i. Coverage...52 ii. Punishable acts ..52 iii. Exceptions .53 b. Anti-Plunder Act (R.A. 7080, as am ended) ..55 i. Definition of Term s..55 ii. Ill-gotten wealth55 iii. Plunder...55 iv. Series/Com bination..55 v. Pattern c. Hum an Security Act of 2007 (R.A. 9372) 56 i. Failure to deliver suspect to proper judicial authority.56 ii. Infidelity in the custody of detained persons....56 iii. False prosecution..56 8. Crim es Against Persons (Art. 246-266) ...63 a. Anti-Violence against W om en and their Children Act of 2004 (R.A. 9262) ..72 i. Punishable acts...73 b. Anti-Child Pornography Act of 2009 (R.A. 9775) ...74 i. Definition of term s..74 ii. Unlawful or punishable acts..75 c. Anti-Hazing Law (R.A. 8049) .75 i. Hazing..75 (a) Definition...75 (b) Allowed initiation rites..75 ii. W ho are liable.75 iii. Punishable acts...75 d. Special Protection of Children Against Child Abuse, Exploitation and Discrim ination Act (R.A. 7610, as am ended) ....76 i. Coverage..76 ii. Child prostitution, punishable acts..76 iii. Child trafficking, punishable acts...76 e. Juvenile Justice and W elfare Act of 2006 (R.A. 9344); also refer to the Child Youth and W elfare Code (P.D. 603, as am ended) .77 i. Punishable acts..79 f. Hum an Security Act of 2007 (R.A. 9372) i. Punishable acts of terrorism ii. W ho are liable 9. Crim es Against Personal Liberty and Security (Art. 267-292) ..80 a. Anti-W ire Tapping Act (R.A. 4200) .88 i. Punishable acts....88 ii. Exceptions.88 b. Hum an Security Act of 2007 (R.A. 9372) ..88 i. Surveillance of suspects and interception and recording of com m unication88 ii. Restrictionon travel..88 iii. Exam ination of bank deposits and docum ents.89 (a) Judicial Authorization...89 (b) Application..89 iv. Unauthorized revelation of classifed m aterials..89 CRIMINAL LAW REVIEWER Page 3 of 129
c. Anti-Trafficking in Persons Act of 2003 (R.A. 9208) ..89 i. Punishable acts..89 10. Crim es Against Property (Art. 293-332). .90 a. Anti-Fencing Law (P.D. 1612) and its im plem enting rules and regulations..98 i. Fencing..98 (a) Definition..98 (b) Presum ption of fencing.98 ii. Exception98 (a) W ith clearance or perm it to sell...98 b. Bouncing Checks Law (B.P. Blg. 22) plus Adm inistrative Circular No. 12-2000 Re: Penalty for Violation of B.P. 22 and Adm in istrative Circular No. 13-2001 Re: Clarification of Adm in Circular No. 12-2000..102 i. Punishable acts.102 ii. Evidence of knowledge of insufficient funds...102 iii. Preference of im position of fine...102 c. Anti-Arson Law (P.D. 1613) . ..107 i. Punishable acts...107 d. Hum an Security Act of 2007 (R.A. 9372) i. Punishable acts of Terrorism e. Anti-Carnapping Act of 1972 (R.A. 6539) 109 i. Definition of Term s109 ii. Registration109 iii. W ho are liable..109 (a) Duty of collector of custom s..110 (b) Duty of im porters, distributors and sellers110 (c) Clearance and perm it.110 iv. Punishable acts...110 11. Crim es Against Chastity (Art. 333-334, 336-346) ..111 1. Anti-Photo and Video Voyeurism Act of 2009 (R.A. 9995) ..117 a. Punishable acts..117 2. Special Protection of Childern Against Child Abuse, Exploitation and Discrim ination Act (R.A. 7610, as am ended) ..117 a. Child prostitution and other acts of abuse.117 i. Punishable acts.117 ii. Com pare prosecution for Acts of Lasciviousness under Art. 366, RPC and R.A. 7610, as am ended. .118 b. Obscene publications and indecent shows.118 i. Punishable acts.118 3. Anti-Trafficking in Persons Act of 2003 (R.A. 9208) a. Punishable acts 4. Anti-Violence Against W om en and Their Children Act of 2004 (R.A. 9262) .119 a. Punishable acts..119 5. Anti-Sexual Harassm ent Act of 1995 (R.A. 7877) ...119 a. Punishable acts119 12. Crim es Against Civil Status (Art. 347-352) ..120 13. Crim es Against Honor (Art. 353-364) ..122 CRIMINAL LAW REVIEWER Page 4 of 129
a. Adm inistrative Circular 09-2008 Re: Guidelines in the Observance of a Rule of Preference in the Im position of Penalties in Libel Cases.127 i. Preference of im position of fine.127 14. Crim inal Negligence (Art. 365) ..128
=======================================
Chapter
1:
Crimes
Against
National
Security
=======================================
SECTION
1.
TREASON
AND
ESPIONAGE
ART.
114.
TREASON
ELEMENTS:
1. Offender
is
a
Filipino
Citizen
or
an
alien
residing
in
the
Philippines;
2. War
in
which
the
Philippines
is
involved;
3. Offender
either
a. Levies
war
against
the
Government,
or
b. Adheres
to
the
enemies,
giving
them
aid
or
comfort.
TREASON
breach
of
allegiance
to
the
government
by
a
person
who
owes
allegiance
to
it
ALLEGIANCE
obligation
of
fidelity
and
obedience
which
the
individuals
owe
to
the
government
under
which
they
live
or
to
their
sovereign,
in
return
for
protection
they
receive
Treason
committed
in
a
foreign
country
may
be
prosecuted
in
the
Philippines.
(Art.
2,
RPC)
PERSONS
LIABLE:
1. FILIPINO
permanent
allegiance;
can
commit
treason
anywhere
ALIEN
RESIDENT
temporary
allegiance;
commits
treason
only
when
residing
in
the
Philippines
Treason
is
a
war
crime
(hence
cannot
be
committed
in
time
of
peace),
punished
by
the
state
as
a
measure
of
self- defense
and
self-preservation.1
ACTS
PUNISHED
(MODES
OF
COMMITTING
TREASON):
1. Levying
war
requires:
a. Actual
assembling
of
men
b. Purpose
of
executing
a
treasonable
design
by
force
2. Adherence
to
enemies
requires
concurrence
of:
a. Actual
adherence
&
b. Giving
aid
or
comfort
LEVY
WAR
-
must
be
with
intent
to
overthrow
the
government
as
such,
not
merely
to
resist
a
particular
statute
or
to
repel
a
particular
officer.
It
matters
not
how
vain
and
futile
the
attempt
was
and
how
impossible
its
accomplishment.
In
treason
by
levying
war,
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.2
ADHERENCE
TO
ENEMIES
intent
to
betray;
when
a
citizen
intellectually
or
emotionally
favors
the
enemy
and
harbors
sympathies
or
convictions
disloyal
to
his
countrys
policy
or
interest
AID/COMFORT
act
which
strengthens
or
tends
to
strengthen
the
enemy
in
the
conduct
of
war
against
the
traitors
country
and
an
act
which
weakens
or
tends
to
weaken
the
power
of
the
traitors
country
to
resist
or
to
attack
the
enemy
Mere
acceptance
of
public
office
and
discharge
of
official
duties
under
the
enemy
do
not
constitute
per
se
the
felony
of
treason.
But
when
the
position
is
policy-determining,
the
acceptance
of
public
office
and
the
discharge
of
official
duties
constitute
treason.
POLICY
DETERMINING
defines
the
norm
of
conduct
of
all
offices
and
officials
under
the
department
he
headed
had
to
adopt
and
enforce,
implemented
the
policy,
and
helped
in
the
propagation
of
the
creed
of
the
invader
1
Concurring Opinion of Justice Perfecto, Laurel v. Misa, 77 Phil. 865 2 Justice Johnson dissenting; US v. Lagnason, 3 Phil. 495
WAYS
TO
PROVE:
1.
Treason
(Overt
act
of
giving
aid
or
comfort)
a.
Testimony
-
at
least
2
witnesses
to
the
same
overt
act
b.
Judicial
confession
of
the
accused
in
open
court
2.
Adherence
a. One
witness
b. Nature
of
act
itself
c. Circumstances
surrounding
the
act
TWO
WITNESS
RULE:
Testimonies
need
not
be
identical,
but
must
relate
to
the
same
overt
act.3
It
is
sufficient
that
the
witnesses
are
uniform
in
their
testimony
on
the
overt
act;
not
necessarily
that
there
be
a
corroboration
between
them
on
the
point
they
testified.4
The
two-witness
rule
is
severely
restrictive,
hence,
each
of
the
witnesses
must
testify
to
the
whole
overt
act;
or
if
it
is
separable,
there
must
be
two
witnesses
to
each
part
of
the
overt
act.5
REASON
FOR
TWO-WITNESS
RULE:
The
special
nature
of
the
crime
requires
that
the
accused
be
afforded
a
special
protection
not
required
in
other
cases
so
as
to
avoid
a
miscarriage
of
justice.
CIRCUMSTANCES
INHERENT
IN
TREASON:
1. Evident
premeditation
2. Superior
Strength
3. Treachery
AGGRAVATING
CIRCUMSTANCES
IN
TREASON:
1.
Cruelty
2.
Ignominy
3.
Gravity
or
seriousness
of
the
acts
of
treason
DEFENSES
NOT
A
DEFENSE
Duress
or
uncontrollable
Suspended
allegiance
fear
Obedience
to
de
facto
Joining
the
enemy
army
thus
government
becoming
a
citizen
of
the
enemy
NOTE:
There
is
no
treason
through
negligence.
It
requires
intent.6
Treason
is
a
continuous
offense.7
Proof
of
one
count
is
sufficient
of
conviction.
8
3
Hauft v. United States, 67 S. Ct. 874 4 People v. Concepcion 84 Phil. 789 5 People v. Escleto, 84 Phil. 121 6 Cramer v. US 65 Sup. Ct. 918, April 23, 1945 7 People v. Victoria, 78 Phil. 129 8 People v. San Juan, 89 Phil. 359
ART.
115.
CONSPIRACY
AND
PROPOSAL
TO
COMMIT
TREASON
ELEMENTS
CONSPIRACY:
1. In
times
of
war;
2. Two
or
more
persons
come
to
an
agreement
to
-
a. Levy
war
against
the
government,
or
b. Adhere
to
the
enemies
and
to
give
them
aid
or
comfort
3. They
decide
to
commit
it.
ELEMENTS
PROPOSAL:
1. In
times
of
war;
2. A
person
who
has
decided
to
levy
war
against
the
government,
or
to
adhere
to
the
enemies
and
to
give
them
aid
or
comfort
3. Proposes
its
execution
to
some
other
person/s.
NOTE:
As
a
general
rule,
conspiracy
and
proposal
to
commit
a
felony
is
not
punishable
(Art.
8).
Art.
115
is
an
exception
as
it
specifically
penalizes
conspiracy
and
proposal
to
commit
treason.
Mere
proposal
even
without
acceptance
is
punishable.
If
the
other
accepts,
it
is
already
conspiracy.
If
actual
acts
of
treason
are
committed
after
the
conspiracy
or
proposal,
the
crime
committed
will
be
treason,
and
the
conspiracy
or
proposal
is
considered
as
a
means
in
the
commission
thereof.
Two-witness
rule
not
applicable
since
this
is
a
crime
separate
and
distinct
from
treason.
ART.
116.
MISPRISION
OF
TREASON
ELEMENTS:
1. Filipino
citizen
2. Owes
allegiance
to
the
governmengovernment;
t
NOT
a
foreigner
3. Has
knowledge
of
any
conspiracy
(to
commit
treason)
against
the
government
4. He
conceals
or
does
not
disclose
the
same
to
the
authorities
of
place
in
which
/c
he
resides.
NOTE:
Offender
is
punished
as
an
accessory
to
the
crime
of
treason.
But
such
offender
is
actually
a
principal
to
this
crime.
This
will
not
apply
if
crime
of
treason
is
already
committed
and
it
is
not
reported.
9
People
v.
Prieto
80
Phil.
138
It is a crime of omission. RPC mentions 4 individuals to whom the conspiracy must be reported to (i.e. governor, provincial fiscal, mayor or city fiscal), but what if you report to some other high-ranking government official? Ex: PNP Director? Judge Pimentel says any government. Official of the DILG is OK. Art. 116 is an exception to the rule that mere silence does not make a person criminally liable. ART. 117. ESPIONAGE ESPIONAGE Offense of 1. gathering, transmitting, or losing information 2. respecting the national defense 3. with intent or reason to believe that the information is to be used to 4. the injury of the Republic of the Philippines or the advantage of a foreign nation. ACTS PUNISHED (MODES OF COMMITTING ESPIONAGE): 1. By entering, without authority, a warship, fort, or military or naval establishment or reservation to obtain any information, plans, photographs or other data of confidential nature relative to the defense of the Philippines. ELEMENTS: a. That the offender (Filipino OR Alien Resident) enters a warship, fort, naval or military establishment or reservation; b. That he has no authority therefore; and c. That his purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines. 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 the first mode of committing espionage, by reason of the public office he holds; and c. That he discloses their contents to a representative of a foreign nation. PERSONS LIABLE: 1. First mode; ANY person whether: a. Filipino citizen OR resident alien (foreigner) b. Private individual or a public officer
2.
Second mode: a. A public officer NOTE: 1. Being a public officer is a requirement in the second mode, while it is only aggravating in the first. 2. Wiretapping is not espionage if the purpose is not connected with defense. 3. In the first mode of committing the felony, it is not necessary that the offender succeeds in obtaining the information. TREASON ESPIONAGE In both not conditioned on citizenship of offender Committed in war time War and Peace time Limited in two ways: Committed in many ways levying war, and adhering to the enemy giving him aid or comfort
C.A. NO. 616 AN ACT TO PUNISH ESPIONAGE AND OTHER OFFENSES AGAINST NATIONAL SECURITY ACTS PUNISHABLE: 1. Unlawfully obtaining or permitting to be obtained information affecting national defense; 2. Unlawful disclosing of information affecting national defense; 3. Disloyal acts or words in time of peace (i.e. causing in any manner insubordination, disloyalty, mutiny or refusal of duty of any member of the military, naval, or air forces of the Philippines); 4. Disloyal acts in time of war; 5. Conspiracy to commit the foregoing acts; 6. Harboring or concealing violators of the law (i.e. the offender harbors a person whom he knows as someone who committed or is about to commit a violation of this Act); and 7. Photographing from aircraft of vital military information. SECTION 2. PROVOKING WAR AND DISLOYALTY IN CASE OF WAR ART. 118. INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS ELEMENTS: 1. Offender performs unlawful or unauthorized acts;
NOTE:
If
the
offender
intended
to
aid
the
enemy
by
giving
such
notice
or
information,
the
crime
amounts
to
TREASON;
hence
penalty
same
as
that
for
treason.
It
is
immaterial
if
correspondence
contains
innocent
matters
when
it
is
prohibited
by
the
government.
Prohibition
by
the
government
is
not
essential
when
the
correspondence
is
carried
on
in
ciphers
or
conventional
signs
or
when
it
contains
notice
or
information,
which
might
be
useful
to
the
enemy.
Atty.
Padilla:
offender
has
to
be
a
person
holding
an
important
position
ART.
121.
FLIGHT
TO
ENEMYS
COUNTRY
ELEMENTS:
1. A
war
in
which
the
Philippines
is
involved;
2. Offender
owes
allegiance
to
the
government;
3. Offender
attempts
to
flee
or
go
to
enemy
country;
and
4. Going
to
enemy
country
is
prohibited
by
competent
authority.
PERSONS
LIABLE:
1. Filipino
citizen
2. Alien
residing
in
the
Philippines
NOTE:
Mere
attempt
to
flee
or
go
to
enemy
country
consummates
the
crime.
There
must
be
a
prohibition.
If
there
is
none,
even
if
one
went
to
enemy
country,
there
is
no
crime.
2.
Such
acts
provoke
or
give
occasion
for
a
war
involving
or
liable
to
involve
the
Philippines
or
expose
Filipino
citizens
to
reprisals
on
their
persons
or
property;
NOTE:
Crime
is
committed
in
time
of
peace.
Intent
of
the
offender
is
immaterial.
In
inciting
to
war,
the
offender
is
any
person.
If
the
offender
is
a
public
officer,
the
penalty
is
higher.
Reprisals
are
not
limited
to
military
action;
it
could
be
economic
reprisals,
or
denial
of
entry
into
their
country.
ART.
119.
VIOLATION
OF
NEUTRALITY
ELEMENTS:
1. War
in
which
the
Philippines
is
not
involved;
2. For
the
purpose
of
enforcing
neutrality,
a
regulation
is
issued
by
competent
authority;
and
3. That
the
offender
violates
such
regulation.
NEUTRAL
A
nation
or
power
which
takes
no
part
in
a
contest
of
arms
going
on
between
others
NOTE:
1. This
crime
is
committed
only
in
times
of
war.
2. It
is
the
neutrality
of
the
Philippines
that
was
violated.
3. Atty.
Padilla:
declaration
of
a
competent
authority
i.e.
the
President
is
sufficient
ART.
120.
CORRESPONDENCE
WITH
HOSTILE
COUNTRY
ELEMENTS:
1. A
war
in
which
the
Philippines
is
involved;
2. That
the
offender
makes
correspondence
with
an
enemy
country
or
territory
occupied
by
enemy
troops;
3. That
the
correspondence
is
either
a. prohibited
by
the
government,
or
b. carried
on
in
ciphers
or
conventional
signs,
or
c. containing
notice
or
information
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
CIPHER
secret
writing
system;
a
code
10
QUALIFYING
CIRCUMSTANCES:
The
following
must
concur
together
1. That
the
notice
or
information
might
be
useful
to
the
enemy
and
2. That
the
offender
intended
to
aid
the
enemy
10
Websters
Dictionary
SECTION 3. PIRACY AND MUTINY ON HIGH SEAS OR IN PHILIPPINE WATERS ART. 122. PIRACY IN GENERAL AND MUTINY ON THE HIGH SEAS OR IN PHILIPPINE WATERS 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. ELEMENTS: 1. A vessel is on the high seas or Philippine waters; 2. Offenders not members of its complement nor passengers of the vessel; and 3. That the offenders a. attack or seize the vessel, or b. seize whole or part of vessels cargo, equipment or personal belongings of its complement or passengers. NOTE: Under PD 532, piracy may be committed even by a passenger or member of the complement of the vessel.
ACTS PUNISHED (MODES OF COMMITTING PIRACY): 1. By attacking or seizing a vessel on the high seas or in the Philippine waters (PD 532); 2. By seizing in the vessel the whole or part of its cargo, its equipment or personal belongings of its complement or passengers while on the high seas or in Philippine waters. 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 MUTINY Persons who attack a Offenders are members of vessel or seize its cargo the crew or passengers. are strangers to said vessels Intent to gain is an Offenders may only intend element to ignore the ships officers or they may be prompted by a desire to commit plunder Attack from outside Attack from the inside PIRACY ROBBERY ON HIGH SEAS The offender is an outsider The offender is a member of the complement or a passenger of the vessel In both, there is intent to gain and the manner of committing the crime is the same. NOTE: VESSEL any vessel or watercraft used for transport of passengers and cargo from one place to another through Philippine waters. PHILIPPINE WATERS all bodies of water and all waters belonging to the Philippines by historic or legal title, including territorial sea, the sea-bed, the insular shelves, and other submarine areas over which the Philippines has sovereignty and jurisdiction. (Sec. 2, P.D. No. 532) HIGH SEAS - any waters on the sea coast which are without the boundaries of the low water mark although such waters may be in the jurisdictional limits of a foreign government; parts of the sea that are not included in the exclusive economic zone, in the territorial seas, or in the internal waters of a state, or in the archipelagic waters of an archipelagic state (United Nations Convention on the Law of the Sea) PIRACY IN HIGH SEAS jurisdiction of any court where offenders are found or arrested
PIRACY IN INTERNAL WATERS jurisdiction of Philippine courts For purposes of the Anti-Fencing Law, piracy is part of robbery and theft. Under Human Security Act of 2007 (R.A. 9372) a person who commits an act punishable as piracy and mutiny under Art. 122 thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism, and shall suffer the penalty of 40 years of imprisonment, without the benefit of parole.
ART.
ART.
123.
QUALIFIED
PIRACY
QUALIFYING
CIRCUMSTANCES:
1. Seizure
of
the
vessel
by
boarding
or
firing
upon
the
same;
2. Abandonment
by
pirates
of
victims
without
means
of
saving
themselves;
or
3. Crime
was
accompanied
by
murder,
homicide,
physical
injuries,
or
rape.
QUALIFIED
MUTINY
When
the
second
or
third
circumstance
accompanies
the
crime
of
mutiny
mentioned
in
Art.
122,
mutiny
is
then
qualified.
First
circumstance
may
not
qualify
the
crime
of
mutiny.
Qualified
Piracy
is
a
special
complex
crime
punishable
by
reclusion
perpetua
to
death,
regardless
of
the
number
of
victims.
NOTE:
The
word
crimes
in
the
opening
sentence
of
Art.
123
refers
to
both
piracy
and
mutiny.
However,
the
second
qualifying
circumstance
specifically
mentions
pirates
thereby
excluding
mutineers.
The
murder/rape/homicide/physical
injuries
must
have
been
committed
on
the
passengers
or
on
the
complement
of
the
vessel.
Parricide/infanticide
should
be
included
(Judge
Pimentel).
Piracy
may
be
punished
in
the
competent
tribunal
of
any
country
where
the
offender
may
be
found
or
into
which
he
may
be
carried.
Any
person
who
aids
or
protects
pirates
or
abets
the
commission
of
piracy
shall
be
considered
as
an
accomplice.
highways, and not acts of robbery committed against only a predetermined or particular victim.11 PIRACY (RPC) MUTINY (PD 532) Punishes piracy committed Punishes piracy committed either in Philippine waters in Philippine waters only or on the high seas Offenders: Strangers to the Offenders: Any person (may vessel (Non-passengers or be a passenger, crew or non-members of the crew) stranger)
11
Rustico Abay, Jr. v. People of the Philippines GR 165896 September 19, 2008
2.
Accessory (Sec. 6) a. Having knowledge of the commission of the crime of terrorism or conspiracy to commit terrorism, and without participating therein, either as principal or accomplice under Art. 17 and 18 of RPC b. Takes part subsequent to its commission in any of the following manner: i. by profiting himself or assisting the offender to profit by the effects of the crime ii. by concealing or destroying the body of the crime, or the effects, or instruments thereof, in order to prevent its discovery iii. by harboring, concealing, or assisting in the escape of the principal or conspirator of the crime
OTHER PUNISHED ACTS: 1. Unauthorized or Malicious Examination of a Bank or a Financial Institution (Sec. 36) 2. Bank Officials and Employees Defying a Court Authorization (Sec. 37) 3. False or Untruthful Statement or Misrepresentation of Material Fact in Joint Affidavits (Sec. 38) 4. Unjustified Refusal to Restore or Delay in Restoring Seized, Sequestered and Frozen Bank Deposits, Placements, Trust Accounts, Assets and Records (Sec. 42) 5. Loss, Misuse, Diversion or Dissipation of Seized, Sequestered and Frozen Bank Deposits, Placements, Trust Accounts, Assets and Records. (Sec. 43) 6. Infidelity in the Custody of Detained Persons (Sec. 44) 7. Unauthorized Revelation of Classified Materials (Sec. 46) 8. Furnishing False Evidence, Forged Document, or Spurious Evidence (Sec. 47) NOTE: When a person has been prosecuted under a provision of this Act, and after the accused has pleaded to the charge, the acquittal of the accused or the dismissal of the case shall be a bar to another prosecution under the RPC or any special penal laws (Sec. 49).
END
OF
TOPIC
1.
CRIMES
AGAINST
NATIONAL
SECURITY
=======================================
NOTE:
Chapter
1:
Arbitrary
Detention
or
Expulsion,
Violation
of
Dwelling,
Prohibition,
Interruption
and
Dissolution
of
Peaceful
Meetings
and
Crimes
Against
Religious
Worship
=================================================
If the offender is a private individual, the act of detaining another is Illegal Detention. (Art. 267 or Art. 268) However, private individuals who conspire with public officers can be liable as principals in the crime of Arbitrary Detention. Public officers who are not vested with authority to detain or order the detention of persons accused of a crime or exceed their authority may be liable for illegal detention because they are acting in their private capacity. Arbitrary detention can be committed through imprudence.12 The law does not fix any minimum period of detention. Offenders have been convicted of arbitrary detention even when the offended party was detained for an hour13 or even less than half an hour.14 Arrest without warrant is the usual cause of arbitrary detention EXCEPT warrantless arrest (under Sec 5, Rule 113, Revised Rules of Criminal Procedure) NOTE: Psychological Restraint is another form of detention15 ART. 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; and 3. That he fails to deliver such person to the proper judicial authority within: a. 12 hours, detained for crimes punishable by light penalties, or their equivalent; b. 18 hours, for crimes punishable by correctional penalties, or their equivalent; or c. 36 hours, for crimes/offenses punishable by capital punishment or afflictive penalties, or their equivalent. Circumstances considered in determining the liability of the officer-offender: 1. Means of communication 2. Hour of arrest and 3. Other circumstances such as the time of surrender and the material possibility for the fiscal to make the
12
People v. Misa, C.A., 36 O.G. 3496. [Here, a chief of police (convicted) rearrested a woman who had been released by verbal order of the justice of peace. The officer should have verified the order of release before proceeding to make the re- arrest.] 13 US v. Agravante, 10 Phil. 46 14 US v. Braganza 10 Phil. 79 15 Astorga v. People, GR No 154139
investigation
and
file
in
time
the
necessary
information.16
RIGHTS
OF
DETAINEE:
1. Shall
be
informed
of
the
cause
of
his
detention
2. Allowed,
upon
request,
to
communicate
and
confer
at
anytime
with
his
attorney
or
counsel
NOTE:
If
offender
is
a
private
person,
the
crime
is
Illegal
Detention.
Art.
125
contemplates
arrest
by
virtue
of
some
legal
ground
or
valid
warrantless
arrest.
If
arrest
is
made
by
virtue
of
an
arrest
warrant,
person
may
be
detained
indefinitely
until:
a. His
case
is
decided,
or
b. He
posts
bail
The
felony
means
delay
in
filing
the
necessary
information
or
charging
of
person
detained
in
court,
which
may
be
waived
if
a
preliminary
investigation
is
asked
for.
This
does
not
contemplate
actual
physical
delivery.
The
filing
of
the
information
in
court
beyond
the
specified
periods
does
not
cure
illegality
of
detention.
Hence,
the
detaining
officer
is
still
liable
under
Art.
125.
Neither
does
it
affect
the
legality
of
the
confinement
under
process
issued
by
the
court.
To
prevent
committing
this
felony,
officers
usually
ask
accused
to
execute
a
waiver
of
Art.
125,
which
should
be
under
oath
and
with
assistance
of
counsel.
Such
waiver
is
not
violative
of
the
constitutional
right
of
the
accused.
LENGTH
OF
WAIVER
a. Light
offense
5
days
b. Serious
and
less
serious
offenses
7
to
10
days
(Judge
Pimentel)
ARBITRARY
DELAY
IN
DELIVERY
OF
DETENTION
DETAINED
(ART.
125)
(ART.
124)
Detention
is
illegal
Detention
is
legal
in
the
beginning;
from
the
beginning.
illegality
starts
from
the
expiration
of
the
specified
periods
without
the
persons
detained
having
been
delivered
to
the
proper
judicial
authority.
ART.
126.
DELAYING
RELEASE
ELEMENTS:
1. That
the
offender
is
a
public
officer
or
employee;
16
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: a. the service of the notice of such order to the prisoner, or 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: Wardens and jailers are the persons most likely to violate this provision. ART. 127. EXPULSION ELEMENTS: 1. 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; and 3. The offender is not authorized by law. ACTS PUNISHED: 1. Expelling a person from the Philippines; or 2. Compelling a person to change his residence NOTE: Crime of expulsion absorbs grave coercion. If done by a private person, act will amount to Grave Coercion. Only the court by a final judgment can order a person to change his residence but the Chief Executive has the power to deport undesirable aliens. If a Filipino who, after voluntarily leaving the country, is illegally refused re-entry, he is considered a victim of being forced to change his address.
Sayo
v.
Chief
of
Police
of
Manila
80
Phil.
861
PERIOD OF DETENTION WITHOUT JUDICIAL WARRANT OF ARREST (Sec. 18): Within a period of 3 days counted from the moment a charged or suspected person (of the crime of terrorism or conspiracy to commit it) has been apprehended or arrested, detained, and taken into custody By any police or law enforcement personnel duly authorized in writing by the Anti-Terrorism Council, who did not incur any criminal liability for delay in the delivery of detained persons to proper judicial authorities, said personnel shall deliver said charged or suspected person to the proper judicial authorities. Provided, the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must
result from the surveillance (Sec. 7) and examination of bank deposits (Sec. 27) of this Act PERIOD OF DETENTION IN THE EVENT OF AN ACTUAL OR IMMINENT TERRORIST ATTACK (Sec. 19): Suspects may not be detained for more than 3 days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest. If the arrest is made during Saturdays, Sundays, holidays or after office hours, the arresting police or law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place of arrest. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within 5 days after the date of the detention of the persons concerned. Provided, that within 3 days after the detention the suspects, whose connection with the terror attack or threat is not established, shall be released immediately.
ELEMENTS TORTURE 1. Any act by which severe physical or mental pain or suffering 2. is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority or his agent 3. Intentionally inflicted on a person 4. For the purpose of: a. Obtaining information or a confession b. Punishment for an act he or a 3rd person has committed, or is suspected of having committed c. Intimidation or coercion d. Any reason based on discrimination of any kind ACTS OF TORTURE (Sec. 4) 1. PHYSICAL TORTURE form of treatment or punishment inflicted by a person in authority upon another in his custody that causes severe pain, exhaustion, disability or dysfunction in one or more parts of the body. Examples: a. Systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach; b. Food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or
2.
substances not normally eaten; Electric shock; Cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound(s); e. The submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until the brink of suffocation; f. Being tied or forced to assume fixed and stressful bodily position; g. Rape and sexual abuse, including the insertion of foreign objects into the sex organ or rectum, or electrical torture of the genitals; h. Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.; i. Dental torture or the forced extraction of the teeth; j. Pulling out of fingernails; k. Harmful exposure to the elements such as sunlight and extreme cold; l. The use of plastic bag and other materials placed over the head to the point of asphyxiation; m. The use of psychoactive drugs to change the perception, memory, alertness or will of a person, such as: i. The administration or drugs to induce confession and/or reduce mental competency; or ii. The use of drugs to induce extreme pain or certain symptoms of a disease; and n. Other analogous acts of physical torture; and MENTAL/PSYCHOLOGICAL TORTURE Acts committed by a person in authority or his agent which are calculated to affect or confuse the mind and/or undermine a person's dignity and morale c. d. Examples: a. Blindfolding; b. Threatening a person(s) or his/her relative(s) with bodily harm, execution or other wrongful acts; c. Confinement in solitary cells or secret detention places; d. Prolonged interrogation; e. Preparing a prisoner for a "show trial", public display or public humiliation of a detainee or prisoner; f. Causing unscheduled transfer of a person deprived of liberty from one place to another, creating the belief that he/she shall be summarily executed; g. Maltreating a member/s of a person's family; h. Causing the torture sessions to be witnessed by the person's family, relatives or any third party; i. Denial of sleep/rest;
j.
k. l.
Shame infliction such as stripping the person naked, parading him/her in public places, shaving the victim's head or putting marks on his/her body against his/her will; Deliberately prohibiting the victim to communicate with any member of his/her family; and Other analogous acts of mental/psychological torture. d.
ELEMENTS OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT (CIDT) (Sec. 5): 1. Deliberate and aggravated treatment or punishment (not enumerated under Sec. 4) 2. Inflicted by person in authority or his agent 3. Against a person in custody 4. Attaining the level of severity sufficient to cause suffering, gross humiliation or debasement to the latter NOTE: The assessment of the level of severity shall depend on all the circumstances of the case, including: 1. Duration of the treatment or punishment 2. Effects, physical and mental 3. In some cases: the sex, religion, age and state of health of the victim. PROHIBITED DETENTION Secret detention places, solitary confinement, incommunicado or other similar forms of detention, where torture may be carried out with impunity are hereby prohibited. (Sec. 7) NOTE: The PNP, AFP and other law enforcement agencies concerned shall make an updated list of all detention centers and facilities under their respective jurisdictions with the corresponding data on prisoners or detainees incarcerated or detained therein. This list shall be available to the public at all times and updated by the same agencies every 5 days of the month at the minimum. WHO ARE LIABLE TORTURE AND/OR CIDT: 1. Principal a. Any person i. Who actually participated or induced another in the commission ii. Who cooperated in the execution of the act by previous or simultaneous acts b. Any superior military, police or law enforcement officer or senior government official i. Who issued an order to any lower ranking personnel to commit torture for whatever purpose c. The immediate commanding officer of the unit
concerned of the AFP or the immediate senior public official of the PNP and other law enforcement agencies i. For any act or omission, or negligence committed by him that shall have led, assisted, abetted or allowed, whether directly or indirectly, the commission thereof by his subordinates He who has knowledge of the commission of torture or CIDT committed by his subordinates or others within his area of responsibility, and authority to prevent or investigate the allegations yet did not take or failed to do preventive or corrective actions whether deliberately or negligently
2. 3.
Accomplice Accessory a. Any public officer or employee i. if he has knowledge that torture or other CIDT is being committed and without having participated therein either as principal or accomplice, takes part subsequent to its commission in any of the following manner: (a) By themselves profiting from or assisting the offender to profit from the effects of the act of torture or other cruel, inhuman and degrading treatment or punishment; (b) By concealing the act of torture or other cruel, inhuman and degrading treatment or punishment and/or destroying the effects or instruments thereof in order to prevent its discovery; or (c) By harboring, concealing or assisting m the escape of the principal/s in the act of torture or other cruel, inhuman and degrading treatment or punishment: Provided, That the accessory acts are done with the abuse of the official's public functions
ELEMENTS:
a. That
the
offender
is
a
public
officer
or
employee;
b. That
he
procures
a
search
warrant;
and
c. That
there
is
no
just
cause.
2. Exceeding
his
authority
by
using
unnecessary
severity
in
executing
a
search
warrant
legally
procured
ELEMENTS:
a. That
the
offender
is
a
public
officer
or
employee;
b. That
he
procures
a
legal
search
warrant;
and
c. That
he
exceeds
his
authority
or
uses
unnecessary
severity
in
executing
the
same.
a. b. c.
entering any dwelling against the will of the owner thereof; searching papers or other effects found therein without the previous consent of such owner; refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same.
SURREPTITIOUSLY done through fraud or secret means to accomplish an object (stealth) SPECIAL AGGRAVATING (QUALIFYING) CIRCUMSTANCES: 1. Nighttime 2. Papers or effects not constituting evidence of a crime are not returned immediately NOTE: The judicial order is the search warrant. If the offender who enters the dwelling against the will of the owner is a private individual, the crime committed is Trespass to Dwelling. When a public officer searched a person outside his dwelling without a search warrant and such person is not legally arrested for an offense, the crime committed by the public officer is either: 1. Grave Coercion if violence or intimidation is used (Art 286), or 2. Unjust Vexation if there is no violence or intimidation (Art 287). In the 1st mode, the entrance must be against the will of the owner of the dwelling. Lack of consent will not suffice. Under the 3rd mode, even if the entrance is only without the consent of its owner, the crime is committed when there is a refusal to leave the premises when required to do so. ART. 129. SEARCH WARRANTS MALICIOUSLY OBTAINED AND ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED SEARCH WARRANT an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. ELEMENTS: 1. That the offender is a public officer or employee; 2. That he has legally procured a search warrant; and 3. That he exceeds his authority or uses unnecessary severity in executing the same. ACTS PUNISHABLE: 1. Procuring a search warrant without just cause
ART. 130. SEARCHING DOMICILE WITHOUT WITNESSES ELEMENTS: 1. That the offender is a public officer or employee; 2. That he is armed with a search warrant legally procured; 3. That he searches the domicile, papers or other belongings of any person; and 4. That the owner or any member of his family, or two witnesses residing in the same locality is not present. ORDER OF THOSE WHO MUST WITNESS THE SEARCH: 1. Homeowner 2. Members of the family of sufficient age and discretion 3. Responsible members of the community
NOTE: If the offender is a private individual, the crime is Disturbance of Public Order (Art 153). Offender must be a stranger, not a participant, in the peaceful meeting; otherwise, the offense is Unjust Vexation. Meeting must be peaceful and there must be no legal ground for prohibiting, dissolving or interrupting that meeting. Interrupting and dissolving a meeting of the municipal council by a public officer is a crime against the legislative body and is not punishable under this article. Those holding peaceful meetings must comply with local ordinances.
The phrase in a place devoted to religious worship does not necessarily imply the requirement of a religious ceremony going on. The phrase during the celebration is separated by the word or from the phase place devoted to religious worship which indicates that the religious ceremony need not be celebrated in a place of worship. Examples of religious ceremony (acts performed outside the church): processions and special prayers for burying dead persons but NOT prayer rallies. Acts notoriously offensive to the feelings of the faithful must be directed against religious practice or dogma or ritual for the purpose of ridicule, as mocking or scoffing or attempting to damage an object of religious veneration. There must be deliberate intent to hurt the feelings of the faithful, mere arrogance or rudeness is not enough CRIME PERSONS IF ELEMENT IS LIABLE MISSING Prohibition, Public officer or If by insider Interruption and employee who then unjust Dissolution of is a stranger in vexation Peaceful Meeting the meeting (Art. 131) Interruption of Public officer or If not religious Religious Worship employee then Art 131 (Art. 132) Offending Religious Any person Feeling (Art. 133)
END OF DISCUSSION ON TOPIC 2. CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE
=======================================
=======================================
TOPICS
UNDER
THE
SYLLABUS
Chapter
1:
Rebellion,
sedition
and
Disloyalty
PD
1866
as
amended
by
RA
8294
Chapter
2:
Crimes
Against
Popular
Representation
Sec.
1
-
Crimes
against
legislative
bodies
and
similar
bodies
Sec.
2
-
Violation
of
parliamentary
immunity
Chapter
3:
Illegal
Assemblies
and
Associations
Chapter
4:
Assault
upon
and
Resistance
and
Disobedience
To,
Persons
in
Authority
and
their
Agents
Chapter
5:
Public
Disorders
Chapter
6:
Evasion
of
Service
of
Sentence
Chapter
7:
Commission
of
Another
Crime
During
Service
of
Penalty
Imposed
for
Another
Previous
Offense
================================================
REBELLION Requires taking up of arms Giving of comfort and moral aid alone is not punishable No foreign enemy Committed during time of peace or war REBELLION Crime against Public Order TREASON Does not require taking up of arms Giving of comfort and moral aid is punishable Foreign enemy required Committed only during time of war SUBVERSION Crime against National Security
Does not absorb Does not absorb Rebellion Subversion Currently punishable under No law currently punishing the Revised Penal Code Subversion REBELLION IN GENERAL A crime of masses, of the multitude. It cannot be committed by only 1 person. It is a continuing crime. A public uprising and taking up of arms are necessary for overt acts to constitute rebellion. o However, taking part in the clash of arms is not necessary to be convicted of rebellion. o If there is conspiracy, knowingly identifying ones self with a group who commits rebellion is enough for conviction, even if he himself did not rise publicly and take arms. Consummated the very moment rebels rise and take arms against the government. They do not need to achieve their purpose for rebellion to be consummated. PURPOSE FOR REBELLION The purpose of the uprising must be shown. It is not necessary for conviction that the purpose is achieved. NOTE: If there is no public uprising, the crime is direct assault There must be ACTUAL participation. Mere giving of aid or comfort is not criminal in the case of rebellion. Rebellion absorbs other crimes committed in furtherance of rebellion. o Illegal possession of firearms in furtherance of rebellion is absorbed by the crime of rebellion. o A private crime may be committed during rebellion. o Rape, even if not in furtherance of rebellion, cannot be complexed with rebellion. Public officer must take active part because mere silence or omission is not punished in rebellion It is not a defense that the accused never took the oath of allegiance, or that they never recognized the government. People v. Hernandez17: rebellion cannot be complexed with ordinary crimes done pursuant to it People v. Geronimo18: crimes done for private purposes without political motivation should be separately punished Enrile v. Salazar19: Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any
17 18 19
People v. Hernandez, 99 Phil. Rep 515 (1956) People v. Geronimo, G.R. No. L-8936 (1956) Enrile v. Salazar, 186 SCRA 217 (1990)
other offense committed on the occasion thereof, either as a means to its commission or as an unintended effect of any activity that constitutes rebellion. ART. 134-A. COUP DTAT ELEMENTS 1. Offender: member of the military, police force, or any public officer or employee 2. Means: swift attack accompanied by violence, intimidation, threat, strategy, or stealth. 3. Possible targets: duly constituted authorities of the Philippines, any military camp/installation, communication networks, public utilities, or other facilities needed for the exercise and continued possession of power. 4. Purpose: to seize or diminish state power COUP DTAT IN GENERAL May be perpetrated with or without civilian participation May be punished as terrorism ART. 135. PENALTY FOR COUP DTAT, REBELLION AND INSURRECTION PARTICIPANT ACTS PENALTY REBELLION Leaders Promotes, Reclusion maintains, or Perpetua heads Participants Participates, or Reclusion executes the Temporal commands of others COUP DTAT Leaders Leads, directs, or Reclusion commands others perpetua to undertake a Coup dtat Participants in Participates or Reclusion government executes the Temporal service commands of others Participants not in Aids, abets, Prision mayor in government finances, or its maximum service otherwise assists period commission PENALTIES AND LIABILITY The indeterminate sentence does not apply to Coup dtat, Rebellion, or Insurrection. If the actual leader is unknown, the persons who actually directed others, spoke for the unknown
leaders, signed receipts, and performed other similar acts will be liable as the leader. ABSORPTION (REBELLION AND INSURRECTION) If other common crimes were done in pursuance of the rebellious purpose, these crimes are absorbed and the person is liable only for rebellion. Absorption is not automatic. One has to show that common crimes were done in pursuance of rebellious purposes, even if one was a member of a rebellious group. If other common crimes are done for personal purposes, even while the person is in rebellion, the person will be held separately liable. Once an overt act (even if it is a crime itself) is cited as an element of Rebellion in the information, it can no longer be charged as a separate crime. ART. 136. CONSPIRACY AND PROPOSAL TO COMMIT COUP DTAT, REBELLION, OR INSURRECTION PENALTIES 1. Conspiracy and proposal to commit Coup dtat a. Prision Mayor minimum b. A fine not exceeding Php 8,000 2. Conspiracy to commit Rebellion or Insurrection a. Prision correccional maximum b. A fine not exceeding Php 5,000 3. Proposal to commit Rebellion or Insurrection a. Prision correccional medium b. A fine not exceeding Php 2,000 NOTE: Merely agreeing and deciding to commit the above mentioned crimes, without actually performing the overt acts is already punishable. There is no conspiracy when the people have not agreed, or decided to commit the crimes. Even if some acts may be construed as helpful to rebels, if there is no intent to aid them in achieving their rebellious purposes, those who gave aid are not liable as conspirators. Even if someone gives speeches in favor of the crimes, if there is no evidence that those who heard it took it as a proposal, the person giving the speech is not liable under this article. ART. 137. DISLOYALTY OF by OR EMPLOYEES ACTS PUNISHABLE 1. Failing to resist rebellion by all means 2. Continuing to discharge duties under rule of rebels 3. Accepting appointment under rule of rebels
ART.
139.
SEDITION
ELEMENTS
1. Offenders
rise
publicly
and
tumultuously
2. Means:
force,
intimidation,
outside
legal
method.
3. Objectives:
a. Prevent
promulgation/execution
of
law
or
holding
of
popular
election
b. Prevent
government
or
officer
thereof
from
freely
exercising
functions
c. Inflict
act
of
hate
or
revenge
upon
public
officer
or
employee
or
his
property
d. Commit
for
political
or
social
end,
any
act
of
hate
or
revenge
on
any
person
or
social
class
e. Despoil
for
any
political
or
social
end,
any
person,
the
Government,
or
any
division
thereof
of
all
or
some
of
their
property.
SEDITION
IN
GENERAL
1. Sedition
is
the
raising
of
commotions
or
disturbances
in
the
State.
2. Can
be
committed
by
both
private
and
public
persons.
3. Object
is
generally
a
violation
of
public
peace.
4. It
cannot
be
committed
by
one
person
alone.
a. Something
is
considered
tumultuous
if
it
involves
at
least
four
men
with
weapons
or
other
means
of
violence.
b. Multiple
people
with
no
arms
or
means
of
violence
at
all
cannot
commit
sedition.
5. Common
crimes
are
not
absorbed
in
sedition.
NOTE:
Concurrence
of
public
uprising
and
purpose
of
sedition
is
required.
When
one
is
absent,
it
is
not
sedition.
DISTINGUISHING
FROM
OTHER
CRIMES
SEDITION
(ART.
139)
REBELLION
(ART.
134)
In
both,
there
must
be
a
public
uprising.
Sufficient
that
the
Taking
up
of
arms
public
uprising
is
against
the
government
tumultuous.
Purpose
of
the
The
purpose
is
always
offenders
may
be
political.
political
or
social.
SEDITION
(ART.
139)
TREASON
(ART.
114)
Commotions
or
disturbances
of
the
State
Violation
by
a
subject
of
his
allegiance
to
his
sovereign
NOTE: Penalty for all acts is Prision Correccional in its minimum period OFFENDERS SHOULD be a public officer or employee. A private individual cannot violate this article, even if he accepts appointments under the rebel government. Should not be in conspiracy with the rebels. If there is conspiracy, he/she will be liable for rebellion. REBELLION AS PRE-REQUISITE There must be a rebellion to be resisted in the first place. This article is inapplicable in the absence of the crime of rebellion. ART. 138. INCITING TO REBELLION OR INSURRECTION ELEMENTS 1. Offender does not take arms or is not in open hostility against the Government. 2. He incites others to the execution of any of the acts of rebellion a. He incites others to rise publicly and take arms against the government 3. Means: speeches, proclamations, banners, writings, emblems, or other representations. APPLICABILITY 1. People incited must not actually commit rebellion for this article to apply. 2. If people incited commit rebellion, this article is not applicable. a. People incited would be guilty of rebellion as principals by direct participation. b. Person inciting would be guilty of rebellion as principal by inducement. DISTINGUISHING FROM PROPOSAL TO COMMIT REBELLION PROPOSAL TO COMMIT INCITING TO REBELLION REBELLION ( ART. 136) (ART. 138) The person who proposes has decided to commit rebellion. The person who proposes the execution of the crime uses secret means. Not required that the offender has decided to commit rebellion. The inciting is done publicly.
NOTE: In both proposal and inciting, the offender induces another to commit rebellion
ART. 140. PENALTY FOR SEDITION PERSONS LIABLE 1. Leader of the sedition 2. Other persons participating in the sedition ART. 141. CONSPIRACY TO COMMIT SEDITION There must be an agreement and a decision to rise publicly and tumultuously to attain any of the objects of sedition in order to constitute the crime of conspiracy to commit sedition. There is no proposal to commit sedition. ART. 142. INCITING TO SEDITION PUNISHABLE ACTS 1. Inciting others to sedition by means of speeches, proclamations, writings, emblems, etc. 2. Uttering seditious words which disturb the public speech. 3. Writing, publishing, or circulating scurrilous libels against Government which tend to disturb public peace. ELEMENTS OF ACT 1 INCITING OTHERS TO SEDITION 1. That the offender does not take a direct part in the crime of sedition; 2. That he incites others to the accomplishment of any of the acts which constitute sedition; and 3. That the inciting is done by means of speeches, proclamations, writing, emblems, cartoons, banners, or other representations tending to the same end. UTTERING AND WRITING: WHEN PUNISHABLE (ACTS 2 & 3) 1. When they tend to disturb or obstruct any public officer in executing the functions of his office; or 2. When they tend to instigate others to cabal and meet together for unlawful purposes; or 3. When they suggest or incite rebellious conspiracies or riots; or 4. When they lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the government. 2 RULES RELATIVE TO SEDITIOUS WORDS 1. Clear and present danger rule a. Danger should be both clear and imminent b. Reasonable ground to believe that the danger apprehended is imminent and that the evil to be prevented is a serious one to the State. c. Present time element. Not only probable but very likely inevitable.
2.
Dangerous tendency rule a. Tend to create a danger of public uprising b. Easily produces disaffection c. Produces state of feelings incompatible with a disposition to remain loyal to the government.
when the defect of the meeting is not manifest and requires an investigation before its existence can be determined. JUST CAUSE If there is just cause for preventing a meeting, the person doing so is not liable under this article. Just cause must appear immediately and must not be one assumed and proven later by an investigation. ART. 144. DISTURBANCE OF PROCEEDINGS ELEMENTS 1. An actual meeting of Congress or any of its committees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board; and 2. That the offender does any of the following acts a. he disturbs any of such meetings b. he behaves while in the presence of any such bodies in such a manner as to interrupt its proceedings or to impair the respect due it. NOTE: Accused may also be punished for contempt by the legislative body
4. Member searched/arrested has not committed a crime punishable by arresto mayor or higher NOTE: Actual prevention not necessary It is not necessary that a member of Congress is actually prevented from attending, expressing his opinion, or voting. It is sufficient that offender had the purpose and performed overt acts to achieve such purpose. PARLIAMENTARY IMMUNITY Protects from civil and criminal liability Does not protect a member of Congress from responsibility before the legislative body itself whenever that members conduct is considered inappropriate or unbecoming. Other members may, by votation, opt to suspend, imprison, or expel unruly or otherwise erring members of Congress. ================================================
===============================================
PERSONS LIABLE FOR ILLEGAL ASSEMBLY 1. Organizers or leaders of the meeting 2. Persons merely present at the meeting (except when presence is out of curiosity not liable since they do not have intent to commit the felony of illegal assembly) NOTE: Not all the persons present at the meeting of the first form of illegal assembly need to be armed. If the audience is incited to commit rebellion or sedition, the crimes committed are illegal assembly as regards the organizers or leaders and persons merely present and inciting to rebellion or sedition insofar as the one inciting them is concerned. ART. 147. ILLEGAL ASSOCIATIONS KINDS OF ILLEGAL ASSOCIATIONS 1. Those totally or partially organized for the purpose of committing a felony 2. Those totally or partially organized for purposes contrary to public morals. PERSONS LIABLE 1. Founders and Presidents 2. Members DISTINGUISHING ILLEGAL ASSEMBLY FROM ILLEGAL ASSOCIATIONS ILLEGAL ASSOCIATION ILLEGAL ASSEMBLY Not necessary that there be an actual meeting It is the act of forming or organizing and membership in the association that are punished. Persons liable: founders, directors, president, and members. Actual meeting or assembly necessary It is the meeting and attendance at such meeting that are punished.
Chapter
4:
Assault
upon
and
resistance
and
disobedience
to
persons
in
authority
and
their
agents
===============================================
ART.
148.
DIRECT
ASSAULT
2
FORMS
OF
DIRECT
ASSAULT
1. Without
public
uprising,
by
employing
force
or
intimidation
for
attainment
of
any
of
the
purposes
enumerated
in
defining
the
crimes
of
rebellion
and
sedition
(
1st
form)
ELEMENTS:
1. Offender
employs
force
or
intimidation;
2. Aim
of
offender
is
to
attain
any
of
the
purposes
of
the
crime
of
rebellion
or
sedition;
and
3. That
there
is
no
public
uprising.
NOTE:
Offended
party
here
may
be
a
private
person
2. Without
public
uprising,
by
attacking,
by
employing
force
or
by
seriously
intimidating
or
by
seriously
resisting
any
person
in
authority
or
any
of
his
agents,
while
engaged
in
the
performance
of
official
duties,
or
on
the
occasion
of
such
performance.
(2nd
form)
ELEMENTS:
1. Offender
(a)
makes
an
attack,
(b)
employs
force,
(c)
makes
a
serious
intimidation,
or
(d)
makes
a
serious
resistance;
2. Person
assaulted
is
a
person
in
authority
or
his
agent;
3. At
the
time
of
the
assault
the
person
in
authority
or
his
agent
a. is
engaged
in
the
actual
performance
of
official
duties
(motive
is
not
essential);
or
b. is
assaulted
by
reason
of
the
past
performance
of
official
duties
(motive
is
essential);
4. That
the
offender
knows
that
the
one
he
is
assaulting
is
a
person
in
authority
or
his
agent
(with
intention
to
offend,
injure
or
assault);
and
5. No
public
uprising.
NOTE:
Offended
part
here
is
either
a
person
in
authority
of
an
agent
of
a
person
in
authority.
REQUIRED DEGREE OF FORCE, INTIMIDATION, OR RESISTANCE FOR LIABILITY TO ATTACH UNDER THIS ARTICLE FORCE EMPLOYED INTIMIDATION/ RESISTANCE Person in Authority Agent Need not be serious Serious Must be of serious character Serious
GENERAL RULE: Direct assault is always complexed with the material consequence of the act (Ex. direct assault with murder). EXCEPTION: If resulting in a light felony, the consequent crime is absorbed. NOTE: Resistance to the person in authority or his agent must be active to constitute a crime under this article. It cannot be passive, as when one throws himself on the ground and refuses to follow orders given by a person in authority to move. Even when the person in authority or the agent agrees to fight, direct assault is still committed. Even another person in authority can be guilty of assault upon a person in authority or his agent. However, there can be no assault upon or disobedience to ones authority by another person in authority or his agent when they both contend that they were in the exercise of their respective duties. A person in authority or his agent is not in the actual performance of official duties when he: o Exceeds his powers, o Uses unnecessary force or violence, or o Descends into matters which are private in nature. Knowledge of the accused that the victim is a person in authority or his agent is essential and such knowledge must be alleged in the information. Evidence of motive of the offender is important when the person in authority or his agent who is attacked or seriously intimidated is not in the actual performance of his official duty. Direct assault may be committed upon a private person who comes to the aid of a person in authority since he is then considered an agent of a person in authority. Direct assault cannot be committed during rebellion. Crime of slight physical injuries is absorbed in direct assault.
QUALIFYING CIRCUMSTANCES 1. When the assault is committed with a weapon; 2. When the offender is a public officer or employee; or 3. When the offender lays hand upon a person in authority ART. 149. INDIRECT ASSAULT ELEMENTS 1. A person in authority or agent is the victim of any of the forms of direct assault in the previous article. 2. A person comes to the aid of such victim 3. Offender makes use of force or intimidation upon such person. OFFENDED PARTY May be a private person. A private person who comes to the rescue of an authority or his agent enjoys the privileges of the latter. NOTE: Direct assault must have been committed first before this article can be applicable. If, while a person in authority or his agent is performing his duty and someone helps him, and then the helper is attacked by a person, without however attacking the person in authority or agent, it is not indirect assault. ART. 150. DISOBEDIENCE TO SUMMONS ISSUED BY THE CONGRESS, ITS COMMITTEES OR SUBCOMMITTEES, BY THE CONSTITUTIONAL COMMISSION, ITS COMMITTEES, SUBCOMMITTEES, OR DIVISIONS. PUNISHABLE ACTS 1. By refusing, w/o legal excuse, to obey summons issued by the Congress or any of its committees or subcommittees, Constitutional committees or by any commission or committee chairman or member authorized to summon witnesses; 2. Refusal of any person present before a legislative or constitutional body or official to: to be sworn or placed under affirmation. 3. By refusing to answer any legal inquiry; or to produce books, documents, records etc. when required to do so by the said bodies in the exercise of their functions; 4. Restraining another from attending as witness in such body; or 5. Inducing disobedience to a summons or refusal to be sworn.
DISTINGUISHING
DIRECT
ASSAULT
FROM
RESISTANCE
AND
SERIOUS
DISOBEDIENCE
DIRECT
ASSAULT
RESISTANCE
OR
SERIOUS
DISOBEDIENCE
Authority/agent
must
be
in
performance
of
official
duties
or
was
assaulted
by
reason
thereof
Committed
in
4
ways:
attacking,
employing
force,
seriously
intimidating,
seriously
resisting
Attack
or
employment
of
force
must
be
serious
and
deliberate
The
persons
in
authority
or
his
agent
must
be
in
actual
performance
of
his
duties.
ART. 151. RESISTANCE AND DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENTS OF SUCH PERSONS PUNISHABLE ACTS 1. Resistance or serious disobedience 2. Simple disobedience ELEMENTS OF RESISTANCE OR SERIOUS DISOBEDIENCE 1. Person in authority or his agent is engaged in performance of official duties 2. The offender resists or seriously disobeys 3. Acts of the offender are not included in Arts. 148-150 NOTE: There can be no resistance and serious disobedience on occasion of the performance of official duties. There always has to be an actual performance of duties when the resistance or serious disobedience is made. ELEMENTS OF SIMPLE DISOBEDIENCE 1. Agent is engaged in the performance of official duty or gives a lawful order 2. Offender disobeys such duty 3. Disobedience is not of a serious nature Note: Only agents can be the victims of simple disobedience DISOBEDIENCE The disobedience must be a failure to comply with orders directly issued by authorities to the person in the exercise of official functions. The disobedience contemplated under this article is not disobedience to a law or a failure to comply with some legal provision The word serious in this article refers only to disobedience, and not to resistance. Serious resistance is punished under Art. 148. NON-DELIBERATE ATTACK OR EMPLOYMENT OF FORCE If it is not deliberate, it is only resistance or serious disobedience. A non-deliberate attack shows a lack of intent to ignore, disregard, or defy authority. NOTE: No crime 1. When accused did not have knowledge that the person arresting him was a peace officer and he resisted. 2. When person in authority or agent exceeds his rights and duties.
Committed only by resisting or seriously disobeying a person in authority or his agent. No force is employed, or if person resisted is only agent, only slight force is used.
ART. 152. PERSONS IN AUTHORITY AND AGENTS OF PERSONS IN AUTHORITYWHO SHALL BE DEEMED AS SUCH PERSONS IN AUTHORITY Directly vested with jurisdiction, whether as an individual, or as a member of some court or governmental corporation board or commission One who has the power or authority to govern and execute laws Not every public officer is a person in authority. AGENTS Those who, by direct provision of law, or by election, or appointment by competent authority, are charged with the maintenance of public order and the protection and security of life. Any person who comes to the aid of persons in authority. TEACHERS, PROFESSORS, AND PERSONS CHARGED WITH THE SUPERVISION OF PUBLIC OR DULY RECOGNIZED PRIVATE SCHOOLS Deemed persons in authority for purposes of Arts. 148 151 Not deemed persons in authority for other purposes under the law Reason: to give teachers protection, dignity and respect while performing their duties.
ART.
154.
UNLAWFUL
USE
OF
MEANS
OF
PUBLICATION
AND
UNLAWFUL
UTTERANCES
ACTS
PUNISHABLE
1. Publishing
or
causing
to
be
published,
by
means
of
printing,
lithography
or
any
other
means
of
publication
as
news
any
false
news
which
may
endanger
the
public
order,
or
cause
damage
to
the
interest
or
credit
of
the
State.
2. Encouraging
disobedience
to
the
law
or
to
the
constituted
authorities
or
by
praising,
justifying
or
extolling
any
act
punished
by
law,
by
the
same
means
or
by
words,
utterances
or
speeches.
3. Maliciously
publishing
or
causing
to
be
published
any
official
resolution
or
document
without
proper
authority,
or
before
they
have
been
published
officially.
4. Printing,
publishing
or
distributing
or
(causing
the
same)
books,
pamphlets,
periodicals
or
leaflets
which
do
not
bear
the
real
printers
name,
or
which
are
classified
as
anonymous.
ART.
155.
ALARMS
AND
SCANDALS
1. Discharging
any
firearm,
rocket,
firecracker,
or
other
explosive
within
any
town
or
public
place,
calculated
to
cause
(which
produces)
alarm
or
danger.
2. Instigating
or
taking
active
part
in
any
charivari
or
other
disorderly
meeting
offensive
to
another
or
prejudicial
to
public
tranquility.
3. Disturbing
the
public
peace
while
wandering
about
at
night
or
while
engaged
in
any
other
nocturnal
amusement.
4. Causing
any
disturbance
or
scandal
in
public
places
while
intoxicated
or
otherwise,
provided
the
act
is
not
covered
by
Art.
153
(tumults).
NOTE:
CHARIVARI
mock
serenade
or
discordant
noises
made
with
kettles,
tin
horns
etc.,
designed
to
deride,
insult
or
annoy.
Firearm
must
not
be
pointed
at
a
person,
otherwise,
it
is
illegal
discharge
of
firearm
(Art.
254).
For
discharging
any
firearm,
etc,
the
act
must
produce
alarm
or
danger
as
a
consequence.
Using
firecrackers
during
fiestas
are
not
punishable
under
this
article.
ART.
156.
DELIVERING
A
PERSON
FROM
JAIL
ELEMENTS
1. Person
is
confined
in
jail
or
penal
establishment
2. Offender
removes
such
person
therefrom
or
helps
the
escape
of
such
person.
================================================
20
APPLICABILITY OF ARTICLE Applicable even if escapee is merely a detention prisoner. Applicable if escapee came from a hospital or asylum as these are considered extensions of the penal institution. POSSIBLE OFFENDERS This crime is usually committed by an outsider May be committed by an employee, provided that he does not have custody or charge of such a person, or is otherwise off duty. VIOLATION, INTIMIDATION, OR BRIBERY Not necessary elements of the offense. The offense can be committed by employing other means The offender is penalized with a higher penalty if he commits the crime using violence, intimidation, or bribery. Bribery as contemplated in this article the act of bribing someone as a means to remove prisoner from jail, not the act of accepting a bribe. LIABILITY Person delivering detainee from jail may be held liable as an accessory if the person helped has committed treason, murder, or parricide, because the person delivering assists in the escape of the principal. A prisoner who leaves cannot be held liable under this article. o If he is a prisoner by final judgement, he may be liable under Art. 157. o If he is merely a detention prisoner, he is not liable since he has no sentence to be evaded. ================================================
If the offender escaped within the 15-day appeal period, crime is not evasion because judgment is not yet final.
CIRCUMSTANCES QUALIFYING THE OFFENSE: EVASION OF SENTENCE WAS DONE THROUGH: 1. Unlawful entry (by scaling); 2. Breaking doors, windows, gates, walls, roofs or floors; 3. Using picklocks, false keys, disguise, deceit, violence or intimidation; or 4. Connivance with other convicts or employees of the penal institution. ART. 158. EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES, OR OTHER CALAMITIES ELEMENTS 1. Offender is convict by final judgment confined in a penal institution 2. There is a disorder resulting from conflagration, earthquake, explosion, similar catastrophes, or a mutiny in which the offender did not participate. 3. The offender subsequently evades the service of his sentence by leaving the penal institution 4. Offender fails to give himself up to the authorities within 48 hours following the issuance of a proclamation by the Chief Executive announcing the passing away of such calamity. NOTE: Applicable only to convicts by final judgment. Convict must leave the penal institution. The deductions or additions to the penalty effected by this or other articles is not applicable to one who did not leave a penal institution where he is confined despite the existence of such calamities. What is punished is not the leaving of the penal institution, but the failure of the convict to give himself up. MUTINY an organized and unlawful resistance to a superior officer. o There is no mutiny if the prisoners disarmed the guards and escaped, because the guards are not their superior officers. DEDUCTIONS AND ADDITIONS 1. If an escapee surrenders himself within 48 hours after the proclamation, he is entitled to a deduction of 1/5 of his original term, as provided in Art. 98 2. If an escapee fails to surrender himself within 48 hours after the proclamation, he will be sentenced to an additional 1/5 of his remaining sentence, which in no case shall exceed 6 months.
ART. 159. OTHER CASES OF EVASION OF SERVICE OF SENTENCE ELEMENTS 1. That the offender was a convict; 2. That he was granted a conditional pardon by the Chief Executive; and 3. That he violated any of the conditions of such pardon. 2 PENALTIES 1. Prision correccional in its minimum period if the penalty remitted does not exceed 6 years. 2. The unexpired portion of his original sentence if the penalty remitted is higher than 6 years. NOTE: Offender must have been found guilty of the subsequent offense (through w/c he violated his conditional pardon) before he can be prosecuted under this Article. But under the Revised Admin. Code, no conviction is necessary. President has the power to arrest, and reincarcerate offender without trial. ================================================
This is because Art. 160 speaks of the maximum period of the penalty prescribed by law for the new felony. Penalties prescribed by special laws have no periods, unlike felonies in the RPC. o Does not require that both crimes are embraced in the same title of the Code. Different from reiteracion, which requires that the offender first finishes serving out his sentence before committing another crime. Different from recidivism, where the first and second offense must be embraced in the same title of the Code.
Chapter
7:
Commission
of
another
crime
during
service
of
penalty
imposed
for
another
previous
offense
================================================
Art.
160.
COMMISSION
OF
ANOTHER
CRIME
DURING
SERVICE
OF
PENALTY
IMPOSED
FOR
ANOTHER
PREVIOUS
OFFENSE
ELEMENTS
1. That
the
offender
was
already
convicted
by
final
judgment
of
one
offense
2. That
he
committed
a
new
felony
before
beginning
to
serve
such
sentence
or
while
serving
the
same.
QUASI-RECIDIVISM
Special
aggravating
circumstance.
The
effect
is
to
impose
the
maximum
period
applicable
for
the
subsequent
felony.
Cannot
be
offset
by
ordinary
mitigating
circumstances,
but
only
privileged
ones,
such
as
minority.
Quasi
recidivism
involves
two
crimes.
o The
1st
one
may
be
any
crime,
whether
punished
under
the
RPC
or
special
laws.
o The
2nd
one,
which
is
committed
before
serving
sentence
for
the
first
one,
or
while
serving
the
same,
should
be
a
felony.
PARDON When one reaches the age of 70 and he has served out his original sentence, he may be pardoned. He may also be pardoned if he finishes serving the original sentence only after he reaches 70. Reasons for not pardoning person 1. Habitual criminal 2. Or if his conduct or other circumstances shows he is not worthy of such clemency.
=======================================
=======================================
TOPICS
UNDER
THE
SYLLABUS
Chapter
1:
Forgeries
Sec.
1
Forging
the
seal
of
the
government
of
the
Philippine
Islands,
the
signature
or
stamp
of
the
Chief
Executive
Sec.
2
Counterfeiting
Coins
Sec.
3
Forging
treasury
or
bank
notes,
obligations
and
securities;
importing
and
uttering
false
or
forged
notes,
obligations
and
securities
Sec.
4
Falsification
of
legislative,
public,
commercial,
and
private
documents,
and
wireless,
telegraph,
and
telephone
message
Sec.5
Falsification
of
medical
certificates,
certificates
of
merit
or
services
and
the
like
Sec.6
Manufacturing,
importing
and
possession
of
instruments
or
implements
intended
for
the
commission
of
falsification
R.A.
9184
Chapter
2:
Other
Falsities
Sec.
1
Usurpation
of
authority,
rank,
title,
and
improper
use
of
names,
uniforms
and
insignia
CA
No.
142
Sec.
2
False
testimony
Chapter
3:
Frauds
Sec.1
Machinations,
monopolies
and
combinations
Sec.
2
Frauds
in
commerce
and
industry
================================================
preceding article, even if his act is that of an accessory to the crime of counterfeiting the great seal or forging the stamp or signature.
Chapter
1:
Forgeries
================================================
SECTION 1 FORGING THE SEAL OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, THE SIGNATURE OR THE STAMP OF THE CHIEF EXECUTIVE ART. 161. COUNTERFEITING THE GREAT SEAL OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, FORGING THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE ACTS PUNISHABLE 1. Forging the Great Seal 2. Forging the signature 3. Forging the stamp NOTE: When the signature of the President is forged, it is not falsification but forging of signature of the Chief Executive under this article. ART. 162. USING FORGED SIGNATURE OR COUNTERFEIT SEAL OR STAMP ELEMENTS 1. Great seal was counterfeited or signature/stamp forged. 2. Offender knew of such counterfeiting or forgery 3. Offender uses such fake seal, stamp, or signature NOTE: The offender in this article should not be the one who did the counterfeiting or forgery, otherwise, he will be liable under the previous paragraph. Offender is punished under this article with a penalty one degree lower than that provided in the next
NOTE:
Forging
is
committed
by
giving
a
treasury
or
bank
note
or
any
instrument
payable
to
bearer
or
order
an
appearance
of
a
true
and
genuine
document.
Falsification
is
committed
by
erasing,
substituting,
counterfeiting
or
altering
by
any
means
the
figures
and
letters,
words,
signs
contained
therein.
Forging
PNB
checks
is
not
included
under
this
article.
That
is
falsification
of
commercial
document
under
Article
172.
Obligation
or
security
includes
bonds,
certificate
of
indebtedness,
bills,
national
bank
notes,
coupons,
treasury
notes,
certificates
of
deposit,
checks,
drafts
for
money,
and
sweepstakes
money.
ART.
167.
COUNTERFEITING,
IMPORTING,
OR
UTTERING
INSTRUMENTS
NOT
PAYABLE
TO
BEARER
ELEMENTS
1. There
is
an
instrument
payable
to
order
or
other
document
not
payable
to
bearer
2. The
offender
forges
such
document
or
imports
or
utters
such
forged
instrument.
3. In
case
of
uttering,
the
offender
is
in
connivance
with
the
forgers
or
importers
ART.
168.
ILLEGAL
POSSESSION
AND
USE
OF
FALSE
TREASURY
OR
BANK
NOTES
AND
OTHER
INSTRUMENTS
OF
CREDIT
ELEMENTS
1. Documents
in
the
preceding
articles
are
forged
or
falsified
by
another
person
2. Offender
knows
them
to
be
forged
or
falsified
3. He
uses
them
or
possesses
them
with
intent
to
use
NOTE:
The
act
sought
to
be
punished
is
knowingly
possessing
with
intent
to
use
any
of
such
forged
treasury
or
bank
notes.
The
accused
has
the
burden
to
give
a
satisfactory
explanation
of
his
possession
of
forged
bills.
Mere
possession
of
false
money
bill,
without
intent
to
use
it
to
the
damage
of
another,
is
not
a
crime.
A
person
in
possession
of
falsified
document
and
who
makes
use
of
the
same
is
presumed
to
be
material
author
of
falsification.
ART.
169.
HOW
FORGERY
IS
COMMITTED
WAYS
FORGERY
IS
COMMITTED
1. Giving
any
document
mentioned
in
preceding
articles
the
appearance
of
a
true/genuine
document
ART. 165. SELLING OF FALSE OR MUTILATED COINS WITHOUT CONNIVANCE ACTS PUNISHABLE 1. Possession with intent to utter coin counterfeited or mutilated by another. 2. Actually uttering, while knowing coins to be false or mutilated. ELEMENTS OF ACT NO. 1 1. Possession a. Covers possession in general, from actual possession to constructive possession 2. Intent to utter 3. Knowledge that the coins are forged/mutilated ELEMENTS OF ACT NO. 2 1. Actually uttering such coins 2. Knowledge that the coins are forged/mutilated. LEGAL TENDER 1. This article does not require that the coin being uttered is legal tender 2. But if the coin being uttered or possessed is a mutilated coin, it must be legal tender, because of Art. 165 Punishing possession and utterance 1. The possession or utterance punished under this article is that which is done without connivance with the original forgers, mutilators, or importers. 2. If, along with possession or utterance, one is also the author or the mutilation or forgery, he will be liable under either Arts. 164 or 165. 3. Possession and utterance must always be with the knowledge that these are forged or mutilated coins. Knowledge need not be expressed, but may be inferred from acts of the offender.
SECTION
3
FORGING
TREASURY
OR
BANK
NOTES,
OBLIGATIONS
AND
SECURITIES;
IMPORTING
AND
UTTERING
FALSE
OR
FORGED
NOTES,
OBLIGATIONS
AND
SECURITIES
ART.
166.
FORGING
TREASURY
OR
BANK
NOTES,
OR
OTHER
DOCUMENTS
PAYABLE
TO
BEARER;
IMPORTING
AND
UTTERING
SUCH
FALSE
OR
FORGED
NOTES
OR
DOCUMENTS
ACTS
PUNISHABLE
1. Forging
or
falsification
of
treasury
or
banking
notes
or
other
documents
2. Importation
of
such
false
or
forged
obligations
or
notes
3. Uttering
such
in
connivance
with
the
forgers
or
importers
1ST
ACT:
COUNTERFEITING
OR
IMITATING
ANY
SIGNATURE,
HANDWRITING
OR
RUBRIC
2
WAYS
UNDER
THIS
PARAGRAPH
1. COUNTERFEITING
imitating
any
handwriting,
signature
or
rubric
2. FEIGNING
simulating
a
signature,
handwriting,
or
rubric
out
of
one
which
does
not
exist.
REQUISITES
1. Intent
or
attempt
to
imitate
2. Some
resemblance
between
the
genuine
and
forged
handwriting,
signature,
or
rubric
INTENT
1. If
there
is
sufficient
resemblance
between
the
genuine
and
the
forged
signatures,
it
can
be
concluded
that
the
accused
had
intention
to
imitate
signature.
2. There
can
be
no
intent
to
counterfeit
or
imitate
if
the
person
had
authority
to
sign.
RESEMBLANCE
1. Imitation
need
not
be
perfect.
2. Resemblance
must
be
such
that
is
likely
to
deceive
an
ordinary
person
dealing
with
the
document
2ND
ACT:
CAUSING
IT
TO
APPEAR
THAT
PERSONS
HAVE
PARTICIPATED
IN
ANY
ACT
OR
PROCEEDING
WHEN
THEY
IN
FACT
DID
NOT
SO
PARTICIPATE.
ELEMENTS
1. Offender
caused
it
to
appear
in
a
document
that
a
person
has
participated
in
an
act
or
proceeding.
2. Persons
did
not
in
fact
participate.
NOTE:
Imitation
of
a
signature
is
not
required
in
this
article.
If
performed
by
a
private
person,
as
with
all
acts
under
Art.
171,
Art.
172
should
be
applied.
3RD
ACT:
ATTRIBUTING
TO
PERSONS
WHO
HAVE
PARTICIPATED
IN
AN
ACT
OR
PROCEEDING
STATEMENTS
OTHER
THAN
THOSE
IN
FACT
MADE
BY
THEM
ELEMENTS
1. Persons
participated
in
an
act
or
proceeding
2. Persons
made
statements
in
that
proceeding.
3. Offender
attributed
to
such
person
or
persons
statements
other
than
those
in
fact
made.
2.
SECTION
4
FALSIFICATION
OF
LEGISLATIVE,
PUBLIC,
COMMERCIAL,
AND
PRIVATE
DOCUMENTS,
AND
WIRELESS
TELEGRAPH
AND
TELEPHONE
MESSAGES
ART.
170.
FALSIFICATION
OF
LEGISLATIVE
DOCUMENTS
ELEMENTS
1. There
is
a
bill,
resolution,
or
ordinance
enacted,
approved,
or
pending
approval
by
Congress
or
any
provincial
or
municipal
council/board.
2. The
offender
alters
it
3. He
has
no
proper
authority
to
do
so
4. Alteration
has
changed
the
meaning
of
the
document
NOTE:
The
bill,
resolution,
or
ordinance
must
be
genuine.
This
article
does
not
cover
a
fabricated
or
simulated
legislative
document.
Offender
can
be
any
person,
for
as
long
as
he
has
no
authority.
This
article
only
punishes
alteration
which
changes
its
meaning.
Any
other
tampering
with
legislative
documents
is
covered
under
Art.
171
or
172.
ART.
171.
FALSIFICATION
BY
PUBLIC
OFFICER
OR
EMPLOYEE,
OR
NOTARY
OR
ECCLESIASTICAL
MINISTER
ELEMENTS
1. Offender:
Public
officer,
employee,
ecclesiastical
minister,
or
notary
public
2. Takes
advantage
of
his
official
position
3. Falsifies
a
document
by
committing
any
of
the
acts
mentioned
in
the
article
4. In
case
offender
is
ecclesiastical
minister
falsification
committed
be
with
respect
to
civil
status
of
persons.
TAKES
ADVANTAGE
OF
OFFICIAL
POSITION
1. He
has
duty
to
make
or
prepare,
or
otherwise
intervene
in
a
preparation
of
a
document
2. He
has
the
official
custody
of
the
documents
which
he
falsifies
DOCUMENT
1. Any
written
statement
by
which
a
right
is
established
or
an
obligation
extinguished.
2. Must
be
complete
or
have
the
appearance
of
a
true
and
genuine
document
3. Must
be
of
apparent
legal
efficacy
4. Pars.
6,8,
and
the
second
part
of
par.
7
require
a
genuine
document,
while
the
others
do
not.
4TH ACT: MAKING UNTRUTHFUL STATEMENTS IN A NARRATION OF FACTS ELEMENTS 1. Offender makes narration of facts 2. There was a legal obligation to disclose the truth 3. Facts narrated are absolutely false 4. Wrongful intent of injuring a third person NARRATION OF FACTS 1. Must be narration of facts, not conclusions of law 2. Does not include mistakes in judgment LEGAL OBLIGATION 1. There is a law requiring the disclosure of the truth of the facts narrated 2. If the law does not require a piece of information, even if accused is lied about that info, he is not liable. 3. Legal obligation is inherent in residency certificate. ABSOLUTELY FALSE 1. Offender must be aware of falsity 2. If the statements are not altogether false, there being some colourable truth in such statements, the crime of falsification is not deemed to have been committed. WRONGFUL INTENT 1. A person is not guilty if he was not animated by desire to do wrong or to injure a third person. 2. Good faith is a defense. If offender believed what he put was true, he is not liable. OTHER NOTES 1. Even if consent for contract was obtained by violence, it does not make facts narrated in it false. 2. There can be falsification by omission. 5TH ACT: ALTERING TRUE DATES NOTE: There is falsification only when the date mentioned in the document is essential. Change of date must affect the veracity of the document or the effects/meaning thereof. 6TH ACT: MAKING ANY ALTERATION OR INTERCALATION IN A GENUINE DOCUMENT WHICH CHANGES ITS MEANING ELEMENTS 1. Alteration (change) or intercalation (insertion) on a document. 2. Made on a genuine document 3. Alteration or intercalation has changed its meaning
4. Meaning of the document is now false. CHANGES ITS MEANING 1. Change the effects which it would otherwise produce 2. Unless that happens, there could not exist an essential element or intention to commit a crime. MEANING IS NOW FALSE 1. Alteration which speaks the truth is not falsification 2. Must be alteration/intercalation which causes the instrument to speak a language different in legal effect from what it originally spoke. 7TH ACT: ISSUING IN AN AUTHENTICATED FORM A DOCUMENT PURPORTING TO BE A COPY OF AN ORIGINAL DOCUMENT WHEN NO SUCH ORIGINAL EXISTS, OR INCLUDING IN SUCH A COPY A STATEMENT CONTRARY TO, OR DIFFERENT FROM, THAT OF THE GENUINE ORIGINAL OFFENDER 1. Committed only by a public officer or notary public who takes advantage of his official position. 2. If private individual is in conspiracy with offender, he is guilty of this crime and incurs the same liability and penalty as public officer. INTENT TO GAIN OR PREJUDICE 1. The idea of gain or intent to cause damage to a third person is not necessary. 2. It is the official character of the offender which is mainly taken into consideration. 3. Interest of the community which is intended to be guaranteed. 8TH ACT: INTERCALATING ANY INSTRUMENT OR NOTE RELATIVE TO THE ISSUANCE THEREOF IN A PROTOCOL, REGISTRY, OR OFFICIAL BOOK. NOTE: Contemplates the changing entries in records such as the local civil registry. Malicious intent not necessary ART. 172. FALSIFICATION BY PRIVATE INDIVIDUAL AND USE OF FALSIFIED DOCUMENTS ACTS PUNISHABLE 1. Falsification of public, official or commercial document by private individual. 2. Falsification of private document by any person. 3. Use of falsified document to in a judicial proceeding, or to the prejudice of another in any other proceeding.
Commercial
document
a. Defined
and
regulated
by
Code
of
Commerce
b. Promote
or
facilitate
trade.
c. Cash
disbursement
vouchers
not
included.
All
other
writings
are
private.
ELEMENTS OF ACT NO.1 1. Offender: private individual or public officer not taking advantage of position. 2. Committed any act of falsification under Art. 171 a. Exception: Par.7 which by definition cannot be committed by private individual/public officer not taking advantage of position. authentication 3. Public/official/commercial document. ELEMENTS OF ACT NO.2 1. Offender committed any of the acts of falsification. 2. Private document. 3. Damage to a third party or at least intent to cause such damage. a. Need not be material b. Damage to ones honor is included c. Effect need not be to profit offender for as long as it damaged another. ELEMENTS OF ACT NO.3 (JUDICIAL PROCEEDING) 1. Offender knew document was falsified by another 2. Document is embraced in Art. 171, or nos. 1 or 2 of Art. 172 3. Introduced in evidence in judicial proceeding ELEMENTS OF ACT NO.3 (ANY OTHER PROCEEDING) 1. Offender knew document was falsified by another 2. Embraces in Art. 171, or nos. 1 or 2 of Art. 172 3. Used such document (not in judicial proceeding) 4. Use caused damage to another or it was used with intent to cause such damage. DAMAGE OR INTENT TO DAMAGE A THIRD PARTY 1. Only necessary when falsifying private documents, or using any falsified document in proceedings other than judicial proceedings. 2. Not necessary when falsifying a public, official, or commercial document. 3. Also not necessary when documents are used in judicial proceedings. 4 KINDS OF DOCUMENTS 1. Public document a. Issued by public official in response to the exigencies of public service. b. Public official intervened in execution. c. Authorized by a notary public or a competent public official with required solemnities. 2. Official document a. Issued by a public official in the exercise of the functions of his office. b. All pleadings filed with the court are public or official documents.
3.
4. PRIVATE DOCUMENTS CONSIDERED PUBLIC 1. Deed which was privately falsified, but then presented to the notary public by the falsifier for acknowledgment. 2. If private document becomes part of an official record and is certified by a public officer duly authorized by law. PRESUMPTIONS 1. Possessor and utterer of a falsified document is presumed to be the author of the falsification. 2. Especially if accused has sufficient and strong motive. a. The fact that petitioner benefitted and even profited from the falsified notarized Release of Real Estate Mortgage are strong indications that she participated in the falsification of the same document. 21 COMPLEXED WITH ESTAFA 1. There is a complex crime of falsification of a public, official, or commercial document, with estafa. 2. There is no such complex crime if what is involved is a private document. a. Reason: To be punishable, falsified private documents need to be accompanied by damage, or intent to damage a third person. What would be damage from an act constituting estafa actually merely consummates the crime of falsification of a private document. b. Distinguish from a public document which needs no damage to a third party to be punishable. Any damage resulting from such use of the document could be attributed to a separate crime such as estafa, because damage is not an element of falsification of a public document. DISTINGUISHING PRIVATE FROM PUBLIC DOCUMENT PRIVATE PUBLIC/OFFICIAL Prejudice to a third party is primarily taken into account Principal thing punished is the violation of public faith and the preservation of truth which the document solemnly proclaims Immaterial whether or not some prejudice has been caused to third persons.
Nierva
v.
People,
G.R.
No.
153133
(2006)
it, the falsification is not punishable NOTE: Falsification is consummated the moment the genuine document is altered or the moment the false document is executed. There may be a frustrated stage if falsification is imperfect. Usage, which is not an element of falsification, is punished separately from actual falsification. o It cannot be deemed necessarily included in the crime of falsification of a public document by a public officer or employee or by a private person. o May be a lesser offense. ART. 173. FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH, AND TELEPHONE MESSAGES, AND USE OF FALSIFIED MESSAGES ACTS PUNISHABLE 1. Uttering fictitious messages 2. Falsifying messages 3. Using falsified messages ELEMENTS OF ACT NO.1 AND NO.2 1. Offender is an officer or employee of Government, or of private corporation engaged in service of sending or receiving wireless, cable, or telephone messages 2. The offender either a. Utters a fictitious message b. Falsifies a message ELEMENTS OF ACT NO.3 1. Accused knew messages were falsified 2. Accused used such falsified dispatch 3. Resulted in prejudice of third party, or there was intent to prejudice. PRIVATE INDIVIDUAL 1. Cannot commit the first two acts by direct participation unless he is an employee of a corporation engaged in telecommunications services. 2. Can be held guilty as a principal by inducement, if he induced such public or government employee to perform punishable acts. 3. Connection with telecommunications network is not necessary to commit third act. Any person can be held liable for the use of falsified dispatch.
SECTION 5 FALSIFICATION OF MEDICAL CERTIFICATES, CERTIFICATES OF MERIT, SERVICE, AND THE LIKE ART. 174 FALSE MEDICAL CERTIFICATE, FALSE CERTIFICATES OF MERIT OR SERVICE, ETC. PERSONS LIABLE 1. Physician or surgeon, for falsifying a medical certificate 2. Public officer, for falsifying a certificate of merit, service, good conduct, or other similar circumstances. 3. Private individual, for falsifying any of the documents mentioned in the first two acts. SIMILAR CIRCUMSTANCES 1. Similar to merit, service, or good conduct. 2. Thus, certificates pertaining to ownership of property are not included. ART. 175 USING OF FALSE CERTIFICATES ELEMENTS 1. Crime in Art. 174 has been committed by another person 2. Offender knew of the falsified nature of the certificate 3. Offender used such false certificate SCOPE 1. This article only applies to use of those falsified documents covered by Art. 174. 2. This article applies, even if the falsified documents were used in a judicial proceeding. SECTION 6 MANUFACTURING, IMPORTING, AND POSSESSION OF INSTRUMENTS OR IMPLEMENTS ART. 176 MANUFACTURING AND POSSESSION OF INSTRUMENTS OR IMPLEMENTS FOR FALSIFICATION ACTS PUNISHABLE 1. Making or introducing into the country, implements and instruments for counterfeiting/falsification 2. Possessing items made or imported by another person, with intent to use the same. a. Includes constructive possession b. Either actual ownership or mere control IMPLEMENTS CONFISCATED 1. Not necessary that they form a complete set for counterfeiting 2. Enough that they may be employed by themselves or together with other implements to commit the crime of counterfeiting or falsification
R.A. 9184: THE GOVERNMENT PROCUREMENT ACT (THE NEW PUBLIC BIDDING LAW)
PUNISHABLE
ACTS
1. Those
committed
by
public
officers
a. Open
any
sealed
Bid
and
any
and
all
documents
required
to
be
sealed
or
divulging
their
contents,
prior
to
the
appointed
time
for
the
public
opening
of
Bids
or
other
documents.
b. Delaying
without
justifiable
cause
any
of
the
following
beyond
the
prescribed
periods:
i. Screening
for
eligibility
ii. Opening
for
bids
iii. Evaluation
and
post
evaluation
for
bids
iv. Awarding
of
contracts
c. Unduly
influencing
or
exerting
undue
pressure
on
any
member
of
the
BAC
or
any
officer
or
employee
of
the
procuring
entity
to
take
a
particular
bidder.
d. Splitting
of
contracts
which
exceed
procedural
purchase
limits
and
cooperative
bidding
e. Abusing
exercise
of
power
to
reject
any
and
all
bids,
with
manifest
preference
to
any
bidder
who
is
closely
related
to
him.
f. Note:
if
any
of
the
foregoing
acts
are
done
in
collusion
with
private
individuals,
the
private
individuals
shall
be
likewise
liable
for
the
offense.
Such
private
individual
shall
be
permanently
disqualified
from
transacting
business
with
the
government.
2. Those
committed
by
private
individuals
i. Accompanied
by
permanent
disqualification
from
transacting
business
with
the
government
and
temporary
to
perpetual
disqualification
from
public
office
When
two
or
more
bidders
agree
and
submit
different
Bids
as
if
they
were
bona
fide,
when
they
knew
that
one
or
more
of
them
was
so
much
higher
than
the
other
that
it
could
not
be
honestly
accepted
and
that
the
contract
will
surely
be
awarded
to
the
pre- arranged
lowest
Bid.
ii. When
a
bidder
maliciously
submits
different
Bids
through
two
or
more
persons,
corporations,
partnerships
or
any
other
business
entity
in
which
he
has
interest,
to
create
the
appearance
of
competition
that
does
not
in
fact
exist
so
as
to
be
adjudged
as
the
winning
bidder.
iii. When
two
or
more
bidders
enter
into
an
agreement
which
call
upon
one
to
refrain
from
bidding
for
Procurement
contracts,
or
which
call
for
withdrawal
of
bids
already
submitted,
or
which
are
otherwise
intended
to
secure
as
undue
advantage
to
any
one
of
them.
iv. When a bidder, by himself or in connivance with others, employ schemes which tend to restrain the natural rivalry of the parties or operates to stifle or suppress competition and thus produce a result disadvantageous to the public. b. Other acts i. Submit eligibility requirements of whatever kind and nature that contain false information or falsified documents calculated to influence the outcome of the eligibility screening process or conceal such information in the eligibility requirements when the information will lead to a declaration of ineligibility from participating in public bidding. ii. Submit Bidding Documents of whatever kind and nature than contain false information or falsified documents or conceal such information in the Bidding Documents, in order to influence the outcome of the public bidding. iii. Participate in a public bidding using the name of another or allow another to use one's name for the purpose of participating in a public bidding. iv. Withdraw a Bid, after it shall have qualified as the Lowest Calculated Bid/Highest Rated Bid, or to accept and award, without just cause or for the purpose of forcing the Procuring Entity to award the contract to another bidder. This shall include the non-submission of requirements such as but not limited to, performance security, preparatory to the final award of the contract. 3. When the bidder is a juridical entity, criminal liability and the accessory penalties shall be imposed on its directors, officers or employees who actually commit any of the foregoing acts. JURISDICTION Jurisdiction over the offenses defined under this Article shall belong to the appropriate courts, according to laws existing at the time of the commission of the offenses.
================================================
2.
Purpose is to conceal identity FICTITIOUS NAME CONCEALING TRUE NAME Publicity element not necessary Only 1 purpose: conceal true identity
SECTION 1 USURPATION OF AUTHORITY, RANK, TITLE, AND IMPROPER USE OF NAMES, UNIFORMS, AND INSIGNIA ART. 177. USURPATION OF AUTHORITY AND OFFICIAL FUNCTIONS ACTS PUNISHABLE 1. Usurpation of authority knowingly and falsely representing oneself to be an officer, etc. a. Mere act of knowingly and falsely representing oneself to be an officer etc. is sufficient. b. It is not necessary that he performs an act pertaining to a public officer 2. Usurpation of official functions doing any act pertaining to any public officer, etc. without being authorized to do so. a. Essential that offender should have performed act pertaining to public officer REPRESENTATION 1. Must be positive, express, and explicit 2. Must represent officers named in article, and not just any authority figure 3. Representation may be shown in acts, and not just words. OFFENDERS 1. This article may be violated by both private and public officers. ART. 178. USING FICTITIOUS NAME AND CONCEALING TRUE NAME PUNISHABLE ACTS 1. Using fictitious name 2. Concealing true name and other personal circumstances ELEMENTS OF ACT NO.1 1. Offender uses a fictitious name 2. Such name is used publicly 3. Purpose is a. Conceal a crime b. Evade execution of judgment c. Causes damage to public interest ELEMENTS OF ACT NO.2 1. Offender conceals true name and other personal circumstances
PROHIBITED
ACTS
1. Using
a
name
different
from
that
which
he
was
registered
at
birth
in
the
official
local
civil
registry
2. Using
a
name
different
from
that
which
he
registered
with
the
bureau
of
immigration
upon
entry
into
the
country
3. Using
a
name
which
was
not
authorized
by
a
competent
court
as
a
substitute
name
EXCEPTIONS
1. Literary
purposes
2. Cinema,
television,
radio,
and
other
entertainment
purposes
3. Athletic
events
NOTES
ON
THE
LAW
1. Judicial
authority
must
be
first
secured
by
a
person
who
desires
to
use
an
alias.
2. However,
a
common-law
wife
does
not
incur
criminal
liability
under
the
Anti-Alias
Law
if
she
uses
the
surname
of
the
man
she
has
been
living
w/
for
the
past
20
years
and
has
been
introducing
herself
to
the
public
as
his
wife.
ART. 179. ILLEGAL USE OF UNIFORMS OR INSIGNIA ELEMENTS 1. Offender uses an insignia, uniform, or dress 2. Such pertains to an office not held by offender or a class of persons of which he is not a member 3. Used publicly and improperly INSIGNIA, UNIFORM, OR DRESS 1. Genuine insignia, uniform, or dress is not necessary. Offender can wear an imitation and still be liable. 2. An exact imitation is not necessary, for as long as there is a colourable resemblance calculated to deceive the general public.
NOTE:
Testimony
by
negative
statement
is
still
in
favor
of
the
defendant.
False
testimony
in
favor
of
defendant
need
not
directly
influence
the
decision
of
acquittal
nor
benefit
the
defendant.
The
intent
to
favor
defendant
is
sufficient.
A
statement
of
mere
opinion
is
not
punishable.
Conviction
or
acquittal
is
not
necessary
(final
judgment
is
not
necessary),
but
gravity
of
crime
in
principal
case
should
be
shown.
Defendant
who
falsely
testified
in
his
own
behalf
in
criminal
case
is
guilty
of
false
testimony
favourable
to
the
defendant
Rectification
made
spontaneously
after
realizing
mistake
is
not
false
testimony.
The
penalty
in
this
article
is
less
than
that
which
is
provided
in
the
preceding
article
because
there
is
no
danger
to
life
or
liberty
of
the
defendant
ART.
183.
FALSE
TESTIMONY
IN
OTHER
CASES
AND
PERJURY
IN
SOLEMN
AFFIRMATION
ACTS
PUNISHABLE
1. False
testimony
under
oath
in
a
proceeding
other
than
judicial
2. False
affidavit
ELEMENTS
1. Statement
under
oath
or
affidavit
upon
material
matter
2. Made
before
a
competent
officer
authorized
administer
such
oath.
3. Wilful
and
deliberate
assertion
of
a
falsehood
a. Perjury
cannot
be
wilful
where
the
oath
is
according
to
belief
or
conviction
as
to
its
truth22
b. It
must
appear
that
the
accused
knows
his
statement
to
be
false
or
is
consciously
ignorant
of
its
truth23
4. That
the
information
given
is
required
by
law.
COMPETENT
OFFICER
1. Person
who
has
a
right
to
inquire
into
the
questions
presented
to
him
under
his
jurisdiction
2. No
perjury
if
not
competent
authority
REQUIRED
BY
LAW
1. There
is
a
law
requiring
it
OR
2. The
statement
or
document
is
made
for
legal
purposes.
3. It
is
sufficient
that
the
oath
had
been
administered
with
a
view
of
carrying
into
effect
a
legal
purpose.
3.
Must pertain to an actual officer or class of persons. The person is not liable if the insignia, uniform, or dress pertains to an imaginary office or class.
ART. 180. FALSE TESTIMONY AGAINST A DEFENDANT ELEMENTS 1. That there be a criminal proceeding; 2. Offender testifies falsely under oath against the defendant therein; 3. Offender knows that it is false; and 4. The defendant against whom the false testimony is given is either acquitted or convicted in a final judgment. FALSE TESTIMONY - committed by a 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 NOTE: Violation of this article requires criminal intent. Hence, it cannot be committed through negligence. The offender need not impute guilt upon the accused to be liable. The defendant must at least be sentenced to a correctional penalty or a fine, or must have been acquitted. The witness who gave false testimony is liable even if the court did not consider his testimony. Penalty depends upon sentence imposed on the defendant except in the case of a judgment of acquittal. Since Art. 180 does not prescribe the penalty where the defendant in a criminal case is sentenced to a light penalty, false testimony in case of a light penalty cannot be punished, considering that a penal law must always be strictly construed. ART. 181. FALSE TESTIMONY FAVOURABLE TO THE DEFENDANT ELEMENTS 1. That the testimony must be given in a civil case; 2. That the testimony must relate to the issues presented in said case; 3. That the testimony must be false; 4. That the false testimony must be given by the defendant knowing the same to be false; and 5. That the testimony must be malicious and given with an intent to affect the issues presented in the said case.
22 23
JUDGE PIMENTEL NOTES, p.76 Monfort III., et. al., v. Salvatierra, G.R. No. 168301(2007)
================================================
DEFINITIONS 1. OATH any form of attestation manifesting a commitment to perform an act faithfully and truthfully 2. AFFIDAVIT a sworn statement in writing made before an authorized officer 3. MATERIAL MATTER the main fact; the subject of inquiry or circumstances which tends to prove the fact a. Legitimately affects the credit of any witness who testifies b. Strengthens or corroborates testimonies MATERIALITY 1. There must be competent proof of the materiality of the false testimony 2. Matter must not simply be pertinent, that is, relating to collateral matters which make more or less probable the proposition at issue. 3. It must be material, that is, directly proving or disproving a fact at issue. 4. No perjury if false imputations in testimony or affidavit were not on material matter. SUBORNATION OF PERJURY 1. Knowingly and wilfully procuring another to swear falsely 2. Not expressly punished in the revised penal code, but offender may be liable as a principal by inducement. ART. 184. OFFERING FALSE TESTIMONY IN EVIDENCE ELEMENTS 1. Offered in evidence false witness or testimony 2. Offender knew of falsity 3. During judicial or official proceedings NOTE: This article applies when the offender, without inducing another but knowing him to be a false witness, presented him and the latter testified falsely in a judicial or official proceeding. The felony is consummated the moment a false witness is offered in any judicial or official proceeding. Looking for a false witness is not punished by law as that is not offering a false witness. The false witness need not be convicted of false testimony. A mere offer to present him is sufficient.
Chapter
3:
Frauds
================================================
SECTION
2.
FRAUDS
ART.
187.
IMPORTATION
AND
DISPOSITION
OF
FALSELY
MARKED
ARTICLES
OR
MERCHANDISE
MADE
OF
GOLD,
SILVER,
OR
OTHER
PRECIOUS
METALS
OR
ALLOYS
ARTICLES
OF
MERCHANDISE
INVOLVED
1. Gold
2. Silver
3. Precious
metals
4. Alloys
Elements 1. Offender imports, sells, or disposes item 2. Stamps, brands, or marks fail to indicate the actual fineness or quality 3. Offender knows of such failure to indicate SELLING, DISPOSING, AND IMPORTING 1. It is not necessary that such items are actually sold and public actually deceived, before one can be liable under this article 2. If one is charged with importation, there must be proof that item was in fact imported. OFFENDER 1. Those who import, sell, or dispose items. 2. This article is not applicable to the manufacturer of articles of gold, silver, etc. He is liable for estafa.
3.
=======================================
=======================================
TOPIC
UNDER
SYLLABUS
The
Comprehensive
Dangerous
Drug
Act
of
2002
================================================
NOTE:
The
Dangerous
Drug
Act
of
2002
repealed
the
articles
under
Title
Five
of
the
revised
penal
code.
Crimes
relative
to
prohibited
drugs
are
now
covered
by
R.A.
9165.
ACTS
PUNISHABLE
1. Importation
of
dangerous
drugs
or
controlled
precursors
and
essential
chemicals.
a. Regardless
of
quantity
or
purity
involved.
b. Circumstances
which
warrant
maximum
penalty
i. Importing
such
items
through
the
use
of
a
diplomatic
passport,
diplomatic
facilities,
or
any
other
means
involving
an
offenders
official
status
intended
to
facilitate
unlawful
entry.
ii. Organizer,
manager,
or
financier.
2. Sale,
trading,
administration,
dispensation,
delivery,
distribution
and
transportation
of
dangerous
drugs
or
controlled
precursors.
a. Circumstances
which
warrant
maximum
penalty
i. Offense
transpiring
within
100
meters
from
school
4.
ii. Using minors or mentally incapacitated persons as runners, couriers, and messengers. iii. Victim of the offense is a minor or mentally incapacitated person. iv. Dangerous drug or controlled precursor or essential chemical be the proximate death of a victim. v. Organizer, manager, financier Maintenance of a den, dive, or resort where any dangerous drug or controlled precursor and essential chemical are used or sold. a. OPIUM DIVE OR RESORT: place where dangerous drug and/or controlled precursor and essential chemical is administered, delivered, stored for illegal purposes, distributed, sold or used in any form b. Circumstances which warrant maximum penalty i. Drug is administered, delivered, or sold to a minor who is allowed to use the same ii. Organizer, manager, or financier c. Circumstance raising penalty to death and fine of Php 1 15 million. i. When dangerous drug is proximate cause of death of a person using the same in such den, dive, or resort ii. Imposed on maintainer/owner or operator of such place. d. If den, dive, or res ort is owned by a 3rd person, the same shall be confiscated in favor of the government i. Must allege that place was intentionally used in the furtherance of the crime ii. Prosecution must prove such intent. iii. Owner must be included as an accused in the criminal complaint e. Other persons liable in relation to dens, dives, or resorts i. Any employee who is aware of the nature of such place ii. Any person who is aware of the nature of the place and shall knowingly visit the same. Being employees or visitors of drug den a. Persons liable: i. Any employee of a den, dive or resort who is aware of the nature of the place as such ii. Any person not being included in number 1, who is aware of the nature of the place as such and shall knowingly visit the same. b. A person who visited another who was smoking opium shall not be liable if the place is not an opium dive or resort
NOTE:
What
is
punished
is
present
possession,
not
past
possession
It
is
not
necessary
to
allege
in
information
that
accused
is
not
authorized
to
possess
opium
9. Possession
of
equipment,
instrument,
apparatus,
and
other
paraphernalia
for
dangerous
drugs
a. In
case
of
medical
practitioners
or
other
professionals,
he/she
must
be
following
the
implementing
guidelines
issued
by
the
Dangerous
Drugs
Board.
b. Possession
is
prima
facie
evidence
that
the
possessor
has
smoked,
consumed,
administered
to
himself/herself,
injected,
ingested,
or
used
a
dangerous
drug.
c. Qualifying
circumstance:
Party,
social
gathering,
or
in
the
proximate
company
of
at
least
2
persons.
10. Use
of
Dangerous
Drugs
a. If
person
who
has
tested
positive
is
also
found
in
possession
of
dangerous
drugs,
he
should
be
prosecuted
under
possession.
1st
conviction
minimum
of
6
mos.
of
rehabilitation
2nd
conviction
imprisonment
and
fine
b. Where
the
accused
is
also
found
to
be
in
possession
of
dangerous
drugs,
this
Section
shall
not
apply.
Sec.
11,
possession
of
dangerous
drugs,
shall
apply.
Hence,
USE
is
subsumed
by
POSSESSION.
Ex.
If
the
offender
is
caught
with
possession
of
paraphernalia,
possession
of
dangerous
drugs
and
use
of
dangerous
drugs,
the
offense
is
POSSESSION
of
dangerous
drugs.
11. Cultivation
or
Culture
of
plants
classified
as
dangerous
drugs
or
are
sources
thereof
a. In
case
of
medical
laboratories,
maintainers
and
other
professionals
must
strictly
follow
the
guidelines
for
the
proper
cultivation,
culture,
handling,
experimentation,
and
disposal
of
such
plants.
b. Land
or
greenhouses
used
shall
be
confiscated
in
favor
of
the
State,
unless
the
owner
proves
lack
of
knowledge
of
such
cultivation
or
culture
despite
the
exercise
of
due
diligence.
c. Maximum
penalty
is
applied
if
land
used
was
of
the
public
domain,
or
if
one
acted
as
an
organizer,
manager,
or
financier.
5. Manufacture of dangerous drugs, and/or controlled precursors and essential chemicals. a. Presence of any controlled precursor/essential chemical or laboratory equipment in a clandestine laboratory is prima facie proof of manufacture of any dangerous drug. b. Aggravating circumstance: if clandestine laboratory i. Involved participation or presence of minors ii. Was located within 100 meters of residential, business, church, or school premises iii. Was secured with booby traps iv. Was concealed with legitimate business operations v. Employed practitioner, chemical engineer, public official, or foreigner. c. Qualifying circumstance: Organizes, manages or acts as financier d. The protector or coddler is also liable. 6. Illegal chemical diversion of controlled precursors and essential chemicals a. Diverting controlled precursors and essential chemicals designated for a legal purpose towards the manufacture of illegal drugs. 7. Manufacture or delivery of equipment, instrument, apparatus, or other paraphernalia for dangerous drugs and/or controlled precursors and essential chemicals a. Acts punishable: delivery, possession with intent to deliver, or manufacture with intent to deliver b. Knowing, or under circumstances where one reasonably should know that it will be used relative to dangerous drugs or controlled precursor/essential chemicals. c. Maximum penalty if minor or mentally incapacitated person was used to deliver such equipment. 8. Possession of Dangerous Drugs a. Possession in the following quantities, regardless of purity i. 10 grams or more: opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, or other dangerous drugs. ii. 50 grams or more if shabu iii. 500 grams or more of marijuana b. If possession is less than the quantities above, penalty is lowered. ELEMENTS OF POSSESSION OF OPIUM 1. Occupancy or taking 2. Intent to possess
12. Failure to maintain or keep original records of transactions on Dangerous Drugs and/or controlled precursors and essential chemicals. 13. Unnecessary prescription of dangerous drugs. a. Applicable to physicians or other medical practitioners authorized to prescribe medicine. b. Prescription is unnecessary when physical or physiological condition does not require the dosage prescribed. 14. Unlawful prescription of dangerous drugs a. Applicable to anyone who makes or issues a prescription when he or she is not authorized by law to do so. b. Whether person for whom eth prescription was made actually needed the drug is irrelevant. ATTEMPTS OF THE FOLLOWING SHALL BE PUNISHED BY THE SAME PENALTY IMPOSED FOR THE CONSUMMATED FELONY 1. Importation of any dangerous drug or controlled precursor and essential chemical 2. Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical 3. Maintenance of a den, dive, or resort where any dangerous drug is used in any form 4. Manufacture of any dangerous drug and/or controlled precursor and essential chemical 5. Cultivation or culture of plants which are sources of dangerous drugs. PRESCRIPTION 1. The period of prescription for the offense charged against a drug dependent under the compulsory submission program shall not run during the time that the drug dependent is under confinement in a Center or otherwise under the treatment and rehabilitation program approved by the board. CONDITIONS FOR EXEMPTION FROM CRIMINAL LIABILITY UNDER THE VOLUNTARY SUBMISSION PROGRAM 1. He/she has complied with the rules and regulations of the rehabilitation center, including the rules of the after-care and follow-up program 2. He/she has never been charged or convicted of any offense punishable under the Dangerous Drug Act, the RPC, or other special penal laws. 3. He/she has no record of escape from a center, or in the event of an escape, he surrendered himself/herself within a week.
4. 5.
He/she poses no serious danger to himself/herself, his/her family or the community by his/her exemption from criminal liability. Other persons liable: a. Public officer or employee who misappropriates, misapplies or fails to account for confiscated, seized, or surrendered dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment including the proceeds or properties obtained from the unlawful acts. b. Any elective local or national official who have benefited from the proceeds of trafficking of dangerous drugs or have received any financial/material contributions or donations from natural or juridical persons guilty of drug trafficking. c. If the violation of the Act is committed by a partnership, corporation, association or any judicial person, the partner, president, director, or manager who consents to or knowingly tolerates such violation shall be held criminally liable as co- principal. d. Any person who is found guilty of planting any dangerous drugs and/or controlled precursor and essential chemicals, regardless of quantity or purity (penalty of death). e. Any person violating a regulation issued by the Dangerous Drugs Board f. Any person authorized to conduct drug test who issues false or fraudulent drug test results knowingly, wilfully or through gross negligence. g. Any government officer tasked with the prosecution of drug-related cases under this Act who delays or bungles the prosecution.
NOTE: All school heads, supervisors and teachers shall be deemed to be persons in authority and, as such, are vested with the power to apprehend, arrest, or cause the apprehension or arrest of any person who shall violate any of the said provision. They shall be considered as persons in authority if they are in the school or within its immediate vicinity, or beyond such immediate vicinity if they are in attendance in any school or class function in their official capacity as school heads, supervisors or teachers. Any teacher or school employee who discovers or finds that any person in the school or within its immediate vicinity is violating this Act shall have the duty to report the violation to the school head or supervisor who
shall, in turn, report the matter to the proper authorities. Failure to report in either case shall, after hearing, constitute sufficient cause for disciplinary action by the school authorities. (Sec. 44)
END OF DISCUSSION ON TOPIC 5. CRIMES RELATIVE TO OPIUM AND OTHER PROHIBITED DRUGS
====================================================================================
====================================================================================
P.D.
1602.
PRESCRIBING
STIFFER
PENALTIES
IN
ILLEGAL
GAMBLING
(Repealed
Art.
195-199
RPC,
PD
483
Betting
Law,
and
PD
449
Cockfighting
Law
insofar
as
they
are
inconsistent
with
it).
====================================================================================
TOPICS
UNDER
THE
SYLLABUS:
Chapter
1:
Gambling
and
Betting
PD
1602
RA
9287
PD
483
====================================================================================
PENALTY
Prision
correccional,
1. medium
or
fine
ranging
from
P1,000
to
P6,000
In
case
of
recidivism:
Prision
mayor,
medium
or
fine
ranging
from
P5,000
to
P10,000
ACTS
PUNISHABLE
Any
person
who
shall
directly
or
indirectly
takes
part
in
any
illegal
or
unauthorized
activities
or
games
of:
a. Cockfighting,
jueteng,
jai-alai
or
horse
racing
to
include
bookie
operations
and
game
fixing,
numbers,
bingo
and
other
forms
of
lotteries
b. Cara
y
cruz,
pompiang
and
the
like
c. 7-11
and
any
game
using
dice
d. Black
jack,
lucky
nine,
poker
and
its
derivatives,
monte,
baccarat,
cuajo,
pangguigue
and
other
card
games
e. Pak
que,
high
and
low,
mahjong,
domino
and
other
games
using
plastic
tiles
and
the
like
f. Slot
machines,
roulette,
pinball
and
other
mechanical
contraptions
and
devices
g. Dog
racing,
boat
racing,
car
racing
and
other
forms
of
races
h. Basketball,
boxing,
volleyball,
bowling,
pingpong
and
other
forms
of
individual
or
team
contests
to
include
game
fixing,
point
shaving
and
other
machinations
i. Banking
or
percentage
game,
or
any
other
game
or
scheme,
whether
upon
chance
or
skill,
wherein
wagers
consisting
of
money,
articles
of
value
or
representative
of
value
are
at
stake
or
made
2. Any
person
who
knowingly
permits
any
form
of
gambling
in
an
inhabited
or
uninhabited
place
or
in
any
building,
vessel
or
other
means
of
transportation
owned
or
controlled
by
him
Prision
correccional
1. Any
person
who
shall
knowingly
permit
gambling
in
a
place
with
reputation
of
a
gambling
place,
maximum,
fine
of
or
that
prohibited
gambling
is
frequently
carried
on
therein,
or
in
a
public
or
government
P6,000
building
or
barangay
hall
2. Maintainer
or
conductor
of
above
gambling
schemes
Prison
mayor,
medium,
with
temporary
absolute
disqualification
or
fine
of
P6,000
Prision
correccional
medium
or
fine
P400
to
P2,000
Temporary
absolute
disqualification
Prision
correccional
maximum
or
fine
P500
to
P2000
If
maintainer,
conductor,
banker
of
gambling
schemes;
player,
promoter,
referee,
umpire,
judge
or
coach
in
case
of
game
fixing,
point
shaving
and
machination
is
a
government
official
Any person who knowingly and without lawful purpose possess lottery list, paper or other matter containing letters, figures, signs or symbols pertaining to or in any manner used in the games of jueteng, jai-alai or horse racing bookies, and similar games of lotteries and numbers which have taken place or about to take place Barangay official who with knowledge of existence of gambling house/place in his jurisdiction fails to abate or take action Security officer, watchman, private or house detective of hotels, villages, buildings, enclosures and the like which have reputation of gambling place or where gambling activities are being held
================================================ Chapter 1: Gambling and Betting ================================================ GAMBLING any game or scheme, whether upon chance or skill wherein wagers consisting of money, articles or value or representative of value are at stake or made MAINTAINER person who sets up and furnishes the means with which to carry on the gambling game or scheme CONDUCTOR person who manages or carries on the gambling game or scheme NOTE: 1. In PD 1602, playing for money is not a necessary element to the game for one to commit a crime. When the law names the games, punishing any person who takes part therein, its purpose is to prohibit absolutely those games. 2. A mere bystander or spectator is not criminally liable because he does not directly or indirectly take part. 3. A game or scheme is punishable even if winning depends upon skill as long as wagers (consisting of money, articles of value or representative of value) are at stake or made. 4. Proof that game took place or is about to take place is not necessary; burden of evidence is shifted to accused to show that his possession is lawful or is not connected with jueteng game; but proof to the contrary by prosecution is necessary when jueteng lists pertain to games played on dates other than the date of the raid. 5. PD 519 has outlawed pinball and slot machines and other similar devices and nullified all permits and/or licenses to operate the same. ELEMENTS KNOWINGLY PERMITTING GAMBLING TO BE CARRIED ON IN A PLACE OWNED OR CONTROLLED BY THE OFFENDER: 1. That a gambling game was carried on in an inhabited or uninhabited place or in any building, vessel or other means of transportation. 2. That the place, building, vessel or other means of transportation is owned or controlled by the offender. 3. That the offender permitted the carrying on of such game, knowing that it is a gambling game. LOTTERY Scheme for the distribution of prizes by chance among persons who have paid, or agreed to pay a valuable consideration for the chance to obtain a prize. ELEMENTS LOTTERY: 1. Consideration 2. Chance
3.
Prize/advantage/inequality in amount or value which is in the nature of prize NOTE: In a criminal case (Olsen)24, there is no lottery where a person gets the full value for his money, and the winning of price is merely incidental. But in a civil case (El Debate)25, if the inducement to win prize is the reason for the purchase then even if full value for money is received, it is still lottery. ILLEGAL NUMBER GAMES any form of illegal gambling activity which uses numbers or combinations thereof as factors in giving out jackpots/prizes/returns. It includes games such as jueteng and masiao. NOTE: R.A. 9287 increased penalties for illegal number games, amending certain provisions of PD 1602.
R.A. 9287 ACT INCREASING THE PENALTIES FOR ILLEGAL NUMBERS GAMES PENALTY: PARTICIPATION IMPRISONMENT Acts as Bettor 30 90 days Acts as personnel or staff Allows his vehicle, house, 6 yrs and 1 day 8 yrs building or land to be used in such operation Acts as collector or agent 8 yrs and 1 day 10 yrs Acts as coordinator, 10 yrs and 1 day 12 yrs controller or supervisor Acts as maintainer, 12 yrs and 1 day 14 yrs manager or operator Acts as financier or 14 yrs and 1 day 16 yrs capitalist Acts as financier or coddler 16 yrs and 1 day 18 yrs GOVERNMENT OFFICIAL PENALTY AND/OR EMPLOYEE If collector, agent; 1. 12 yrs and 1 day 20 coordinator, controller, yrs supervisor; maintainer, 2. Fine: P 3M P5M manager, operator, 3. Perpetual and absolute financier or capitalist disqualification from public office Local Government Official: Perpetual and absolute Having knowledge of disqualification from public existence of the operation office within his jurisdiction but fails to abate or take action, or tolerates the same
24 25
ART.
198.
ILLEGAL
BETTING
ON
HORSE
RACES
ACTS
PUNISHED:
(DURING
PERIODS
NOT
ALLOWED
BY
LAW)
1. By
betting
on
horse
races
2. By
maintaining
or
employing
a
totalizer
or
other
device
or
scheme
for
betting
on
races
or
realizing
profit
therefrom.
TOTALIZER
machine
for
registering
and
indicating
the
number
and
nature
of
bets
made
on
horse
races.
NOTE:
The
penalty
is
higher
for
a
person
who
employs
a
totalizer
or
other
device.
Horse
races
are
not
allowed
on:
(a)
June
12th
of
each
year,
(b)
Dec
30th
of
each
year,
(c)
Any
registration
or
voting
days
and
(d)
Holy
Thursday
and
Good
Friday.
The
race
held
on
the
same
day
and
at
the
same
place
is
punishable
as
a
separate
offense.
No
liability
if
there
is
no
betting
or
use
of
totalizer.
Law Enforcer: Fails to Administrative Penalty: apprehend perpetrators Suspension or Dismissal ART. 196. IMPORTATION, SALE AND POSSESSION OF LOTTERY TICKETS OR ADVERTISEMENTS ACTS PUNISHABLE: 1. By importing into the Philippines from any foreign place or port any lottery ticket or advertisement. 2. By selling or distributing the same in connivance with the importer. 3. By possessing, knowingly and with intent to use, lottery tickets or advertisements. 4. By selling or distributing the same without connivance with the importer. NOTES: The possession of any lottery ticket or advertisement is prima facie evidence of intent to sell, distribute or use the same. The lottery tickets need not be genuine, as long as they have the appearance thereof.
P.D.
No.
483
BETTING,
GAME-FIXING
OR
POINT-SHAVING
AND
MACHINATIONS
IN
SPORT
CONTESTS
BETTING
betting
money
or
any
object
or
article
of
value
or
representative
of
value
upon
the
result
of
any
game,
races
and
other
sports
contests
GAME-FIXING
any
arrangement,
combination,
scheme
or
agreement
by
which
the
result
of
any
game,
races
or
sports
contests
shall
be
predicted
and/or
knows
other
than
on
the
basis
of
the
honest
playing
skill
or
ability
of
the
players
or
participants
POINT-SHAVING
any
such
arrangement,
combination,
scheme
or
agreement
by
which
the
skill
of
ability
of
any
player
or
participant
in
a
game,
races
or
sports
contests
to
make
points
or
scores
shall
be
limited
deliberately
in
order
to
influence
the
result
thereof
in
favor
of
one
or
the
other
team,
player
or
participant
therein
GAME
MACHINATION
any
other
fraudulent,
deceitful,
unfair
or
dishonest
means,
method,
manner
or
practice
employed
for
the
purpose
of
influencing
the
result
of
any
game,
races
or
sports
contests
(Repealed
Art.
197)
P.D. 449 COCKFIGHTING LAW of 1974 (Repealed Art. 199) HOLDING OF COCKFIGHTS Cockfighting shall be allowed only in licensed cockpits during: 1. Sundays 2. Legal Holidays 3. During local fiestas for not more than 3 days 4. Provincial, city or municipal agriculture, commercial or industrial fair, carnival or exposition for a similar period of three days upon resolution, subject to approval of Chief of Constabulary or his authorized representativenot allowed within month of local fiesta of for more than two occasions a year in same city or municipality 5. EXCEPT: December 30, June 12, November 30, Holy Thursday, Good Friday, Election or Referendum Day and during Registration Days for such election or referendum COCKFIGHTING FOR ENTERTAINMENT OF TOURISTS OR FOR CHARITABLE PURPOSES: Chief of Constabulary or his authorized representative may also allow the holding of cockfighting for: 1. Entertainment of foreign dignitaries 2. Tourists 3. Balikbayan 4. For support of national fund-raising campaigns for charitable purposes as may be authorized by the Office of the President, upon resolution of a provincial board, city or municipal council
ART.
201.
IMMORAL
DOCTRINES,
OBSCENE
PUBLICATIONS
AND
EXHIBITIONS
AND
INDECENT
SHOWS
PERSONS
LIABLE:
1. Those
who
publicly
expound
or
proclaim
doctrines
openly
contrary
to
public
morals.
2. Authors
of
obscene
literature,
published
with
their
knowledge
in
any
form.
3. Editors
publishing
such
obscene
literature.
4. Owners
or
operators
of
establishments
selling
obscene
literature.
5. Those
who
exhibit
indecent
or
immoral
plays,
scenes,
acts
or
shows
in
theaters,
fairs,
cinemas
or
any
other
place.
6. Those
who
sell,
distribute,
or
exhibit
prints,
engraving,
sculptures
or
literature,
which
are
offensive
to
morals.
OBSCENE
LITERATURE
OR
IMMORAL
OR
INDECENT
PLAYS,
SCENES
OR
ACTS:
1. Those
w/c
glorify
criminals
or
condone
crimes;
2. Those
w/c
serve
no
other
purpose
but
to
satisfy
the
market
for
violence,
lust
or
pornography;
3. Those
w/c
offend
against
any
race
or
religion;
4. Those
w/c
tend
to
abet
the
traffic
and
the
use
of
prohibited
drugs;
and
5. Those
that
are
contrary
to
law,
public
order,
morals,
good
customs,
established
policies,
lawful
orders,
decrees
and
edicts.
TEST
OF
OBSCENITY:
Whether
the
tendency
of
the
matter
has
a
tendency
to
deprave
or
corrupt
those
whose
minds
are
open
to
such
immoral
influences.
A
matter
can
also
be
considered
obscene
if
it
shocks
the
ordinary
and
common
sense
of
men
as
indecency.26
OBSCENE
something
offensive
to
chastity,
decency
or
delicacy
NOTE:
Publicity
is
an
essential
element.
Mere
nudity
in
paintings
and
pictures
is
not
obscene.
Pictures
w/
slight
degree
of
obscenity
having
no
artistic
value
and
being
intended
for
commercial
purposes
fall
within
this
article.
The
author
of
obscene
literature
is
liable
only
when
it
is
published
with
his
knowledge.
And
in
every
case,
the
editor
publishing
it,
is
liable.
The
purpose
of
the
law
in
punishing
obscene
publications
and
exhibitions
is
to
protect
the
morals
of
the
public.
1. 2. 3.
NOTE: Permitting gambling of any kind in cockpit is punished under the same Decree (Owner, manger or lessee of cockpit that permits gambling shall be criminally liable) Spectators in cockfight are not liable unless he participates as bettor. Betting in Horse Races is allowed during periods provided by law but betting in cockfights is prohibited at all times.
================================================
ART. 200. GRAVE SCANDAL ELEMENTS: 1. That the offender performs an act/s; 2. That such act/s be highly scandalous as offending against decency or good customs; 3. That the highly scandalous conduct does not expressly fall within any other article of the RPC; and 4. That the act/s complained of be committed in a public place or within the public knowledge or view. GRAVE SCANDAL consists of acts which are offensive to decency and good customs which, having been committed publicly and thus, give rise to public scandal to persons who have accidentally witnessed the acts. DECENCY propriety of conduct; proper observance of the requirement of modesty, good taste, etc. CUSTOMS established usage, social conventions carried on by tradition and enforced by social disapproval of any violation thereof NOTE: The public view is not required. It is sufficient if committed in public place. For being committed within the public knowledge, it may occur even in a private place; the number of people who sees it is not material, except when seen by only one other person at night, thus negating the degree of publicity required. The essence of grave scandal is publicity and that the acts committed are not only contrary to morals and good customs but must likewise be of such character as to cause public scandal to those witnessing it.
26
ART. 202. VAGRANTS AND PROSTITUTES Note: R.A. 10158 has decriminalaized vagrancy by amending Art. 202 to punish prostituties only. Upon effectivity, all pending cases shall be dismissed, and all those serving time for vagrancy shall be released. PROSTITUTES - Women who habitually indulge in (1) sexual intercourse or (2) lascivious conduct, for money or profit. SITUATION CRIME If fenced and with Trespass To Dwelling prohibition of entry Attempted Theft If Ffenced and entered to hunt/fish If nnot fenced and with no Vagrancy prohibition of entry
=======================================
PERSONS LIABLE: 1. MENDICANT MENDICANT Those with no visible and legal means of support, or lawful employment and physically able to work but neglects to apply himself to lawful calling and instead uses begging as means of living (higher penalty if convicted 2 or more times) 2. Any person who abets mendicancy by giving alms on public roads, sidewalks, parks and bridges except if given through organized agencies operating under regulations of Ministry of Public Information NOTE: 1. Giving alms through organized agencies operating under the rules and regulations of the Ministry of Public Information is not a violation of the Mendicancy Law. 2. A vagrant without visible means of support may become a mendicant if he uses begging as a means of living. 3. Under R.A. 9344 persons below eighteen (18) years of age shall be exempt from prosecution for the crime of vagrancy and prostitution under Section 202 of the Revised Penal Code, of mendicancy under Presidential Decree No. 1563, and sniffing of rugby under Presidential Decree No. 1619, such prosecution being inconsistent with the United Nations Convention on the Rights of the Child.
P.D. 1563.
NOTE: Public officers include every public servant from the lowest to the highest rank provided that they exercise public functions. A government laborer is not a public officer. However, temporary performance by a laborer of public functions makes him a public officer. ================================================
3. Bribery There must be evidence that the decision rendered is unjust. It is not presumed. Abuse of discretion or mere error of judgment cannot likewise serve as basis for rendering an unjust judgment in the absence of proof or an allegation of bad faith. ART. 205. JUDGMENT RENDERED THROUGH NEGLIGENCE ELEMENTS: 1. That the offender is a judge; 2. That he renders judgment in a case submitted to him for decision; 3. That the judgment is manifestly unjust; and 4. That it is due to inexcusable negligence or ignorance. MANIFESTLY UNJUST JUDGMENT manifestly contrary to law that even a person having meager knowledge of law cannot doubt the injustice. ART. 206. UNJUST INTERLOCUTORY ORDER ELEMENTS: 1. That the offender is a judge; and 2. That he performs any of the following acts: a. Knowingly renders an unjust interlocutory order or decree, or b. Renders a manifestly unjust interlocutory order or decree through inexcusable negligence or ignorance. INTERLOCUTORY ORDER - one issued by the court deciding a collateral or incidental matter; it is not a final determination of the issues of the action or proceeding ART. 207. MALICIOUS DELAY IN THE ADMINISTRATION OF JUSTICE ELEMENTS: 1. That the offender is a judge; 2. That there is a proceeding in his court; 3. That he delays the administration of justice; and 4. That the delay is malicious, that is, the delay is caused by the judge with deliberate intent to inflict damage on either party in the case. NOTE: Mere delay without malice is not punishable. ART. 208. PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE ACTS PUNISHABLE: 1. By maliciously refraining from instituting prosecution against violators of the law
SECTION
2.
BRIBERY
ART.
210.
DIRECT
BRIBERY
ACTS
PUNISHABLE:
1. By
agreeing
to
perform,
or
by
performing,
in
consideration
of
any
offer,
promise,
gift
or
present-
an
act
constituting
a
crime,
in
connection
with
the
performance
of
his
official
duties
Acceptance
of
the
offer
or
promise
is
enough
to
consummate
the
crime.
If
the
offer
is
not
accepted,
only
the
person
offering
the
gift
is
liable
for
attempted
corruption
of
a
public
officer.
gift
must
have
a
value
or
be
capable
of
pecuniary
estimation.
It
could
be
in
the
form
of
money,
property
or
services.
2. By
accepting
a
gift
in
consideration
of
the
execution
of
an
act
which
does
not
constitute
a
crime
in
connection
with
the
performance
of
his
official
duty
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
ELEMENTS:
1. That
the
offender
be
a
public
officer;
2. That
the
offender
accepts
an
offer
or
promise
or
receives
a
gift
or
present
by
himself
or
through
another;
3. That
such
offer
or
promise
be
accepted
or
gift/present
received
by
the
public
officer
-
a. With
a
view
to
committing
some
crime;
OR
b. In
consideration
of
an
execution
of
an
act
which
does
not
constitute
a
crime,
but
the
act
must
be
unjust;
OR
c. To
refrain
from
doing
something
which
is
his
official
duty
to
do;
4. That
the
act
which
the
offender
agrees
to
perform
or
which
he
executes
be
connected
with
the
performance
of
his
official
duties.
TEMPORARY
PERFORMANCE
OF
PUBLIC
FUNCTIONS
MAKE
THE
PERSON
A
PUBLIC
OFFICER
For
purposes
of
this
article,
temporary
performance
of
public
functions
is
sufficient
to
constitute
a
person
a
public
officer.
A
private
person
may
commit
this
crime
only
in
the
case
in
which
custody
of
prisoners
is
entrusted
to
him
BRIBERY
EXISTS
WHEN
THE
GIFT
IS:
1. Voluntarily
offered
by
a
private
person
2. Solicited
by
the
public
officer
and
voluntarily
delivered
by
the
private
person
2.
By maliciously tolerating the commission of offenses ELEMENTS OF DERELICTION OF DUTY IN THE PROSECUTION OF OFFENSES: 1. That the offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute offenses; 2. That there is dereliction of the duties of his office, that is, knowing the commission of the crime, he does not cause the prosecution of the criminal or knowing that a crime is about to be committed he tolerates its commission; 3. That the offender acts with malice and deliberate intent to favor the violator of the law. NOTE: 1. PREVARICACION is the negligence and tolerance in the prosecution of an offense. 2. There must be a duty on the part of the public officer to prosecute or move for the prosecution of the offender. However, a fiscal is under no compulsion to file an information based upon a complaint if he is convinced that the evidence before him is insufficient to warrant filing an action in court. 3. The crime must be proved first before an officer can be convicted of dereliction of duty. If the guilt of the law- violator is not proved, the person charged with the dereliction of duty is not liable. 4. Maliciously signifies deliberate evil intent; a dereliction of duty caused by poor judgment or honest mistake is not punishable. 5. A public officer who harbors, conceals, or assists in the escape of an offender, when it is his duty to prosecute him, is liable as principal in the crime of dereliction of duty in the prosecution of offenses. He is not an accessory. 6. If gift/promise is a consideration for his conduct, crime is direct bribery. ART. 209. BETRAYAL OF TRUST BY AN ATTORNEY OR SOLICITOR REVELATION OF SECRETS ACTS PUNISHABLE: 1. Causing damage to client either a. By any malicious breach of professional duty, or b. By inexcusable negligence or ignorance. - Damage is necessary 2. Revealing any of the secrets of his client learned by him in his professional capacity. - Damage is NOT necessary. 3. Undertaking the defense of the opposing party in the same case, without the consent of his 1st client, after having undertaken the defense of a client or having received confidential information from said client.
Solicited by the public officer but the private person delivers it out of fear of the consequences should the public officer perform his functions. The crime by the giver is not corruption of public officials due to his involuntariness. DIRECT BRIBERY, 3RD Par. PREVARICACION Both consist of omissions to do an act required to be performed. A gift or promise is given in Not necessary consideration of the omission ADDITIONAL ELEMENT FOURTH ELEMENT: The act which the public officer agrees to perform must be connected with the performance of official duties. It is enough that the act is part of the established procedure of a governmental agency. BRIBERY (ART. 210) ROBBERY (ART. 294) When the victim has When the victim did not committed a crime and gives commit a crime and he is money/gift to avoid arrest or intimidated with arrest prosecution. and/or prosecution to deprive him of his personal property. Victim parts with his money or Victim is deprived of his property voluntarily. money or property by force or intimidation. ART. 211. INDIRECT BRIBERY ELEMENTS: 1. That the offender is a public officer; 2. That he accepts gifts; and 3. That the said gifts are offered to him by reason of his office. NOTE: The article uses the words gift and not promise, and accept, not just receive. The gift is given in anticipation of future favor from the public officer. There must be clear intention on the part of the public officer to take the gift offered and consider the property as his own for that moment. Mere physical receipt unaccompanied by any other sign, circumstance or act to show such acceptance is not sufficient to convict the officer. There is no attempted or frustrated indirect bribery. DIRECT BRIBERY INDIRECT BRIBERY In both, public officer receives a gift. There is an agreement Usually no such agreement.
3.
between the public officer and the giver. Officer agrees to perform or refrain from doing an act.
Not necessary that the officer do an act, as long as he accepts gifts by reason of his office.
ART. 211-A. QUALIFIED BRIBERY ELEMENTS: 1. That the offender is a public officer entrusted with law enforcement; 2. That he refrains from arresting/ prosecuting an offender for crime punishable by reclusion perpetua and/or death and 3. In consideration of any offer, promise or gift. ART. 212. CORRUPTION OF PUBLIC OFFICIALS ELEMENTS: 1. That the offender makes offers or promises or gives gifts or presents to a public officer; and 2. That the offers or promises are made or the gifts or presents given to a public officer, under circumstances that will make the public officer liable for direct bribery or indirect bribery. NOTE: The offender is the giver of the gift or the offeror of the promise. The act may or may not be accomplished. Under PD 749, givers of bribes and other gifts as well as accomplices in bribery and other graft cases are immune from prosecution if they voluntarily give any information about any commission of direct, indirect, and qualified bribery, and any corruption of public officials, provided that: 1. The information must refer to consummated violations of any of the above-mentioned provisions of law, rules and regulations 2. Information and testimony are necessary for the conviction of the accused public officer, 3. Such information and testimony are not in possession of the State. 4. Such information and testimony can be corroborated on its material points 5. Informant or witness has not been previously convicted of a crime involving moral turpitude
compensation, even nominal, from the government RECEIVING ANY GIFT - includes the act of accepting directly or indirectly a gift from a person other than a member of the public officer's immediate family, in behalf of himself or of any member of his family or relative within the fourth civil degree, either by consanguinity or affinity, even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is under the circumstances manifestly excessive. PERSONS LIABLE: 1. Any public officer who shall perform any of the following acts: a. Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense. NOTE: Persuasion need not be successful. The gravamen of the offense is the persuasion. b. Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit for himself or for any other person in connection with any contract or transaction between the government and any other party wherein the public officer in his official capacity has to intervene under the law. c. Directly, or indirectly requesting or receiving any gift, present, or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given. d. Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. NOTE: The act is mala prohibita. e. Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage, or preference in the discharge of his official, administrative or judicial function through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
NOTE: The best defense is that the partiality was not manifest. That the partiality is manifest is a heavy burden on the prosecution. (Justice Peralta). Another defense is the Arias doctrine27. The defense applies in a case where the accused is an approving officer and is on trial for signing an unjust contract. The defense is that the approving officer relied on the prior signatures of his subordinates and had no reason to suspect wrong-doing and was swamped with a lot of documents on that day that he signed. There is no attempted or frustrated stage of the crime defined in Sec. 3(e) of R.A. No. 3019. f. Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. g. Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. NOTE: In determining whether the contract was manifestly and grossly disadvantageous, it is not merely consideration of the pecuniary amount involved. (Justice Peralta) h. Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or take part in his official capacity, or in which he is prohibited by the constitution or by any law from having any interest. NOTE: Actual intervention is required. Under the Code of Professional Conduct, the public officer MUST divest his interest. i. Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel, or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group. Interest for personal gain shall be presumed against those public officers responsible for the
27
approval of manifestly unlawful, inequitable or irregular transactions or acts by the board, panel, or group to which they belong. j. Knowingly approving or granting any license, permit, privilege, or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege, or advantage, or of a mere representative or dummy of one who is not so qualified or entitled. k. Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. 2. Any person having family or close personal relation with any public official who shall capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift, or material, or pecuniary advantage from any person having some business, transaction, application, request, or contract with the government in which such public official has to intervene (Sec. 4) 3. Any person who shall knowingly induce or cause any public official to commit any of the offenses under (A). (Sec. 4) 4. Spouse or any relative, by consanguinity or affinity, within the 3rd civil degree, of the President of the Philippines, the Vice-President, the President of the Senate, or Speaker of the House of Representatives, who shall intervene, directly or indirectly, in any business transaction, contract or application with the government. NOTE (EXCEPTIONS): This prohibition shall NOT apply to: 1. Any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the government along the same line of business or any transaction, contract or application already existing or pending at the time of such assumption of public office; 2. Any application filed by him, the approval of which is not discretionary on the part of the official(s) concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law; 3. Any act lawfully performed in an official capacity or in the exercise of a profession. (Sec. 5) 4. Any member of Congress, during the term for which he has been elected, who shall acquire or receive any personal pecuniary interest in any specific business enterprise which shall be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by Congress during his term.
5. Any public officer who recommended the initiation in Congress of the enactment or adoption of any law or resolution and acquires or receives such interest during his incumbency. NOTE: Unlawful for such member of Congress or other public officer, who, having such interest prior to the approval of such law or resolution authored or recommended by him, continues for 30 days after such approval to retain such interest. 6. Any public officer who shall fail to file a true, detailed and sworn statement of assets and liabilities (SALN) within 30 days after assuming office and thereafter on or before the 15th day of April following the close of every calendar year, as well as upon the expiration of his term of office, or upon his resignation or separation from office (Sec. 7). Prima facie evidence of and dismissal due to unexplained wealth (Sec. 8) 1. If a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income. 2. Properties in the name of the spouse and dependents of such public official may be taken into consideration, when their acquisition through legitimate means cannot be satisfactorily shown. 3. Bank deposits in the name of or manifestly excessive expenditures incurred by the public official, his spouse or any of their dependents including but not limited to activities in any club or association or any ostentatious display of wealth including frequent travel abroad of a non-official character by any public official when such activities entail expenses evidently out of proportion to legitimate income. NOTE: Competent court is the Sandiganbayan (Sec. 10). GENERAL RULE: Prescriptive period is 15 years (Sec. 11). EXCEPTIONS: Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude of friendship according to local customs or usage, shall be excepted from the provisions of this act (Sec. 14). NOTE: - No public officer shall be allowed to resign or retire pending an investigation. - Suspension while pending in court after valid information (cannot be automatic), and loss of benefits if convicted by final judgment; maximum duration of preventive suspension is 90 days; acquittal reinstatement and salaries and benefits which he failed to receive
NOTE:
Mere
demand
of
a
larger
or
different
amount
is
sufficient
to
consummate
the
crime.
The
essence
is
the
improper
collection
and
damage
to
the
government
is
not
required.
If
sums
are
received
without
demanding
the
same,
a
felony
under
this
article
is
not
committed.
However,
if
the
sum
is
given
as
a
sort
of
gift
or
gratification,
the
crime
is
indirect
bribery.
When
there
is
deceit
in
demanding
larger
fees,
the
crime
committed
is
estafa.
This
felony
may
be
complexed
with
malversation.
Ex.
A
tax
collector
who
collected
a
sum
larger
than
that
authorized
by
law
and
spent
all
of
them
is
guilty
of
two
crimes,
namely:
(1)
illegal
exaction,
for
demanding
a
greater
amount;
and
(2)
malversation
for
misappropriating
the
amount
collected.
Officers
and
employees
of
the
BIR
or
Customs
are
not
covered
by
this
article,
since
they
are
covered
by
the
NIRC
or
the
Administrative
Code.
ART.
214.
OTHER
FRAUDS
ELEMENTS:
1. That
the
offender
is
a
public
officer;
2. That
he
takes
advantage
of
his
official
position;
and
3. That
he
commits
any
of
the
frauds
or
deceits
enumerated
in
art.
315
and
316.
(estafa,
swindling)
NOTE:
The
penalty
under
this
Article
is
in
addition
to
the
penalties
prescribed
in
the
articles
violated
ART
215.
PROHIBITED
TRANSACTIONS
ELEMENTS:
1. That
the
offender
is
an
appointive
public
officer;
2. That
he
becomes
interested,
directly
or
indirectly,
in
any
transaction
of
exchange
or
speculation;
3. That
the
transaction
takes
place
within
the
territory
subject
to
his
jurisdiction;
and
4. That
he
becomes
interested
in
the
transaction
during
his
incumbency.
NOTE:
The
transaction
must
be
of
exchange
or
speculation.
Examples
of
transactions
of
exchange
or
speculation
are
buying
and
selling
stocks,
commodities,
land,
etc.
wherein
one
hopes
to
take
advantage
of
an
expected
rise
or
fall
in
price
for
gain
or
profit
and
not
merely
as
investment
Purchasing
of
stocks
or
shares
in
a
company
is
simple
investment
and
not
a
violation
of
the
article.
However,
regularly
buying
securities
for
resale
is
speculation.
- The courts are not bound by the statement of assets and liabilities filed. - Penalty of forfeiture cannot be applied retroactively.
=================================================
================================================= ART. 213. FRAUDS AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES A. FRAUDS AGAINST PUBLIC TREASURY ELEMENTS: 1. That the offender be a public officer; 2. That he should have taken advantage of his office, that is, he intervened in the transaction in his official capacity; 3. That he entered into an agreement with any interested party or speculator or made use of any other scheme with regard to (a) furnishing supplies (b) the making of contracts, or (c) the adjustment or settlement of account relating to a public property or funds; and 4. That the accused had intent to defraud the government. NOTE: The public officer must act in his official capacity. The felony is consummated by merely entering into an agreement with any interested party or speculator or by merely making use of any scheme to defraud the Government. B. ILLEGAL EXACTIONS ELEMENTS: 1. The offender is a public officer entrusted with the collection of taxes, licenses, fees and other imposts; and 2. That he is guilty of any of the following acts or omissions; a. Demanding, directly or indirectly the payment of sums different from or larger than those authorized by law, or b. Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially, or c. Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature different from that provided by law.
ART. 216. POSSESSION OF PROHIBITED INTERESTS BY A PUBLIC OFFICER PERSONS LIABLE: 1. Public officer who became interested in any contract or business in which it is his official duty to intervene. 2. Experts, arbitrators and private accountants who took part in any contract or transaction connected with the estate or property in the approval, distribution or adjudication of which they had acted. 3. Guardians and executors with respect to property belonging to their wards or the estate. NOTE: Actual fraud is not necessary. Intervention must be by virtue of public office held. Act is punished because of the possibility that fraud may be committed or that the officer may place his own interest above that of the Government or of the party which he represents. Constitutional prohibitions exist Congress: cannot personally appear as counsel;, cannot be interested financially in any franchise or special privilege granted by government; cannot intervene in any matter before office of Government Executive cannot hold any other office Constitutional Commissions cannot hold any other office, or engage in practice of profession or management of business, or be financially interested in a contract with or franchise/privilege by the government
ILL-GOTTEN WEALTH: Any asset, property, business enterprise or material possession of any person acquired by him directly or indirectly through dummies, nominees, agents, subordinates, and/or business associates by any combination or series of the following means or similar schemes: A. Through misappropriation, conversion, misuse or malversation of public funds or raids on the public treasury. B. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; C. By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government
or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries; D. By obtaining, receiving or accepting, directly or indirectly, any shares of stock, equity or any other form of interest or participation, including the promise of future employment in any business enterprise or undertaking. E. By establishing agricultural, industrial or commercial monopolies or other combinations, and/or implementation of decrees and orders intended to benefit particular persons or special interests; F. By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage or prejudice of the Filipino people and the Republic of the Philippines. PLUNDER IS A CRIME OF MALUM IN SE Plunder is a crime of malum in se because the constitutive crimes are mala in se. The elements of mens rea must be proven in a prosecution for plunder. The legislative declaration in R.A. 7659 that plunder is a heinous offense implies that it is malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se and it does not matter that such acts are punished in a special law. PERSONS LIABLE: A. Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates and subordinates or other persons, amasses, accumulates, or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described under above in the aggregate amount or total value of at least 50 MILLION PESOS, shall be guilty of the crime of plunder (as amended by RA 7659). B. Any person who participated with the said public officer in the commission of plunder. JURISDICTION: Sandiganbayan RULE OF EVIDENCE: For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. PRESCRIPTION: 20 years. However, the right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees shall not be barred by prescription, laches or estoppel. COMBINATION, refers to at least two (2) acts falling under different categories of enumeration provided in sec. 1, par. (d).
Example: raids on the public treasury in sec. 1, par. (d), and fraudulent conveyance of assets belonging to the national government under sec. 1 par. (d), subpar. (3). SERIES refer to two (2) or more overt or criminal acts falling under the same category of enumeration found in sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all of which falls under sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for combination and series, it would have taken greater pains in specially providing for it in the law.28
testimony, forged document or spurious evidence in any investigation or hearing under this Act. Damages for Unproven Charge of Terrorism. - Upon acquittal, any person who is accused of terrorism shall be entitled to the payment of damages in the amount of P500,000.00 for every day that he or she has been detained or deprived of liberty or arrested without a warrant as a result of such an accusation. This is without prejudice to the right of the acquitted accused to file criminal or administrative charges against those responsible for charging him with the case of terrorism. Any officer, employee, personnel, or person who delays the release or refuses to release the amounts awarded to the individual acquitted of the crime of terrorism shall suffer the penalty of six (6) months of imprisonment. (Sec 48)
=================================================
28
================================================= ART. 217. MALVERSATION OF PUBLIC FUNDS OR PROPERTY ELEMENTS: 1. That the offender be a public officer (or private person if entrusted with public funds or if in connivance with public officers); 2. That he had the custody or control of funds or property (if not accountable for the funds, crime committed is theft or qualified theft); 3. That those funds or property were public funds or property (even if private funds, they become public if attached, seized, deposited or commingled with public funds); and 4. That he: a. Appropriated the funds or property b. Took or misappropriated them c. Consented or, through abandonment or negligence, permitted any other person to take such public funds or property. NOTES: 1. It is not necessary that the offender profited by his malversation. His being remiss in the duty of safekeeping public funds violates the trust reposed. 2. Public funds taken need not be misappropriated. 3. It can be committed either with malice or through negligence or imprudence although the penalty is the same. Negligence of the accountable public officer must be positively and clearly shown to be inexcusable. 4. In determining whether the offender is a public officer, what is controlling is the nature of his office and not
the designation - contemplates public officer who receives money or property from government for which he is bound to account, must have authority to collect or receive 5. The funds or property must be received in an official capacity. Otherwise, the crime committed is estafa. CIRCUMSTANCES MAKING A PRIVATE INDIVIDUAL LIABLE 1. when they are in conspiracy with public officers; and 2. when they have charge of national, provincial or municipal funds, revenues or property in any capacity. 3. Those who are accessory or accomplice to a public officer 4. Depository or administrator of public funds or property NOTES 1. When malversation is not committed through negligence, lack of criminal intent or good faith is a defense. 2. The failure of a public officer to have any duly forthcoming public funds or property upon demand, by any authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. However, if at the very moment when the shortage is discovered, the accountable officer is notified, and he immediately pays the amount from his pocket, the presumption does not arise. 3. Returning the embezzled funds is not an exempting circumstance but only mitigating. 4. A person whose negligence made possible the commission of malversation by another can be held liable as a principal by indispensable cooperation. MALVERSATION (ART. 217) ESTAFA WITH ABUSE OF CONFIDENCE (ART. 315) Funds or property usually Funds/property are always public private Offender is usually a public Offender is a private officer who is accountable individual or even a public for the public officer who is not funds/property accountable for public funds/property Crime is committed by Crime is committed by appropriating, taking, or misappropriating, misappropriating/consentin converting, or denying g, or through abandonment having received money, or negligence, permitting goods or other personal any other person to take the property public funds/property The fact that the obligation to deposit the collections of the City Treasurer's Office is not covered by appellant's official job description is of no legal consequence in a prosecution for Malversation. What is essential is that
appellant had custody or control of public funds by reason of the duties of his office29. ART. 218. FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNT FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNT ELEMENTS: 1. That the offender is a public officer, whether in the service or separated therefrom; 2. That he must be an accountable officer for public funds or property; 3. That he is required by law or regulation to render accounts to the Commission on Audit, or to a provincial auditor; and 4. That he fails to do so for a period of two months after such accounts should be rendered. NOTE: Demand and misappropriation are not necessary. ART. 219. FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY ELEMENTS: 1. That the offender is a public officer; 2. That he must be an accountable officer for public funds or property; and 3. That he must have unlawfully left (or be on the point of leaving) the Philippines without securing from the Commission on Audit a certificate showing that his accounts have been finally settled. NOTE: The act of leaving the Philippines must be unauthorized or not permitted by law. ART. 220. ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY ELEMENTS OF TECHNICAL MALVERSATION: 1. That the offender is a public officer; 2. That there is public fund or property under his administration; 3. That such public fund or property has been appropriated by law or ordinance (without this, it is simple malversation); and 4. That he applies the same to a public use other than for which such fund or property has been appropriated by law or ordinance. NOTE: To distinguish this article with Art 217 (malversation), in illegal use of public funds or property, the offender
29
does not derive any personal gain, the funds are merely devoted to some other public use. Absence of damage is only a mitigating circumstance. ILLEGAL USE OF MALVERSATION FUNDS OR PROPERTY (ART. 217) (ART. 220) Offender is an accountable public officers. Offender does not derive Offender in certain cases any personal gain or profit. profits from the proceeds of the crime. The public fund or The public fund or property property is applied to is applied to personal use. another public use. ART. 221. FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY ACTS PUNISHABLE: 1. By failing to make payment by a public officer who is under obligation to make such payment from Government funds in his possession 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 (must be malicious) ELEMENTS OF FAILURE TO MAKE PAYMENT: 1. That the public officer has government funds or property in his possession. 2. That he is under obligation to either: a. make payment from such funds, or b. to deliver property in his custody or administration when ordered by competent authority; and 3. That he maliciously fails or refuses to do so. NOTE: Penalty is based on value of funds/property to be delivered. ART. 222. OFFICERS INCLUDED IN THE PRECEDING PROVISIONS PERSONS LIABLE UNDER ART. 217 TO 221: 1. Private individual who, in any capacity, have charge of any national, provincial or municipal funds, revenue, or property. Example: a withholding tax agent 2. Administrator or depositary of funds or property that has been attached, seized or deposited by public authority, even if owned by a private individual. NOTE: Sheriffs and receivers fall under the term administrator
Judicial administrator not covered by this article.(Appointed to administer estate of deceased and not in charge of property attached, impounded or placed in deposit by public authority) Private property is included if it is attached, seized or deposited by public authority.
=================================================
ART. 223. CONNIVING WITH OR CONSENTING TO EVASION ELEMENTS: 1. That the offender is a public officer (on duty); 2. That he is charged with the conveyance or custody of a prisoner, either detention prisoner or prisoner by final judgment; 3. That such prisoner escaped from his custody; and 4. That he was in connivance with the prisoner in the latters escape. DETENTION PRISONER - A person becomes a detention prisoner from the moment he is booked. This refers to the accomplishment of the booking sheet and filling out of a form where he is finger printed. From that time on, he is already a detention prisoner even if he is not yet incarcerated. The release of a detention prisoner who could not be delivered to judicial authorities within the time fixed by law is not infidelity in the custody of a prisoner. Neither is mere leniency or laxity in the performance of duty constitutes of infidelity. There is real and actual evasion of service of sentence when the custodian permits the prisoner to obtain a relaxation of his imprisonment. ART. 224. EVASION THROUGH NEGLIGENCE ELEMENTS: 1. That the offender is a public officer; 2. That he is charged with the conveyance or custody of a prisoner, either detention prisoner or prisoner by final judgment; and 3. That such prisoner escapes through his negligence. NOTE: The article punishes a definite laxity which amounts to deliberate non-performance of a duty.
The fact that the public officer recaptured the prisoner who had escaped from his custody does not afford him complete exculpation. The liability of an escaping prisoner: a. if he is a prisoner by final judgment, he is liable for evasion of service (Art. 157) b. if he is a detention prisoner, he does not incur criminal liability (unless he cooperated with the offender). The negligent public officer suffers the same penalty regardless of whether the prisoner is a convict or merely a detention prisoner.
ART. 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; (He has custody) 3. That the prisoner or person under arrest escapes; and 4. That the offender consents to the escape of the prisoner or person under arrest, or that the escape takes place through his negligence. NOTE: This article is not applicable if a private person made the arrest and he consented to the escape of the person he arrested.
Removal of a document or paper must be for an illicit purpose. There is illicit purpose when the intention of the offender is to: a. tamper with it, b. to profit by it, or c. to commit any act constituting a breach of trust in the official care thereof. Removal is consummated upon removal or secreting away of the document from its usual place. It is immaterial whether or not the illicit purpose of the offender has been accomplished. Infidelity in the custody of documents through destruction or concealment does not require proof of an illicit purpose. Delivering the document to the wrong party is infidelity in the custody thereof. ART. 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; and 4. That he breaks the seals or permits them to be broken. It is the breaking of the seals and not the opening of a closed envelope which is punished. Damage or intent to cause damage is not necessary; damage is presumed. ART. 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; and 4. That he does not have proper authority. NOTE: Damage is not necessary.
3.
That he reveals such secret without authority or justifiable reasons; and 4. That damage, great or small, be caused to the public interest. Secret must affect public interest not secrets of a private individual. Espionage for the benefit of another State is not contemplated by the article. If regarding military secrets or secrets affecting state security, the crime may be espionage. ELEMENTS OF PAR. 2 (WRONGFULLY DELIVERING PAPERS OR COPIES OF PAPERS OF WHICH HE MAY HAVE CHARGE AND WHICH SHOULD NOT BE PUBLISHED): 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. NOTE: CHARGE means custody or control. If he is merely entrusted with the papers and not with the custody thereof, he is not liable under this article. If the papers contain secrets which should not be published, and the public officer having charge thereof removes and delivers them wrongfully to a third person, the crime is revelation of secrets. On the other hand, if the papers do not contain secrets, their removal for an illicit purpose is infidelity in the custody of documents. Damage is essential to the act committed. ART. 230. PUBLIC OFFICER REVEALING SECRETS OF PRIVATE INDIVIDUAL ELEMENTS: 1. That the offender is a public officer; 2. That he knows of the secret of a private individual by reason of his office; and 3. That he reveals such secrets without authority or justifiable reason. NOTE: Revelation to one person is sufficient. If the offender is an attorney, he is properly liable under Art. 209 (betrayal of trust by an attorney). Damage to private individual is not necessary.
CRIMINAL
LAW
REVIEWER
Page 60 of 129
ART. 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 discharge the duties of said office; 3. That there is no legal motive for such refusal to be sworn in or to discharge the duties of said office. If the elected person is disqualified, his refusal to be sworn in or to discharge the duties of the office is justified. Refusal to discharge the duties of an appointive office is not covered by this article. ART. 235. MALTREATMENT OF PRISONERS ELEMENTS: 1. That the offender is a public officer or employee; 2. That he has charge of a prisoner or detention prisoner (otherwise the crime is physical injuries); and 3. That he maltreats such prisoner in either of the following manners: a. by overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge either i. by the imposition of punishments not authorized by the regulations, or ii. by inflicting such punishments (those authorized) in a cruel and humiliating manner, or b. by maltreating such prisoner to extort a confession or to obtain some information from the prisoner. NOTE: The public officer must have actual charge of the prisoner in order to be held liable (not merely by legal fiction). Offended party must be a: a) convict by final judgment, or b) detention prisoner. Maltreatment should not be due to personal
grudge,
otherwise,
liable
for
physical
injuries
only.
Offender
may
also
be
held
liable
for
physical
injuries
or
damage
caused.
(Penalty
provided
in
Article
235
is
imposed
in
addition
to
penalty
for
injury
or
damage
caused)
SECTION 2. ANTICIPATION, PROLONGATION AND ABANDONMENT OF THE DUTIES AND POWERS OF PUBLIC OFFICE ART. 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; and 4. That he has not taken his oath of office and/or given the bond required by law. ART. 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; and 3. That he continues to exercise the duties and powers of such office. NOTE: Officers contemplated: those who have been suspended, separated, declared over-aged or dismissed. ART. 238. ABANDONMENT OF OFFICE OR POSITION ELEMENTS: 1. That the offender is a public officer; 2. That he formally resigns from his position; 3. That his resignation has not yet been accepted; and 4. That he abandons his office to the detriment of the public service. There must be formal or written resignation. The offense is qualified if the purpose behind the abandonment is to evade the discharge of duties consisting of preventing, prosecuting or punishing any of the crimes against national security (e.g. treason, espionage), in which case, the penalty is higher. ABANDONMENT OF OFFICE DERELICTION OF DUTY OR POSITION (ART. 238) (ART. 208) Committed by any public Committed only by public officer officers who have the duty to institute prosecution There is actual abandonment Public officer does not through resignation to evade abandon his office but the discharge of duties. merely fails to prosecute a
3.
ELEMENTS:
1. That
the
offender
is
an
officer
of
the
executive
branch
of
the
government;
and
2. That
he
(a)
assumes
judicial
powers,
or
(b)
obstructs
the
execution
of
any
order
or
decision
rendered
by
any
judge
within
his
jurisdiction.
ART.
242.
DISOBEYING
REQUEST
FOR
DISQUALIFICATION
ELEMENTS:
1. That
the
offender
is
a
public
officer;
2. That
a
proceeding
is
pending
before
such
public
officer;
3. That
there
is
a
question
brought
before
the
proper
authority
regarding
his
jurisdiction,
which
is
not
yet
decided;
4. That
he
has
been
lawfully
required
to
refrain
from
continuing
the
proceeding;
and
5. That
he
continues
the
proceeding.
ART.
243.
ADDRESSING
ORDERS
OR
REQUESTS
BY
EXECUTIVE
OFFICER
TO
ANY
JUDICIAL
AUTHORITY
ELEMENTS:
1. That
the
offender
is
an
executive
officer;
2. That
he
addresses
any
order
or
suggestion
to
any
judicial
authority;
and
That the order or suggestion relates to any case or business coming within the exclusive jurisdiction of the courts of justice. NOTE: Legislative or judicial officers are not liable under this article. ART. 244. UNLAWFUL APPOINTMENTS ELEMENTS: 1. That the offender is a public officer; 2. That he nominates or appoints a person to a public office; 3. That such person lacks the legal qualification therefor; and 4. That the offender knows that his nominee or appointee lacks the qualification at the time he made the nomination or appointment. NOTE: Mere recommending, even if with the knowledge that the person recommended is not qualified, is not a crime. He must nominate. There must be a law providing for the qualifications of a person to be nominated or appointed to a public office.
b. c.
under the custody of the offender who is a warden or other public officer directly charged with care and custody of prisoners or person under arrest, or the wife, daughter, sister or relative within the same degree by affinity of the person in the custody of the offender.
NOTE: The mother of the person in the custody of the public officer is not included. To solicit means to propose earnestly and persistently something unchaste and immoral to a woman. The crime is consummated by mere proposal. Proof of solicitation is not necessary when there is sexual intercourse.
================================================
SECTION ONE - PARRICIDE, MURDER, HOMICIDE ART. 246. PARRICIDE ELEMENTS: 1. That a person is killed; 2. That the deceased is killed by the accused; 3. That the deceased is the a. father, mother, or child, whether legitimate or illegitimate, or b. legitimate other ascendant or other descendant, or
c. legitimate spouse of the accused. RELATIONSHIP OF THE OFFENDER WITH THE VICTIM IS THE ESSENTIAL ELEMENT 1. Required to determine legitimacy of relationship 2. The following are excluded (i.e., the accused will not be guilty of parricide) ALAIC a. Adoptive relationship (adopting parent-adopted child) b. Child less than 3 days old (infanticide) c. Relationship by affinity (in-laws) d. Illegitimate other ascendant/descendant e. Common-law spouse NOTES: 1. Relationship must be alleged and proved. If not alleged, it can only be considered as an ordinary aggravating circumstance. 2. Punished by reclusion perpetua to death 3. Only relatives by blood and in direct line (except spouse) are considered 4. Marriages among Muslims or among members of ethnic cultural communities recognized (Art. 33, Family Code) 5. Parricide through reckless imprudence a. Reckless imprudence punished by arresto mayor in its max. period to prision correccional in its med. period b. Simple imprudence or negligence punished by arresto mayor in its med.-max. periods 6. Parricide by mistake: exists because knowledge of relationship is not required in parricide 7. Parricide by omission (in relation to Art. 276, 2nd par. Abandoning a minor) 8. Stranger cooperating in parricide is only guilty of homicide or murder, as the case may be. PARRICIDE IS NOT PUNISHABLE BY RECLUSION PERPETUA TO DEATH WHEN: 1. It is committed through negligence (Art. 365) 2. Committed by mistake (Art. 249) 3. Committed under exceptional circumstances (Art. 247) ART. 247. DEATH OR PHYSICAL INJURIES INFLICTED UNDER EXCEPTIONAL CIRCUMSTANCES ELEMENTS: 1. A legally married person or parent surprises his spouse or daughter (the latter must be under 18 and living with them) in the act of committing sexual intercourse with another person;
2. 3.
He/she kills any or both of them or inflicts upon any or both of them any serious physical injury in the act or immediately thereafter; and He has not promoted or facilitated the prostitution of his wife or daughter, or that he has not consented to the infidelity of the other spouse.
NOTE: The article does not define a crime but grants a singular mitigating circumstance and provides for the penalty of destierro (as a form of protection for the accused) instead of the severe penalty prescribed for parricide, homicide, or physical injuries DEFINITIONS: 1. Legally married excludes common-law relationship 2. Legitimacy of parent not required, as long as a. Daughter is minor, unmarried and living with her parents 3. Surprise means to come up suddenly and unexpectedly 3. In the act of committing sexual intercourse with another person is satisfied if circumstances show reasonably that the carnal act is being committed or has just been committed 4. Immediately thereafter means the discovery, escape, pursuit and the killing must all form parts of one continuous act JUSTIFICATION FOR ART. 247: BURST OF PASSION The killing must be the proximate result of the outrage overwhelming the accused; and not influenced by external factors PHYSICAL INJURIES MUST BE SERIOUS If the physical injuries are less serious or slight, it is an absolutory cause, thus no criminal liability NOTES: Both wives and husbands are entitled to the benefits of this article Sexual intercourse does not include preparatory acts No criminal liability if physical injuries are inflicted upon third persons (i.e., those other than the wife/daughter and the paramour)
ART.
248.
MURDER
ELEMENTS:
1. That
a
person
is
killed;
2. That
the
deceased
is
killed
by
the
accused
3. That
the
killing
was
attended
by
any
of
the
following
qualifying
circumstances:
with treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity, b. in consideration of price, reward or promise, c. by means of inundation, fire, poison, explosion, shipwreck, stranding of vessel, derailment or assault upon a street car or locomotive, fall of airship, by means of motor vehicles or with the use of any other means involving great waste or ruin, d. on occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or any other public calamity, e. with evident premeditation, or f. with cruelty, by deliberately and inhumanely augmenting the suffering of the victim or outraging or scoffing at his person or corpse; and 4. The killing is not parricide or infanticide. Murder is the unlawful killing of any person, which is not parricide or infanticide, provided that any of the enumerated circumstances are present NOTES: 1. Intent to kill essential in all circumstances EXCEPT treachery 2. punished by reclusion perpetua to death 3. victim must be killed in order to consummate the crime; if victim IS NOT killedeither attempted or frustrated murder 4. Treachery present when the act constituting the felony is sudden and unexpected to the point of incapacitating the victim to repel or escape it The means, methods, or form of attack must be consciously adopted by the offender Present when an adult person attacks a child of tender years 5. Not enough that superior strength is present; it must be taken advantage of Also applies when act is committed on occasion of a public calamity 6. Armed men must take part in the commission of the crime directly or indirectly Accused must avail himself of their aid or rely upon them 7. Person who received the price, reward, or promise is a principal by direct participation; person who gave such price, reward, or promise is a principal by induction. BOTH are guilty of murder. 8. Treachery and premeditation are inherent in murder by poison, and thus, cannot be considered as aggravating.
a.
RULES FOR APPLICATION OF QUALIFYING CIRCUMSTANCES 1. Murder will exist with only one of the circumstances; others must be considered as generic aggravating 2. When other circumstances are absorbed or included in one qualifying circumstance, they cannot be considered as generic aggravating 3. Any of the circumstances must be alleged in order to qualify the crime to murder - Otherwise, it is only a generic aggravating OUTRAGING OR SCOFFING AT HIS PERSON OR CORPSE: QUALIFYING CIRCUMSTANCE NOT MENTIONED IN ART. 14 1. Outraging: to commit an extremely vicious or deeply insulting act 2. Scoffing: to jeer, implies a showing of irreverence ART. 249. HOMICIDE ELEMENTS: 1. That a person was killed; 2. That the accused killed him without any justifying circumstances; 3. That the accused had the intention to kill, which is presumed; and 4. That the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide NOTES: 1. Homicide is the unlawful killing of any person, which is neither parricide, murder, nor infanticide 2. Consummated when victim is killed; otherwise, attempted or frustrated 3. Presumption of intent to kill a. With respect to crimes of personal violence, the penal law looks particularly to the material results following the unlawful act and holds the aggressor responsible for all the consequences thereof. b. Evidence of intent to kill is important only in attempted or frustrated homicide i. Intent to kill is conclusively presumed when the victim dies ii. Generally shown by the kind of weapon used, the parts of the victims body at which it was aimed, and by the wounds inflicted But purpose of the accused may also be considered iii. The element of intent to kill is incompatible with imprudence or negligence Intent to kill must be proved beyond reasonable doubt iv. No attempted or frustrated homicide through imprudence or negligence; crime
would be physical injuries through reckless imprudence As an exception, see Accidental homicide (item 6) 4. When two different persons inflicted the wounds which caused the death, both are guilty of homicide a. The burden to prove otherwise is on each of the defendants b. Proof of conspiracy is not necessary c. Also applies when it was not shown which wounds were inflicted by each person 5. When defense is not allowed to exculpate a. Refusal of victim to be operated b. When the act of mortally wounding and the fact of suicide by the victim concur 6. Use of unlicensed firearm is considered as an aggravating circumstance and not as a separate crime 7. Punished by reclusion temporal ACCIDENTAL HOMICIDE is the death of a person brought about by a lawful act performed with proper care and skill, and without homicidal intent E.g. If in a game, the rules have been violated and death resulted, determine intent to kill: i. If with intent to kill, it is intentional homicide ii. If without intent to kill, it is homicide through negligence CORPUS DELICTI In all crimes against persons in which the death of the victim is an elements of the offense, there must be satisfactory evidence of 1. The fact of death, and 2. The identity of the victim - does not refer to the body of the victim but to the actual commission of the crime charged ART. 250. PENALTY FOR FRUSTRATED PARRICIDE, MURDER, OR HOMICIDE Courts may impose a penalty two degrees lower for frustrated parricide, murder or homicide. Courts may impose a penalty three degrees lower for attempted parricide, murder or homicide. This rule is permissivenot mandatory An attempt on, or a conspiracy against, the life of the Chief Executive, etc., is punishable by death. ART. 251. DEATH CAUSED IN A TUMULTUOUS AFFRAY ELEMENTS 1. That there be several persons;
2.
That they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; 3. That these several persons quarrelled and assaulted one another in a confused and tumultuous manner; 4. That someone was killed in the course of the affray; 5. That it cannot be ascertained who actually killed the deceased; and 6. That the person or persons who inflicted serious physical injuries or who used violence can be identified. NOTES: 1. TUMULTUOUS AFFRAY a. Tumultuous (as used in Art. 153) means that the disturbance is caused by at least four persons who are armed or are provided with means of violence b. There must be no unity of purpose oand intention among the persons who used violence 2. PERSONS LIABLE: a. Person or persons who inflicted serious physical injuries b. If it is not known who inflicted serious physical injuries on the deceased, all persons who used violence upon the person of the victim 3. When there are 2 identified groups of men who assaulted each other, there is no tumultuous affray. 4. The person killed need not be a participant in the affray. 5. Does not apply when the person who inflicted the fatal wound is known; in that case, the crime will be homicide under Art. 249. ART. 252. PHYSICAL INJURIES INFLICTED IN A TUMULTUOUS AFFRAY ELEMENTS 1. That there is a tumultuous affray as referred to in the preceding article; 2. That a participant or some participants thereof suffer serious physical injuries or physical injuries of a less serious nature only; 3. That the person responsible therefor cannot be identified; and 4. That all those who appear to have used violence upon the person of the offended party are known. NOTES: 1. Persons liable: Only those who have used violence on the person of the offended party. Penalty will be one degree lower than that provided for the physical injury inflicted 2. Injured party must be a participant of the tumultuous affray (as opposed to the preceding article
3.
4. ART. 253. GIVING ASSISTANCE TO SUICIDE ACTS PUNISHABLE: 1. Assisting another to commit suicide, whether the suicide is consummated or not. 2. Lending his assistance to another to commit suicide to the extent of doing the killing himself. NOTES: 1. If the suicide is not consummated a. For the first punishable act: arresto mayor in its medium and maximum periods b. For the second punishable act: one or two degrees lower than that provided for consummated suicide 2. An attempt to commit suicide is an act, but it is not punishable by law a. A person who attempts to commit suicide is not criminally liable. b. A pregnant woman who tried to commit suicide by means of poison but instead of dying, the fetus in her womb was expelled, is not liable for abortion i. in order to incur criminal liability for the result not intended, one must be committing a felony ii. unintentional abortion is punishable only when it is caused by violence, not by poison (Art. 257) 3. Assistance to suicide is different from mercy-killing a. Euthanasia or mercy-killing is the practice of painlessly putting to death a person suffering from some incurable disease. In this case, the person does not want to die. A doctor who resorts to euthanasia may be held liable for murder ART. 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. NOTES: 1. The offender must shoot at another with any firearm without intention of killing him a. The purpose of the offender may be to intimidate or frighten the offended party b. If the firearm is not discharged at a person, the act is not punished under this article c. A discharge towards the house of the offended party, not knowing in what part of the house the people inside were, is only alarm under Art. 155.
If the one who caused physical injuries is known, he will be liable for physical injuries actually committed. Slight physical injuries not included
d.
2. 3.
It is sufficient that the gun was initially aimed at or against the offended party, even if it was not pointed at the offended party when it fired e. If theres intent to kill, it may be frustrated or attempted parricide, murder, or homicide Essential to prove that the discharge of firearm was directed precisely against the offended party if the illegal discharge inflicts serious or less serious physical injuries to the offended party, there will be a complex crime of illegal discharge of firearm w/ serious or less serious physical injuries
SECTION TWO - INFANTICIDE AND ABORTION ART. 255. INFANTICIDE ELEMENTS: 1. That a child was killed; 2. That the deceased child was less than three days (72 hours) of age; and 3. That the accused killed the said child. Infanticide is the killing of any child less than three days of age, whether the killer is parent or grandparent, any other relative of the child, or a stranger NOTES: 1. The child must be born alive and can sustain an independent life when it is killed a. Burden of proof is upon the prosecution 2. Penalty is that of either parricide or murder, depending on the relationship of the accused with the victim 3. Mitigating circumstance of concealing dishonor a. Applicable only to the mother and maternal grandparents b. Delinquent mother must be of good reputation ART. 256. INTENTIONAL ABORTION ELEMENTS: 1. That there is a pregnant woman; 2. That any of the following ways is committed a. violence is exerted, or b. drugs or beverages administered, without violence upon and without consent of the pregnant woman, or c. drugs or beverages administered, with the consent of the 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; 4. That the abortion is intended
ABORTION is the wilful killing of the foetus in the uterus, or the violent expulsion of the foetus from the maternal womb which results in the death of the foetus NOTES: 1. Foetus must die in consummated abortion; otherwise, determine if there is intent to abort a. If with intention, frustrated intentional abortion b. If without intention, physical injuries 2. When infanticide (as opposed to abortion): if the foetus a. Could sustain an independent life, after separation from maternal womb, and b. Is killed 3. The person who intentionally caused the abortion is liable a. If the woman/mother permitted, she will be liable under Art. 258; otherwise, she is not liable ART. 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 NOTES: 1. Can only be committed by violence a. Violence or actual physical force (as opposed to threats or mere administering of substance with no intention to commit abortion) must be used 2. Intention may be inferred from the condition of the pregnant woman (i.e. whether pregnancy is noticeable) 3. May be committed through imprudence 4. May be complexed with homicide and parricide 5. If theres no intent to cause abortion and theres no violence committed, then theres no abortion of any kind ART. 258. ABORTION PRACTICED BY THE WOMAN HERSELF OR BY HER PARENTS ELEMENTS: 1. That there is a pregnant woman who has suffered an abortion; 2. That the abortion is intended; and 3. That the abortion is caused by a. the pregnant woman herself b. any other person, with her consent, or c. any of her parents, with her consent for the purpose of concealing her dishonor.
NOTES: 1. Mitigating circumstance (as distinguished from infanticide) for the purpose of concealing dishonor a. Only applicable to the pregnant woman and not to the parents of the pregnant woman 2. If the purpose of the womans parents was NOT to conceal dishonor, then they will be liable for intentional abortion under Art. 256 ART. 259. ABORTION PRACTICED BY A PHYSICIAN OR MIDWIFE AND DISPENSING OF ABORTIVE ELEMENTS: 1. That there is a pregnant woman who has suffered an abortion; 2. That the abortion is intended; 3. That the offender, who must be a physician or midwife, causes or assists in causing the abortion; and 4. That said physician or midwife takes advantage of his or her scientific knowledge or skill. NOTES: 1. The taking advantage of scientific knowledge or skill for the destruction of human life justifies the imposition of the maximum penalty ELEMENTS AS TO PHARMACISTS: 1. That the offender is a pharmacist. 2. That there is no proper prescription from a physician. 3. That the offender dispenses any abortive. NOTES: 1. The effect of knowledge that the abortive would be used to cause abortion: a. Without knowledge, punishable under this article b. With knowledge, punishable as an accomplice in the crime of abortion 2. Not necessary for the abortive to be actually used; the act constituting the offense is dispensing the abortive w/o proper prescription SECTION THREE - DUEL ART. 260. RESPONSIBILITY OF PARTICIPANTS IN A DUEL ACTS PUNISHABLE 1. Killing ones adversary in a duel 2. Inflicting upon the adversary serious physical injuries 3. Making combat although no physical injuries have been inflicted PERSONS LIABLE
1.
2. NOTES: 1. A duel is a formal or regular combat previously concerted between two parties in the presence of two or more seconds of lawful age on each side, who make the selection of arms and fix all the other conditions of the fight 2. Intent to kill is disregardedso penalty will be that for physical injuries only as opposed to those inflicted for frustrated/attempted homicide ART. 261. CHALLENGING TO A DUEL ACTS PUNISHABLE: 1. Challenging another to a duel. 2. Inciting another to give or accept a challenge to a duel. 3. Scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel. PERSONS LIABLE 1. Challengers, and 2. Instigators There must be intention to have a formal duel (as opposed to light threats under Art. 285, par. 2) ===========================================
PRINCIPALS person who killed or inflicted physical injuries upon his adversary, or both combatants in any other cases. ACCOMPLICES seconds
================================================ CRIMES PUNISHABLE: A. Mutilation B. Serious physical injuries C. Administering injurious substance or beverages D. Less serious physical injuries E. Slight physical injuries and maltreatment ART. 262. MUTILATION TWO (2) KINDS: 1. CASTRATION: Intentionally mutilating another by depriving him, totally or partially, of some essential organ for reproduction. 2. MAYHEM OR OTHER INTENTIONAL MUTILATION: Intentionally making other mutilation, i.e. lopping, clipping off any part of the body of the offended party, other than the essential organ for reproduction, to deprive him of that part of his body. There must be intentional mutilation offender must have the intent to deprive the offended party of a part of his body
if theres no intention, then crime will be considered as serious physical injuries PHYSICAL INJURIES DISTINGUISHED FROM: 1. ATTEMPTED OR FRUSTRATED HOMICIDE a. Attempted homicide may be committed, even if no physical injuries are inflicted b. Intent to kill is not present in the crime of physical injuries 2. MUTILATION a. Intention to lop or clip off some part of the body is present in mutilation ART. 263. SERIOUS PHYSICAL INJURIES HOW COMMITTED: 1. Wounding; 2. Beating; 3. Assaulting; or 4. Administering injurious substances SERIOUS PHYSICAL INJURIES ARE: 1. When the injured person becomes insane, imbecile, impotent or blind in consequence of the physical injuries inflicted. 2. When the injured person a. loses the use of speech or the power to hear or to smell, b. loses an eye, a hand, foot, arm or leg, or loses the use of any such member, or loses the use of any such member; c. becomes incapacitated for the work in which he had been habitually engaged 3. When the injured person a. becomes deformed, b. loses any other member of his body, c. loses the use thereof, or d. becomes ill or incapacitated for the performance of the work in which he had been habitually engaged in for more than 90 days 4. When the injured person becomes ill or incapacitated for labor for more than 30 days (but not more than 90 days). PARAGRAPH 1 1. Impotency includes inability to copulate and sterility; no intent to deprive (as opposed to castration) 2. Complete blindness (as opposed to paragraph 2 loss of an eye only) PARAGRAPH 2 (mentions principal members of the body) 1. Loss of power to hear of both ears (as opposed to paragraph 3 loss of one ear only)
2.
3.
Loss of use of hand or incapacity for usual work must be permanent a. This must be proven by clear and conclusive evidence Note that the offended party must have an avocation or work at the time of the injury [also in paragraph (3)] a. Work includes studies or preparation for a profession b. Means incapacity for a certain kind of work only, but not for all
PARAGRAPH 3 1. Deformity is meant physical ugliness, permanent and defining abnormality. It must be conspicuous and visible (i.e., depending on what part of the body) a. If scar is usually covered, then its not considered conspicuous or visible b. Loss of teeth may be considered as deformity i. Injury must be that which cannot be repaired by the action of nature ii. EXCEPTIONS: old men/women and children 2. Loss of fingers may fall under paragraph 2 if it results in the loss of the use of the hand itself 3. Covers any member which is not a principal member of the body PARAGRAPH 4 1. Any kind of labor is included 2. Hospitalization for more than 30 days may mean either illness or incapacity for labor for more than 30 days 3. There must be evidence of the length of period of illness or capacity when the category of the offense of serious physical injuries The absence thereof makes the offense only slight physical injuries 4. Lessening of efficiency in work is not incapacity QUALIFIED SERIOUS PHYSICAL INJURIES 1. In relation to persons mentioned parricide and circumstances mentioned in murder higher penalties wil be inflicted 2. DOES NOT include injuries caused by excessive chastisement of a parent upon his child NOTES: 1. It can be committed by reckless imprudence, or by simple imprudence or negligence 2. There must be no intent to kill; otherwise, crime would be frustrated/attempted murder, parricide, or homicide 3. Medical attendance is not important in serious physical injuries
ART. 264. ADMINISTERING INJURIOUS SUBSTANCE OR BEVERAGES ELEMENTS: 1. That the offender inflicted upon another person 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. He had no intent to kill. NOTES: 1. Administering: introducing into the body 2. If there is intent to kill, it is frustrated murder the injurious substance to be considered as poison 3. Knowledge applies to the injurious nature of the substance or beverage 4. by taking advantage of his weakness of mind or credulity may take place in the case of witchcraft, magnetism and the like ART. 265. LESS SERIOUS PHYSICAL INJURIES ELEMENTS: 1. That the offended party is incapacitated for labor or needs medical attendance for 10 days or more (but not more than 30 days); and 2. That the physical injuries must not be those described in the preceding articles. QUALIFIED LESS SERIOUS PHYSICAL INJURIES 1. Fine not not exceeding P5200, in addition to arresto mayor, when a. There is a manifest intent to insult or offend the injured person, or b. There are circumstances adding ignominy to the offense (a) and (b) are considered as i. Ordinary aggravating circumstance in serious physical injuries ii. Slander by deed in slight physical injuries 2. A higher penalty, when the victim is either a. The offenders parents, ascendants, guardians, curators or teachers b. Persons of rank or persons in authority, provided the crime is not direct assault NOTES: 1. Medical attendance or incapacity for labor is required a. when theres no incapcaity for labor or medical attendance needed, it will be considered only as slight physical injuries i. if injuries were healed within 30 days slight physical injuries
ii. if injuries were healed only after 30 days serious phyisical injuries (as illness for more than 30 days) 2. This article applies even if there was no incapacity but the medical treatment was for more than 10 days 3. There must be proof as to the period of required medical attendance ART. 266. SLIGHT PHYSICAL INJURIES AND MALTREATMENT THREE (3) KINDS: 1. Physical injuries which incapacitated the offended party for labor from one (1) to nine (9) days or required medical attendance during the same period. 2. Physical injuries which did not prevent the offended party from engaging in his habitual work or which did not require medical attendance (Ex. black eye). 3. Ill-treatment of another by deed without causing any injury. (e.g. slapping the face without causing dishonor) NOTES: 1. PRESUMPTION a. In the absence of proof as to the period of the offended partys incapacity for labor or of the required medical attendance, the crime committed is presumed as slight physical injuries b. When there is no evidence to establish the gravity or duration of actual injury or to show the causal relationship to death, the offense is slight physical injuries 2. SUPERVENING EVENT a. When the charge contained in the information filed was for slight physical injuries because it was believed that the wound suffered would require medical attendance for eight (8) days only, but during preliminary investigation it was found that the healing would require more than thirty (30) days, this supervening event can still be the subject of amendment or of a new charge without placing the accused in double jeopardy30 ART. 266-A. RAPE; 266-B. PENALTIES SIMPLE RAPE (UNDER PARAGRAPH 1): A. ELEMENTS: 1. The offender is a man; 2. The offender had carnal knowledge of a woman; 3. Such act is accomplished (any one of the following): a. through force, threat or intimidation;
30
People
v.
Manolong,
85
Phil.
829
B.
when the offended party is deprived of reason or otherwise unconscious; c. by means of fraudulent machination or grave abuse of authority; or d. when the offended party is under 12 years of age (statutory rape) or is demented, even though none of the circumstances mentioned above be present PENALTIES IMPOSED31 1. reclusion perpetua 2. reclusion perpetua to death when: a. victim became insane by reason or on the occasion of rape; or b. the rape is attempted and a homicide is committed by reason or on the occasion thereof. 3. Death when: a. homicide is committed; b. victim is under 18 years old and offender is: i. parent, ii. ascendant, iii. step-parent, iv. guardian, v. relative by consanguinity or affinity within the 3rd civil degree, vi. common law spouse of victims parent; c. under the custody of the police or military authorities or any law enforcement or penal institution; d. committed in full view of the spouse, parent or any of the children or other relatives within the 3rd degree of consanguinity; e. victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime; f. a child below 7 years old; g. offender knows he is afflicted with HIV or AIDS or any other sexually transmissible disease and the virus is transmitted to the victim; h. offender is a member of the AFP, or para- military units thereof, or the PNP, or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime; i. by reason or on occasion of the rape, the victim suffered permanent physical mutilation or disability;
b.
j. k.
the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime.
31
RAPE THROUGH SEXUAL ASSAULT (UNDER PARAGRAPH 2) A. ELEMENTS: 1. the offender (man or woman) commits an act of sexual assault 2. the act is committed by inserting: a. his penis into another persons mouth or anal orifice; or b. any instrument or object into the genital or anal orifice of another person 3. the act is committed under any of the circumstances mentioned under paragraph 1 B. PENALTIES IMPOSED: 1. Prision mayor in general 2. Prision mayor to reclusion temporal when: a. there was use of deadly weapon, or b. committed by two or more persons. 3. Reclusion temporal when the victim has become insane 4. Reclusion temporal to reclusion perpetua rape is attempted and homicide is committed 5. Reclusion perpetua homicide is committed by reason or on occasion of rape 6. Reclusion temporal committed with any of the 10 aggravating circumstances mentioned in this article NOTES: 1. The 4 circumstances: a. Using force or intimidation: the degree sufficient to overcome resistance i. According to People v. Las Pias, Jr.32, the test is whether reasonable fear is produced in the mind of the victim ii. Verbal refusal alone wont do; there must be a physical struggle thats manifest and tenacious iii. The force need not be irresistable; force or violence necessary is relative, depending on the age, size, and strength of the parties and their relation to each other iv. Where resistance would be futile, offering none at all does not amount to consent
Pursuant to R.A. 9346 (Act Prohibiting the Imposition of Death Penalty in the Phiippines) the penalty of reclusion perpetua without eligibility for parole shall be imposed, in lieu of death penalty
32
2.
v. Intimidation enough that it produces fear in the victim; must be viewed in light of the victims perception and judgment at the time of rape vi. Moral ascendancy or influence has been held to be a substitute, in a long line of cases33 - in this case, not necessary that victim put up a determined resistance b. Offended party is deprived of reason or otherwise unconscious i. Deprivation need not be complete ii. Intercourse with a deaf-mute woman wll only be considered rape if shes also be prove to be an imbecile iii. Not considered rape where consent is induced by the administration of drugs/liquor, which incites her passions and doesnt deprive her of will power c. By means of fraudulent machination or grave abuse of authority d. when the offended party is under 12 years of age or is demented, even though none of the circumstances mentioned above be present (Statutory rape) i. Consent and character (e.g. prostitute) of the offended party is immaterial TWO (2) STAGES: a. CONSUMMATED i. Penetration is necessary ii. It is enough that the labia majora be penetrated, even the slightest iii. Penis need not be erect still considered rape if accused repeatedly tried to insert the penis in the vagina, even if in vain b. ATTEMPTED i. The offender has already performed overt acts with the intention to have carnal knowledge of the offended party, but which was not consummated some cause or accident other than his own spontaneous desistance ii. There must be intent to have carnal knowledge of the woman against her will c. there can be no frustrated rape because any penetration of the female organ is sufficient. Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more is
3.
4. 5. 6.
7.
left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated.34 Homicide committed by reason of (i.e., in the course of or because of) rape is a special complex crime a. Rape must come before intent to kill or act of killing b. Does not apply when the intent to kill or killing act preceded the rape act (i.e., when victim was in the point of death when she was ravaged) c. Includes death of victim through STD given by the accused who raped her Character of the woman is immaterial a. Testimony of victim alone is enough for conviction Fingers counts as objects under rape through sexual assault Indemnity and Damages a. Awarding of Php50,000 as indemnity is mandatory upon finding of the fact of rape b. Moral damages may be automatically awarded in rape cases w/o need of proof Multiple Rape a. Each offender is responsible not only for the rape he personally committed, but also for those committed by the others
ART. 266-C. EFFECT OF PARDON. EFFECT OF MARRIAGE Marriage extinguishes not only the penal action but likewise the penalty imposed and only as to the principal ART. 266-D. PRESUMPTIONS EVIDENCE WHICH MAY BE ACCEPTED 1. Any physical overt act manifesting resistance against the act of rape in any degree from the offended party 2. Where the offended party is so situated as to render him/her incapable of giving consent
R.A. 9262 ANTI VIOLENCE AGAINST WOMEN AND CHILDREN ACT OF 2004 VIOLENCE AGAINST WOMEN AND THEIR CHILDREN, DEFINED Refers to any act or a series of acts committed by any person against a woman who is his wife, former wife,
33
People v. Dichoson, G.R. No. 118986-89, February 19, 2001; People v. Bazona, G.R. No. 133343-44, March 2, 2000; People v. Panique, 316 SCRA 757 (1999); People v. Perez, 307 SCRA 276 (1999)
34
or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, (1) physical, (2) sexual, (3) psychological and (4) economic violence. DEFINITION OF TERMS AGAINST WHOM COMMITTED 1. a woman A. who is his wife, B. who is his former wife, or C. with whom the person has or had a sexual or dating relationship, or D. with whom he has a common child, 2. the womans child a. whether legitimate or illegitimate, within or without the family abode The violence committee must result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to: a. Physical Violence: refers to acts that include bodily or physical harm; b. Sexual violence: refers to an act which is sexual in nature, committed against a woman or her child c. Psychological violence: refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim; d. Economic abuse" refers to acts that make or attempt to make a woman financially dependent PUNISHABLE ACTS (Sec. 5): 1. Causing physical harm to the woman or her child; 2. Threatening to cause the woman or her child physical harm; 3. Attempting to cause the woman or her child physical harm; 4. Placing the woman or her child in fear of imminent physical harm; 5. Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or
intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct: a. Threatening to deprive or actually depriving the woman or her child of custody to her/his family; b. Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman's children insufficient financial support; c. Depriving or threatening to deprive the woman or her child of a legal right; d. Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim's own money or properties, or solely controlling the conjugal or common money, or properties; 6. Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; 7. Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family; 8. Engaging in purposeful, knowing, or reckless conduct, personally or through another that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: a. Stalking or following the woman or her child in public or private places; b. Peering in the window or lingering outside the residence of the woman or her child; c. Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; d. Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and e. Engaging in any form of harassment or violence; 9. Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman's child/children. VENUE A. General Rule: RTC designated as Family Court has original and exclusive jurisdiction B. In the absence of (A): RTC where any of the elements is committed, at the option of complainant PROTECTION ORDERS, DEFINED (Sec. 8)
Order issued under this act for the purpose of preventing further acts of violence against a woman or her child specified in Section 5 of this Act and granting other necessary relief. The relief granted under a protection order serves the purpose of safeguarding the victim from further harm, minimizing any disruption in the victim's daily life, and facilitating the opportunity and ability of the victim to independently regain control over her life. The provisions of the protection order shall be enforced by law enforcement agencies. PROTECTION ORDERS ISSUED UNDER THIS ACT BARANGAY TEMPORARY PERMANENT PROTECTION PROTECTION PROTECTION ORDER ORDER ORDER Issued by punong Issued by the Issued by the barangay, after ex court on the court after notice parte date of filing and hearing. The determination of of the court shall the basis of the application schedule a application, which after ex parte hearing on the orders perpetrator determination issuance of a PPO to desist from that such prior to or on the committing acts order should date of expiration under Section 5 (1) be issued. of the TPO. and (2) of this Act. BPOs shall be TPOs shall be Shall be effective effective for 15 effective for until revoked by a days. 30 days. court. PROTECTION ORDERS THAT MAY BE ISSUED UNDER THIS ACT: 1. BARANGAY PROTECTION ORDER (BPO) Protection order issued by the Punong Barangay ordering the perpetrator to desist from committing acts under Section 5 (1) and (2) of this Act. A Punong Barangay who receives applications for a BPO shall issue the protection order to the applicant on the date of filing after ex parte determination of the basis of the application. BPOs shall be effective for fifteen (15) days. 2. TEMPORARY PROTECTION ORDER (TPO) Protection order issued by the court on the date of filing of the application after ex parte determination that such order should be issued. A court may grant in a TPO any, some or all of the reliefs mentioned in this Act and shall be effective for thirty (30) days. The court shall schedule a hearing on the issuance of a PPO prior to or on the date of the expiration of the TPO. 3. PERMANENT PROTECTION ORDER (PPO) Protection order issued by the court after notice and hearing. A PPO shall be effective until revoked by a court upon application of the person in whose favor the order was issued. -
i. the sexual organ or the anal region, or a representation thereof; ii. the breasts, or a representation of the breasts, of a female person. EXPLICIT SEXUAL ACTIVITY includes actual or simulated 1. sexual intercourse or lascivious act including, but not limited to, contact involving genital to genital, oral to genital, anal to genital, or oral to anal, whether between persons of the same or opposite sex; 2. bestiality; 3. masturbation; 4. sadistic or masochistic abuse; 5. lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus; or 6. use of any object or instrument for lascivious acts PROHIBITED ACTS A. To hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of any form of child pornography; B. To produce, direct, manufacture or create any form of child pornography; C. To publish offer, transmit, sell, distribute, broadcast, advertise, promote, export or import any form of child pornography; D. To possess any form of child pornography with the intent to sell, distribute, publish, or broadcast: Provided. That possession of three (3) or more articles of child pornography of the same form shall be prima facie evidence of the intent to sell, distribute, publish or broadcast; E. To knowingly, willfully and intentionally provide a venue for the commission of prohibited acts as, but not limited to, dens, private rooms, cubicles, cinemas, houses or in establishments purporting to be a legitimate business; F. For film distributors, theaters and telecommunication companies, by themselves or in cooperation with other entities, to distribute any form of child pornography; G. For a parent, legal guardian or person having custody or control of a child to knowingly permit the child to engage, participate or assist in any form of child pornography; H. To engage in the luring or grooming of a child; I. To engage in pandering of any form of child pornography; J. To wilfully access any form of child pornography; K. To conspire to commit any of the prohibited acts stated in this section. L. To possess any form of child pornography. SYNDICATED CHILD PORNOGRAPHY If carried out by a group of 3 or more persons conspiring or confederating with one another.
B.
As
accomplices
1. The
owner
of
the
place
where
the
hazing
is
conducted,
when
he
has
actual
knowledge
of
the
hazing
conducted
but
failed
to
take
any
action
to
prevent
2. School
authorities
who
consent
to
the
hazing
or
who
have
actual
knowledge,
but
failed
to
take
any
action
to
prevent
the
same
PRIMA
FACIE
EVIDENCE
OF
PARTICIPATION
AS
PRINCIPAL
The
presence
of
any
person
during
the
hazing
unless
he
prevented
the
commission
of
the
acts
punishable
herein
The
above-mentioned
liabilities
shall
apply
to
the
president,
manager,
director
or
other
responsible
officer
of
a
corporation
engaged
in
hazing
as
a
requirement
for
employment
in
the
manner
provided
herein.
Any
person
charged
under
this
provision
shall
not
be
entitled
to
the
mitigating
circumstance
that
there
was
no
intention
to
commit
so
grave
a
wrong.
1.
R.A.
7610
SPECIAL
PROTECTION
OF
CHILDREN
AGAINST
CHILD
ABUSE,
EXPLOITATION
AND
DISCRIMINATION
ACT
CRIMES PUNISHABLE CHILD PROSTITUTION AND OTHER SEXUAL ABUSE WHO ARE CHILDREN EXPLOITED IN PROSTITUTION AND OTHER SEXUAL ABUSE Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct WHO ARE LIABLE 1. Those who engage in or promote, facilitate or induce child prostitution (e.g., acting as procurer of or taking advantage of influence or relationship to procure a child prostitute, inducing a person to be a client of child prostitute, threatening or using violence towards or giving monetary consideration or goods to a child to engage him in prostitution); 2. Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; 3. Those who derive profit or advantage therefrom. (e.g., as manager/owner of the establishment where child prostitution takes place); ATTEMPT TO COMMIT CHILD PROSTITUTION
Any person, not being a relative of the child, is found alone with the said child in a hidden or secluded area under circumstances which lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse; and 2. Any person who receives services from a child in a sauna parlor or bath, massage clinic, health club, and other similar establishments CHILD TRAFFICKING Any person who shall engage in trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter ATTEMPT TO COMMIT CHILD TRAFFICKING 1. When a child travels alone to a foreign country without valid reason therefor and without clearance issued by the Department of Social Welfare and Development or written permit or justification from the child's parents or legal guardian; 2. When a person, agency, establishment or child-caring institution recruits women or couples to bear children for the purpose of child trafficking; or 3. When a doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any other person simulates birth for the purpose of child trafficking; or 4. When a person engages in the act of finding children among low-income families, hospitals, clinics, nurseries, day-care centers, or other child-during institutions who can be offered for the purpose of child trafficking OBSCENE PUBLICATIONS AND INDECENT SHOWS 1. Any person who shall hire, employ, use, persuade, induce or coerce a child to perform in obscene exhibitions and indecent shows, whether live or in video, or model in obscene publications or pornographic materials or to sell or distribute the said materials, or 2. Any ascendant, guardian, or person entrusted in any capacity with the 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 or in any other acts covered hereunder OTHER ACTS OF ABUSE 1. Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible for other conditions prejudicial to the child's development 2. Any person who shall keep or have in his company a minor, twelve (12) years or under or who in ten (10) years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places (this provision shall not
apply to any person who is related within the fourth degree of consanguinity or affinity or any bond recognized by law, local custom and tradition or acts in the performance of a social, moral or legal duty) 3. Any person who shall induce, deliver or offer a minor to any one prohibited by this Act to keep or have in his company a minor as provided in the preceding paragraph 4. Any person, owner, manager or one entrusted with the operation of any public or private place of accommodation, whether for occupancy, food, drink or otherwise, including residential places, who allows any person to take along with him to such place or places any minor herein described 5. Any person who shall use, coerce, force or intimidate a street child or any other child to: a. Beg or use begging as a means of living; b. Act as conduit or middlemen in drug trafficking or pushing; or c. Conduct any illegal activities SANCTIONS FOR ESTABLISHMENTS OR ENTERPRISES All establishments and enterprises which promote or facilitate any of the acts punishable under this Act shall be: 1. immediately closed, 2. their authority or license to operate cancelled 3. without prejudice to the owner or manager thereof being prosecuted, and 4. a sign with the words "off limits" shall be conspicuously displayed outside the establishments or enterprises by the Department of Social Welfare and Development (DSWD) for such period which shall not be less than one (1) year, as the Department may determine (The unauthorized removal of such sign shall be punishable) WHEN DEEMED TO PROMOTE OR FACILITATE ANY OF THE ACTS PUNISHABLE: if the acts constituting the same occur in the premises of said establishment The same presumption apply to an enterprise such as a sauna, travel agency, or recruitment agency which: a. promotes the aforementioned acts as part of a tour for foreign tourists; b. exhibits children in a lewd or indecent show; c. provides child masseurs for adults of the same or opposite sex and said services include any lascivious conduct with the customers; or d. solicits children or activities constituting the aforementioned acts WORKING CHILDREN Children below fifteen (15) years of age shall not be employed, except: a. When a child works directly under the sole
b.
responsibility of his parents or legal guardian and where only members of the employer's family are employed: Provided, however, That his employment neither endangers his life, safety and health and morals, nor impairs his normal development: Provided, further, That the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education; or When a child's employment or participation in public & entertainment or information through cinema, theater, radio or television is essential: Provided, The employment contract concluded by the child's parent or guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: Provided, That the following requirements in all instances are strictly complied with: i. The employer shall ensure the protection, health, safety and morals of the child; ii. The employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and iii. The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skill acquisition of the child
In the above exceptional cases: the employer shall first secure a work permit from the Department of Labor and Employment (DOLE) which shall ensure observance of the above requirement
c. d. e. f. g. h.
i. CHILD IN CONFLICT WITH THE LAW refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws YOUTH DETENTION HOME refers to a 24-hour child-caring institution managed by accredited local government units (LGUs) and licensed and/or accredited nongovernment organizations (NGOs) providing short-term residential care for children in conflict with the law who are awaiting court disposition of their cases or transfer to other agencies or jurisdiction JUVENILE JUSTICE AND WELFARE SYSTEM refers to a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, re-integration and aftercare to ensure their normal growth and development. OUTLINE OF THE SYSTEM A. INITIAL CONTACT WITH-THE CHILD refers to the apprehension or taking into custody of a child in conflict with the law by law enforcement officers or private citizens. It includes the time when the child alleged to be in conflict with the law receives a subpoena under Section 3(b) of Rule 112 of the Revised Rules of Criminal Procedure or summons under Section 6(a) or Section 9(b) of the same Rule in cases that do not require preliminary investigation or where there is no necessity to place the child alleged to be in conflict with the law under immediate custody. B. DIVERSION refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings DIVERSION PROGRAM refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings.
being abandoned or neglected, and after diligent search and inquiry, the parent or guardian cannot be found; coming from a dysfunctional or broken family or without a parent or guardian; being out of school; being a streetchild; being a member of a gang; living in a community with a high level of criminality or drug abuse; and living in situations of armed conflict.
The following children in conflict with law shall undergo diversion programs: a. Where the imposable penalty for the crime committee is not more than six (6) years imprisonment, or b. In victimless crimes where the imposable penalty is not more than six (6) years imprisonment But where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may be resorted to only by the court C. PROSECUTION The prosecutor shall conduct a preliminary investigation in the following instances: a. when the child in conflict with the law does not qualify for diversion; b. when the child, his/her parents or guardian does not agree to diversion as specified in Sections 27 and 28; c. when considering the assessment and recommendation of the social worker, the prosecutor determines that diversion is not appropriate for the child in conflict with the law Upon serving the subpoena and the affidavit of complaint, the prosecutor shall notify the Public Attorney's Office (PAO) of such service, as well as the personal information, and place of detention of the child in conflict with the law. Upon determination of probable cause by the prosecutor, the information against the child shall be filed before the Family Court within forty-five (45) days from the start of the preliminary investigation. D. COURT PROCEEDINGS 1. Children detained in a Youth Detention Center pending trial may be released on bail or recognizance 2. Where the maximum penalty imposed by law for the offense with which the child in conflict with the law is charged is imprisonment of not more than twelve (12) years, regardless of the fine or fine alone regardless of the amount, and before arraignment of the child in conflict with the law, the court shall determine whether or not diversion is appropriate 3. When the accused, who was a child at the time of the commission of the offense, is found guilty, the court shall: a. Determine and ascertain any civil liability b. Place the child under suspended sentence without need of application (i.e., automatically), instead of pronouncing judgment of conviction
The automatic suspension applies even if accused is already of legal age at the time of pronouncement of guilt E. REHABILITATION AND REINTEGRATION No child shall be received in any rehabilitation or training facility without a valid order issued by the court after a hearing for the purpose INTERVENTION refers to a series of activities which are designed to address issues that caused the child to commit an offense. RESTORATIVE JUSTICE refers to a principle which requires a process of resolving conflicts with the maximum involvement of the victim, the offender and the community. YOUTH REHABILITATION CENTER refers to a 24-hour residential care facility managed by the Department of Social Welfare and Development (DSWD), LGUs, licensed and/or accredited NGOs monitored by the DSWD, which provides care, treatment and rehabilitation services for children in conflict with the law. Rehabilitation services are provided under the guidance of a trained staff where residents are cared for under a structured therapeutic environment with the end view of reintegrating them into their families and communities as socially functioning individuals. Physical mobility of residents of said centers may be restricted pending court disposition of the charges against them. AGE AND DETERMINATION AGE CRIMINAL RESPONSIBILITY < 15 years (less than or Absolute irresponsibility, exempting equal to 15 years) circumstance 15 but 18 (more than Conditional responsibility or equal to 15 but less a. Without discernment than or equal to 18 not criminally liable; years) subject to an intervention program b. With discernment criminally liable Minor delinquent Sentence is suspended 18 but 70 (more than Full responsibility or equal to 18 but less than or equal to 70 years) 70 (more than or equal Mitigated responsibility, no to 70 years) imposition of death penalty, execution of death sentence may be suspended and commuted
P.D 603 Child and Youth Welfare Code PUNISHABLE ACTS Criminal liability shall attach to any parent who: 1. Conceals or abandons the child with intent to make such child lose his civil status. 2. Abandons the child under such circumstances as to deprive him of the love, care and protection he needs. 3. Sells or abandons the child to another person for valuable consideration. 4. Neglects the child by not giving him the education which the family's station in life and financial conditions permit. 5. Fails or refuses, without justifiable grounds, to enroll the child as required by Article 72. 6. Causes, abates, or permits the truancy of the child from the school where he is enrolled. "Truancy" as here used means absence without cause for more than twenty schooldays, not necessarily consecutive. 7. It shall be the duty of the teacher in charge to report to the parents the absences of the child the moment these exceed five schooldays. 8. Improperly exploits the child by using him, directly or indirectly, such as for purposes of begging and other acts which are inimical to his interest and welfare. 9. Inflicts cruel and unusual punishment upon the child or deliberately subjects him to indignation and other excessive chastisement that embarrass or humiliate him. 10. Causes or encourages the child to lead an immoral or dissolute life. 11. Permits the child to possess, handle or carry a deadly weapon, regardless of its ownership. 12. Allows or requires the child to drive without a license or with a license which the parent knows to have been illegally procured. If the motor vehicle driven by the child belongs to the parent, it shall be presumed that he permitted or ordered the child to drive. END OF DISCUSSION ON TOPIC 8. CRIMES AGAINST PERSONS
=======================================
=======================================
TOPICS
UNDER
THE
SYLLABUS:
Chapter
1:
Crimes
against
Liberty
Sec.
1
-
Illegal
detention
Sec.
2
-
Kidnapping
of
minors
Chapter
2:
Crimes
against
Security
Sec.
1
-
Abandonment
of
helpless
persons
and
exploitation
of
minors
Sec.
2
-
Trespass
to
dwelling
Sec.
3
-
Threats
and
Coercion
Chapter
3:
Discovery
and
Revelation
of
Secrets
R.A.
9372
R.A.
4200
R.A.
9208
Chapter
1:
Crimes
against
Liberty
================================================ ================================================
SECTION 1. - ILLEGAL DETENTION ARTICLE 267. KIDNAPPING AND SERIOUS ILLEGAL DETENTION ELEMENTS: 1. That the offender is a private individual; 2. That he kidnaps or detains another, or in any other manner deprives the latter of liberty; 3. That the act of detention or kidnapping must be illegal; and 4. That in the commission of the offense, any of the following circumstances are present (detention becomes serious): a. that the kidnapping/detention lasts for more than 3 days, b. committed by simulating public authority, c. that any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made, or d. that the person kidnapped or detained is a minor (except if parent is the offender), female or a public officer. Note: If any of these are present, purpose of detention is immaterial
DEATH is imposed in the following instances: [death penalty suspended] 1. if kidnapping is committed for the purpose of extorting ransom either from the victim or from any other person, even if none of the aforementioned circumstances are present in the commission of the offense; and 2. when the victim is killed or dies as a consequence of the detention or is raped or is subjected to torture or dehumanizing acts. NOTES: It is true that for kidnapping to take place, it is not necessary that the victim be placed in an enclosure; neither is it necessary that the detention be prolonged or permanent. However, the essence of kidnapping is the actual deprivation of the victim's liberty coupled with indubitable proof of the intent of the accused to effect such deprivation35. The victims lack of consent is also a fundamental element of kidnapping and serious illegal detention. The involuntariness of the seizure and detention is the very essence of the crime. Although the victim may have inceptually consented to go with the offender to a place but the victim is thereafter prevented, with the use of force, from leaving the place where he was brought to with his consent and is detained against his will, the offender is guilty of kidnapping and serious illegal detention36. Actual demand for ransom is not necessary When detention is for purpose of extorting ransom, its not necessary that one or any of the four circumstances enumerated in (4) are present Essential that there be actual confinement or restriction of the person of the offended party Detention is illegal when not ordered by competent authority or not permitted by law Detention for more than 3 days not necessary when any of the other circumsances are present Special complex crime of kidnapping with murder or homicide where the person kidnapped is killed in the course of the detention regardless of whether the killing was purposely sought or was erely an afterthough When murder and not kidnapping - when the victim is taken from one place to another solely for the purpose of kiling him, the crime committed is murder If Primary and ultimate purpose is to kill, and detention was only incidental Specific intent is determinative of whether the crime comitted is murder or kidnapping
35 36
People v. Obeso, 460 Phil. 625 (2003) People v. Pickrell G.R. No. 120409 (2003)
ART.
269.
UNLAWFUL
ARREST
ELEMENTS:
1. That
the
offender
arrests
or
detains
another
person;
2. That
the
purpose
of
the
offender
is
to
deliver
him
to
the
proper
authorities;
and
3. That
the
arrest
or
detention
is
not
authorized
by
law
or
there
is
no
reasonable
ground
therefor.
NOTE:
Offender
is
any
person.
Either
a
public
officer
or
private
individual
may
be
liable.
Public
officer
either
has
no
authority
to
arrest
or
detain
a
person
or
has
not
acted
in
his
official
capacity
Arrest/
detention
refers
to
warrantless
arrests.
DELAY
IN
THE
DELIVERY
UNLAWFUL
ARREST
OF
DETAINED
PERSONS
TO
THE
PROPER
JUDICIAL
AUTHORITIES
(ART
125)
the
detention
is
for
some
the
detention
is
not
legal
ground
authorized
by
law.
ARBITRARY
DETENTION
UNLAWFUL
ARREST
the
detention
is
for
some
the
detention
is
not
legal
ground
authorized
by
law.
Must be alleged in information and proven by prosecution ARBITRARY DETENTION Committed by a public officer or employee who has duty under law to detain a person who detains a person without legal ground Crime against the fundamental law of the State
ILLEGAL DETENTION Committed by a private individual who unlawfully kidnaps, detains or otherwise deprives a person of liberty. Crime is against personal liberty and security
HOWEVER, if such public officer has no duty to detain a person (e.g. sanitary inspector or clerk), and he detains a person, he is liable under this article ART. 268. SLIGHT ILLEGAL DETENTION ELEMENTS: 1. That the offender is a private person; 2. That he kidnaps or detains another or in any other manner deprives the liberty or he furnishes the place for the perpetuation of the detention; 3. That the act of detention or kidnapping must be illegal; 4. That the crime is committed without the attendance of any of the circumstances enumerated in Art. 267. NOTE: If the participation is to furnish the place for the crime, he is raised to a real co-principal. But if the cooperation is by any other act than furnishing the place, penalty is one degree lower. PRIVILEGED MITIGATING CIRCUMSTANCE (VOLUNTARY RELEASE): If the offender: 1. voluntarily releases the person so kidnapped or detained within 3 days from the commencement of the detention; 2. without having attained the purpose intended; and 3. before the institution of criminal proceedings against him. NOTE: Three requisites must concur Must be shown by the offender that he was in a position to prolong the detention for more than 3 days and yet he released the person detained w/in that time Voluntary release is not considered privileged mitigating if the victim is a woman (considered serious illegal detention)
SECTION 2. KIDNAPPING OF MINORS ART. 270. KIDNAPPING AND FAILURE TO RETURN A MINOR ELEMENTS: 1. That the offender is entrusted with the custody of a minor person ; and 2. That he deliberately fails to restore the said minor to his parents. NOTE: this may also be committed by the mother or father of the child. When committed by a parent, penalty is arresto mayor. Essential element which qualifies the crime: offender is entrusted with the custody of the minor KIDNAPPING & FAILURE KIDNAPPING AND TO RETURN A MINOR SERIOUS ILLEGAL (ART. 270) DETENTION (ART. 267) Punishes the deliberate Offender is not entrusted failure by the person with the custody of the having the custody of the victim minor to restore the minor to parents/guardian
NOTE:
Indebtedness
is
not
a
ground
for
detention.
Art.
274.
Services
rendered
under
compulsion
in
payment
of
debt
Elements:
1. That
the
offender
compels
a
debtor
to
work
for
him,
either
as
household
servant
or
farm
laborer;
2. That
it
is
against
the
debtors
will;
and
3. That
the
purpose
is
to
require
or
enforce
the
payment
of
a
debt.
NOTE:
Debtor-Creditor
relationship
must
exist
otherwise,
crime
committed
is
coercion
SERVICES
RENDERED
EXPLOITATION
OF
UNDER
COMPUSION
IN
CHILD
LABOR
PAYMENT
OF
DEBT
(Art.
273)
(Art.
274)
Does
not
distinguish
Victim
is
a
minor
whether
the
victim
is
a
minor
or
not
Debtor
is
compelled
to
Minor
is
compelled
to
work
for
offender
render
services
for
debt
of
parent/guardian
Limited
to
household
and
Service
not
limited
to
farm
work.
household
and
farm
work
ART. 271. INDUCING A MINOR TO ABANDON HIS HOME ELEMENTS: 1. That the minor is living in the home of his parents or guardians or the person entrusted with his custody; and 2. That the offender induces a minor to abandon such home. NOTE: Inducement must be actual, committed with criminal intent and determined by a will to cause damage. The minor should not leave his home of his own free will. Mitigated if committed by the father or mother of the victim. to induce = to influence, to prevail on, to move by persuasion, to incite by motives The minor need not actually abandon his home or home of guardian. Mere commission of any act which tends to influence, persuade or prevail on a minor to abandon his home is what constitutes a crime. Mitigated if committed by the father or mother of the victim. applies to Arts. 270 and 271
================================================
================================================
37
SECTION 1. ABANDONMENT OF HELPLESS PERSONS AND EXPLOITATION OF MINORS ART. 275. ABANDONMENT OF PERSON IN DANGER AND ABANDONMENT OF ONES OWN VICTIM ACTS PUNISHABLE: 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: a. That place is not inhabited. 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.
ELEMENTS:
a. That
the
offender
is
a
parent;
b. That
he
neglects
his
children
by
not
giving
them
education;
and
c. That
his
station
in
life
requires
such
education
and
his
financial
condition
permits
it.
NOTE:
Obligation
to
educate
children
terminates
if
mother
and
children
refuse
without
good
reason
to
live
with
accused.
Failure
to
give
education
must
be
due
to
deliberate
desire
to
evade
such
obligation.
ABANDONMENT
OF
MINOR
ABANDONMENT
OF
MINOR
BY
PERSON
ENTRUSTED
(ART.
276)
WITH
HIS
CUSTODY;
INDIFFERENCE
OF
PARENTS
(ART.
277)
Custody
of
offender
is
Custody
stated
in
general
specific
for
rearing
or
terms
education
of
minor
Minor
under
18
years
of
Minor
under
7
years
of
age
age
Minor
is
delivered
to
a
Minor
is
abandoned
in
such
public
institution
or
other
a
way
to
deprive
him
of
person
care
and
protection
ARTICLE
278.
EXPLOITATION
OF
MINORS
ACTS
PUNISHABLE:
1. By
causing
any
boy
or
girl
under
16
to
perform
any
dangerous
feat
of
balancing,
physical
strength
or
contortion,
the
offender
being
any
person.
2. By
employing
children
under
16
who
are
not
the
children
or
descendants
of
the
offender
in
exhibitions
of
acrobat,
gymnast,
rope-walker,
diver,
or
wild-animal
tamer
or
circus
manager
or
engaged
in
a
similar
calling.
3. By
employing
any
descendant
under
12
in
dangerous
exhibitions
enumerated
in
the
next
preceding
paragraph,
the
offender
being
engaged
in
any
of
said
callings.
4. By
delivering
a
child
under
16
gratuitously
to
any
person
following
any
of
the
callings
enumerated
in
paragraph
2
or
to
any
habitual
vagrant
or
beggar,
the
offender
being
an
ascendant,
guardian,
teacher
or
person
entrusted
in
any
capacity
with
the
care
of
such
child.
5. By
inducing
any
child
under
16
to
abandon
the
home
of
its
ascendants,
guardians,
curators
or
teachers
to
follow
any
person
engaged
in
any
of
the
callings
mentioned
in
paragraph
2
or
to
accompany
any
habitual
vagrant
or
beggar,
the
offender
being
any
person.
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 7 whom the offender has found abandoned, to the authorities or to his family, or by failing to take him to a safe place. (may be applied to a lost child). ART. 276. ABANDONING A MINOR ELEMENTS: 1. That the offender has the custody of a child; 2. That the child is under 7 years of age; 3. That he abandons such child; and 4. That he has no intent to kill the child when the latter is abandoned. NOTE: Abandonment must be conscious, deliberate, and permanent. Qualifying circumstances: a. death of the minor; or b. life was in danger because of the abandonment. Parent guilty of abandoning their children shall be deprived of parental authority. Intent to kill cannot be presumed from the death of the child - Such presumption applies only to crimes against persons NOT to crimes against security ART. 277. ABANDONMENT OF MINOR BY PERSON ENTRUSTED WITH HIS CUSTODY; INDIFFERENCE OF PARENTS ACTS PUNISHABLE: 1. By delivering a minor to a public institution or other persons w/o consent of the one who entrusted such minor to the care of the offender or, in the absence of that one, without the consent of the proper authorities; ELEMENTS: a. Offender has charge of the rearing or education of a minor; To rear means to bring to maturity by educating, nourishing, etc. b. He delivers said minor to a public institution or other persons.; and c. 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. 2. By neglecting his children by not giving them education which their station in life requires and financial condition permits;
EXPLOITATION OF INDUCING A MINOR TO MINORS ABANDON HIS HOME (ART. 278, PAR 5) (ART. 271) Purpose of inducing a No such purpose minor to abandon his home is to follow any person engaged in the callings mentioned Victim is under 16 years of Victim is under 18 age QUALIFYING CIRCUMSTANCE: If the delivery of the child to any person following any of the callings of acrobat, rope- walker, diver or wild-animal trainer or circus manager or to any habitual vagrant of beggar is made in consideration of any price, compensation or promise. Offender shall be deprived of parental authority or guardianship Exploitation of minor must be of such a nature as to endanger his life or safety Art. 279. Additional penalties for other offenses The offender is liable not only for the abandonment or exploitation but also for all its consequences. If as a result, physical injuries or death resulted, another crime is committed by authority of Article 279.
Prohibition must exist prior to or at the time of entrance Prohibition is not necessary when violence or intimidation is employed by the offender. - Violence or intimidation may take place immediately after the entrance Prohibition is not necessary when violence or intimidation is employed by the offender. When there is no overt act of the crime intended to be committed (Ex. theft), the crime is trespass to dwelling. Trespass may be committed even by the owner of the dwelling against the actual occupant thereof. If the offender is a public officer, the crime committed is violation of domicile under Art. 128
SECTION 2. TRESPASS TO DWELLING ART. 280. QUALIFIED TRESPASS TO DWELLING ELEMENTS: 1. That the offender is a private person; 2. That he enters the dwelling of another; and 3. That such entrance is against the latters will. QUALIFYING CIRCUMSTANCE: If the offense is committed by means of violence or intimidation. NOTE: There must be an opposition on the part of the owner of the house to the entry of the accused. Mere absent of his consent or permission is not enough. Prohibition may be express or implied Dwelling: any building or structure exclusively devoted for rest and comfort, depends upon use; maybe a room; implied prohibition depending on circumstances Implied prohibition is present considering the following situation. Ex. Felony was committed late at night and everyones asleep or entrance was made through the window.
NOT APPLICABLE TO: 1. Where the entrance is for the purpose of preventing harm to himself, the occupants or a third person. 2. Where the purpose is to render some service to humanity or justice. 3. When the accused entered the dwelling through the window, he had no intent to kill any person inside. His intention to kill came to his mind when he was being arrested by the occupants thereof. Hence, the crime of trespass to dwelling is a separate and distinct offense from frustrated homicide . ART. 281. OTHER FORMS OF TRESPASS ELEMENTS: 1. That the offender enters the closed premises or the fenced estate of another; PREMISES signifies a distinct and definite locality which is fixed 2. That the entrance is made while either of them is uninhabited; 3. That the prohibition to enter be manifest; and 4. That the trespasser has not secured the permission of the owner or the caretaker thereof. QUALIFIED TRESPASS TO OTHER FORMS OF DWELLING (ART. 280) TRESPASS (ART. 281) Offender is a private Offender is any form of person person The offender enters a Offender enters closed dwelling house premises or fenced estate Inhabited Uninhabited Act constituting the crime Entering of closed premises is entering the dwelling without permission against will of owner Prohibition from entering Prohibition must be may be express or implied manifest
38
Essential that there be intimidation: that theres a promise of some future harm or injury Act threatened to be done must be wrong ART. 283. LIGHT THREATS ELEMENTS: 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 either attained or not attained his purpose NOTE: In light threats, the wrong threatened does not amount to a crime. Requires that there be a demand of money or that other condition be imposed Blackmailing may be punished under this provision. ART. 284. BOND FOR GOOD BEHAVIOUR The person making the threats under the 2 preceding articles (grave and light threats) may also be required by the court to give bail conditioned upon the promise not to molest the person threatened. ART. 284 ART. 35 Bond for good behavior Bond to keep the peace Only for grave threats and Application not to light threats particular cases onlt It is an additional penalty Distinct penalty If he shall faill to give bail, If he failes to give the he shall be sentenced to bond, he shall be detained destierro for a period not exceeding 6 months if prosecuted for grave or less grave felony or 30 days if prosecuted for light felony ART. 285. OTHER LIGHT THREATS ACTS PUNISHABLE: 1. By threatening another with a weapon (even if theres no quarral), or by drawing a weapon in a quarrel, unless it be in lawful self-defense. 2. By orally threatening another, in the heat of anger, with some harm constituting a crime, without persisting in the idea involved in the threat. 3. By orally threatening another with harm not constituting a felony.
NOTE:
The
thing
prevented
from
execution
must
not
be
prohibited
by
law.
Otherwise,
there
will
be
no
coercion.
Owner
of
a
thing
has
no
right
to
prevent
interference
when
such
interference
is
necessary
to
avert
greater
damage
Coercion
is
consummated
even
if
the
offended
party
did
not
accede
to
the
purpose
of
the
coercion
GRAVE
COERCION
ILLEGAL
DETENTION
Intent
to
deprive
the
Intent
to
deprive
liberty
offended
party
of
his
present
liberty
is
not
clear
GRAVE
COERCION
MALTREATMENT
OF
PRISONERS
If
the
offended
party
is
If
the
offended
party
is
a
NOT
a
prisoner,
prisoner,
extracting
extracting
information,
information,
using
force
or
using
force
or
intimidation
is
intimidation
is
coercion
maltreatment
GRAVE
COERCION
UNJUST
VEXATION
Act
of
preventing
by
force
Act
of
preventing
by
force
was
made
at
the
time
the
was
already
done
when
offended
party
was
doing
the
violence
was
exerted
or
about
to
do
the
act
prevented
ART.
287.
LIGHT
COERCIONS
ELEMENTS
OF
PAR.
1:
1. That
the
offender
must
be
a
creditor
of
the
offended
party;
2. That
he
seizes
anything
belonging
to
his
debtor;
3. That
the
seizure
of
the
thing
be
accomplished
by
means
of
violence
or
a
display
of
material
force
producing
intimidation;
and
4. That
the
purpose
of
the
offender
is
to
apply
the
same
to
the
payment
of
the
debt.
ELEMENTS
OF
PAR.
2
(UNJUST
VEXATION)
Any
other
coercion
or
unjust
vexation
Paragraph
2
of
Art.
287
covers
unjust
vexation.
It
includes
any
human
conduct
which,
although
not
productive
of
some
physical
or
material
harm
would,
however,
unjustly
annoy
or
vex
an
innocent
person.
Light
coercion
under
the
1st
paragraph
of
this
article
will
only
be
unjust
vexation
if
the
3rd
element
(employing
violence
or
intimidation)
is
absent.
NOTE: No demand for money or condition involved Threat is not deliberate That which ordinarily are grave threats may be considered under this article if made in the heat of anger Where threats are directed to a person whos absent and uttered in a temporary fit of anger, the offense is only light threats ART. 286. GRAVE COERCIONS TWO WAYS OF COMMITTING GRAVE COERCION 1. By preventing another by means of violence, threats or intimidation, from doing something not prohibited by law. 2. By compelling another by means of violence, threats or intimidation to do something against his will whether it be right or wrong. ELEMENTS: 1. That a person a. prevented another from doing something not prohibited by law or b. compelled another him to do something against his will, be it right or wrong 2. that the prevention or compulsion is effected by violence, threats, or intimidation 3. Without authority of law or not in the exercise of any lawful right WHEN PREVENTING NOT CONSIDERED COERCION: 1. When a public officer prevents the ceremonies of a religious group under Art. 132 2. When a person prevents the meeting of a legislative assembly under Art. 143 3. When a person prevents a member of Congress from attending meetings, expressing his opinions or casting his vote through the use of force or intimidation WHEN COMPELLING NOT COERCION: 1. When a public officer compels a person to change his residence under Art. 127 2. When a person kidnaps his debtor to compel him to pay under Art. 267 AGGRAVATING CIRCUMSTANCES: 1. Violation of the exercise of the right of suffrage 2. Compelling another to perform a religious act or 3. Preventing another from exercising such right or from doing such act (as amended by RA. 7890).
ART. 288. OTHER SIMILAR COERCIONS (COMPULSORY PURCHASE OF MERCHANDISE AND PAYMENT OF WAGES BY MEANS OF TOKENS) ACTS PUNISHABLE: 1. By forcing or compelling, directly or indirectly, or knowingly permitting the forcing or compelling of the laborer or employee of the offender to purchase merchandise or commodities of any kind from him. 2. By paying the wages due his laborer or employee by means of tokens or objects other than the legal tender currency of the Philippines, unless expressly requested by such laborer or employee. ELEMENTS OF NO. 1: 1. That the offender is any person, agent or officer of any association or corporation. 2. That he or such firm or corporation has employed laborers or employees 3. That he forces or compels, directly or indirectly, or knowingly permits to be forced or compelled, any of his or its laborers or employees to purchase merchandise or commodities of any kind from him or from said firm or corporation. ELEMENTS OF NO. 2: 1. That the offender pays the wages due a laborer or employee employed by him by means of tokens or objects 2. That those tokens or objects are other than the legal tender currency of the Philippines. 3. That such employee or laborer does not expressly request that he be paid by means of tokens or objects. ART. 289. FORMATION, MAINTENANCE, AND 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; and 2. That the purpose is to organize, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employees. 3. The act shall not constitute a more serious offense. NOTE: peaceful picketing is not prohibited; must be confined strictly and in good faith to gaining information and to peaceful persuasion and argument - employing violence or making threats by picketers may make them liable for coercion
================================================
================================================
CRIMINAL
LAW
REVIEWER
ART. 290. DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE ELEMENTS: 1. That the offender is a private individual or even a public officer not in the exercise of his official function; 2. That he seizes the papers or letters of another; 3. That the purpose is to discover the secrets of such another person; and 4. That offender is informed of the contents or the papers or letters seized. NOTE: SEIZE - to place in the control of someone a thing or to give him the possession thereof and it is NOT necessary that in the act, there be force or violence. This article is not applicable to parents with respect to their minor children or to spouses with respect to the papers or letters of either of them. Contents of the correspondence need not be secret. The purpose of the offender prevails. Qualifying circumstance: When the offender reveals the contents of such papers or letters to a 3rd person. This article does not require that the offended party be prejudiced. DISCOVERING SECRETS PUBLIC OFFICER THROUGH SEIZURE OF REVEALING SECRETS OF CORRESPONDENCE PRIVATE INDIVIDUAL (ART. 290) (ART. 230) Private individual who Public officer comes to seizes the papers or know of secret of any letters of another to private individual by discover the latters reason of his office. secrets. Not necessary that there Public officer comes to be a secret know of secret of any private individual by reason of his office. If there was, not Reveals secret without necessary to be revealed justifiable means ART. 291. REVEALING SECRETS WITH ABUSE OF OFFICE ELEMENTS: 1. That the offender is a manager, employee or servant; 2. That he learns the secrets of his principal or master in such capacity; and 3. That he reveals such secrets.
Page 87 of 129
NOTE: Damage is not required by this article. Secret must be learned by reason of their employment ART. 292. REVELATION OF INDUSTRIAL SECRETS ELEMENTS: 1. That the offender is a person in charge, employee or workman of a manufacturing or industrial establishment; 2. That the manufacturing or industrial establishment has a secret of the industry which the offender has learned; 3. That the offender reveals such secrets; and 4. That prejudice is caused to the owner. NOTE: Prejudice is an essential element of this offense. The revelation of the secret might be made after the employee or workman had ceased to be connect connected with the establishment.
under R.A. 4200. There must be either a physical interruption through the wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept or record the spoken words.
PERSONS LIABLE: 1. Any person, not being authorized by all the parties to any private communication or spoken word: a. taps any wire or cable; or b. uses any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or walkie- talkie or tape recorder, or however otherwise described. 2. Any person, whether or not a participant in the above- mentioned acts: a. knowingly possesses any tape record, wire record, disc record, or any other such record or copies thereof of any communication or spoken word; or b. replays the same for any other person/s; or c. communicates the contents thereof, either verbally or in writing, to any other person; or d. furnishes transcriptions thereof, whether complete or partial, to any other person. A peace officer is exempt from liability if his acts were done under lawful order of the court. However, he can only use the recording for the case for which it was validly requested. Information obtained in violation of the Act is inadmissible in evidence in any hearing or investigation. An extension phone is not one of those prohibited
of the court on motion of the prosecutor or of the accused. EXAMINATION OF BANK DEPOSITS AND DOCUMENTS: 1. JUDICIAL AUTHORIZATION (Sec. 27) The provisions of Republic Act No. 1405 as amended, to the contrary notwithstanding, the justices of the Court of Appeals designated as a special court to handle anti- terrorism cases after satisfying themselves of the existence of probable cause in a hearing called for that purpose that (1) a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism (2) of a judicially declared and outlawed terrorist organization, association, or group of persons, and (3) of a member of such judicially declared and outlawed organization, association, or group of persons May authorize in writing any police or law enforcement officer and the members of his/her team duly authorized in writing by the anti-terrorism council to: (a) examine, or cause the examination of, the deposits, placements, trust accounts, assets and records in a bank or financial institution; and (b) gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution. the bank or financial institution concerned shall not refuse to allow such examination or to provide the desired information, when so ordered by and served with the written order of the Court of Appeals 2. APPLICATION (SEC. 28) The written order of the Court of Appeals authorizing the examination of bank deposits, placements, trust accounts, assets, and records: (1) of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of any judicially declared and outlawed terrorist organization, association, or group of persons, or (3) of any member of such organization, association, or group of persons in a bank or financial institution, and the gathering of any relevant information about the same from said bank or financial institution, shall only be granted by the authorizing division of the Court of Appeals upon an ex parte application to that effect of a police or of a law enforcement official who has been duly authorized in writing to file such ex parte application by the Anti-Terrorism Council created in Section 53 of this Act to file such ex parte application, and upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish the facts that will justify the need and urgency of examining and freezing the bank deposits, placements,
trust accounts, assets, and records: (1) of the person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of a judicially declared and outlawed terrorist organization, association or group of persons, or (3) of any member of such organization, association, or group of persons. UNAUTHORIZED REVELATION OF CLASSIFIED MATERIALS (Sec. 46) Any person, police or law enforcement agent, judicial officer or civil servant who, not being authorized by the Court of Appeals to do so, reveals in any manner or form any classified information under this Act.
R.A. 9208 ANTI-TRAFFICKING IN PERSONS ACT OF 2003 Section 4. Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical, to commit any of the following acts: (a) To recruit, transport, transfer; harbor, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (b) To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (c) To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage; (d) To undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography or sexual exploitation; (e) To maintain or hire a person to engage in prostitution or pornography; (f) To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;
(g) To recruit, hire, adopt, transport or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person; and (h) To recruit, transport or adopt a child to engage in armed activities in the Philippines or abroad. Section 5. Acts that Promote Trafficking in Persons. - The following acts which promote or facilitate trafficking in persons, shall be unlawful: (a) To knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons; (b) To produce, print and issue or distribute unissued, tampered or fake counseling certificates, registration stickers and certificates of any government agency which issues these certificates and stickers as proof of compliance with government regulatory and pre-departure requirements for the purpose of promoting trafficking in persons; (c) To advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet, of any brochure, flyer, or any propaganda material that promotes trafficking in persons; (d) To assist in the conduct of misrepresentation or fraud for purposes of facilitating the acquisition of clearances and necessary exit documents from government agencies that are mandated to provide pre-departure registration and services for departing persons for the purpose of promoting trafficking in persons; (e) To facilitate, assist or help in the exit and entry of persons from/to the country at international and local airports, territorial boundaries and seaports who are in possession of unissued, tampered or fraudulent travel documents for the purpose of promoting trafficking in persons; (f) To confiscate, conceal, or destroy the passport, travel documents, or personal documents or belongings of trafficked persons in furtherance of trafficking or to prevent them from leaving the country or seeking redress from the government or appropriate agencies; and (g) To knowingly benefit from, financial or otherwise, or make use of, the labor or services of a person held to a condition of involuntary servitude, forced labor, or slavery.
Section 6. Qualified Trafficking in Persons. - The following are considered as qualified trafficking: (a) When the trafficked person is a child; (b) When the adoption is effected through Republic Act No. 8043, otherwise known as the "Inter-Country Adoption Act of 1995" and said adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (c) When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons, individually or as a group; (d) When the offender is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee; (e) When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies; (f) When the offender is a member of the military or law enforcement agencies; and (g) When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS).
=====================================
=====================================
TOPICS
UNDER
THE
SYLLABUS:
Chapter
1:
Robbery
in
General
Sec.
1
-
Robbery
with
violence
or
intitmidation
of
persons
Sec.
2
-
Robbery
by
the
use
of
force
upon
things
Chapter
2:
Brigandage
Chapter
3:
Theft
PD
1612
Chapter
4:
Usurpation
Chapter
5:
Culpable
Insolvency
Chapter
6:
Swindling
and
Other
Deceits
BP
22
Chapter
7:
Chattel
Mortgage
Chapter
8:
Arson
and
Other
Crimes
Involving
Destructions
PD
1613
Chapter
9:
Malicious
Mischief
Chapter
10:
Exemption
from
Criminal
Liability
in
Crimes
against
Property
RA
6539
================================================
a.
result of the violence used, and b. existence of intimidation Value of personal property is immaterial
When committed in an inhabited house, public building, or edifice devoted to religious worship: a. value of the property taken, and b. whether or not offenders carry arms When committed in an uninhabited building: - Value of the property taken
================================================
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.
ARTICLE 293. WHO ARE GUILTY OF ROBBERY ELEMENTS 1. There must be Personal property belonging to another 2. Unlawful taking of that property 3. Taking was with Intent to gain (animus lucrandi) 4. That there is (a) violence against or intimidation of person or (b) force upon anything DISTINCTIONS BETWEEN EFFECTS OF EMPLOYMENT OF VIOLENCE OR INTIMIDATION AND USE OF FORCE UPON THINGS VIOLENCE AGAINST OR FORCE UPON ANYTHING INTIMIDATION OF PERSONS WHEN ROBBERY Always, whenever violence Only when force is used to against or intimidation of either: any person is present a. enter the building, or b. to break doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle inside the building or to force them open outside after taking the same from building BASIS OF PENALTY
NOTES:
1. Unlawful
taking
is
complete
when
a. With
violence/intimidation:
property
must
at
least
be
in
the
possession
of
the
offender
b. With
force:
property
must
be
taken
out
of
the
building
2. Intent
to
gain
is
presumed
from
unlawful
taking
and
must
concur
with
personal
property
belonging
to
another
3. When
violence/intimidation
must
take
place
a. General
Rule:
before
taking
is
complete
b. Exception:
when
violence
results
in
homicide,
rape,
intentional
mutilation,
or
any
of
the
serious
physical
injuries
under
Art.
263,
par.
1
and
2
robbery
will
be
complexed
with
any
of
those
crimes,
even
if
the
taking
was
already
complete
when
the
violence
was
used
by
the
offender
4. Entrance
as
an
element
1. General
rule:
necessary
2. Exception:
A. when
the
robbery
is
committed
by
breaking
wardrobes,
chests,
or
any
other
kind
of
locked
or
sealed
furniture
or
receptacle
inside
an
inhabited
house,
a
public
building
or
an
edifice
devoted
to
religious
worship,
or
by
taking
such
furniture
or
objects
away
to
be
broken
or
forced
open
outside
[Art.
299,
subdivision
(b)];
and
B. when
the
robbery
in
an
uninhabited
building,
other
than
a
public
building
or
edifice
devoted
to
religious
worship,
is
committed
by
breaking
any
wardrobe,
chest,
or
any
sealed
or
closed
furniture
or
receptacle,
or
by
removing
a
closed
or
sealed
receptacle
even
if
the
same
be
broken
open
elsewhere
[Art.
302,
par.
4
and
5]
5. Prohibitive
articles
may
be
the
subject
matter
of
robbery
6. Taking
need
not
be
immediately
after
the
intimidation
ii. Accessory: Necessity of knowledge There is an issue regarding the penalty imposable against an accessory. Without knowledge of the killing committed during robbery. Jurisprudence40 provides that such an accessory could not have prevented the same, hence, should be an accessory only to the crime of simple robbery; Art. 53 of the RPC provides that the penalty for an accessory is the penalty lower by two degrees than that prescribed by law for the consummated felony. Since robbery cannot be disintegrated from the special complex crime of robbery with homicide, there is an issue on the basis of such an accessorys penalty f. Distinguished from Highway Robbery Conviction for highway robbery requires proof that several accused were organized for the purpose of committing it indiscriminately PARAGRAPH 2: ROBBERY WITH RAPE a. It is important to determine the primary objective or intent of accused b. Intent to gain from personal property of another must precede the rape c. Rape is committed on the occasion of robbery, even if committed in another place within the house d. When rape and homicide co-exist in the commission of robbery, rape is considered as an aggravating circumstance only to Robbery with Homicide e. There is no Robbery with attempted rape f. Additional rapes committed on the same occasion of robbery will not increase the penalty PARAGRAPH 4: ROBBERY WITH UNNECESSARY VIOLENCE AND INTIMIDATION a. There are two cases provided: i. When the violence or intimidation was carried to a degree clearly unnecessary, or ii. When physical injuries covered by sub. 3 and 4 of Art. 263 were inflicted upon any person not responsible for the commission of robbery b. Violence or intimidation in the first case need not be present before or at the exact moment when the object is taken i. May be committed at any time before the owner is finally deprived of his property
39
40
People v. Carrozo, 342 SCRA 600 (2000); People v. Hernandez, G.R. No. 139697, June 15, 2004
People v. Doble, 114 SCRA 131; People v. Adriano y Sanguesa, 95 SCRA 107
ART.
295.
ROBBERY
WITH
PHYSICAL
INJURIES,
COMMITTED
IN
AN
UNINHABITED
PLACE
AND
BY
A
BAND,
OR
WITH
THE
USE
OF
FIREARM
ON
A
STREET,
ROAD
OR
ALLEY
(QUALIFIED
ROBBERY)
INSTANCES
QUALIFYING
ROBBERY
WITH
VIOLENCE
AGAINST
OR
INTIMIDATION
OF
PERSONS
1. in
an
uninhabited
place,
or
2. by
a
band,
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
taking
the
passengers
thereof
by
surprise
in
the
respective
conveyances,
or
5. on
a
street,
road,
highway
or
alley
and
the
intimidation
is
made
with
the
use
of
firearms,
whether
licensed
or
unlicensed.
NOTE:
This
article
will
not
apply
to
the
special
complex
crimes
of
robbery
w/
homicide,
w/
rape,
or
w/
serious
physical
injuries
under
paragraph
1
of
Art.
263
must
be
alleged
in
the
information
and
proved
during
trial
cannot
be
offset
by
generic
mitigating
circumstances
ART.
296.
DEFINITION
OF
A
BAND
AND
PENALTY
INCURRED
BY
MEMBERS
THEREOF
ROBBERY
IS
DEEMED
COMMITTED
BY
A
BAND:
When
at
least
4
armed
malefactors
take
part
REQUISITES
FOR
LIABILITY
FOR
THE
ACTS
OF
THE
OTHER
MEMBERS
OF
THE
BAND:
1. That
the
accused
was
a
member
of
the
band;
2. That
he
was
present
at
the
commission
of
a
robbery
by
that
band;
3. That
the
other
members
of
the
band
committed
an
assault;
and
4. That
he
did
not
attempt
to
prevent
the
assault.
NOTES:
1. If
the
robbery
and
assault
was
committed
by
a
band
and
or
in
conspiracy
(even
if
it
was
for
robbery
only),
all
participants
are
liable;
unless:
a. The
accused
prevented
the
assault
or
attempted
to
prevent;
or
b. The
accused
is
a
principal
by
inducement
as
to
the
commission
of
robbery
UNLESS
he
ordered
such
killing
or
the
commission
of
other
crimes
2. Proof
of
conspiracy
is
not
necessary
when
four
or
more
armed
persons
committed
robbery
3. If
rape
was
committed
by
one
member
of
the
band
w/o
the
knowledge
of
the
others,
he
alone
is
guilty
of
robbery
with
rape
PARAGRAPH 6: ROBBERY WITH VIOLENCE OR INTIMIDATION IN OTHER CASES a. Acts done, either by their own nature or by reason of the circumstances under which they are executed, must inspire fear in the person against whom they are directed i. objective fright (due to some act on the part of the accused) and NOT subjective fright (fear arising from the mere temperamental timidity of the offended party) THREATS TO EXTORT MONEY DISTINGUISHED FROM ROBBERY THRU INTIMIDATION THREATS TO EXTORT ROBBERY THRU MONEY INTIMIDATION Conditional or future Actual and immediate intimidation intimidation Intimidation may be Intimidation is personal through an intermediary Intimidation may refer to Intimidation is directed only person, honor or property to the offended party of the offended party Gain is not immediate Gain is immediate ROBBERY WITH VIOLENCE DISTINGUISHED FROM GRAVE COERCION ROBBERY WITH VIOLENCE GRAVE COERCION Violence is used Intent to gain No intent to gain ROBBERY DISTINGUISHED FROM BRIBERY ROBBERY BRIBERY The owner of the property The owner of the property didnt commit a crime but is has committed a crime and intimidated to deprive him gives money as way to avoid of his property arrest or prosecution Deprived of money thru Giving of money is in a force or intimidation; neither sense voluntary voluntary nor mutual Example: Accused, a sanitary inspector, demands payment of an amount with threats of arrest and prosecution after inspection in the offended partys store. The crime committed is robbery because the principal distinction from bribery is the voluntariness of the transaction on the part of the owner of the property People v. Fransisco,[ 45 Phil. 819]
ART
299.
ROBBERY
IN
AN
INHABITED
HOUSE
OR
PUBLIC
BUILDING
OR
EDIFICE
DEVOTED
TO
WORSHIP
SUBDIVISION
(A)
A. ELEMENTS
1. That
the
offender
entered
a. an
inhabited
house,
or
b. public
building,
or
c. edifice
devoted
to
religious
worship;
2. That
the
entrance
was
effected
by
any
of
the
following
means:
a. Through
an
opening
not
intended
for
entrance
or
egress,
b. By
breaking
any
wall,
roof,
or
floor
or
breaking
any
door
or
window,
c. By
using
false
keys,
picklocks
or
similar
tools,
or
d. By
using
any
fictitious
name
or
pretending
the
exercise
of
public
authority;
and
3. That
once
inside
the
building,
the
offender
took
personal
property
belonging
to
another
with
intent
to
gain.
B. There
must
be
intention
to
take
personal
property
in
entering
the
building
C. The
offender
must
enter
the
building
in
which
the
robbery
was
committed
(i.e.,
whole
body
of
the
culprit
must
be
inside
the
building)
D. Inhabited
house
is
any
shelter,
ship
or
vessel
constituting
the
dwelling
of
one
or
more
persons
even
though
the
inhabitants
thereof
are
temporarily
absent
therefrom
when
the
robbery
is
committed
E. Public
building
is
every
building
owned
by
the
Government
or
belonging
to
a
private
person
but
used
or
rented
by
the
Government,
although
temporarily
unoccupied
by
the
same
F. False
keys
are
genuine
keys
stolen
from
the
owner
or
any
keys
other
than
those
intended
by
the
owner
for
use
in
the
lock
forcibly
opened
by
the
offender
(Art.
305)
G. Picklock
or
similar
tools
are
those
specially
adopted
to
the
commission
of
robbery
(Art.
304)
H. When
the
false
key
is
used
to
open
wardrobe
or
locked
receptacle
or
drawer
or
inside
door,
it
is
only
theft
I. Using
of
fictitious
name
or
pretending
the
exercise
of
public
authority
must
be
the
efficient
cause
of
the
opening
by
the
offended
party
of
the
door
of
his
house
to
the
accused
J. The
four
means
described
must
be
resorted
to
by
offender
to
enter;
not
to
get
out
SUBDIVISION
(B)
A. ELEMENTS
1. That
the
offender
is
inside
a
dwelling
house,
public
building,
or
edifice
devoted
to
religious
worship,
ART 297. ATTEMPTED AND FRUSTRATED ROBBERY COMMITTED UNDER CERTAIN CIRCUMSTANCES ATTEMPTED OR FRUSTRATED ROBBERY WITH HOMICIDE 1. The term homicide is used in its generic sense 2. The crime is a special complex crime 3. Attempted or frustrated robbery with serious physical injuries is not covered; it is under Art. 48 4. There must be overt acts pointing to robbery ART 298. EXECUTION OF DEEDS BY MEANS OF VIOLENCE OR INTIMIDATION ELEMENTS: 1. That the offender has intent to defraud another; 2. That the offender compels him to sign, execute, or deliver any public instrument or document; and 3. That the compulsion is by means of violence or intimidation This article is not applicable if the document is void Distinguished from grave coercion When the offended party is under obligation to sign, execute or deliver the document under the law or when there is no intent to defraud, it is grave coercion Public describes instrument only; hence, article applies to private or commercial documents INSTRUMENT DOCUMENT A mere written statement Any written statement by which a right is established or an obligation extinguished; a writing or instrument by which a fact may be proven and affirmed
SECTION 2 ROBBERY BY THE USE OF FORCE UPON THINGS TWO (2) INSTANCES: 1. Offender entered: a. An inhabited house or public building or edifice devoted to religious worship (Art. 299), or b. An uninhabited place or in a private building (Art. 302) 2. If there was no entrance, the offender broke a wardrobe, chest, or any other kind of locked or closed or sealed furniture or receptacle in the house or building, or he took it away to be broken or forced open outside
ART.
302.
ROBBERY
IN
AN
UNINHABITED
PLACE
OR
IN
A
PRIVATE
BUILDING
ELEMENTS:
1. That
the
offender
entered
an
uninhabited
place
or
a
building
which
was
not
a
dwelling
house,
not
a
public
building,
or
not
an
edifice
devoted
to
religious
worship;
2. That
any
of
the
following
circumstances
was
present:
a. That
entrance
was
effected
through
an
opening
not
intended
for
entrance
or
egress,
b. A
wall,
roof,
floor,
or
outside
door
or
window
was
broken,
c. The
entrance
was
effected
through
the
use
of
false
keys,
picklocks
or
other
similar
tools,
d. A
door,
wardrobe,
chest,
or
any
sealed
or
closed
furniture
or
receptacle
was
broken;
or
e. A
closed
or
sealed
receptacle
was
removed,
even
if
the
same
be
broken
open
elsewhere;
and
3. That
with
intent
to
gain,
the
offender
took
therefrom
personal
property
belonging
to
another
NOTES:
1. Uninhabited
place
means
an
uninhabited
building
2. Building
includes
any
kind
of
structure
for
storage
or
safekeeping
of
personal
property
3. Robbery
in
a
store
a. Art.
299
if
the
store
is
used
as
a
dwelling;
or
if
the
store
is
a
dependency
of
an
inhabited
house
with
an
interior
entrance
connected
therewith
b. Art.
302
if
the
store
is
not
used
as
a
dwelling
4. taking
of
mail
matter
or
large
cattle
in
any
kind
of
robbery
makes
the
penalty
higher
by
one
degree
5. penalty
is
based
on
value
of
property
taken
ART.
303.
ROBBERY
OF
CEREALS,
FRUITS,
OR
FIREWOOD
IN
AN
UNINHABITED
PLACE
OR
PRIVATE
BUILDING
NOTES:
1. When
the
robbery
described
in
Arts.
299
and
302
consists
in
the
taking
of
cereals,
fruits,
or
firewood,
the
penalty
is
one
degree
lower.
a. Only
when
robbery
is
committed
by
the
use
of
force
upon
things
2. The
palay
must
be
kept
by
the
owner
as
seedling
or
taken
for
that
purpose
by
the
robbers
a. Does
not
include
taking
sacks
of
hulled
rice
(bigas)
falls
under
Art.
302
ART.
304.
POSSESSION
OF
PICKLOCKS
OR
SIMILAR
TOOLS
ELEMENTS
1. That
the
offender
has
in
his
possession
picklocks
or
similar
tools;
regardless of the circumstances under which he entered it; and 2. That the offender takes personal property belonging to another with intent to gain, under any of the following circumstances: a. by the breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle, or b. by taking such furniture or objects away to be broken or forced open outside the place of the robbery. B. Entrance need not be effected by any of the means mentioned in subdivision (a) C. Doors refer only to doors, lids, or opening sheets of furniture or other portable receptacles not to inside doors of house or building D. When sealed box is taken out for the purpose of breaking it, crime is already consummated robbery. There is no need to actually open it inside the building from where it was taken. E. Distinguished from estafa or theft 1. If the box was confided into the custody of accused and he takes the money contained therein, the crime is estafa 2. If the box was found outside of the building and the accused forced it open, the crime is theft ART 300. ROBBERY IN AN UNINHABITED PLACE AND BY A BAND Penalty in previous article will be the maximum period if: 1. Robbery with force upon things must be committed in an uninhabited place and by a band the inhabited house, public building, or edifice devoted to religious worship MUST be located in an uninhabited place AS OPPOSED TO: Robbery with violence against or intimidation of persons must be committed in an uninhabited place or by a band ART 301. WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING, OR BUILDING DECLARED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES REQUISITES FOR DEPENDENCIES All interior courts, corrals, warehouses, granaries or enclosed places must be: 1. Contiguous to the building; 2. Having an interior entrance connected therewith, and 3. Forming part of the whole place is still considered inhabited even if the occupant is absent when robbery occured
2.
That
such
picklocks
or
similar
tools
are
specially
adopted
to
the
commission
of
robbery;
and
3. That
the
offender
does
not
have
lawful
cause
for
such
possession
Actual
use
of
the
picklocks
or
similar
tools
is
not
necessary
liability
of
a
locksmith
is
higher
than
that
of
a
mere
possessor
ART.
305.
FALSE
KEYS
WHAT
CONSTITUTE
1. Picklocks
or
similar
tools,
2. Genuine
keys
stolen
from
the
owner;
and
3. Any
key
other
than
those
intended
by
owner
for
use
in
the
lock
forcibly
opened
by
the
offender.
If
the
key
was
entrusted
to
the
offender
and
he
used
it
to
steal,
crime
is
not
robbery
but
theft.
Possession
of
false
keys
in
(2)
and
(3)
are
not
punishable
occasion Mere formation of a band is sufficient to convict It is necessary to prove actual commission of robbery
Both require that the offenders form a band of robbers THINGS TO PROVE: 1. that there is an organization of more than 3 armed persons forming a band of robbers 2. that the purpose of the band is any of those enumerated 3. that they went upon the highway or roamed upon the country for that purpose 4. that the accused is a member of the band ART. 307. AIDING AND 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; and 3. That the offender does any of the following acts: a. he in any manner aids, abets or protects such band of brigands, or b. he gives them information of the movements of the police or other peace officers of the Government, or c. he acquires or receives the property taken by such brigands. PRESUMPTION OF LAW AS TO KNOWLEDGE Any person performing any of the acts provided in this article has performed them knowingly, unless the contrary is proven ================================================
================================================
Chapter 2: Brigandage
================================================ ART. 306. WHO ARE BRIGANDS PENALTY ELEMENTS: 1. There are at least 4 armed persons 2. They formed a band of robbers 3. The purpose is any of the following: a. to commit robbery in the highway or b. to kidnap persons for the purpose of extortion or to obtain ransom, or c. to attain by means of force and violence any other purpose NOTES: 1. The existence of any of the purpose mentioned is sufficient (i.e., mere formation) to convict 2. If any of the members carries unlicensed firearm, all are presumed highway robbers or brigands 3. Arms carried need not necessarily be firearmsas long as they are deadly weapons BRIGANDAGE DISTINGUISHED FROM ROBBERY BY A BAND BRIGANDAGE ROBBERY BY A BAND Purposes are those enumerated above Purpose is only to commit robbery, not necessarily in highway Agreement is to commit only a particular robbery
Chapter 3: Theft
================================================
ART. 308. WHO ARE LIABLE FOR THEFT 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; and 5. That the taking be accomplished without the use of violence against or intimidation of persons or force upon things.
PERSONS LIABLE 1. Those who: a. with intent to gain, b. but without violence against or intimidation of persons nor force upon things c. take personal property of another d. without the latters consent. 2. Those who: a. having found lost property, b. fail to deliver the same to the local authorities or its owner. Retention of money/property found is theft. What is punished is retention or failure to return with intent to gain. The offenders knowledge of the identity of the owner of the property is not required. His knowledge that the property is lost is enough. 3. Those who: a. after having maliciously damaged the property of another, b. remove or make use of the fruits or object of the damage caused by them. Killing the cattle of another which destroyed his(offenders) property and getting meat for himself is theft 4. Those who a. enter an enclosed estate or a field where b. trespass is forbidden or which belongs to another and, c. without the consent of its owner, hunt, fish or gather fruits, cereals or other farm products Fishing should not be in the fishpond or fishery within the field or estate; otherwise, it is qualified theft under Art. 310. NOTES: 1. Unlawful taking consummates theft even in the absence of the opportunity to dispose of the personal property taken. The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact that the owners have already been deprived of their right to possession upon the completion of the taking. People v. Villanueva, [G.R. No. 160188, June 21, 2007], overturning the ruling in People v. Dio, 45 O.G. 3446, 18 February 1948, and People v. Flores, C.A 62 O.G. 2644, 1964 holding that the determinative fact of consummation of theft is the ability of the offender to dispose freely of the articles stolen)
Taking is consummated the moment the offender has full possession of the thing even if he did not have an opportunity to dispose of the same; it does not require the taking away or carrying away a. unless the thing to be taken is bulky, it is consummated only when the offender is able to place it under his control and in such a situation as he could dispose of it at once; in the case of bulky goods, the ability to dispose freely is restricted 41 2. The taking must be accompanied by the intention, at the time of the taking, of withholding the thing with character of permanency42 3. Intent to gain is presumed from the unlawful taking a. Except if the person takes the thing from another believing in good faith to be his own 4. Consent (of owner) contemplated in the element of theft refers to consent freely given and not merely implied from silence of the owner a. Allegation of lack of consent is indispensable DISTINGUISHED FROM ESTAFA THEFT ESTAFA If only material possession If juridical possession is (i.e. custody of object) was transferred (Ex., by a given to the accused and it contract of bailment) to the is actually taken by him with accused and he takes the no intent to return property with intent to gain DISTINGUISHED FROM ROBBERY THEFT ROBBERY If violence or intimidation is If violence or intimidation committed after taking is committed after taking is complete complete results in homicide, rape, intentional mutilation, or serious physical injuries as a special complex crime Force is absorbed Force is employed to enter Sufficient that consent on Necessary that there should the part of the owner is be a taking against the will lacking of the owner 5. In theft of lost property, it is necessary to prove: a. Time of the seizure of the things b. That it was lost property belonging to another, and
41 42
People v. Flores, C.A., 62 O.G 2644 People v. Rico, et al. C.A., 50 O.G. 3103; Peple v. Galang, et al. C.A., 43 O.G. 577
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 6. No frustrated theft 7. Actual or real gain is not necessary; enough that on taking the property, the accused was actuated by the desire or intent to gain 8. Unless force upon things is used to enter a building, it is theft and not robbery EXCEPT it is robbery when a furniture, chest, or other locked/sealed receptacle is broken in the house or building or taken therefrom and broken outside 9. When a person possesses part of recently stolen property, he is presumed to be the thief of all unless he has a satisfactory explanation of his possession 10. Theft is NOT a continuing offense ART 309. PENALTIES BASIS 1. The value and/or the nature of the thing taken, or 2. The circumstances or causes that impelled the culprit to commit the crime If there is no evidence of the value of the property stolen, the court should: a. impose the minimum penalty involving the value of P5.00 b. take judicial notice of its value ART 310. QUALIFIED THEFT CIRCUMSTANCES 1. It is committed by a domestic servant, or 2. Committed with grave abuse of confidence, or 3. The property stolen is a: a. motor vehicle, b. mail matter, c. large cattle, d. coconut from the premises of a plantation (whether still in the tree or deposited on the ground), e. fish from a fishpond or fishery 4. Committed on the occasion of calamities, vehicular accident and civil disturbance. NOTES: 1. Grave abuse of confidence necessitates a high degree of confidence between the offender and the offended party. (Ex. guests). 2. Theft is qualified if it is committed by one who has access to the place where stolen property is kept. (Ex. security guards, tellers) 3. Theft by laborer is only simple theft; not all theft by housemate is qualified theft
c.
4.
Novation
theory
applies
only
when
theres
contractual
relationship
between
the
accused
and
complainant
5. Large
cattle
animal
must
be
taken
alive
OTHER
CIRCUMSTANCES
1. Theft
of
motor
vehicle
a. Anti-Carnapping
Act
of
1972
(R.A.
6539)
2. Theft
of
large
cattle
a. Anti-Cattle
Rustling
Law
of
1974
ART
311.
THEFT
OF
THE
PROPERTY
OF
THE
NATIONAL
LIBRARY
AND
NATIONAL
MUSEUM
It
has
a
fixed
penalty
regardless
of
its
value
P.D.
1612
&
ITS
IMPLEMENTING
RULES
AND
REGULATIONS
ANTI-FENCING
LAW
I. FENCING
1.
FENCING
An
act,
with
intent
to
gain,
of
buying,
selling,
receiving,
possessing,
keeping,
or
in
any
other
manner
dealing
in
anything
of
value
which
a
person
knows
or
should
have
known
to
be
derived
from
the
proceeds
of
the
crime
of
robbery
or
theft.
2.
FENCE
A
person
who
commits
the
act
of
fencing.
A
fence
who
receives
stolen
property
as
above-provided
is
not
an
accessory
but
a
principal
in
the
crime
defined
in
and
punished
by
the
Anti-Fencing
Law.
II. PRESUMPTION
OF
FENCING
Mere
possession
of
any
good,
article,
item,
object,
or
anything
of
value
which
has
been
the
subject
of
robbery
or
thievery
shall
be
prima
facie
evidence
of
fencing.
III. DUTY
TO
OBTAIN
CLEARANCE
OR
PERMIT
TO
SELL
(AS
AN
EXCEPTION)
a. All
stores,
establishments
or
entities
dealing
in
the
buy
and
sell
of
any
good,
article
item,
object
of
anything
of
value,
b. The
merchandise
was
obtained
from
an
unlicensed
dealer
or
supplier,
c. Before
offering
the
same
for
sale
to
the
public,
and
d. From
the
station
commander
of
the
Integrated
National
Police
in
the
town
or
city
where
such
store,
establishment
or
entity
is
located.
Any
person
who
(a)
fails
to
secure
the
clearance
or
permit
required
by
this
section
or
(b)
violates
any
of
the
provisions
of
the
rules
and
regulations
to
be
promulgated
to
carry
out
this
section,
shall
upon
conviction
be
punished
as
a
fence
================================================
Chapter
4:
Usurpation
2. 3.
================================================ ART. 312. OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY ELEMENTS 1. That the offender a. takes possession of any real property, or b. usurps any real rights in property; 2. That the real property or real rights belong to another; 3. That violence against or intimidation of persons is used by the offender in occupying real property or usurpation of real rights in property; and 4. That there is intent to gain DISTINGUISHED FROM THEFT OR ROBBERY USURPATION THEFT OR ROBBERY Occupation or usurpation Taking or asportation Involves real property or real Involves personal property right Intent to gain NOTES: 1. Violence/intimidation must be the means used in occupying real property or usurping real right belonging to another 2. Criminal action is not a bar to civil action for forcible entry Art. 313. Altering boundaries or landmarks 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; and 2. That the offender alters said boundary marks. Intent to gain or fraudulent intent is not necessary; mere alteration is sufficient Alter has a general and indefinite meaning; to make different without changing into something else
Offender absconds with his property; and That there be prejudice to his creditors. Actual prejudice is required; mere intention to prejudice is not sufficient o may involve real property INSOLVENCY LAW FRAUDULENT INSOLVENCY No requirement; not necessary that defendant should have been adjudged bankrupt or insolvent
That
the
criminal
act
should
have
been
committed
after
the
institution
of
insolvency
proceedings,
before
the
Law
applies
================================================
================================================
================================================ ART. 314. FRAUDULENT INSOLVENCY ELEMENTS: 1. Offender is a debtor; that is, he has obligations due and payable;
Chapter 6: Swindling and Other Deceits ================================================ ART. 315. SWINDLING (ESTAFA) ELEMENTS, IN GENERAL 1. Accused defrauded another a. by abuse of confidence, or b. by means of deceit; and 2. That damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. The element of damage or prejudice may consist in: a. That the offended party being deprived of his money or property, as a result of the defraudation, b. Disturbance in property rights, or c. Temporary prejudice WAYS OF COMMITTING ESTAFA A. Estafa With unfaithfulness or abuse of confidence 1. Altering the substance Elements: a. Offender has an onerous obligation to deliver something of value; b. That he alters its substance, quantity, or quality; and c. That damage or prejudice is caused to another. when theres no agreement as to the quality of the thing to be delivered, the delivery of the thing not acceptable to the complainant is not estafa crime may arise even though the obligation is based on an immoral or illegal consideration
2.
By misappropriation or conversion 2.1. Elements a. That money, goods, or other personal property be received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; b. That there be misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt; c. That such misappropriation or conversion or denial is to the prejudice of another; and d. That there is a demand made by the offended party to the offender. 2.2. NOTES: a. Juridical possession (right of possession which may be set up against its owner) is transferred i. As opposed to (a) transfer of material possession which results in theft, or (b) transfer of ownership which results in civil liability only ii. It is presumed that the possession of, and title to, the thing delivered remains in the owner, when the delivery of a chattel has not the effect of transferring the juridical possession thereof, or title thereto iii. Includes quasi-contracts and certain contracts of bailment (deposit, lease, commodatum, but not mutuum [loan of money]) iv. Criminal liability for estafa is not affected by subsequent novation of contract after estafa has already been consummated or incurred, or after criminal information/complaint has already been filed b. Second element: 3 ways of committing estafa w/ abuse of confidence: Misappropriation, conversion, denial i. Misappropriation is to take something for ones own benefit ii. Conversion is to use or dispose of anothers property as if it were ones own c. Third element: Prejudice refers to another or any third person and not merely to the owner
d.
e. ESTAFA WITH ABUSE OF CONFIDENCE VS. THEFT ESTAFA WITH ABUSE OF THEFT CONFIDENCE Offender receives the thing Offender takes the thing from the offended party If in receiving the thing, the If in receiving the thing, the offender acquired not only offender acquired only material but also juridical material or transitory possession of the thing possession, while the juridical possession remains with the offended party TEST TO DISTINGUISH ESTAFA FROM THEFT: Whether or not the owner expects the immediate return of the thing he delivered to the accused: a. if yes, it is theft; b. otherwise, it is estafa; unless the offender is a servant, domestic, or employee where custody is only precarious
i. A partner may be liable for estafa if he misappropriates the share of another partner in profits or if he receives money/property for a specific purpose and later misappropriates it Fourth element: Demand is not required by law; but it is necessary to provide circumstantial evidence, if there is failure to account upon demand Demand is not dispensed with even if: i. the offender cannot be located; BUT in People v. Villegas [56 O.G. 11, 1938], if the offender is in hiding, it is a clear indication of a premeditated intention to abscond with the thing received and the offender could not have complied with the demand even if made, hence, demand is not necessary or ii. there was an agreement upon specific time for delivery or return of the things received; BUT in People v. Librea [48 O.G. 5305], if the receipt signed by the accused stipulated a specified date for the return of the thing, such specified date is in itself a demand dispensing with the need for a subsequent demand to be made There is no estafa through negligence
and for a temporary purpose or for a short period, hence, juridical or constructive possession remains with the owner (Constructive possession is when the owner still has under his control and management and subject to his disposition the thing even if actual physical possession is already transferred) DISTINGUISHED FROM MALVERSATION ESTAFA WITH ABUSE OF MALVERSATION CONFIDENCE Offenders are entrusted with funds or property Continuing offense Always involves private Involves public funds or funds property Offender is a private Offender is a public officer individual, or a public officer accountable for public funds not accountable for public funds Committed by Committed by misappropriating, appropriating, taking or converting, denying having misappropriating or received money consenting, or, through abandonment or negligence, permitting another to take 3. By taking undue advantage of the signature of the offended party in blank 3.1. Elements a. That the paper with the signature of the offended party be in blank; b. That the offended party should have delivered it to offender; c. That above the signature of the offended party a document is written by the offender without authority to do so; and d. That the document so written creates a liability of, or causes damage to, the offended party or any third person. 3.2. If the paper with signature in blank was stolen, the crime is falsification if the offender made it appear that the victim participated in a transaction when in fact he did not so participate. B. By means of deceit 1. Elements a. That there must be a false pretense, fraudulent act or fraudulent means b. That such false pretense, fraudulent act or fraudulent means must be made or executed
c.
d.
prior to or simultaneously with the commission of the fraud; That the offended party must have relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act, or fraudulent means; and That as a result thereof, the offended party suffered damage. THEFT Involves only material or physical possession May or may not involve deceit
ESTAFA BY MEANS OF DECEIT Involves both material or physical possession and juridical possession Always involves deceit
2. Two ways of committing: a. By means of false pretense or fraudulent act, or b. Through fraudulent means B.1. By means of false pretense or fraudulent act 1. By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits a. It is indispensable that the element of deceit (i.e., the false statement or fraudulent representation) be made prior to, or at least simultaneously with, the delivery of the thing such that the deceit uses constitutes the very cause or the only motive which induces the complainant to part with the thing 2. By altering the quality, fineness, or weight of anything pertaining to his art or business 3. By pretending to have bribed any Government employee, without prejudice to the action for calumny which the offended party may deem proper to bring against the offender 4. By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check
a.
b.
c.
d.
e.
Prima facie evidence of deceit: failure to deposit the amount necessary to cover check within three (3) days from receipt of notice from bank of dishonor for insufficiency of funds The check issued must be genuine, and not falsified; otherwise, it is estafa by means of false pretense or through falsification The obligation covered by the check must be contracted at the time of the issuance and delivery of the check; otherwise (i.e., if for a pre-exisiting obligation), there is no estafa The accused must be able to obtain something from the offended party by means of the check damage done against the offended part There is no estafa if the postdated checks are issued and intended merely as a security
2.
BOUNCING
CHECKS
LAW
(B.P.
22)
PLUS
ADMINISTRATIVE
CIRCULAR
NO.
12-2000
RE:
PENALTY
FOR
VIOLATION
OF
B.P.
22
AND
ADMINISTRATIVE
CIRCULAR
NO.
13-3001
RE:
CLASSIFICATION
OF
AC
12- 2000
TWO WAYS OF COMMITTING: A. BY KNOWINGLY MAKING OR DRAWING AND ISSUING ANY CHECK WITH INSUFFICIENT FUNDS OR CREDIT ELEMENTS: 1. That a person makes or draws and issues any check; 2. That the check is made or drawn and issued to apply on account or for value; 3. That the person who makes or draws and issues the check knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; 4. That the check (a) is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or (b) would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. B. BY FAILING TO KEEP SUFFICIENT FUNDS IN OR CREDIT WITH THE DRAWEE BANK ELEMENTS: 1. That a person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check;
That
he
fails
to
keep
sufficient
funds
or
to
maintain
a
credit
to
cover
the
full
amount
of
the
check
if
presented
within
a
period
of
90
days
from
the
date
appearing
thereon;
and
3. That
the
check
is
dishonored
by
the
drawee
bank.
NOTES:
1. The
gravamen
of
BP
22
is
the
issuance
of
a
check;
hence,
the
act
is
malum
prohibitum
2. It
is
no
defense
that:
a. Under
the
first
way
of
violating
BP22,
the
drawer
ordered
the
bank
to
stop
payment,
if
the
check
would
have
been
dishonored
for
insufficient
funds
had
the
order
not
been
made;
unless
the
order
was
made
for
a
valid
reason
(e.g.
wrong
payee)
b. Under
the
second
way
of
violating
BP22,
the
drawer
had
sufficient
funds
in
or
credit
with
the
drawee
bank
because
the
drawer
is
ought
to
keep
sufficient
funds
or
maintain
a
credit
to
cover
the
check
3. Prima
facie
evidence
of
knowledge
of
insufficiency
of
funds:
when
presented
within
90
days
from
the
date
of
the
check;
Except:
when
the
maker
or
drawer
(a)
pays
the
holder
thereof
the
amount
due
thereon,
or
(b)
makes
arrangements
for
payment
in
full
by
the
drawee
of
such
check
within
five
(5)
banking
days
after
receiving
notice
of
dishonor
4. An
acquittal
or
conviction
of
the
drawer
under
the
Revised
Penal
Code
is
not
a
bar
to
his
prosecution
or
conviction
under
BP
22,
because
the
latter
law
requires
the
additional
fact
of
the
drawers
knowledge
of
lack
of
insufficiency
of
funds
SC
ADMIN.
CIRCULAR
12-2000:
1. The
circular
provides
that
in
a
BP22
conviction,
the
judge,
in
his
discretion,
may
impose
fine
alone,
without
imprisonment.
2. The
fine
should
be
not
less
than
but
nor
more
than
double
the
amount
of
the
dishonored
checks.
3. The
circular
is
not
a
penal
law,
hence
there
is
no
retroactivity
in
favor
of
the
accused.
The
circular
applies
only
to
cases
pending
at
its
effectivity.
[Joya
v.
Galvez
(2003)]
4. The
circular
merely
lays
down
a
rule
of
preference.
It
does
not
amend
BP22.
It
merely
urges
the
courts
to
take
into
account
not
only
the
purpose
of
the
law
but
also
the
circumstances
of
the
accused whether
he
acted
in
good
faith
or
on
clear
mistake
of
faith
without
taint
of
negligence.
Thus,
imprisonment
may
still
be
imposed.
[Joya
vs.
Galvez
(2003)]
b. c.
That the offender removed, concealed, or destroyed any of them That the offender had intent to defraud another
Payee
or
person
using
receiving
No
damage
necessary
the
check
must
be
defrauded
or
damaged
(damage
being
the
basis
of
penalty)
Does
not
cover
checks
issued
for
a
pre-existing
obligation
5. By any of the following acts committed at a hotel, inn, restaurant, boarding house, lodging house, or apartment house: a. By obtaining food, refreshment or accommodation therein without paying therefor, with intent to defraud the proprietor or manager thereof b. By obtaining credit therein by the use of any false pretense c. By abandoning or surreptitiously removing any part of his baggage from therein after obtaining credit, food, refreshment, or accommodation therein, without paying therefor B.2. Through fraudulent means 1. By inducing another to sign any document ELEMENTS: a. That the offender induced the offended party to sign a document b. That deceit be employed to make him sign the document c. That the offended party personally signed the document d. That prejudice be caused 2. 3. By resorting to some fraudulent practice to insure success in a gambling game By removing, concealing or destroying documents ELEMENTS: a. That there be court record, office files, documents or any other papers;
DISTINGUISHED FROM FALSIFICATION ESTAFA BY INDUCING FALSIFICATION ANOTHER TO SIGN ANY DOCUMENT Misrepresentations as to the Offended party was willing character of the documents and ready from the executed beginning to sign the document, in the belief it contained statements made by him; but the offender, in preparing the document, attributed statements different from those made by the offended party DISTINGUISHED FROM MALICIOUS MISCHIEF ESTAFA BY DESTROYING MALICIOUS MISCHIEF DOCUMENTS (ART. 327) [ART. 315, PAR. 3(C)] Intent to defraud Intent to defraud is not required
DISTINGUISHED FROM INFIDELITY IN CUSTODY OF DOCUMENTS ESTAFA BY REMOVING, INFIDELITY IN CUSTODY CONCEALING, OR (ART. 226) DESTROYING DOCUMENTS [ART. 315, PAR. 3(C)] Similar in the manner of committing the offense Offender is a private Offender is a public officer individual or even a public who is officially entrusted officer who is not officially with the document entrusted with the documents Intent to defraud Intent to defraud is not required Complex crime of estafa and theft It is committed when theft is employed as a necessary means to commit estafa. People vs. Yusay [60 Phil. 598] illustrates: A owns pawnshop tickets which he entrusted to B for safekeeping. A forgot about the incident and a week later, C took the ticket from B and refused to return it despite insistent demands made by B. Then C redeemed jewels using the ticket without knowledge and consent of A and B. C committed theft, as a necessary means to commit
estafa C took the ticket with intent to gain and without the consent of either A or B; C then used a fictitious name to redeem the jewels, thereby committing estafa. NOTE: Damage caused without deceit or without abuse of confidence gives rise only to civil liability ART 316. OTHER FORMS OF SWINDLING NOTE: There must be actual damage, not merely intent to cause damage, in view of the basis of the penalty which is the value of the damage caused, as provided in the provision 1. BY CONVEYING, SELLING, ENCUMBERING, OR MORTGAGING ANY REAL PROPERTY, PRETENDING TO BE THE OWNER OF THE SAME. ELEMENTS: a. That the thing be immovable, such as a parcel of land or a building; b. That the offender, who is not the owner of said property, represented 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. NOTE: a. Claim of ownership is different from pretense of ownership: the former cannot be said to have pretended to be the owner even if his claim is defective, hence, not liable under this article b. Distinguished from estafa by falsely pretending to possess property ESTAFA BY SELLING, ESTAFA BY FALSELY ENCUMBERING, OR PRETENDING TO MORTGAGING ANY REAL POSSESS PROPERTY PROPERTY, PRETENDING TO [ART. 315, PAR. 2(A)] BE OWNER (ART. 316, PAR.1) Involves only real property Involves either personal or real property The offender exercises or Such exercise or execution executes, as part of the false need not be present representation, some act of dominion or ownership over the property
2.
BY DISPOSING OF REAL PROPERTY AS FREE FROM ENCUMBRANCE, ALTHOUGH SUCH ENCUMBRANCE BE NOT RECORDED ELEMENTS: a. That the thing disposed of be real property; b. That the offender knew that the real property was encumbered, whether the encumbrance is recorded or not. c. That there must be express representation by the offender that the real property is free from encumbrance; and d. That the act of disposing of the real property be made to the damage of another. NOTE: a. The encumbrance must be legally constituted, notwithstanding the provision although such encumbrance be not recorded b. The offended arty must have been deceived, i.e., he would not have granted the loan had he known that the property was already encumbered c. If personal property is involved, apply Art. 319 3. BY WRONGFULLY TAKING BY THE OWNER OF HIS PERSONAL PROPERTY FROM ITS LAWFUL POSSESSOR ELEMENTS: a. That the offender is the owner of personal property; b. That said personal property is in the lawful possession of another; c. That the offender wrongfully takes it from its lawful possessor; and d. That prejudice is thereby caused to the possessor or third person. NOTE: a. The act is punishable as theft when the owner of a property took it without the consent of the lawful possessor, then charged the possessor with the value of the property because there is intent to gain b. Wrongful taking does not include violence: i. With intent to gain robbery ii. Without intent to gain grave coercion 4. BY EXECUTING A FICTITIOUS CONTRACT TO THE PREJUDICE OF ANOTHER DISTINGUISHED FROM FRAUDULENT INSOLVENCY ESTAFA BY EXECUTING ANY FRAUDULENT INSOLVENCY FICTITIOUS CONTRACT (ART. 316) (ART. 316, PAR. 4) Offender simulates a The conveyance is real and
ART.
318.
OTHER
DECEITS
PUNISHABLE
ACTS
1. By
defrauding
or
damaging
another
by
any
other
deceit
not
mentioned
in
preceding
articles;
and
2. By
interpretating
dreams,
making
forecasts,
fortune- telling,
or
by
taking
advantage
of
the
credulity
of
the
public
in
any
other
similar
manner
for
profit
or
gain.
NOTE:
Damage
to
the
offended
party
is
required
SCOPE
any
other
kind
of
conceivable
deceit
may
fall
under
this
article
================================================
conveyance of his property made for a consideration 5. BY ACCEPTING ANY COMPENSATION FOR SERVICES This crime requires fraud; otherwise, solution indebiti results for which a civil obligation arises If the money in payment of a debt and delivered to a wrong person and refused or failed to return the money to the owner thereafter, it is estafa by denial of receipt of money, under Art. 315, 1(b) 6. BY SELLING OR MORTGAGING OR ENCUMBERING REAL PROPERTY OR PROPERTIES WITH WHICH THE OFFENDER GUARANTEED THE FULFILMENT OF HIS OBLIGATION AS SURETY ELEMENTS: a. That the offender is a surety in a bond given in a criminal or civil action; b. That he guaranteed the fulfillment of such obligation with his real property or properties; c. That he sells, mortgages, or, in any other manner encumbers said real property; d. That such sale, mortage or encumbrance is i. without express authority from the court, or ii. made before the cancellation of his bond, or iii. before being relieved from the obligation contracted by him. ART. 317. SWINDLING A MINOR ELEMENTS: 1. That the offender takes advantage of the inexperience or emotions or feelings of a minor; 2. That he induces such minor a. to assume an obligation, or b. to give release, or c. to execute a transfer of any property right; 3. That the consideration is a. some loan of money, b. credit or c. other personal property; and 4. That the transaction is to the detriment of such minor. NOTES: 1. It is sufficient that the offender takes advantage of the inexperience or emotions of the minor 2. Actual proof of deceit or misrepresentation is not necessary 3. Real property is not included
================================================ ART. 319. REMOVAL, SALE OR PLEDGE OF MORTGAGED PROPERTY ACTS PUNISHABLE 1. KNOWINGLY REMOVING MORTGAGED PERSONAL PROPERTY 1.1. ELEMENTS: a. That personal property is mortgaged under the Chattel Mortage Law; b. That the offender knows that such property is so mortgaged; c. That he removes such mortgaged personal to any province or city other than the one in which it was located at the time of the execution of the mortgage; d. That the removal is permanent; and e. That there is no written consent of the mortgagee or his executors, administrator or assignees to such removal. NOTE: a. The offender need not be the mortgagor; it may be any person b. Purpose is to protect mortgagee who should be able to have a ready access to, and easy reach of the property subject of mortgage c. Chattel mortgage must be registered d. Removal must be coupled with intent to defraud e. Filing a civil action for collection instead for foreclosure of chattel mortgage relieves the accused of criminal responsibility
ART.
320.
DESTRUCTIVE
ARSON
(AS
AMENDED
BY
R.A
7659)
The
penalty
of
reclusion
perpetua
to
death
shall
be
imposed
upon:
1. Any
person
who
shall
burn
a. One
or
more
buildings
or
edifices,
consequent
to
one
single
act
or
simultaneous
acts
of
burning
b. Building
of
public
or
private
ownership
generally
open
to
public
or
where
people
usually
gather
or
congregate
for
a
purpose,
regardless
of
whether
the
offender
had
knowledge
that
there
are
persons
present
or
whether
building
is
inhabited
or
not
c. Train
or
locomotive,
ship
or
vessel,
airship
or
airplane,
for
transportation
or
conveyance,
public
use,
leisure
or
entertainment
d. Building,
factory,
warehouse
and
any
appurtenance
thereto
for
service
of
public
utilities
e. Any
building
to
conceal/destroy
incriminatory
evidence,
conceal
bankruptcy,
defraud
creditors,
or
collect
from
insurance
f. Arsenal,
military
storehouse
or
powder
factory
and
the
like,
archives
or
general
museum
of
the
Government
g. Any
factory/storehouse
of
inflammable
or
explosive
materials,
in
an
uninhabited
place
2. Two
(2)
or
more
persons
or
a
group
of
persons
a. Irrespective
of
the
abovementioned
qualifying
circumstances,
and
b. Regardless
of
whether
the
purpose
is
merely
to
burn
or
destroy
or
as
an
overt
act
to
commit
another
violation
of
law
THREE
(3)
STAGES
1. Attempted:
offender
commences
the
commission
of
the
crime
directly
by
overt
acts
but
he
does
not
perform
all
acts
of
execution
(i.e.,
was
not
able
to
light
fire)
due
to
timely
intervention
of
another.
It
is
not
necessary
that
there
be
a
fire
(e.g.,
placing
rags
soaked
in
gasoline
beside
the
wooden
wall
of
building)
2. Frustrated:
offender
was
able
to
light
fire,
but
no
part
of
the
building
burned
3. Consummated:
offender
was
able
to
light
fire
and
to
burn
at
least
a
part
of
building
(e.g.,
charring
of
the
wood
whereby
the
fiber
of
the
wood
is
destroyed);
Except
when
the
contents
of
a
building
was
set
on
fire,
no
part
of
the
building
need
be
burned
2.
SELLING OR PLEDGING PERSONAL PROPERTY ALREADY PLEDGED 2.1 ELEMENTS: a. That personal property is already pledged under the terms of the Chattel Mortgage Law; b. That the offender, who is the mortgagor of such property, sells or pledges the same or any part thereof; and c. That there is no 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 NOTE: a. Damage to mortgagee is not essential i. If damage accrues, it may give rise to estafa by means of deceit DISTINGUISHED FROM ESTAFA BY DISPOSING OF ENCUMBERED PROPERTY (ART. 316) SELLING OR PLEDGING ESTAFA BY DISPOSING OF PERSONAL PROPERTY ENCUMBERED PROPERTY ALREADY PLEDGED (ART. 316, PAR. 2) (ART. 319, PAR.2) Both involve the selling of mortgaged property Personal property is Real property is involved involved (except if house is subject to chattel mortgage) Committed by the mere It is sufficient that the real failure to obtain the property mortgaged be sold consent of the mortgagee in as free, even though the writing, even if the offender vendor may have obtained should inform the the consent of the purchaser that the thing mortgagee in writing sold is mortgaged Consent of mortgagee is Consent of mortgagee is material; knowledge as to immaterial encumbrance is no Purpose is to protect the Purpose is to protect the mortgagee purchaser
4. 5.
P.D. 1613 expressly repealed or amended Arts. 320-326(B); P.D. 1744 then revived Art. 320; R.A. 7659 amended the provisions of Art. 320; the provisions of P.D. 1613 inconsistent with R.A. 7659 is repealed A. SIMPLE ARSON (under Sec. 1) punishable by Prision Mayor against: 1. Any person who burns or sets fire to the property of another 2. Any person who sets fire to his own property under circumstances which expose to danger the life or property of another B. OTHER CASES OF ARSON (under Sec. 3) punishable by Reclusion Temporal to Reclusion Perpetua, if property burned be any of: 1. Any building used as offices of the government or any of its agencies 2. Any inhabited house or dwelling; It is not required that the house be occupied by one or more persons and the offender knew it when the house was burned 3. Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel; 4. Any plantation, farm, pastureland, growing crop, grain field, orchard, bamboo grove or forest; 5. Any rice mill, sugar mill, cane mill or mill central; and 6. Any railway or bus station, airport, wharf or warehouse. SPECIAL AGGRAVATING circumstances in arson (penalty imposed in maximum period): 1. If committed with intent to gain; 2. If committed for the benefit of another; 3. If the offender is motivated by spite or hatred towards the owner or occupant of the property burned; or 4. If committed by a syndicate. PRIMA FACIE EVIDENCE OF GUILT 1. If the fire started simultaneously in more than one part of the building or establishment 2. If substantial amount of flammable substances or materials are stored within the building not of the offender nor for household use 3. If gasoline, kerosene, petroleum or other flammable or combustible substances or materials soaked therewith or containers thereof, or any mechanical, electrical, chemical, or electronic contrivance designed to start a fire, or ashes or traces of any of the foregoing are found in the ruins or premises of the burned building or property
6.
7.
If the building or property is insured for substantially more than its actual value at the time of the issuance of this policy If during the lifetime of the corresponding fire insurance policy more than two fires have occurred in the same or other premises owned or under control of the offender and/or insured If shortly before the fire, a substantial portion of the effects insured and stored in a building or property had been withdrawn from the premises except in the ordinary course of business If a demand for money or other valuable consideration was made before the fire in exchange for the desistance of the offender or for the safety of the person or property of the victim
WHERE BOTH BURNING AND DEATH OCCUR To determine what crime/s was/were perpetrated, it is important to ascertain the main objective of the malefactor, which may be: a. the burning of the building or edifice, and death results by reason or on the occasion of arson the crime is simply arson, and the resulting homicide is absorbed; b. to kill a particular person i. who may be in a building or edifice, and fire is resorted to as the means to accomplish such goal the crime is murder only; ii. and in fact the offender has already done so, but fire is resorted to as a means to cover up the killing then there are two separate and distinct crimes committed, (1) homicide/murder and (2) arson. CONSPIRACY TO COMMIT ARSON Penalty of prision mayor in its minimum period
================================================
================================================ MALICIOUS MISCHIEF is the wilful damaging of anothers property for the sake of causing damage due to hate, revenge, or other evil motive ART. 327. WHO ARE LIABLE FOR MALICIOUS MISCHIEF ELEMENTS OF MALICIOUS MISCHIEF 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; and 3. That the act of damaging anothers property be committed merely for the sake of damaging it
NOTE: 1. There is no malicious mischief through negligence because under the first element, the offender should act under the impulse of specific desire to inflict injury to another 2. Presupposes hate, revenge, or other evil motive of the offender or the mere pleasure of destroying 3. Damage includes not only loss but also diminution (e.g. defacing anothers house) 4. If theres no malice, as when damage resulted from a crime or only incidental to the commission of another crime, theres only civil liability 5. Intent to gain by removing or making use of the fruits or objects after damaging the property makes it theft ART. 328. SPECIAL CASES OF MALICIOUS MISCHIEF QUALIFIED MALICIOUS MISCHIEF: 1. Causing damage to obstruct performance of public functions. 2. Using poisonous or corrosive substance. 3. Spreading infection or contagion among cattle. 4. Damage to property of National Museum or National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used in common by the public. 1st CASE OF QUALIFIED MALICIOUS MISCHIEF DISTINGUISHED FROM SEDITION Although both involve the intent to obstruct the performance of public functions, the element of public and tumultuous uprising is not present in this article. ART. 329. OTHER MISCHIEFS BASIS OF PENALTY Mischiefs not included in Art. 328 are punished according to the value of the damage caused. Even if the amount cannot be estimated, the penalty of arresto menor or fine not exceeding P200 is fixed by law. Example: scattering human excrement in public building, killing of cow as an act of revenge (value of damage cannot be estimated); a servant who released bird from cage as act of hate against owner (value of the bird as basis) ART. 330. DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION NOTE: 1. It is committed by damaging any railway, telegraph, or telephone lines a. telegraph or telephone lines must pertain to a railway system
2.
Any derailment of cars, collision, or other accident which was a result of the damage done shall cause for a higher imposable penalty. 3. The object is to merely cause damage; as opposed to Crimes involving Destruction (Art. 324), where the object is to cause destruction 4. When person or persons are killed a. If there is no intent to kill, it is the complexed crime of damage to means of communication with homicide (in relation to Art. 48) b. If there is intent to kill, and damaging the railways was used to accomplish the criminal purpose, it is murder ART. 331. DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS, OR PAINTINGS ===============================================
H.
R.A.
6539
ANTI-CARNAPPING
ACT
OF
1972
CARNAPPING is the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things. MOTOR VEHICLE is any vehicle propelled by any power other than muscular power using the public highways, but excepting road rollers, trolley cars, street-sweepers, sprinklers, lawn mowers, bulldozers, graders, fork-lifts, amphibian trucks, and cranes if not used on public highways, vehicles, which run only on rails or tracks, and tractors, trailers and traction engines of all kinds used exclusively for agricultural purposes. Trailers having any number of wheels, when propelled or intended to be propelled by attachment to a motor vehicle, shall be classified as separate motor vehicle with no power rating. DEFACING OR TAMPERING WITH a serial number is the erasing, scratching, altering or changing of the original factory-inscribed serial number on the motor vehicle engine, engine block or chassis of any motor vehicle. Whenever any motor vehicle is found to have a serial number on its motor engine, engine block or chassis which is different from that which is listed in the records of the Bureau of Customs for motor vehicles imported into the Philippines, that motor vehicle shall be considered to have a defaced or tampered with serial number. REPAINTING is changing the color of a motor vehicle by means of painting. There is repainting whenever the new color of a motor vehicle is different from its color as registered in the Land Transportation Commission. BODY-BUILDING is a job undertaken on a motor vehicle in order to replace its entire body with a new body. REMODELING is the introduction of some changes in the shape or form of the body of the motor vehicle.lawphi1 DISMANTLING is the tearing apart, piece by piece or part by part, of a motor vehicle. OVERHAULING is the cleaning or repairing of the whole engine of a motor vehicle by separating the motor engine and its parts from the body of the motor vehicle. REGISTRATION REQUIREMENTS 1. Every owner or possessor of unregistered motor vehicle
or parts thereof in knock down condition shall, within one year after the approval of this Act and in his name or in the name of the real owner, register with the Land Transportation Commission (now Land Transportation Commission or LTO) a. the motor vehicle engine, b. engine block and c. chassis, Thereafter, if not registered, those shall be considered as untaxed importation or coming from an illegal source or carnapped, and shall be confiscated in favor of the Government 2. All owners of motor vehicles in all cities and municipalities are required to register their cars with the local police without paying any charges 3. Every sale, transfer, conveyance, substitution or replacement of a motor vehicle engine, engine block or chassis of a motor vehicle shall be registered with the LTO. Motor vehicles assembled and rebuilt or repaired by replacement with motor vehicle engines, engine blocks and chassis not registered shall not be issued certificates of registration and shall be considered as untaxed imported motor vehicles or motor vehicles carnapped or proceeding from illegal sources 4. Original registration of a motor vehicle (whether newly assembled or rebuilt or acquired from a registered owner) a. The person seeking to register shall, within one week after the completion of the assembly or rebuilding job or the acquisition thereof from the registered owner, apply to the Philippine Constabulary (now Philippine National Police or PNP) for clearance of the motor vehicle for registration with the LTO b. The PNP shall verify whether or not the motor vehicle or its numbered parts are in the list of carnapped motor vehicles or stolen motor vehicle parts; if not included, shall forthwith issue the certificate of clearance c. The LTO shall, upon presentation of the certificate and after verification of the registration in the permanent registry, register the motor vehicle in accordance with existing laws, rules and regulations PERMANENT REGISTRY The LTO shall keep a permanent registry of motor vehicle engines, engine blocks and chassis of all motor vehicles with particulars. Copies of the registry and of all entries made thereon shall be furnished the PNP and all LTO regional, provincial and city branch offices
DUTY OF COLLECTOR OF CUSTOMS Within seven days after the arrival of the imported motor vehicle or any of its parts enumerated, the Collector shall: a. make a report of the shipment to the Land Transportation Commission, specifying the make, type and serial numbers, if any, of the motor vehicle engine, engine block and chassis or body b. stating the names and addresses of the owner or consignee thereof. If the motor vehicle engine, engine block, chassis or body does not bear any serial number, the Collector of Customs concerned shall hold the motor vehicle engine, engine block, chassis or body until it is numbered by the LTO. DUTY OF IMPORTERS, DISTRIBUTORS, AND SELLERS keep a permanent record of his stocks o stating therein their type, make and serial numbers, and the names and addresses of the persons from whom they were acquired and the names and addresses of the persons to whom they were sold render an accurate monthly report of his transactions in motor vehicles to the Land Transportation Commission. CLERANCE AND PERMIT Any person who shall undertake to assemble or rebuild or cause the assembly or rebuilding of a motor vehicle shall first secure a certificate of clearance from the Philippine Constabulary: Provided, That no such permit shall be issued unless the applicant shall present a statement under oath containing the type, make and serial numbers of the engine, chassis and body, if any, and the complete list of the spare parts of the motor vehicle to be assembled or rebuilt together with the names and addresses of the sources thereof. In the case of motor vehicle engines to be mounted on motor boats, motor bancas and other light water vessels, the applicant shall secure a permit from the Philippine Coast Guard, which office shall in turn furnish the LTO the pertinent data concerning the motor vehicle engines including their type, make and serial numbers. Any person who owns or operates inter-island shipping or any water transportation with launches, boats, vessels or ships shall within seven days submit a report to the Philippine Constabulary on all motor vehicle, motor vehicle engines, engine blocks, chassis or bodies transported by it for the motor vehicle, motor vehicle engine, engine block, chassis or body to be loaded on board the launch, boat
vessel or ship. PUNISHABLE ACTS It shall be unlawful for any person to deface or otherwise tamper with the original or registered serial number of motor vehicle engines, engine blocks and chassis. PENAL PROVISIONS a. Any person (in case of a juridical person, president or secretary and/or members of the board of directors or any of its officers and employees who may have directly participated in the violation) who violates any provisions of this Act punished with imprisonment for not less than two years nor more than six years and a fine equal in amount to the acquisition cost of the motor vehicle, motor vehicle engine or any other part involved in the violation b. Any government official or employee who directly commits the unlawful acts defined in this Act or is guilty of gross negligence of duty or connives with or permits the commission of any of the said unlawful act: in addition to the penalty prescribed in the preceding paragraph, be dismissed from the service with prejudice to his reinstatement and with disqualification from voting or being voted for in any election and from appointment to any public office PENALTY FOR CARNAPPING Any person who is found guilty of carnapping shall, irrespective of the value of motor vehicle taken, be punished: a. by imprisonment for not less than 14 years and 8 months and not more than 17 years and 4 months, when the carnapping is committed without violence or intimidation of persons, or force upon things; b. by imprisonment for not less than 17 years and 4 months and not more than 30 years, when the carnapping is committed by means of violence against or intimidation of any person, or force upon things; and c. the penalty of life imprisonment to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed in the commission of the carnapping
END
OF
DISCUSSION
ON
TOPIC
10.
CRIMES
AGAINST
PROPERTY
TOPICS
UNDER
THE
SYLLABUS:
Chapter
1:
Adultery
and
Concubinage
Chapter
2:
Rape
and
Acts
of
Lasciviousness
Chapter
3:
Seduction,
Corruption
of
Minors
and
White
Slave
Trade
Chapter
4:
Abduction
Chapter
5:
Provisions
Relative
to
the
Preceding
Chapters
of
Title
11
R.A.
9995
R.A.
7610,
AS
AMENDED
R.A.
9262
R.A.
7877
=================================================
MITIGATING CIRCUMSTANCES IN ADULTERY Adultery is mitigated if the adulterous wife was abandoned without justification by his spouse. Both the wife and her paramour are entitled to this mitigating circumstance.43 Sheer necessity, as when a woman was left helpless by her husband (although justified for it was in response to a duty) and in such a great need that she found herself in the predicament of committing adultery for the sake of her children, mitigates her liability.44 PARDON BY THE OFFENDED PARTY Express/ implied pardon bars prosecution for adultery. Sexual intercourse with the offending spouse subsequent to the adulterous conduct constitutes an implied pardon.
REQUIREMENTS
FOR
PARDON
TO
BE
EFFECTIVE
(ART.
344):
1. The
pardon
must
come
before
the
institution
of
the
criminal
prosecution;
and
2. Both
offenders
must
be
pardoned
by
offended
party.
CONSENT
IS
A
CAUSE
FOR
DISMISSAL
OF
COMPLAINT
Prior
consent
is
as
effective
as
subsequent
consent
to
bar
the
offended
party
from
prosecuting
the
offense.
When
consent
is
given,
whether
expressed
or
implied,
husband
can
no
longer
institute
the
criminal
complaint.
WHEN
IS
THERE
CONSENT?
1. When
the
husband
does
not
interfere
with
his
wifes
adulterous
relationship
or
has
failed
to
assert
his
rights.
2. When
the
spouses
sign
an
agreement
that
they
may
get
any
mate
and
live
as
husband
and
wife
without
any
interference.
================================================= ART. 333. WHO ARE GUILTY OF ADULTERY ELEMENTS: 1. That the woman is married (even if marriage is subsequently declared void); 2. That she has sexual intercourse with a man not her husband; and 3. That as regards the man with whom she has sexual intercourse, he must know her to be married. NOTE: Carnal knowledge may be proved by circumstantial evidence. Each sexual intercourse constitutes a crime of adultery. It is not a continuing offense. Any act of infidelity subsequent to condonation constitutes a new offense that is subject to criminal prosecution. The offended party must be legally married to the offender at the time of filing the complaint. But even if subsequently declared void, theres still adultery when the adulterous act is committed before the marriage is judicially declared null and void in a final judgment. Acquittal of one defendant does not operate as acquittal of the other. Death of the offended party will not terminate the proceedings. However, if they die before a complaint is filed, then the case cannot go on.
ART. 334. CONCUBINAGE ELEMENTS: 1. The man must be married (even if the marriage may be subsequently declared void); 2. That he committed any of the following acts: a. Keeping a mistress in the conjugal dwelling, b. Having sexual intercourse under scandalous circumstances with a woman who is not his wife, c. Cohabiting with her in any other place; 3. That as regards the woman, she must know him to be married.
43 44
People v. Avelino, C.A., 40 O.G., Supp. 11, 194 People v. Alberto, et al., C.A., 47 O.G. 2438
NO
ATTEMPTED
OR
FRUSTRATED
ACTS
OF
LASCIVIOUSNESS
From
the
standpoint
of
law,
there
can
be
no
frustration
of
acts
of
lasciviousness.
No
matter
how
far
the
offender
may
have
gone
towards
the
realization
of
his
purpose,
if
his
participation
amounts
to
performing
all
acts
of
execution,
the
felony
is
necessarily
produced
as
a
consequence.
ACTS
OF
LASCIVIOUSNESS
UNJUST
VEXATION
There
is
lewd
design
which
The
element
of
lewd
design
may
be
inferred
from
the
is
not
present.
circumstances
surrounding
e.g.
the
alleged
lascivious
the
commission
of
the
crime
act
was
a
mere
incident
of
such
as
the
place,
time,
the
embrace
or
the
act
was
other
peoples
presence
and
just
committed
merely
to
the
acts
complained
of.
satisfy
a
silly
whim.
ACTS
OF
LASCIVIOUSNESS
ATTEMPTED
RAPE
Offenders
lascivious
acts
do
Acts
performed
by
offender
not
indicate
intent
to
have
clearly
indicate
that
his
sexual
intercourse.
purpose
was
to
lie
with
the
offended
party.
The
lascivious
acts
are
the
The
lascivious
acts
are
but
final
objective
sought
by
the
preparatory
acts
to
the
offender.
commission
of
rape.
Manner
of
commission
is
the
same
The
performance
of
lascivious
character
is
common
to
both
Offended
party
is
a
person
of
either
sex
ACTS
OF
LASCIVIOUSNESS
GRAVE
COERCION
The
compulsion
is
included
The
compulsion
is
the
very
in
the
constructive
element
act
constituting
the
offense
of
force.
of
grave
coercion.
ACTS
OF
LASCIVIOUSNESS
ABUSES
AGAINST
CHASTITY
(ART.
246)
The
offender
is,
in
a
majority
The
offender
is
a
public
of
cases,
a
private
individual.
officer
It
is
necessary
that
some
A
mere
immoral
or
indecent
actual
act
of
lasciviousness
proposal
made
earnestly
&
should
have
been
executed.
persistently
is
sufficient.
CASES
ON
ACTS
OF
LASCIVIOUSNESS
1. In
the
absence
of
convincing
proof
that
the
penis
had
slid
into
the
female
organ,
rape
was
not
committed.
Where
the
victim
merely
stated
that
she
was
carried
around
the
sala
with
appellant's
penis
"touching"
her
vagina,
it
would
not
be
right
to
conclude
that
the
act
of
the
penis
"touching"
the
vagina
was
an
entry
or
penetration,
even
slightly,
of
the
labia
majora
or
the
labia
minora
of
the
pudendum.
The
appellant
is
guilty
of
acts
of
lasciviousness
and
not
rape.45
DEFINITION OF TERMS 1. CONJUGAL DWELLING means the home of the husband and wife even if the wife happens to be temporarily absent on any account. 2. SCANDAL consists in any reprehensible word/deed that offends public conscience, redounds to the detriment of the feelings of honest persons, and gives occasion to the neighbors spiritual damage and ruin. 3. COHABIT means to dwell together, in the manner of husband and wife, for some period of time, as distinguished from occasional, transient interviews for unlawful intercourse. 4. MISTRESS It is necessary that the woman is taken by the accused into the conjugal dwelling as a concubine. NOTE: People in the vicinity are the best witnesses to prove scandalous circumstances. Adultery is more severely punished than concubinage. Unlike adultery, concubinage is a continuing crime.
ART.
335.
WHEN
AND
HOW
RAPE
IS
COMMITTED
NOTE:
Art.
335
has
been
repealed
by
R.A.
No.
8353
(Anti- Rape
Law
of
1997).
================================================
================================================ ARTICLE 336. ACTS OF LASCIVIOUSNESS ELEMENTS: 1. That the offender commits any act of lasciviousness or lewdness; 2. That the act of lasciviousness is committed against a person of either sex; and 3. That it is done under any of the following circumstances: a. by using force or intimidation, or b. when the offended party is deprived of reason or otherwise unconscious, or c. by means of fraudulent machination or grave abuse of authority, or d. when the offended party is under 12 years of age or is demented. LEWD - is defined as obscene, lustful indecent or lecherous. It signifies the form of immorality which has relation to moral impurity; or that which is carried on a wanton manner.
45
2.
The appellants act of directing Analyn to remove her lower apparel constitutes an act of lasciviousness under Article 336 of the Revised Penal Code, and not rape.46 =================================================
================================================ SEDUCTION - Enticing a woman to unlawful sexual intercourse by promise of marriage or by other means of persuasion without the use of force. ART. 337. QUALIFIED SEDUCTION 2 CLASSES OF QUALIFIED SEDUCTION: 1. Seduction of a virgin over 12 and under 18 years of age by certain persons, such as a person in authority, priest, teacher, etc.; and 2. Seduction of a sister by her brother, or seduction of a descendant by her ascendant, regardless of her age or reputation. (Incestuous Seduction) ELEMENTS OF QUALIFIED SEDUCTION OF A VIRGIN: 1. That the offended party is a virgin, which is presumed if she is unmarried and of good reputation; 2. That she must be over 12 and under 18 years of age; 3. That the offender has sexual intercourse with her; and 4. That there is abuse of authority, confidence or relationship on the part of the offender (person entrusted with education or custody of victim; person in public authority, priest; servant). PERSONS LIABLE: ABUSED ABUSED ABUSED AUTHORITY CONFIDENCE RELATIONSHIP 1. Public authority 1. Priest 1. Brother who 2. Guardian 2. House servant seduced his sister. 3. Teacher 3. Domestic 2. Ascendant who 4. Person who in (Person living seduced his any capacity is in the same descendant. entrusted with roof, may be the education temporary or Their relationship or custody of permanent, as must be by the woman long as in the consanguinity but seduced. same house.) need not be legitimate. NOTE: Penalty for qualified seduction of a sister or descendant is higher than qualified seduction of a virgin.
46
Deceit is not an element of qualified seduction but it is an element of simple seduction. In Abuse of Confidence, acts are punished because of the character of the person committing the same, and excess of power or abuse of confidence. A virgin is a virtuous woman of good reputation. The offended party need not be virgin in the case of incestuous seduction. Accused charged with rape cannot be convicted of qualified seduction under the same information. If any of the circumstances in the crime of rape is present, then crime is not to be punished under this article. If no sexual intercourse, the crime would only be acts of lasciviousness. ART. 338. SIMPLE SEDUCTION ELEMENTS: 1. That the offended party is over 12 & under 18 y/o; 2. That she must be of good reputation, single or widow; 3. That the offender has sexual intercourse with her; and 4. That it is committed by means of deceit. NOTES: Virginity of the victim is not required. Deceit generally takes the form of an unfulfilled promise to marry. There is no continuing offense of seduction. If there is no sexual intercourse, the crime committed is only acts of lasciviousness. The man may be willing and ready to marry the girl but simple seduction is still committed when the man knows that the offended party cannot legally consent to marriage because of her minority. THE FOLLOWING DO NOT CONSTITUTE DECEIT: Promise of material things. Promise of marriage by a married man, whom the victim knew to be married. Promise of marriage after sexual intercourse. ART. 339. ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE OFFENDED PARTY ELEMENTS: 1. That the offender commits acts of lasciviousness or lewdness; 2. That the acts are committed upon a woman who is a virgin or single or a widow of good reputation, under 18 years of age but over 12 years, or a sister or descendant regardless of her reputation or age.
3.
That the offender accomplishes the acts by abuse of authority, confidence, relationship, or deceit.
2.
NOTES: A male cannot be the offended party. It is necessary that the crime be committed under circumstances which would make it qualified or simple seduction had there been sexual intercourse. Consent is obtained by abuse of authority, confidence, or relationship, or by means of deceit. ACTS OF LASCIVIOUSNESS ACTS OF WITH CONSENT OF LASCIVIOUSNESS OFFENDED PARTY (ART. 336) (ART. 339) Acts are committed under Acts are committed circumstances which, had there under circumstances been carnal knowledge, would which, had there been amount to either qualified or carnal knowledge, would simple seduction. amount to rape. *There may be consent, but there is abuse of authority, relationship, confidence, or deceit. ART. 340. CORRUPTION OF MINORS NOTES: The act punishable is the promotion or facilitating the prostitution or corruption of persons under age (under 18) to satisfy the lust of another. A mere proposal will consummate the offense. It is not necessary that the unchaste acts shall have been done to the minor. Victim must be of good reputation, not a prostitute or a corrupted person. R.A. 7610 PUNISHES CHILD PROSTITUTION COMMITTED BY: 1. Those who engage in or promote, facilitate or induce child prostitution which include 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 as a prostitute; e. Giving monetary consideration, goods or other pecuniary benefit to a child with the intent to engage such child in prostitution.
Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; 3. Those who derive profit or advantage therefrom. eg. manager/owner of the establishment where child prostitution takes place; 4. Any person, not being a relative of the child, is found alone with the said child in a hidden or secluded area under circumstances which lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse; and 5. Any person who receives services from a child in a sauna parlor or bath, massage clinic, health club, and other similar establishments. CHILD TRAFFICKING - It is the act of buying and selling a child for money, or for any other consideration, or barter. ART. 341. WHITE SLAVE TRADE ACTS PENALIZED: 1. Engaging in the business of prostitution; 2. Profiting by prostitution; and 3. Enlisting the service of women for the purpose of prostitution. NOTE: One of those above-mentioned acts is sufficient to constitute the offense Habituality is not a necessary element of this crime. Offender need not be owner of house and need not be present at time of raid; it suffices that he maintains or engages in business Under any pretext if the real purpose is prostitution, it does not matter if one engages the services of a woman ostensibly as maid, for example.
NOTES: If child is under 12 years, the crime is forcible abduction even if she voluntarily goes with her abductor. Taking away must be against the will of the woman. This may be accomplished by means of deceit first and then by means of violence and intimidation. Actual intercourse is not necessary. Lewd designs may be shown by conduct of the accused. Intent to seduce the girl is sufficient. Lewd design is present in a hurried marriage ceremony by force where the marriage is merely an artifice by which the accused sought to escape the criminal consequences of his acts. The husband may not be held liable for the abduction of his wife as lewd design is wanting. If there are several defendants, it is enough that one of them had lewd designs and the others knew about it. Nature of crime: against liberty, honor and reputation, and public order. There must be only one complex crime of forcible abduction with rape. Subsequent rapes committed should be considered independent of the abduction. Conviction of Acts of Lasciviousness is not a bar to conviction of forcible abduction. FORCIBLE ABDUCTION V. GRAVE COERCION V. KIDNAPPING 1. Presence of lewd design makes it forcible abduction. 2. When there is no lewd design, it is coercion, provided that there is no deprivation of liberty. 3. The crime is kidnapping and serious illegal detention if there was deprivation of liberty with no lewd design. 4. If there was violent taking of the woman motivated by lewd design and the victim was raped, the crime committed is forcible abduction with rape instead of kidnapping with rape. Attempt to rape is absorbed in the crime of forcible abduction. FORCIBLE ABDUCTION V. CORRUPTION OF MINORS 1. If the minor was abducted by the accused with lewd design on his part, he is liable for forcible abduction. 2. If the purpose of abduction is to lend her to illicit intercourse with others, the crime is corruption of minors. FORCIBLE ABDUCTION V. RAPE 1. If there was abduction but the resistance of the woman to the alleged rape was not tenacious, the accused would be guilty only of abduction. 2. Rape may absorb forcible abduction if the main objective was to rape the victim. CASE ON FORCIBLE ABDUCTION 1. The Court has previously ruled that if the victim's consent was obtained through deceit and there was
therefore no valid consent, the crime is forcible abduction, as the deceit may be considered as constructive force. The second element, lewd design, was established by the actual rapes.47 AGE AND REPUTATION OF THE VICTIM IS NOT NECESSARY IN: 1. Rape 2. Acts of lasciviousness against the will or without the consent of the offended party 3. Qualified seduction of sister or descendant 4. Forcible Abduction ART. 343. CONSENTED ABDUCTION ELEMENTS: 1. That the offended party must be a virgin (not necessarily in a material sense, includes virtuous woman of good reputation); 2. That she must be over 12 and under 18 years of age; 3. That the taking away of the offended party must be with her consent, after solicitation or cajolery from the offender; and 4. That the taking away of the offended party must be with lewd designs. NOTE: If the virgin is under 12 years of age, the crime committed is forcible abduction, even if the girl consented to the elopement. The abduction of the victim need not be with some character of permanence. Victim need not be taken from her house. It is sufficient that the abductor was instrumental to her escape. Requires solicitation or cajolery. There can be consented abduction with rape
================================================
================================================ ART. 344. PROSECUTION OF ADULTERY, CONCUBINAGE, SEDUCTION, ABDUCTION, AND ACTS OF LASCIVIOUSNESS 1. Adultery and concubinage must be prosecuted upon complaint signed by the offended spouse. 2. Seduction, abduction, or acts of lasciviousness must be prosecuted upon complaint signed by: a. offended party, b. by her parents, c. grandparents, or
47
d. legal guardians * In the order in which they are named above. EFFECT OF MARRIAGE GENERAL RULE: Marriage in good faith of the offender with the offended party extinguishes the criminal action or remits the penalty already imposed upon him. This applies as well to accomplices and accessories- after-the-fact. EXCEPTION: In case of rape, marriage extinguishes the criminal action only against the principal but not to the accomplices and accessories. This rule also does not apply to parties guilty of concubinage and adultery. NOTE: Rape is now a crime against persons, and thus, may be prosecuted de oficio or upon complaint of any person. In adultery and concubinage, both offenders must be included in the complaint, even if only one is guilty. When the offended party is of age and is in complete possession of her mental and physical faculties, she alone can file the complaint (applies to crimes against chastity). Complaint must be filed in court and not in the fiscal. PARDON IN CRIMES AGAINST CHASTITY Express or implied pardon by the offended party is a bar to prosecution for adultery or concubinage. However, pardon must extend to both offenders and must come before the institution of the criminal action. Express pardon by the offended party or other persons named in the law, as the case may be, is a bar to prosecution for seduction, abduction, rape or acts of lasciviousness. Pardon in seduction must also come before the institution of criminal action. PARDON BY PARENTS, GRANDPARENTS OR GUARDIAN MUST BE ACCOMPANIED BY THE EXPRESS PARDON OF THE GIRL HERSELF Pardon must be granted directly by the offended party and it is only when she is dead or otherwise incapacitated to grant it, that her parents, grandparents or guardian may do so for her.48 ART. 345. CIVIL LIABILITY OF PERSONS GUILTY OF CRIMES AGAINST CHASTITY. PERSON GUILTY OF RAPE, SEDUCTION OR ABDUCTION, SHALL ALSO BE SENTENCED: 1. To indemnify the offended woman. 2. To acknowledge the offspring, unless the law should prevent him from so doing.
3.
In every case to support the offspring. NOTES: The adulterer and concubine in the case provided for in Articles 333 and 334 may also be sentenced, in the same proceeding or in a separate civil proceeding, to indemnify for damages caused to the offended spouse. There is no civil liability for Acts of Lasciviousness. Moral damages may be awarded to the offended party, and her parents, for seduction, abduction, rape, other lascivious acts (Art. 2219 Civil Code). In multiple rapes by multiple offenders, all of them must support offspring. No one may be made to acknowledge his offspring. The offender in a rape case who is married is no longer prohibited from acknowledging his offspring because since the child is illegitimate, the Family Code automatically confers parental authority to the mother. He can only be sentenced to indemnify the victim and support his offspring. Amount and terms of support should be determined only after due notice & hearing. Only indemnity is allowed in rape of a married woman. The defendant cannot be sentenced to acknowledge and support the offspring. ART. 346. LIABILITY OF ASCENDANTS, GUARDIANS, TEACHERS, OR OTHER PERSONS ENTRUSTED WITH CUSTODY OF OFFENDED PARTY PERSONS WHO COOPERATE AS ACCOMPLICES BUT ARE PUNISHED AS PRINCIPALS IN RAPE, SEDUCTION, ABDUCTION, ETC: 1. Ascendants; 2. Guardians; 3. Curators; 4. Teachers; and 5. Any other person, who cooperates as accomplice with abuse of authority or confidential relationship. OTHER INSTANCE WHEN ACCOMPLICE IS PUNISHED AS PRINCIPAL: Slight illegal detention
48
R.A. 9995 ANTI-PHOTO AND VIDEO VOYEURISM ACT 2009 DEFINITION OF TERMS (Sec. 3) 1. BROADCAST - to make public, by any means, a visual image with the intent that it be viewed by a person or persons. 2. CAPTURE WITH RESPECT TO AN IMAGE - means to videotape, photograph, film, record by any means, or broadcast. 3. FEMALE BREAST - means any portion of the female breast. 4. PHOTO OR VIDEO VOYEURISM - means the act of taking photo or video coverage of a person or group of persons performing sexual act or any similar activity or of capturing an image of the private area of a person or persons without the latter's consent, under circumstances in which such person/s has/have a reasonable expectation of privacy, or the act of selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the photo or video coverage or recordings of such sexual act or similar activity through VCD/DVD, internet, cellular phones and similar means or device without the written consent of the person/s involved, notwithstanding that consent to record or take photo or video coverage of same was given by such persons. 5. PRIVATE AREA OF A PERSON - means the naked or undergarment clad genitals, public area, buttocks or female breast of an individual. 6. UNDER CIRCUMSTANCES IN WHICH A PERSON HAS A REASONABLE EXPECTATION OF PRIVACY - means belief that he/she could disrobe in privacy, without being concerned that an image or a private area of the person was being captured; or circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public, regardless of whether that person is in a public or private place. PROHIBITED ACTS (Sec. 4) 1. To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an image of the private area of a person/s such as the naked or undergarment clad genitals, public area, buttocks or female breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy; 2. To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration; 3. To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof; or 4. To publish or broadcast, or cause to be published or
broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device. NOTE: The prohibition under paragraphs (2), (3) and (4) shall apply notwithstanding that consent to record or to take a photo or video coverage of the same was given by such person/s. Any person who violates these provision shall be liable for photo or video voyeurism as defined herein. EXEMPTIONS (Sec. 6) Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the court, to use the record or any copy thereof as evidence in any civil, criminal investigation or trial of the crime of photo or video voyeurism: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he/she may produce, and upon showing that there are reasonable grounds to believe that photo or video voyeurism has been committed or is about to be committed, and that the evidence to be obtained is essential to the conviction of any person for, or to the solution or prevention of such, crime. INADMISSIBILITY OF EVIDENCE (Sec. 7) Any record, photo or video, or copy thereof, obtained or secured by any person in violation of the preceding sections shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.
SPECIAL PROTECTION OF CHILDREN AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION ACT (R.A. 7610, AS AMENDED) CHILD PROSTITUTION AND OTHER ACTS OF ABUSE PUNISHABLE ACTS 1. CHILD PROSTITUTION AND OTHER SEXUAL ABUSE (Sec. 5) WHO ARE LIABLE: a. Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: i. Acting as a procurer of a child prostitute; ii. Inducing a person to be a client of a child prostitute by means of written or oral
2.
3.
4.
advertisements or other similar means; iii. Taking advantage of influence or relationship to procure a child as prostitute; iv. Threatening or using violence towards a child to engage him as a prostitute; or v. Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such child in prostitution. b. Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under 12 years of age, the perpetrators shall be prosecuted under Art. 335, paragraph 3, for rape and Art. 336 of Act No. 3815, as amended, the RPC, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under 12 years of age shall be reclusion temporal in its medium period; and c. Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment. ATTEMPT TO COMMIT CHILD PROSTITUTION (Sec. 6) a. There is an attempt to commit child prostitution under Section 5, paragraph (a) hereof when any person who, not being a relative of a child, is found alone with the said child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar establishments, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse. b. There is also an attempt to commit child prostitution, under paragraph (b) of Section 5 hereof when any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments. CHILD TRAFFICKING (Sec. 7) Any person who shall engage in trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter. ATTEMPT TO COMMIT CHILD TRAFFICKING (Sec. 8) THERE IS AN ATTEMPT TO COMMIT CHILD TRAFFICKING UNDER SECTION 7 OF THIS ACT: a. When a child travels alone to a foreign country
b. c.
d.
without valid reason therefor and without clearance issued by the Department of Social Welfare and Development or written permit or justification from the child's parents or legal guardian; When a person, agency, establishment or child- caring institution recruits women or couples to bear children for the purpose of child trafficking; When a doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any other person simulates birth for the purpose of child trafficking; or When a person engages in the act of finding children among low-income families, hospitals, clinics, nurseries, day-care centers, or other child- during institutions who can be offered for the purpose of child trafficking.
COMPARE PROSECUTION FOR ACTS OF LASCIVIOUSNESS UNDER ART. 336 OF THE RPC AND RA 7610, AS AMENDED Under RA 7610, the penalty for lascivious conduct when the victim is under 12 years of age shall be reclusion temporal in its medium period. On the other hand, Art. 336 of the RPC provides a lighter penalty of prision correctional for acts of lasciviousness. 5. OBSCENE PUBLICATIONS AND INDECENT SHOWS Any person who shall hire, employ, use, persuade, induce or coerce a child to perform in obscene exhibitions and indecent shows, whether live or in video, or model in obscene publications or pornographic materials or to sell or distribute the said materials. 6. OTHER ACTS OF NEGLECT, ABUSE, CRUELTY OR EXPLOITATION AND OTHER CONDITIONS PREJUDICIAL TO THE CHILD'S DEVELOPMENT: a. Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible for other conditions prejudicial to the child's development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended. b. Any person who shall keep or have in his company a minor, 12 years or under or who in 10 years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places. Provided, That this provision shall not apply to any person who is related within the fourth degree of consanguinity or affinity or any bond recognized by law, local custom and tradition or acts in the performance of a social, moral or legal duty.
Any person who shall induce, deliver or offer a minor to any one prohibited by this Act to keep or have in his company a minor as provided in the preceding paragraph. d. Any person, owner, manager or one entrusted with the operation of any public or private place of accommodation, whether for occupancy, food, drink or otherwise, including residential places, who allows any person to take along with him to such place or places any minor herein described. e. Any person who shall use, coerce, force or intimidate a street child or any other child to: i. Beg or use begging as a means of living; ii. Act as conduit or middlemen in drug trafficking or pushing; or iii. Conduct any illegal activities. JURISPRUDENCE 1. The implementing rules elaborated on this definition when it defined a child as one who is below 18 years of age or over said age who, upon evaluation of a qualified physician, psychologist or psychiatrist, is found to be incapable of taking care of herself fully because of a physical or mental disability or condition or of protecting herself from abuse.49 2. Under Section 5(b), Article III of R.A. 7610 in relation to R.A. 8353, if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Art. 266-A(1)(d) of the RPC and penalized with reclusion perpetua. If the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5(b) of R.A. 7610 or rape under Art. 266-A (except paragraph 1[d]) of the RPC. HOWEVER, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. Likewise, rape cannot be complexed with a violation of Section 5(b) of R.A. 7610. Under Section 48 of the RPC (on complex crimes), a felony under the RPC (such as rape) cannot be complexed with an offense penalized by a special law.50
c.
the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children. PUNISHABLE ACTS UNDER SEC 5 INCLUDE: (g) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family
R.A.
NO.
7877
ANTI-SEXUAL
HARASSMENT
ACT
WORK,
EDUCATION
OR
TRAINING-RELATED,
SEXUAL
HARASSMENT,
DEFINED
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.
PUNISHABLE
ACTS
(Sec.
3):
1. IN
A
WORK-RELATED
OR
EMPLOYMENT
ENVIRONMENT,
SEXUAL
HARASSMENT
IS
COMMITTED
WHEN:
a. The
sexual
favor
is
made
as
a
condition
in
the
hiring
or
in
the
employment,
re-employment
or
continued
employment
of
said
individual,
or
in
granting
said
individual
favorable
compensation,
terms
of
conditions,
promotions,
or
privileges;
or
the
refusal
to
grant
the
sexual
favor
results
in
limiting,
segregating
or
classifying
the
employee
which
in
any
way
would
discriminate,
deprive
or
diminish
employment
opportunities
or
otherwise
adversely
affect
said
employee;
b. Above
acts
would
impair
the
employee's
rights
or
privileges
under
existing
labor
laws;
or
c. Above
acts
would
result
in
an
intimidating,
hostile,
or
offensive
environment
for
the
employee.
2. IN
AN
EDUCATION
OR
TRAINING
ENVIRONMENT,
SEXUAL
HARASSMENT
IS
COMMITTED:
a. Against
one
who
is
under
the
care,
custody
or
supervision
of
the
offender;
b. Against
one
whose
education,
training,
apprenticeship
or
tutorship
is
entrusted
to
the
offender;
c. When
the
sexual
favor
is
made
a
condition
to
the
R.A.
9262
ANTI-VIOLENCE
AGAINST
WOMEN
AND
THEIR
CHILDREN
ACT
OF
2004
PSYCHOLOGICAL
VIOLENCE
refers
to
acts
or
omissions
causing
or
likely
to
cause
mental
or
emotional
suffering
of
49
50
People v. Abello, G.R. No. 151952, March 25, 2009 People v. Abay G.R.. No. 177752, February 24, 2009
ART.
347.
SIMULATION
OF
BIRTHS,
SUBSTITUTION
OF
ONE
CHILD
FOR
ANOTHER;
AND
CONCEALMENT
OR
ABANDONMENT
OF
A
LEGITIMATE
CHILD
ACTS
PUNISHABLE:
1. Simulation
of
births
Elements:
a. The
child
is
baptized
or
registered
in
the
Registry
of
birth
as
the
offenders;
b. Thus,
the
child
loses
its
real
status
and
acquires
a
new
one;
and
c. The
offenders
purpose
was
to
cause
the
loss
of
any
trace
as
to
the
childs
true
filiation.
2. Substitution
of
one
child
for
another,
or
3. Concealing
or
abandoning
any
legitimate
child
w/
the
intent
to
cause
such
child
to
lose
its
civil
status.
ELEMENTS:
a. The
child
must
be
legitimate,
fully
developed
and
a
living
being;
b. The
offender
conceals
or
abandons
such
child;
and
c. The
offender
has
the
intent
to
cause
the
child
to
lose
its
civil
status.
NOTE:
SIMULATION
crime
must
alter
the
persons
civil
status.
Simulation
takes
place
when
the
woman
pretends
to
be
pregnant
when
in
fact
she
was
not;
woman
who
simulates
birth
and
the
woman
who
furnishes
the
child
are
both
responsible
as
principals
The
fact
that
child
will
be
benefited
by
simulation
of
birth
is
not
a
defense
since
it
creates
a
false
status
to
the
detriment
of
members
of
family
to
which
the
child
is
introduced.
A
father
who
sells
his
child
is
not
liable
under
this
article
since
there
is
no
abandonment.
ABANDONING
A
CHILD
ABANDONING
A
MINOR
UNDER
ART.
347
UNDER
ART.
276
The
offender
is
any
person.
The
offender
must
be
one
who
has
custody
of
the
child.
The
purpose
is
to
cause
the
The
purpose
is
to
avoid
the
child
to
lose
its
civil
status.
obligation
of
rearing
and
caring
for
the
child.
ART.
348.
USURPATION
OF
CIVIL
STATUS
HOW
COMMITTED:
This
felony
is
committed
by
a
person
who
assumes
the
filiation,
or
the
parental
or
conjugal
rights
of
another.
d.
giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges, or consideration; or When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice.
Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which it would not have been committed, shall also be held liable under this Act. PERSONS PENALIZED 1. Employers, employees, managers, supervisors, teachers, professors, instructors, coaches, trainors, and other persons who have authority, influence, or moral ascendancy over another in a work, education or training-related environment. 2. The employer or head of office, educational or training institution shall be solidarily liable for damages arising from the acts of sexual harassment committed in the employment, education or training environment if the employer or head of office, educational or training institution is informed of such acts by the offended party and no immediate action is taken. JURISPRUDENCE 1. In Domingo v. Rayala, it was held. It is true that this provision calls for a demand, request or requirement of a sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal certitude, from the acts of the offender.51
=======================================
=======================================
TOPICS
UNDER
THE
SYLLABUS:
Chapter
1:
Simulation
of
Births
and
Usurpation
of
Civil
Status
Chapter
2:
Illegal
Marriages
================================================
================================================
Domingo
v.
Rayala,
G.R.
No.
155831,
February
8,
2000
NOTE: Criminal intent to enjoy the civil rights of another by the offender knowing he is not entitled thereto is necessary to constitute this crime. QUALIFYING CIRCUMSTANCE: Purpose of the impersonation is to defraud the offended party or his heirs. Includes usurpation of profession It is absolutely necessary that there is intent to enjoy the rights arising from the civil status of the person impersonated. ================================================
person affected thereby but even by a civic-spirited citizen who may come to know the same. EFFECT OF DIVORCE Divorce granted by a foreign court has no effect. Residence there is not sufficient to confer jurisdiction on the court of that state. This applies to those domiciled in the Philippines although they contracted marriage elsewhere. Divorce obtained abroad by alien spouse shall likewise restore the Filipino spouses capacity to remarry under Philippine Law. BURDEN OF PROOF IN BIGAMY Once the prosecution has established that the defendant was already married at the time he contracted the 2nd marriage, the burden of proof to show the dissolution of the first marriage is upon the defense. When a person marries twice, the second marriage is presumed valid and the former one is presumed to have been dissolved by death or divorce. But this presumption may yield to circumstances. JURISPRUDENCE 1. The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such act alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner might be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage.52 2. For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a) he/she has been legally married; and (b) he/she contracts a subsequent marriage without the former marriage having been lawfully dissolved. The felony is consummated on the celebration of the second marriage or subsequent marriage. It is essential in the prosecution for bigamy that the alleged second marriage, having all the essential requirements, would be valid were it not for the subsistence of the first marriage.53 ART. 350. MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAWS ELEMENTS: 1. That the offender contracted marriage; and 2. That he knew at the time that: a. Requirements of law were not complied with, or
================================================ ART. 349. BIGAMY ELEMENTS: 1. That the offender has been legally married; 2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; 3. That he contracts a second or subsequent marriage; & 4. That the second or subsequent marriage has all the essential requisites for validity. NOTE: The crime of bigamy does not fall within the category of private crimes. Hence, it can be prosecuted even without the initiative of the offended party. The fact that the 1st marriage is void from the beginning is not a defense in a bigamy charge. There is a need for judicial declaration of the nullity of the 1st marriage. Similarly, there must also be a summary proceeding to declare the absent spouse presumptively dead for purposes of remarriage. Validity of second marriage is a prejudicial question to liability for bigamy One convicted for bigamy may be prosecuted for concubinage as both are distinct offenses. However, the second spouse is not necessarily liable for bigamy. One who falsely vouches for the capacity of the either of the contracting parties knowing that one of the parties is already married is an accomplice. Failure to exercise due diligence to ascertain the whereabouts of the 1st wife and the husbands remarriage is bigamy through reckless imprudence. A pardon by the offended party does not extinguish criminal action considering that a crime is committed against the State and the crime of Bigamy is a public offense which can be denounced not only by the
52
53
Morigo v. People, G.R. No. 145226, February 06, 2004 Manuel v. People, G.R. No. 165842. November 29, 2005
b.
not pregnant by her first spouse since he was permanently sterile.54 ART. 352. PERFORMANCE OF ILLEGAL MARRIAGE CEREMONY ACT PUNISHED Performance or authorization by a priest or minister of any religious denomination or sect or by civil authorities of any illegal marriage ceremony. EXCEPTION A clergyman who performed a marriage ceremony without knowledge of the minority of one of the parties is not liable. NOTE: Offender must be authorized to solemnize marriages.
QUALIFYING CIRCUMSTANCE: If either of the contracting parties obtains the consent of the other by means of violence, intimidation or fraud. REQUIREMENTS OF THE LAW FOR VALID MARRIAGE: (ARTS. 2 AND 3 OF THE FAMILY CODE) 1. Legal capacity of the contracting parties who must be male and female; 2. Consent freely given in the presence of the solemnizing officer; 3. Authority of the solemnizing officer; 4. A valid marriage license, except in marriages of exceptional character; and 5. A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than 2 witnesses of legal age. NOTE: Conviction for violation of Art. 350 involves moral turpitude. The respondent is disqualified from being admitted into the Bar. The offender must not be guilty of bigamy. ART. 351. PREMATURE MARRIAGES PERSONS LIABLE: 1. A widow who married within 301 days from the date of the death of her husband, or before having delivered if she is pregnant at the time of his death. 2. A woman whose marriage having been dissolved or annulled, married before her delivery or w/in 301 days after the date of the legal separation. NOTE: Period may be disregarded if the first husband was impotent or sterile or if the woman was pregnant before the death of the first husband and gave birth within the said period. The period of 301 days is important only in cases where the woman is not pregnant, or does not know that she is pregnant at the time she becomes a widow. If she is pregnant at such time, the prohibition is good only up to delivery. PURPOSE OF THE LAW Since the purpose of punishing the foregoing acts is to prevent 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
SECTION 1. DEFINITION, FORMS, AND PUNISHMENT OF THIS CRIMES ART. 353. DEFINITION OF LIBEL/DEFAMATION ELEMENTS: 1. That there must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance (defamatory imputation); 2. That the imputation must be made publicly; 3. That it must be malicious; 4. That the imputation must be directed at a natural or juridical person, or one who is dead;
54
5.
That the imputation must tend to cause the dishonor, discredit or contempt of the person defamed. DEFINITION OF TERMS 1. LIBEL is a public and malicious imputation of a crime, or a vice or defect, real or imaginary or any act, commission, condition, status or circumstances tending to cause the dishonor, discredit or contempt of a natural or juridical person, or to blacken the memory of one who is dead. It must be committed through any of the acts enumerated in Art. 355 2. DEFAMATION may be libel or slander. Defamation is the proper term for libel as used in Art. 353. 3. PUBLICATION is the communication of the defamatory matter to some third person/s. KINDS OF MALICE 1. MALICE IN LAW is presumed from a defamatory imputation. Proof of malice is not required; may be taken for granted in view of the grossness of the imputation. 2. MALICE IN FACT is malice or ill-will which must be proved. WHEN DO MALICE IN FACT APPLY? Malice in fact must be proved whenever the defamatory imputation appears in a privileged communication. WHEN DOES PRESUMPTION OF MALICE OF LAW DISAPPEAR? Upon proof of good intention and justifiable motive. NOTE: There is no distinction between calumny, insult and libel. All kinds of attack against honor and reputation is punished. Malice is presumed to exist in injurious publications. Defamatory remarks directed at a group of persons are not actionable unless the statements are all embracing or sufficiently specific for each victim to be identifiable. The meaning of the writer is immaterial. In libel, the false accusation need not be made under oath. It is perjury which requires that the false accusation is made under oath. Seditious libel is punished under Article 142 Imputation of criminal intention is not libellous There are as many counts of libel as there are persons defamed. GENERALLY, THE PERSON LIBELED MUST BE IDENTIFIED. But the publication need not refer by name to the libeled party. If not named, it must be shown that the description of the person referred to in the defamatory publication was
sufficiently clear so that at least a 3rd person would have identified the offended party. PRESUMPTION OF PUBLICATION To presume publication, there must be a reasonable probability that the alleged libelous matter was thereby exposed to be read or seen by 3rd persons. CRITERIA TO DETERMINE WHETHER STATEMENTS ARE DEFAMATORY: 1. In determining whether a statement is defamatory, the words used are construed in their entirety and taken in their plain, natural and ordinary meaning as they would naturally be understood by persons reading them, unless it appears that they were used and understood in another sense.55 2. Words are calculated to induce the hearers to suppose and understand that the person against whom they are uttered were guilty of certain offenses, or are sufficient to impeach their honesty, virtue or reputation, or to hold the person up to public ridicule;56 and 3. Words are construed not only as to the expression used but also with respect to the whole scope and apparent object of the writer.57
ART. 354. REQUIREMENT FOR PUBLICITY. KINDS OF PRIVILEGED COMMUNICATION: 1. ABSOLUTELY PRIVILEGED not actionable even if the actor has acted in bad faith; 2. QUALIFIEDLY PRIVILEGED those which, although containing defamatory imputations, are not actionable unless made with malice or bad faith. GENERAL RULE: Every defamatory imputation is presumed malicious, even if it be true, if no good intention and justifiable motive for making it is shown. However, the presumption of malice is rebutted, if it is shown by the accused that: a. The defamatory imputation is true, in case the law allows proof of the truth of the imputation. b. It is published with good intention; and c. There is justifiable motive for making it.. EXCEPTION TO THE RULE (when malice is NOT presumed): 1. Private communication in performance of legal, moral or social duty. REQUISITES: a. That the person who made the communication had a legal, moral or social duty to make the
55
56
57
Novicio v. Aggabao, G.R. No. 141332, December 11, 2003 U.S. v. OConnell, 37 Phil.767 People v. Encarnacion, C.A., 48 O.G. 1817
2.
communication or at least he had an interest to be upheld; Legal duty presupposes a provision of law conferring upon the accused the duty to communicate. b. That the communication is addressed to an officer or a board, or superior, having some interest or duty on the matter; and c. That the statements in the communication are made in good faith without malice in fact. The defense of privileged communication will be rejected if it shown by the prosecution or the plaintiff: a. That the defendant acted with malice in fact, or b. That there is no reasonable ground for believing the charge to be true. Fair and true report of official proceedings, made in good faith, without any comments and remarks
REQUISITES: a. That the publication of a report of an official proceeding is a fair and true report of a judicial, legislative, or other official proceedings which are not of confidential nature, or of a statement, report, or speech delivered in said proceedings, or of any other act performed by a public officer in the exercise of his functions; b. That it is made in good faith; and c. That it is made without any comments or remarks DOCTRINE OF FAIR COMMENT Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. MALICE IN FACT - is the rivalry or ill-feeling existing at the date of publication. It is the intention to injure the reputation of the offended party, motivated by hate and revenge. MALICE IN FACT MAY BE PROVED OR SHOWN BY: 1. Extrinsic evidence that the defendant bore a grudge against the offended party; or 2. That there was rivalry or ill-feeling between them which existed at the date of the publication of the defamatory imputation; or 3. That the defendant had an intention to injure the reputation of the offended party as shown by the words used and the circumstances attending the publication of the defamatory imputation. NOTE: Prosecution must prove malice in fact to convict the accused in case of qualified privileged communication
Absolute Privileged Communication are not actionable even if done in bad faith. This covers statements made by members of Congress in discharge of functions, and judicial proceedings when pertinent and relevant to subject of inquiry Unnecessary publicity destroys good faith. Defense of privileged communication in paragraph 1 will be rejected if it is shown that accused acted with malice and there is no reasonable ground for believing the charge to be true. The mental, moral and physical fitness of a candidate for public office may be subject to criticism. It does not follow a public man into his private life and domestic concerns. Privileged Communication may be found in public document That the statement is a privileged communication is a matter of defense STATEMENTS MADE IN SELF-DEFENSE ARE OFTEN PRIVILEGED Statements made in self defense or in mutual controversy are often privileged. The person libeled is justified to hit back with another libel. However, retaliation and vindictiveness cannot be the basis of self-defense in defamation. Self-defense must be on matters related to imputations made on the person invoking the defense. COMMENTS ON THE CONDUCT OF PUBLIC OFFICERS DO NOT CONSTITUTE LIBEL Defamatory remarks and comments on the conduct or acts of public officers which are related to the discharge of their official duties will not constitute libel if defendant proves the truth of imputation. However, any attack upon private character on matters not related to the discharge of official duties may be libelous. JURISPRUDENCE A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a 'public personage.' He is, in other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in
short, anyone who has arrived at a position where public attention is focused upon him as a person.58 ART. 355. LIBEL BY MEANS OF WRITINGS OR SIMILAR MEANS THE MEANS BY WHICH LIBEL MAY BE COMMITTED ARE BY: 1. writing; 2. printing,; 3. lithography; 4. engraving; 5. radio; 6. phonograph; 7. painting; 8. theatrical exhibitions; 9. cinematographic exhibitions; or 10. any similar means. NOTES The law provides, or any similar means which easily qualifies television is such species or category. Defamation made in a television program is libel. Also includes pictures. Defamation through an amplifier is not libel, but oral defamation (slander). The penalty prescribed is in addition to civil liability. Libel may be absorbed in crime of threats if intent to threaten is the principal aim and object. ART. 356. THREATENING TO PUBLISH LIBEL AND OFFER TO PREVENT SUCH PUBLICATION FOR A COMPENSATION ACTS PUNISHABLE: 1. By threatening another to publish a libel concerning him, or his parents, spouse, child, or other members of his family; or 2. By offering to prevent the publication of such libel for compensation, or money consideration. BLACKMAIL - Any unlawful extortion of money by threats of accusation or exposure. It is possible in the crimes of light threats (Art. 283) and in threatening to publish libel (Art. 356). ART. 357. PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS ELEMENTS: 1. That the offender is a reporter, editor or manager of a newspaper, daily or magazine; 2. That he publishes facts connected with the private life of another; and
3.
That such facts are offensive to the honor, virtue and reputation of said person. NOTES: The prohibition to publish applies even such publication be made in connection w/ or under the pretext that it is necessary in the narration of any judicial or administrative proceedings wherein such facts have been mentioned. Art. 357 constitutes the Gag law which bars from publication news reports on cases pertaining to adultery, divorce, issues about the legitimacy of children, etc. Source of news report may not be revealed unless court or Congress finds such revelation is demanded by the security of the State
ART.
358.
SLANDER/
ORAL
DEFAMATION
KINDS
OF
ORAL
DEFAMATION:
1. GRAVE
SLANDER
-
defamation
is
of
a
serious
and
insulting
nature;
2. SIMPLE
SLANDER
-
light
insult
or
defamation.
FACTORS
THAT
DETERMINE
GRAVITY
OF
THE
OFFENSE:
1. expressions
used
2. personal
relations
of
the
accused
&
the
offended
party,
3. circumstances
surrounding
the
case,
and
4. social
standing
and
position
of
the
victim.
NOTE:
Words
uttered
in
the
heat
of
anger
constitute
light
oral
defamation.
If
the
utterances
were
made
publicly
and
were
heard
by
many
people
and
the
accused
at
the
same
time
pointed
his
finger
at
the
complainant,
oral
defamation
is
committed.
Uttering
defamatory
words
in
the
heat
of
anger,
with
some
provocation
on
the
part
of
the
offended
party
constitutes
only
a
light
felony.59
ART.
359.
SLANDER
BY
DEED
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
person
or
persons;
and
3. That
such
act
casts
dishonor,
discredit
or
contempt
upon
the
offended
party.
58
59
NOTE: Slander may either be simple or grave, depending upon the nature of the deed. Pointing a dirty finger constitutes simple slander by deed, it appearing from the factual milieu of the case that the act complained of was employed "to express anger or displeasure" at complainant. While it may have cast dishonor, discredit or contempt upon complainant, said act is not of a serious nature.60 SERIOUSNESS OF SLANDER BY DEED DEPENDS ON: 1. The social standing of offended party 2. The circumstances surrounding the act 3. The occasion DISTINCTIONS: 1. UNJUST VEXATION - irritation or annoyance; anything that annoys or irritates without justification. 2. SLANDER BY DEED - irritation or annoyance + attendant publicity and dishonor or contempt. 3. ACTS OF LASCIVIOUSNESS - irritation or annoyance + any of the 3 circumstance provided in Art. 335 on rape (i.e. use of force or intimidation; deprivation of reason or rendering the offended unconscious; or if offended party was under 12 years old, together with lewd designs)
4.
SECTION 2. GENERAL PROVISIONS ART. 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; and 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. VENUE OF CRIMINAL AND CIVIL ACTION FOR DAMAGES IN CASES OF WRITTEN DEFAMATION (PROVIDES FOR EXCLUSIVE JURISDICTION): 1. where the libelous article is printed & 1st published, or 2. where any of the offended parties actually resides at the time of the commission of the offense, or 3. where one of the offended parties is a public officer: a. if his office is in the City of Manila, with the RTC of Manila otherwise, with the RTC of the city/province where he held office at the time of offense;
or the city/province where the article was 1st published where one of the offended parties is a private individual, with the RTC of province/city where he actually resides at the time of the crime or where the article was printed or 1st published. NOTE: Complaint for defamation imputing a private crime (i.e. adultery, concubinage, seduction, abduction, and acts of lasciviousness) must be filed by the offended party. If the libel imputes a vice or defect and not a crime, it is always prosecuted upon information signed and filed by the fiscal The person who publishes a libelous letter written by the offended party is liable (publishing and not composing is the prime requisite of crime). Liability of the editor is same as the author. Limitations of venue: In order to minimize interference with public function when the case involves a public officer and also to avoid unnecessary harassment of the accused by limiting out-of-town libel suits. Action for exemplary damages may be awarded if action is based on quasi-delict. Civil and criminal actions must be filed in same court. No remedy for damages for slander or libel in case of absolutely privileged communication. b.
60
Id.
ART. 361. PROOF OF THE TRUTH PROOF OF TRUTH IS ADMISSIBLE WHEN: 1. The act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer, or 2. The offended party is a government employee, even if the act or omission imputed does not constitute a crime, provided, it is related to the discharge of his official duties. REQUISITES FOR ACQUITTAL FROM A LIBEL CHARGE: 1. It appears that the matter charged as libelous is TRUE (for situations (1) and (2) above); and 2. It was published with good motives and for a justifiable end (for situation (1) only). NOTES: The proof of the truth of the accusation cannot be made to rest upon mere hearsay, rumors, or suspicion but upon positive, direct evidence upon which a definite finding may be made by the court. An imputation that a person has contagious disease might under ordinary circumstances be defamatory but loses such character when made with good intention and justifiable motive.
There is no libel when there is no malice. Retraction may mitigate the damages; if article is libelous per se, publication due to honest mistake is only mitigating. ART. 362. LIBELOUS REMARKS NOTES: Libelous remarks or comments on privileged matters (under Art. 354), if made with malice in fact, will not exempt the author and editor. This article is a limitation to the defense of privileged communication. Even if matter is privileged and malice in fact is proved, author and editor is liable Author/editor of publication who distorts, mutilates or discolors official proceedings reported by him, or add comments thereon to cast aspersion on character of parties concerned is guilty of libel ================================================
Arresto Mayor
================================================ ART. 363. INCRIMINATING INNOCENT PERSON 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; and 3. That such act does not constitute perjury. 2 KINDS OF INCRIMINATING AN INNOCENT PERSON: 1. Making a statement which constitutes: a. defamation, or b. perjury (if made under oath and is false) 2. Planting evidence NOTES: Art. 363 is limited to planting evidence and the like, which tend directly to cause false prosecution. Incriminatory machinations distinguished from defamation does not avail himself of written or spoken words. There is a complex crime of incriminating an innocent person through unlawful arrest. INCRIMINATING AN PERJURY BY MAKING FALSE INNOCENT ACCUSATION Performs act to directly Imputation falsely made incriminate or impute before an officer commission of crime Act of planting evidence False statement or affidavit made under oath
ART. 364. INTRIGUING AGAINST HONOR HOW COMMITTED: This felony is committed by any person who shall make any intrigue which has for its principal purpose to blemish the honor or reputation of another person. It is committed by saying to others an unattributable thing, that if it said to the person himself, slander is committed. NOTE: Must be committed by means of some tricky and secret plot, and not gossiping which falls under defamation. Where the source or author of derogatory information cannot be determined and defendant passes it to others, defendants act is one of intriguing against honor; if it came from a definite source, slander is committed. INTRIGUING AGAINST INCRIMINATING AN HONOR INNOCENT PERSON The offender resorts to an The offender performs an intrigue for the purpose of act by which he directly blemishing the honor or incriminates or imputes to reputation of another an innocent person the person. commission of a crime. INTRIGUING AGAINST SLANDER HONOR The source or author of the The source of information derogatory information can be pinpointed and cannot be determined and definitely determined and the defendant borrows the defendant, adopting as his same &, without subscribing own the information he has to the truth thereof, passes obtained, passes the same it to others. to another for the purpose of causing dishonor to complainants reputation.
A.M. 06-2008 (RULE OF PREFERENCE IN IMPOSITION OF PENALTIES IN LIBEL CASES) There is an emergent rule of preference for the imposition of fine only rather than imprisonment in libel cases. All courts and judges concerned should henceforth take note of the foregoing rule of preference set by the Supreme Court on the matter of the imposition of penalties for the crime of libel bearing in mind the following principles:
ELEMENTS
OF
SIMPLE
IMPRUDENCE:
1. That
there
is
lack
of
precaution
on
the
part
of
the
offender;
and
2. That
the
damage
impending
to
be
caused
is
not
immediate
or
the
danger
is
not
clearly
manifest.
NEGLIGENCE
IMPRUDENCE
Deficiency
of
Perception
Deficiency
of
Action
Failure
in
Advertence
Failure
in
Precaution
Avoided
by
paying
proper
Avoided
by
taking
the
attention
and
using
due
necessary
precaution
once
diligence
in
foreseeing
them
foreseen
NOTE:
Imprudence
or
Negligence
is
not
a
crime
in
itself,
but
simply
a
way
of
committing
a
crime.
Art.
64
on
mitigating
and
aggravating
circumstances
is
not
applicable
in
quasi-offenses.
In
the
technical
term
Reckless
Imprudence
resulting
in
Homicide,
what
is
punished
is
not
the
act
itself
but
the
mental
attitude
or
condition
behind
the
act.
Negligence
is
a
quasi-offense.
What
is
punished
is
not
the
effect
of
the
negligence
but
the
recklessness
of
the
accused.
Contributory
negligence
of
offended
party
is
not
a
defense
but
only
mitigates
criminal
liability.
Violation
of
a
rule
or
regulation
or
law
is
proof
of
negligence.
No
criminal
liability
for
death
or
injuries
caused
by
recklessly
negligent
acts
to
trespassers
where
the
defendant
was
not
aware
of
their
presence.
QUALIFYING
CIRCUMSTANCE
IN
QUASI
OFFENSES
The
offenders
failure
to
lend
on-the-spot
assistance
to
the
victim
of
his
negligence
or
abandoning
ones
victim
is
usually
punishable
under
Art.
275.
However,
if
it
is
charged
under
Art.
365,
it
is
only
a
qualifying
circumstance.
If
not
alleged
at
all,
it
cannot
even
be
considered
as
an
aggravating
circumstance.
TEST
OF
NEGLIGENCE
Q:
Did
the
defendant,
in
doing
the
alleged
negligent
act,
use
the
reasonable
care
and
caution
which
an
ordinary
prudent
person
would
have
used
in
the
same
situation?
If
not,
then
he
is
guilty
of
negligence.
RECKLESS
IMPRUDENCE
The
immediate
personal
harm
or
damage
to
property
is
perceivable
and
can
be
prevented
by
the
exercise
of
reasonable
care.
The
want
of
FORCE
MAJEURE
Events
which
could
not
be
foreseen,
or
which,
though
foreseen,
were
inevitable.
It
implies
an
extraordinary
1. 2.
3.
This Administrative Circular does not remove imprisonment as an alternative penalty for the crime libel under Article 355 of the Revised Penal Code; The Judges concerned 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 imperative of justice. 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 provision on subsidiary imprisonment.
=======================================
=======================================
CRIMINAL
NEGLIGENCE
=================================================
ART.
365.
IMPRUDENCE
AND
NEGLIGENCE
QUASI-OFFENSES
ARE
COMMITTED
IN
4
WAYS:
1. By
committing
through
reckless
imprudence
any
act
which,
had
it
been
intentional,
would
constitute
a
grave
or
less
grave
felony
or
light
felony;
2. By
committing
through
simple
imprudence
or
negligence
an
act
w/c
would
otherwise
constitute
a
grave
or
a
less
serious
felony;
3. By
causing
damage
to
the
property
of
another
through
reckless
imprudence
or
simple
imprudence
or
negligence;
or
4. By
causing
through
simple
imprudence
or
negligence
some
wrong
which,
if
done
maliciously,
would
have
constitute
a
light
felony.
ELEMENTS
OF
RECKLESS
IMPRUDENCE:
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;
and
5. That
there
is
inexcusable
lack
of
precaution
on
the
part
of
the
offender,
taking
into
consideration
a. his
employment
or
occupation,
b. degree
of
intelligence,
physical
condition,
and
c. other
circumstances
regarding
persons,
time
and
place.
LAST CLEAR CHANCE RULE The contributory negligence of the injured party 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. DOCTRINE OF PRE-EMPTION IN VEHICLE COLLISIONS Although the driver of a motor vehicle crossing a thru-street is supposed to wait along the intersection for the driver of another vehicle running along said thru-street, if the driver crossing the street had already reached the middle thereof, the other driver travelling along the thru-street, although with a right of pre-emption, has the duty to stop his motor vehicle in order to avoid a collision. EMERGENCY RULE A person confronted with emergency may be left with no time for thought and must make speedy decision based on impulse or instinct, and cannot be held liable for same conduct as one who had the opportunity to reflect. This is applicable only when the situation that arises is sudden, unexpected, and is such as to deprive him of all opportunity for deliberation. Eg. An automobile driver, who, by the negligence of another, is suddenly placed in an emergency and is compelled to act instantly to avoid a collision or injury, is not guilty of negligence if he makes a choice which a person of ordinary prudence placed in such a position might make even though he did not make the wisest choice. NOTE: Must be based on negligence of another with no proof of his own negligence.
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