TITLE ONE: CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS Section One: Treason and Espionage ARTICLE 114 TREASON Treason a breach of allegiance to a government, committed by a person who owes allegiance to it. Allegiance the obligation of fidelity and obedience which the individual owes to the government under which he lives or to his sovereign, in return for the protection he receives. Hence an alien residing in the Philippines may be prosecuted for acts of treason due to the temporary allegiance he owes to the Philippine government. Elements of treason: 1. That the offender owes allegiance to the Government of the Philippines; (a Filipino citizen or an alien residing in the Philippines.) Place of commission: Filipino Citizen: anywhere (Art.2, RPC) Alien: only in the Philippines (EO 44) except in case of conspiracy An alien owes permanent allegiance to his own country, at the same time, a temporary allegiance to the country where he resides. 2. That there is a war in which the Philippines is involved; Treason is a war crime. It remains dormant until the emergency arises. But as soon as war starts, it is put into effect (Laurel vs. Misa, 77 Phil 865 [1946]) 3. That the offender either (modes of committing): a. Levies war against the government; or
b. Adheres to the enemies, giving them aid or comfort. Ways of being committed: 1. Levying war It means that (a) there is an actual assembling of men (b) for the purpose of executing a treasonable design by force. It is not necessary that there be a formal declaration of the existence of a state of war. Actual hostilities may determine the date of the commencement of war (U.S. vs Lagnason, 3 Phil 495) The levying of war must be with intent to overthrow the government not merely to resist a particular statute or to repel a particular officer. It is not necessary that those attempting to overthrow the government by force of arms should have the apparent power to succeed in their design, in whole or in part.
Treason by Levying War Rebellion
The purpose of levying Such purpose is not necessary. (e.g. civil war is to help the enemy. uprising)
Treason Philippines must be at war with another country Violation of allegiance oath
Sedition
Internal conflict
Adherence to the enemies, giving them aid and comfort Requires BOTH 1. adherence to the enemies, and 2. giving of aid or comfort to them Note: Mere adherence without its physical manifestation through the giving of aid or
EXECUTIVE COMMITTEE: EZEKIEL JOSHUA VILLENA overall chairperson, MINISTER MOISES DU chairperson for academics, DJOANIVIE JOMARE JUNASA chairperson for hotel operations, MARIE MICAELA STA. ANA vice-chairperson for operations, MIKHAIL MAVERICK TUMACDER vice-chairperson for secretariat, JACKIE LOU LAMUG vice-chairperson for finance, DIANA JEAN TUAZON vicechairperson for edp, JASSEN RALPH LEE vice-chairperson for logistics SUBJECT COMMITTEE: JO ANN MARIE O. CASIO subject chair, VENICE BUAGIN assistant subject chair, STEVEN MICHAEL D. GALA edp, MARIONNE ROSABELL LACUNA book one, MARIS DONNA KWOK book two, MA. KATRINA RIVERA special penal laws MEMBERS: Karell Marie G. Lascano, Katrina Jorelle P. Villena, Clare Marie F. Ortega, Hera Aiza Marie A. Barona, Nicole Alora G. Julian , Rozzalle Gonzales, Sheena Antlan, Diana Jean De Castro, Beatrice Valerie S. Guillermo, Raynan Larosa, Kamille Deanne Lagasca, Jose Angelo David
Adherence to enemy It means that there is an intent to betray. The accused intellectually or emotionally favors the enemy and harbors sympathies or convictions disloyal to his countrys policy or interest. Rendering aid or comfort It means an act which strengthens or tends to strengthen the enemy in the conduct of war against the traitors country or any act which weakens or tends to weaken the power of the traitors country to resist or to attack the enemy. Extent of aid or comfort - it must be a deed or physical activity and not merely a mental operation Giving information to (People vs. Paar, 86 Phil. 864), or commandeering foodstuffs (People vs. Mangahas, 93 Phil 113) for the enemy is evidence of both adherence and aid or comfort. Being a Makapili constitutes an overt act of psychological comfort. It was no different from that of enlisting in the invader's army (People vs. Adriano, 78 Phil 563
Adherence may be proved: 1. By one witness; 2. From the nature of the act itself; or 3. From the circumstances surrounding the act. Ways of proving Treason (overt act): 1. Testimony of two witnesses, at least, to the same overt act (two-witness rule); or The testimonies must refer to the same act, place and moment of time. If the overt act is separable, two witnesses must also testify to each part of the overt act. It is sufficient that the witnesses are uniform in their testimony on the overt
76
2. By disclosing to the representative of a foreign nation the contents of the articles, data or information referred to in the preceding paragraph, which he had in his possession by reason of the public office he holds. Elements: a. That the offender is a public officer; b. That he has in his possession the articles, data or information referred to in par. 1 of Art. 117, by reason of the public office he holds; c. That he discloses their contents to a representative of a foreign nation. COMMONWEALTH ACT NO. 616 An Act to Punish Espionage and Other Offenses Against National Security Acts Penalized 1. Unlawfully obtaining or permitting to be obtained information affecting national defense Ways of Violating Sec. 1: a. By going upon, entering, flying over or otherwise obtaining information concerning any vessel, aircraft, work of defense or other place connected with the national defense or any other place where any vessels, aircrafts, arms, munitions or other materials for use in time of war are being made, or stored, for the purpose of obtaining information respecting national defense, with intent to use it to the injury of the Philippines or to the advantage of any foreign nation. b. By copying, taking, making or patenting or inducing or aiding another to copy, take, make or obtain any sketch, photograph, photographic negative, blueprint, plan, map instrument, appliance, document, writing or note of anything connected with the national defense, for the same purpose and with like intent as in par. A. c. By receiving or obtaining or agreeing or attempting or inducing or aiding
77
8.
9.
78
ARTICLE 119 VIOLATION OF NEUTRALITY Elements: 1. That there is a war in which the Philippines is not involved; 2. That there is a regulation issued by a competent authority for the purpose of enforcing neutrality; 3. That the offender violates such regulation. Neutrality the condition of a nation that in time of war takes no part in the dispute but continues peaceful dealings with the belligerents There must be a regulation issued by competent authority (President or the Chief of Staff of the AFP) for the enforcement of neutrality. ARTICLE 120 CORRESPONDENCE WITH HOSTILE COUNTRY Elements: 1. That it is made in time of war in which the Philippines is involved; 2. That the offender makes correspondence with the: a. Enemy country or b. Territory occupied by the enemy troops; 3. That the correspondence is either: a. Prohibited by the Government; or b. Carried on in ciphers or conventional signs; or c. If notice or information be given thereby which might be useful to the enemy. Correspondence communication by means of letters; or it may refer to the letters which pass between those who have friendly or business relations. Even if the correspondence contains innocent matters, if the correspondence has been prohibited by the government, it is punishable because of the possibility that some information useful to the enemy might be revealed unwittingly. Prohibition by the Government is NOT essential when the correspondence is carried on in ciphers or useful to the enemy. Circumstances qualifying the offense The following must concur: 1. That the notice or information might be useful to the enemy;
Both are crimes not conditioned by the citizenship of the offender. May be committed both Is committed only in time in time of peace and in of war. time of war. May be committed in Is limited to two ways of many ways. committing the crime: levying war, and adhering to the enemy giving them aid or comfort
SECTION TWO: PROVOKING WAR AND DISLOYALTY IN CASE OF WAR ARTICLE 118 INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS Elements: 1. That the offender performs unlawful or unauthorized acts; 2. That such acts provoke or give occasion for a. A war involving or liable to involve the Philippines or b. Expose Filipino citizens to reprisals on their persons and property. Intention of the accused is immaterial. This is committed in time of peace. Penalty is higher when the offender is a public officer or employee. Reprisal- is an act of self-help on the part of the injured state, responding after an unsatisfied demand to an act contrary to international law on the part of the offending state (Naulilaa Incident Arbitration, Portuguese-German Arbitral Tribunal, 1928)
79
SECTION THREE: PIRACY AND MUTINY ON THE HIGH SEAS ARTICLE 122 PIRACY IN GENERAL AND MUTINY ON THE HIGH SEAS Piracy it is robbery or forcible depredation on the high seas, without lawful authority and done with animo furandi and in the spirit and intention of universal hostility. Two ways or modes of committing piracy: 1. By attacking or seizing a vessel on the high seas or in Philippine waters; 2. By seizing in the vessel while on the high seas or in Philippine waters the whole or part of its cargo, its equipment or personal belongings of its complement or passengers. Elements of piracy: 1. That a vessel is on the high seas or on Philippine waters; 2. That the offenders are NOT members of its complement or passengers of the vessel; 3. That the offenders: a. Attack or seize the vessel; or b. Seize the whole or part of the cargo of said vessel, its equipment or personal belongings of its complement or passengers. High seas waters which are beyond the boundaries of the low-water mark, although such waters may be in the jurisdictional limits of a foreign government; parts of the sea that are not included in the exclusive economic
Mutiny the unlawful resistance to a superior, or the raising of commotions and disturbances on board a ship against the authority of its commander.
Piracy under RPC Mutiny
Place of commission: Either in Philippine waters or on the high seas The persons who attack Mutiny is committed by a vessel or seize its members of the crew or cargo are strangers to passengers. the vessels. Intent to essential. gain is The offenders may only intend to ignore the ships officers or they may be prompted by a desire to commit plunder.
PRESIDENTIAL DECREE NO. 532 Anti-Piracy and Anti-Highway Robbery Law of 1974 Vessel any vessel or watercraft used for (a) transport of passengers and cargo or (b) for fishing.
Piracy under RPC Piracy under PD 532
Punishes piracy Punishes piracy committed either in committed in Philippine Philippine waters or on waters only. the high seas.
80
Offenders: Non- Offenders: any person passengers or non- (may be a passenger, members of the crew, in crew or a stranger). short, strangers to the vessel.
Acts Punished 1. Usurping or seizing control of an aircraft of Philippine registry while it is in flight; or compelling the pilots thereof to change its course or destination; Note: When the aircraft is not in flight, the usurpation or seizure of the aircraft may amount to coercion or threat. When death results, the crime is homicide or murder, as the case may be. 2. Usurping or seizing control of an aircraft of foreign registry, while within Philippine territory, or compelling the pilots thereof to land in any part of Philippine territory; Aggravating circumstances to acts punished under 1 and 2: a. When the offender has fired upon the pilot, member of the crew, or passenger of the aircraft; b. When the offender has exploded or attempted to explode any bomb or explosive to destroy the aircraft; c. Whenever the crime is accompanied by murder, homicide, serious physical injuries or rape. (Thus, such common crimes are considered aggravating circumstances only; they are not separated from or complexed with the crime of hijacking) 3. Carrying or loading on board operating as a public utility aircraft in the Philippines corrosive, explosive or substances; an aircraft passenger flammable, poisonous
Aiding or Abetting of Piracy Any person who shall knowingly aid or abet piracy will be considered as an accomplice in the commission of piracy and punished according to the rules under the RPC. Requisites: 1. Knowingly aids or protects pirates; 2. Acquires or receives property taken by such pirates, or in any manner derives any benefit therefrom; 3. Directly or indirectly abets the commission of piracy. ARTICLE 123 QUALIFIED PIRACY Qualifying Circumstances: 1. Whenever the offenders have seized the vessel by boarding or firing upon the same; 2. Whenever the pirates have abandoned their victims without means of saving themselves; 3. Whenever the crime is accompanied by murder, homicide, physical injuries, or rape. The crimes mentioned in the article which are qualified are piracy and mutiny on the high seas. Qualified piracy is a SPECIAL COMPLEX CRIME punishable by reclusin perpetua to death, regardless of the number of victims. Offenders are not liable for the separate crimes of murder, homicide, physical injuries, or rape. Qualified Mutiny: When the second or the third circumstance accompanies the crime of mutiny mentioned under Art. 122, mutiny is then qualified. First circumstance may not qualify the crime of mutiny. REPUBLIC ACT NO. 6235 ANTI-HIJACKING LAW Meaning of aircraft is in flight - from the moment all exterior doors are closed following embarkation until the same doors are again opened for disembarkation.
4. Loading, shipping, or transporting on board a cargo aircraft operating as a public utility in the Philippines, flammable, corrosive, or poisonous substance if not done in accordance with the rules and regulations of the Air Transportation Office. Note: There is no attempted hijacking since it is punishable under a special law and attempted stage is not punishable under the said law. TITLE TWO: CRIMES AGAINST THE FUNDAMENTAL LAW OF THE STATE All offenses in this Title are required to be committed by public officers except offending the religious feelings.
81
Arrest without warrant when LAWFUL: 1. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; In his presence when the officer sees the offense being committed, although at a distance, or hears the disturbance created thereby and proceeds at once to the scene thereof, or when the offense is continuing or has not been consummated at the time the arrest is made, the offense is said to be committed in his presence. (U.S. vs. Samonte, 16 Phil 516 [1910]) 2. When an offense has in fact just 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; 3. When the person to be arrested is a prisoner, 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. (Sec. 5, Rule 113, Revised Rules of Criminal Procedure) It may be committed through imprudence. ARTICLE 125 DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES Elements: 1. That the offender is a public officer or employee; 2. That he has detained a person for some legal ground (Sec. 5, Rule 113, Rules of Court); 3. That he fails to deliver such person to the proper judicial authorities within: a. 12 hrs. for offenses punishable by light penalties or their equivalent. b. 18 hrs. for offenses punishable by correctional penalties or their equivalent. c. 36 hrs. for offenses punishable by afflictive penalties or their equivalent.
82
ARTICLE 126 DELAYING RELEASE Three acts punished: 1. By delaying the performance of a judicial or executive order for the release of a prisoner; 2. By unduly delaying the service of the notice of such order to said prisoner; 3. By unduly delaying the proceedings upon any petition for the liberation of such person. Elements: 1. That the offender is a public officer or employee; 2. That there is a judicial or executive order for the release of a prisoner or detention prisoner, or that there is a proceeding upon a petition for the liberation of such person; 3. That the offender without good reason delays either: a. The service of the notice of such order to the prisoner; b. The performance of such judicial or executive order for the release of the prisoner; or c. The proceedings upon a petition for the release of such person. Note: Most likely to be violated by wardens or jailers. ARTICLE 127 EXPULSION Two acts punished: 1. By expelling a person from the Philippines; 2. By compelling a person to change his residence. Elements: 1. That the offender is a public officer or employee; 2. That he expels any person from the Philippines, or compels a person to change his residence; 3. That the offender is not authorized to do so by law. Exception: (no expulsion) in cases of ejectment, expropriation or when the penalty of destierro is imposed. Only the President of the Philippines is authorized to deport aliens under the Revised Administrative Code. Only the court by a final judgment can order a person to change residence
The detention is illegal The detention is legal in from the beginning. the beginning but the illegality of the detention starts from the expiration of any of the periods of time specified in Art. 125, without the person detained having been delivered to the proper judicial authority
83
84
Instances when a warrantless search and seizure is valid 1. Consented searches; 2. As an incident to a lawful arrest; 3. Searches of vessels and aircraft for violation of immigration, customs, and drug laws; 4. Searches of moving vehicles; 5. Searches of automobiles at borders or constructive borders; 6. Where the prohibited articles are in "plain view"; 7. Searches of buildings and premises to enforce fire, sanitary, and building regulations; and 8. "stop and frisk" operations. (People v. Lopez GR No. 181747 September 29, 2008) Note: The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. (Sec. 7, Rule 126, Rules of Court) ARTICLE 130 SEARCHING DOMICILE WITHOUT WITNESSES Elements: 1. That the offender is a public officer or employee; 2. That he searches the domicile, papers or other belongings of any person; 3. That he is armed with a warrant; 4. That the owner or any member of his family or two witnesses residing in the same locality are not present. The papers or other belongings must be in the dwelling of their owner at the time the search is made. Art. 130 does NOT apply to searches of vehicles or other means of transportation. Search without warrant under the Tariff and Customs Code does not include a dwelling house.
acts
Right to conduct peaceful meeting is not absolute. It may be regulated by the police power of the state. However, there is a legal ground to prohibit when the danger is imminent and the evil to be prevented is a serious one. The offender must be a stranger, and not a participant. If the offender is a participant, the crime committed is unjust vexation. Interrupting and dissolving the meeting of municipal council by a public officer is a crime against a legislative body, not punished under Art. 131 but under. Art. 143 and 144. If the offender is a private individual, the crime is disturbance of public order under Art. 153. SECTION FOUR: CRIMES AGAINST RELIGIOUS WORSHIP
ARTICLE 132 INTERRUPTION OF RELIGIOUS WORSHIP Elements: 1. That the offender is a public officer or employee; 2. That religious ceremonies or manifestations of any religion are about to take place or are going on; 3. That the offender prevents or disturbs the same. Qualified by violence or threats
85
Rebellion - more frequently used where the object of the movement is to completely overthrow and supersede the existing government. It is a crime of the masses, of the multitude. It is a vast movement of men and a complex network of intrigues and plots. Purpose of the uprising must be shown, without evidence to indicate the motive or purpose of the accused does not constitute rebellion. It may constitute other crimes like sedition or kidnapping. Insurrection more commonly employed in reference to a movement which seeks merely to effect some change of minor importance, or to prevent the exercise of governmental authority with respect to particular matters or subjects. Note: ACTUAL CLASH with the armed forces of the Government is NOT necessary to convict the accused who is in conspiracy with others actually taking arms against the government.
Rebellion 1. Treason
As to purpose To remove from the Violation by a subject of allegiance to said his allegiance to his gov't or the laws the sovereign or to the territory of the Phils. supreme authority of the Or any body of State. land, naval or other armed forces; 2. To deprive the Chief Executive or Congress of any of their powers. Manner of commission 1. Public uprising, and 1. By levying war 2. By taking arms against the gov't; against the Gov't. 2. By adhering to the enemies of the Phils., giving them aid or comfort Time of commission May be committed both Committed during a time during times of peace of war. and war Proof needed for conviction Proved by showing the 1. Testimony of 2 purpose of the uprising; witnesses, at least there must be proof to the same overt beyond reasonable act; or doubt 2. Confession of accused in open court
86
Purpose: To overthrow the government. Essence: Public uprising and taking up of arms against the government.
ARTICLE 135 PENALTY FOR REBELLION OR INSURRECTION OR COUP DETAT Persons liable for rebellion, insurrection and/or coup detat: The leaders Any person who a. Promotes; b. Maintains; or c. Heads a rebellion or insurrection; or Any person who a. Leads; b. Directs; or c. Commands others to undertake a coup detat; The participants Any person who 1. Participates; or 2. Executes the commands of others in rebellion, or insurrection; Any person in the government service who 1. Participates; or 2. Executes directions or commands of others in undertaking a coup detat; Any person not in the government service who 1. Participates; 2. Supports; 3. Finances; 4. Abets; or 5. Aids in undertaking a coup detat.
Rebellion There must be a public uprising, more than one person is involved.
87
Political Crimes in contrast to common crimes, are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. Killing, robbing, etc., for private purposes or profit, without any political motivation, would be separately punished and would not be absorbed in the rebellion. (People vs. Geronimo, et al., 100 Phil 90 [1956]) ARTICLE 136 CONSPIRACY & PROPOSAL TO COMMIT REBELLION, INSURRECTION OR COUP D ETAT Two Crimes penalized under this article: 1. Conspiracy to commit rebellion, and 2. Proposal to commit rebellion. Conspiracy to commit rebellion when two or more persons come to an agreement to rise publicly and take arms against the Government for any of the purposes of rebellion and decide to commit it Proposal to commit rebellion when the person who has decided to rise publicly and take arms against the Government for any of the purposes of rebellion proposes its execution to some other person or persons This is an instance where the law punishes preparatory acts. ARTICLE 137 DISLOYALTY OF PUBLIC OFFICERS/EMPLOYEES Acts Punished 1. Failing to resist a rebellion by all means in their power;
In both crimes, the offender induces another to commit rebellion. The person who It is not required that the proposes has decided to offender has decided to commit rebellion. commit rebellion. The person who The act of inciting is proposes the execution done publicly. of the crime uses secret means. Note: In both, the crime of rebellion should not be actually committed by the persons to whom it is proposed or who are incited. If they commit rebellion because of the proposal or inciting, the proponent or the one inciting may become a principal by inducement in the crime of rebellion.
ARTICLE 139 SEDITION Elements: 1. That the offenders rise: a. Publicly; and b. Tumultuously; 2. That they employ force, intimidation, or other means outside of legal methods; 3. That the offenders employ any of those means to attain any of the following objects:
88
b.
c.
d.
e.
Tumultuous if caused by more than three persons who are armed or provided with the means of violence
Sedition Rebellion
In both, there must be public uprising. It is sufficient that the There must be taking up public uprising is of arms against the tumultuous. Government. The purpose of offenders may political or social. the The purpose is always be political. the
Sedition
Treason
In its more general In its more general sense, it is the raising of sense, it is the violation commotions or by a subject of his disturbances in the allegiance to his State. sovereign.
Public uprising and an object of sedition must concur. In sedition, it is immaterial if the objective be completely attained. Mere public uprising for any of the objective mentioned in Art. 139 is punishable.
Note: Common Crimes are NOT absorbed in the crime of sedition. General Rule: Common Crimes are NOT absorbed in sedition. Exception: However, sedition absorbs the use of unlicensed firearms as an element thereof, pursuant to RA 8294.
89
Reasons why seditious utterances are prohibited: If the State were compelled to wait until the apprehended danger became certain, then its right to protect itself would come into being simultaneously with the overthrow of the Government, when there would be neither prosecuting officers nor courts for the enforcement of the law. CHAPTER TWO: CRIMES AGAINST POPULAR REPRESENTATION (ARTS. 143-145) SECTION ONE: CRIMES AGAINST LEGISLATIVE BODIES AND SIMILAR BODIES ARTICLE 143 ACTS TENDING TO PREVENT THE MEETING OF THE ASSEMBLY AND SIMILAR BODIES Elements: 1. That there be a projected or actual meeting of the National Assembly or any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board; 2. That the offender, who may be any person, prevents such meeting by force or fraud. Force referred to here is one that produces an injury on the person of another, and fraud involves falsification. Thus, physical injuries and falsification will be complexed as a necessary means to commit this crime.
force,
b. That the purpose of the offender is to prevent any member of Congress from i. Attending the meetings of the Congress or any of its committees or constitutional commissions, etc.; or ii. Expressing his opinions; or iii. Casting his vote. The offender in Par. 1 may be any person.
90
2. Any meeting in which the audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition, or assault upon a person in authority Requisites: a. That there is a meeting, a gathering or group of persons, whether in a fixed place or moving; b. That the audiences, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition or direct assault. It is necessary that the audience is actually incited. If in the meeting the audience is incited to the commission of rebellion or sedition, the crimes committed are ILLEGAL ASSEMBLY as regards the organizers or leaders or persons merely present and INCITING TO REBELLION OR SEDITION insofar as the one inciting them is concerned.
Persons liable in illegal assemblies: 1. The organizers or leaders of the meeting; 2. Persons merely present at the meeting. Presumptions: If any person carries an unlicensed firearm, it is presumed that: 1. The purpose of the meeting insofar as he is concerned is to commit acts punishable under the RPC, and 2. He is considered a leader or organizer of the meeting. The law does NOT distinguish whether or not the firearms are licensed or unlicensed. It only gives a presumption if the firearm used is unlicensed. A person invited to give a speech in an illegal assembly or meeting and incites the members of such assembly is guilty of inciting to sedition
91
ARTICLE 147 ILLEGAL ASSOCIATIONS Prohibited associations: Association totally or partially organized for: 1. The purpose of committing any of the crimes punishable under the Code, or 2. Some purpose contrary to public morals. Public morals refer to matters which affect the interest of society and public convenience and is not limited to good customs Persons liable: 1. Founders, directors, and president of the association 2. Members of the association
Illegal Assembly Illegal Association
Public Officer (PO) Any person who takes part in the performance of public functions in the government.
Person in Authority (PA) Any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board or commission.
It is necessary that there It is not necessary that is an actual meeting or there is an actual assembly of armed meeting. persons for the purpose specified in Art. 146. It is the meeting and It is the act of forming or attendance at such organizing and meeting that is membership in the punished. association that is punished. The persons liable are: 1. The organizers or leaders of the meetings, and 2. The persons present at the meeting. The persons liable are: 1. The founders, directors and president, and 2. The members.
Any person who comes to aid of a person in authority may be considered as an agent of a person in authority. ARTICLE 148 DIRECT ASSAULT
Two ways to commit: 1. Without public uprising, by employing force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of sedition & rebellion Elements: a. That the offender employs force or intimidation; b. That the aim of the offender is to attain any of the purposes of the crime of rebellion or any of the objects of the crime of sedition; c. That there is no public uprising. Offended party need NOT BE a person in authority or his agent, he may be a private individual if the object is to attain an object of sedition.
Organized for temporary More or less of some purposes duration Held in connection with Even acts contrary to crimes punishable under public morals are the RPC included.
2. Without public uprising, by attacking, by employing force or seriously intimidating or by seriously resisting any person in authority (PA) or any of his agents (APA), while engaged in the performance of official duties, or on the occasion of such performance
92
b. c.
d.
e.
Considered NOT in the actual performance of official duties: 1. When the PA or APA exceeds his powers or acts without authority; 2. Unnecessary use of force or violence; 3. Descended to matters which are private in nature. Two kinds of direct assault of the second form: 1. Simple assault 2. Qualified assault
93
ARTICLE 150 DISOBEDIENCE TO SUMMONS ISSUED BY THE NATL ASSEMBLY, ITS COMMITTEES OR SUBCOMMITTEES, BY THE CONSTITUTIONAL COMMISSION, ITS COMMITTEES, SUBCOMMITTEE OR DIVISIONS Acts punished: 1. Refusing, without legal excuse, to obey summons of Congress, or any commission or committee chairman or member authorized to summon witnesses; 2. Refusing to be sworn or placed under affirmation while before such legislative or constitutional body or official; 3. Refusing to answer any legal inquiry or to produce any books, papers, documents, or records in his possession, when required by them to do so in the exercise of their functions; 4. Restraining another from attending as a witness in such legislative or constitutional body; 5. Inducing disobedience to summons or refusal to be sworn by any such body or official. The testimony of a person summoned must be upon matters into which the legislature has jurisdiction to inquire. Any of the acts punished herein may also constitute contempt. ARTICLE 151 RESISTANCE & DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENTS OF SUCH PERSON Elements of resistance & serious disobedience: 1. That a PA or his APA is engaged in the performance of official duty or gives a lawful order to the offender; 2. That the offender resists or seriously disobeys such person in authority or his agent; 3. That the act of the offender is not included in the provisions of Arts. 148-150. Elements of simple disobedience: 1. That an APA is engaged
The PA or APA must be Only in actual engaged in the performance of duties. performance of official duties or that he is assaulted by reason thereof. Force employed serious. is Use of force is not so serious.
Attack or Employment of Attack or Employment of Force is deliberate Force is not deliberate. Committed in any of the following ways: 1. By attacking, 2. By employing force, 3. By seriously intimidating; 4. By seriously resisting a person in authority or his agent Committed by resisting or seriously disobeying a person in authority or his agent
The disobedience contemplated consists in the failure or refusal to obey a direct order from the authority or his agent. In the crime of resistance and disobedience the offender must have knowledge that the person arresting is a person in authority or an agent of a person authority. CHAPTER FIVE: PUBLIC DISORDER (ARTS. 153-156) ARTICLE 153 TUMULTS & OTHER DISTURBANCES OF PUBLIC ORDER
Acts punished: 1. Causing any serious disturbance in a public place, office or establishment; Note: If disturbance is not serious in nature, alarms and scandals under Article 155 is committed. 2. Interrupting or disturbing public performances, functions or gatherings, or
in
the
94
Outcry to shout spontaneously subversive or provocative words tending to stir up the people so as to obtain by means of force or violence any of the objects of rebellion or sedition. The outcry must be spontaneous, otherwise it would be the same as inciting to rebellion or sedition. Burying with pomp the body of a person ostentatious display of a burial
Inciting to Sedition or Rebellion The outcry or displaying of emblems or placards should have been done with the idea aforethought of inducing his hearers or readers to commit the crime of rebellion or sedition. Public Disorder The outcry is more or less unconscious outburst which, although rebellious or seditious in nature, is not intentionally calculated to induce others to commit rebellion or sedition.
At the outset, the At the outset, the meeting is unlawful. meeting is lawful but becomes unlawful after the outburst described above.
The penalty next higher in degree shall be imposed upon persons causing any disturbance or interruption of a tumultuous character. It is tumultuous if caused by more than three persons who are armed or provided with the means of violence. However, this is only a presumption juris tantum, hence if the disturbance is in fact tumultuous it is immaterial that there are no such armed persons. Conversely if the gathering is not
95
Charivari includes a medley of discordant voices, a mock serenade of discordant noises made on kettles, tin, horns, etc. designed to annoy or insult. The reason for punishing instigating or taking active part in charivari and other disorderly meeting is to prevent more serious disorders.
96
CHAPTER SIX: EVASION OF SERVICE OF SENTENCE (ARTS. 157-159) ARTICLE 157 EVASION OF SERVICE OF SENTENCE Elements: 1. That the offender is a convict by final judgment; 2. That he is serving his sentence, which consists in deprivation of liberty; 3. That he evades the service of his sentence by escaping during the term of his sentence. Circumstances qualifying the offense: 1. By means of unlawful entry (this should be by scaling); 2. By breaking doors, windows, gates, walls, roofs or floors; 3. By using picklocks, false keys, disguise, deceit, violence, or intimidation; 4. Through connivance with other convicts or employees of the penal institution. The following cannot commit evasion of service of sentence: a. Accused who escapes during appeal or a detention prisoner b. Minor delinquents c. Deportees d. Persons convicted under this Article are disqualified from the benefits of the Indeterminate Sentence Law. Escape - flee from; to avoid; to get out of the way, as to flee to avoid arrest (Blacks th Law Dictionary, 4 ed., p. 640) ARTICLE 158 EVASION OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES, OR OTHER CALAMITIES Elements: 1. That the offender is a convict by final judgment, and is confined in a penal institution; 2. That there is disorder, resulting from: a. Conflagration, b. Earthquake, c. Explosion, d. Similar catastrophe, e. Mutiny in which he has not participated; 3. That the offender leaves the penal
institution where he is confined, on the occasion of such disorder or during the mutiny; 4. That the offender fails to give himself up to the authorities within 48 hrs. following the issuance of a proclamation by the Chief Executive announcing the passing away of such calamity. What is punished is not the leaving of the penal institution, but the failure of the convict to give himself up to the authorities within 48 hours after the proclamation announcing the passing away of the calamity. If the offender fails to give himself up, he shall suffer an increase of 1/5 of the time still remaining to be served under the original sentence, which shall not exceed 6 months. If the offender gives himself up, he is entitled to a deduction of 1/5 of his original sentence. Mutiny in this article implies an organized unlawful resistance to a superior officer; a sedition; a revolt. (People vs. Padilla, C.A., 46 O.G. 2151) If one partakes in the mutiny, he will be liable for the offenses which he committed during the mutiny whether or not he returns. ARTICLE 159 OTHER CASES OF EVASION OF SENTENCE (CONDITIONAL PARDON) Elements: 1. That the offender was a convict; 2. That he was granted a conditional pardon by the Chief Executive; 3. That he violated any of the conditions of such pardon. Violation of conditional pardon is a distinct crime. (This is according to Reyes); According to Regalado, however, there are actually two views. One expressed in People v. Jose which states that it is not a distinct crime, since the penalty is only the recommitment of the convict to serve the portion of the sentence remitted by the pardon, hence it is only a continuation of the original case. The other view which is the more logical one is expressed in People v. Martin which states that since the code imposes a specific penalty of prision correccional in its minimum period if the unserved portion is less than six years, it is therefore a distinct crime.
97
is considered shall already have served out his sentence for the prior offenses. Quasi-recidivism is a SPECIAL AGGRAVATING CIRCUMSTANCE which cannot be offset by ordinary mitigating circumstances. First crime for which the offender is serving sentence need not be a felony; but the second crime must be a felony. Only considered as final judgment when the accused does not appeal anymore. Quasi-recidivism does not require that the offense for which the convict is serving and the new felony committed be embraced in the same title of the code. While in recidivism, both the first and the second offenses must be embraced in the same title of the code. TITLE FOUR: CRIMES AGAINST PUBLIC INTEREST CHAPTER ONE: FORGERIES SECTION 1: FORGING THE SEAL OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE. ARTICLE 161 COUNTERFEITING SEAL OF GOVERNMENT, SIGNATURE AND STAMP OF PRESIDENT Acts Punished 1. Forging the Great Seal of the Government of the Philippines; 2. Forging the signature of the President; 3. Forging the stamp of the President. If the signature of the President is forged, it is not falsification of public document, but forging the signature of the Chief Executive. ARTICLE 162 USE OF FORGED SIGNATURE, COUNTERFEIT SEAL OR STAMP Elements: 1. That the seal of the Republic was counterfeited, or the signature or stamp of the Chief Executive was forged by another person; 2. That the offender knew of the counterfeiting or forgery; 3. That he used the counterfeit seal or forged signature or stamp. The offender must NOT be the forger otherwise the crime committed is
Infringes the terms of the Defeats the purpose of contract the law. Does not affect public Disturbs public order order
CHAPTER SEVEN: COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE ARTICLE 160 COMMISSION OF ANOTHER CRIME DURING THE SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE (QUASI-RECIDIVISM) Elements of quasi-recidivism: 1. That the offender was already convicted by final judgment; 2. That he committed a new felony before beginning to serve such sentence or while serving the same. Who can be pardoned A quasi-recidivist can be pardoned: 1. At the age of 70, if he shall have already served out his original sentence (and not a habitual criminal); or 2. When he shall have completed it after reaching the said age, unless by reason of his conduct or other circumstances, he shall not be worthy of such clemency. In reiteracion, the offender against whom it
98
SECTION TWO: COUNTERFEITING COINS ARTICLE 163 MAKING AND IMPORTING AND UTTERING FALSE COINS Elements: 1. That there be false or counterfeited coins; 2. That the offender either made, imported or uttered such coins; 3. That in case of uttering such false or counterfeited coins, he connived with the counterfeiters or importers. A coin is false or counterfeited, if it is forged or if it is not authorized by the Government as legal tender, regardless of its intrinsic value.
Mutilation means to take off part of the metal either by filing it or substituting it for another metal of inferior quality. It is to diminish by ingenious means the metal in the coin, and thus diminish its intrinsic value. ARTICLE 165 SELLING OF FALSE OR MUTILATED COIN, WITHOUT CONNIVANCE Acts Punished 1. Possession of coin, counterfeited or mutilated by another with intent to utter the same knowing that it is false or mutilated; 2. Actually uttering false or mutilated coin, knowing it to be false or mutilated. It does NOT require that the false coin is legal tender. But if the coin being uttered or possessed with intent to utter is a mutilated coin, it must be a legal tender coin. The possession prohibited in Article 165 is possession in general, that is, not only actual, physical possession but also constructive possession or the subjection of the thing to ones control, otherwise offenders could easily evade the law by the mere expedient of placing other persons in actual, physical possession of the thing although retaining constructive possession or actual control thereof. (People vs. Andrada, 11 C.A. Rep. 147)
Counterfeiting means the imitation of a legal or genuine coin There is counterfeiting when a spurious coin is made. There must be an imitation of the peculiar design of the particular coin. Uttering means to pass counterfeited coins Uttering includes delivery or the act of giving them away. It is uttered when it is paid even though the utterer may not obtain the gain he intended. Kinds of coins the counterfeiting of which is punished: 1. Silver coins of the Philippines or coin of the Central Bank; 2. Coin of the minor coinage of the Philippines or the Central Bank; 3. Coin of the currency of a foreign country. Former coins withdrawn from circulation may be counterfeited. Pars. 1 and 2 of Article 163 mention coin without any qualifications. As regards par. 3, the used of the word currency is not correct because the Spanish text uses the word moneda which embraces not only those that are legal tender but also those out of circulation.
99
100
documents without previous authority. ARTICLE 171 FALSIFICATION BY PUBLIC OFFICER, EMPLOYEE OR NOTARY OR ECCLESIASTICAL MINISTER Elements: 1. That the offender is a public officer, employee or notary public or ecclesiastical minister; The ecclesiastical minister is liable under this article if he shall commit any of the acts of falsification with respect to any record or document of such character that its falsification may affect the civil status of persons. 2. That he takes advantage of his official position when: a. He has the duty to make or prepare or otherwise to intervene in the preparation of the document b. He has the official custody of the document which he falsifies If he did not take advantage of his official position, he would be guilty of falsification of public document by a private individual under Art. 172. 3. The offender falsifies a document. Document is any written statement by which a right is established or an obligation extinguished or by which a fact may be proven or affirmed. The document must be complete or at least it must have the appearance of a true and genuine document. The document must be of apparent legal efficacy. In the 1st, 2nd, 6th, 7th (second part) and 8th mode of falsification, there must be a GENUINE DOCUMENT. In the other paragraphs of Art. 171, falsification may be committed by simulating or fabricating a document. Different Modes of Falsifying a Document: A. Counterfeiting or imitating handwriting, signature or rubric. any
SECTION FOUR: FALSIFICATION OF LEGISLATIVE, PUBLIC, COMMERCIAL AND PRIVATE DOCUMENTS AND WIRELESS, TELEGRAPH AND TELEPHONE MESSAGES ARTICLE 170 FALSIFICATION OF LEGISLATIVE DOCUMENT Elements: 1. That there be a bill, resolution or ordinance enacted by or approved or pending approval by either House of the Legislative or any provincial board or municipal council; 2. The offender alters the same; 3. That he has no proper authority therefor; 4. That alteration changed the meaning of the document. The bill, resolution or ordinance must be genuine. Offender may be private individual or a public officer. The act of falsification is limited to altering it which changes its meaning. Hence, other acts of falsification, even in legislative documents, are punished either in Art. 171 or under Art. 172. R.A. 248 prohibits the reprinting, reproduction or republication of government publications and official
Requisites: 1. That there be an intent to imitate or an attempt to imitate; 2. The two signatures or handwriting, the genuine and the forged bear some resemblance to each other. If there is no attempt whatsoever by the accused to imitate the signatures of the other person so
101
E. Altering true dates Date must be essential. The alteration of the date or dates in a document must affect either the veracity of the document or the effects thereof. Alteration of dates in official receipts to prevent discovery of malversation is falsification F. Making alteration or intercalation in a genuine document which changes its meaning. Requisites: 1. That there be an alteration or intercalation (insertion) on a document; 2. That it was made on a genuine document; If the document is not genuine, the crime of estafa is committed. 3. That the alteration and intercalation has changed the meaning of the document; 4. That the change made the document speak something false. Alteration which speaks the truth is not falsification. The idea of deception is inherent in the word alteration of making the instrument speak something which the parties did not intend it to speak. G. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exist or including in such a copy a statement contrary to or different from that of the genuine original. CANNOT be committed by a private individual or by a notary or public officer who DOES NOT take advantage of his official position. Intent to gain or prejudice is not necessary, because it is the interest of the community which is intended to be guaranteed by the strict faithfulness of the officials charged with the preparation and preservation of the
Requisites: 1. That the offender makes in a document statements in a narration of facts; 2. That he has the legal obligation to disclose the truth of the facts narrated by him; 3. That the facts narrated by the offender are absolutely false; 4. That the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person. There must be narration of facts, not a conclusion of law. Legal obligation means that there is a law requiring the disclosure of the facts narrated. The facts must be absolutely false, the crime of falsification is not violated if there is some
102
3. Use of falsified documents. Elements: a. Introducing in a judicial proceeding i. That the offender knew that the document was falsified by another person; ii. That the false document was embraced in Art. 171 or in any subdivision No.1 or 2 of Art. 172; iii. That he introduced said document in evidence in any judicial proceeding. No damage is required. b. Use in any other transaction i. That the offender knew that the document was falsified by another person; ii. That the false document was embraced in Art. 171 or in any of subdivision No. 1 or 2 of Art. 172; iii. That he used such document (not in judicial proceeding); iv. That the use of the false document caused damage to another or at least it was used with intent to cause damage. Notes: If a person knowingly offers in evidence a FALSE WITNESS OR TESTIMONY, Article 184 should apply. If a person makes, presents or uses any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings IN CRIMINAL CASES, such person is liable
103
b. That the accused used such falsified dispatch; c. That the use of the falsified dispatch resulted in the prejudice of a third party, or that the use thereof was with the intent to cause such prejudice. Act No. 1851, Sec. 4, punishes private individuals who forge or alter telegram. SECTION FIVE: FALSIFICATION OF MEDICAL CERTIFICATES, CERTIFICATES OF MERIT OR SERVICE AND THE LIKE ARTICLE 174 FALSE MEDICAL CERTIFICATES, FALSE CERTIFICATE OF MERIT OR SERVICE Persons liable: 1. Physician or surgeon who, in connection with the practice of profession issued a false certificate; 2. Public officer who issued a false certificate of merit or service, good conduct or similar circumstances; 3. Private individual who falsified a certificate falling in the classes mentioned in Nos. 1 and 2. Certificate is any writing by which testimony is given that a fact has or has not taken place. The phrase or similar circumstances in Article 174 does not seem to cover property, because the circumstance contemplated must be similar to merit, service, or good conduct. ARTICLE 175 USING FALSE CERTIFICATES Elements: 1. That a false certificate mentioned in the preceding article was issued; 2. That the offender knew that the certificate was false; 3. That he used the same. When the use of the false certificates in the preceding article is used in a judicial proceeding, Art. 175 will apply. The use of false document in judicial proceeding under Art 172 is limited to those false documents mentioned in Arts. 171 and 172.
Falsification by Private Individual vs. Falsification of Public Officer Article 172 Article 171
The prejudice to a third party is taken into account so that if damage is not apparent, or at least if with no intent to cause it, the falsification is not punishable Prejudice to third person is immaterial; what is punished is the violation of public faith and the perversion of truth
ARTICLE 173 FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH AND TELEPHONE MESSAGES AND USE OF SAID FALSIFIED MESSAGES Acts punished: 1. Uttering fictitious wireless, telegraph, or telephone messages; 2. Falsifying wireless, telegraph or telephone messages. Elements: a. That the offender is an officer or employee of the government or an officer or an employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message; b. That he commits any of the above acts. 3. Using such falsified messages. With respect to No. 3, the offender need not be connected to the government or to such corporation. Elements: a. That the accused knew that wireless, cable, telegraph or telephone message was falsified by any person st specified in 1 paragraph of Art.173;
104
The acts performed must pertain to: 1. The Government 2. To any person in authority 3. To any public officer ARTICLE 178 USING FICTITIOUS NAME AND CONCEALING TRUE NAME Elements: (using fictitious name) 1. That the offender uses a name other than his real name; 2. That he uses that fictitious name publicly; 3. That the purpose of the offender is a. To conceal a crime; b. To evade the execution of a judgment; or c. To cause damage to public interest. Damage must be to public interest. If damage is to private interest, the crime will be estafa under Art. 315, 2(a).
CHAPTER TWO: OTHER FALSITIES (ARTS. 177- 184) SECTION ONE: USURPATION OF AUTHORITY, RANK, TITLE AND IMPROPER USE OF NAMES, UNIFORMS AND INSIGNIA ARTICLE 177 USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS Two offenses contemplated in Art. 177: 1. Usurpation of authority 2. Usurpation of official functions How committed: 1. By knowingly misrepresenting oneself to be an officer, agent or representative of the government, whether local, national or foreign; 2. By performing any act pertaining to a person in authority or public officer of the government under the pretense of official position and without authority. It may be violated by a public officer.
Elements: (Concealing true name) 1. That the offender conceals: a. his true name, b. all other personal circumstances; 2. That the purpose is only to conceal his identity. Fictitious name any other name which a person publicly applies to himself without authority of law
Using Fictitious Name Concealing True Name
Element of publicity must be Element of publicity is present. not necessary. The purpose is either to The purpose is merely to conceal a crime, to evade the conceal identity. execution of a judgment, or to cause damage.
105
proper local civil registry, and no person shall use any name or names other than his original or real name unless the same is or are duly recorded in the proper local civil registry. No person having been baptized with a name different from that with which he was registered at birth in a local civil registry, or in case of an alien, registered in the bureau of immigration upon entry, or any person who obtained judicial authority to use an alias, or who uses a pseudonym, shall represent himself in any public or private transaction or shall sign or execute any public or private document without stating or affixing his real or original name and all names or aliases or pseudonym he is or may have been authorized to use. ARTICLE 179 ILLEGAL USE OF UNIFORM OR INSIGNIA
The crimes under this Article may be complexed with the crime of delivering prisoners from jail, but may not be complexed with evasion of service of sentence. COMMONWEALTH ACT NO. 142, as amended by REPUBLIC ACT NO. 6085 An Act Regulating the Use of Aliases
General rule: No person shall use any name different from the one with which he was registered at birth in the office of the local civil registry, or with which he was registered in the Bureau of Immigration upon entry, or such substitute name as may have been authorized by a competent court. Exception: As pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice. Any person desiring to use an alias shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name. No person shall be allowed to secure such judicial authority for more than one alias. The petition for an alias shall set forth: 1. The persons baptismal and family name and the name recorded in the civil registry, if different, his immigrants name, if an alien, and his pseudonym, if he has such names other than his original or real name, 2. The reason or reasons for the use of the desired alias. The judicial authority for the use of alias, the Christian name and the aliens immigrant name shall be recorded in the
Elements: 1. That the offender makes use of insignia, uniform or dress; 2. That the insignia, uniform or dress pertains to an office not held by the offender or to a class of person of which he is not a member; and 3. That said insignia, uniform or dress is used publicly and improperly. Wearing the uniform of an imaginary office is NOT punishable. The office must actually exist. An EXACT IMITATION of a uniform or dress is UNNECESSARY. Republic Act No. 493 punishes the wearing of insignia, badge or emblem of rank of the members of the Armed Forces of the Philippines or Constabulary. Republic Act No. 75 punishes the use of uniform, decoration or regalia of a foreign State Executive Order No.297 punishes the illegal manufacture, sale, distribution and use of PNP uniforms, insignias and other accoutrements.
SECTION TWO: FALSE TESTIMONY False testimony is committed by any person who, being under oath, and required to testify as to the truth of a certain matter at a hearing before a competent authority, shall deny the truth or say something contrary to it. Three forms of false testimony 1. False Testimony in Criminal Cases (Art. 180-181) 2. False Testimony in Civil Cases (Art. 182)
106
Art. 182 is NOT applicable when the false testimony is given in special proceedings. Civil case an ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the prevention or redress or a wrong and that every other remedy is a special proceeding (People vs. Hernandez 67 O.G. 8330).
The criminal action for false testimony must be suspended when there is a pending determination of the falsity of the subject testimonies of private respondents in the civil case (Ark Travel Express vs. Judge Abrogar 410 SCRA 148 [2003]). ARTICLE 183 PERJURY
Two ways of committing perjury: 1. By falsely testifying under oath; 2. By making a false affidavit. Falsely testifying under oath must NOT be in a judicial proceeding. Testimony must be complete.
Elements: 1. That the accused made a statement under oath or executed an affidavit upon a material matter; 2. That the statement or affidavit was made before a competent officer authorized to receive and administer oath; 3. That in that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood; 4. That the sworn statement or affidavit containing the falsity is required by law.
107
108
109
110
111
Acts Punished: (For table of acts punished see Annex J) 1. Importation of dangerous drugs and/or controlled precursors and essential chemicals. (Section 4) 2. Sale, trading, administration, dispensation, delivery, distribution and transportation of dangerous drugs and/or controlled precursors and essential chemicals. (Section 5) 3. Maintenance of a den, dive or resort. (Section 6) 4. Employment in and visiting a den, dive or resort. (Section 7) 5. Manufacture of dangerous drugs and/or controlled precursors and essential chemicals. (Section 8) 6. Illegal chemical diversion of controlled precursors and essential chemicals. (Section 9) 7. Manufacture or delivery of equipment, instrument, apparatus and other paraphernalia for dangerous drugs and/or controlled precursors essential chemicals. (Sec. 10) 8. Possession of dangerous drugs. (Sec. 11) 9. Possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs. (Sec. 12) 10. Possession of dangerous drugs during parties, social gatherings or meetings or in the proximate company of at least 2 persons. (Sec. 13) 11. Possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs during parties, social gatherings or meetings or in the proximate company of at least 2 persons. (Sec. 14) 12. Use of dangerous drugs. (Sec. 15) 13. Cultivation or culture of plants classified as dangerous drugs or are sources thereof. (Sec. 16) 14. Failure to maintain and keep records of
112
113
114
Discharge After Compliance with Conditions of Suspended Sentence of a First-Time Minor Offender (Sec. 67) If the first time minor offender under suspended sentence complies with the rules and regulations of the Board, the court, upon recommendation of the Board, shall discharge the accused and dismiss all proceedings. Dangerous Drugs Board and Philippine Drug Enforcement Agency (Article IX) Dangerous Drugs Board shall be the policy-making and strategy-formulating body in the planning and formulation of policies and programs on drug prevention and control. Philippine Drug Enforcement Agency (PDEA)- shall serve as the implementing arm of the Board, and shall be responsible for the efficient and effective law enforcement of all the provisions on any dangerous drug and/or controlled precursor and essential chemical as provided in the Act. Among the powers and duties of the PDEA is to prepare for prosecution or cause the filing of appropriate criminal and civil cases for violation of all laws on dangerous drugs, controlled precursors and essential chemicals, and other similar controlled substances, and assist, support and coordinate with other government agencies for the proper and effective prosecution of the same. (Sec. 84 [h]) The PDEA shall be the lead agency in the investigation of any violation of RA No. 9165. (Sec. 86, last par.) TITLE SIX: CRIMES AGAINST PUBLIC MORALS CHAPTER ONE: GAMBLING AND BETTING (ARTS. 195-199) Arts. 195-199 and provisions of PD 483 and 449 are repealed insofar as they are inconsistent with PD 1602, which provides for stiffer penalties for violation of the Gambling Laws.
115
116
117
ARTICLE 201 IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS, AND INDECENT SHOWS Persons Liable: 1. Those who shall publicly expound or proclaim doctrines openly and contrary to public morals. 2. The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners, operating the establishment or selling the same. Mere possession is not punishable. The crime of illegal publication is also committed when the real printers name is not divulged. 3. Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral shows which are proscribed or are contrary to morals, good customs, established policies, lawful orders, decrees and edicts 4. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals Publicity is required.
Disposition of prohibited articles: The disposition of the literature, films, prints, engravings, sculptures, paintings or other materials involved in violation shall be governed by the following rules: 1. Upon conviction of the offender to be forfeited in favor of the government to be destroyed. 2. Where the criminal case against the violator of the decree results in an acquittal to be forfeited in favor of the government to be destroyed, after forfeiture proceedings conducted by the chief constabulary. 3. The person aggrieved by the forfeiture action of the Chief of Police may, within 15 days after his receipt of the copy of the decision, appeal the matter to the Secretary of the National Defense for review. The decision of the Secretary of the National Defense shall be final and unappealable. (Sec. 2, P.D. 969) Obscene publications and indecent shows under RA 7610 Any person who shall hire, employ, use, persuade, induce or coerce a child to perform in obscene exhibition and indecent shows, whether live or in video, pose, or model in obscene publications or pornographic materials or to sell or distribute the said materials shall suffer the penalty of prision mayor in its medium period. If the child used as a performer, subject or seller/ distributor is below twelve (12) years of age, the penalty shall be imposed in its maximum period. Any ascendant, guardian or person entrusted in any capacity with care of a child who shall cause and/ or allow such child to be employed or to participate in an obscene play, scene, act, movie or show in any other acts covered by this section shall suffer the penalty of prision mayor in its medium period. ARTICLE 202 VAGRANTS AND PROSTITUTES Persons Liable: 1. Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself to some lawful calling; (Mendicant) 2. Any person found loitering about public or semipublic buildings or places or tramping or wondering about the country or the streets without visible means of support; 3. Any idle or dissolute person who lodges in
Morals imply conformity with the generally accepted standards of goodness or rightness in conduct or character, sometimes, specifically, to sexual conduct The Test of Obscenity The test is whether the tendency of the matter charged as obscene, is to corrupt those whose minds are open to such immoral influences, and into whose hands such a publication may fall and also whether or not such publication or act shocks the ordinary and common sense of men as an indecency. Indecency an act against the good behavior and a just delicacy
118
CHAPTER TWO: MALFEASANCE AND MISFEASANCE IN OFFICE (ARTS. 204-212) SECTION ONE: DERELICTION OF DUTY Misfeasance improper performance of some act which might lawfully be done Malfeasance the performance of some act which ought not to be done Nonfeasance omission of some act which ought to be performed ARTICLE 204 KNOWINGLY RENDERING UNJUST JUDGMENT Elements: 1. That the offender is a judge; 2. That he renders a judgment in a case submitted to him for decision; 3. That the judgment is unjust; 4. That the judge knows that his judgment is unjust. Judgment the final consideration and determination of a court of competent jurisdiction upon the matters submitted to it, in an action or proceeding Unjust judgment is one which is contrary to law, or is not supported by evidence, or both Sources of unjust judgment: 1. Error, or 2. Ill-will or revenge, or 3. Bribery There is no liability at all for a mere error in good faith. There must be evidence that the judgment is unjust for it cannot be presumed. The Supreme Court must have declared the judgment as unjust in a certiorari, prohibition, or administrative proceeding.
119
120
As to consideration In both crimes the public officer receives gift. As to existence of agreement There is agreement between the public officer and the giver of gift or present. No such exists agreement
3. By agreeing to refrain, or by refraining, from doing something which it is his official duty to do, in consideration of a gift or promise. The third form of direct bribery differs from prevaricacion in that in bribery, the offender refrained from doing his official duty in consideration of a gift received or promised. This element is not necessary in the crime of prevaricacion. Elements of direct bribery: 1. That the offender be a public officer; 2. That the offender accepts an offer or a promise or receives a gift or present by
As to necessity of the performance of the act The offender agrees to perform or performs an act or refrains from doing something, because of the gift or promise. It is not necessary that the officer should do any particular act or even promise to do an act, as it is enough that he accepts gifts offered to him by reason of his office.
There is no attempted or frustrated indirect bribery because it is committed by accepting gifts offered to the public officer by reason of his office. If he does not accept the gifts, he does not commit the
121
Note: PD 46 punishes: 1. Any public official or employee who receives, directly or indirectly; and 2. Any private person who gives, or offers to give: Any gift, present or other valuable thing to any occasion, when such gift, present or other valuable thing is given by reason of the formers official position, whether the same is for past favors or the giver hopes or expects to receive a favor or better treatment in the future from the public official or employee concerned in the discharge of his official functions Included within the prohibition is the throwing of parties or entertainments in honor of the official or employees or his immediate relatives. ARTICLE 211-A QUALIFIED BRIBERY Elements: 1. That the offender is a public officer entrusted with law enforcement; 2. That the offender refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusin perpetua and/or death;
122
123
124
125
126
Malversation may be committed by private individuals in the following cases: 1. Those in conspiracy with public officers guilty of malversation 2. Those who are accessory or accomplice to a public officer 3. Custodian of public funds or property in whatever capacity 4. Depositary or administrator of public funds or property Presumption When demand is made to the accountable officer to account for the funds and property and the same is not forthcoming, this shall be
127
The offenders are accountable public officers in both crimes. The offender does not The offender in certain derive any personal gain cases profits from the or profit. proceeds of the crime. The public fund or The public fund or property is applied to property is applied to the another public use. personal use and benefit of the offender or of another person.
ARTICLE 221 FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY Acts Punished 1. By failing to make payment by a public officer who is under obligation to make such payment from Government funds in his possession. Elements: a. Public officer has government funds in his possession. b. He is under obligation to make payment from such funds. c. He fails to make the payment, maliciously. 2. By refusing to make delivery by a public officer who has been ordered by competent authority to deliver any property in his custody or under his administration
128
Liability of escaping prisoner: 1. If the fugitive is serving sentence by reason of final judgment, he is liable for evasion of the service of sentence under Art. 157. 2. If the fugitive is only a detention prisoner, he does not incur criminal liability. ARTICLE 225 ESCAPE OF PRISONER UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER Elements: 1. That the offender is a private person; 2. That the conveyance or custody of a prisoner or person under arrest is confided to him; 3. That the prisoner or person under arrest escapes; 4. That the offender consents to the escape of the prisoner or person under arrest, or that the escape takes place through his negligence. Art. 225 is NOT applicable if a private person was the one who made the arrest and he consented to the escape of the person he arrested. ARTICLE 226 REMOVAL, CONCEALMENT, OR DESTRUCTION OF DOCUMENTS Elements: 1. That the offender be a public officer; Note: If the offender is a private individual, estafa is committed if there is damage caused. If there is no damage, the crime is malicious mischief. 2. That he removes, conceals or destroys documents or papers; Papers include checks, promissory notes, and paper money. 3. That the said documents or papers should have been entrusted to such public officer by reason of his office; 4. That damage, whether serious or not, to a
129
Damage in this article may consist in mere alarm to the public or in the alienation of its confidence in any branch of the government service. ARTICLE 227 OFFICER BREAKING SEAL
Elements: 1. That the offender is a public officer; 2. That he is charged with the custody of papers or property; 3. That these papers or property are sealed by proper authority; 4. That he breaks the seals or permits them to be broken. Damage or intent to damage is not necessary. ARTICLE 228 OPENING OF CLOSED DOCUMENTS Elements: 1. That the offender is a public officer. 2. That any closed papers, documents, or objects are entrusted to his custody. 3. That he opens or permits to be opened said closed papers, documents, or objects. 4. That he does not have the proper authority. The closed document must be entrusted to the custody of the accused by reason of his office. If in opening closed papers or objects, the public officer broke the seal, the offense would be breaking seal under Art. 227 and not the crime of opening a closed document, because the offender must be a public officer not included in the preceding article.
Elements of No. 2: 1. That the offender is a public officer; 2. That he has charge of papers; 3. That those papers should not be published; 4. That he delivers those papers or copies thereof to a third person; 5. That the delivery is wrongful; and 6. That damage be caused to public interest Charge here means control or custody. If the public officer is merely entrusted with the papers but not with the custody, he is not liable under this provision. Damage is an element of the offenses defined in Art. 229. A higher penalty is provided if serious damage is caused otherwise a lower penalty is imposed. This indicates that the lesser penalty refers to causing damage which is not serious.
130
duty bound to obey. ARTICLE 232 DISOBEDIENCE TO ORDER OF SUPERIOR OFFICER WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER Elements: 1. That the offender is a public officer; 2. That an order is issued by his superior for execution; 3. That he has for any reason suspended the execution of such order; 4. That his superior disapproves the suspension of the execution of the order; 5. That the offender disobeys his superior despite the disapproval of the suspension. This article does NOT apply if the order of the superior is illegal. ARTICLE 233 REFUSAL OF ASSISTANCE Elements: 1. That the offender is a public officer. 2. That a competent authority demands from the offender that he lends his cooperation towards the administration of justice or other public service. 3. That the offender fails to do so maliciously. There must be damage to the public interest or to a third party. If the offender is a private individual, he may be held liable for contempt. ARTICLE 234 REFUSAL TO DISCHARGE ELECTIVE OFFICE Elements: 1. That the offender is elected by popular election to a public office; 2. That he refuses to be sworn in or to discharge the duties of said office; and 3. That there is no legal motive for such refusal to be sworn in or to discharge the duties of said office. ARTICLE 235 MALTREATMENT OF PRISONERS Elements: 1. That the offender is a public officer or employee; 2. That he has under his charge a prisoner convicted by final judgment or a detention prisoner; 3. That he maltreats such prisoner in either
ARTICLE 230 PUBLIC OFFICER REVEALING SECRETS OF PRIVATE INDIVIDUAL Elements: 1. That the offender is a public officer; 2. That he knows of the secrets of a private individual by reason of his office; 3. That he reveals such secrets without authority or justifiable reason. If the offender is a lawyer, the crime under Article 209 is committed. If the offender is a private individual, the crime under Article 290 or 291 is committed. Revelation to one person is necessary and sufficient, for public revelation is not required. It is NOT necessary that damage is suffered by the private individual. The reason for this provision is to uphold faith and trust in public service. CHAPTER SIX: OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS (ARTS. 231-245) SECTION ONE: DISOBEDIENCE, REFUSAL OF ASSISTANCE AND MALTREATMENT OF PRISONERS ARTICLE 231 OPEN DISOBEDIENCE Elements: 1. That the offender is a judicial or executive officer; 2. That there is a judgment, decision or order of a superior authority; 3. That such judgment, decision or order was made within the scope of the jurisdiction of the superior authority and issued with all legal formalities; 4. That the offender without any legal justification openly refuses to execute said judgment, decision or order, which he is
131
2. That he formally resigns from his position; There must be written or formal resignation 3. That his resignation has not yet been accepted; 4. That he abandons his office to the detriment of the public service. Qualifying circumstance when the abandonment of the office has for its purpose to evade the discharge of the duties of preventing, prosecuting or punishing any of the crimes falling within Title 1 and Chapter 1 Title 3 of Book 2 of this Code
Negligence and Tolerance in Prosecution of Offenses (Art. 208) Committed only by public officers who have the duty to institute prosecution for the punishment of violations of the law The public officer does not abandon his office but he fails to prosecute an offense by dereliction of duty or by malicious tolerance of the commission of offenses.
SECTION TWO: ANTICIPATION, PROLONGATION AND ABANDONMENT OF THE DUTIES AND POWERS OF PUBLIC OFFICE ARTICLE 236 ANTICIPATION OF DUTIES OF A PUBLIC OFFICE Elements: 1. That the offender is entitled to hold a public office or employment, either by election or appointment; 2. That the law requires that he should first be sworn in and/or should first give a bond; 3. That he assumes the performance of the duties and powers of such office; 4. That he has not taken his oath of office and/or given the bond required by law. ARTICLE 237 PROLONGING PERFORMANCE OF DUTIES AND POWERS Elements: 1. That the offender is holding a public office; 2. That the period provided by law, regulations or special provisions for holding such office, has already expired; 3. That he continues to exercise the duties and powers of such office. ARTICLE 238 ABANDONMENT OF OFFICE Elements: 1. That the offender is a public officer;
The public officer abandons his office to evade the discharge of his duty.
SECTION THREE: USURPATION OF POWERS AND UNLAWFUL APPOINTMENT ARTICLE 239 USURPATION OF LEGISLATIVE POWER Elements: 1. That the offender is an executive or judicial officer; 2. That he: a. Makes general rules or regulations beyond the scope of his authority or b. Attempts to repeal a law or c. Suspends the execution thereof. ARTICLE 240 USURPATION OF EXECUTIVE FUNCTIONS Elements: 1. That the offender is a judge; 2. That he: a. Assumes a power pertaining to the executive authorities; or b. Obstructs the executive authorities in the lawful exercise of their powers.
132
Note: See also RA 7877, the Anti-Sexual Harrassment Act of 1995 which applies where the accused demands, requests or otherwise requires any sexual favors from the victim in a
133
TITLE EIGHT: CRIMES AGAINST PERSONS SECTION ONE: PARRICIDE, MURDER, HOMICIDE ARTICLE 246 PARRICIDE Elements: 1. That a person is killed; 2. That the deceased is killed by the accused; and 3. That the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse, of the accused. Cases of parricide when the penalty shall NOT be reclusion perpetua to death: 1. Parricide through negligence (Art. 365). 2. Parricide by mistake (Art. 249). 3. Parricide under exceptional circumstances (Art. 247). The child should not be less than 3 days old; otherwise the crime is infanticide (Art. 255) Relationship of the offender with the victim is the essential element of the crime. Hence: If a person wanted to kill a stranger but by mistake killed his own father, he will be held liable for parricide BUT Art. 49 will apply as regards the proper penalty to be imposed, that is, the penalty for the lesser offense in its maximum period. A stranger who cooperates and takes part in the commission of the crime of parricide is not guilty of parricide but only of homicide or murder, as the case may be. The key element in parricide is the relationship of the offender with the victim. (People vs. Dalag, G.R. No. 129895, April 30, 2003) The relationship between the offender and the victim must be alleged. The law does NOT require knowledge of relationship, thus, a person who killed another not knowing that the latter was his son will still be held guilty of parricide. The fact that the husband only intended to maltreat his wife does not exempt him
134
Justification for Art. 247: The law considers the spouse or parent as acting in a justified burst of passion. ARTICLE 248 MURDER Murder unlawful killing of any person which is not parricide or infanticide, provided that any of the following circumstances is present: 1. With treachery, taking advantage of superior strength, with the aid of armed men, or employs means to weaken the defense, or of means or persons to insure or afford impunity; 2. In consideration of a price, reward or promise; 3. By means of inundation, fire, poison, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin; 4. On occasion of any calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamity; 5. With evident premeditation; or 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. (As amended by RA No. 7659) Elements: 1. That a person was killed; 2. That the accused killed him; 3. That the killing was attended by any of the qualifying circumstances mentioned in Art. 248; and 4. That the killing is not parricide or infanticide.
135
136
Euthanasia or Mercy-Killing - is a practice of painlessly putting to death a person suffering from some incurable disease. A doctor who resorted to euthanasia may be held liable for murder under Art. 248 since euthanasia is not giving assistance to suicide BUT doing the killing himself. In euthanasia, the person killed does not want to die. ARTICLE 254 DISCHARGE OF FIREARMS Elements: 1. That the offender discharges a firearm against or at another person; and 2. That the offender has no intention to kill that person. It is not applicable to police officers in the performance of their duties. The PURPOSE of the offender is only to intimidate or frighten the offended party. If in the discharge of firearm, the offended party is hit and wounded, there is a complex crime of discharge of firearm with serious or less serious physical injuries; BUT if only slight physical injuries were inflicted, there is no complex crime (BUT two separate crimes) since such physical injuries constitutes a light felony. The crime is discharge of firearm even if the gun was not pointed at the offended party when it was fired, as long as it was initially aimed by the accused at or against
137
Elements: 1. That there is a pregnant woman; 2. That violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon such pregnant woman; 3. That as a result of the use of violence or drugs or beverages upon her, or any other act of the accused, the fetus dies, either in the womb or after having been expelled therefrom; and 4. That the abortion is intended. Person liable in Intentional Abortion: 1. The person who intentionally caused the abortion under Art. 256; 2. The pregnant woman if she consented under Art. 258. As long as the fetus dies as a result of the violence used or the drugs administered, the crime of abortion exists, even if the fetus is over or less than 6 months, or is full term. If the fetus could sustain an independent life (the fetus must have an intrauterine life of not less than 7 months) after its separation from the maternal womb, and it is killed, the crime is infanticide, not abortion. Fetus must die in consummated abortion. If it is intentional abortion and the fetus does not die, it is frustrated intentional abortion when all the acts of execution have been performed by the offender. If the abortion is not intended and the fetus does not die, in spite of the violence intentionally exerted, the crime may only be physical injuries. There is no crime of frustrated unintentional abortion, in view of the lack of intention to cause an abortion. If there is no intention to cause abortion and no violence, there is no abortion of any kind. ARTICLE 257 UNINTENTIONAL ABORTION Elements: 1. That there is a pregnant woman; 2. That violence is used upon such pregnant woman without intending an abortion; 3. That the violence is intentionally exerted; and 4. That as a result of the violence, the fetus dies, either in the womb or after having been expelled therefrom. Violence refers to actual physical force.
138
As to PHARMACISTS, the ELEMENTS are: 1. That the offender is a pharmacist; 2. That there is no proper prescription from a physician; and 3. That the offender dispenses any abortive. As to pharmacists, crime is consummated by dispensing abortive without proper prescription from a physician. It is not necessary that the abortive was actually used. It is immaterial that the pharmacist knows that the abortive would be used for abortion. Otherwise, he shall be liable as an accomplice in the crime of abortion should abortion result from the use thereof. SECTION THREE: DUEL ARTICLE 260 RESPONSIBILITY OF PARTICIPANTS IN A DUEL Acts punished: 1. By killing ones adversary in a duel; 2. By inflicting upon such adversary physical injuries; and 3. By making a combat although no physical injuries have been inflicted. Persons liable: 1. The person who killed or inflicted physical injuries upon his adversary or both combatants in any other case, as principals. 2. The seconds, as accomplices. Duel a formal or regular combat previously concerted between two parties in the presence
139
In paragraphs 2 and 3, the offended party must have a vocation or work at the time of the injury. Work includes studies or preparation for a profession. Requisites of deformity: 1. Physical ugliness; 2. Permanent and definite abnormality; and 3. Must be conspicuous and visible.
140
Paragraph 4 speaks of incapacity for any kind of labor. Note: Hospitalization for more than 30 days may mean either illness or incapacity for labor for more than 30 days. Physical Injuries
The offender physical injuries. Attempted or Frustrated Homicide
inflicts Attempted homicide may be committed, even if no physical injuries are inflicted.
Offender has no intent to The offender has an kill the offended party. intent to kill the offended party.
Qualifying Circumstances: 1. Offense committed against persons enumerated in the crime of parricide. 2. With the attendance of circumstance which qualify the crime to murder. HOWEVER, the qualified penalties are NOT applicable to parents who inflict serious physical injuries upon their children by excessive chastisement. ARTICLE 264 ADMINISTERING INJURIOUS SUBSTANCE OR BEVERAGES Elements: 1. That the offender inflicted upon another any serious physical injury; 2. That it was done by knowingly administering to him any injurious substances or beverages or by taking advantage of his weakness of mind or credulity; and 3. That he had no intent to kill. It is frustrated murder if there was intent to kill. Administering injurious substance means introducing into the body the substance. It does not apply when the physical injuries that result are less serious or light, they will be treated under Art 265 or 266, as the case may be.
The law includes 2 subdivisions, to wit: 1. The inability for work; and 2. The necessity for medical attendance Therefore, although the wound required medical attendance for only 2 days, yet, if the injured party was prevented from attending to his ordinary labor for a period of 29 days, the physical injuries sustained are denominated as less serious. In the absence of proof as to the period of the offended partys incapacity for labor or of required medical attendance, offense committed is only slight physical injuries. ARTICLE 266 SLIGHT PHYSICAL INJURIES AND MALTREATMENT Kinds: 1. Physical injuries which incapacitated the offended party from one to nine days, or required medical attendance during the same period; 2. Physical injuries which did not prevent the
141
4.
If physical injuries were inflicted with an intent to insult or humiliate the injured person, the intent to insult or humiliate shall be: Considered as an aggravating circumstance of ignominy in case of serious physical injuries Considered in increasing the penalty and qualifying the crime in case of less serious physical injuries Separate crime of slander by deed in case of slight physical injuries. ANTI-HAZING LAW (R.A. No. 8049) Hazing is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish, and similar activities or otherwise subjecting him to physical or psychological suffering or injury. Allowed Initiation Rites (Section 2) Those that have prior written notice to the school authorities or head of organization 7 days before the conduct of such initiation. The written notice shall contain the following: 1. Period of the initiation activities which shall not exceed 3 days 2. Names of those to be subjected to such activities 3. Undertaking that no physical violence be employed by anybody What acts are punishable: All acts so long as it caused physical injuries at the very least. Persons liable: 1. Officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm shall be liable as principals if the person subjected to hazing suffers any physical injury or dies as a result thereof. 2. Owner of the place where the hazing is
5.
6.
7.
142
c.
Under R.A. 8353, the crime of rape can now be committed by a male or a female. To be CONSUMMATED, it is not essential that there be a complete penetration of the female organ, neither is it essential that there be a rupture of the hymen. However, there must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for the accused to be convicted of consummated rape. Absent of any showing of the slightest penetration of the female organ, it can only be attempted rape, if not acts of lasciviousness. (People vs. Campuhan, 329 SCRA 270 [2000]) For a charge for rape by sexual assault with the use of ones fingers or any other object to be consummated, there should be evidence of at least the slightest penetration of the sexual organ and not merely a brush or graze of its surface. (People v. Dela Cruz, GR No. 180501, December 24, 2008) There is NO crime of FRUSTRATED RAPE. The slightest penetration or mere touching of the genitals consummates the crime of rape. There is ATTEMPTED RAPE when there is no penetration of the female organ because not all the acts of execution were performed. However, there must be an intention to have carnal knowledge of the woman against her will. Acknowledgment of the consummated act is not considered giving of consent. In Statutory Rape, the offenders knowledge of the victims age is IMMATERIAL. Force employed against the victim of rape need not be of such character as could not be resisted. It is enough that the force used is sufficient to consummate the culprits purpose of copulating with the victim. If the woman contributed in some way to the consummation of the act, this may constitute an offense other than rape. Intimidation includes the moral kind. Having sex with a deaf-mute is not rape in
143
144
145
Kidnapping with Rape Forcible Abduction with Rape Lewd design came after At the outset, there is the intent to kidnap the already lewd design. victim. It is a special complex It is a complex crime crime. under Article 48 since forcible abduction is a necessary means of committing the crime of rape. If there is an attempted If there is an attempted rape, it shall be rape, the crime considered a separate committed is only crime. forcible abduction, the former being an expression of the lewd design. If there are multiple If there are multiple rapes, there is only one rapes, only one is special complex crime complexed with forcible of Kidnapping with abduction and the rest Rape. shall be considered as separate crimes.
ARTICLE 268 SLIGHT ILLEGAL DETENTION Elements: (PIKO) 1. That the offender is a private individual; 2. That he kidnaps or detains another, or in any manner deprives him of his liberty; 3. That the act of kidnapping or detention is illegal; 4. That the crime is committed without the attendance of the circumstances enumerated in Art. 267.
146
SECTION TWO: KIDNAPPING OF MINORS ARTICLE 270 FAILURE TO RETURN A MINOR Elements: (EF) 1. That the offender is entrusted with the custody of a minor person (less than 18 years old); 2. That he deliberately fails to restore the said minor to his parents or guardian; This may also be committed by the mother or father of the child. When committed by either parent, penalty is only arresto mayor. Kidnapping and failure to return a minor (Art. 270) is necessarily included in Kidnapping and Serious Illegal Detention of Minor (Par. 4 of Art. 267), but what differentiates them are the following:
Art. 267 Offender is not entrusted with the custody of the victim Illegally detaining or kidnapping the minor. Art. 270 Offender is entrusted with the custody of the minor What is punished is the deliberate failure of the offender having the custody of the minor to restore him to his parents or guardian
ARTICLE 271 INDUCING A MINOR TO ABANDON HIS HOME Elements: (LI) 1. That a minor (less than 18 years old) is living in the home of his parents or guardian or the person entrusted with his custody; 2. That the offender induces said minor to abandon such home. Inducement must be (a) actual, (b) committed with criminal intent and (c) determined by a will to cause damage. The crime committed may be exploitation of minors depending on the purpose of the inducement. To induce means to influence; to prevail on; to move by persuasion; or to incite by
No period of detention is fixed by law under Art. 269 but the motive of the offender is controlling. Delay in the Delivery of Detained Persons (Art. 125) Unlawful Arrest (Art. 269)
Detention is not authorized by law
147
Minor is compelled to render services for the supposed debt of his parent or guardian. Service of minor is not limited to household and farm work.
CHAPTER TWO: CRIMES AGAINST SECURITY (ARTS. 275-289) SECTION ONE: ABANDONMENT OF HELPLESS PERSONS AND EXPLOITATION OF MINORS ARTICLE 275 ABANDONMENT OF PERSONS IN DANGER AND ABANDONMENT OF ONES OWN VICTIM Acts punished: 1. By failing to render assistance to any person whom the offender finds in an uninhabited place wounded or in danger of dying when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense. Elements: (UWOF) a. The place is uninhabited; b. The accused found there a person wounded or in danger of dying; c. The accused can render assistance without detriment to himself; d. The accused fails to render assistance. 2. By failing to help or render assistance to another whom the offender has accidentally wounded or injured. 3. By failing to deliver a child under seven years of age whom the offender has found abandoned, to the authorities or to his family, or by failing to take him to a safe place. Uninhabited place is determined by possibility of person receiving assistance from another. The place may still be considered uninhabited in legal
148
2.
Elements of Abandonment of Minor: 1. That the offender has charge of the rearing or education of a minor; 2. That he delivers said minor to a public institution or other persons; 3. That the one who entrusted such child to the offender has not consented to such act, or if the one who entrusted such child to the offender is absent, the proper authorities have not consented to it. Elements of Indifference of Parents: (PNP) 1. That the offender is a parent; 2. That he neglects his children by not giving them education; 3. That his station in life requires such education and his financial condition permits it. Failure to give education must be due to deliberate desire to evade such obligation. The "neglect of child" punished under Article 59(4) of PD 603 is also a crime (known as "indifference of parents") penalized under the second paragraph of Article 277 of the Revised Penal Code. (De Guzman v. Perez, et al. G.R. No. 156013 July 25, 2006)
Abandonment of Minor by Persons Entrusted with Custody (Art. 277) The custody of the offender is specific, that is, the custody for the rearing or education of the minor Minor is under 18 yrs. of age Minor is delivered to a public institution or other person
Abandonment of Minor (Art. 276) The custody of the offender is stated in general
Minor is under 7 years of age Minor is abandoned in such a way as to deprive him of the care and protection that his tender years need
ARTICLE 278 EXPLOITATION OF MINORS Prohibited Acts: 1. Causing any boy or girl under 16 years of age to perform any dangerous feat of balancing, physical strength, or contortion,
149
Qualifying Circumstance: Delivery of the child is made in consideration of any price, compensation or promise
Exploitation of Minors (Art 278, par. 5) The purpose of inducing the minor to abandon the home is to follow any person engaged in any of the callings mentioned Victim is under years of age 16 Inducing A Minor to Abandon his Home (Art. 271) No such purpose
R.A. 7610 punishes abuse, exploitation and discrimination of minors ARTICLE 279 ADDITIONAL PENALTIES FOR OTHER OFFENSES
Imposition of the penalties prescribed in the preceding articles (Art 275-278) shall not prevent the imposition upon the same person of the penalty provided for any other felonies defined and punished under the Code.
Dwelling place means any building or structure exclusively devoted for rest and comfort. It is not necessary that it be the permanent dwelling of the person. Determining factor of whether a building is a dwelling depends upon the use to which it is put. In general, all members of a household must be presumed to have authority to extend an invitation to enter the house. To commit trespass, the entrance by the accused should be against the presumed/implied or express prohibition of the occupant. Lack of permission does not amount to prohibition. There is an implied prohibition when entrance is made through means not intended for ingress. Rule: Whoever enters the dwelling of another at late hour of the night after the inmates have retired and closed their doors does so against their will. Prohibition in this case is presumed. If a person was killed after trespass by the offender, the following crimes are committed: If there was no intent to kill when he entered - separate crimes of homicide or murder and qualified trespass to dwelling If there was intent to kill when he entered the crime of homicide/murder with dwelling as an aggravating circumstance
150
is
Act constituting the crime is entering the dwelling against the will of the owner.
It is the entering the closed premises or the fenced estate without securing the permission of the owner or caretaker thereof. Prohibition to enter must be manifest.
Premises signifies distinct and definite locality. It may mean a room, shop, building or definite area, but in either case, locality is fixed. SECTION THREE: THREATS AND COERCION ARTICLE 282 GRAVE THREATS Acts punished: 1. By threatening another with the infliction upon his person, honor, or property or that of his family of any wrong amounting to a crime and demanding money or imposing any other condition even though not unlawful, and the offender attained his purpose. (with condition) 2. By making such threat without the offender attaining his purpose. (with condition; elements for this act are the same with the first except that the purpose is not attained.) 3. By threatening another with the infliction upon his person, honor or property or that of his family of any wrong amounting to a crime, the threat not being subject to a condition. (without condition)
Grave Threats Act threatened amounts to a crime Threats Intimidation is essential Light Threats Act threatened does not amount to a crime Coercion Intimidation or Violence is the essence of the crime Force or Violence must be imminent, actual and immediate.
Cases to which the provision of this article is NOT applicable: 1. If the entrance to anothers dwelling is made for the purpose of preventing some serious harm to himself, the occupants of the dwelling or a third person. 2. If the purpose is to render some service to humanity or justice. 3. If the place where entrance is made is a caf, tavern, inn and other public house, while the same are open. Note: A person who believes that a crime has been committed against him has every right to go after the culprit and arrest him without any warrant even if in the process he enters the house of another against the latters will. (Sec. 6, Rule 113, Rules of Court) ARTICLE 281 OTHER FORMS OF TRESPASS Elements: (CUMN) 1. That the offender enters the closed premises or the fenced estate of another 2. That the entrance is made while either of them is uninhabited; 3. That the prohibition to enter be manifest; 4. That the trespasser has not secured the permission of the owner or the caretaker thereof.
Qualified Trespass to Dwelling (Art. 280) Offender is a private person. Other Forms of Trespass (Art. 281) The offender person. is any
future
151
immediate member or members of his family or; b. Imposing a condition, whether lawful or unlawful. In order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases is punishable under PD 1829. ARTICLE 283 LIGHT THREATS Elements: (TNDA/N) 1. That the offender makes a threat to commit a wrong; 2. That the wrong does not constitute a crime; 3. That there is a demand for money or that other condition is imposed even though not unlawful; 4. That the offender has attained his purpose or, that he has not attained his purpose. Note: Blackmailing may be punished under Art. 283. ARTICLE 284 BOND FOR GOOD BEHAVIOR When a person is required to give bail bond: 1. When he threatens another under the circumstances mentioned in Art. 282. 2. When he threatens another under the circumstances mentioned in Art. 283. Art. 35
Provides for bond to keep the peace Not made applicable to any particular case It is a distinct penalty If the offender fails to give the bond, he shall be detained for a period not exceeding 6 months (if prosecuted for grave/less grave felony) or not exceeding 30 days (if prosecuted for light felony)
Qualifying Circumstance: If threat was made in writing or through a middleman. Elements of Grave Threats where the offender attained his purpose: (TCDA) 1. That the offender threatens another person with the infliction upon the latters person, honor or property, or upon that of the latters family, of any wrong; 2. That such wrong amounts to a crime; 3. That there is a demand for money or that any other condition is imposed, even though not unlawful; 4. That the offender attains his purpose. Elements of Grave Threats NOT subject to a condition: (TCN) 1. That the offender threatens another person with the infliction upon the latters person, honor, or property, or upon that of the latters family, of any wrong. 2. That such wrong amounts to a crime. 3. That the threat is not subject to a condition. The third form of grave threats must be serious in the sense that it is deliberate and that the offender persists in the idea involved in his threats. Intimidation (promise of future harm or injury) is the essence of the crime The crime of threats is consummated the moment the threat comes to the knowledge of the person threatened. If there is another crime actually committed or the objective of the offender is another crime, and the threat is only a means to commit it or a mere incident to its commission, the threat is absorbed by the other crime. If the threat was made with the deliberate purpose of creating in the mind of the person threatened the belief that the threat would be carried into effect, the crime committed is grave threat, and the minor crime which accompanied it should be disregarded. When the offender demands the money or property on the spot, the crime is not grave threats BUT robbery with intimidation.
Art. 284
Provides for bond for good behavior Applicable only to cases of grave threats and light threats It is an additional penalty If he shall fail to give bail, he shall be sentenced to destierro
Note: a. Threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any
152
meetings, expressing his opinions or casting his vote through the use of force or intimidation. When COMPELLING is not considered Coercion: Under Art. 127: When a public officer compels a person to change his residence. Under Art. 267: When a person kidnaps his debtor to compel him to pay. Elements: (PCVN) 1. That a person prevented another from doing something not prohibited by law, or by compelling him to do something against his will, be it right or wrong; 2. That the prevention or compulsion be effected by violence, threats or intimidation. 3. That the person that restrained the will and liberty of another has no right to do so, or in other words, that the restraint is not made under authority of law or in the exercise of any lawful right. When PRISION MAYOR shall be imposed: (VCP) 1. If the coercion is committed in violation of the exercise of the right of suffrage. 2. If the coercion is committed to compel another to perform any religious act. 3. If the coercion is committed to prevent another from performing any religious act.
Grave Coercion The act of preventing by force must be made at the time the offended party was doing or about to do the act prevented. Grave Coercion Intent to deprive the offended party of his liberty is not clear (i.e. may freely leave the house but is compelled to return). Unjust Vexation The act was already done when the violence was exerted.
No condition imposed.
ARTICLE 286 GRAVE COERCION Two Ways of Committing Grave Coercion: (PC) 1. By preventing another by means of violence, threats or intimidation, from doing something not prohibited by law. (Preventive) 2. By compelling another, by means of violence, threats or intimidation, to do something against his will, whether it be right or wrong. (Compulsive)
Preventive The act prevented to be done must not be prohibited by law Compulsive The act compelled to be done by another against his will may or may not be prohibited by law
When PREVENTING is not considered Coercion: Under Art. 132: When a public officer prevents the ceremonies of a religious group. Under Art. 143: When a person prevents the meeting of a legislative assembly. Under Art. 145: When a person prevents a member of Congress from attending
Grave Coercion If the offended party is not a prisoner, extracting information using force or intimidation is coercion.
Maltreatment of Prisoners If the offended party is a prisoner, extracting information using force or intimidation is maltreatment.
153
ARTICLE 289 FORMATION, MAINTENANCE, & PROHIBITION OF COMBINATION OF CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS Elements: 1. That the offender employs violence or threats, in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work; 2. That the purpose is to organize, maintain or prevent coalitions of capital or laborers or lockout of employers. The act should not be a more serious offense. Peaceful picketing is allowed. When the picketers employ violence or if they make threats, they shall be held liable for coercion. Preventing employee from joining any registered labor organization is punished under the Labor Code, not under the RPC.
154
ARTICLE 291 REVEALING SECRETS WITH ABUSE OF OFFICE Elements: (MLR) 1. That the offender is a manager, employee or servant; 2. That he learns the secrets of his principal or master in such capacity; 3. That he reveals such secrets. Damage is not necessary. ARTICLE 292 REVELATION OF INDUSTRIAL SECRETS Elements: (MSRP) 1. That the offender is a person in charge, employee or workman of a manufacturing or industrial establishment; 2. That the manufacturing/industrial establishment has a secret of the industry which the offender has learned; 3. That the offender reveals such secrets; 4. That prejudice is caused to the owner. Secrets must relate to manufacturing process. Prejudice is an element in this offense
TITLE TEN: CRIMES AGAINST PROPERTY ARTICLE 293 WHO ARE GUILTY OF ROBBERY Robbery is the taking of personal property belonging to another, with intent to gain, by means of violence against, or intimidation of any person, or using force upon anything. Classification of Robbery: 1. Robbery with violence against, or intimidation of persons (Arts. 294, 297 and 298). 2. Robbery by use of force upon things (Arts. 299 and 302). Elements of Robbery in general: 1. That there be personal property (bienes muebles) belonging to another; 2. That there is unlawful taking (apoderamiento or asportacion) of that property; 3. That the taking must be with intent to gain (animus lucrandi); 4. That there is violence against or intimidation of any person or force used upon things.
It is necessary that offender seizes papers or letters another to discover secret of the latter.
If there is a secret discovered, it is not necessary that it be revealed. Act punished is the seizure of correspondence so as to discover the secrets of the offended party.
Act punished is the revelation of secrets by the officer by reason of his office.
Article 290 NOT applicable to: 1. Parents, guardians, or persons entrusted with the custody of minors with respect to the papers or letters of the children or minors placed under their care or study; 2. Spouses with respect to the papers or letters of either of them.
155
SECTION ONE: ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS ARTICLE 294 ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS Acts Punished under this Article: 1. (a) When by reason or on occasion of the robbery, the crime of homicide is committed; (b) or when the robbery is accompanied by rape or intentional
156
157
Note: There is no crime of Robbery with Multiple Homicide or Robbery with Multiple Counts of Rape. Although there be more than one instance of homicide/murder or rape, they shall be considered as embraced under one special complex crime of either Robbery with Homicide or Robbery with Rape. Neither shall the additional rape/s or homicide/s be considered aggravating. Unless and until a law is passed providing that the additional rape/s (or homicide/s) may be considered aggravating, the Court must construe the penal law in favor of the offender as no person may be brought within its terms if he is not clearly made so by the statute. (People vs. Sultan, G. R. No. 132470, April, 27, 2000). Robbery with Arson In the case of robbery with arson, it is essential that the robbery precedes the arson. There must be an intent to commit robbery and no killing, rape or intentional mutilation should be committed in the course of the robbery, or else, arson will only be considered an aggravating circumstance of the crime actually committed. Robbery with Serious Physical Injuries Par 2 and par. 3 of this article also apply even when the serious physical injuries referred to therein are inflicted upon a corobber. th Under the 4 act punishable, clause A, the violence need not result in serious physical injuries. The first clause in Art 294 par 4 requires only that the violence be unnecessary for the commission of the crime. To be considered as robbery with physical injuries, the injuries inflicted must be serious; otherwise, they shall be absorbed in the robbery. However, if the less serious or slight physical injuries were committed after the robbery was consummated, that would constitute a separate offense. Under clause B, it is required that the physical injuries be inflicted in the course
Intimidation is personal. Intimidation is directed only to the person of the victim. The gain of the culprit is immediate. Bribery He parts with his money, in a sense, voluntarily. Grave Coercion No intent to gain
ARTICLE 295 ROBBERY WITH PHYSICAL INJURIES, COMMITTED IN AN UNINHABITED PLACE BY A BAND OR WITH THE USE OF FIREARM ON A STREET, ROAD OR ALLEY Qualified Robbery with Violence Against or Intimidation of Persons: Nos. 3, 4, and 5 of Article 294 if committed: 1. In an uninhabited place (despoblado); or 2. By a band (en cuadrilla); or 3. By attacking a moving train, street car, motor vehicle, or airship; or 4. By entering the passengers compartments in a train, or in any manner
158
firearm in murder and homicide is now considered not as a separate crime but merely a special aggravating circumstance. Use of unlicensed firearm by a band in the commission of robbery with physical injuries cannot be offset by a generic mitigating circumstance. Requisites for liability for the acts of other members of the band: 1. He was a member of the band; 2. He was present at the commission of a robbery by that band; 3. The other members of that band committed an assault; 4. He did not attempt to prevent the assault. Proof of conspiracy is not necessary when four or more armed persons committed robbery. The circumstance that the robbery was committed by a band would only be appreciated as an ordinary aggravating circumstance in Robbery with Homicide. No such crime as robbery with homicide in band. (People vs. Apduhan, Jr., G.R. No. L-19491, August 30, 1968)
If the crime committed is robbery with homicide, rape, mutilation or arson (Par. 1) or with physical injuries under subdivision 1 of Art. 263 (Par. 2), despoblado and cuadrilla will each be considered only as a generic aggravating circumstance. ARTICLE 296 DEFINITION OF A BAND AND PENALTY INCURRED BY THE MEMBERS THEREOF Outline: 1. When at least four armed malefactors take part in the commission of a robbery, it is deemed committed by a band. 2. When any of the arms used in the commission of robbery is not licensed, the penalty upon all malefactors shall be the maximum of the corresponding penalty provided by law without prejudice to the criminal liability for illegal possession of firearms. 3. Any member by a band who was present at the commission of a robbery by the band, shall be punished as principal of any assaults committed by the band, unless it be shown that he attempted to prevent the same. Art. 296, just like Art. 295, also applies only to robbery under pars. 3, 4 and 5 of Art. 294, and not to robbery with homicide, rape, intentional mutilation, arson or the physical injuries in par. 1 of Art. 263. PD 1866 penalizes illegal possession of firearm in addition to criminal liability for robbery by a band. Under R.A. No. 8294, the use of unlawful
ARTICLE 297 ATTEMPTED AND FRUSTRATED ROBBERY COMMITTED UNDER CERTAIN CIRCUMSTANCES Special Complex Crime: When by reason or on occasion of an attempted or frustrated robbery, a homicide is committed. Homicide under this article is also used in its generic sense - to include any other unlawful killing. However, if the killing legally constituted murder or parricide, the offense will continue to be covered by Art. 297 with the technical name stated therein, but the penalty shall be for murder or parricide because Art. 297 states, unless the homicide (killing) committed shall deserve a higher penalty under this Code. The penalty is the same whether the robbery is attempted or frustrated. If homicide is not consummated, the crimes of robbery and attempted or frustrated homicide: 1. May be complexed (Article 48), or 2. Considered as separate crimes, or 3. Considered as one crime, one absorbing the other.
159
Elements: (Subdivision B) 1. Offender is inside a dwelling house, public building or edifice devoted to religious worship, regardless of the circumstances under which he entered it. 2. The offender takes personal property belonging to another with intent to gain under any of the following circumstances: a. by the breaking of internal doors, wardrobes, chests, or any other kind of sealed furniture or receptacle b. by taking such furniture or objects away to be broken open outside the place of the robbery Entrance into the building by any means mentioned in subdivision (a) of Article 299 is not required in robbery under subdivision (b) of the same article. The term door under this subdivision refers only to doors lids or opening sheets
160
The palay must be kept by the owner as seedling or taken for that purpose by the robbers.
161
Punishable Acts 1. Piracy (Section 3) 2. Highway robbery/brigandage (Section 3) 3. Aiding pirates or highway robbers/ brigands or abetting piracy or highway robbery/ brigandage (Section 4)
PD 532 Mere conspiracy to constitute the offense of brigandage is not punishable (presupposes that acts defined are actually committed) Brigandage (Art. 306, RPC) Mere formation of a band for any purpose indicated in the law is punishable
162
ARTICLE 307 AIDING OR ABETTING A BAND OF BRIGANDS Elements: 1. That there is a band of brigands; 2. That the offender knows the band to be of brigands; 3. That the offender does any of the following acts: a. That he aids, abets, or protects such band of brigands; b. That he gives them information on the movements of the police or other peace officers of the government; or c. That he acquires or receives property taken by such brigands. It shall be presumed that the person performing any of the acts provided in this article has performed them knowingly, unless the contrary is proven.
ARTICLE 306 BRIGANDAGE Elements: 1. There be at least four armed persons 2. They formed a band of robbers 3. The purpose is any of the following: a. To commit robbery in a highway; or b. To kidnap persons for the purpose of extortion or to obtain ransom; or c. To attain by means of force or violence any other purpose Presumption of law as to brigandage: All are presumed to be highway robbers or brigands, if any of them carry unlicensed firearm. Brigandage may be committed without the use of firearms. The term armed covers arms and weapons in general, not necessarily firearms. The only things to prove are: 1. That there is an organization of more than three armed persons forming a band of robbers; 2. That the purpose of the band is any of those enumerated in Art. 306; 3. That they went upon the highway or roamed upon the country for that purpose; 4. That the accused is a member of such band.
Brigandage Purpose: commit robbery in highway; or to kidnap person for ransom; or any other purpose attained by force and violence Agreement commit robberies. is to several is Robbery in Band Purpose: commit robbery, not necessarily in highways
CHAPTER THREE: THEFT (ARTS. 308-311) ARTICLE 308 WHO ARE LIABLE FOR THEFT Theft is committed by any person who, with intent to gain but without violence or intimidation of persons nor force upon things, shall take the personal property of another without the latters consent. Elements: 1. That there be taking of personal property; 2. That said property belongs to another; 3. That the taking be done with intent to gain; 4. That the taking be done without the consent of the owner; 5. That the taking be accomplished without the use of violence against or intimidation of persons or force upon things. Theft is likewise committed by: 1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner; It is necessary to prove: a. The time of the seizure of the thing; b. That it was a lost property belonging to another; and c. That the accused having had the opportunity to return or deliver the lost property to its owner or to the local authorities, refrained from doing so. The term lost property embraces loss by stealing. The finder in law can also be held
163
From the moment the offender gained possession of the thing, even if the culprit had no opportunity to dispose of the same, the unlawful taking is complete (People vs. Salvilla, GR. No. 86163, April 26, 1990). The ability of the offender to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in Article 308, whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony (Valenzuela vs. People of the Philippines, G. R. No. 160188, June 21, 2007). Theft is not limited to an actual finder of lost
164
Qualified Theft only: If material or physical possession was given to the offender Estafa only: If material plus juridical possession were given to the offender CATTLE RUSTLING LAW of 1974 (P.D. 533) Cattle Rustling is defined as the taking away by means, method or scheme, without the consent of the owner/raiser, of any large cattle whether or not for profit or gain, or whether committed with or without violence against or intimidation of persons or force upon things. It includes the killing of large cattle or taking it as meat or hide without the consent of the owner/raiser. Large Cattle shall include the cow, carabao, horse, mule, ass, or other domesticated member of the bovine family. Goats are not large cattle. Presumption of Cattle Rustling: Failure to exhibit the required documents by any person having in his possession, control, or custody of large cattle, upon demand by competent
165
166
ARTICLE 313 ALTERING BOUNDARIES OR LANDMARK Elements: 1. That there be boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same; 2. That the offender alters said boundary marks. Altering is understood in its general and indefinite meaning. Any alteration is enough to constitute the material element of the crime.
CHAPTER FIVE: CULPABLE INSOLVENCY (ART. 314) ARTICLE 314 FRAUDULENT INSOLVENCY Elements: 1. That the offender is a debtor, that is, he has obligations due and demandable; 2. That he absconds with his property;
167
Unlike in the Insolvency Law, Art. 314 does not require for its application that the criminal act should have been committed after the institution of insolvency proceedings. CHAPTER SIX: SWINDLING AND OTHER DECEITS (ARTS. 315-318) ARTICLE 315 SWINDLING/ESTAFA Elements in general: 1. That the accused defrauded another by abuse of confidence, or by means of deceit; 2. That the damage or prejudice capable of pecuniary estimation is caused to the offended party or third persons. Damage or prejudice may consist of: 1. Offended party being deprived of his money or property as a result of the defraudation; 2. Disturbance in property rights; 3. Temporary prejudice. Note: Profit or gain must be obtained by the accused personally and mere negligence in allowing another to benefit from the transaction is not estafa. I. Estafa with Unfaithfulness or Abuse of Confidence A. Estafa with unfaithfulness (Article 315, No. 1-A) Elements: 1. That the offender has an onerous obligation to deliver something of value; 2. That he alters its substance, quantity or quality; 3. That damage or prejudice capable of pecuniary estimation is caused to the offended party or third persons. It is estafa even if the obligation be based on an immoral or illegal obligation. When there is no agreement as to the quality of thing to be delivered, the delivery of the thing not acceptable to the complainant is
168
Is Novation a Ground to Extinguish Criminal Liability under Estafa? NO. The Novation of the contract or obligation AFTER criminal liability for Estafa has been INCURRED is NOT a ground to extinguish the offenders criminal liability. Novation is not one of the grounds for the extinguishment of criminal liability under Art. 89 of the RPC. HOWEVER, where such novation, occurs BEFORE the criminal liability for Estafa has been incurred, that is when not all the elements therefore are present, then no criminal liability attaches.
Note: If an object was received to be sold, but instead it was pledged, estafa is committed. If an object was to be pledged, but instead it was sold, theft is committed.
Estafa Malversation Offenders are entrusted with funds or property Considered as continuing offenses The funds or property Usually public funds are private or property Offender is a private Offender who is individual or even a usually a public officer public officer who is is accountable for not accountable for public funds or public funds or property property. There is no estafa Malversation can be through negligence committed through abandonment or negligence Crime is committed by misappropriating, converting or denying having received money, goods, or other personal property Crime is committed by appropriating taking or misappropriating or consenting, or through abandonment or negligence, permitting any other person to take the public funds or property
169
C.
Ways of commission: A. Art. 315 No. 2 (A): 1. By using a fictitious name. 2. By falsely pretending to possess
170
Take Note: While the written notice of dishonor and demand is not an element in the violation of BP 22, the failure to give such notice to the maker, drawer or issuer of the bouncing check is FATAL to an action to hold the latter criminally liable. The full payment of the amount appearing in the check within five banking days from notice of dishonor is a "complete defense" against BP 22 The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on the maker, drawer or issuer of the check. He has a right to demand that the notice of dishonor be actually sent to and received by him to afford him the opportunity to avert prosecution under B.P. 22. (Lina Lim Lao v. People, G.R. No. 119178, June 20, 1997) B. Failing to keep sufficient funds to cover the full amount of the check. Elements: 1. That a person has sufficient funds with the drawee bank when he makes or draws and issues a check 2. That he fails to keep sufficient funds or
171
Estafa (RPC)
Endorser who acted with deceit knowing that the check is worthless will be criminally liable Malum in se It is the means to obtain the valuable consideration from the payee (debt is not preexisting) False pretenses or deceit and damage, or at least intent to cause damage, are essential and the false pretenses must be prior to or simultaneous with the damage caused Given 3 days after receiving notice of dishonor
Deceit and damage are not elements of the crime; the gravamen of the offense is the issuance of the unfunded check
The drawer is given 5 days after receiving notice of dishonor within which to pay or make arrangements for payment That there are no funds or no sufficient funds at the time of issuance or at the time of presentment if made within 90 days
That there are no funds or there are insufficient funds at the time of issuance
172
Estafa (RPC)
Not necessary that the drawer should know at the time that he issued the check that the funds deposited in the bank were not sufficient to cover the amount of the check No presumption of knowledge arises
B. Estafa by resorting to some fraudulent practice to insure success in gambling (Article 315 No. 3B) C. Estafa by removing, concealing or destroying documents (Article 315 No. 3C) Elements: 1. That there be court record, office files, documents or any other papers; 2. That the offender removed, concealed or destroyed any of them; 3. That the offender had intent to defraud another.
Infidelity in Custody of Document (Art. 226)
E. Art. 315, No. 2(E) 1. By obtaining food, refreshment or accommodation at hotel, inn, restaurant, boarding house, lodging house or apartment house without paying thereof, with intent to defraud the proprietor or manager thereof 2. By obtaining credit at any of the said establishments by the use of any false pretense 3. By abandoning or surreptitiously removing any part of his baggage from any of the said establishment after obtaining credit, food, refreshment or accommodation therein, without paying therefor. III. Estafa Through the Following Means A. Estafa by inducing another to sign any document (Article 315 No. 3A) Elements: 1. That the offender induced the offended party to sign a document; 2. That deceit be employed to make him sign the document; 3. That the offended party personally signed the document; 4. That prejudice be caused. Note: If offended party willingly signed the document and there was deceit as to the character or contents of the document, the crime committed is falsification. BUT where the accused made representation as to mislead the complainant as to the character of the documents, it is considered estafa.
Same manner of committing the crime Offender is a public The offender is a officer who is private individual or officially entrusted public officer who is with the document. not officially entrusted with the documents Intent to defraud is There is intent to not necessary. defraud.
ARTICLE 316 OTHER FORMS OF SWINDLING Persons liable: 1. Any person who, pretending to be the owner of any real property, shall convey, sell, encumber or mortgage the same. Elements: a. That the thing be immovable, such as a parcel of land or a building; (property must actually exist) b. That the offender who is not the owner of said property should represent that he is the owner thereof; c. That the offender should have executed an act of ownership (selling, leasing, encumbering or mortgaging the real property); d. That the act be made to the prejudice of the owner or a third person.
173
174
175
Presumption and prima facie evidence of intent to defraud (Section 14) The mere possession, control or custody of: a. An access device, without permission of the owner or without any lawful authority; b. A counterfeit access device; c. Access device fraudulently applied for; d. Any device-making or altering equipment by any person whose business or employment does not lawfully deal with the manufacture, issuance, or distribution of access device; e. An access device or medium on which an access device is written, not in the ordinary course of the possessor's trade or business; or f. A genuine access device, not in the name of the possessor, or not in the ordinary course of the possessor's trade or business, shall be prima facie evidence that such device or equipment is intended to be used to defraud. A cardholder who abandons or surreptitiously leaves the place of employment, business or residence stated in his application or credit card, without informing the credit card company of the place where he could actually be found, if at the time of such abandonment or surreptitious leaving, the outstanding and unpaid balance is past due for at least ninety (90) days and is more than Ten thousand pesos (P10,000.00), shall be prima facie presumed to have used his credit card with intent to defraud.
CHAPTER SEVEN: CHATTEL MORTGAGE (ARTS. 319) ARTICLE 319 REMOVAL, SALE OR PLEDGE OF MORTGAGED PROPERTY Acts punishable: A. By knowingly removing any personal property mortgaged under the Chattel Mortgage Law to any province or city other than the one in which it is located at the time of execution of the mortgage, without the written consent of the mortgagee or his executors, administrators or assigns.
176
If the mortgagee elected to file a suit for collection, not foreclosure, thereby abandoning the mortgage as basis for relief, the removal of the property is not a violation of par 1 of Art 319. Chattel mortgage must be valid and subsisting.
B. By selling or pledging personal property already pledged, or any part thereof, under the terms of the Chattel Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds of the province where such property is located. Sale or Pledge of Mortgaged Property Elements: 1. Personal property is pledged under Chattel Mortgage Law; 2. Offender, who is the mortgagor, sells or pledges the same property or any part thereof; 3. No consent of mortgagee written on the back of the mortgage and noted on the record thereof in the Office of the Register of Deeds. Damage to the mortgagee is not essential.
177
Attempted, frustrated or consummated arson: 1. A person, intending to burn a wooden structure, collects some rags, soaks them in gasoline and places them beside the wooden wall of the building. When he is about to light a match to set fire to the rags, he is discovered by another who chases him away. The crime committed is attempted arson, because the offender commences the commission of the crime directly by overt acts (placing the rags soaked in gasoline beside the wooden wall of the building and lighting a match) but he does not perform all the acts of execution (the
178
2. Any charring of the wood of a building, whereby the fiber of the wood is destroyed, is sufficient. It is necessary that the wood should be ablazed. And the mere fact that a building is scorched or discolored by heat is not sufficient to constitute consummated arson. 3. Setting fire to the contents of a building constitutes the consummated crime of setting fire of a building, even if no part of the building was burned. The offense is committed by a syndicate if it is planned or carried out by a group of three or more persons. If a part of the building commences to burn, the crime is consummated arson, however small is the portion burned. When there is fire, the crime committed is either frustrated (e.g. set fire to the blankets but fire was put out before any part of the building was burned) or consummated arson, never attempted. There is no complex crime of arson with homicide. The crime of homicide is absorbed. CHAPTER NINE: MALICIOUS MISCHIEF (ARTS. 327-331) Malicious Mischief is the willful damaging of anothers property for the sake of causing damage due to hate, revenge or other evil motive. ARTICLE 327 MALICIOUS MISCHIEF Elements: 1. That the offender deliberately caused damage to the property of another; 2. That such act does not constitute arson or other crimes involving destruction; 3. That the act of damaging anothers property be committed merely for the sake of damaging it.
179
180
Requirements of pardon: 1. Must come before the institution of the criminal prosecution; 2. Both offenders must be pardoned. There is an implied pardon: Act of intercourse with offending spouse subsequent to the adulterous conduct When there is consent, whether implied or expressed, of the husband, he cannot institute a criminal complaint for adultery. Under the law there can be no accomplice in the crime of adultery, although in fact there can be such an accomplice.
Recrimination husbands illicit relationship does not absolve but may mitigate wifes liability for adultery. ARTICLE 334 CONCUBINAGE Who are liable? 1. The married man 2. The woman who knew that the man was married. Elements: 1. That the man must be married; 2. That he committed any of the following acts: a. Keeping a mistress in the conjugal dwelling (mistress must live therein as such); b. Having sexual intercourse under scandalous circumstances with a woman who is not his wife (proof of actual sexual relations not required as long as it can be inferred); c. Cohabiting with her in any other place (as husband and wife); 3. As regards to the woman, she must know him to be married. Conjugal dwelling means the home of the husband and wife even if the wife happens to be temporarily absent on any account. Scandalous circumstances are not necessary to make a husband guilty of concubinage by keeping a mistress in the conjugal dwelling.
The acts performed by There is no intent to have offender clearly indicate sexual intercourse. that his purpose was to lie with the offended woman, it is attempted.
181
The lascivious acts are The lascivious acts are but the preparatory acts the final objective sought to the commission of by the offender. rape. Manner of commission is the same. The performance of lascivious character is common to both.
4. That there is abuse of authority, confidence or relationship on the part of the offender. Virgin refers to a woman of chaste character or a woman of good reputation. Virginity in this sense does NOT mean physical virginity. Virginity is presumed if the woman is unmarried and of good reputation. The following are the OFFENDERS: 1. Those who abused their authority: a. Persons in public authority b. Guardian c. Teacher d. Person who, in any capacity, is entrusted with the education or custody of the woman seduced 2. Those who abused confidence reposed in them: e. Priest f. House servant g. Domestic 3. Those who abused their relationship: h. Brother who seduced his sister i. Ascendant who seduced his descendant j. A domestic is different from a house servant, it means any person living under the same roof as a member of the same household, and includes boarders or house-guests but not transients or visitors. k. The fact that the girl gave her consent to the sexual intercourse is no defense. In the same way, lack of consent of the girl is not an element of the offense. l. The seduction of a sister or descendant is known as incest. Virginity of the sister or descendant is not required and she may be over 18 years of age. Relationship must be by consanguinity. The relationship need not be legitimate. ARTICLE 338 SIMPLE SEDUCTION Elements: 1. That the offended party is over 12 and under 18 years of age; 2. That she must be of good reputation, single or widow; 3. That the offender has sexual intercourse with her; 4. That it is committed by means of deceit. Deceit generally takes the form of
What constitutes lewd or lascivious conduct must be determined from the circumstances of each case. The presence or absence of the lewd designs is inferred from the nature of the acts themselves and the environmental circumstances. There can be no attempted and frustrated acts of lasciviousness. In People v. Jalosjos (GR No. 132876279, Nov. 16, 2001), the SC adopted the definition of lascivious conduct in Sec. 32, Art. XIII of the Implementing Rules and Regulations of RA 7610, which reads as follows: The intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh or buttocks; or the introduction of any object into the genitalia, anus or mouth of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person. CHAPTER THREE: SEDUCTION, CORRUPTION OF MINORS, AND WHITE SLAVE TRADE (ARTS. 337-341) ARTICLE 337 QUALIFIED SEDUCTION
Two classes: 1. Seduction of a virgin over 12 years and under 18 years of age by persons who abuse their authority or the confidence reposed. 2. Seduction of a sister by her brother or descendant by her ascendant, regardless of her age and reputation. Elements: 1. That the offended party is a virgin; 2. She must be over 12 and under 18 years of age; 3. That the offender had sexual intercourse with her;
182
in a work, environment.
education
or
training-related
Prohibited acts: Demanding, requesting, or otherwise requiring any sexual favor from the other, regardless of whether the demand, request, or requirement is accepted by the object of the act. ARTICLE 340 CORRUPTION OF MINORS (AS AMENDED BY BP 92) Prohibited acts to promote or facilitate the prostitution or corruption of persons under age to satisfy the lust of another. Under age means under 18 years of age. The victim must be of good reputation and not a prostitute or corrupted person. It is not necessary that the unchaste acts shall have been done since what is being punished is mere act of promotion or facilitation. Special Protection of Children Against Child Abuse Act (R.A. 7610) Child prostitution and attempt to commit child prostitution are punished under this Act. Sec. 5. Child Prostitution and other Sexual Abuse Children whether male or female, who for money, profit or other consideration or due to the coercion or influence of any adult syndicate or group, indulge in sexual intercourse or lascivious conduct are deemed to be children exploited in prostitution and other sexual abuse. Persons liable: 1. Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to the following: a. Acting as a procurer of a child prostitute; b. Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; c. Taking advantage of influence or relationship to procure a child as a prostitute; d. Threatening or using violence towards a child to engage him/her as a prostitute; e. Giving monetary consideration, goods or other pecuniary benefit to a child with the intent to engage such child in prostitution. 2. Those who commit the act of sexual intercourse or lascivious conduct with a
There is an oversight in the law where the victim is exactly 12 years of age. If the victim is below 12, the crime will be rape, or unconsented acts of lasciviousness or forcible abduction. Hence Art. 339 stating over 12 years of age should be construed as twelve years of age and over, thus construing the doubt in favor of the accused. ANTI-SEXUAL HARRASMENT ACT (R.A. No. 7877)
Persons penalized: Employer, employee, manager, supervisor, teacher, professor, instructor, coach, trainor, or any other person having authority, influence, or moral ascendancy over another
183
profit motive is not required. (Regalado) White slave trade may be with or without the consent of the woman, while slavery for the purpose of assigning the woman to immoral traffic (Art. 272) is committed against her will.
CHAPTER FOUR: ABDUCTION ARTS. 342343 Abduction is meant the taking away of a woman from her house or the place where she may be for the purpose of carrying her to another place with intent to marry or corrupt her. Two Kinds of Abduction: 1. Forcible abduction (Art. 342) 2. Consented abduction (Art. 343) ARTICLE 342 FORCIBLE ABDUCTION Elements: 1. That the person abducted is a woman; regardless of her age, civil status, or reputation; 2. That the abduction is against her will; 3. That the abduction is with lewd design.
Forcible Abduction With Lewd design There is no deprivation of liberty. Grave Coercion/ Kidnapping No lewd design There is deprivation of liberty.
Conviction of acts of lasciviousness is not a bar to conviction of forcible abduction Attempted Rape is absorbed by Forcible Abduction as the former constitutes the element of lewd design. If girl is under 12 crime is ALWAYS FORCIBLE ABDUCTION even if she voluntarily goes with her abductor. Sexual intercourse is not necessary in forcible abduction. The intent to seduce the girl is sufficient. ARTICLE 343 CONSENTED ABDUCTION
The first two modes require the element of profit and habituality. In the third mode, the
Elements: 1. That the offended party must be a virgin; 2. That she must be over 12 and under 18 years if age; 3. That the taking away of the offended party must be with her consent, after solicitation or cajolery from the offender; 4. That the taking away of the offended party
184
Pardon by the offended party who is a minor must have the concurrence of parents except when the offended party has no parents. Marriage of the offender with the offended party in seduction, abduction and acts of lasciviousness extinguishes criminal action or remits the penalty already imposed, and it benefits the co-principals, accomplices and accessories. In rape, it extends only as to the principal.
ARTICLE 345 CIVIL LIABILITY OF PERSONS GUILTY OF CRIMES AGAINST CHASTITY Persons who are guilty of rape, seduction or abduction shall also be sentenced: 1. To indemnify the offended woman; 2. To acknowledge the offspring, EXCEPT: a. In adultery and concubinage since only a natural child may be acknowledged b. Where either the offended party or the accused is married c. When paternity cannot be determined as in multiple rape d. Other instances where the law should prevent the offender from doing so; In every case to support the offspring. Note: Under the Family Code, children are classified as only either legitimate or illegitimate, with no further positive act required from the parent, as the law itself provides the childs status. Natural children under the Civil Code fall within the classification of illegitimate children under the Family Code. Art. 176 of the Family Code confers parental authority over illegitimate children on the mother and provides their entitlement to support in conformity with the Family Code.
185
The unlawful sale of the child by its father was held to be not punishable under this Code (US vs. Capillo et. al., 30 Phil 349). Now, it is punishable under PD 603, with its Art. 59(3) which imposes 2-6 months imprisonment and/or P500.00 fine. Furthermore, if the accused shall engage in trading and dealing with children, including the act of buying and selling of child, that crime of child trafficking is punished with reclusin temporal to reclusin perpetua under Sec 7, R.A. No. 7610. In the third way of committing this crime, three requisites must be present, namely: 1. The child must be legitimate; 2. The offender conceals or abandons such child; and 3. The offender has the intent to cause such child to lose its civil status. Note: Abandoning means to leave a child in a public place where other people may find the child. Art. 276 (Abandoning distinguished from Art. 347
Art. 276 Crime against security. The offender must be the one who has the custody of the child. The purpose of the offender is to avoid the obligation of rearing and caring for the child.
Minor)
Art. 347 Crime against the civil status of a person. The offender is any person. The purpose is to cause the child to lose its civil status.
ARTICLE 348 USURPATION OF CIVIL STATUS Usurping the civil status of another is committed by assuming the filiation, or the parental or conjugal rights of another with intent to enjoy the rights arising from the civil status of the latter. Crime is qualified if the purpose is to defraud offended parties and heirs. It is absolutely necessary in order to constitute this crime that the intent of the offender is to enjoy the rights arising from the civil status of the person impersonated. Otherwise, the case will
186
Since the purpose of this article is to avoid cases of doubtful paternity, the woman will not be liable thereunder if: (a) she has already delivered; and (b) she has conclusive proof that she was not pregnant by her first spouse since he was permanently sterile (People vs. Masinsin, CA, 49 OG 3908).
187
The solemnizing officer of any of the foregoing illegal marriages who performs or authorizes the same, despite his knowledge of the illegality, shall be punishable under Sec. 39 of Act No. 3613. TITLE THIRTEEN: CRIMES AGAINST HONOR CHAPTER ONE: LIBEL (ARTS. 353-362) SECTION ONE DEFINITIONS, FORMS, AND PUNISHMENT OF THIS CRIME ARTICLE 353 LIBEL Elements: 1. That, there must be an imputation of a crime, or a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance; 2. That the imputation must be made publicly; 3. That it must be malicious; 4. That the imputation must be directed at a natural person or a juridical person, or one who is dead; 5. That the imputation must tend to cause the dishonor, discredit, or contempt of the person defamed. Test of defamatory imputation: A charge is sufficient if the words are calculated to induce the hearers to suppose and understand that the person against whom they were uttered was guilty of certain offenses, or are sufficient to impeach the honesty, virtue or reputation, or to hold him up to public ridicule.
188
c.
Any recording, communication or spoken word obtained in violation of the provisions of this Act INADMISSIBLE IN EVIDENCE in any judicial, quasi-judicial or administrative hearing or investigation. ARTICLE 355 LIBEL BY MEANS OF WRITINGS OR SIMILAR MEANS Committed by means of: 1. Writing
Requisites of the second kind of privileged communication: 1. That it is fair and true report of a judicial, legislative, or other official proceedings
189
If defamatory remarks are made in the heat of passion which culminated in a threat, the derogatory statements will not constitute an independent crime of libel but a part of the more serious crime of threats. Administrative Circular No. 08-2008, issued on January 25, 2008, laid down a rule of preference for the imposition of a fine only rather than imprisonment in libel cases. The Administrative Circular provides that: 1. It does not remove imprisonment as an alternative penalty for the crime of libel under Article 355 of the Revised Penal Code; 2. The Judges may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice; 3. Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment. ARTICLE 356 THREATENING TO PUBLISH AND OFFER TO PREVENT SUCH PUBLICATION FOR A COMPENSATION Acts punished: 1. Threatening another to publish a libel concerning him, or his parents, spouse, child or other members of the family. 2. Offering to prevent the publication of such libel for compensation or money consideration This is also known as blackmail. Art. 283 regarding light threats is another form of blackmail. Blackmail may be defined as any lawful
Under Republic Act No. 1477: A newspaper reporter cannot be compelled to reveal the source of the news report he made, unless the court or a House or committee of Congress finds that such revelation is demanded by the security of the state. ARTICLE 358 SLANDER (oral defamation) Kinds: 1. Simple slander 2. Grave slander, when it is of a serious and insulting nature Factors that determine the gravity of the oral defamation: 1. Expressions used; 2. Personal relations of the accused and the offended party; 3. Circumstances surrounding the case; 4. Social standing and position of the offended party.
190
Notes: Gossiping is considered as oral defamation if a defamatory fact is imputed or intriguing against honor if there is no imputation. Self-defense in slander may only be invoked if his reply is made in good faith, without malice, is not necessarily defamatory to his assailant and is necessary for his explanation or defense. ARTICLE 359 SLANDER BY DEED Slander by Deed is a crime committed by performing any act which casts dishonor, discredit or contempt upon another person. Elements: 1. That the offender performs any act not included in any other crime against honor; 2. That such act is performed in the presence of other persons; 3. That such act cast dishonor, discredit, or contempt upon the offended party. If there is no intent to dishonor the offended party, the crime is maltreatment by deed under Article 266. Slander by deed is of two kinds: 1. Simple slander by deed, 2. Grave slander by deed, that is, which is of a serious nature. Common Element of Slander by deed and Unjust Vexation: Irritation or Annoyance; without any other concurring factor, it is only Unjust Vexation; if the purpose is to shame or humiliate, Slander by deed. SECTION TWO: GENERAL PROVISIONS ARTICLE 360 PERSONS RESPONSIBLE FOR LIBEL 1. The person who publishes, exhibits or causes the publication or exhibition of any defamation in writing or similar means. 2. The author or editor of a book or pamphlet. 3. The editor or business manager of a daily newspaper magazine or serial publication. 4. The owner of the printing plant which publishes a libelous article with his consent and all other persons who in any way participate in or have connection with its publication.
Defense in Defamation: 1. It appears that the matters charged as libelous is true; 2. It was published with good motives; AND 3. For a justifiable end.
Incriminating Innocent Persons Offender does not avail himself of written or spoken word in besmirching the victims reputation.
Defamation Imputation is public and malicious calculated to cause dishonor, discredit, or contempt upon the offended party.
ARTICLE 362 LIBELOUS REMARKS Libelous remarks or comments connected with the matter privileged under the provisions of Art. 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability. CHAPTER TWO: INCRIMINATORY MACHINATIONS (ART. 363-364) ARTICLE 363 INCRIMINATING INNOCENT PERSONS Elements: 1. That the offender performs an act; 2. That by such act he directly incriminates or imputes to an innocent person the commission of a crime;
191
less grave felony or light felony; 2. By committing through simple imprudence or negligence an act which would otherwise constitute a grave or less serious felony; 3. By causing damage to the property of another through reckless imprudence or simple imprudence or negligence; 4. By causing through simple imprudence or negligence some wrong which, if done maliciously, would have constituted a light felony
Imprudence Negligence
They are not crimes. They merely determine a lower degree of criminal liability. They are means of committing a crime. Deficiency of action Deficiency of perception Failure in advertence To avoid wrongful acts: paying proper attention and using due diligence in foreseeing them Failure in precaution To avoid wrongful acts: one must take the necessary precaution once they are foreseen
ARTICLE 364 INTRIGUING AGAINST HONOR Committed by any person who shall make any intrigue which has for its principal purpose to blemish the honor or reputation of another. This refers to such intrigues against a persons honor or reputation which are not otherwise punished under other articles of the code. It differs from defamation in that it consists of tricky or secret plots and may be committed without using written or spoken words which are defamatory
Intriguing Against Honor Source of derogatory statements cannot be determined Consists of some tricky and secret plot Passes such utterances without subscribing to the truth of the remarks Defamation Source is known
Reckless Imprudence consists in voluntarily but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. Elements: 1. That the offender does or fails to do an act. 2. That the doing of or the failure to do that act is voluntary. 3. That it be without malice. 4. That material damage results. 5. That there is inexcusable lack of precaution on the part of the person performing or failing to perform such act taking into consideration a. Employment or occupation. b. Degree of intelligence, physical condition. and c. Other circumstances regarding persons, time and place. Test of negligence: Would a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes a duty on the actor to refrain from that course or to take precaution against its
Committed in a public and malicious manner The remarks made are claimed to be true
TITLE FOURTEEN: QUASI-OFFENSES SOLE CHAPTER: CRIMINAL NEGLIGENCE (ART. 365) ARTICLE 365 IMPRUDENCE AND NEGLIGENCE Four ways of committing quasi- offenses under Art 365: 1. By committing through reckless imprudence any act which, had it been intentional, would constitute a grave or
192
Doctrine of Last Clear Chance: The contributory negligence of the party injured will not defeat the action if it be shown that the accused might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. Emergency Rule: An automobile driver who, by the negligence of another and not by his own negligence, is
193