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Criminal Law II Reviewer Doc
Criminal Law II Reviewer Doc
TITLE I. CRIMES AGAINST NATIONAL Almost all of these are crimes committed in
SECURITY AND THE LAW OF NATIONS times of war, except the following, which
can be committed in times of peace:
Crimes against national security (1) Espionage, under Article 114 – This
is also covered by Commonwealth
1. Treason (Art. 114); Act No. 616 which punishes
conspiracy to commit espionage.
2. Conspiracy and proposal to commit This may be committed both in times
treason (Art. 115); of war and in times of peace.
3. Misprision of treason (Art. 116); and (2) Inciting to War or Giving Motives for
Reprisals, under Article 118 – This
4. Espionage (Art. 117). can be committed even if the
Philippines is not a participant.
Exposing the Filipinos or their
Crimes against the law of nations properties because the offender
performed an unauthorized act, like
1. Inciting to war or giving motives for those who recruit Filipinos to
reprisals (Art. 118); participate in the gulf war. If they
involve themselves to the war, this
2. Violation of neutrality (Art. 119); crime is committed. Relevant in the
cases of Flor Contemplacion or
3. Corresponding with hostile country Abner Afuang, the police officer who
(Art. 120); stepped on a Singaporean flag.
4. Flight to enemy's country (Art. 121); (3) Violation of Neutrality, under Article
and 119 – The Philippines is not a party
to a war but there is a war going on.
5. Piracy in general and mutiny on the This may be committed in the light of
high seas (Art. 122). the Middle East war.
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
2. Offender makes correspondence
1. Offender performs unlawful or with an enemy country or territory
unauthorized acts; occupied by enemy troops;
expressly provided in the same section that b. seize the whole or part of the
the offender shall be considered as an cargo, its equipment, or
accomplice of the principal offenders and personal belongings of the
punished in accordance with the Revised crew or passengers.
Penal Code. This provision of Presidential
Decree No. 532 with respect to piracy in
Philippine water has not been incorporated Mutiny is the unlawful resistance to a
in the Revised Penal Code. Neither may it superior officer, or the raising of
be considered repealed by Republic Act No. commotions and disturbances aboard a ship
7659 since there is nothing in the against the authority of its commander.
amendatory law is inconsistent with said
section. Apparently, there is still the crime of Distinction between mutiny and piracy
abetting piracy in Philippine waters under
Presidential Decree No. 532. (1) As to offenders
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 employee; officer who has arrested a person under a
warrant of arrest turn over the arrested
2. He detains a person for some legal person to the judicial authority?
ground;
There is no time limit specified
3. He fails to deliver such person to the except that the return must be made within
proper judicial authorities within – a reasonable time. The period fixed by law
under Article 125 does not apply because
a. 12 hour for light penalties; the arrest was made by virtue of a warrant
of arrest.
b. 18 hours for correctional
penalties; and
When a person is arrested without a
c. 36 hours for afflictive or capital warrant, it means that there is no case filed
penalties. in court yet. If the arresting officer would
hold the arrested person there, he is
actually depriving the arrested of his right to
This is a form of arbitrary detention. At the bail. As long as there is no charge in the
beginning, the detention is legal since it is in court yet, the arrested person cannot obtain
the pursuance of a lawful arrest. However, bail because bail may only be granted by
the detention becomes arbitrary when the the court. The spirit of the law is to have the
period thereof exceeds 12, 18 or 36 hours, arrested person delivered to the jurisdiction
as the case may be, depending on whether of the court.
the crime is punished by light, correctional
or afflictive penalty or their equivalent. If the arrest is by virtue of a warrant, it
means that there is already a case filed in
The period of detention is 12 hours for light court. When an information is filed in court,
offenses, 18 hours for correctional offences the amount of bail recommended is stated.
and 36 hours for afflictive offences, where The accused person is not really denied his
the accused may be detained without formal right to bail. Even if he is interrogated in the
charge. But he must cause a formal charge police precinct, he can already file bail.
or application to be filed with the proper
court before 12, 18 or 36 hours lapse. Note that delivery of the arrested person to
Otherwise he has to release the person the proper authorities does not mean
arrested. physical delivery or turn over of arrested
person to the court. It simply means putting
the arrested person under the jurisdiction of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 14
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.
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.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 18
holding of a peaceful
(2) The officer exceeded his authority meeting, or by dissolving the
under the warrant – To illustrate, let same;
us say that there was a pusher in a
condo unit. The PNP Narcotics b. hindering any person from
Group obtained a search warrant but joining any lawful
the name of person in the search association, or attending any
warrant did not tally with the address of its meetings;
stated. Eventually, the person with
the same name was found but in a c. prohibiting or hindering any
different address. The occupant person from addressing,
resisted but the public officer either alone or together with
insisted on the search. Drugs were others, any petition to the
found and seized and occupant was authorities for the correction
prosecuted and convicted by the trial of abuses or redress of
court. The Supreme Court acquitted grievances.
him because the public officers are
required to follow the search warrant
to the letter. They have no The government has a right to require a
discretion on the matter. Plain view permit before any gathering could be made.
doctrine is inapplicable since it Any meeting without a permit is a
presupposes that the officer was proceeding in violation of the law. That
legally entitled to be in the place being true, a meeting may be prohibited,
where the effects where found. interrupted, or dissolved without violating
Since the entry was illegal, plain Article 131 of the Revised Penal Code.
view doctrine does not apply.
But the requiring of the permit shall be in
(3) When the public officer employs exercise only of the government’s regulatory
unnecessary or excessive severity in powers and not really to prevent peaceful
the implementation of the search assemblies as the public may desire.
warrant. The search warrant is not a Permit is only necessary to regulate the
license to commit destruction. peace so as not to inconvenience the
public. The permit should state the day,
(4) Owner of dwelling or any member of time and the place where the gathering may
the family was absent, or two be held. This requirement is, therefore,
witnesses residing within the same legal as long as it is not being exercised in
locality were not present during the as a prohibitory power.
search.
If the permit is denied arbitrarily, Article 131
is violated. If the officer would not give the
Article 131. Prohibition, Interruption, permit unless the meeting is held in a
and Dissolution of Peaceful Meetings particular place which he dictates defeats
the exercise of the right to peaceably
Elements assemble, Article 131 is violated.
1. Offender is a public officer or employee; At the beginning, it may happen that the
assembly is lawful and peaceful. If in the
2. He performs any of the following acts: course of the assembly the participants
commit illegal acts like oral defamation or
a. prohibiting or by interrupting, inciting to sedition, a public officer or law
without legal ground, the enforcer can stop or dissolve the meeting.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 19
The permit given is not a license to commit private place where a public function
a crime. is being held.
In Article 131, the public officer is not Article 133. Offending the Religious
a participant. As far as the gathering Feelings
is concerned, the public officer is a
third party. Elements
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
or committing serious violence, exacting
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 22
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 26
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 28
Three men broke into a National Food functions, from a situation when he is not
Authority warehouse and lamented performing such functions. If attack was
sufferings of the people. They called on done during the exercise of official
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.
Penalty decreased to the minimum period if If the prisoner who escapes is only a
the escape of the prisoner shall take place detention prisoner, he does not incur liability
outside of said establishments by taking the from escaping if he does not know of the
guards by surprise. plan to remove him from jail. But if such
prisoner knows of the plot to remove him
from jail and cooperates therein by
escaping, he himself becomes liable for
delivering prisoners from jail as a principal
by indispensable cooperation.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 36
If three persons are involved – a stranger, (1) By simply leaving or escaping from
the custodian and the prisoner – three the penal establishment under
crimes are committed: Article 157;
(1) Infidelity in the custody of prisoners; (2) Failure to return within 48 hours after
having left the penal establishment
(2) Delivery of the prisoner from jail; and because of a calamity, conflagration
or mutiny and such calamity,
(3) Evasion of service of sentence. conflagration or mutiny has been
announced as already passed under
Article 158;
Article 157. Evasion of Service of
Sentence (3) Violating the condition of conditional
pardon under Article 159.
Elements
In leaving or escaping from jail or prison,
1. Offender is a convict by final judgment; that the prisoner immediately returned is
immaterial. It is enough that he left the
2. He is serving sentence which consists in penal establishment by escaping therefrom.
the deprivation of liberty; His voluntary return may only be mitigating,
being analogous to voluntary surrender.
3. He evades service of his sentence by But the same will not absolve his criminal
escaping during the term of his liability.
imprisonment.
Article 158. Evasion of Service of
Qualifying circumstances as to penalty Sentence on the Occasion of Disorders,
imposed Conflagrations, Earthquakes, or Other
Calamities
If such evasion or escape takes place –
Elements
1. By means of unlawful entry (this
should be “by scaling” - Reyes); 1. Offender is a convict by final
judgment, who is confined in a penal
institution;
2. By breaking doors, windows, gates,
walls, roofs or floors; 2. There is disorder, resulting from –
Those who did not leave the penal 3. He violated any of the conditions of
establishment are not entitled to the 1/5 such pardon.
credit. Only those who left and returned
within the 48-hour period.
In violation of conditional pardon, as a rule,
The mutiny referred to in the second form of the violation will amount to this crime only if
evasion of service of sentence does not the condition is violated during the
include riot. The mutiny referred to here remaining period of the sentence. As a
involves subordinate personnel rising rule, if the condition of the pardon is violated
against the supervisor within the penal when the remaining unserved portion of the
establishment. One who escapes during a sentence has already lapsed, there will be
riot will be subject to Article 157, that is, no more criminal liability for the violation.
simply leaving or escaping the penal However, the convict maybe required to
establishment. serve the unserved portion of the sentence,
that is, continue serving original penalty.
Mutiny is one of the causes which may
authorize a convict serving sentence in the The administrative liability of the convict
penitentiary to leave the jail provided he under the conditional pardon is different and
has not taken part in the mutiny. has nothing to do with his criminal liability
for the evasion of service of sentence in the
event that the condition of the pardon has
been violated. Exception: where the
violation of the condition of the pardon will
constitute evasion of service of sentence,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 38
even though committed beyond the imposed for the violation of the conditional
remaining period of the sentence. This is pardon.
when the conditional pardon expressly so
provides or the language of the conditional But if the remitted portion of the
pardon clearly shows the intention to make sentence exceeds six years, the violation of
the condition perpetual even beyond the the conditional pardon is not a substantive
unserved portion of the sentence. In such offense because no new penalty is imposed
case, the convict may be required to serve for the violation.
the unserved portion of the sentence even
though the violation has taken place when In other words, you have to qualify
the sentence has already lapsed. your answer.
In order that the conditional pardon may be The Supreme Court, however, has
violated, it is conditional that the pardonee ruled in the case of Angeles v. Jose that
received the conditional pardon. If he is this is not a substantive offense. This has
released without conformity to the been highly criticized.
conditional pardon, he will not be liable for
the crime of evasion of service of sentence.
Article 160. Commission of Another
Crime During Service of Penalty Imposed
for Another Previous Offense
Elements
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);
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 40
Islands, Forging the Signature or Stamp Kinds of coins the counterfeiting of which is
of the Chief Executive punished
1. The great seal of the Republic was 1. Mutilating coins of the legal
counterfeited or the signature or currency, with the further
stamp of the Chief Executive was requirements that there be intent to
forged by another person; damage or to defraud another;
(1) Counterfeiting coins -- This is the Yes. It is not necessary that the coin
crime of remaking or manufacturing be of legal tender. The provision punishing
without any authority to do so. counterfeiting does not require that the
money be of legal tender and the law
In the crime of counterfeiting, the law is not punishes this even if the coin concerned is
concerned with the fraud upon the public not of legal tender in order to discourage
such that even though the coin is no longer people from practicing their ingenuity of
legal tender, the act of imitating or imitating money. If it were otherwise,
manufacturing the coin of the government is people may at the beginning try their
penalized. In punishing the crime of ingenuity in imitating money not of legal
counterfeiting, the law wants to prevent tender and once they acquire expertise,
people from trying their ingenuity in their they may then counterfeit money of legal
imitation of the manufacture of money. tender.
dust and, thus, diminishing the intrinsic metal dust. However, under Presidential
value of the coin. Decree No. 247, mutilation is not limited to
coins.
Mutilation of coins is a crime only if the coin
mutilated is legal tender. If the coin whose
metal content has been depreciated through Questions & Answers
scraping, scratching, or filing the coin and
the offender collecting the precious metal
dust, even if he would use the coin after its 1. The people playing cara y
intrinsic value had been reduced, nobody cruz, before they throw the coin in the air
will accept the same. If it is not legal tender would rub the money to the sidewalk
anymore, no one will accept it, so nobody thereby diminishing the intrinsic value of the
will be defrauded. But if the coin is of legal coin. Is the crime of mutilation committed?
tender, and the offender minimizes or
decreases the precious metal dust content Mutilation, under the Revised Penal
of the coin, the crime of mutilation is Code, is not committed because they do not
committed. collect the precious metal content that is
being scraped from the coin. However, this
In the example, if the offender has collected will amount to violation of Presidential
1/10 of the P 2.00 coin, the coin is actually Decree No. 247.
worth only P 1.80. He is paying only P1.80
in effect defrauding the seller of P .20. 2. When the image of Jose
Punishment for mutilation is brought about Rizal on a five-peso bill is transformed into
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
under the code is collecting the precious
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 43
Yes. This act of the printing presses So, if the act of mutilating coins does not
is a violation of Presidential Decree No. involve gathering dust like playing cara y
247. cruz, that is not mutilation under the
Revised Penal Code because the offender
4. An old woman who was a does not collect the metal dust. But by
cigarette vendor in Quiapo refused to rubbing the coins on the sidewalk, he also
accept one-centavo coins for payment of defaces and destroys the coin and that is
the vendee of cigarettes he purchased. punishable under Presidential Decree No.
Then came the police who advised her that 247.
she has no right to refuse since the coins
are of legal tender. On this, the old woman
accepted in her hands the one-centavo Article 165. Selling of False or Mutilated
coins and then threw it to the face of the Coin, without Connivance
vendee and the police. Was the old woman
guilty of violating Presidential Decree No. Acts punished
247?
1. Possession of coin, counterfeited or
She was guilty of violating mutilated by another person, with
Presidential Decree No. 247 because if no intent to utter the same, knowing
one ever picks up the coins, her act would that it is false or mutilated;
result in the diminution of the coin in
circulation. Elements
No. Forgery was not committed. printing on the twenty-peso bill was
The forged instrument and currency note reproduced on the mimeo paper. He took
must be given the appearance of a true and the reverse side of the P20 bill, applied
genuine document. The crime committed is toothache drops and reversed the mimeo
a violation of Presidential Decree No. 247. paper and pressed it to the paper. After
Where the currency note, obligation or sometime, he removed it and it was
security has been changed to make it reproduced. He cut it out, scraped it a little
appear as one which it purports to be as and went to a sari-sari store trying to buy a
genuine, the crime is forgery. In checks or cigarette with that bill. What he overlooked
commercial documents, this crime is was that, when he placed the bill, the
committed when the figures or words are printing was inverted. He was apprehended
changed which materially alters the and was prosecuted and convicted of
document. forgery. Was the crime of forgery
committed?
2. An old man, in his desire to
earn something, scraped a digit in a losing The Supreme Court ruled that it was
sweepstakes ticket, cut out a digit from only frustrated forgery because although the
another ticket and pasted it there to match offender has performed all the acts of
the series of digits corresponding to the execution, it is not possible because by
winning sweepstakes ticket. He presented simply looking at the forged document, it
this ticket to the Philippine Charity could be seen that it is not genuine. It can
Sweepstakes Office. But the alteration is so only be a consummated forgery if the
crude that even a child can notice that the document which purports to be genuine is
supposed digit is merely superimposed on given the appearance of a true and genuine
the digit that was scraped. Was the old document. Otherwise, it is at most
man guilty of forgery? frustrated.
(4) Private document in the execution of 1. Offender committed any of the acts of
which only private individuals take 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 third
official receipt is a public document which is party or at least the falsification was
an official document. committed with intent to cause such
damage.
Acts punished
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 51
Article 178. Using Fictitious Name and Article 179. Illegal Use of Uniforms or
Concealing True Name Insignia
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
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 54
Elements
Article 189. Unfair Competition,
1. Offender imports, sells or disposes Fraudulent Registration of Trade Name,
articles made of gold, silver, or other Trademark, or Service Mark, Fraudulent
precious metals or their alloys; Designation of Origin, and False
Description
2. The stamps, brands, or marks of
those articles of merchandise fail to Acts punished
indicate the actual fineness or
quality of said metals or alloys; 1. Unfair competition;
believe that the goods offered are those of a goods, services or commercial activities,
manufacturer or dealer, other than the shall be liable to a civil action for damages
actual manufacturer or dealer, or who and injunction provided in Section 156 and
otherwise clothes the goods with such 157 of this Act by any person who believes
appearance as shall deceive the public and that he or she is or likely to be damaged by
defraud another of his legitimate trade, or such act.
any subsequent vendor of such goods or
any agent of any vendor engaged in selling
such goods with a like purpose; or TITLE V. CRIMES RELATIVE TO OPIUM
AND OTHER PROHIBITED DRUGS
(b) Any person who by any
artifice, or device, or who employs any other
means calculated to induce the false belief Articles 190, 191, 192, 193 and194 of the
that such person is offering the services of Revised Penal Code have been repealed by
another who ahs identified such services in Republic Act No. 6425 (The Dangerous
the mind of the public; or Drugs Act of 1972), as amended by
Presidential Decree No. 1683 and further
(c) Any person who shall make amended by Republic Act No. 7659.
any false statement in the course of trade or
who shall commit any other act contrary to
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
representation of fact, which:
6. Possession or use of prohibited drugs;
11. Possession of opium pipe and other 1. Taking part directly or indirectly in –
paraphernalia for prohibited drugs;
a. any game of monte, jueteng,
12. Unauthorized importation, or any other form of lottery,
manufacture, sale administration, policy, banking, or
dispensation, delivery, percentage game, dog races,
transportation, distribution, or any other game or scheme
possession or use of regulated the results of which depend
drugs, failure to comply with the wholly or chiefly upon chance
provisions of the Act relative to the or hazard; or wherein wagers
keeping of records of prescriptions, consisting of money, articles
sales, purchases, acquisitions of value, or representative of
and/or deliveries, unlawful value are made; or
prescription, unnecessary
prescription of regulated drugs, and b. the exploitation or use of any
maintenance of a den, dive or resort other mechanical invention or
for regulated drug users. contrivance to determine by
chance the loser or winner of
money or any object or
TITLE VI. CRIMES AGAINST PUBLIC representative of value;
MORALS
2. Knowingly permitting any form of
gambling to be carried on in any
Crimes against public morals place owned or controlled by the
offender;
1. Gambling (Art. 195);
3. Being maintainer, conductor, or
banker in a game of jueteng or
2. Importation, sale and possession of
similar game;
lottery tickets or advertisements (Art.
196);
4. Knowingly and without lawful
purpose possessing lottery list,
3. Betting in sport contests (Art. 197); paper, or other matter containing
letters, figures, signs or symbol
4. Illegal betting on horse races (Art. 198); which pertain to or are in any
manner used in the game of jueteng
5. Illegal cockfighting (Art. 199); or any similar game.
3. Possessing, knowingly and with intent to When horse races not allowed
use them, lottery tickets or
advertisements; or 1. July 4 (Republic Act No. 137);
4. Selling or distributing the same without 2. December 30 (Republic Act No. 229);
connivance with the importer of the
same. 3. Any registration or voting days (Republic
Act No. 180, Revised Election
Code); and
Note that possession of any lottery ticket or
advertisement is prima facie evidence of an 4. Holy Thursday and Good Friday
intent to sell, distribute or use the same in (Republic Act No. 946).
the Philippines.
Presidential Decree No. 1602 penalty provided for in its maximum period
(Simplifying and Providing Stiffer and a fine of Six Thousand Pesos.
Penalties for Violations of Philippine
Gambling Laws) The penalty of prision correccional
in its maximum degree and a fine of Six
Section 1. Violations and Penalties. Thousand Pesos shall be imposed upon the
-- The penalty of prision mayor in its maintainer, conductor of the above
medium degree or a fine ranging from Five gambling schemes.
Hundred Pesos to Two Thousand Pesos
and in case of recidivism the penalty of The penalty of prision mayor in its
prision correccional in its medium degree or medium degree and temporary absolute
a fine of ranging from One Thousand Pesos disqualification and a fine of Six Thousand
to Six Thousand Pesos shall be imposed Pesos shall be imposed if the maintainer,
upon: conductor or banker is a government
official, or if a player, promoter, referee,
(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
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 60
a game is gambling or not. But under the X was accused one night and found in his
new gambling law, the skill of the players is possession was a list of jueteng. If the date
immaterial. therein refers to the past, X cannot be
convicted of gambling or illegal possession
Any game is considered gambling where of lottery list without proving that such game
there are bets or wagers placed with the was indeed played on the date stated.
hope to win a prize therefrom. Mere possession is not enough. If the date
refers to the future, X can be convicted by
Under this law, even sports contents like the mere possession with intent to use.
boxing, would be gambling insofar as those This will already bring about criminal liability
who are betting therein are concerned. and there is no need to prove that the game
Under the old penal code, if the skill of the was played on the date stated. If the
player outweighs the chance or hazard possessor was caught, chances are he will
involved in winning the game, the game is not go on with it anymore.
not considered gambling but a sport. It was
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
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 61
(2) The merchandise is not really 2. Such act or acts be highly scandalous
saleable because of its inferior as offending against decency or
quality. A certain manufacturer, good customs;
Bhey Company, manufacture
cigarettes which is not saleable 3. The highly scandalous conduct is not
because the same is irritating to the expressly falling within any other
throat, sponsored a lottery and a article of this Code; and
coupon is inserted in every pack of
cigarette so that one who buys it
shall have a chance to participate.
Due to the coupons, the public
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 62
4. The act or acts complained of be balcony and while there the man
committed in a public place or within started performing acts of
the public knowledge or view. lasciviousness on the woman.
This is an act which even though Article 202. Vagrants and Prostitutes;
done in a private place is Penalty
nonetheless open to public view.
Vagrants
Article 201. Immoral Doctrines, Obscene 1. Any person having no apparent means
Publications and Exhibitions and of subsistence, who has the physical
Indecent Shows ability to work and who neglects to
apply himself or herself to some
Acts punished lawful calling;
1. Those who shall publicly expound or 2. Any person found loitering about public
proclaim doctrines openly contrary to or semi-public buildings or places or
public morals; trampling or wandering about the
country or the streets without visible
2. a. The authors of obscene means of support;
literature, published with their
knowledge in any form, the editors 3. Any idle or dissolute person who ledges
publishing such literature; and the in houses of ill fame;
owners/operators of the
establishment selling the same; 4. Ruffians or pimps and those who
habitually associate with prostitutes;
b. Those who, in theaters, fairs,
cinematographs, or any other place, 5. Any person who, not being included in
exhibit indecent or immoral plays, the provisions of other articles of this
scenes, acts, or shows, it being Code, shall be found loitering in any
understood that the obscene inhabited or uninhabited place
literature or indecent or immoral belonging to another without any
plays, scenes, acts or shows, lawful or justifiable purpose;
whether live or in film, which are
proscribed by virtue hereof, shall 6. Prostitutes, who are women who, for
include those which: (1) glorify money or profit, habitually indulge in
criminals or condone crimes; (2) sexual intercourse or lascivious
serve no other purpose but to satisfy conduct.
the market for violence, lust or
pornography; (3) offend any
race, or religion; (4) tend to abet Prostitutes are women who, for money or
traffic in and use of prohibited profit, habitually indulge in sexual
drugs; and (5) are contrary to law, intercourse or lascivious conduct, are
public order, morals, good customs, deemed to be prostitutes.
established policies, lawful orders,
decrees and edicts; and Test of Obscenity: Whether or not the
material charged as obscene has the
3. Those who shall sell, give away, or tendency to deprave and corrupt the minds
exhibit films, prints, engravings, of those open to the influence thereof, or
sculptures, or literature which are into whose hands such material may come
offensive to morals. to (Kottinger Rule).
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 64
The test is objective. It is more on the effect In People v. Aparici, the accused was a
upon the viewer and not alone on the performer in the defunct Pacific Theatre, a
conduct of the performer. movie house which opens only at midnight.
She was arrested because she was dancing
If the material has the tendency to deprave in a “different kind of way.” She was not
and corrupt the mind of the viewer then the really nude. She was wearing some sort of
same is obscene and where such obscenity an abbreviated bikini with a flimsy cloth over
is made publicly, criminal liability arises. it. However, on her waist hung a string with
a ball reaching down to her private part so
Because there is a government body which that every time she gyrates, it arouses the
deliberates whether a certain exhibition, audience when the ball would actually touch
movies and plays is pornographic or not, if her private part. The defense set up by
such body approves the work the same Aparici was that she should not be
should not be charged under this title. criminally liable for as a matter of fact, she
Because of this, the test of obscenity may is better dressed than the other dancers.
be obsolete already. If allowed by the The Supreme Court ruled that it is not only
Movies and Television Review and the display of the body that gives it a
Classification Board (MTRCB), the question depraved meaning but rather the movement
is moot and academic. of the body coupled with the “tom-tom
drums” as background. Nudity alone is not
The law is not concerned with the moral of the real scale. (Reaction Test)
one person. As long as the pornographic
matter or exhibition is made privately, there Illustration:
is no crime committed under the Revised
Penal Code because what is protected is A sidewalk vendor was arrested and
the morality of the public in general. Third prosecuted for violation of Article 201. It
party is there. Performance of one to appears that the fellow was selling a ballpen
another is not. where one who buys the ballpen can peep
into the top of the pen and see a girl
Illustration: dancing in it. He put up the defense that he
is not the manufacturer and that he was
A sexy dancing performed for a 90 year old merely selling it to earn a living. The fact of
is not obscene anymore even if the dancer selling the ballpen was being done at the
strips naked. But if performed for a 15 year expense of public morals. One does not
old kid, then it will corrupt the kid’s mind. have to be the manufacturer to be criminally
(Apply Kottinger Rule here.) liable. This holds true for those printing or
selling Playboy Magazines.
In some instances though, the Supreme
Court did not stick to this test. It also The common concept of a vagrant is a
considered the intention of the performer. person who loiters n public places without
any visible means of livelihood and without
any lawful purpose.
Vagrancy is not only a crime of the (3) Vagrancy under Article 202 if the
privileged or the poor. The law punishes estate is not fenced or there is no
the act involved here as a stepping stone to clear prohibition against entering.
the commission of other crimes. Without
this article, law enforcers would have no
way of checking a person loitering in the Prostitution and vagrancy are both punished
wrong place in the wrong time. The by the same article, but prostitution can only
purpose of the law is not simply to punish a be committed by a woman.
person because he has no means of
livelihood; it is to prevent further criminality. The term prostitution is applicable to a
Use this when someone loiters in front of woman who for profit or money habitually
your house every night. engages in sexual or lascivious conduct. A
man if he engages in the same conduct –
Any person found wandering in an estate sex for money – is not a prostitute, but a
belonging to another whether public or vagrant.
private without any lawful purpose also
commits vagrancy, unless his acts In law the mere indulging in lascivious
constitutes some other crime in the Revised conduct habitually because of money or
Penal Code. gain would amount to prostitution, even if
there is no sexual intercourse. Virginity is
not a defense. Habituality is the controlling
factor; is has to be more than one time.
Question & Answer
There cannot be prostitution by conspiracy.
If a person is found wandering in an One who conspires with a woman in the
estate belonging to another, whether public prostitution business like pimps, taxi drivers
or private, without any lawful purpose, what or solicitors of clients are guilty of the crime
other crimes may be committed? under Article 341 for white slavery.
18. Illegal use of public funds or property 35. Abandonment of office or position
(Art. 220); (Art. 238);
19. Failure to make delivery of public 36. Usurpation of legislative powers (Art.
funds or property (Art. 221); 239);
21. Evasion through negligence (Art. 38. Usurpation of judicial functions (Art.
224); 241);
1. Offender is a judge;
Malice must be proven. Malice is present
2. He performs any of the following acts: where the delay is sought to favor one party
to the prejudice of the other.
a. Knowingly rendering an
unjust interlocutory order or These have been interpreted by the
decree; or Supreme Court to refer only to judges of the
trial court.
b. Rendering a manifestly
unjust interlocutory order or
decree through inexcusable Article 208. Prosecution of Offenses;
negligence or ignorance. Negligence and Tolerance
Acts Punished
The crime of knowingly rendering an unjust
judgment, or knowingly issuing an unjust 1. Maliciously refraining from instituting
interlocutory order, may be committed only prosecution against violators of the
by a judge of a trial court and never of an law;
appellate court. The reason for this is that
in appellate court, not only one magistrate 2. Maliciously tolerating the
renders or issues the interlocutory order. commission of offenses.
An appellate court functions as a division
and the resolutions thereof are handed
down only after deliberations among the Elements of dereliction of duty in the
members of a division so that it cannot be prosecution of offenses
said that there is malice or inexcusable
negligence or ignorance in the rendering of 1. Offender is a public officer or officer of
a judgment or order that is supposedly the law who has a duty to cause the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 69
(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.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 70
Note: When the attorney acts with A did not commit the crime under Article
malicious abuse of his employment 209, although the lawyer’s act may be
or inexcusable negligence or considered unethical. The client-lawyer
ignorance, there must be damage to relationship between A and B was not yet
his client. established. Therefore, there is no trust to
violate because B has not yet actually
2. Revealing any of the secrets of his engaged the services of the lawyer A. A is
client learned by him in his not bound to B. However, if A would reveal
professional capacity; the confidential matter learned by him from
B, then Article 209 is violated because it is
3. Undertaking the defense of the enough that such confidential matters were
opposing party in the same case, communicated to him in his professional
without the consent of his first client, capacity, or it was made to him with a view
after having undertaken the defense to engaging his professional services.
of said first client of after having
received confidential information Here, matters that are considered
from said client. confidential must have been said to the
lawyer with the view of engaging his
services. Otherwise, the communication
Under the rules on evidence, shall not be considered privileged and no
communications made with prospective trust is violated.
clients to a lawyer with a view to engaging
his professional services are already Illustration:
privileged even though the client-lawyer
relationship did not eventually materialize A went to B, a lawyer/notary public, to have
because the client cannot afford the fee a document notarized. A narrated to B the
being asked by the lawyer. The lawyer and detail of the criminal case. If B will disclose
his secretary or clerk cannot be examined what was narrated to him there is no
thereon. betrayal of trust since B is acting as a notary
public and not as a counsel. The lawyer
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:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 72
what originally would have been indirect stenographic notes. The court
bribery becomes direct bribery. stenographer agreed and he
demanded P 2,000.00.
In direct bribery, consider whether the
official act, which the public officer agreed to Unknown to them, there were law
do, is a crime or not. enforcers who already had a tip that
the court stenographer had been
If it will amount to a crime, it is not doing this before. So they were
necessary that the corruptor should deliver waiting for the chance to entrap him.
the consideration or the doing of the act. They were apprehended and they
The moment there is a meeting of the said they have not done anything
minds, even without the delivery of the yet.
consideration, even without the public
officer performing the act amounting to a Under Article 210, the mere
crime, bribery is already committed on the agreement to commit the act, which
part of the public officer. Corruption is amounts to a crime, is already
already committed on the part of the bribery. That stenographer
supposed giver. The reason is that the becomes liable already for
agreement is a conspiracy involving the consummated crime of bribery and
duty of a public officer. The mere the party who agreed to give that
agreement is a felony already. money is already liable for
consummated corruption, even
If the public officer commits the act which though not a single centavo is
constitutes the crime, he, as well as the delivered yet and even though the
corruptor shall be liable also for that other stenographer had not yet made the
crime. alterations.
The public official does not undertake to Presidential Decree No. 46 prohibits giving
perform an act or abstain from doing an and acceptance of gifts by a public officer or
official duty from what he received. Instead, to a public officer, even during anniversary,
the official simply receives or accepts gifts or when there is an occasion like Christmas,
or presents delivered to him with no other New Year, or any gift-giving anniversary.
reason except his office or public position. The Presidential Decree punishes both
This is always in the consummated stage. receiver and giver.
There is no attempted much less frustrated
stage in indirect bribery. The prohibition giving and receiving gifts
given by reason of official position,
The Supreme Court has laid down the rule regardless of whether or not the same is for
that for indirect bribery to be committed, the past or future favors.
public officer must have performed an act of
appropriating of the gift for himself, his The giving of parties by reason of the
family or employees. It is the act of promotion of a public official is considered a
appropriating that signifies acceptance. crime even though it may call for a
Merely delivering the gift to the public officer celebration. The giving of a party is not
does not bring about the crime. Otherwise it limited to the public officer only but also to
would be very easy to remove a public any member of his family.
officer: just deliver a gift to him.
(5) That the information has not been Short of the amount, plunder does not arise.
convicted previously for any crime Any amount less than P50,000,000.00 is a
involving moral turpitude. violation of the Revised Penal Code or the
Anti-Graft and Corrupt Practices Act.
These conditions are analogous to the
conditions under the State Witness Rule Under the law on plunder, the prescriptive
under Criminal Procedure. period is 20 years commencing from the
time of the last overt act.
The immunity granted the bribe-giver is
limited only to the illegal transaction where Plunder is committed through a combination
the informant gave voluntarily the testimony. or series of overt acts:
If there were other transactions where the
informant also participated, he is not (1) Through misappropriation,
immune from prosecution. The immunity in conversion, misuse, or malversation
one transaction does not extend to other of public funds or raids on the public
transactions. treasury;
mentioned under the third paragraph of violation of the Anti-Graft and Corrupt
Article 19 of the Revised Penal Code. Practices Act. The proceedings are civil and
not criminal in nature.
Where the public officer is still incumbent,
the prosecution shall be with the Any taxpayer having knowledge that a
Ombudsman. public officer has amassed wealth out of
proportion to this legitimate income may file
Where the respondent is separated from a complaint with the prosecutor’s office of
service and the period has not yet the place where the public officer resides or
prescribed, the information shall be filed in holds office. The prosecutor conducts a
any prosecution’s office in the city where the preliminary investigation just like in a
respondent resides. The prosecution shall criminal case and he will forward his
file the case in the Regional Trial Court findings to the office of the Solicitor General.
unless the violation carries a penalty higher The Solicitor General will determine whether
than prision correccional, in which case the there is reasonable ground to believe that
Sandiganbayan has jurisdiction. the respondent has accumulated an
unexplained wealth.
The fact that the government benefited out
of the prohibited act is no defense at all, the If the Solicitor General finds probable
violation being mala prohibita. cause, he would file a petition requesting
the court to issue a writ commanding the
Section 3 (f) of the Anti-Graft and Corrupt respondent to show cause why the ill-gotten
Practices Act – where the public officer wealth described in the petition should not
neglects or refuses to act on a matter be forfeited in favor of the government. This
pending before him for the purpose of is covered by the Rules on Civil Procedure.
obtaining any pecuniary or material benefit The respondent is given 15 days to answer
or advantage in favor of or discriminating the petition. Thereafter trial would proceed.
against another interested party. Judgment is rendered and appeal is just like
in a civil case. Remember that this is not a
The law itself additionally requires that the criminal proceeding. The basic difference is
accused’s dereliction, besides being without that the preliminary investigation is
justification, must be for the purpose of conducted by the prosecutor.
obtaining from any person interested in the
matter some pecuniary or material benefit or
for the purpose of favoring any interested Article 212. Corruption of Public
party, or discriminating against another Officials
interested party. This element is
indispensable.
1. Entering into an agreement with any The essence of this crime is making the
interested party or speculator or government pay for something not received
making use of any other scheme, to or making it pay more than what is due. It is
defraud the government, in dealing also committed by refunding more than the
with any person with regard to amount which should properly be refunded.
furnishing supplies, the making of This occurs usually in cases where a public
contracts, or the adjustment or officer whose official duty is to procure
settlement of accounts relating to supplies for the government or enter into
public property or funds; contract for government transactions,
connives with the said supplier with the
2. Demanding, directly or indirectly, the intention to defraud the government. Also
payment of sums different from or when certain supplies for the government
larger than those authorized by law, are purchased for the high price but its
in collection of taxes, licenses, fees, quantity or quality is low.
and other imposts;
Illustrations:
3. Failing voluntarily to issue a receipt,
as provided by law, for any sum of (1) A public official who is in charge of
money collected by him officially, in procuring supplies for the
the collection of taxes, licenses, government obtained funds for the
fees, and other imposts; first class materials and buys inferior
quality products and pockets the
4. Collecting or receiving, directly or excess of the funds. This is usually
indirectly, by way of payment or committed by the officials of the
otherwise, things or objects of a Department of Public Works and
nature different from that provided Highways.
by law, in the collection of taxes,
licenses, fees, and other imposts. (2) Poorest quality of ink paid as if it
were of superior quality.
Elements of frauds against public treasury (3) One thousand pieces of blanket for
under paragraph 1 certain unit of the Armed Forces of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 82
the Philippines were paid for but Elements of illegal exactions under
actually, only 100 pieces were paragraph 2
bought.
1. Offender is a public officer entrusted
(4) The Quezon City government with the collection of taxes, licenses,
ordered 10,000 but what was fees and other imposts;
delivered was only 1,000 T-shirts,
the public treasury is defrauded 2. He is guilty of any of the following
because the government is made to acts or omissions:
pay that which is not due or for a
higher price. a. Demanding, directly or
indirectly, the payment of
Not all frauds will constitute this crime. sums different from or larger
There must be no fixed allocation or amount than those authorized by law;
on the matter acted upon by the public or
officer.
b. Failing voluntarily to issue a
The allocation or outlay was made the basis receipt, as provided by law,
of fraudulent quotations made by the public for any sum of money
officer involved. collected by him officially; or
This provision of the Revised Penal Code abstract the P100.00, issued a
was provided before the Bureau of Internal receipt for only P400.00. The
Revenue and the Tariff and Customs Code. taxpayer would naturally ask the
Now, we have specific Code which will municipal treasurer why the receipt
apply to them. In the absence of any was only for P400.00. The treasurer
provision applicable, the Revised answered that the P100.00 is
Administrative Code will apply. supposed to be for documentary
stamps. The taxpayer left.
The essence of the crime is not
misappropriation of any of the amounts but He has a receipt for P400.00. The
the improper making of the collection which municipal treasurer turned over to
would prejudice the accounting of collected the government coffers P400.00
amounts by the government. because that is due the government
and pocketed the P100.00.
On the first form of illegal exaction
The mere fact that there was a
In this form, mere demand will consummate demand for an amount different from
the crime, even if the taxpayer shall refuse what is due the government, the
to come across with the amount being public officer already committed the
demanded. That will not affect the crime of illegal exaction.
consummation of the crime.
On the P100.00 which the public
In the demand, it is not necessary that the officer pocketed, will it be
amount being demanded is bigger than malversation or estafa?
what is payable to the government. The
amount being demanded maybe less than In the example given, the public
the amount due the government. officer did not include in the official
receipt the P100.00 and, therefore, it
Note that this is often committed with did not become part of the public
malversation or estafa because when a funds. It remained to be private. It
public officer shall demand an amount is the taxpayer who has been
different from what the law provides, it can defrauded of his P100.00 because
be expected that such public officer will not he can never claim a refund from the
turn over his collection to the government. government for excess payment
since the receipt issued to him was
Illustrations: only P400.00 which is due the
government. As far as the P100.00
(1) A taxpayer goes to the local is concerned, the crime committed is
municipal treasurer to pay real estafa.
estate taxes on his land. Actually,
what is due the government is (3) A taxpayer pays his taxes. What is
P400.00 only but the municipal due the government is P400.00 and
treasurer demanded P500.00. By the public officer issues a receipt for
that demand alone, the crime of P500.00 upon payment of the
illegal exaction is already committed taxpayer of said amount demanded
even though the taxpayer does not by the public officer involved. But he
pay the P500.00. altered the duplicate to reflect only
P400.00 and he extracted the
(2) Suppose the taxpayer came across difference of P100.00.
with P500.00. But the municipal
treasurer, thinking that he would
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 84
In this case, the entire P500.00 was trust by a public officer entrusted to
covered by an official receipt. That make the collection which is
act of covering the whole amount penalized under such article. The
received from the taxpayer in an falsification or alteration made on the
official receipt will have the duplicate can not be said as a
characteristics of becoming a part of means to commit malversation. At
the public funds. The crimes most, the duplicate was altered in
committed, therefore, are the order to conceal the malversation.
following: So it cannot be complexed with the
malversation.
(a) Illegal exaction – for
collecting more than he is It cannot also be said that the
authorized to collect. The falsification is a necessary means to
mere act of demanding is commit the malversation because
enough to constitute this the public officer can misappropriate
crime. the P100.00 without any falsification.
All that he has to do is to get the
(b) Falsification – because there excess of P100.00 and
was an alteration of official misappropriate it. So the falsification
document which is the is a separate accusation.
duplicate of the official
receipt to show an amount However, illegal exaction may be
less than the actual amount complexed with malversation
collected. because illegal exaction is a
necessary means to be able to
(c) Malversation – because of collect the P100.00 excess which
his act of misappropriating was malversed.
the P100.00 excess which
was covered by an official In this crime, pay attention to
receipt already, even though whether the offender is the one
not payable to the charged with the collection of the
government. The entire tax, license or impost subject of the
P500.00 was covered by the misappropriation. If he is not the
receipt, therefore, the whole one authorized by disposition to do
amount became public funds. the collection, the crime of illegal
So when he appropriated the exaction is not committed.
P100 for his own benefit, he
was not extracting private If it did not give rise to the crime of
funds anymore but public illegal exaction, the funds collected
funds. may not have become part of the
public funds. If it had not become
Should the falsification be part of the public funds, or had not
complexed with the malversation? become impressed with being part of
the public funds, it cannot be the
As far as the crime of illegal exaction subject of malversation. It will give
is concerned, it will be the subject of rise to estafa or theft as the case
separate accusation because there, may be.
the mere demand regardless of
whether the taxpayer will pay or not, (3) The Municipal Treasurer demanded
will already consummate the crime P500.00 when only P400.00 was
of illegal exaction. It is the breach of due. He issued the receipt at
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 85
P400.00 and explained to taxpayer give rise to illegal exaction even though a
that the P100 was for documentary provisional receipt has been issued. What
stamps. The Municipal Treasurer the law requires is a receipt in the form
placed the entire P500.00 in the prescribed by law, which means official
vault of the office. When he needed receipt.
money, he took the P100.00 and
spent it. Illustration:
Although the excess P100.00 was Under the rules and regulations of the
not covered by the Official Receipt, it government, payment of checks not
was commingled with the other belonging to the taxpayer, but that of checks
public funds in the vault; hence, it of other persons, should not be accepted to
became part of public funds and settle the obligation of that person.
subsequent extraction thereof
constitutes malversation. Illustration:
The issuance of the Official Receipt is the The crime committed is illegal exaction
operative fact to convert the payment into because the payment by check is not
public funds. The payor may demand a allowed if the check does not pertain to the
refund by virtue of the Official Receipt. taxpayer himself, unless the check is a
manager’s check or a certified check,
In cases where the payor decides to let the amended already as of 1990. (See the
official to “keep the change”, if the latter case of Roman Catholic.)
should pocket the excess, he shall be liable
for malversation. The official has no right Under Article 213, if any of these acts
but the government, under the principle of penalized as illegal exaction is committed
accretion, as the owner of the bigger by those employed in the Bureau of
amount becomes the owner of the whole. Customs or Bureau of Internal Revenue, the
law that will apply to them will be the
On the second form of illegal exaction Revised Administrative Code or the Tariff
and Customs Code or National Revenue
The act of receiving payment due the Code.
government without issuing a receipt will
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 86
This crime does not require damage to the estate or property in the appraisal,
government. distribution or adjudication of which
they had acted;
Elements common to all acts of What crime under the Revised Penal
malversation under Article 217 Code carries the same penalty whether
committed intentionally or through
1. Offender is a public officer; negligence?
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?
he went back to the office, he
changed clothes and he claims that When a demand is made upon an
he forgot to put the money in the accountable officer and he cannot produce
new funds that he would collect the the fund or property involved, there is a
next day. Government auditors prima facie presumption that he had
came and subjected him to converted the same to his own use. There
inspection. He was found short of must be indubitable proof that thing
that amount. He claimed that it is in unaccounted for exists. Audit should be
his house -- with that alone, he was made to determine if there was shortage.
charged with malversation and was Audit must be complete and trustworthy. If
convicted. there is doubt, presumption does not arise.
Any overage or excess in the collection of Presumption arises only if at the time the
an accountable public officer should not be demand to produce the public funds was
extracted by him once it is commingled with made, the accountability of the accused is
the public funds. already determined and liquidated. A
demand upon the accused to produce the
Illustration: funds in his possession and a failure on his
part to produce the same will not bring
When taxpayers pay their accountabilities to about this presumption unless and until the
the government by way of taxes or licenses amount of his accountability is already
like registration of motor vehicles, the known.
taxpayer does not bother to collect loose
change. So the government cashier In Dumagat v. Sandiganbayan, 160 SCRA
accumulates the loose change until this 483, it was held that the prima facie
amounts to a sizable sum. In order to avoid presumption under the Revised Penal Code
malversation, the cashier did not separate arises only if there is no issue as to the
what is due the government which was left accuracy, correctness and regularity of the
to her by way of loose change. Instead, he audit findings and if the fact that public
gets all of these and keeps it in the public funds are missing is indubitably established.
vault/safe. After the payment of the taxes The audit must be thorough and complete
and licenses is through, he gets all the down to the last detail, establishing with
official receipts and takes the sum total of absolute certainty the fact that the funds are
the payment. He then opens the public indeed missing.
vault and counts the cash. Whatever will be
the excess or the overage, he gets. In this
case, malversation is committed.
4. He fails to do so for a period of two Article 220. Illegal use of public funds or
months after such accounts should property
be rendered.
Elements
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.
1. Public officer has government funds Article 225. Escape of Prisoner under the
in his possession; Custody of a Person not a Public Officer
3. Such prisoner escaped from his The crime is infidelity in the custody of
custody; prisoners if the offender involved is the
custodian of the prisoner.
4. He was in connivance with the
prisoner in the latter’s escape. If the offender who aided or consented to
the prisoner’s escaping from confinement,
whether the prisoner is a convict or a
Classes of prisoners involved detention prisoner, is not the custodian, the
crime is delivering prisoners from jail under
1. If the fugitive has been sentenced by Article156.
final judgment to any penalty;
The crime of infidelity in the custody of
2. If the fugitive is held only as prisoners can be committed only by the
detention prisoner for any crime or custodian of a prisoner.
violation of law or municipal
ordinance. If the jail guard who allowed the prisoner to
escape is already off-duty at that time and
he is no longer the custodian of the
Article 224. Evasion through Negligence prisoner, the crime committed by him is
delivering prisoners from jail.
Elements
Note that you do not apply here the principle
1. Offender is a public officer; of conspiracy that the act of one is the act of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 95
Illustration:
Article 226. Removal, Concealment, or
Destruction of Documents If any citizen goes to a public office, desiring
to go over public records and the custodian
Elements of the records had concealed the same so
that this citizen is required to go back for the
1. Offender is a public officer; record to be taken out, the crime of infidelity
is already committed by the custodian who
2. He abstracts, destroys or conceals a removed the records and kept it in a place
document or papers; where it is not supposed to be kept. Here, it
is again the breach of public trust which is
3. Said document or papers should punished.
have been entrusted to such public
officer by reason of his office; Although there is no material damage
caused, mere delay in rendering public
4. Damage, whether serious or not, to service is considered damage.
a third party or to the public interest
has been caused. Removal of public records by the custodian
does not require that the record be brought
Crimes falling under the section on infidelity out of the premises where it is kept. It is
in the custody of public documents can only enough that the record be removed from the
be committed by the public officer who is place where it should be and transferred to
made the custodian of the document in his another place where it is not supposed to be
official capacity. If the officer was placed in kept. If damage is caused to the public
possession of the document but it is not his service, the public officer is criminally liable
duty to be the custodian thereof, this crime for infidelity in the custody of official
is not committed. documents.
Where in case for bribery or corruption, the contents of the document. For that act, he
monetary considerations was marked as violates the confidence or trust reposed on
exhibits, such considerations acquires the him.
nature of a document such that if the same
would be spent by the custodian the crime A crime is already committed regardless of
is not malversation but Infidelity in the whether the contents of the document are
custody of public records, because the secret or private. It is enough that it is
money adduced as exhibits partake the entrusted to him in a sealed form or in a
nature of a document and not as money. closed envelope and he broke the seal or
Although such monetary consideration opened the envelop. Public trust is already
acquires the nature of a document, the best violated if he managed to look into the
evidence rule does not apply here. contents of the document.
Example, photocopies may be presented in
evidence. Distinction between infidelity and theft
4. He breaks the seal or permits them As regard the payroll, which has not been
to be broken. signed by the Mayor, no infidelity is
committed because the document is not yet
a payroll in the legal sense since the
If the official document is sealed or document has not been signed yet.
otherwise placed in an official envelope, the
element of damage is not required. The In "breaking of seal", the word "breaking"
mere breaking of the seal or the mere should not be given a literal meaning. Even
opening of the document would already if actually, the seal was not broken, because
bring about infidelity even though no the custodian managed to open the parcel
damage has been suffered by anyone or by without breaking the seal.
the public at large. The offender does not
have to misappropriate the same. Just
trying to discover or look what is inside is Article 228. Opening of Closed
infidelity already. Documents
4. He does not have proper authority. Article 230. Public Officer Revealing
Secrets of Private individual
3. He has for any reason suspended connection with physical injury cases or
the execution of such order; cases involving human lives, does not want
to appear in court to testify. He may be
4. His superior disapproves the charged for refusal of assistance. As long
suspension of the execution of the as they have been properly notified by
order; subpoena and they disobeyed the
subpoena, they can be charged always if it
5. Offender disobeys his superior can be shown that they are deliberately
despite the disapproval of the refusing to appear in court.
suspension.
It is not always a case or in connection with
the appearance in court that this crime may
Article 233. Refusal of Assistance be committed. Any refusal by the public
officer to render assistance when
1. Offender is a public officer; demanded by competent public authority, as
long as the assistance requested from them
2. A competent authority demands from is within their duty to render and that
the offender that he lend his assistance is needed for public service, the
cooperation towards the public officers who are refusing deliberately
administration of justice or other may be charged with refusal of assistance.
public service;
Note that the request must come from one
3. Offender fails to do so maliciously. public officer to another.
Illustration:
Any public officer who, upon being
requested to render public assistance within A fireman was asked by a private person for
his official duty to render and he refuses to services but was refused by the former for
render the same when it is necessary in the lack of “consideration”.
administration of justice or for public
service, may be prosecuted for refusal of It was held that the crime is not refusal of
assistance. assistance because the request did not
come from a public authority. But if the
This is a crime, which a policeman may fireman was ordered by the authority to put
commit when, being subpoenaed to appear out the fire and he refused, the crime is
in court in connection with a crime refusal of assistance.
investigated by him but because of some
arrangement with the offenders, the If he receives consideration therefore,
policeman does not appear in court bribery is committed. But mere demand will
anymore to testify against the offenders. He fall under the prohibition under the provision
tried to assail the subpoena so that of Republic Act No. 3019 (Anti-Graft and
ultimately the case would be dismissed. It Corrupt Practices Act).
was already held that the policeman could
be prosecuted under this crime of refusal of
assistance and not that of dereliction of Article 234. Refusal to Discharge
duty. Elective Office
Illustration: Elements
3. There is no legal motive for such The maltreatment does not really require
refusal to be sworn in or to physical injuries. Any kind of punishment
discharge the duties of said office. not authorized or though authorized if
executed in excess of the prescribed
degree.
Article 235. Maltreatment of Prisoners
Illustration:
Elements
Make him drink dirty water, sit on ice, eat on
1. Offender is a public officer or a can, make him strip, hang a sign on his
employee; neck saying “snatcher”.
maltreatment of prisoner because the 2. The law requires that he should first
offender is not the custodian. The crime is be sworn in and/or should first give a
only physical injuries. bond;
But if the custodian is present there and he 3. He assumes the performance of the
allowed it, then he will be liable also for the duties and powers of such office;
physical injuries inflicted, but not for
maltreatment because it was not the 4. He has not taken his oath of office
custodian who inflicted the injury. and/or given the bond required by
law.
But if it is the custodian who effected the
maltreatment, the crime will be
maltreatment of prisoners plus a separate Article 237. Prolonging Performance of
charge for physical injuries. Duties and Powers
After having been booked, the prisoner was 3. He continues to exercise the duties
made to show any sign on his arm, hand or and powers of such office.
his neck; “Do not follow my footsteps, I am a
thief.” That is maltreatment of prisoner if the
offended party had already been booked Article 238. Abandonment of Office or
and incarcerated no matter how short, as a Position
prisoner.
Elements
Before this point in time, when he is not yet
a prisoner, the act of hanging a sign on his 1. Offender is a public officer;
neck will only amount to slander because
the idea is to cast dishonor. Any injury 2. He formally resigns from his
inflicted upon him will only give rise to the position;
crime of physical injuries.
3. His resignation has not yet been
accepted;
Article 236. Anticipation of Duties of A
Public Office 4. He abandons his office to the
detriment of the public service.
Elements
Elements
Article 245. Abuses against Chastity
1. Offender is a public officer;
Acts punished
2. A proceeding is pending before such
public officer; 1. Soliciting or making immoral or
indecent advances to a woman
3. There is a question brought before interested in matters pending before
the proper authority regarding his the offending officer for decision, or
jurisdiction, which is not yet decided; with respect to which he is required
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 103
2. He solicits or makes immoral or Three instances when this crime may arise:
indecent advances to a woman;
(1) The woman, who is the offended
3. Such woman is – party, is the party in interest in a
case where the offended is the
a. interested in matters pending investigator or he is required to
before the offender for render a report or he is required to
decision, or with respect to consult with a superior officer.
which he is required to
submit a report to or consult
with a superior officer; or This does not include any casual or
incidental interest. This refers to
b. under the custody of the interest in the subject of the case
offender who is a warden or under investigation.
other public officer directly
charged with the care and If the public officer charged with the
custody of prisoners or investigation or with the rendering of
persons under arrest; or the report or with the giving of advice
by way of consultation with a
c. the wife, daughter, sister or superior, made some immoral or
relative within the same indecent solicitation upon such
degree by affinity of the woman, he is taking advantage of
person in the custody of the his position over the case. For that
offender. immoral or indecent solicitation, a
crime is already committed even if
the woman did not accede to the
The name of the crime is misleading. It solicitation.
implies that the chastity of the offended
party is abused but this is not really the Even if the woman may have lied
essence of the crime because the essence with the hearing officer or to the
of the crime is mere making of immoral or public officer and acceded to him,
indecent solicitation or advances. that does not change the crime
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 104
the offender who made the indecent Administrative sanctions shall not be a bar
or immoral solicitation. to prosecution in the proper courts for
unlawful acts of sexual harassment.
The mother is not included so that
any immoral or indecent solicitation
upon the mother of the prisoner TITLE VIII. CRIMES AGAINST PERSONS
does not give rise to this crime, but
the offender may be prosecuted Crimes against persons
under the Section 28 of Republic Act
No. 3019 (Anti-graft and Corrupt 1. Parricide (Art. 246);
Practices Act).
2. Murder (Art. 248);
Why is the mother left out? Because
it is the mother who easily succumbs 3. Homicide (Art. 249);
to protect her child.
4. Death caused in a tumultuous affray
If the offender were not the (Art. 251);
custodian, then crime would fall
under Republic Act No. 3019 (The 5. Physical injuries inflicted in a
Anti-Graft and Corrupt Practices tumultuous affray (Art. 252);
Act).
6. Giving assistance to suicide (Art.
Republic Act No. 7877 (Anti-Sexual 253);
Harassment Act)
7. Discharge of firearms (Art. 254);
Committed by any person having authority,
influence or moral ascendancy over another 8. Infanticide (Art. 255);
in a work, training or education environment
when he or she demands, requests, or 9. Intentional abortion (Art. 256);
otherwise requires any sexual favor from
the other regardless of whether the 10. Unintentional abortion (Art. 257);
demand, request or requirement for
submission is accepted by the object of the 11. Abortion practiced by the woman
said act (for a passing grade, or granting of herself or by her parents (Art. 258);
scholarship or honors, or payment of a
stipend, allowances, benefits, 12. Abortion practiced by a physician or
considerations; favorable compensation midwife and dispensing of abortives
terms, conditions, promotions or when the (Art. 259);
refusal to do so results in a detrimental
consequence for the victim). 13. Duel (Art. 260);
Also holds liable any person who directs or 14. Challenging to a duel (Art. 261);
induces another to commit any act of sexual
harassment, or who cooperates in the 15. Mutilation (Art. 262);
commission, the head of the office,
educational or training institution solidarily. 16. Serious physical injuries (Art. 263);
18. Less serious physical injuries (Art. the legitimate spouse, of the
265); accused.
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.
(2) When the offender kills or inflicts a justified outburst of passion or a state of
serious physical injury upon the mental disequilibrium. The offended spouse
other spouse and/or paramour while has no time to regain his self-control.
in the act of intercourse, or
immediately thereafter, that is, after If there was already a break of time
surprising. between the sexual act and the killing or
inflicting of the injury, the law presupposes
You have to divide the stages because as that the offender regained his reason and
far as the first stage is concerned, it does therefore, the article will not apply anymore.
not admit of any situation less than sexual
intercourse. As long as the act is continuous, the article
still applies.
So if the surprising took place before any
actual sexual intercourse could be done Where the accused surprised his wife and
because the parties are only in their his paramour in the act of illicit intercourse,
preliminaries, the article cannot be invoked as a result of which he went out to kill the
anymore. paramour in a fit of passionate outburst.
Although about one hour had passed
If the surprising took place after the actual between the time the accused discovered
sexual intercourse was finished, even if the his wife having sexual intercourse with the
act being performed indicates no other victim and the time the latter was actually
conclusion but that sexual intercourse was killed, it was held in People v. Abarca, 153
had, the article does not apply. SCRA 735, that Article 247 was applicable,
as the shooting was a continuation of the
As long as the surprising took place while pursuit of the victim by the accused. Here,
the sexual intercourse was going on, the the accused, after the discovery of the act of
second stage becomes immaterial. infidelity of his wife, looked for a firearm in
Tacloban City.
It is either killing or inflicting physical injuries
while in that act or immediately thereafter. If Article 247 does not provide that the victim
the killing was done while in that act, no is to be killed instantly by the accused after
problem. If the killing was done when surprising his spouse in the act of
sexual intercourse is finished, a problem intercourse. What is required is that the
arises. First, were they surprised in actual killing is the proximate result of the outrage
sexual intercourse? Second, were they overwhelming the accused upon the
killed immediately thereafter? discovery of the infidelity of his spouse. The
killing should have been actually motivated
The phrase “immediately thereafter” has by the same blind impulse.
been interpreted to mean that between the
surprising and the killing of the inflicting of Illustration:
the physical injury, there should be no break
of time. In other words, it must be a A upon coming home, surprised his wife, B,
continuous process. together with C. The paramour was fast
enough to jump out of the window. A got
The article presumes that a legally married the bolo and chased C but he disappeared
person who surprises his or her better half among the neighborhood. So A started
in actual sexual intercourse would be looking around for about an hour but he
overcome by the obfuscation he felt when could not find the paramour. A gave up and
he saw them in the act that he lost his head. was on his way home. Unfortunately, the
The law, thus, affords protection to a paramour, thinking that A was no longer
spouse who is considered to have acted in around, came out of hiding and at that
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 109
(4) Physical injuries – through reckless A abandoned his wife B for two years. To
imprudence, if a third party is support their children, A had to accept a
injured. relationship with another man. A learned of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 110
b. In consideration of a price,
reward or promise;
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 113
2. Offender killed him without any (4) Where the intent to kill is not
justifying circumstances; manifest, the crime committed has
been generally considered as
3. Offender had the intention to kill, physical injuries and not attempted
which is presumed; or frustrated murder or homicide.
4. The killing was not attended by any (5) When several assailants not acting
of the qualifying circumstances of in conspiracy inflicted wounds on a
murder, or by that of parricide or victim but it cannot be determined
infanticide. who inflicted which would which
caused the death of the victim, all
are liable for the victim’s death.
Homicide is the unlawful killing of a person
not constituting murder, parricide or Note that while it is possible to have a crime
infanticide. of homicide through reckless imprudence, it
is not possible to have a crime of frustrated
Distinction between homicide and physical homicide through reckless imprudence.
injuries:
(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
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 116
It is not a tumultuous affray which brings The fight must be tumultuous. The
about the crime; it is the inability to participants must not be members of an
ascertain actual perpetrator. It is necessary organized group. This is different from a
that the very person who caused the death rumble which involves organized groups
can not be known, not that he can not be composed of persons who are to attack
identified. Because if he is known but only others. If the fight is between such groups,
his identity is not known, then he will be even if you cannot identify who, in
charged for the crime of homicide or murder particular, committed the killing, the adverse
under a fictitious name and not death in a party composing the organized group will be
tumultuous affray. If there is a conspiracy, collectively charged for the death of that
this crime is not committed. person.
Both in euthanasia and suicide, the intention 1. A child was killed by the accused;
to the end life comes from the victim
himself; otherwise the article does not 2. The deceased child was less than
apply. The victim must persistently induce 72 hours old.
the offender to end his life. If there is only
slight persuasion to end his life, and the
offender readily assented thereto. This is a crime based on the age of the
victim. The victim should be less than three
days old.
Article 254. Discharge of Firearms
The offender may actually be the parent of
1. Offender discharges a firearm against or the child. But you call the crime infanticide,
at another person; not parricide, if the age of the victim is less
than three days old. If the victim is three
2. Offender had no intention to kill that days old or above, the crime is parricide.
person.
Illustration:
offender to the offended party but on the 3. As a result of the use of violence or
age of the child. In such a case, drugs or beverages upon her, or any
concealment of dishonor as a motive for the other act of the accused, the fetus
mother to have the child killed is mitigating. dies, either in the womb or after
having been expelled therefrom;
Concealment of dishonor is not an element
of infanticide. It merely lowers the penalty. 4. The abortion is intended.
If the child is abandoned without any intent
to kill and death results as a consequence,
the crime committed is not infanticide but Abortion is the violent expulsion of a fetus
abandonment under Article 276. from the maternal womb. If the fetus has
been delivered but it could not subsist by
If the purpose of the mother is to conceal itself, it is still a fetus and not a person.
her dishonor, infanticide through Thus, if it is killed, the crime committed is
imprudence is not committed because the abortion not infanticide.
purpose of concealing the dishonor is
incompatible with the absence of malice in Distinction between infanticide and abortion
culpable felonies.
It is infanticide if the victim is already a
If the child is born dead, or if the child is person less that three days old or 72 hours
already dead, infanticide is not committed. and is viable or capable of living separately
from the mother’s womb.
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.
umbilical cord is cut. He then acquires a Frustrated abortion is committed if the fetus
personality separate from the mother. that is expelled is viable and, therefore, not
dead as abortion did not result despite the
But even though the umbilical cord has employment of adequate and sufficient
been cut, Article 41 of the Civil Code means to make the pregnant woman abort.
provides that if the fetus had an intra-uterine If the means are not sufficient or adequate,
life of less than seven months, it must the crime would be an impossible crime of
survive at least 24 hours after the umbilical abortion. In consummated abortion, the
cord is cut for it to be considered born. fetus must be dead.
If it could be shown that the child, if not 2. Violence is used upon such
killed, would not have survived beyond 24 pregnant woman without intending
hours, the crime is abortion because what an abortion;
was killed was a fetus only.
3. The violence is intentionally exerted;
In abortion, the concealment of dishonor as
a motive of the mother to commit the 4. As a result of the violence, the fetus
abortion upon herself is mitigating. It will dies, either in the womb or after
also mitigate the liability of the maternal having been expelled therefrom.
grandparent of the victim – the mother of
the pregnant woman – if the abortion was
done with the consent of the pregnant Unintentional abortion requires physical
woman. violence inflicted deliberately and voluntarily
by a third person upon the person of the
If the abortion was done by the mother of pregnant woman. Mere intimidation is not
the pregnant woman without the consent of enough unless the degree of intimidation
the woman herself, even if it was done to already approximates violence.
conceal dishonor, that circumstance will not
mitigate her criminal liability. If the pregnant woman aborted because of
intimidation, the crime committed is not
But if those who performed the abortion are unintentional abortion because there is no
the parents of the pregnant woman, or violence; the crime committed is light
either of them, and the pregnant woman threats.
consented for the purpose of concealing her
dishonor, the penalty is the same as that If the pregnant woman was killed by
imposed upon the woman who practiced the violence by her husband, the crime
abortion upon herself . committed is the complex crime of parricide
with unlawful abortion.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 121
liable for homicide or murder, as the case that is, to deprive the
may be. offended party of some
essential organ for
The concept of duel under the Revised reproduction
Penal Code is a classical one.
2. Intentionally making other mutilation,
that is, by lopping or clipping off any
Article 261. Challenging to A Duel part of the body of the offended
party, other than the essential organ
Acts punished for reproduction, to deprive him of
that part of his body.
1. Challenging another to a duel;
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;
In one case, the accused, while conversing 4. When the injured person becomes ill
with the offended party, drew the latter’s or incapacitated for labor for more
bolo from its scabbard. The offended party than 30 days (but must not be more
caught hold of the edge of the blade of his than 90 days), as a result of the
bolo and wounded himself. It was held that physical injuries inflicted.
since the accused did not wound, beat or
assault the offended party, he can not be
guilty of serious physical injuries. The crime of physical injuries is a crime of
result because under our laws the crime of
physical injuries is based on the gravity of
Serious physical injuries the injury sustained. So this crime is always
consummated, notwithstanding the opinion
1. When the injured person becomes of Spanish commentators like Cuello Calon,
insane, imbecile, impotent or blind in Viada, etc., that it can be committed in the
consequence of the physical injuries attempted or frustrated stage.
inflicted;
If the act does not give rise to injuries, you
2. When the injured person – will not be able to say whether it is
attempted slight physical injuries, attempted
a. Loses the use of speech or less serious physical injuries, or attempted
the power to hear or to smell, serious physical injuries unless the result is
or loses an eye, a hand, there.
afoot, an arm, or a leg;
The reason why there is no attempted or
b. Loses the use of any such frustrated physical injuries is because the
member; or crime of physical injuries is determined on
the gravity of the injury. As long as the
c. Becomes incapacitated for injury is not there, there can be no
the work in which he was attempted or frustrated stage thereof.
theretofore habitually
engaged, in consequence of Classification of physical injuries:
the physical injuries inflicted;
(1) Between slight physical injuries and
3. When the person injured – less serious physical injuries, you
have a duration of one to nine days
a. Becomes deformed; or if slight physical injuries; or 10 days
to 20 days if less serious physical
b. Loses any other member of injuries. Consider the duration of
his body; or healing and treatment.
Serious physical injuries is punished with the use of any such member or any of the
higher penalties in the following cases: serious physical injuries or the less serious
physical injuries. Also if the victim is below
(1) If it is committed against any of the 12, or becomes incapacitated for the work
persons referred to in the crime of he habitually engages in for 30, 10, 1-9
parricide under Article 246; days.
(2) If any of the circumstances It holds the parents, school authorities who
qualifying murder attended its consented or who had actual knowledge if
commission. they did nothing to prevent it, officers and
members who planned, knowingly
Thus, a father who inflicts serious physical cooperated or were present, present alumni
injuries upon his son will be liable for of the organization, owner of the place
qualified serious physical injuries. where such occurred liable.
(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 --
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 130
(d) Where the victim is a Since rape is not a private crime anymore, it
religious, that is, a member can be prosecuted even if the woman does
of a legitimate religious not file a complaint.
vocation and the offender
knows the victim as such If carnal knowledge was made possible
before or at the time of the because of fraudulent machinations and
commission of the offense; grave abuse of authority, the crime is rape.
This absorbs the crime of qualified and
(e) Where the victim is a child simple seduction when no force or violence
under 7 yrs of age; was used, but the offender abused his
authority to rape the victim.
(f) Where the offender is a
member of the AFP, its Under Article 266-C, the offended woman
paramilitary arm, the PNP, or may pardon the offender through a
any law enforcement agency subsequent valid marriage, the effect of
and the offender took which would be the extinction of the
advantage of his position; offender’s liability. Similarly, the legal
husband may be pardoned by forgiveness
(g) Where the offender is of the wife provided that the marriage is not
afflicted with AIDS or other void ab initio. Obviously, under the new
sexually transmissible law, the husband may be liable for rape if
diseases, and he is aware his wife does not want to have sex with him.
thereof when he committed It is enough that there is indication of any
amount of resistance as to make it rape.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 131
On the other hand, as long as there is an 7. Exploitation of child labor (Art. 273);
intent to effect sexual cohesion, although
unsuccessful, the crime becomes attempted 8. Services rendered under compulsion
rape. However, if that intention is not in payment of debts (Art. 274).
proven, the offender can only be convicted
of acts of lasciviousness.
Crimes against security
The main distinction between the crime of
attempted rape and acts of lasciviousness is 1. Abandonment of persons in danger
the intent to lie with the offended woman. and abandonment of one's own
victim (Art. 275);
In a case where the accused jumped upon a
woman and threw her to the ground, 2. Abandoning a minor (Art. 276);
although the accused raised her skirts, the
accused did not make any effort to remove 3. Abandonment of minor by person
her underwear. Instead, he removed his entrusted with his custody;
own underwear and placed himself on top of indifference of parents (Art. 277);
the woman and started performing sexual
movements. Thereafter, when he was 4. Exploitation of minors (Art. 278);
finished, he stood up and left. The crime
committed is only acts of lasciviousness and 5. Trespass to dwelling (Art. 280);
not attempted rape. The fact that he did not
remove the underwear of the victim 6. Other forms of trespass (Art. 281);
indicates that he does not have a real
intention to effect a penetration. It was only 7. Grave threats (Art. 282);
to satisfy a lewd design.
8. Light threats (Art. 283);
Is there a complex crime under Article 48 of
kidnapping with rape? Read kidnapping. 9. Other light threats (Art. 285);
Article 267. Kidnapping and Serious If a private person commits the crime of
Illegal Detention kidnapping or serious illegal detention, even
though a public officer conspires therein, the
Elements crime cannot be arbitrary detention. As far
as that public officer is concerned, the crime
1. Offender is a private individual; is also illegal detention.
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
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 134
Tom Cruz invited Nicole Chizmacks for a The penalty for kidnapping is higher than for
snack. They drove along Roxas Boulevard, forcible abduction. This is wrong because if
along the Coastal Road and to Cavite. The the offender knew about this, he would
woman was already crying and wanted to perform lascivious acts upon the woman
be brought home. Tom imposed the and be charged only for forcible abduction
condition that Nicole should first marry him. instead of kidnapping or illegal detention.
Nicole found this as, simply, a mission He thereby benefits from this absurdity,
impossible. The crime committed in this which arose when Congress amended
case is grave coercion. But if after they Article 267, increasing the penalty thereof,
drove to Cavite, the suitor placed the without amending Article 342 on forcible
woman in a house and would not let her out abduction.
until she agrees to marry him, the crime
would be serious illegal detention. Article 267 has been modified by Republic
Act No. 7659 in the following respects:
If the victim is a woman or a public officer,
the detention is always serious – no matter (1) Illegal detention becomes serious
how short the period of detention is. when it shall have lasted for more
than three days, instead of five days
Circumstances which make illegal detention as originally provided;
serious
(2) In paragraph 4, if the person
(1) When the illegal detention lasted for kidnapped or detained was a minor
three days, regardless of who the and the offender was anyone of the
offended party is; parents, the latter has been
expressly excluded from the
(2) When the offended party is a female, provision. The liability of the parent
even if the detention lasted only for is provided for in the last paragraph
minutes; of Article 271;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 135
Article 268. Slight Illegal Detention If the illegal detention is serious, however,
even if the offender voluntarily released the
Elements offended party, and such release was within
three days from the time the detention
1. Offender is a private individual; began, even if the offender has not
accomplished his purpose in detaining the
2. He kidnaps or detains another, or in offended party, and even if there is no
any other manner deprives him of criminal prosecution yet, such voluntary
his liberty. release will not mitigate the criminal liability
of the offender.
3. The act of kidnapping or detention is
illegal; One who furnishes the place where the
offended party is being held generally acts
4. The crime is committed without the as an accomplice. But the criminal liability
attendance of any of the in connection with the kidnapping and
circumstances enumerated in Article serious illegal detention, as well as the
267. slight illegal detention, is that of the principal
and not of the accomplice.
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.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 137
What is ransom? It is the money, price or This felony consists in making an arrest or
consideration paid or demanded for detention without legal or reasonable
redemption of a captured person or ground for the purpose of delivering the
persons, a payment that releases a person offended party to the proper authorities.
from captivity.
The offended party may also be detained
The definition of ransom under the Lindberg but the crime is not illegal detention
law of the U.S. has been adopted in our because the purpose is to prosecute the
jurisprudence in People v. Akiran, 18 person arrested. The detention is only
SCRA 239, 242, such that when a creditor incidental; the primary criminal intention of
detains a debtor and releases the latter only the offender is to charge the offended party
upon the payment of the debt, such for a crime he did not actually commit.
payment of the debt, which was made a
condition for the release is ransom, under Generally, this crime is committed by
this article. incriminating innocent persons by the
offender’s planting evidence to justify the
In the case of People v. Roluna, decided arrest – a complex crime results, that is,
March 29, 1994, witnesses saw a person unlawful arrest through incriminatory
being taken away with hands tied behind his machinations under Article 363.
back and was not heard from for six years.
Supreme Court reversed the trial court If the arrest is made without a warrant and
ruling that the men accused were guilty of under circumstances not allowing a
kidnapping with murder. The crime is only warrantless arrest, the crime would be
slight illegal detention under Article 268, unlawful arrest.
aggravated by a band, since none of the
circumstances in Article 267 has been If the person arrested is not delivered to the
proved beyond a reasonable doubt. The authorities, the private individual making the
fact that the victim has been missing for six arrest incurs criminal liability for illegal
years raises a presumption of death, but detention under Article 267 or 268.
from this disputable presumption of death, it
should not be further presumed that the If the offender is a public officer, the crime is
persons who were last seen with the arbitrary detention under Article 124.
absentee is responsible for his
disappearance. If the detention or arrest is for a legal
ground, but the public officer delays delivery
of the person arrested to the proper judicial
Article 269. Unlawful Arrest authorities, then Article 125 will apply.
If the accused is any of the parents, Article This is committed if anyone shall purchase,
267 does not apply; Articles 270 and 271 kidnap, or detain a human being for the
apply. purpose of enslaving him. The penalty is
increased if the purpose of the offender is to
If the taking is with the consent of the assign the offended party to some immoral
parents, the crime in Article 270 is traffic.
committed.
This is distinguished from illegal detention
In People v. Generosa, it was held that by the purpose. If the purpose of the
deliberate failure to return a minor under kidnapping or detention is to enslave the
one’s custody constitutes deprivation of offended party, slavery is committed.
liberty. Kidnapping and failure to return a
minor is necessarily included in kidnapping The crime is slavery if the offender is not
and serious illegal detention of a minor engaged in the business of prostitution. If
under Article 267(4). he is, the crime is white slave trade under
Article 341.
In People v. Mendoza, where a minor child
was taken by the accused without the
knowledge and consent of his parents, it Article 273. Exploitation of Child Labor
was held that the crime is kidnapping and
serious illegal detention under Article 267, Elements
not kidnapping and failure to return a minor
under Article 270. 1. Offender retains a minor in his
services;
But remember Republic Act No. 7610 1. Qualified trespass to dwelling – This
(Special Protection of Children against Child may be committed by any private
Abuse, Exploitation and Discrimination Act). person who shall enter the dwelling
It applies to minors below 18 years old, not of another against the latter’s will.
16 years old as in the Revised Penal Code. The house must be inhabited at the
As long as the employment is inimical – time of the trespass although the
even though there is no physical risk – and occupants are out. Or offender
detrimental to the child’s interest – against breaks in with force and violence
moral, intellectual, physical, and mental (Article 280).
development of the minor – the
establishment will be closed. 2. Trespass to property - Offender
enters the closed premises or
Article 278 has no application if minor is 16 fenced estate of another; such close
years old and above. But the exploitation premises or fenced estate is
will be dealt with by Republic Act No. 7610. uninhabited; there is a manifest
prohibition against entering such
If the minor so employed would suffer some closed premises or fenced estate;
injuries as a result of a violation of Article and offender has not secured the
278, Article 279 provides that there would permission of the owner or caretaker
be additional criminal liability for the thereof (Article 281).
resulting felony.
(See also Presidential Decree No. 1227
Illustration: regarding unlawful entry into any military
base in the Philippines.)
The owner of a circus employed a child
under 16 years of age to do a balancing act
on the tightrope. The crime committed is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 142
Dwelling – This is the place that a person On violence, Cuello Calon opines that
inhabits. It includes the dependencies violence may be committed not only against
which have interior communication with the persons but also against things. So,
house. It is not necessary that it be the breaking the door or glass of a window or
permanent dwelling of the person. So, a door constitutes acts of violence. Our
person’s room in a hotel may be considered Supreme Court followed this view in People
a dwelling. It also includes a room where v. Tayag. Violence or intimidation must,
one resides as a boarder. however, be anterior or coetaneous with the
entrance and must not be posterior. But if
If the purpose in entering the dwelling is not the violence is employed immediately after
shown, trespass is committed. If the the entrance without the consent of the
purpose is shown, it may be absorbed in the owner of the house, trespass is committed.
crime as in robbery with force upon things, If there is also violence or intimidation, proof
the trespass yielding to the more serious of prohibition to enter is no longer
crime. But if the purpose is not shown and necessary.
while inside the dwelling he was found by
the occupants, one of whom was injured by Distinction between qualified trespass to
him, the crime committed will be trespass to dwelling and violation of domicile
dwelling and frustrated homicide, physical
injuries, or if there was no injury, unjust Unlike qualified trespass to dwelling,
vexation. violation of domicile may be committed only
by a public officer or employee and the
If the entry is made by a way not intended violation may consist of any of the three
for entry, that is presumed to be against the acts mentioned in Article 128 – (1) entering
will of the occupant (example, entry through the dwelling against the will of the owner
a window). It is not necessary that there be without judicial order; (2) searching papers
a breaking. or other effects found in such dwelling
without the previous consent of the owner
“Against the will” -- This means that the thereof; and (3) refusing to leave the
entrance is, either expressly or impliedly, dwelling when so requested by the owner
prohibited or the prohibition is presumed. thereof, after having surreptitiously entered
Fraudulent entrance may constitute such dwelling.
trespass. The prohibition to enter may be
made at any time and not necessarily at the Cases when Article 280 does not apply:
time of the entrance.
(1) When the purpose of the entrance is
To prove that an entry is against the will of to prevent serious harm to himself,
the occupant, it is not necessary that the the occupant or third persons;
entry should be preceded by an express
prohibition, provided that the opposition of (2) When the purpose of the offender in
the occupant is clearly established by the entering is to render some service to
circumstances under which the entry is humanity or justice;
made, such as the existence of enmity or
strained relations between the accused and (3) Anyone who shall enter cafes,
the occupant. taverns, inns and other public
houses while they are open .
arrest him without any warrant even if in the (1) Grave threats – when the wrong
process he enters the house of another threatened to be inflicted amounts to
against the latter’s will. a crime. The case falls under Article
282.
Article 281. Other forms of trespass
(2) Light threats – if it does not amount
Elements to a crime. The case falls under
Article 283.
1. Offender enters the closed premises
or the fenced estate of another; But even if the harm intended is in the
nature of a crime, if made orally and in the
2. The entrance is made while either of heat of anger and after the oral threat, the
them is uninhabited; issuer of the threat did not pursue the act,
the crime is only other light threats under
3. The prohibition to enter is manifest; Article 285.
4. The trespasser has not secured the To constitute grave threats, the threats must
permission of the owner or the refer to a future wrong and is committed by
caretaker thereof. acts or through words of such efficiency to
inspire terror or fear upon another. It is,
Article 282. Grave Threats therefore, characterized by moral pressure
that produces disquietude or alarm.
Acts punished:
The greater perversity of the offender is
1. Threatening another with the manifested when the threats are made
infliction upon his person, honor or demanding money or imposing any
property or that of this family of any condition, whether lawful or not, and the
wrong amounting to a crime and offender shall have attained his purpose.
demanding money or imposing any So the law imposes upon him the penalty
other condition, even though not next lower in degree than that prescribed for
unlawful, and the offender attained the crime threatened to be committed. But
his purpose; if the purpose is not attained, the penalty
lower by two degrees is imposed. The
2. Making such threat without the maximum period of the penalty is imposed if
offender attaining his purpose; the threats are made in writing or through a
middleman as they manifest evident
3. Threatening another with the premeditation.
infliction upon his person, honor or
property or that of his family of any Distinction between threat and coercion:
wrong amounting to a crime, the
threat not being subject to a The essence of coercion is violence or
condition. intimidation. There is no condition involved;
hence, there is no futurity in the harm or
wrong done.
Threat is a declaration of an intention or
determination to injure another by the In threat, the wrong or harm done is future
commission upon his person, honor or and conditional. In coercion, it is direct and
property or upon that of his family of some personal.
wrong which may or may not amount to a
crime: Distinction between threat and robbery:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 144
In Lee v. CA, 201 SCAR 405, it was held In the other light coercions or unjust
that neither the crime of threats nor coercion vexation embraced in the second
is committed although the accused, a paragraph, violence is absent.
branch manager of a bank made the
complainant sign a withdrawal slip for the In unjust vexation, any act committed
amount needed to pay the spurious dollar without violence, but which unjustifiably
check she had encashed, and also made annoys or vexes an innocent person
her execute an affidavit regarding the return amounts to light coercion.
of the amount against her better sense and
judgment. According to the court, the As a punishable act, unjust vexation should
complainant may have acted reluctantly and include any human conduct which, although
with hesitation, but still, it was voluntary. It not productive of some physical or material
is different when a complainant refuses harm would, however, unjustifiably annoy or
absolutely to act such an extent that she vex an innocent person.
becomes a mere automaton and acts
mechanically only, not of her own will. In It is distinguished from grave coercion under
this situation, the complainant ceases to the first paragraph by the absence of
exits as an independent personality and the violence.
person who employs force or intimidation is,
in the eyes of the law, the one acting; while Illustration:
the hand of the complainant sign, the will
that moves it is the hand of the offender. Persons stoning someone else’s house. So
long as stoning is not serious and it is
intended to annoy, it is unjust vexation. It
Article 287. Light Coercions disturbs the peace of mind.
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;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 148
In a case decided by the Supreme Court, a whether or not the principal or master
spouse who rummaged and found love suffered damages.
letters of husband to mistress does not
commit this crime, but the letters are The essence of this crime is that the
inadmissible in evidence because of offender learned of the secret in the course
unreasonable search and seizure. The of his employment. He is enjoying a
ruling held that the wife should have applied confidential relation with the employer or
for a search warrant. master so he should respect the privacy of
matters personal to the latter.
Distinction from estafa, damage to property,
and unjust vexation: If the matter pertains to the business of the
employer or master, damage is necessary
If the act had been executed with intent of and the agent, employee or servant shall
gain, it would be estafa; always be liable. Reason: no one has a
right to the personal privacy of another.
If, on the other hand, the purpose was not to
defraud, but only to cause damage to
another’s, it would merit the qualification of Article 292. Revelation of Industrial
damage to property; Secrets
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
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 150
because the specific penalty is provided in that applies only to crimes against persons,
the law. if the killing in a robbery is committed with
treachery, the treachery will be considered a
In Napolis v. CA, it was held that when generic aggravating circumstance because
violence or intimidation and force upon of the homicide.
things are both present in the robbery, the
crime is complex under Article 48. When two or more persons are killed during
the robbery, such should be appreciated as
In robbery with violence of intimidation, the an aggravating circumstance.
taking is complete when the offender has
already the possession of the thing even if As long as there is only one robbery,
he has no opportunity to dispose of it. regardless of the persons killed, you only
have one crime of robbery with homicide.
In robbery with force upon things, the things Note, however, that “one robbery” does not
must be brought outside the building for mean there is only one taking.
consummated robbery to be committed.
Illustration:
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.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 152
Within the compound, there were quarters is a stranger to the robbers. It is enough
of the laborers. They robbed each of the that the homicide was committed by reason
quarters. The Supreme Court held that of the robbery or on the occasion thereof.
there was only one count of robbery
because when they decided and determined Illustration:
to rob the compound, they were only
impelled by one criminal intent to rob. There are two robbers who broke into a
house and carried away some valuables.
With more reason, therefore, if in a robbery, After they left such house these two robbers
the offender took away property belonging decided to cut or divide the loot already so
to different owners, as long as the taking that they can go of them. So while they are
was done at one time, and in one place, dividing the loot the other robber noticed
impelled by the same criminal intent to gain, that the one doing the division is trying to
there would only be one count of robbery. cheat him and so he immediately boxed
him. Now this robber who was boxed then
In robbery with homicide as a single pulled out his gun and fired at the other one
indivisible offense, it is immaterial who gets killing the latter. Would that bring about the
killed. Even though the killing may have crime of robbery with homicide? Yes. Even
resulted from negligence, you will still if the robbery was already consummated,
designate the crime as robbery with the killing was still by reason of the robbery
homicide. because they quarreled in dividing the loot
that is the subject of the robbery.
Illustration:
In People v. Domingo, 184 SCRA 409, on
On the occasion of a robbery, one of the the occasion of the robbery, the storeowner,
offenders placed his firearm on the table. a septuagenarian, suffered a stroke due to
While they were ransacking the place, one the extreme fear which directly caused his
of the robbers bumped the table. As a death when the robbers pointed their guns
result, the firearm fell on the floor and at him. It was held that the crime committed
discharged. One of the robbers was the was robbery with homicide. It is immaterial
one killed. Even though the placing of the that death supervened as a mere accident
firearm on the table where there is no safety as long as the homicide was produced by
precaution taken may be considered as one reason or on the occasion of the robbery,
of negligence or imprudence, you do not because it is only the result which matters,
separate the homicide as one of the product without reference to the circumstances or
of criminal negligence. It will still be robbery causes or persons intervening in the
with homicide, whether the person killed is commission of the crime which must be
connected with the robbery or not. He need considered.
not also be in the place of the robbery.
Remember also that intent to rob must be
In one case, in the course of the struggle in proved. But there must be an allegation as
a house where the robbery was being to the robbery not only as to the intention to
committed, the owner of the place tried to rob.
wrest the arm of the robber. A person
several meters away was the one who got If the motive is to kill and the taking is
killed. The crime was held to be robbery committed thereafter, the crimes committed
with homicide. are homicide and theft. If the primordial
intent of the offender is to kill and not to rob
Note that the person killed need not be one but after the killing of the victims a robbery
who is identified with the owner of the place was committed, then there are will be two
where the robbery is committed or one who separate crimes.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 153
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
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 156
was a necessary means to facilitate the Article 295. Robbery with Physical
robbery; thus, the complex crimes of Injuries, Committed in An Uninhabited
robbery with serious physical injuries and Place and by A Band
serious illegal detention.
Robbery with violence against or
But if the victims were detained because of intimidation of person qualified is qualified if
the timely arrival of the police, such that the it is committed
offenders had no choice but to detain the
victims as hostages in exchange for their 1. In an uninhabited place;
safe passage, the detention is absorbed by
the crime of robbery and is not a separate 2. By a band;
crime. This was the ruling in People v.
Astor. 3. By attacking a moving train, street
car, motor vehicle, or airship;
c. By using false keys, Two predicates that will give rise to the
picklocks or similar tools; or crime as robbery:
3. Once inside the building, offender 2. The entering will not give rise to
took personal property belonging to robbery even if something is taken
another with intent to gain. inside. It is the breaking of the
receptacle or closet or cabinet where
the personal property is kept that will
Elements under subdivision (b): give rise to robbery, or the taking of
a sealed, locked receptacle to be
broken outside the premises.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 158
The entry was made through a fire escape. If the entering does not characterize the
The fire escape was intended for egress. taking inside as one of robbery with force
The entry will not characterize the taking as upon things, it is the conduct inside that
one of robbery because it is an opening would give rise to the robbery if there would
intended for egress, although it may not be be a breaking of sealed, locked or closed
intended for entrance. If the entering were receptacles or cabinet in order to get the
done through the window, even if the personal belongings from within such
window was not broken, that would receptacles, cabinet or place where it is
characterize the taking of personal property kept.
inside as robbery because the window is not
an opening intended for entrance. If in the course of committing the robbery
within the premises some interior doors are
Illustration: broken, the taking from inside the room
where the door leads to will only give rise to
On a sari-sari store, a vehicle bumped the theft. The breaking of doors contemplated in
wall. The wall collapsed. There was a the law refers to the main door of the house
small opening there. At night, a man and not the interior door.
entered through that opening without
breaking the same. The crime will already But if it is the door of a cabinet that is
be robbery if he takes property from within broken and the valuable inside the cabinet
because that is not an opening intended for was taken, the breaking of the cabinet door
the purpose. would characterize the taking as robbery.
Although that particular door is not included
Even of there is a breaking of wall, roof, as part of the house, the cabinet keeps the
floor or window, but the offender did not contents thereof safe.
enter, it would not give rise to robbery with
force upon things.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 159
Use of picklocks or false keys refers to the inside claiming that it is the product of
entering into the premises – If the picklock hoarding and then drove away. What crime
or false key was used not to enter the was committed?
premises because the offender had already
entered but was used to unlock an interior It is only theft because the premises
door or even a receptacle where the where the simulation of public authority was
valuable or personal belonging was taken, committed is not an inhabited house, not a
the use of false key or picklock will not give public building, and not a place devoted to
rise to the robbery with force upon things religious worship. Where the house is a
because these are considered by law as private building or is uninhabited, even
only a means to gain entrance, and not to though there is simulation of public authority
extract personal belongings from the place in committing the taking or even if he used a
where it is being kept. fictitious name, the crime is only theft.
The law classifies robbery with force upon Note that in the crime of robbery with force
things as those committed in: upon things, what should be considered is
the means of entrance and means of taking
(1) an inhabited place; the personal property from within. If those
means do not come within the definition
(2) public buildings; under the Revised Penal Code, the taking
will only give rise to theft.
(3) a place devoted to religious worship.
Those means must be employed in
The law also considers robbery committed entering. If the offender had already
not in an inhabited house or in a private entered when these means were employed,
building. anything taken inside, without breaking of
any sealed or closed receptacle, will not
Note that the manner of committing the give rise to robbery.
robbery with force upon things is not the
same. Illustration:
When the robbery is committed in a house A found B inside his (A’s) house. He asked
which is inhabited, or in a public building or B what the latter was doping there. B
in a place devoted to religious worship, the claimed he is an inspector from the local city
use of fictitious name or pretension to government to look after the electrical
possess authority in order to gain entrance installations. At the time B was chanced
will characterize the taking inside as robbery upon by A, he has already entered. So
with force upon things. anything he took inside without breaking of
any sealed or closed receptacle will not give
rise to robbery because the simulation of
public authority was made not in order to
Question & Answer
enter but when he has already entered.
a. The entrance was effected Article 305 defines false keys to include the
through an opening not following:
intended for entrance or
egress; 1. Tools mentioned in Article 304;
b. A wall, roof, floor, or outside 2. Genuine keys stolen from the owner;
door or window was broken;
3. Any key other than those intended
c. The entrance was effected by the owner for use in the lock
through the use of false keys, forcibly opened by the offender.
picklocks or other similar
tools;
Brigandage – This is a crime committed by
more than three armed persons who form a
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 161
Burden of proof is upon fence to overcome Where the large cattle was received by the
presumption; if explanation insufficient or offender who thereafter misappropriated it,
unsatisfactory, court will convict. This is a the crime is qualified theft under Article 310
malum prohibitum so intent is not material. if only physical or material possession
But if prosecution is under the Revised thereof was yielded to him. If both material
Penal Code, as an accessory, the criminal and juridical possession thereof was yielded
intent is controlling. to him who misappropriated the large cattle,
the crime would be estafa under Article 315
When there is notice to person buying, there (1b).
may be fencing such as when the price is
way below ordinary prices; this may serve
as notice. He may be liable for fencing
even if he paid the price because of the
presumption.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 164
Presidential Decree No. 533 is not a special If the property stolen is any property of the
law in the context of Article 10 of the National Library or of the National Museum
Revised Penal Code. It merely modified the
penalties provided for theft of large cattle Article 312. Occupation of Real Property
under the Revised Penal Code and or Usurpation of Real Rights in Property
amended Article 309 and 310. This is
explicit from Section 10 of the Presidential Acts punished:
Decree. Consequently, the trial court
should not have convicted the accused of 1. Taking possession of any real
frustrated murder separately from cattle- property belonging to another by
rustling, since the former should have been means of violence against or
absorbed by cattle-rustling as killing was a intimidation of persons;
result of or on the occasion of cattle-rustling.
It should only be an aggravating 2. Usurping any real rights in property
circumstance. But because the information belonging to another by means of
did not allege the injury, the same can no violence against or intimidation of
longer be appreciated; the crime should, persons.
therefore be only, simple cattle-rustling.
(People v. Martinada, February 13, 1991)
Elements
Acts punished under paragraph (a) bracelet and draws a check without
insufficient funds. The jeweler sells
1. Using fictitious name; her the bracelet solely because of
the consideration in the check.)
2. Falsely pretending to possess
power, influence, qualifications, (3) It does not cover checks where the
property, credit, agency, business or purpose of drawing the check is to
imaginary transactions; or guarantee a loan as this is not an
obligation contemplated in this
3. By means of other similar deceits. paragraph
In Saddul Jr. v. CA, 192 SCRA 277, it was existing obligation, there is no estafa as
held that the act of using or disposing of damage had already been done. The
another’s property as if it were one’s own, or drawer is liable under Batas Pambansa Blg.
of devoting it to a purpose or use different 22.
from that agreed upon, is a misappropriation
and conversion to the prejudice of the For criminal liability to attach under Batas
owner. Conversion is unauthorized Pambansa Blg. 22, it is enough that the
assumption an exercise of the right of check was issued to "apply on account or
ownership over goods and chattels for value" and upon its presentment it was
belonging to another, resulting in the dishonored by the drawee bank for
alteration of their condition or exclusion of insufficiency of funds, provided that the
the owner’s rights. drawer had been notified of the dishonor
and inspite of such notice fails to pay the
In Allied Bank Corporation v. Secretary holder of the check the full amount due
Ordonez, 192 SCRA 246, it was held that thereon within five days from notice.
under Section 13 of Presidential Decree No.
115, the failure of an entrustee to turn over Under Batas Pambansa Blg. 22, a drawer
the proceeds of sale of the goods covered must be given notice of dishonor and given
by the Trust Receipt, or to return said goods five banking days from notice within which
if they are not sold, is punishable as estafa to deposit or pay the amount stated in the
Article 315 (1) (b). check to negate the presumtion that drawer
knew of the insufficiency. After this period,
it is conclusive that drawer knew of the
On issuance of a bouncing check insufficiency, thus there is no more defense
to the prosecution under Batas Pambansa
The issuance of check with insufficient Blg. 22.
funds may be held liable for estafa and
Batas Pambansa Blg. 22. Batas Pambansa The mere issuance of any kind of check
Blg. 22 expressly provides that prosecution regardless of the intent of the parties,
under said law is without prejudice to any whether the check is intended to serve
liability for violation of any provision in the merely as a guarantee or as a deposit,
Revised Penal Code. Double Jeopardy makes the drawer liable under Batas
may not be invoked because a violation of Pambansa Blg. 22 if the check bounces. As
Batas Pambansa Blg. 22 is a malum a matter of public policy, the issuance of a
prohibitum and is being punished as a crime worthless check is a public nuisance and
against the public interest for undermining must be abated.
the banking system of the country, while
under the RevisedPenal Code, the crime is In De Villa v. CA, decided April 18, 1991,
malum in se which requires criminal intent it was held that under Batas Pambansa Blg.
and damage to the payee and is a crime 22, there is no distinction as to the kind of
against property. check issued. As long as it is delivered
within Philippine territory, the Philippine
In estafa, the check must have been issued courts have jurisdiction. Even if the check is
as a reciprocal consideration for parting of only presented to and dishonored in a
goods (kaliwaan). There must be Philippine bank, Batas Pambansa Blg. 22
concomitance. The deceit must be prior to applies. This is true in the case of dollar or
or simultaneous with damage done, that is, foreign currency checks. Where the law
seller relied on check to part with goods. If makes no distinction, none should be made.
it is issued after parting with goods as in
credit accommodation only, there is no In People v. Nitafan, it was held that as
estafa. If the check is issued for a pre- long as instrument is a check under the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 171
Acts punished
Elements:
Arson
1. Personal property is
mortgaged under the Chattel Kinds of arson
Mortgage Law;
1. Arson, under Section 1 of
2. Offender knows that such Presidential Decree No. 1613;
property is so mortgaged;
2. Destructive arson, under Article 320
3. Offender removes such of the Revised Penal Code, as
mortgaged personal property amended by Republic Act No. 7659;
to any province or city other
than the one in which it was 3. Other cases of arson, under Section
located at the time of the 3 of Presidential Decree No. 1613.
execution of the mortgage;
4. The removal is permanent; Article 327. Who Are Liable for Malicious
Mischief
5. There is no written consent
of the mortgagee or his Elements
executors, administrators or
assigns to such removal. 1. Offender deliberately caused
damage to the property of another;
2. Selling or pledging personal property
already pledged, or any part thereof, 2. Such act does not constitute arson
under the terms of the Chattel or other crimes involving destruction;
Mortgage Law, without the consent
of the mortgagee written on the back 3. The act of damaging another’s
of the mortgage and noted on the property was committed merely for
record thereof in the office of the the sake of damaging it;
register of deeds of the province
where such property is located.
There is destruction of the property of
Elements: another but there is no misappropriation.
Otherwise, it would be theft if he gathers the
1. Personal property is already effects of destruction.
pledged under the terms of
the Chattel Mortgage Law;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 174
Article 328. Special Case of Malicious Persons exempted from criminal liability
Mischief
1. Spouse, ascendants and
Acts punished descendants, or relatives by affinity
in the same line;
1. Causing damage to obstruct the
performance of public functions; 2. Widowed spouse with respect to the
property which belonged to the
2. Using any poisonous or corrosive deceased spouse before the same
substance; passed into the possession of
another
3. Spreading any infection or contagion
among cattle; 3. Brothers and sisters and brothers-in-
law and sisters-in-law, if living
4. Causing damage to the property of together.
the National Museum or National
Library, or to any archive or registry,
waterworks, road, promenade, or Only the relatives enumerated incur no
any other thing used is common by liability if the crime relates to theft (not
the pubic. robbery), swindling, and malicious mischief.
Third parties who participate are not
exempt. The relationship between the
Article 329. Other Mischiefs spouses is not limited to legally married
couples; the provision applies to live-in
All other mischiefs not included in the next partners.
preceding article
Estafa should not be complexed with any
other crime in order for exemption to
Article 330. Damage and Obstruction to operate.
Means of Communication
This is committed by damaging any railway, TITLE XI. CRIMES AGAINST CHASTITY
telegraph or telephone lines.
Crimes against chastity
Note that there are two kinds of acts of Always remember that there can be no
lasciviousness under the Revised Penal frustration of acts of lasciviousness, rape or
Code: (1) under Article 336, and (2) under adultery because no matter how far the
Article 339. offender may have gone towards the
realization of his purpose, if his participation
1. Article 336. Acts of Lasciviousness amounts to performing all the acts of
execution, the felony is necessarily
Under this article, the offended party produced as a consequence thereof.
may be a man or a woman. The
crime committed, when the act Intent to rape is not a necessary element of
performed with lewd design was the crime of acts of lasciviousness.
perpetrated under circumstances Otherwise, there would be no crime of
which would have brought about the attempted rape.
crime of rape if sexual intercourse
was effected, is acts of
lasciviousness under this article. Article 337. Qualified Seduction
This means that the offended party
is either – Acts punished
This crime also involves sexual intercourse. Article 338. Simple Seduction
The offended woman must be over 12 but
below 18 years. Elements
The distinction between qualified seduction 1. Offender party is over 12 and under
and simple seduction lies in the fact, among 18 years of age;
others, that the woman is a virgin in
qualified seduction, while in simple 2. She is of good reputation, single or
seduction, it is not necessary that the widow;
woman be a virgin. It is enough that she is
of good repute.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 179
This crime is committed if the offended It is not required that the offender be the
woman is single or a widow of good guardian or custodian of the minor.
reputation, over 12 and under 18 years of
age, the offender has carnal knowledge of It is not necessary that the minor be
her, and the offender resorted to deceit to prostituted or corrupted as the law merely
be able to consummate the sexual punishes the act of promoting or facilitating
intercourse with her. the prostitution or corruption of said minor
and that he acted in order to satisfy the lust
The offended woman must be under 18 but of another.
not less than 12 years old; otherwise, the
crime is statutory rape.
Article 341. White Slave Trade
Unlike in qualified seduction, virginity is not
essential in this crime. What is required is Acts punished
that the woman be unmarried and of good
reputation. Simple seduction is not 1. Engaging in the business of
synonymous with loss of virginity. If the prostitution;
woman is married, the crime will be
adultery. 2. Profiting by prostitution;
The failure to comply with the promise of 3. Enlisting the services of women for
marriage constitutes the deceit mentioned in the purpose of prostitution.
the law.
to a certain place in order to break her will In order to demonstrate the presence of the
and make her agree to marry the offender, lewd design, illicit criminal relations with the
the crime is only grave coercion because person abducted need not be shown. The
the criminal intent of the offender is to force intent to seduce a girl is sufficient.
his will upon the woman and not really to
restrain the woman of her liberty. If there is a separation in fact, the taking by
the husband of his wife against her will
If the offended woman is under 12 years constitutes grave coercion.
old, even if she consented to the abduction,
the crime is forcible abduction and not Distinction between forcible abduction and
consented abduction. illegal detention:
Where the offended woman is below the When a woman is kidnapped with lewd or
age of consent, even though she had gone unchaste designs, the crime committed is
with the offender through some deceitful forcible abduction.
promises revealed upon her to go with him
and they live together as husband and wife When the kidnapping is without lewd
without the benefit of marriage, the ruling is designs, the crime committed is illegal
that forcible abduction is committed by the detention.
mere carrying of the woman as long as that
intent is already shown. In other words, But where the offended party was forcibly
where the man cannot possibly give the taken to the house of the defendant to
woman the benefit of an honorable life, all coerce her to marry him, it was held that
that man promised are just machinations of only grave coercion was committed and not
a lewd design and, therefore, the carrying illegal detention.
of the woman is characterized with lewd
design and would bring about the crime of
abduction and not kidnapping. This is also Article 343. Consented Abduction
true if the woman is deprived of reason and
if the woman is mentally retardate. Forcible Elements
abduction is committed and not consented
abduction. 1. Offended party is a virgin;
Lewd designs may be demonstrated by the 2. She is over 12 and under 18 years
lascivious acts performed by the offender on of age;
her. Since this crime does not involve
sexual intercourse, if the victim is subjected 3. Offender takes her away with her
to this, then a crime of rape is further consent, after solicitation or cajolery;
committed and a complex crime of forcible
abduction with rape is committed. 4. The taking away is with lewd
designs.
The taking away of the woman may be
accomplished by means of deceit at the
beginning and then by means of violence Where several persons participated in the
and intimidation later. forcible abduction and these persons also
raped the offended woman, the original
The virginity of the complaining witness is ruling in the case of People v. Jose is that
not a determining factor in forcible there would be one count of forcible
abduction. abduction with rape and then each of them
will answer for his own rape and the rape of
the others minus the first rape which was
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 181
complexed with the forcible abduction. This whether he or she wanted the crime
ruling is no longer the prevailing rule. The committed on him or her to be made public
view adopted in cases of similar nature is to is his or hers alone, because the indignity or
the effect that where more than one person dishonor brought about by these crimes
has effected the forcible abduction with affects more the offended party than social
rape, all the rapes are just the order. The offended party may prefer to
consummation of the lewd design which suffer the outrage in silence rather than to
characterizes the forcible abduction and, vindicate his honor in public.
therefore, there should only be one forcible
abduction with rape. In the crimes of rape, abduction and
seduction, if the offended woman had given
In the crimes involving rape, abduction, birth to the child, among the liabilities of the
seduction, and acts of lasciviousness, the offender is to support the child. This
marriage by the offender with the offended obligation to support the child may be true
woman generally extinguishes criminal even if there are several offenders. As to
liability, not only of the principal but also of whether all of them will acknowledge the
the accomplice and accessory. However, child, that is a different question because
the mere fact of marriage is not enough the obligation to support here is not founded
because it is already decided that if the on civil law but is the result of a criminal act
offender marries the offended woman or a form of punishment.
without any intention to perform the duties
of a husband as shown by the fact that after It has been held that where the woman was
the marriage, he already left her, the the victim of the said crime could not
marriage would appear as having been possibly conceive anymore, the trial court
contracted only to avoid the punishment. should not provide in its sentence that the
Even with that marriage, the offended accused, in case a child is born, should
woman could still prosecute the offender support the child. This should only be
and that marriage will not have the effect of proper when there is a probability that the
extinguishing the criminal liability. offended woman could give birth to an
offspring.
Pardon by the offended woman of the
offender is not a manner of extinguishing
criminal liability but only a bar to the TITLE XII. CRIMES AGAINST THE CIVIL
prosecution of the offender. Therefore, that STATUS OF PERSONS
pardon must come before the prosecution is
commenced. While the prosecution is Crimes against the civil status of persons
already commenced or initiated, pardon by
the offended woman will no longer be 1. Simulation of births, substitution of
effective because pardon may preclude one child for another and
prosecution but not prevent the same. concealment or abandonment of a
legitimate child (art. 347);
All these private crimes – except rape –
cannot be prosecuted de officio. If any 2. Usurpation of civil status (Art. 348);
slander or written defamation is made out of
any of these crimes, the complaint of the 3. Bigamy (Art. 349);
offended party is till necessary before such
case for libel or oral defamation may 4. Marriage contracted against
proceed. It will not prosper because the provisions of law (Art. 350);
court cannot acquire jurisdiction over these
crimes unless there is a complaint from the 5. Premature marriages (Art. 351);
offended party. The paramount decision of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 182
Article 347. Simulation of Births, The crime would fall under the
Substitution of One Child for Another, second paragraph of Article 347. The
and Concealment of Abandonment of A purpose of the woman is to cause the child
Legitimate Child to lose its civil status so that it may not be
able to share in the inheritance.
Acts punished
3. Suppose a child, one day
1. Simulation of births; after his birth, was taken to and left in the
midst of a lonely forest, and he was found
2. Substitution of one child for another; by a hunter who took him home. What
crime was committed by the person who left
3. Concealing or abandoning any it in the forest?
legitimate child with intent to cause
such child to lose its civil status. It is attempted infanticide, as the act
of the offender is an attempt against the life
of the child. See US v. Capillo, et al., 30
Illustration: Phil. 349.
2. Suppose that the purpose of 2. The marriage has not been legally
the woman is abandoning the child is to dissolved or, in case his or her
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 183
spouse is absent, the absent spouse Distinction between bigamy and illegal
could not yet be presumed dead marriage:
according to the Civil Code;
Bigamy is a form of illegal marriage. The
3. He contracts a second or offender must have a valid and subsisting
subsequent marriage; marriage. Despite the fact that the marriage
is still subsisting, he contracts a subsequent
4. The second or subsequent marriage marriage.
has all the essential requisites for
validity. Illegal marriage includes also such other
marriages which are performed without
complying with the requirements of law, or
The crime of bigamy does not fall within the such premature marriages, or such
category of private crimes that can be marriage which was solemnized by one who
prosecuted only at the instance of the is not authorized to solemnize the same.
offended party. The offense is committed
not only against the first and second wife For bigamy to be committed, the second
but also against the state. marriage must have all the attributes of a
valid marriage.
Good faith is a defense in bigamy.
The second marriage must have all the 1. Offender contracted marriage;
essential requisites for validity were it not for
the existence of the first marriage. 2. He knew at the time that –
1. A widow who is married within 301 7. Intriguing against honor (Art. 364).
days from the date of the death of
her husband, or before having
delivered if she is pregnant at the Article 353. Definition of Libel
time of his death;
A libel is a public and malicious imputation
2. A woman who, her marriage having of a crime, or of a vice or defect, real or
been annulled or dissolved, married imaginary, or any act, omission, condition,
before her delivery or before the status, or circumstances tending to cause
expiration of the period of 301 days the dishonor, discredit, or contempt of a
after the date of the legal separation. natural or juridical person, or to blacken the
memory of one who is dead.
TITLE XIII. CRIMES AGAINST HONOR 5. The imputation must tend to cause
the dishonor, discredit or contempt
Crimes against honor of the person defamed.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 185
Distinction between malice in fact and will be admitted to take the place of malice
malice in law in law. When the defamatory statement or
utterance is qualifiedly privileged, the malice
Malice in fact is the malice which the law in law is negated. The utterance or
presumes from every statement whose statement would not be actionable because
tenor is defamatory. It does not need proof. malice in law does not exist. Therefore, for
The mere fact that the utterance or the complainant to prosecute the accused
statement is defamatory negates a legal for libel, oral defamation or slander, he has
presumption of malice. to prove that the accused was actuated with
malice (malice in fact) in making the
In the crime of libel, which includes oral statement.
defamation, there is no need for the
prosecution to present evidence of malice. When a libel is addressed to several
It is enough that the alleged defamatory or persons, unless they are identified in the
libelous statement be presented to the court same libel, even if there are several persons
verbatim. It is the court which will prove offended by the libelous utterance or
whether it is defamatory or not. If the tenor statement, there will only be one count of
of the utterance or statement is defamatory, libel.
the legal presumption of malice arises even
without proof. If the offended parties in the libel were
distinctly identified, even though the libel
Malice in fact becomes necessary only if the was committed at one and the same time,
malice in law has been rebutted. there will be as many libels as there are
Otherwise, there is no need to adduce persons dishonored.
evidence of malice in fact. So, while malice
in law does not require evidence, malice in Illustration:
fact requires evidence.
If a person uttered that “All the Marcoses
Malice in law can be negated by evidence are thieves," there will only be one libel
that, in fact, the alleged libelous or because these particular Marcoses
defamatory utterance was made with good regarded as thieves are not specifically
motives and justifiable ends or by the fact identified.
that the utterance was privileged in
character. If the offender said, “All the Marcoses – the
father, mother and daughter are thieves.”
In law, however, the privileged character of There will be three counts of libel because
a defamatory statement may be absolute or each person libeled is distinctly dishonored.
qualified.
If you do not know the particular persons
When the privileged character is said to be libeled, you cannot consider one libel as
absolute, the statement will not be giving rise to several counts of libel. In
actionable whether criminal or civil because order that one defamatory utterance or
that means the law does not allow imputation may be considered as having
prosecution on an action based thereon. dishonored more than one person, those
persons dishonored must be identified.
Illustration: Otherwise, there will only be one count of
libel.
As regards the statements made by
Congressmen while they are deliberating or Note that in libel, the person defamed need
discussing in Congress, when the privileged not be expressly identified. It is enough that
character is qualified, proof of malice in fact he could possibly be identified because
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 186
The crime is libel is the defamation is in Article 355. Libel by Means of Writings
writing or printed media. or Similar Means
the crime – hush money. (US v. Eguia, et 2. Such act is performed in the
al., 38 Phil. 857) Blackmail is possible in presence of other person or
(1) light threats under Article 283; and (2) persons;
threatening to publish, or offering to prevent
the publication of, a libel for compensation, 3. Such act casts dishonor, discredit or
under Article 356. contempt upon the offended party.