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LECTURE NOTES 2- CRIMINAL LAW II

TITLE II.

Crimes against the fundamental laws of the State

1. Arbitrary detention (Art. 124, RPC);
2. Delay in the delivery of detained persons to the proper judicial authorities (Art. 125, RPC);
3. Delaying release (Art. 126, RPC);
4. Expulsion (Art. 127, RPC);
5. Violation of domicile (Art. 128, RPC);
6. Search warrants maliciously obtained and abuse in the service of those legally obtained (Art. 129, RPC);
7. Searching domicile without witnesses (Art. 130, RPC);
8. Prohibition, interruption, and dissolution of peaceful meetings (Art. 131, RPC);
9. Interruption of religious worship (Art. 132, RPC); and
10. Offending the religious feelings (Art. 133, RPC).

Under this title, the offenders are public officers, except in offending the religious feelings under Art. 133 which may be
committed by any person. The public officers who may be held liable are only those acting under supposed exercise of
official functions, albeit illegally. But private persons may also be liable under this title as when a private person conspires
with a public officer, or acts as an accomplice or an accessory.

They are called crimes against “the fundamental laws of the State” because they violate certain provisions of the Bill of
Rights under the 1987 Philippine Constitution.

Constitutional bases of the crimes under this title

RPC Constitution
1. Art. 124 (Arbitrary Detention); Art. 125 (Delay in the Sec. 1 of Article III (Bill of Rights) “No person shall be
Delivery of Detained Persons); Art. 126 (Delaying Release) deprived of xxx liberty xxx without due process of law xxx.”

2. Art. 127 (Expulsion) Sec. 6 “The liberty of abode and of changing the same
within the limits prescribed by law shall not be impaired.”

3. Art. 128 (Violation of Domicile); Art. 129 (Search
Warrants
Maliciously Obtained and Abuse in the Service of those
Legally Obtained); Art. 130 (Searching Domicile Without
Witnesses)
Sec. 2 “The right of the people to be secure in their
persons, houses, papers and effects against unreasonable
searches and seizure xxx shall be inviolable.”

4. Art. 131 (Prohibition, Interruption and Dissolution of Sec. 4 “No law shall be passed abridging the freedom of
Peaceful Meetings) speech, of expression, or of the press, or the right of the
people to peaceably assemble and petition the Government
for redress of grievances xxx.”

5. Art. 132 (Interruption of Religious Worship); Art. 133
Offending Religious Feelings)
Sec. 5 “No law shall be made respecting an establishment
of
religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and worship
without discrimination or preference shall forever be
allowed.

Classes of arbitrary detention

1. Detaining a person without legal ground (Art. 124, RPC);
2. Delay in the delivery of detained persons to the proper authorities (Art. 125, RPC); and
3. Delaying release (Art. 126, RPC).

ARTICLE 124. Arbitrary Detention.

Elements
1. Offender is a public officer or employee;
2. He detains a person; and
3. Detention is without legal grounds (US v. Braganza, G.R. No. 3971, February 3, 1908).

What is Detention?
Detention is defined as the actual confinement of a person in an enclosure, or in any manner detaining and depriving him
of his liberty.

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Person considered in detention

A person is detained when he is placed in confinement or there is restraint on his person.

Periods of detention and punishment

1. Detention for 3 days or less — punishable by arresto mayor in its maximum to prision correccional in its minimum
2. Detention for more than 3 to 15 days— punishable by prision correccional in its medium and maximum
3. Detention for more than 15 to 6 months — punishable by prision mayor
4. Detention for more than 6 months— punishable by reclusion temporal

Arbitrary detention even if the victims were not kept in an enclosure

There is arbitrary detention even if the victims were not kept in an enclosure. The prevailing jurisprudence on kidnapping
and illegal detention is that the curtailment of the victim’s liberty need not involve any physical restraint upon the victim’s
person. If the acts and actuations of the accused can produce such fear in the mind of the victim sufficient to paralyze the
latter,to the extent that the victim is compelled to limit his own actions and movements in accordance with the wishes of
the accused, then the victim is, for all intent and purposes, detained against his will (Astorga v. People, G.R. No. 154130,
October 1, 2003).

Necessity that the public officer be a police officer for him to be held liable for arbitrary detention
It is not necessary that the public officer be a police officer for him to be held liable for arbitrary detention. It is important,
however, that the public officer must be vested with the authority to detain or order the detention of persons accused of a
crime
such as policemen and other agents of law, judges or mayors.

Illegal detention of a public officer who effected the arrest having no such authority to detain a person
If the offender does not have the authority to detain a person or to make such arrest, the crime committed by him is illegal
detention. A public officer who is acting outside the scope of his official duties is no better than a private citizen.

² NOTE: In arbitrary detention, the offender is a public officer whose functions have something to do with the
protection of life and/or property and maintenance of peace and order. Thus, if the person, who arrests another
without legal ground, is without authority to do so, like a clerk in the Office of the Central Bank Governor, arbitrary
detention is not the proper charge but illegal detention.

A barangay chairman can be guilty of arbitrary detention

He has authority, in order to maintain peace and order, to cause the arrest and detention of a person (Boado, 2008).

Legal grounds for the detention of persons

General Rule:
1. Commission of a crime;
2. Violent insanity or other ailment requiring compulsory confinement of the patient in a hospital; and
3. Instances of a valid warrantless arrest under Rule 113, Sec. 5 of the Revised Rules of Court
a. Suspect is caught in flagrante delicto
b. Suspect is caught immediately after the commission of the offense when the officer has probable cause to believe
based on
personal knowledge of facts and circumstances that the person to be arrested committed it.
c. Escaping prisoners.

Exception: When the peace officers acted in good faith even if the grounds mentioned above are not obtaining, there is
no arbitrary detention.

Illustration: 2 BIR secret agents, strangers in the municipality who were spying the neighborhood of the market place
and acting generally in a manner calculated to arouse the suspicion of any one not advised as to their duty, were
arrested by policemen of the town. The Supreme Court held that the police officers acted in good faith and cannot be
held liable for arbitrary detention (U.S. v. Batalliones, G.R. No. 7284, August 23, 1912).

NOTE: RA 7438 mandates the duties of arresting officer under pain of penalty (imprisonment of 8 years to 10 years or
fine of Php 6, 000 or both) in case of failure to comply.

Arbitrary detention can be committed thru imprudence

Illustration: A police officer re-arrests a woman who had been released by means of verbal order of the judge. The
police officer acted without malice, but did not verify the order of release before proceeding to make the re-arrest. He is
liable for arbitrary
detention through simple imprudence (People v. Misa, 36 O.G. 3496).

Arbitrary detention vis-à-vis Illegal detention

BASIS ARBITRARY DETENTION ILLEGAL DETENTION

As to the capacity of the Offender The principal offender must be a The principal offender is a private
public officer. person.

As to the purpose of Detainment The offender who is a public officer The offender, even if he is a public
has a duty which carries with it the officer, does not include as his
authority to detain a person. function the power to arrest and detain
a person.

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Arbitrary detention vis-à-vis Unlawful arrest

BASIS ARBITRARY DETENTION UNLAWFUL ARREST
As to the capacity of the offender The offender is a public officer The offender may be any person.
possessed with authority to make
arrests.

As to the purpose of detainment
The purpose for detaining the
offended party is to deny him of his
liberty
The purpose is to accuse the offended
party of a crime he did not commit, to
deliver the person to the proper
authority, and to file the necessary
charges in a way trying to incriminate
him.

Example: X, a police officer, falsely imputes a crime against A to be able to arrest him but he appears to be not
determined to file a charge against him. What crime, if any, did X commit?

Answer: The crime is arbitrary detention through unlawful arrest (Boado, 2008).

ARTICLE 125. Delay in the Delivery of Detained Persons to the Proper Judicial Authorities.

Elements
1. Offender is a public officer or employee;
2. He has detained a person for some legal ground; and
3. He fails to deliver such person to the proper judicial authorities within:
a. 12 hours for crimes/offenses punishable by light penalties or their equivalent;
b. 18 hours for crimes/offenses punishable by correctional penalties or their equivalent;
c. 36 hours for crimes/offenses punishable by afflictive penalties or their equivalent.

² NOTE: The phrase “or their equivalent” means that it is applicable even in violation of special laws

Circumstances considered in determining liability of officer detaining a person beyond the legal period
1. The means of communication;
2. The hour of arrest; and
3. Other circumstances such as the time of surrender and material possibility of the fiscal to make the investigation and
file in time the necessary information.

Situation contemplated by Art. 125

Art. 125 contemplates a situation where arrest was made without a warrant but there exists a legal ground for the arrest. It
does not apply when the arrest is on the strength of a warrant of arrest, because in the latter case, there is no period
required for the delivery of a detained person to the proper judicial authorities except that it must be made within a
reasonable time. The person arrested can be detained indefinitely until his case is decided by the court or until he posts
bail for his temporary release.

Warrantless arrest is lawfully effected when

1. In Flagrante Delicto - When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense

2. Hot Pursuit - When an offense has in fact been committed, and he has probable cause to believe based on personal
knowledge of facts and circumstances that the person to be arrested has committed it
Probable cause — such facts and circumstances which could lead a reasonable discreet and prudent man to believe
than an offense has been committed and that the object sought in connection with the offense are in the place sought
to be searched
Personal knowledge of facts — must be based upon probable cause, which means an actual belief or reasonable
grounds of suspicion

3. Escaping Prisoner - When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another

Delivery
It means the filing of correct information or complaint with the proper judicial authorities. It does not mean physical delivery
or turnover of arrested person to the court.

Proper judicial authorities

It refers to the courts of justice or judges of said courts vested with judicial power to order the temporary detention or
confinement of a person charged with having committed a public offense.

Duty of the officer if the judge is not available

Where a judge is not available, the arresting officer is duty-bound to release a detained person, if the maximum hours for
detention had already expired. Failure to cause the release may result in an offense under Art. 125 (Albor v. Auguis, A.M.
No. P-01-1472, June 26, 2003).
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Person arrested without a warrant who opts to avail his right to preliminary investigation
Under the Revised Rules of Court, he should waive in writing his rights under Art. 125. The waiver must be under oath
and with the assistance of counsel.

Length of waiver
1. Light offense – 5 days
2. Serious and less serious offenses – 7 to 10 days

If the person arrested does not want to waive his rights under Art. 125
The arresting officer will have to comply with Art. 125 and file the case immediately in court without preliminary
investigation.

Delay in the delivery of detained persons (Art. 125) vis-à-vis arbitrary detention (Art. 124)
Delay in the Delivery of Detained Persons Arbitrary Detention
The detention is legal at the outset but becomes arbitrary The detention is illegal at the very inception because of the
when the detention exceeds any of the periods of time absence of lawful cause for such arrest.
specified in Art. 125, without the person detained having
been charged before the proper judicial authority.

ARTICLE 126. Delaying Release.

Punishable acts under Art. 126

1. Delaying the performance of judicial or executive order for the release of a prisoner;
2. Unduly delaying the service of the notice of such order to said prisoner; and
3. Unduly delaying the proceedings upon any petition for the liberation of such person.

Elements
1. Offender is a public officer or employee;
2. There is a judicial or executive order for the release of the prisoner or detention prisoner, or that there is a proceeding
upon a petition for the liberation of such person; and The prisoners could be prisoners by final judgment or detention
prisoners.
3. Offender without good reason delays:
a. Service of notice of such order to the prisoner, or
b. Performance of such judicial or executive order for the release of the prisoner, or
c. Proceedings upon a petition for the release of such person.

² NOTE: Wardens and jailers are the public officers most likely to violate this article.

ARTICLE 127. Expulsion.

Punishable acts under this article

1. Expelling a person from the Philippines; and
2. Compelling a person to change his residence.

This article does not apply in cases of ejectment, expropriation or when the penalty imposed is destierro.

Illustration: In Villavicencio v. Lukban, the mayor of the City of Manila wanted to make the city free from prostitution. He
ordered certain prostitutes to be transferred to Davao, without observing due processes since they have not been
charged with any crime at all. It was held that the crime committed was expulsion. Only the court by final judgment can
order a person to change his residence. This is illustrated in ejectment proceedings, expropriation proceedings, and in
the penalty of destierro (Reyes, 2012).

Elements
1. Offender is a public officer or employee;
2. He either:
a. Expels any person from the Philippines
b. Compels a person to change residence; and
3. Offender is not authorized to do so by law.

Essence of the crime of expulsion

It is coercion but it is specifically termed expulsion when committed by a public officer.

Grave coercion
A private person who committed any of the punishable acts under Art. 127 is responsible for the crime of grave coercion.

Expulsion
The crime of expulsion is committed if aliens are deported without an order from the President or the Commissioner of
Immigration and Deportation after due proceedings.

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² NOTE: Pursuant to Sec. 69 of the Revised Administrative Code, only the President of the Philippines is vested with
authority to deport aliens.
The crime of expulsion is also committed when a Filipino who, after voluntarily leaving the country, is illegally refused re-
entry by a public officer because he is considered a victim of being forced to change his address.

ARTICLE 128. Violation of Domicile.

Punishable acts under this article

1. Entering any dwelling against the will of the owner thereof;

2. Searching papers or other effects found therein without the previous consent of such owner; and
3. Refusing to leave the premises after having surreptitiously entered said dwelling and after having been required to
leave the same.

² NOTE: What is punished is the refusal to leave, the entry having been made surreptitiously.

“Against the will of the owner”

It presupposes opposition or prohibition by the owner, whether express or implied, and not merely the absence of
consent.

Common elements
1. Offender is public officer or employee; and
2. He is not authorized by judicial order to enter the dwelling and/or to make a search for papers and for other effects.

Trespass to dwelling
The crime committed is trespass to dwelling when the punishable acts under Art. 128 are committed by a private person.

Applicability of provisions under Art. 128 if the occupant of the premises is not the owner
It would be sufficient if the inhabitant is lawful occupant using the premises as his dwelling, although he is not the property
owner.

Art. 128, when not applicable

If a public officer, not armed with a search warrant or a warrant of arrest, searches a person outside his dwelling because
the papers and other effects mentioned in Art. 128 must be found in the dwelling. The crime committed is grave coercion,
if violence and intimidation are used (Art. 286), or unjust vexation, if there is no violence or intimidation (Art. 287).

Qualifying circumstances under Art. 128

1. If committed at night time; and
2. If any papers or effects not constituting evidence of a crime are not returned immediately after the search is made by
the offender.

ARTICLE 129. Search Warrants Maliciously Obtained and Abuse in the Service of Those Legally
Obtained.

Punishable acts under this article

1. Procuring a search warrant without just cause.
Elements:
a. That the offender is a public officer or employee;
b. That he procures a search warrant; and
c. That there is no just cause.
2. Exceeding his authority or by using unnecessary severity in executing a search warrant legally procured
Elements:
a. That the offender is a public officer or employee;
b. That he has legally procured a search warrant; and
c. That he exceeds his authority or uses unnecessary severity in executing the same.

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

Personal property to be seized

1. Subject of the offense;
2. Stolen or embezzled and the other proceeds or fruits of the offense; or
3. Used or intended to be used as the means of committing an offense [Sec. 3, Rule 126, Revised Rules of Criminal
Procedure (Reyes, 2017)].

Requisite for the issuance of search warrant

A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined
personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce,

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and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines
(Sec. 4, Rule 126, Revised Rules of Criminal Procedure).

² NOTE: A search warrant shall be valid for 10 days from its date. Thereafter, it shall be void.

Search warrant illegally obtained

Search warrant is considered illegally obtained when it was procured without a probable cause.

Probable cause
Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed and that the object sought in connection with the offense are
in place sought to be searched (Burgos v. Chief of Staff, G.R. No. L-64261, December 26, 1984).

Test for lack of just cause

Whether the affidavit filed in support of the application for search warrant has been drawn in such a manner that perjury
could be charged thereon and the affiant could be held liable for damages caused (Alvarez v. Court, et al 64 Phil 33).

Consequence of evidence obtained, using a search warrant that was issued without just cause
When papers and effects are obtained during unreasonable searches and seizures, or under a search warrant issued
without probable cause, or in violation of the privacy of communications and correspondence, the papers or effects
obtained are not admissible for any purpose in any proceeding (Sec. 2 and 3, Art. III, 1987 Constitution).

Effect if the search warrant is secured through a false affidavit

The crime punished by this article cannot be complexed but will be a separate crime from perjury, since the penalty herein
provided shall be “in addition” to the commission of any other offense, which in this case is perjury.

ARTICLE 130. Searching Domicile Without Witnesses.

Elements
1. Offender is a public officer or employee;
2. He is armed with search warrant legally procured;
3. He searches the domicile, papers or other belongings of any person; and

NOTE: The papers or other belongings must be in the dwelling of the owner at the time the search is made.
4. Owner or any member of his family, or two witnesses residing in the same locality are not present.

This article does not apply to searches of vehicles and other means of transportation (Reyes, 2008).

The witnesses during the search should be in the following order:

1. Homeowner
2. Members of the family of sufficient age and discretion
3. Responsible members of the community Unlike in Art. 128 where the public officer is not armed with a warrant, in
crimes under Art. 129 and 130, the search is made by virtue of a valid warrant, but the warrant notwithstanding, the
liability for the crime is still incurred through the following situations:
1. The search warrant was irregularly obtained
2. The officer exceeded his authority under the warrant
3. The public officer employs unnecessary or excessive severity in the implementation of the search warrant
4. The owner of dwelling or any member of the family was absent, or two witnesses residing within the same
locality were not present during the search.

Example: Suppose, X, a suspected pusher lives in a condominium unit. Agents of the PDEA obtained a search
warrant but the name of the person in the search warrant did not tally with the address indicated therein.
Eventually, X was found but in a different address. X resisted but the agents insisted on the search. Drugs were
found and seized and X was prosecuted and convicted by the trial court. Is the search valid?
Answer: NO, because the public officers are required to follow the search warrant by its letter. They have no discretion on
the matter. Their remedy is to ask the judge to change the address indicated in the search warrant.

ARTICLE 131. Prohibition, Interruption, and Dissolution of Peaceful Meetings.

Punishable acts under this article

1. Prohibiting or interrupting, without legal ground, the holding of a peaceful meeting, or by dissolving the same;
2. Hindering any person from joining any lawful association or from attending any of its meetings; and
3. Prohibiting or hindering any person from addressing, either alone or together with others, any petition to the authorities
for correction of abuses or redress of grievances.

In all three cases, the following elements must concur:

1. Offender is a public officer; and
2. He performs any of the acts mentioned above

Necessity that the offender be a stranger to the meeting that has been interrupted and dissolved

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To be held liable under Art. 131, it is necessary that the offender be a stranger to the meeting that has been interrupted
and dissolved. If the offender is a participant of the meeting, he is liable for unjust vexation.

Requiring a permit before any meeting or assembly cannot be construed as preventing peaceful assemblies
The permit requirement shall be in exercise only of the government’s regulatory powers and not really to prevent peaceful
assemblies. This requirement is legal as long as it is not being exercised as a prohibitory power.

² NOTE: But if such application for permit is arbitrarily denied, or conditions which defeat the exercise of the right to
peaceably assemble is dictated by the officer, this article applies.

Prohibition, Interruption, or Dissolution of Peaceful Meetings under Art. 131 vis-à-vis Tumults and other
Disturbances, under Art. 153

Art. 131 Art. 153

The public officer is not a participant. As far as the
gathering is
concerned, the public officer is a third party.
The offender must be a public officer.
The public officer is a participant of the assembly.
The offender could be a private person, whether a
participant of the assembly or not.

ARTICLE 132. Interruption of Religious Worship.

Elements
1. Offender is a public officer or employee;
2. Religious ceremonies, or manifestations of any religious ceremonies are about to take place or
are going on; and
3. Offender prevents or disturbs the same,
If the offender is a private individual, he may be liable under Art. 133.

Religious worship includes people in the act of performing religious rites for religious ceremony or manifestation of
religion. If the prohibition or disturbance is committed only in a meeting or rally of a sect, it would be punishable under Art.
131.

Qualifying circumstances of the crime

If the crime is committed with violence or threats

Rationale for punishing the interruption of religious worship

Persons who meet for the purpose of religious worship, by any method which is not indecent and unlawful, have a right to
do so without being molested or disturbed (U.S. v. Balcorta, 25 Phil 279).

ARTICLE 133. Offending the Religious Feelings.

Elements
1. Acts complained of were performed:
a. In a place devoted to religious worship; or
b. During the celebration of any religious ceremony; and

2. Acts must be notoriously offensive to the feelings of the faithful.

It is not necessary that there is religious worship.

² NOTE: Art. 133 is the only crime against the fundamental law of the State that may be committed not only by public
officer but also by a private person.

Religious Ceremonies
Those religious acts performed outside of a church, such as processions and special prayers for burying dead persons
(Reyes, 2012).

Act considered notoriously offensive

An act is considered notoriously offensive when the act is directed against religious practice or dogma or ritual for the
purpose of ridicule, as mocking or scoffing at or attempting to damage an object of religious veneration (People v. Baes,
G.R. No. 46000, May 25, 1939). There must be deliberate intent to hurt the feelings of the faithful, mere arrogance or
rudeness is not enough.

Example 1: Baes, while holding the funeral of Macabigtas, in accordance with the rites of a religious sect known
as “Church of Christ” caused the funeral to pass through the churchyard belonging to the Roman Catholic
Church. The parish priest filed a complaint against Baes for the violation of Article 133. Is Baes liable?

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Answer: The SC held that the act imputed to the accused does not constitute the offense complained ofThe mere act of
causing the passage through the churchyard belonging to the Church, of the funeral of one who in life belonged to the
Church of Christ, neither offends or ridicules the religious feelings of those who belong to the Roman Catholic Church
(People v. Baes, ibid.).

Example 2: While a “pabasa” was going on at a municipality in the Province of Tarlac, Reyes and his company
arrived at the place, carrying bolos and crowbars, and started to construct a barbed wire fence in front of the
chapel. The chairman of the committee in charge of the “pabasa” persuaded them to refrain from said acts. A
verbal altercation then ensued. The people attending the “pabasa” left the place hurriedly in confusion and the
“pabasa” was discontinued until after investigation. Reyes and his company, in their defense claim that the land
where the chapel is built belongs to the Clemente family, of which they are partisans. Are the accused guilty of
the crime under Art. 133?

Answer: The SC held that Art. 133 of the RPC punishes acts “notoriously offensive to the feelings of the faithful.” The
construction of a fence even though irritating and vexatious under the circumstances to those present, is not such an acts
as can be designated as “notoriously offensive to the faithful.”

In this case, the accused were acquitted of a violation of Art. 133 of the RPC but they were found guilty of a violation of
Art. 287 of the RPC for the circumstances showed that their acts were done in such a way as to vex and annoy the parties
who had gathered to celebrate the “pabasa” (People v. Reyes, et al., G.R. No. L-40577, August 23, 1934).

References:
th
The Revised Penal Code Criminal Law. Luis Reyes.18 Edit. 2012. Book Two Arts. 114-367.
Notes and Cases on the Revised Penal Code (Book 1 and 2) and Special Penal Laws. 2013. Leonor D. Boado.
Fundamentals of Criminal Law Review. Gregorio. 2008.
CRIMINAL LAW. 2017 GOLDEN NOTES, FACULTY OF CIVIL LAW, UNIVERSITY OF SANTO TOMAS MANILA.
MEMORY AID IN CRIMINAL LAW. San Beda College of Law, 2014 Centralized Bar Operations. BOOK ONE, BOOK
TWO, SPECIAL PENAL LAWS.
www.lawphil.com
www.chanrobles.com
https://www.officialgazette.gov.ph/1930/12/08/act-no-3815-s-1930/

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