age, the crime of qualified Unlike in qualified seduction, virginity is not
seduction is committed. essential in this crime. What is required is
that the woman be unmarried and of good
In the case of a teacher, it is not necessary reputation. Simple seduction is not
that the offended woman be his student. It synonymous with loss of virginity. If the
is enough that she is enrolled in the same woman is married, the crime will be
school. adultery.
Deceit is not necessary in qualified The failure to comply with the promise of
seduction. Qualified seduction is committed marriage constitutes the deceit mentioned in
even though no deceit intervened or even the law.
when such carnal knowledge was voluntary
on the part of the virgin. This is because in
such a case, the law takes for granted the Article 339. Acts of Lasciviousness with
existence of the deceit as an integral the Consent of the Offender Party
element of the crime and punishes it with
greater severity than it does the simple Elements
seduction, taking into account the abuse of
confidence on the part of the agent. Abuse 1. Offender commits acts of
of confidence here implies fraud. lasciviousness or lewdness;
In order to demonstrate the presence of the complexed with the forcible abduction. This
lewd design, illicit criminal relations with the ruling is no longer the prevailing rule. The
person abducted need not be shown. The view adopted in cases of similar nature is to
intent to seduce a girl is sufficient. the effect that where more than one person
has effected the forcible abduction with
If there is a separation in fact, the taking by rape, all the rapes are just the
the husband of his wife against her will consummation of the lewd design which
constitutes grave coercion. characterizes the forcible abduction and,
therefore, there should only be one forcible
Distinction between forcible abduction and abduction with rape.
illegal detention:
In the crimes involving rape, abduction,
When a woman is kidnapped with lewd or seduction, and acts of lasciviousness, the
unchaste designs, the crime committed is marriage by the offender with the offended
forcible abduction. woman generally extinguishes criminal
liability, not only of the principal but also of
When the kidnapping is without lewd the accomplice and accessory. However,
designs, the crime committed is illegal the mere fact of marriage is not enough
detention. because it is already decided that if the
offender marries the offended woman
But where the offended party was forcibly without any intention to perform the duties
taken to the house of the defendant to of a husband as shown by the fact that after
coerce her to marry him, it was held that the marriage, he already left her, the
only grave coercion was committed and not marriage would appear as having been
illegal detention. contracted only to avoid the punishment.
Even with that marriage, the offended
woman could still prosecute the offender
Article 343. Consented Abduction and that marriage will not have the effect of
extinguishing the criminal liability.
Elements
Pardon by the offended woman of the
1. Offended party is a virgin; offender is not a manner of extinguishing
criminal liability but only a bar to the
2. She is over 12 and under 18 years prosecution of the offender. Therefore, that
of age; pardon must come before the prosecution is
commenced. While the prosecution is
3. Offender takes her away with her already commenced or initiated, pardon by
consent, after solicitation or cajolery; the offended woman will no longer be
effective because pardon may preclude
4. The taking away is with lewd prosecution but not prevent the same.
designs.
All these private crimes – except rape –
cannot be prosecuted de officio. If any
Where several persons participated in the slander or written defamation is made out of
forcible abduction and these persons also any of these crimes, the complaint of the
raped the offended woman, the original offended party is till necessary before such
ruling in the case of People v. Jose is that case for libel or oral defamation may
there would be one count of forcible proceed. It will not prosper because the
abduction with rape and then each of them court cannot acquire jurisdiction over these
will answer for his own rape and the rape of crimes unless there is a complaint from the
the others minus the first rape which was offended party. The paramount decision of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
preserve the inheritance of her child by a spouse is absent, the absent spouse
former marriage, what then is the crime could not yet be presumed dead
committed? according to the Civil Code;
This crime is committed when a person The second marriage must have all the
represents himself to be another and essential requisites for validity were it not for
assumes the filiation or the parental or the existence of the first marriage.
conjugal rights of such another person.
A judicial declaration of the nullity of a
marriage, that is, that the marriage was void
Thus, where a person impersonates another ab initio, is now required.
and assumes the latter's right as the son of
wealthy parents, the former commits a One convicted of bigamy may also be
violation of this article. prosecuted for concubinage as both are
distinct offenses. The first is an offense
The term "civil status" includes one's public against civil status, which may be
station, or the rights, duties, capacities and prosecuted at the instance of the state; the
incapacities which determine a person to a second is an offense against chastity, and
given class. It seems that the term "civil may be prosecuted only at the instance of
status" includes one's profession. the offended party. The test is not whether
the defendant has already been tried for the
same act, but whether he has been put in
Article 349. Bigamy jeopardy for the same offense.
2. Threatening to publish and offer to Malice in fact is the malice which the law
prevent such publication for a presumes from every statement whose
compensation (Art. 356); tenor is defamatory. It does not need proof.
The mere fact that the utterance or
3. Prohibited publication of acts statement is defamatory negates a legal
referred to in the course of official presumption of malice.
proceedings (Art. 357);
In the crime of libel, which includes oral
4. Slander (Art. 358); defamation, there is no need for the
prosecution to present evidence of malice.
5. Slander by deed (Art. 359); It is enough that the alleged defamatory or
libelous statement be presented to the court
6. Incriminating innocent person (Art. verbatim. It is the court which will prove
363); whether it is defamatory or not. If the tenor
of the utterance or statement is defamatory,
7. Intriguing against honor (Art. 364). the legal presumption of malice arises even
without proof.
Article 353. Definition of Libel Malice in fact becomes necessary only if the
malice in law has been rebutted.
A libel is a public and malicious imputation Otherwise, there is no need to adduce
of a crime, or of a vice or defect, real or evidence of malice in fact. So, while malice
imaginary, or any act, omission, condition, in law does not require evidence, malice in
status, or circumstances tending to cause fact requires evidence.
the dishonor, discredit, or contempt of a
natural or juridical person, or to blacken the Malice in law can be negated by evidence
memory of one who is dead. that, in fact, the alleged libelous or
defamatory utterance was made with good
Elements: motives and justifiable ends or by the fact
that the utterance was privileged in
1. There must be an imputation of a character.
crime, or of a vice or defect, real or
imaginary, or any act, omission, In law, however, the privileged character of
condition, status, or circumstance; a defamatory statement may be absolute or
qualified.
2. The imputation must be made
publicly; When the privileged character is said to be
absolute, the statement will not be
3. It must be malicious; actionable whether criminal or civil because
that means the law does not allow
4. The imputation must be directed at a prosecution on an action based thereon.
natural or juridical person, or one
who is dead; Illustration:
will be admitted to take the place of malice “innuendos may also be a basis for
in law. When the defamatory statement or prosecution for libel. As a matter of fact,
utterance is qualifiedly privileged, the malice even a compliment which is undeserved,
in law is negated. The utterance or has been held to be libelous.
statement would not be actionable because
malice in law does not exist. Therefore, for The crime is libel is the defamation is in
the complainant to prosecute the accused writing or printed media.
for libel, oral defamation or slander, he has
to prove that the accused was actuated with The crime is slander or oral defamation if it
malice (malice in fact) in making the is not printed.
statement.
Even if what was imputed is true, the crime
When a libel is addressed to several of libel is committed unless one acted with
persons, unless they are identified in the good motives or justifiable end. Poof of
same libel, even if there are several persons truth of a defamatory imputation is not even
offended by the libelous utterance or admissible in evidence, unless what was
statement, there will only be one count of imputed pertains to an act which constitutes
libel. a crime and when the person to whom the
imputation was made is a public officer and
If the offended parties in the libel were the imputation pertains to the performance
distinctly identified, even though the libel of official duty. Other than these, the
was committed at one and the same time, imputation is not admissible.
there will be as many libels as there are
persons dishonored.
When proof of truth is admissible
Illustration:
1. When the act or omission imputed
If a person uttered that “All the Marcoses constitutes a crime regardless of
are thieves," there will only be one libel whether the offended party is a
because these particular Marcoses private individual or a public officer;
regarded as thieves are not specifically
identified. 2. When the offended party is a
government employee, even if the
If the offender said, “All the Marcoses – the act or omission imputed does not
father, mother and daughter are thieves.” constitute a crime, provided if its
There will be three counts of libel because related to the discharged of his
each person libeled is distinctly dishonored. official duties.
If a crime is a private crime, it cannot be the crime – hush money. (US v. Eguia, et
prosecuted de officio. A complaint from the al., 38 Phil. 857) Blackmail is possible in
offended party is necessary. (1) light threats under Article 283; and (2)
threatening to publish, or offering to prevent
the publication of, a libel for compensation,
Article 355. Libel by Means of Writings under Article 356.
or Similar Means
2. Printing; Elements
Two kinds of slander by deed As far as this crime is concerned, this has
been interpreted to be possible only in the
1. Simple slander by deed; and so-called planting of evidence.