* Success is not important. What matters is the actual assembly of men and the execution of treasonable design by force. Ways of proving treason: a. 2 witnesses testifying to same overt act > The testimonies must refer to the same act, place and moment of time. Treason cannot be proved by circumstantial evidence or by extrajudicial confession. Example: X saw arms landed in La Union and loaded into a motor vehicle. At this stage, not sufficient to convict yet. Y later saw the arms unloaded in a warehouse. Will X + Y be sufficient witnesses to convict? Answer: NO. Because the law requires that 2 witnesses see the SAME OVERT ACT.
Elements and Notes in Criminal Law Book II by RENE CALLANTA b. Confession of the accused in open court.
Arraignment, pre-trial, trial OK. > If he has pleaded NOT guilty already during arraignment, he can still confess in open court by stating the particular acts constituting treason. > During trial, simply saying Im guilty is not enough. > Withdrawing plea of not guilty during arraignment not necessary > If during arraignment he pleads guilty, court will ask if the accused understands is plea. Submission of affidavit during trial, even if assisted by counsel is not enough.
TREASON: breach of allegiance to the government, committed by a person who owes allegiance to it. Allegiance: obligation of fidelity and obedience. It is permanent or temporary depending on whether the person is a citizen or an alien. Evident premeditation, superior strength and treachery are circumstances inherent in treason, and are, therefore, not aggravating. Treason cannot be committed in times of peace, only in times of war actual hostilities. But no need for declaration of war
Not Treasonous: a. Acceptance of public office and discharge of official duties under the enemy does not constitute per se the felony of treason (exception: when it is policy determining)
> Acts which strengthen or tend to strengthen the enemy in the conduct of war against the traitors country or that which weaken and tend to weaken the power of the same. Example: Financing arms procurement of enemy country. But giving of shelter is not necessarily giving aid and comfort.
Adherence and giving aid or comfort must concur together. ADHERENCE: when a citizen intellectually or emotionally favors the enemy and harbors convictions disloyal to his countrys policy. But membership in the police force during the occupation is NOT treason. Example: Giving information to, or commandeering foodstuffs for the enemy.
Adherence may be proved by: (1) one witness; (2) from the nature of the act itself; (3)
Treason is a CONTINUING CRIME. Even after the war, offender can be prosecuted.
* Treason is a continuing offense. It can be committed by a single act or by a series of acts. It can be committed in one single time or at different times and only one criminal intent. In construing the provisions relating to the commission of several acts, the same must be done in pursuance or furtherance of the act of treason. * No matter how many acts of treason are committed by the offender, he will be liable for only one crime of treason.
If you convict a person for treason by reason of irresistible force or uncontrollable fear, you may use Art.12. No treason through negligence
* In the imposition of the penalty for the crime of treason, the court may disregard the presence of mitigating and aggravating circumstances. It may consider only the number, nature and gravity of the acts established during the trial. The imposition of the penalty rests largely on the exercise of judicial discretion. Defenses that may be availed of by the accused. 1. Duress or uncontrollable fear of immediate death; and 2. Lawful obedience to a de facto government.
When killings and other common crimes are charged as overt act of treason, they cannot be regarded as (1) separate crimes or (2) as complex with treason.
* In the act of levying war or giving aid or comfort to the enemy, murder, robbery, arson or falsification may be committed by the offender. BUT the offender does not commit the crime of treason complexed with common crimes because such crimes are inherent to treason, being an indispensable element of the same. Treason distinguished from Rebellion. The manner in which both crimes are committed in the same. In treason however, the purpose of the offender is to deliver the government to the enemy country or to a foreign power. In rebellion, the purpose of the rebels is to substitute the government with their own form of government. No foreign power is involved. Treason distinguished from Sedition. In treason, the offender repudiates his allegiance to the government by means of force or intimidation. He does not recognize the supreme authority of the State. He violates his allegiance by fighting the forces of the duly constituted authorities. In sedition, the offender disagrees with certain policies of the State and seeks to disturb public peace by raising a commotion or public uprising.
Mere agreement and decisions to commit treason is punishable Mere proposal even without acceptance is punishable too. If the other accepts, it is already conspiracy.
* While Treason as a crime should be established by the two-witness rule, the same is not observed when the crime committed conspiracy to commit treason or when it is only a proposal to commit treason.
c. That he conceals or does not disclose and make known the same as soon as possible to the governor or fiscal of the province or the mayor or fiscal of the city in which he resides
* While in treason, even aliens can commit said crime because of the amendment to the article, no such amendment was made in misprision of treason. Misprision of treason is a crime that may be committed only by citizens of the Philippines.
* Take note that the offender is a principal to the crime of misprision of treason, yet he is penalized only as an accessory. In the imposition of the penalty, the court is not bound by the provisions of Article 63 and 64, referring to indivisible penalties. In the presence of mitigating and aggravating circumstances, the offender is punished two degrees lower than the penalty for the crime of treason.
* The criminal liability arises if the treasonous activity was still at the conspiratorial stage
This crime does not apply if the crime of treason is already committed Crime of omission
* This is a felony by omission although committed with dolo, not with culpa.
To report within a reasonable time depends on time, place and circumstance the RPC did not fix time. RPC states 4 individuals, what if you report to some other high-ranking government official? Ex. PNP Director? Judge Pimentel says any govt official of the DILG is OK.
* Whether the conspirators are parents or children, and the ones who learn the conspiracy is a parent or child, they are required to report the same. The reason is that although blood is thicker than water so to speak, when it comes to security of the state, blood relationship is always subservient to national security. Article 20 does not apply here because the persons found liable for this crime are not considered accessories; they are treated as principals.
Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 117 Espionage by entering, without authority therefor, warship, fort, or naval or military establishments or reservation to obtain any information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines.
ELEMENTS: a. 1. That the offender enters any of the places mentioned therein 2 3 2. That he has no authority therefore; b. That his purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines * Under the first mode of committing espionage, the offender must have the intention to obtain information relative to the defense of the PHIL. It is sufficient that he entered the prohibited premises. Here, the offender is any private individual, whether an alien or a citizen of the Philippines, or a public officer.
Espionage by disclosing to the representative of a foreign nation the contents of the articles, data, or information referred to in paragraph 1 of Article 117, which he had in his possession by reason of the public office holds
ELEMENTS: a. That the offender is a public officer b. That he has in his possession the articles, data or information referred to in par 1 of art 117, by reason of the public office he holds c. That he discloses their contents to a representative of a foreign nation
* Under the second mode, the offender must be a public officer who has in possession the articles, data or information by reason of the office he holds. Taking advantage of his official position, he reveals or discloses the information which are confidential and are relevant to the defense of the Philippines.
ESPIONAGE: the offense of gathering, transmitting, or losing information respecting the national defense with the intent or reason to believe that the information is to be used to the injury of the Philippines or the advantage of any foreign nation. It is not conditioned on citizenship. Not necessary that Philippines is at war with the country to which the information was revealed. What is important is that the information related is connected with the defense system of the Philippines. Wiretapping is NOT espionage if the purpose is not something connected with the defense
Commonwealth Act No. 616 An Act to Punish Espionage and Other Offenses against National Security Acts punished 1. Unlawfully obtaining or permitting to be obtained information affecting national defense; 2. Unlawful disclosing of information affecting national defense; 3. Disloyal acts or words in times of peace; 4. Disloyal acts or words in times of war; 5. Conspiracy to violate preceding sections; 6. Harboring or concealing violators of law. and 7. Photographing vital military information
Elements and Notes in Criminal Law Book II by RENE CALLANTA CRIMES AGAINST LAWS OF NATIONS
* In crimes against the law of nations, the offenders can be prosecuted anywhere in the world because these crimes are considered as against humanity in general, like piracy and mutiny. Crimes against national security can be tried only in the Philippines, as there is a need to bring the offender here before he can be made to suffer the consequences of the law. The acts against national security may be committed abroad and still be punishable under our law, but it can not be tried under foreign law.
Crime is committed in time of peace, intent is immaterial Inciting to war offender is any person Reprisals is not limited to military action, it could be economic reprisals, or denial of entry into their country.
EXAMPLE. X burns Chinese flag. If China bans the entry of Filipinos into China, that is already reprisal.
Govt must have declared the neutrality of the Phil in a war between 2 other countries
* The regulation must be issued by a competent authority like the President of the Philippines or the Chief of Staff of the Armed Forces of the Philippines, during a war between different countries in which the Philippines is not taking sides. It is neutrality of the Phil that is violated Congress has the right to declare neutrality
* The violations can be done either by means of dolo or by means of culpa. So violation of neutrality can be committed through reckless imprudence.
Mere attempt consummates the crime There must be a prohibition. If none, even if went to enemy country no violation Alien resident may be guilty here.
1. attack or seize that vessel or (hence, if committed by crew or passengers, the crime is not
piracy but robbery in the high seas) 2. seize the whole or part of the cargo of said vessel, its equipment or personal belongings of its complement or passengers
High seas: any waters on the sea coast which are without the boundaries of the low water mark although such waters may be in the jurisdictional limits of a foreign govt PIRACY IN HIGH SEAS jurisdiction is with any court where offenders are found or arrested PIRACY IN INTERNAL WATERS jurisdiction is only with Philippine courts For purpose of Anti-Fencing Law, piracy is part of robbery and theft MUTINY Unlawful resistance to a superior officer, or the raising of commotion and disturbances on board a ship against the authority of its commander
PIRACY Robbery or forcible degradation on the high seas, without lawful authority and done with animo lucrandi and in the spirit and intention of universal hostility.
Intent to gain is an element. No criminal intent Attack from outside. Offenders are Attack from the inside. strangers to the vessel.
under the amended article, piracy can only be committed by a person who is not a passenger nor member of the complement of the vessel irrespective of venue. So if a passenger or complement of the vessel commits acts of robbery in the high seas, the crime is robbery, not piracy. If in the Phil. waters still piracy
* However, despite the amendment, P.D. No. 532 may still apply where the offender is not stranger to the vessel since it provides: Any attack upon or seize of any vessel, or the taking away of the whole of part thereof or its cargo, equipment or the personal belongings of its complement or passengers, irrespective of the value hereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided. After all, under the Revised Penal Code, for one to be called a pirate, the offender must be a stranger to the vessel. While the Article 122 limits the offenders to non-passengers or non-members of the crew, P.D. 532 states that the attack upon or seizure of any vessel, or taking away the whole or part thereof or its cargo, equipment or personal belongings of its complement or passengers committed by any person including a passenger or member of the complement of said vessel shall be considered Piracy.
* Note, however, that in Section 4 of Presidential Decree No. 532, the act of aiding pirates or abetting piracy is penalized as a crime distinct from piracy. Said section penalizes any person who knowingly and in any manner aids or protects pirates, such as giving them information about the movement of the police or other peace officers of the government, or acquires or receives property taken by such pirates, or in any manner derives any benefit therefrom; or who directly or indirectly abets the commission of piracy. Also, it is expressly provided in the same section that the offender shall be considered as an accomplice of the principal offenders and punished in accordance with the Revised Penal Code. This provision of Presidential Decree No. 532 with respect to piracy in Philippine water has not been incorporated in the Revised Penal Code. Neither may it be considered repealed by Republic Act No. 7659 since there is nothing in the amendatory law is inconsistent with said section. Apparently, there is still the crime of abetting piracy in Philippine waters under Presidential Decree No. 532.
ELEMENTS OF MUTINY 1) The vessel is on the high seas or Philippine waters; 2) Offenders are either members of its complement, or passengers of the vessel; 3) Offenders either a. b. attack or seize the vessel; or seize the whole or part of the cargo, its equipment, or personal belongings of the crew or passengers.
MUTINY is the unlawful resistance to a superior officer, or the raising of commotions and disturbances aboard a ship against the authority of its commander.
c. Whenever the crime is accompanied by murder, homicide, physical injuries, or rape. (the above may result to qualified mutiny)
* Murder, rape, homicide, physical injuries are mere circumstances qualifying piracy and cannot be
punished as separate crimes, nor can they be complexed with piracy.
Parricide/infanticide should be included (Judge Pimentel) Murder/rape/homicide/physical injuries must have been committed on the passengers or complement
* In piracy, where rape, murder or homicide is committed, the mandatory penalty of death is imposable. This means that even if the accused enters a plea of guilty, the penalty of death will still be imposed because death is a single and indispensable penalty. (People vs. Rodriguez, 135 SCRA 485) * The penalty for qualified piracy is reclusion perpetua to death. If any of the circumstances enumerated under the law is proven or established, the mandatory penalty of death should be imposed. The presence of mitigating or aggravating circumstances will be ignored by the court.
Although in Article 123 merely refers to qualified piracy, there is also the crime of qualified mutiny. Mutiny is qualified under the following circumstances: (1) (2) When the offenders abandoned the victims without means of saving themselves; or When the mutiny is accompanied by rape, murder, homicide, or physical injuries.
Note that the first circumstance which qualifies piracy does not apply to mutiny.
Between numbers 1 and 2, the point of distinction is whether the aircraft is of Philippine registry or foreign registry. The common bar question on this law usually involves number 1. The important thing is that before the anti hi-jacking law can apply, the aircraft must be in flight. If not in flight, whatever crimes committed shall be governed by the Revised Penal Code. The law makes a distinction between aircraft of a foreign registry and of Philippine registry. If the aircraft subject of the hi-jack is of Philippine registry, it should be in flight at the time of the hi-jacking. Otherwise, the anti hi-jacking law will not apply and the crime is still punished under the Revised Penal Code. The correlative crime may be one of grave coercion or grave threat. If somebody is killed, the crime is homicide or murder, as the case may be. If there are some explosives carried there, the crime is destructive arson. Explosives are by nature pyrotechniques. Destruction of property with the use of pyro-technique is destructive arson. If there is illegally possessed or carried firearm, other special laws will apply. On the other hand, if the aircraft is of foreign registry, the law does not require that it be in flight before the anti hi-jacking law can apply. This is because aircrafts of foreign registry are considered in transit while they are in foreign countries. Although they may have been in a foreign country, technically they are still in flight, because they have to move out of that foreign country. So even if any of the acts mentioned were committed while the exterior doors of the foreign aircraft were still open, the anti hi-jacking law will already govern. Note that under this law, an aircraft is considered in flight from the moment all exterior doors are closed following embarkation until such time when the same doors are again opened for disembarkation. This means that there are passengers that boarded. So if the doors are closed to bring the aircraft to the hangar, the aircraft is not considered as in flight. The aircraft shall be deemed to be already in flight even if its engine has not yet been started.
Questions & Answers 1. The pilots of the Pan Am aircraft were accosted by some armed men and were told to proceed to the aircraft to fly it to a foreign destination. The armed men walked with the pilots and went on board the aircraft. But before they could do anything on the aircraft, alert marshals arrested them. What crime was committed? The criminal intent definitely is to take control of the aircraft, which is hi-jacking. It is a question now of whether the anti-hi-jacking law shall govern. The anti hi-jacking law is applicable in this case. Even if the aircraft is not yet about to fly, the requirement that it be in flight does not hold true when in comes to aircraft of foreign registry. Even if the problem does not say that all exterior doors are closed, the crime is hi-jacking. Since the aircraft is of foreign registry, under the law, simply usurping or seizing control is enough as long as the aircraft is within Philippine territory, without the requirement that it be in flight. Note, however, that there is no hi-jacking in the attempted stage. This is a special law where the attempted stage is not punishable. 2. A Philippine Air Lines aircraft is bound for Davao. While the pilot and co-pilot are taking their snacks at the airport lounge, some of the armed men were also there. The pilots were followed by these men on their way to the aircraft. As soon as the pilots entered the cockpit, they pulled out their firearms and gave instructions where to fly the aircraft. Does the anti hi-jacking law apply? No. The passengers have yet to board the aircraft. If at that time, the offenders are apprehended, the law will not apply because the aircraft is not yet in flight. Note that the aircraft is of Philippine registry.
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CLASSES OF ARBITRARY DETENTION: a. By detaining a person without legal ground b. Delay in the delivery of detained persons to the proper judicial authorities c. Delaying release
b. c.
That he detains a person (actual restraint). That the detention was without legal grounds (cannot be committed if with warrant).
* Only those public officers whose official duties carry with it the authority to make an arrest and detain persons can be guilty of this crime. So, if the offender does not possess such authority, the crime committed by him is illegal detention.
Though the elements specify that the offender be a public officer or employee, private individuals who conspire with public officers can also be liable.
* In a case decided by the Supreme Court a Barangay Chairman who unlawfully detains another was held to be guilty of the crime of arbitrary detention. This is because he is a person in authority vested with the jurisdiction to maintain peace and order within his barangay. In the maintenance of such peace and order, he may cause the arrest and detention of troublemakers or those who disturb the peace and order within his barangay. But if the legal basis for the apprehension and detention does not exist, then the detention becomes arbitrary.
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For escaped prisoner no need for warrant Example: Y was killed by unknown assailant. Officers got a tip and arrested X. X voluntarily admitted to the officers that he did it although he was not asked. X was detained immediately. According to the SC, there was NO arbitrary detention. Why? Because once X made a confession, the officers had a right to arrest him.
* Arbitrary detention can be committed thru simple imprudence or negligence. (People vs. Misa) Periods of Detention penalized: 1. Detention not exceeding three days; 2. Detention for more than three days but not more than 15 days; 3. Detention for more than 15 days but not more than 6 months; and 4. Detention for more than 6 months. Continuing crime is different from a continuous crime Ramos v. Enrile: Rebels later on retire. According to the SC, once you have committed rebellion and have not been punished or amnestied, then the rebels continue to engage in rebellion, unless the rebels renounce his affiliation. Arrest can be made without a warrant because this is a continuing crime.
Distinction between arbitrary detention and illegal detention 1. In arbitrary detention -The principal offender must be a public officer. Civilians cannot commit the crime of arbitrary detention except when they conspire with a public officer committing this crime, or become an accomplice or accessory to the crime committed by the public officer; and The offender who is a public officer has a duty which carries with it the authority to detain a person. 2. In illegal detention -The principal offender is a private person. But a public officer can commit the crime of illegal detention when he is acting in a private capacity or beyond the scope of his official duty, or when he becomes an accomplice or accessory to the crime committed by a private person.
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Really means delay in filing necessary information or charging of person detained in court. May be waived if a preliminary investigation is asked for.
* Under the Revised Rules of Court, when the person arrested is arrested for a crime which gives him the right to preliminary investigation and he wants to avail his right to a preliminary investigation, he would have to waive in writing his rights under Article 125 so that the arresting officer will not immediately file the case with the court that will exercise jurisdiction over the case. If he does not want to waive this in writing, the arresting officer will have to comply with Article 125 and file the case immediately in court without preliminary investigation. In such case, the arrested person, within five days after learning that the case has been filed in court without preliminary investigation, may ask for preliminary investigation. In this case, the public officer who made the arrest will no longer be liable for violation of Article 125.
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* Delivery of detained person consists in making charge of filing a compliant against the prisoner with the proper judicial authority. It does not involve the physical delivery of the prisoner before the judge (Sayo vs. Chief of Police). The filing of the information in court does not cure illegality of detention. Neither does it affect the legality of the confinement under process issued by the court. To escape from this, officers usually ask accused to execute a waiver which should be under oath and with assistance of counsel. Such waiver is not violative of the accused constitutional right. What is length of waiver? Light offense 5 days. Serious and less serious offenses 7 to 10 days. (Judge Pimentel) Article does not apply when arrest is via a warrant of arrest
Q. Within what period should a police officer who has arrested a person under a warrant of arrest turn over the arrested person to the judicial authority? A. There is no time limit specified except that the return must be made within a reasonable time. The period fixed by law under Article 125 does not apply because the arrest was made by virtue of a warrant of arrest.
Delay in Delivery of Detained (125) Detention is legal in the beginning, but illegality starts from the expiration of the specified periods without the persons detained having been delivered to the proper judicial authority.
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Wardens and jailers are the persons most likely to violate this provision Provision does not include legislation
2 acts punishable: a. by expelling a person from the Philippines b. by compelling a person to change his residence
* The essence of this crime is coercion but the specific crime is expulsion when committed by a public officer. If committed by a private person, the crime is grave coercion.
* In the Philippines, only the President of the Republic has the power to deport aliens whose continued stay in the country constitutes a menace to the peace and safety of the community. * In the case of Filipino citizens, only the court, by final judgment, can order a person to change his residence.
In Villavicencio v. Lukban, 39 Phil 778, the mayor of the City of Manila wanted to make the city free from prostitution. He ordered certain prostitutes to be transferred to Davao, without observing due processes since they have not been charged with any crime at all. It was held that the crime committed was expulsion.
1. Certain aliens were arrested and they were just put on the first aircraft which brought them to the country so that they may be out without due process of law. Was there a crime committed? Yes. Expulsion. 2. aliens. If a Filipino citizen is sent out of the country, what crime is committed?
Grave coercion, not expulsion, because a Filipino cannot be deported. This crime refers only to
If X (Filipino) after he voluntarily left, is refused re-entry is considered forcing him to change his address here Threat to national security is not a ground to expel or change his address.
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Aggravating Circumstance (medium and maximum of penalty imposed): a. Offense committed at nighttime b. Papers or effects not constituting evidence of a crime be not returned immediately
* In order to commit this crime, the entry must be against the will of the owner. If the entry is only without the consent of the owner, the crime of violation of domicile is not committed. The prohibition may be expressed or implied. If the signs Do not enter and Strangers keep out are posted in front of the house or dwelling, then the prohibition is express. If the door is locked, or even if it is open but these are barriers to indicate the manifest intention of the owner to bar strangers from entering, there is implied prohibition. * The primary object of the law is to preserve the privacy of abode of the offended party. Hence, if the privacy is already lost, as when the offender has been allowed by the owner to enter the dwelling together with other persons, any subsequent change of attitude will not restore the privacy which was already lost. When privacy is waived, trespass to dwelling or violation of domicile cannot be committed.
If the offender who enters the dwelling against the will of the owner thereof is a private individual, the crime committed is trespass to dwelling (Art 280) When a public officer searched a person outside his dwelling without a search warrant and such person is not legally arrested for an offense, the crime committed by the public officer is grave coercion, if violence or intimidation is used (Art 286), or unjust vexation, if there is no violence or intimidation (Art 287) A public officer without a search warrant cannot lawfully enter the dwelling against the will of the owner, even if he knew that someone in that dwelling is having unlawful possession of opium
Under Rule 113(sec. 11) of the Revised Rules of Court, when a person to be arrested enters a premise and closes it thereafter, the public officer, after giving notice of an arrest, can break into the premise. He shall not be liable for violation of domicile.
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BEING AUTHORIZED BY LAW means with search warrant, to save himself or do some things good for humanity
There are only three recognized instances when search without a warrant is considered valid, and, therefore, the seizure of any evidence done is also valid. Outside of these, search would be invalid and the objects seized would not be admissible in evidence. (1) (2) (3) Search made incidental to a valid arrest; Where the search was made on a moving vehicle or vessel such that the exigency of he situation prevents the searching officer from securing a search warrant; When the article seized is within plain view of the officer making the seizure without making a search therefore.
In order that a search warrant may be issued, it must be based on probable cause in connection with one offense, to be determined by a judge after examination under oath of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
* This means there was no probable cause determined in obtaining the search warrant.
Although void, the search warrant is entitled to respect because of presumption of regularity. One remedy is a motion to quash the search warrant, not refusal to abide by it. The public officer may also be prosecuted for perjury, because for him to succeed in obtaining a search warrant without a probable cause, he must have perjured himself or induced someone to commit perjury to convince the court.
* The true test of lack of just cause is whether the sworn statement filed in support of the application for search warrant has been done in such a manner that perjury could be charged and the affiant can be held liable for making such false statement.
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ABUSE IN THE SERVICE OF WARRANT OR EXCEEDING AUTHORITY OR USING UNNECESSARY SEVERITY IN EXECUTING A SEARCH WARRANT LEGALLY PROCURED
ELEMENTS: a. That the offender is a public officer or employee b. That he has legally procured a search warrant c. That he exceeds his authority or uses unnecessary severity in executing the same Search warrant is valid for 10 days from its date Search warrant is an order in writing issued in the name of the People, signed by the judge and directed to a public officer, commanding him to search for personal property described therein and bring it before the court No just cause warrant is unjustified Search limited to what is described in the warrant, all details must be with particularity
The officer exceeded his authority under the warrant To illustrate, let us say that there was a pusher in a condo unit. The PNP Narcotics Group obtained a search warrant but the name of person in the search warrant did not tally with the address stated. Eventually, the person with the same name was found but in a different address. The occupant resisted but the public officer insisted on the search. Drugs were found and seized and occupant was prosecuted and convicted by the trial court. The Supreme Court acquitted him because the public officers are required to follow the search warrant to the letter. They have no discretion on the matter. Plain view doctrine is inapplicable since it presupposes that the officer was legally entitled to be in the place where the effects where found. Since the entry was illegal, plain view doctrine does not apply.
Malicious warrant. Example. X was a respondent of a search warrant for illegal possession of firearms. A return was made. The gun did not belong to X and the witness had no personal knowledge that there is a gun in that place. Abuse examples: a. X owner was handcuffed while search was going-on. b. Tank was used to ram gate prior to announcement that a search will be made
The search warrant is not a license to commit destruction.
d. That the owner, or any member of his family, or two witnesses residing in the same locality are not present Order of those who must witness the search: a. Homeowner b. Members of the family of sufficient age and discretion
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Validity of the search warrant can be questioned only in 2 courts: 1) where issued or 2) where the case is pending. Latter is preferred for objective determination.
* Article 130 has no application to search and seizure made on moving vehicles because the application of this law is limited to dwelling and personal properties such as papers and effects found therein. * There are searches and seizures which are authorized by law and which can be done without the attendance of witnesses. For instance, the Tariff and Customs Code authorizes persons with police authority under Sec. 2203, to enter; pass through or search any land, enclosure, warehouse, store or building, not being used as a dwelling house; and to inspect, search and examine any vessel or aircraft, and any trunk, package, box or envelope, or any person on board, or to stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law.
Two criteria to determine whether Article 131 would be violated: (1) (2) Dangerous tendency rule applicable in times of national unrest such as to prevent coup detat. Clear and present danger rule applied in times of peace. Stricter rule.
If the offender is a private individual, the crime is disturbance of public order (Art 153) Meeting must be peaceful and there is no legal ground for prohibiting, dissolving or interrupting that meeting
If in the course of the assembly the participants commit illegal acts like oral defamation or inciting to sedition, a public officer or law enforcer can stop or dissolve the meeting. The permit given is not a license to commit a crime.
* If the permit is denied arbitrarily, Article 131 is violated. If the officer would not give the permit unless the meeting is held in a particular place which he dictates, such defeats the exercise of the right to peaceably assemble, Article 131 is violated.
Offender must be a stranger, not a participant, in the peaceful meeting; otherwise, its unjust vexation Interrupting and dissolving a meeting of the municipal council by a public officer is a crime against the legislative body, not punishable under this article
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Distinctions between prohibition, interruption, or dissolution of peaceful meetings under Article 131, and tumults and other disturbances, under Article 153 (1) As to the participation of the public officer In Article 131, the public officer is not a participant. As far as the gathering is concerned, the public officer is a third party. If the public officer is a participant of the assembly and he prohibits, interrupts, or dissolves the same, Article 153 is violated if the same is conducted in a public place. (2) As to the essence of the crime In Article 131, the offender must be a public officer and, without any legal ground, he prohibits, interrupts, or dissolves a peaceful meeting or assembly to prevent the offended party from exercising his freedom of speech and that of the assembly to petition a grievance against the government. In Article 153, the offender need not be a public officer. The essence of the crime is that of creating a serious disturbance of any sort in a public office, public building or even a private place where a public function is being held.
Circumstance qualifying the offense: if committed with violence or threats Reading of Bible and then attacking certain churches in a public plaza is not a ceremony or manifestation of religion, but only a meeting of a religious sect. But if done in a private home, its a religious service Religious Worship: people in the act of performing religious rites for a religious ceremony; a manifestation of religion. Ex. Mass, baptism, marriage X, a private person, boxed a priest while the priest was giving homily and while the latter was maligning a relative of X. Is X liable? X may be liable under Art 133 because X is a private person. When priest is solemnizing marriage, he is a person in authority, although in other cases, hes not.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 133 OFFENDING RELIGIOUS FEELINGS
ELEMENTS: a. That the acts complained of were performed
b. That the acts must be notoriously offensive to the feelings of the faithful (deliberate intent to
hurt the feelings) c. The offender is any person d. There is a deliberate intent to hurt the feelings of the faithful, directed against religious tenet If in a place devoted to religious purpose, there is no need for an ongoing religious ceremony Example of religious ceremony (acts performed outside the church). Processions and special prayers for burying dead persons but NOT prayer rallies Acts 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
* In determining whether an act is offensive to the feelings of the faithful, the same must be viewed or judged from the standpoint of the offended religion and not from the point of view of the offender (People vs. Baes, 68 Phil. 203).
CRIME Prohibition, Interruption and Dissolution of Peaceful Meeting (131) Interruption of Religious Worship (132)
Nature of Crime Who are Liable If Element Missing Crime against the Public officers, If not by public officer = fundamental law of Outsiders tumults the state Crime against the Public officers, If by insider = unjust fundamental law of Outsiders vexation the state If not religious = tumult or alarms If not notoriously offensive = unjust vexation Crime against Public officers, If not tumults = alarms public order private persons, and scandal outsiders If meeting illegal at onset = inciting to sedition or rebellion
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2 To deprive the chief executive or congress, wholly or partially, of any of their powers or prerogatives Persons liable for rebellion a. Any person who: 1. promotes 2. maintains, or 3. heads a rebellion or insurrection; or b. Any person who, while holding any public office or employment, takes part therein by: 1. engaging in war against the forces of the government 2. destroying property or committing serious violence 3. exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated (Note: diverting public funds is malversation absorbed in rebellion); 4. Any person merely participating or executing the command of others in rebellion
* The essence of this crime is a public uprising with the taking up of arms. It requires a multitude of people. It aims to overthrow the duly constituted government. It does not require the participation of any member of the military or national police organization or public officers and generally carried out by civilians. Lastly, the crime can only be committed through force and violence.
* The crime of rebellion cannot be committed by a single individual. Invariably, it is committed by several persons for the purpose of overthrowing the duly constituted or organized government. In the Philippines, what is known to the ordinary citizen as a symbol of Government would be the barangay, represented by its officials; the local government represented by the provincial and municipal officials; and the national government represented by the President, the Chief Justice and the Senate President and the Speaker of the House of Representatives.
* The crime of rebellion is essentially a political crime. The intention of the rebel is to substitute himself in place of those who are in power. His method of placing himself in authority with the use of violence, duress or intimidation, assassination or the commission of common crimes like murder, kidnapping, arson, robbery and other heinous crimes in what we call rebellion.
REBELLION used where the object of the movement is completely to overthrow and supersede the existing government INSURRECTION refers to a movement which seeks merely to effect some change of minor importance to prevent the exercise of govt authority w/ respect to particular matters or subjects The phrase to remove allegiance from the government is used to emphasize that the object of the uprising could be limited to certain areas, like isolating a barangay or municipality or a province in its loyalty to the duly constituted government or the national government.
* Allegiance is a generic term which includes loyalty, civil obedience and civil service. * The law on rebellion however, does not speak only of allegiance or loss of territory. It also includes the efforts of the rebel to deprive the President of the Philippines of the exercise of his power to enforce the law, to exact obedience of laws and regulations duly enacted and promulgated by the duly constituted authorities.
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* When any of the objectives of rebellion is pursued but there is no public uprising in the legal sense, the crime is direct assault of the first form. But if there is rebellion, with public uprising, direct assault cannot be committed.
Mere giving of aid or comfort is not criminal in the case of rebellion. Merely sympathizing is not participation, there must be ACTUAL participation
* There must be a public apprising and taking up of arms for the specified purpose or purposes mentioned in Article 134. The acts of the accused who is not a member of the Hukbalahap organization of sending cigarettes and food supplies to a Huk leader; the changing of dollars into pesos for a top level communist; and the helping of Huks in opening accounts with the bank of which he was an official, do not constitute Rebellion. (Carino vs. People, et al., 7 SCRA 900). Not necessary that there is killing, mere threat of removing Phil is sufficient
* Rebellion may be committed even without a single shot being fired. No encounter needed. Mere public uprising with arms enough.
> Common crimes perpetrated in furtherance of a political offense are divested of their character as common offenses and assume the political complexion of the main crime which they are mere ingredients, and consequently, cannot be punished separately from the principal offense, or complexed with the same. ORTEGA OPINION:
Rebellion can now be complexed with common crimes. Not long ago, the Supreme Court, in Enrile v. Salazar, 186 SCRA 217, reiterated and affirmed the rule laid down in People v. Hernandez, 99 Phil 515, that rebellion may not be complexed with common crimes which are committed in furtherance thereof because they are absorbed in rebellion. In view of said reaffirmation, some believe that it has been a settled doctrine that rebellion cannot be complexed with common crimes, such as killing and destruction of property, committed on the occasion and in furtherance thereof. This thinking is no longer correct; there is no legal basis for such rule now. The statement in People v. Hernandez that common crimes committed in furtherance of rebellion are absorbed by the crime of rebellion, was dictated by the provision of Article 135 of the Revised Penal Code prior to its amendment by the Republic Act No. 6968 (An Act Punishing the Crime of Coup Detat), which became effective on October 1990. Prior to its amendment by Republic Act No. 6968, Article 135 punished those who while holding any public office or employment, take part therein by any of these acts: engaging in war against the forces of Government; destroying property; committing serious violence; exacting contributions, diverting funds for the lawful purpose for which they have been appropriated. Since a higher penalty is prescribed for the crime of rebellion when any of the specified acts are committed in furtherance thereof, said acts are punished as components of rebellion and, therefore, are not to be treated as distinct crimes. The same acts constitute distinct crimes when committed on a different occasion and not in furtherance of rebellion. In short, it was because Article 135 then punished said acts as components of the crime of rebellion that precludes the application of Article 48 of the Revised Penal Code thereto. In the eyes of the law then, said acts constitute only one crime and that is rebellion. The Hernandez doctrine was reaffirmed in Enrile v. Salazar because the text of Article 135 has remained the same as it was when the Supreme Court resolved the same issue in the People v. Hernandez. So the Supreme Court invited attention to this fact and thus stated: There is a an apparent need to restructure the law on rebellion, either to raise the penalty therefore or to clearly define and delimit the other offenses to be considered absorbed thereby, so that it cannot be
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However, illegal possession of firearms in furtherance of rebellion is distinct from the crime of rebellion.
* The offense of illegal possession of firearm is a malum prohibitum, in which case, good faith and absence of criminal intent are not valid defenses.
Furthermore, it is a continuing crime such along with the crime of conspiracy or proposal to commit such A private crime may be committed during rebellion. Examples: killing, possessions of firearms, illegal association are absorbed. Rape, even if not in furtherance of rebellion cannot be complexed If killing, robbing were done for private purposes or for profit, without any political motivation, the crime would be separately be punished and would not be embraced by rebellion (People v. Fernando) Person deemed leader of rebellion in case he is unknown: Any person who in fact: a. directed the others b. spoke for them c. signed receipts and other documents issued in their name d. performed similar acts on behalf of the rebels
Distinctions between rebellion and sedition (1) As to nature In rebellion, there must be taking up or arms against the government. In sedition, it is sufficient that the public uprising be tumultuous. (2) As to purpose In rebellion, the purpose is always political. * In sedition, the purpose may be political or social. Example: the uprising of squatters against Forbes park residents. The purpose in sedition is to go against established government, not to overthrow it.
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d. Singly or simultaneously carried out anywhere in the Philippines d. Committed by any person or persons belonging to the military or police or holding any public office or employment; with or without civilian support or participation
e. With or without civilian support or participation f. Purpose of seizing or diminishing state power
* The essence of the crime is a swift attack upon the facilities of the Philippine government, military camps and installations, communication networks, public utilities and facilities essential to the continued possession of governmental powers. It may be committed singly or collectively and does not require a multitude of people.
The objective may not be to overthrow the government but only to destabilize or paralyze the government through the seizure of facilities and utilities essential to the continued possession and exercise of governmental powers. It requires as principal offender a member of the AFP or of the PNP organization or a public officer with or without civilian support. Finally, it may be carried out not only by force or violence but also through stealth, threat or strategy.
How do you distinguish between coup detat and rebellion? Rebellion is committed by any person whether a private individual or a public officer whereas in coup detat, the offender is a member of the military or police force or holding a public office or employment. In rebellion, the object is to alienate the allegiance of a people in a territory, whether wholly or partially, from the duly constituted government; in coup detat, the object or purpose is to seize or diminish state power. In both instances, the offenders intend to substitute themselves in place of those who are in power. Treason (114) Rebellion (134) Coup detat Sedition (139) (134-A)
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Public uprising See article. AND Taking up arms against the govt
Rising publicly or tumultuously (caused by more than 3 armed men or provided with means of violence)
See article.
NOTES: > Public officer must take active part because mere silence or omission not punishable in rebellion > It is not a defense in rebellion that the accused never took the oath of allegiance to, or that they never recognized the government > Rebellion cannot be complexed with murder and other common crimes committed in pursuance of the movement to overthrow the government * Subversion, just like the crimes of rebellion, conspiracy or proposal to commit the crimes of rebellion or subversion and crimes or offenses committed in furtherance
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* Disloyalty as a crime is not limited to rebellion alone but should now include the crime of coup detat. Rebellion is essentially a crime committed by private
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c. That the inciting is done by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end Intentionally calculated to seduce others to rebellion There must be uprising to take up arms and rise publicly for the purposes indicated in Art 134
* One who promotes, maintains or heads a rebellion and who act at the same time incites or influences others to join him in his war efforts against the duly constituted government cannot be held criminally liable for the crime of inciting to rebellion because, as the principal to the crime of rebellion, the act of inciting to commit a rebellion is inherent to the graver crime of rebellion. Proposal to Commit Rebellion (136) Inciting to Rebellion (138) The person who proposes has decided to Not required that the offender commit rebellion. decided to commit rebellion. The person who proposes the execution The inciting is done publicly. of the crime uses secret means.
has
1. Publicly (if no public uprising = tumult and other disturbance of public order) 2. Tumultuously (vis--vis rebellion where there must be a taking of arms)
b. That they employ force, intimidation, or other means outside of legal methods c. That the offenders employ any of those means to attain any of the following objects: 1. to prevent the promulgation or execution of any law or the holding of any popular election 2. to prevent the national government, or any provincial or municipal government, or any public thereof from freely exercising its or his functions, or prevent the execution of any administrative order 3. to inflict any act or hate or revenge upon the person or property of any public officer or employee
4. to commit for any political or social end, any act of hate or revenge against private persons
or any social class (hence, even private persons may be offended parties)
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Sedition: raising of commotion or disturbances in the State. Its ultimate object is a violation of the public peace or at least such measures that evidently engenders it. The crime of sedition is committed by rising publicly and tumultuously. The two elements must concur.
The crime of sedition does not contemplate the taking up of arms against the government because the purpose of this crime is not the overthrow of the government. Notice from the purpose of the crime of sedition that the offenders rise publicly and create commotion and disturbance by way of protest to express their dissent and obedience to the government or to the authorities concerned. This is like the so-called civil disobedience except that the means employed, which is violence, is illegal.
For sedition sufficient that uprising is tumultuous. In rebellion there must be taking up of arms against the government. Sedition purpose may be either political or social. In rebellion always political TUMULTUOUS is a situation wherein the disturbance or confusion is caused by at least four persons. There is no requirement that the offenders should be armed. Preventing public officers from freely exercising their functions In sedition offender may be a private or public person (Ex. Soldier) Public uprising and the object of sedition must concur Q: Are common crimes absorbed in sedition?
In P v. Umali, SC held that NO. Crimes committed in that case were independent of each other. Preventing election through legal means NOT sedition But when sugar farmers demonstrated and destroyed the properties of sugar barons sedition Persons liable for sedition: a. leader of the sedition, and b. other persons participating in the sedition * The objective of the law in criminalizing sedition is to put a limit to the freedom of expression or the right of the people to assemble and petition the government for redress of grievance. The demonstrations conducted or held by the citizenry to protest certain policies of the government is not a crime. But when the protest in manifested in the form of rallies where the participants, in order to attain their objective of overcoming the will of the government, resort to force or violence, the mantle of protection guaranteed under the Constitution to express their dissent peacefully, shall cease to exist, as in the meantime, the participants have encroached or stayed in the domain or realm of criminal law.
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* The conspiracy must be to prevent the promulgation or execution of any law or the holding of any popular election. It may also be a conspiracy to prevent national and local public officials from freely exercising their duties and functions, or to prevent the execution of an administrative order.
c.
That the inciting is done by means of speeches, proclamations, writing, emblems, cartoons, banners, or other representations tending to the same end (purpose: cause commotion not exactly against the government; actual disturbance not necessary) Different acts of inciting to sedition: a. Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems etc. b. Uttering seditious words or speeches which tend to disturb the public peace or writing, publishing, or circulating scurrilous [vulgar, mean, libelous] libels against the government or any of the duly constituted authorities thereof, which tend to disturb the public peace c. Knowingly concealing such evil practices When punishable: a. when they tend to disturb or obstruct any lawful officer in executing the functions of his office; or b. when they tend to instigate others to cabal and meet together for unlawful purposes; or c. when they suggest or incite rebellious conspiracies or riots; or d. 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
* Only non-participant in sedition may be liable.
* Inciting to sedition is an element of sedition. It cannot be treated as a separate offense against one who is a part of a group that rose up publicly and tumultuously and fought the forces of government.
* Considering that the objective of sedition is to express protest against the government and in the process creating hate against public officers, any act that will generate hatred against the government or a public officer concerned or a social class may amount to Inciting to sedition. Article 142 is, therefore, quite broad. * The mere meeting for the purpose of discussing hatred against the government is inciting to sedition. Lambasting government officials to discredit the government is Inciting to sedition. But if the objective of such preparatory actions is the overthrow of the government, the crime is inciting to rebellion.
Elements and Notes in Criminal Law Book II by RENE CALLANTA ACTS TENDING TO PREVENT THE MEETING OF CONGRESS AND SIMILAR BODIES
ELEMENTS: a. That there be a projected or actual meeting of Congress or any of its committees or subcommittees, constitutional commissions or committees or division thereof, or of any provincial board or city or municipal council or board b. That the offender who may be any persons prevents such meeting by force or fraud
* The crime is against popular representation because it is directed against officers whose primary function is to meet and enact laws. When these legislative bodies are prevented from meeting and performing their duties, the system of government is disturbed. The three branches of government must continue to exist and perform their duties. Chief of Police and mayor who prevented the meeting of the municipal council are liable under Art 143, when the defect of the meeting is not manifest and requires an investigation before its existence can be determined.
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4. That the member searched has not committed a crime punishable under the code by a
penalty higher than prision mayor (1987 constitution: privilege from arrest while congress in session in all offenses punishable by not more than 6 years imprisonment).
* Under Section 11, Article VI of the Constitution, a public officer who arrests a member of Congress who has committed a crime punishable by prision mayor (six years and one day, to 12 years) is not liable Article 145. * According to Reyes, to be consistent with the Constitution, the phrase "by a penalty higher than prision mayor" in Article 145 should be amended to read: "by the penalty of prision mayor or higher."
* The offender is any person and the offended party who is a member of Congress, has not committed any crime to justify the use of force, threat, intimidation or fraud to prevent him from attending the meeting of Congress.
a. if they are not armed, penalty is arresto mayor b. if they carry arms, like bolos or knives, or licensed firearms, penalty is prision
correccional Presumptions if person present at the meeting carries an unlicensed firearm: a. purpose of the meeting is to commit acts punishable under the RPC
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The gravamen of the offense is mere assembly of or gathering of people for illegal purpose punishable by the Revised Penal Code. Without gathering, there is no illegal assembly. If unlawful purpose is a crime under a special law, there is no illegal assembly. For example, the gathering of drug pushers to facilitate drug trafficking is not illegal assembly because the purpose is not violative of the Revised Penal Code but of The Dangerous Drugs Act of 1972, as amended, which is a special law.
Two forms of illegal assembly (1) No attendance of armed men, but persons in the meeting are incited to commit treason, rebellion or insurrection, sedition or assault upon a person in authority. When the illegal purpose of the gathering is to incite people to commit the crimes mentioned above, the presence of armed men is unnecessary. The mere gathering for the purpose is sufficient to bring about the crime already. Armed men attending the gathering If the illegal purpose is other than those mentioned above, the presence of armed men during the gathering brings about the crime of illegal assembly. Example: Persons conspiring to rob a bank were arrested. Some were with firearms. Liable for illegal assembly, not for conspiracy, but for gathering with armed men. Distinction between illegal assembly and illegal association In illegal assembly, the basis of liability is the gathering for an illegal purpose which constitutes a crime under the Revised Penal Code. In illegal association, the basis is the formation of or organization of an association to engage in an unlawful purpose which is not limited to a violation of the Revised Penal Code. It includes a violation of a special law or those against public morals. Meaning of public morals: inimical to public welfare; it has nothing to do with decency., not acts of obscenity.
(2)
Public morals refers to crimes punished under Title Six of the Revised Penal Code, namely, gambling, grave scandal, prostitution and vagrancy.
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b.
c.
That the aim of the offender is to attain any of the purposes of the crime of rebellion or any of the objects of the crimes of sedition. (victim need not be person in authority) That there is no public uprising.
Example of the first form of direct assault: Three men broke into a National Food Authority warehouse and lamented sufferings of the people. They called on people to help themselves to all the rice. They did not even help themselves to a single grain. The crime committed was direct assault. There was no robbery for there was no intent to gain. The crime is direct assault by committing acts of sedition under Article 139 (5), that is, spoiling of the property, for any political or social end, of any person municipality or province or the national government of all or any its property, but there is no public uprising.
ELEMENTS OF THE 2ND FORM OF DIRECT ASSAULT: a. That the offender (a) makes an attack, (b) employs force, (c) makes a serious intimidation, or (d) makes a serious resistance. b. That the person assaulted is a person in authority or his agent.
c.
That 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 that he is assaulted (b) by reason of the past performance of official duties (motive is essential).
d.
e.
That the offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties (with intention to offend, injure or assault). That there is no public uprising.
* Crime of direct assault can only be committed by means of dolo. It cannot be committed by culpa.
Always complexed with the material consequence of the act (e.g. direct assault with murder) except if resulting in a light felony, in which case, the consequence is absorbed
* The crime is not based on the material consequence of the unlawful act. The crime of direct assault punishes the spirit of lawlessness and the contempt or hatred for the authority or the rule of law. * To be specific, if a judge was killed while he was holding a session, the killing is not the direct assault, but murder. There could be direct assault if the offender killed the judge simply because the judge is so strict in the fulfillment of his duty. It is the spirit of hate which is the essence of direct assault. * So, where the spirit is present, it is always complexed with the material consequence of the unlawful act. If the unlawful act was murder or homicide committed under circumstance of lawlessness or contempt of authority, the crime would be direct assault with murder or homicide, as the case may be. In the example of the judge who was killed, the crime is direct assault with murder or homicide. * The only time when it is not complexed is when material consequence is a light felony, that is, slight physical injury. Direct assault absorbs the lighter felony; the crime of direct assault can not be separated from the material result of the act. So, if an offender who is charged with direct assault and in another court for the slight physical Injury which is part of the act, acquittal or conviction in one is a bar to the prosecution in the other.
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PERSON IN AUTHORITY: any person directly vested with jurisdiction (power or authority to govern and execute the laws) whether as an individual or as a member of some court or governmental corporation, board or commission A barangay captain is a person in authority, so is a Division Superintendent of schools, President of Sanitary Division and a teacher
* In applying the provisions of Articles 148 and 151, teachers, professors, and persons charged with the supervision of public or duly recognized private schools, colleges and universities and lawyers in the actual performance of their duties or on the occasion of such performance, shall be deemed a person in authority.
AGENT: is one who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property. (Example. Barrio councilman and any person who comes to the aid of the person in authority, policeman, municipal treasurer, postmaster, sheriff, agents of the BIR, Malacaang confidential agent) Even when the person in authority or the agent agrees to fight, still direct assault. When the person in authority or the agent provoked/attacked first, innocent party is entitled to defend himself and cannot be held liable for assault or resistance nor for physical injuries, because he acts in legitimate self-defense
* The offended party in assault must not be the aggressor. If there is unlawful aggression employed by the public officer, any form of resistance which may be in the nature of force against him will be considered as an act of legitimate defense. (People vs. Hernandez, 59 Phil. 343) There can be no assault upon or disobedience to one authority by another when they both contend that they were in the exercise of their respective duties.
* The offender and the offended party are both public officers. The Supreme Court said that assault may still be committed, as in fact the offender is even subjected to a greater penalty (U.S. vs. Vallejo, 11 Phil. 193). When assault is made by reason of the performance of his duty there is no need for actual performance of his official duty when attacked
In direct assault of the first form, the stature of the offended person is immaterial. The crime is manifested by the spirit of lawlessness. In the second form, you have to distinguish a situation where a person in authority or his agent was attacked while performing official functions, from a situation when he is not performing such functions.
If attack was done during the exercise of official functions, the crime is always direct assault. It is enough that the offender knew that the person in authority was performing an official function whatever may be the reason for the attack, although what may have happened was a purely private affair.
* On the other hand, if the person in authority or the agent was killed when no longer performing official functions, the crime may simply be the material consequence of he unlawful act: murder or homicide. For the crime to be direct assault, the attack must be by reason of his official function in the past. Motive
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Complex crime of direct assault with homicide or murder, or with serious physical injuries.
* If the crime of direct assault is committed with the use of force and it resulted in the infliction of slight physical injuries, the latter shall not be considered as a separate offense. It shall be absorbed by the greater crime of direct assault. (People vs. Acierto, 57 Phil. 614) Direct assault cannot be committed during rebellion.
May direct assault be committed upon a private individual? Yes. When a private person comes to the aid of a person in authority, and he is likewise assaulted. Under Republic Act No. 1978, a private person who comes to the aid of a person in authority is by fiction of law deemed or is considered an agent of a person in authority.
c. That the offender makes use of force or intimidation upon such person coming to the aid of the authority or his agent. Indirect assault can be committed only when a direct assault is also committed To be indirect assault, the person who should be aided is the agent (not the person in authority because it is already direct assault, the person coming to the aid of the person in authority being considered as an agent and an attack on the latter is already direct assault). Example. Aiding a policeman under attack.
* The victim in indirect assault should be a private person who comes in aid of an agent of a person in authority. The assault is upon a person who comes in aid of the agent of a person in authority. The victim cannot be the person in authority or his agent.
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Article 151 RESISTANCE/DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENT OF SUCH PERSON (par. 1)
ELEMENTS: a. That a person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender. b. That the offender resists or seriously disobeys such person in authority or his agent. c. That the act of the offender is not included in the provisions of arts. 148, 149 and 150.
That such disobedience is not of a serious nature. US vs. Ramayrat, 22 Phil. 183 The Supreme Court held that: the violation does not refer to resistance or disobedience to the legal provisions of the law, nor to judicial decisions defining or declaring the rights and obligations of the parties for the same give reliefs only in the form of civil actions. Rather, the disobedience or resistance is to the orders directly issued by the authorities in the exercise of their official duties. Direct Assault (148) Resistant and Disobedience to a Person in Authority or Agents of such Person
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c.
Use of force against an agent of a PIA is not so serious; no manifest intention to defy the law and the officers enforcing it.
* In both resistance against an agent of a person in authority and direct assault by resisting an agent of a person in authority, there is force employed, but the use of force in resistance is not so serious, as there is no manifest intention to defy the law and the officers enforcing it. * The attack or employment of force which gives rise to the crime of direct assault must be serious and deliberate; otherwise, even a case of simple resistance to an arrest, which always requires the use of force of some kind, would constitute direct assault and the lesser offense of resistance or disobedience in Article 151 would entirely disappear. But when the one resisted is a person in authority, the use of any kind or degree of force will give rise to direct assault. If no force is employed by the offender in resisting or disobeying a person in authority, the crime committed is resistance or serious disobedience under the first paragraph of Article 151.
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CRIMES AGAINST PUBLIC DISORDERS Article 153 TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER TYPES:
a. Causing any serious disturbance in a public place, office or establishment
If the act of disturbing or interrupting a meeting or religious ceremony is NOT committed by public officers, or if committed by public officers who are not participants therein, this article applies. Art 131 and 132 punishes the same acts if committed by public officers who areNOT participants in the meeting The outcry is merely a public disorder if it is an unconscious outburst which, although rebellious or seditious in nature, is not intentionally calculated to induce others to commit rebellion or sedition, otherwise, its inciting to rebellion or sedition.
This article should be distinguished from inciting to rebellion or sedition as discussed under Article 138 and 142. In the former, the meeting is legal and peaceful. It becomes unlawful only because of the outcry made, which tends to incite rebellion or sedition in the meeting. In the latter case, the meeting is unlawful from the beginning and the utterances made are deliberately articulated to incite others to rise publicly and rebel against the government. What makes it inciting to rebellion or sedition is the act of inciting the audience to commit rebellion or sedition.
TUMULTUOUS if caused by more than 3 persons who are armed or provided with means of violence (circumstance qualifying the disturbance/interruption) tumultuous in character
* The essence is creating public disorder. This crime is brought about by creating serious disturbances in public places, public buildings, and even in private places where public functions or performances are being held. For a crime to be under this article, it must not fall under Articles 131 (prohibition, interruption, and dissolution of peaceful meetings) and 132 (interruption of religious worship).
* In the act of making outcry during speech tending to incite rebellion or sedition, the situation must be distinguished from inciting to sedition or rebellion.
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It is also disturbance of the public order if a convict legally put to death is buried with pomp. He should not be made out as a martyr; it might incite others to hatred.
The crime of disturbance of public order may be committed in a public or private place. If committed in a private place, the law is violated only where the disturbance is made while a public function or performance is going on. Without a public gathering in a private place, the crime cannot be committed.
Article 154 UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL UTTERANCES TYPES:
a. 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. b. 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 c. Maliciously publishing or causing to be published any official resolution or document without proper authority, or before they have been published officially d. 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. * The purpose of the law is to punish the spreading of false information which tends to cause panic, confusion, distrust and divide people in their loyalty to the duly constituted authorities.
* Actual public disorder or actual damage to the credit of the State is not necessary. Republic Act No. 248 prohibits the reprinting, reproduction or republication of government publications and official documents without previous authority
The article also punishes any person who knowingly publishes official acts or documents which are not officially promulgated.
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Charivari mock serenade or discordant noises made with kettles, tin horns etc, designed to deride, insult or annoy
WHEN A PERSON DISCHARGES A FIREARM IN PUBLIC, the act may constitute any of the possible crimes under the Revised Penal Code: (1) (2) (3) Alarms and scandals if the firearm when discharged was not directed to any particular person; Illegal discharge of firearm under Article 254 if the firearm is directed or pointed to a particular person when discharged but intent to kill is absent; Attempted homicide, murder, or parricide if the firearm when discharged is directed against a person and intent to kill is present.
In this connection, understand that it is not necessary that the offended party be wounded or hit. Mere discharge of firearm towards another with intent to kill already amounts to attempted homicide or attempted murder or attempted parricide. It can not be frustrated because the offended party is not mortally wounded. In Araneta v. Court of Appeals, it was held that if a person is shot at and is wounded, the crime is automatically attempted homicide. Intent to kill is inherent in the use of the deadly weapon. (4) (5) Grave Threats If the weapon is not discharged but merely pointed to another Other Light Threats If drawn in a quarrel but not in self defense
What governs is the result, not the intent Who are Liable Private persons, outsider Private persons, outsider
CRIME Nature of Crime Tumults and other Crime against Public Order Disturbances (153) Alarms and Scandals (155) Crime against Public Order
b. That the offender removes therefor such person, or helps the escape of such person (if the
escapee is serving final judgement, he is guilty of evasion of sentence). c. Offender is a private individual Prisoner may be detention prisoner or one sentenced by virtue of a final judgment
* Even if the prisoner is in the hospital or asylum or any place for detention of prisoner, as long as he is classified as a prisoner, that is, a formal complaint or information has been filed in court, and he has been officially categorized as a prisoner, this article applies, as such place is considered extension of the penal institution. A policeman assigned to the city jail as guard who while off-duty released a prisoner is liable here
* Even if the prisoner returned to the jail after several hours, the one who removed him from jail is liable. It may be committed through negligence Circumstances qualifying the offense is committed by means of violence, intimidation or bribery.
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* correlate the crime of delivering person from jail with infidelity in the custody of prisoners punished under Articles 223, 224 and 225 of the Revised Penal Code. In both acts, the offender may be a public officer or a private citizen. Do not think that infidelity in the custody of prisoners can only be committed by a public officer and delivering persons from jail can only be committed by private person. Both crimes may be committed by public officers as well as private persons. > In both crimes, the person involved may be a convict or a mere detention prisoner. * The only point of distinction between the two crimes lies on whether the offender is the custodian of the prisoner or not at the time the prisoner was made to escape.
If the offender is the custodian at that time, the crime is infidelity in the custody of prisoners. But if the offender is not the custodian of the prisoner at that time, even though he is a public officer, the crime he committed is delivering prisoners from jail.
LIABILITY OF THE PRISONER OR DETAINEE WHO ESCAPED When these crimes are committed, whether infidelity in the custody of prisoners or delivering prisoners from jail, the prisoner so escaping may also have criminal liability and this is so if the prisoner is a convict serving sentence by final judgment. The crime of evasion of service of sentence is committed by the prisoner who escapes if such prisoner is a convict serving sentence by final judgment. If the prisoner who escapes is only a detention prisoner, he does not incur liability from escaping if he does not know of the plan to remove him from jail. But if such prisoner knows of the plot to remove him from jail and cooperates therein by escaping, he himself becomes liable for delivering prisoners from jail as a principal by indispensable cooperation. * If three persons are involved a stranger, the custodian and the prisoner three crimes are committed: (1) Infidelity in the custody of prisoners; (2) Delivery of the prisoner from jail; and (3) Evasion of service of sentence.
It is possible that several crimes may be committed in one set of facts. For instance, assuming that Pedro, the jail warden, agreed with Juan to allow Maria to escape by not locking the gate of the city jail. Provided that Juan comes across with P5,000.00 pesos as bribe money. The arrangement was not known to Maria but when she noticed the unlocked gate of the city jail she took advantage of the situation and escaped. From the facts given, there is no question that Pedro, as the jail warden, is liable for the crime of infidelity in the custody of the prisoner. He will also be able for the crime of bribery. Juan will be liable for the crime of delivering a prisoner from jail and for corruption of public official under Art. 212. If Maria is a sentenced prisoner, she will be liable for evasion of service of sentence under Article 157. if she is a detention prisoner, she commits no crime.
b. That he is serving his sentence which consists in deprivation of liberty (destierro included)
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Elements and Notes in Criminal Law Book II by RENE CALLANTA c. That he evades the service of his sentence by escaping during the term if his sentence. (fact
of return immaterial). By the very nature of the crime, it cannot be committed when the prisoner involved is merely a detention prisoner. But it applies to persons convicted by final judgment with a penalty of destierro.
* A detention prisoner even if he escapes from confinement has no criminal liability. Thus, escaping from his prison cell when his case is still on appeal does not make said prisoner liable for Evasion of Service of Sentence.
In leaving or escaping from jail or prison, that the prisoner immediately returned is immaterial. It is enough that he left the penal establishment by escaping therefrom. His voluntary return may only be mitigating, being analogous to voluntary surrender. But the same will not absolve his criminal liability.
A continuing offense. Offenders not minor delinquents nor detention prisoners If escaped within the 15 day appeal period no evasion No applicable to deportation as the sentence
The crime of evasion of service of sentence may be committed even if the sentence is destierro, and this is committed if the convict sentenced to destierro will enter the prohibited places or come within the prohibited radius of 25 kilometers to such places as stated in the judgment. * If the sentence violated is destierro, the penalty upon the convict is to be served by way of destierro also, not imprisonment. This is so because the penalty for the evasion can not be more severe than the penalty evaded.
Circumstances qualifying the offense (done thru): a. unlawful entry (by scaling) b. breaking doors, windows, gates, walls, roofs or floors c. using picklocks, false keys, disguise, deceit, violence or intimidation d. connivance with other convicts or employees of the penal institution
* A, a foreigner, was found guilty of violation of the law, and was ordered by the court to be deported. Later on, he returned to the Philippines in violation of the sentence. Held: He is not guilty of Evasion of Service of Sentence as the law is not applicable to offenses executed by deportation. (U.S. vs. Loo Hoe, 36 Phil. 867).
Article 158 EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES OR OTHER CALAMITIES
ELEMENTS : a. That the offender is a convict by final judgement who is confined in a penal institution. b. That there is disorder, resulting from- 1. conflagration, 2. earthquake, or 3. explosion, or 4. similar catastrophe, or 5. mutiny , not participated. c. That the offender evades the service of his sentence by leaving the penal institution where he is confined, on the occasion of such disorder or during the mutiny.
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> Those who did not leave the penal establishment are not entitled to the 1/5 credit. Only those who left and returned within the 48-hour period.
For such event to be considered as a calamity, the President must declared it to be so. He must issue a proclamation to the effect that the calamity is over. Even if the events herein mentioned may be considered as calamity, there is a need for the Chief Executive to make such announcement. Absent such declaration. Even if the prisoner will return to the penal institution where he was confined, the same is of no moment as in the meantime he has committed a violation of the law, not under the present article but for pure evasion of service of sentence under Article 157. Mutiny organized unlawful resistance to a superior officer, a sedition, a revolt
The mutiny referred to in the second form of evasion of service of sentence does not include riot. The mutiny referred to here involves subordinate personnel rising against the supervisor within the penal establishment. One who escapes during a riot will be subject to Article 157, that is, simply leaving or escaping the penal establishment.
* Violation attributed to the accused is no longer referred to the court for judicial inquiry or resolution. The law has provided sufficient guidelines for the jail warden to follow. * This disquisition will not apply if the offender who escapes taking advantage of the calamities enumerated herein is apprehended by the authorities after 48 hours from the declaration that the calamity is over. It is only extended to one who returns but made inside the 48 hours delimited by the proclamation. At this stage, the violation is not substantive but administrative in nature.
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The administrative liability of the convict under the conditional pardon is different and has nothing to do with his criminal liability for the evasion of service of sentence in the event that the condition of the pardon has been violated. Exception: where the violation of the condition of the pardon will constitute evasion of service of sentence, even though committed beyond the remaining period of the sentence. This is when the conditional pardon expressly so provides or the language of the conditional pardon clearly shows the intention to make the condition perpetual even beyond the unserved portion of the sentence. In such case, the convict may be required to serve the unserved portion of the sentence even though the violation has taken place when the sentence has already lapsed.
Offender must have been found guilty of the subsequent offense before he can be prosecuted under this Article. But if under Revised Admin Code, no conviction necessary. President has power to arrest, reincarnate offender without trial
* Article 159 is a distinct felony. It is a substantive crime. For one to suffer the consequence of its violation, the prisoner must be formally charged in court. He will be entitled to a full blown hearing, in full enjoyment of his right to due process. Only after a final judgment has been rendered against him may he suffer the penalty prescribed under Article 159 (Torres vs. Gonzales, et al., 152 SCRA 292) VIOLATION OF PARDON ORDINARY EVASION Infringement of conditions/terms of To evade the penalty given by the courts President disturbs the public order Two penalties provided: a. prision correccional in its minimum period if the penalty remitted does not exceed 6 years
b. the unexpired portion of his original sentence if the penalty remitted is higher than 6
years
COMMISSION OF ANOTHER CRIME Article 160 COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE-PENALTY: (quasi-recidivism)
ELEMENTS a. That the offender was already convicted by final judgement of one offense. b. That he committed a new felony before beginning to serve such sentence or while serving the same.
Quasi-recidivism : a person after having been convicted by final judgement shall commit a new felony before beginning to serve such sentence, or while serving the same. Second crimes must belong to the RPC, not special laws. First crime may be either from the RPC or special laws Reiteracion: offender shall have served out his sentence for the prior offense A quasi-recidivist may be pardoned at age 70. Except: Unworthy or Habitual Delinquent If new felony is evasion of sentence offender is not a quasi-recidivist Penalty: maximum period of the penalty for the new felony should be imposed
* Quasi-recidivism is a special aggravating circumstance which directs the court to impose the maximum period of the penalty prescribed by law for the new felony.
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48
Coin is counterfeit if it is forged, or if it is not an article of the government as legal tender, regardless if it is of no value
Kinds of coins the counterfeiting of which is punished 1. 2. 3. Silver coins of the Philippines or coins of the Central Bank of the Philippines; Coins of the minor coinage of the Philippines or of the Central Bank of the Philippines; Coin of the currency of a foreign country.
Counterfeiting imitation of legal or genuine coin (may contain more silver, different design) such as to deceive an ordinary person in believing it to be genuine Utter to pass counterfeited coins, deliver or give away Import to bring to port the same Both Philippine and foreign state coins Applies also to coins withdrawn from circulation Essence of article: making of coins without authority
Acts punished 1. Mutilating coins of the legal currency, with the further requirements that there be intent to damage or to defraud another;
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The first acts of falsification or falsity are (1) (2) (3) Counterfeiting refers to money or currency; Forgery refers to instruments of credit and obligations and securities issued by the Philippine government or any banking institution authorized by the Philippine government to issue the same; Falsification can only be committed in respect of documents.
In so far as coins in circulation are concerned, there are two crimes that may be committed: (1) Counterfeiting coins -- This is the crime of remaking or manufacturing without any authority to do so.
* In the crime of counterfeiting, the law is not concerned with the fraud upon the public such that even though the coin is no longer legal tender, the act of imitating or manufacturing the coin of the government is penalized. In punishing the crime of counterfeiting, the law wants to prevent people from trying their ingenuity in their imitation of the manufacture of money. (2) Mutilation of coins -- This refers to the deliberate act of diminishing the proper metal contents of the coin either by scraping, scratching or filling the edges of the coin and the offender gathers the metal dust that has been scraped from the coin.
Requisites of mutilation under the Revised Penal Code (1) (2) (3) Coin mutilated is of legal tender; Offender gains from the precious metal dust abstracted from the coin; and It has to be a coin. There is no expertise involved here. In mutilation of coins under the Revised Penal Code, the offender does nothing but to scrape, pile or cut the coin and collect the dust and, thus, diminishing the intrinsic value of the coin.
* Mutilation of coins is a crime only if the coin mutilated is legal tender. If it is not legal tender anymore, no one will accept it, so nobody will be defrauded. But if the coin is of legal tender, and the offender minimizes or decreases the precious metal dust content of the coin, the crime of mutilation is committed. * The offender must deliberately reduce the precious metal in the coin. Deliberate intent arises only when the offender collects the precious metal dust from the mutilated coin. If the offender does not collect such dust, intent to mutilate is absent, but Presidential Decree No. 247 will apply.
Article 164
MULTILATION OF COINS IMPORTATION AND UTTERANCE:
This has been repealed by PD 247. (Defacement, Mutilation, Tearing, Burning or Destroying Central Bank Notes and Coins)
Under this PD, the acts punishable are: a. b. c. d. e. willful defacement mutilation tearing burning destruction of Central Bank notes and coins
Mutilation to take off part of the metal either by filling it or substituting it for another metal of inferior quality, to diminish by inferior means (to diminish metal contents). Foreign notes and coins not included. Must be legal tender. Must be intention to mutilate.
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* On counterfeiting coins, it is immaterial whether the coin is legal tender or not because the intention of the law is to put an end to the practice of imitating money and to discourage anyone who might entertain the idea of imitating money (People vs. Kong Leon).
FORGING by giving a treasury or bank note or document payable to bearer/order an appearance of a true and genuine document FALSIFICATION by erasing, substituting, counterfeiting or altering by any means the figures and letters, words, signs contained therein E.g. falsifying lotto or sweepstakes ticket. Attempted estafa through falsification of an obligation or security of the Phil PNB checks not included here its falsification of commercial document under Article 172 Obligation or security includes: bonds, certificate of indebtedness, bills, national bank notes, coupons, treasury notes, certificate of deposits, checks, drafts for money, sweepstakes money
* If the falsification is done on a document that is classified as a government security, then the crime is punished under Article 166. On the other hand, if it is not a government security, then the offender may either have violated Article 171 or 172.
Article 167 COUNTERFEITING, IMPORTING, AND UTTERING INSTRUMENTS NOT PAYABLE TO BEARER
ELEMENTS : a. That there be an instrument payable to order or other document of credit not payable to bearer. b. That the offender either forged, imported or uttered such instruments. c. That in case of uttering, he connived with the forger or importer.
Article 168 ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER INSTRUMENT OF CREDIT
ELEMENTS:
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* Forgery under the Revised Penal Code applies to papers, which are in the form of obligations and securities issued by the Philippine government as its own obligations, which is given the same status as legal tender. Generally, the word counterfeiting is not used when it comes to notes; what is used is forgery. Counterfeiting refers to money, whether coins or bills. * Notice that mere change on a document does not amount to this crime. The essence of forgery is giving a document the appearance of a true and genuine document. Not any alteration of a letter, number, figure or design would amount to forgery. At most, it would only be frustrated forgery. * When what is being counterfeited is obligation or securities, which under the Revised Penal Code is given a status of money or legal tender, the crime committed is forgery. Questions & Answers 1. Instead of the peso sign (P), somebody replaced it with a dollar sign ($). Was the crime of forgery committed? No. Forgery was not committed. The forged instrument and currency note must be given the appearance of a true and genuine document. The crime committed is a violation of Presidential Decree No. 247. Where the currency note, obligation or security has been changed to make it appear as one which it purports to be as genuine, the crime is forgery. In checks or commercial documents, this crime is committed when the figures or words are changed which materially alters the document. 2. An old man, in his desire to earn something, scraped a digit in a losing sweepstakes ticket, cut out a digit from another ticket and pasted it there to match the series of digits corresponding to the winning sweepstakes ticket. He presented this ticket to the Philippine Charity Sweepstakes Office. But the alteration is so crude that even a child can notice that the supposed digit is merely superimposed on the digit that was scraped. Was the old man guilty of forgery? NO Because of the impossibility of deceiving whoever would be the person to whom that ticket is presented, the Supreme Court ruled that what was committed was an impossible crime. Note, however, that the decision has been criticized. In a case like this, the Supreme Court of Spain ruled that the crime is frustrated. Where the alteration is such that nobody would be deceived, one could easily see that it is a forgery, the crime is frustrated because he has done all the acts of execution which would bring about the felonious consequence but nevertheless did not result in a consummation for reasons independent of his will. 3. A person has a twenty-peso bill. He applied toothache drops on one side of the bill. He has a mimeograph paper similar in texture to that of the currency note and placed it on top of the twentypeso bill and put some weight on top of the paper. After sometime, he removed it and the printing on the twenty-peso bill was reproduced on the mimeo paper. He took the reverse side of the P20 bill, applied toothache drops and reversed the mimeo paper and pressed it to the paper. After sometime, he removed
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* The crime of falsification must involve a writing that is a document in the legal sense. The writing must be complete in itself and capable of extinguishing an obligation or creating rights or capable of becoming evidence of the facts stated therein. Until and unless the writing has attained this quality, it will not be considered as document in the legal sense and, therefore, the crime of falsification cannot be committed in respect thereto. Distinction between falsification and forgery: Falsification is the commission of any of the eight acts mentioned in Article 171 on legislative (only the act of making alteration), public or official, commercial, or private documents, or wireless, or telegraph messages. The term forgery as used in Article 169 refers to the falsification and counterfeiting of treasury or bank notes or any instruments payable to bearer or to order. * Note that forging and falsification are crimes under Forgeries.
Accused must not be a public official entrusted with the custody or possession of such document otherwise Art 171 applies .
* The falsification must be committed on a genuine, true and authentic legislative document. If committed on a simulated, spurious or fabricated legislative document, the crime is not punished under this article but under Article 171 or 172.
Article 171 FALSIFICATION OF DOCUMENTS BY PUBLIC OFFICER, EMPLOYEE, OR NOTARY OR ECCLESTASTICAL MINISTER
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4. Making untruthful statements in a narration of facts; Requisites: i. That the offender makes in a document statements in a narration of facts ii. That he has a legal obligation to disclose the truth of the facts narrated by him; (required by law to be done) and iii. That the facts narrated by the offender are absolutely false; and iv. That the perversion or truth in the narration of facts was made with the wrongful intent of injuring a third person There must be a narration of facts, not a conclusion of law. Must be on a material matter * For one to be held criminally liable for falsification under paragraph 4, the untruthful statement must be such as to effect the integrity of the document or to change the effects which it would otherwise produce. Legal obligation means that there is a law requiring the disclosure of the truth of the facts narrated. Ex. Residence certificates The person making the narration of facts must be aware of the falsity of the facts narrated by him. This kind of falsification may be committed by omission 5. Altering true dates. date must be essential * For falsification to take place under this paragraph, the date of the document must be material to the right created or to the obligation that is extinguished.
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* Alteration or changes to make the document speak the truth do not constitute falsification. (US vs. Mateo, 25 Phil. 324)
Persons liable public officer, employee or notary public or ecclesiastical minister > Either he has duty to intervene in the preparation of the document or it may be a situation wherein the public officer has official custody of the document.
So even if the offender is a public officer, if her causes the falsification of a document which is not in his official custody or if the falsification committed by him is not related whatsoever to the performance of his duties, he will still be liable for falsification but definitely not under this Article but under Article 172. (falsification of documents by a private person)
Not necessary that what is falsified is a genuine or real document, enough that it gives an appearance of a genuine article
As long as any of the acts of falsification is committed, whether the document is genuine or not, the crime of falsification may be committed. Even totally false documents may be falsified.
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* It does not require that the writing be genuine. Even if the writing was through and through false, if it appears to be genuine, the crime of falsification is nevertheless committed. THERE ARE FOUR KINDS OF DOCUMENTS: (1) Public document in the execution of which, a person in authority or notary public has taken part; (2) Official document in the execution of which a public official takes part; (3) Commercial document or any document recognized by the Code of Commerce or any commercial law; and (4) Private document in the execution of which only private individuals take part. * Public document is broader than the term official document. Before a document may be considered official, it must first be a public document. But not all public documents are official documents. To become an official document, there must be a law which requires a public officer to issue or to render such document. Example: A cashier is required to issue an official receipt for the amount he receives. The official receipt is a public document which is an official document.
Liability of a private individual in falsification by a public officer when there is conspiracy. Under Republic Act 7975, when a public officer who holds a position classified as Grade 27 or higher, commits a crime in relation to the performance of his official functions, the case against him will fall under the jurisdiction of the Sandiganbayan. If a private person is included in the accusation because of the existence of conspiracy in the commission of the crime, the Sandiganbayan shall maintain jurisdiction over the person of the co-accused, notwithstanding the fact that said coaccused is a private individual. If the public officer is found guilty, the same liability and penalty shall be imposed on the private individual. (U.S. vs. Ponce, 20 Phil. 379)
Article 172 FALSIFICATION OF PUBLIC, OFFICIAL, OR COMMERCIAL DOCUMENT BY A PRIVATE INDIVIDUAL (par 1)
ELEMENTS a. That the offender is a private individual or a public officer or employee who did not take advantage of his official position. b. That he committed any of the acts of falsification enumerated in ART. 171. 1. Counterfeiting or imitating any handwriting, signature or rubric. 2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participated. 3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them. 4. Making untruthful statements in a narration of facts; 5. Altering true dates. 6. Making any alteration or intercalation in a genuine document which changes its meaning. c. That the falsification was committed in any public or official or commercial document.
* If the falsification of public, official or commercial documents, whether they be public official or by private individuals, it is not necessary that there be present the idea of gain or the intent to injure a third person. What is punished under the law is
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Defense: lack of malice or criminal intent The following writings are public: a. the written acts or records of acts of the sovereign authority of official bodies and tribunals, and of the public officers, legislative, judicial and executive, whether of the Philippines or of a foreign country. b. Public records kept in the Philippines.
Examples of commercial documents warehouse receipts, airway bills, bank checks, cash files, deposit slips and bank statements, journals, books, ledgers, drafts, letters of credit and other negotiable instruments There is a complex crime of estafa through falsification of public, official or commercial document. In the crime of estafa, damage or intent to cause damage is not an element. It is sufficient that the offender committed or performed the acts of falsification as defined and punished under Article 171. The two offenses can coexist as they have distinct elements peculiar to their nature as a crime. When the falsification is committed because it is necessary to commit estafa, what we have is a complex crime defined and punished under Article 48 of the Revised Penal Code.
b. c.
That the falsification was committed in any private document (must affect the truth or integrity of the document) That the falsification caused damage (essential element; hence, no crime of estafa thru falsification of private document) to a third party or at least the falsification was committed with intent to cause such damage. Not necessary that the offender profited or hoped to profit from the falsification
* Falsification of a private document is consummated when such document is actually falsified with the intent to prejudice a third person whether such falsified document is or is not thereafter put to illegal use for which it is intended. (Lopez vs. Paras, 36 Phil. 146) * What is emphasized at this point is the element of falsification of private document. There must be intent to cause damage or damage is actually caused. The intention is therefore must be malicious or there is deliberate intent to commit a wrong. Reckless imprudence is incompatible with malicious intent. Falsification is not a continuing offense
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* Mere falsification of a private document is not enough to commit crime under paragraph 2 of Article 172. Two acts must be done by the offender. 1) He must have performed in the private document the falsification contemplated under Article 171. 2) He must have performed an independent act which operates to cause damage or prejudice to a third person. The third person mentioned herein may include the government. Damage is not limited to money or pecuniary prejudice. Damage to ones honor, reputation or good name is included. A document falsified as a necessary means to commit another crime must be public, official or commercial There is no complex crime of estafa through falsification of a private document because the immediate effect of the latter is the same as that of estafa
* If a private document is falsified to cause damage to the offended party, the crime committed is falsification of a private document. Remember that in estafa, damage or intent to cause damage is an indispensable element of the crime. The same element is necessary to commit the crime of falsification of private document. Since they have a common element, such element cannot be divided into the two parts and considered as two separate offenses. * There is no complex crime of estafa with falsification because deceit is a common element of both. One and the same deceit or damage cannot give rise to more than one crime. It is either estafa or falsification. Criteria to determine whether the crime is estafa only or falsification only : IF the falsification of the private document was essential in the commission of estafa because the falsification, estafa cannot be committed, the crime is falsification; estafa becomes the consequence of the crime. IF the estafa can be committed even without resorting to falsification, the latter being resorted only to facilitate estafa, the main crime is estafa; falsification is merely incidental, since even without falsification, estafa can be committed. If the estafa was already consummated at the time of the falsification of a private document was committed for the purpose of concealing the estafa, the falsification is not punishable, because as regards the falsification of the private document there was no damage or intent to cause damage.
* A private document which is falsified to obtain money from offended party is a falsification of private document only. A private document may acquire the character of a public document when it becomes part of an official record and is certified by a public officer duly authorized by law The crime is falsification of public documents even if falsification took place before the private document becomes part of the public records
Examples:
An employee of a private company who punches the bundy clock on behalf on a coemployee is guilty of falsification of a private document. One who will take the civil service examination for another and makes it appear that he is the examinee is guilty of falsification of a public document.
Article 173 FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH, MESSAGES, AND USE OF SAID FALSIFIED MESSAGES
AND
TELEPHONE
Acts punishable: 1. Uttering fictitious, wireless, telegraph or telephone message Requisites: a. That the offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message. b. That the accused commits any of the following acts:
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Falsifying wireless, telegraph or telephone message Requisites: a. That the offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message.
b.
-
That the accused commits any of the following acts: uttering fictitious wireless, cable, telegraph, or telephone message, or falsifying wireless, cable, telegraph, or telephone message
3. Using such falsified message Requisites: a. That the accused knew that wireless, cable, telegraph, or telephone message was falsified by any of the person specified in the first paragraph of art. 173. b. That the accused used such falsified dispatch.
c. That the use of the falsified dispatch resulted in the prejudice of a third party, or that the use thereof was with intent to cause such prejudice. The public officer, to be liable must be engaged in the service of sending or receiving wireless, cable and telegraph or telephone message
Article 174 FALSIFICATION OF MEDICAL CERTIFICATES, CERTIFCATES OF MERIT OR SERVICE AND THE LIKE:
Persons liable: a. Physician or surgeon who, in connection with the practice of his profession, issued a false certificate (note: such certificate must refer to the illness or injury of a person) b. Public officer who issued a false certificate of merit of service, good conduct or similar circumstances c. Private individual who falsified a certificate under (1) and (2)
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Elements 1. 2.
In usurpation of official functions: It is essential that the offender should have performed an act pertaining to a person in authority Offender performs any act; Pertaining to any person in authority or public officer of the Philippine government or any foreign government, or any agency thereof; Under pretense of official position; Without being lawfully entitled to do so.
Elements 1. 2. 3. 4.
A public officer may also be an offender The act performed without being lawfully entitled to do so must pertain: a. to the govt b. to any person in authority c. to any public office
* Foreign government adverted to in this article refers to public officers duly authorized to perform governmental duties in the Philippines. The law cannot refer to other foreign governments as its application may bring us to legal problems which may infringe on constitutional boundaries. * If the offender commits the acts of usurpation as contemplated herein, and he does it because he is a rebel and pursuant to the crime of rebellion or insurrection or sedition, he will not be liable under this article because what is attributed against him as a crime of usurpation is in fact one of the elements of committing rebellion. * The elements of false pretense is necessary to commit the crime of usurpation of official function.
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ELEMENTS (concealing true name): a. that the offender conceals 1. 2. his true name, and all other personal circumstances.
b. that the purpose is only to conceal his identity. * What the offender does to violate or commit this act is for him to conceal his true name and other personal circumstances. His only motive in doing so is to conceal his identity. In concealment of true name, the deception is done momentarily, just enough to conceal the name of the offender. In the use of fictitious name, the offender presents himself before the public with another name. * A person under investigation by the police who gives a false name and false personal circumstances, upon being interrogated, is guilty of this crime. Use of Fictitious Name (178) Concealing True Name (178) Element of publicity must be present Publicity not necessary Purpose is to conceal a crime, to evade the Purpose is to conceal identity execution of a judgement, or to cause damage
Commonwealth Act No. 142 (Regulating the Use of Aliases) No person shall use any name different from the one with which he was registered at birth in the office of the local civil registry, or with which he was registered in the bureau of immigration upon entry; or such substitute name as may have been authorized by a competent court. Exception: Pseudonym solely for literary, cinema, television, radio, or other entertainment and in athletic events where the use of pseudonym is a normally accepted practice.
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* The wearing of insignia, badge or emblem of rank of the members of the armed forced of the Philippines or constabulary (now PNP) is punished by Republic Act No. 493. * When the uniform or insignia is used to emphasize the pageantry of a play or drama or in moving picture films, the crime is not committed.
False testimony, defined It is the declaration under oath of a witness in a judicial proceeding which is contrary to what is true, or to deny the same, or to alter essentially the truth. Nature of the crime of false testimony. 1. It cannot be committed through reckless imprudence because false testimony requires criminal intent or intent to violate the law is an essential element of the crime. 2. If the false testimony is due to honest mistake or error or there was good faith in making the false testimony, no crime is committed.
d.
Requires criminal intent, cant be committed through negligence. Need not impute guilt upon the accused 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
* The probative value of the testimonial evidence is subject to the rules of evidence. It may not be considered at all by the judge. But whether the testimony is credible or not or whether it is appreciated or not in the context that the false witness wanted it to be, the crime of false testimony is still committed, since it is punished not because of the effect it produces, but because of its tendency to favor the accused. (People vs. Reyes)
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A defendant who voluntarily goes up on the witness stand and falsely imputes the offense to another person the commission of the offense is liable under this article. If he merely denies the commission of the offense, he is not liable. Basis of penalty: gravity of the felony charged against the defendant
Not applicable when testimony given in a special proceeding (in this case, the crime is perjury) Basis of penalty: amount involved in the civil case testimony: FALSE TESTIMONY 1. Given in a judicial proceeding. 2. Testimony need not be required by law. 3. Amount involved in civil cases is material. 4. It is always material in criminal cases.
Distinctions between perjury and false PERJURY 1. Non-judicial proceedings. 2. Statement or testimony is required by law. 3. Amount involved is not material. 4. immaterial whether statement or testimony is favorable or not to the accused.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article183 FALSE TESTIMONY IN OTHER CASES AND PERJURY IN SOLEMN AFFIRMATION
ELEMENTS: a. That an accused made a statement under oath or made an affidavit upon a material matter. b. That the statement or affidavit was made before a competent officer, authorized to receive and administer oath. c. That in that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood, and d. That the sworn statement or affidavit containing the falsity is required by law. 2 ways of committing perjury: a. by falsely testifying under oath b. by making a false statement Subornation of perjury: procures another to swear falsely. Solemn affirmation: refers to non-judicial proceedings and affidavits A false affidavit to a criminal complaint may give rise to perjury
* Two contradictory sworn statements are not sufficient to convict the affiant for the crime of perjury. There must be evidence to show which is false. The same must be established or proved from sources other than the two contradictory statements. (People vs. Capistrano, 40 Phil. 902) A matter is material when it is directed to prove a fact in issue
* The test of materiality is whether a false statement can influence the court (People vs. Bnazil).
A competent person authorized to administer an oath means a person who has a right to inquire into the questions presented to him upon matters under his jurisdiction
* There is no perjury if the accused signed and swore the statement before a person not authorized to administer oath (People vs. Bella David).
There is no perjury through negligence or imprudence since the assertion of falsehood must be willful and deliberate
* Because of the nature of perjury, which is the willful and corrupt assertion of a falsehood, there is no perjury committed through reckless imprudence or simple negligence under Article 365. Since admittedly perjury can only be committed by means of dolo, then good faith or lack of malice is a good defense when one is indicted for the crime of perjury.
Even if there is no law requiring the statement to be made under oath, as long as it is made for a legal purpose, it is sufficient
* If there is no requirement of law to place the statement or testimony under oath, there is no Perjury considering the phrases oath in cases in which the law so requires in Article 183. * The affidavit or sworn statement must be required by law like affidavit of adverse claim to protect ones interest on real property; or an affidavit of good moral character to take the bar examination. So if the affidavit was made but the same is not required by law, even if the allegations are false, the crime of perjury is not committed. (Diaz vs. People, 191 SCRA 86)
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False testimony vs. Perjury When one testifies falsely before the court, the crime committed is false testimony. If one testifies falsely in a non-judicial proceeding, the crime committed is perjury. In false testimony, it is not required that the offender asserts a falsehood on a material matter. It is enough that he testifies falsely with deliberate intent. In perjury, the witness must testify or assert a fact on a material matter with a full knowledge that the information given is essentially contrary to the truth. Material matter means the main fact which is the subject or object of the inquiry.
The false witness need not be convicted of false testimony. The mere offer is sufficient.
* The offender in this article knows that the witness to be presented is a false witness or that the witness will lie while testifying. The proceedings is either judicial or official. There is a formal offer of testimonial evidence in the proceedings. The witness is able to testify and the offender, knowing the testimony is given by the witness to be false, nevertheless offers the same in evidence. In this case, the person offering the false testimony must have nothing to do in the making of the false testimony. He knows that the witness is false and yet he asks him to testify and thereafter offers the testimony in evidence. So if the offeror, aside from being such, is also the person responsible in inducing or convincing the false witness to lie, Article 184 will not apply. The applicable article will be Article 180, 181, 182, or 183 as the case may be. The offenders in this case will be charged with perjury; the inducer as principal by inducement and the induced party as the principal by direct participation. * It is for this reason that subornation of perjury is no longer treated as a specific felony with a separate article of its own. Nevertheless, it is a crime defined and punished under the Revised Penal Code. The crime committed by one who induces another to testify falsely and the person who agrees and in conspiracy with the inducer, testifies falsely, is perjury. (People vs. Padol, 66 Phil. 365)
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Elements and Notes in Criminal Law Book II by RENE CALLANTA FRAUDS Article 185 MACHINATIONS IN PUBLIC AUCTION
ELEMENTS: a That there be a public auction. b That the accused solicited any gift or a promise from any of the bidders.
c That such gifts or promise was the consideration for his refraining from taking part in that public auction. d That the accused had the intent to cause the reduction of the price of the thing auctioned. ELEMENTS OF ATTEMPTING TO CAUSE BIDDERS TO STAY AWAY: a That there be a public auction. b c That the accused attempted to cause the bidders to stay away from that public auction That it was done by threats, gifts, promises, or any other artifice.
d That the accused had the intent to cause the reduction of the price of the thing auctioned.
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d. Manufacturer, producer or processor or importer combining, conspiring or agreeing with any person to make transactions prejudicial to lawful commerce or to increase the market price of the merchandise. Elements 1. 2. 3. Manufacturer, producer, processor or importer of any merchandise or object of commerce; Combines, conspires or agrees with any person; Purpose is to make transactions prejudicial to lawful commerce or to increase the market price of any merchandise or object of commerce manufactured, produced, processed, assembled or imported into the Philippines.
Person/s liable: a. manufacturer b. producer c. processor d. importer Crime is committed by: a. combining b. conspiring c. agreeing with another person The purpose is: a. to make transactions prejudicial to lawful commerce b. to increase the market price of any merchandise or object of commerce manufactured, produced, processed, assembled or imported into the Phil Also liable as principals: a. corporation/association b. agent/representative c. director/manager who willingly permitted or failed to prevent commission of above offense Aggravated if items are: a. food substance b. motor fuel or lubricants c. goods of prime necessity
Article 187 IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR MERCHANDISE MADE OF GOLD, SILVER, OR OTHER PRECIOUS METALS OR THEIR ALLOYS
ELEMENTS: a That the offender imports, sells or disposes of any of those articles or merchandise. b That the stamps, brands, or marks or those articles or merchandise fails to indicate the actual fineness or quality of said metals or alloys. c That the offender knows that the said stamp, brand, or mark fails to indicate the actual fineness or quality of the metals or alloys. * To be criminally liable, it is important to establish that the offender knows the fact that the imported merchandise fails to indicate the actual fineness or quality of the
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If a particular person is defrauded by the offender; as in the case of locally manufactured goods, which the offender, by altering the label, are made to appear as imported articles and sold to a particular person, the crime committed is undoubtedly estafa as far as the particular person is concerned. But if the falsely mislabeled goods are displayed in a store and offered for sale to the public in general, the crime committed is punished under Article 188. So, if the deception is isolated and is confined to a particular person or group of persons, estafa is committed. If the fraud is employed against the public, Article 188 is violated. Must not be another manufacturer otherwise unfair competition
* Take note that after making the substitution the goods are displayed in the store or market for sale, Article 188 is already committed even if no customer comes to buy any of the goods on display. The mere offer for sale to the public consummates the crime. * The pendency of the administrative aspect of the case is not a prejudicial question in the resolution of the criminal case.
Article 189 UNFAIR COMPETITION, FRAUDULENT REGISTRATION OF TRADENAME, TRADEMARK SERVICE MARK, FRAUDULENT DESIGNATION OF ORIGIN, AND FALSE DESCRIPTION
Acts punished: a Unfair competition by selling his goods, giving them the general appearance of the goods of another manufacturer or dealer
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ELEMENTS: a That the offender gives his goods the general appearance of the goods of another manufacturer or dealer b That the general appearance is shown in the (a) goods themselves, or in the (b) wrapping of their packages, or in the (c) device or words therein, or in (d) any other feature of their appearance That the offender offers to sell or sells those goods or gives other persons a chance or opportunity to do the same with a like purpose. That there is actual intent to deceive the public or defraud a competitor.
c d
* Under Republic Act No. 166, Section 29, paragraph 2, unfair competition is defined as follows: It consists in employing deception or any other means contrary to good faith by which any person shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established goodwill, or committing any acts calculated to produce such result. * The true test of unfair competition is whether certain goods have been clothed with an appearance which is likely to deceive the ordinary purchaser exercising ordinary care. (U.S. vs. Manuel, 7 Phil. 221) * For unfair competition to take place, it must be the manufacturer of the goods who will cloth or label his goods with the trade name or trademark of another manufacturer, who has established a good name or good will in the mind of the public because of the quality of the merchandise manufactured by him. The imitator is also a manufacturer of the same kind of product but of inferior quality. By labeling his product with the trademark or trade name of said manufacturer, he profits from the goodwill of another. * If the labeling or clothing of the goods is not done by another manufacturer, the crime committed is not unfair competition but substitution of trademark or trade name under Article 188. * When the honorable Supreme Court declared that unfair competition is broader and more inclusive than infringement of trade name or trademark. In infringement of trade name or trademark, the offended party has a peculiar symbol or mark on his goods which is considered a property right which must therefore be protected. In unfair competition, the offended party has identified in the mind of the public the goods he manufactures to distinguish it from the goods of the other manufacturers. In infringement of trade name or trademark, the offender uses the trade name or trademark of another in selling his goods, while in unfair competition, the offender gives his goods the general appearance of the goods of another manufacturer and sells the same to the public. (E. Spinner & Co. vs. New Hesslein Corp., 54 Phil. 224)
TITLE FIVE CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS (190-194)
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DRUG SYNDICATE any organized group of two(2) or more persons forming or joining together with the intention of committing any offense prescribed under the act. PLANTING OF EVIDENCE the willful act by any person of maliciously and surreptitiously inserting, placing, adding or attaching directly or indirectly, through any overt or covert act, whatever quantity of any dangerous drug and/or controlled precursor and essential chemical in the person, house, effects, or in the immediate vicinity of an innocent individual for the purpose of implicating, incriminating or imputing the commission of any violation of this Act. P D E A Philippine Drug Enforcement Unit Importation of prohibited/regulated drugs. PENALTY : Life to death & fine of 500,000 to 10 million regardless of the Quantity purity involved MAXIMUM PENALTY : 1) Use of diplomatic Passport 2) Financier and
- NOT BAILABLE PENALTY : Life to death & fine of 500,000 to 10 million regardless of the Quantity and purity involved ( includes BROKER ) Qualifying Circumstances 1) if the victim of the offense is a minor or should a prohibited/regulated drug involve in any offense under this section be the proximate cause of the death of a victim thereof, the maximum penalty herein shall be imposed. 2) Financier 3) Sale made within 100m from school Maintenance of a den, dive, or resort for prohibited/regulated drug users. ** Property escheated in favor of the government Qualifying Circumstance where a prohibited/regulated drug is administered, delivered, or sold to a minor who is allowed to use the same in such place, or should a prohibited drug be the proximate cause of the death of the person using the same in such den, dive or resort, the maximum of the penalty shall be imposed. Manufacture of prohibited/regulated drugs. Possession of prohibited/regulated drugs.
10 gms. Opium, morphine, heroine, cocaine, marijuana resin and Ecstasy. 50 gms. Shabu 500 gms. Marijuana b. Life Imprisonment and a fine of P400,000.00-P500,000.00 10-50 gms. Shabu c. 20 years to Life and a fine of 400,000.00-500,000.00 5-10 gms. Shabu
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Elements and Notes in Criminal Law Book II by RENE CALLANTA d. 12 20 years and a fine of 300,000.00-400,000.00 Less than 5 gms. Of any dangerous drugs
Possession of paraphernalia
6 mos. 4 yrs. & fine of 10,000 50,000 Use of Dangerous Drugs A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug act for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve(12) years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos (P200,000.00); Provided, That this section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply.
Cultivation of plants which are sources of prohibited drugs.
Penalty - Life to death and a fine of P500,000.00 to P10 Million a Note: The land/portions thereof and/or greenhouses in which any of the said plants is
cultivated or cultured shall be confiscated and escheated to the State, unless the owner thereof can prove that he did not know of such cultivation or culture despite the exercise of due diligence on his part.
b Qualifying Circumstance
1. If the land involved is part of the public domain, the maximum of the penalty herein provided shall be imposed. 2. Maximum penalty imposed on financier Failure to keep records of prescription, sales, purchases, acquisitions and/or deliveries of prohibited/regulated drugs Persons liable: Pharmacist, Physician, Dentist, Veterinarian, Manufacturer, Wholesaler, Importer, Distributor, Dealer, Retailer Unlawful prescription of prohibited/regulated drugs
Confiscation and forfeiture of the proceeds or instruments of the unlawful act, including the properties of the proceeds derived from the illegal trafficking of dangerous drugs. Forfeited infavor of the government After the conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and all the assets and properties of the accused either owned or held by him or in the Sigma Rho ( ) reviewers
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Elements and Notes in Criminal Law Book II by RENE CALLANTA name of some other persons if the same shall be found to be manifestly out of proportion of his/her income; Provided, however, That if the forfeited property is a vehicle, the same shall be auctioned off not later than five (5) days upon order of confiscation or forfeiture. During the pendency of the case in the Regional Trial Court, no property, or income derived therefrom, which may be confiscated and forfeited, shall be disposed, alienated or transferred and the same shall be in custodia legis and no bond shall be admitted for the release of the same. Custody and disposition of confiscated, seized and/or surrendered dangerous drugs PDEA in charge and custody for proper disposition Procedure in Disposal 1. Apprehending team immediately after seizure shall make physical inventory and photograph the seized drugs in the presence of the accused or his counsel, a representative of the media and DOJ and any elected public official who shall sign the copies of the inventory. 2. Within 24 hours upon confiscation/seizure of dangerous drugs, such drug shall be submitted to the PDEA forensic laboratory for a qualitative and quantitative examination. 3. Certification of the forensic examination results shall be issued within 24 hours. 4. After the filing of the criminal case, the proper court shall conduct and ocular inspection within 72 hours of the confiscated, seized and/or surrendered dangerous drugs. 5. After ocular inspection by the court, PDEA shall destroy or burn the confiscated, seized and/or surrendered dangerous drugs within 24 hours in the presence of the accused or his counsel, representative of the media and the DOJ, civil society groups and any elected public officer. 6. PDEA shall issue a certification of such destruction and samples of the dangerous drugs shall be submitted to the court. Plea-Bargaining Any person charged under any commission of this act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining. Probation Law Any person convicted for drug trafficking regardless of the penalty imposed cannot avail of the privilege granted by the probation law. Qualifying Aggravating Circumstance A positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender and the application of the penalty provided for in the RPC.
Possession of opium pipe, equipment, apparatus or any paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or otherwise using opium or any other prohibited drug, shall be prima facie evidence that the possessor has smoked, consumed, administered to himself, injected or used a prohibited drug. Attempt and conspiracy to commit the following offenses: a Importation of dangerous drugs b c d Sale, administration, delivery, distribution and transportation of dangerous drugs Maintenance of a den, dive or resort for prohibited drugs Manufacture of dangerous drugs
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Other persons liable: a 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. Partner, president, director, manager, officer or stockholder, who knowingly authorizes, tolerates, or consents to the use of a vehicle, vessel, or aircraft as an instrument in the importation, sale, delivery, distribution or transportation of dangerous drugs, or to the use of their equipment, machines or other instruments in the manufacture of any dangerous drugs, if such vehicle, vessel, aircraft, equipment, or other instrument, is owned or under the control and supervision of the partnership, corporation, association or judicial entity to which they are affiliated.
Criminal liability of a public officer or employee for misappropriation, misapplication or failure to account for the confiscated, seized and/or surrendered dangerous drugs Penalty - life to death and a fine of P500,000.00 to P10 Million in addition to absolute perpetual disqualification from any public office. Any elective local or national official found to have benefited from the proceeds of the trafficking of dangerous drugs or have received any financial or material contributions from persons found guilty of drug trafficking dangerous drugs, shall be removed from office and perpetually disqualified from holding any elective or appointive positions in the government. Planting of Evidence Any person who is found guilty of planting any dangerous drug regardless of the quantity and purity, shall suffer the penalty of death. Drug Testing 1. Applicants for drivers license - mandatory 2. Applicants for firearms license and for permit to carry - mandatory 3. Students of secondary and tertiary schools random (school shall shoulder expenses) 4. Officers and employees of private and public offices random (employer shall shoulder expenses) Any officer or employee found positive for use of dangerous drug shall be dealt with administratively which shall be a ground for suspension or termination subject to Art. 282 of the Labor Code and pertinent provisions of the Civil Service Law. 5. Officers and members of the military, police and other law enforcement agencies annual mandatory 6. All persons charged before the prosecutors office with a criminal offense having an impossible penalty of imprisonment of not less than six (6) years and one (1) day shall have to undergo a mandatory drug test 7. All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. Issuance of False or fraudulent drug test results (whether willfully or through gross negligence) Penalty 6 to 12 years and fine P100,000.00 to P500,000.00 Additional penalty revocation of license to practice and closure of the drug testing center II. For the purpose of enforcing the provisions of this Act, all school heads, supervisors and teachers shall be deemed to be persons in authority and, as such, are vested with the
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a. NOTE: 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. b. 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. III. Rules regarding rehabilitation of drug dependents
Voluntary submission a. Voluntary submission of a drug dependent to confinement, treatment and rehabilitation by the drug dependent himself or through his parent, guardian or relative within the 4th civil degree of consanguinity or affinity, in a center and compliance with such conditions therefor as the Dangerous Drugs Board may prescribe shall exempt from criminal liability for possession or use of the prohibited/regulated drug. (Applicable only to those liable for use of dangerous drugs and not to possession and sale) b. Should the drug dependent escape from the center, he may submit himself for confinement within 1 week from the date of his escape, of his parent guardian or relative may, within the same period surrender him for confinement. c. Upon application of the Board, the Court shall issue an order for recommitment if the drug dependent does not resubmit himself for confinement or if he is not surrendered for recommitment. d. If, subsequent to such recommitment, he should escape again, he shall no longer be exempt from criminal liability for the use or possession of any dangerous drug. e. If a person charged with an offense is found by the fiscal or by the Court at any stage of the proceedings, to be a drug dependent, the fiscal or court as the case may be, shall suspend all further proceedings and transmit records of the case to the Board. f. After his rehabilitation, he shall be prosecuted for such violation. In case of conviction, the judgement shall, if the accused is certified by the treatment and rehabilitation center to have maintained good behavior, indicate that he shall be given full credit for the period he was confined in the center. NOTE: When the offense is use of dangerous drugs and the accused is not a recidivist, the penalty thereof shall be deemed to have been served in the center upon his release therefrom. g. The period of prescription of the offense charged shall not run during the time that the respondent/accused is under detention or confinement in a center. h. Requisites of suspension of sentence for first offense in a minor: 1. If accused is a minor (under 18 years of age at the time of the commission of the offense but not more than 21 years of age when the judgement should have been promulgated. 2. He has not been previously convicted of violating any provision of this Act or of the RPC or placed on probation. Sentence shall be deferred and the accused shall be placed on probation under the supervision of the Board.
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Section 90. Jurisdiction The Supreme Court shall designate special courts from among the existing Regional Trial Court in each judicial region to exclusively try and hear cases involving violations of this Act. The number of court designated in each judicial region shall be based on population and the number of cases pending in their respective jurisdiction. The DOJ shall designate special prosecutors to exclusively handle cases involving violations of this Act. The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date of their filing. When the preliminary investigation is conducted by a public prosecutor and a probable cause is established, the corresponding information shall be filed in court within 24 hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a probable cause is found to exist, the corresponding information shall be filed by the proper prosecutor within 48 hours from the receipt of the records of the case. Section 91. Responsibility and Liability of Law Enforcement Agencies and Other Government Officials and Employees Testifying as Prosecution Witnesses in Dangerous Drugs Cases Any member of law enforcement agencies or any other government official and employees who, after due notice, fails or refuses intentionally or negligently, to appear as a witness for the prosecution in any proceedings, involving violations of this Act, without any valid reason, shall be punished with imprisonment of not less than twelve (12) years and one (1) day to 20 years and a fine of not less than P500,000.00, in addition to the administrative liability he/she may be meted out by his/her immediate superior and/or appropriate body. The immediate superior of a member of the law enforcement agency or any other government employee mentioned in the preceding paragraph shall be penalized with imprisonment of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than P10,000.00 but not more than P50,000 and in addition, perpetual absolute disqualification from public office if despite due notice to them and to the witness concerned, the former does not exert reasonable effort to present the latter to the court. The member of the law enforcement agency or any other government employee mentioned in the preceding paragraphs shall not be transferred or re-assigned to any other territorial jurisdiction during the pendency of the case in court. However, the concerned member of the law enforcement agency or government employee may be transferred or re-assigned for compelling reasons; Provided, That his/her immediate superior shall notify the court where the case is pending of the order of transfer or re-assign, within 24 hours from its approval; Provided further, That his/her immediate superior shall be penalized with imprisonment of not less than two (2) months and one (1) day but not less than six (6) years and a fine of not less than P10,000.00 but not more than P50,000.00 and in addition, perpetual absolute disqualification from public office, should he/she fail to notify the court of such order to transfer or re-assign. Prosecution and punishment under this Section shall be without prejudice to any liability for violation of any existing law. Sigma Rho ( ) reviewers
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a Buy Bust Operation no law or rule to require policemen to adopt a uniform way of
identifying BUY MONEY (P v. Abedes) b Absence of ultraviolet powder is not fatal in the prosecution Transportation/importation of MJ immaterial whether there may or may not be a distinction for the MJ Distinguish Entrapment and Instigation:
c
d
1. If prosecution can prove the crime without presenting the informer or asset not
necessary because their testimonies are merely corroborative. Poseur buyer it depends on whether the prosecution can prove the crime without their testimonies (P v. Rosalinda Ramos)
2. Under the RA, special aggravating circumstance if a crime has been committed
while the accused was high on drugs (P v. Anthony Belgar)
3. Delivery or Sale of Prohibited Drugs the accused must be aware that what he is
selling or delivering was prohibited drug. But the moment the fact of sale or delivery is proved by prosecution, the burden to prove that the accused is not aware that drugs are prohibited falls on the defense (P v. Aranda)
5. P v. Hilario Moscaling court may take judicial notice of the word shabu 6. Criminal liabilities of a policeman who sold the drugs confiscated from a pusher:
violation of RA 9165 and malversation under RPC.
g Possession constructive or actual not necessary to adduce the marked money as h Separate crimes sale/possession of MJ found in his possession after he was frisked
but he cant be convicted for possession of MJ that he sold
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b.
2. 3. 4.
Knowingly permitting any form of gambling to be carried on in any place owned or controlled by the offender; Being maintainer, conductor, or banker in a game of jueteng or similar game; Knowingly and without lawful purpose possessing lottery list, paper, or other matter containing letters, figures, signs or symbol which pertain to or are in any manner used in the game of jueteng or any similar game.
What is gambling? It is a game or device or method, the result of which depends wholly or chiefly upon chance or hazard. So, if the game depends wholly upon skill or ability of the players, there is no gambling. The manner of determining whether the game played is prohibited or not is whether the result will depend wholly or chiefly upon chance or hazard. Significantly, if the game has been identified and declared as a form of gambling by express provision of law, there will be no need or requirement to go into the methods upon how the game is played. What is lottery?
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AND
POSSESSION
OF
LOTTERY
TICKETS
OR
1. Importing into the Philippines from any foreign place or port any lottery ticket or advertisement; or 2. Selling or distributing the same in connivance with the importer; 3. Possessing, knowingly and with intent to use them, lottery tickets or advertisements; or 4. Selling or distributing the same without connivance with the importer of the same.
Note that possession of any lottery ticket or advertisement is prima facie evidence of an intent to sell, distribute or use the same in the Philippines.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Acts punished Betting on horse races during periods not allowed by law; Maintaining or employing a totalizer or other device or scheme for betting on races or realizing profit therefrom during the periods not allowed by law. When horse races not allowed: July 4 (Republic Act No. 137); December 30 (Republic Act No. 229); Any registration or voting days (Republic Act No. 180, Revised Election Code); and Holy Thursday and Good Friday (Republic Act No. 946). Article 199. ILLEGAL COCKFIGHTING
This article has been modified or repealed by Presidential Decree No. 449 (The Cockfighting Law of 1974):
D. When allowed: 1. Cockfighting shall be allowed only in licensed cockpits during Sundays and legal holidays and during local fiestas for not more than 3 days; or 2. During provincial, city or municipal, agricultural, commercial or industrial fair, carnival or exposition for a similar period of 3 days upon resolution of the province, city or municipality where such fair, carnival or exposition is to be held, subject to the approval of the Chief of Constabulary or his authorized representative. Limitations: a) No cockfighting on the occasion of such fair, carnival or exposition shall be allowed within the month of the local fiesta or for more than 2 occasions a year in the same city of municipality.
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Presidential Decree No. 1602 (Simplifying and Providing Stiffer Penalties for Violations of Philippine Gambling Laws)
Section 1. Violations and Penalties. -- The penalty of prision mayor in its medium degree or a fine ranging from Five Hundred Pesos to Two Thousand Pesos and in case of recidivism the penalty of prision correccional in its medium degree or a fine of ranging from One Thousand Pesos to Six Thousand Pesos shall be imposed upon: (a) Any person other than those referred to in the succeeding subsection who in any manner, shall directly or indirectly take part in any game of cockfighting, jueteng, bookies (jai- alai or horse racing to include game fixing) and other lotteries, cara y cruz or pompiang and the like, black jack, lucky nine, pusoy or Russian Poker, monte, baccarat and other card games, palk que, domino, mahjong, high and low, slot machines, roulette, pinball and other mechanical inventories or devices, dog racing, boat racing, car raising and other races, basketball, volleyball, boxing, seven-eleven dice games and the like and other contests to include game fixing, point shaving and other machinations banking or percentage game, or any other game or scheme, whether upon chance or skill, which do not have a franchise from the national government, wherein wagers consisting of money, articles of value of representative of value are made; (b) Any person who shall knowingly permit any form of gambling referred to in the preceding subdivision to be carried on in inhabited or uninhabited places or any building, vessel or other means of transportation owned or controlled by him. If the place where gambling is carried on has a reputation of a gambling place or that prohibited gambling is frequently carried on therein or the place is a public or government building or barangay hall, the culprit shall be punished by the penalty provided for in its maximum period and a fine of Six Thousand Pesos. The penalty of prision correccional in its maximum degree and a fine of Six Thousand Pesos shall be imposed upon the maintainer, conductor of the above gambling schemes. The penalty of prision mayor in its medium degree and temporary absolute disqualification and a fine of Six Thousand Pesos shall be imposed if the maintainer, conductor or banker is a government official, or if a player, promoter, referee, umpire, judge or coach in cases of game-fixing, point-shaving and other game machination. The penalty of prision correccional in its medium degree and a fine ranging from Five Hundred pesos to Two Thousand Pesos shall be imposed upon any person who shall knowingly and without lawful purpose in any hour of any day shall have in his possession any lottery list, paper, or other matter containing letter, figures, signs or symbols which pertain to or in any manner used in the game of jueteng, jai-alai or horse racing bookies and similar game or lottery which has taken place or about to take place. Section 2. Barangay Official. Any barangay official in whose jurisdiction such gambling house is found and which house has the reputation of a gambling place shall suffer the penalty of prision correccional in its medium period and a fine ranging from Five Hundred to Two Thousand Pesos and temporary absolute disqualifications. While the acts under the Revised Penal Code are still punished under the new law, yet the concept of gambling under it has been changed by the new gambling law.
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There are so-called parlor games which have been exempted from the operation of the decree like when the games are played during a wake to keep the mourners awake at night. Pursuant to a memorandum circular issued by the Executive Branch, the offshoot of the exemption is the intentional prolonging of the wake of the dead by gambling lords. As a general rule, betting or wagering determines whether a game is gambling or not. Exceptions: These are games which are expressly prohibited even without bets. Monte, jueteng or any form of lottery; dog races; slot machines; these are habit-forming and addictive to players, bringing about the pernicious effects to the family and economic life of the players. Mere possession of lottery tickets or lottery lists is a crime punished also as part of gambling. However, it is necessary to make a distinction whether a ticket or list refers to a past date or to a future date. Illustration: X was accused one night and found in his possession was a list of jueteng. If the date therein refers to the past, X cannot be convicted of gambling or illegal possession of lottery list without proving that such game was indeed played on the date stated. Mere possession is not enough. If the date refers to the future, X can be convicted by the mere possession with intent to use. This will already bring about criminal liability and there is no need to prove that the game was played on the date stated. If the possessor was caught, chances are he will not go on with it anymore. There are two criteria as to when the lottery is in fact becomes a gambling game: 1. If the public is made to pay not only for the merchandise that he is buying, but also for the chance to win a prize out of the lottery, lottery becomes a gambling game. Public is made to pay a higher price. If the merchandise is not saleable because of its inferior quality, so that the public actually does not buy them, but with the lottery the public starts patronizing such merchandise. In effect, the public is paying for the lottery and not for the merchandise, and therefore the lottery is a gambling game. Public is not made to pay a higher price.
2.
Illustrations: (1) A certain supermarket wanted to increase its sales and sponsored a lottery where valuable prices are offered at stake. To defray the cost of the prices offered in the lottery, the management increased their prices of the merchandise by 10 cents each. Whenever someone buys from that supermarket, he pays 10 cents more for each merchandise and for his purchase, he gets a coupon which is to be dropped at designated drop boxes to be raffled on a certain period. The increase of the price is to answer for the cost of the valuable prices that will be covered at stake. The increase in the price is the consideration for the chance to win in the lottery and that makes the lottery a gambling game. But if the increase in prices of the articles or commodities was not general, but only on certain items and the increase in prices is not the same, the fact that a lottery is sponsored does not appear to be tied up with the increase in prices, therefore not illegal. Also, in case of manufacturers, you have to determine whether the increase in the price was due to the lottery or brought about by the normal price increase. If the increase in price is brought about by the normal price increase [economic factor] that even without the lottery the price would be like that, there is no consideration in favor of the lottery and the lottery would not amount to a gambling game.
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OFFENSES AGAINST DECENCY AND GOOD CUSTOMS Article 200 GRAVE SCANDAL
ELEMENTS: a. Offender performs an act b. Act is highly scandalous as offending against decency or good customs c. Highly scandalous conduct does not expressly fall within any other article of the RPC
d. Committed in a public place or within the public knowledge or view. (The public view is
not required, it is sufficient if in public place. For public knowledge, it may occur even in a private place; the number of people who sees it is not material).
GRAVE SCANDAL: consists of acts which are offensive to decency and good customs. They are committed publicly and thus, give rise to public scandal to persons who have accidentally witnessed the acts
* The crime of grave scandal is a crime against public morals. Necessarily, the offender must commit the crime in a public place or within the view of the public.
In grave scandal, the scandal involved refers to moral scandal offensive to decency, although it does not disturb public peace. But such conduct or act must be open to the public view. In alarms and scandals, the scandal involved refers to disturbances of the public tranquility and not to acts offensive to decency.
Decency: means properly observing the requirements of modesty, good taste etc Customs: refers to established usage, social conventions carried on by tradition and enforced by social disapproval in case of violation If the acts complained of are punishable under another provision of the RPC, Art 200 is not applicable
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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.
Distinction should be made as to the place where the offensive act was committed, whether in the public place or in a private place: (1) (2) In public place, the criminal liability arises irrespective of whether the immoral act is open to the public view. In short public view is not required. When act offensive to decency is done in a private place, public view or public knowledge is required.
* Public view does not require numerous persons. Even if there was only one person who witnessed the offensive act for as long as the third person was not an intruder, grave scandal is committed provided the act does not fall under any other crime in the Revised Penal Code. Illustrations: (1) A man and a woman enters a movie house which is a public place and then goes to the darkest part of the balcony and while there the man started performing acts of lasciviousness on the woman. If it is against the will of the woman, the crime would be acts of lasciviousness. But if there is mutuality, this constitutes grave scandal. Public view is not necessary so long as it is performed in a public place. (2) A man and a woman went to Luneta and slept there. They covered themselves their blanket and made the grass their conjugal bed. This is grave scandal. (3) In a certain apartment, a lady tenant had the habit of undressing in her room without shutting the blinds. She does this every night at about eight in the evening. So that at this hour of the night, you can expect people outside gathered in front of her window looking at her silhouette. She was charged of grave scandal. Her defense was that she was doing it in her own house. It is no defense that she is doing it in her private home. It is still open to the public view. (4) In a particular building in Makati which stands right next to the house of a young lady who goes sunbathing in her poolside. Every morning several men in the upper floors would stick their heads out to get a full view of said lady while in her two-piece swimsuit. The lady was then charged with grave scandal. Her defense was that it is her own private pool and it is those men looking down at her who are malicious. This is an act which even though done in a private place is nonetheless open to public view.
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MORALS: implies conformity to generally accepted standards of goodness or rightness in conduct or character TEST OF OBSCENITY: whether the matter has a tendency to deprave or corrupt the minds of those who are open to immoral influences. A matter can also be considered obscene if it shocks the ordinary and common sense of men as indecency.
> The test is objective. It is more on the effect upon the viewer and not alone on the conduct of the performer. * If the material has the tendency to deprave and corrupt the mind of the viewer then the same is obscene and where such obscenity is made publicly, criminal liability arises. * The law is not concerned with the moral of one person. As long as the pornographic matter or exhibition is made privately, there is no crime committed under the Revised Penal Code because what is protected is the morality of the public in general.
* In committing this crime, there must be publicity. It means the act or acts done must come to the knowledge of third persons.
However, Art 201 enumerates what are considered as obscene literature or immoral or indecent plays, scenes or acts: a. those w/c glorify criminals or condone crimes b. those w/c serve no other purpose but to satisfy the market for violence, lust or pornography c. those w/c offend against any race or religion d. those w/c tend to abet the traffic in and the use of prohibited drugs e. those that are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts
Mere nudity in paintings and pictures is not obscene Pictures w/ a slight degree of obscenity having no artistic value and intended for commercial purposes fall within this article Publicity is an essential element
* Sexual indulgence is not in itself immoral if done within the bounds of privacy and performed normally. The moment the parties carry their private rights and privileges to public view, they expose themselves to public scrutiny.
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If fenced and with prohibition of entry If fenced and entered to hunt/fish If not fenced and with no prohibition of entry
Who are considered prostitutes - refer to women who habitually indulge in sexual intercourse or lascivious conduct for money or profit (if a man indulges in the same conduct: vagrancy)
* In law the mere indulging in lascivious conduct habitually because of money or gain would amount to prostitution, even if there is no sexual intercourse. Virginity is not a defense. Habituality is the controlling factor; it has to be more than one time. * There cannot be prostitution by conspiracy. One who conspires with a woman in the prostitution business like pimps, taxi drivers or solicitors of clients are guilty of the crime under Article 341 for white slavery.
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* The designation of the title is misleading. Crimes under this title can be committed by public officers or a non-public officer, when the latter become a conspirator with a public officer, or an accomplice, or accessory to the crime. The public officer has to be the principal. * In some cases, it can even be committed by a private citizen alone such as in Article 275 (infidelity in the custody of a prisoner where the offender is not a public officer) or in Article 222 (malversation).
a. Takes part in the performance of public functions in the Government, or b. Performs public duties as an employee, agent or subordinate official in the govt or any of its branches
Notes: Public officer must derive his authority from: 1. direct provision of law 2. popular election 3.appointment by competent authority * In defining the term public officers, the law makes the reference to the manner by which he is appointed to public office. He thus becomes a public officer because of his appointment by competent authority or because he is elected to public office. Public officers: embraces every public servant from the lowest to the highest rank
Under Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act), the term public officer is broader and more comprehensive because it includes all persons whether an official or an employee, temporary or not, classified or not, contractual or otherwise. Any person who receives compensation for services rendered is a public officer.
* A government laborer is not a public officer. However, temporary performance by a laborer of public functions makes him a public officer * Crimes committed by public officers are nothing but corruption in public service. Breach of oath of office partakes of three forms:
b. Malfeasance: means performance of an act which ought not to be done c. Nonfeasance: means omission of an act which ought to be done
Malfeasance Misfeasance Doing of an act which a public officer should not have done Improper doing of an act which a person might lawfully do
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MANIFESTLY UNJUST JUDGMENT: one that is so contrary to law that even a person having meager knowledge of the law cannot doubt the injustice
* The unjust judgment is merely the result of inexcusable negligence or ignorance of the law. The ignorance may refer to substantive or procedural law. There must be an apparent and notorious manifestation of lack of logic and false interpretation of the law. (Cortes vs. Catral, 279 SCRA 1)
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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
* The crime of knowingly rendering an unjust judgment, or knowingly issuing an unjust interlocutory order, may be committed only by a judge of a trial court and never of an appellate court. The reason for this is that in appellate court, not only one magistrate renders or issues the interlocutory order. An appellate court functions as a division and the resolutions thereof are handed down only after deliberations among the members of a division so that it cannot be said that there is malice or inexcusable negligence or ignorance in the rendering of a judgment or order that is supposedly unjust as held by the Supreme Court in one administrative case.
* Malice must be proven. Malice is present where the delay is sought to favor one party to the prejudice of the other. * These have been interpreted by the Supreme Court to refer only to judges of the trial court.
* The Constitution provides that cases submitted for decision before the Supreme Court must be resolved within two years. Before the Court of Appeals, such cases must be resolved within 1 year; and before the Regional Trial Court and Metropolitan Trial Court, such cases must be decided within a period of three months or ninety days.
ELEMENTS OF DERELICTION OF DUTY IN THE PROSECUTION OF OFFENSES: a. 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.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA b. That there is dereliction of the duties of his office, that is, knowing the commission of the
crime, he does not cause (a) the prosecution of the criminal (People vs. Rosales, G.R. no. 42648) or (b) knowing that a crime is about to be committed he tolerates its commission (if gift/promise is a consideration for his conduct: direct bribery) c. That the offender acts with malice and deliberate intent to favor the violator of the law.
* A public officer engaged in the prosecution of offenders shall maliciously tolerate the commission of crimes or refrain from prosecuting offenders or violators of the law. * This crime can only be committed by a public officer whose official duty is to prosecute offenders, that is, state prosecutors. Hence, those officers who are not duty bound to perform these obligations cannot commit this crime in the strict sense.
There must be a duty on the part of the public officer to prosecute or move for the prosecution of the offender. Note however, that a fiscal is under no compulsion to file an information based upon a complaint if he is not convinced that the evidence before him does not warrant filing an action in court
When a policeman tolerates the commission of a crime or otherwise refrains from apprehending the offender, such peace officer cannot be prosecuted for this crime but they can be prosecuted as: (1) (2) (3) An accessory to the crime committed by the principal in accordance with Article 19, paragraph 3; or He may become a fence if the crime committed is robbery or theft, in which case he violates the Anti-Fencing Law; or He may be held liable for violating the Anti-Graft and Corrupt Practices Act.
Illustration: The offender was caught for white slavery. The policeman allowed the offender to go free for some consideration. The policeman does not violate Article 208 but he becomes an accessory to the crime of white slavery. But in the crime of theft or robbery, where the policeman shared in the loot and allowed the offender to go free, he becomes a fence. Therefore, he is considered an offender under the Anti-Fencing Law. However, in distant provinces or municipalities where there are no municipal attorneys, the local chief of police is the prosecuting officer. If he is the one who tolerates the violations of laws or otherwise allows offenders to escape, he can be prosecuted under this article. This is also true in the case of a barangay chairman. They are supposed to prosecute violators of laws within their jurisdiction. If they do not do so, they can be prosecuted for this crime.
The crime must be proved first before an officer can be convicted of dereliction of duty 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 Article not applicable to revenue officers
* Relative to this crime under Article 208, consider the crime of qualified bribery. Among the amendments made by Republic Act No. 7659 on the Revised Penal Code is a new provision which reads as follows: Article. 211-A. Qualified Bribery If any public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an offender who has committed a crime punishable by Reclusion Perpetua and/or death in consideration of any offer, promise, gift, or present, he shall suffer the penalty for the offense which was not prosecuted. If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of death.
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b. Revealing any of the secrets of his client learned by him in his professional capacity
(damage not necessary)
c. Undertaking the defense of the opposing party of the 1st client and/or having received
confidential information from the latter and without the latters consent (damage not necessary)
Note: When the attorney acts with malicious abuse of his employment or inexcusable negligence or ignorance, there must be damage to his client. * Under the rules on evidence, communications made with prospective clients to a lawyer with a view to engaging his professional services are already privileged even though the client-lawyer relationship did not eventually materialize because the client cannot afford the fee being asked by the lawyer. The lawyer and his secretary or clerk cannot be examined thereon. * That this communication with a prospective client is considered privileged, implies that the same is confidential. Therefore, if the lawyer would reveal the same or otherwise accept a case from the adverse party, he would already be violating Article 209. Mere malicious breach without damage is not violative of Article 209; at most he will be liable administratively as a lawyer, e.g., suspension or disbarment under the Code of Professional Responsibility. Illustration:
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Note that only numbers 1, 2 and 3 must approximate malice. * A lawyer who had already undertaken the case of a client cannot later on shift to the opposing party. This cannot be done. * Under the circumstances, it is necessary that the confidential matters or information was confided to the lawyer in the latters professional capacity. * It is not the duty of the lawyer to give advice on the commission of a future crime. It is, therefore, not privileged in character. The lawyer is not bound by the mandate of privilege communication if he reports such commission of a future crime. It is only confidential information relating to crimes already committed that are covered by the crime of betrayal of trust if the lawyer should undertake the case of opposing party or otherwise divulge confidential information of a client. * Under the law on evidence on privileged communication, it is not only the lawyer who is protected by the matter of privilege but also the office staff like the secretary. * The nominal liability under this article may be constituted either from breach of professional duties in the handling of the case or it may arise out of the confidential relation between the lawyer and the client. BREACH OF PROFESSIONAL DUTY > Tardiness in the prosecution of the case for which reason the case was dismissed for being nonprosecuted; or tardiness on the part of the defense counsel leading to declaration of default and adverse judgment. > Professional duties Lawyer must appear on time. But the client must have suffered damage due to the breach of professional duty. Otherwise, the lawyer cannot be held liable. > If the prosecutor was tardy and the case was dismissed as non-prosecuted, but he filed a motion for reconsideration which was granted, and the case was continued, the lawyer is not liable, because the client did not suffer damage.
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c. That such offer or promise be accepted or gift/present received by the public officer (mere
agreement consummates the crime)
1. 2.
3.
with a view to committing some crime (delivery of consideration is not necessary) or in consideration of an execution of an act which does not constitute a crime, but the act must be unjust (delivery of consideration is necessary), or to refrain from doing something which is his official duty to do
d. That the act which the offender agrees to perform or which he executes be connected with the performance of his official duties
* Bribery refers to the act of the receiver and the act of the giver is corruption of public official.
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 Applicable also to assessors, arbitrators, appraisal and claim commissioners, experts or any other person performing public duties Cannot be frustrated, only attempted or consummated.
* Direct bribery may be committed only in the attempted and consummated stages because, in frustrated felony, the offender must have performed all the acts of execution which would produce the felony as a consequence. In direct bribery, it is possible only if the corruptor concurs with the offender. Once there is concurrence, the direct bribery is already consummated. In short, the offender could not have performed all the acts of execution to produce the felony without consummating the same. * Actually, you cannot have a giver unless there is one who is willing to receive and there cannot be a receiver unless there is one willing to give. So this crime requires two to commit. It cannot be said, therefore, that one has performed all the acts of execution which would produce the felony as a consequence but for reasons independent of the will, the crime was not committed. * It is now settled, therefore, that the crime of bribery and corruption of public officials cannot be committed in the frustrated stage because this requires two to commit and that means a meeting of the minds.
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Bribery exists when the gift is: a. voluntarily offered by a private person b. solicited by the public officer and voluntarily delivered by the private person c. solicited by the public officer but the private person delivers it out of fear of the consequences should the public officer perform his functions (here the crime by giver is not corruption of public officials due to involuntariness)
Actual receipt of the gift is not only if acts constitutes a crime necessary. An accepted offer or promise of a gift is sufficient. However, if the offer is not accepted, only the person offering the gift is liable for attempted corruption of a public officer The gift must have a value or capable of pecuniary estimation. It could be in the form of money, property or services If the act required of the public officer amounts to a crime and he commits it, he shall be liable for the penalty corresponding to the crime in addition to the penalty for bribery
* In direct bribery, consider whether the official act, which the public officer agreed to do, is a crime or not. * If it will amount to a crime, it is not necessary that the corruptor should deliver the consideration or the doing of the act. The moment there is a meeting of the minds, even without the delivery of the consideration, even without the public officer performing the act amounting to a crime, bribery is already committed on the part of the public officer. Corruption is already committed on the part of the supposed giver. The reason is that the agreement is a conspiracy involving the duty of a public officer. The mere agreement is a felony already. If the public officer commits the act which constitutes the crime, he, as well as the corruptor shall be liable also for that other crime. Illustrations: (1) If the corruptor offers a consideration to a custodian of a public record to remove certain files, the mere agreement, without delivery of the consideration, brings about the crime of direct bribery and corruption of public official. If the records were actually removed, both the public officer and the corruptor will in addition to the two felonies above, will also be liable for the crime committed, which is infidelity in the custody of the public records for which they shall be liable as principals; one as principal by inducement, the other as principal by direct participation. (2) A party litigant approached the courts stenographer and proposed the idea of altering the transcript of stenographic notes. The court stenographer agreed and he demanded P 2,000.00. Unknown to them, there were law enforcers who already had a tip that the court stenographer had been doing this before. So they were waiting for the chance to entrap him. They were apprehended and they said they have not done anything yet.
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The third type of bribery and prevaricacion (art 208) are similar offenses, both consisting of omissions to do an act required to be performed. In direct bribery however, a gift or promise is given in consideration of the omission. This is not necessary in prevaricacion
Distinction between direct bribery and indirect bribery Bribery is direct when a public officer is called upon to perform or refrain from performing an official act in exchange for the gift, present or consideration given to him. If he simply accepts a gift or present given to him by reason of his public position, the crime is indirect bribery. Bear in mind that the gift is given "by reason of his office", not "in consideration" thereof. So never use the term consideration. The public officer in Indirect bribery is not to perform any official act. * Note however that what may begin as an indirect bribery may actually ripen into direct bribery. Illustration: Without any understanding with the public officer, a taxi operator gave an expensive suiting material to a BLT registrar. Upon receipt by the BLT registrar of his valuable suiting material, he asked who the giver was. He found out that he is a taxi operator. As far as the giver is concerned, he is giving this by reason of the office or position of the public officer involved. It is just indirect bribery If the BLT registrar calls up his subordinates and said to take care of the taxis of the taxi operator so much so that the registration of the taxis is facilitated ahead of the others, what originally would have been indirect bribery becomes direct bribery.
Bribery (210) When the victim has committed a crime and gives money/gift to avoid arrest or prosecution. Victim parts with his money or property voluntarily.
Robbery (294) When the victim did not commit a crime and he is intimidated with arrest and/or prosecution to deprive him of his personal property. Victim is deprived of his money or property by force or intimidation.
* Robbery should be distinguished from Bribery where a law enforcer, say a policeman, extorts money from a person, employing intimidation and threatening to arrest the latter if he will not come across with
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* The Supreme Court has laid down the rule that for indirect bribery to be committed, the public officer must have performed an act of appropriating of the gift for himself, his family or employees. It is the act of appropriating that signifies acceptance. Merely delivering the gift to the public officer does not bring about the crime. Otherwise it would be very easy to remove a public officer: just deliver a gift to him.
There is no attempted or frustrated indirect bribery The principal distinction between direct and indirect bribery is that in the former, the officer agrees to perform or refrain from doing an act in consideration of the gift or promise. In the latter case, it is not necessary that the officer do any act. It is sufficient that he accepts the gift offered by reason of his office Public officers receiving gifts and private persons giving gifts on any occasion, including Christmas are liable under PD 46. The criminal penalty or imprisonment is distinct from the administrative penalty of suspension from the service
> He need not receive the gift or present because a mere offer or promise is sufficient.
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Before the bribe-giver may be dropped from the information, he has to be charged first with the receiver. Before trial, prosecutor may move for dropping bribe-giver from information and be granted immunity. But first, five conditions have to be met: (1) (2) (3) (4) (5) Information must refer to consummated bribery; Information is necessary for the proper conviction of the public officer involved; That the information or testimony to be given is not yet in the possession of the government or known to the government; That the information can be corroborated in its material points; That the informant has not been convicted previously for any crime involving moral turpitude.
* These conditions are analogous to the conditions under the State Witness Rule under Criminal Procedure. * The immunity granted the bribe-giver is limited only to the illegal transaction where the informant gave voluntarily the testimony. If there were other transactions where the informant also participated, he is not immune from prosecution. The immunity in one transaction does not extend to other transactions. * The immunity attaches only if the information given turns out to be true and correct. If the same is false, the public officer may even file criminal and civil actions against the informant for perjury and the immunity under the decree will not protect him.
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(3)
(4)
(5)
(6)
While the crime appears to be malum prohibitum, Republic Act No. 7080 provides that in the imposition of penalties, the degree of participation and the attendance of mitigating and aggravating circumstances shall be considered by the court.
a.
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d.
Spouse or any relative, by consanguinity or affinity, within the 3 rd 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 govt (Sec. 5). 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 govt along the same line of business; 2. Any transaction, contract or application already existing or pending at the time of such assumption of public office; 3. 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; 4. Any act lawfully performed an official capacity or in the exercise of a profession. e. 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
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f. Any public officer who shall fail to file a true, detailed and sworn statement of assets
and liabilities 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).
III.
Prima Facie Evidence of and Dismissal due to unexplained Wealth (Sec. 8) 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. 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. 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 nonofficial character by any public official when such activities entail expenses evidently out of proportion to legitimate income.
III. Competent court: All prosecutions under this Act shall be within the original jurisdiction of the Sandiganbayan (Sec. 10). * In case none of the principal accused are occupying positions corresponding to salary grade 27 or higher; PNP officers occupying the rank of superintendent or higher of their equivalent, exclusive jurisdiction over the case shall be vested in the proper Regional Trial Court, Metropolitan Trial Court and Municipal Circuit Trial Court as the case may be. The decision of the court in these cases shall be appealable to the Sandiganbayan which exercises exclusive appellate jurisdiction over them. IV. Prescription of offenses: all offenses punishable under this Act shall prescribe in 15 years (Sec. 11). V. 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). * Once the case is filed with the Sandiganbayan, by express provision of the law, it becomes incumbent upon the court to place under preventive suspension the public officer who stands accused before it. However, before the order of suspension is issued, it is necessary that a pre-suspension hearing be held by the court wherein the accused is afforded the opportunity to challenge the validity of the information filed against him. Such right of the accused to challenge the validity of the information covers (a) the right to challenge the sufficiency of the recitals of the information vis--vis the essential elements of the offense as defined by substantive law; (b) the right to challenge the validity of the criminal proceedings leading to the filing of the information, i.e., that he has not been afforded the right of due preliminary investigation, or that the acts for which he stands charged do not constitute a violation of the provisions of R.A. No. 3019, which would warrant his mandatory suspension from office under Section 13 of this Act; and (c) the right to raise the issue that the information can be quashed under any of the grounds provided in Section 2, Rule 117 of the Rules of Court (People vs. Albano, 163 SCRA 511). * Once the information is found to be sufficient in form and substance, the court must issue the suspension order as a matter of course and there are no ifs and buts about it (Bayot vs. Sandiganbayan, et al., 128 SCRA 383). * Preventive suspension is resorted to in order to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing
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FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS Article 213 FRAUDS AGAINST PUBLIC TREASURY
ELEMENTS: (par. 1) a. That the offender be a public officer. b. That he should have taken advantage of his office, that is, he intervened in the transaction in his official capacity. c. 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. d. That the accused had intent to defraud the government.
Notes: > 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
* The essence of this crime is making the government pay for something not received or making it pay more than what is due. It is also committed by refunding more than the amount which should properly be refunded. This occurs usually in cases where a public officer whose official duty is to procure supplies for the government or enter into contract for government transactions, connives with the said supplier with the intention to defraud the government. Also when certain supplies for the government are purchased for the high price but its quantity or quality is low. * Not all frauds will constitute this crime. There must be no fixed allocation or amount on the matter acted upon by the public officer. * The allocation or outlay was made the basis of fraudulent quotations made by the public officer involved. For example, there was a need to put some additional lighting along a street and no one knows how much it will cost. An officer was asked to canvass the cost but he connived with the seller of light bulbs, pricing each light bulb at P550.00 instead of the actual price of P500.00. This is a case of fraud against public treasury. If there is a fixed outlay of P20,000.00 for the lighting apparatus needed and the public officer connived with the seller so that although allocation was made a lesser number was asked to be delivered, or of an inferior quality, or secondhand. In this case there is no fraud against the public treasury because there is a fixed allocation. The fraud is in the implementation of procurement. That would constitute the crime of other fraud in Article 214, which is in the nature of swindling or estafa. * Be sure to determine whether fraud is against public treasury or one under Article 214.
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* This can only be committed principally by a public officer whose official duty is to collect taxes, license fees, import duties and other dues payable to the government. * Not any public officer can commit this crime. Otherwise, it is estafa. Fixers cannot commit this crime unless he conspires with the public officer authorized to make the collection. * The essence of the crime is not misappropriation of any of the amounts but the improper making of the collection which would prejudice the accounting of collected amounts by the government.
* Mere demand of a larger or different amount is sufficient to consummate the crime. The essence is the improper collection (damage to govt is not required)
On the first form of illegal exaction In this form, mere demand will consummate the crime, even if the taxpayer shall refuse to come across with the amount being demanded. That will not affect the consummation of the crime. > In the demand, it is not necessary that the amount being demanded is bigger than what is payable to the government. The amount being demanded maybe less than the amount due the government.
* 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 * May be complexed with malversation
* Note that this is often committed with malversation or estafa because when a public officer shall demand an amount different from what the law provides, it can be expected that such public officer will not turn over his collection to the government. Illustrations: (1) A taxpayer goes to the local municipal treasurer to pay real estate taxes on his land. Actually, what is due the government is P400.00 only but the municipal treasurer demanded P500.00. By that demand alone, the crime of illegal exaction is already committed even though the taxpayer does not pay the P500.00. Suppose the taxpayer came across with P500.00. But the municipal treasurer, thinking that he would abstract the P100.00, issued a receipt for only P400.00. The taxpayer would naturally ask the municipal treasurer why the receipt was only for P400.00. The treasurer answered that the P100.00 is supposed to be for documentary stamps. The taxpayer left. He has a receipt for P400.00. The municipal treasurer turned over to the government coffers P400.00 because that is due the government and pocketed the P100.00. The mere fact that there was a demand for an amount different from what is due the government, the public officer already committed the crime of illegal exaction. On the P100.00 which the public officer pocketed, will it be malversation or estafa? In the example given, the public officer did not include in the official receipt the P100.00 and, therefore, it did not become part of the public funds. It remained to be private. It is the taxpayer
(2)
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Should the falsification be complexed with the malversation? As far as the crime of illegal exaction is concerned, it will be the subject of separate accusation because there, the mere demand regardless of whether the taxpayer will pay or not, will already consummate the crime of illegal exaction. It is the breach of trust by a public officer entrusted to make the collection which is penalized under such article. The falsification or alteration made on the duplicate can not be said as a means to commit malversation. At most, the duplicate was altered in order to conceal the malversation. So it cannot be complexed with the malversation. It cannot also be said that the falsification is a necessary means to commit the malversation because the public officer can misappropriate the P100.00 without any falsification. All that he has to do is to get the excess of P100.00 and misappropriate it. So the falsification is a separate accusation. However, illegal exaction may be complexed with malversation because illegal exaction is a necessary means to be able to collect the P100.00 excess which was malversed. In this crime, pay attention to whether the offender is the one charged with the collection of the tax, license or impost subject of the misappropriation. If he is not the one authorized by disposition to do the collection, the crime of illegal exaction is not committed. If it did not give rise to the crime of illegal exaction, the funds collected may not have become part of the public funds. If it had not become part of the public funds, or had not become impressed with being part of the public funds, it cannot be the subject of malversation. It will give rise to estafa or theft as the case may be. (3) The Municipal Treasurer demanded P500.00 when only P400.00 was due. He issued the receipt at P400.00 and explained to taxpayer that the P100 was for documentary stamps. The Municipal Treasurer placed the entire P500.00 in the vault of the office. When he needed money, he took the P100.00 and spent it. The following crimes were committed: (a) (b) (c) Illegal exaction for demanding a different amount; Estafa for deceiving the taxpayer; and Malversation for getting the P100.00 from the vault.
Although the excess P100.00 was not covered by the Official Receipt, it was commingled with the other public funds in the vault; hence, it became part of public funds and subsequent extraction thereof constitutes malversation. Note that numbers 1 and 2 are complexed as illegal exaction with estafa, while in number 3, malversation is a distinct offense.
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Officers and employees of the BIR or Customs are not covered by the article. The NIRC or Administrative Code is the applicable law
>These officers are authorized to make impositions and to enter into compromises. Because of this discretion, their demanding or collecting different from what is necessary is legal
c. That he commits any of the frauds or deceits enumerated in art. 315 to 318. (estafa;
swindling) Note: RTC has jurisdiction over the offense because the principal penalty is disqualification
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c. Guardians and executors with respect to property belonging to their wards or the
estate. Notes: > Actual fraud is not necessary. * 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 party which he represents * The mere violation of the prohibition is already punished even if no actual fraud occurs because of the possibility that fraud may be committed or that the officer may place his own interest above that of the government or party he represents. (U. S. vs. Udarbe, 28 Phil. 383)
Section 14, Article VI of the Constitution No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the government for his pecuniary benefit or where he may be called upon to act on account of his office. Section 13, Article VII of the Constitution The President, Vice-President, the Members of the Cabinet and their deputies or assistant shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
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MALVERSATION OF PUBLIC FUNDS OR PROPERTY Article 217 MALVERSATION OF PUBLIC FUNDS OR PROPERTY
ELEMENTS COMMON TO ALL ACTS MALVERSATION OF PUBLIC FUNDS OR PROPERTY : a. That the offender be a public officer (or private person if entrusted with public funds or connived with public officers)
b. That he had the custody or control of funds or property (if not accountable for the funds,
theft or qualified theft)
c. That those funds or property were public funds or property (even if private funds if
attached, seized, deposited or commingled with public funds) d. That he: 1. 2. Appropriated the funds or property Took or misappropriated them
3.
Consented or, through abandonment or negligence, permitted any other person to take such public funds or property. (it is not necessary that the offender profited thereby. His being remiss in the duty of safekeeping public funds violates the trust reposed) Concept of Malversation It consists in the misappropriation or conversion of public funds or property to ones personal use or knowingly, or through abandonment or negligence allowing other to use or appropriate the same. The offender is made liable because of the nature of his duties to take care of the funds or property entrusted to him with the diligence of a good father of a family. He is accountable by virtue of the nature of his office to account for funds or properties that come to his possession. If he is not accountable for the funds or properties and he misappropriates the same, the crime will not be malversation but estafa under Article 315.
* This crime is predicated on the relationship of the offender to the property or funds involved. The offender must be accountable for the property misappropriated. If the fund or property, though public in character is the responsibility of another officer, malversation is not committed unless there is conspiracy.
* In determining whether the offender is liable for malversation, it is the nature of the duties of the public officer that controls. While the name of the office is important, what is controlling is whether in performing his duties as a public officer, he has to account or is required by the nature of the performance of a duty, to render an account on the money or property that came into his possession.
* It is not necessary that the offender profited because somebody else may have misappropriated the funds in question for as long as the accountable officer was remiss in his duty of safekeeping public funds or property. He is liable for malversation if such funds were lost or otherwise misappropriated by another.
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In determining whether the offender is a public officer, what is controlling is the nature of his office and not the designation
* The offender, to commit malversation, must be accountable for the funds or property misappropriated by him. If he is not the one accountable but somebody else, the crime committed is theft. It will be qualified theft if there is abuse of confidence. * Accountable officer does not refer only to cashier, disbursing officers or property custodian. Any public officer having custody of public funds or property for which he is accountable can commit the crime of malversation if he would misappropriate such fund or property or allow others to do so.
The funds or property must be received in an official capacity. Otherwise, the crime committed is estafa
* When private property is attached or seized by public authority and the public officer accountable therefor misappropriates the same, malversation is committed also. Illustration: If a sheriff levied the property of the defendants and absconded with it, he is not liable of qualified theft but of malversation even though the property belonged to a private person. The seizure of the property or fund impressed it with the character of being part of the public funds it being in custodia legis. For as long as the public officer is the one accountable for the fund or property that was misappropriated, he can be liable for the crime of malversation. Absent such relation, the crime could be theft, simple or qualified.
Estafa It is usually committed by a private individual Funds or property of misappropriation are privately owned. The offender appropriates personally the funds or property.
Malversation Committed by accountable public officers The object is public fund or property. Personal appropriation is not indispensable because allowing others to commit the misappropriation is also malversation.
When a public officer has official custody or the duty to collect or receive funds due the government, or the obligation to account for them, his misappropriation of the same constitutes malversation
* Note that the moment any money is commingled with the public fund even if not due the government, it becomes impressed with the characteristic of being part of public funds. Once they are commingled, you do not know anymore which belong to the government and which belong to the private persons. So that a public vault or safe should not be used to hold any fund other that what is due to the government.
In malversation thru negligence, the negligence of the accountable public officer must be positively and clearly shown to be inexcusable, approximating fraud or malice
> Under jurisprudence, when the public officer leaves his post without locking his drawer, there is negligence. Thus, he is liable for the loss.
The measure of negligence to be observed is the standard of care commensurate with the occasion When malversation is not committed through negligence, lack of criminal intent or good faith is a defense 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
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* Payment of the amount misappropriated or restitution of property misappropriated does not erase criminal liability but only civil liability.
There is also no malversation when the accountable officer is obliged to go out of his office and borrow the amount corresponding to the shortage and later, the missing amount is found in an unaccustomed place A person whose negligence made possible the commission of malversation by another can be held liable as a principal by indispensable cooperation
* It is not necessary that the accountable public officer should actually misappropriate the fund or property involved. It is enough that he has violated the trust reposed on him in connection with the property.
* Note that damage on the part of the government is not considered an essential element. It is enough that the proprietary rights of the government over the funds have been disturbed through breach of trust.
* The grant of loans through the vale system is a clear case of an accountable officer consenting to the improper or unauthorized use of public funds by other persons, which is punishable by law. To tolerate such a practice is to give a license to every disbursing officer to conduct a lending operation with the use of public funds. There is no law or regulation allowing accountable officers to extend loans to anyone against the vales or chits given in exchange by the borrowers. (Meneses vs. Sandiganbayan) A private person may also commit malversation under the following situations:
(1) (2) (3) (4) Conspiracy with a public officer in committing malversation; When he has become an accomplice or accessory to a public officer who commits malversation; When the private person is made the custodian in whatever capacity of public funds or property, whether belonging to national or local government, and he misappropriates the same; When he is constituted as the depositary or administrator of funds or property seized or attached by public authority even though said funds or property belong to a private individual.
* Technical malversation is not included in the crime of malversation. In malversation, the offender misappropriates public funds or property for his own personal use, or allows any other person to take such
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1. cashiers 2. storekeepers 3. warehousemen and 4. those who by the nature of their position become custodian or public funds or property.
Note: Demand and misappropriation are not necessary
* It is sufficient that there is a law or regulation requiring him to render an account. It is the failure to follow the requirement of the law that is made punishable. It is not necessary that the offender prevent the situation of the crime being committed because of the failure of the accountable officer to render an account.
Article 219 FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY
ELEMENTS: a. That the offender is a public officer. b. That he must be an accountable officer for public funds or property. c. 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.
Who can commit this crime? A responsible public officer, not necessarily an accountable one, who leaves the country without first securing clearance from the Commission on Audit.
Note: The act of leaving the Philippines must be unauthorized or not permitted by law
* Mere leaving without securing clearance constitutes violation of the Revised Penal Code. It is not necessary that they really misappropriated public funds.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA c. That such public fund or property has been appropriated by law or ordinance (without this,
it is simple malversation even if applied to other public purpose). d. That he applies the same to a public use other than for which such fund or property has been appropriated by law or ordinance.
* The term TECHNICAL MALVERSATION is used because in this crime, the fund or property involved is already appropriated or earmarked for a certain public purpose. * The offender is entrusted with such fund or property only to administer or apply the same to the public purpose for which it was appropriated by law or ordinance. Instead of applying it to the public purpose to which the fund or property was already appropriated by law, the public officer applied it to another purpose.
To distinguish this article with Art 217, just remember that in illegal use of public funds or property, the offender does not derive any personal gain, the funds are merely devoted to some other public use Absence of damage is only a mitigating circumstance
* Since damage is not an element of malversation, even though the application made proved to be more beneficial to public interest than the original purpose for which the amount or property was appropriated by law, the public officer involved is still liable for technical malversation. * If public funds were not yet appropriated by law or ordinance, and this was applied to a public purpose by the custodian thereof, the crime is plain and simple malversation, not technical malversation. If the funds had been appropriated for a particular public purpose, but the same was applied to private purpose, the crime committed is simple malversation only. Illustration: The office lacked bond papers. What the government cashier did was to send the janitor, get some money from his collection, told the janitor to buy bond paper so that the office will have something to use. The amount involved maybe immaterial but the cashier commits malversation pure and simple. * This crime can also be committed by a private person. Illustration: A certain road is to be cemented. Bags of cement were already being unloaded at the side. But then, rain began to fall so the supervisor of the road building went to a certain house with a garage, asked the owner if he could possibly deposit the bags of cement in his garage to prevent the same from being wet. The owner of the house, Olive, agreed. So the bags of cement were transferred to the garage of the private person. After the public officer had left, and the workers had left because it is not possible to do the cementing, the owner of the garage started using some of the cement in paving his own garage. The crime of technical malversation is also committed. * Note that when a private person is constituted as the custodian in whatever capacity, of public funds or property, and he misappropriates the same, the crime of malversation is also committed. See Article 222. Illustration: The payroll money for a government infrastructure project on the way to the site of the project, the officers bringing the money were ambushed. They were all wounded. One of them, however, was able to get away from the scene of the ambush until he reached a certain house. He told the occupant of the house to safeguard the amount because it is the payroll money of the government laborers of a particular project. The occupant of the house accepted the money for his own use. The crime is not theft but malversation as long as he knew that what was entrusted in his custody is public fund or property.
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Note: Penalty is based on value of funds/property to be delivered Article 222 PERSONS WHO MAY BE HELD LIABLE UNDER ARTS 217 TO 221
a. Private individual who, in any capacity, have charge of any national, provincial or municipal funds, revenue, or property b. Administrator or depositary of funds or property that has been attached, seized or deposited by public authority, even if owned by a private individual Sheriffs and receivers fall under the term administrator A judicial administrator in charge of settling the estate of the deceased is not covered by the article
* Here, the funds or property belong to private individuals, but they are considered public funds or property if they come to the possession of the public officer because of 1) a writ of attachment; or 2) if they are seized by virtue of a search warrant. Or 3) if they are ordered deposited pending determination of ownership in the administrative or judicial proceedings. * Private individuals may also be liable for malversation if they act as conspirators in the commission of the crime.
DETENTION PRISONER: refers to a person in legal custody, arrested for and charged with some crime or public offense 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 constitutive 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
* A municipal mayor who utilized the prisoners services for domestic chores in his house, including using him as a cook is liable for faithlessness in the custody of prisoner (Art. 223) even though the convict may not have fled, in as much as the prisoners leaving the prison was effected through him. (People vs. Evangelista, C.A. 38 O.G. 158).
* Not every error is negligence under this article. To be liable, the negligence must be notorious and apparent. The laxity must be definite and must seriously suggest a deliberate non-performance of a duty. * The negligence which is punishable however is not such definite laxity at all but that which amounts to deliberate non-performance of the jailer or the guard. So that if a policemen on guard duty unlocked the door of the jail to let a detention prisoner go out so he can clean the premises, but on the latters third trip to a nearby faucet, he walked behind the police headquarters climbed over the wall and escape, the crime is not committed. (People vs. Solis, C.A. 43 O.G. 580). The fact that the public officer recaptured the prisoner who had escaped from his custody does not afford 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 cooperating with the offender).
Article 225 ESCAPE OF PRISONERS UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER
ELEMENTS: a. That the offender is a private person (note: must be on duty) b. That the conveyance or custody of a prisoner or person under arrest is confined to him. c. That the prisoner or person under arrest escapes. d. 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
* The offender under this article is not the one who arrested the escaping prisoner but one who agreed to
have the custody or charge of the prisoner or person under arrest. ORTEGA NOTES:
The crime is infidelity in the custody of prisoners if the offender involved is the custodian of the prisoner. If the offender who aided or consented to the prisoners escaping from confinement, whether the prisoner is a convict or a detention prisoner, is not the custodian, the crime is delivering prisoners from jail under Article156. The crime of infidelity in the custody of prisoners can be committed only by the custodian of the prisoner. If the jail guard who allowed the prisoner to escape is already off-duty at that time and he is no longer the custodian of the prisoner, the crime committed by him is delivering prisoners from jail.
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Question & Answer If a private person approached the custodian of the prisoner and for a certain consideration, told the custodian to leave the door of the cell unlocked for the prisoner to escape. What crime had been committed? It is not infidelity in the custody of prisoners because as far as the private person is concerned, this crime is delivering prisoners from jail. The infidelity is only committed by the custodian. This crime can be committed also by a private person if the custody of the prisoner has been confided to a private person. Illustration: A policeman escorted a prisoner to court. After the court hearing, this policeman was shot at with a view to liberate the prisoner from his custody. The policeman fought the attacker but he was fatally wounded. When he could no longer control the prisoner, he went to a nearby house, talked to the head of the family of that house and asked him if he could give the custody of the prisoner to him. He said yes. After the prisoner was handcuffed in his hands, the policeman expired. Thereafter, the head of the family of that private house asked the prisoner if he could afford to give something so that he would allow him to go. The prisoner said, Yes, if you would allow me to leave, you can come with me and I will give the money to you. This private persons went with the prisoner and when the money was given, he allowed him to go. What crime/s had been committed? Under Article 225, the crime can be committed by a private person to whom the custody of a prisoner has been confided. Where such private person, while performing a private function by virtue of a provision of law, shall accept any consideration or gift for the non-performance of a duty confided to him, Bribery is also committed. So the crime committed by him is infidelity in the custody of prisoners and bribery. If the crime is delivering prisoners from jail, bribery is just a means, under Article 156, that would call for the imposition of a heavier penalty, but not a separate charge of bribery under Article 156. But under Article 225 in infidelity, what is basically punished is the breach of trust because the offender is the custodian. For that, the crime is infidelity. If he violates the trust because of some consideration, bribery is also committed. A higher degree of vigilance is required. Failure to do so will render the custodian liable. The prevailing ruling is against laxity in the handling of prisoners. Illustration: A prison guard accompanied the prisoner in the toilet. While answering the call of nature, police officer waiting there, until the prisoner escaped. Police officer was accused of infidelity. There is no criminal liability because it does not constitute negligence. Negligence contemplated here refers to deliberate abandonment of duty. Note, however, that according to a recent Supreme Court ruling, failure to accompany lady prisoner in the comfort room is a case of negligence and therefore the custodian is liable for infidelity in the custody of prisoner. Prison guard should not go to any other place not officially called for. This is a case of infidelity in the custody of prisoner through negligence under Article 224.
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The document must be complete and one by which a right could be established or an obligation could be extinguished Books, periodicals, pamphlets etc are not documents Papers would include checks, promissory notes and paper money
> Removal of a document presupposes unlawful appropriation of the official document. > Destruction means to render the document useless. Its nature to prove the existence of a fact is lost such that it cannot anymore prove the probability or improbability of a fact in issue. > Concealment on the other hand means to make it appear that the document is not available. A post office official who retained the mail without forwarding the letters to their destination is guilty of infidelity in the custody of papers Removal of a document or paper must be for an illicit purpose.
* If the removal of the document is for a lawful purpose and that is, to secure the same from imminent danger or loss, there is no crime committed under the law, (Kataniag vs. People, 74 Phil. 45). There is illicit purpose when the intention of the offender is to: a. tamper with it b. to profit by it c. to commit any act constituting a breech of trust in the official thereof
* The act of removal, destruction or concealment should be coupled with criminal intent or malice (Manzanaris vs. Sandiganbayan, et al., G.R. No. 64750, Jan. 30, 1984). 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
* Removal of public records by the custodian does not require that the record be brought out of the premises where it is kept. It is enough that the record be removed from the place where it should be and transferred to another place where it is not supposed to be kept. If damage is caused to the public service, the public officer is criminally liable for infidelity in the custody of official documents.
Infidelity in the custody of documents through destruction or concealment does not require proof of an illicit purpose
Where in case for bribery or corruption, the monetary considerations was marked as exhibits, such considerations acquires the nature of a document such that if the same would be spent by the custodian the crime is not malversation but Infidelity in the custody of public records, because the money adduced as exhibits partake the nature of a document and not as money. Although such
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Delivering the document to the wrong party is infidelity in the custody thereof The damage may either be great or small
* Damage to public interest is necessary. However, material damage is not necessary. Although there is no material damage caused, mere delay in rendering public service is considered damage.
Distinction between infidelity in the custody of public document, estafa and malicious mischief In infidelity in the custody of public document, the offender is the custodian of the official document removed or concealed. In estafa, the offender is not the custodian of the document removed or concealed. In malicious mischief, the offender purposely destroyed and damaged the property/document.
* If the official document is sealed or otherwise placed in an official envelope, the element of damage is not required. The mere breaking of the seal or the mere opening of the document would already bring about infidelity even though no damage has been suffered by anyone or by the public at large. The offender does not have to misappropriate the same. Just trying to discover or look what is inside is infidelity already. * A crime is already committed regardless of whether the contents of the document are secret or private. It is enough that it is entrusted to him in a sealed form or in a closed envelope and he broke the seal or opened the envelop. Public trust is already violated if he managed to look into the contents of the document. Distinction between infidelity and theft There is infidelity if the offender opened the letter but did not take the same. There is theft if there is intent to gain when the offender took the money. * Note that the document must be complete in legal sense. If the writings are mere form, there is no crime. Illustration: As regard the payroll, which has not been signed by the Mayor, no infidelity is committed because the document is not yet a payroll in the legal sense since the document has not been signed yet. * In "breaking of seal", the word "breaking" should not be given a literal meaning. Even if actually, the seal was not broken, because the custodian managed to open the parcel without breaking the seal.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 228 OPENING OF CLOSED DOCUMENTS
ELEMENTS: a. That the offender is a public officer. b. That any closed papers, documents, or objects are entrusted to his custody. c. That he opens or permits to be opened said closed papers, documents or objects.
d. That he does not have proper authority. Note: Damage also not necessary
* In Article 227, the mere breaking of the seal is what is made punishable while in Article 228, the mere opening of closed documents is enough to hold the offender criminally liable. The breaking of the seal or the opening of the closed document must be done without lawful authority or order from competent authority. In both offenses, damage to the public interest is not required.
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Note: Judgment should have been rendered in a hearing and issued within proper jurisdiction with all legal solemnities required
* The term execute as found in the law does not only means performance of an act since the judgment, decision or order may also direct the non-performance of an act. * The article does not apply to the members of Congress.
Article 232 DISOBEDIENCE TO ORDER OF SUPERIOR OFFICER WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER
ELEMENTS: a. That the offender is a public officer.
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c. That he has for any reason suspended the execution of such order. d. That his superior disapproves the suspension of the execution of the order. e. That the offender disobeys his superior despite the disapproval of the suspension.
Note: A public officer is not liable if the order of the superior is illegal
* What is contemplated here is a situation where the subordinate has some doubts regarding the legality of the order. Hence, he is afforded an opportunity to suspend the execution of the order, so as to give him time to further study the same. He commits no crime for doing this act. However, if he continues to suspend the execution of the order notwithstanding the disapproval by his superior of the stay of the execution, such refusal on his part already constitutes a crime punishable under this article.
* Damage is essential whether great or small. But the penalty is affected by the seriousness of the damage. Note that the refusal must be done with malice. Demand is necessary
* The situation contemplated herein may refer to the administration of justice before the case is filed in court. Competent authority may refer to persons in authority who are charged by the law to help in the administration of justice. The term may refer to police authorities. However, when a case under investigation reaches the court, the remedy may not be limited to incurring criminal liability under this article because the refusal may already be punished as direct or indirect contempt of court.
* This is a crime, which a policeman may commit when, being subpoenaed to appear in court in connection with a crime investigated by him but because of some arrangement with the offenders, the policeman does not appear in court anymore to testify against the offenders. He tried to assail the subpoena so that ultimately the case would be dismissed. It was already held that the policeman could be prosecuted under this crime of refusal of assistance and not that of dereliction of duty.
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Note: Even if the person did not run for the office on his own will as the Constitution provides that every citizen may be required to render service
b. That he has under charge a prisoner or detention prisoner (otherwise the crime is
physical injuries) c. That he maltreats such prisoner in either of the following manners: 1. By overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge either by the imposition of punishments not authorized by the regulations, or by inflicting such punishments (those authorized) in a cruel and humiliating manner, or
2. by maltreating such prisoner to extort a confession or to obtain some information from the prisoner.
* The maltreatment does not really require physical injuries. Any kind of punishment not authorized or though authorized if executed in excess of the prescribed degree. > But if as a result of the maltreatment, physical injuries were caused to the prisoner, a separate crime for the physical injuries shall be filed. You do not complex the crime of physical injuries with the maltreatment because the way Article 235 is worded, it prohibits the complexing of the crime. * If the maltreatment was done in order to extort confession, therefore, the constitutional right of the prisoner is further violated. The penalty is qualified to the next higher degree.
The public officer must have actual charge of the prisoner in order to be held liable
* If the public officer is not the custodian of the prisoner, and he manhandles the latter, the crime is physical injuries.
* If a Barangay Captain maltreats a person after the latters arrest but before confinement, the offense is not maltreatment but physical injuries. The victim must actually be confined either as a convict or a detention prisoner for Art. 235 to apply. (People vs. Baring, et al., 37 O.G. 1366). To be considered a detention prisoner, the person arrested must be placed in jail even for just a short while
* The offended party here must be a prisoner in the legal sense. The mere fact that a private citizen had been apprehended or arrested by a law enforcer does not constitute him a prisoner. To be a prisoner, he must have been booked and incarcerated no matter how short it is. Illustration: A certain snatcher was arrested by a law enforcer, brought to the police precinct, turned over to the custodian of that police precinct. Every time a policeman entered the police precinct, he would ask, What
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Offender may also be held liable for physical injuries or damage caused
* The crime is committed only if the public officer has lost every right to the office because there are offices which require the officer to continue serving as such properly relieved. The law is intended to put an end to the principle of hold over.
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Abandonment of Office or Position Dereliction of Duty (208) (238) There is actual abandonment through Public officer does not abandon his office resignation to evade the discharge of but merely fails to prosecute a violation of duties. the law.
Note: Legislative officers are not liable for usurpation of executive functions
Note: A mayor is guilty under this article when he investigates a case while a justice of the peace is in the municipality
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 242 DISOBEYING REQUEST FOR DISQUALIFICATION
ELEMENTS: a. That the offender is a public officer. b. c. d. That a proceeding is pending before such public officer. That there is a question brought before the proper authority regarding his jurisdiction, which is not yet decided. That he has been lawfully required to refrain from continuing the proceeding.
e. That he continues the proceeding. * Even if the jurisdiction of the offender is later upheld or sustained, he is still liable because what is in issue is not the legality of his jurisdiction, but whether he obeyed or disobeyed the temporary restraining order issued by the higher authority.
Note: Legislative or judicial officers are not liable under this article
Recommending, knowing that the person recommended is not qualified is not a crime
* The word nominate is not the same as recommend. To nominate is to guarantee to the appointing power that the person nominated has all the qualifications to the office. Recommendation on the other hand does not make any guarantee as to the legal fitness of the candidate to public office. There must be a law providing for the qualifications of a person to be nominated or appointed to a public office
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The mother of the person in the custody of the public officer is not included
* This crime cannot be committed if the warden is a woman and the prisoner is a man. Men have no chastity. * If the warden is also a woman but is a lesbian, it is submitted that this crime could be committed, as the law does not require that the custodian be a man but requires that the offended be a woman.
Solicit: means to propose earnestly and persistently something unchaste and immoral to a woman
* The word solicit means to demand earnestly. In this case, the demand is for sexual favor. It must be immoral or indecent and done by the public officer taking advantage of his position as one who can help by rendering a favorable decision or unwarranted benefits, advantage or preference to a person under his custody. The crime is consummated by mere proposal
* It is not necessarily for the offended party to surrender her virtue to consummate the crime. > Mere proposal is sufficient to consummate the crime.
* Even if the woman may have lied with the hearing officer or to the public officer and acceded to him, that does not change the crime because the crime seeks to penalize the taking advantage of official duties. * It is immaterial whether the woman did not agree or agreed to the solicitation. If the woman did not agree and the public officer involved pushed through with the advances, attempted rape may have been committed. * Legally, a prisoner is an accountability of the government. So the custodian is not supposed to interfere. Even if the prisoner may like it, he is not supposed to do that. Otherwise, abuse against chastity is committed. * If he forced himself against the will of the woman, another crime is committed, that is, rape aside from abuse against chastity. * You cannot consider the abuse against chastity as absorbed in the rape because the basis of penalizing the acts is different from each other.
Republic Act No. 7877 (Anti-Sexual Harassment Act) Sigma Rho ( ) reviewers
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* A, an illegitimate son of B, who killed the legitimate father of the latter, is not guilty of Parricide because in case of other ascendants (grandparents, great grandparents, etc.), the relationship with the killer must be legitimate. The same is true with other descendants that is, grandchildren, great grandchildren, etc.
* The child should not be less than 3 days old. Otherwise, the offense is infanticide
* That the mother killed her child in order to conceal her dishonor is not mitigating. This is immaterial to the crime of parricide, unlike in the case of infanticide. If the child is less than three days old when killed, the crime is infanticide and intent to conceal her dishonor is considered mitigating.
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* If the accused fails to establish the circumstances called for in Article 247, he/she will be guilty of Parricide and Murder or Homicide if the victims were killed. * Not necessary that the parent be legitimate * Article applies only when the daughter is single * SURPRISE: means to come upon suddenly or unexpectedly * Art 247 is applicable when the accused did not see his spouse in the act sexual intercourse with another person. However, it is enough that circumstances reasonably show that the carnal act is being committed or has been committed * It is not necessary that the spouse actually saw the sexual intercourse being committed. It is enough that he/she surprised them under such circumstances that no other reasonable conclusion can be inferred but that a carnal act was being performed or has just been committed.
* The article does not apply where the wife was not surprised in flagrant adultery but was being abused by a man as in this case there will be defense of relation. * If the offender surprised a couple in sexual intercourse, and believing the woman to be his wife, killed them, this article may be applied if the mistake of facts is proved. * The benefits of this article do not apply to the person who consented to the infidelity of his spouse or who facilitated the prostitution of his wife.
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* IMMEDIATELY THEREAFTER: means that the discovery, escape, pursuit and the killing must all form parts of one continuous act
* The phrase immediately thereafter has been interpreted to mean that between the surprising and the killing of the inflicting of the physical injury, there should be no break of time. In other words, it must be a continuous process. * If there was already a break of time between the sexual act and the killing or inflicting of the injury, the law presupposes that the offender regained his reason and therefore, the article will not apply anymore.
* The killing must be the direct by-product of the rage of the accused
* Article 247 does not provide that the victim is to be killed instantly by the accused after surprising his spouse in the act of intercourse. What is required is that the killing is the proximate result of the outrage overwhelming the accused upon the discovery of the infidelity of his spouse. The killing should have been actually motivated by the same blind impulse.
* No criminal liability is incurred when less serious or slight physical injuries are inflicted. Moreover, in case third persons caught in the crossfire suffer physical injuries, the accused is not liable. The principle that one is liable for the consequences of his felonious act is not applicable because he is not committing a felony
* In the case of People v. Abarca, 153 SCRA 735, two persons suffered physical injuries as they were caught in the crossfire when the accused shot the victim. A complex crime of double frustrated murder was not committed as the accused did not have the intent to kill the two victims. Here, the accused did not commit murder when he fired at the paramour of his wife. Inflicting death under exceptional circumstances is not murder. The accused was held liable for negligence under the first part, second paragraph of Article 365, that is, less serious physical injuries through simple negligence. No aberratio ictus because he was acting lawfully. * A person who acts under Article 247 is not committing a crime. Since this is merely an exempting circumstance, the accused must first be charged with: (1) (2) (3) (4) Parricide if the spouse is killed; Murder or homicide depending on how the killing was done insofar as the paramour or the mistress is concerned; Homicide through simple negligence, if a third party is killed; Physical injuries through reckless imprudence, if a third party is injured.
* If death results or the physical injuries are serious, there is criminal liability although the penalty is only destierro. The banishment is intended more for the protection of the offender rather than a penalty. * If the crime committed is less serious physical injuries or slight physical injuries, there is no criminal liability.
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Notes: * While the circumstance of by a band is not among those enumerated that could qualify killing to murder, it would seem that if the killers constituted a band, the crime is murder because the circumstance of with the aid of armed men is included in the qualifying circumstances. * The victim must be killed in order to consummate the offense. Otherwise, it would be attempted or frustrated murder * Killing a person with treachery is murder even if there is no intent to kill. (People vs. Cagoco, 58 Phil. 530) * Any of the qualifying circumstances must be alleged in the information. Otherwise, they will only be considered as generic aggravating circumstances * When the other circumstances are absorbed or included in one qualifying circumstance, they cannot be treated or separated as generic aggravating circumstances. (People vs. Remalante, 92 Phil. 48) * Treachery and premeditation are inherent in murder with the use of poison Ortega Notes:
In murder, any of the following qualifying circumstances is present: (1) Treachery, taking advantage of superior strength, aid or armed men, or employing means to waken the defense, or of means or persons to insure or afford impunity; There is treachery when the offender commits any of the crimes against the person employing means, methods or forms in the execution thereof that tend directly and especially to insure its execution without risk to himself arising from the defense which the offended party might make. This circumstance involves means, methods, form in the execution of the killing which may actually be an aggravating circumstance also, in which case, the treachery absorbs the same. Illustration: A person who is determined to kill resorted to the cover of darkness at nighttime to insure the killing. Nocturnity becomes a means that constitutes treachery and the killing would be murder. But if the aggravating circumstance of nocturnity is considered by itself, it is not one of those which qualify a homicide to murder. One might think the killing is homicide unless nocturnity is considered as constituting treachery, in which case the crime is murder. The essence of treachery is that the offended party was denied the chance to defend himself because of the means, methods, form in executing the crime deliberately adopted by the offender. It is a matter of whether or not the offended party was denied the chance of defending himself. If the offended was denied the chance to defend himself, treachery qualifies the killing to murder. If despite the means resorted to by the offender, the offended was able to put up a defense,
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* When the actual victim turns out to be different from the intended victim, premeditation is not aggravating. (People vs. Guillen, 85 Phil. 307)
(6) Cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. Cruelty includes the situation where the victim is already dead and yet, acts were committed which would decry or scoff the corpse of the victim. The crime becomes murder. Hence, this is not actually limited to cruelty. It goes beyond that because even if the victim is already a corpse when the acts deliberately augmenting the wrong done to him were committed, the killing is still qualified to murder although the acts done no longer amount to cruelty. Under Article 14, the generic aggravating circumstance of cruelty requires that the victim be alive, when the cruel wounds were inflicted and, therefore, must be evidence to that effect. Yet, in murder, aside from cruelty, any act that would amount to scoffing or decrying the corpse of the victim will qualify the killing to murder. Illustration: Two people engaged in a quarrel and they hacked each other, one killing the other. Up to that point, the crime is homicide. However, if the killer tried to dismember the different parts of the body of the victim, indicative of an intention to scoff at or decry or humiliate the corpse of the victim, then what would have murder because this circumstance is recognized under Article 248, even though it was inflicted or was committed when the victim was already dead. The following are holdings of the Supreme Court with respect to the crime of murder: (1) (2) (3 (4) (5) Killing of a child of tender age is murder qualified by treachery because the weakness of the child due to his tender age results in the absence of any danger to the aggressor. Evident premeditation is absorbed in price, reward or promise, if without the premeditation the inductor would not have induced the other to commit the act but not as regards the one induced. Abuse of superior strength is inherent in and comprehended by the circumstance of treachery or forms part of treachery. Treachery is inherent in poison. Where one of the accused, who were charged with murder, was the wife of the deceased but here relationship to the deceased was not alleged in the information, she also should be convicted of murder but the relationship should be appreciated as aggravating. Killing of the victims hit by hand grenade thrown at them is murder qualified by explosion not by treachery.
(6)
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* The essence of kidnapping or serious illegal detention is the actual confinement or restraint of the victim or deprivation of his liberty. If there is no showing that the accused intended to deprive their victims of their liberty for some time and there being no appreciable interval between their being taken and their being shot, murder and not kidnapping with murder is committed.
* Intent to kill is conclusively presumed when death resulted. Hence, evidence of intent to kill is required only in attempted or frustrated homicide * In all crimes against persons in which the death of the victim is an element, there must be satisfactory evidence of (1) the fact of death and (2) the identity of the victim
Distinction between homicide and physical injuries: In attempted or frustrated homicide, there is intent to kill. In physical injuries, there is none. However, if as a result of the physical injuries inflicted, the victim died, the crime will be homicide because the law punishes the result, and not the intent of the act. The following are holdings of the Supreme Court with respect to the crime of homicide: (1) (2) Physical injuries are included as one of the essential elements of frustrated homicide. If the deceased received two wounds from two persons acting independently of each other and the wound inflicted by either could have caused death, both of them are liable for the death of the victim and each of them is guilty of homicide. If the injuries were mortal but were only due to negligence, the crime committed will be serious physical injuries through reckless imprudence as the element of intent to kill in frustrated homicide is incompatible with negligence or imprudence. Where the intent to kill is not manifest, the crime committed has been generally considered as physical injuries and not attempted or frustrated murder or homicide. When several assailants not acting in conspiracy inflicted wounds on a victim but it cannot be determined who inflicted which would which caused the death of the victim, all are liable for the victims death.
(3)
(4) (5)
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* If a boxer killed his opponent in a boxing bout duly licensed by the Government without any violation of the governing rules and regulations, there is no Homicide to speak of. If he hit his opponent below the belt without any intention to do so, it is Homicide Through Reckless Imprudence if the latter died as a result. If he intentionally hit his opponent on that part of his body causing the death, the crime is Homicide. * The shooting of a peace officer who was fully aware of the risks in pursuing the malefactors when done in a spur of the moment is only Homicide. (People vs. Porras, 255 SCRA 514). Common misconception on the meaning of corpus delicti. Corpus delicti means body of the crime. It does not refer to the body of the murdered person. In all crimes against persons in which the death of the victim is an element of the crime, there must be proof of the fact of death and identity of the victim. (Cortez vs. Court of Appeals, 162 SCRA 139)
Article 250 PENALTY FOR FRUSTRATED PARRICIDE, MURDER OR HOMICIDE Article 251 DEATH IN A TUMULTOUS 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 quarreled 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. 6. That the person or persons who inflicted serious physical injuries or who used violence can be identified. Notes: * Tumultuous affray exists when at least 4 persons take part in it * When there are 2 identified groups of men who assaulted each other, there is no tumultuous affray Persons liable are: a. person/s 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 * If those who actually killed the victim can be determined, they will be the ones to be held liable, and those who inflicted serious or less serious or slight physical injuries shall be punished for said corresponding offenses provided no conspiracy is established with the killers.
TUMULTUOUS AFFRAY simply means a commotion in a tumultuous and confused manner, to such an extent that it would not be possible to identify who the killer is if death results, or who inflicted the serious physical injury, but the person or persons who used violence are known. * It is not a tumultuous affray which brings about the crime; it is the inability to ascertain actual perpetrator. It is necessary that the very person who caused the death can not be known, not that he can not be identified. Because if he is known but only his identity is not known, then he will be charged for the crime
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* The person killed in the affray need not be one of the participants.
* As long as it cannot be determined who killed the victim, all of those persons who inflicted serious physical injuries will be collectively answerable for the death of that fellow. The Revised Penal Code sets priorities as to who may be liable for the death or physical injury in tumultuous affray: (1) (2) (3) The persons who inflicted serious physical injury upon the victim; If they could not be known, then anyone who may have employed violence on that person will answer for his death. If nobody could still be traced to have employed violence upon the victim, nobody will answer. The crimes committed might be disturbance of public order, or if participants are armed, it could be tumultuous disturbance, or if property was destroyed, it could be malicious mischief.
* Note that in slight physical injuries is inflicted in the tumultuous affray and the identity of the offender is established, the provisions of this article will not be observed. Instead, the offender shall be prosecuted in the ordinary course of law.
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* 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 * Assistance to suicide is different from mercy-killing. Euthanasia/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
* If the person does the killing himself, the penalty is similar to that of homicide, which is reclusion temporal. There can be no qualifying circumstance because the determination to die must come from the victim. This does not contemplate euthanasia or mercy killing where the crime is murder, if without consent; if with consent, covered by Article 253. * In mercy killing, the victim is not in a position to commit suicide. Whoever would heed his advice is not really giving assistance to suicide but doing the killing himself. In giving assistance to suicide, the principal actor is the person committing the suicide. * Both in euthanasia and suicide, the intention to the end life comes from the victim himself; otherwise the article does not apply. The victim must persistently induce the offender to end his life.
* Penalty is mitigated if suicide is not successful * Even if the suicide did not materialize, the person giving assistance to suicide is also liable but the penalty shall be one or two degrees lower depending on whether it is frustrated or attempted suicide.
The following are holdings of the Supreme Court with respect to this crime: (1) (2) The crime is frustrated if the offender gives the assistance by doing the killing himself as firing upon the head of the victim but who did not die due to medical assistance. The person attempting to commit suicide is not liable if he survives. The accused is liable if he kills the victim, his sweetheart, because of a suicide pact.
* The offender must shoot at another with any firearm without intention of killing him. If the firearm is not discharged at a person, the act is not punished under this article
* If the firearm is directed at a person and the trigger was pressed but did not fire, the crime is frustrated discharge of firearm. * If the discharge is not directed at a person, the crime may constitute alarm and scandal.
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The following are holdings of the Supreme Court with respect to this crime: (1) If serious physical injuries resulted from discharge, the crime committed is the complex crime of serious physical injury with illegal discharge of firearm, or if less serious physical injury, the complex crime of less serious physical injury with illegal discharge of firearm will apply. Firing a gun at a person even if merely to frighten him constitutes illegal discharge of firearm.
(2)
* The gun used in the crime must be licensed, or the person using the firearm must be authorized to carry the same, otherwise, in addition to the crime punished under this article, accused may also be held liable for illegal possession of firearm under Republic Act No. 1866 as amended by Republic Act No. 8294.
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an independent life when it was killed * In our study of persons and family relations, we have learned that birth determines personality. So fetus becomes a person by the legal fact of birth. The Civil Code provides that, if the fetus had an intra-uterine life of less than seven (7) months, it will be considered born only if it survives 24 hours after the umbilical cord is cut. If such fetus is killed within the 24-hour period, we have to determine if it would have survived or it would have died nonetheless, had it not been killed. > A legal problem occurs when a fetus having an intra-uterine life of less than 7 months, born alive, is killed within 24 hours from the time the umbilical cord is cut. This is so because there is difficulty of determining whether the crime committed is infanticide or abortion. In such a situation, the court may avail of expert testimony in order to help it arrive at a conclusion. So, if it is shown that the infant cannot survive within 24 hours, the crime committed is abortion; otherwise if it can survive, the crime would be infanticide.
> Abortion is the violent expulsion of a fetus from the maternal womb. If the fetus has been delivered but it could not subsist by itself, it is still a fetus and not a person. Thus, if it is killed, the crime committed is abortion not infanticide. Distinction between infanticide and abortion
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* Take note that while unintentional abortion appears to be a crime that should be committed with deliberate intent because of the requirement that the violence employed on the victim must be intentional, nevertheless, if the circumstances of the case justifies the application of the other means of committing a felony (like culpa), then the same should be applied but the penalty will not be the penalty provided under Article 257. Instead, the offender shall be subject to the penalty prescribed for simple or reckless imprudence under Article 365. * The accused can only be held liable if he knew that the woman was pregnant
- DEBATABLE
In US v. Jeffry, 15 Phil. 391, the Supreme Court said that knowledge of pregnancy of the offended party is not necessary. In People v. Carnaso, decided on April 7, 1964, however, the Supreme Court held that knowledge of pregnancy is required in unintentional abortion. Criticism: Under Article 4, paragraph 1 of the Revised Penal Code, any person committing a felony is criminally liable for all the direct, natural, and logical consequences of his felonious acts although it may be different from that which is intended. The act of employing violence or physical force upon the woman is already a felony. It is not material if offender knew about the woman being pregnant or not. If the act of violence is not felonious, that is, act of self-defense, and there is no knowledge of the womans pregnancy, there is no liability. If the act of violence is not felonious, but there is knowledge of the womans pregnancy, the offender is liable for unintentional abortion. Illustration: The act of pushing another causing her to fall is a felonious act and could result in physical injuries. Correspondingly, if not only physical injuries were sustained but abortion also resulted, the felonious act of pushing is the proximate cause of the unintentional abortion.
* If there is no intention to cause abortion and neither was violence exerted, arts 256 and 257 does not apply
Questions & Answers 1. A pregnant woman decided to commit suicide. She jumped out of a window of a building but she landed on a passerby. She did not die but an abortion followed. Is she liable for unintentional abortion?
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Question & Answer What is the liability of a physician who aborts the fetus to save the life of the mother? None. This is a case of therapeutic abortion which is done out of a state of necessity. Therefore, the requisites under Article 11, paragraph 4, of the Revised Penal Code must be present. There must be no other practical or less harmful means of saving the life of the mother to make the killing justified.
2. Accomplices as seconds
* The person who killed or injured his adversary. If both survive, both will be liable for the crime of duel as principals by direct participation. The seconds will be held liable as accomplices. Notes: DUEL: a formal or regular combat previously concerted between 2 parties in the presence of 2 or more seconds of lawful age on each side, who make the selection of arms and fix all the other conditions of the fight * If death results, the penalty is the same as that for homicide * While the agreement is to fight to the death, the law will disregard the intent to kill, if only physical injuries is inflicted. The crime will not be classified as attempted or frustrated homicide. * If the accused and the deceased, after a verbal heated argument in a bar, left the place at the same time and pursuant to their agreement, went to the plaza to fight each other to death with knives which they bought on the way, the facts do not constitute the crime of dueling since there were no seconds who fixed the conditions of the fight in a more or less formal manner. If one was killed, the crime committed would be Homicide.
* There is no such crime nowadays because people hit each other even without entering into any preconceived agreement. This is an obsolete provision.
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* In the first kind of mutilation, the castration must be made purposely. Otherwise, it will be considered as mutilation of the second kind MAYHEM: refers to any other intentional mutilation
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What are serious physical injuries: 1. Injured person becomes insane, imbecile, impotent or blind 2. Injured person a. loses the use of speech or the power to hear or to smell, loses an eye, a hand, foot, arm or leg b. loses the use of any such member c. becomes incapacitated for the work in which he had been habitually engaged 3. Injured person a. becomes deformed b. loses any other member of his body c. loses the use thereof 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. Injured person becomes ill or incapacitated for labor for more than 30 days (but not more than 90 days) Notes:
* The crime of physical injuries is a crime of result because under our laws the crime of physical injuries is based on the gravity of the injury sustained. So this crime is always consummated. * The reason why there is no attempted or frustrated physical injuries is because the crime of physical injuries is determined on the gravity of the injury. As long as the injury is not there, there can be no attempted or frustrated stage thereof.
* Serious physical injuries may be committed through reckless imprudence or simple imprudence * There must be no intent to kill IMPOTENT should include inability to copulate and sterility BLINDNESS requires lost of vision in both eyes. Mere weakness in vision is not contemplated Loss of power to hear must involve both ears. Otherwise, it will be considered as serious physical injuries under par 3 Loss of use of hand or incapacity of usual work in par 2 must be permanent * Par 2 refers to principal members of the body. Par 3 on the other hand, covers any other member which is not a principal part of the body. In this respect, a front tooth is considered as a member of the body, other than a principal member
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Thus, a father who inflicts serious physical injuries upon his son will be liable for qualified serious physical injuries.
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That the physical injuries must not be those described in the preceding articles
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Republic Act No. 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act), in relation to murder, mutilation or injuries to a child
The last paragraph of Article VI of Republic Act No. 7610, provides: For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262 (2) and 263 (1) of Act No 3815, as amended of the Revised Penal Code for the crimes of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve years of age. The provisions of Republic Act No. 7160 modified the provisions of the Revised Penal Code in so far as the victim of the felonies referred to is under 12 years of age. The clear intention is to punish the said crimes with a higher penalty when the victim is a child of tender age. Incidentally, the reference to Article 249 of the Code which defines and penalizes the crime of homicide were the victim is under 12 years old is an error. Killing a child under 12 is murder, not homicide, because the victim is under no position to defend himself as held in the case of People v. Ganohon, 196 SCRA 431. For murder, the penalty provided by the Code, as amended by Republic Act No. 7659, is reclusion perpetua to death higher than what Republic Act no. 7610 provides. Accordingly, insofar as the crime is murder, Article 248 of the Code, as amended, shall govern even if the victim was under 12 years of age. It is only in respect of the crimes of intentional mutilation in paragraph 2 of Article 262 and of serious physical injuries in paragraph 1 of Article 263 of the Code that the quoted provision of Republic Act No. 7160 may be applied for the higher penalty when the victim is under 12 years old.
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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 Rape committed under par 1 is punishable by: 1. reclusion perpetua 2. reclusion perpetua to DEATH when a. victim became insane by reason or on the occasion of rape 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 under 18 years and offender is: i. parent ii. ascendant iii. step-parent iv. guardian v. relative by consanguinity or affinity with the 3rd civil degree or vi. common law spouse of parent of victim
c.
under the custody of the police or military authorities or any law enforcement or penal institution committed in full view of the spouse, parent or any of the children or other relatives within the 3rd degree of consanguinity 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 a child below 7 years old
d.
e.
f.
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; 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.
victim suffered permanent physical mutilation or disability the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and
j.
k. when the offender knew of the mental disability, emotional disorder and/or physical handicap or the offended party at the time of the commission of the crime Rape committed under par 2 is punishable by: 1. prision mayor 2. prision mayor to reclusion temporal a. use of deadly weapon or
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reclusion temporal when the victim has become insane reclusion temporal to reclusion pepetua rape is attempted and homicide is committed reclusion perpetua homicide is committed by reason or on occasion of rape reclusion temporal committed with any of the 10 aggravating circumstances mentioned above
Notes: DIVIDING AGE IN RAPE: a. less than 7 yrs old, mandatory death b. less than 12 yrs old, statutory rape c. less than 18 yrs old and there is relationship (e.g. parent etc); mandatory death * Because of this amendment which reclassified rape as a crime against persons, an impossible crime may now be committed in case of rape; that is, if there is inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. * The case of People vs. Orita (G.R. No. 88724, April 3, 1990), laid a new doctrine in Philippine penal law insofar as the crime of rape is concerned, as it finally did away with frustrated rape and allowed only attempted rape and consummated rape to remain in our statute books. * The act of touching should be understood as inherently part of the entry of the penis into the labia of the female organ and not the mere touching alone of the mons pubis or the pudendum. Jurisprudence dictates that the labia majora (or he outer lips of the female organ) must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. Thus, grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute rape. ( Pp vs. Campuhan)
Classification of rape !) Traditional concept under Article 335 carnal knowledge with a woman against her will. The offended party is always a woman and the offender is always a man. 2) Sexual assault - committed with an instrument or an object or use of the penis with penetration of mouth or anal orifice. The offended party or the offender can either be man or woman, that is, if a woman or a man uses an instrument on anal orifice of male, she or he can be liable for rape. Since rape is not a private crime anymore, it can be prosecuted even if the woman does not file a complaint. If carnal knowledge was made possible because of fraudulent machinations and grave abuse of authority, the crime is rape. This absorbs the crime of qualified and simple seduction when no force or violence was used, but the offender abused his authority to rape the victim. Under Article 266-C, the offended woman may pardon the offender through a subsequent valid marriage, the effect of which would be the extinction of the offenders liability. Similarly, the legal husband may be pardoned by forgiveness of the wife provided that the marriage is not void ab initio. Obviously, under the new law, the husband may be liable for rape if his wife does not want to have sex with him. It is enough that there is indication of any amount of resistance as to make it rape. Incestuous rape was coined in Supreme Court decisions. It refers to rape committed by an ascendant of the offended woman. In such cases, the force and intimidation need not be of such nature as would be required in rape cases had the accused been a stranger. Conversely, the Supreme Court expected that if the offender is not known to the woman, it is necessary that there be evidence of affirmative resistance put up by the offended woman. Mere no, no is not enough if the offender is a stranger, although if the rape is incestuous, this is enough.
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If the victim however is exactly twelve (12) years old (she was raped on her birthday) or more, and there is consent, there is no rape. However, Republic Act No. 7610, Sec. 5 (b) provides that: Even if the victim is over twelve (12) year old and the carnal act was with her consent as long as she falls under the classification of a child exploited in prostitution and other sexual abuse, the crime is rape.
In other cases, there must be force, intimidation, or violence proven to have been exerted to bring about carnal knowledge or the woman must have been deprived of reason or otherwise unconscious.
It is not necessary that the force or intimidation employed be so great or of such character as could not be resisted it is only necessary that it be sufficient to consummate the purpose which the accused had in mind. (People vs. Canada, 253 SCRA 277). Carnal knowledge with a woman who is asleep constitutes Rape since she was either deprived of reason or otherwise unconscious at that time. (People vs. Caballero, 61 Phil. 900). Sexual intercourse with an insane, deranged or mentally deficient, feeble-minded or idiotic woman is Rape pure and simple. The deprivation of reason contemplated by law need not be complete; mental abnormality or deficiency is sufficient.
Where the victim is over 12 years old, it must be shown that the carnal knowledge with her was obtained against her will. It is necessary that there be evidence of some resistance put up by the offended woman. It is not, however, necessary that the offended party should exert all her efforts to prevent the carnal intercourse. It is enough that from her resistance, it would appear that the carnal intercourse is against her will. Mere initial resistance, which does not indicate refusal on the part of the offended party to the sexual intercourse, will not be enough to bring about the crime of rape. Note that it has been held that in the crime of rape, conviction does not require medico-legal finding of any penetration on the part of the woman. A medico-legal certificate is not necessary or indispensable to convict the accused of the crime of rape. It has also been held that although the offended woman who is the victim of the rape failed to adduce evidence regarding the damages to her by reason of the rape, the court may take judicial notice that there is such damage in crimes against chastity. The standard amount given now is P 50,000.00, with or without evidence of any moral damage. An accused may be convicted of rape on the sole testimony of the offended woman. It does not require that testimony be corroborated before a conviction may stand. This is particularly true if the commission of the rape is such that the narration of the offended woman would lead to no other conclusion except that the rape was committed. Illustration: Daughter accuses her own father of having raped her. Allegation of several accused that the woman consented to their sexual intercourse with her is a proposition which is revolting to reason that a woman would allow more than one man to have sexual intercourse with her in the presence of the others. It has also been ruled that rape can be committed in a standing position because complete penetration is not necessary. The slightest penetration contact with the labia will consummate the rape. On the other hand, as long as there is an intent to effect sexual cohesion, although unsuccessful, the crime becomes attempted rape. However, if that intention is not proven, the offender can only be convicted of acts of lasciviousness. The main distinction between the crime of attempted rape and acts of lasciviousness is the intent to lie with the offended woman. In a case where the accused jumped upon a woman and threw her to the ground, although the accused raised her skirts, the accused did not make any effort to remove her underwear. Instead, he removed his
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The new law, R.A. 8353, added new circumstance that is, when carnal knowledge was had by means of fraudulent machinations or grave abuse of authority. It would seem that if a woman of majority age had sexual intercourse with a man through the latters scheme of pretending to marry her which is the condition upon which the woman agreed to have sex with him, manipulating a sham marriage, the man would be guilty of Rape under this Section. So also, a prostitute who willingly had sexual congress with a man upon the latters assurance that she would be paid handsomely, may be guilty of Rape if later on he refuses to pay the said amount. A person in authority who maneuvered a scheme where a woman landed in jail, and who upon promise of being released after having sex with the officer, willingly consented to the sexual act, may also be found guilty of Rape under this new section. IN RAPE CASES, COURT MUST ALWAYS BE GUIDED BY THE FOLLOWING PRINCIPLES: 1. An accusation of rape can be made with facility; it is difficult to prove, but more difficult for the person accused, though innocent, to disprove; 2. In view of the intrinsic nature of the crime where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and 3. The evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense. (People vs. Ricafort)
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(becomes serious) a. b. that the kidnapping/detention lasts for more than 3 days that it is committed 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 that the person kidnapped or detained is a minor (except if parent is the offender), female or a public officer
d.
Note: When death penalty is imposed: a. 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 are present in the commission of the offense (even if none of the circumstances are present) b. When the victim is killed or dies as a consequence of the detention or is raped or is subjected to torture or dehumanizing acts * The essence of the offense is the actual deprivation of the victims liberty coupled with the intent of the accused to effect it. There must be indubitable proof that the actual intent of the malefactor was to deprive the offended party of liberty. The restraint however need not be permanent. (People vs. Godoy, 250 SCRA 676). Ortega Notes:
When a public officer conspires with a private person in the commission of any of the crimes under Title IX, the crime is also one committed under this title and not under Title II. Illustration: If a private person commits the crime of kidnapping or serious illegal detention, even though a public officer conspires therein, the crime cannot be arbitrary detention. As far as that public officer is concerned, the crime is also illegal detention. In the actual essence of the crime, when one says kidnapping, this connotes the idea of transporting the offended party from one place to another. When you think illegal detention, it connotes the idea that one is restrained of his liberty without necessarily transporting him from one place to another. The crime of kidnapping is committed if the purpose of the offender is to extort ransom either from the victim or from any other person. But if a person is transported not for ransom, the crime can be illegal detention. Usually, the offended party is brought to a place other than his own, to detain him there. When one thinks of kidnapping, it is not only that of transporting one person from one place to another. One also has to think of the criminal intent. Forcible abduction -- If a woman is transported from one place to another by virtue of restraining her of her liberty, and that act is coupled with lewd designs. Serious illegal detention If a woman is transported just to restrain her of her liberty. There is no lewd design or lewd intent. Grave coercion If a woman is carried away just to break her will, to compel her to agree to the demand or request by the offender. In a decided case, a suitor, who cannot get a favorable reply from a woman, invited the woman to ride with him, purportedly to take home the woman from class. But while the woman is in his car, he drove the woman to a far place and told the woman to marry him. On the way, the offender had repeatedly touched the private parts of the woman. It was held that the act of the offender of touching the private parts of the woman could not be considered as lewd designs because he was willing to marry the offended party. The
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(3)
155
Palattao notes: When the person is deprived of his liberty or is seized and forcibly taken to another place, the inquiry would, be what is the purpose of the offender in taking him or her away: 1. If the seizure is only to facilitate the killing of the victim the crime committed would either be homicide or murder and the crime of kidnapping is absorbed. 2. If the seizure or deprivation of liberty is only to compel the victim to perform an act, be it right or wrong, the crime committed would only be grave coercion. (People vs. Astorga, 283 SCRA 420). 3. If the deprivation of liberty is to take away the victim to satisfy the lewd design of the offender, the crime would only be forcible abduction. 4. If the seizure of the victim is solely to deprive him of his liberty, the crime is illegal detention. In the penultimate paragraph of Article 267, there is deprivation of liberty but not for any for the purposes enumerated above. It is for the purpose of extorting ransom from the victim or from any other person. The law classifies the crime committed by the offender as serious illegal detention even if none of the circumstances to make it serious is present in the commission of the crime. In this particular mode of committing the crime of serious illegal detention, demand for ransom is an indispensable element. (People vs. Bustamante, G. R. No. 66427, Dec. 4, 1991) SANDOVAL Notes: If the victim was not kidnapped or taken away but was restrained and deprived of his liberty, like in the case of a hostage incident where the accused, who was one of the occupants of the house, grabbed a child, poked a knife on the latters neck, called for media people and demanded a vehicle from the authorities which he could use in escaping, as it turned out that there was an unserved arrest warrant against him, the proper charge is Serious Illegal Detention (without kidnapping anymore) but likewise under Article 267 of the Revised Penal Code. Where after taking the victim with her car, the accused called the house of the victim asking for ransom but upon going to their safehouse saw several police cars chasing them, prompting them to kill their victim inside the car, there were two crime committed Kidnapping for Ransom and Murder, not a complex crime of Kidnapping with Murder as she was not taken or carried away to be killed, killing being an afterthought . (People vs. Evanoria, 209 SCRA 577).
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 268 SLIGHT ILLEGAL DETENTION
ELEMENTS: 1. Offender is a private person 2. He kidnaps or detains another or in any other maner deprives him pof his liberty / furnished place for the perpetuation of the crime 3. That the act of detention or kidnapping must be illegal
4. That the crime is committed without the attendant of any of the circumstances enumerated in Art 267 Note: Privileged mitigating circumstances: If the offender: a. voluntarily releases the person so kidnapped or detained within 3 days from the commencement of the detention b. c. without having attained the purpose intended and before the institution of criminal proceedings against him
Ortega Notes:
One should know the nature of the illegal detention to know whether the voluntary release of the offended party will affect the criminal liability of the offender. When the offender voluntarily releases the offended party from detention within three days from the time the restraint of liberty began, as long as the offender has not accomplished his purposes, and the release was made before the criminal prosecution was commenced, this would serve to mitigate the criminal liability of the offender, provided that the kidnapping or illegal detention is not serious. If the illegal detention is serious, however, even if the offender voluntarily released the offended party, and such release was within three days from the time the detention began, even if the offender has not accomplished his purpose in detaining the offended party, and even if there is no criminal prosecution yet, such voluntary release will not mitigate the criminal liability of the offender. One who furnishes the place where the offended party is being held generally acts as an accomplice. But the criminal liability in connection with the kidnapping and serious illegal detention, as well as the slight illegal detention, is that of the principal and not of the accomplice. The prevailing rule now is Asistio v. Judge, which provides that voluntary release will only mitigate criminal liability if crime was slight illegal detention. If serious, it has no effect. In kidnapping for ransom, voluntary release will not mitigate the crime. This is because, with the reimposition of the death penalty, this crime is penalized with the extreme penalty of death. What is ransom? It is the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases a person from captivity. The definition of ransom under the Lindberg law of the U.S. has been adopted in our jurisprudence in People v. Akiran, 18 SCRA 239, 242, such that when a creditor detains a debtor and releases the latter only upon the payment of the debt, such payment of the debt, which was made a condition for the release is ransom, under this article. In the case of People v. Roluna, decided March 29, 1994, witnesses saw a person being taken away with hands tied behind his back and was not heard from for six years. Supreme Court reversed the trial court ruling that the men accused were guilty of kidnapping with murder. The crime is only slight illegal detention under Article 268, aggravated by a band, since none of the circumstances in Article 267 has been proved beyond a reasonable doubt. The fact that the victim has been missing for six years raises a presumption of death, but from this disputable presumption of death, it should not be further presumed that the persons who were last seen with the absentee is responsible for his disappearance.
Elements and Notes in Criminal Law Book II by RENE CALLANTA 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 3. That the arrest or detention is not authorized by law or there is no reasonable ground therefor Notes: * Offender is any person, so either a public officer or private individual * The offender in this article can be a private individual or public officer. In the latter case, the offender, being a public officer, has the authority to arrest and detain a person, but the arrest is made without legal grounds. For him to be punished under this article, the public officer must make the arrest and detention without authority to do so; or without acting in his official capacity.
* This felony consists in making an arrest or detention without legal or reasonable ground for the purpose of delivering the offended party to the proper authorities. * The offended party may also be detained but the crime is not illegal detention because the purpose is to prosecute the person arrested. The detention is only incidental; the primary criminal intention of the offender is to charge the offended party for a crime he did not actually commit. * Generally, this crime is committed by incriminating innocent persons by the offenders planting evidence to justify the arrest a complex crime results, that is, unlawful arrest through incriminatory machinations under Article 363.
* In art 125, the detention is for some legal ground while here, the detention is not authorized by law * In art 125, the crime pertains to failure to deliver the person to the proper judicial authority within the prescribed period while here, the arrest is not authorized by law
* If any of the foregoing elements is absent, the kidnapping of the minor will then fall under Article 267. * If the accused is any of the parents, Article 267 does not apply; Articles 270 and 271 apply. * If the taking is with the consent of the parents, the crime in Article 270 is committed.
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Notes: * The inducement must be actually done with malice and a determined will to cause damage. (People vs. Paalam, C.A., O.G. 8267-8268). But where the victims abandoned their respective homes out of an irresponsible spirit of restlessness and adventure, the crime is not committed. * Minor should not leave his home of his own free will * Mitigating if by father or mother * The article also punishes the father or mother who commits the act penalized under the law. This arises when the custody of the minor is awarded by the court to one of them after they have separated. The other parent who induces the minor to abandon his home is covered by this article.
SLAVERY is the treatment of a human being as a mere property, stripped of dignity and human rights. The person is reduced to the level of an ordinary animal, a mere chattel with material value capable of pecuniary estimation and for which reason, the offender purchases and sells the same. Note: Qualifying circumstance if the purpose of the offender is to assign the offended party to some immoral traffic (prostitution), the penalty is higher
* This is distinguished from illegal detention by the purpose. If the purpose of the kidnapping or detention is to enslave the offended party, slavery is committed. * The crime is slavery if the offender is not engaged in the business of prostitution. If he is, the crime is white slave trade under Article 341.
3. That it is under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of such minor.
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Involuntary servitude or service. In this article, no distinction is made whether the offended is a minor or an adult.
CRIMES AGAINST SECURITY Article 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 inhabited 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.
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
* Under the first act, the offender is liable only when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense. Where the person is already wounded and already in danger of dying, there is an obligation to render assistance only if he is found in an uninhabited place. If the mortally wounded, dying person is found in a place not uninhabited in legal contemplation, abandonment will not bring about this crime. An uninhabited place is determined by possibility of person receiving assistance from another. Even if there are many houses around, the place may still be uninhabited if possibility of receiving assistance is remote.
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Article 277 ABANDONMENT OF MINOR BY PERSON ENTRUSTED WITH HIS CUSTODY; INDIFFERENCE OF PARENTS
Acts punished: 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. That the offender has charged of the rearing or education of a minor. b. That he delivers said minor to a public institution or other persons. 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 (offenders) children by not giving them education which their station in life requires and financial condition permits Elements: a. That the offender is a parent. b. That he neglects his children by not giving them education. c. That his station in life requires such education and his financial condition permits it. Indifference of parents while they are financially capable of supporting the needs of their children, they deliberately neglect to support the educational
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ADDITIONAL PENALTIES FOR OTHER OFFENSES: (279) Article 280 QUALIFIED TRESPASS TO DWELLING
ELEMENTS: 1. That the offender is a private person. 2. That he enters the dwelling of another.
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Qualifying circumstance: if the offense is committed by means of violence or intimidation, the penalty is higher * There must be an opposition to the entry of the accused
* If the entry is made by a way not intended for entry, that is presumed to be against the will of the occupant (example, entry through a window). It is not necessary that there be a breaking.
* Lack of permission to enter a dwelling does not amount to prohibition. So, one who enters a building is not presumed to be trespasser until the owner tells him to leave the building. In such a case, if he refuses to leave, then his entry shall now be considered to have been made without the express consent of the owner. (People vs. De Peralta, 42 Phil. 69) * Even if the door is not locked, for as long as it is closed, the prohibition is presumed especially if the entry was done at the late hour of the night or at an unholy hour of the day. (U. S. vs. Mesina, 21 Phil. 615) * Implied prohibition is present considering the situation late at night and everyones asleep or entrance was made through the window
Against the will -- This means that the entrance is, either expressly or impliedly, prohibited or the prohibition is presumed. Fraudulent entrance may constitute trespass. The prohibition to enter may be made at any time and not necessarily at the time of the entrance. * To prove that an entry is against the will of the occupant, it is not necessary that the entry should be preceded by an express prohibition, provided that the opposition of the occupant is clearly established by the circumstances under which the entry is made, such as the existence of enmity or strained relations between the accused and the occupant.
* When there is no overt act of the crime intended to be committed, this is the crime
* If the purpose in entering the dwelling is not shown, trespass is committed. If the purpose is shown, it may be absorbed in the crime as in robbery with force upon things, the trespass yielding to the more serious crime. But if the purpose is not shown and while inside the dwelling he was found by the occupants, one of whom was injured by him, the crime committed will be trespass to dwelling and frustrated homicide, physical injuries, or if there was no injury, unjust vexation.
* May be committed even by the owner (as against the actual occupant) * Even if the house belonged to the accused, if the possession has been delivered to another by reason of contract or by a mere tolerance, his being the owner would not authorize him to enter the house against the will of the lawful occupant. His ownership is no authority for him to place the law in his hands. (People vs. Almeda, 75 Phil. 476)
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Not applicable to: a. entrance is for the purpose of preventing harm to himself, the occupants or a third person b. purpose is to render some service to humanity or justice c. place is a caf, tavern etc while open
* Pursuant to Section 6, Rule 113 of the Rules of Court, a person who believes that a crime has been committed against him has every right to go after the culprit and arrest him without any warrant even if in the process he enters the house of another against the latters will.
Medina case: when the accused entered the dwelling through the window, he had no intent to kill any person inside, but the intention to kill came to his mind when he was being arrested by the occupants thereof, the crime of trespass to dwelling is a separate and distinct offense from frustrated homicide
1. By threatening another with the infliction upon his person, honor or property that of
his family of any wrong amounting to a crime and demanding money or imposing any other condition, even though not unlawful and the offender (Note: threat is with condition) Elements a. That the offender threatens another person with the infliction upon the latters person, honor or property, or upon that of the latters family, of any wrong. b. That such wrong amounts to a crime. c. That there is a demand for money or that any other condition is imposed, even though not unlawful. d. That the offender attains his purpose. 2. By making such threat without the offender attaining his purpose
3. By threatening another with the infliction upon his person, honor or property or that of
his family of any wrong amounting to a crime, the threat not being subject to a condition (Note: threat is without condition)
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But even if the harm intended is in the nature of a crime, if made orally and in the heat of anger and after the oral threat, the issuer of the threat did not pursue the act, the crime is only other light threats under Article 285. To constitute grave threats, the threats must refer to a future wrong and is committed by acts or through words of such efficiency to inspire terror or fear upon another. It is, therefore, characterized by moral pressure that produces disquietude or alarm. The greater perversity of the offender is manifested when the threats are made demanding money or imposing any condition, whether lawful or not, and the offender shall have attained his purpose. So the law imposes upon him the penalty next lower in degree than that prescribed for the crime threatened to be committed. But if the purpose is not attained, the penalty lower by two degrees is imposed. The maximum period of the penalty is imposed if the threats are made in writing or through a middleman as they manifest evident premeditation. Distinction between threat and coercion: The essence of coercion is violence or intimidation. There is no condition involved; hence, there is no futurity in the harm or wrong done. In threat, the wrong or harm done is future and conditional. In coercion, it is direct and personal. Distinction between threat and robbery: (1) (2) (3) (4) As to intimidation In robbery, the intimidation is actual and immediate; in threat, the intimidation is future and conditional. As to nature of intimidation In robbery, the intimidation is personal; in threats, it may be through an intermediary. As to subject matter Robbery refers to personal property; threat may refer to the person, honor or property. As to intent to gain In robbery, there is intent to gain; in threats, intent to gain is not an essential element.
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* Bond for good behavior means the posting of bond on the part of the accused in order to guarantee that he will not molest the offended party. It is in the nature of an additional penalty. * Bond to keep peace under Article 35 is applicable to all cases and is treated as a distinct penalty. If the sentenced prisoner fails to give the bond, he shall be detained for a period not exceeding six months if the crime for which he was convicted is classified as grave felony or for a period not exceeding thirty days if convicted for a light felony.
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* In grave coercion, the act of preventing by force must be made at the time the offended party was doing or was about to do the act to be prevented.
* Grave coercion arises only if the act which the offender prevented another to do is not prohibited by law or ordinance. If the act prohibited was illegal, he is not liable for grave coercion. * If a person prohibits another to do an act because the act is a crime, even though some sort of violence or intimidation is employed, it would not give rise to grave coercion. It may only give rise to threat or physical injuries, if some injuries are inflicted. However, in case of grave coercion where the offended party is being compelled to do something against his will, whether it be wrong or not, the crime of grave coercion is committed if violence or intimidation is employed in order to compel him to do the act. No person shall take the law into his own hands. Illustration: Compelling the debtor to deliver some of his properties to pay a creditor will amount to coercion although the creditor may have a right to collect payment from the debtor, even if the obligation is long over due. * The violence employed in grave coercion must be immediate, actual, or imminent. In the absence of actual or imminent force or violence, coercion is not committed. The essence of coercion is an attack on individual liberty. * The physical violence is exerted to (1) prevent a person from doing something he wants to do; or (2) compel him to do something he does not want to do. Illustration: If a man compels another to show the contents of the latters pockets, and takes the wallet, this is robbery and not grave coercion. The intimidation is a means of committing robbery with violence or intimidation of persons. Violence is inherent in the crime of robbery with violence or intimidation upon persons and in usurpation of real properties because it is the means of committing the crime. * Exception to the rule that physical violence must be exerted: where intimidation is so serious that it is not a threat anymore it approximates violence.
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UNJUST VEXATION
* In unjust vexation, any act committed without violence, but which unjustifiably annoys or vexes an innocent person amounts to light coercion. * As a punishable act, unjust vexation should include any human conduct which, although not productive of some physical or material harm would, however, unjustifiably annoy or vex an innocent person. * It is distinguished from grave coercion under the first paragraph by the absence of violence. Illustration: Persons stoning someone elses house. So long as stoning is not serious and it is intended to annoy, it is unjust vexation. It disturbs the peace of mind. * The main purpose of the statute penalizing coercion and unjust vexation is precisely to enforce the principle that no person may take the law into his hands and that our government is one of laws, not of men. The essence of the crimes is the attack on individual liberty.
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Article 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 2. That the purpose is to organize, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employees. * Peaceful picketing is part of the freedom of speech and is not covered by this article. * Preventing employees or laborers from joining any registered labor organization is punished under Art. 248 of the Labor Code.
DISCOVERY AND REVELATION OF SECRETS Article 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. 3. 4. Notes:
* This is a crime against the security of ones papers and effects. The purpose must be to discover its effects. The act violates the privacy of communication.
That he seizes the papers or letters of another. That the purpose is to discover the secrets of such another person. That offender is informed of the contents or the papers or letters seized.
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* A business secret must not be known to other business entities or persons. It is a matter to be discovered, known and used by and must belong to one person or entity exclusively. One who merely copies their machines from those already existing and functioning cannot claim to have a business secret, much less, a discovery within the contemplation of Article 292.
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That there is unlawful taking of that property. That the taking must be with intent to gain, and That there is violence against or intimidation of any person, or force upon anything.
Two kinds of robbery: 1) robbery with violence or intimidation and 2) robbery with force upon things.
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Robbery Bribery X didnt commit crime but is intimidated to X has committed a crime and gives deprive him of his property money as way to avoid arrest or prosecution Deprived of money thru force or intimidation Giving of money is in one sense voluntary Neither Transaction is voluntary and mutual Ex. defendant demands payment of P2.00 with threats of arrest and prosecution, therefore, robbery because (a) intent to gain and (b) immediate harm ANTI CARNAPPING ACT ( RA # 6539 ) Carnapping is the taking, with intent to gain, of a motor vehicle belonging to another without the latters consent, or by means of violence against or intimidation of persons, or by using force upon things. Any vehicle which is motorized using the streets which are public, not exclusively for private use is covered within the concept of motor vehicle under the Anti-Carnapping Law. A tricycle which is not included in the enumeration of exempted vehicles under the Carnapping Law is deemed to be motor vehicle as defined in the law, the stealing of which comes within its penal sanction. If the vehicle uses the streets with or without the required license, the same comes within the protection of the law, for the severity of the offense is not to be measured by what kind of street or highway the same is used but by the nature of the vehicle itself and the case to which it is devoted. (Izon, et al., vs. People, 107 SCRA 118)
2. robbery accompanied with rape or intentional mutilation, SPI insane, imbecile, impotent or blind 3. SPI lost the use of speech, hear, smell, eye, hand, foot, arm, leg, use of any such member, incapacitated for work habitually engaged in 4. Violence/intimidation shall have been carried to a degree clearly unnecessary for the crime or when in the cause of its execution SPI/deformity, or shall have lost any part of the
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* As long as the criminal objective or plan is to rob, whether the killing committed by reason or on occasion thereof is intentional or accidental, the crime is Robbery with Homicide. ( Pp vs. Pecato, 151 scra 14 ) As long as there was killing when Robbery was taking place, Robbery with Homicide was committed, the killing occurring on the occasion thereof. Problem: A, B, C and D robbed a bank. When they were about to flee, policemen came, and they traded shots with them. If one of the policemen was killed, the offense is Robbery with Homicide. If one of the robbers was the one killed, the remaining robbers shall be charged also with Robbery with Homicide. If a bank employee was the one killed either by the robbers or by the policemen in the course of the latters action of arresting or trying to arrest the robbers, the crime is still Robbery with Homicide. * As long as the criminal intent is to rob, that is, robbery was the real motive, the offense would still be classified as Robbery with Homicide even if the killing preceded or was done ahead of the robbing. (People vs. Tolentino, 165 SCRA 490). * Thus, as a member of the agaw-armas gang whose plan and design is to rob a policeman of his service revolver, but because he fears that said policeman may beat him to the draw, first shoots the policeman fatally and only after when the latter lies dead, does he get the gun the crime is still considered Robbery with Homicide.
* This is a crime against property, and therefore, you contend not with the killing but with the robbery. * As long as there is only one (1) robbery, regardless of the persons killed, the crime will only be one (1) count of robbery with homicide. The fact that there are multiple killings committed in the course of the robbery will be considered only as aggravating so as to call for the imposition of the maximum penalty prescribed by law. * If, on the occasion or by reason of the robbery, somebody is killed, and there are also physical injuries inflicted by reason or on the occasion of the robbery, dont think that those who sustained physical injuries may separately prosecute the offender for physical injuries. Those physical injuries are only considered aggravating circumstances in the crime of robbery with homicide. * This is not a complex crime as understood under Article 48, but a single indivisible crime. This is a special complex crime because the specific penalty is provided in the law. * The term homicide is used in the generic sense, and the complex crime therein contemplated comprehends not only robbery with homicide in its restricted sense, but also with robbery with murder. So,
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* However, if the elements of the crime of robbery with violence employed against persons, fail to meet the requirements of Article 294, as when the robbery resulted only in the commission of frustrated homicide, then Article 294 should be ignored and the general provision of the law should be applied, such as the provision of Article 48. * If robbery is proved but the homicide is not proven, the accused should be convicted of robbery only and the penalty shall not be based under paragraph 1 but on paragraph 5 of the same article, since only intimidation or violence was employed and it did not result in any of the situations mentioned in paragraphs 1 to 4. * If the robbery is not proven but the homicide is established, then the accused should be held liable only for homicide and the penalty shall be taken from Article 249, which deals with crimes against property, so, if several homicides are alleged in the information for robbery with homicide, and all of these homicides are proven beyond reasonable doubt, the court will impose a separate penalty for each of the homicide that is established by the evidence. (People vs. Barruga, 61 Phil. 318)
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* Pardon by the offended party will not alter the criminal liability of the offender because in robbery with rape, the crime committed is not a crime against chastity but a crime against property. Even under the present amendment which classifies rape as a crime against person, the change has no legal effect on the provision of
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* If the two (2) crimes were separated both by time and place, there is no complex crime of Robbery with Rape. Thus, when complainant went out of her room about 1:30 a.m. to urinate, one of the accused grabbed her, poked an icepick on her neck , and dragged her out of the house and was made to board a taxi; and before boarding, she saw the two (2) companions of the man carrying her typewriter and betamax and then joining them in the taxi, and that after alighting from the taxi, the two (2) companions left her, and the man who had grabbed her brought her to a motel, where by means of force and intimidation he was able to have sex with her, the crimes committed are Robbery and Forcible Abduction with Rape. The Rape committed cannot be complexed with Robbery. (People vs. Angeles, 222 SCRA 451).
* In People v. Flores, 195 SCRA 295, although the offenders plan was to get the victims money, rape her and kill her, but in the actual execution of the crime, the thoughts of depriving the victim of her valuables was relegated to the background and the offenders prurient desires surfaced. They persisted in satisfying their lust. They would have forgotten about their intent to rob if not for the accidental touching of the victims ring and wristwatch. The taking of the victims valuables turned out to be an afterthought. It was held that two distinct crimes were committed: rape with homicide and theft. * In People v. Dinola, 183 SCRA 493, it was held that if the original criminal design of the accused was to commit rape and after committing the rape, the accused committed robbery because the opportunity presented itself, two distinct crimes rape and robbery were committed not robbery with rape. In the latter, the criminal intent to gain must precede the intent to rape.
* If rape was the primary objective of the accused and the taking of her jewelries was not done with intent to gain but as a token of her supposed consent to the sexual intercourse, the accused is guilty of two distinct crimes: rape and unjust vexation. (People vs. Villarino, C. A. G. R. No. 6342-R, Nov. 26, 1951)
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Article 299 ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP
ELEMENTS: 1. That the offender entered (a) an inhabited house, or (b) public buildings, 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. 3. That once inside the building, the offender took personal property belonging to another with intent to gain. Notes: * In this kind of Robbery, no violence or intimidation against persons is ever used. * Includes dependencies (stairways, hallways, etc.) * A small store located on the ground floor of a house is a dependency of the house, there being no partition between the store and the house and in going to the main stairway, one has to enter the store which has a door. (U.S. vs. Ventura, 39 Phil. 523). INHABITED HOUSE any shelter, ship or vessel constituting the dwelling of one or more person even though temporarily absent dependencies, courts, corals, barns, etc. * NOT INCLUDED ORCHARD, LANDS FOR CULTIVATION. * Important for robbery by use of force upon things, it is necessary that offender enters the building or where object may be found. NO ENTRY, NO ROBBERY * In the absence of evidence to show how bandits effected an entrance into the convent which they robbed, there can be no conviction under this article. The act would be treated as Theft. ( U.S. vs. Callotes, 2 PHIL 16 )
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* The term force upon things has a legal meaning. It means the employment of force to effect entrance into the house or building by destroying the door, window, roof, wall or floor of the aforesaid house or building. In other words, the force upon things has no reference to personal property but to a house or building which is ordinarily classified as real property. * Entrance is necessary mere insertion of hand is not enough (whole body); not to get out but to enter therefore, evidence to such effect is necessary
Two predicates that will give rise to the crime as robbery: 1. 2. By mere entering alone, a robbery will be committed if any personal property is taken from within; The entering will not give rise to robbery even if something is taken inside. It is the breaking of the receptacle or closet or cabinet where the personal property is kept that will give rise to robbery, or the taking of a sealed, locked receptacle to be broken outside the premises.
* If by the mere entering, that would already qualify the taking of any personal property inside as robbery, it is immaterial whether the offender stays inside the premises. The breaking of things inside the premises will only be important to consider if the entering by itself will not characterize the crime as robbery with force upon things. * Modes of entering that would give rise to the crime of robbery with force upon things if something is taken inside the premises: entering into an opening not intended for entrance or egress, under Article 299 (a). Illustration: The entry was made through a fire escape. The fire escape was intended for egress. The entry will not characterize the taking as one of robbery because it is an opening intended for egress, although it may not be intended for entrance. If the entering were done through the window, even if the window was not broken, that would characterize the taking of personal property inside as robbery because the window is not an opening intended for entrance. Illustration: On a sari-sari store, a vehicle bumped the wall. The wall collapsed. There was a small opening there. At night, a man entered through that opening without breaking the same. The crime will already be robbery if he takes property from within because that is not an opening intended for the purpose. Even of there is a breaking of wall, roof, floor or window, but the offender did not enter, it would not give rise to robbery with force upon things. * Note that in the crime of robbery with force upon things, what should be considered is the means of entrance and means of taking the personal property from within. If those means do not come within the definition under the Revised Penal Code, the taking will only give rise to theft. * Those means must be employed in entering. If the offender had already entered when these means were employed, anything taken inside, without breaking of any sealed or closed receptacle, will not give rise to robbery.
Illustration: A found B inside his (As) house. He asked B what the latter was doping there. B claimed he is an inspector from the local city government to look after the electrical installations. At the time B was chanced upon by A, he has already entered. So anything he took inside without breaking of any sealed or closed receptacle will not give rise to robbery because the simulation of public authority was made not in order to enter but when he has already entered.
P v. Lamahang intent to rob being present is necessary Place: house or building; not car
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FALSE KEYS genuine keys stolen from the owner or any keys other than those intended by the owner for use in the lock PICKLOCKS specially made, adopted for commission of robbery KEY stolen not by force, otherwise, its robbery by violence and intimidation against persons * False key used in opening house and not furniture inside, otherwise, theft (for latter to be robbery., must be broken and not just opened)
* Use of picklocks or false keys refers to the entering into the premises If the picklock or false key was used not to enter the premises because the offender had already entered but was used to unlock an interior door or even a receptacle where the valuable or personal belonging was taken, the use of false key or picklock will not give rise to the robbery with force upon things because these are considered by law as only a means to gain entrance, and not to extract personal belongings from the place where it is being kept.
> E.g. pretending to be police to be able to enter (not pretending after entrance)
* When the robbery is committed in a house which is inhabited, or in a public building or in a place devoted to religious worship, the use of fictitious name or pretension to possess authority in order to gain entrance will characterize the taking inside as robbery with force upon things.
* If A and B told the occupant of the house that they were the nephews of the spouse of the owner of the house, and because of that, the closed door was opened, or that they were NBI agents executing a warrant of arrest, and so the occupant opened the door, any taking personal property thereat with intent to gain, would be Robbery.
Question & Answer Certain men pretended to be from the Price Control Commission and went to a warehouse owned by a private person. They told the guard to open the warehouse purportedly to see if the private person is hoarding essential commodities there. The guard obliged. They went inside and broke in . They loaded some of the merchandise inside claiming that it is the product of hoarding and then drove away. What crime was committed?
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ELEMENTS OF ROBBERY WITH FORCE UPON THINGS, SUBDIVISION (B) ART. 299
1. That the offender is inside a dwelling house, public building, or edifice devoted to religious worship, regardless of the circumstances under which he entered it 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. Notes: * Entrance ( no matter how done)
* If the entering does not characterize the taking inside as one of robbery with force upon things, it is the conduct inside that would give rise to the robbery if there would be a breaking of sealed, locked or closed receptacles or cabinet in order to get the personal belongings from within such receptacles, cabinet or place where it is kept.
* Offender may be servants or guests * A friend who has invited in a house and who enters a room where he finds a closed cabinet where money is kept, is guilty of robbery if he forcibly opens the said cabinet and takes the money contained therein. * When sealed box is taken out for the purpose of breaking it, no need to open already consummated robbery Estafa if box is in the custody of accused Theft if box found outside and forced open
Article 301 WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING OR BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES
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dependencies are all interior courts, corrals, warehouses, granaries or enclosed places: a. contiguous to the building b. having an interior entrance connected therewith c. which form part of the whole Garage must have 3 requirements. Exception: orchards/lands
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 303 ROBBERY OF CEREALS, FRUITS OR FIRE WOOD IN AN UNINHABITED PLACE OR PRIVATE BUILDING
* Under Article 303, if the robbery under Article 299 and 302 consists in the taking of cereals, fruits, or firewood, the penalty imposable is lower.
* The word cereals however must be understood to mean seedlings or semilla. It does not include hulled rice. It may include palay or unhulled palay. * While the law uses the term uninhabited place, it however refers to uninhabited building and its dependencies. If the cereals, fruits or firewood were taken outside a building and its dependencies, the crime committed would only be theft even though the taking was done in an uninhabited place.
BRIGANDAGE
Brigandage This is a crime committed by more than three armed persons who form a band of robbers for the purpose of committing robbery in the highway or kidnapping persons for the purpose of extortion or to obtain ransom, or for any other purpose to be attained by means of force and violence.
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Presumption of Brigandage: a. if members of lawless band and possession of unlicensed firearms (any of them) b. possession of any kind of arms (not just firearm) BRIGANDAGE ROBBERY IN BAND Purposes are given Only to commit robbery, not necessarily in hi-way Mere formation of a band for If the purpose is to commit a part robbery the above purpose Necessary to prove that band actually committed robbery * There is no need for the band robbers to execute the object of their association in order to hold them criminally liable for the crime of brigandage. * The primary object on the law on brigandage is to prevent the formation of bands of robbers. Hence, if the formed band commits robbery with the use of force upon persons or force upon things, their criminal liability shall be limited to the commission of such crimes. * Likewise, if the offenders are charged with robbery but the same is not established by the evidence and what appears clear are the elements of brigandage where the allegation in the information necessarily includes such offense, the offender can be convicted of the crime of brigandage. * It does not mean however that to constitute violation of P.D. 532, there must be a band. One or two persons can be held liable under this law if they perpetrated their acts of depredation in Philippine Highways against persons who are not pre-determined victims. * If the agreement among more than three armed men is to commit a particular robbery, brigandage is not committed because the latter must be an agreement to commit robbery in general or indiscriminately.
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(2)
* Brigandage under Presidential Decree No. 532 refers to the actual commission of the robbery on the highway and can be committed by one person alone. It is this brigandage which deserves some attention because not any robbery in a highway is brigandage or highway robbery. A distinction should be made between highway robbery/brigandage under the decree and ordinary robbery committed on a highway under the Revised Penal Code. * In People v. Puno, decided February 17, 1993, the trial court convicted the accused of highway robbery/ brigandage under Presidential Decree No. 532 and sentenced them to reclusion perpetua. On appeal, the Supreme Court set aside the judgment and found the accused guilty of simple robbery as punished in Article 294 (5), in relation to Article 295, and sentenced them accordingly. The Supreme Court pointed out that the purpose of brigandage is, inter alia, indiscriminate highway robbery. And that PD 532 punishes as highway robbery or Brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on a Philippine highway as defined therein, not acts committed against a predetermined or particular victim. A single act of robbery against a particular person chosen by the offender as his specific victim, even if committed on a highway, is not highway robbery or brigandage. * In US v. Feliciano, 3 Phil. 422, it was pointed out that highway robbery or brigandage is more than ordinary robbery committed on a highway. The purpose of brigandage is indiscriminate robbery in highways. If the purpose is only a particular robbery, the crime is only robbery or robbery in band, if there are at least four armed participants. * Presidential Decree No. 532 introduced amendments to Article 306 and 307 by increasing the penalties. It does not require at least four armed persons forming a band of robbers. It does not create a presumption that the offender is a brigand when he an unlicensed firearm is used unlike the Revised Penal Code. But the essence of brigandage under the Revised Penal Code is the same as that in the Presidential Decree, that is, crime of depredation wherein the unlawful acts are directed not only against specific, intended or preconceived victims, but against any and all prospective victims anywhere on the highway and whoever they may potentially be.
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The taking from an enclosed corral of a carabao belonging to another, after force is employed to destroy a part of the corral to enter the same, is considered merely as theft because corral is not a building nor a dependency of a building. (U. S. vs. Rosales, et al., 1 Phil. 300)
2. Those who a) having found lost property b) fail to deliver the same to local authorities or its owner Notes: * Retention of money/property found is theft. Retention is failure to return (intent to gain) * The word lost is used in the generic sense. It embraces loss by stealing or any act of a person other than the owner, as well as the act of the owner, or through some casual occurrence. (People vs. Rodrigo, 16 SCRA 475) * The felony is not limited to the actual finder. Theft of a lost property may be committed even by a person who is not the actual finder. (People vs. Avila, 44 Phil. 720) * Knowledge of owner is not required, knowledge of loss is enough * It is not necessary that the owner of the lost property be known to the accused. What is important is that he knows or has reason to know that the property was lost and for this fact alone, it is his duty to turn it over to the authorities. If he does otherwise, like, if he sells the thing to another, then the crime of theft is committed. * Finder in law is liable Hidden Treasure Under Article 438 and 439 of the Civil Code, the finder of hidden treasure on the property of another and by chance is entitled to one-half of the treasure that he found. His duty is to tell the owner about the treasure. If he appropriates the other half pertaining to the owner of the property, he is liable for theft as to that share. (People vs. Longdew, C. A. G. R. No. 9380-R, June 4, 1953) 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 * Theft of damaged property occurs only after the accused has committed the crime of malicious mischief. In malicious mischief, the offender destroys the property of another because of hatred, resentment or other evil motive against the owner. So, a neighbor who shoots and kills a goat which has destroyed his flower plants and thereafter slaughters and eats the meat of the wandering goat is guilty of theft.
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ELEMENTS OF HUNTING, FISHING OR GATHERING FRUITS, ETC. IN ENCLOSED ESTATE (PAR. NO.3, ART. 308)
1. That there is an enclosed estate or a field where trespass is forbidden or which belongs to another;
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When the subject is motor vehicle, the Theft becomes qualified. Under R.A. 6539, Anti-Carnapping Act of 1972, the term motor vehicle includes, within its protection, any vehicle which uses the streets, with or without the required license, or any vehicle which is motorized using the streets, such as a motorized tricycle. (Izon vs. People, 107 SCRA 123)
* The taking with intent to gain of a motor vehicle belonging to another, without the latters consent, or by means of violence or intimidation of persons, or by using force upon things is penalized as carnapping under Republic Act No. 6539 (An Act Preventing and Penalizing Carnapping), as amended. The overt act which is being punished under this law as carnapping is also the taking of a motor vehicle under circumstances of theft or robbery. If the motor vehicle was not taken by the offender but was delivered by the owner or the possessor to the offender, who thereafter misappropriated the same, the crime is either qualified theft under Article 310 of the Revised Penal Code or estafa under Article 315 (b) of the Revised Penal Code. Qualified theft of a motor vehicle is the crime if only the material or physical possession was yielded to the offender; otherwise, if juridical possession was also yielded, the crime is estafa.
* mail matter private mail to be QT, Not postmaster Art. 226 * theft of large cattle
Article 311 THEFT OF PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM USURPATION Article 312 OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY
Acts punished: 1. 2. Taking possession of any real property belonging to another by means of violence against or intimidation of persons; Usurping any real rights in property belonging to another by means of violence against or intimidation of persons.
ELEMENTS: 1. That the offender takes possession of any real property or usurps any real rights in property.
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* Since this is a crime against property, there must be intent to gain. In the absence of the intent to gain, the act may constitute Coercion.
* Use the degree of intimidation to determine the degree of the penalty to be applied for the usurpation. * Usurpation under Article 312 is committed in the same way as robbery with violence or intimidation of persons. The main difference is that in robbery, personal property is involved; while in usurpation of real rights, it is real property. (People v. Judge Alfeche, July 23, 1992)
* The possession of the land or real rights must be done by means of violence or intimidation. So, if the evidence of the prosecution shows that the accused entered the premises by means of strategy, stealth or methods other than the employment of violence, no crime was committed by the offender. (People vs. Alfeche, Jr., 211 SCRA 770)
* Usurpation of real rights and property should not be complexed using Article 48 when violence or intimidation is committed. There is only a single crime, but a two-tiered penalty is prescribed to be determined on whether the acts of violence used is akin to that in robbery in Article 294, grave threats or grave coercion and an incremental penalty of fine based on the value of the gain obtained by the offender.
* There is no crime of threat and usurpation of real property since threat is an indispensable element of usurpation of real rights. Hence, where threats are uttered to the owner of real property by one illegally occupying it, the crime committed is not the complex crime of usurpation of real property with grave threats because making a threat is an inherent element of usurpation of real property. (Castrodes vs. Cubelo, 83 SCRA 670)
* The complainant must be the person upon whom violence was employed. If a tenant was occupying the property and he was threatened by the offender, but it was the owner who was not in possession of the property who was named as the offended party, the same may be quashed as it does not charge an offense. The owner would, at most, be entitled to civil recourse only. On squatting According to the Urban Development and Housing Act, the following are squatters: 1. 2. 3. Those who have the capacity or means to pay rent or for legitimate housing but are squatting anyway; Also the persons who were awarded lots but sold or lease them out; Intruders of lands reserved for socialized housing, pre-empting possession by occupying the same.
* Note that violation of Article 312 is punishable only with fine. So, if physical injuries are inflicted on the victim due to the violence employed by the offender in the usurpation of real rights, the latter shall be punished separately for the crime of physical injuries. * Violence employed results to the death of the offended party. When such eventuality does occur, then the crime may rightfully be denominated as usurpation of real rights resulting to homicide, murder, parricide, or infanticide as the case may be.
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* It is necessary in this kind of estafa, for the money, goods or personal property to have been received by the offender in trust, or on commission or for administration. He must acquire both material or physical as well as juridical possession of the thing received. In these instances, the offender, who is the transferee, acquires a right over a thing which he may set up even against the owner. * A money market transaction however partakes of the nature of a loan, and non-payment thereof would not give rise to criminal liability for Estafa through misappropriation or conversion. In money market placements, the unpaid investor should institute against the middleman or dealer, before the ordinary courts, a simple action for recovery of the amount he had invested, and if there is allegation of fraud, the proper forum would be the Securities and Exchange Commission. (Sesbreno vs. Court of Appeals, et al., 240 SCRA 606). D. 2ND ELEMENT OF ESTAFA WITH ABUSE OF CONFIDENCE UNDER PARAGRAPH
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b. under PD 115 (Trust Receipts Law) failure to turn over to the bank the proceeds of
the sale of the goods covered by TR Estafa c. same thing received must be returned otherwise estafa; sale on credit by agency when it was to be sold for cash estafa d. Estafa not affected by Novation of Contract because it is a public offense e. Novation must take place before criminal liability was incurred or perhaps prior to the filing of the criminal information in court by state prosecutors
There must be prejudice to another not necessary that offender should obtain gain
* There is no estafa through negligence. There is likewise no estafa where the accused did not personally profit or gain from the misappropriation.
i. Partners No estafa of money or property received for the partnership when the
business is commercial and profits accrued. BUT if property is received for specific purpose and is misappropriated estafa! j. Failure to account after the DEMAND is circumstantial evidence of misappropriation
k. DEMAND is not a condition precedent to existence of estafa when misappropriation may be established by other proof l. In theft, upon delivery of the thing to the offender, the owner expects an immediate return of the thing to him otherwise, Estafa
m. Servant, domestic or employee who misappropriates a thing he received from his master is NOT guilty of estafa but of qualified theft When in the prosecution for malversation the public officer is acquitted, the private individual allegedly in conspiracy with him may be held liable for estafa MALVERSATION offenders are entrusted with funds or property and are continuing offenses Funds: public funds or property Offender: public officer accountable for public funds Committed by appropriating, taking, misappropriating
ESTAFA WITH ABUSE OF CONFIDENCE Offenders are entrusted with funds or property and are continuing offenses Funds: always private Offender: private individual, or public officer not accountable Committed by misappropriating, converting, denying having received money
E. ELEMENTS OF ESTAFA BY TAKING UNDUE ADVANTAGE OF THE SIGNATURE IN BLANK: (315) 1. That the paper with the signature of the offended party be in blank. 2. That the offended party should have delivered it to offender. 3. That above the signature of the offended party a document is written by the offender without authority to do so.
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* In the prosecution of estafa under Article 315, no. 2(a), it is indispensable that the element of deceit consisting in the false statement or fraudulent representation of the accused, be made prior to, before or at least simultaneously with the delivery of the thing by the offended party. The added requirement that such false statement or fraudulent representation constitutes the very motive or the only reason or cause which induces the offended party to part with the thing while they may be false representation after the delivery of the goods or the thing by the aggrieved party, such false statement or false representation, no matter how fraudulent and obnoxious it may appear, cannot serve as a basis for prosecution under this category of estafa. For the case to prosper against the accused, the prosecution
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G. ELEMENTS OF ESTAFA BY POSTDATING A CHECK OR ISSUING A CHECK IN PAYMENT OF AN OBLIGATION: (315) 1. That the offender postdated a check, or issued a check in payment of an obligation.
2. That such postdatig or issuing a check was done when the offender had no funds in the bank or his
funds deposited therein were not sufficient to cover the amount of the check. Notes:
Note that this only applies if (1) (2) The obligation is not pre-existing; The check is drawn to enter into an obligation; (Remember that it is the check that is supposed to be the sole consideration for the other party to have entered into the obligation. For example, Rose wants to purchase a bracelet and draws a check without insufficient funds. The jeweler sells her the bracelet solely because of the consideration in the check.) (3) It does not cover checks where the purpose of drawing the check is to guarantee a loan as this is not an obligation contemplated in this paragraph
* The check must be genuine. If the check is falsified and is cashed with the bank or exchanged for cash, the crime is estafa thru falsification of a commercial document. * The general rule is that the accused must be able to obtain something from the offended party by means of the check he issued and delivered. Exception: when the check is issued not in payment of an obligation. * It must not be promissory notes, or guaranties.
* good faith is a defense. (PP. VS. VILLAPANDO, 56 PHIL.31) * dishonor for lack of funds - prima facie evidence of deceit or failure to make good within three days after notice of.
* If the checks were issued by the defendant and he received money for them, then stopped payment and did not return the money, and he had an intention to stop payment when he issued the check, there is estafa. * Deceit is presumed if the drawer fails to deposit the amount necessary to cover the check within three days from receipt of notice of dishonor or insufficiency of funds in the bank.
* If check was issued in payment of pre-existing debt no estafa * It is therefore essential that the check be issued in payment of a simultaneous obligation. The check in question must be utilized by the offender in order to defraud
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BP 22
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 is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawee, without any valid reason, ordered the bank to stop payment. Note: Failure to make good within 5 banking days prima facie evidence of knowledge of lack and insufficiency I. ELEMENTS OF THE OFFENSE DEFINED IN THE SECOND PARAGRAPH OF
SECTION 1: BP 22
1. That a person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check.
2. 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.
3. That the check is dishonored by the drawee bank. Note: Failure to make good within 5 banking days prima facie evididence of knowledge of lack and insufficiency
Distinction between estafa under Article 315 (2) (d) of the Revised Penal Code and violation of Batas Pambansa Blg. 22: (1) Under both Article 315 (2) (d) and Batas Pambansa Blg. 22, there is criminal liability if the check is drawn for non-pre-existing obligation. If the check is drawn for a pre-existing obligation, there is criminal liability only under Batas Pambansa Blg. 22. (2) Estafa under Article 315 (2) (d) is a crime against property while Batas Pambansa Blg. 22 is a crime against public interest. The gravamen for the former is the deceit employed, while in the latter, it is the issuance of the check. Hence, there is no double jeopardy.
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* When is there prima facie evidence of knowledge of insufficient funds? * There is a prima facie evidence of knowledge of insufficient funds when the check was presented within 90 days from the date appearing on the check and was dishonored. Exceptions 1. 2. When the check was presented after 90 days from date; When the maker or drawer -a. b. Pays the holder of the check the amount due within five banking days after receiving notice that such check has not been paid by the drawee; Makes arrangements for payment in full by the drawee of such check within five banking days after notice of non-payment
* The drawee must cause to be written or stamped in plain language the reason for the dishonor. * If the drawee bank received an order of stop-payment from the drawer with no reason, it must be stated that the funds are insufficient to be prosecuted here.
* If the drawer has valid reasons for stopping payment, he cannot be held criminally liable under B.P. Blg. 22.
* The unpaid or dishonored check with the stamped information re: refusal to pay is prima facie evidence of (1) the making or issuance of the check; (2) the due presentment to the drawee for payment & the dishonor thereof; and (3) the fact that the check was properly dishonored for the reason stamped on the check. On issuance of a bouncing check The issuance of check with insufficient funds may be held liable for estafa and Batas Pambansa Blg. 22. Batas Pambansa Blg. 22 expressly provides that prosecution under said law is without prejudice to any liability for violation of any provision in the Revised Penal Code. Double Jeopardy may not be invoked because a violation of Batas Pambansa Blg. 22 is a malum prohibitum and is being punished as a crime against the public interest for undermining the banking system of the country, while under the Revised Penal Code, the crime is malum in se which requires criminal intent and damage to the payee and is a crime against property. In estafa, the check must have been issued as a reciprocal consideration for parting of goods (kaliwaan). There must be concomitance. The deceit must be prior to or simultaneous with damage done, that is, seller relied on check to part with goods. If it is issued after parting with goods as in credit accommodation only, there is no estafa. If the check is issued for a pre-existing obligation, there is no estafa as damage had already been done. The drawer is liable under Batas Pambansa Blg. 22. For criminal liability to attach under Batas Pambansa Blg. 22, it is enough that the check was issued to "apply on account or for value" and upon its presentment it was dishonored by the drawee bank for insufficiency of funds, provided that the drawer had been notified of the dishonor and inspite of such notice fails to pay the holder of the check the full amount due thereon within five days from notice. Under Batas Pambansa Blg. 22, a drawer must be given notice of dishonor and given five banking days from notice within which to deposit or pay the amount stated in the check to negate the presumtion that drawer knew of the insufficiency. After this period, it is conclusive that drawer knew of the insufficiency, thus there is no more defense to the prosecution under Batas Pambansa Blg. 22. * The mere issuance of any kind of check regardless of the intent of the parties, whether the check is intended to serve merely as a guarantee or as a deposit, makes the drawer liable under Batas Pambansa Blg. 22 if the check bounces. As a matter of public policy, the issuance of a worthless check is a public nuisance and must be abated.
* Each act of drawing and issuing a bouncing check constitutes a violation of B. P. Blg. 22.
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* Cross checks do not make them non-negotiable and therefore they are within the coverage of B. P. Blg. 22. * The law does not distinguish between foreign and local checks. (De Villa vs. Court of Appeals, et al., 195 SCRA 722).
* But overdraft or credit arrangement may be allowed by banks as to their preferred clients and Batas Pambansa Blg. 22 does not apply. If check bounces, it is because bank has been remiss in honoring agreement. * The check must be presented for payment within a 90-day period. If presented for payment beyond the 90 day period and the drawers funds are insufficient to cover it, there is no Batas Pambansa Blg. 22 violation. * Where check was issued prior to August 8, 1984, when Circular No. 12 of the Department of the Justice took effect, and the drawer relied on the then prevailing Circular No. 4 of the Ministry of Justice to the effect that checks issued as part of an arrangement/agreement of the parties to guarantee or secure fulfillment of an obligation are not covered by Batas Pambansa Blg. 22, no criminal liability should be incurred by the drawer. Circular should not be given retroactive effect. (Lazaro v. CA, November 11, 1993, citing People v. Alberto, October 28, 1993)
* Failure to pay food or accommodation in a hotel, restaurant or inn usually gives rise to civil liability but if the intent to defraud is clear like a surreptitious removal of baggage from the hotel, or resorting to deceitful means to evade payment, the act shall be punished criminally as Estafa. K. ELEMENTS OF ESTAFA BY INDUCING ANOTHER TO SIGN ANY DOCUMENTS : (315)
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L. ELEMENTS OF ESTAFA BY REMOVING, CONCEALING OR DESTROYING DOCUMENTS: (315) 1. That there be court records, office files, documents or any other papers. 2. That the offender removed, concealed or destroyed any of them. 3. That the offender had intent to defraud another. * In order to commit a crime, the offender must have the intention to defraud. In other words, the removal, concealment or destruction of the court record should be done with the intent to defraud the victim. This is distinguished from the crime of removal, concealment or destruction of documents under Article 226 wherein fraud is not an element of the crime, and which is committed only by public officers. What is punished under this Article is the damage to public interest. * If the act of removing, concealing or destroying results from hatred, revenge, or other evil motive, the crime committed is malicious mischief under Article 327. Note: No intent to defraud destroying or removal = malicious mischief When a lawyer, pretending to verify a certain pleading in a case pending before a court, borrows the folder of the case, and removes or destroys a document which constitute evidence in the said case, said lawyer is guilty of Estafa under par. 3 (c) of Article 315, RPC.
SYNDICATED ESTAFA.
A syndicate of five or more persons formed with intent to carry out an unlawful or illegal act, transaction or scheme and defraudation which results in misappropriation of money contributed by stockholders or members of rural banks, cooperatives, samahang nayon or formers association; or funds contributed by corporations or associations for the general welfare. M. DAMAGE OR PREJUDICE CAPABLE OF PECUNIARY ESTIMATION: (315) (second element of any form of estafa) THE ELEMENTS OF DAMAGE OR PREJUDICE MAY CONSIST OF THE FF.: 1. The offender party being deprived of his money or property, as a result of the defraudation. 2. Disturbance in property right or 3. Temporary prejudice.
ELEMENTS OF SWINDLING (PAR.1) BY CONVEYING, SELLING, ENCUMBERING, OR MORTGAGING ANY REAL PROPERTY, PRETENDING TO BE THE OWNER OF THE SAME: (316)
N.
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P. ELEMENTS OF SWINDLING (PAR.3) BY WRONGFULLY TAKING BY THE OWNER HIS PERSONAL FROM ITS LAWFUL POSSESSOR: (316) 1. That the offender is the owner of personal property. 2. That said personal property is in the lawful possession of another. 3. That the offender wrongfully takes it from its lawful possessor. 4. That prejudice is thereby caused to the possessor or third person.
Under paragraph 4 by executing any fictitious contract to the prejudice of another Under paragraph 5 by accepting any compensation for services not rendered or for labor not performed
ENCUMBERING REAL PROPERTY OR PROPERTIES WITH WHICH THE OFFENDER GUARANTEED THE FULFILLMENT OF HIS OBLIGATION AS SURETY:
(316) 1. That the offender is a surety in a bond given in a criminal or civil action. 2. That he guaranteed the fulfillment of such obligation with his real property or properties.
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R. ELEMENTS OF SWINDLING A MINOR: (317) 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. 4. That the transaction is to the detriment of such minor. * The property referred to in this article is not real property. It is limited to personal property since a minor cannot convey real property without judicial intervention. So, if what is involved is real property, the crime of swindling a minor under this article is not committed even if the offender succeeds in inducing the minor to deal with such real property since no damage or detriment is caused against the minor. S. ELEMENTS OF OTHER DECEITS: (318) 1. not mentioned above; 2. interpretation of dreams, forecast, future-telling for profit or gain. * The meaning of other deceits under this article has reference to a situation wherein fraud or damage is done to another by any other form of deception which is not covered by the preceding articles. * Another form of deceit would be in the nature of interpreting dreams, or making forecasts, telling fortunes or simply by taking advantage of the credulity of the public by any other similar manner, done for profit or gain.
CHATTEL MORTGAGE Article 319 A. SELLING OR PLEDGING PERSONAL PROPERTY ALREADY PLEDGED
ELEMENTS: 1. That personal property is already pledged under the terms of the chattel mortgage law. 2. That the offender, who is the mortgagee of such property, sells or pledges the same or any part thereof. 3. 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.
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g. destroying telegraph wires and posts or those of any other system h. other similar effective means of destruction
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Article 331 DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR PAINTINGS Article 332 EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY
Persons exempt from criminal liability 1. Spouse, ascendants and descendants or relatives by affinity in the same line
2. The widowed spouse with respect to the property w/c belonged to the deceased spouse before the same passed into the possession of another 3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together
Offenses involved in the exemption 1. Theft ( not robbery ) 2. 3. Notes: * Exemption is based on family relations * For the exemption to apply insofar as brothers and sisters, and brothers-in-law and sisters-in-law are concerned, they must be living together at the time of the commission of the crime of theft, estafa or malicious mischief. * Parties to the crime not related to the offended party still remains criminally liable Persons exempt include: a. stepfather/mother (ascendants by affinity) b. adopted children (descendants) c. concubine/paramour (spouse) d. common law spouse (property is part of their earnings)
* Only the relatives enumerated incur no liability if the crime relates to theft (not robbery), swindling, and malicious mischief. Third parties who participate are not exempt. The relationship between the spouses is not limited to legally married couples; the provision applies to live-in partners.
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* Mitigated if wife was abandoned without justification by the offended spouse (man is entitled to this mitigating circumstance) * Abandonment without justification is not exempting but only a mitigating circumstance. One who invokes abandonment in the crime of adultery hypothetically admits criminal liability for the crime charged. (U. S. vs. Serrano, et al., 28 Phil. 230) * While abandonment is peculiar only to the accused who is related to the offended party and must be considered only as to her or him as provided under Article 62, paragraph 3, nonetheless, judicially speaking, in the crime of adultery, there is only one act committed and consequently both accused are entitled to this mitigating circumstance. (People vs. Avelino, 40 O.G. Supp. 11, 194) Attempted: caught disrobing a lover
* There is no frustrated adultery because of the nature of the offense.
* In the case of People vs. Pontio Guinucud, et al., (58 Phil. 621), a private agreement was entered into between the husband and wife for them to separate from bed and board and for each of them to go for his and her own separate way. Thereafter, the wife Rosario Tagayum lived with her co-accused Pontio Guinucud in a nearby barangay. Their love affair ultimately embroiled the spouses conservative and reputable families in a human drama exposed in legal battles and whispers of unwanted gossips. In dismissing the complaint, the Court ruled that while a private agreement between the husband and wife was null and void, the same was admissible proof of the express consent given by the condescending husband to the prodigal wife, a license for her to commit adultery. Such agreement bars the husband from instituting a criminal complaint for adultery. * After filing the complaint for adultery and while the case is pending trial and resolution by the trial court, the offended spouse must not have sexual intercourse with the adulterous wife since an act of intercourse subsequent to the adulterous conduct is considered as implied pardon. (People vs. Muguerza, et al., 13 C.A. Rep. 1079) * It is seldom the case that adultery is established by direct evidence. The legal tenet has been and still is circumstancial and corroborative evidence as will lead the guarded discretion of a reasonable and just man to the conclusion that the criminal act of adultery has been committed will bring about conviction for the crime. (U. S. vs. Feliciano, 36 Phil. 753)
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* If the charges consist in keeping a mistress in the conjugal dwelling, there is no need for proof of sexual intercourse. The conjugal dwelling is the house of the spouse even if the wife happens to be temporarily absent therefrom. The woman however must be brought into the conjugal house by the accused husband as a concubine to fall under this article. Thus, if the co-accused was voluntarily taken and sheltered by the spouses in their house and treated as an adopted child being a relative of the complaining wife, her illicit relations with the accused husband does not make her a mistress. (People vs. Hilao, et al., (C.A.) 52 O.G. 904). * It is only when a married man has sexual intercourse with a woman elsewhere that scandalous circumstances becomes an element of crime. * For the existence of the crime of concubinage by having sexual intercourse under scandalous circumstances, the latter must be imprudent and wanton as to offend modesty and sense of morality and decency. * When spies are employed to chronicle the activities of the accused and the evidence presented to prove scandalous circumstances are those taken by the detectives, it is obvious that the sexual intercourse done by the offenders was not under scandalous circumstances. (U.S. vs. Campos-Rueda, 35 Phil. 51)
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2.
Article 339. Acts of Lasciviousness with the Consent of the Offended Party: Under this article, the victim is limited only to a woman. The circumstances under which the lascivious acts were committed must be that of qualified seduction or simple seduction, that is, the offender took advantage of his position of ascendancy over the offender woman either because he is a person in authority, a domestic, a househelp, a priest, a teacher or a guardian, or there was a deceitful promise of marriage which never would really be fulfilled.
* Always remember that there can be no frustration of acts of lasciviousness, rape or adultery because no matter how far the offender may have gone towards the realization of his purpose, if his participation
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* In the crime of acts of lasciviousness, the intention of the wrongdoer is not very material. The motive that impelled the accused to commit the offense is of no importance because the essence of lewdness is in the act itself. * What constitutes lewd or lascivious conduct must be determined from the circumstances of each case. The demarcation line is not always easy to determine but in order to sustain a conviction for acts of lasciviousness, it is essential that the acts complained of be prompted by lust or lewd designs and the victim did not consent to nor encouraged the act. * To be guilty of this crime however, the acts of lasciviousness must be committed under any of the circumstances that had there been sexual intercourse, the crime would have been Rape. Where circumstances however are such, indicating a clear intention to lie with the offended party, the crime committed as Attempted Rape. * This crime (Art. 336) can be committed by either sex unlike in Acts of Lasciviousness with Consent under Article 339. Thus, a lesbian who toyed with the private part of an eleven-year-old girl who enjoyed it since she was given $50 dollars before the act, is guilty of Act of Lasciviousness under this Article as the victim is below twelve year old; and had sexual intercourse been possible and done, the act would have been Rape.
1.
That the offended party is a virgin, (presumed if she 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.
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: 1. Those who abuse their authority: a. persons in public authority b. guardian c. teacher d. person who, in any capacity, is entrusted with the education or custody of the woman seduced Those who abused the confidence reposed in them: a. priest b. house servant c. domestic
2.
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* This crime also involves sexual intercourse. The offended woman must be over 12 but below 18 years. * The distinction between qualified seduction and simple seduction lies in the fact, among others, that the woman is a virgin in qualified seduction, while in simple seduction, it is not necessary that the woman be a virgin. It is enough that she is of good repute. * For purposes of qualified seduction, virginity does not mean physical virginity. offended party has not had any experience before. It means that the
* The virginity referred to here, is not to be understood in so material a sense as to exclude the idea of abduction of a virtuous woman of a good reputation. Thus, when the accused claims he had prior intercourse with the complainant, the latter is still to be considered a virgin (U.S. vs. Casten, 34 Phil. 808). But if it was established that the girl had a carnal relations with other men, there can be no crime of Seduction as she is not a virgin.
* Although in qualified seduction, the age of the offended woman is considered, if the offended party is a descendant or a sister of the offender no matter how old she is or whether she is a prostitute the crime of qualified seduction is committed. Illustration: If a person goes to a sauna parlor and finds there a descendant and despite that, had sexual intercourse with her, regardless of her reputation or age, the crime of qualified seduction is committed. * In the case of a teacher, it is not necessary that the offended woman be his student. It is enough that she is enrolled in the same school. * Deceit is not necessary in qualified seduction. Qualified seduction is committed even though no deceit intervened or even when such carnal knowledge was voluntary on the part of the virgin. This is because in such a case, the law takes for granted the existence of the deceit as an integral element of the crime and punishes it with greater severity than it does the simple seduction, taking into account the abuse of confidence on the part of the agent. Abuse of confidence here implies fraud.
* The fact that the offended party gave her consent to the sexual intercourse is not a defense. Lack of consent on the part of the complainant is not an element of the crime. * The term domestic refers to a person usually living under the same roof with the offended party. It includes all those persons residing with the family and who are members of the same household, regardless of the fact that their residence may only be temporary or that they may be paying for their board and lodging. * A domestic should not be confused with a house servant. A domestic is not necessarily a house servant. * Where the offended party is below 12 years of age, regardless of whether the victim is a sister or a descendant of the offender, the crime committed is rape. * If the offended party is married and over 12 years of age, the crime committed will be adultery. * An essential element of a qualified seduction is virginity (doncella). It is a condition existing in a woman who has had no sexual intercourse with any man. It does not refer to the condition of the hymen as being intact. * One who is charged with qualified seduction can be convicted of rape. But one who is charged with rape cannot be convicted of qualified seduction under the same information. (People vs. Ramirez, 69 SCRA 144) * Even if the woman has already lost her virginity because of rape, in the eyes of the law, she remains a virtuous woman even if physically she is no longer a virgin.
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Article 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 virgin or single or 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.
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* A single act of promoting or facilitating the corruption or prostitution of a minor is sufficient to constitute violation of this article. * What the law punishes is the act of pimp (bugaw) who facilitates the corruption of a minor. It is not the unchaste act of the minor which is being punished. So, a mere proposal to promote or facilitate the prostitution or corruption of a minor is sufficient to consummate the crime. * Young minor should enjoy a good reputation. Apparently, a prostitute above 12 and under 18 years of age cannot be the victim in the crime of corruption of minors.
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* Unlike in Rape and Seduction, in the crime of Abduction, whether Forcible or Consented, there is no sexual intercourse. The acts are limited to taking away from a place the victim, but the same must be with lewd designs, that is, with unchaste design manifested by kissing and touching the victims private parts.
* If the element of lewd design is present, the carrying of the woman would qualify as abduction; otherwise, it would amount to kidnapping. If the woman was only brought to a certain place in order to break her will and make her agree to marry the offender, the crime is only grave coercion because the criminal intent of the offender is to force his will upon the woman and not really to restrain the woman of her liberty.
* Where lewd design was not proved or shown, and the victim was deprived of her liberty, the crime is Kidnapping with Serious Illegal Detention under this Article 267, RPC. * The element of lewd designs, which is essential to the crime of abduction through violence refers to the intention to abuse the abducted woman. If such intention is lacking or does not exist, the crime may be illegal detention. It is necessary to establish the unchaste design or purpose of the offender. But it is sufficient that the intent to seduce the girl is present. The evil purpose of the offender may be established or inferred from the overt acts of the accused.
* If the offended woman is under 12 years old, even if she consented to the abduction, the crime is forcible abduction and not consented abduction. * Where the offended woman is below the age of consent, even though she had gone with the offender through some deceitful promises revealed upon her to go with him and they live together as husband and wife without the benefit of marriage, the ruling is that forcible abduction is committed by the mere carrying of the woman as long as that intent is already shown. In other words, where the man cannot possibly give the woman the benefit of an honorable life, all that man promised are just machinations of a lewd design and, therefore, the carrying of the woman is characterized with lewd design and would bring about the
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* Lewd design does not include sexual intercourse. So, if sexual intercourse is committed against the offended party after her forcible abduction, the offender commits another crime separate and distinct from forcible abduction. In this case, the accused should be charged with forcible abduction with rape. (People vs. Jose, et al., 37 SCRA 450) * If the accused carried or took away the victim by means of force and with lewd design and thereafter raped her, the crime is Forcible Abduction with Rape, the former being a necessary means to commit the latter. The subsequent two (2) other sexual intercourse committed against the will of the complainant would be treated as independent separate crimes of Rape. (People vs. Bacalso, 210 SCRA 206). * If the main object of the offender is to rape the victim, and the forcible abduction was resorted to by the accused in order to facilitate the commission of the rape, then the crime committed is only rape. (People vs. Toledo, 83 Phil. 777) * Where the victim was taken from one place to another, solely for the purpose of killing him and not detaining him for any legal length of time, the crime committed is murder. (People vs. Ong, 62 SCRA 174) * True intention of the offender should be ascertained. If the detention is only incidental, the same should be considered as absorbed. Otherwise, it should be treated as a separate offense. When such a situation arises, we should consider the application of Article 48 on complex crimes.
* The taking away of the woman may be accomplished by means of deceit at the beginning and then by means of violence and intimidation later. * The virginity of the complaining witness is not a determining factor in forcible abduction. * In order to demonstrate the presence of the lewd design, illicit criminal relations with the person abducted need not be shown. The intent to seduce a girl is sufficient. * If there is a separation in fact, the taking by the husband of his wife against her will constitutes grave coercion. Distinction between forcible abduction and illegal detention: When a woman is kidnapped with lewd or unchaste designs, the crime committed is forcible abduction. When the kidnapping is without lewd designs, the crime committed is illegal detention. > But where the offended party was forcibly taken to the house of the defendant to coerce her to marry him, it was held that only grave coercion was committed and not illegal detention.
* Forcible abduction must be distinguished from the crime of kidnapping. When the violent taking of a woman is motivated by lewd design, the crime committed is forcible abduction. But if the motive of the offender is to deprive the woman of her liberty, the crime committed is kidnapping. Abduction is a crime against chastity while kidnapping is a crime against personal liberty.
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Article 344 PROSECUTION OF ADULTERY, CONCUBINAGE, SEDUCTION, ABDUCTION RAPE AND ACTS OF LASCIVIOUSNESS
1. Adultery and concubinage must be prosecuted upon complaint signed by the offended spouse 2. Seduction, abduction, rape or acts of lasciviousness must be prosecuted upon complaint signed by: a. b. c. d. offended party by her parents grandparents guardians in the order in which they are named above
* The crimes of adultery and concubinage must be prosecuted upon a complaint signed by the offended spouse. In the complaint, the offended party must include both guilty parties if they are both alive. * Distinguished between a private crime and a public crime. In the case of a private crime, the same cannot be prosecuted de oficio, meaning it cannot be initiated by any person except the offended party. These are the crimes against chastity such as seduction, adultery, concubinage and acts of lasciviousness. These are crimes which are initiated with the filing of an information. A public crime is one which can be prosecuted de officio, meaning it can be prosecuted by any person interested to
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* Pardon in crimes against chastity, is a bar to prosecution. But it must come before the institution of the criminal action. (See the cases of People vs. Villorente, 210 SCRA 647; People vs. Avila, 192 SCRA 635) To be effective, it must include both accused. How about pardon declared by the offended party during the trial of the case? Such a declaration is not a ground for the dismissal of the case. Pardon is a matter of defense which the accused must plead and prove during the trial. (People vs. Riotes, C.A., 49 O.G.3403).
* All these private crimes except rape cannot be prosecuted de officio. If any slander or written defamation is made out of any of these crimes, the complaint of the offended party is still necessary before such case for libel or oral defamation may proceed. It will not prosper because the court cannot acquire jurisdiction over these crimes unless there is a complaint from the offended party. The paramount decision of whether he or she wanted the crime committed on him or her to be made public is his or hers alone, because the indignity or dishonor brought about by these crimes affects more the offended party than social order. The offended party may prefer to suffer the outrage in silence rather than to vindicate his honor in public.
Article 345 CIVIL LIABILITY OF PERSONS GUILTY OF RAPE, SEDUCTION OR ABDUCTION Sigma Rho ( ) reviewers
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Article 346 LIABILITY OF ASCENDANTS, OTHER PERSONS ENTRUSTED WITH CUSTODY OF OFFENDED PARTY WHO BY ABUSE OF AUTHORITY OR CONFIDENCE SHALL COOPERATE AS ACCOMPLIES
Article 347 SIMULATION OF BIRTHS, SUBSTITUTION OF ONE CHILD FOR ANOTHER, AND CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD
Acts Punished: 1. Simulation of births 2. Substitution of one child for another 3. Concealing or abandoning any legitimate child with the intent to cause such child to lose its civil status Requisites:
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* A simulated marriage is not marriage at all and can be used as a defense for bigamy
* Good faith is a defense in bigamy. * One who, although not yet married before, knowingly consents to be married to one who is already married is guilty of bigamy knowing that the latters marriage is still valid and subsisting.
* In the crime of bigamy, the second spouse is not necessarily liable. The language of Article 349 indicates the crime of bigamy is committed by one person who contracts a subsequent marriage while the former marriage is valid and subsisting. If the second wife knew of the previous marriage of the accused, she will be liable for the crime of bigamy but only as an accomplice. * There must be a summary proceeding to declare the absent spouse presumptively dead for purposes of remarriage * Failure to exercise due diligence to ascertain the whereabouts of the 1 st wife is bigamy through reckless imprudence
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* One who vouches that there is no legal impediment knowing that one of the parties is already married is an accomplice
Distinction between bigamy and illegal marriage: Bigamy is a form of illegal marriage. The offender must have a valid and subsisting marriage. Despite the fact that the marriage is still subsisting, he contracts a subsequent marriage. Illegal marriage includes also such other marriages which are performed without complying with the requirements of law, or such premature marriages, or such marriage which was solemnized by one who is not authorized to solemnize the same.
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5. Marriage solemnized by a minister or priest who does not have the required authority to marriages.
* Article 84 of the Civil Code provides that no marriage license shall be issued to a widow until after 300 days following the death of her husband, unless in the meantime she has given birth to a child.
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* Malice is presumed to exist in injurious publications * Where the imputation is based upon matters of public interest, the presumption of malice does not arise from the mere publication of the defamatory statement. A matter of public interest is common property. Malice in fact comes into play when the statement made is not defamatory per se, as when the offender resorts to underserved praises or satirical method of impeaching the virtue, honesty and reputation of the offended party. It can also appear in the form of innuendos. * This discussion leads to the conclusion that the determination of libelous meaning is left to the good judgment of the court after considering all the circumstances which lead to the utterance or publication of the defamatory statement. The question is not what the writer of an alleged libel means but what the words used by him mean. The meaning given by the writer or the words used by him is immaterial. The question is not what the writer meant but what he conveyed to those who heard or read him (People vs. Encarnacion, 204 SCRA 1) How to overcome the presumption of malice. The presumption of malice is rebutted by showing : 1. that the accused published the defamatory imputation with good intention; 2. that there is justifiable motive for making it; 3. that the communication made is privileged; and 4. accused must prove the truth of the defamatory imputation in those cases wherein truth is a defense.
PUBLICATION is the communication of the defamatory matter to some third person/s Publication is the communication of the defamatory matter to a third person or persons. So, the delivery of a defamatory writing to a typesetter is sufficient publication. Writing a letter to another person other than the person defamed is sufficient publication. (See Sazon vs. Court of Appeals, 255 SCRA 692)
> The crime is libel if the defamation is in writing or printed media. > The crime is slander or oral defamation if it is not printed.
* 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 plaintiff.
* When a libel is addressed to several persons, unless they are identified in the same libel, even if there are several persons offended by the libelous utterance or statement, there will only be one count of libel. * If the offended parties in the libel were distinctly identified, even though the libel was committed at one and the same time, there will be as many libels as there are persons dishonored. Illustration:
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* To presume publication there must be a reasonable probability that the alleged a libelous matter was thereby exposed to be read or seen by 3rd persons. Republication of defamatory article is punishable. One is liable for publication of defamatory words against another although he is only repeating what he heard and names the source of his information. A person who repeats a slander or libelous publication heard or read from another is presumed to indorse it. (People vs. Salumbides and Reanzares, C.A., 55 O.G. 2638) Criterion to determine whether statements are defamatory 1) words are calculated to induce the hearers to suppose and understand that the person against who 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(US v OConnel) 2 )construed not only as to the expression used but also with respect to the whole scope and apparent object of the writer.(P v Encarnacion) * The test of libelous meanings is not the analysis of a sentence into component phrases with the meticulous care of the grammarian or stylist, but the import conveyed by the entirety of the language to the ordinary reader. (Lacsa vs. FAC, et al., 161 SCRA 427). * In libel cases, the question is not what the offender means but what the words used by him mean. ( Sazon vs. CA, 255 SCRA 692) Praises undeserved are slander in disguise. Where the comments are worded in praise of the plaintiff, like describing him with qualities which plaintiff does not deserve because of his social, political and economic status in the community which is too well known to all concerned, are which intended are intended to ridicule rather than praise him, the publication is deemed libelous (Jimenez vs. Reyes, 27 SCRA 52)
* Even if what was imputed is true, the crime of libel is committed unless one acted with good motives or justifiable end. Poof of truth of a defamatory imputation is not even admissible in evidence, unless what was imputed pertains to an act which constitutes a crime and when the person to whom the imputation was made is a public officer and the imputation pertains to the performance of official duty. Other than these, the imputation is not admissible. When proof of truth is admissible 1. 2. When the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer; When the offended party is a government employee, even if the act or omission imputed does not constitute a crime, provided if its related to the discharged of his official duties.
Requisites of defense in defamation 1. If it appears that the matter charged as libelous is true;
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If a crime is a private crime, it cannot be prosecuted de officio. A complaint from the offended party is necessary.
Newsweek v IAC Newsweek portrayed the island province of Negros Occidental as a place dominated by big landowners. Plaintiffs are associations of sugarcane planters. HELD: Dismissed. To maintain a libel suit, the specific victim must be identifiable. Defamatory remarks directed at a group of persons are not actionable unless the statements are all-embracing or sufficiently specific for victim to be identifiable. An action for libel allegedly directed against a group of sugar planters cannot be done by resort to filing a class suit as each victim has his specific reputation to protect. In this case, each of the plaintiffs has a separate and distinct reputation in the community. Rule regarding Public Officers: 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 the accused proves the truth of the imputation. But any attack upon the private character of the public officers on matters which are not related to the discharge of their official functions may constitute Libel. * Where malice cannot be inferred from false defamatory statements, the ruling appears to be the true only if the offended party is a government employee, with respect to facts related to the discharge of his official duties. With his jurisprudence, it should now be emphasized that actual malice is now required to be proven. It is enough to rely on presumed malice in libel cases involving a public official or public figure. * Malice is now understood to mean publication with knowledge of falsehood or reckless disregard of the statements veracity. The burden of proof has not only been shifted to the plaintiff in libel, but proof has not only been shifted to the plaintiff in libel, but proof of malice must now be clear and convincing. Case Doctrines: * The fact that a communication is privileged is not a proper ground for the dismissal of a complaint for libel. In the first place, it is a matter of defense. Secondly, the fact that a communication is privileged does not mean that it is not actionable. The privileged character simply does away with the presumption of malice which the prosecution has to prove in such a case. (Lu Chu Sing, et al., vs. Lu Tiong Gui, 76 Phil. 669) * Libel in answer to another libel is not a defense. (Pellicena vs. Gonzales, 6 Phil. 50) * If the defamatory imputation is in the nature of self-defense under Article 11 of the Revised Penal Code such that the publication was done in good faith, without malice and just adequate enough to protect his good name, the statement may be considered privileged. (People vs. Baja, 40 O.G. 206; People vs. Mendoza, C.A. 74 O.G. 5607) * The fair and true report of official proceedings refer to proceedings in the three branches of government, to wit: judicial, legislative and executive. The publisher is limited only to the narration of what had taken place even if the report contains defamatory and injurious matter affecting another person, libel is not committed for as long as what is contained is a fair and true report of the proceedings. * Under Article 354, the publisher becomes liable when he makes comments or remarks upon the private character of person, which are not relevant or related to the judicial, legislative or executive proceedings.
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a. ABSOLUTELY PRIVILEGED not actionable even if the actor has acted in bad faith b. QUALIFIEDLY PRIVILEGED those which although containing defamatory
imputations could not be actionable unless made with malice or bad faith * When the defamatory imputation comes under the criteria of an absolute privileged communication, the presumption of malice under Article 354 has no application. * The presumption of malice, however, comes into play when the defamatory statement is a conditional or qualified privileged communication. To overcome this presumption of malice in law, the defamer must prove during the proceeding that the defamatory imputation was committed because of a legal, moral or social duty. * Privileged communication as categorized in this discussion is a matter of defense. It is not a ground for a motion to quash after the arraignment of the accused. (See Mercado vs. CFI of Rizal, 116 SCRA 93). If after the prosecution has presented its evidence, it becomes evident that the defamatory statement was made by the accused because of a legal, moral or social duty, then the accused can file a demurrer to evidence, as in the meantime, there is absence of malice in law which is presumed in all defamatory imputations. 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 EXCEPTION: a. private communication in performance of legal, moral or social duty Requisites 1. that the person who made the communication had a legal, moral or social duty to make the communication or at least he had an interest to be upheld 2. that the communication is addressed to an officer or a board, or superior, having some interest or duty on the matter 3. that the statements in the communication are made in good faith without malice in fact b. fair and true report, made in good faith, without any comments and remarks Requisites 1. 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 2. that it is made in good faith
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Doctrine of fair comment A fair comment on matters of public interest is included and is covered by the mantle of privileged communication which constitutes a valid defense against libel and slander. If the comment is an expression of opinion based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might be reasonably inferred from the facts. Further explaining the right to comment on a public issue, the Court said, If a matter is a subject of public or general interest, it cannot become less so merely because a private individual is involved. The public primary interest is in the event; the public focus is on the conduct of the participants and not on their prior anonymity or notoriety. ( Borjal vs. CA, 301 SCRA 1 ) Santos v CA HELD: No malice, he simply furnished the readers with the info that a complaint has been filed against the brokerage firm and reproduced the pleading verbatim with no embellishments.
* In the enumeration above, television is not included, probably because at the time the Revised Penal Code was conceived, television had not yet been invented. However, the law provides, or any similar means which easily qualifies television is such species or category. (People vs. Casten, C.A., G.R. No. 07924-CR promulgated December 13, 1974)
AND
OFFER
TO
PREVENT
SUCH
Threatening another to publish a libel concerning him, or his parents, spouse, child, or other members of his family; Offering to prevent the publication of such libel for compensation or money consideration.
* It involves the unlawful extortion of money by appealing to the fear of the victim, through threats of accusation or exposure. It contemplates of two offenses: a threat
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Article 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. 3. That such facts are offensive to the honor, virtue and reputation of said person. Note: * Even though made in connection with or under the pretext that it is necessary in the narration of any judicial or administrative proceedings wherein such facts have been mentioned. * With its provisions, Article 357 has come to be known as the Gag Law. It prohibits reporters, editors or managers of newspapers from publishing articles containing facts connected with the private life of an individual; facts which are offensive to the honor, virtue and reputation of persons. But these must refer to facts which are intimately related to the offended partys family and home. Occasionally, it involves conjugal troubles and quarrels because of infidelity, adultery or crimes involving chastity. Lacsa v IAC Lacsa found that Marquez was not a proprietary member of PCA thus not qualified to be president. He wrote to the BOD and to Marquez. He caused to publish the second letter. HELD: Letter is not privileged communication. To be classified as such it must be free from malice. Granting that the letter was privileged communication, written out of a duty of an officer towards the members, such character was lost when it was published. * Under Republic Act No. 1477, amending Rep. Act. No. 58, the publisher, editor, columnist or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news report information appearing in the said publication which was related to him in confidence unless the court or a house or committee of Congress finds that such revelation is demanded by the security of the State.
1. action of a serious and insulting nature (Grave slander) 2. light insult or defamation not serious in nature (simple slander)
Factors that determine gravity of the offense:
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(People vs. Atienza, G.R. No. L-19857, Oct. 26, 1968 ) It is a common expression of anger or displeasure. It is seldom taken in its literal sense by the hearer. It is viewed more as a threat on the part of the accused to manifest and emphasize a point. (Reyes vs. People, 27 SCRA 686) Article 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. 3. That such act casts dishonor, discredit or contempt upon the offended party. Notes: Slander by deed is a defamation committed by the offender against the complainant through the performance of any act which casts dishonor, discredit or contempt upon another person. * Slander by deed refers to performance of an act, not use of words.
Two kinds of slander by deed 1. 2. Simple slander by deed; and Grave slander by deed, that is, which is of a serious nature.
* Whether a certain slanderous act constitutes slander by deed of a serious nature or not, depends on the
social standing of the offended party, the circumstances under which the act was committed, the occasion, etc.
* The acts of slapping and boxing the woman, a teacher, in the presence of many people has put her to dishonor, contempt and ridicule. (P v Costa)
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* If the incriminating machination is made orally, the crime may be slander or oral defamation. * If the incriminatory machination was made in writing and under oath, the crime may be perjury if there is
a willful falsity of the statements made.
* If the statement in writing is not under oath, the crime may be falsification if the crime is a material matter
made in a written statement which is required by law to have been rendered.
* As far as this crime is concerned, this has been interpreted to be possible only in the so-called planting
of evidence.
* There is such a crime as incriminating an innocent person through unlawful arrest. (People vs. Alagao, et al., G.R. No. L-20721, April 30, 1966)
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CRIMINAL NEGLIGENCE
Article 365 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. 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.
Distinction between reckless imprudence and negligence: The two are distinguished only as to whether the danger that would be impending is easily perceivable or not. If the danger that may result from the criminal negligence is clearly perceivable, the imprudence is reckless. If it could hardly be perceived, the criminal negligence would only be simple.
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Notes: Test for determining whether or not a person is negligent of doing of an act which results in injury or damages to another person or his property. Would a prudent man in the position of the person to whom negligence is attributed, foresee harm to the person injured? If so, the law imposes on the doer, the duty to refrain from the course of action, or to take precaution against such result. Failure to do so constitutes negligence. Reasonable foresight of harm, followed by ignoring the admonition borne of this provisions, is the constitutive fact of negligence. (Picart vs. Smith, 37 Phil. 809, 813)
Test of Negligence. 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. The penalties under Article 365 has no application in the following cases: 1. When the penalty provided for the offense ifs equal or lower than that provided in pars.1 and 2 of Article 365. In this case, the penalty shall be that which is next lower in degree than that which should be imposed, in the period which the court may deem proper to apply. 2. When by imprudence or negligence and with violation of the Automobile Law, the death of a person is caused, the penalty is prision correccional in its medium and maximum periods. 1) Art.64 on mitigating and aggravating circumstances not applicable. 2) Failure to lend on the spot assistance to victim of his negligence: penalty next higher in degree. 3) Abandoning usually punishable under Art 275, if charged under Art 365 is only qualifying and if not alleged cannot even be an aggravating circumstance. 4) Contributory negligencenot a defense, only mitigating * The defense of contributory negligence does not apply in criminal cases committed through reckless imprudence. It is against public policy to invoke the negligence of another to escape criminal liability. (People vs. Quiones, C.A., 44 O.G. 1520) * The above-mentioned doctrine should be reconciled with the doctrine of concurrent proximate cause of two negligent drivers. * In the case of People vs. Desalis, et al., C.A., 57 O.G. 8689, the two accused were drivers of two speeding vehicles which overtook vehicles ahead of them and even encroached on the others lane without taking due precaution as required by the circumstances. The court found the concurrent or successive negligent act or omission of the two drivers as the direct and proximate cause of the injury caused to the offended party. The court could not determine in what proportion each driver contributed to the injury. Both were declared guilty for the injury suffered by the third person. * When negligence does not result in any injury to persons or damage to property, then no crime is committed. Negligence becomes punishable when it results in the commission of a crime. (Lantok, Jr. vs. Hon. Gorgonio, L-37396, April 30, 1979, 75 O.G. 7763)
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* Do not separate the accusation from the slight physical injuries from the other material result of the
negligence.
* If the criminal negligence resulted, for example, in homicide, serious physical injuries and slight physical
injuries, do not join only the homicide and serious physical injuries in one information for the slight physical injuries. You are not complexing slight when you join it in the same information. It is just that you are not splitting the criminal negligence because the real basis of the criminal liability is the negligence.
* If you split the criminal negligence, that is where double jeopardy would arise. * Accused is not criminally liable for the death or injuries caused by his negligence to trespassers whose presence in the premises he was not aware of. In the case of People vs. Cuadra, C.A., 53 O.G. 7265, accused was a truck driver. Unknown to him, several persons boarded his truck and while driving along a slippery road which has a declinations of 25 degrees, the left front wheel of the truck fell into a ditch. In his effort to return the truck to the center of the road, the truck turned turtle, throwing off two of the passengers who boarded the truck without his knowledge. As a consequence, one of them died. Cuadra was acquitted of the crime of reckless imprudence resulting in homicide and physical injuries. * Overtaking of another vehicle is a normal occurrence in driving. But when the overtaking is done from right, it shows recklessness and disregard of traffic laws and regulations. It is likewise so when the overtaking is done while another vehicle is approaching from the opposite direction. This is a violation of Section 59(b) of the Motor Vehicle Law (People vs. Songalla, C.A., 67 O.G. 8330)
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