Elements and Notes in Criminal Law Book II by RENE CALLANTA and ORTEGATITLE ONECRIMES AGAINST

NATIONAL SECURITYCrimes against national security1.Treason (Art. 114); 2.Conspiracy and proposal to
commit treason (Art. 115); 3.Misprision of treason (Art. 116); and 4.Espionage (Art. 117). Crimes against the
law of nations1.Inciting to war or giving motives for reprisals (Art. 118); 2.Violation of neutrality (Art. 119);
3.Corresponding with hostile country (Art. 120); 4.Flight to enemy's country (Art. 121); and 5.Piracy in general
and mutiny on the high seas (Art. 122). The crimes under this title can be prosecuted even if the criminal act or acts
were committedoutside the Philippine territorial jurisdiction. However, prosecution can proceed only if the offenderis within
Philippine territory or brought to the Philippines pursuant to an extradition treaty. This isone of the instances where the
Revised Penal Code may be given extra-territorial applicationunder Article 2 (5) thereof. In the case of crimes against the
law of nations, the offender can beprosecuted whenever he may be found because the crimes are regarded as committed
againsthumanity in general.Article 114TREASONELEMENTS:a.That the offender owes allegiance to the
Government of the Philippines b.That there is a war in which the Philippines is involved c.That the offender
either – 1)Levies war against the government, 1.breech of allegiance 2.actual assembling of men 3.for the
purpose of executing a treasonable design 2)Adheres to the enemies, giving them aid and comfort 1.breech of
allegiance 2.adherence 3.giving aid or comfort to the enemy Requirements of levying war1)Actual assembling of
men; 2)To execute a treasonable design by force; 3)Intent is to deliver the country in whole or in part to the enemy; and
4)Collaboration with foreign enemy or some foreign sovereign 1

2 / 238
Success is not important. What matters is the actual assembly of men andthe execution of treasonable design
by force.·Ways of proving treason: a. 2 witnesses testifying to same overt act The testimonies must refer to the
same act, place and moment of time. Treason cannotbe proved by circumstantial evidence or by extrajudicial
confession.Example: X saw arms landed in La Union and loaded into a motor vehicle. At thisstage, not
sufficient to convict yet. Y later saw the arms unloaded in awarehouse. Will X + Y be sufficient
witnesses to convict? Answer: NO. Becausethe law requires that 2 witnesses see the SAME OVERT ACT. b.
Confession of the accused in open court.Arraignment, pre-trial, trial – OK.1.If he has pleaded NOT guilty
already during arraignment, he can still confessin open court by stating the particular acts constituting treason.
2.During trial, simply saying “I’m guilty” is not enough. 3.Withdrawing plea of “not guilty” during arraignment not
necessary 4.If during arraignment he pleads guilty, court will ask if the accusedunderstands is
plea. Submission of affidavit during trial, even if assisted bycounsel is not enough. ·Treason: breach of
allegiance to the government, committed by a person who owesallegiance to it. Allegiance: obligation of fidelity
and obedience. It is permanent ortemporary depending on whether the person is a citizen or an alien. ·Evident
premeditation, superior strength and treachery are circumstances inherent intreason, and are, therefore, not
aggravating. ·Treason cannot be committed in times of peace, only in times of war – actualhostilities. But
no need for declaration of war ·Not Treasonous: a.Acceptance of public office and discharge of official duties
under the enemydoes not constitute per se the felony of treason (exception: when it is policydetermining)
b.Serving in a puppet government (ministerial functions) and in order to servethe populace is NOT treasonous.
But it is treason if: a) there is discretioninvolved; b) inflicts harm on Filipinos; c) it is disadvantageous to
them. c.Purpose of offender: to deliver the Philippines to enemy country; if merely tochange officials – not
treason ·On Citizenship a.Filipino citizens can commit treason outside the Philippines. But that of analien must
be committed in the Philippines. b.Only Filipino citizens or permanent resident aliens can be held liable c.Alien:
with permanent resident status from the BID – it is neither the length ofstay in the Philippines nor the marriage
with a Filipino that matters. 2

3 / 238
·Actual hostilities may determine the date of the commencement of war ·No such thing as attempted treason;
mere attempt consummates the crime ·Giving aid or comfort – material element, enhances forces of the enemy
country.Acts which strengthen or tend to strengthen the enemy in the conduct of war against the traitor’s
country or that which weaken and tend to weaken the power of the same.Example: Financing arms
procurement of enemy country. But giving of shelter is notnecessarily “giving aid and comfort.”·Adherence and
giving aid or comfort must concur together.·Adherence: when a citizen intellectually or emotionally
favors the enemy andharbors convictions disloyal to his country’s policy. But membership in the policeforce
during the occupation is NOT treason. Example: Giving information to, or commandeering foodstuffs for the
enemy.·Adherence may be proved by: (1) one witness; (2) from the nature of the act itself;(3) from the
circumstances surrounding the act. When this adherence or sympathies are converted into aid and comfort,
only then theytake material forM. This material form is now what is made punishable. It is usuallymanifested by
the offender in giving information, commandeering foodstuffs, serving asspy and supplying the enemy with war
materials.·Treason is a CONTINUING CRIME. Even after the war, offender can be prosecuted.Treason is a
continuing offense. It can be committed by a single act or by a series ofacts. It can be committed in one single
time or at different times and only one criminalintent. In construing the provisions relating to the commission of
several acts, the samemust be done in pursuance or furtherance of the act of treason.No matter how many
acts of treason are committed by the offender, he will be liable foronly one crime of treason. ·If you convict a
person for treason by reason of irresistible force or uncontrollablefear, you may use Art.12. No treason through
negligenceIn the imposition of the penalty for the crime of treason, the court may disregard thepresence of
mitigating and aggravating circumstances. It may consider only the number,nature and gravity of the acts
established during the trial. The imposition of the penaltyrests largely on the exercise of judicial
discretion.Defenses that may be availed of by the accused.1.Duress or uncontrollable fear of immediate death;
and 2.Lawful obedience to a de facto government. ·When killings and other common crimes are charged as
overt act of treason, theycannot be regarded as (1) separate crimes or (2) as complex with treason. ·In the act
of levying war or giving aid or comfort to the enemy, murder, robbery, arson or falsification may be committed
by the offender. BUT the offender does not commit the crime of treason complexed with common crimes
because such crimes are inherent to treason, being an indispensable element of the same.3

4 / 238
Treason distinguished from Rebellion.The manner in which both crimes are committed in the same.
Intreasonhowever, the purpose of the offender is to deliver the government to the enemy countryor to a foreign
power. In rebellion, the purpose of the rebelsis to substitute the government with their own form of government.
No foreign power isinvolved.Treason distinguished from Sedition.In treason, the offender repudiates his
allegiance to the government by means of forceor intimidation. He does not recognize the supreme authority of
the State. He violates hisallegiance by fighting the forces of the duly constituted authorities.In sedition, the
offender disagrees with certain policies of the State and seeks to disturbpublic peace by raising a commotion or
public uprising.Article 115CONSPIRACY TO COMMIT TREASON·ELEMENTS: a.In time of war b.2 or more
persons come to an agreement to 1.levy war against the government, or 2.adhere to the enemies and to give
them aid or comfort, c.They decide to commit it ·ELEMENTS OF PROPOSAL TO COMMIT TREASON a.In
time of war b.A person who has decided to levy war against the government, or toadhere to the enemies and to
give them aid or comfort, proposes itsexecution to some other person/s. ·Mere agreement and decisions to
commit treason is punishable ·Mere proposal even without acceptance is punishable too. If the other accepts, it
isalready conspiracy. While Treason as a crime should be established by the two-witness rule, the same is
notobserved when the crime committed conspiracy to commit treason or when it is only aproposal to commit
treason.4

5 / 238
Article 116MISPRISION OF TREASON·ELEMENTS: a.That the offender must be owing allegiance to the government,
and not a foreigner b.That he has knowledge of any conspiracy (to commit treason) against thegovernment c.That
he conceals or does not disclose and make known the same as soon aspossible to the governor or fiscal of the province or the
mayor or fiscal of the city in which he residesWhile in treason, even aliens can commit said crime because of the
amendment to the article, nosuch amendment was made in misprision of treason. Misprision of treason is a crime that
maybe committed only by citizens of the Philippines .·Offender is punished as an accessory to the crime of treason
Take note that the offender is a principal to the crime of misprision of treason, yet he ispenalized only as an
accessory. In the imposition of the penalty, the court is not boundby the provisions of Article 63 and 64,
referring to indivisible penalties. In the presence ofmitigating and aggravating circumstances, the offender is
punished two degrees lowerthan the penalty for the crime of treason. The criminal liability arises if the treasonous
activity was still at the conspiratorial stage·This crime does not apply if the crime of treason is already committed
·Crime of omission This is a felony by omission although committed with dolo, not with culpa.·“To report within a
reasonable time” – depends on time, place and circumstance– the RPC did not fix time. ·RPC states 4
individuals, what if you report to some other high-ranking governmentofficial? Ex. PNP Director? Judge
Pimentel says any gov’t official of the DILG is OK. Whether the conspirators are parents or children, and the ones who
learn the conspiracy is aparent or child, they are required to report the same. The reason is that although blood is
thickerthan water so to speak, when it comes to security of the state, blood relationship is alwayssubservient to national
security. Article 20 does not apply here because the persons found liablefor this crime are not considered accessories; they
are treated as principals.Article 117.Espionage by entering, without authority therefor, warship, fort, or naval
ormilitary establishments or reservation to obtain any information, plans,photographs or other
data of a confidential nature relative to the defense ofthe Philippines. ·ELEMENTS: a.1. That the offender
enters any of the places mentioned therein 2. That he has no authority therefore; b.That his purpose is to
obtain information, plans, photographs or other dataof a confidential nature relative to the defense of the
Philippines

Show more (233 Page)

Download now (238 Page)

Full text
(1)
Elements and Notes in Criminal Law Book II by RENE CALLANTA and
ORTEGA TITLE ONE

CRIMES AGAINST NATIONAL SECURITY

Crimes against national security
1. Treason (Art. 114);
2. Conspiracy and proposal to commit treason (Art. 115); 3. Misprision of treason (Art.
116); and
4. Espionage (Art. 117).
Crimes against the law of nations
1. Inciting to war or giving motives for reprisals (Art. 118); 2. Violation of neutrality (Art.
119);
3. Corresponding with hostile country (Art. 120); 4. Flight to enemy's country (Art. 121);
and
5. Piracy in general and mutiny on the high seas (Art. 122).
The crimes under this title can be prosecuted even if the criminal act or acts were
committed outside the Philippine territorial jurisdiction. However, prosecution can
proceed only if the offender is within Philippine territory or brought to the Philippines
pursuant to an extradition treaty. This is one of the instances where the Revised Penal
Code may be given extra-territorial application under Article 2 (5) thereof. In the case of
crimes against the law of nations, the offender can be prosecuted whenever he may be
found because the crimes are regarded as committed against humanity in general.

Article 114
TREASON
ELEMENTS:
a. That the offender owes allegiance to the Government of the Philippines  b. That
there is a war in which the Philippines is involved
c. That the offender either –
1) Levies war against the government,  1. breech of allegiance
2. actual assembling of men
3. for the purpose of executing a treasonable design 2) Adheres to the enemies,
giving them aid and comfort
1. breech of allegiance 2. adherence
3. giving aid or comfort to the enemy Requirements of levying war
1) Actual assembling of men;
2) To execute a treasonable design by force;
3) Intent is to deliver the country in whole or in part to the enemy; and 4) Collaboration
with foreign enemy or some foreign sovereign
(2)
Success is not important. What matters is the actual assembly of men and the  execution
of treasonable design by force.
· Ways of proving treason:
a. 2 witnesses testifying to same overt act
The testimonies must refer to the same act, place and moment of time. Treason cannot
be proved by circumstantial evidence or by extrajudicial confession.
Example: X saw arms landed in La Union and loaded into a motor vehicle. At this stage,
not sufficient to convict yet. Y later saw the arms unloaded in a warehouse. Will X + Y be
sufficient witnesses to convict? Answer: NO. Because the law requires that 2 witnesses
see the SAME OVERT ACT.

b.
Confession of the accused in open court. Arraignment, pre-trial, trial – OK.
1. If he has pleaded NOT guilty already during arraignment, he can still confess in open
court by stating the particular acts constituting treason.
2. During trial, simply saying “I’m guilty” is not enough.
3. Withdrawing plea of “not guilty” during arraignment not necessary
4. If during arraignment he pleads guilty, court will ask if the accused understands is
plea. Submission of affidavit during trial, even if assisted by counsel is not enough.
· Treason: breach of allegiance to the government, committed by a person who
owes allegiance to it. Allegiance: obligation of fidelity and obedience. It is permanent or
temporary depending on whether the person is a citizen or an alien.
· Evident premeditation, superior strength and treachery are circumstances inherent
in treason, and are, therefore, not aggravating.
· Treason cannot be committed in times of peace, only in times of war – actual hostilities.
But no need for declaration of war
· Not Treasonous:
a. Acceptance of public office and discharge of official duties under the enemy does not
constitute per se the felony of treason (exception: when it is policy determining)
b. Serving in a puppet government (ministerial functions) and in order to serve the
populace is NOT treasonous. But it is treason if: a) there is discretion involved; b) inflicts
harm on Filipinos; c) it is disadvantageous to them.
c. Purpose of offender: to deliver the Philippines to enemy country; if merely to change
officials – not treason
· On Citizenship
a. Filipino citizens can commit treason outside the Philippines. But that of an alien must
be committed in the Philippines.
b. Only Filipino citizens or permanent resident aliens can be held liable
c. Alien: with permanent resident status from the BID – it is neither the length
of stay in the Philippines nor the marriage with a Filipino that matters.
(3)

·
Actual hostilities may determine the date of the commencement of war
·
No such thing as attempted treason; mere attempt consummates the crime

·
Giving aid or comfort – material element, enhances forces of the enemy
country.  Acts which strengthen or tend to strengthen the enemy in the conduct of war
against the traitor’s country or that which weaken and tend to weaken the power of the
same.
Example: Financing arms procurement of enemy country. But giving of shelter is
not  necessarily “giving aid and comfort.”
· Adherence and giving aid or comfort must concur together.
· Adherence: when a citizen intellectually or emotionally favors the enemy
and harbors convictions disloyal to his country’s policy. But membership in the police
force during the occupation is NOT treason.
Example: Giving information to, or commandeering foodstuffs for the enemy.

·
Adherence may be proved by: (1) one witness; (2) from the nature of the act
itself; (3) from the circumstances surrounding the act.
When this adherence or sympathies are converted into aid and comfort, only then they
take material forM. This material form is now what is made punishable. It is usually
manifested by the offender in giving information, commandeering foodstuffs, serving as
spy and supplying the enemy with war materials.

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

·
If you convict a person for treason by reason of irresistible force or uncontrollable fear,
you may use Art.12. No treason through negligence
In the imposition of the penalty for the crime of treason, the court may disregard the
presence of mitigating and aggravating circumstances. It may consider only the number,
nature and gravity of the acts established during the trial. The imposition of the penalty
rests largely on the exercise of judicial discretion.
Defenses that may be availed of by the accused. 1. Duress or uncontrollable fear of
immediate death; and 2. Lawful obedience to a de facto government.
· When killings and other common crimes are charged as overt act of treason,
they cannot be regarded as (1) separate crimes or (2) as complex with treason.

·
In the act of levying war or giving aid or comfort to the enemy, murder, robbery, arson
or falsification may be committed by the offender. BUT the offender does not commit
the crime of treason complexed with common crimes because such crimes are inherent
to treason, being an indispensable element of the same.
(4)
Treason distinguished from Rebellion.
The manner in which both crimes are committed in the same. In treason
however, the purpose of the offender is to deliver the government to the enemy
country or to a foreign power. In rebellion, the purpose of the rebels
is to substitute the government with their own form of government. No foreign power is
involved.
Treason distinguished from Sedition.
In treason, the offender repudiates his allegiance to the government by means of
force or intimidation. He does not recognize the supreme authority of the State. He
violates his allegiance by fighting the forces of the duly constituted authorities.
In sedition, the offender disagrees with certain policies of the State and seeks to
disturb public peace by raising a commotion or public uprising.

Article 115

CONSPIRACY TO COMMIT TREASON

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

ELEMENTS OF PROPOSAL TO COMMIT TREASON

a. In time of war
b. A person who has decided to levy war against the government, or to adhere to
the enemies and to give them aid or comfort, proposes its execution to some other
person/s.
· Mere agreement and decisions to commit treason is punishable
· Mere proposal even without acceptance is punishable too. If the other accepts, it is
already conspiracy.
While Treason as a crime should be established by the two-witness rule, the same is not
observed when the crime committed conspiracy to commit treason or when it is only a
proposal to commit treason.
(5)

Article 116
MISPRISION OF TREASON
· ELEMENTS:
a. That the offender must be owing allegiance to the government, and not a
foreigner  b. That he has knowledge of any conspiracy (to commit treason) against
the
government
c. That he conceals or does not disclose and make known the same as soon
as possible to the governor or fiscal of the province or the mayor or fiscal of the
city in  which he resides
While in treason, even aliens can commit said crime because of the amendment to the
article, no such amendment was made in misprision of treason. Misprision of treason is a
crime that may be committed only by citizens of the Philippines

.
· Offender is punished as an accessory to the crime of treason
Take note that the offender is a principal to the crime of misprision of treason, yet he is
penalized only as an accessory. In the imposition of the penalty, the court is not bound
by the provisions of Article 63 and 64, referring to indivisible penalties. In the presence
of mitigating and aggravating circumstances, the offender is punished two degrees
lower than the penalty for the crime of treason.
The criminal liability arises if the treasonous activity was still at the conspiratorial stage ·
This crime does not apply if the crime of treason is already committed · Crime of
omission
This is a felony by omission although committed with dolo, not with culpa

.
· “To report within a reasonable time” – depends on time, place and circumstance – the
RPC did not fix time.
· RPC states 4 individuals, what if you report to some other high-ranking government
official? Ex. PNP Director? Judge Pimentel says any gov’t official of the DILG is
OK. Whether the conspirators are parents or children, and the ones who learn the
conspiracy is a parent or child, they are required to report the same. The reason is that
although blood is thicker than water so to speak, when it comes to security of the state,
blood relationship is always subservient to national security. Article 20 does not apply
here because the persons found liable for this crime are not considered accessories; they
are treated as principals.

Article 117.

Espionage by entering, without authority therefor,

warship, fort, or naval or

military establishments or reservation to obtain any

information, plans,

photographs or other data of a confidential nature

relative to the defense of

the Philippines.
· ELEMENTS:
a. 1. That the offender enters any of the places mentioned therein  2. That he has
no authority therefore;
b. That his purpose is to obtain information, plans, photographs or other data of a
confidential nature relative to the defense of the Philippines
(6)
Under the first mode of committing espionage, the offender must have the intention to
obtain information relative to the defense of the PHIL. It is sufficient that he entered the
prohibited premises. Here, the offender is any private individual, whether an alien or a
citizen of the Philippines, or a public officer.

Espionage by disclosing to the representative of a

foreign nation the
contents of the articles, data, or information referred
to in paragraph 1 of

Article 117, which he had in his possession by reason

of the public office

holds
ELEMENTS:
a. That the offender is a public officer
b. That he has in his possession the articles, data or information referred to in par
1 of art 117, by reason of the public office he holds
c. That he discloses their contents to a representative of a foreign nation

·
Purpose: to gather data
Under the second mode, the offender must be a public officer who has in possession
the articles, data or information by reason of the office he holds. Taking advantage of
his official position, he reveals or discloses the information which are confidential and
are relevant to the defense of the Philippines.

·
Espionage: the offense of gathering, transmitting, or losing information
respecting the national defense with the intent or reason to believe that the
information is to be used to the injury of the Philippines or the advantage of any foreign
nation. It is not conditioned on citizenship.

·
Not necessary that Philippines is at war with the country to which the information was
revealed. What is important is that the information related is connected with the
defense system of the Philippines.
·
Wiretapping is NOT espionage if the purpose is not something connected with the defense
Commonwealth Act No. 616 – An Act to Punish Espionage and Other
Offenses against National Security
Acts punished
1. Unlawfully obtaining or permitting to be obtained information affecting national
defense; 2. Unlawful disclosing of information affecting national defense;
3. Disloyal acts or words in times of peace; 4. Disloyal acts or words in times of war; 5.
Conspiracy to violate preceding sections; 6. Harboring or concealing violators of law.
and 7. Photographing vital military information
(7)

CRIMES AGAINST LAWS OF NATIONS

In crimes against the law of nations, the offenders can be prosecuted anywhere in the
world  because these crimes are considered as against humanity in general, like piracy
and mutiny.  Crimes against national security can be tried only in the Philippines, as there
is a need to  bring the offender here before he can be made to suffer the consequences of
the law. The  acts against national security may be committed abroad and still be
punishable under our law, but it can not be tried under foreign law.

Article 118

INCITING TO WAR OR GIVING MOTIVES FOR

REPRISALS

·
ELEMENTS:
a. That the offender performs unlawful or unauthorized acts
b. That such acts provoke or give occasion for a war involving or liable to involve
the Philippines or expose Filipino citizens to reprisals on their persons or property

·
Crime is committed in time of peace, intent is immaterial
·
Inciting to war – offender is any person

·
Reprisals is not limited to military action, it could be economic reprisals, or denial of entry
into their country.
Example. X burns Chinese flag. If China bans the entry of Filipinos into China, that
is  already reprisal.

Article 119

VIOLATION OF NEUTRALITY
ELEMENTS:
a. That there is war in which the Philippines is not involved
b. That there is a regulation issued by competent authority for the purpose
of enforcing neutrality
c. That the offender violates such regulation
· Gov’t must have declared the neutrality of the Phil in a war between 2 other countries
The regulation must be issued by a competent authority like the President of the
Philippines or the Chief of Staff of the Armed Forces of the Philippines, during a war
between different countries in which the Philippines is not taking sides.
· It is neutrality of the Phil that is violated · Congress has the right to declare neutrality
The violations can be done either by means of dolo or by means of culpa. So violation
of neutrality can be committed through reckless imprudence.
Article 120

CORRESPONDENCE WITH HOSTILE COUNTRY

ELEMENTS:
a. That it is in time of war in which the Philippines is involved
b. That the offender makes correspondence with an enemy country or territory
occupied by enemy troops
(8)
1. prohibited by the government, or
2. carried on in ciphers or conventional signs, or
3. containing notice or information which might be useful to the
enemy  · Circumstances qualifying the offense:
1 a. notice or information might be useful to the enemy b. offender intended to aid the
enemy

·
Hostile country exist only during hostilities or after the declaration of war

·
Correspondence to enemy country – correspondence to officials of enemy country –
even if related to you.

·
It is not correspondence with private individual in enemy country
·
If ciphers were used, no need for prohibition
·
If ciphers were not used, there is a need for prohibition

·
In any case, it must be correspondence with the enemy country

·
Doesn’t matter if correspondence contains innocent matters – if prohibited, punishable

Article 121

FLIGHT TO ENEMY’S COUNTRY

· ELEMENTS
a. That there is a war in which the Philippines is involved
b. That the offender (Filipino or resident alien) must be owing allegiance to the
government
c. That the offender attempts to flee or go to enemy country
d. That going to enemy country is prohibited by competent authority  · Mere
attempt consummates the crime
· There must be a prohibition. If none, even if went to enemy country – no violation ·
Alien resident may be guilty here.

Article 122

PIRACY
· 2 Ways of Committing Piracy
a. By attacking or seizing a vessel on the high seas or in the Philippine waters (PD 532)
b. By seizing the whole or part of the cargo of said vehicles, its equipment or personal
belongings of its complement or passengers
(9)
a. That a vessel is on the high seas/Philippine waters
b. That the offenders are not members of its complement or passengers of
the vessel
c. That the offenders –
1. attack or seize that vessel or (hence, if committed by crew or passengers, the
crime is not piracy but robbery in the high seas)
2. seize the whole or part of the cargo of said vessel, its equipment or personal
belongings of its complement or passengers
· High seas: any waters on the sea coast which are without the boundaries of
the low water mark although such waters may be in the jurisdictional limits of a
foreign gov’t
· Piracy in high seas – jurisdiction is with any court where offenders are found
or arrested
· Piracy in internal waters – jurisdiction is only with Philippine courts  · For purpose
of Anti-Fencing Law, piracy is part of robbery and theft
Piracy Mutiny
Robbery or forcible degradation on the Unlawful resistance to a superior officer, or high
seas, without lawful authority and the raising of commotion and disturbances done with
animo lucrandi and in the on board a ship against the authority of its spirit and intention
of universal hostility. commander
Intent to gain is an element. No criminal intent Attack from outside. Offenders are
Attack from the inside. strangers to the vessel.
· under the amended article, piracy can only be committed by a person who is not
a passenger nor member of the complement of the vessel irrespective of venue. So
if a
passenger or complement of the vessel commits acts of robbery in the high seas,
the
crime is robbery, not piracy.  · If in the Phil. waters still piracy
However, despite the amendment, P.D. No. 532 may still apply where the offender is not
stranger to the vessel since it provides: “Any attack upon or seize of any vessel, or the
taking away of the whole of part thereof or its cargo, equipment or the
personal belongings of its complement or passengers, irrespective of the value hereof,
by means of violence against or intimidation of persons or force upon things,
committed by any person,
including a passenger or member of the complement of said
vessel,  in  Philippine waters, shall be considered as piracy. The offenders shall be
considered as pirates and punished as hereinafter provided.” After all, under the Revised
Penal Code, for one to be called a pirate, the offender must be a stranger to the vessel.
· While the Article 122 limits the offenders to non-passengers or non-members of the
crew, P.D. 532 states that the attack upon or seizure of any vessel, or taking away the
whole or part thereof or its cargo, equipment or personal belongings of its complement
or passengers committed by any person including a passenger or member of the
complement of said vessel shall be considered Piracy.
Note, however, that in Section 4 of Presidential Decree No. 532, the act of aiding pirates
or abetting piracy is penalized as a crime distinct from piracy. Said section penalizes any
person who knowingly and in any manner aids or protects pirates, such as giving them
information about the movement of the police or other peace officers of the government,
or acquires or receives property taken by such pirates, or in any manner derives any
benefit therefrom; or who directly or indirectly abets the commission of piracy. Also, it is
expressly provided in the same section that
(10)
the offender shall be considered as an accomplice of the principal offenders and punished
in accordance with the Revised Penal Code. This provision of Presidential Decree No. 532
with respect to piracy in Philippine water has not been incorporated in the Revised Penal
Code. Neither may it be considered repealed by Republic Act No. 7659 since there is
nothing in the amendatory law is inconsistent with said section. Apparently, there is still
the crime of abetting piracy in Philippine waters under Presidential Decree No. 532.
Considering that the essence of piracy is one of robbery, any taking in a vessel with force
upon things or with violence or intimidation against person is employed will always be
piracy. It cannot co-exist with the crime of robbery. Robbery, therefore, cannot be
committed on board a vessel. But if the taking is without violence or intimidation on
persons or force upon things, the crime of piracy cannot be committed, but only theft.
Elements of mutiny
1) The vessel is on the high seas or Philippine waters;
2) Offenders are either members of its complement, or passengers of the vessel;  3)
Offenders either –
a. attack or seize the vessel; or
b. seize the whole or part of the cargo, its equipment, or personal belongings of
the crew or passengers.
Mutiny is the unlawful resistance to a superior officer, or the raising of
commotions and  disturbances aboard a ship against the authority of its commander.
Questions & Answers
Could theft be committed on board a vessel? Yes. The essence of piracy is one of
robbery. Distinction between mutiny and piracy
(1) As to offenders
Mutiny is committed by members of the complement or the passengers of the vessel.
Piracy is committed by persons who are not members of the complement or the
passengers of the vessel.
(2) As to criminal intent
In mutiny, there is no criminal intent.
In piracy, the criminal intent is for gain.

Article 123

QUALIFIED PIRACY
· QUALIFYING CIRCUMSTANCES:
(11)
b. Whenever the pirates have abandoned their victims without means of saving
themselves
c. Whenever the crime is accompanied by murder, homicide, physical injuries, or
rape. (the above may result to qualified mutiny)
Murder, rape, homicide, physical injuries are mere circumstances qualifying piracy and
cannot  be punished as separate crimes, nor can they be complexed with piracy.
· Parricide/infanticide should be included (Judge Pimentel)
· Murder/rape/homicide/physical injuries must have been committed on the passengers
or complement
In piracy, where rape, murder or homicide is committed, the mandatory penalty of death
is imposable. This means that even if the accused enters a plea of guilty, the penalty
of death will still be imposed because death is a single and indispensable penalty.
(People vs. Rodriguez, 135 SCRA 485)
The penalty for qualified piracy is reclusion perpetua to death. If any of the
circumstances enumerated under the law is proven or established, the mandatory
penalty of death should be imposed. The presence of mitigating or aggravating
circumstances will be ignored by the court.
Although in Article 123 merely refers to qualified piracy, there is also the crime of
qualified mutiny. Mutiny is qualified under the following circumstances:
(1) When the offenders abandoned the victims without means of saving themselves;
or  (2) When the mutiny is accompanied by rape, murder, homicide, or physical injuries.
Note that the first circumstance which qualifies piracy does not apply to mutiny.

Republic Act No. 6235 (The Anti Hi-Jacking Law)

Anti hi-jacking is another kind of piracy which is committed in an aircraft. In other
countries, this crime is known as aircraft piracy.
Four situations governed by anti hi-jacking law:
(1) usurping or seizing control of an aircraft of Philippine registry while it is in
flight, compelling the pilots thereof to change the course or destination of the aircraft;
(2) usurping or seizing control of an aircraft of foreign registry while within Philippine
territory, compelling the pilots thereof to land in any part of Philippine territory;
(3) carrying or loading on board an aircraft operating as a public utility passenger aircraft
in the Philippines, any flammable, corrosive, explosive, or poisonous substance;
and  (4) loading, shipping, or transporting on board a cargo aircraft operating as a public
utility in
the Philippines, any flammable, corrosive, explosive, or poisonous substance if this
was done not in accordance with the rules and regulations set and promulgated by the
Air Transportation Office on this matter.
Between numbers 1 and 2, the point of distinction is whether the aircraft is of Philippine
registry or foreign registry. The common bar question on this law usually involves number
1. The important thing is that before the anti hi-jacking law can apply, the aircraft must
be in flight. If not in flight, whatever crimes committed shall be governed by the Revised
Penal Code. The law makes a distinction between aircraft of a foreign registry and of
Philippine registry. If the aircraft subject of the hi-jack is of Philippine registry, it
should be in flight at the time of the hi-jacking.
Otherwise, the anti hi-jacking law will not apply and the crime is still punished under the
Revised Penal Code. The correlative crime may be one of grave coercion or grave threat. If
somebody is killed, the crime is homicide or murder, as the case may be. If there are
some explosives carried there, the crime is destructive arson. Explosives are by nature
pyro-techniques. Destruction of property with the use of pyro-technique is destructive
arson. If there is illegally possessed or carried firearm, other special laws will apply.
(12)
On the other hand, if the aircraft is of foreign registry, the law does not require
that it be in flight before the anti hi-jacking law can apply. This is because aircrafts of
foreign registry are considered in transit while they are in foreign countries. Although they
may have been in a foreign country, technically they are still in flight, because they have
to move out of that foreign country. So even if any of the acts mentioned were
committed while the exterior doors of the foreign aircraft were still open, the anti hi-
jacking law will already govern.
Note that under this law, an aircraft is considered in flight from the moment all
exterior doors are closed following embarkation until such time when the same doors
are again opened for disembarkation. This means that there are passengers that boarded.
So if the doors are closed to bring the aircraft to the hangar, the aircraft is not considered
as in flight. The aircraft shall be deemed to be already in flight even if its engine has not
yet been started.
Questions & Answers
1. The pilots of the Pan Am aircraft were accosted by some armed men and were told to
proceed to the aircraft to fly it to a foreign destination. The armed men walked with the
pilots and went on board the aircraft. But before they could do anything on the aircraft,
alert marshals arrested them. What crime was committed?
The criminal intent definitely is to take control of the aircraft, which is hi-jacking. It is
a question now of whether the anti-hi-jacking law shall govern.
The anti hi-jacking law is applicable in this case. Even if the aircraft is not yet about to
fly, the requirement that it be in flight does not hold true when in comes to aircraft of
foreign registry. Even if the problem does not say that all exterior doors are closed, the
crime is hi-jacking. Since the aircraft is of foreign registry, under the law, simply usurping
or seizing control is enough as long as the aircraft is within Philippine territory, without
the requirement that it be in flight.
Note, however, that there is no hi-jacking in the attempted stage. This is a special
law where the attempted stage is not punishable.
2. A Philippine Air Lines aircraft is bound for Davao. While the pilot and co-pilot are
taking their snacks at the airport lounge, some of the armed men were also there. The
pilots were followed by these men on their way to the aircraft. As soon as the pilots
entered the cockpit, they pulled out their firearms and gave instructions where to fly the
aircraft. Does the anti hi-jacking law apply?
No. The passengers have yet to board the aircraft. If at that time, the offenders
are apprehended, the law will not apply because the aircraft is not yet in flight. Note that
the aircraft is of Philippine registry.
3. While the stewardess of a Philippine Air Lines plane bound for Cebu was waiting for
the passenger manifest, two of its passengers seated near the pilot surreptitiously
entered the pilot cockpit. At gunpoint, they directed the pilot to fly the aircraft to the
Middle East. However, before the pilot could fly the aircraft towards the Middle East, the
offenders were subdued and the aircraft landed. What crime was committed?
The aircraft was not yet in flight. Considering that the stewardess was still waiting for
the passenger manifest, the doors were still open. Hence, the anti hi-jacking law is not
applicable. Instead, the Revised Penal Code shall govern. The crime committed was grave
coercion or grave threat, depending upon whether or not any serious offense violence was
inflicted upon the pilot.
However, if the aircraft were of foreign registry, the act would already be subject to
the anti hi-jacking law because there is no requirement for foreign aircraft to be in flight
before such law would apply. The reason for the distinction is that as long as such aircraft
has not returned to its home base, technically, it is still considered in transit or in flight.
As to numbers 3 and 4 of Republic Act No. 6235, the distinction is whether the aircraft is
a passenger aircraft or a cargo aircraft. In both cases, however, the law applies
only to public utility aircraft in the Philippines. Private aircrafts are not subject to
the anti hi-jacking law, in so
far as transporting prohibited substances are concerned.
If the aircraft is a passenger aircraft, the prohibition is absolute. Carrying of any
prohibited, flammable, corrosive, or explosive substance is a crime under Republic Act No.
6235. But if the
(13)
aircraft is only a cargo aircraft, the law is violated only when the transporting of the
prohibited substance was not done in accordance with the rules and regulations
prescribed by the Air Transportation Office in the matter of shipment of such things. The
Board of Transportation provides the manner of packing of such kind of articles, the
quantity in which they may be loaded at any time, etc. Otherwise, the anti hi-jacking law
does not apply.
However, under Section 7, any physical injury or damage to property which would result
from the carrying or loading of the flammable, corrosive, explosive, or poisonous
substance in an aircraft, the offender shall be prosecuted not only for violation of Republic
Act No. 6235, but also for the crime of physical injuries or damage to property, as the case
may be, under the Revised Penal Code. There will be two prosecutions here. Other than
this situation, the crime of physical  injuries will be absorbed. If the explosives were
planted in the aircraft to blow up the aircraft, the circumstance will qualify the penalty
and that is not punishable as a separate crime for murder. The penalty is increased
under the anti hi-jacking law.
All other acts outside of the four are merely qualifying circumstances and would bring
about higher penalty. Such acts would not constitute another crime. So the killing or
explosion will only qualify the penalty to a higher one.
Questions & Answers
1. In the course of the hi-jack, a passenger or complement was shot and killed. What
crime or crimes were committed?
The crime remains to be a violation of the anti hi-jacking law, but the penalty thereof
shall be higher because a passenger or complement of the aircraft had been killed. The
crime of homicide or murder is not committed.
2. The hi-jackers threatened to detonate a bomb in the course of the hi-jack. What crime
or crimes were committed?
Again, the crime is violation of the anti hi-jacking law. The separate crime of grave
threat is not committed. This is considered as a qualifying circumstance that shall serve to
increase the penalty.
TITLE TWO

CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE

STATE
Crimes against the fundamental laws of the State
1. Arbitrary detention (Art. 124);
2. Delay in the delivery of detained persons to the proper judicial authorities (Art. 125);
3. Delaying release (Art. 126); 4. Expulsion (Art. 127);
5. Violation of domicile (Art. 128);
6. Search warrants maliciously obtained and abuse in the service of those legally
obtained (Art. 129);
7. Searching domicile without witnesses (Art. 130);
8. Prohibition, interruption, and dissolution of peaceful meetings (Art. 131); 9.
Interruption of religious worship (Art. 132); and
10. Offending the religious feelings (Art. 133);
Under this title, the offenders are public officers, except as to the last crime – offending
the religious feelings under Article 133, which refers to any person. The public officers who
may be held liable are only those acting under supposed exercise of official functions,
albeit illegally. But private persons may also be liable under this title as when a private
person conspires with a
(14)
public officer. What is required is that the principal offender must be a public officer. Thus,
if a private person conspires with a public officer, or becomes an accessory or accomplice,
the private person also becomes liable for the same crime. But a private person acting
alone cannot commit the crimes under Article 124 to 132 of this title.
Classes of Arbitrary Detention:
a. By detaining a person without legal ground
b. Delay in the delivery of detained persons to the proper judicial authorities c. Delaying
release
Article 124

ARBITRARY DETENTION
· ELEMENTS:
a. That the offender is a public officer or employee (whose official duties
include the authority to make an arrest and detain persons; jurisdiction to
maintain peace and order).
b. That he detains a person (actual restraint).
c. That the detention was without legal grounds (cannot be committed if with
warrant).

·
Detention: when a person is placed in confinement or there is a restraint on
his person.
Only those public officers whose official duties carry with it the authority to make an
arrest and detain persons can be guilty of this crime. So, if the offender does not possess
such authority, the crime committed by him is illegal detention.
· Though the elements specify that the offender be a public officer or employee, private
individuals who conspire with public officers can also be liable.
In a case decided by the Supreme Court a Barangay Chairman who unlawfully detains
another was held to be guilty of the crime of arbitrary detention. This is because he is a
person in authority vested with the jurisdiction to maintain peace and order within his
barangay. In the maintenance of such peace and order, he may cause the arrest and
detention of troublemakers or those who disturb the peace and order within his
barangay. But if the legal basis for the apprehension and detention does not exist, then
the detention becomes arbitrary.

I.
Legal grounds for the detention of any person:
0
commission of a crime

1
violent insanity or other ailment requiring compulsory confinement of the patient in a
hospital

2
escaped prisoner
When the peace officers acted in good faith even if the three (3) grounds mentioned
above are not obtaining, there is no Arbitrary Detention.

·
Without legal grounds:
a. he has not committed any crime or no reasonable ground of suspicion that he has
committed a crime
b. not suffering from violent insanity or any other ailment requiring compulsory
confinement in a hospital

·
Grounds for warrantless arrest:
a. Crime is about to be, is being, has been committed in his presence
(15)
facts and circumstances that the person probably committed the crime

·
For escaped prisoner – no need for warrant
·
Example: Y was killed by unknown assailant. Officers got a tip and arrested X.
X voluntarily admitted to the officers that he did it although he was not asked. X was
detained immediately. According to the SC, there was NO arbitrary detention. Why?
Because once X made a confession, the officers had a right to arrest him.
Arbitrary detention can be committed thru simple imprudence or negligence. (People
vs. Misa)
Periods of Detention penalized: 1. Detention not exceeding three days;
2. Detention for more than three days but not more than 15 days; 3. Detention for more
than 15 days but not more than 6 months; and 4. Detention for more than 6 months.

·
Continuing crime is different from a continuous crime

·
Ramos v. Enrile: Rebels later on retire. According to the SC, once you
have committed rebellion and have not been punished or amnestied, then the rebels
continue to engage in rebellion, unless the rebels renounce his affiliation. Arrest can be
made without a warrant because this is a continuing crime.
Distinction between arbitrary detention and illegal detention 1. In arbitrary
detention --
The principal offender must be a public officer. Civilians cannot commit the crime
of arbitrary detention except when they conspire with a public officer committing this
crime, or become an accomplice or accessory to the crime committed by the public officer;
and  The offender who is a public officer has a duty which carries with it the authority to
detain a person.
2. In illegal detention --
The principal offender is a private person. But a public officer can commit the crime
of illegal detention when he is acting in a private capacity or beyond the scope of his
official duty, or when he becomes an accomplice or accessory to the crime committed by
a private person.
The offender, even if he is a public officer, does not include as his function the power
to arrest and detain a person, unless he conspires with a public officer committing
arbitrary detention.
Whether the crime is arbitrary detention or illegal detention, it is necessary that there
must be an actual restraint of liberty of the offended party. If there is no actual restraint,
as the offended party may still go to the place where he wants to go, even though there
have been warnings, the crime of arbitrary detention or illegal detention is not committed.
There is either grave or light threat. 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 illegal
detention is still committed.
Questions & Answers
1. A janitor at the Quezon City Hall was assigned in cleaning the men’s room. One day,
he noticed a fellow urinating so carelessly that instead of urinating at the bowl, he was
actually urinating partly on the floor. The janitor resented this. He stepped out of the
men’s room
(16)
and locked the same. He left. The fellow was able to come out only after several hours
when people from the outside forcibly opened the door. Is the janitor liable for arbitrary
detention?
No. Even if he is a public officer, he is not permitted by his official function to arrest
and detain persons. Therefore, he is guilty only of illegal detention. While the offender is a
public officer, his duty does not include the authority to make arrest; hence, the crime
committed is illegal detention.
2. A municipal treasurer has been courting his secretary. However, the latter always
turned him down. Thereafter, she tried to avoid him. One afternoon, the municipal
treasurer locked the secretary inside their office until she started crying. The treasurer
opened the door and allowed her to go home. What crime was committed?
Illegal detention. This is because the municipal treasurer has no authority to detain
a person although he is a public officer.
In a case decided by the Supreme Court a Barangay Chairman who unlawfully detains
another was held to be guilty of the crime of arbitrary detention. This is because he is a
person in authority vested with the jurisdiction to maintain peace and order within his
barangay. In the maintenance of such peace and order, he may cause the arrest and
detention of troublemakers or those who disturb the peace and order within his barangay.
But if the legal basis for the apprehension and detention does not exist, then the detention
becomes arbitrary.
Whether the crime is arbitrary detention or illegal detention, it is necessary that there
must be an actual restraint of liberty of the offended party. If there is no actual restraint,
as the offended party may still go to the place where he wants to go, even though there
have been warnings, the crime of arbitrary detention or illegal detention is not committed.
There is either grave or light threat.  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
illegal detention is still committed.
Question & Answer
The offended party was brought to a place which he could not leave because he does
not know where he is, although free to move about. Was arbitrary or illegal detention
committed? Either arbitrary detention or illegal detention was committed. If a person is
brought to a safe house, blindfolded, even if he is free to move as he pleases, but if he
cannot leave the place, arbitrary detention or illegal detention is committed.
Distinction between arbitrary detention and unlawful arrest (1) As to offender
In arbitrary detention, the offender is a public officer possessed with authority to
make arrests.
In unlawful arrest, the offender may be any person.
(2) As to criminal intent
In arbitrary detention, the main reason for detaining the offended party is to deny
him of his liberty.
In unlawful arrest, the purpose is 1) to accuse the offended party of a crime he did
not commit; 2) to deliver the person to the proper authority; and 3) to file the necessary
charges in a way trying to incriminate him.
When a person is unlawfully arrested, his subsequent detention is without legal grounds

.
Question & Answer
A had been collecting tong from drivers. B, a driver, did not want to contribute to the
tong. One day, B was apprehended by A, telling him that he was driving carelessly.
Reckless driving carries with it a penalty of immediate detention and arrest. B was
brought to the Traffic
(17)
Bureau and was detained there until the evening. When A returned, he opened the cell
and told B to go home. Was there a crime of arbitrary detention or unlawful arrest?
Arbitrary detention. The arrest of B was only incidental to the criminal intent of
the offender to detain him. But if after putting B inside the cell, he was turned over to
the investigating officer who booked him and filed a charge of reckless imprudence
against him, then the crime would be unlawful arrest. The detention of the driver is
incidental to the supposed crime he did not commit. But if there is no supposed crime at
all because the driver was not charged at all, he was not given place under booking sheet
or report arrest, then that means that the only purpose of the offender is to stop him from
driving his jeepney because he refused to contribute to the tong.

Article 125

DELAY IN THE DELIVERY OF DETAINED PERSONS

· ELEMENTS:
a. That the offender is a public officer or employee  b. That he has detained a
person for some legal grounds
c. That he fails to deliver such person to the proper judicial authority within:  1. 12
hours, if detained for crimes/offenses punishable by light penalties, or
their equivalent
2. 18 hours, for crimes/offenses punishable by correctional penalties, or
their equivalent or
3. 36 hours, for crimes/offenses punishable by capital punishment or
afflictive  penalties, or their equivalent
Article 125 covers situations wherein the person detained has been arrested without a
warrant but his arrest is nonetheless lawful. It is a felony committed by omission
because of the failure of the offender to deliver the detained person to the proper
judicial authority within 12 hours, 18 hours and 36 hours as the case may be.
At the beginning, the detention is legal since it is in the pursuance of a lawful arrest.
However, the detention becomes arbitrary when the period thereof exceeds 12, 18 or 36
hours, as the case may be, depending on whether the crime is punished by light,
correctional or afflictive penalty or their equivalent.
· Really means delay in filing necessary information or charging of person detained in
court.
· May be waived if a preliminary investigation is asked for.
Under the Revised Rules of Court, when the person arrested is arrested for a crime
which gives him the right to preliminary investigation and he wants to avail his right to a
preliminary investigation, he would have to waive in writing his rights under Article 125
so that the arresting officer will not immediately file the case with the court that will
exercise jurisdiction over the case. If he does not want to waive this in writing, the
arresting officer will have to comply with Article 125 and file the case immediately in
court without preliminary investigation. In such case, the arrested person, within five
days after learning that the case has been filed in court without preliminary
investigation, may ask for preliminary investigation. In this case, the public officer who
made the arrest will no longer be liable for violation of Article 125.
· Does not contemplate actual physical delivery but at least there must be a complaint
filed. Duty complied with upon the filing of the complaint with the judicial authority
(courts, prosecutors – though technically not a judicial authority, for purposes of this
article, he’s considered as one.)
Delivery of detained person consists in making charge of filing a compliant against the
prisoner with the proper judicial authority. It does not involve the physical delivery of
the prisoner before the judge (Sayo vs. Chief of Police).

·
The filing of the information in court does not cure illegality of detention. Neither does
it affect the legality of the confinement under process issued by the court.
(18)
· To escape from this, officers usually ask accused to execute a waiver which should be
under oath and with assistance of counsel. Such waiver is not violative of the accused
constitutional right.
· What is length of waiver? Light offense – 5 days. Serious and less serious offenses
– 7 to 10 days. (Judge Pimentel)
· Article does not apply when arrest is via a warrant of arrest
Q. Within what period should a police officer who has arrested a person under a warrant
of arrest turn over the arrested person to the judicial authority?
A. There is no time limit specified except that the return must be made within a
reasonable time. The period fixed by law under Article 125 does not apply because the
arrest was made by virtue of a warrant of arrest.
· If offender is a private person, crime is illegal detention
· Before Article 125 may be applied, it is necessary that initially, the detention of the
arrested person must be lawful because the arrest is based on legal grounds. If the
arrest is made without a warrant, this constitutes an unlawful arrest. Article 269(unlawful
arrest), not Article 125, will apply. If the arrest is not based on legal grounds, the arrest is
pure and simple arbitrary detention. Article 125 contemplates a situation where the
arrest was made without warrant but based on legal grounds. This is known as citizen’s
arrest.
· A police officer has no authority to arrest and detain a person on the basis merely of
the complaint of the offended party, even if after investigation he becomes convinced
that the accused is guilty of the offense charged. What the complainant may do is to file
a complaint with the court and ask for the issuance of a warrant of arrest.
Arbitrary Detention (124) Delay in Delivery of Detained (125) Detention is illegal
from the beginning. Detention is legal in the beginning, but illegality
starts from the expiration of the specified periods without the persons detained having
been delivered to the proper judicial authority.
Question & Answer
Within what period should a police officer who has arrested a person under a warrant of
arrest turn over the arrested person to the judicial authority?
There is no time limit specified except that the return must be made within a
reasonable time. The period fixed by law under Article 125 does not apply because the
arrest was made by virtue of a warrant of arrest.
When a person is arrested without a warrant, it means that there is no case filed in court
yet. If the arresting officer would hold the arrested person there, he is actually depriving
the arrested of his right to bail. As long as there is no charge in the court yet, the arrested
person cannot obtain bail because bail may only be granted by the court. The spirit of the
law is to have the arrested person delivered to the jurisdiction of the court.
If the arrest is by virtue of a warrant, it means that there is already a case filed in court.
When an information is filed in court, the amount of bail recommended is stated. The
accused person is not really denied his right to bail. Even if he is interrogated in the police
precinct, he can already file bail.
Note that delivery of the arrested person to the proper authorities does not mean
physical delivery or turn over of arrested person to the court. It simply means putting the
arrested person under the jurisdiction of the court. This is done by filing the necessary
complaint or information
(19)
against the person arrested in court within the period specified in Article 125. The purpose
of this is for the court to determine whether the offense is bailable or not and if bailable,
to allow him the right to bail.
Under the Rule 114 of the Revised Rules of Court, the arrested person can demand from
the arresting officer to bring him to any judge in the place where he was arrested and
post the bail here. Thereupon, the arresting officer may release him. The judge who
granted the bail will just forward the litimus of the case to the court trying his case. The
purpose is in order to deprive the arrested person of his right to post the bail.
Under the Revised Rules of Court, when the person arrested is arrested for a crime which
gives him the right to preliminary investigation and he wants to avail his right to a
preliminary investigation, he would have to waive in writing his rights under Article 125
so that the arresting officer will not immediately file the case with the court that will
exercise jurisdiction over the case. If he does not want to waive this in writing, the
arresting officer will have to comply with Article 125 and file the case immediately in
court without preliminary investigation. In such case, the arrested person, within five days
after learning that the case has been filed in court without preliminary investigation, may
ask for preliminary investigation. In this case, the public officer who made the arrest will
no longer be liable for violation of Article 125.
Question & Answer
The arrest of the suspect was done in Baguio City. On the way to Manila, where the
crime was committed, there was a typhoon so the suspect could not be brought to
Manila until three days later. Was there a violation of Article 125?
There was a violation of Article 125. The crime committed was arbitrary detention in
the form of delay in the delivery of arrested person to the proper judicial authority. The
typhoon or flood is a matter of defense to be proved by the accused, the arresting officer,
as to whether he is liable. In this situation, he may be exempt under paragraph 7 of Article
12.
Before Article 125 may be applied, it is necessary that initially, the detention of the
arrested person must be lawful because the arrest is based on legal grounds. If the arrest
is made without a warrant, this constitutes an unlawful arrest. Article 269, not Article 125,
will apply. If the arrest is not based on legal grounds, the arrest is pure and simple
arbitrary detention. Article 125 contemplates a situation where the arrest was made
without warrant but based on legal grounds. This is known as citizen’s arrest.

Article 126

DELAYING RELEASE
ELEMENTS:
a. That the offender is a public officer or employee
b. That there is a judicial or executive order for the release of a prisoner
or detention prisoner, or that there is a proceeding upon a petition for
the liberation of such person
c. That the offender without good reason delays:
1. the service of the notice of such order to the prisoner, or  2. the performance of
such judicial or executive order for the
release of the prisoner, or
3. the proceedings upon a petition for the release of such person
· Three acts are punishable:
a. delaying the performance of a judicial or executive order for the release of a prisoner
(20)
b. delaying the service of notice of such order to said prisoner
c. delaying the proceedings upon any petition for the liberation of such person
· Wardens and jailers are the persons most likely to violate this provision
· Provision does not include legislation

Article 127

EXPULSION
ELEMENTS:
a. That the offender is a public officer or employee
b. That he expels any person from the Philippines, or compels a person to change
his residence
c. That the offender is not authorized to do so by law  · 2 acts punishable:
a. by expelling a person from the Philippines b. by compelling a person to change his
residence
The essence of this crime is coercion but the specific crime is “expulsion” when
committed by a public officer. If committed by a private person, the crime is grave
coercion.
In the Philippines, only the President of the Republic has the power to deport aliens
whose continued stay in the country constitutes a menace to the peace and safety of
the community.
In the case of Filipino citizens, only the court, by final judgment, can order a person to
change his residence.
In Villavicencio v. Lukban, 39 Phil 778, the mayor of the City of Manila wanted to
make the city free from prostitution. He ordered certain prostitutes to be transferred to
Davao, without observing due processes since they have not been charged with any
crime at all. It was held that the crime committed was expulsion.
· Does not include undesirable aliens; destierro; or when sent to prison
Questions & Answers
1. Certain aliens were arrested and they were just put on the first aircraft which
brought them to the country so that they may be out without due process of law. Was
there a crime committed?
Yes. Expulsion.
2. If a Filipino citizen is sent out of the country, what crime is committed?
Grave coercion, not expulsion, because a Filipino cannot be deported. This crime
refers  only to aliens.
· If X (Filipino) after he voluntarily left, is refused re-entry – is considered forcing him to
change his address here
(21)

Article 128
VIOLATION OF DOMICILE ELEMENTS:
a. That the offender is a public officer or employee
b. That he is not authorized by judicial order to enter the dwelling and/or to make
a search therein for papers or other effects
c. That he commits any of the following acts:
1. entering any dwelling against the will of the owner thereof
2. searching papers or other effects found therein without the previous consent of
such owner
3. refusing to leave the premises, after having surreptitiously entered
said dwelling and after having been required to leave the same

·
Aggravating Circumstance (medium and maximum of penalty imposed):  a. Offense
committed at nighttime
b. Papers or effects not constituting evidence of a crime be not returned immediately
In order to commit this crime, the entry must be against the will of the owner. If the
entry is only without the consent of the owner, the crime of violation of domicile is not
committed.
The prohibition may be expressed or implied. If the signs “Do not enter” and
“Strangers keep out” are posted in front of the house or dwelling, then the prohibition is
express. If the door is locked, or even if it is open but these are barriers to indicate the
manifest intention of the owner to bar strangers from entering, there is implied
prohibition.
The primary object of the law is to preserve the privacy of abode of the offended party.
Hence, if the privacy is already lost, as when the offender has been allowed by the
owner to enter the dwelling together with other persons, any subsequent change of
attitude will not restore the privacy which was already lost. When privacy is waived,
trespass to dwelling or violation of domicile cannot be committed.
· If the offender who enters the dwelling against the will of the owner thereof is
a private individual, the crime committed is trespass to dwelling (Art 280)
· When a public officer searched a person “outside his dwelling” without a search
warrant and such person is not legally arrested for an offense, the crime committed by
the public officer is grave coercion, if violence or intimidation is used (Art 286), or unjust
vexation, if there is no violence or intimidation (Art 287)
· A public officer without a search warrant cannot lawfully enter the dwelling against the
will of the owner, even if he knew that someone in that dwelling is having unlawful
possession of opium
· Under Rule 113(sec. 11) of the Revised Rules of Court, when a person to be arrested
enters a premise and closes it thereafter, the public officer, after giving notice of an arrest,
can break into the premise. He shall not be liable for violation of domicile.
· 3 acts punishable:
(22)
In the plain view doctrine, public officer should be legally entitled to be in the place where
the effects were found. If he entered the place illegally and he saw the effects, doctrine
inapplicable; thus, he is liable for violation of domicile.
b. person enters and searches for papers and effects
Public officer who enters with consent searches for paper and effects without the
consent of the owner. Even if he is welcome in the dwelling, it does not mean he has
permission to search.
c. person entered secretly and refuses to leave after being asked to
The act punished is not the entry but the refusal to leave. If the offender upon
being directed to leave, followed and left, there is no crime of violation of domicile. Entry
must be done surreptitiously ; without this, crime may be unjust vexation. But if entering
was done against the will of the occupant of the house, meaning there was express or
implied prohibition from entering the same, even if the occupant does not direct him to
leave, the crime of violation of domicile is already committed because it would fall in
number 1.

·
“Being authorized by law” – means with search warrant, to save himself or do
some things good for humanity
There are only three recognized instances when search without a warrant is considered
valid, and, therefore, the seizure of any evidence done is also valid. Outside of these,
search would be invalid and the objects seized would not be admissible in evidence.
(1) Search made incidental to a valid arrest;
(2) Where the search was made on a moving vehicle or vessel such that the exigency of
he situation prevents the searching officer from securing a search warrant;
(3) When the article seized is within plain view of the officer making the seizure
without making a search therefore.
· Papers and effects need not be part of a crime.
Questions & Answers
1. It was raining heavily. A policeman took shelter in one person’s house. The owner
obliged and had his daughter serve the police some coffee. The policeman made a pass
at the daughter. The owner of the house asked him to leave. Does this fall under Article
128?
No. It was the owner of the house who let the policeman in. The entering is
not surreptitious.
2. A person surreptitiously enters the dwelling of another. What crime or crimes were
possibly committed?
The crimes committed are (1) qualified trespass to dwelling under Article 280, if there was
an express or implied prohibition against entering. This is tantamount to entering against
the will of the owner; and (2) violation of domicile in the third form if he refuses to leave
after being told to.

Article 129

SEARCH WARRANTS MALICIOUSLY OBTAINED

ELEMENTS:
a. That the offender is a public officer or employee  b. That he procures a search
warrant
(23)

·
In order that a search warrant may be issued, it must be based on probable cause
in connection with one offense, to be determined by a judge after examination under
oath of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized.
This means there was no probable cause determined in obtaining the search warrant.

·
Although void, the search warrant is entitled to respect because of presumption of
regularity. One remedy is a motion to quash the search warrant, not refusal to abide by it.
The public officer may also be prosecuted for perjury, because for him to succeed in
obtaining a search warrant without a probable cause, he must have perjured himself or
induced someone to commit perjury to convince the court.
The true test of lack of just cause is whether the sworn statement filed in support of
the  application for search warrant has been done in such a manner that perjury could
be charged and the affiant can be held liable for making such false statement. The oath
required refers to the truth of the facts within the personal knowledge of the applicant
and his witnesses.

ABUSE IN THE SERVICE OF WARRANT OR EXCEEDING

AUTHORITY OR

USING UNNECESSARY SEVERITY IN EXECUTING A

SEARCH WARRANT

LEGALLY PROCURED
ELEMENTS:
a. That the offender is a public officer or employee  b. That he has legally procured
a search warrant
c. That he exceeds his authority or uses unnecessary severity in executing the same

·
Search warrant is valid for 10 days from its date

·
Search warrant is an order in writing issued in the name of the People, signed
by the judge and directed to a public officer, commanding him to search for personal
property described therein and bring it before the court

·
No just cause – warrant is unjustified

·
Search – limited to what is described in the warrant, all details must be
with particularity
The officer exceeded his authority under the warrant – To illustrate, let us say that there
was a pusher in a condo unit. The PNP Narcotics Group obtained a search warrant but
the name of person in the search warrant did not tally with the address stated.
Eventually, the person with the same name was found but in a different address. The
occupant resisted but the public officer insisted on the search. Drugs were found and
seized and occupant was prosecuted and convicted by the trial court. The Supreme
Court acquitted him because the public officers are required to follow the search
warrant to the letter. They have no discretion on the matter. Plain view doctrine is
inapplicable since it presupposes that the officer was legally entitled to be in the place
where the effects where found. Since the entry was illegal, plain view doctrine does not
apply.
· Malicious warrant. Example. X was a respondent of a search warrant for
illegal possession of firearms. A return was made. The gun did not belong to X and the
witness had no personal knowledge that there is a gun in that place.
· Abuse examples:
a. X owner was handcuffed while search was going-on.
b. Tank was used to ram gate prior to announcement that a search will be made The
search warrant is not a license to commit destruction.