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Ad maiorem Dei gloriam.
GRACE ANN Q. BAJO
TIMOTHY JACOB J. PALAFOX
20 21 C H AI R PE R S O N S
KATHLEEN KAE Z. ENDOZO
ARISTEO RAPHAEL T. MARBELLA III
MEG V. BUENSALIDO
MARIE KAYLA C. GALIT
20 21 AD MI NI ST R A TI V E CO M MI T TE E HE A D S
20 21 A C AD E MI C C O M MI T TE E HE AD S
CARLOS ROSAURO N. MANALO
MA. CRISTINA ASUNCION
20 21 A C AD E MI C C O M MI T TE E U N D E R ST U D I E S
JUDGE OSCAR B. PIMENTEL
ATTY. AXEL M. CRUZ
ATTY. ALDRICH FITZ U. DY
ATTY. RONALD C. CHUA
20 21 C R I MI N AL L AW F AC U LT Y AD V I SE R S
ERIN CANDICE CANCEKO
KATHLEEN KAE ENDOZO
DOROTHY SAPPHIRINE HADITH DULNOAN
20 21 C R I MI N AL L AW SU BJE C T HE AD S
PATRICIA RAMOS
CHRISTINA FRANCES DYCHIOCO
CATHERINE NICOLE MANUEL
20 21 C R I MI N AL L AW U ND E R STU D I E S
RACHEL LEIGH COLLADO
ANGELICA OIDEM
AIMIEL MARIAN REYES
MARC ANGELO GUIBONE
CRISTOFFER NUNAG
JONATHAN TORRES
PATRICIA JOY IGNACIO
RAYMIELLE MAGCALAS
JETHRO VERA CRUZ
CAMILLE BULATAO
SAMANTHA ROSE MORALES
ISABELLA SABIO
CARLO ALIVIA
ANA SAMANTHA ISABELA PARUNGAO
VERA DE VERA
20 21 C R I MI N AL L AW V OLU N TE E R S
JONATHAN DF. TORRES
GAEL PAULINE R. MORALES
RIA ALEXANDRA D. CASTILLO
NICOLE ANN C. PAGLICAWAN
JULIANNE BEATRICE N. ROSARIO
20 21 C R E ATI V E S
JOSEPH BILL P. QUINTOS
SAMANTHA J. MAGAOAY
FREEDOM JUSTIN B. HERNANDEZ
STEFI MONIKA S. SUERO
KATHLEEN C. ROMINA
SERMAE ANGELA G. PASCUAL
20 21 TE C H NI CA L
2 02 1 FI N AN CE
AINA RAE L. CORTEZ
LUMINA ALINEA O. AQUINO
ANNA MARIE GRACE M. ANTONIO
MARY STEPHANIE CABRERA CRUZ
CLARISSE MAE D. ZAPLAN
CHRISTIAN GIO R. SENARLO
MAEDEN M. BORCELANGO
IMI LIZA B. ESPINA
FRANCIS SABIN BELTRAN
ANTHONY JEFFERSON Y. JULIO
20 21 S PE CI AL P R OJ E C TS
20 21 LO GI STI C S
DONN MARIE ISABELLE BALINA
ALISHA BEATRICE A. VERGARA
PRISHA LEIGH D. CRUZ
ALITHEA C. SORIANO
AARON C. CHENG
MELISSA GABRIELLE P. REMULLA
GRACIELLA RACHEL D. ROBLES
DANELLA DIANE D. DIMAPILIS
REYNALDO M. REVECHE
CZAREANA JOUSCH T. PARRA
20 21 M AR K E TI N G
20 21 PU BLI C R E L A TI ON S
JUSTIN LUIGI V. HERNANDEZ
20 2 0 C HAI R P E R SO N
YVES PETER CARLO D. MEDINA
KATRINA ISABELLE G. PIMENTEL
GENICA GALE F. LAHOZ
THERESE ANNE C. ESPINOSA
HAZEL VIANCA I. ORTEGA
VINCE ZYRENCE T. BARLONGAY
20 2 0 AD MI NI S TR ATI V E CO M MI T TE E HE A D S
20 2 0 HO TE L C O M MI TTE E HE A D S
EUNICE A. MALAYO
FRANCES CHRISTINE P. SAYSON
MEG V. BUENSALIDO
MARIE KAYLA C. GALIT
20 2 0 A CAD E MI C CO M MI T TE E HE AD S
2 02 0 A CA D E M I C CO M MIT T E E U N D E R S T U DI E S
JUDGE OSCAR B. PIMENTEL
JUDGE JOHN BOOMSRI S. RODOLFO
ATTY. JAIME G. HOFILEÑA
ATTY. ALDRICH FITZ U. DY
ATTY. RONALD C. CHUA
20 2 0 CR I MI NA L L A W F A CU L TY A D V I S E R S
TRISHA FEJJ MAE EGUIA
PATRICK ANTHONY CALDO
PATRICIA LORENZA GUTIERREZ
20 2 0 CR I MI NA L L A W SU BJE CT HE AD S
ERIN CANDICE CANCEKO
KATHLEEN KAE ENDOZO
DOROTHY SAPPHIRINE HADITH DULNOAN
20 2 0 CR I MI NA L L A W U ND E R S TU D I E S
JANEL NATHALIE CO CHRISTINE ANGELIQUE DESCALLAR
DALZEL JOB ERAP
GRACELLE TREASURE SAMSON
WILFREDO REYES JR.
CEDRIC SEVERINO
JENWIN ELLA BACCAY
JON ERICSON LEDESMA
REYMARK SIMBULAN
HAROLD BRYANT PASION
JOSHUA ANDREW KYLE SEE
20 2 0 CR I MI NA L L A W V OLU NTE E R S
ATENEO CENTRAL
CRIMINAL LAW
BAR OPERATIONS 2020/21
TABLE OF CONTENTS
I. PRINCIPLES OF CRIMINAL LAW............................................................................................................... 1
A.
B.
GENERAL PRINCIPLES ........................................................................................................................ 1
I.
MALA IN SE AND MALA PROHIBITA ...................................................................................................... 2
II. SCOPE OF APPLICATION AND CHARACTERISTICS OF PHILIPPINE CRIMINAL LAW................................ 3
III. PRO-REO PRINCIPLE .............................................................................................................................. 5
IV. INTERPRETATION OF PENAL LAWS ....................................................................................................... 5
V. RETROACTIVE EFFECT OF PENAL LAWS ................................................................................................ 5
FELONIES .......................................................................................................................................... 5
I.
CRIMINAL LIABILITIES ........................................................................................................................... 5
II. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY............................................................................. 20
III. PERSONS LIABLE AND DEGREE OF PARTICIPATION ............................................................................ 58
IV. PENALTIES ........................................................................................................................................... 72
V. EXECUTION AND SERVICE ................................................................................................................... 81
VI. EXTINCTION OF CRIMINAL LIABILITY .................................................................................................. 82
VII. CIVIL LIABILITIES IN CRIMINAL CASES ................................................................................................. 85
II. CRIMES UNDER THE REVISED PENAL CODE .......................................................................................... 88
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
M.
CRIMES AGAINST NATIONAL SECURITY AND THE LAWS OF NATIONS ................................................ 88
CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE ............................................................. 98
CRIMES AGAINST PUBLIC ORDER ................................................................................................... 107
CRIMES AGAINST PUBLIC INTEREST ............................................................................................... 126
CRIMES AGAINST PUBLIC MORALS ................................................................................................. 140
CRIMES COMMITTED BY PUBLIC OFFICERS ..................................................................................... 143
CRIMES AGAINST PERSONS ........................................................................................................... 161
CRIMES AGAINST PERSONAL LIBERTY AND SECURITY ..................................................................... 178
CRIMES AGAINST PROPERTY .......................................................................................................... 191
CRIMES AGAINST CHASTITY ........................................................................................................... 217
CRIMES AGAINST CIVIL STATUS OF PERSONS ................................................................................. 226
CRIMES AGAINST HONOR .............................................................................................................. 230
QUASI-OFFENSES ......................................................................................................................... 238
III. SPECIAL PENAL LAWS ...................................................................................................................... 242
A.
NEW ANTI-CARNAPPING ACT OF 2016 ........................................................................................... 242
I.
ELEMENTS ......................................................................................................................................... 242
II. PUNISHABLE ACTS ............................................................................................................................ 242
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B.
C.
D.
E.
F.
G.
H.
I.
CRIMINAL LAW
III. AGGRAVATING CIRCUMSTANCES RESULTING TO DENIAL OF BAIL .................................................. 243
IV. OTHER RELEVANT RULES .................................................................................................................. 243
ANTI-ELECTRICITY AND ELECTRIC TRANSMISSION LINES/MATERIALS PILFERAGE ACT OF 1994 (RA 7832)
244
I.
PUNISHABLE ACTS ............................................................................................................................ 244
II. PRIMA FACIE EVIDENCE OF PUNISHABLE ACTS ................................................................................ 245
III. DISCONNECTION OF ELECTRIC SERVICE ........................................................................................... 246
IV. PENALTIES ......................................................................................................................................... 247
FISHERIES CODE (RA 8550, AS AMENDED BY RA 10654) .................................................................. 248
I.
PUNISHABLE ACTS ............................................................................................................................ 248
ANTI-FENCING LAW OF 1979 ......................................................................................................... 253
I.
DEFINITION OF TERMS...................................................................................................................... 253
II. ELEMENTS ......................................................................................................................................... 253
III. PENALTIES ......................................................................................................................................... 253
IV. LIABILITY OF OFFICIALS OF JURIDICAL PERSONS .............................................................................. 253
V. PRESUMPTION OF FENCING; EXCEPTION ......................................................................................... 253
VI. OTHER RELEVANT RULES .................................................................................................................. 254
BOUNCING CHECKS LAW (BP 22).................................................................................................... 255
I.
PUNISHABLE ACTS ............................................................................................................................ 255
II. EVIDENCE OF KNOWLEDGE OF INSUFFICIENT FUNDS ...................................................................... 255
III. DUTY OF DRAWEE............................................................................................................................. 255
IV. DEFENSES AGAINST BP 22 ................................................................................................................ 256
V. ESTAFA UNDER BP 22 VS. ESTAFA UNDER RPC................................................................................. 256
VI. OTHER RELEVANT RULES .................................................................................................................. 257
SWINDLING BY SYNDICATE (PD 1689) ............................................................................................ 258
I.
ELEMENTS ......................................................................................................................................... 258
II. OTHER RELEVANT RULES .................................................................................................................. 258
MIGRANT WORKERS AND OVERSEAS FILIPINOS ACT OF 1995 (RA 8042 AS AMENDED BY RA 10022) 259
I.
DEFINITION OF TERMS...................................................................................................................... 259
II. ACTS INCLUDED IN ILLEGAL RECRUITMENT...................................................................................... 260
III. PROHIBITED ACTS ............................................................................................................................. 260
IV. PENALTIES ......................................................................................................................................... 261
V. PRESCRIPTION................................................................................................................................... 261
VI. OTHER RELEVANT RULES .................................................................................................................. 261
ANTI-ILLEGAL NUMBERS GAMES LAW (PD 1602, AS AMENDED BY RA 9287) ................................... 262
I.
DEFINITION OF TERMS...................................................................................................................... 262
II. PERSONS LIABLE ............................................................................................................................... 262
III. POSSESSION OF GAMBLING PARAPHERNALIA AS PRIMA FACIE EVIDENCE ..................................... 263
IV. INFORMER’S REWARD ...................................................................................................................... 263
V. OTHER RELEVANT RULES .................................................................................................................. 263
COMPREHENSIVE FIREARMS AND AMMUNITION REGULATION ACT (RA 10591) ............................... 265
I.
DEFINITION OF TERMS...................................................................................................................... 265
II. PUNISHABLE ACTS ............................................................................................................................ 265
III. OTHER RELEVANT RULES .................................................................................................................. 268
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J.
ANTI-HAZING ACT OF 2018 (RA 8049, AS AMENDED BY RA 11053) ................................................... 269
I.
DEFINITION OF TERMS...................................................................................................................... 269
II. PROHIBITION ON HAZING ................................................................................................................. 270
III. REGULATION OF SCHOOL-BASED INITIATION RITES ......................................................................... 270
IV. PERSONS LIABLE ............................................................................................................................... 271
V. OTHER RELEVANT RULES .................................................................................................................. 272
K. COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 (RA 9165, AS AMENDED BY RA 10640) ............ 272
I.
DEFINITION OF TERMS...................................................................................................................... 272
II. PUNISHABLE ACTS ............................................................................................................................ 272
III. CHAIN OF CUSTODY .......................................................................................................................... 275
IV. PLEA BARGAINING ............................................................................................................................ 276
V. OTHER RELEVANT RULES .................................................................................................................. 277
L. CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES (RA 6713) .. 278
I.
DEFINITION OF TERMS...................................................................................................................... 278
II. NORMS OF CONDUCT OF PUBLIC OFFICIALS AND EMPLOYEES ....................................................... 278
III. DUTIES OF PUBLIC OFFICIALS AND EMPLOYEES ............................................................................... 278
IV. PROHIBITED ACTS ............................................................................................................................. 279
V. STATEMENTS AND DISCLOSURE ....................................................................................................... 280
VI. DIVESTMENT ..................................................................................................................................... 281
VII. OTHER RELEVANT RULES .................................................................................................................. 281
M. ANTI-GRAFT AND CORRUPT PRACTICES ACT (RA 3019, AS AMENDED BY RA 3047, PD 677, PD 1288, BP
195 AND RA 10910) .............................................................................................................................. 283
I.
DEFINITION OF TERMS...................................................................................................................... 283
II. PUNISHABLE ACTS ............................................................................................................................ 283
III. PROHIBITIONS ON INDIVIDUALS....................................................................................................... 286
IV. STATEMENT OF ASSETS AND LIABILITIES .......................................................................................... 286
V. DISMISSAL DUE TO UNEXPLAINED WEALTH ..................................................................................... 287
VI. OTHER RELEVANT RULES .................................................................................................................. 287
N. ANTI-PLUNDER ACT (RA 7080, AS AMENDED BY RA 7659) .............................................................. 288
I.
DEFINITION OF TERMS...................................................................................................................... 288
II. ELEMENTS ......................................................................................................................................... 289
III. PRESCRIPTION................................................................................................................................... 289
IV. OTHER RELEVANT RULES .................................................................................................................. 289
O. ANTI-MONEY LAUNDERING ACT OF 2001 (RA 9160, AS AMENDED BY RA 9194, RA 10167, RA 10365
AND RA 10927) .................................................................................................................................... 290
I.
DEFINITION OF TERMS...................................................................................................................... 290
II. MONEY LAUNDERING OFFENSE........................................................................................................ 293
III. JURISDICTION; PROSECUTION .......................................................................................................... 293
IV. ISSUANCE OF A FREEZE ORDER......................................................................................................... 293
V. OTHER RELEVANT RULES .................................................................................................................. 293
P. OBSTRUCTION OF JUSTICE LAW (PD 1829) ..................................................................................... 294
I.
PUNISHABLE ACTS ............................................................................................................................ 294
II. OBSTRUCTION OF JUSTICE VS. ACCESSORY TO A CRIME .................................................................. 295
III. OTHER RELEVANT RULES .................................................................................................................. 295
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Q.
ANTI-TORTURE ACT OF 2009 (RA 9745) ......................................................................................... 297
I.
ELEMENTS ......................................................................................................................................... 297
II. ACTS OF TORTURE ............................................................................................................................ 297
III. PERSONS LIABLE ............................................................................................................................... 298
IV. PROHIBITED DETENTION .................................................................................................................. 299
V. APPLICABILITY OF EXCLUSIONARY RULE; EXCEPTION ...................................................................... 299
VI. APPLICABILITY OF REFOULER ............................................................................................................ 299
VII. OTHER RELEVANT RULES .................................................................................................................. 300
R. HUMAN SECURITY ACT OF 2007 (RA 9372) ..................................................................................... 300
I.
ELEMENTS ......................................................................................................................................... 300
II. OTHER PUNISHABLE ACTS ................................................................................................................ 300
III. CONSPIRACY TO COMMIT TERRORISM ............................................................................................ 301
IV. ACCOMPLICE AND ACCESSORY ......................................................................................................... 301
S. TERRORISM FINANCING PREVENTION AND SUPPRESSION ACT OF 2012 (RA 10168) ......................... 302
I.
DEFINITION OF TERMS...................................................................................................................... 302
II. FINANCING OF TERRORISM .............................................................................................................. 303
III. EXTRATERRITORIAL APPLICATION .................................................................................................... 303
IV. EXTRADITION .................................................................................................................................... 304
T. ANTI-WIRE TAPPING ACT (RA 4200) ............................................................................................... 304
I.
PROHIBITED ACTS ............................................................................................................................. 304
II. ALLOWABLE WIRE TAPPING ............................................................................................................. 304
III. INADMISSIBILITY ............................................................................................................................... 305
IV. OTHER RELEVANT RULES .................................................................................................................. 305
U. CYBERCRIME PREVENTION ACT OF 2012 (RA 10175) ...................................................................... 307
I.
DEFINITION OF TERMS...................................................................................................................... 307
II. PUNISHABLE ACTS ............................................................................................................................ 307
III. JURISDICTION.................................................................................................................................... 309
IV. OTHER RELEVANT RULES .................................................................................................................. 309
V. ANTI-CHILD PORNOGRAPHY ACT OF 2009 (RA 9775) ...................................................................... 311
I.
DEFINITION OF TERMS...................................................................................................................... 311
II. PROHIBITED ACTS ............................................................................................................................. 311
III. SYNDICATED CHILD PORNOGRAPHY................................................................................................. 312
IV. DISPUTABLE PRESUMPTION OF KNOWLEDGE.................................................................................. 312
V. OTHER RELEVANT RULES .................................................................................................................. 312
W. ANTI-PHOTO AND VIDEO VOYEURISM ACT OF 2009 (RA 9995) ...................................................... 314
I.
DEFINITION OF TERMS...................................................................................................................... 314
II. PROHIBITED ACTS ............................................................................................................................. 314
X. ANTI-SEXUAL HARASSMENT ACT OF 1995 (RA 7877) ...................................................................... 315
I.
PERSONS LIABLE ............................................................................................................................... 315
II. PUNISHABLE ACTS ............................................................................................................................ 315
III. OTHER RELEVANT RULES .................................................................................................................. 316
Y. ANTI-TRAFFICKING IN PERSONS ACT OF 2003 (RA 9208, AS AMENDED BY RA 10364) ....................... 317
I.
DEFINITION OF TERMS...................................................................................................................... 317
II. PUNISHABLE ACTS ............................................................................................................................ 318
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III. ATTEMPTED TRAFFICKING ................................................................................................................ 319
IV. LIABILITY OF ACCOMPLICES; ACCESSORIES ...................................................................................... 319
V. ACTS THAT PROMOTE TRAFFICKING ................................................................................................ 320
VI. QUALIFIED TRAFFICKING .................................................................................................................. 321
VII. INITIATION AND PROSECUTION OF CASES ....................................................................................... 321
VIII. PRESCRIPTIVE PERIOD....................................................................................................................... 321
IX. OTHER RELEVANT RULES .................................................................................................................. 322
Z. ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004 (RA 9262) ........................... 324
I.
DEFINITION OF TERMS...................................................................................................................... 324
II. PUNISHABLE ACTS ............................................................................................................................ 325
III. BATTERED WOMAN SYNDROME ...................................................................................................... 326
IV. OTHER RELEVANT RULES .................................................................................................................. 327
AA. SPECIAL PROTECTION OF CHILDREN AGAINST ABUSE, EXPLOITATION, AND DISCRIMINATION ACT (RA
7610, AS AMENDED BY RA 7658 AND RA 9231) ..................................................................................... 329
I.
DEFINITION OF TERMS...................................................................................................................... 329
II. PUNISHABLE ACTS ............................................................................................................................ 329
III. OTHER RELEVANT RULES .................................................................................................................. 331
BB. SAFE SPACES ACT (RA 11313) ...................................................................................................... 336
I.
DEFINITION OF TERMS...................................................................................................................... 336
II. GENDER-BASED STREETS AND PUBLIC SPACES SEXUAL HARASSMENT............................................ 337
III. GENDER-BASED ONLINE SEXUAL HARASSMENT .............................................................................. 337
IV. QUALIFIED GENDER-BASED STREETS, PUBLIC SPACES AND ONLINE SEXUAL HARASSMENT ........... 338
V. GENDER-BASED SEXUAL HARASSMENT IN THE WORKPLACE........................................................... 338
VI. GENDER-BASED SEXUAL HARASSMENT IN EDUCATIONAL AND TRAINING INSTITUTIONS .............. 338
CC. DATA PRIVACY ACT (RA 10173).................................................................................................... 339
I.
DEFINITION OF TERMS...................................................................................................................... 339
II. SCOPE................................................................................................................................................ 340
III. EXTRATERRITORIAL APPLICATION .................................................................................................... 341
IV. PUNISHABLE ACTS ............................................................................................................................ 341
V. EXTENT OF LIABILITY ......................................................................................................................... 342
DD. INDETERMINATE SENTENCE LAW (ACT 4103, AS AMENDED BY ACT NO. 4225 AND RA 4225) ......... 343
I.
CONCEPT ........................................................................................................................................... 343
II. WHO ARE DISQUALIFIED................................................................................................................... 343
III. RELEASE OF PRISONER ON PAROLE .................................................................................................. 344
IV. REASONS FOR FIXING THE MAXIMUM AND MINIMUM TERMS IN THE INDETERMINATE SENTENCE
344
V. OTHER RELEVANT RULES .................................................................................................................. 345
EE. PROBATION LAW (PD 968 AS AMENDED BY PD 1257, BP 76, PD 1990 AND RA 10707) .................... 346
I.
DEFINITION OF TERMS...................................................................................................................... 346
II. WHEN APPLIED FOR .......................................................................................................................... 346
III. GRANT/DENIAL OF PROBATION; CONDITIONS ................................................................................. 346
IV. DISQUALIFIED OFFENDERS ............................................................................................................... 347
V. PERIOD OF PROBATION .................................................................................................................... 347
VI. ARREST OF PROBATIONER ................................................................................................................ 347
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VII. TERMINATION OF PROBATION ......................................................................................................... 348
FF. JUVENILE JUSTICE AND WELFARE ACT (RA 9344, AS AMENDED BY RA 10630) ................................ 348
I.
DEFINITION OF TERMS...................................................................................................................... 348
II. RIGHTS OF THE CHILD IN CONFLICT WITH THE LAW ........................................................................ 350
III. MINIMUM AGE OF CRIMINAL RESPONSIBILITY ................................................................................ 350
IV. PROHIBITED ACTS ............................................................................................................................. 352
V. DIVERSION AND INTERVENTION....................................................................................................... 352
VI. OTHER RELEVANT RULES .................................................................................................................. 353
vi
PRINCIPLES OF
CRIMINAL LAW
Criminal Law
ATENEO CENTRAL
BAR OPERATIONS 2020/21
CRIMINAL LAW
A. GENERAL PRINCIPLES
I. PRINCIPLES OF CRIMINAL LAW
TOPIC OUTLINE UNDER THE SYLLABUS:
I. PRINCIPLES OF CRIMINAL LAW
A. GENERAL PRINCIPLES
I.
Mala in se and mala prohibita
II.
Scope and characteristics
III.
Pro reo principle
IV.
Interpretation of penal laws
V.
Retroactive effect of penal laws
B. FELONIES
I.
Criminal liabilities
II.
Circumstances affecting criminal liability
III.
Persons liable and degree of
participation
IV.
Penalties
V.
Execution and Service
VI.
Extinction of Criminal Liability
VII.
Civil Liability in Criminal Cases
Criminal Law
CRIMINAL LAW is that branch of municipal law
which defines crimes, treats of their nature, and
provides for their punishment.
Other Terms
a. CRIME - the commission or omission by a
person having capacity, of any act, which is
either prohibited or compelled by law and the
commission or omission of which is
punishable by a proceeding brought in the
name of the government whose law has been
violated.
b. FELONY - a crime punished under the RPC
c. OFFENSE - a crime punished under a special
penal law
Sources of Philippine Criminal Law
a. Revised Penal Code;
b. Special Penal Laws; and
c. Penal Presidential Decrees issued during
Martial Law
Theories in Criminal Law
1. Classical or Juristic Theory - The basis of
criminal liability is human free will. The
purpose of the penalty is retribution in view of
the voluntariness of the act or omission of the
offender. The emphasis is on the offense and
not on the offender.
2. Positivist of Realist Theory – Man is
inherently good but the offender is socially
sick. The basis is the sum of social and
economic phenomena which condition man
to do wrong in spite of or contrary to his
volition. The purpose of the penalty is
reformation and the emphasis is on the
offense and not on the offender.
Legal Maxims
a. Nullum crimen nulle poena sine lege There is no crime when there is no law that
defines and punishes it.
b. Actus no facit reum, nisi mens sit rea The act cannot be criminal unless the mind
is criminal.
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BAR OPERATIONS 2020/21
c.
Actus me invite factus non est meus
actus – An act done by me against my will is
not my act.
Constitutional Limitations on the Power of
Congress to Enact Penal Laws in the Bill of
Rights
1. Equal Protection;
2. Due Process;
3. Non-imposition of cruel and unusual
punishment or excessive fines;
4. No Bill Of Attainder shall be enacted;
A bill of attainder is a legislative act which inflicts
punishment without trial. Its essence is the
substitution of a legislative act for a judicial
determination of guilt. (People v. Ferrer, G.R.
No. L-32613-14, 1972).
5. No ex post facto law shall be enacted;
An ex post facto law is one which: (MACARD)
1. Makes criminal an act done before the
passage of the law and which was innocent
when done, and punishes such an act;
2. Aggravates a crime, or makes it greater than
it was, when committed
3. Changes the punishment and inflicts a
greater punishment than the law annexed to
the crime when committed;
4. Alters the legal rules of evidence, and
authorized conviction upon less or different
testimony than the law required at the time of
the commission of the offense;
5. Assumes to Regulate civil rights and
remedies only, in effect imposes penalty or
deprivation of a right for something which
when done was lawful; and
6. Deprives a person accused of a crime some
lawful protection to which he has become
entitled (e.g. protection of a former conviction
or acquittal, proclamation of amnesty); and
7. Waiver of the rights of the accused.
I. Mala in se and Mala Prohibita
MALA IN SE
Wrongful from their
nature;
So serious in their
effects on society;
Intent governs;
Good faith is a valid
defense, unless the crime
is the result of culpa;
The
degree
of
accomplishment of the
crime is taken into
account in punishing the
offender;
Mitigating
and
aggravating
circumstances are taken
into account;
Penalty is determined on
the basis of the degree of
participation
of
the
offender;
There are 3 stages of
execution:
attempted,
frustrated, consummated;
and
Penalties may be divided
into degrees and periods.
MALA PROHIBITA
Wrongful
merely
because prohibited
by state;
Violations of mere
rules of convenience;
Criminal intent is not
necessary where the
acts are prohibited for
reasons of public
policy;
Good faith is not a
defense;
The act gives rise to a
crime
only
when
consummated;
Mitigating
and
aggravating
circumstances
are
generally not taken
into account;
Penalty
on
the
offenders are the
same;
There are no stages of
execution; and
There is no division of
penalties.
Illustration: If a high-ranking public officer in
DAR-ARMM refuses to remit accounts to the
Pag-IBIG Funds and GSIS despite the notice
from GSIS to do so, he is guilty of violating RA
No. 8291 (the GSIS Act of 1997) and the IRR of
RA No. 7742 (the Pag-IBIG Law). He cannot
claim that since the funds were released to the
Regional Director of ARMM and not to DARARMM, his role is merely procedural and
ministerial. Both laws provide that the refusal of
the heads of the offices of the national
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government who are involved in the collection of
premiums, accounts due to the GSIS/collection
and remittance of employee savings to pay or
remit the accounts would make them liable. The
non-remittance of GSIS and Pag-IBIG Fund
premiums is malum prohibitum. What the relevant
laws punish is the failure, refusal, or delay without
lawful or justifiable cause in remitting or paying
the required contributions or accounts. (Matalam
v. People, G.R. Nos. 221849-50, J. LEONEN,
April 4, 2016.)
If a person is charged with child abuse in violation
of §10(a) of RA 7610 for physically abusing a child
placed under his or her care, intent to debase,
degrade or demean the minor is not essential to
establish guilt. It must be stressed that crimes
punished by RA 7610 are mala prohibita. (Lucido
v People, G.R. No. 217764, J. LEONEN, August
7, 2017)
II. SCOPE OF APPLICATION AND
CHARACTERISTICS OF PHILIPPINE
CRIMINAL LAW
a. Generality
The law is binding upon all persons who reside
or sojourn in the Philippines, irrespective of age,
sex, color, creed, or personal circumstances.
Exceptions (S-PA-IL)
a. Treaty Stipulations (Ex. RP-US Visiting
Forces Accord);
b. Laws on Preferential Application – there are
some special laws that carve exceptions.
This must be applied in particular instances;
Example: R.A. 75 - Under R.A. 75, persons
who are exempt from arrest and imprisonment
and whose properties are exempt from
distraint, seizure and attachment are the
following:
(AMS)
1. Ambassadors;
2. Public Ministers; and
3. Domestic Servants of ambassadors and
public ministers;
Unless the person is a citizen or inhabitant
of the Philippines and the writ or process
issued against him is founded upon a debt
contracted before he entered upon such
service or the domestic servant is not
registered with the Department of Foreign
Affairs;
c.
Principles of Public International Law
Sovereigns or head of states, ambassadors,
ministers plenipotentiary and ministersresident, charges d’affairs and attaches are
not subject to the operation of our criminal
laws;
Consuls, vice-consuls and other commercial
representatives of a foreign nation cannot
claim the privileges and immunities
accorded to ambassadors and ministers.
b. Territoriality
The law is applicable to all crimes committed
within the limits of the Philippine territory, which
includes its atmosphere, interior waters and
maritime zone.
Exceptions: Article 2, RPC. (SCION)
a. Should commit an offense while on a
Philippine Ship or airship;
TWO (2) REQUISITES:
a. The Philippine ship or airship must be
duly registered under the Philippine
laws; and
b. The ship or airship must not be within
the territorial jurisdiction of another
country, otherwise the laws of that
country will apply as a rule;
Foreign Merchant Vessel
Note: The Philippines observes the English Rule
French Rule v. English Rule
FRENCH RULE
ENGLISH RULE
GENERAL RULE
Crimes
committed Crimes
committed
aboard a foreign aboard a foreign vessel
vessel within the within territorial waters
territorial waters of a of a country are triable
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country are NOT in the courts of such
triable in courts of country.
such country.
EXCEPTION
Crime affects the When the crime merely
peace and security of affects things within the
the
territory,
or vessel or refers to the
endangers the safety internal management
of the state.
thereof.
Foreign Warships - The nationality of such
warship determines the applicable penal laws to
crimes committed therein; considered to be an
extension of the territory of the country to which they
belong;
b. Should forge or Counterfeit any coin or currency
Note of the Philippine Islands or obligations and
securities issued by the Government of the
Philippine Islands;
c. Should be liable for acts connected with the
Introduction into these islands of the obligations
and securities mentioned in the presiding
number;
Rationale for exceptions (b) and (c): To
maintain and preserve the financial credit stability
of the state;
Note: Those who introduced the counterfeit items
are criminally liable even if they were not the ones
who counterfeited the said items. And those who
counterfeited the said items are criminally liable
even if they did not introduce the counterfeit items
into the Philippines;
d. While being public Officers or employees, should
commit an offense in the exercise of their functions;
Offense committed by a public officer abroad
must refer to the discharge of one’s functions;
A crime committed within the grounds of a
Philippine embassy on foreign soil shall be subject
to Philippine penal laws, although it may or may
not have been committed by a public officer in
relation to one’s official duties. Embassy grounds
are considered as extensions of the sovereignty of
the country occupying them;
CRIMINAL LAW
Example of crimes included:
i. Direct/indirect/qualified bribery;
ii. Corruption;
iii. Frauds against the public treasury;
iv. Possession of prohibited interest;
v. Malversation of public funds or property
e. Should commit any of the crimes against
National security and the law of nations:
treason, conspiracy and proposal to commit
treason, misprision of treason, espionage,
inciting to war or giving motives for reprisals,
violation of neutrality, correspondence with
hostile country, flight to enemy’s country,
piracy in general and mutiny in the high seas,
qualified piracy.
Rational for exception (e): To safeguard the
existence of the state.
However, when the rebellion, coup d’état and
sedition are committed abroad, the Philippine
courts will not have jurisdiction because these
are crimes against public order.
Exception to the Exception
Penal laws are not applicable within or without
Philippine territory if so provided in treaties and
laws of preferential application.
c. Prospectivity
The rule of non-retroactivity applies.
Exceptions
If favorable to the offender, the law will have a
retroactive effect.
Exceptions to the Exception:
1. The offender is a habitual delinquent; and
2. The law otherwise provides.
Effects of Repeal/Amendment of Penal Laws
a. If the repeal makes the penalty lighter in the
new law, the new law shall be applied;
b. If the new law imposes a heavier penalty, the
law in force at the time of the commission
of the offense shall be applied;
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If the new law totally repeals the existing law
so that the act which was penalized under the
old law is no longer punishable or fails to
penalize the offense under the old law, the
crime is obliterated and the accused cannot
be convicted under the new law;
d. If repeal is by reenactment, even without
saving clause, or a repeal by implication, it
would not destroy criminal liability; and
e. A person erroneously accused and convicted
under a repealed statute may be punished
under the repealing statute, provided
accused had an opportunity to defend himself
against the charge.
c.
III. PRO-REO PRINCIPLE
B. FELONIES
I. CRIMINAL LIABILITIES
FELONIES are acts and omissions punishable
by the Revised Penal Code.
3 Elements of Felonies: (AO-P-DC)
1. There must be an Act; or Omission
ACT means any bodily movement tending to
produce some effect in the external world; the
possibility of its production is sufficient. It must
be at least an overt act of that felony, that is, an
external act which has direct connection with
the felony intended to be committed;
Pro-reo Doctrine
In dubio pro reo literally means “when in doubt,
for the accused.” (People v. Ong, G.R. No.
175940, 2008)
OMISSION means inaction, the failure to
perform a positive duty which one is bound to
do. There must be a law requiring the doing or
performance of an act;
Whenever a penal law is to be construed or
applied and the law admits of two interpretations
– one lenient to the offender and one strict to the
offender – that interpretation which is lenient or
favorable to the offender will be adopted.
2. The act or omission must be Punishable by
the RPC; and
3. The act is performed or the omission incurred
by means of Dolo or Culpa.
IV. INTERPRETATION OF PENAL LAWS
Rules on Construction of Penal Laws
a. Liberally construed in favor of offender;
b. In cases of conflict with official translation,
original Spanish text is controlling; and
c. No interpretation by analogy.
V. RETROACTIVE EFFECT OF PENAL
LAWS
When Penal Laws may be Given Retroactive
Effect
1. When favorable to the accused; and
2. When the law decriminalizes an act.
———— end of topic ————
A criminal act is presumed voluntary. In the
absence of indubitable explanation, the act
must be declared voluntary and punishable.
Voluntariness (to incur criminal liability)
requires:
1. Intelligence;
2. Freedom of action; and
3. Intent to act;
Compare Dolo (deceit) v. Culpa (fault)
DOLO
CULPA
Involves malice or
Results from
deliberate intent; and
negligence,
imprudence, lack of
foresight or lack of
skill; and
Intentional.
Intent is replaced by
fault.
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a. Classification of Felonies
a. INTENTIONAL FELONIES
In intentional felonies, the act or omission of the
offender is malicious. The act is performed with
deliberate intent. The offender, in performing the act
or in incurring the omission, has the intention to
cause an injury to another.
Requisites: (F-I-I)
a.
Freedom;
A person who acts under the compulsion of an
irresistible force, and an uncontrollable fear of an
equal or greater injury is exempt from criminal
liability;
b.
Intelligence
It is the moral capacity to determine what is right
from what is wrong and to realize the consequences
of one’s acts;
Factors that negate intelligence: minority,
insanity, imbecility;
c.
Intent
Intent is a mental state, the existence of which is
shown by the overt acts of a person. If there is no
intent, there is no felony committed by dolo, but a
felony may still exist if culpa is present.
Compare Intent v. Motive
INTENT
MOTIVE
The purpose to use a The reason which
particular means to impels one to commit
effect such a result;
an act for a definite
result;
An element of a Not an element of a
crime.
crime.
Motive, When Relevant
1. The identity of a person accused of having
committed a crime is in dispute;
2. In ascertaining the truth between antagonistic
theories or versions of the killing;
3. The identification of the accused proceeds
from unreliable source and testimony is
inconclusive and not free from doubt
4. There are no eyewitnesses to the crime, and
where suspicion is likely to fall upon a number
of persons; and
5. The evidence is merely circumstantial.
CRIMINAL LAW
Mistake of Fact
Ignorance or mistake of fact relieves the accused
from criminal liability. Mistake of fact is a
misapprehension of fact on the part of the person
who caused injury to another. He is not criminally
liable, because he did not act with criminal intent.
Requisites: (LIW)
a. The act done would have been Lawful had the
facts been as the accused believed them to be;
b. The Intention of the accused in performing the
act should be lawful; and
c. The mistake must be Without fault or
carelessness on the part of the accused.
b. CULPABLE FELONIES
In culpable felonies, the act or omission of the
offender is not malicious. The injury caused by the
offender to another person is “unintentional, it being
simply the incident of another act performed without
malice.”
Requisites: (F-I-I)
a. Freedom;
b. Intelligence; and
c. Imprudence, negligence, or lack of foresight
or lack of skill.
Imprudence indicates a deficiency of action. It
usually involves lack of skill.
Example: a person fails to take the necessary
precaution to avoid injury to person or damage to
property.
Negligence indicates a deficiency of perception.
It usually involves lack of foresight.
Example: a person fails to pay proper attention
and to use diligence in foreseeing the injury or
damage impending to be caused.
c. THOSE PUNISHED BY SPECIAL LAWS
The third class of crimes, are those defined and
penalized by special laws, which include crimes
punished by municipal or city ordinances. When
the crime is punished by a special law, intent to
commit the crime is not necessary. It is sufficient
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CRIMINAL LAW
that the offender has the intent to perpetrate the
act prohibited by the special law.
disqualification, perpetual or temporary special
disqualification and prision mayor.
Classification of Felonies According to Gravity
Art. 7. When light felonies are punishable. —
Light felonies are punishable when they have
been consummated, with the exception of
those committed against persons or property.
LESS GRAVE FELONIES
Punishable by prision correccional, arresto
mayor, suspension and destierro.
LIGHT FELONIES are those infractions of law for
the commission of which the penalty of arresto
menor or a fine not exceeding 40,000 pesos or
both, is provided.
Light felonies are punishable only when they
have been consummated. They produce such
light, such insignificant moral and material injuries
that public conscience is satisfied with providing
a light penalty for their consummation.
Exception: Light felonies committed against
persons or property, are punishable even if
attempted or frustrated.
Rationale: The commission of felonies against
persons or property presupposes in the offender
moral depravity.
Art. 9. Grave felonies, less grave felonies, and
light felonies. — Grave felonies are those to
which the law attaches the capital punishment
or penalties which in any of their periods are
afflictive, in accordance with Article 25 of the
Code.
Less grave felonies are those which the law
punishes with penalties which in their
maximum period are correctional, in
accordance with the above-mentioned article.
Light felonies are those infraction of law for
the commission of which the penalty of
arresto menor or a fine not exceeding Forty
thousand pesos (P40,000), or both, is
provided.
GRAVE FELONIES
Punishable by reclusion perpetua, reclusion
temporal, perpetual or temporary absolute
OFFENSES NOT INCLUDED IN THE CODE’S
CLASSIFICATION OF FELONIES
Art. 10. Offenses not subject to the provisions
of this Code. — Offenses which are or in the
future may be punishable under special laws
are not subject to the provisions of this Code.
This Code shall be supplementary to such
laws, unless the latter should specially
provide the contrary.
Main Idea: The provisions of the RPC are
supplementary to special laws.
Exceptions:
a. Where the special penal law provides
otherwise; and
b. When the provisions of the RPC are
impossible to apply, either by express
provision or by necessary implication.
Example: When the special law adopts the
nomenclature of the penalties imposed in the
RPC, the provisions of the RPC on imposition of
penalties based on stages of execution, degree
of participation and attendance of mitigating and
aggravating circumstance may be applied by
necessary implication.
Note: This instance is only an example and does
not cover all instances of the RPC’s suppletory
application to special penal laws.
The provisions of the Code on the graduation of
penalties by degrees could not be given
supplementary application to special laws, when
the penalties in the latter are not components of
or contemplated in the scale of penalties provided
by Article 71 of the former. The suppletory effect
of the RPC to special laws, as provided in Article
10, cannot be invoked where there is a legal or
physical impossibility of, or a prohibition in the
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special law against such supplementary
application. The situation is different where
although the offense is defined in and ostensibly
punished under a special law, the penalty therefor
is actually taken from the Code in its technical
nomenclature. (People v. Simon, G.R. No. 93028,
1994).
b. THE WRONG DONE TO THE AGGRIEVED
PARTY BE THE DIRECT, NATURAL AND
LOGICAL CONSEQUENCE OF THE
FELONY COMMITTED BY THE OFFENDER;
Subsidiary imprisonment under the RPC
applies to Special Penal Laws imposing the
penalty of fine, etc.
In a number of cases, the Supreme Court has
ruled that Articles 100 (civil liability) and 39
(subsidiary penalty) are applicable to offenses
under special [penal] laws. (People v. Cubelo,
G.R. No. L-13678, 1959).
1. By any person committing a felony (delito)
although the wrongful act done be
different from that which he intended;
When Article 10 Applies
a. Article 10 of the RPC makes the Code
suppletory to special [penal] laws, i.e. penal
laws that punish acts not defined by the RPC.
The suppletory applications of the RPC to
special [penal] laws, by virtue of Article 10,
finds relevance only when the provisions of
the special [penal] law are silent on a
particular matter.
The rationale of the rule is the maxim, “el que causa
de la causa es causa del mal causado” (he who is
the cause of the cause is the cause of the evil
caused).
b. Aberratio ictus, in error personae, and
praeter intentionem
Elements of Criminal Liability
AN INTENTIONAL FELONY HAS BEEN
COMMITTED;
Criminal Liability exists:
If a man creates in another person’s mind an
immediate sense of danger, which causes such
person to try to escape, and in so doing, the latter
injures himself, the man who creates such a state
of mind is responsible for the resulting injuries;
(People v. Page, G.R. No. L-37505, 1977).
a.
No felony is committed:
1. When the act or omission is not punishable by
the RPC; or
2. When the act is covered by any of the
justifying circumstances enumerated in Art.
11;
Art. 4. Criminal liability. — Criminal liability
shall be incurred:
One who commits an intentional felony is
responsible for all the consequences, which may
naturally and logically result therefrom, whether
foreseen or intended or not; and
How criminal liability is incurred:
a. By committing an intentional felony even if the
wrong produced as a consequence thereof is
not intended by the offender; and
b. By committing an impossible crime.
Proximate Cause
It is that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the
result would not have occurred (Bataclan v.
Medina, G.R. No. L-10126, 1957).
It is that acting first and producing the injury, either
immediately, or by setting other events in motion,
all constituting a natural and continuous chain of
events, each having a close causal connection
with its immediate predecessor.
Illustration: Accused who used a deadly weapon
putting the other’s life in jeopardy and death
follows is liable for said death. (People v. Likiran,
G.R. No. 201858, 2014)
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The felony committed is not the proximate
cause of the resulting injury when:
1. There is an active force that intervened
between the felony committed and the
resulting injury; or
2. The resulting injury is due to the intentional act
of the victim.
When death is presumed to be the natural
consequence of physical injuries inflicted:
1. The victim at the time of the physical injuries
were inflicted was in normal health;
2. Death may be expected from the physical
injuries inflicted; and
3. Death ensued within a reasonable time.
Effective Intervening Cause
An effective intervening cause interrupts the
natural flow of events leading to one’s death. It
may relieve the offender from liability.
Abberatio
ictus
Praeter
intentione
m
the guilty person shall also
constitute an attempt or frustration
of another crime, if the law
prescribes a higher penalty for
either of the latter offenses, in
which case the penalty provided for
the attempted or the frustrated
crime shall be imposed in its
maximum period. (Art. 49, RPC)
It is a compound crime when the
single act (mistaken blow) results in
two or more grave or less grave
felonies (Art. 48, RPC); otherwise,
the offenses shall be separately
punished.
This is a mitigating circumstance.
(Art. 13, para. 3, RPC).
c. Impossible Crimes
Situations where a person committing a felony
is still criminally liable:
1. Error in personae: mistake in the identity of
the victim;
2. Aberratio ictus: mistake in the blow; and
3. Praeter intentionem: the injurious result is
greater than that intended.
Effects to criminal liability
Error in
1. If the penalty prescribed for the
personae
felony committed be higher than
that corresponding to the offense
which the accused intended to
commit, the penalty corresponding
to the latter shall be imposed in its
maximum period.
2. If the penalty prescribed for the
felony committed be lower than that
corresponding to the one which the
accused intended to commit, the
penalty for the former shall be
imposed in its maximum period.
3. The rule established by the next
preceding paragraph shall not be
applicable if the acts committed by
Art. 4. Criminal liability. — Criminal liability shall
be incurred:
2. By any person performing an act which
would be an offense against persons or
property, were it not for the inherent
impossibility of its accomplishment or an
account of the employment of inadequate
or ineffectual means.
Note: The commission of an impossible crime is
indicative of criminal propensity or criminal
tendency on the part of the actor. Such a person
is a potential criminal.
Requisites of Impossible Crimes: (PPEIA)
1. The act performed would be an offense
against Persons or Property;
If the act performed would be an offense other
than a felony against persons or against property,
there is no impossible crime;
Felonies against persons:
1.
Parricide;
2.
Murder;
3.
Homicide;
4.
Infanticide;
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5.
6.
7.
8.
Abortion;
Duel;
Physical injuries; and
Rape;
Felonies against property:
1. Robbery;
2. Brigandage;
3. Theft;
4. Usurpation;
5. Culpable insolvency;
6. Swindling and other deceits;
7. Chattel mortgage;
8. Arson
and
other crimes
involving destruction; and
9. Malicious mischief;
2. The act was done with Evil intent;
3. Its accomplishment is inherently Impossible
or that the means employed is either
inadequate or ineffectual;
In impossible crimes, the act performed by the
offender cannot produce an offense against
persons or property, because: (1) the commission
of the offense is inherently impossible of
accomplishment, or (2) the means is either (a)
inadequate or (b) ineffectual; and
4. The act performed should not constitute a
violation of Another provision of the
Revised Penal Code.
Note: IN IMPOSSIBLE CRIMES, THE OFFENDER
SHOULD NOT BE AWARE OF THE
IMPOSSIBILITY OF HIS ACTIONS.
To be impossible under the Article, the act intended
by the offender must be by its nature one impossible
of accomplishment.
In Intod v. CA, the offenders, intending to kill X, fired
at X’s bedroom. However, X was in another city then.
The Court found the offenders guilty of an impossible
crime, not attempted murder.
CRIMINAL LAW
offense of attempt irrespective of legal impossibility.
(Intod v. CA, G.R. No, 103119, 1992)
INADEQUATE AND INEFFECTUAL MEANS
Inherent impossibility of its accomplishment
There must either be:
a. legal impossibility, or
b. physical impossibility.
Legal Impossibility - The intended acts, even if
completed, would not amount to a crime.
Example: Killing a person already dead
Physical
Impossibility
Extraneous
circumstances unknown to the actor or beyond
his control prevent the consummation of the
intended crime.
Example: A man puts his hand in the coat pocket of
another with the intention to steal the latter’s wallet
and finds the pocket empty.
Employment of inadequate means - Means is
insufficient.
Employment of ineffectual means - Means
employed did not produce the result expected.
Purpose: The purpose of the law in punishing
impossible crime is to suppress criminal
propensity or criminal tendencies. Objectively, the
offender has not committed a felony, but
subjectively, he is a criminal.
No Attempted or Frustrated Impossible Crime
There is no attempted or frustrated impossible
crime. The offender intending to commit an
offense has already performed all the acts of
execution but does not produce the crime by
reason of the fact that its nature is one of
impossible accomplishment or that the means
employed are essentially inadequate or
ineffectual. Since all the acts of execution have
already been performed, there could be no
attempted impossible crime. The acts performed
by the offender are considered as constituting a
consummated offense.
Congress has not yet enacted a law that provides
that intent plus act plus conduct constitutes the
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Duty of the Court in Cases Where Acts Not
Covered by the Law Must be Punished
accident other than this own spontaneous
desistance.
Art. 5. Duty of the court in connection with
acts which should be repressed but which are
not covered by the law, and in cases of
excessive penalties. — Whenever a court has
knowledge of any act which it may deem
proper to repress and which is not punishable
by law, it shall render the proper decision and
shall report to the Chief Executive, through
the Department of Justice, the reasons which
induce the court to believe that said act
should be made the subject of penal
legislation.
Development of a Crime
1. INTERNAL ACTS, such as mere ideas in the
mind of a person, are not punishable even if,
had they been carried out, they would
constitute a crime.
2. EXTERNAL ACTS cover (a) preparatory
acts; and (b) acts of execution.
In the same way the court shall submit to the
Chief Executive, through the Department of
Justice, such statement as may be deemed
proper, without suspending the execution of
the sentence, when a strict enforcement of the
provisions of this Code would result in the
imposition of a clearly excessive penalty,
taking into consideration the degree of malice
and the injury caused by the offense.
Ex: buying or preparing poison or weapon
with which to kill the intended victim;
carrying inflammable materials to the
place where a house is to be burned.
d. Stages of Execution
Art. 6. Consummated, frustrated, and
attempted felonies. — Consummated felonies
as well as those which are frustrated and
attempted, are punishable.
A felony is consummated when all the
elements necessary for its execution and
accomplishment are present; and it is
frustrated when the offender performs all the
acts of execution which would produce the
felony as a consequence but which,
nevertheless, do not produce it by reason of
causes independent of the will of the
perpetrator.
There is an attempt when the offender
commences the commission of a felony
directly or over acts, and does not perform all
the acts of execution which should produce
the felony by reason of some cause or
i. Preparatory acts - ordinarily they are not
punishable, but preparatory acts which
are considered in themselves, by law, as
independent crimes are punishable.
ii. Acts of execution - punishable under
the Revised Penal Code.
1. Subjective phase - portion of the acts
constituting the crime, starting from the point
where the offender begins the commission of the
crime to that point where he still has control over
his acts, including their natural course.
2. Objective phase - the result of the acts of
execution, that is, the accomplishment of the
crime.
a. If the subjective and objective phases
are present, there is a consummated
felony.
b. The spontaneous desistance of the
accused is exculpatory only (a) if made
during the attempted stage, and (b)
provided that the acts already committed
do not constitute any offense.
ATTEMPTED FELONY
There is an attempt when the offender
commences the commission of a felony directly
by overt acts, and does not perform all the acts
of execution which should produce the felony by
reason of some cause or accident other than his
own spontaneous desistance.
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Elements:
a. The offender commences the commission of
the felony directly by overt acts;
b. He does not perform all the acts of
execution which should produce the felony;
If the offender has performed all the acts of
execution – nothing more is left to be done –
the stage of execution is that of a frustrated
felony, if the felony is not produced; or
consummated, if the felony is produced;
c. The offender’s act is not stopped by his own
spontaneous desistance;
Rationale for non-liability in cases where
there is spontaneous desistance: It is sort of a
reward granted by law to those who, having one
foot on the verge of crime, heed the call of their
conscience and return to the path of
righteousness. The law does not punish him; and
When is desistance spontaneous?
“Spontaneous” means proceeding from natural
feeling or native tendency without external
constraint; synonymous with impulsive, automatic
and mechanical.
The accused will be exempt from criminal
liability only when:
1. Spontaneous desistance is done during the
attempted stage; and
2. No crime under another provision of the Code
or other penal law is committed.
d. The non-performance of all acts of execution
was due to cause or accident other than his
spontaneous desistance.
Overt Acts
It is some physical activity or deed, indicating the
intention to commit a particular crime, more than
a mere planning or preparation, which if carried to
its complete termination following its natural
course, without being frustrated by external
obstacles nor by the voluntary desistance of the
perpetrator, will logically and necessarily ripen
into a concrete offense.
CRIMINAL LAW
FRUSTRATED FELONY
A felony is frustrated when the offender performs
all the acts of execution which would produce the
felony as a consequence but which,
nevertheless, do not produce it by reason of
cause independent of the will of the perpetrator.
Elements:
1. The offender performs all the acts of
execution;
Nothing more is left to be done by the offender,
because he has performed the last act necessary
to produce the crime;
2. All the acts performed would produce the
felony as a consequence;
3. But the felony is not produced; and
4. By reason of causes independent of the will
of the perpetrator.
There are crimes that do not admit of a frustrated
stage. By the definition of a frustrated felony, the
offender cannot possibly perform all the acts of
execution to bring the desired result without
consummating the offense.
Frustrated v. Attempted Felony
FRUSTRATED
ATTEMPTED
Offender performs all Offender commences
the acts of execution the commission of the
which should produce felony directly by overt
the
felony
as
a acts, and does not
consequence,
but perform all the acts of
which, nevertheless, do execution by reason of
not produce it by reason some
cause
or
of causes independent accident other than his
of the will of the own
voluntarily
perpetrator.
desistance
There is no intervention There
is
such
of
a
foreign
or intervention and the
extraneous
cause offender
does
not
between the beginning arrive at the point of
of the commission of the performing all of the
crime and the moment acts, which should
when all of the acts have produce the crime. He
been performed which is stopped short of that
point by some cause
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should result in the apart from his voluntary
consummated crime.
desistance.
Subjective phase is Never
passes
the
completely
passed. subjective phase/
Subjectively the crime is
complete.
Offender did all that was
necessary to commit the
crime. If the crime did
not
result
as
a
consequence it was due
to something beyond his
control.
(US v. Eduave, G.R. No. L-12155, 1917)
Crimes Which Do Not Have a Frustrated
Phase:
1. Rape, because the gravamen of the offense
is carnal knowledge, so no matter how slight
the penetration, the felony is consummated;
2. Indirect bribery, because the offense is
committed by accepting gifts offered to the
public officer by reason of his office;
3. Corruption of public officers, since the crime
requires the concurrence of the will of both
parties;
4. Adultery, because the essence of the crime is
sexual congress;
5. Physical injury since its determination
whether slight, less serious, or serious can
only be made once it is consummated; and
6. Theft, since unlawful taking immediately
consummates the offense and the disposition
of the thing is not an element.
CONSUMMATED FELONY
A felony is consummated when all the elements
necessary for its execution and accomplishment
are present.
INDETERMINATE OFFENSE
One where the purpose of the offender in
performing an act is not certain. Its nature in
relation to its objective is ambiguous.
The intention of the accused must be ascertained
from the facts and, therefore, it is necessary that
the mind be able to directly infer from them the
CRIMINAL LAW
intention of the perpetrator to cause a particular
injury.
DESISTANCE
It is an absolutory cause, which negates criminal
liability because the law encourages a person to
desist from committing a crime.
Desistance should be made before all the acts of
execution are performed, i.e. during the
attempted stage (after commencement, but
before consummation).
Legal v. Factual Desistance
LEGAL
FACTUAL
DEFINITION
Desistance referred to in Actual desistance of
law which would obviate the actor; the actor is
criminal liability unless still liable for the
the overt or preparatory attempt.
act already committed in
themselves constitute a
felony other than what
the actor intended.
TIME OR PERIOD EMPLOYED
Desistance made during Desistance
made
the attempted stage.
after the attempted
stage of the crime.
Factors Determining the Stage of Execution:
a. Nature of the offense;
b. Elements constituting the felony; and
c. Manner of committing the same.
Manner of Committing the Crime
a. Formal crimes: consummated in one instant,
no attempt
As a rule, there can be no attempt at a formal crime,
because between the thought and the deed there is
no chain of acts that can be severed in any link.
E.g. Giving a false testimony (Art. 180), Slander (Art.
358)
b. Crimes consummated by mere attempt or
proposal or by overt act
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E.g. flight to enemy’s country (Art. 121), Corruption
of minors (Art. 340)
c. Felony by omission
There can be no attempted stage when the felony
is by omission, because in this kind of felony the
offender does not execute acts. He omits to
perform an act which the law requires him to do.
E.g. Misprision of treason (Art 116), Failure of
accountable officer to render accounts (Art. 218),
Failure of a responsible public officer to render
accounts before leaving the country (Art. 219),
Failure to make delivery of public funds or
property (Art. 221)
d. Crimes requiring the intervention of two
persons
to
commit
them
are
consummated by mere agreement
In the crime of corruption of public officer, the
same are consummated by mere agreement. The
offer made by one of the parties to the other
constitutes attempted felony, if the offer is
rejected.
e. Material crimes: there are three stages of
execution.
e. Continuing Crimes
CONTINUOUS (CONTINUED OR
CONTINUING) CRIME
It is a single crime, consisting of a series of acts but
all arising from one criminal resolution. Although
there is a series of acts, there is only one crime
committed.
REQUISITES: (M-UP-UO)
1. Multiplicity of acts;
2. Unity of criminal Purpose or intent; and
3. Unity of criminal Offense violated.
Continued Crime NOT a Complex Crime
A continued crime is not a complex crime, because
the offender in continued or continuous crime does
not perform a single act, but a series of acts, and one
offense is not a necessary means for committing the
other.
CRIMINAL LAW
Illustration: X defrauded A through falsification of a
public document by obtaining the title of a lot,
belonging to B, and by misrepresenting to A that B
was badly in need of money and was offering the title
of the said lot as collateral for a loan of P1500. X
executed a Deed of Real Estate Mortgage, signing
the name of B and induced A to deliver the amount
of P1500. X likewise defrauded C through the same
means and for the same amount.
The series of acts committed by X amounts to a
continued, continuous, or continuing offense. There
was only one deceit practiced by X on the two
victims, i.e. that being in need of money, B was
willing to mortgage two lots as security for a total loan
of P3000. That there were two (2) victims, however,
did not accordingly convert the crime into two
separate offenses, as the determinative factor is the
unity or multiplicity of the criminal intent or of the
transactions.
The singularity of the offense committed by
petitioner is further demonstrated by the fact that the
falsification of the two (2) public documents as a
means of committing estafa were performed on the
same date, in the same place, at the same time and
on the same occasion. (Mallari v. People, G.R. No.
L-58886, 1988).
Note: The continued crime principle applies to
crimes against persons.
Illustration: The accused and his companion ran
amok in the passengers' section of the upper
deck of a motorboat. Eleven persons were killed
and twenty other persons were seriously
wounded by him and his companion. The
accused confessed that he and his companion
had a common motive to run amok. It was held
that since the killings were the result of a single
impulse and that neither the accused nor his
companion had in mind killing any particular
individual, the acts complained of should be
considered as resulting from a single criminal
impulse and constituting a single offense. (People
vs. Emit, CA-G.R. No. 13477-R, Jan. 31, 1956)
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The series of acts born of a single criminal
impulse may be perpetrated during a long
period of time.
A sent an anonymous letter to B, demanding
P5,000 under threats of death and burning the
latter's house. Two months later, A sent again
another letter to B, making the same threats. Four
months later, A sent again another letter to B,
making the same threats. Six months thereafter,
A sent another letter to B, making the same
threats. This time, A was arrested for grave
threats.
It was held that the different acts of sending
letters of demand for money with threats to kill
and burn the house of the offended party
constitute only one and the same crime of grave
threats born of a single criminal impulse to attain
a definite objective. (See People vs. Moreno,
C.A., 34 O.G. 1767)
A continuous crime is a continuous, unlawful act
or series of acts set on foot by a single impulse
and operated by an unintermittent force, however
long a time it may occupy. (Mallari v. People,
supra)
There is only one crime commited.
A continued crime is a single crime consisting of
a series of acts but all arising from one criminal
resolution.
However, when two acts are deemed distinct from
one another although proceeding from the same
criminal impulse, two offenses were committed.
The principle cannot be applied. (People vs.
Ramos, 59 O.G. 4052)
f. Complex Crimes and Composite Crimes
PLURALITY OF CRIMES
Consists in the successive execution, by the
same individual, of different criminal acts, upon
any of which no conviction has yet been declared.
If there is conviction by final judgment and the
crimes fall under the same title of the RPC, it is
recidivism.
CRIMINAL LAW
a. Real or material plurality - Different crimes
in law, as well as in the conscience of the
offender; the offender shall be punished for
each and every offense that he committed.
b. Formal or ideal plurality - Only one criminal
liability:
1. When the offender commits any of the
complex crimes in Article 48;
2. When the law specifically fixes a single
penalty for two or more offenses committed
(Special Complex Crimes); and
3. When
the
offender
commits
continuous crimes.
Art. 48. Penalty for complex crimes. — When
a single act constitutes two or more grave or
less grave felonies, or when an offense is a
necessary means for committing the other,
the penalty for the most serious crime shall be
imposed, the same to be applied in its
maximum period.
This article requires the commission of at least 2
crimes. But the 2 or more grave or less grave
felonies must be the result of a single act, or an
offense must be a necessary means for
committing the other. They constitute only one
crime in the eyes of the law because the offender
has only one criminal intent, hence, there is only
one penalty imposed.
PENALTY
The penalty for complex crime is the penalty for
the most serious crime, the same to be applied in
its maximum period. If different crimes resulting
from one single act are punished with the same
penalty, the penalty for any one of them shall be
imposed, the same to be applied in the maximum
period. When two felonies constituting a complex
crime are punishable by imprisonment and fine,
respectively, only the penalty of imprisonment
should be imposed.
Note: This will not apply if one felony is committed
to conceal the other felony.
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There is no complex crime where one of the
offenses is penalized by a special law.
Article 48 will not apply if one crime is punishable
under the RPC, and the other punishable under a
Special Penal Law.
Illustration: Murder or homicide is distinct from the
crime of Illegal Possession of Unlicensed
Firearm, where the firearm is used in
perpetuating the killing. Murder and homicide are
defined and penalized by the RPC as crimes
against persons. They are mala in se because
malice or dolo is a necessary ingredient therefor.
On the other hand, the offense of illegal
possession of firearm is defined and punished by
a special penal law. It is a malum prohibitum. In
punishing illegal possession of firearm, the
criminal intent of the possessor is not taken into
account. All that is needed is intent to perpetrate
the act prohibited by law, coupled, of course,
by animus possidendi. However, it must be
clearly understood that this animus possidendi is
without regard to any other criminal or felonious
intent which an accused may have harbored in
possessing the firearm. (People v. Quijada, G.R.
Nos. 115008-09, 1996)
Kinds of Complex Crimes:
1. COMPOUND CRIME: When a single act
constitutes 2 or more grave or less grave
felonies.
Requisites:
a. Only a single act is performed by the
offender; and
b. The single act produces:
i. Two or more grave felonies; or
ii. One or more grave and one or more
less grave felonies; or
iii. Two or more less grave felonies.
charged in one information. They are separate
offenses subject to distinct penalties (Lontok v.
Gorgonio, G.R. No. L-37396, 1979).
When the crime is committed by force or violence,
slight physical injuries are absorbed. Thus, where
a person in authority or his agent, who was
attaccked in the performance of his duty, suffered
slight physical injuries only, the crime of slight
physical injuries is absorbed in the crime of direct
assault. (People v. Benitez, G.R. No. 48396,
1942).
2. COMPLEX CRIME PROPER: When an
offense is a necessary means for committing
the other.
Requisites: (TNP)
a. At least Two offenses are committed;
b. One or some of the offenses must be
Necessary to commit the other;
a. Necessary means is not equivalent to
indispensable means;
c. Both or all of the offenses must be Punished
under the same statute.
When there is no complex crime:
a. In case of continuous crimes;
b. When one offense is committed to conceal
the other;
E.g. After committing homicide, the
accused, in order to conceal the crime,
set fire to the house where it had been
perpetrated (People v. Bersabal, G.R.
No. 24532, 1925).
Setting fire to the house is arson. Neither
homicide nor arson was necessary to
commit the other.
c.
Light felonies produced by the same act should
be treated and punished as separate offenses or
may be absorbed by the grave felony.
Illustration: The light
property and slight
resulting from a single
constitute a complex
felonies of damage to
physical injuries, both
act of imprudence, do not
crime. They cannot be
When the other crime is an indispensable
part or an element of the other offenses;
E.g. Accused forcibly abducted a 19-year
old girl, and took her to the woods where
she was raped. The crime of forcible
abduction was a necessary means for
committing the crime of rape. (See
People v. Manguiat, G.R. No. L-28377,
1928).
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d.
Where one of the offenses is penalized by a
special law;
E.g. Murder or homicide remains distinct
from the crime of Illegal Possession of
Unlicensed Firearm, where the firearm is
used in perpetuating the killing. (People
v. Quijada, supra); and
e. When the provision provides for a two- tiered
penalty, e.g. Usurpation of property (Art.
312), malicious procurement of a search
warrant (Art. 129), bribery (Art. 210, par. 1).
SPECIAL COMPLEX CRIMES are those which
are treated by law as single indivisible offenses
although comprising more than one specific crime
and with specific penalty.
CRIMINAL LAW
4. Usurpation of real rights (Art. 312) with
serious physical injuries
Note: In cases when the prosecution failed to
conclusively prove that homicide was committed
for the purpose of robbing the victim, no accused
can be convicted of robbery with homicide. In the
special complex crime of robbery with
homicide, homicide is committed in order:
a. to facilitate the robbery or the escape of the
culprit;
b. to preserve the possession by the culprit of
the loot;
c. to prevent discovery of the commission of
the robbery; or
d. to eliminate witnesses to the commission of
the crime.
EXAMPLES:
1. Rape with homicide;
Note:
Homicide
must
always
be
consummated, otherwise, they are separate
offenses. The rape may either be
consummated or attempted;
2. Kidnapping with homicide;
3. Kidnapping with rape;
Note: Different from abduction with rape,
wherein there is lewd design
4. Robbery with homicide;
Note: Additional homicide not aggravating
5. Robbery with rape
Note: Additional rape not aggravating
6. Robbery with arson; and
7. Arson with homicide.
21 stab wounds would be overkill for these
purposes. The sheer number of stab wounds
inflicted makes it difficult to conclude an original
criminal intent of merely taking personal property.
(People v. Chavez y Bitancor, G.R. No. 207950,
J. LEONEN, September 22, 2014)
Crimes involved cannot be legally
complexed:
1. Malicious obtainment or abusive service of
search warrant (Art. 129) with perjury;
2. Bribery (Art. 210) with infidelity in the custody
or prisoners;
3. Maltreatment of prisoners (Art. 235) with
serious physical injuries; and
In the absence of direct evidence, a resort to
circumstantial evidence is usually necessary in
proving the commission of rape. This is because
rape is generally unwitnessed and very often only
the victim is left to testify for herself. It becomes
even more difficult when the complex crime of
rape with homicide is committed because the
victim could no longer testify. (People v. ZZZ,
G.R. No. 228828, J. LEONEN)
The elements of the special complex crime of
rape with homicide are:
1. the appellant had carnal knowledge of a
woman;
2. carnal knowledge of a woman was achieved
by means of force, threat or intimidation; and
3. by reason or on occasion of such carnal
knowledge by means of force, threat or
intimidation, the appellant killed a woman.
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COMPARATIVE TABLES
Material Plurality v. Continued Crime
REAL OR MATERIAL PLURALITY
There is a series of acts performed by the
offender.
Each act performed by the offender constitutes a
separate crime, because each act is generated by
a criminal impulse.
CONTINUED CRIME
There is a series of acts performed by the offender.
The different acts constitute only one crime because
all of the acts performed arise from one criminal
resolution.
Ordinary Complex Crime v. Special Complex/ Composite Crime
ORDINARY COMPLEX CRIME
SPECIAL COMPLEX CRIME OR
COMPOSITE CRIME
AS TO THEIR CONCEPT
It is made up of two or more crimes being punished It is made up of two or more crimes, which are
in distinct provisions of the Revised Penal Code considered only as components of a single
but alleged in one information either because they indivisible offense being punished in one provision
were brought about by a single act producing two of the Revised Penal Code.
or more grave or less grave felonies or because
one offense is a necessary means for committing
the other offense or offenses.
Each act performed by the offender constitutes a The different acts constitute only one crime because
separate crime, because each act is generated by all of the acts performed arise from one criminal
a criminal impulse.
resolution.
AS TO PENALTY
Penalty for the most serious crime shall be It is the penalty specifically provided for the special
imposed and in its maximum period.
complex crime that shall be applied according to the
rules on imposition of the penalty.
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Complex Crimes under Art. 48 v. Special Complex Crimes
Examples of Complex Crimes Covered by
Examples of Special Complex Crimes
Article 48
1. Direct assault with:
1. Qualified Piracy/ Qualified mutiny;
a.
Homicide;
2. Robbery with:
b.
Murder;
a. Serious Physical Injuries (SPI): victim of SPI
c.
Serious Physical Injuries or Less Serious
should not be the robber; otherwise, they
Physical Injuries; or
are separate crimes;
d.
Tumults and other disturbances;
Note: under the 4th act, violence need not
2. Estafa thru falsification of a public document;
result in SPI; only that the violence be
3. Malversation thru falsification;
unnecessary for the commission of the
4. Discharge of firearm with SPI or LSPI;
crime;
5. Grave threats with intentional abortion;
b. Homicide –
6. Homicide with unintentional abortion;
Intent to take personal property must
7. Parricide with abortion (intentional or
precede the killing. Otherwise, two separate
unintentional);
crimes of homicide/murder/parricide and
8. Forcible abduction with rape –
theft are committed. The law does not
If there are multiple rapes, only one will be
require that the victim of robbery is also the
complexed with forcible abduction, and the
victim of homicide;
rest shall be considered separate crimes; and c. Rape –
9. Simple seduction by means of usurpation of
Intent to gain must also precede rape. This
official functions.
does not cover robbery with attempted
rape.
d. Intentional Mutilation: Castration or mayhem;
e. Arson: Robbery should precede arson. And no
rape, homicide, SPI, or intentional
mutilation should be committed or else,
arson will only be considered as an
aggravation circumstance.
3. Rape with homicide (also, attempted and
frustrated rape with homicide): homicide must
be by reason of or on occasion of rape;
4. Rape with serious illegal detention or
Kidnapping with rape – if there is an attempted
rape, it shall be considered as a separate crime.
Regardless of the number of rapes, there is
only one crime;
5. Kidnapping with
d. Murder;
e. Homicide (take Note of specific intent);
Regardless of the number of victims killed,
there is one crime only of special complex
crime of kidnapping with homicide or
murder, as the case may be; and
c. Serious Physical injuries.
———— end of topic ————
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1. SELF-DEFENSE (PAR. 1)
II. CIRCUMSTANCES AFFECTING
CRIMINAL LIABILITY
Definitions
IMPUTABILITY
Definition: the quality
by which an act may
be ascribed to a
person as its author
or owner. It implies
that the act
committed has been
freely and
consciously done and
may, therefore, be
put down to the doer
as his very own.
Implies that a deed
may be imputed to a
person.
RESPONSIBILITY
Definition: the
obligation of suffering
the consequences of
crimes. It is he
obligation of taking
the penal and civil
consequences of the
crime.
Implies that the
person must take the
consequences of
such a deed.
GUILT is an element of responsibility, for a man
cannot be made to answer for the consequences
of a crime unless he is guilty.
a. Justifying Circumstances
General Concepts
Justifying Circumstances are those where the
act of a person is said to be in accordance with
law, so that such person is deemed not to have
transgressed the law and is free from both
criminal and civil liability. There is no crime and
there is no criminal.
There is also no civil liability, except in par. 4 of
Article 11.
Basis
a. The law recognizes the non-existence of a
crime by express provision; and
b. Lack of criminal intent.
Burden of Proof
It is incumbent upon the accused to prove the
justifying circumstances claimed by him to the
satisfaction of the court.
Rights Included in Self Defense:
Self-defense includes not only the defense of the
person or body of the one assaulted but also that
of his rights, those rights the enjoyment of which
is protected by law. “Aside from the right to life on
which rests the legitimate defense of our person,
we have the right to property acquired by us, and
the right to honor which is not the least prized of
man’s patrimony.” (Reyes citing 1 Viada, The
Revised Penal Code Book 1, 172, 173, 5th edition)
The right to honor. Hence, a slap on the face is
considered as unlawful aggression since the face
represents a person and his dignity. (Rugas V.
People G.R. No. 147789, 2004)
a.
b.
c.
d.
Defense of person;
Defense of rights protected by law;
Defense of property; and
Defense of chastity.
Reasons why penal law makes self- defense
lawful:
a. It is based on that impulse of selfpreservation born to man and part of his
nature as a human being.
b. Classicist: grounded on the impossibility on
the part of the State to avoid a present unjust
aggression and protect a person unlawfully
attacked.
c. Positivists: an exercise of a right, an act of
social justice done to repel the attack of an
aggression.
Elements: (URP)
1. Unlawful Aggression;
Note: An indispensable requirement.
a. Actual physical assault or aggression or an
immediate and imminent threat is required;
b. Threatened assault of an immediate kind
must be offensive and positively strong
showing the wrongful intent to cause injury;
and
c. The defense must have been made during
the existence of aggression, otherwise, it is
no longer justifying;
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2. Reasonable necessity of the means
employed to prevent or repel it;
Test of reasonableness:
a. Nature and quality of the weapon used by
aggressor
b. Physical condition, character, size and
other circumstances of aggressor;
c. Physical condition, character, size and
circumstances of person defending
himself ;
d. Place and occasion of assault;
Note: Perfect equality between the
weapons
used
or
material
commensurability between the means of
attack and defense by the one defending
himself and that of the aggressor is not
required because the victim does not
have sufficient opportunity and tranquility
of mind to think and calculate which
weapon to use. The law merely requires
rational equivalence; and
3. Lack of sufficient Provocation on the part of
the person defending himself
FIRST ELEMENT: Unlawful aggression
a. Kinds of Aggression
• Lawful: fulfillment of a duty or the exercise
of a right unless public officer exceeds his
authority; and
• Unlawful.
b. It is equivalent to assault or at least threatened
assault of an immediate and imminent nature.
c. There must be an actual physical assault
upon a person, or at least a threat to inflict
real injury.
d. The threat must be offensive and positively
strong, showing the wrongful intent to cause
an injury.
e. Peril to one’s Life
• Actual: the danger must be present, that
is, actually in existence; or
• Imminent: the danger is on the point of
happening. It is not required that the attack
already begins, for it may be too late.
f. Peril to one’s Limb - Includes peril to the
safety of one’s person from physical injuries.
Retaliation v. Self-defense
RETALIATION
SELF-DEFENSE
The aggression that was The aggression was
begun by the injured still existing when
party already ceased to the aggressor was
exist when the accused injured or disabled
attacked him.
by
the
person
making a defense.
NOT self-defense nor a
justifying circumstance.
Notes: Unlawful Aggression
a. The attack made by the deceased and the
killing of the deceased by defendant should
succeed each other without appreciable
interval of time.
Accused must have no time nor occasion for
deliberation and cool thinking.
b. It must come from the person attacked by the
accused.
c. There is no unlawful aggression when there
was an agreement to fight unless aggression
occurred before the stipulated time and place
in the agreement.
d. When the aggressor flees, unlawful
aggression cease to exist.
e. Mere belief of an impending attack is not
sufficient.
f. In relation to “mistake of fact”, the belief of the
accused may be considered in determining
the existence of unlawful aggression. E.g. use
of a replica gun provided the accused believe
to be a real gun.
g. In case of a threat, it must be offensive and
strong, positively showing the wrongful intent
to cause injury. It is present only when the one
attacked faces real and immediate threat to
one’s life. (People v. Vergara, G.R. No.
177763, 2013)
How to Determine the Unlawful Aggressor:
In the absence of direct evidence to determine
who provoked the conflict, it has been held that it
shall be presumed that, in the nature of the order
of things, the person who was deeply offended by
the insult was the one who believed he had a right
to demand explanation of the perpetrator of that
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insult, and the one who struck the first blow when
he was not satisfied with the explanation offered
(United States v. Laurel, G.R. No L-7037, 1912).
4 Kinds of Self Defense: (CPLD)
a. Self-defense of Chastity – There must be
an attempt to rape the victim.
b. Defense of Property – Must be coupled with
an attack on the person of the owner, or on
one entrusted with such property.
Attack on property alone was deemed
sufficient to comply with element of unlawful
aggression. (People v. Narvaez, G.R. No. L33466-67, 1983).
Self-defense in Libel – Justified when the
libel is aimed at a person’s good name.
d. Defense of Dignity and of person – Slap
on the face which places a person’s dignity
in real danger. (People v. Sabio, G.R.No L23734, 1967)
c.
“Stand ground when in the right” - The law
does not require a person to retreat when his
assailant is rapidly advancing upon him with a
deadly weapon.
SECOND ELEMENT: Reasonable Necessity of
the Means Employed to Prevent or Repel it
a. The reasonableness of either or both such
necessity depends on the existence of
unlawful aggression and upon the nature and
extent of the aggression.
b. Two elements of necessity: necessity for the
course of action and necessity of the means
employed
c. Necessity of the course of action taken: the
necessity of the course of action taken
depends on the existence of unlawful
aggression.
d. Necessity of the means used: the means
employed by the person making a defense
must be rationally necessary to prevent or
repel an unlawful aggression.
e. In repelling or preventing an unlawful
aggression, the one defending must aim at
his assailant, and not indiscriminately fire his
deadly weapon.
f.
The peace officer, in the performance of his
duty, represents the law which he must
uphold. While the law on self- defense allows
a private individual to prevent or repel an
aggression, the duty of a peace officer
requires him to overcome his opponent. A
police officer is not required to afford a person
attacking him, the opportunity for a fair and
equal struggle.
In determining reasonable means, some
factors are to be considered such as:
a. Presence of imminent danger;
b. Emergency to which the person defending
himself has been exposed to;
c. Nature and quality of the weapon used by
the accused compared to the weapon of the
aggression;
d. Impelled by the instinct of self- preservation;
and
e. Size and/or physical character of the
aggressor.
Perfect equality between the weapons used by
the one defending and that of the aggressor is not
required. Rational Equivalence is enough.
Note: The first two requisites thus far explained
are common to self-defense, defense of a
relative, and defense of a stranger.
Lack of sufficient provocation on the part of
the person defending himself
a. The one defending himself must not have
given cause for the aggression by his unjust
conduct or by inciting or provoking the
assailant.
b. Cases in which third requisite considered
present:
c. No provocation at all was given to the
aggressor by the person defending himself;
d. When, even if a provocation was given, it was
not sufficient; and
e. When, even if the provocation was sufficient,
it was not given by the person defending
himself.
f. The exercise of a right cannot give rise to
sufficient provocation.
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g. The provocation must be sufficient, which
means that it should be proportionate to the
act of aggression and adequate to stir the
aggressor to its commission. (People v.
Alconga, G.R. No. L-162, 1947)
Battered Woman Syndrome as a Defense:
R.A. 9262: Anti-Violence Against Women and
Their Children Act of 2004 March 8, 2004
a. Battered woman - one who is repeatedly
subjected to any forceful physical or
psychological behavior by a man in order to
coerce her to do something he wants her to
do without concern for her rights.
b. Includes wives or women in any form of
intimate relationship with men.
c. Must go through battering “cycle of violence”
at least TWICE.
1. The tension-building phase – During
this phase, minor battering occurs. It
could be verbal or slight physical abuse.
The woman usually tries to pacify the
batterer through a show of kind, nurturing
way. All she wants is to prevent the
escalation of the violence exhibited by
the batterer.
2. The acute battering incident –
Characterized
by
brutality,
destructiveness, and sometimes death.
The battered woman deems this incident
as unpredictable, yet also inevitable.
During this phase, she has no control.
Only the batterer may put an end to the
violence. The woman usually realizes
that she cannot reason with him, and that
resistance would only exacerbate her
condition.
3. The tranquil, loving phase – This final
phase begins when the acute battering
incident ends. During this period, the
couple experience profound relief. The
batterer may show a tender and nurturing
behavior towards his partner. The
battered woman tries to convince herself
that the battery will never happen again;
that her partner will change for the better.
CRIMINAL LAW
Note: Section 26 of R.A. 9262 provides that
“Victim-survivors who are found by the courts
to be suffering from battered woman
syndrome do not incur any criminal and civil
liability notwithstanding the absence of any of
the elements for justifying circumstances of
self-defense under the Revised Penal Code.”
Under R.A. 9262, the Battered Woman Syndrome
can be invoked as a defense without having to
prove the elements of self-defense like unlawful
aggression, because it is recognized as an
absolutory cause (rather than a justifying
circumstance) under this law.
2. DEFENSE OF RELATIVES (PAR. 2)
ELEMENTS:
a. Unlawful Aggression;
Note: An indispensable requirement.
Unlawful aggression need not exist as a
matter of fact. It can be made to depend upon
the honest belief of the one making a
defense, as when two sons attacked the
victim in the belief that the latter unlawfully
attacked their father who was lying on the
floor when they arrived. (United States v.
Esmedia, G.R. No. L-5749, 1910)
b. Reasonable necessity of the
employed to prevent or repel it;
(See discussion under par. 1)
means
c. In case the provocation was given by the
person attacked, the one making the
defense had no part in such provocation;
The clause, “in case the provocation was given
by the person attacked,” used in stating the third
requisite does not mean that the relative
defended should give provocation to the
aggressor. It merely states an event which may or
may not take place;
There is still a legitimate defense of relative even
if the relative being defended has given
provocation, provided that the one defending
such relative has no part in the provocation.
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Relative entitled to the Defense: (SADAC)
a. Spouse;
b. Ascendants;
c. Descendants;
d. Legitimate, natural or adopted brothers and
sisters, or relatives by affinity in the same
degrees; and
Relatives by Affinity: created by
marriage / law;
e. Relatives by Consanguinity within the 4th
civil degree.
Relatives by consanguinity: blood
relatives
Note: The relative defended may be the original
aggressor. To justify the act of the relative
defending, he must not take part in such
provocation.
Basis: Humanitarian sentiment and upon the
impulse of blood which impels men to rush, on
the occasion of great perils, to the rescue of those
close to them by ties of blood.
3. DEFENSE OF STRANGER (PAR. 3)
Elements:
1. Unlawful aggression (indispensable
requirement);
2. Reasonable necessity of the means
employed to prevent or repel it; and
3. Person defending be not induced by
revenge, resentment or other evil motive.
a. The defense of a stranger must be
actuated by disinterested or generous
motive.
A stranger is any person not included in the
enumeration of relatives mentioned in paragraph
2.
Basis: What one may do in his defense, another
may do for him.
Note: Reasonable necessity does not mean
absolute necessity. It must be assumed that one
who is assaulted cannot have sufficient tranquility
of mind to think, calculate and make comparisons
which can easily be made in the calmness of the
home. It is not the indispensable need but the
CRIMINAL LAW
rational necessity which the law requires. In each
particular case, it is necessary to judge the
relative necessity, whether more or less
imperative, in accordance with the rules of
rational logic. The defendant may be given the
benefit of any reasonable doubt as to whether he
employed rational means to repel the aggression.
(Mariano y Garcia v. People, G.R. No. 224102, J.
LEONEN)
4. AVOIDANCE OF GREATER EVIL OR
INJURY (STATE OF NECESSITY) (PAR. 4)
Elements: (EIP)
1. Evil sought to be avoided actually exists;
a. Evil that is merely expected or anticipated
or may happen in the future is not
sufficient;
2. Injury feared be greater than that done to
avoid it; and
a. Greater evil should not be brought about
by the negligence or imprudence of the
actor;
b. Greater evil must not result from a
violation of law by the actor;
3. No other Practical and less harmful means
of preventing it.
In cases falling within subdivision 4 of Article 11,
the persons for whose benefit the harm has been
prevented, shall be civilly liable in proportion to
the benefit which they may have received (Art.
101).
Note: Although as a rule, there is no civil liability
in justifying circumstances, it is only in this
instance where there is civil liability, but civil
liability is borne by the persons benefited.
In cases falling within subdivision 4 of Article 11,
the persons for whose benefit the harm has been
prevented, shall be civilly liable in proportion to
the benefit which they may have received. (Art.
101, RPC) The civil liability here is not ex-delicto.
The necessity must not be due to the negligence
or violation of any law by the actor.
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CRIMINAL LAW
5. FULFILLMENT OF DUTY OR LAWFUL
EXERCISE OF RIGHT OR OFFICE (PAR. 5)
3. Means used by subordinate to carry out said
order is Lawful.
Elements:
1. Accused acted in the performance of duty or
in the lawful exercise of a right or office; and
2. Injury caused or offense committed is the
necessary consequence of the due
performance of the duty, or the lawful
exercise of such right or office.
Notes:
a. The superior officer giving the order cannot
invoke this justifying circumstance.
b. Good faith is material, as the subordinate is
not liable for carrying out an illegal order if
he is not aware of its illegality and he is not
negligent.
General rule: Subordinate cannot invoke this
circumstance when order is patently illegal.
Notes:
a. The accused must prove that he was duly
appointed to the position claimed he was
discharging at the time of the commission of
the offense.
b. The deceased was under the obligation to
surrender, and had no right, after evading
service of his sentence, to commit assault
and disobedience with a weapon in his hand,
which compelled the policeman to resort to
such extreme means, which, although it
proved to be fatal, was justified by the
circumstances. (People v. Delima, G.R. No.
L-18660, 1922)
It is not necessary that there be unlawful
aggression against the person charged with the
protection of the property. If there is unlawful
aggression against the person charged with the
protection of the property, then paragraph 1 of Art.
11 applies, it being a defense of right to property.
Doctrine of Self-Help
The owner or lawful possessor of a thing has the
right to exclude any person from the enjoyment
and disposal thereof. For this purpose, he may
use such force as may be reasonably necessary
to repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his
property.
6. OBEDIENCE TO AN ORDER ISSUED FOR
SOME LAWFUL PURPOSE (PAR. 6)
Exception: When there is compulsion of an
irresistible force, or under impulse of
uncontrollable fear.
b. Exempting Circumstances
General Concepts
EXEMPTING
CIRCUMSTANCES
(nonimputability) are those grounds for exemption
from punishment due
to absence of any
conditions in the agent of the crime which makes
the act voluntary or negligent.
Technically, one who acts by virtue of any
exempting circumstance commits a crime,
although by the complete absence of any of the
conditions which constitute free will or
voluntariness of the act, no criminal liability arise.
(Guevara)
There is, therefore, a crime, but no criminal.
Basis: There is complete absence of
voluntariness (i.e., intelligence, freedom of action,
or intent), or absence of negligence on the part of
the accused.
The burden of proof to prove the existence of
an exempting circumstance lies within the
defense.
Elements: (OLL)
1. An Order has been issued by a superior;
2. The order has a Lawful purpose and not
patently illegal; and
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Justifying Circumstances v. Exempting
Circumstances
JUSTIFYING
EXEMPTING
WHO/WHAT
IS
AFFECTED
Act
Actor
NATURE
OF ACT
Act is
considered
legal
EXISTENCE
OF A
CRIME
None
Act is wrongful
but actor is not
liable
Yes, but since
voluntariness is
absent the actor
is not liable
There is a crime,
no criminal, no
criminal liability.
No crime, no
criminal, no
criminal
liability.
LIABILITY
No civil liability
EXCEPT civil
liability in Art.
11(4): Under
Art. 101, the
persons
for
whose benefit
the harm has
been
prevented
shall be civilly
liable
in
proportion to
the
benefit
which
they
may
have
received.
There is civil
liability EXCEPT
as to Art. 12(4)
[injury by mere
accident] and
(7)
[lawful
cause]
least discernment or with total deprivation of free
will. This does not include mere abnormality of the
mental faculties. The insane is not so exempt if it
can be shown that he acted during a lucid interval.
It is necessary that there be a complete
deprivation of intelligence while committing the
act, that is, that the accused be deprived of
reason; that he acts without the least
discernment; or that there be a total deprivation
of freedom of the will. (People v. Formigones,
G.R. No. L-3246, 1950)
The defense must prove that the accused was
insane at the time of the commission of the crime,
because the presumption is always in favor of
sanity.
Note: In a parricide case, People vs. Lacena, 69
Phil. 250, the Supreme Court held that the
accused suffered from malignant malaria, a
disease that causes disturbance in the nervous
system, causing, among other complications,
acute mania, melancholy and exceptional
insanity, sometimes. Thus, the accused did not
incur
criminal
responsibility,
since
the
circumstances in which the appellant murdered
her husband reveal that she carried out such act
at a time when she suffered from insanity as a
result of her illness.
Note: "Where it is shown that defendant had lucid
intervals, it will be presumed that offense was
committed in one of them.”
Basis: Complete absence of intelligence, an
element of voluntariness.
1. IMBECILITY OR INSANITY (PAR. 1)
IMBECILITY exists when a person, while of
advanced age, has a mental development
comparable to that of children between 2 and 7
years old. An imbecile is one who is deprived
completely of reason or discernment and freedom
of the will at the time of committing the crime. He
is exempt in all cases from criminal liability.
INSANITY exists when there is complete
deprivation of intelligence or reason or without the
TIME WHEN
ACCUSED
SUFFERS
INSANITY
At the time of the
commission of the
felony
During trial
EFFECT ON
CRIMINAL LIABILITY
Exempt from criminal
liability
Accused is criminally
liable, but trial will be
suspended until the
mental capacity of the
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After judgment of
while serving
sentence
accused be restored to
afford him a fair trial;
and
accused
is
committed to a hospital.
Execution of judgment
is suspended, and the
accused is committed to
a hospital. The period of
confinement in the
hospital is counted for
the purpose of the
prescription
of
the
penalty.
The evidence of insanity must refer to the time
preceding the act under the prosecution or to the
very moment of its execution.
Tests of Insanity:
1. Cognition: complete deprivation of
intelligence in committing the crime; and
2. Volition: total deprivation of freedom of will.
Scope of the term “Insanity”:
a. Dementia praecox: irresistible homicidal
impulse;
b. Schizophrenia: chronic mental disorder
characterized by inability to distinguish
between fantasy and reality and often
accompanied
by
hallucinations
and
delusions;
c. Kleptomania only if it produces an irresistible
impulse to steal as when the accused has
been deprived of his will which would enable
him to prevent himself from doing this act;
Note: If it only diminishes the exercise of
his will-power, it is not an exempting
circumstance
but
a
mitigating
circumstance.
d. Epilepsy:
chronic
nervous
disease
characterized by fits, occurring at intervals,
attended by conclusive motions of the
muscles and loss of consciousness;
e. Feeblemindedness: not exempting;
f. Pedophilia: not insanity;
g. Amnesia: not proof of mental condition of the
accused;
h. Other causes of lack of intelligence;
i.
j.
k.
Committing a crime while in a dream (People
v. Taneo, G.R. No. L-37673, 1933);
Somnambulism or sleepwalking (People v.
Gimena, G.R. No. L-33877, 1931); and
Committing a crime while suffering from
malignant malaria. (People v. Lacena, G.R.
No. L-46961, 1940)
2. MINORITY (PAR. 2 AND 3)
Basis: Complete absence of intelligence
Burden of Proof: Any person alleging the age of
the child in conflict with the law has the burden of
proving the age of the child.
If age is contested PRIOR to the filing of the
information in court, a case for determination of
age under summary proceeding may be filed
before the Family Court which shall render its
decision within 24 hours from receipt of
pleadings.
PAR 2: A person under nine years of age
(Modified by Section 6 of RA 9344 to FIFTEEN
YEARS OF AGE AND BELOW)
PAR 3: A person over nine years of age and
under fifteen, unless he has acted with
discernment in which case, such minor shall
be proceeded against in accordance with the
provisions of Article 80 of this Code.
a. Section 6 of RA 9344 modified this to: a
person OVER 15 ABOVE and UNDER 18
unless he has acted with discernment.
b. Allegation of “with intent to kill” in the
information is sufficient allegation of
discernment.
c. Section 38 of RA 9344: Automatic
Suspension of Sentence. - Once the child
who is under eighteen (18) years of age at the
time of the commission of the offense is found
guilty of the offense charged, the court shall
determine and ascertain any civil liability
which may have resulted from the offense
committed.
However,
instead
of
pronouncing the judgment of conviction,
the court shall place the child in conflict
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with the law under suspended sentence,
without need of application: Provided,
however, That suspension of sentence shall
still be applied even if the juvenile is already
eighteen years (18) of age or more at the time
of the pronouncement of his/her guilt.
d. Upon suspension of sentence and after
considering the various circumstances of the
child, the court shall impose the appropriate
disposition measures as provided in the
Supreme Court Rule on Juveniles in Conflict
with the Law. (RA 9344, Sec. 38).
PERIODS OF CRIMINAL
RESPONSIBILITY
AGE OF
15 and below
ABSOLUTE
IRRESPONSIBILIT
Y
AGE OF
Between 15-18
CONDITIONAL
RESPONSIBILITY
18 or over
AGE OF FULL
(adolescence) to 70
RESPONSIBILITY
(maturity)
15 or over but less
AGE OF
than 18, offender
MITIGATED
acting with
RESPONSIBILITY
discernment; over
70 years of age
EXEMPTING PROVISIONS UNDER RA 9344
(JUVENILE JUSTICE AND WELFARE ACT OF
2006):
a. SEC. 57. Status Offenses. - Any conduct not
considered an offense or not penalized if
committed by an adult shall not be
considered an offense and shall not be
punished if committed by a child.
b. SEC. 58. Offenses Not Applicable to
Children: Persons below eighteen (18)
years of age shall be exempt from
prosecution for:
c. The crime of vagrancy and prostitution under
Section 202 of the Revised Penal Code,
d. Mendicancy under Presidential Decree No.
1563,
CRIMINAL LAW
e. Sniffing of rugby under Presidential Decree
No.
1619,
such
prosecution
being
inconsistent with the United Nations
Convention on the Rights of the Child:
Provided, that said persons shall undergo
appropriate counseling and treatment
program.
Diversion v. Intervention
DIVERSION
INTERVENTION
An alternative, child- A series of activities
appropriate process which are designed
of determining the to address issues that
responsibility
and caused the child to
treatment of a child in commit an offense. It
conflict with the law may take the form of
on the basis of his/her an
individualized
social,
cultural, treatment
program
economic,
which may include
psychological
or counseling,
skills
educational
training, education,
background without and other activities
resorting to formal that will enhance
court
proceedings. his/her psychological,
(Section 4 (i), R.A. emotional
and
9344)
psycho-social wellbein. (Section 4 (l),
R.A. 9344)
A CICL is required to A child fifteen (15)
undergo a Diversion years of age or under
Program, after he/she at the time of the
is found responsible commission of the
for an offense without offense is exempt
resorting to formal from criminal liability,
court
proceedings. but shall be subjected
(Section 4 (j), supra)
to an intervention
program. (Section 6,
supra)
PLEASE SEE SPL REVIEWER FOR A MORE
DETAILED DISCUSSION ON DIVERSION V.
INTERVENTION PROGRAMS p. 347
3. ACCIDENT
WITHOUT
FAULT
INTENTION OF CAUSING IT (PAR. 4)
OR
ACCIDENT is an occurrence that happens
outside the sway of our will, and although it
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comes about through some act of our will, it lies
beyond the bounds of humanity foreseeable
consequences.
Elements:
1. A person is performing a lawful act;
2. With due care;
3. He causes an injury to another by mere
accident; and
4. Without fault or intention of causing it.
CRIMINAL LAW
Basis: Complete absence of freedom.
The force must be so irresistible as to reduce the
actor to a mere instrument who acts not only
without will but against his will. The compulsion
must be of such a character as to leave no
opportunity to the accused for escape or selfdefense in equal combat. (People v. Loreno, G.R.
No. L-54414, 1984)
5. UNCONTROLLABLE FEAR (PAR. 6)
Accident v. Negligence
ACCIDENT
NEGLIGENCE
An event which under Failure to observe
the circumstance is that degree of care,
unusual
or precaution
and
unexpected by the vigilance which the
person to whom it circumstances justly
happens.
demand
without
which such other
person suffers injury.
UNCONTROLLABLE FEAR means that the
offender employs intimidation or threat in
compelling another to commit a crime. The
compulsion is by means of intimidation or threat,
not force or violence.
Basis: Lack of negligence and intent. Under this
circumstance, a person does not commit either
an intentional felony or a culpable felony.
Elements:
1. The threat which causes the fear is of an evil
greater than, or at least equal to, that which
he is required to commit; and
2. It promises an evil of such gravity and
imminence that an ordinary man would have
succumbed to it.
When claim of accident not appreciated:
a. Repeated blows; and
b. Threatening words preceding it and still
aiming the gun at the prostate body of the
victim.
Requisites:
1. Existence of an uncontrollable fear;
2. The fear must be real and imminent; and
3. The fear of an injury is greater than or at least
equal to that committed.
4. IRRESISTIBLE FORCE (PAR. 5)
IRRESISTIBLE FORCE means that the offender
uses violence or physical force to compel another
person to commit a crime.
Elements: (PIT)
1. The compulsion is by means of Physical
force;
2. The physical force must be Irresistible; and
3. The physical force must come from a Third
person.
Basis: Complete absence of freedom, an
element of voluntariness. An act done by me
against my will is not my act.
Duress to be a valid defense should be based on
real, imminent or reasonable fear for one’s life or
limb. It should not be inspired by speculative,
fanciful or remote fear. A threat of future injury is
not enough.
The accused must not have opportunity for
escape or self-defense.
Passion and obfuscation cannot amount to
irresistible force.
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Irresistible Force v. Uncontrollable Fear
IRRESISTIBLE
FORCE
UNCONTROLLABLE
FEAR
Violence
or
physical force to
compel
another
person to commit a
crime.
The offender employs
intimidation or threat in
compelling another to
commit a crime.
6. PREVENTED BY
CAUSE (PAR. 7)
AN
INSUPERABLE
INSUPERABLE CAUSE is some motive, which
has lawfully, morally or physically prevented a
person to do what the law commands.
Elements: (RFL)
1. An act is Required by law to be done;
2. A person Fails to perform such act; and
3. His failure to perform such act was due to
some Lawful or insuperable cause.
Basis: Accused acts without intent, the third
condition of voluntariness in intentional felony.
Examples:
a. A priest cannot be compelled to reveal what
was confessed to him.
b. An officer is not liable for arbitrary detention
for failure to deliver a prisoner to a judicial
authority when there was no available
transportation.
c. Mitigating Circumstances
General Concepts
MITIGATING CIRCUMSTANCES are those
which, if present in the commission of the crime,
do not entirely free the actor from criminal liability,
but serve only to REDUCE the penalty.
Basis: Diminution of either freedom of action,
intelligence, or intent, or on the lesser perversity
of the offender.
A mitigating circumstance arising from a single
fact
absorbs
all the
other
mitigating
circumstances arising from that same fact.
Ordinary v. Privileged Mitigating
Circumstances
ORDINARY
PRIVILEGED
Those enumerated in Par. 1 of Article 13,
pars. 1-10 of Article Articles 64, 68, 69;
13;
Pars. 1 and 2 are Article 64 applies only
privileged mitigating when there are two or
under Article 68 as more
ordinary
amended by R.A. No. mitigating
9344 and Article 69;
circumstances
without any generic
aggravating
circumstances;
Susceptible of being Cannot be offset by
offset
by
any aggravating
aggravating
circumstances; and
circumstance; and
If not offset by an Produces the effect of
aggravating
imposing upon the
circumstance,
offender the penalty
produces only the lower by one or two
effect of applying the degrees than that
penalty provided by provided by law for
law for the crime in its the crime.
minimum period, in
case
of
divisible
penalty.
1. INCOMPLETE
JUSTIFYING
OR
EXEMPTING CIRCUMSTANCES (par. 1)
Circumstances of Justification or Exemption
which may give Place to Mitigation:
1. Self-defense;
2. Defense of Relatives;
3. Defense of Strangers;
4. State of Necessity;
5. Performance of Duty;
6. Obedience to Order of Superior;
7. Minority: 15 and over until 18 years of age;
8. Causing injury by mere Accident; and
9. Uncontrollable Fear.
Exceptions: Article 12, pars. 1 and 2 cannot give
place to mitigation, because the mental condition
of a person is indivisible; there is no middle
ground between sanity and insanity, between
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presence and absence of intelligence. (Decs. of
Sup. Ct. of Spain of December 19, 1901 and of
October 3, 1884).
This mitigating circumstance applies when not all
the requisites are present. If majority of the
requisites are present, it is a privileged mitigating
circumstance.
Notes:
a. Incomplete
self-defense,
defense
of
relatives, and defense of stranger: unlawful
aggression must be present.
• When 2 of the requisites mentioned are
present, it should be considered as a
privileged
mitigating
circumstance
referred to in Art. 69.
b. Incomplete justifying circumstance of
avoidance of greater evil or injury: if any of
the last 2 requisites is absent, there is only a
mitigating circumstance.
c. Incomplete justifying circumstance of
performance of duty: there is no ordinary
mitigating circumstance under Art. 13, par. 1,
when
the
justifying
or
exempting
circumstance has 2 requisites only.
d. Incomplete exempting circumstances of
accident
• If the requisites of (1) due care, and (2)
without fault are absent, the case will fall
under Article 365.
2. OVER 15 AND UNDER 18, IF THERE IS
DISCERNMENT OR OVER 70 YEARS OLD
(par. 2)
a. Original provision which provides that
offender under 18 is entitled to a mitigating
circumstance of minority is deemed repealed
by RA 9344.
b. Age of accused is determined by his age at
the date of commission of crime, not date of
trial.
c. That the offender is over 70 years of age is
only a generic mitigating circumstance.
Basis: Diminution of intelligence, a condition of
voluntariness.
CRIMINAL LAW
LEGAL EFFECTS OF VARIOUS AGES OF
THE OFFENDER
15 and below
Exempted from penal
responsibility
Without discernment:
exempting
circumstance
Above 15
but under 18
With discernment:
penalty is reduced by
one (1) degree lower
than that imposed
Minor delinquent
Sentence suspended
under 18 years of
age who acted
WITH discernment
Over 18 years and
Full criminal
below 70
responsibility
Mitigating, no
imposition of death of
death penalty, if
70 years or over
already imposed,
execution of death
penalty is suspended
and commuted.
3. NO INTENTION TO COMMIT SO GRAVE A
WRONG (par. 3)
Rule for the application: This circumstance can
be taken into account only when the facts proven
show that there is a notable and evident
disproportion between the means employed to
execute the criminal act and its consequences.
(United States v. Reyes, 36 Phil. 904, 907)
Factors that can be considered are:
1. Weapon used;
2. Injury inflicted;
3. Part of the body injured; and
4. Mindset of offender at the time of commission
of crime.
Notes:
a. Intent, being in an internal state, must be
judged by external acts.
b. Not applicable when
the
offender
employed brute force.
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c.
d.
e.
f.
g.
h.
i.
j.
It is the intention of the offender at the
moment when he is committing the crime
which is considered.
Appreciated in murder qualified by
circumstances based on manner of
commission, not on the state of mind of the
accused.
Not appreciated in murder qualified by
treachery.
Not applicable to felonies by negligence.
Not applicable to felonies where intention is
immaterial.
Applicable only to offenses resulting in
physical injuries or material harm.
In crimes against persons who do not die as
a result of the assault, the absence of the
intent to kill reduces the felony to mere
physical injuries, but it does not constitute a
mitigating circumstance under Art. 13, par. 3.
(People v. Galacgac, C.A., 54 O.G. 1207)
Recognizing
the
malum
prohibitum
characteristic of hazing, the law provides that
any person charged with the said crime shall
not be entitled to the mitigating circumstance
that there was no intention to commit so
grave a wrong. (People v. Tolentino, G.R. No.
208686, 2015)
Basis: Intent, an element of voluntariness in
intentional felony, is diminished.
4. PROVOCATION OR THREAT (par. 4)
PROVOCATION is any unjust or improper
conduct or act of the offended party, capable of
exciting, inciting or irritating anyone.
Requisites:
1. Provocation must be sufficient;
a. Sufficient means adequate to excite a
person to commit the wrong and must
accordingly be proportionate to its gravity;
b. Depends on:
i.
The
act
constituting
the
provocation;
ii. Social standing of the person
provoked; and
iii. Place and the time when the
provocation is made;
CRIMINAL LAW
2. It must originate from the offended party;
and
3. It must be immediate to the commission of
the crime by the person who is provoked
a. Threat must immediately precede the act.
Sufficient Provocation
AS A REQUISITE
AS A MITIGATING
OF INCOMPLETE
CIRCUMSTANCE
SELF DEFENSE
It pertains to its It pertains to its
absence on the part presence on the part
of
the
person of
the
offended
defending himself.
party.
THREAT should not be offensive and positively
strong. Otherwise, it would be an unlawful
aggression, which may give rise to self-defense
and thus no longer a mitigating circumstance.
Basis: Diminution of intelligence and intent.
5. VINDICATION OF GRAVE OFFENSE (PAR.
5)
Requisites:
1. A grave offense done to the one committing
the felony, his spouse, ascendants,
descendants, legitimate, natural or adopted
brothers or sisters or relatives by affinity
within the same degree; and
2. Felony is committed in immediate
vindication of such grave offense.
Notes:
a. “Immediate” allows for a lapse of time, as
long as the offender is still suffering from the
mental agony brought about by the offense
to him.
b. “Grave offense” includes any act that is
offensive to the offender or his relatives and
the same need not be unlawful.
c. The grave offense must be the proximate
cause or proximate to the act of the offender.
d. Vindication is incompatible with passion or
obfuscation.
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e. The provocation should be proportionate to
the damage caused by the act and adequate
to stir one to its commission.
f. Court must consider the following to
determine the gravity of the offense in
vindication:
g. Social standing of the person;
h. Place; and
i. Time when the insult was made.
Compare Provocation v. Vindication
PROVOCATION
VINDICATION
Made directly only to The grave offense
the
person may be committed
committing the felony; also
against
the
offender’s relatives
mentioned by the law;
That
cause
that The offended party
brought about the must have done a
provocation need not grave offense;
be a grave offense;
It is necessary that The vindication of the
the provocation or grave offense may be
threat immediately proximate,
which
preceded the act; admits of an interval
there is no interval of of time between the
time between the grave offense done
provocation and the by the offended party
commission of the and the commission
crime; and
of the crime by the
accused; and
It is mere spite Concerns the honor
against the one giving of a person, an
the provocation or offense which is more
threat.
worthy
of
consideration
than
mere spite against
the one giving the
provocation.
Basis: Diminution of the conditions of
voluntariness.
6. PASSION OR OBFUSCATION (par. 6)
Requisites:
1. The accused acted upon an impulse; and
2. The impulse must be so powerful that it
naturally produced passion or obfuscation
in him.
Rule for the application of this paragraph:
Passion or obfuscation may constitute a
mitigating circumstance only when the same
arose from lawful sentiments.
MITIGATING
Accused acted upon
impulse;
NOT MITIGATING
Act is committed in a
spirit of lawlessness;
and
Act is committed in a
spirit of revenge.
Further Requisites:
a. There be an act, both unlawful and sufficient
to produce such a condition of mind; and
b. Said act which produced the obfuscation was
not far removed from the commission of the
crime by a considerable length of time, during
which the perpetrator might recover his
normal equanimity.
Notes:
a. Exercise of a right or fulfillment of duty is not
proper source of passion or obfuscation.
b. The act must be sufficient to produce such a
condition of mind.
c. The defense must prove that the act which
produced the passion or obfuscation took
place at a time not far removed from the
commission of the crime.
d. The crime committed must be the result of a
sudden impulse of natural and uncontrollable
fury.
e. The cause producing passion or obfuscation
must come from the offended party.
f. It may lawfully arise from causes existing only
in the honest belief of the offender.
g. It is compatible with lack of intention to
commite so grave a wrong.
h. Passion or obfuscation does not arise if act is
actuated by spirit of lawlessness, jealousy,
and revenge.
i. Incompatible with:
• Vindication of grave offense
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•
•
Treachery
Evident Premeditation
Compare Passion/Obfuscation v.
Provocation
PASSION/
PROVOCATION
OBFUSCATION
Comes
from
the Comes from the injured
offender
and party;
produced
by
an
impulse which may
be
caused
by
provocation;
The offense which Must
immediately
engenders
precede
the
perturbation of mind commission of the
need
not
be crime;
immediate; it is only
required that the
influence thereof lasts
until the moment the
crime is committed;
In both, the effect is loss of reason and selfcontrol on the part of the offender; and
If obfuscation and provocation arose from one
and the same act, both shall be treated as only
one mitigating circumstance.
Compare Passion/Obfuscation v. Irresistible
Force
PASSION/
IRRESISTIBLE
OBFUSCATION
FORCE
A mitigating
An exempting
circumstance;
circumstance;
No physical force,
Requires physical
hence, cannot give
force a lot;
rise to an irresistible
force;
Passion or
Irresistible force must
obfuscation is in the
come from a third
offender himself; and
person; and
Must arise from
Unlawful.
lawful sentiments.
Basis: The offender who acts with passion or
obfuscation suffers a diminution of his intelligence
and intent.
Note: If a person kills another after the latter
accused him of having an incestuous relationship
with his mother, the former is only guilty of
homicide. He is entitled to the mitigating
circumstance of passion and obfuscation. The
victim’s previous insults would be sufficient
provocation for the accused to stab him. (People
v. Oloverio, G.R. No. 211159, J. LEONEN, March
18, 2015)
7. SURRENDER
GUILT (par.7)
AND
CONFESSION
OF
Two Mitigating Circumstances:
a. Voluntary surrender to a person in authority
or his agents; and
b. Voluntary confession of guilt before the
court prior to the presentation of evidence for
the prosecution.
Note: When both are present, they should have
the effect of mitigating as two independent
circumstances. (People v. Fontabla G. R. No. L43126, 1935)
Requisites for Voluntary Surrender:
1. The offender had not been actually
arrested;
2. The offender surrenders himself to a person
in authority or to the latter’s agent;
a. PERSON IN AUTHORITY is one directly
vested with jurisdiction, i.e., a public
officer who has the power to govern and
execute the laws whether as an individual
or as a member of some court or
governmental corporation, board or
commission;
b. AGENT OF A PERSON IN AUTHORITY
is a person, who, by direct provision of
the 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 and any person who comes to
the aid of persons in authority; and
3. The surrender was voluntary.
a. It must be spontaneous in such a
manner that it shows the interest of the
accused to surrender unconditionally to
the authorities, either because he
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acknowledges his guilt or because he
wishes to save them the trouble and
expenses necessarily incurred in his
search and capture.
c.
Notes:
a. It is not mitigating when defendant was in fact
arrested.
b. When the warrant of arrest had not been
served or not returned unserved because the
accused cannot be located, the surrender is
mitigating.
c. The law does not require that the surrender
be prior to the order of arrest.
d. Surrender of weapons cannot be equated
with voluntary surrender.
e. Voluntary surrender does not simply mean
non-flight. It is not required that accused did
not escape or went into hiding.
f. The surrender must be by reason of the
commission of the crime for which defendant
is prosecuted.
g. Intention to surrender, without actually
surrendering, is not mitigating.
h. There is spontaneity even if the surrender is
induced by fear of retaliation by the victim’s
relatives.
i. When the offender imposed a condition or
acted with external stimulus, his surrender is
not voluntary.
d.
Requisites for Voluntary Plea of Guilty:
1. The offender spontaneously confessed his
guilt;
2. The confession of guilt was made in open
court, that is, before the competent court that
is to try the case; and
3. The confession of guilt was made prior to
the presentation of evidence for the
prosecution.
Notes:
a. Plea must be made before trial begins and
at the first instance or original state, not
during a trial de novo or when on appeal.
b. Plea made after arraignment and after trial
has begun does not entitle accused to the
mitigating circumstance.
e.
f.
g.
h.
i.
If accused pleaded not guilty, even if during
arraignment, he is entitled to mitigating
circumstance as long as he withdraws his
plea of not guilty to the charge before the
fiscal could present his evidence.
The change of plea should be made at the
first opportunity.
A conditional plea of guilty is not a mitigating
circumstance.
Plea to a lesser charge is not a mitigating
circumstance because the plea of guilt was
not to the offense charged.
Plea to the offense charged in the amended
information, lesser than that charged in the
original
information
is
a
mitigating
circumstance.
Where the accused pleads guilty to a capital
offense, that court shall conduct a searching
inquiry into the voluntariness and full
comprehension of the consequences of his
plea and shall require the prosecution to
prove his guilt and the precise degree of
culpability.
Plea of guilty is not mitigating in culpable
felonies and in crimes punishable by special
laws.
Basis: Lesser perversity of the offender.
8. PHYSICAL DEFECT OF OFFENDER (par.
8)
Notes:
a. This is applicable when the offender is deaf
and dumb, blind, or otherwise suffering from
some physical defect, restricting his means
of action, defense or communication with
others.
b. Physical defect must restrict means of action,
defense, or communication with fellow
beings.
c. The physical defect must relate to the offense
committed.
d. This paragraph does not distinguish between
educated and uneducated deaf-mute or blind
persons.
Basis: Incomplete freedom of action, an element
of voluntariness, due to physical defect, which
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restricts one’s means of action, defense, or
communication with one’s fellow beings.
9. ILLNESS OF THE OFFENDER (par.9)
REQUISITES:
1. The illness of the offender must diminish
the exercise of his will-power; and
2. Such illness should not deprive the
offender of consciousness of his acts.
EXAMPLES:
a. Mild behavior disorder (illness of nerves or
moral faculty);
b. Acute neurosis making a person illtempered and easily angered;
c. Feeblemindedness (may be considered
under par. 8);
d. One with obsession that witches are to be
eliminated akin to one with morbid infirmity
but still retaining unconsciousness; and
e. Schizo-affective disorder or psychosis.
Basis: Diminution of intelligence and intent.
10. SIMILAR OR ANALOGOUS
CIRCUMSTANCES (par. 10)
EXAMPLES:
a. Outraged feeling of owner of animal taken
for ransom analogous to vindication of a
grave offense;
b. Impulse of jealous feeling, similar to passion
and obfuscation;
c. Manifestations of Battered Wife Syndrome,
analogous to an illness that diminishes the
exercise of will power;
d. Esprit de corps, similar to passion and
obfuscation;
e. Voluntary restitution of stolen property, similar
to voluntary surrender;
f. Extreme poverty and necessity, similar to
incomplete justification based on state of
necessity; and
g. Testifying for the prosecution, analogous to
plea of guilty.
Note: Mitigating circumstances which arise (1)
from the moral attributes of the offender, or (2)
CRIMINAL LAW
from his private relations with the offended party,
or (3) from any other personal cause, shall only
serve to mitigate the liability of the principals,
accomplices, and accessories as to whom such
circumstances are attendant. (Art. 62, par. 3)
CIRCUMSTANCES WHICH ARE NEITHER
EXEMPTING NOR MITIGATING:
1. Mistake in the blow or aberration ictus;
2. Mistake in the identity;
3. Entrapment;
4. Accused is over 18 years of age; and
5. Performance of righteous action.
d. Aggravating Circumstances
General Concepts
AGGRAVATING CIRCUMSTANCES are those
which, if attendant in the commission of the crime,
serve to increase the penalty imposed in its
maximum period provided by law for the offense.
Basis: The greater perversity of the offender
manifested in the commission of the felony as
shown by:
a. The motivating power itself;
b. The place of the commission;
c. The means and ways employed;
d. The time; or
e. The personal circumstances of the offender, or
the offended party.
Kinds of Aggravating Circumstances:
1. Generic: Generally apply to all crimes
a. Advantage taken of public position;
b. Contempt or insult of public authority;
c. Crime committed in the dwelling of the
offended party;
d. Abuse of confidence or obvious
ungratefulness;
e. Where crime is committed in palace of
Chief Executive, in his presence, or
where public authorities are engaged, or
in a place for religious worship;
f. Nighttime, uninhabited place, or band;
g. Recidivism;
h. Reiteracion or Habituality;
i. Craft, fraud or disguise;
j. Unlawful entry;
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Breaking of wall, roof, floor, door or
window; and
Use of persons under 15 years of age;
Note: Error in personae: is not a special
aggravating nor a mitigating circumstance
(Reyes, Book I);
2. Specific: Apply only to particular crimes
a. Disregard of rank, age, or sex due the
offended party in crimes against persons
and honor;
b. Advantage of superior strength or means
be employed to weaken the defense;
c. Treachery in crimes against persons;
d. Ignominy in crimes against chastity;
e. Cruelty in crimes against persons; and
f.
Use of unlicensed firearm in the murder
or homicide committed: this is absorbed
in rebellion, insurrection, sedition, and
attempted coup d’état; (R.A. No. 8294)
Differentiating Different Kinds of Aggravating
Circumstances
KINDS OF AGGRAVATING
CIRCUMSTANCES
Those that can generally
apply to crimes.
k.
l.
3. Qualifying: Change the nature of the crime
a. Alevosia
(treachery)
or
evident
premeditation qualifies the killing of a
person to murder; and
b. Art. 248 enumerates the qualifying
aggravating circumstances which qualify
the killing of a person to murder;
4. Inherent: Must of necessity accompany the
commission of the crime
a. Evident premeditation in robbery, theft,
estafa, adultery and concubinage;
b. Abuse of public office in bribery;
c. Breaking of a wall or unlawful entry into a
house in robbery with the use of force
upon things;
d. Fraud in estafa; and
e. Deceit in simple seduction.
5. Special: Those which arise under special
conditions to increase the penalty of the
offense and cannot be offset by mitigating
circumstances. Examples:
a. Quasi-recidivism;
b. Complex crimes;
c. Taking advantage of public position and
membership in an organized/syndicated
crime group (Ar. 61, par. 1(a)); and
d. Use of unlicensed firearm in homicide or
murder.
GENERIC
SPECIFIC
QUALIFYING
Includes paragraphs 1,2,3
(dwelling),4,5,6,9,10,14,18
, 19, and 20, except by
“means of motor vehicles.”
Those that apply only to
particular
crimes
(i.e.
ignominy in crimes against
chastity or cruelty and
treachery in crimes against
persons);
Includes paragraphs 3
(except dwelling), 15,16,17
and 21.
Those that change the
nature of the crime (i.e
alevosia
or
evident
premeditation qualifies the
killing of a person to
murder);
Article 248 enumerates the
qualifying
aggravating
circumstances
which
qualify the killing of a
person to murder.
Those
that
must
of
necessity accompany the
commission of the crime
(Article 62, paragraph 2);
INHERENT
Evident premeditation is
inherent in robbery, theft,
estafa,
adultery
and
concubinage.
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Bases of Aggravating Circumstances
Greater perversity of the
offender as shown by
Advantage taken the
personal
of public position circumstances of the
(Par. 1)
offender and the means
to
secure
the
commission of the crime
Contempt or
Greater perversity of the
insult to public
offender as shown by
authorities (Par.
his lack of respect for
2)
the public authorities
Greater perversity of the
Disregard of
offender as shown by
rank, age, sex, or the
personal
dwelling of the
circumstances of the
offended party
offended party and the
(Par. 3)
place of the commission
of the crime.
Abuse of
Greater perversity of the
confidence and
offender as shown by
obvious
the means and ways
ungratefulness
employed.
(Par. 4)
Greater perversity of the
Place of
offender as shown by
commission of
the
place
of
the
the offense (Par. commission
of
the
5)
crime, which must be
respected.
Nighttime,
Time and place of the
uninhabited
commission of the crime
place or band
and means and ways
(Par. 6)
employed.
On occasion of
Time of the commission
calamity or
of the crime.
misfortune (Par.
7)
Aid of armed
Means and ways of
men, etc. (Par. 8) committing the crime.
Greater perversity of the
offender as shown by
Recidivist (Par. 9)
his inclination to commit
crimes.
Greater perversity of the
Reiteracion or
offender as shown by
habituality (Par.
his inclination to commit
10)
crimes.
Price, reward, or
promise (Par. 11)
By means of
inundation, fire,
etc. (Par. 12)
Evident
premeditation
(Par. 13)
Craft, fraud, or
disguise (Par. 14)
Superior strength
or means to
weaken the
defense (Par. 15)
Treachery (Par.
16)
Ignominy (Par.
17)
Unlawful entry
(Par. 18)
Breaking wall
(Par. 19)
Aid of minor or
by means of
motor vehicles
(Par. 20)
Cruelty (Par. 21)
Greater perversity of the
offender as sown by the
motivating power itself.
Means
and
ways
employed.
Ways of committing the
crime
implies
a
deliberate planning of
the act before executing
it.
Means employed in the
commission
of
the
crime.
Means employed in the
commission
of
the
crime.
Means employed in the
commission
of
the
crime.
Means employed.
Means
and
ways
employed to commit the
crime.
Means
and
ways
employed to commit the
crime.
Means
and
ways
employed to commit the
crime; and
Ways
employed
in
committing the crime.
Rules of Aggravating Circumstances
1. Aggravating circumstances shall NOT be
appreciated if:
a. They constitute a crime specially
punishable by law, or
b. It is included by the law in defining a
crime and prescribing the penalty
therefor. (Art. 62, par. 1)
Example: “That the crime be committed by
means of …fire, explosion” (Art. 14, par. 12) is in
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itself a crime of arson (Art. 321) or a crime
involving destruction (Art. 324).
2. It shall also NOT be appreciated if any
aggravating circumstance is inherent in the
crime to such a degree that it must of
necessity accompany the commission
thereof. (Art. 62, par. 2)
3. Aggravating circumstances which arise from
the following shall only serve to aggravate the
liability of the principals, accomplices and
accessories, to whom such circumstances
are attendant. (Art. 62, par. 3):
a. From the moral attributes of the offender;
b. From his private relations with the
offended party; or
c. From any personal cause
4. Aggravating circumstances which consists in
the following shall only serve to aggravate the
liability of those who had knowledge of them
at the time of the execution of the act or their
cooperation therein. (Art. 62, par. 4):
a. In the material execution of the act; or
b. In the means employed to accomplish it.
5. Aggravating circumstances, regardless of its
kind, should be specifically alleged in the
information AND proved as fully as the crime
itself in order to increase the penalty (Sec. 9,
Rule 110, 2000 Rules of Criminal Procedure);
and
6. When there is more than one qualifying
aggravating circumstance present, one of
them will be appreciated as qualifying
aggravating while the others will be
considered as generic aggravating.
1. ADVANTAGE BE TAKEN BY THE
OFFENDER OF HIS PUBLIC POSITION
(par. 1)
Basis: Greater perversity of the offender as
shown by the personal circumstances of the
offender and also by the means used to secure
the commission of the crime.
CRIMINAL LAW
Notes:
a. Applicable only when the offender is a public
officer who takes advantage of his public
position.
b. The public officer must use the influence,
prestige or ascendancy which his office
gives him as the means by which he realizes
his purpose.
c. It is not aggravating if accused could have
perpetrated the crime without occupying
public position.
d. It is inherent in the case of accessories under
Art. 19, par. 3, and the crimes committed by
public officers.
e. R.A. 7659 provides that crimes committed by
a public officer will be given the penalty
prescribed at its maximum, regardless of the
nature
and
number
of
mitigating
circumstances.
f. This circumstance, taking advantage of
public position, cannot be taken into
consideration in offenses where taking
advantage of official-position is made by law
an integral element of the crime, such as in
malversation under Art. 217, or in falsification
of document committed by public officers
under Art. 171. (People vs. Tevez, 44 Phil.
275, 277)
g. Taking advantage of public position is
inherent in the case of accessories under Art.
19, par. 3, and in crimes committed by public
officers. (Arts. 204 to 245)
2. THE
CRIME
BE
COMMITTED
IN
CONTEMPT OF OR WITH INSULT TO THE
PUBLIC AUTHORITIES (par. 2)
Basis: Greater perversity of the offender, as
shown by his lack of respect for the public
authorities.
Requisites: (ENKC)
1. The public authority is Engaged in the
exercise of his functions;
2. Such public authority is Not the person
against whom the crime is committed;
3. The offender Knows him to be a public
authority; and
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4. His presence has not prevented the offender
from Committing the criminal act.
A PUBLIC AUTHORITY, sometimes called a
person in authority, is a public officer who is
directly vested with jurisdiction and has the power
to govern and execute the laws.
An AGENT OF A PERSON IN AUTHORITY is
any person 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.
Notes:
a. Teachers or professors of a public or
recognized private school and lawyers are
not
“public
authority”
within
the
contemplation of this paragraph.
b. Art. 14, par. 2 does not apply when the crime
is committed in the presence of an agent only.
c. If the crime is committed against a public
authority while he is in the performance of his
official duty, the offender commits direct
assault
without
this
aggravating
circumstance.
d. Knowledge that a public authority is present
is essential. Lack of knowledge on the part of
the offender that a public authority is present
indicates lack of intention to insult the public
authority.
3. THE ACT BE COMMITTED (par. 3)
a. With insult or in disregard of the respect
due the offended party on the account
of his rank, age, or sex, or
b. In the dwelling of the offended party, if the
latter has not given provocation.
Basis: Greater perversity of the offender, as
shown by the personal circumstances of the
offended party and the place of the commission
of the crime.
RANK is the designation or title of distinction
used to fix the relative position of the offended
party in reference to others.
CRIMINAL LAW
a. There must be a difference in the social
condition of the offender and the offended
party.
b. Proof of fact of disregard and deliberate intent
to insult required.
AGE may refer to old age or the tender age of the
victim.
a. The circumstance of lack of respect due to
age applies in cases where the victim is of
tender age as well as of old age.
b. Deliberate intent to offend or insult required.
c. Disregard of old age not aggravating in
robbery with homicide.
SEX refers to the female sex, not to the male sex.
a. Disregard of sex is not aggravating in the
absence of evidence that the accused
deliberately intended to offend or insult the
sex of the victim or showed manifest
disrespect to her womanhood.
b. Absorbed in treachery.
Notes:
a. The 4 circumstances can be considered
single or together. If all the four
circumstances are present, they have the
weight of one aggravating circumstance only.
b. Disregard of rank, age, or sex may be taken
into account only in crimes against persons
or honor.
c. There must be evidence that in the
commission of the crime, the accused
deliberately intended to offend or insult the
sex or age of the offended party.
When Not Applicable:
1. Offender acted with passion and obfuscation;
2. There exists a relationship between the
offended party and the offender; and
3. The condition of being a woman is
indispensable in the commission of the crime.
DWELLING must be a building or structure
exclusively used for rest and comfort; a
combination of house and store is not included.
a. Includes dependencies, the foot of the
staircase and enclosure under the house.
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b. It requires that the crime be wholly or partly
be committed therein or in any integral part
thereof.
c. Dwelling does not mean the permanent
residence or domicile of the offended party or
that he must be the owner thereof. He may
be actually living therein even for a temporary
duration or as a guest.
d. It is not necessary that the accused should
have actually entered the dwelling of the
victim; it is enough that the victim was
attacked inside his house, although the
assailant may have devised means to
perpetrate the assault from without.
e. Even if the killing took place outside the
dwelling, it is aggravating provided that the
commission of the crime was begun in the
dwelling.
f. Dwelling is not included in the qualifying
circumstance of treachery.
Bases for aggravating circumstance of
dwelling:
a. The abuse of confidence which the offended
party reposed in the offender by opening the
door to him; or
b. The violation of the sanctity of the home by
trespassing therein with violence or against
the will of the owner.
Notes:
a. Offended party must not give provocation.
b. Meaning of provocation in the aggravating
circumstance:
1. Given by the owner of the dwelling;
2. Sufficient; and
3. Immediate to the commission of the
crime.
Note: If all these conditions are present, the
fact that the crime is committed in the
dwelling of the offended party is NOT an
aggravating circumstance.
Rationale: When it is the offended party who
has provoked the incident, he loses his right
to the respect and consideration due him in
his own house.
c.
There must be a close relation between
provocation and commission of crime in the
dwelling.
Dwelling is not aggravating in the following
cases:
1. General Rule: When both the offender and
the offended party are occupants of the
same house.
a. Exception: In case of adultery in the
conjugal dwelling, the same is
aggravating. However, if the
paramour also dwells in the conjugal
dwelling, the applicable aggravating
circumstance is abuse of
confidence.
2. General Rule: When robbery is committed
by the use of force upon things, dwelling is
not aggravating because it is inherent.
a. Exception: Dwelling is aggravating in
robbery with violence against or
intimidation of persons because this
class of robbery can be committed
without the necessity of trespassing
of the offended party’s house.
3. In the crime of trespass to dwelling, it is
inherent or included by law in defining the
crime.
4. When the owner of the dwelling gave
sufficient and immediate provocation.
5. The victim is not a dweller of the house.
4. THE ACT BE COMMITTED WITH ABUSE
OF
CONFIDENCE
OR
OBVIOUS
UNGRATEFULNESS (par. 4)
Basis: Greater perversity of the offender, as
shown by the means and ways employed.
There are 2 aggravating circumstances present
under par. 4, which must be independently
appreciated if present in the same case.
Abuse of confidence requires a special
confidential relationship between the offender
and the victim, while this is not required for there
to be obvious ungratefulness.
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Requisites for Abuse of Confidence: (TAF)
1. That the offended party had Trusted the
offender;
2. That the offender Abused such trust by
committing a crime against the offended
party; and
3. That the abuse of confidence Facilitated the
commission of the crime.
Notes:
a. The confidence between the offender and the
offended party must be immediate and
personal.
• E.g.: A jealous lover, who had already
determined to kill his sweetheart, invited
her to a ride in the country. The girl,
unsuspecting of his plans, went with him.
While they were in the car, the jealous
lover stabbed her. It was held that this
aggravating circumstance was present.
(People vs. Marasigan, 70 Phil. 583, 594)
• In contrast: In the case of U.S. vs. Torrida,
23 Phil. 189,192, it was held that the
mere fact that the voters had reposed
confidence in the defendant by electing
him to a public office does not mean that
he abused their confidence when he
committed estafa against them.
• Abuse of confidence is inherent in
malversation, qualified theft, estafa by
conversion or misappropriation, and
qualified seduction.
b. It is not a mere betrayal of trust, since the
offended party must be the one who actually
reposed his confidence in the offender.
Note: If the accused is a domestic helper who
took valuable items from her employer, she is
liable for qualified theft. While the grave abuse of
trust and confidence per se does not produce the
felony as an effect, it is a circumstance that
aggravates and qualifies the commission of the
crime of theft; hence, the imposition of a higher
penalty is necessary. After accepting and allowing
the helper to be a member of the household, thus
entrusting upon such person the protection and
safekeeping of the employer's loved ones and
properties, a subsequent betrayal of that trust is
so repulsive as to warrant the necessity of
CRIMINAL LAW
imposing a higher penalty to deter the
commission of such wrongful acts. (People of the
Philippines v. Belen Mejares y Valencia, G.R.
225735, J. LEONEN, January 10, 2018.)
Requisites of Obvious Ungratefulness: (TAU)
1. That the offended party had Trusted the
offender;
2. That the offender Abused such trust by
committing a crime against the offended
party; and
3. That the act be committed with obvious
Ungratefulness.
Note: The ungratefulness contemplated by par. 4
must be such clear and manifest ingratitude on
the part of the accused.
5. THE CRIME BE COMMITTED (par. 5)
a. In the palace of the Chief Executive, or
b. In his presence, or
c. Where public authorities are engaged
in the discharge of their duties, or
d. In a place dedicated to religious
worship.
Basis: Greater perversity of the offender, as
shown by the place of the commission of the
crime, which must be respected.
Note: Actual performance of duties is not
necessary when crime is committed in the palace
or in the presence of the Chief Executive.
Requisites regarding Public Authorities:
1. Crime occurred in the public office; and
2. Public authorities are actually performing
their public duties.
Requisites regarding Place Dedicated to
Religious Worship: (D2ED)
1. The crime occurred in a place Dedicated to
the worship of God regardless of religion;
2. The offender must have Decided to commit
the crime when he entered the place of
worship;
3. The place must be Exclusively dedicated to
public religious worship; private chapels are
not included; and
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4. There must be intention to Desecrate the
place dedicated to public religious worship.
Notes:
a. Except for the third which requires that official
functions are being performed at the time of
the commission of the crime, the other places
are aggravating per se even if no official
duties or acts of religious worship are being
conducted there.
b. Cemeteries are not considered as place
dedicated to worship.
c. Offender must have intention to commit a
crime when he entered the place.
Compare the aggravating circumstances
under Par. 5 and Par. 2
PAR 5: WHERE
PAR 2:
PUBLIC
CONTEMPT OR
AUTHORITIES
INSULT TO
ARE ENGAGED
PUBLIC
IN THE
AUTHORITIES
DISCHARGE OF
THEIR DUTIES
Public authorities are in the performance of their
duties.
PLACE WHERE PUBLIC DUTY IS
PERFORMED
In their office
Outside of their office
OFFENDED PARTY
May or may not be the Public authority should
public authority.
not be the offended
party; the crime is
merely committed in his
presence.
6. THE CRIME BE COMMITTED (par. 6):
(NUB)
a. In the Nighttime, or
b. In an Uninhabited place, or
c. By a Band, whenever such circumstance
may facilitate the commission of the
offense.
Basis: Time and place of the commission of the
crime and means and ways employed.
CRIMINAL LAW
When these 3 circumstances are present in the
same case and their elements can subsist
independently, they shall be considered
separately. It is not applicable when the mitigating
circumstance of passion or obfuscation or
sufficient provocation is present in the
commission of the crime.
When Nighttime, Uninhabited place or Band is
aggravating:
1. When it facilitated the commission of the
crime; or
2. When especially sought for by the offender to
insure the commission of the crime or for the
purpose of impunity; or
3. When the offender took advantage thereof
for the purpose of impunity.
NIGHTTIME (obscuridad) is that period of
darkness beginning at the end of dusk and ending
at dawn.
a. Commission of the crime must begin and be
accomplished in the nighttime.
b. When the place of the crime is illuminated by
light, nighttime is not aggravating.
c. Nighttime is not especially sought for when
the notion to commit the crime was conceived
of shortly before commission or when crime
was committed at night upon a casual
encounter.
d. A bare statement that crime was committed
at night is insufficient. The information must
allege that nighttime was sought for or taken
advantage of, or that it facilitated the crime.
e. Circumstance of nocturnity, although not
specially sought for, shall aggravate criminal
liability if it facilitated the commission of the
offense or the offender took advantage of the
same to commit the crime.
When Both Nighttime and Treachery are
Present:
General Rule: Nighttime is absorbed in
treachery.
Exception: Where both the treacherous mode of
attack and nocturnity were deliberately decided
upon in the same case, they can be considered
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CRIMINAL LAW
separately if such circumstances have different
factual bases.
OR OTHER CALAMITY OR MISFORTUNE
(par. 7).
UNINHABITED PLACE (despoblado) is one
where there are no houses at all, or a place at a
considerable distance from town, where the
houses are scattered at a great distance from
each other.
a. Solitude must be sought to better attain the
criminal purpose – an easy and uninterrupted
accomplishment or insure concealment.
b. What should be considered is whether in the
place of the commission of the offense, there
was a reasonable possibility of the victim
receiving some help.
Basis: Time of the commission of the crime.
Reason for the aggravation: Debased form of
criminality met in one who, in the midst of a great
calamity, instead of lending aid to the afflicted,
adds to their suffering by taking advantage of their
misfortune to despoil them.
BAND (en cuadrilla) refers to a situation where
there are more than 3 armed malefactors that
shall have acted together in the commission of an
offense.
a. There must be 4 or more armed men.
b. The armed persons contemplated must all be
principals by direct participation who acted
together in the execution of the acts
constituting the crime; in this case,
conspiracy is presumed.
c. If one of the four-armed malefactors is a
principal by inducement, they do not form a
band because he had no direct participation.
d. “By a band” is aggravating in crimes against
property or against persons or in the crime
of illegal detention or treason but does not
apply to crimes against chastity. (Reyes,
Book II citing People v Corpus, C.A. 43 O.G.
2249)
e. This is inherent in brigandage.
f. This is absorbed in the circumstance of
abuse of superior strength and use of
firearms, EXCEPT when the firearm has no
license or there is a lack of license to carry
the firearm.
g. When the armed men met up casually with
others, and a crime was thereafter
committed, it cannot be considered as an
aggravating circumstance.
7. CRIME BE COMMITTED ON THE
OCCASION OF A CONFLAGRATION,
SHIPWRECK, EARTHQUAKE, EPIDEMIC
Requisites:
1. The crime was committed when there was a
calamity
or
misfortune
similar
to
conflagration, shipwreck, earthquake or
epidemic; and
2. The offender took advantage of the state of
confusion or chaotic condition from such
misfortune.
Notes:
a. This will not apply if the offender was
provoked by the offended party during the
calamity/misfortune.
b. The offender must take advantage of the
calamity or misfortune.
8. THE CRIME BE COMMITTED WITH THE
AID OF (par. 8):
a. Armed men, or
b. Persons who insure or afford impunity.
Basis: Means and ways of committing the
crime.
Requisites:
1. That armed men or persons took part in the
commission of the crime, directly or
indirectly; and
2. That the accused availed himself of their aid
or relied upon them when the crime was
committed.
Rule for the application of the circumstance:
The casual presence of armed men near the
place where the crime was committed does not
constitute an aggravating circumstance when it
appears that the accused did not avail of their aid
or rely upon them to commit the crime.
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Notes:
a. This aggravating circumstance requires that
the armed men are accomplices who take
part in a minor capacity directly or indirectly,
and not when they were merely present at the
crime scene.
b. If there are four armed men, aid of armed
men is absorbed in employment of a band. If
there are three armed men or less, aid of
armed men may be the aggravating
circumstance.
c. It shall not be considered when both the
attacking party and the party attacked were
equally armed.
d. It is not present when the accused as well as
those who cooperated with him in the
commission of the crime acted under the
same plan and for the same purpose.
e. Mere moral or psychological aid or reliance is
sufficient to constitute this aggravating
circumstance.
Compare By a band v. With the aid of armed
men
BY A BAND (PAR. 6)
WITH THE AID OF
ARMED ME (PAR. 8)
As to NUMBER
Requires more than
At least two
three armed
malefactors
As to ACTION
More
than
three Present even if one of
armed
malefactors the offenders merely
shall have acted relied on their aid;
together
in
the actual aid is not
commission of an necessary
offense
As to LIABILITY
Band members are all Armed men are mere
principals
accomplices
9. THE ACCUSED IS A RECIDIVIST (par. 9)
Basis: Greater perversity of the offender, as
shown by his inclination to crimes.
A RECIDIVIST is one who at the time of his trial
for one crime, shall have been previously
CRIMINAL LAW
convicted by final judgment of another crime
embraced in the same title of the RPC.
A recidivist is entitled to the benefits of the
Indeterminate Sentence Law but is disqualified
from availing credit of his preventive
imprisonment.
Requisites: (TPSC)
1. That the offender is on Trial for an offense;
2. That he was Previously convicted by final
judgment of another crime;
3. That both the first and the second offenses
are embraced in the Same title of the Code;
and
4. That the offender is Convicted of the new
offense.
“At the time of his trial for one crime”
a. It is employed in its general sense, including
the rendering of the judgment. It is meant to
include everything that is done in the course
of the trial, from arraignment until after
sentence is announced by the judge in open
court.
b. It is sufficient that the succeeding offense be
committed after the commission of the
preceding offense provided that at the time of
his trial for the second offense, the accused
had already been convicted of the first
offense.
c. Amnesty extinguishes the penalty and its
effects.
d. Pardon does not obliterate the fact that the
accused is a recidivist. Thus, even if the
accused was granted a pardon for the first
offense but he commits another felony
embraced in the same title of the Code, the
first conviction is still counted to make him a
recidivist
e. Being an ordinary aggravating circumstance,
recidivism affects only the periods of a
penalty, EXCEPT in prostitution (Art. 202)
and gambling (PD 1602) wherein recidivism
increases the penalties by degrees. No other
generic aggravating circumstance produces
this effect.
f. If both offenses were committed on the same
date, they shall be considered as only one,
hence, they cannot be separately counted in
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order to constitute recidivism. Judgments of
conviction handed down on the same day
shall be considered as only one conviction.
• Rationale: Because the RPC requires
that to be considered as separate
convictions, at the time of his trial for
one crime the accused shall have been
previously convicted by final judgment of
the other.
g. To prove recidivism, it is necessary to allege
the same in the information and to attach
thereto a certified copy of the sentence
rendered against the accused.
h. Recidivism must be taken into account no
matter how many years have intervened
between the first and second felonies.
10. THE OFFENDER HAS BEEN PREVIOUSLY
PUNISHED: (par. 10)
a. For an offense to which the law attaches
an equal or greater penalty or
b. For two or more crimes to which it
attaches a lighter penalty.
c.
should be aggravated by recidivism, which
can easily be proven.
The court must exercise its discretion in
applying this aggravating circumstance
against the accused.
FORMS OF REPETITION
Generic aggravating
circumstance
RECIDIVISM
(Par. 9, Art. 14)
Generic aggravating
REITERACION OR
circumstance
HABITUALITY
(Par. 10, Art. 14)
Extraordinary
aggravating
circumstance (Par. 5,
Art. 62)
MULTI-RECIDIVISM
OR HABITUAL
DELINQUENCY
Basis: Greater perversity of the offender as
shown by his inclination to crimes.
Requisites of Reiteracion or Habituality:
1. That the accused is on trial for an offense;
2. That he previously served sentence for
another offense to which the law attaches an
a. Equal; or
b. Greater penalty; or
c. For two or more crimes to which it
attaches a lighter penalty than that for
the new offense; and
3. That he is convicted of the new offense.
Notes:
a. Quasi-recidivism cannot at the same time
constitute reiteracion since the former exists
before accused begins to serve sentence or
while serving the same while the latter exists
after accused has duly served sentence,
hence this aggravating circumstance cannot
apply to a quasi-recidivist.
b. If the same set of facts constitutes recidivism
and reiteracion, the liability of the accused
QUASI-RECIDIVISM
BUT Note: Strictly
speaking, habitual
delinquency is not an
“aggravating
circumstance” as it
neither qualifies nor
increases the penalty
for the given felony, but
provides for a separate
or additional penalty.
Special aggravating
circumstance (Art. 160)
11. THE
CRIME
BE
COMMITTED
IN
CONSIDERATION OF A PRICE, REWARD
OR PROMISE (par. 11)
Basis: Greater perversity of the offender, as
shown by the motivating power itself.
Requisites:
1. There are at least two principals:
a. The principal by inducement (one who
offers); and
b. The principal by direct participation
(accepts);
2. The price, reward, or promise should be
previous to and in consideration of the
commission of the criminal act.
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Notes:
a. The circumstance is applicable to both
principals. It affects the person who received
the price / reward as well as the person who
gave it as a qualifying circumstance, if
applicable (e.g. murder).
b. If without previous promise, it was given
voluntarily after the crime had been
committed as an expression of his
appreciation for the sympathy and aid shown
by the other accused, it should not be taken
into consideration for the purpose of
increasing the penalty.
c. The price, reward or promise need not
consist of material things or need not be
actually delivered, it being sufficient that the
offer made be accepted before the
commission of the offense.
d. The inducement must be the primary
consideration for the commission of the
crime.
12. THE CRIME BE COMMITTED BY MEANS
OF: (par. 12)
a. Inundation;
b. Fire;
c. Poison;
d. Explosion;
e. Stranding of a vessel or intentional
damage thereto;
f. Derailment of a locomotive; and
g. By the use of any other artifice
involving great waste and ruin.
Basis: Means and ways employed.
Notes:
a. The circumstances under this paragraph will
only be considered as aggravating when they
are used by the offender as a means to
accomplish a criminal purpose.
b. When another aggravating circumstance
already qualifies the crime, any of these
aggravating
circumstances
shall
be
considered
as
generic
aggravating
circumstance only.
c. Inundation refers to use of water or causing
the water to flood in the commission of the
offense.
CRIMINAL LAW
d. When there is no actual design to kill a
person in burning a house, it is plain arson
even if a person is killed. Had there been an
intent to kill, the crime committed is murder,
qualified by the circumstance that the crime
was committed by means of fire.
e. Fire, explosion, and derailment of locomotive
may be part of the definition of a particular
crime such as arson, crime involving
destruction, and damages and obstruction to
means of communication; in these cases,
they do not serve to increase the penalty.
Compare By means of inundation, fire, etc v.
On occasion of conflagration, shipwreck
BY MEANS OF
ON THE OCCASION
INUNDATION, FIRE
OF A
ETC (PAR. 12)
CONFLAGRATION,
SHIPWRECK, ETC.
(PAR. 7)
The
crime
is The
crime
is
committed by means committed on the
of any such acts occasion
of
a
involving great waste calamity
or
or ruin.
misfortune.
Rules as to the Use of Fire:
ACT OF THE
CRIME
ACCUSED
COMMITTED
Intent was only to Simple arson with a
burn
house
but specific penalty (Art.
somebody dies
326)
If fire was used as a Murder
means to kill
Separate crimes of
If fire was used to
arson
and
conceal the killing
murder/homicide
13. THE ACT BE COMMITTED WITH EVIDENT
PREMEDITATION (par. 13)
Basis: It has reference to the ways of committing
the crime, because evident premeditation implies
a deliberate planning of the act before executing
it.
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Requisites:
The prosecution must prove –
1. The time when the offender determined to
commit the crime;
• Mere threat not of a direct and specific
character shows accused was
undetermined;
2. An act manifestly indicating that the
culprit has clung to his determination; and
• The premeditation must be based upon
external acts and not presumed from
mere lapse of time;
3. A sufficient lapse of time between the
determination and execution, to allow him
to reflect upon the consequences of his
act and to allow his conscience to
overcome the resolution of his will.
• The offender must have an opportunity to
coolly and serenely think and
deliberate on the meaning and the
consequences of what he planned to
do, an interval long enough for his
conscience and better judgment to
overcome his evil desire and
scheme.
Essence of Premeditation:
The execution of the criminal act must be
preceded by cool thought and reflection upon the
resolution to carry out the criminal intent during
the space of time sufficient to arrive at a calm
judgment. (People v. Durante, 53 Phil. 363,
1929).
Notes:
a. There must be evidence showing that the
accused meditated and reflected on his
intention between the time when the crime
was conceived by him and the time it was
actually perpetrated.
b. Premeditation is absorbed by reward or
promise only insofar as the inducer is
concerned, but not the person induced since
one can be a principal by direct participation
without the benefit of due reflection.
c. When the victim is different from that
intended, premeditation is not aggravating.
However, if the offender premeditated on the
killing of any person, it is proper to consider
CRIMINAL LAW
against the offender the aggravating
circumstance of premeditation, because
whoever is killed by him is contemplated in
his premeditation.
d. Evident premeditation, while inherent in
robbery, may be aggravating in robbery with
homicide if the premeditation included the
killing of the victim.
e. If the accused kills another person, there is
no evident premeditation attendant if the
prosecution fails to establish the time when
the accused resolved to kill victim. For
evident premeditation to be appreciated, it is
indispensable to show how and when the
plan to kill was hatched or how much time has
elapsed before it was carried out. The
accused’s act of lurking outside and waiting
for the victim to emerge does not constitute
as an overt act indicating his resolution to kill.
(People v Ordona y Rendon, G.R. No.
227863, J. LEONEN, September 20, 2017)
Effect
of
Conspiracy
on
Evident
Premeditation: Conspiracy Presupposes
Premeditation
a. General Rule: Where conspiracy is directly
established, with proof of the attendant
deliberation and selection of the method, time
and means of executing the crime, the
existence of evident premeditation can be
taken for granted.
b. Exception: When conspiracy is only
implied, evident premeditation may not be
appreciated, in the absence of proof as to
how and when the plan to kill the victim was
hatched or what time had elapsed before it
was carried out.
Evident Premeditation Not Aggravating
When:
a. General Rule: Evident premeditation may
not be taken into account when the person
whom the defendant proposed to kill was
different from the one who became his victim
(error in personae).
b. Exception: There was a general plan to kill
anyone to commit the crime premeditated.
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14. CRAFT, FRAUD, OR
EMPLOYED (par. 14)
DISGUISE
BE
Basis: Means employed in the commission of the
crime.
Application of Par. 14
Craft (astucia): Involves intellectual trickery or
cunning on the part of the accused; A chicanery
resorted to by the accused to aid in the execution
of his criminal design. It is employed as a scheme
in the execution of the crime.
NOT AGGRAVATING:
1. Where the unlawful scheme could have
been carried out just the same even without
the pretense. (People v. Aspili, G.R. Nos.
89418-19, 1990)
2. Craft partakes of an element of the offense.
Fraud (fraude): Insidious words or machinations
used to induce the victim to act in a manner which
would enable the offender to carry out his design.
Compare Fraud v. Craft
FRAUD
There is a direct
inducement by
insidious words or
machinations.
CRAFT
The act of the
accused done in
order not to arouse
the suspicion of the
victim.
Disguise (disfraz): Resorting to any device to
conceal identity.
a. The fact that the mask subsequently fell down
thus paving the way for this one’s
identification does not render the aggravating
circumstance of disguise inapplicable.
(People v. Cabato, G.R. No. L-37400, 1988)
b. The purpose of the offender in using any
device must be to conceal his identity.
c. The test of disguise is whether the device or
contrivance resorted to by the offender was
intended to or did make identification more
difficult, such as the use of a mask or false
hair or beard.
Notes:
a. Craft and fraud may be absorbed in treachery
if they have been deliberately adopted as the
means, methods or forms for the treacherous
strategy, or they may co-exist independently
where they are adopted for different purposes
in the commission of the crime.
b. Where the accused pretended to hire the
driver in order to get his vehicle, it was held
that there was craft directed to the theft of the
vehicle,
separate
from
the
means
subsequently used to treacherously kill the
defenseless driver. (People v. San Pedro,
G.R. No. L-44274, 1980).
c. An information is sufficient when the accused
is fully apprised of the charge against him to
enable him to prepare his defense. The
inclusion of the phrase "wearing masks
and/or other forms of disguise" in the
information
does
not
violate
their
constitutional rights. The introduction of the
prosecution of testimonial evidence that
tends to prove that the accused were masked
but the masks fell off does not prevent them
from including disguise as an aggravating
circumstance. What is important in alleging
disguise as an aggravating circumstance is
that there was a concealment of identity by
the accused. (People v. Feliciano, G.R. No.
196735, J. LEONEN, May 5, 2014)
15. ABUSE OF SUPERIOR STRENGTH (par.
15), THAT:
a. Advantage be taken of superior
strength, or
b. Means be employed to weaken the
defense.
Basis: Means employed in the commission of the
crime.
Notes:
a. Par. 15 contemplates two aggravating
circumstances, either of which qualifies a
killing to murder. (Art. 248)
b. To take advantage of superior strength
means to deliberately use excessive force
that is out of proportion to the means for
self- defense available to the person
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c.
attacked. (People v. Lobrigas, G.R. No.
147649, 2002)
For abuse of superior strength, the test is the
relative strength of the offender and the
victim, whether or not he took advantage
of his greater strength.
regardless of the
comparative strength
of the victim/victims.
overpower
their
relatively
weaker
victim or victims.
The offender employs means that materially
weaken the resisting power of the offended party.
Superior strength not taken advantage of:
a. When one attacks another with passion and
obfuscation;
b. When a quarrel arose unexpectedly and the
fatal blow was struck at a time when the
aggressor and his victim were engaged
against each other as man to man; and
c. When attack on victim was made alternately.
EXAMPLES:
a. Where one, struggling with another, suddenly
throws a cloak over the head of his opponent
then he wounds or kills him.
b. When the offender, who had the intention to
kill the victim, made the deceased
intoxicated, thereby materially weakening the
latter’s resisting power.
Notes:
a. There must be evidence that the accused
were physically stronger and that they
abused such superiority.
b. The aggravating circumstance depends on
the age, size and strength of the parties – that
there be notorious inequality of forces.
c. Number of aggressors, if armed, may point to
abuse of superior strength.
d. There is abuse of superior strength when
weapon used is out of proportion to the
defense available to the offended party.
e. When
there
are
several
offenders
participating in the crime, they must all be
principals by direct participation and their
attack against the victim must be concerted
and intended to be so.
f. Abuse of superior strength is inherent in the
crime of parricide where the husband kills the
wife. It is generally accepted that the husband
is physically stronger than the wife.
g. Superior strength is absorbed and inherent in
treachery. (People v Mobe, 81 Phil. 58)
h. Superior strength absorbs cuadrilla (band).
Note: This circumstance is applicable only to
crimes against persons, and sometimes against
person and property, such as robbery with
physical injuries or homicide.
Compare Aggravating Circumstances of
Superior Strength v. ‘Committed By a Band’
BY A BAND
SUPERIOR
STRENGTH
Committed by more Taking advantage by
than three armed the culprits of their
malefactors
collective strength to
16. THE ACT BE COMMITTED WITH
TREACHERY (ALEVOSIA) (par. 16)
Basis: Means and ways employed in the
commission of the crime.
There is treachery when the offender commits
any of the crimes against the person, employing
means, methods or forms in the execution
thereof, which tends directly and specially to
insure its execution without risk to himself arising
from the defense which the offended party might
make. Treachery means that the offended party
was not given opportunity to make a defense.
Requisites:
1. At the time of the attack, the victim was not
in a position to defend himself; and
2. The offender consciously adopted the
particular means, method or form of attack
employed by him.
Note: It is not only the relative position of the
parties but also whether or not the victim was
forewarned or afforded the opportunity to make a
defense or to ward off the attack.
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Rules Regarding Treachery:
a. Applicable only to crimes against persons;
b. Means, methods or forms need not insure
accomplishment of crime but only its
execution; and
c. The mode of attack must be consciously
adopted.
e.
f.
Notes:
a. The
characteristic
and
unmistakable
manifestation of treachery is the deliberate,
sudden and unexpected attack of the victim
without any warning and without giving him
an opportunity to defend himself or repel the
initial assault. All three must concur;
otherwise, there can be no treachery.
b. As can be gleaned from jurisprudence, the
suddenness and unexpectedness of the
attack refers to the manner by which it is
executed and not to the formulation (which
must be deliberate or thought of by the
offender) of the manner of execution. (People
v. Cadag, G.R. No. L-13830, 1961)
c. When the victim’s hands are held by two
other persons while he is stabbed, and four
persons, who are armed with knives, gangs
up on him, the victim is completely deprived
of any prerogative to defend himself or to
retaliate. (People v. Castro, G.R. No. 211053,
J. LEONEN, November 29, 2017)
d. The unexpectedness of an attack cannot be
the sole basis of a finding of treachery, even
if the attack was intended to kill another, as
long as the victim’s position was merely
accidental. For treachery to attend, there
must be a deliberate or conscious adoption of
means, methods, or manners of execution
that would ensure success in committing the
crime. If the prosecution cannot prove that
the accused deliberately sought these
means, methods, or manners of execution,
there can be no finding of treachery. This is
because the attack might have been done on
impulse or as a reaction to the victim’s
provocation, whether real or imagined.
Generally, this type of provocation negates
the existence of treachery as it does not lend
itself to premeditation. (Cirera y Ustelo v.
g.
h.
i.
j.
k.
l.
m.
People, G.R. 181843, J. LEONEN, July 14,
2014)
However, People v. Ramolete considered
treachery as aggravating even if the accused
shot the victim on his back without
deliberation because the latter was trying to
escape through the window.
Treachery is appreciated even if the crime
against the person is complexed with another
felony involving a different classification in the
Code. Thus, in the special complex crime of
robbery with homicide, treachery can be
appreciated insofar as the killing is
concerned.
Treachery may exist even if the attack is face
to face, where it appears that the attack was
not preceded by a dispute and the offended
party was unable to prepare himself for his
defense.
Attack from behind is not always treachery –
it must appear that such mode of attack was
consciously adopted and the question of risk
to offender be taken into account.
General rule: Treachery must be proved by
clear and convincing evidence and cannot be
presumed.
Exception: Treachery applies in the killing of
a child even if the manner of attack is not
shown.
The mode of attack must be consciously
adopted.
The accused must make some preparation to
kill the deceased in such a manner as to
insure the execution of the crime or to make
it impossible or hard for the person attacked
to defend himself or retaliate.
The mode of attack must be thought of by the
offender, and must not spring from
unexpected turn of events.
When Must Treachery be Present:
a. When the aggression is continuous,
treachery must be present in the beginning
of the assault.
• Example: Even if the deceased was
shot while he was lying wounded on the
ground, it appearing that the firing of the
shot was a mere continuation of the
assault in which the deceased was
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wounded, with no appreciable time
intervening between the delivery of the
blows and the firing of the shot, it cannot
be said that the crime was attended by
treachery.
b. When the assault was not continuous, in
that there was interruption, it is sufficient that
treachery was present at the moment the
fatal blow was given.
• Example: Hence, if there was a break in
the continuity of the aggression and at
the time of the fatal wound was inflicted
on the deceased he was defenseless;
the circumstance of treachery must be
taken into account.
c. Treachery must be present at the time of
inception of the attack, and not after. Even if
the treachery occurs in the subsequent
stages of the assault, if it was absent from the
beginning, it cannot be appreciated as an
aggravating or qualifying circumstance.
Failing to prove the presence of the qualifying
circumstance of treachery, the accused are
guilty of the crime of homicide, not murder.
(People v. Magallano, Jr. y Flores, G.R.
220721, J. LEONEN, December 10, 2018)
d. Cuadrilla (“band”);
e. Aid of armed men; and
f. Nighttime.
Treachery Should be Considered Even If:
a. The victim was not predetermined but there
was a generic intent to treacherously kill any
first two persons belonging to a class. (The
same rule obtains for evident premeditation).
b. There was aberratio ictus and the bullet hit
a person different from that intended. (The
rule is different in evident premeditation).
c. There was error in personae, hence the
victim was not the one intended by the
accused. (A different rule is applied in evident
premeditation).
17. MEANS
BE
EMPLOYED
OR
CIRCUMSTANCES BROUGHT ABOUT
WHICH ADD IGNOMINY TO THE NATURAL
EFFECTS OF THE ACT (par. 17)
Reason: It is nonetheless impossible for
either the intended victim or the actual victim
to defend himself against the aggression.
Treachery Absorbs: (ACE CAN)
a. Abuse of superior strength;
b. Craft;
c. Employing means to
weaken the
defense;
Note: Treachery cannot co-exist with passion or
obfuscation.
Compare Treachery v. Abuse of superior
strength v. Means employed to weaken the
defense
MEANS
ABUSE OF
EMPLOYED
TREACHERY
SUPERIOR
TO WEAKEN
STRENGTH
THE
DEFENSE
Means,
Offender only Means
are
methods,
or takes
employed but it
forms
advantage of materially
employed by his superior weakens the
the offender to strength and resisting power
make
it does
not of the offended
impossible or employ
party
hard for the means,
offended party methods, or
to put any sort forms
of
of resistance
attack
Basis: Means employed
Ignominy is a circumstance pertaining to the
moral order, which adds disgrace and obloquy to
the material injury caused by the crime.
Notes:
a. It is applicable to crimes against chastity, less
serious physical injuries, light or grave
coercion, and murder.
b. It is inherent in libel and acts of
lasciviousness.
Meaning of “which add ignominy to the
natural effects of the act:”
a. The means employed or the circumstances
brought about must tend to make the effects
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of the crime more humiliating or to put the
offended party to shame.
b. Injured party must not be dead when the act
causing ignominy was inflicted to him
because the act must add to the injured
party’s moral suffering.
Compare Ignominy v. Cruelty
IGNOMINY (PAR.
CRUELTY (PAR. 21)
17)
Involves moral
Refers to physical
suffering
suffering
18. MEANS
BE
EMPLOYED
OR
CIRCUMSTANCES BROUGHT ABOUT
WHICH ADD IGNOMINY TO THE NATURAL
EFFECTS OF THE ACT (par. 18)
Basis: Means and ways employed to commit
the crime.
There is unlawful entry when an entrance (not
escape) is effected by a way not intended for the
purpose.
One who acts, not respecting the walls erected by
men to guard their property and provide for their
personal safety, shows a greater perversity, a
greater audacity, hence, the law punishes him
with more severity.
Notes:
1. Dwelling and unlawful entry taken separately
as aggravating circumstances in murders
committed in a dwelling.
2. May be considered as aggravating in robbery
with violence against or intimidation of
persons.
3. Not aggravating in trespass to dwelling as
unlawful entry is inherent therein.
19. AS A MEANS TO THE COMMISSION OF A
CRIME, A WALL, ROOF, FLOOR, DOOR, OR
WINDOW BE BROKEN (par. 19)
Basis: Means and ways employed to commit
the crime.
CRIMINAL LAW
Notes:
a. Applicable only if such acts were done by the
offender to effect entrance.
b. It is not necessary that the offender should
have entered the building. What aggravates
the liability is the breaking of a part of the
building as a means of committing the crime.
Compare breaking as means to commission
of the crime v. After an unlawful entry
BREAKING AS
MEANS TO
AFTER AN
COMMISSION OF
UNLAWFUL ENTRY
THE CRIME (PAR.
(PAR. 18)
19)
Involves
the Presupposes
that
breaking
there is no such
(rompimiento) of the breaking as by entry
enumerated parts of through the window.
the house.
WHERE BREAKING OF DOOR OR WINDOW
IS LAWFUL:
a. An officer, in order to make an arrest, may
break open a door or window of any
building in which the person to be arrested is
or is reasonably believed to be (Sec. 11, Rule
113, of Rules of Court); and
b. An officer, if refused admittance, may break
open any door or window to execute the
search warrant or liberate himself. (Sec. 7,
Rule 126 of ROC).
20. THE CRIME BE COMMITTED: (par. 20)
a. With the aid of persons under 15 years of
age, or
b. By means of motor vehicles, airships, or
other similar means.
Basis: Means and ways employed to commit
the crime.
Two different circumstances grouped in this
paragraph:
1. With the aid of persons under fifteen
years of age
a. Intends to repress the frequent practice
resorted to by professional criminals to
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avail themselves of minors taking
advantage of their irresponsibility.
2. By means of motor vehicles, airships, or
other similar means
a. Intended to counteract the great
facilities found by modern criminals in
said means to commit crime and flee
and abscond once the same is
committed.
b. Use of motor vehicle is aggravating
where the accused purposely and
deliberately used the motor vehicle in
going to the place of the crime, in
carrying away the effects thereof, and in
facilitating their escape.
c. Other similar means refers to
motorized vehicles or other efficient
means of transportation similar to
automobile or airplane.
d. Not aggravating: used only to
facilitate the escape or use was merely
incidental and not purposely sought to
facilitate the commission of the offense
21. THE WRONG DONE IN THE COMMISSION
OF THE CRIME BE DELIBERATELY
AUGMENTED BY CAUSING OTHER
WRONG NOT NECESSARY FOR ITS
COMMISSION (par. 21)
Basis: Ways employed to commit the crime.
There is cruelty when the culprit enjoys and
delights in making his victim suffer slowly and
gradually, causing unnecessary physical pain
in the consummation of the criminal act.
Requisites:
1. The injury caused be deliberately
increased by causing other wrong; and
2. The other wrong be unnecessary for the
execution of the purpose of the offender.
Notes:
a. Cruelty is inherent in mutilation.
b. The wounds found on the body of the victim
must be inflicted while he was still alive in
CRIMINAL LAW
order unnecessarily to prolong physical
suffering.
c. If the victim was already dead when the acts
of mutilation were being performed, this
would also qualify the killing to murder due to
outraging of his corpse. (Art. 248)
d. Number of wounds alone does not show
cruelty, it being necessary to show that the
accused
deliberately
and
inhumanly
increased the sufferings of the victims.
Note: Unlike mitigating circumstances (par. 10,
Art. 13), there is NO provision for aggravating
circumstances of a similar or analogous
character.
22. OTHER AGGRAVATING
CIRCUMSTANCES UNDER SPECIAL
PENAL LAWS
1. USE OF UNLICENSED FIREARMS
a. If homicide or murder is committed with
the use of an unlicensed firearm, such
use of an unlicensed firearm shall be
considered
as
an
aggravating
circumstance. (Sec. 1, par. 3)
b. When a person commits any crime under
the Revised Penal Code or Special Laws
with the use of explosives including but
not limited to pillbox, molotov cocktail
bombs, detonation agents or incendiary
devises resulting in the death of a person,
the same is aggravating. (Sec. 3)
2. COMPREHENSIVE DANGEROUS DRUGS
ACT
a. When a crime is committed by an
offender who is under the influence of
dangerous drugs, such state shall be
considered as a qualifying aggravating
circumstances. (Sec. 25)
b. For drug pushers who use minors or
mentally incapacitated individuals as
runners, couriers and messengers, or in
any other capacity directly connected to
the dangerous drugs and/or controlled
precursors and essential chemical trade,
the maximum penalty shall be imposed in
every case. (Sec. 5)
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c.
If the victim of the offense is a minor or a
mentally incapacitated individual, or
should a dangerous drug and/or a
controlled precursor and essential
chemical involved in any offense herein
provided be the proximate cause of death
of a victim thereof, the maximum penalty
provided for under this Section shall be
imposed. (Sec. 5)
SPECIFIC AGGRAVATING CIRCUMSTANCES:
a. Violation of domicile: nighttime, papers or
effects not returned immediately;
b. Interruption of religious worship: violence or
threats;
c. Direct assault: weapon, offender is a public
officer or employee, offender lays hands
upon a person in authority;
d. Grave threats: in writing, thru a middleman;
e. Robbery with violence against or intimidation
of persons: uninhabited place, band,
EXCEPT robbery with homicide or robbery
with rape; and
f. Robbery with force upon things: uninhabited
place and by a band.
g. Ignominy in crimes against chastity
h. Cruelty and treachery in crimes against
persons.
e. Alternative Circumstances
ALTERNATIVE CIRCUMSTANCES are those
that must be taken into consideration as
aggravating or mitigating according to the nature
and effects of the crime and the other conditions
attending its commission.
Basis: Nature and effects of the crime and the
other conditions attending its commission.
Alternative Circumstances:
a. Relationship;
b. Intoxication; and
c. Degree of instruction and education of the
offender.
CRIMINAL LAW
1. RELATIONSHIP
The alternative circumstance of relationship shall
be taken into consideration when the offended
party is the:
1. Spouse;
2. Ascendant;
3. Descendant;
4. Legitimate, natural, or adopted brother or
sister; or
5. Relative by affinity, in the same degree, of
the offender;
6. Stepfather or stepmother and stepson or
stepdaughter (People v. Bersabal,
G.R. No. 24532, December 11, 1925); and
7. Adoptive parent and adopted child.
When Relationship is Mitigating:
1. Crimes against property, by analogy, to the
provisions of Art. 332:
a. Robbery,
usurpation,
fraudulent
insolvency, and arson; and
b. Relationship is exempting in theft,
estafa, and malicious mischief.
2. Crimes against persons
a. When the offense committed is less
serious physical injuries or slight
physical injuries and the offended
party is a relative of a lower degree.
When Relationship is Aggravating:
1. Crimes against persons
a. It is aggravating where the offended
party is a relative of
i.
A higher degree than the offender,
or
ii.
When the offender and the
offended party are relatives of the
same degree.
b. In physical injuries
i.
The crime against persons is
serious physical injuries, even if
the offended party is a descendant
of the offender. But the serious
physical injuries must not be inflicted
by a parent upon his child by
excessive chastisement.
ii. The offense committed is less
serious physical injuries or slight
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physical injuries if the offended
party is relative of a higher degree
of the offender.
c. When the crime is homicide or murder,
relationship is aggravating even if the victim
of the crime is a relative of a lower degree.
d. In rape, relationship is aggravating where
a stepfather raped his stepdaughter, or in a
case where a father rapes his own daughter.
CRIMINAL LAW
own protection to impose a more sever
penalty.
Compare When Mitigating v. Aggravating
MITIGATING
AGGRAVATING
If intoxication is not If
intoxication
is
habitual; or
habitual; or
If intoxication is not If it is intentional
subsequent to the (subsequent to the
plan to commit a plan to commit a
felony
felony)
2. Crimes against chastity
a. In acts of lasciviousness, relationship
is always aggravating, regardless of
whether the offender is a relative of a
higher or lower degree of the offended
party.
A habitual drunkard is one given to intoxication
by excessive use of intoxicating drinks. Once
intoxication is established by satisfactory
evidence, in the absence of proof to the contrary,
it is presumed to be non-habitual or unintentional.
When Relationship is an Element of the
Offense
When the qualification given to the crime is
derived from the relationship between the
offender and the offended party, it is neither
mitigating nor aggravating, because it is
inseperable from and inherent in the offense.
To be Entitled to the Mitigating Circumstance,
it Must be Shown That:
a. At the time of the commission of the criminal
act, he has taken such quantity of alcoholic
drinks as to blur his reason and deprive him
of a certain degree of control; and
b. Such intoxication is not habitual, or
subsequent to the plan to commit the felony.
Examples:
1. Parricide
2. Adultery
3. Concubinage
2. INTOXICATION
Basis
a. As a mitigating circumstance, it finds its
reason in the fact that when a person is under
the influence of liquor, his exercise of will
power is impaired.
b. As an aggravating circumstance, because
it is intentional, the reason is that the
offender resorted to it in order to bolster his
courage to commit a crime.
The constant use of intoxicating liquor
lessens the individual resistance to evil
thoughts and undermines the will power
making himself a potential evildoer against
those activities, society has the right for its
Note:
a. Intoxication must diminish the agent’s
capacity to know the injustice of his acts, and
his will to act accordingly.
b. The quantity consumed prior to the
commission of the crime must be sufficient to
produce the effect of obfuscating reason.
(People v. Rebucan, G.R. No. 182551, July
27, 2011)
c. To be considered as a mitigating
circumstance, it must be proven that the
accused is not a habitual drinker and did not
take the alcohol in order to reinforce his
resolve to commit the crime. (People v
Ortega, G.R. No. 135846, June 28, 2001)
3. DEGREE OF INSTRUCTION AND
EDUCATION OF THE OFFENDER
It does not refer only to literacy but more to the
level of intelligence of the accused.
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Notes:
a. Refers to the lack of sufficient intelligence
and knowledge of the full significance of
one’s acts.
b. Low degree of instruction and education or
lack of it is generally mitigating.
c. High degree of instruction and education is
aggravating when the offender avails himself
of his learning in committing the crime.
General Rule: Lack of sufficient education is
mitigating.
Exceptions: (PCTMR)
a. Crimes against Property (e.g., arson, estafa,
theft, robbery);
b. Crimes against Chastity;
c. Treason: because love of country should be
a natural feeling of every citizen, however
unlettered or uncultured he may be;
d. Murder; and
e. Rape
g. Absolutory Cause
ABSOLUTORY CAUSES are those where the
act committed is a crime but for reasons of public
policy and sentiment there is no penalty
imposed.
Basis: A sound public policy requires that the
courts shall condemn this practice by directing
the acquittal of the accused.
Absolutory causes are neither justifying nor
exempting circumstances but nonetheless
similarly results to no criminal liability on the actor,
not because they are justified (Article 11) nor
exempt (Article 12), but because of public policy.
1.
2.
3.
4.
Instigation
Spontaneous desistance during attempted
stage (Art. 6), and no crime under another
provision of the Code or other penal law is
committed.
Light felony is only attempted or frustrated,
and is not against persons or property. (Art.
7)
The accessory is a relative of the principal.
(Art. 20)
Legal grounds for arbitrary detention. (Art.
124)
6. Legal grounds for trespass. (Art. 280)
7. The crime of theft, swindling or malicious
mischief is committed against a relative. (Art.
332)
8. When only slight or less serious physical
injuries are inflicted by the person who
surprised his spouse or daughter in the act
of sexual intercourse with another person.
(Art. 247)
9. Marriage ofthe offender with the offended
party when the crime committed is rape,
abduction,
seduction,
or
acts
of
lasciviousness. (Art. 344)
10. Mistake of fact
5.
Note: To constitute a crime, evil intent must
combine with an act. A mistake of fact shows
that the act committed have proceeded from
no sort of evil in the mind and thus
necessarily relieves the actor from criminal
liability. The applicable maxims here are
actus non facit reum nisi mens sit rea (the
act itself does not make man guilty unless
his intention were so) and actus me incito
factus non est meus actus (an act done by
me against my will is not my act). (U.S. v. Ah
Chong, G.R. No. L-5272, March 19, 1910)
Entrapment v. Instigation
ENTRAPMENT
INSTIGATION
The ways and means
Instigator practically
are resorted to for the
induces the wouldpurpose of trapping
be accused into the
and capturing the
commission of the
lawbreaker in the
offense and himself
execution of his
becomes a cocriminal plan;
principal;
NOT a bar to
Accused will be
accused’s
acquitted; and
prosecution and
conviction; and
NOT an absolutory
Absolutory cause
cause.
———— end of topic ————
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III. PERSONS LIABLE AND DEGREE OF
PARTICIPATION
a. Principals, accomplices, and accessories
PRINCIPALS CRIMINALLY LIABLE FOR
GRAVE AND LESS GRAVE FELONIES
Art. 16. Who are criminally liable. — The
following are criminally liable for grave and
less grave felonies: (PAA)
a. Principals;
b. Accomplices; and
c. Accessories
CRIMINAL LAW
As to the imposition of other penalties like
destierro and imprisonment, these are imposed
and executed on individuals only and not for
juridical persons.
2. Passive Subject
The passive subject of a crime is the person
injured. The holder of the injured right is the man,
the juristic person, the group, and the State.
Corporations and partnerships can be passive
subjects of a crime.
PRINCIPALS CRIMINALLY LIABLE FOR
LIGHT FELONIES
Corpses and animals cannot be passive subjects
because they have no rights that may be injured.
The following are criminally liable for light
felonies: (PA)
1. Principals; and
2. Accomplices;
Exception:
Under Article 253, the crime of defamation may
be committed if the imputation tends to blacken
the memory of one who is dead.
PARTIES IN ALL CRIMES
It should be Noted that Article 16 only applies
when the offenders are to be judged by their
individual, and not collective liability.
1. Active Subject
The active subject is the criminal. Only natural
persons can be the active subjects of a crime
because of the highly personal nature of the
criminal responsibility.
Under the Revised Penal Code, persons act with
personal malice or negligence; artificial persons
cannot act with malice or negligence.
A juridical person like a corporation cannot
commit a crime that requires willful purpose of
malicious intent. Criminal actions are restricted or
limited to the officials of the corporation and never
directed against the corporation itself, except
under: (4) (SPEC)
1.
2.
3.
4.
Securities Law;
Public Service Law;
Election Code; and
Corporation Law
There is substitution of deprivation of liberty for
pecuniary penalties in insolvency cases.
PRINCIPAL
Art. 17. Principals. — The following are
considered principals: (DIC)
a. Those who take a Direct part in the
execution of the act;
b. Those who directly force or Induce
others to commit it;
c. Those who Cooperate in the commission
of the offense by another act without which it
would not have been accomplished.
3. By Direct Participation
Requisites: (PC)
1. They Participated in the criminal resolution;
and
2. They Carried out their plan and personally
took part in its execution by acts, which directly
tended to the same end.
a. When this element is lacking, there is
only conspiracy.
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In conspiracy by prior agreement, the principal
by direct participation who does not appear at the
scene of the crime is not liable, because:
a. Non-appearance is deemed desistance
which is favored and encouraged;
b. Conspiracy is generally not a crime unless
the law specifically provides a penalty and
c. There is no basis for criminal liability because
there is no criminal participation
d. At best, he can be a principal by inducement.
2. By Inducement
Requisites: (IDN)
1. That the inducement be made directly with
the Intention of procuring the commission of the
crime;
2. That such inducement be the Determining
cause of the commission of the crime by the
material executor; and
3. Without such inducement the crime would
Not have been committed.
Ways of Becoming Principal by Induction:
a. By directly forcing another to commit a
crime
b. Using irresistible force; or
c. By causing uncontrollable fear;
In these cases, there is no conspiracy, not even a
unity of criminal purpose and intention. Only the
one using force or causing fear is criminally liable.
By directly inducing another to commit a
crime;
a. By giving price, or offering reward or
promise;
• Both the one giving the price, offering
reward, or promise and the one
committing the crime in consideration
thereof are principals;
•
There is also
responsibility.
collective
criminal
REQUISITES (for a person using words of
command to be held liable as principal)
(IADP-PN)
1. The one uttering the words of command must
have the Intention of procuring the
commission of the crime;
2. The one who made the command must have
Ascendancy or influence over the person
who acted;
3. The words used must be so Direct, so
efficacious, so Powerful as to amount to
physical or moral coercion;
4. The words of command must be uttered Prior
to the commission of the crime; and
5. The material executor of the crime has No
personal reason to commit the crime.
There must exist on the part of the inducer the
most positive resolution and the most persistent
effort to secure the commission of the crime,
together with the presentation to the person
induced of the very strongest kind of temptation
to commit the crime.
The inducement must precede the act induced
and must be so influential in producing the
criminal act that without it, the act would not have
been performed.
A thoughtless expression without intention to
produce the result is not an inducement to commit
a crime.
If the crime committed is not contemplated in the
order given, the inducement is not material and
not the determining cause thereof.
b. By using words of command;
• The inciting words must have great
dominance and influence over the person
who acts where it would be the moving
cause for the offense;
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Compare Principal By Inducement and
Offender Who Made Proposal To Commit A
Felony
OFFENDER WHO
PRINCIPAL BY
MADE A PROPOSAL
INDUCEMENT
TO COMMIT A
FELONY
There is an inducement to commit a crime
LIABILITY
Principal
becomes Mere
proposal
to
liable only when the commit a felony is
crime is committed by punishable in treason
the principal by direct or rebellion;
participation; and
The person to whom
the proposal is made
should not commit the
crime, otherwise, the
proponent becomes a
Principal
by
inducement; and
CRIME INVOLVED
Involves any crime.
Must
involve
only
treason or rebellion.
Effects of acquittal of principal by direct
participation upon the liability of principal by
inducement:
1. Conspiracy is negated by the acquittal of codefendant.
2. One cannot be held guilty of having instigated
the commission of a crime without first being
shown that the crime has been actually
committed by another.
3. But, if the one charged as principal by direct
participation is acquitted, it does not
necessarily lead to the acquittal of the
principal by inducement.
3. By Indispensable Cooperation
Requisites: (PA)
1. Participation in the criminal resolution, that
is, there is either anterior conspiracy or unity
of
criminal
purpose
and
intention
immediately before the commission of the
crime charged. This, in turn, requires the
following: (PCCC)
a.
b.
c.
d.
Participation in the criminal resolution;
There must be Conspiracy;
Concurrence is sufficient; and
Cooperation is indispensable;
2. Cooperation in the commission of the offense
by performing Another act, without which it
would not have been accomplished. It should
be Noted that: (CDN)
a. Cooperation must be indispensable;
b. If participation is Dispensable, accused
is only an accomplice, not a principal;
and
c. If cooperation is Necessary in the
execution of the offense, accused is
considered as a principal by direct
participation.
To cooperate means to desire or wish in
common a thing. But that common will or
purpose does not necessarily mean previous
understanding, for it can be explained or inferred
from the circumstances of each case. (People v.
Aplegido, G.R. No. L-163, April 27, 1946).
There can be no principal by inducement or
principal by cooperation unless there is a
principal by direct participation. However, there
may be a principal by direct participation despite
the absence of the former.
INDIVIDUAL CRIMINAL RESPONSIBILITY
In the absence of conspiracy, unity of criminal
purpose and intention immediately before the
commission of the crime, or community of
criminal design, the criminal responsibility
arising from different acts directed against one
and the same person is individual and not
collective, and each of the participants is liable
only for acts committed by him. (U.S. v.
Magcomot, G.R. No. L- 18289, November 17,
1922).
COLLECTIVE CRIMINAL RESPONSIBILITY
There is collective criminal responsibility
when the offenders are criminally liable in the
same manner and to the same extent. The
penalty to be imposed must be the same for all.
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BY DIRECT
PARTICIPATION
Takes part in the
execution of the act
constituting the crime;
If there is no
conspiracy, then each
offender is only liable
for the acts performed
by him; and
Principals have
collective criminal
responsibility
BY INDUCEMENT
1. Directly forcing another to commit a
crime by:
(a) using irresistible force;
(b) causing uncontrollable fear;
BY INDISPENSABLE
COOPERATION
Cooperates in the commission of
the offense by performing
another act, without which it
would
not
have
been
accomplished; and
2. Directly inducing another to commit a
crime by:
(a) giving price, or offering reward or
promise;
(b) using words of command
COLLECTIVE CRIMINAL RESPONSIBILITY
Principal,
Principal has criminal collective
responsibility with the principal
EXCEPT
by direct participation
that who directly forced another to commit a
crime, and principal by direct participation
1. In case of
Inducemen by forcing another to commit a
crime, either through: (a) irresistible force or
(b) uncontrollable fear
The inducer is liable as the principal, while
the material executor is not liable due to Art.
12 pars. 5 and 6
2. In case of inducing another to commit a
crime by
either:
(a) giving price or offering reward or
promise or
(b) through the use of words of command:
there is collective criminal responsibility
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ACCOMPLICE
Art. 18. Accomplices. — Accomplices are
those persons who, not being included in Art.
17, cooperate in the execution of the offense
by previous or simultaneous acts.
Requisites:
1. There be community of design; that is,
Knowing the criminal design of the
principal by direct participation, he concurs
with the latter in his purpose. The following
should be Noted:
a. Knowledge of the criminal design of the
principal can be acquired by the
accomplice when:
b. The principal informs or tells the
accomplice of the former’s criminal
design; and
c. The accomplice saw the criminal acts of
the principal;
d. The community of design need not be
to commit the crime actually committed.
It is sufficient if there was a common
purpose to commit a particular crime
and that the crime actually committed
was a natural or probable consequence
of the intended crime;
2. He cooperates in the execution of the offense
by Previous or simultaneous acts, with the
intention of supplying material or moral aid in
the execution of the crime in an efficacious
way. The following should be Noted:
a. The cooperation of the accomplice is
only necessary, not indispensable;
b. The cooperation is not due to a
conspiracy; and
c. The wounds inflicted by an accomplice
in crimes against persons should not
have caused the death of the victim;
d. Being present and giving moral support
when a crime is being committed where
it
may
be
through
advice,
encouragement or agreement; and
3. There should be a Relation between the acts
done by the principal and those attributed to
the person charged as accomplice.
Quasi-Collective Responsibility
CRIMINAL LAW
Some of the offenders in the crime are principals
and the others as accomplices.
Compare Accomplice v. Principal in General
ACCOMPLICE
PRINCIPAL
PARTICIPATION
Does not take direct Either takes direct part
part
in
the in the commission of
commission of the the act, induces, or
act, does not force or forces
another
to
induce
others
to commit
it,
or
commit it, or does not cooperates
in
the
cooperate
in
the commission of the
commission of the crime by another act,
crime by another act, without which it would
without which it would not
have
been
not
have
been accomplished; and
accomplished,
yet
cooperates in the
execution of the act
by
previous
or
simultaneous means,
and
KNOWLEDGE
Has knowledge of the Has knowledge of the
criminal design of the criminal design and
principal and merely carries/executes it
concurs with the
criminal purpose
Accomplice v. Principal By Indispensable
Cooperation
ACCOMPLICE
PRINCIPAL BY
INDISPENSABLE
COOPERATION
Necessity of Participation
Participation is not
Participation is
indispensable and
indispensable; and
Degree of Participation
Cooperates in the
Participates in the
execution of the
criminal resolution, in
offense by previous
such a way that there is
or simultaneous acts, either anterior
with the intention of
conspiracy or unity of
supplying material or
criminal purpose and
moral aid in the
intention immediately
execution of the
before the commission
of the crime charged
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crime in an
efficacious way
Accomplice
v.
Principal
By
Direct
Participation
a. There is community of criminal design.
b. In case of doubt, it shall be resolved in favor
of lesser responsibility, that is, that of mere
accomplice.
c. Between the principals and the accomplices,
there is no conspiracy.
reached the decision,
and only then do they
agree to cooperate in
its execution; and
They are merely
instruments who
perform acts not
essential to the
perpetration of the
offense
themselves have
decided upon such
course of action; and
They are the authors of
a crime
ACCESSORY
Compare Accomplice v. Principal By Direct
Participation
ACCOMPLICE
PRINCIPAL BY
DIRECT
PARTICIPATION
Community
of Community of criminal
criminal
design, design
however
such
community need not
be to commit the
crime
actually
committed;
Sufficient that there
was
a
common
purpose to commit a
particular crime and
that the crime actually
committed was a
natural or probably
consequence of the
intended crime.
No clear-cut distinction between the acts of the
accomplice and those of the principal by direct
participation; and
Between principals
Between principals and
liable for the same
accomplices, there is
offense, there must
no conspiracy
be conspiracy
Compare Accomplice v. Conspirator
ACCOMPLICE
CONSPIRATOR
They know and agree with the criminal design
They come to know
They come to know the
about it after the
criminal intention
principals have
because they
Art. 19. Accessories. — Accessories are those
who, having knowledge of the commission of
the crime, and without having participated
therein, either as principals or accomplices,
take part subsequent to its commission in any
of the following manners: (3) P- C/D-E
1.
2.
3.
By profiting themselves or assisting
the offender to profit by the effects of
the crime;
By concealing or destroying the body
of the crime, or the effects or
instruments thereof, in order to
prevent its discovery;
By harboring, concealing, or assisting
in the escape of the principals of the
crime, provided the accessory acts
with abuse of his public functions or
whenever the author of the crime is
guilty of treason, parricide, murder, or
an attempt to take the life of the Chief
Executive, or is known to be habitually
guilty of some other crime.
Notes:
a. An accessory does not participate in the
criminal design, nor cooperate in the
commission of the felony, but, with
knowledge of the commission of the crime, he
subsequently takes part in three ways:
i. Profiting from the effects of the crime;
ii. Concealing the body, effects or
instruments of the crime in order to
prevent its discovery; and
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iii. Assisting
in
the
escape
or
concealment of the principal of the
crime, provided he acts with abuse of
his public functions or the principal is
guilty of treason, parricide, murder, or
an attempt to take the life of the Chief
Executive, or is known to be habitually
guilty of some other crime.
b. An accessory must have knowledge of the
commission of the crime, and having that
knowledge, he took part subsequent to its
commission.
c. The crime committed by the principal must be
proved beyond reasonable doubt.
SPECIFIC ACTS OF ACCESSORIES:
1. BY
PROFITING
THEMSELVES
OR
ASSISTING THE OFFENDER TO PROFIT
BY THE EFFECTS OF THE CRIME;
a. The crime committed by the principal under
this paragraph may be any crime, provided it
is not a light felony
b. Profiting themselves by the effects of the
crime
i. The accessory should not take the
property without the consent of the
principal
ii. When a person knowingly acquired or
received property taken by the
brigands, the crime is punished as the
act of the principal, not the act of the
accessory
c. Assisting the offender to profit by the effects
of the crime
2. BY CONCEALING OR DESTROYING THE
BODY OF THE CRIME, OR THE EFFECTS
OR INSTRUMENTS THEREOF, IN ORDER
TO PREVENT ITS DISCOVERY;
1. The crime committed by the principal under
this paragraph may be any crime, provided it
is not a light felony; and
2. Body of the crime is the corpus delicti,
that someone in fact committed a specific
offense;
3. There must be an attempt to hide the body
of the crime;
4.
The stolen property is the effect of the crime.
The pistol or knife is the instrument of the
crime;
3. BY HARBORING, CONCEALING, OR
ASSISTING IN THE ESCAPE OF THE
PRINCIPALS OF THE CRIME, PROVIDED
THE ACCESSORY ACTS WITH ABUSE OF
HIS PUBLIC FUNCTIONS OR WHENEVER
THE AUTHOR OF THE CRIME IS GUILTY
OF TREASON, PARRICIDE, MURDER, OR
AN ATTEMPT TO TAKE THE LIFE OF THE
CHIEF EXECUTIVE, OR IS KNOWN TO BE
HABITUALLY GUILTY OF SOME OTHER
CRIME.
Classes of Accessories Contemplated in
Part. 3:
1. Public officers, who harbor, conceal or
assist in the escape of the principal of any
crime (not light felony) with abuse of his
public functions; and
Requisites: (PHAE)
1. The accessory is a Public officer;
2. He Harbors, conceals, or assists in the
escape of the principal;
3. He acts with Abuse of his public function;
and
4. The crime committed by the principals is any
crime, Except a light felony; and
2. Private persons, who harbor, conceal or
assist in the escape of the author of the
crime – guilty of treason, parricide, murder, or
an attempt against the life of the President, or
who is known to be habitually guilty of some
other crime.
Requisites: (PHP-TPMPH)
1. The accessory is a Private person;
2. He Harbors, conceals or assists in the
escape of the author of the crime;
3. The crime committed by the Principal is
either:
4. Treason;
5. Parricide;
6. Murder;
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7. An attempt against the life of the President;
or
8. That the principal is known to be Habitually
guilty of some other crime.
PUBLIC OFFICERS
Harbors, conceals or
assists in the escape
of the principal of any
crime;
Accessory is a public
officer;
Public officer acts
with abuse of his
public functions; and
Crime committed by
the principal involves
any crime, except
light felonies.
PRIVATE PERSONS
Harbors, conceals or
assisting the escape
of the author of the
crime;
Accessory is a
private person;
No abuse required
(not a public officer);
and
Crime committed by
the principal is either:
(a) treason,
(b) parricide,
(c) murder,
(d) an attempt
against the life of the
President, or
(e) that the principal
is known to be
habitually guilty of
some other crime.
Notes:
a. The accessories’ liability is subordinate and
subsequent.
b. Conviction of an accessory is possible
notwithstanding the acquittal of the principal,
if the crime was in fact committed, but the
principal was not held criminally liable,
because of an exempting circumstance.
c. Even if the principal is still unknown or at
large, the accessory may be held responsible
provided the requisites prescribed by law for
the existence of the crime are present and
that someone committed it.
d. Where the commission of the crime and the
responsibility of the accused as an
accessory, are established, the accessory
can be convicted, notwithstanding the
acquittal of the principal. (Vino v. People,
G.R. No. 84163, October 19, 1989).
CRIMINAL LAW
PLEASE SEE SPL REVIEWER, ANTIFENCING LAW AND THE DECREE
PENALIZING OBSTRUCTION OF JUSTICE,
READ IN RELATION TO THE TOPIC ON
ACCESSORIES p. 293
PERSONS EXEMPT FROM CRIMINAL
LIABILITY
Art. 20. Accessories who are exempt from
criminal liability. — The penalties prescribed
for accessories shall not be imposed upon
those who are such with respect to their
spouses,
ascendants,
descendants,
legitimate, natural, and adopted brothers and
sisters, or relatives by affinity within the same
degrees, with the single exception of
accessories falling within the provisions of
paragraph 1 of the next preceding article.
Notes:
a. The exemption is based on the ties of blood
and the preservation of the cleanliness of
one’s name.
b. An accessory is exempt from criminal liability,
when the principal is his— (4) (SADR)
1. Spouse;
2. Ascendant;
3. Descendant; or
4. Legitimate, natural or adopted brother,
sister, or Relative by affinity within
the same degree.
c. The accessory is not exempt from criminal
liability even if the principal is related to him,
if such accessory:
1. Profited by the effects of the crime;
2. Assisted the offender to profit by the
effects of the crime; and
Note: Such acts are prompted not by
affection but by a detestable greed.
d. Only accessories under Art. 19 (2) and (3) are
exempt from criminal liability if they are
related to the principals.
e. Ties of blood or relationship constitute a more
powerful incentive than the call of duty.
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b. Conspiracy and Proposal
Art. 8. Conspiracy and proposal to commit
felony. — Conspiracy and proposal to commit
felony are punishable only in the cases in
which the law specially provides a penalty
therefor.
A conspiracy exists when two or more
persons come to an agreement concerning
the commission of a felony and decide to
commit it.
There is proposal when the person who has
decided to commit a felony proposes its
execution to some other person or persons.
Conspiracy and proposal to commit a crime are
only preparatory acts, and the law regards them
as innocent or at least permissible except in rare
and exceptional cases.
CONSPIRACY
Exists when two or more persons come to an
agreement concerning the commission of a
felony and decide to commit it.
Direct proof is not essential to establish
conspiracy.
Conspiracy must be alleged in the information in
order that an accused may be held liable for the
acts of his co-accused.
Requisites: (ACD)
1. Two or more persons came to an Agreement;
2. The agreement pertains to the Commission
of a felony; and
3. The execution of the felony was Decided
upon.
There must be participation with a criminal
resolution because simple knowledge thereof by
a person may only make him liable as an
accomplice.
General Rule: Conspiracy and proposal to
commit felony are not punishable.
CRIMINAL LAW
Exception: They are punishable only in the
cases in which the law specially provides a
penalty therefor.
Examples of the Exception:
1. Treason;
2. Rebellion;
3. Insurrection;
4. Coup d’etat;
5. Sedition;
6. Monopolies and
combinations in
restraint of trade;
7. Espionage;
8. Highway robbery;
9. Illegal association;
10. Selected acts committed under the
Comprehensive Dangerous Drugs Act;
11. Arson; and
12. Terrorism under the Human Security Act.
Conspiracy as a felony v. Conspiracy as a
means of incurring criminal liability
FELONY
MANNER OF
INCURRING
CRIMINAL
LIABILITY
Conspirators should If the conspirators
not actually commit commit treason, they
treason,
rebellion, will be held liable for
etc., it being sufficient treason, and the
that two or more conspiracy
which
persons agree and they
had
before
decide to commit it; committing treason is
and the crime was only a manner of
actually committed; incurring
criminal
and
liability, not treated as
a separate offense
but used to determine
the liability of the
offenders;
Felony relates to a Conspiracy is not
crime
actually treated as a separate
committed.
offense but is used to
determine the liability
of the offenders; and
The act of one is the
act of all.
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General Rule: When conspiracy as a manner of
incurring criminal liability is established, all who
participated therein, irrespective of the quantity or
quality of his participation is liable equally,
whether
conspiracy
is
pre-planned
or
instantaneous.
Exception: Unless one or some of the
conspirators committed some other crime which
is not part of the intended crime.
Exception to the Exception: When the act
constitutes a “single indivisible offense.”
Doctrine of Implied Conspiracy
When the defendants by their acts aimed at the
same object, one performing one part and the
other performing another part so as to complete
it, with a view to the attainment of the same object
and their acts, though apparently independent,
were in fact concerted and cooperative, indicating
closeness of personal association, concerted
action and concurrence of sentiments, the court
will be justified in concluding that said defendants
were engaged in a conspiracy.
Spontaneous Agreement
a. Active cooperation by all offenders;
b. Contributing by positive acts to the realization
of a common criminal intent; and
c. Presence during the commission of the crime
by a band and lending moral support thereto.
Proposal to Commit a Felony
When the person who has decided to commit a
felony proposes its execution to some other
person or persons.
The law does not require that the proposal be
accepted by the person to whom the proposal is
made.
Requisites:
1. A person has decided to commit a felony;
and
2. He proposes its execution to some other
person or persons
CRIMINAL LAW
Note: There is no criminal proposal when:
a. The person who proposes is not determined
to commit the felony;
b. There is no decided, concrete and formal
proposal; and
c. It is not the execution of the felony that is
proposed.
Note: Proof of conspiracy may be direct or
circumstantial. So long as the evidence
presented show a "common design or purpose"
to commit the crime, all of the accused shall be
held equally liable as co-principals even if one or
more of them did not participate in all the details
of the execution of the crime. For this reason, the
fact of conspiracy "must be proven on the same
quantum of evidence as the felony subject of the
agreement of the parties," i.e. proof beyond
reasonable doubt. Mere presence at the scene of
the crime is not by itself indicative of conspiracy
between the accused. (Benito v. People, G.R. No.
204644, J. LEONEN, February 11, 2015.)
If one fraternity attacks members of another
fraternity, considering the group mentality of
fraternities and the fact that fraternity members
usually act as one, it is quite possible that they
knew the identities of their attackers but chose not
to disclose it without conferring with their
fraternity brothers. If conspiracy is proven, the
liability of the assailants should not be
distinguished based on the seriousness of the
injuries suffered by the victims, because the “act
of one is the act of all” in crimes with conspiracy.
(People v Feliciano, G.R. No. 196735, J.
LEONEN May 5, 2014)
As a general rule, only public officials can be held
liable for violating the Anti-Graft and Corrupt
Practices Act. However, private persons may be
held liable if they act in conspiracy with a public
official. This is consistent with the policy behind
the statute, which is "to repress certain acts of
public officers and private persons alike which
may constitute graft or corrupt practices, or which
may lead thereto." If a private person may be tried
jointly with public officers, he or she may also be
convicted jointly with them. (Garcia-Diaz v.
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Sandiganbayan, G.R. 193236 & 193248-49, J.
LEONEN, September 17, 2018.)
c. Multiple Offenders
Four Forms of Repetition:
1. Recidivism (Art. 14, par. 9);
2. Reiteracion or habituality (Art. 14, par. 10);
3. Multi-recidivism or habitual delinquency (Art.
62, par. 5); and
4. Quasi-recidivism (Art. 160).
RECIDIVISM
A recidivist is one who, at the time of his trial for
one crime, shall have been previously convicted
by final judgment of another crime embraced in
the same title of the RPC. (People v. Lagarto,
G.R. No. 65833, 1991)
REQUISITES: (TPEC)
1. The offender is on Trial for an offense;
2. He was Previously convicted by final
judgment of another crime;
3. Both the first and the second offenses are
Embraced in the same title of the Code; and
4. The offender is Convicted of the new offense.
“At the time of his trial for one crime”
What is controlling is the time of trial, not the time
of the commission of the crime. It is sufficient that
the succeeding offense be committed after the
commission of the preceding offense, provided
that at the time of his trial for the second offense,
the accused had already been convicted of the
first offense.
Trial is meant to include everything that is done in
the course of the trial, from arraignment until after
sentence is announced by the judge in open
court.
Pardon does not prevent a former conviction from
being
considered
as
an
aggravating
circumstance, but amnesty extinguishes the
penalty and its effects.
CRIMINAL LAW
HABITUALITY (REITERACION)
Requisites: (TSC)
1. The accused is on Trial for an offense;
2. He previously Served sentence for another
offense to which the law attaches an equal or
greater penalty, or for 2 or more crimes to
which it attaches lighter penalty than that for
the new offense; and
3. He is Convicted of the new offense.
MULTI-RECIDIVISM or HABITUAL
DELINQUENCY
A person, within the period of 10 years from the
date of his last release or last conviction of the
crime of serious or less serious physical injuries,
robbery, theft, estafa or falsification, is found
guilty of any of said crimes a third time or oftener.
In habitual delinquency, the offender is either a
recidivist or one who has been previously
punished for two or more offenses. He shall suffer
an additional penalty for being a habitual
delinquent.
Effects of habitual delinquency:
1. Habitual delinquency has the effect, not only
of increasing the penalty because of
recidivism which is generally implied in
habitual delinquency, but also of imposing an
additional penalty.
i. Upon a third conviction, the culprit shall
be sentenced to the penalty provided by
law for the last crime of which he is
found guilty and to the additional
penalty of prisidn correccional in its
medium and maximum periods.
ii. Upon a fourth conviction, the culprit
shall also be sentenced to the additional
penalty of prisidn mayor in its minimum
and medium periods.
iii. Upon a fifth or additional conviction, the
culprit shall also be sentenced to the
additional penalty of prisidn mayor in its
minimum period to reclusion temporal
in its minimum period.
2. An accused who is a habitual delinquent will
not benefit from a favorable retroactive
application of a penal law (Article 22).
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3. In case of the commission of another crime
during service of penalty, a habitual delinquent
shall not be pardoned at the age of 70 years
even if he already served out his original
sentence (Article 160).
4. A habitual delinquent will not be entitled to the
one-half deduction from term of imprisonment
under Article 29.
5. The Indeterminate Sentence Law shall not
apply to those who are habitual delinquents
(Sec. 2, Act No. 4103).
E.g. If A was convicted of and served sentence for
theft in 1935; after his release he committed
homicide (Art. 249), was convicted in 1937, and
was released in 1951; and in 1957 was convicted
of rape (Art. 335); he is not a habitual delinquent
even if he was convicted the third time. Homicide
and rape are not mentioned in the definition of
habitual delinquency. (Molesa vs. Director of
Prisons, 59 Phil. 406, 408)
Requisites: (CAC)
1. The offender had been Convicted of any of
the crimes of serious or less serious physical
injuries, robbery, theft, estafa or falsification;
2. After that conviction or after serving his
sentence, and within 10 years from his first
conviction or release, he Again commits any
of said crimes for the second time;
3. After his conviction of, or after service
sentence for, the second offense, and within
10 years from his last conviction or last
release for said second offense, he again
Committed any of said crimes and also
convicted, the third time or oftener.
Any person who shall commit a felony after
having been convicted by final judgment, before
beginning to serve such sentence or while
serving the same, shall be punished by the
maximum period of the penalty prescribed by law
for the new felony.
QUASI-RECIDIVISM
Defendant, while serving his sentence in Bilibid
for one crime, struck and stabbed the foreman of
the brigade of prisoners. Under Article 160 of the
Code, he shall be punished with the maximum
period of the penalty prescribed by the law for the
new felony. (People vs. Durante, 53 Phil. 363,
372)
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COMPARATIVE TABLES
HABITUAL DELINQUENCY V. RECIDIVISM
HABITUAL DELINQUENCY
RECIDIVISM
As to crimes committed
The crimes arespecified.
The crimes must be embraced in the same title
of the Code.
As to the period of time the crimes are committed
The offender found guilty of any of the crimes
No period of time between the former conviction
specified within 10 years from his last release or last
and the last conviction is fixed by law.
conviction.
As to the number of crimes committed
The accused must be found guilty the third time or
A second conviction is sufficient.
oftener.
As to their effects
If there is habitual delinquency, an additional penalty is If not offset by a mitigating circumstance, serves
also imposed.
to increase the penalty only to the maximum.
HABITUAL DELINQUENCY V. HABITUALITY/REITERACION
HABITUAL DELINQUENCY
A final judgment has been rendered in the first offense.
The offenses must be included in the same title of the
Code.
Always taken as an aggravating circumstance.
HABITUALITY/REITERACION
It is necessary that the offender shall have
served out his sentence for the first offense.
The previous and subsequent offenses must not
be embraced in the same title of the Code.
Not always an aggravating circumstance.
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HABITUALITY/REITERACION
RECIDIVISM
Crimes involved
must be embraced
in the same title of
the Code.
Offender is on trial
for an offense and
is subsequently
convicted of the
new crime.
A generic
aggravating
circumstance.
HABITUAL
QUASI-RECIDIVISM
DELINQUENCY
AS TO CRIMES COMMITTED
Involves any crime.
The crimes are
Involves any crime (must
specified (serious or
be pointed out that the
less serious
second offense must be
physical injuries,
a felony, while the first
robbery, theft,
offense need not be).
estafa, or
falsification).
AS TO THE PERIOD OF THE CRIMES ARE COMMITTED
Offender previously served
After conviction and
Offender has been
sentence for another offense to
serving out his
convicted of an offense
which the law attaches an
sentence, offender
and commits another
equal or greater penalty, or for
is convicted again of
felony before or during
two or more crimes to which it
any of the second
serving sentence.
attaches lighter penalty than
crimes and that
that for the new offense.
after conviction and
serving out his
sentence for the
second crime,
offender again
committed and was
convicted within 10
years from his last
sentence or
conviction of any of
the crimes specified
the third time or
oftener.
AS TO THEIR EFFECTS
A generic aggravating
An extraordinary
A special aggravating
circumstance.
aggravating
circumstance.
circumstance
(imposes an
additional penalty).
———— end of topic ————
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IV. PENALTIES
General Principles
Penalty is the suffering that is inflicted by the
State for the transgression of the law.
Different Juridical Conditions of Penalty
(LEPPC3)
a. Legal: it is the consequence of a judgment
according to law;
b. Equal for all;
c. Productive of suffering without, however,
affecting the integrity of the human
personality;
d. Personal: no one should be punished for the
crime of another;
e. Commensurate with the offense: different
crimes must be punished with different
penalties;
f. Certain: no one must escape its effects; and
g. Correctional.
Theories Justifying Penalties
a. Prevention: to prevent or suppress the
danger to the State arising from the criminal
act;
b. Self-defense: to protect society from the
threat and wrong inflicted by a criminal;
c. Reformation: to correct and reform the
offender;
d. Exemplarity: the criminal is punished to
serve as an example to deter others from
committing crimes; and
e. Justice: that crime is punished by the State
as an act of retributive justice, a vindication of
absolute right and moral law violated by the
criminal.
Penalties That may be Imposed
General Rule: A felony shall be punishable only
by the penalty prescribed by law at the time of its
commission.
Note: Art. 21 implements the constitutional
prohibition against ex post facto laws. It reflects
the maxim that there is no crime without a penalty
and that there is no penalty without a law (nullum
crimen sine poena; nulla poena sine lege). But
as provided in Art. 22, ex post facto laws are
allowed if favorable to the accused.
General Rule:
prospectively.
Penal
laws
are
applied
Exception: When retrospective application will
be favorable to the person guilty of a felony,
provided that:
1. The offender is NOT a habitual criminal
(delinquent) under Art. 62(5); and
2. The new or amendatory law does NOT
provide against its retrospective application.
Rationale for the exception in art. 22:
Basis: Strict justice and not on political
considerations. The sovereign, in enacting
subsequent penal law more favorable to the
accused, has recognized that the greater severity
of the former law is unjust.
The sovereign would be inconsistent if it would
still enforce its right under the conditions of the
former law, which has already been regarded by
conscientious public opinion as juridically
burdensome.
Note: No retroactive effect even when favorable
to the accused – if the new law is expressly
made inapplicable to pending actions or existing
causes of action. (Tavera v. Valdez, 1 Phil 468,
1902).
HABITUAL DELINQUENT
A person who within a period of 10 years from the
date of his release or last conviction of the
crimes of serious or less serious physical injuries,
robbery, theft, estafa, or falsification, is found
guilty of any said crimes a third time or oftener.
Notes:
a. If retroactive effect of a new law is justified, it
shall apply to the defendant even if he is:
b. Presently on trial for the offense;
c. Has already been sentenced but service of
which has not begun; or
d. Already serving sentence.
e. The retroactive effect of criminal statutes
does NOT apply to the culprit’s civil liability.
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Reason:
a. The rights of offended persons or innocent
third parties are not within the gift of arbitrary
disposal of the State.
b. The provisions of Art. 22 are applicable even
to special laws, which provide more favorable
conditions to the accused.
ACT PROHIBITING THE IMPOSITION OF
DEATH PENALTY IN THE PHILIPPINES (R.A.
9346)
Note: Currently, the imposition of the death
penalty has been prohibited pursuant to Republic
Act No. 9346. (PLEASE SEE SPL REVIEWER,
ON RA. 9346).
Criminal liability under the repealed law
subsists:
1. When the provisions of the former law are
reenacted;
2. The right to punish offenses committed under
an old penal law is not extinguished if the
offenses are still punishable in the repealing
penal law;
3. When the repeal is by implication; or when
a penal law, which impliedly repealed an old
law, is itself repealed, the repeal of the
repealing law revives the prior penal law,
unless the language of the repealing statute
provides otherwise. If the repeal is absolute,
criminal liability is obliterated; and
4. When the repeal is absolute, the offense
ceases to be criminal. (People v. Tamayo,
G.R. No. L-41423, 1935).
5. When there is a saving clause.
PURPOSES
1. Retribution or expiation - the penalty is
commensurate with the gravity of the offense;
2. Correction or reformation - as shown by the
rules which regulate the execution of the
penalties consisting in the deprivation of
liberty; and
3. Social defense - shown by its inflexible
severity
to
recidivists
and
habitual
delinquents.
Notes:
a. No retroactive effect of penal laws as regards
jurisdiction of court.
b. Jurisdiction of the court to try a criminal action
is to be determined by the law in
c. Force at the time of instituting the action, not
at the time of the commission of the crime.
d. Jurisdiction of courts in criminal cases is
determined by the allegations of the
complaint or information, and not by the
findings the court may make after trial.
(People v. Romualdo, G.R. No. L- 3686,
1952)
d. According to L.B. Reyes, Art. 22 is NOT
applicable to the provisions of the RPC. Its
application to the RPC can only be invoked
where some former or subsequent law is
under consideration.
BILL OF ATTAINDER - A legislative act which
inflicts punishment without a trial.
a. Imposable Penalties
b. Classification
Notes:
a. The scale in Art. 25 is only a general
classification of penalties based on their
severity, nature and subject matter.
b. The scale of penalties under Art. 70 is
provided for successive service of sentences
imposed on the
same accused in
consideration of
their
severity
and
natures.
c. The scale in Art. 71 are for the purpose of
graduating the penalties by degrees in
accordance with the rules in Art. 61.
CLASSIFICATION OF PENALTIES BASED ON
THEIR NATURE
1. Principal: those expressly imposed by the
court in the judgment of conviction. It can be
further classified as follows:
a. Divisible: those which have fixed
duration and are always divisible into
three periods, namely: maximum,
medium, and minimum, e.g. prision
mayor;
b. Indivisible: those which have no fixed
duration. These are:
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i.
ii.
iii.
iv.
Death;
Reclusion Perpetua;
Perpetual
absolute
or
special disqualification; and
Public censure;
2. Accessory: those that are deemed included
in the imposition of the principal penalties,
namely:
a. Perpetual
or
temporary
absolute
disqualification;
b. Perpetual
or
temporary
special
disqualification;
c. Suspension from public office, the right to
vote and be voted for, the profession or
calling;
d. Civil interdiction;
e. Indemnification; and
f. Forfeiture or confiscation of instruments
and proceeds of the offense.
Note: Perpetual or temporary absolute
disqualification, perpetual or temporary special
disqualification, and suspension may be principal
or accessory penalties.
Examples:
1. Perpetual absolute disqualification is a
principal penalty in prevaricacion (Art. 204).
It is an accessory penalty of reclusion
perpetua and reclusion temporal.
2. Perpetual special disqualification is a
principal penalty in malversation (Art.217).
Also in Art. 214, 223, 229, 233,
3. and 346. It is an accessory penalty of prision
mayor and prision correccional.
4. Temporary absolute disqualification is a
principal penalty when the accessory acts
with abuse of public functions (Art. 19[3] and
Art. 58).
5. Temporary special disqualification is a
principal penalty in direct bribery (Art. 210).
Also in Articles 205, 214, 220, 223, 224, 226,
227, 228, 231, 235, 239, 245, 346, and 347.
6. Suspension is a principal penalty in rendition
of unjust interlocutory orders (Art. 206). Also
in Articles 200, 211, 266 and 365.
CLASSIFICATION ACCORDING TO SUBJECTMATTER (CDR-DP)
a. Corporal (death)
b. Deprivation of freedom (reclusion, prision,
arresto);
c. Restriction of freedom (destierro);
d. Deprivation of rights (disqualification and
suspension); and
e. Pecuniary (fine).
1.
2.
3.
4.
5.
CLASSIFICATION ACCORDING TO THEIR
GRAVITY (CA-CL-Co)
Capital:
a. Death (Now prohibited under RA 9346);
Afflictive:
a. Reclusion perpetua;
b. Reclusion temporal;
c. Perpetual
or
temporary
absolute
disqualification;
d. Perpetual or temporary special
disqualification; and
e. Prision mayor;
Correctional
a. Prision correccional;
b. Arresto mayor;
c. Suspension; and
d. Destierro;
Light:
a. Arresto menor; and
b. Public censure;
Penalties Common to the three preceding
classes:
a. Fine; and
b. Bond to keep the peace.
Notes:
1. This classification corresponds to the
classification of felonies in Art.9 into grave,
less grave, and light.
2. Public censure is imposed in Articles 200,
211, 266 and 365.
3. Bond to keep the peace is imposed only in
the crime of threats (Art. 284), either grave
(Art. 282) or light (Art. 283).
Fine is:
a. Afflictive – if it exceeds P1,200,000;
b. Correctional –P40,000 to P1,200,000; and
c. Light – less than P40,000.
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Bond to Keep the Peace is by Analogy:
a. Afflictive – if it exceeds P1,200,000;
b. Correctional – P40,000 to P1,200,000; and
c. Light – less than P40,000.
Notes:
a. This article determines the classification of a
fine whether imposed as a single (e.g. fine of
P200 to P6000) or as an alternative (e.g.
penalty is arresto mayor OR a fine ranging
from P200 to P1000) penalty for a crime.
b. The rule does not apply where the fine
involved is in a compound penalty, that is, it
is imposed in conjunction with another
penalty. In this case, the highest penalty shall
be made the basis for computing the period
for the prescription of crimes (Art. 90)
c. Where the fine in question is exactly P200
under Art. 9, it is a light felony, hence, the
felony involved is a light felony; whereas
under Art. 26, it is a correctional penalty;
hence, the offense involved is a less grave
felony.
d. It has been held that this discrepancy should
be resolved liberally in favor of the accused,
hence Art. 9 prevails over Art. 26. (People v.
Yu Hai, G.R. No. L-9598, 1956).
e. HOWEVER, according to Justice Regalado
there is no such discrepancy. What is really in
issue is the prescription of the offense vis-àvis the prescription of the penalty, the former
being the forfeiture of the right of the State to
prosecute the offender and the latter being
the loss of its power to enforce the judgment
against the convict.
f. In determining the prescription of crimes,
apply Art. 9 (P40,000 fine is light felony). In
determining the prescription of penalty, apply
Art. 26 (P200 fine prescribes in 10 years).
c. Duration and Effect
DURATION
PENALTY
Reclusion Perpetua
Reclusion Temporal
Prision Mayor and
temporary
disqualification
Prision correccional,
suspension, and
destierro
Arresto mayor
Arresto menor
Bond to keep the
peace
6 years and 1 day to
12 years, except
when the penalty of
disqualification
is
imposed
as
an
accessory penalty, in
which
case,
its
duration shall be that
of the principal
penalty
6 months and 1 day
to 6 years, except
when suspension is
imposed
as
an
accessory penalty, in
which
case,
its
duration shall be
that of the principal
penalty
1 month and 1 day
to 6 months
1 day to 30 days
Such period of time
as the court may
determine
Note: Destierro is a principal, correctional, and
divisible penalty
Cases When Destierro is Imposed:
1. Serious physical injuries or death under
exceptional circumstances (Art. 247);
2. In case of failure to give bond for good
behavior (Art. 284);
3. As a penalty for the concubine in
concubinage (Art. 334); and
4. In cases where after reducing the penalty by
one or more degrees, destierro is the proper
penalty.
Note: Reclusion perpetua is not the same as
imprisonment for life or life imprisonment.
DURATION
20 years and 1 day
to 40 years
12 years and 1 day
to 20 years
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RECLUSION
PERPETUA
Reclusion perpetua
entails imprisonment
for at least thirty [30]
years after which the
convict
becomes
eligible for pardon
Carries
with
it
accessory penalties
LIFE
IMPRISONMENT
The RPC does not
prescribe the penalty
of life imprisonment for
any of the felonies
therein defined, that
penalty
being
invariably imposed for
serious
offenses
penalized not by the
RPC, but by special
law.
Does not appear to
have
any
definite
extent or duration.
Does not carry with it
any accessory penalty,
COMPUTATION OF PENALTIES
Rules observed by the Director of Prisons or
the warden in computation of penalties
imposed upon the convicts:
1. Rule No. 1 when the offender is in prison
– the duration of temporary penalties is from
the day on which the judgment of
conviction becomes final, and not from the
day of his detention.
a. This rule applies in cases of temporary
penalties (e.g. temporary absolute
disqualification,
temporary
special
disqualification, and suspension) and the
offender is under detention (as when he
is undergoing preventive imprisonment)
Reason: Under Art. 24, the arrest and
temporary detention of the accused is not
considered a penalty.
2. Rule No. 2 when the offender is not in
prison – the duration of penalties consisting
in deprivation of liberty, is from the day that
the offender is placed at the disposal of
judicial authorities for the enforcement of the
penalty.
a. This rule applies in cases of penalties
consisting in deprivation of liberty (e.g.
imprisonment and destierro) and the
offender is not in prison.
3. Rule No. 3 the duration of other penalties
– the duration is from the day on which the
offender commences to serve his sentence.
a. This rule applies in cases of:
i.
(Penalties
consisting
in
deprivation of liberty) and the
offender
is
undergoing
preventive imprisonment; but the
offender is entitled to a deduction
of full time or 4/5 of the time of his
detention.
ii. (Temporary penalties) and the
offender is not under detention,
because the offender has been
released on bail.
Notes:
a. Service in prison begins only on the day the
judgment of conviction becomes final.
b. If in custody and the accused appeals, the
service of the sentence should commence
from the date of the promulgation of the
decision of the appellate court, not the trial
court’s.
EFFECT
EFFECTS
OF
THE
PENALTIES
OF
PERPETUAL OR TEMPORARY ABSOLUTE
DISQUALIFICATION (ART. 30)
a. Deprivation of the public offices and
employments which the offender may have
held, even if conferred by popular election;
b. Deprivation of the right to vote in any election
for any popular elective office or to be elected
to such office;
c. Disqualification for the offices or public
employments and for the exercise of any of
the rights mentioned; and
d. Loss of all rights to retirement pay or other
pension for any office formerly held.
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Notes:
a. PERPETUAL ABSOLUTE
DISQUALIFICATION is effective during the
lifetime of the convict and even after the
service of the sentence.
b. TEMPORARY ABSOLUTE
DISQUALIFICATION
i. General Rule: lasts during the term of
the sentence, and is removed after the
service of the same.
ii. Exceptions:
1. Deprivation of the public office or
employment (Effect no.1); and
2. Loss of all rights to retirement
pay or other pension for any
office formerly held (Effect no. 4).
Effects of Perpetual or Temporary Special
Disqualification (Art. 31)
a. Deprivation of the office, employment,
profession or calling affected; and
b. Disqualification for holding similar offices or
employments perpetually or during the term
of the sentence.
Effects of Perpetual or Temporary Special
Disqualification for the Exercise of the Right
of Suffrage (Art. 32)
a. Deprivation of the right to vote or to be
elected to any public office; and
b. Cannot hold any public office during the
period of disqualification.
Effects of Suspension from any Public Office,
Profession, or Calling, on the Right of
Suffrage (Art. 33)
a. Disqualification from holding such office or
exercising such profession or calling or right
of suffrage during the term of the sentence;
and
b. If suspended from public office, the offender
cannot hold another office having similar
functions during the period of suspension.
DISQUALIFICATION is the withholding of a
privilege, a restrictions upon the right of suffrage
or to hold office, and not a denial of a right.
CRIMINAL LAW
Purpose: To preserve the purity of elections; one
rendered infamous by conviction of felony or
other base offenses indicative of moral turpitude
is unfit to exercise such rights. (People v. Corral,
G.R. No. L-42300, 1936).
Effects of Civil Interdiction (Art. 34)
a. Deprivation of the rights of parental authority
or guardianship of any ward;
b. Deprivation of marital authority;
c. Deprivation of the right to manage his
property and of the right to dispose of such
property by any act or any conveyance inter
vivos;
d. But he can dispose of such property by will or
donation mortis causa; and
e. He can also manage or dispose of his
property by acts inter vivos, if done in his
behalf by a judicial guardian appointed for
him as an “incompetent.” (Sec. 2, Rule 92,
Rules of Court)
Civil interdiction is an accessory penalty to
the following principal penalties:
1. If death penalty is commuted to life
imprisonment;
2. Reclusion perpetua; and
3. Reclusion temporal.
Effects of Bond to Keep the Peace (Art. 35)
a. The offender must present two sufficient
sureties who shall undertake that the offender
will not commit the offense sought to be
prevented, and that in case such offense be
committed they will pay the amount
determined by the Court; or
b. The offender must deposit such amount with
the Clerk of Court to guarantee said
undertaking; or
c. The offender may be detained, if he cannot
give the bond, for a period not to exceed 6
months if prosecuted for grave or less grave
felony, or for a period not to exceed 30 days,
if for a light felony.
i. Bond to keep the peace is different from
bail bond which is posted for the
provisional release of a person arrested for
or accused of a crime. Bond to keep the
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peace or for good behavior is imposed as
a penalty in threats.
ii. Justice Regalado: It is believed that this
punitive sanction cannot be applied since
this bond is required only in the crime of
threats and if the offender fails to comply
therewith, the penalty imposable is
destierro (Art. 284). Neither can this
penalty apply to crimes under special laws
as only “felonies” (i.e. crime punished
under RPC) are contemplated therein.
d. Application
Rules as to subsidiary imprisonment
PENALTY IMPOSED
SUBSIDIARY
IMPRISONMENT
Prision correcional or Not exceed 1/3 of the
arresto and fine
term of the sentence,
and in no case to
continue for more
than one year.
Fine only
General Rule: The penalty prescribed by law in
general terms shall be imposed:
1. Upon the principals; and
2. For consummated felony.
Exception: When the law fixes a penalty for the
frustrated or attempted felony in cases where law
considers that the penalty lower by one or two
degrees corresponding to said acts of execution
is not proportionate to the wrong done.
Higher than prision
correcional
Penalty imposed is
not to be executed by
confinemend, but of
fixed duration
SUBSIDIARY IMPRISONMENT
Subsidiary penalty
It is a subsidiary personal liability to be suffered
by the convict who has no property with which to
meet the fine.
Notes:
a. Failure to pay the fine subjects the accused
to subsidiary imprisonment.
b. R.A. 10159, enacted on April 10, 2012
changed the subsidiary personal liability to be
suffered by the convict with no property with
which to meet the fine, at the rate of one day
for each amount equivalent to the highest
minimum wage rate (opposed to 8 pesos)
prevailing in the Philippines at the time of the
rendition of judgment of conviction by the trial
court.
c. Judgement of conviction must impose
subsidiary imprisonment.
d. Subsidiary imprisonment is not an accessory
penalty.
In case the financial
circumstances of the
convict should
improve
Note: Fraction or part
of a day, not counted.
Not exceed 6 months,
if the offender is
prosecuted for a
grave or less felony,
and not to exceed 15
days if prosecuted for
a light felony.
No
subsidiary
imprisonment
Subsidiary
penalty
shall consist in the
same deprivations as
those of the principal
penalty, under the
same rules above.
He shall pay the fine,
notwithstanding the
fact that the convict
suffered subsidiary
personal
liability
therefor
“The same deprivations as those of which
the principal penalty consists” (paragrapg 4,
Art. 39)
The subsidiary penalty is the same deprivations
as those of which the principal penalty consists
of. Thus, if the penalty imposed is imprisonment,
the subsidiary penalty must be imprisonment
also. If the penalty is destierro, the subsidiary
penalty must be destierro also.
No subsidiary penalty in the following cases:
1. When the penalty imposed is higher than
prision correcional.
2. For failure to pay the reparation of the
damage caused, indemnification of the
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consequential damages, and the cost of the
proceedings.
3. When the penalty imposed is a fine and a
penalty not to be executed by confinement in
a penal institution and which has no fixed
duration.
INDETERMINATE SENTENCE LAW (ISL)
Application on the imposed sentence:
The ISL consists of a maximum and minimum,
instead of a single fixed penalty. The prisoner
must be sentenced to imprisonment for a period
which is not more than the maximum and not less
than the minimum.
The prisoner must serve the minimum before he
is eligible for parole. The period between the
minimum and maximum is indeterminate in the
sense that the prisoner may be exempted from
serving said indeterminate period in whole or in
part.
The law does not impair the powers of the Chief
Executive under the Administrative Code.
Purpose: To uplift and redeem valuable human
material and prevent unnecessary and excessive
deprivation of liberty and economic usefulness.
(People v. Ducosin, G.R. No. L-38332, 1933).
Note: If a person rapes his 12-year-old foster
daughter, the indeterminate penalty of 14 years
and eight (8) months of reclusion temporal as
minimum to 20 years of reclusion temporal should
be imposed. Article 266-B(10) of the RPC states
that the penalty of reclusion temporal shall be
imposed if the rape through sexual assault is
committed with any of the 10 aggravating or
qualifying circumstances listed in paragraph 6.
Since
the
aggravating
or
qualifying
circumstances of relationship and minority are
present, the penalty of reclusion temporal
prescribed by the RPC under Article 266-B(10)
shall be in its maximum period.
Further, Article III, Section 5(b) of Republic Act
No. 7610 provides that "the penalty for lascivious
conduct when the victim is under twelve (12)
CRIMINAL LAW
years of age shall be reclusion temporal in its
medium period." The penalty of reclusion
temporal in its medium period is 14 years, eight
(8) months, and one (1) day to 17 years and four
(4) months. (People v. Pusing y Tamor, G.R. No.
208009, J. LEONEN, July 11, 2016)
PLEASE SEE SPL REVIEWER FOR A
COMPLETE DISCUSSION OF THE ISL p.
341
e. Graduation of Penalties
Graduation of Penalties Refers to:
1. By degree:
a. Stages of execution (consummated,
frustrated, attempted); and
b. Degree of the criminal participation of
the offender (principal, accomplice,
accessory);
2. By period:
a. Minimum, medium, maximum: refers to
the proper period of the penalty, which
should be imposed when aggravating
or mitigating circumstances attend the
commission of the crime
Graduated Scales for Lowering of Penalties
(Article 71)
1.Reclusion perpetua
2.Reclusion temporal
3. Prision mayor
4.Prision correccional
SCALE No. 1
5. Arresto mayor
7. Destierro
8. Arresto menor
9. Public censure
10. Fine
1. Perpetual absolute
disqualification
2.Temporary
absolute
disqualification
3.
Suspension
from
SCALE NO. 2
public office, the right to
vote and be voted for,
and the right to follow a
profession or calling
4. Public censure
5. Fine
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PENALTY
Article 71 provides the scales which should be
observed in graduating the penalties by degrees
in accordance with Article 61.
Illustration:
Arresto
Mayor
MAX
Med
min
Destierro
MAX
Penalty
prescribed
by law
Death, when
not executed by
reason of
commutation or
pardon
Reclusion
perpetua and
reclusion
temporal
ONE degree
lower
Med
min
TWO
degrees
lower
Prision mayor
This penalty two degrees lower from arresto
mayor in its medium and maximum periods is
destierro in its minimum and medium periods.
f. Accessory Penalties
Art. 25 classifies penalties into:
1. Principal penalties — those expressly
imposed by the court in the judgment of
conviction.
2. Accessory penalties — those that are
deemed included in the imposition of the
principal penalties.
Accessory Penalties:
a. Perpetual
or
temporary
absolute
disqualification,
b. Perpetual
or
temporary
special
disqualification,
c. Suspension from public office, the right to
vote and be voted for, the profession or
calling.
d. Civil interdiction,
e. Indemnification,
f. Forfeiture or confiscation of instruments and
proceeds of the offense,
g. Payment of costs.
Penalties in which other Accessory Penalties
Are Inherent:
Prision
correccional
Arresto
ACCESSORY
PENALTIES
1. Perpetual
absolute
disqualification; and
2. Civil interdiction for 30
years, if not expressly
remitted in the pardon.
1. Civil interdiction for life
or during the sentence;
and
2. Perpetual
absolute
disqualification, unless
expressly remitted in
the pardon of the
principal penalty.
1. Temporary
absolute
disqualification; and
2. Perpetual
special
disqualification
from
suffrage,
unless
expressly remitted in
the pardon of the
principal penalty.
1. Suspension
from
public
office,
profession or calling,
and
2. Perpetual
special
disqualifica tion from
suffrage, if the duration
of
imprisonment
exceeds 18 months,
unless
expressly
remitted in the pardon
of the principal penalty.
Suspension of the right to
hold office and the right of
suffrage during the term of
the sentence.
Notes:
a. Destierro has no accessory penalty
b. Accessory penalties need not be expressly
imposed as they are deemed imposed.
• Article 73 provides that whenever the
courts shall impose a penalty which, by
provision of law, carries with it other
penalties, it must be understood that the
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•
necessary penalties are also imposed
upon the convict.
———— end of topic ————
f.
V. EXECUTION AND SERVICE
a. Three-Fold Rule
Three-Fold Rule (ART. 70)
If an accused has to serve more than 3
sentences, he cannot be sentenced to more than
3 times the most severe penalty that may be
imposed on him for the various crimes he might
have committed.
Illustration: X is sentenced to suffer:
• 14 years, 8 months and 1 day (homicide)
• 17 years, 4 months, and 1 day (in another
case) — most severe penalty
• 14 years and 8 months (third case)
• 12 years (frustrated homicide)
The most severe penalty is 17 years, 4 months,
and 1 day. Three times the penalty is 52 years
and 3 days.
But since the law limits the duration of the
maximum term to not more than 40 years, X
will suffer 40 years only.
Purpose: (aside from the 40-year limit) To avoid
the absurdity of a man being sentenced to
imprisonment for a longer period than his natural
life.
Notes:
a. Applies although the penalties were imposed
for different crimes, at different times, and
under separate informations.
b. If the sentence is indeterminate, the basis of
the threefold-rule is the maximum sentence.
c. The maximum duration of the convict’s
sentence shall not exceed 3 times the length
of time corresponding to the most severe of
the penalties imposed upon him;
d. But in no case to exceed 40 years;
e. This rule shall apply only when the convict is
to serve 4 or more sentences successively.
If the convict has already served
sentence for one offense, that
imprisonment will not be considered for
the purpose of the three-fold rule.
Subsidiary imprisonment shall be excluded in
computing for the maximum duration.
b. Probation Law (P.D. No. 968)
PLEASE SEE DISCUSSION ON PD 968 IN
THE SPL REVIEWER p. 344
c. Juvenile Justice and Welfare Act of 2006
PLEASE SEE DISCUSSION IN THE SPL
REVIEWER p. 347
DISTINGUISHED
FROM
PREVENTIVE
IMPRISONMENT PERIOD OF PREVENTIVE
IMPRISONMENT DEDUCTED FROM TERM OF
IMPRISONMENT (ART. 29):
PREVENTIVE IMPRISONMENT is the period
of detention undergone by an accused where the
crime with which he is charged is non-bailable or,
even if bailable he is unable to post the requisite
bail.
RULES
IN
DEDUCTING
PERIOD
PREVENTIVE IMPRISONMENT:
OF
1. If the detention prisoner agrees voluntarily in
writing to abide by the same disciplinary rules
imposed upon convicted prisoners, he shall
be credited in the service of his sentence with
the full time during which he had undergone
preventive imprisonment.
2. If the detention prisoner does not agree to
abide by the same disciplinary rules imposed
upon convicted prisoners, he shall be
credited only with 4/5 the time during which
he has undergone preventive imprisonment.
Note: Under the Child and Youth Welfare Code
(PD 603), the youthful offender shall be credited
in the service of his sentence with the full time he
spent in actual confinement and detention. It is
not necessary that he agreed to abide by the
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disciplinary
prisoners.
rules
imposed
upon
convicted
Offenders not entitled to be credited with the
full time or four-fifths of the time of their
preventive imprisonment:
1. Recidivists or those convicted previously
twice or more times of any crime.
a. Habitual delinquents are not entitled
to credit of time under preventive
imprisonment
since
he
is
necessarily a recidivist.
2. Those who, upon being summoned for the
execution of their sentence, failed to
surrender voluntarily (convicts who failed
to voluntarily surrender under a final
judgment; not those who failed or refused to
voluntarily surrender after the commission of
the crime)
Notes:
a. Credit is given in the service of sentences
consisting
of
deprivation
of
liberty
(imprisonment and destierro), whether
perpetual or temporal.
b. The accused shall be released immediately
whenever he has undergone preventive
imprisonment for a period equal to or more
than the possible maximum imprisonment for
offense
charged.
c. If the penalty imposed is arresto menor to
destierro, the accused who has been in
prison for 30 days (arresto menor to 30 days)
should be released because although the
maximum penalty is destierro (6 months and
1 day to 6 years), the accused sentenced to
such penalty does not serve it in prison.
d. Republic Act No. 10951
An Act Adjusting the Amount or the Value of
Property and Damage on Which a Penalty is
Based and the Fines Imposed Under the
Revised Penal Code
Article 9
Light felonies are
those infractions of
law
or
the
commission of which
the penalty of arresto
menor or a fine not
exceeding P40,000
or both is provided.
Afflictive penalty –
exceeds P1,200,000
Article 26
Correctional penalty
– If it does not
exceed P1,200,000
but is not less than
P40,000
Light penalty – Less
than P40,000
———— end of topic ————
VI. Extinction of criminal liability
Total Extinction of Criminal Liabilities (Art.
89):
1. Death of the convict
• Whether before or after final judgment
2. Service of sentence
3. Amnesty, which completely extinguished the
penalty and all its effects
• Amnesty: act of the sovereign power
granting oblivion or general pardon for
past offense, exerted in favor of a class
of persons
• Amnesty may be granted after
conviction
4. Absolute pardon
• Pardon: act of grace proceeding from
the power which executes the law
exempting
an
individual
from
punishment of crime committed
• The pardon must be absolute and must
be accepted by the convicted person
Amnesty v. Pardon
AMNESTY
Political offenses
A class of person or
communities
May be exercised
even before trial or
investigation
PARDON
Any offense
An
individual
is
pardoned
Individual is already
convicted
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Looks backward and
abolishes the offense
itself (thus an exconvict will no longer
be a recidivist)
Looks forward and
relieves offender of
consequences of the
offense
he
was
convicted of (exconvict will remain a
recidivist)
5. Prescription of the crime
6. Prescription of the penalty
• Forfeiture of right of government to
execute final sentence
• Requisites:
1. Penalty is imposed by final
sentence
2. Convict evaded the service of the
sentence by escaping during the
term of his sentence
7. Marriage of the offended woman (as
provided in Art. 344)
Note: In cases of seduction, abduction, acts of
lasciviousness, and rape, the marriage of the
offender with the offended party shall
extinguish the criminal action or remit the
penalty already imposed upon him. The
provisions of this paragraph shall also be
applicable to the co-principals, accomplices
and accessories after the fact of the
abovementioned crimes. (Art. 344, RPC)
Marriage of the offender with the offended woman
AFTER the commission of any of the crimes of
rape, seduction, abduction or acts of
lasciviousness must be contracted by the
offender in GOOD FAITH. (People vs. Santiago,
51 Phil. 68, 70)
—How about in rape?
In cases of rape, under Article 266-C, the
subsequent valid marriage between the
offended party (and the rape victim) shall
extinguish the criminal action or the
penalty imposed, only as to the principal.
Note: When the accused dies during the
pendency of his appeal, his criminal liability has
already been extinguished. Considering that his
CRIMINAL LAW
death pending appeal extinguishes his criminal
liability and civil liability ex delicto, the criminal
action must be dismissed since there is no longer
a defendant to stand as the accused. From that
point on, the criminal action had no defendant
upon which the action is based. (Tuano y
Hernandez v. People, G.R. 205871, J. LEONEN,
September 28, 2016)
Prescription of Crimes (Art. 90)
PENALTY OF
PRESCRIPTIVE
OFFENSE
PERIOD
Death, reclusion
20 years
perpetua, reclusion
temporal
Afflictive penalties
15 years
Correctional penalty
10 years
(except arresto
mayor)
Arresto mayor
5 years
Computation of Prescription of Offenses
a. Period of prescription commences to run from
the date of commission or from the date of
discovery
b. In computing the period for prescription,
exclude the first day and include the last
c. When the last day falls on a Sunday or legal
holiday, the information can no longer be filed
on the next day as the crime has already
prescribed. (Yapdiangco v Buencamino, No.
L- 28841, June 24, 1983)
d. It is interrupted by the filing of the complaint
or information and commences to run again
when the proceedings terminate without the
accused being convicted or acquitted or
unjustifiably stopped for any reason not
imputable to him.
e. Prescription does not run when the offender
is absent from the Philippines.
f. When the penalty is compound, the highest
penalty is the basis for the application of the
rules in Art. 90
g. Where there is an alternative penalty of fine,
which is higher than the penalty of
imprisonment, prescription of the crime will
be based on the fine
h. Consider the penalty prescribed by law
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Prescription of Penalties (Art. 92)
PENALTY
PRESCRIPTIVE
PERIOD
Death and reclusion
20 years
perpetua
Other afflictive
15 years
penalties
Correctional
10 years
penalties (except
arresto mayor)
Light penalties
1 year
Computation of Prescription of Penalties
a. Commences to run from the date when the
culprit evaded the service of his sentence
b. Interrupted when the convict
i. Gives himself up
ii. Is captured
iii. Goes to a foreign country with no
extradition treaty
iv. Commits another crime before the
expiration of the period of prescription
v. Acceptance of conditional pardon
(People v Puntillas, G.R. No. 45267,
June 15, 1938)
c. Where the accused was never placed in
confinement, the period for prescription never
starts to run in his favor. (Pangan v Hon.
Gatbalite, et al., G.R. No. 141718, January
21, 2005)
Prescription of felonies v. Prescription of
penalties
PRESCRIPTION OF
PRESCRIPTION OF
FELONIES
PENALTIES
The forfeiture or loss The loss or forfeiture
ofthe right ofthe State of the right of the
to
prosecute
the Government
to
offender after the execute the final
lapse of a certain sentence after the
time.
lapse of a certain
time.
Partial Extinction of Criminal Liability
a. Conditional pardon (Art. 95)
CRIMINAL LAW
• Usual condition imposed: that he shall
not again violate any of the penal laws of
the Philippines
b. Commutation of sentence (Art. 95)
Examples:
• Convict sentenced to death is over 70
(Art. 83)
• 8 SC Justices fail to reach decision of
affirmance of death penalty
c. Good conduct allowances which the culprit
may earn while he is serving his sentence
(Art. 95)
• Deductions of term of sentence for good
behavior (Art. 97)
• Special time allowance for loyalty (Art.
98)
d. Parole granted by Parole Board (Reyes The
Revised Penal Code, Book 1, 2011)
• Parole: suspension of the sentence of a
convict after serving the minimum of the
indeterminate penalty without the grant of
pardon
Conditional Pardon v. Parole
CONDITIONAL
PAROLE
PARDON
Granted by Chief
Granted by the
Executive
Board of Pardons
and Parole
Basis is
Basis is the
Administrative Code
Indeterminate
Sentence Law
Give any time after
Given after prisoner
final judgment
has served the
minimum penalty
Violation of
Violation of parole
conditional pardon
may lead to
may result in
reincarceration for
reincarceration and
service of unserved
prosecution under Art potion of original
159 (evasion of
penalty without
service of sentence)
prosecution for Art.
159.
Allowance for Good Conduct
LENGTH OF
ALLOWED
SENTENCE
DEDUCTION PER
SERVED
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First 2 years
3rd to 5th year
6th to 10th year
11th year onwards
MONTH OF GOOD
BEHAVIOR
5 days
8 days
10 days
15 days
Note: No allowance for good conduct while the
prisoner is released under a conditional pardon
(People v Martin, 68 Phil. 122)
Special Time Allowance for Loyalty
A deduction of one fifth (1/5) of the period of
sentence is granted to any prisoner who, having
evaded his prevented imprisonment or the
service of his sentence, under the following
circumstances:
a. On the occasion of disorder resulting from a
conflagration, earthquake, explosion, or
similar catastrophe, or
b. During a mutiny in which he has not
participated —
gives himself up to the authorities within 48 hours
following the issuance of a proclamation
announcing the passing away of the calamity or
catastrophe.
A deduction of two-fifths (2/5) of the period of his
sentence shall be granted in case said prisoner
chose to stay in the place of his confinement
notwithstanding the existence of a calamity or
catastrophe.
———— end of topic ————
VII. CIVIL LIABILITIES IN CRIMINAL CASES
Every Person Criminally Liable for a Felony is
also Civilly Liable (Art. 100)
Two Classes of Injuries:
1. Social Injury
2. Personal Injury
SOCIAL INJURY
Produced by the
disturbance
and
alarm which are the
outcome
of
the
offense
Repaired through the
imposition of the
corresponding
penalty
PERSONAL INJURY
Caused to the victim
of the crime who may
have
suffered
damage to either
his/her
person,
property, honor, or
chastity
Indemnity is civil in
nature
What is included in civil liability (Art. 104)
1. Restitution
• The exact thing unlawfully taken must be
restored even if found in possession
of third person who acquired it through
lawful means
• General Rule: restitution is limited to
crimes against property
2. Reparation of damage caused
• If restitution is not possible
• Generally refers to crimes against
property
3. Indemnification of consequential damages
• Generally refers to crimes against
persons
• Not only damages suffered by injured
party but also those suffered by his family
or third persons by reason of the crime
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Civil Liability v. Pecuniary Liability
CIVIL LIABILITY
PECUNIARY
(Art. 104)
LIABILITY (Art. 38)
Reparation of damages caused
Indemnification for consequential damages
Includes restitution
No restitution as in
pecuniary
liability,
liability is paid out of
property of offender.
In restitution, property
unlawfully taken is
returned
Does not include
Includes fines and
fines or costs of the
costs of the
proceedings
proceedings
Damages That May be Recovered in Criminal
Cases:
OFFENSE
DAMAGE
AWARDED
Crimes against
Damages is based
property
on price of the thing
and sentimental
value to injured party
if the thing itself
cannot be restored.
Crimes
against Whatever the injured
persons (i.e. physical party spent for the
injuries)
treatment
of
his
wounds,
doctor’s
fees, and unearned
wages by reason of
inability
to
work
because
of
the
injuries. (In case of
temporary
or
permanent personal
injury, damages for
loss or impairment of
earning capacity may
be awarded.)
Criminal
offenses Moral damages
resulting in physical
injuries, in crimes of
seduction, abduction,
rape
or
other
lascivious
acts,
adultery,
concubinage, illegal
or arbitrary detention
or
arrest,
illegal
search, libel, slander,
defamation,
and
malicious prosecution
Offense
committed
with one or more
aggravating
circumstance
Exemplary damages
Notes:
a. If there is no damage caused by the
commission of the crime, the offender is not
civilly liable.
b. Acquittal in a criminal case does not
necessarily mean the extinction of accused’s
civil liability.
• Eg. Acquittal on reasonable doubt,
acquittal
from
a
cause
of
nonimputability, acquittal in the criminal
action for negligence, when there is
only civil liability, independent civil
actions.
c. A person exempt from criminal liability under
Art 12 is not necessarily exempt from civil
liability.
• Except:
• Par 4, Art 12, for injury caused by
mere accident
• Par 7, Art 12, for failure to perform
an act required by law when
prevented by some lawful or
insuperable cause.
d. There is no civil liability in justifying
circumstances (Art 11).
e. Civil liability is extinguished in the same
manner as other obligations (i.e. payment,
performance, loss of the thing due)
———— end of topic ————
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CRIMES UNDER
THE REVISED
PENAL CODE
Criminal Law
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II. CRIMES UNDER THE REVISED PENAL
CODE
CRIMINAL LAW
A. CRIMES AGAINST NATIONAL SECURITY
AND THE LAWS OF NATIONS
Chapter 1: Crimes against National Security
TOPIC OUTLINE UNDER THE SYLLABUS:
Section 1. – Treason and Espionage
II. CRIMES UNDER THE REVISED PENAL
CODE
A. CRIMES AGAINST NATIONAL SECURITY
AND LAWS OF NATIONS
B. CRIMES AGAINST THE FUNDAMENTAL
LAW OF THE STATE
C. CRIMES AGAINST PUBLIC ORDER
D. CRIMES AGAINST PUBLIC INTEREST
E. CRIMES AGAINST PUBLIC MORALS
F. CRIMES COMMITTED BY PUBLIC
OFFICERS
G. CRIMES AGAINST PERSONS
H. CRIMES AGAINST PERSONAL LIBERTY
AND SECURITY
I.
CRIMES AGAINST PROPERTY
J. CRIMES AGAINST CHASTITY
K. CRIMES AGAINST THE CIVIL STATUS OF
PERSONS
L. CRIMES AGAINST HONOR
M. QUASI-OFFENSES
Art. 114 Treason
Treason is a breach of allegiance to a
government committed by a person who owes
allegiance to it.
Elements: (FRAP- LAW)
1. that the offender (a Filipino citizen or a
Resident Alien) owes allegiance to the
Government of the Philippines
2. the offender either:
a. Levies war against the Government; or
b. Adheres to the enemies by giving them
aid or comfort
3. that there is a War in which the Philippines is
involved
Allegiance
Obligation of fidelity and obedience which the
individuals owe to the government under which
they live or to their sovereign, in return for
protection they receive. (Laurel v Misa, GR No. L409, January 30, 1947)
Can treason committed in a foreign country
be prosecuted in the Philippines?
Yes. Treason committed in a foreign country may
be prosecuted in the Philippines. (Art. 2, RPC)
Place of commission of crime
1. Filipino citizen: anywhere since he owes
permanent allegiance which consists in the
obligation of fidelity and obedience which a
citizen or subject owes to his government or
sovereign;
2. Alien: only in the Philippines except in case of
conspiracy. An alien owes only temporary
allegiance to the country where he resides.
Temporary allegiance is the obligation of
fidelity and obedience which a resident alien
owes to the Philippine Government.
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Nature of Treason
Treason is a war crime (hence, cannot be
committed during a time of peace), punished by
the state as a measure of self-defense and selfpreservation. (Concurring Opinion of Justice
Perfecto, Laurel v. Misa, G.R. No. L-409, January
30, 1947)
Punishable Acts
1. Levying war – requires concurrence of:
a. An actual assembling of men; and
b. For the purpose of executing a
treasonable design by force;
2. Adherence to enemies – requires
concurrence of:
a. Actual adherence to the enemies; and
b. Giving aid or comfort to them.
Notes on Treason by Levying War
Intent to Overthrow Government
Levying war must be with intent to overthrow the
government, not merely to resist a particular
statute or to repel a particular officer. It matters
not how vain and futile the attempt was and how
impossible its accomplishment.
Not necessary that there be a Formal
Declaration of War
In treason by levying war, it is not necessary that
there be a formal declaration of the existence of
a state of war. Actual hostilities may determine
the date of the commencement of war.
(Concurring Opinion of Justice Perfecto, Laurel v.
Misa, G.R. No. L-409, January 30, 1947)
Levying in Collaboration with a Foreign
Enemy
If the levying of war is done in collaboration with
a foreign enemy but is merely a civil uprising
without any intention of helping an external
enemy, the crime is not treason. The offenders
may be held liable for rebellion. (Luis B. Reyes,
The Revised Penal Code Book Two p. 6, 2017)
CRIMINAL LAW
Notes on Treason by Adherence to Enemies
Adherence to enemies
Intent to betray; when a citizen intellectually or
emotionally favors the enemy and harbors
sympathies or convictions disloyal to his
country’s policy or interest. (Cramer v US, 65
Sup. Ct. 918, April 23, 1945)
Adherence without Physical Manifestations
Mere
adherence
without
its
physical
manifestation through the giving of aid or comfort
to the enemy does not suffice. They must concur.
(People v Tan, PC, 42 O.G. 1263)
Enemy
The term enemy should refer to a foreign country
(US v Lagnayon, 3 Phil 478). It applies only to the
subjects of a foreign power in a State of hostility
with the traitor’s country because this Article
treats of circumstances of war. It does not
embrace rebels in insurrection against their own
country, for in that case the crime would be
rebellion. (Reyes, Book Two)
Aid or Comfort
Act which strengthens or tends to strengthen the
enemy in the conduct of war against the traitor’s
country and an act which weakens or tends to
weaken the power of the traitor’s country to resist
or to attack the enemy. (Cramer v US, 65 Sup. Ct.
918, April 23, 1945)
Extent of Aid or Comfort
It must be a deed or physical activity, such as acts
furnishing the enemy with arms, troops, supplies,
information or means of transportation, and not
merely a mental operation. (Reyes, Book Two, p.
7)
The overt act must be intentional. There is no
treason through negligence. (Reyes, Book Two,
p. 11)
Giving information to, or commandeering
foodstuffs for, the enemy is evidence of both
adherence and aid or comfort. (Reyes, Book Two,
p. 7)
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Effect when efforts to aid not successful
Not essential that the effort to aid be successful,
provided overt acts are done which if successful
would advance the interest of the enemy (People
v Alarcon, GR No. L-407, July 28, 1947)
Acceptance of public office and discharge of
official duties under the enemy
Mere acceptance of public office and discharge of
official duties under the enemy do not constitute
the felony of treason. But when the position is
policy- determining, the acceptance of public
office and the discharge of official duties
constitute treason.
Policy-Determining – Officials who defined the
norm of conduct that all offices and officials under
the department he headed had to adopt and
enforce, and helped in the propagation of the
creed of the invader, and the acts and utterances
of the accused while holding the position which
were done in earnest implement of such policy,
and the acceptance of such public office and
discharge of such official duties constitute
treason. (People v Sison, P.C., 42 O.G. 748)
Acts not considered as treason
1. Commandeering of women merely to satisfy
the lust of the enemy (People v Perez, GR
No. L-856, April 18, 1949)
2. Marriage of the accused to a Japanese
woman and employment as an interpreter
(People v Bascon, GR No. L-1548, Match 29,
1949)
Other Acts Considered as Treason
Serving as informer and active member of the
Japanese Military Police (People v Fernando, GR
No L-1138, December 17, 1947)
Ways to prove:
1. Treason (Overt act of giving aid or
comfort)
a. Testimony - at least 2 witnesses to the
same overt act; or
b. Judicial confession of the accused in
open court.
2. Adherence
a. One witness;
b.
c.
Nature of act itself; or
Circumstances surrounding the act.
Two-witness rule:
Testimonies need not be identical, but must
relate to the same overt act (Hauft v. United
States, 67 S. Ct. 874). It is sufficient that the
witnesses are uniform in their testimonies on the
overt act; not necessarily that there be a
corroboration between them on the point they
testified on (People v. Concepcion G.R. No. L1853, October 25, 1949).
The two-witness rule is severely restrictive;
hence, each of the witnesses must testify to the
whole overt act; or if it is separable, there must be
two witnesses to each part of the overt act
(People v. Escleto, G.R. No. L-1006, June 28,
1949).
Reason for two-witness rule:
The special nature of the crime requires that the
accused be afforded a special protection not
required in other cases so as to avoid a
miscarriage of justice. (Concurring Opinion of
Justice Perfect in El Pueblo de Filipinas v.
Marcaida, GR No. L-953, September 18, 1947)
When court believes in only 1 witness
The two-witness rule is not satisfied if the court
believes in only one witness (People v Adriano,
GR No. L-477, June 30, 1947)
Witnesses not uniform on some points
It is not sufficient to entirely discredit testimonies
of witnesses if the deficiency refers merely to
minor details. (People v Lansanas, GR No. L1622, December 2, 1948)
Confession of guilt by the accused in open
court
The confession in open court, upon which a
defendant may be convicted for treason, is a
confession of guilt. The section cannot be
extended so as to include admissions of fact, from
which his guilt may be inferred, made by the
defendant in giving his testimony after a plea of
not guilty. (US v Magtibay, GR No. L-1317,
November 23, 1903)
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Extrajudicial
confession
made
before
investigators is not sufficient. (Reyes, Book Two,
p. 16)
Circumstances inherent in Treason: (EAT)
1. Evident premeditation;
2. Abuse of Superior Strength; and
3. Treachery (People v. Adlawan, 83 Phil 195;
People v. Racaza, 82 Phil 623)
Aggravating circumstances in Treason:
(ICAG)
1. Ignominy;
2. Cruelty;
3. Amount or degree of aid; and
4. Gravity or seriousness of the acts of treason.
Treason is a continuous offense
Treason is a continuous offense. (People v.
Victoria, G.R. No. L-369 March 13, 1947)
Quantity of evidence required for conviction
Proof of one count is sufficient for conviction.
(People v. San Juan, G.R. No. L-2997, June 29,
1951)
Defenses in Treason
DEFENSES
Duress or
uncontrollable fear;
and
Obedience to de
facto government.
NOT A DEFENSE
Suspended
allegiance; and
Joining the enemy
army
thus
becoming a citizen
of the enemy.
Treason cannot be complexed with other
crimes
There is no complex crime of treason with murder
or physical injuries. (People v. Prieto 80 Phil. 138)
This is because, when the deed is charged as an
element of treason, it becomes identified with the
latter crime and cannot be the subject of a
separate punishment, or used in combination with
treason to increase the penalty which Art.48 of
the RPC provides. (People v Hernandez, GR No.
L-6025, July 18, 1956)
CRIMINAL LAW
When common crimes may be considered
separately from crime of Treason
Common crimes such as murder, physical
injuries, kidnapping, illegal detention, or robbery
may be considered separately from the crime of
treason when they are committed for a private or
personal purpose or motive and not for the
purpose of ‘giving aid or comfort to the enemy’ as
an element of treason. (1 AMURAO, Book Two)
Art. 115. Conspiracy and Proposal to Commit
Treason
Elements:
1. Proposal to Commit Treason
a. In times of War;
b. A Person who has decided to levy war
against the government, or to Adhere to
the enemies and to give them aid or
comfort; and
c. Proposes its execution to some other
person/s.
2. Conspiracy to Commit Treason
a. In times of War;
b. Two Or More persons come to an
Agreement to i. Levy war against the government;
or
ii. Adhere to the enemies and to give
them aid or comfort; and
c. They Decide to commit it.
Conspiracy and Proposal to commit a felony
as a general rule
As a general rule, conspiracy and proposal to
commit a felony is not punishable. (Art. 8) Art.
115 is an exception as it specifically penalizes
conspiracy and proposal to commit treason.
Proposal if accepted
Mere proposal even without acceptance is
punishable. If the other accepts, it is already
conspiracy.
Effect when the acts of Treason are
committed after Conspiracy or Proposal
If acts of treason are committed after the
conspiracy or proposal, the crime committed
will be treason, and the conspiracy or proposal is
considered as a means in the commission
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thereof. The act of conspiracy and proposal are
absorbed therein.
Two-Witness Rule not Applicable
Two-witness rule – not applicable since this is a
crime separate and distinct from treason.
Art. 116. Misprision of Treason
Misprision of treason is the failure of a citizen
to report as soon as possible a conspiracy,
which comes to his knowledge, against the
government. But there must be a war in which
the Philippines is involved. (BOADO, RPC
and SPL)
Elements:
1. That the offender is a citizen of the
Philippines, and not a foreigner;
2. That he has knowledge of any conspiracy
against the Government;
3. That the conspiracy is one to commit treason;
4. That he conceals or does not disclose and
make known the same as soon as possible to
the proper authority
Can a resident alien commit the crime of
misprision?
No. A resident alien cannot commit misprision of
misprision. Art. 116 expressly provides “without
being a foreigner”.
When misprision not applicable
Art. 116 does not apply when treason is already
committed by someone and the accused does not
report its commission. (Reyes, Book Two, p. 20)
Offender as accessory to treason, but a
principal in the crime of misprision
The offender under Article 116 is punished as an
accessory to the crime of treason, which is two
degrees lower than the penalty for treason, but is
a principal offender in the crime of misprision of
treason. Misprision is a separate and distinct
offense from the crime of treason (Reyes, Book
Two, p. 21)
CRIMINAL LAW
To whom conspiracy must be reported
RPC mentions 4 individuals to whom the
conspiracy must be reported [i.e. 1) governor, 2)
provincial fiscal, 3) mayor, or 4) city fiscal], but
what if you report to some other high-ranking
government official? (ex: PNP Director)? Judge
Pimentel says any government official of the
DILG is OK.
Art.116 Exception to Rule that mere silence
does not make person criminally liable.
Failure to report violations of the law is not a
crime, except in certain cases. Art. 116 is an
exception to the rule that mere silence does not
make a person criminally liable. (People v
Saavedra, GR No. L-49738, May 18, 1987)
Art. 117. Espionage
Espionage is the offense of gathering,
transmitting, or losing information with respect
to the national defense, with intent or reason
to believe that the information is to be used to
the injury of the Republic of the Philippines or
the advantage of a foreign nation.
Punishable Acts (modes of committing
Espionage):
1. By entering, without authority, upon a
warship, fort, or military or naval
establishment or reservation to obtain any
information, plans, photographs or other data
of confidential nature relative to the defense
of the Philippines
2. By disclosing to the representative of a
foreign nation the contents of the articles,
data or information referred to in the
preceding paragraph, which he had in his
possession by reason of the public office he
holds
Persons liable:
1. First mode:
ANY person whether:
a. Filipino citizen OR resident alien
(foreigner); or
b. Private individual or a public officer; and
2. Second mode:
a. A public officer
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CRIMINAL LAW
Elements:
1. By entering without authority, upon a warship,
fort or military or naval establishment or
reservation
a. that the offender enters any of the places
mentioned;
b. that he has no authority therefor;
c. that his purpose is to obtain information,
plans, photographs or other data of a
confidential nature relative to the defense
of the Philippines
2. By disclosing to the representative of a
foreign nation the contents
a. that the offender is a public offender;
b. that he has in his possession the articles,
data, or information referred to in par.1 by
reason of the public office he holds;
c. that he discloses their contents to a
representative of a foreign nation
10. Destroying or injuring or attempting to injure
or destroy war material (when the country is
at war) or national defense material,
premises or utilities (Even if the country is not
at war); and
11. Making or causing to be made, in a defective
manner, or attempting to make, war material
(when the country is at war) or national
defense material (even if the country is not at
war)
An Act To Punish Espionage And Other
Offenses Against National Security (C.A. No.
616)
Is it necessary that the offender succeeds in
obtaining information?
In the first mode of committing the felony (that is,
Art. 117), it is not necessary that the offender
succeeds in obtaining the information.
Acts punishable:
1. Unlawfully obtaining or permitting to be
obtained information affecting national
defense;
2. Unlawful disclosing of information affecting
national defense;
3. Disloyal acts or words in time of peace (i.e.
causing in any manner insubordination,
disloyalty, mutiny or refusal of duty of any
member of the military, naval, or air forces of
the Philippines);
4. Disloyal acts in time of war;
5. Conspiracy to commit the foregoing acts;
6. Harboring or concealing violators of the law
(i.e. the offender harbors a person whom he
knows as someone who committed or is about
to commit a violation of this Act);
7. Photographing, from aircraft, of vital military
information;
8. Using, permitting or procuring the use of an
aircraft for the same purpose of violation No.7
9. Reproducing, publishing, selling, or giving
away of uncensored copies of those
mentioned under No.7 without the permission
of the commanding officer or higher authority;
Element of being a public officer
Being a public officer is a requirement in the
second mode, while it is only aggravating in the
first.
Is wiretapping considered espionage?
No. Wiretapping is not espionage if the purpose
is not connected with defense.
Espionage and Treason, Distinguished.
ESPIONAGE
TREASON
As to condition of citizenship
Both are crimes not conditioned by the
citizenship of the offender
As to when they should be committed
May be committed
Is committed only in
both in time of
time of war
peace and in time
of war
As to manner of commission
May be committed Limited to 2 ways:
in many ways not 1. Levying war; and
only because of Art. 2. Adhering to the
116 but in view of
enemy,
giving
the passage of C.A.
them
aid
or
No. 616
comfort
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Section Two: Provoking War and Disloyalty In
Case of War
Art. 118. Inciting To War or Giving Motives for
Reprisals
Unlawful or unauthorized acts of an individual
which provoke or give occasion for a war
involving or liable to involve the Philippines or
expose Filipinos to reprisals on their persons
or property
Elements:
1. Offender Performs Unlawful or unauthorized
acts; and
2. Such acts Provoke or give occasion for a war
involving or liable to involve the Philippines or
expose Filipino citizens to reprisals on their
persons or property
When crime committed
The crime is committed only in times of peace.
Is intent of offender material?
Intent of the offender is immaterial.
Person of the offender
In inciting to war, the offender is any person. If the
offender is a public officer, the penalty is reclusion
temporal, while the penalty for a private individual
is prision mayor.
Reprisal
It is an act of self-help on the part of the injured
state, responding (after an unsatisfied demand
for redress) to an act contrary to international law
on the part of the offending state. (Naulilaa
Incident Arbitration, Portugese-German Arbitral
Tribunal, 1928)
Reprisals are not limited to military action; it could
be economic in nature, or consist of denial of
entry into the offended country.
Art. 119. Violation of Neutrality
refers to an any act which violates any
regulation issued by competent authority for
the purpose of enforcing neutrality
CRIMINAL LAW
Elements:
1. War in which the Philippines is Not Involved;
2. For the Purpose of Enforcing neutrality, a
Regulation is issued by competent authority;
and
3. That the offender Violates such
Neutrality
It is the condition of a nation that, in times of war,
takes no part in the dispute but continues
peaceful dealings with the belligerents. There
must be a regulation issued by competent
authority for the enforcement of neutrality.
When crime committed
The crime is committed only in times of peace in
the Philippines, but in times of war
between/among other states.
Philippines should not be part of the war
It is the neutrality of the Philippines that is
violated. Philippines should not be a party to the
war.
Art. 120. Correspondence with Hostile
Country
Any person who, in time of war, shall have
correspondence with an enemy country or
territory occupied by enemy troops, in any of
the modes of commission indicated in Art.
120.
Elements:
1. A WAR in which the Philippines is Involved;
2. That the offender makes Correspondence
with an enemy country or territory occupied
by enemy troops;
3. That the correspondence is either –
a. Prohibited by the government,
b. carried on in Ciphers or Conventional
signs, or
c. containing notice or information which
might be useful to the Enemy.
Correspondence
Communication by means of letters, or it may
refer to the letters which pass between those who
have friendly or business relations. Note that,
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even if the correspondence contains innocent
matters, if the correspondence has been
prohibited by the government, it is punishable
because of the possibility that some information
useful to the enemy might be revealed unwittingly.
Cipher
Secret writing system; a
Dictionary).
code (Webster’s
When prohibition by government not
essential
Prohibition by the government is not essential
when the correspondence: a) is carried on in
ciphers or conventional signs, or b) contains
notice or information which might be useful to the
enemy.
Qualifying circumstances:
The following must concur together –
1. That the notice or information might be useful
to the enemy; and
2. That the offender intended to aid the enemy.
When crime amounts to Treason
If the offender intended to aid the enemy by giving
such notice or information, the crime amounts to
treason; hence penalty same as that for treason.
Art. 121. Flight to Enemy’s Country
Any person who, owing allegiance to the
Government, attempts to flee or go to an
enemy country when prohibited by competent
authority
Persons liable:
1. Filipino citizen; and
2. Alien residing in the Philippines
Elements:
1. A WAR in which the Philippines is Involved;
2. Offender
Owes Allegiance
to
the
government;
3. Offender Attempts to flee or go to enemy
country; and
4. Going to enemy country is Prohibited by
competent authority
When crime consummated
Mere attempt to flee or go to enemy country
consummates the crime.
Why alien may be guilty of the crime
An alien resident may be guilty of flight to enemy
country because an alien owes temporary
allegiance to the Philippine government.
Necessity of prohibition
There must be a prohibition. If there is none, even
if one went to enemy country, there is no crime.
Section 3. – Piracy and Mutiny on High Seas
or In Philippine Waters
Art. 122. Piracy in General and Mutiny on the
High Seas or In Philippine Waters
1. Piracy: Any person who, on the high seas,
shall attack or seize a vessel, or not being a
member of its complement nor a passenger,
shall seize the whole or part of the cargo of
the vessel, its equipment or personal
belongings
of
the
complement
or
passengers
2.
Mutiny: The unlawful resistance to a
superior, or the raising of commotions and
disturbances on board a ship against the
authority of its commander
Elements: Piracy
1. A Vessel is on the high seas or in Philippine
waters;
2. Offenders – Not members of its complement
nor passengers of the vessel; and
3. The offenders –
a. Attack or seize the vessel, or
b. Seize whole or part of vessel’s cargo,
Equipment or personal belongings of its
complement or passengers
Mutiny
1. A Vessel is on the high seas or in Philippine
waters;
2. Offenders – Members of its complement or
passengers of the vessel; and
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3. The offenders unlawfully resist a superior, or
raise commotions and disturbances on board
the vessel against the authority of its
commander
Piracy
It is robbery or forcible depredation on the high
seas, without lawful authority and done with
animo furandi and in the spirit and intention of
universal hostility. Pirates are, in law, hostes
humani generis (People v Lol-lo, GR No. 17958,
February 27, 1922)
Animo furandi
Latin term meaning “intention to steal”
Note: Under P.D. 532, piracy may be committed
even by a passenger or member of the
complement of the vessel.
Punishable Acts (modes of committing
Piracy):
1. By attacking or seizing a vessel on the high
seas or in Philippine waters (P.D. 532); and
2. By seizing the whole or part of the vessel’s
cargo, its equipment, or the personal
belongings
of
its
complement
or
passengers, while on the high seas or in
Philippine waters.
Philippine waters
All bodies of water and all waters belonging to the
Philippines by historic or legal title, including the
territorial sea, the sea-bed, the insular shelves,
and other submarine areas over which the
Philippines has sovereignty and jurisdiction. (Sec.
2, P.D. No. 532)
High seas
Any waters on the sea coast which are without the
boundaries of the low water mark although such
waters may be in the jurisdictional limits of a
foreign government; parts of the sea that are not
included in the exclusive economic zone, in the
territorial seas, or in the internal waters of a state,
or in the archipelagic waters of an archipelagic
state. (United Nations Convention on the Law of
the Sea)
CRIMINAL LAW
Piracy triable anywhere
Piracy is a crime not against any particular state
but against all mankind. It may be punished in the
competent tribunal of any country where the
offender may be found or into which he may
carried. (People v Lol-lo, GR No. 17958, February
27, 1922)
Mutiny
It is the unlawful resistance to a superior, or the
raising of commotions and disturbances on board
a ship against the authority of its commander.
Piracy and Mutiny, Distinguished
PIRACY (RPC)
MUTINY
As to place of commission
Either in Philippine waters or on the high seas
As to the person of the offenders
Committed
by Committed by members
strangers to the of
the
crew
or
vessels
passengers
As to Intention
Intent to gain is The offenders may only
essential
intend to resist/ignore
the ship's officers, or
they may be prompted
by a desire to commit
plunder
Rule on Jurisdiction
1. Piracy in high seas – jurisdiction of any court
where offenders are found or arrested
2. Piracy in internal waters – jurisdiction of
Philippine courts
Piracy and Robbery on High Seas
PIRACY (RPC)
ROBBERY ON HIGH
SEAS
Offender is an Offender is a member of
outsider
the complement or a
passenger of the vessel
In both, there is intent to gain and the manner
of committing the crime is the same.
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PD 532 Anti-Piracy and Anti-Highway
Robbery Law of 1974
PIRACY (RPC)
MUTINY(PD 532)
As to place of commission
Punishes
piracy Punishes
piracy
committed either in committed only in
Philippine waters or Philippines waters
on the high seas
As to the person of the offenders
Committed
by Committed by any
strangers to the person (who may be
vessels
(non- members of the crew
passengers or non- or passengers)
members of the
crew)
Vessel (under PD 532) – any vessel or watercraft
used for transport of passengers and cargo from
one place to another through Philippine waters
Punishable Acts (under PD 532)
1. Piracy
2. Highway robbery/ brigandage
3. Aiding pirates or highway robbers/ brigands
or
abetting
piracy
or
highway
robbery/brigandage
Piracy under RPC and under PD No. 532,
Distinguished
PIRACY (RPC)
PIRACY (PD 532)
As to the manner of commission
May be committed by May be committed by
attacking or seizing a attacking or seizing a
vessel, or seizing the vessel or by taking
whole or part of its away the whole or part
cargo or equipment thereof or of its cargo,
or
the
personal equipment or personal
belongings of the belongings
of
the
complement
or vessel's complement
passengers of the or
passengers
by
vessel
means of violence
against or intimidation
or persons or force
upon things
Committed
strangers
to
vessels
by
the
Committed
by
members of the crew or
passengers
As to place of commission
Philippine waters or Philippine waters only
high seas
As to when piracy becomes qualified
When
it
is When physical injuries
accompanied
by or other crimes are
murder,
homicide, committed as a result
physical injuries or or on the occasion
rape
thereof,
or
when
murder, homicide or
rape is committed by
reason or on the
occasion thereof
Piracy and Terrorism
Under Section 4 of The Anti-Terrorism Act of
2020 (R.A. 11479) which expressly repealed the
Human Security Act of 2007 (R.A. 9372), the
acts punishable as piracy and mutiny under Art.
122 are no longer expressly considered as
“predicate crimes”- specific crimes which could
constitute terrorism as enumerated in Section 3
of R.A. 9372. However, acts of piracy or mutiny
– or any other crime, for that matter – may still
amount to terrorism under the broader
formulation of terrorism under R.A. 11479.
The purpose of Brigandage is indiscriminate
highway
robbery. P.D. 532 punishes as
highway robbery or brigandage only acts of
robbery perpetuated by outlaws indiscriminately
against any person or persons on Philippine
highways, and not acts of robbery committed
against only a predetermined or particular victim.
(Rustico Abay v People, GR No. 165896, 2008)
As to the person of the offenders
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CRIMINAL LAW
Art. 123. Qualified Piracy
Section 1. – Arbitrary Detention and Expulsion
Elements:
A. Qualifying Circumstances (Piracy):
1. Seizure of the vessel by Boarding or Firing
upon the same;
2. Abandonment by pirates of victims without
means of saving themselves; or
3. Crime was Accompanied by murder,
homicide, physical injuries, or rape.
Art. 124. Arbitrary Detention
Any public officer or employee who, without
legal grounds, detains a person
B. Mutiny: When the second or third circumstance
accompanies the crime of mutiny mentioned in
Art. 122, mutiny is then qualified. First
circumstance may not qualify the crime of mutiny.
Elements:
1. That the offender is a Public officer or
employee (whose official duties include the
authority to make an arrest and detain
persons);
2. That he Detains a person; and
3. That the detention is Without legal grounds
Qualified Piracy is a special complex crime
punishable by reclusion perpetua to death,
regardless of the number of victims.
Detention
Actual confinement of a person in an enclosure or
in any manner detaining and depriving him of his
liberty (People v Flores, GR no. 116488, May 31,
2001)
Note: The word “crimes” in the opening sentence
of Art. 123 refers to both piracy and mutiny.
However, the second qualifying circumstance
specifically mentions “pirates”, thereby excluding
mutineers.
Legal grounds for detention:
1. Commission of a crime; and
2. Violent insanity or other ailment requiring
compulsory confinement of the patient in a
hospital
Extent of commission of Murder, Rape,
Homicide, Injuries
The murder/rape/homicide/physical injuries must
have been committed on the passengers or on
the complement of the vessel
Note: This list is not exclusive so long as the
ground is considered legal (e.g. in contempt of
court, under quarantine, or a foreigner to be
deported)
Accomplice
Any person who aids or protects pirates or abets
the commission of piracy shall be considered as
an accomplice.
———— end of topic ————
B. CRIMES AGAINST THE FUNDAMENTAL
LAWS OF THE STATE
Chapter 1: Arbitrary Detention or Expulsion,
Violation of Dwelling, Prohibition, Interruption
and Dissolution of Peaceful Meetings and
Crimes against Religious Worship
Offender is a public officer or employee
The public officers liable for arbitrary detention
must be vested with authority to detain or order
the detention of persons accused of a crime.
Such public officers are the policemen and other
agents of the law, the judges or mayors and
barangay captains. (Milo v. Salanga, GR No. L37007, July 20, 1987)
Detention by unauthorized public officer
Public officers who are not vested with authority
to detain or order the detention of persons
accused of a crime or exceed their authority may
be liable for illegal detention because they are
acting in their private capacity.
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Private individual offender
If the offender is a private individual, the act of
detaining another is Illegal Detention. (Art. 267
or Art. 268)
Private individual offender who conspires
with public officers
However, private
individuals who conspire
with public officers can be liable as principals in
the crime of Arbitrary Detention.
Detention through Imprudence
Arbitrary detention can be committed through
imprudence. [People v. Misa, G.R. No. 93485,
June 27, 1994. Here, a chief of police rearrested
a woman who had been released by a verbal
order of the justice of peace. The officer acted
without malice, but should have verified the order
of release before proceeding to make the rearrest. The officer was convicted of arbitrary
detention though simple imprudence.]
Usual cause of Arbitrary Detention
Arrest without warrant is the usual cause of
arbitrary detention, unless it is a valid warrantless
arrest (under Sec. 5, Rule 113, Revised Rules of
Criminal Procedure).
Does it have to be physical detention for it to
be considered Arbitrary Detention?
No. Psychological restraint is another form of
detention. (Astorga v. People, G.R. No 154130,
October 1, 2003).
Effect when person arrested is acquitted
Under the conditions set forth in Section 5, Rule
113, particularly paragraph (b) thereof, even if the
arrested persons are later found to be innocent
and are acquitted, the arresting officers are still
not liable. But if they do not strictly comply with
the said conditions, the arresting officers can be
held liable for the crime of arbitrary detention, for
damages and/or for other administrative
sanctions. (Umil v Ramos , GR No. 81567,
October 3, 1991)
Periods of detention penalized
1. If the detention has not exceeded three days;
CRIMINAL LAW
2. If the detention has continued more than 3
days, but not more than 15 days;
3. If the detention has continued more than 15
days but not more than 6 months;
4. If the detention has exceeded 6 months.
A greater penalty is imposed if the period of
unlawful detention is longer. (RPC, Art. 124, Nos.
1-4)
Length of detention for it to be considered
arbitrary detention)
The law does not fix any minimum period of
detention. Offenders have been convicted of
arbitrary detention even when the offended party
was detained for only an hour (US v. Agravante,
G.R. No. L-3947, January 28, 1908) or even less
than half an hour (US v. Braganza, G.R. No. L3971, February 3, 1908).
Arbitrary Detention and Kidnapping and
Illegal Detention, Distinguished
ARBITRARY
KIDNAPPING AND
DETENTION
ILLEGAL
DETENTION
A public officer who A public officer who has
has a duty under the NO legal duty to detain
law to detain a person a person and detains a
but detains a person person
may
be
without legal ground
prosecuted for illegal
detention
Arbitrary Detention and Unlawful Arrest,
Distinguished
ARBITRARY
UNLAWFUL
DETENTION
ARREST
As to the classification
Crime against the Crime against liberty
fundamental law of the
State
As to offender
Public officer
Any person
As to purpose of offender
No intention to bring Purpose of arrest is to
the offended to a bring the offended to
proper authority but proper authorities and
merely to detain him
file a charge against
him
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As to the manner of commission
Although authorized, Private person: arrests
detains
a
person a
person
without
without legal ground
reasonable
ground
therefor,
and
the
purpose is to deliver
the person arrested to
the proper authorities.
Public
officer:
not
authorized to arrest
and detain a person but
does so, or he did not
act in his official
capacity
Art. 125. Delay in the Delivery of Detained
Persons to the Proper Judicial Authorities
Any public officer or employee who shall detain
any person for some legal ground and shall fail
to deliver the same to the proper judicial
authorities within the period provided by law
Elements:
1. That the offender is a Public Officer or
Employee;
2. That he has Detained a person for some
Legal Ground; and
3. That he FAILS to deliver such person to the
proper judicial authority within:
a. 12 hours, if detained for crimes
punishable by light penalties, or their
equivalent;
b. 18 hours, if detained for crimes
punishable by correctional penalties, or
their equivalent; or
c. 36 hours, if detained for crimes/offenses
punishable by capital punishment or
afflictive penalties, or their equivalent
Computation of periods
The article includes Sundays, holidays and
election days in the computation of the periods
prescribed within which public officers should
deliver arrested persons to the proper judicial
authorities, as the law does not except such days
in the computation. (Soria v Desierto, GR No.
153524, January 31, 2005)
CRIMINAL LAW
Circumstances considered in determining
the liability of the officer-offender:
1. Means of communication;
2. Hour of arrest; and
3. Other circumstances such as the time of
surrender and the material possibility for the
fiscal to make the investigation and timely file
the necessary information. (Sayo v. Chief of
Police of Manila, G.R. No. L-2128, May 12,
1948)
Rights of detainee:
1. Be informed of the cause of his detention;
and
2. Be allowed, upon request, to communicate
and confer at any time with his attorney or
counsel
Crime when offender is private individual
If the offender is a private person, the crime is
Illegal Detention.
There must be legal ground to arrest
Art. 125 contemplates an arrest without warrant
by virtue of some legal ground (a valid
warrantless arrest)
When arrest made by virtue of warrant
If arrest is made by virtue of an arrest warrant,
person may be detained indefinitely until:
1. His case is decided, or
2. He posts bail.
Delay in filing necessary information
The felony consists in the delay in filing, in court,
the necessary information charging the person
detained.
It does not contemplate actual physical delivery.
Special Case: Anti-Terrorism Act of 2020
Under the Anti-Terrorism Act of 2020, if person
taken custody of is suspected of committing any
of the acts defined and penalized under Sections
4, 5, 6, 7, 8, 9, 10, 11, and 12 of this Act, the duly
authorized law enforcement agent or military
personnel shall, without incurring any criminal
liability for delay in the delivery of detained
persons to the proper judicial authorities, deliver
said suspected person to the proper judicial
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authority within a period of fourteen (14) calendar
days counted from the moment the said
suspected person has been apprehended or
arrested, detained, and taking into custody by the
law enforcement agent or military personnel. The
period of detention may be extended to a
maximum period of ten (10) calendar days if it is
established that (1) further detention of the
person/s is necessary to preserve evidence
related to terrorism or complete the investigation;
(2) further detention of the person/s is necessary
to prevent the commission of another terrorism;
and (3) the investigation is being conducted
properly and without delay (RA No. 11479,
Sec.29). The 3-day period under Sec. 18 of the
Human Security Act has been repealed.
Is the illegality of detention cured by the
delayed filing of the information in court?
No. The filing of the information in court beyond
the specified periods does not cure the illegality
of detention. Hence, the detaining officer is still
liable under Art. 125. Neither does it, however,
affect the legality of the continued confinement of
the detained persons under process issued by
the court.
Practice of arresting officers asking for the
execution of waivers
To prevent committing this felony, officers usually
ask those detained to execute a waiver of the
rights provided them under Art. 125, which should
be under oath and with assistance of counsel.
Such waiver is not violative of the constitutional
right of the accused.
Waiver of Article 125
The rights provided a detained person under
Article 125 may be waived by him if he asks for a
preliminary investigation.
Length of waiver
Even when a waiver is signed, a detainee cannot
be held indefinitely. Upon signing of the waiver, a
preliminary investigation must be conducted and
terminated within 15 days. (Leviste v. Alameda,
G.R. No.182677, August 3, 2010)
Delay in Delivery and Arbitrary Detention,
Distinguished
DELAY IN
DELIVERY OF
DETAINED
Detention is legal in
the
beginning;
illegality starts from
the expiration of the
specified
periods
without the persons
detained
having
been delivered to
the proper judicial
authority
ARBITRARY
DETENTION
Detention is illegal from
the beginning
Who are proper judicial authorities?
They are the courts of justice or judges of said
courts, vested with judicial power to order the
temporary detention or confinement of a person
charged with having committed a public offense.
(Agbay v Deputy Ombubdsman, GR No. 134503,
July 2, 1999)
Reason for Article 125
It is intended to prevent any abuse resulting from
confining a person without informing him of his
offense and without permitting him to go on bail.
(Laurel v Misa, GR No. L-409, January 30, 1947)
Art. 126. Delaying Release
Any public officer or employee who delays for the
period of time specified the performance of any
judicial or executive order for the release of a
prisoner or detention prisoner, or unduly delays
the service of the notice of such order, or the
proceedings upon any petition for the liberation
of such person
Punishable Acts:
1. By delaying the performance of a judicial or
executive order for the release of a prisoner;
2. By unduly delaying the service of the notice
of such order to said prisoner; and
3. By unduly delaying the proceedings upon any
petition for the liberation of such person.
(Reyes, Book Two, p. 62)
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Elements:
1. That the offender is a Public Officer or
Employee;
2. That there is a Judicial Or Executive order
for the RELEASE of a prisoner or detention
prisoner, or that there is a proceeding upon a
petition for the liberation of such person;
3. That the offender without good reason
delays:
a. the Service of the notice of such order to
the prisoner, or
b. the Performance of such judicial or
executive order for the release of the
prisoner, or
c. the Proceedings upon a petition for the
release of such person.
Note: Wardens and jailers are the persons most
likely to violate this provision.
R.A. No. 9745 (Anti-Torture Act)
Punishable Acts:
1. Physical Torture
2. Mental or Psychological Torture
Note: For a detailed discussion, please refer to
the related SPL within this reviewer.
Art. 127. Expulsion
Any public officer or employee who, not being
authorized by law, shall expel any person from
the Philippines or shall compel such person to
change his residence
Punishable Acts:
1. Expelling a person from the Philippines; or
2. Compelling a person to change his
residence.
Elements: (PEN)
1. The offender is a Public Officer or Employee;
2. He Expels any person from the Philippines,
or Compels a Person to change his
residence; and
3. The offender is NOT authorized by law to do
so.
CRIMINAL LAW
Against whom the crime may be committed
Legal expulsion may only be committed against
an alien on grounds provided by law and with
observance of due process in deportation
proceedings; hence, criminal expulsion may be
committed also only against aliens. The second
punishable act may be committed against aliens
or Filipino citizens. (1 AMURAO, Book Two)
Crime absorbs grave coercion
Crime of expulsion absorbs grave coercion. If
done by a private person, act will amount to
Grave Coercion.
Can a person be compelled to change his
residence?
Yes. However, only a court, by a final judgment,
can order a person to change his residence, while
the Chief Executive has the power to deport
undesirable aliens.
If a Filipino, after voluntarily leaving the country,
is illegally refused re-entry, he is considered a
victim of being forced to change his address.
Section 2. – Violation of Domicile
Art. 128. Violation of Domicile
Any public officer or employee who, not being
authorized by judicial order, shall enter any
dwelling against the will of the owner and
search papers or other effects found therein
without the consent of the owner, or having
surreptitiously entered the dwelling, and being
required to leave the premises, refuses to do so
Punishable Acts:
1. By entering any dwelling against the will of
the owner thereof;
2. By searching papers or other effects found
therein without the previous consent of such
owner; and
3. By refusing to leave the premises, after
having surreptitiously entered said dwelling
and after having been required to leave the
same
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CRIMINAL LAW
Elements:
1. That the offender is a Public Officer or
Employee;
2. That he is Not authorized by judicial order to
enter the dwelling and/or to make a search
therein for papers or other effects; and
3. That he Commits any of the following acts:
a. Entering any dwelling against the will of
the owner thereof;
b. Searching papers or other effects found
therein without the previous consent of
such owner;
c. Refusing to leave the premises, after
having surreptitiously entered said
dwelling and after having been required
to leave the same.
When offender, in the first mode, is a private
individual
If the offender who enters the dwelling against the
will of the owner is a private individual, the crime
committed is Trespass to Dwelling.
Surreptitiously – done through fraud or secret
means to accomplish an object (stealth).
Silence of owner during search
Silence of the owner of the dwelling before and
during the search, without search warrant, by a
public officer, may show implied waiver. (Reyes,
Book Two, p. 66) However, if such silence/nonobjection is a function of the searchers’ being
armed and using threats and intimidation, there is
no implied waiver. (Rojas v Spouses Matillano,
GR No. 141176, May 27, 2004)
Special aggravating (qualifying)
circumstances:
1. Nighttime; or
2. Papers or effects not constituting evidence
of a crime are not returned immediately.
Search warrant
The judicial order referred to is a search warrant.
Dwelling
It is the place of abode where the offended party
resides and which satisfies the requirement of his
domestic life. (Padilla, Ambrosio, The Revised
Penal Code, Book 1)
Against the will of owner
To constitute a violation of domicile, the entrance
by the public officer or employee must be against
the will of the owner of the dwelling, which
presupposes opposition or prohibition by the
owner, whether express or implied, and not
merely the absence of consent.
Lack of consent
Lack of consent would not suffice as the law
requires that the offender’s entry must be over the
owner’s objection. (REGALADO)
Public officer searching, without warrant,
outside of dwelling
When a public officer searched a person “outside
his dwelling” without a search warrant and such
person is not legally arrested for an offense, the
crime committed by the public officer is either:
1. Grave Coercion if violence or intimidation is
used (Art. 286), or
2. Unjust Vexation if there is no violence or
intimidation (Art. 287).
When considered a search
Search must be the examination of a person’s
body or property or other area that a person
would reasonably expect to consider as private,
conducted by a law enforcement officer for the
purpose of finding evidence of a crime. Thus, the
mere fact of ‘looking at’ cannot strictly be
considered as the search of papers and other
effects. (El Pueblo de Filipinas v. Ella, GR No.
8716-r. February 26, 1953)
Refusal to leave
Under the 3rd mode, even if the entrance is only
without the consent of its owner, the crime is
committed when there is a refusal to leave the
premises when required to do so.
When unconsented entry is not violation of
domicile
When a policeman, who got angry, forcibly
entered the house of another and attacked the
latter, the policeman is not liable for violation of
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CRIMINAL LAW
domicile because he was not acting in an official
capacity. He is liable instead for physical injuries
with the aggravating circumstance of dwelling.
directed to a peace officer, commanding him to
search for personal property described therein
and to bring it before the court
Not authorized by judicial order
A public officer or employee is not authorized by
judicial order when he is not armed with a search
warrant duly issued by the Court. If the offender
is a private individual or if the public officer is one
whose functions do not include the duty to effect
search and seizure, the crime committed is
trespass to dwelling. (BOADO, RPC and SPL)
When search warrant procured without just
cause
A search warrant is said to have been procured
without just cause when it appears, on the face of
the affidavits filed in support of the application
therefor, or through other evidence, that the
applicant had every reason to believe that the
search warrant sought for was unjustified.
(Reyes, Book Two, p.70).
Art. 129. Search Warrants Maliciously
Obtained and Abuse in the Service of Those
Legally Obtained
Any public officer or employee who shall procure
a search warrant without just cause, or having
legally procured the same, shall exceed his
authority or use unnecessary severity in
executing the same
Punishable Acts:
1. Procuring a search warrant without just
cause
2. Exceeding authority or by using unnecessary
severity in executing a search warrant legally
procured.
Elements:
1. Procure search warrant without just cause
a. That the offender is a Public Officer or
Employee;
b. That he procures a Search warrant; and
c. That there is No just cause for the
procurement
2. Exceed Authority in Execution
a. That the offender is a Public Officer or
employee;
b. That he has Legally procured a search
warrant; and
c. That he Exceeds his authority or uses
unnecessary severity in executing the
same
Search Warrant
An order in writing issued in the name of the
People of the Philippines, signed by a judge and
Test of lack of just cause
Whether the affidavit filed in support of the
application for search warrant has been drawn in
such a manner that perjury could be charged
thereon and affiant can be held liable for
damages. (Alvarez v. CFI, GR No. 45358,
January 29, 1937)
Effect when warrant secured through false
affidavit
The crime punished by the article cannot be
complexed but will be a separate crime from
perjury. (REGALADO)
Requisites of valid search warrant
1. It must be issued upon Probable Cause
2. Probable cause must be determined by the
judge himself and not by the applicant or any
other person;
3. In the determination of probable cause, the
judge must examine, under oath or
affirmation, the complainant and such
witnesses as the latter may produce;
4. It should be issued in connection with one
specific offense;
5. The warrant issued must particularly describe
the place to be searched and persons or
things to be seized
Effect when the Judge who issued the search
warrant is convicted of an administrative
charge
While the imposition of administrative penalties
operates to divest the Judge of his authority to act
as Vice Executive Judge, the abstraction of such
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authority would not, by itself result in the invalidity
of the search warrant, considering that said
Judge may be considered to have made the
issuance as a de facto officer. (Retired SPO4
Bienvenido Laud v People, GR No. 199032,
November 19, 2014)
Crimes involving
Distinguished
SEAERCHING
DOMICILE
WITHOUT
WITNESSES
(ART. 130)
VIOLATION
OF
DOMICILE
(ART. 128)
SEARCH
WARRANT
MALICIOUSLY
OBTAINED (ART.
129)
Search and seizure without warrant as
incident to a lawful arrest
A person lawfully arrested may be searched,
without a search warrant, for dangerous weapons
or anything which may be used as proof of the
commission of an offense. (Sec. 12, Rule 126,
Revised Rules of Criminal Procedure)
There is a
validly
obtained
warrant but its
implementation (the
search
process) was
abused.
There is
no
warrant.
There is a
warrant but such
was maliciously
obtained.
Art. 130. Searching Domicile Without
Witnesses
Any public officer or employee who, in cases
where a search is proper, shall search the
domicile, papers or belongings of any person,
in the absence of the latter, any member of his
family, or in their default, without the presence
of two witnesses residing in the same locality
Elements:
1. That the offender is a public officer or
employee;
2. That he is armed with a search warrant
legally procured
3. That he searches the domicile, papers or
other belongings of any person; and
4. That the owner or any member of his family,
or two witnesses residing in the same locality
is/are not present
Order of those who must witness the search:
1. Homeowner;
2. Members of the family of sufficient age and
discretion; or
3. Responsible members of the community.
Why search in presence of witnesses
mandatory
Search in the presence of witnesses specified by
the law is mandatory to ensure regularity in the
execution of the search warrant. (People v
Gesmundo. GR No. 89373, March 9, 1993)
searches
of
domicile,
Section 3. – Prohibition, Interruption and
Dissolution of Peaceful Meetings
Art. 131. Prohibition, Interruption and
Dissolution of Peaceful Meetings
Any public officer or employee who, without
legal ground, shall prohibit, dissolve or interrupt
the holding of a peaceful meeting; shall hinder
any person from joining any lawful association
or from attending its meetings; or shall prohibit
or hinder any person from addressing, either
alone or together with others, any petition to the
authorities for the correction of abuses or
redress of grievances.
Punishable Acts:
1. Prohibiting, interrupting, or dissolving,
without legal ground, the holding of a
peaceful meeting;
2. Hindering any person from joining any lawful
association or from attending any of its
meetings;
3. Prohibiting or hindering any person from
addressing, either alone or together with
others, any petition to the authorities for the
correction of abuses or redress of grievances
Elements:
1. Offender is a Public Officer or Employee;
2. He performs any of the following acts:
a. Prohibiting or interrupting, without legal
ground the holding of a peaceful meeting,
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or dissolving the same (e.g. denial of
permit in arbitrary manner);
b. Hindering any person from joining any
lawful association or from attending any
of its meetings; or
c. Prohibiting or hindering any person from
addressing, either alone or together with
others, any petition to the authorities for
the correction of abuses or redress of
grievances
Tests for determining if there is a violation of
Art. 131 (see notes on Art. 142):
1. Dangerous tendency rule; and
2. Clear and present danger rule.
Private individual offender
If the offender is a private individual, the crime is
Disturbance of Public Order (Art. 153).
Offender must not be a participant in the
meeting
Offender must be a stranger, not a participant, in
the peaceful meeting; otherwise, the offense is
Unjust Vexation.
Meeting must be peaceful
Meeting must be peaceful and there must be no
legal ground for prohibiting, dissolving or
interrupting that meeting.
Interrupting meeting of municipal council
Interrupting and dissolving a meeting of the
municipal council by a public officer is a crime
against the legislative body (Art. 143) and is not
punishable under this article.
Meetings must comply with ordinances
Those holding peaceful meetings must comply
with local ordinances.
Section 4.
Worship
–
Crimes Against
Religious
Art. 132. Interruption of Religious Worship
Any public officer or employee who shall
prevent or disturb the ceremonies or
manifestations of any religion
Elements:
1. That the officer is a Public officer or
employee;
2. That Religious ceremonies or manifestations
of any religion are about to take place or are
going on; and
3. That the Offender prevents or disturbs the
same.
Qualifying circumstance:
With violence or threats.
Reading of bible
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; hence, only Art. 131 was violated.
Worship includes religious rites
Religious worship includes performance of
religious rites for a religious ceremony or a
manifestation of religion. Examples: Mass,
baptism, marriage
X, a private person, punched a priest while the
priest was giving a homily and maligning a
relative of X. Is X liable?
X may be liable under Art. 133 (Offending religious
feelings) because X is a private person.
Note: There must actually be a religious
ceremony being conducted on that occasion,
either by itself or in conjunction with some other
activity of the religious denomination. If the
offense was committed only in a meeting or rally
of a sect, it would be punishable under Art.131.
(People v Reyes, GR No. 13633, July 27, 1955)
Art. 133. Offending the Religious Feelings
Anyone who, in a place devoted to religious
worship or during the celebration of any
religious ceremony, shall perform acts
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notoriously offensive to the feelings of the
faithful
Elements:
1. Acts complained of were performed
2. in a Place Devoted to religious worship, or
3. during the Celebration of any religious
ceremony;
4. Acts must be Notoriously Offensive to the
feelings of the faithful
Persons liable
The offender can be any person.
Offense to feelings
Offense to religious feelings is judged from the
complainant’s point of view.
Nature of places
The phrase ‘in a place devoted to religious
worship’ does not necessarily require that a
religious ceremony is going on. The phrase
‘during the celebration’ is separated by the word
‘or’ from the phase ‘place devoted to religious
worship’ which indicates that the ‘religious
ceremony’ need not be celebrated in a place of
worship.
Religious ceremony
Religious acts performed outside of a church,
such as processions and special prayers for
burying dead persons, are covered. Examples of
religious ceremonies, (acts performed outside the
church): processions and special prayers for
burying dead persons but NOT prayer rallies
Nature of acts notoriously offensive to
feelings
Acts notoriously offensive to the feelings of the
faithful must be directed against religious
practice, dogma or ritual for the purpose of
ridicule, such as mocking or scoffing or
attempting to damage an object of religious
veneration.
CRIMINAL LAW
Deliberate intent to hurt feelings
There must be deliberate intent to hurt the
feelings of the faithful. Mere arrogance or
rudeness is not enough.
———— end of topic ————
C. CRIMES AGAINST PUBLIC ORDER
Chapter 1: Rebellion, Coup D’etat, Sedition
Art. 134. Rebellion and Insurrection
The crime of rebellion or insurrection is
committed by rising publicly and taking arms
against the Government for the purpose of
removing, from the allegiance to said
Government or its laws, the territory of the
Republic of the Philippines or any part
thereof, or any body of land, naval or other
armed forces, or depriving the Chief
Executive or the Legislature, wholly or
partially, of any of their powers or
prerogatives.
Elements:
1. Public Uprising and Taking Arms against the
government;
2. Purpose:
a. To Remove from the Allegiance to
Government or laws:
• Territory of Philippines (in whole or
in part);
• Body of land, or army/naval/other
forces; or
b. To Deprive Chief Executive or Congress
wholly or partially of powers or
prerogatives
Rebellion
It is more frequently used where the object of the
movement is to completely overthrow and
supersede the existing government. (Reyes,
Book Two) By its nature, rebellion, is a crime of
the masses or multitudes involving crowd action
done in furtherance of a political end.
Insurrection
It is more commonly employed in reference to a
movement which seeks merely to effect some
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change of relatively minor importance, or to
prevent the exercise of governmental authority
with respect to particular matters or subjects.
Rebellion and Insurrection, Distinguished
REBELLION
INSURRECTION
Purpose is to
Purpose is to effect a
overthrow or
change of minor
supersede the
importance, or to
existing
prevent the exercise
government
of government
authority with respect
to particular matters
Purpose must be shown but not necessary to
be accomplished
The purpose of the uprising must be shown.
Without evidence to indicate the motive or
purpose of the accused, the crime does not
constitute rebellion. (US v. Constantino, GR No.
1186, November 18, 1903)
Rebellion and Treason, Distinguished
REBELLION
TREASON
As to classification
Crime against public Crime against national
order
security
As to purpose
To remove, from the The delivery of the
allegiance to said Philippines to a foreign
Government or its power
laws, the territory of
the Philippines, or
any body of land,
naval or other armed
forces; or
to deprive the Chief
Executive
or
Congress of any of
their powers
As to manner of commission
Public Uprising and By levying war against
By
taking
arms the Government or
against
the by adhering to the
Government, for any enemies
of
the
of the specified Philippines,
giving
purposes in Art.134
them aid or comfort.
CRIMINAL LAW
As to time of commission
In times of peace
During times of war
As to the place of commission
Only
in
the May be committed in
Philippines
the Philippine territory
or elsewhere
As to the person committing
Any person
Only by a Filipino
citizen or an alien
residing
in
the
Philippines
As to proof needed for conviction
Proved by showing Testimony of at least
the purpose of the two witnesses to the
uprising
beyond same overt act, or
reasonable doubt.
confession of accused
in open court
Rebellion in general
Crime of masses
A crime of masses, of the multitude; cannot be
committed by only one person
It is a continuing crime.
Necessity of public uprising and taking up of
arms
A public uprising and the taking up of arms are
necessary as overt acts to constitute rebellion.
However, taking part in the clash of arms is not
necessary to be convicted of rebellion.
Identifying self with a group
If there is conspiracy, knowingly identifying one’s
self with a group that commits rebellion is enough
for conviction thereof, even if he himself did not
rise publicly and take arms.
When Consummated
Consummated the very moment rebels rise and
take arms against the government. They do not
need to achieve their purpose for rebellion to be
consummated.
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Purpose for rebellion
The purpose of the uprising must be shown.
Not necessary that purpose be achieved
It is not necessary for conviction that the purpose
is achieved.
Necessity of actual participation
There must be ACTUAL participation. Mere giving
of aid or comfort is not criminal in the case of
rebellion.
Public officer must take active part because mere
silence or omission is not punished in rebellion.
Non-recognition of government or absence of
oath of allegiance not a defense
It is not a defense that the accused never took the
oath of allegiance, or that they never recognized
the government.
Absorption of ordinary crimes performed for
and during a rebellion (Political Offense
Doctrine)
1. People v. Hernandez: Rebellion cannot be
complexed with ordinary (common) crimes
done pursuant to it. (G.R. Nos. L-6025-26,
1956).
2. People v. Geronimo: Crimes done for
private purposes without political motivation
should be separately punished. (G.R. No. L8936, 1956).
3. Enrile v. Salazar: Hernandez ruling remains
binding doctrine, operating to prohibit the
complexing of rebellion with any other
offense committed on the occasion thereof,
either as a means to its commission or as an
unintended effect of any activity that
constitutes rebellion. (G.R. No. 92164, 1990).
Political crimes
Crimes directly aimed against the political order,
as well as such common crimes as may be
committed to achieve a political purpose. The
decisive factor is the intent or motive. (People v
Hernandez, GR No. L-6025-26, July 18, 1956)
Common crimes done in pursuance of
rebellious purpose
CRIMINAL LAW
If other common crimes were done in pursuance
of the rebellious purpose, these crimes are
absorbed and the person is liable only for
rebellion.
Absorption not automatic
Absorption is not automatic. One has to show that
common crimes were done pursuant to rebellious
purposes, even if one was a member of a
rebellious group.
Crimes done for personal or other purposes
If other common crimes are done for personal
purposes, even while the person is in rebellion,
the person will be held separately liable.
Overt act as element of rebellion
Once an overt act (even if it is a crime itself) is
cited as an element of Rebellion in the
information, it can no longer be charged as a
separate crime.
Art. 134-A. Coup d’état
The crime of coup d’état is a swift attack
accompanied by violence, intimidation, threat,
strategy or stealth, directed against duly
constituted authorities of the Republic of the
Philippines, or any military camp or
installation, communications networks, public
utilities or other facilities needed for the
exercise and continued possession of power,
singly or simultaneously carried out anywhere
in the Philippines 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, for the
purpose of seizing or diminishing state power.
Elements:
1. Offender: member of the military, police
force, or any public officer or employee, and
any possible civilian supporters
2. Means: swift attack accompanied by
violence, intimidation, threat, strategy, or
stealth;
3. Possible
targets:
duly
constituted
authorities of the Philippines; any military
camp/installation, communication networks,
public utilities, or other facilities needed for
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the exercise and continued possession of
power; and
4. Purpose: to seize or diminish state power
Coup d’état in general
1. May be perpetrated with or without civilian
participation; and
2. Coup d’état is no longer specifically listed and
punished as a predicate crime for terrorism
(Section 4 of R.A. 11479 expressly repealing
Section 3 of R.A. 9372) but may still be
punished as terrorism if the circumstances
make it fall within the broader formulation of
terrorism under R.A. 11479
No frustrated stage
There is no frustrated stage for coup d’ etat. The
mere attack directed against the duly-constituted
authorities of the PH, or any military camp or
installation, communication networks, public
utilities or other facilities needed for the exercise
and
continued
possession
of
power,
consummates the crime
Coup d’Etat and Rebellion, Distinguished
COUP D’ETAT
REBELLION
As to classification
Both are crimes against public order
As to purpose
To seize or diminish 1. To remove from the
State power.
allegiance to the
Government or its
laws, the territory of
the Philippines, or
any body of land,
naval
or
other
armed forces; or
2. To deprive the Chief
Executive
or
Congress of any of
their powers
Criminal objective is to
destabilize, immobilize
Criminal objective is to
overthrow
the
government and for the
offenders to establish
their own.
or paralyze the existing
government.
As to Manner of Commission
Swift
attack Committed
through
accomplished
by force and violence or at
violence, intimidation, least by intimidation or
threat, strategy or threats, by:
stealth.
1. Public uprising; and
2. By taking arms
against
the
Government for any
of the purposes
specified in Art. 134
As to the object against which the attack is
committed
Directed against the Directed against the
duly
constituted Government
authorities
of
the
Republic
of
the
Philippines, or any
military
camp
or
installation,
communication
networks,
public
utilities
or
other
facilities needed for the
exercise
and
continued possession
of power
As to the person committing
The principal offenders Any person, whether
should belong to the public officer or not
military or police forces
or hold any public
office or employment,
but may also have
civilian supporters
As to the number of offenders
May be committed Involves a multitude of
singly or collectively
people.
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Art. 135. Penalty For Coup D’état, Rebellion
And Insurrection
Persons Liable; Their Acts and Penalty
PARTICIPANT
ACTS
Rebellion or Insurrection
Leaders
Promotes, maintains, heads
Participates or executes the
Participants
commands of others
Coup d’Etat
Leads, directs, or commands
Leaders
others to undertake a coup
d'etat
Participants
in
Participates or executes the
government
commands of others
service
Participants
not
in Aids, abets, finances, or
government
otherwise assists commission
service
Who shall be deemed the leader of the
rebellion, insurrection or coup d’etat in case
he is unknown?
Any person who in fact:
1. Directed the others;
2. Spoke for them;
3. Signed receipts and other documents issued
in their names; or
4. Performed similar acts, on behalf of the
rebels
Membership in rebel organizations
Membership in a rebel organization does not
automatically qualify as a criminal act absorbed in
rebellion. It must be conclusively demonstrated
that criminal acts were committed in furtherance
of rebellion. (People v Lovedioro, GR No. 112235,
November 29, 1995)
Assistant to a principal
Being a mere assistant to a principal (leader) who
is guilty of rebellion, the accused is guilty only as
a participant in the commission of rebellion under
par. 2, Art 135. (People v Lava, GR No. L-497478, May 16, 1969)
CRIMINAL LAW
Non-applicability of Indeterminate Sentence
Law
The Indeterminate Sentence Law does not apply
to coup d’état and rebellion or insurrection. It
excludes from its coverage those charged with
misprision of treason, rebellion, sedition or
espionage.
Art. 136. Conspiracy and Proposal to Commit
Coup D’état, Rebellion, or Insurrection
Crimes Penalized under Article 136
1. Conspiracy to commit rebellion;
2. Proposal to commit rebellion
3. Conspiracy to commit coup d’état
4. Proposal to commit coup d’état
Conspiracy to commit rebellion
When two (2) or more persons come to an
agreement to rise publicly and take arms against
the Government for any of the purposes of
rebellion and decide to commit it. (Reyes, Book
Two, p. 100)
Sufficiency of mere membership
Mere membership in a rebellious organization is
sufficient to find an accused guilty of conspiracy
to commit rebellion. (People v Lava, GR No. L4974-78, May 16, 1969)
Mere act of agreeing and deciding
Merely agreeing and deciding to commit the
above-mentioned
crimes
against
the
Government, without actually performing the
overt acts, is already punishable as Conspiracy to
commit Rebellion. (People v Geronimo, GR No.
L-8936, October 23, 1956)
Gravamen of conspiracy
There is no conspiracy when the people have not
agreed or decided to commit the crimes.
Acts which seem helpful to rebels
Even if some acts may be construed as helpful to
rebels, if there is no intent to aid them in achieving
their rebellious purposes, those who gave aid are
not liable as conspirators.
Mere giving of speeches
Even if someone gave speeches extolling the
crimes, if there is no evidence that those who
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heard it took it as a proposal, the person who
gave the speech is not liable under this article.
Instances when preparatory acts punishable
Art.136 provides for instances when preparatory
acts are deemed punishable by law.
Proposal to commit rebellion
When the person who has decided to rise publicly
and take arms against the Government for any of
the purposes of rebellion proposes its execution
to some other person/s. (Reyes, Book Two, p.
100)
Art. 137. Disloyalty of Public Officers or
Employees
Any public officer or employee who failed to
resist a rebellion by all the means in his/her
power or shall continue to discharge the
duties of his/her office under the control of the
rebels or shall accept appointment to office
under them.
Punishable Acts:
1. Failing to resist rebellion by all means;
2. Continuing to discharge duties under the rule
of rebels; or
3. Accepting appointment under the rule of
rebels
Elements:
1. Public officers or employees
2. who:
a. fail to resist a rebellion by all means in
their power;
b. shall continue to discharge the duties of
their offices under the control of the
rebels; or
c. accept appointment to office under them
CRIMINAL LAW
2. Should not be in conspiracy with the rebels. If
there is conspiracy, he/she will be liable for
rebellion.
Rebellion as pre-requisite
1. There must be a rebellion to be resisted in the
first place.
2. This article is inapplicable in the absence of
the crime of rebellion.
Art. 138. Inciting To Rebellion Or Insurrection
Any person who, without taking arms or being
in open hostility against the Government, shall
incite others to the execution of any of the acts
under Art.134, by means of speeches,
proclamations, writings, emblems, banners or
other representations tending to the same end
Elements:
1. That the offender does not take up arms or is
not in open hostility against the Government
2. That he incites others to the execution of any
of the acts of rebellion
3. That the inciting is done by means of
speeches, proclamations, writings, emblems,
banners or other representations tending to
the same end
Applicability
1. People incited must not actually commit
rebellion for this article to apply.
2. If people incited commit rebellion, this article
is not applicable.
a. People incited would be guilty of rebellion
as principals by direct participation.
b. Person inciting would be guilty of
rebellion as principal by inducement.
Note: Penalty for all acts is Prision Correccional
in its minimum period.
Offenders
1. Should be a public officer or employee. A
private individual cannot violate this article,
even if he accepts appointment under the
rebel government.
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Inciting to Rebellion and Proposal To Commit
Rebellion, Distinguished
INCITING TO
PROPOSAL TO
REBELLION
COMMIT
REBELLION
It is not required that The person who
the offender has proposes
has
decided to commit decided to commit
rebellion; and
rebellion; and
The inciting is done The person who
publicly
proposes
the
execution of the
crime uses secret
means
Note: In both proposal and inciting, the offender
induces another to commit rebellion
Art. 139. Sedition
Act of individuals who rise publicly and
tumultuously in order to attain by force
specific objectives (which are not those of
rebellion/insurrection)
Elements:
1. Offender rises publicly and tumultuously
2. Means:
force, intimidation and outside
(extra-legal methods)
3. Objectives:
a. Prevent promulgation/execution of law or
holding of popular election;
b. Prevent government or officer thereof
from freely exercising functions;
c. Inflict act of hate or revenge upon public
officer or employee or his property;
d. Commit, for political or social ends, any
act of hate or revenge on any person or
social class; or
e. Despoil, for any political or social end,
any person, the Government, or any
division thereof of all or some of their
property
Sedition in general
1. Sedition is the raising of commotions or
disturbances in the State.
2. It can be committed by both private and
public persons.
CRIMINAL LAW
3. Its object is generally a violation of public
peace
4. It is committed tumultuously; it cannot be
committed by one person alone.
a. Something is considered tumultuous if it
involves at least four (4) men with
weapons or other means of violence.
b. Multiple people with no arms or means of
violence at all cannot commit sedition.
5. Common crimes are not absorbed in
sedition.
Note: Concurrence of public uprising and
purpose of sedition is required. When one is
absent, it is not sedition.
Sedition and Treason, Distinguished
SEDITION(ART.139)
TREASON (ART. 114)
As to classification
Crime against the Crime against national
fundamental law of the security and the law of
State
nations
As to nature
Sedition refers to an Treason is a war crime.
internal
conflict. Violation by a subject
Commotions
or of his allegiance to his
disturbances of the sovereign
State
As to manner of commission
Causing public and Limited to two ways:
tumultuous
1. Levying war; and
disturbances in one’s 2. Adherence to the
country
enemy, giving them
aid or comfort
As to purpose
1. To prevent the The purpose of levying
promulgation
or war is to help the
execution of any enemy.
law or the holding
of any popular
election;
2. To prevent the
National
Government
or
local government,
or any public officer
thereof from freely
exercising its or his
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functions,
or
prevent
the
execution of any
administrative
order;
3. To inflict any act of
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;
and
5. To despoil, for any
political or social
end, any person,
local government
or the national
Government, or the
US Government, of
all its property or
any part thereof.
Sedition and Rebellion, Distinguished
SEDITION
REBELLION
As to the manner of commission
Arms
are
not It is necessary that there
necessary. It is be a public uprising and
enough that there is taking arms against the
a public uprising Government.
and the uprising is
tumultuous.
As to the nature of the purpose
The purpose of the The purpose is always
offenders may be political.
political or social.
As to the purposes
Any of the objects To
remove
from
enumerated
in allegiance
to
the
Art.139
Government or its laws
the territory of the
Philippines, or any body
CRIMINAL LAW
of land, naval or other
armed forces; or
To deprive the Chief
Executive or Congress
of any of their powers
Use of unlicensed firearms(Sec. 29 of R.A.
10591)
The use of a loose If the use of an
firearm,
when unlicensed firearm is in
inherent
in
the furtherance
of,
or
commission of a incident
to,
or
in
crime
punishable connection with the
under the Revised crime of rebellion of
Penal Code or other insurrection,
or
special laws, shall attempted coup d’ etat,
be considered as an such violation shall be
aggravating
absorbed as an element
circumstance.
of the crime of rebellion
or
insurrection,
or
attempted coup d’ etat.
Public uprising and an object of Sedition must
concur
It is immaterial if the object be completely
attained. Mere public uprising for any of the
objectives mentioned in Art. 139 is punishable.
However, public uprising and an object of sedition
must concur.
Rule on Absorption of Crimes
General Rule: Common crimes are not absorbed
in sedition.
Exception: The use of an unlicensed firearms is
not considered a separate crime, but shall be
considered as an aggravating circumstance,
pursuant to Sec. 29 of R.A. 10591.
Art. 141. Conspiracy to Commit Sedition
There must be an agreement and a decision
to rise publicly and tumultuously to attain any
of the objects of sedition in order to constitute
the crime of conspiracy to commit sedition.
(There is no independent felony of proposal to
commit sedition.)
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Art. 142. Inciting To Sedition Punishable Acts
Any person who, without taking any direct part
in the crime of sedition, should commit any of
the punishable acts below
Punishable Acts:
1. Inciting others to sedition by means of
speeches, proclamations, writings, emblems,
cartoons, banner or other representations
tending to the same end;
2. Uttering seditious words or speeches, which
tend to disturb the public peace;
3. Writing, publishing, or circulating scurrilous
libels against Government or any of its duly
constituted authorities;
4. Knowingly concealing such evil practices
Elements: Inciting Others to Sedition
1. That the offender Does not take a direct
part in the crime of sedition;
2. That
he
Incites
others
to
the
accomplishment of any of the acts which
constitute sedition; and
3. That the inciting is done by means of
Speeches, Proclamations, Writing,
Emblems, Cartoons, Banners, or other
representations tending to the same end.
Uttering and writing: when punishable (Acts 2
& 3)
1. When they tend to disturb or obstruct any
public officer in executing the functions of
his office; or
2. When they tend to instigate others to cabal
and meet together for unlawful purposes; or
3. When they suggest or incite rebellious
conspiracies or riots; or
4. When they lead or tend to stir up the people
against the lawful authorities or to disturb the
peace of the community, the safety and order
of the government
Two rules relative to seditious words
1. Clear and present danger rule
a. Danger should be both clear and
imminent;
b. Reasonable ground to believe that the
danger apprehended is imminent and
that the evil to be prevented is a serious
one to the State; and
c. Present time element: not only probable
but very likely inevitable
2. Dangerous tendency rule
a. Tends to create a danger of public
uprising;
b. Easily produces disaffection; and
c. Produces state of feelings incompatible
with a disposition to remain loyal to the
government
Scurrilous
It means low, vulgar, mean or foul (Reyes, Book
Two, p. 113)
Knowingly concealing such evil practices
It is ordinarily an act of the accessory after that
fact, but under this provision, the act is treated
and punished as that of the principal.
Reason why seditious utterances are
prohibited
If the State were compelled to wait until the
apprehended danger became certain, then its
right to protect itself would come into being
simultaneously with the overthrow of the
Government, when there would be neither
prosecuting officers nor courts for the
enforcement of the law. (Gitlow v New York, 268
US 652)
Chapter
2:
Crimes
Representation
against
Popular
Section 1. – Crimes against Legislative
Bodies and Similar Bodies
Art. 143. Acts Tending To Prevent the Meeting
of the Assembly and Similar Bodies
Any person who by force or fraud prevents the
meeting of either the Congress or any provincial
board or municipal council
Elements:
1. A Projected or Actual Meeting of Congress or
any of its committees or subcommittees,
constitutional commissions or committees or
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divisions thereof, or of any provincial board or
city or municipal council or board; and
2. The offender, who may be any person,
prevents such meeting by force or Fraud.
Note:
The Chief of Police and Mayor who prevent 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.
Just Cause
1. If there is just cause for preventing a meeting,
the person doing so is not liable under this
article.
2. Just cause must appear immediately and
must not be one assumed and proven later
by an investigation.
Art. 144. Disturbance of Proceedings
Any person who disturbs the meetings of either
the Congress or any provincial board or city or
municipal council; or in the presence of any
such bodies should behave in such manner as
to interrupt its proceedings or to impair the
respect due it
Elements:
1. An Actual Meeting of Congress or any of its
committees, constitutional commissions or
committees or divisions thereof, or of any
provincial board or city or municipal council
or board; and
2. The offender does any of the following acts;
a. Disturbs any of such meetings; or
b. Behaves while in the presence of any
such bodies in such a manner as to
Interrupt its proceedings or to impair the
respect due it.
Note:
Accused may also be punished for contempt by
the legislative body.
When disturbance created by participant
Disturbances created by a participant in the
meeting are not covered by Art.144. It could
amount to unjust vexation.
CRIMINAL LAW
Complaint for disturbance of proceedings
may be filed by a member of a legislative body
The crime punished under Article 144 may be
prosecuted de oficio. Hence, it may be
commenced upon the written complaint of a
member of the Municipal Board the proceedings
of which were disturbed or interrupted although
such member was not authorized by the rules or
a resolution of the Board. (Reyes, Book Two,
p.119 citing People v. Lapid C.A. 59 O.G. 4059)
Section 2. – Violation of Parliamentary
Immunity
Art. 145. Violation of Parliamentary Immunity
1. Any person who shall use force,
intimidation, threats or fraud to prevent any
member of either House of the Legislature
from attending the meetings thereof, from
expressing his opinions, or casting his vote
2. Any public officer or employee who shall,
while the Legislature is in session,
knowingly arrest or search any member
thereof, except in case such member has
committed a crime punishable under this
Code by a penalty higher than Prisión
Mayor
Punishable Acts:
1. Using force, intimidation, threats, or fraud to
prevent attendance, expression of opinion, or
casting of vote, by any member of Congress;
2. Arresting or searching a member of Congress
while in regular or special session;
a. Unless the member is charged with a
crime with a penalty higher than Prision
mayor;
b. However, to harmonize with the 1987
Constitution, the RPC provision should
be read as “a penalty of Prision mayor or
higher”
Elements:
1. Prevent attendance, expression of opinion, or
casting of vote
2. Means: force, intimidation, threats, or fraud;
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3. Purpose: To prevent any member of the
National Assembly from;
a. Attending a meeting;
b. Expressing opinion; or
c. Casting vote.
4. Arresting or searching a member of Congress
while in regular or special session
a. Offender: Public officer or employee;
b. Arrests or searches any member of
Congress;
c. During regular or special session; and
d. Member searched/arrested has not
committed a crime punishable by prision
mayor or higher.
Notes: Actual prevention not necessary
1. It is not necessary that a member of
Congress is actually prevented from
attending, expressing his opinion, or voting
2. It is sufficient that offender had the purpose
and performed overt acts toward achieving
such purpose
Parliamentary Immunity
1. Protects from civil and criminal liability
2. Does not protect a member of Congress from
responsibility before the legislative body itself
whenever that member’s conduct is
considered inappropriate or unbecoming
3. Other members may, by votation, opt to
suspend, imprison, or expel unruly or
otherwise erring members of Congress
Note:
Article VI of the 1987 Constitution states that; “A
Senator or Member of the House shall in all
offenses punishable by not more than 6 years
imprisonment, be privileged from arrest while
Congress is in session” while Art.145 of the RPC
states penalty higher than prision mayor. To be
consistent with the Constitution, the Constitution
should prevail over Art.145, and the Constitution
says “6 years”, not prision mayor.
Chapter
3:
Associations
Illegal
Assemblies
and
Art. 146. Illegal Assemblies
Any meeting attended by armed persons for the
purpose of committing any of the crimes
punishable under this Code, or any meeting in
which the audience is incited to the commission
of the crime of treason, rebellion or insurrection,
sedition, or assault upon a person in authority or
his agents
Two kinds of Meetings
1. Meeting attended by armed persons for the
purpose of committing any of the crimes
punishable under the RPC
Elements:
a. There is a Meeting;
b. The meeting is attended by Armed
persons; and
c. The Purpose of the meeting is to commit
any of the crimes punishable under the
RPC
2.
Meeting in which the audience, whether
armed or not, is incited to the commission of
the crimes of treason, rebellion or
insurrection, sedition or assault upon a
person in authority or his agent
Elements:
a. There is a Meeting;
b. The Audience may or may Not be armed;
and
c. The Purpose of the meeting is to incite
the audience to commit the crime of
treason, rebellion or insurrection, sedition
or direct assault.
Presumptions when a person carries
unlicensed firearm to the assembly
1. Purpose of the meeting is to commit a crime
under the RPC insofar as he is concerned;
and
2. Possessor is a leader or organizer of the
meeting.
Persons liable for illegal assembly
1. Organizers or leaders of the meeting; and
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CRIMINAL LAW
2. Persons merely present at the meeting
[except when presence is merely out of
curiosity – not liable since they do not have
the intent to illegally assemble (Reyes, Book
Two, p. 125)]
Kinds of Illegal Associations:
1. Those totally or partially organized for the
purpose of committing a felony; and
2. Those totally or partially organized for
purposes contrary to public morals
Meeting
The word 'meeting' includes a gathering or group,
whether in a fixed place or moving.
Persons liable:
1. Founders and Presidents; and
2. Members
Note: Not all the persons present at the meeting
of the first form of illegal assembly must be
armed, it is sufficient that at least two persons are
armed. If none of the persons present in the
meeting are armed, there is no crime of illegal
assembly.
Public Morals
Refers to matters which affect the interest of
society and public convenience and is not limited
to good customs.
Forms of Illegal Assembly Compared
FIRST KIND
SECOND KIND
As to the persons attending
The
persons The persons attending
attending are armed may be armed or not
persons
As to the purpose
To commit any To commit the crime of
crime
punishable treason, rebellion or
under the RPC
insurrection, sedition or
assault upon a person
in authority or his
agents
Effect when Audience incited
If the audience is incited to commit rebellion or
sedition, the crimes committed are illegal
assembly as regards the organizers or leaders
and persons merely present (but with intent to
illegally assemble) and inciting to rebellion or
sedition insofar as the one inciting them is
concerned.
Illegal Associations and Illegal Assembly,
Distinguished
ILLEGAL
ILLEGAL ASSEMBLY
ASSOCIATION
Not necessary that Actual meeting or
there be an actual assembly necessary
meeting
It is the act of forming It is the organizing of
or organizing of, and the
meeting
and
membership in, the intentional attendance
association that are at such meeting that
punished
are punished
Persons
liable: Persons
liable:
founders,
directors, organizers or leaders,
president,
and and
persons
members
intentionally present at
the meeting
Even associating to Meetings are held in
commit acts contrary to connection with crimes
public
morals
are punishable by the RPC
included; thus may
include
crimes
punishable by special
laws
Art. 147. Illegal Associations
Associations totally or partially organized for
the purpose of committing any of the crimes
punishable under this Code or for some
purpose contrary to public morals
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Chapter 4: Assault Upon, and Resistance and
Disobedience to, Persons in Authority and
Their Agents
Art. 148. Direct Assault
Any person or persons who, without a public
uprising, shall employ force or intimidation for
the attainment of any of the purposes
enumerated in defining the crimes of rebellion
and sedition, or shall attack, employ force, or
seriously intimidate or resist any person in
authority or any of his agents, while engaged in
the performance of official duties, or on
occasion of such performance
Two forms of Direct Assault
1. Without public uprising, by employing force
or intimidation for attainment of any of the
purposes enumerated in defining the crimes
of rebellion and sedition (1st Form);
Elements: (FIn-Aim-NoPU) (3)
a. Offender employs Force or INtimidation;
b. AIM of offender is to attain any of the
purposes of the crime of rebellion or sedition;
and
c. There is NO Public Uprising.
Note:
Offended party here may be a private person
2.
Without public uprising, by attacking, by
employing force (against), or by seriously
intimidating or by seriously resisting, any
person in authority or any of his agents, while
engaged in the performance of official duties,
or on the occasion of such performance (2nd
form)
Elements: (5)
a. Offender (a) makes an Attack, (b) employs
Force, (c) makes a Serious Intimidation, or
(d) makes a Serious Resistance;
b. Person assaulted is a Person in Authority or
his Agent;
c. At the time of the assault, the person in
authority or his agent
is engaged in the actual performance of
official duties (motive is not
essential); or
ii. is assaulted by reason of the past
performance of official duties (motive
is essential);
d. The offender knows that the one he is
assaulting is a person in authority or his
agent and intends to offend, injure or
assault; and
e. No Public Uprising.
i.
Notes:
1. The offended party is either a person in
authority of an agent of a person in authority.
2. When the offended party is no longer a
person in authority (e.g. retired judge), the
offender cannot be held liable for direct
assault even if the attack is by reason of the
former’s past performance of official duties.
Required Degree of Force, Intimidation, or
Resistance for Liability to Attach Under This
Article
T
FORCE
INTIMIDATION/
EMPLOYED
RESISTANCE
Person in
Need not be
Serious
Authority
serious
Must be of
Agent
serious
Serious
character
General Rule: Direct assault is always
complexed with the material consequence of
the act (Ex. Direct Assault with Murder).
Exception: If resulting in slight physical
injuries, the consequent crime is absorbed.
Notes:
1. Resistance to the person in authority or his
agent must be active (as it must be serious
or grave) to constitute a crime under this
article. It cannot be passive, as when one
throws himself on the ground and refuses to
follow orders given by a person in authority to
move.
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2. [LEONEN] If the use of physical force against
agents of persons in authority is not serious,
the offense is not direct assault, but
resistance or disobedience. In this case
where X grabbed the shirt of Officer Y then
slapped and kicked him several times, it was
held that the exerted force is not dangerous,
grave, or severe enough to warrant the
penalties attached to the crime of direct
assault. (Mallari v. People, G.R. No. 224679,
February 12, 2020)
3. Even when the person in authority or the
agent agrees to fight, direct assault is still
committed.
4. Even another person in authority can be guilty
of assault upon a person in authority or his
agent. However, there can be no assault
upon or disobedience to one’s authority by
another person in authority or his agent when
they both contend that they were in the
exercise of their respective duties.
5. A person in authority or his agent is not in the
actual performance of official duties when he:
a. Exceeds his powers,
b. Uses unnecessary force or violence, or
c. Descends into matters, which are
private in nature.
6. Knowledge of the accused that the victim is a
person in authority or his agent is essential
and such knowledge must be alleged in the
information.
7. Evidence of motive of the offender is
important when the person in authority or his
agent who is attacked or seriously intimidated
is not in the actual performance of his official
duty.
8. Direct assault may be committed upon a
private person who comes to the aid of a
person in authority since he is then
considered an agent of a person in authority.
9. Direct assault cannot be committed during
rebellion. Crime of slight physical injuries is
absorbed in direct assault.
10. The exercise of one’s right to resist
unreasonable searches attempted to be
conducted in the middle of the night, when the
officers are limited to “plain view search”,
cannot be equated with disobedience.
CRIMINAL LAW
Qualifying circumstances:
1. When the assault is committed with a
weapon;
2. When the offender is a public officer or
employee; or
3. When the offender lays hands upon a person
in authority
Direct Assault and Rebellion, Distinguished
DIRECT
ASSAULT
REBELLION
(FIRST FORM)
1. Offender
1. There be a public
employs
uprising and taking
force
or
arms
against
the
intimidation;
government; and
2. Aim
of 2. The
purpose
of
offender is to
the
uprising
attain any of
or movement is
the purposes
either:
of the crime
i. Removal,
from
of rebellion
allegiance to the
or sedition;
Government or its
and
laws, the territory of
3. There is no
the Philippines or
public
any part thereof, or
uprising
of any body of land,
naval or other armed
forces,
or
ii. to deprive the
Chief Executive or
Congress, wholly or
partially, of any of
their
powers or
prerogatives
Art. 149. Indirect Assault
Any person who shall make use of force or
intimidation upon any person coming to the
aid of the authorities or their agents on
occasion of the commission of any of the
crimes defined in the next preceding article
(Direct Assault)
Elements: (PAA-PA-FIn) (3)
1. A Person in Authority or Agent is the victim
of any of the forms of direct assault in the
previous article;
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2. A Person comes to the Aid of such victim; and
3. Offender makes use of Force or Intimidation
against such person coming to the aid of the
victim of direct assault
Offended party
1. May be a private person
2. A private person who comes to the rescue of
an authority or his agent enjoys the privileges
of the latter
Notes:
1. Direct assault must have been committed first
or is being committed for this article to be
applicable.
2. If, while a person in authority or his agent is
performing his duty and someone helps him,
and then the helper is attacked by another
person without, however, attacking the
person in authority or agent, it is not indirect
assault.
Art. 150. Disobedience to Summons Issued by
the
Congress,
its
Committees
or
Subcommittees,
by
the
Constitutional
Commission,
its
Committees,
Subcommittees, or Divisions.
Any person who, having been duly summoned to
attend as a witness before the National Assembly,
(Congress), its special or standing committees and
subcommittees, the Constitutional Commissions and
its committees, subcommittees, or divisions, or
before any commission or committee chairman or
member authorized to summon witnesses, refuses,
without legal excuse, to obey such summons, or
being present before any such legislative or
constitutional body or official, refuses to be sworn or
placed under affirmation or to answer any legal
inquiry or to produce any books, papers, documents,
or records in his possession, when required by them
to do so in the exercise of their functions.
Any person who shall restrain another from attending
as a witness, or who shall induce disobedience to a
summon or refusal to be sworn by any such body or
official.
Punishable Acts:
1. Refusal, without legal excuse, to obey
summons issued by the Congress or any of
its
committees
or
subcommittees,
Constitutional committees or by any
commission or committee chairman or
member authorized to summon witnesses;
2. Refusal of any person present before a
legislative or constitutional body or official to
be sworn or placed under affirmation;
3. Refusal to answer any legal inquiry; or to
produce books, documents, records, etc.,
when required to do so by the said bodies in
the exercise of their functions;
4. Restraining another from attending as
witness in such body; or
5. Inducing disobedience to a summons or
refusal to be sworn
Art. 151. Resistance and Disobedience to a
Person in Authority or the Agents of Such
Persons
Any person who, not being included in the
provisions of the preceding articles, shall
resist or seriously disobey any person in
authority, or the agents of such person, while
engaged in the performance of official duties.
(This disobedience to an agent of a person in
authority may be simple or serious.)
Punishable Acts:
1.
2.
Resistance or serious disobedience; and
Simple disobedience.
Elements
of
Resistance
or
Serious
Disobedience: (3)
1. A Person in Authority or his Agent is engaged
in performance of official duties;
2. The Offender Resists or Seriously Disobeys;
and
3. Acts of the offender are Not included in Arts.
148-150
Note: There can be no resistance and serious
disobedience on occasion of the performance of
official duties. There always has to be an actual
performance of duties when the resistance or
serious disobedience is made.
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Elements of Simple Disobedience: (3)
1. Agent is Engaged in the performance of
official duty or Gives a lawful order;
2. Offender Disobeys such duty; and
3. Disobedience is Not of a Serious nature.
Note: Only agents can be the victims of simple
disobedience.
Disobedience
1. The disobedience must be a failure to comply
with orders directly issued by authorities to
the person, in the exercise of official
functions.
2. The disobedience contemplated under this
article is not disobedience to a law or a failure
to comply with some legal provision.
3. The word “serious” in this article refers only to
disobedience, and not to resistance. Serious
resistance is punished under Art. 148.
Non-deliberate attack or employment of force
1. If an attack is not deliberate, it is only
resistance or serious disobedience.
2. A non-deliberate attack shows a lack of intent
to ignore, disregard, or defy authority.
NOTE: No crime
1. When accused did not have knowledge that
the person arresting him was a peace officer
and he resisted; and
2. When person in authority or agent exceeds
his rights and duties.
Resistance or Serious Disobedience and
Direct Assault, Distinguished
RESISTANCE OR
DIRECT ASSAULT
SERIOUS
DISOBEDIENCE
Authority/agent must Authority/agent must
be
in
actual be in performance of
performance of his official duties or was
duties
assaulted by reason
thereof
Committed only by Committed in four
(non-seriously)
ways: 1) attacking,
resisting or seriously 2) employing force,
disobeying
3) seriously
No
force
is
employed,
or
if
person resisted is
only an agent, only
slight force is used
intimidating,
4) seriously resisting
Attack or employment
of force must be
serious
and
deliberate
Art. 152. Persons in Authority and Agents of
Persons in Authority — Who Shall Be
Deemed As Such
Persons in authority
1. Those directly vested with jurisdiction,
whether as an individual, or as a member
of some court or governmental
corporation board or commission
2. One who has the power or authority to
govern and execute laws
(Not every public officer is a person in
authority.)
Agents
1. Those who, by direct provision of law, or
by election, or appointment by competent
authority, are charged with the
maintenance of public order and the
protection and security of life
2. Any person who comes to the aid of
persons in authority
NOTE: In applying the provisions of Arts. 148
and 151 of the RPC, 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 professional
duties or on the occasion of such
performance, shall be deemed persons in
authority. (P.D. No. 299, and B.P. Blg. 873)
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Chapter 5: Public Disorders
Art. 153. Tumults and Other Disturbances of
Public Order
Any person who shall cause any serious
disturbance in a public place, office, or
establishment, or shall interrupt or disturb
public performances, functions or gatherings,
or peaceful meetings, if the act is not included
in the provisions of Articles 131 and 132
Punishable Acts:
1. Causing any serious disturbance in a public
place, office, or establishment;
2. Interrupting or disturbing performances,
functions, or gatherings, or peaceful
meetings, if the act is not included in Arts.
131 and 132;
3. Making any outcry tending to incite rebellion
or sedition in any meeting, association, or
public place;
4. Displaying placards or emblems which
provoke a disturbance of public order in such
place; and
5. Burying with pomp the body of a person who
has been legally executed.
Qualifying circumstance
1. If the 1st or 2nd act above is tumultuous in
character, the penalty next higher in degree
shall be imposed.
2. Tumultuous – caused by more than three
persons who are armed or provided with
means of violence.
Notes:
1. Serious disturbance must be planned or
intended.
2. If the act of disturbing or interrupting a
meeting or religious worship is committed by
a private individual, or even by a public officer
who is a participant in the meeting or religious
worship which he disturbs or interrupts, this
article is applicable.
3. This crime will be prosecuted separately with
physical injuries if, in the course of causing a
disturbance, offenders injure other people.
CRIMINAL LAW
(People v. Bacolod, 89 Phil. 621 as cited in,
Reyes, Book Two, p.164)
4. Burying with pomp means ostentatious
display of a burial.
Third Act of Tumults and Disturbance of
Public Disorder and Inciting To Sedition or
Rebellion, Distinguished
3rd ACT
PUNISHABLE
INCITING TO
UNDER TUMULTS
SEDITION OR
AND OTHER
REBELLION
DISTURBANCES OF
PUBLIC DISORDER
Done only through May be done through
speech (outcry)
speech or writing
More
of
an Done with intent to
unconscious outburst induce the hearers or
which
is
not readers to commit the
intentionally calculated crime of rebellion or
to induce others to sedition
commit such crimes
The nature of the speeches in both acts is
either rebellious or seditious.
Art. 154. Unlawful Use of Means of
Publication and Unlawful Utterances
Punishable Acts:
1. Publishing or causing to be published, by
means of printing, lithography or any other
means of publication, as news any false
news which may endanger the public
order, or cause damage to the interest or
credit of the State;
2. Encouraging disobedience to the law or to
the constituted authorities or praising,
justifying or extolling any act punished by
law, by the same means or by words,
utterances or speeches;
3. Maliciously publishing or causing to be
published any official resolution or
document without proper authority, or
before they have been published officially;
and
4. Printing, publishing or distributing or (causing
the same) books, pamphlets, periodicals or
leaflets which do not bear the real printer’s
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name, or which
anonymous
are
classified
as
Notes:
1. Actual public disorder or actual damage to
the credit of the State is not necessary. The
mere possibility of causing such danger or
damage is sufficient.
2. R.A.
248
prohibits
the
reprinting,
reproduction or republication of government
publications and official documents without
previous authority.
Art. 155. Alarms and Scandals
Punishable Acts:
1. Discharging any firearm, rocket, firecracker,
or other explosive within any town or public
place, “calculated to cause” (which produces)
alarm or danger;
2. Instigating or taking active part in any
charivari or other disorderly meeting
offensive to another or prejudicial to public
tranquility;
3. Disturbing the public peace while wandering
about at night or while engaged in any
other nocturnal amusement; and
4. Causing any disturbance or scandal in
public places while intoxicated or
otherwise, provided the act is not covered by
Art. 153 (tumults).
Notes:
1. Charivari – mock serenade or discordant
noises made with kettles, tin horns etc.,
designed to deride, insult or annoy
2. Firearm must not be pointed at a person,
otherwise, it is illegal discharge of firearm
(Art. 254).
3. For discharging any firearm, etc., the act
must produce alarm or danger as a
consequence. It is the result, not the intent,
that counts
4. Using firecrackers during fiestas are not
punishable under this article.
Art. 156. Delivering a Person from Jail
Any person who shall remove from any jail or
penal establishment any person confined
therein or shall help the escape of such
person
Elements:
1. Person is confined in jail or penal
establishment; and
2. Offender removes such person therefrom or
helps the escape of such person.
Applicability of article
1. Applicable even if escapee is merely a
detention prisoner
2. Applicable if escapee came from a hospital or
asylum, as these are considered extensions
of the penal institution
Possible offenders
1. This crime is usually committed by an
outsider.
2. It may be committed by an employee,
provided that he does not have custody or
charge of such a person, or is otherwise offduty.
Violation, intimidation, or bribery
1. These are not necessary elements of the
offense. The offense can be committed by
employing “other means.”
2. But the offender is penalized with a higher
penalty if he commits the crime using
violence, intimidation, or bribery.
3. Bribery as contemplated in this article: the act
of bribing someone (s in corruption, under Art.
212) as a means to remove prisoner from jail,
not the act of accepting a bribe.
Liability:
1. Person delivering detainee from jail may be
held liable as an accessory if the person
helped has committed treason, murder, or
parricide, because the person delivering
assists in the escape of the principal.
2. A prisoner who leaves cannot be held liable
under this article.
a. If he is a prisoner by final judgement, he
may be liable under Art. 157.
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b. If he is merely a detention prisoner, he is
not liable since he has no sentence to be
evaded.
Chapter 6: Evasion of Service of Sentence
Art. 157. Evasion of Service of Sentence
Any convict who shall evade service of his
sentence by escaping during the term of his
imprisonment by reason of final judgment
Elements:
1. That the offender is a convict by final
judgment;
2. That he is serving his sentence which
consists in deprivation of liberty (destierro
included); and
3. That he evades the service of his sentence
by escaping during the term of his sentence
Notes:
1. This is a continuing offense.
2. This article does not apply to minor
delinquents,
detention
prisoners,
or
deportees.
3. If the offender escaped within the 15- day
appeal period, the crime is not evasion
because the judgment is not yet final.
Circumstances qualifying the offense:
evasion of sentence was done through:
1. Unlawful entry (by “scaling”);
2. Breaking doors, windows, gates, walls, roofs
or floors;
3. Using picklocks, false keys, disguise, deceit,
violence or intimidation; or
4. Connivance with other convicts or employees
of the penal institution
Art. 158. Evasion of Service of Sentence on
the Occasion of Disorders, Conflagrations,
Earthquakes, or Other Calamities
A convict who shall evade the service of his
sentence, by leaving the penal institution
where he shall have been confined, on the
occasion of disorder resulting from a
conflagration, earthquake, explosion, or
CRIMINAL LAW
similar catastrophe, or during a mutiny in
which he has not participated
Elements:
1. Offender is convict by final judgment confined
in a penal institution;
2. There is a disorder resulting from
conflagration, earthquake, explosion, similar
catastrophes, or a mutiny in which the
offender did not participate;
3. The offender subsequently evades the
service of his sentence by leaving the penal
institution; and
4. Offender fails to give himself up to the
authorities within 48 hours following the
issuance of a proclamation by the Chief
Executive announcing the passing away of
such calamity.
Notes:
1. Applicable only to convicts by final judgment
2. What is punished is not the leaving of the
penal institution, but the failure of the convict
to give himself up.
3. If the offender fails to give himself up, the
offender shall suffer an increase of 1/5 of the
time still remaining to be served under the
original sentence, which will not exceed six
months.
a. Correlate with Art. 98 (Book One, RPC),
as amended by RA No. 10592: a convict
who does not leave the penal institution
on such occasions is entitled to a
deduction of 2/5 of the time still remaining
to be served under the original sentence
4. Mutiny – an organized and unlawful
resistance to a superior officer.
a. There is no mutiny if the prisoners
disarmed the guards and escaped,
because the guards are not their superior
officers.
Art. 159. Other Cases of Evasion of Service
of Sentence
The convict who, having been granted
conditional pardon by the Chief Executive,
shall violate any of the conditions of such
pardon
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Elements:
1. That the offender was a convict;
2. That he was granted a conditional pardon by
the Chief Executive; and
3. That he violated any of the conditions of such
pardon.
Notes:
1. Offender must have been found guilty of the
subsequent offense (through which he
violated his conditional pardon) before he can
be prosecuted under this Article.
2. But under the Revised Administrative Code,
no trial and conviction is necessary for the
exercise by the President of the power to
authorize arrest and reincarceration of
violator of pardon.
Chapter 7: Commission of another Crime
during Service of Penalty Imposed For
another Previous Offense
Art. 160. Commission of Another Crime
during Service of Penalty Imposed for
another Previous Offense
Any person who shall commit a felony after
having been convicted by final judgment,
before beginning to serve such sentence, or
while serving the same
Elements:
1. That the offender was already convicted by
final judgment and sentenced for one
offense; and
2. That he committed a new felony before
beginning to serve such sentence or while
serving the same
a. The 1st one may be any crime, whether
punished under the RPC or special laws.
b. The 2nd one, which is committed before
serving sentence for the first one, or while
serving the same, should be a felony.
(This is because Art. 160 speaks of “the
maximum period” of the penalty
prescribed by law for the new felony.
Penalties prescribed by special laws
have no periods, unlike felonies in the
RPC.)
c. Not required that both crimes are
embraced in the same titles of the RPC
4. Different from recidivism, where the first and
second offenses must be embraced in the
same title of the RPC
5. Different from reiteracion, which requires that
the offender first finishes serving out his
sentence before committing another crime
Pardon
1. When a quasi-recidivist reaches the age of 70
and he has served out his original sentence,
he may be pardoned.
2. He may also be pardoned if he finishes
serving the original sentence only after he
reaches 70.
Reasons for not pardoning such a 70-year old
convict
1. He is a habitual criminal; or
2. If his conduct or other circumstances shows
he is not worthy of such clemency
———— end of topic ————
D. CRIMES AGAINST PUBLIC INTEREST
Chapter 1: Forgeries
Quasi-recidivism
1. This is not a felony but a special aggravating
circumstance. The effect is to impose the
maximum period of the penalty applicable for
the subsequent felony.
2. Cannot be offset by ordinary mitigating
circumstances, but only privileged ones, such
as minority
3. Quasi recidivism involves two crimes.
Section 1 – Forging the Seal of the
Government of the Philippine Islands, the
Signature or Stamp of the Chief Executive
Art. 161. Counterfeiting the Great Seal of the
Government of the Philippine Islands,
Forging the Signature or Stamp of the Chief
Executive
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CRIMINAL LAW
Forging the Great Seal of the
Government;
Forging the signature of the President;
and
Forging the stamp of the President.
2. Offender made, imported, or uttered said
coins; and
3. In case of uttering, offender should be in
connivance with either the counterfeiter or the
importer
Note: When the signature of the President is
forged, it is not falsification but forging of
signature of the Chief Executive, under this
article.
Notes:
1. A coin is counterfeit if it is forged, or if it is not
authorized by the government as legal
tender, regardless of its intrinsic value
2. Counterfeiting is the imitation of a legal or
genuine coin such as to deceive an ordinary
person in believing it to be genuine.
3. To utter is to pass counterfeited coins, sell,
deliver or give away.
4. To import is to bring them into port.
Importation is complete even before entry at
the Customs House.
5. This article also applies to Philippine coins,
foreign state coins, and coins withdrawn
from circulation. This does not require that
the coins counterfeited be legal tender.
6. When a real coin is made to appear like a coin
with higher value by painting, etc. the crime is
estafa because the coin is genuine.
1.
2.
3.
Art. 162. Using Forged Signature or
Counterfeit Seal or Stamp
Any person who shall knowingly make use of
the counterfeit seal or forged signature or
stamp mentioned in the preceding article
Elements:
1. Great
seal
was
counterfeited
or
signature/stamp forged;
2. Offender knew of such counterfeiting or
forgery; and
3. Offender uses such fake seal, stamp, or
signature.
Notes:
1. The offender in this article should not be the
one who did the counterfeiting or forgery,
otherwise, he will be liable under the previous
paragraph.
2. Offender is punished under this article with a
penalty one degree lower than that provided
in the next preceding article, even if his act is
that of an accessory to the crime of
counterfeiting the great seal or forging the
stamp or signature.
Section 2 – Counterfeiting Coins
Art. 163. Making, Uttering, and Importing
False Coins
Any person who makes, imports, or utters
false
COINS,
in
connivance
with
counterfeiters or importers
Elements:
1. There are false or counterfeited coins;
Art. 164 – Mutilation of Coins; Importation and
Utterance of Coins
1. Mutilating COINS of legal currency with the
further requirement that there be intent to
damage or to defraud another; and
2. Importing or uttering such mutilated COINS
with the further requirement that there must
be connivance with the mutilator or importer
in case of uttering
Notes:
1. Mutilation is to take off part of the metal
content of the coin, either by filing it or
substituting it for another metal of inferior
quality, to diminish by ingenious means the
metal in the coin.
2. Foreign notes and coins are not covered by
this article. Mutilation must be of Philippine
legal tender.
3. There must be intention to mutilate.
4. Coins must always be real and legal tender.
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5. Mutilating alone is punishable, but importing
or uttering must be concurrent with
connivance.
Art. 165. Selling of False or Mutilated Coins
Without Connivance
1. Possession, with intent to utter, COINS
counterfeited or mutilated by another;
and
2. Actually uttering such COINS, while
knowing them to be false or mutilated
Elements of Act No. 1 (3)
1. Possession (in general, from actual
possession to constructive possession) of
coins;
2. Intent to utter them; and
3. Knowledge
that
the
coins
are
forged/mutilated.
Elements of Act No. 2 (2)
1. Actually uttering such coins; and
2. Knowledge
that
the
coins
forged/mutilated
are
On being legal tender
1. This article does not require that the coin
being uttered is legal tender.
2. But if the coin being uttered or possessed is
a mutilated coin, it must be legal tender,
because of Art. 165.
Punishing possession and utterance
1. The possession or utterance punished under
this article is that which is done without
connivance with the original forgers,
mutilators, or importers.
2. If, along with possession or utterance, one is
also the author or the mutilation or forgery, he
will be liable under either Arts. 164 or 165.
3. Possession and utterance must always be
with the knowledge that these are forged or
mutilated coins. Knowledge need not be
express, but may be inferred from acts of the
offender.
Section 3 – Forging Treasury or Bank Notes,
Obligations and Securities; Importing and
Uttering False or Forged Notes, Obligations
and Securities
Art. 166. Forging Treasury or Bank Notes, or
Other Documents Payable to Bearer;
Importing and Uttering Such False or Forged
Notes or Documents
1. Forging or falsification of treasury or
banking NOTES or other documents;
2. Importation of such false or forged
obligations or NOTES; and
3. Uttering such in connivance with the
forgers or importers.
Notes:
1. Forging here is committed by:
a. giving a treasury or bank note or any
instrument payable to bearer or order an
appearance of a true and genuine
document; or
b. erasing, substituting, counterfeiting or
altering by any means the figures and
letters, words, signs contained therein
(Art. 169)
2. Obligation or security includes bonds,
certificates of indebtedness, bills, national
bank notes, coupons, treasury notes,
certificates of deposit, checks, drafts for
money, and sweepstakes money.
3. Forging PNB checks is not included under
this article. That is falsification of commercial
document under Article 172.
Art. 167. Counterfeiting, Importing, or
Uttering Instruments Not Payable to Bearer
Any person who shall forge, import or utter, in
connivance with the forgers or importers, any
instrument payable to order or other
document of credit not payable to bearer
Elements:
1. There is an instrument payable to order or
other document not payable to bearer;
2. The offender forges such document or
imports or utters such forged instrument; and
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3. In case of uttering, the offender is in
connivance with the forgers or importers
Note: Applies only to cheques payable to the
order of a specific, named person
Art. 168. Illegal Possession and Use of False
Treasury or Bank Notes and Other
Instruments of Credit
Any person who shall knowingly use or have
in his possession, with intent to use, any of
the false or falsified instruments referred to in
this section
Elements:
1. Documents in the preceding articles (that is,
Arts, 166 and 167) are forged or falsified by
another person;
2. Offender knows them to be forged or falsified;
3. He performs any of these acts:
a. using any of such forged or falsified
instruments; or
b. possessing, with intent to use any of such
forged or falsified instruments
Notes:
1. The act sought to be punished is knowingly
possessing with intent to use any of such
forged treasury or bank notes, etc.
2. The accused has the burden to give a
satisfactory explanation of his possession of
forged bills. Mere possession of false money
bills, without intent to use them to the damage
of another, is not a crime.
3. A person in possession of falsified documents
and who makes use of the same is presumed
to be the material author of the falsification.
Art. 169. How Forgery is Committed
Ways forgery is committed:
1. Giving any note/ document/ instrument
mentioned in the preceding articles (that
is Arts. 166-168) the appearance of a
true/genuine document; and
2. Erasing, substituting, counterfeiting, or
altering
what
is
in
the
note/document/instrument
CRIMINAL LAW
Section 4 – Falsification of Legislative, Public,
Commercial, and Private Documents, and
Wireless Telegraph and Telephone Messages
FALSIFICATION
FORGERY
The commission of any Used in Art 169,
of the eight acts which refers to the
mentioned in Art 171 falsification
and
on legislative, public or counterfeiting
of
official, commercial, or treasury or bank
private documents, or notes
or
any
wireless, or telegraph instruments payable
messages
to bearer or holder
Art. 170. Falsification of Legislative
Documents
Any person who, without proper authority
therefor, alters any bill, resolution, or ordinance
enacted or approved or pending approval by
either House of the Legislature or any provincial
board or municipal council
Elements:
1. There is a bill, resolution, or ordinance
enacted, approved, or pending approval by
Congress or any provincial or municipal
council/board;
2. The offender alters it;
3. He has no proper authority to do so; and
4. Alteration has changed the meaning of the
document.
Notes:
1. The bill, resolution, or ordinance must be
genuine. This article does not cover a
fabricated or simulated legislative document.
2. Offender can be any person, for as long as he
has no authority to alter.
3. This article only punishes alteration which
changes its meaning. Any other tampering
with legislative documents is covered under
Art. 171 or 172.
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CRIMINAL LAW
Art. 171. Falsification By Public Officer or
Employee, or Notary or Ecclesiastical
Minister
2. Feigning – simulating a signature,
handwriting, or rubric, there being no existing,
genuine one
Elements:
1. Offender is a public officer, employee,
ecclesiastical minister, or notary public;
2. Takes advantage of his official position;
3. Falsifies a document by committing any of the
acts mentioned in the article; and
4. In case the offender is an ecclesiastical
minister, the falsification be committed with
respect to affecting the civil status of persons.
Requisites of Counterfeiting/Imitating (2)
1. Intent or attempt to imitate; and
2. Some resemblance between the genuine and
forged handwriting, signature, or rubric
Takes advantage/abuse of official position
1. He has the duty to make or prepare, or
otherwise intervene in the preparation of, a
document; and
2. He has the official custody of the document
which he falsifies.
Note: Even if the offender is a public officer or
employee, if the offense was not committed with
abuse of office, he will be punished as a private
citizen.
Document
1. Any written statement by which a right is
established or an obligation extinguished
2. Must be complete or have the appearance of
a true and genuine document
3. Must be of apparent legal efficacy
4. Pars. 6, 8, and the second part of par. 7 of
Art. 171 require a genuine document, while
the others do not
Note: Even if the document is originally a private
document, if it is in the official custody of the
public officer or employee or if it forms part of the
official record when it is falsified by the public
officer or employee, then the crime committed
should be punished under this article.
1st Act: Counterfeiting or Imitating any
Signature, Handwriting or Rubric
Two ways under this paragraph
1. Counterfeiting – imitating any handwriting,
signature or rubric; and
Intent
1. If there is sufficient resemblance between
the genuine and the forged signatures, it can
be concluded that the accused had intention
to imitate the genuine signature.
2. There can be no “intent” to counterfeit or
imitate if the person had authority to sign.
Resemblance
1. Imitation need not be perfect.
2. Resemblance must be such that is likely to
deceive an ordinary person dealing with the
document.
2nd Act: Causing it to appear that persons
have participated in any act or proceeding
when they in fact did not so participate.
Elements (2)
1. Offender caused it to appear in a document
that a person has participated in an act or
proceeding; and
2. The person did not in fact so participate
Notes:
1. Imitation of a signature is not required in this
article.
2. If performed by a private person, as with all
acts under Art. 171, Art. 172 should be
applied.
3rd Act: Attributing to persons who have
participated in an act or proceeding
statements other than those in fact made by
them
Elements (3)
1. Persons participated in an act or proceeding;
2. Persons made statements in that proceeding;
and
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3. Offender attributed to such persons
statements other than those in fact made
4th Act: Making Untruthful Statements in a
Narration of Facts
Elements (4)
1. Offender makes a narration of facts;
2. There was a legal obligation to disclose the
truth;
3. The facts narrated are absolutely false; and
4. Wrongful intent of injuring a third person
Narration of facts
1. Must be narration of facts, not conclusions of
law; and
2. Does not include mistakes in judgment
Legal obligation
1. There is a law requiring the disclosure of the
truth of the facts narrated.
2. If the law does not require a piece of
information, even if the accused lied about
that info, he is not liable.
3. Legal obligation is inherent in applying for a
residence (community tax) certificate.
Absolutely false
1. Offender must be aware of falsity
2. If the statements are not altogether false,
there being some colorable truth in such
statements, the crime of falsification is not
deemed to have been committed.
Wrongful intent
1. A person is not guilty if he was not animated
by a desire to do wrong or to injure a third
person.
2. Good faith is a defense. If offender believed
what he put was true, he is not liable.
Notes:
1. Even if consent to enter into a contract was
obtained by violence, it does not make facts
narrated in it false.
2. There can be falsification by omission.
Jurisprudence:
[LEONEN] The public officer must have taken
advantage of his or her official position to commit
the falsification, either because he or she has the
duty to make, prepare, or intervene in the
preparation of a document, or because he or she
has the official custody of the falsified document.
Y, as the NAMRIA Administrator tasked with
conducting geophysical surveys as well as
managing resource information needed by both
the public and private sectors, had the duty to
disclose the truth of the facts he narrated in his
letter. It was not a mere opinion letter, but rather
was what served as basis for the Republic’s
entering into the Compromise Agreement with X.
In purposefully making untruthful statements in a
narration of facts, Y must thus be held liable for
falsification. (Garcia-Diaz v. Sandiganbayan,
G.R. 193236 & 193248-49, September 17, 2018.)
5th Act: Altering True Dates
Notes:
1. There is falsification only when the date
mentioned in the document is essential.
2. Change of date must affect the veracity of
the document or the effects/meaning thereof.
6th Act: Making any alteration or intercalation
in a genuine document which changes its
meaning
Elements (4)
1. Alteration (change, revision) or intercalation
(insertion) on a document;
2. Made on a genuine document;
3. Alteration or intercalation has changed its
meaning; and
4. Meaning of the document becomes false
Changes its meaning
1. Changes the effects which the document
would otherwise produce; and
2. Unless that happens, there could not exist an
essential element or intention to commit a
crime.
Meaning becomes false
1. Alteration which speaks the truth is not
falsification.
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2. Must be alteration/intercalation which causes
the instrument to speak a language different
in legal effect from what it originally spoke.
7th Act: Issuing, in an authenticated form, a
document purporting to be a copy of an
original document when no such original
exists, or including in such a copy a statement
contrary to, or different from, that of the
genuine original
Offender
1. Committed only by a public officer or notary
public who takes advantage of his official
position
2. If a private individual is in conspiracy with
the offender, he is guilty of this crime and
incurs the same liability and penalty as the
public officer or notary.
Intent to gain or prejudice
1. The idea of gain or intent to cause damage to
a third person is not necessary.
2. It is the official character of the offender which
is mainly taken into consideration.
3. It is the interest of the community which is
intended to be protected.
8th Act: Intercalating any instrument or notes
relative to the issuance thereof in a protocol,
registry, or official book
Notes:
1. Contemplates the changing of entries in
official records, such as the local civil registry.
2. Malicious intent is not necessary.
Art. 172. Falsification by Private Individuals
and Use of Falsified Documents
Punishable Acts:
1. Falsification of public, official or commercial
documents by a private individual;
2. Falsification of private documents by any
person; and
3. Use of falsified documents in a judicial
proceeding, or to the prejudice of another in
any other proceeding
CRIMINAL LAW
Elements of Act No. 1 (3)
1. Offender is a private individual or public
officer not taking advantage of his position;
2. He committed any act of falsification under
Art. 171
a. Exception: Par.7, which by definition
cannot be committed by a private
individual/public officer not taking
advantage of his position because the
authentication of a document can be
made only by the custodian or the one
who prepared and retained a copy of the
original document; and
3. It is a public/official/commercial document
that is falsified.
Elements of Act No. 2 (3)
1. Offender committed any of the acts of
falsification;
2. It is a private document that is falsified;
3. There is damage caused to a third party or at
least intent to cause such damage;
a. Need not be material damage;
b. Damage to one’s honor is included; and
c. Effect need not be to profit offender for as
long as it damaged another.
Elements of Act No. 3 (Judicial proceeding) (3)
1. Offender knew document was falsified by
another;
2. Document is embraced in Art. 171, or nos. 1
or 2 of Art. 172; and
3. Document is introduced in evidence in a
judicial proceeding
Elements of Act No. 3 (any other proceeding)
(3)
1. Offender knew document was falsified by
another;
2. Document is embraced in Art. 171, or nos. 1
or 2 of Art. 172;
3. Document is used in a non-judicial
proceeding; and
4. Such use caused damage to another or there
was at least intent to cause such damage
Damage or intent to damage a third party
1. Only necessary when falsifying private
documents, or using any falsified document
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in
proceedings
other
than
judicial
proceedings
2. Not necessary when falsifying a public,
official, or commercial document
3. Also not necessary when documents are
used in judicial proceedings
Four kinds of documents
1. Public document
a. Issued by public official in response to the
exigencies of public service;
b. Public official intervened in execution;
and
c. Notarized by a notary public or a
competent public official with required
solemnities
2. Official document
a. Issued by a public official in the exercise
of the functions of his office
b. All pleadings filed with the courts are
public or official documents.
3. Commercial document
a. Those defined and regulated by the
Code of Commerce
b. Those used to promote or facilitate trade
c. Cash disbursement vouchers are not
included.
4. All other writings are private.
Private documents considered Public
1. Deed which was privately falsified, but then
presented to the notary public by the falsifier
for acknowledgment
2. Private document which becomes part of an
official record and is certified by a public officer
duly authorized by law.
Presumptions
1. Possessor and utterer of a falsified document
is presumed to be the author of the
falsification.
2. Above is especially so if accused has
sufficient and strong motive to falsify.
a. “That petitioner benefitted and even
profited from the falsified notarized
Release of Real Estate Mortgage are
strong indications that she participated in
the falsification of the same document.”
CRIMINAL LAW
(Nierva v. People, G.R. No. 153133,
2006)
Complexed with Estafa
1. There is a complex crime of falsification of a
public, official, or commercial document with
estafa.
2. There is no such complex crime if what is
involved is a private document.
a. Reason: To be punishable, falsified
private documents need to be
accompanied by damage, or intent to
damage a third person. The resulting
damage from an act constituting
estafa actually merely consummates
the crime of falsification of a private
document.
b. Distinguished from falsification of a
public document, which needs no
damage to a third party to be
punishable: Any damage resulting
from use of the falsified public
document could be attributed to a
separate crime such as estafa,
because damage is not an element of
falsification of a public document.
c. If a private document is falsified to
conceal the misappropriation of
money or other personal property
which has been in the possession of
the offender, the crime committed is
estafa with abuse of confidence only.
Falsification of Private and Public
Documents, Distinguished
Private
Public Document
Document
Prejudice to a The
principal
thing
third party is punished is the violation
primarily taken of public faith and the
into account. If preservation of truth,
such damage is which the document
not apparent, or solemnly proclaims. It is
there is at least immaterial whether or
no intention to not some prejudice has
cause it, the been caused to third
falsification is not persons.
punishable.
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Notes:
1. Falsification is consummated the moment the
genuine document is altered or the moment
the false document is executed.
2. There may be a frustrated stage if falsification
is imperfect.
3. Usage, which is not an element of
falsification, is punished separately from
actual falsification.
a. It cannot be deemed necessarily included
in the crime of falsification of a public
document by a public officer or employee
or by a private person.
b. It may be a lesser offense.
Jurisdiction over cases of Falsification of
Public Documents
Falsification of Public Document falls within the
jurisdiction of the MeTC, MTC, and MCTC, not
with the RTC, pursuant to Section 32(2) of BP
129. (Ricardo L. Atienza and Alfredo Castro v
People, GR No. 188694, February 12, 2014)
Art. 173. Falsification of Wireless, Cable,
Telegraph, and Telephone Messages, and
Use of Falsified Messages
Punishable Acts:
1. Uttering fictitious messages;
2. Falsifying messages; and
3. Using falsified messages.
Elements of Acts No. 1 and No. 2 (2)
1. Offender is an officer or employee of
Government, or of a private corporation
engaged in service of sending or receiving
wireless, cable, telegraph or telephone
messages;
2. The offender either
a. Utters a fictitious message; or
b. Falsifies a message
Elements of Act No.3 (3)
1. Accused knew wireless, cable, telegraph or
telephone messages were falsified;
2. Accused used such falsified dispatches; and
3. Such use resulted in prejudice to a third party,
or there was at least intent to prejudice
CRIMINAL LAW
Liability of private individual
1. Cannot commit the first two acts by direct
participation, unless he is an employee of a
corporation engaged in telecommunications
services
2. Can be held guilty as a principal by
inducement, if he induced a public or
government employee to perform punishable
acts
3. Connection with telecommunications network
is not necessary to commit third act; any
person can be held liable for the use of
falsified dispatches
Note: Current telecommunication companies like
Globe, Sun, Smart are not contemplated by this
article as corporations engaged in sending or
receiving messages since no operator actually
intervenes. They merely provide the conduit to
facilitate message exchanges.
Section 5 – Falsification of Medical
Certificates, Certificates of Merit, Service, and
the Like
Art. 174 – False Medical Certificate, False
Certificates of Merit or Service, etc.
Persons liable:
1. Physician or surgeon, for falsifying a
medical certificate;
2. Public officer, for falsifying a certificate of
merit, service, good conduct, or other
similar circumstances; and
3. Private individual, for falsifying any of the
documents mentioned in the first two acts
“Similar Circumstances”
That is, similar to merit, service, or good conduct
Thus, certificates pertaining to ownership of
property are not covered.
Art. 175 – Using of False Certificates
The use of a falsified document mentioned in
the preceding article
Elements:
1. Crime in Art. 174 has been committed by
another person;
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2. Offender knew of the falsified nature of the
certificate; and
3. Offender used such false certificate
Scope:
1. This article only applies to use of those
falsified documents covered by Art. 174.
2. This article applies, even if the falsified
documents were used in a judicial
proceeding.
Section 6 – Manufacturing, Importing, and
Possession of Instruments or Implements
Art. 176 – Manufacturing and Possession of
Instruments or Implements for Falsification
Any person who shall make or introduce into
the Philippines any stamps, dies, marks, or
other instruments or implements intended to
be used in the commission of the offenses of
counterfeiting or falsification mentioned in the
preceding sections of this chapter
Punishable Acts:
1. Making or introducing into the country
implements
and
instruments
for
counterfeiting/falsification
2. Possessing
(including
constructively,
whether from actual ownership or mere
control) items made or imported by another
person, with intent to use the same
Implements confiscated
1. Not necessary that they form a complete set
for counterfeiting; and
2. Enough that they may be employed by
themselves or together with other implements
to commit the crime of counterfeiting or
falsification
Chapter 2: Other Falsities
Section 1 – Usurpation of Authority, Rank,
Title, and Improper Use of Names, Uniforms,
and Insignia
Art. 177. Usurpation of Authority and Official
Functions
Any person who, under pretense of official
position, shall perform any act pertaining to
any person in authority or public officer,
without being lawfully entitled to do so,
Punishable Acts:
1. Usurpation of authority – knowingly and
falsely representing oneself to be an officer,
etc.
a. Mere act of knowingly and falsely
representing oneself to be an officer, etc.,
is sufficient.
b. It is not necessary that he performs an
act pertaining to a public officer.
2. Usurpation of official functions – doing any
act pertaining to any public officer, etc.
without being authorized to do so
a. Essential that offender should have
performed an act pertaining to a public
officer
Representation
1. Must be positive, express, and explicit;
2. Must represent officers named in article, and
not just any authority figure; and
3. Representation may be shown in acts, and
not just words
Offenders
1. This article may be violated by both private
and public officers.
Note: This article does not apply to an occupant
of a public position under color of title. A usurper
is “one who introduces himself into an office that
is vacant, or who, without color of title, ousts the
incumbent and assumes to act as an officer by
exercising some of the functions of the office.”
(People v. Buenaflor, et. al., CA., 72 O.G. 364)
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Jurisprudence:
[LEONEN] The crime of
usurpation of authority punishes the act of
knowingly and falsely representing oneself to be
an officer, agent, or representative of any
department or agency of the government.
However, Y did not claim to write for and on behalf
of the President in the letter. Y didn’t maliciously
represent himself as an agent, officer, or
representative of the government. He signed the
letter under his own name and under the words,
“By Authority of the Secretary.” Clearly, the
Ombudsman is correct in finding that there wasn’t
sufficient evidence to support an indictment for
usurpation of authority or official functions.
(Degamo v. Office of the Ombudsman, G.R. No.
212416, December 5, 2018).
Art. 178. Using Fictitious Name and
Concealing True Name
Any person who shall publicly use a fictitious
name for the purpose of concealing a crime,
evading the execution of a judgment, or
causing damage
Any person who conceals his true name and
other personal circumstances
Punishable Acts:
1. Using fictitious name; and
2. Concealing true name and other personal
circumstances.
Elements of Using fictitious name (3)
1. Offender uses a fictitious name;
2. Such name is used publicly;
3. Purpose is:
a. Conceal a crime;
b. Evade execution of judgment; or
c. Cause damage to public interest
Note: If the purpose is for causing damage, it
must be damage to public interest. If it is damage
to private interest, the crime will be Estafa under
Art. 315, subdivision 2, par. (a).
CRIMINAL LAW
Elements of Concealing true name and other
personal circumstances (2)
1. Offender conceals true name and other
personal circumstances; and
2. Purpose is to conceal identity
Use of Fictitious Name and Concealing of
True Name, Distinguished
FICTITIOUS
CONCEALING
NAME
TRUE NAME
Element of publicity Publicity element not
must be present; and necessary; and only one
three
possible purpose: conceal true
purposes:
conceal identity.
crime,
evade
execution
of
a
judgment, and cause
damage to public
interest
Note:
Instances when a Filipino citizen residing in
this country can use an alias legally (RA No.
6085):
1. As a pseudonym in cinematic and other
entertainment fields
2. As a pen name in literary compositions or
works
3. As a pseudonym in television and radio
broadcasting
Art. 179. Illegal Use of Uniforms or Insignia
Any person who shall publicly and improperly
make use of insignia, uniforms or dress
pertaining to an office not held by such person
or to a class of persons of which he is not a
member
Elements:
1. Offender uses an insignia, uniform, or dress;
2. Such pertains to an office not held by offender
or a class of persons of which he is not a
member; and
3. Use done publicly and improperly
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Insignia, Uniform, or Dress
1. Genuine insignia, uniform, or dress is not
necessary. Offender can wear an imitation
and still be liable.
2. An exact imitation is not necessary, for as
long as there is a colorable resemblance
calculated to deceive the general public.
3. Must pertain to an actual officer or class of
persons. The person is not liable if the
insignia, uniform, or dress pertains to an
imaginary office or class.
Section 2 – False Testimony
False Testimony - committed by a person who,
being under oath (or affirmation) and required to
testify as to the truth of a certain matter at a
hearing before a competent authority, shall deny
the truth or say something contrary to it
Art. 180. False Testimony against a
Defendant
Any person who shall give false testimony
against the defendant in any criminal case
Elements:
1. That there be a criminal proceeding;
2. Offender testifies falsely therein, under
oath
3. The testimony is against the defendant
therein;
4. Offender knows that his testimony is false;
and
5. The defendant against whom the false
testimony is given is either acquitted or
convicted in a final judgment.
Notes:
1. Violation of this article requires criminal
intent. Hence, it cannot be committed
through negligence.
2. The offender need not impute guilt upon the
accused to be liable.
3. The defendant must at least be sentenced to
a correctional penalty or a fine or must
have been acquitted.
4. The witness who gave false testimony is
liable even if the court did not consider his
testimony.
CRIMINAL LAW
5. The extent of the penalty depends upon the
sentence imposed on the defendant, except
in the case of a judgment of acquittal.
6. Since Art. 180 does not prescribe the penalty
where the defendant in a criminal case is
sentenced to a light penalty, false testimony
in case of a light penalty cannot be punished,
considering that a penal law must always be
strictly construed.
Art. 181. False Testimony Favorable to the
Defendant
Any person who shall give false testimony in
favor of the defendant in a criminal case
Notes:
1. Testimony by negative statement may still be
in favor of the defendant.
2. False testimony in favor of defendant need
not directly influence the decision of acquittal
nor benefit the defendant. The intent to favor
the defendant is sufficient.
3. A statement of mere opinion is not
punishable.
4. Conviction or acquittal is not necessary
(final judgment is not necessary), but gravity
of crime in principal case should be shown.
5. The defendant who himself falsely testifies in
his own behalf by falsely imputing to some
other person the commission of a grave
offense in criminal case, is guilty of false
testimony favorable to the defendant.
6. Rectification made spontaneously after
realizing mistake is not false testimony.
Art. 182. False Testimony in Civil Cases
Any person found guilty of false testimony in
a civil case
Punishable act
Giving false testimony in a civil case either for or
against the plaintiff or the defendant
Elements:
1. Testimony is given in a civil case;
2. Testimony is related to the issue presented;
3. The testimony is false;
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4. It is given by the defendant who knows it to
be false; and
5. The testimony is malicious and with intent to
affect the issue.
Art. 183. False Testimony in Other Cases and
Perjury in Solemn Affirmation
Any person, who knowingly makes untruthful
statements and not being included in the
provisions of the next preceding articles, shall
testify under oath, or make an affidavit, upon
any material matter, before a competent
person authorized to administer an oath in
cases in which the law so requires
Punishable acts
1. False testimony under oath in a proceeding
other than judicial; and
2. False affidavit.
Elements: (4)
1. Statement under oath or affidavit upon
material matter;
2. Made before a competent officer authorized
to administer such oath;
3. Willful and deliberate assertion of a falsehood
in the statement;
a. Perjury cannot be willful where the oath
is according to belief or conviction as to
its truth; (Judge Pimentel Notes p. 76)
b. It must appear that the accused knows
his statement to be false or is consciously
ignorant of its truth (Monfort III, et. al., v.
Salvatierra, G.R. No. 168301 2007); and
4. The information given is required by law
Definitions
1. Oath – any form of attestation manifesting a
commitment to perform an act faithfully and
truthfully
2. Affidavit – a sworn statement in writing made
before an authorized officer
3. Material Matter – the main fact; the subject of
inquiry or circumstances which tend to prove
the fact;
a. Legitimately affects the credit of any
witness who testifies; or
b. Strengthens or corroborates testimonies
CRIMINAL LAW
Competent officer
1. Person who has a right to inquire into the
questions presented to him under his
jurisdiction
2. No perjury if testimony/statement not made
before non-competent authority
Required by law
1. There is a law requiring it; OR
2. The statement or document is made for legal
purposes; and
3. It is sufficient that the oath had been
administered with a view of carrying into
effect a legal purpose
Materiality
1. There must be competent proof of the
materiality of the false testimony.
2. The matter must not simply be pertinent (that
is, relating to collateral matters which make
more or less probable the proposition at
issue). It must also be material (that is,
directly proving or disproving a fact at issue).
3. No perjury if false imputations in testimony or
affidavit were not on material matter.
The assertion must be deliberate and willful
A mere assertion of a false objective fact, a
falsehood, is not enough. It must be willful and
deliberate “Willful” means intentionally, with evil
intent and legal malice, with the consciousness
that the alleged perjurious statement is false, with
the intent that it should be received as a
statement of what was true in fact. “Deliberate”
implies meditated, as distinguished from
inadvertent, acts. (Judge Pimentel Notes p. 89)
Subornation of perjury
1. Knowingly and willfully procuring another to
swear falsely.
2. While this is not expressly punished in the
Revised Penal Code, the offender may be
liable as a principal by inducement.
Note:
Probate of a will is neither civil nor criminal. Thus
it is not covered under this article, even if done in
court and under oath.
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Art. 184. Offering False Testimony in
Evidence
Any person who shall knowingly offer in
evidence a false witness or testimony in any
judicial or official proceeding
Elements:
1. Offered in evidence false witness
testimony;
2. Offender knew of falsity; and
3. Offered in judicial or official proceedings
Elements of Act No.1 (4)
1. There is a public auction;
2. The accused solicited gifts/promise of gifts;
3. The solicitation is in consideration of
refraining from taking part in the auction; and
4. His intent is to cause reduction of the price of
the thing auctioned
or
Notes:
1. This article applies when the offender, without
inducing another but knowing him to be a
false witness, presented him and the latter
testified falsely in a judicial or official
proceeding.
2. The felony is consummated the moment a
false witness is offered in any judicial or
official proceeding. Looking for a false
witness is not punished by law as that is not
offering a false witness.
3. The false witness need not be convicted of
false testimony. A mere offer to present him is
sufficient.
Chapter 3: Frauds
Section 1 – Machinations, Monopolies, and
Combinations
Art. 185. Machinations In Public Auctions
Any person who shall solicit any gift or
promise as a consideration for refraining from
taking part in any public auction, and any
person who shall attempt to cause bidders to
stay away from an auction by threats, gifts,
promises, or any other artifice, with intent to
cause the reduction of the price of the thing
auctioned
Punishable Acts:
1. Soliciting gift to refrain from taking part in
public auction; and
2. Attempting to cause bidders to stay away
from an auction
Elements of Act No.2 (4)
1. There is a public auction;
2. The offender attempted to cause the bidders
to stay away;
3. Means used by the offender: threats, gifts,
promises or any other artifice; and
4. Intent of the offender: reduction of price of
thing auctioned
Acts are formal crimes
1. It is not required that the person making a
proposal actually refrains from taking part in
any public auction. The crime is committed by
mere solicitation.
2. It is not required that the person accept the
offer or gift. The crime is consummated by
mere offering of the gift or promise in
consideration of refraining to take part.
(Art. 185 is Supplemented by the Price
Competition Act [RA No. 10667]. Art. 186 is
Repealed by the same law.)
(Arts. 188 and 189 are Repealed by the
Intellectual Property Code [RA No. 8293] to the
extents they are inconsistent with the same law.)
Section 2. – Frauds
Art. 187. Importation and Disposition of
Falsely Marked Articles or Merchandise Made
of Gold, Silver, or Other Precious Metals or
Alloys
Any person who shall knowingly import or sell
or dispose of any article or merchandise made
of gold, silver, or other precious metals, or their
alloys, with stamps, brands, or marks which fail
to indicate the actual fineness or quality of said
metals or alloys
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Elements:
1. Offender imports, sells, or disposes items;
2. The items are articles or merchandise made
of gold, silver, or other precious metals, or
their alloys;
3. The stamps, brands, or marks used by the
offender fail to indicate the actual fineness
or quality of the items; and
4. The offender knows of such failure of proper
indication
Selling, disposing, and importing
1. It is not necessary that such items are
actually sold and that the public is actually
deceived, for one to be liable under this
article.
2. If one is charged with importation, there must
be proof that item was in fact imported.
Offender
1. Those who import, sell, or dispose of such
items.
2. This article is not applicable to the
manufacturer of articles of gold, silver, etc. He
would be liable for Estafa.
————— end of topic ————-
E. CRIMES AGAINST PUBLIC MORALS
Please see SPL reviewer on R.A. 9287 (An Act
increasing penalties for illegal numbers games
and amending certain provisions of P.D. 1602)
and P.D. 1602 (Prescribing stiffer penalties in
illegal gambling), which repealed: a) Arts. 195199 RPC, b) the provisions of P.D. 483 (Betting
Law), and c. the provisions of P.D. 449
(Cockfighting Law) insofar as they are
inconsistent with it.
Under P.D. 1602, the following are liable:
1. Any person who shall directly or indirectly
take part in any illegal or unauthorized
activities or games of:
a. Cockfighting, jueteng, jai-alai or horse
racing to include bookie operations and
game fixing, numbers, bingo and other
forms of lotteries;
CRIMINAL LAW
b. Cara y cruz, pompiang and the like;
c. 7-11 and any game using dice;
d. Black jack, lucky nine, poker and its
derivatives, monte,
baccarat, cuajo,
pangguigue and other card games;
e. Pak que, high and low, mahjong, domino
and other
games using
plastic tiles
and the like;
f. Slot machines, roulette, pinball and othe
r mechanical contraptions and devices;
g. Dog racing, boat
racing,
car racing and other forms of races;
h. Basketball, boxing, volleyball, bowling,
pingpong and other forms of individual
or team contests to include gamefixing,
point
shaving
and
other
machinations; and
i. Banking
or percentage
game, or
any other game or scheme, whether
upon chance or skill, wherein wagers
consisting of money, articles of value or
representative of value are at stake or
made; and
2. Any person who knowingly permits any
form of gambling in an inhabited or
uninhabited place or in any building, vessel or
other means of transportation owned or
controlled by him. A heavier penalty is
imposed:
a. if the place where gambling is carried on
has a reputation of a gambling place or
b. that prohibited gambling is frequently
carried on therein, or
c. the place is a public or government
building or barangay hall.
3. Any person who maintains or conducts the
above gambling schemes. A heavier penalty
shall be imposed if the maintainer, conductor,
banker of gambling schemes; player,
promoter, referee, umpire, judge or coach in
case of game fixing, point shaving and
machination is a government official.
4. Any person who knowingly and without
lawful purpose possess lottery list, paper,
or other matter containing letters, figures,
signs, or symbols pertaining to or in any
manner used in games of jueteng, jai-alai, or
horse racing bookies, and similar games of
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lotteries and numbers which have taken
place or about to take place.
5. A barangay official who with the knowledge
of existence of gambling house/place in his
jurisdiction fails to abate or take action.
6. A Security officer, watchman, private or
house detective of hotels, villages, buildings,
enclosures, and the like which have the
reputation of gambling or where gambling
activities are being held.
Definition Of Terms
Gambling – any game or scheme, whether upon
chance or skill, wherein wagers are made
consisting of money or other articles of
value/representative of value being put at stake
Maintainer – person who sets up and furnishes
the means with which to carry on the gambling
game or scheme
Conductor – person who manages or carries on
the gambling game or scheme.
Notes:
1. A game or scheme is punishable even if
winning depends upon skill as long as wagers
are made putting at stake money or otther
articles of value/ representative of value.
2. But in P.D. 1602, playing for money is not a
necessary element of a game for one to
commit a crime. When the law names the
games, punishing any person who per se
takes part therein, its purpose is to prohibit
absolutely engaging in those games.
3. A mere bystander or spectator is not
criminally liable because he does not directly
or indirectly take part in the illegal activity.
4. Proof that a game took place or is about to
take place is not necessary. The burden of
evidence is shifted to the accused to show
that his possession of jueteng materials is
lawful or is not connected with a jueteng
game. But proof to the contrary by the
prosecution is necessary when jueteng lists
pertain to games played on dates other than
the date of the raid.
5. P.D. 519 has outlawed pinball and slot
machines and other similar devices and
CRIMINAL LAW
nullified all permits and/or licenses to operate
the same.
Elements of Knowingly permitting gambling
to be carried on in a place owned or controlled
by the offender:
1. That a gambling game was carried on in an
inhabited or uninhabited place or in any
building, vessel or other means of
transportation;
2. That the place, building, vessel or other
means of transportation is owned or
controlled by the offender; and
3. That the offender permitted the carrying on
of such game, knowing that it is a gambling
game
Lottery – Scheme for the distribution of prizes by
chance among persons who have paid, or agreed
to pay. a valuable consideration for the chance to
obtain a prize.
Elements of Lottery (3):
1. Consideration;
2. Chance; and
3. Prize/advantage/inequality in amount
value which is in the nature of prize.
or
Note:
In a criminal case (US v. Olsen 36 Phil. 395),
there is no lottery where a person gets the full
value for his money, and the winning of the prize
is merely incidental. But in a civil case (El Debate
v. Topacio 44 Phil. 280), if the inducement to win
a prize is the reason for the purchase, then even
if full value for money is received, it is still lottery.
Illegal Number Games – any form of illegal
gambling activity
which uses numbers
or combinations thereof as factors in giving out
jackpots/prizes/returns; includes games such as
jueteng and masiao.
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Art. 196. Importation, Sale and Possession of
Lottery Tickets or Advertisements
Punishable Acts:
1. By importing into the Philippines, from any
foreign place or port, any lottery ticket or
advertisement;
2. By selling or distributing the same in
connivance with the importer;
3. By possessing, knowingly and with intent to
use, lottery tickets or advertisements; and
4. By selling or distributing the same without
connivance with the importer
Notes:
1. The possession of any lottery ticket or
advertisement is prima facie evidence of
intent to sell, distribute or use the same.
2. The lottery tickets need not be genuine, as
long as they have the appearance thereof.
3. Government-authorized
lotteries
being
lawful, acts in connection therewith which are
ostensibly covered by Art. 196 are not
criminal offenses.
Art. 198. Illegal Betting on Horse Races
Punishable Acts: (during periods not allowed
by law)
1. By betting on horse races; and
2. By maintaining or employing a totalizer or
other device or scheme for betting on races
or realizing profit therefrom
Totalizer – machine for registering and indicating
the number and nature of bets made on horse
races
Notes:
1. The penalty is higher for a person who
employs a totalizer or other device.
2. Horse races are not allowed on: (a) June 12th
of each year, (b) Dec 30th of each year, (c)
Any registration or voting days, and (d) Holy
CRIMINAL LAW
Thursdays and Good Fridays. Races held on
the same day and at the same place are
punishable as a separate offenses.
3. Horse races may be carried on at any time or
place, and prizes or gifts may be offered,
given or paid, to the winner in said races,
provided it is not accompanied by any betting
or the use of totalizers or other devices for
betting.
Chapter 2: Offenses against Decency and
Good Customs
Art. 200. Grave Scandal
Grave Scandal consists of acts which are
offensive to decency and good customs which,
having been committed publicly, give rise to
public scandal to persons who have accidentally
witnessed the acts
Elements:
1. That the offender performs an act/s;
2. That such act/s be highly scandalous in terms
of offending against decency or good
customs;
3. That the highly scandalous conduct does not
expressly fall within any other article of the
RPC; and
4. That the act/s complained of be committed in
a public place or within the public knowledge
or view
Decency – propriety of conduct; proper
observance of the requirements of modesty, good
taste, etc.
Customs
–
established
usage,
social
conventions carried on by tradition and enforced
by social disapproval of any violation thereof
Notes:
1. Actual public view is not required. It is
sufficient if committed in a public place.
2. Being committed within public knowledge
includes occurrence even in a private place;
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the number of people who see it is not
material, except when seen by only one other
person at night, thus negating the degree of
publicity required.
3. 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.
Art. 201. Immoral Doctrines, Obscene
Publications and Exhibitions and Indecent
Shows
Persons liable:
1. Those who publicly expound or
proclaim doctrines openly contrary to
public morals;
2. Authors of obscene literature, published
with their knowledge in any form;
3. Editors publishing such obscene
literature;
4. Owners or operators of establishments
selling obscene literature;
5. Those who exhibit indecent or immoral
plays, scenes, acts or shows in theaters,
fairs, cinemas or any other place; and
6. Those who sell, distribute, or exhibit
prints,
engraving,
sculptures
or
literature, which are offensive to morals.
Scope of obscene literature or immoral or
indecent plays, scenes or acts:
1. Those which glorify criminals or condone
crimes;
2. Those which serve no other purpose but to
satisfy the market for violence, lust or
pornography;
3. Those which offend against any race or
religion;
4. Those which tend to abet the traffic and the
use of prohibited drugs; and
5. Those that are contrary to law, public order,
morals, good customs, established policies,
lawful orders, decrees and edicts
Test of obscenity:
Whether the matter has a tendency to deprave or
corrupt those whose minds are open to such
CRIMINAL LAW
immoral influences. A matter can also be
considered obscene if it shocks the ordinary and
common sense of men as indecency. (US v.
Kottinger, 45 PHIL 352)
Obscene is something offensive to chastity,
decency or delicacy.
Notes:
1. Publicity is an essential element.
2. Mere nudity in paintings and pictures is not
obscene.
3. Pictures with slight degrees of obscenity
having no artistic value and being intended
for commercial purposes fall within this
article.
4. The author of obscene literature is liable only
when it is published with his knowledge. In
every case, the editor publishing it is liable.
5. Dissemination of obscene material is
necessary, but the number of times it is
passed on is immaterial. Once is enough.
6. The purpose of the law in punishing obscene
publications and exhibitions is to protect the
morals of the public.
Art. 202. Vagrants and Prostitutes
Women who, for money or profit, habitually
indulge in sexual intercourse or lascivious
conduct, are deemed to be prostitutes.
Note:
R.A. 10158 has decriminalized vagrancy by
amending Art. 202 so as to punish prostitutes
only. Upon effectivity, all pending cases were
deemed dismissed, and all those serving time for
vagrancy were or should be released.
Prostitutes - Women who habitually indulge in
(1) sexual intercourse or (2) lascivious conduct,
for money or profit.
————— end of topic ————-
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F. CRIMES COMMITTED BY PUBLIC
OFFICERS
Chapter 1: Preliminary Provisions
Art. 203. Who are Public Officers
REQUISITES: T-DiPA (2)
To be a public officer, one must be 1. Taking part in the performance of public
functions in the Government, or
performing public duties as an employee,
agent or subordinate official, of any rank
or class, in the government or any of its
branches; and
2. That authority to take part in the
performance of public functions or to
perform public duties must be
i. By Direct provision of the law, or
ii. By Popular election, or
iii. By Appointment by competent
authority
Notes:
1. Public officers include every public servant,
from the lowest to the highest rank, provided
that they exercise public functions.
2. A government laborer is not a public officer.
However, temporary performance by a
laborer of public functions makes him a public
officer.
Chapter 2: Malfeasance and Misfeasance in
Office
Malfeasance
Misfeasance
Nonfeasance
Performance of some act
which ought not to be done
Improper performance of
some act which might lawfully
be
done
Omission of an act which
ought to be
performed
Misfeasance:
1. Knowingly rendering unjust judgment;
2. Rendering judgment through negligence;
3. Rendering unjust interlocutory order; and
4. Malicious delay in the administration of justice
Nonfeasance:
Dereliction of duty in prosecution of offenses
Malfeasance:
1. Direct bribery; and
2. Indirect bribery.
Section 1. – Dereliction of Duty
Art. 204. Knowingly Rendering an Unjust
Judgment
Any judge who shall knowingly render an
unjust judgment in any case submitted to him
for decision
Elements: (JJ-UK) (4)
1. That the offender is a Judge;
2. That he renders a Judgment in a case
submitted to him for decision;
3. That the judgment is Unjust; and
4. That the judge Knows that the decision is
unjust
Notes:
1. A judgment is a final consideration and
determination by a court of competent
jurisdiction of the issues submitted to it in an
action or proceeding.
2. An unjust judgment is one which is contrary
to law, or not supported by the evidence, or
both.
3. No liability if judgment is based on error made
in good faith.
4. An unjust judgment may result from:
a. Error (with bad faith);
b. Ill-will or revenge (or hatred, envy, greed);
or
c. Bribery.
5. There must be evidence that the decision
rendered is unjust. It cannot be presumed.
6. Abuse of discretion or mere error of judgment
cannot likewise serve as bases for rendering
an unjust judgment, in the absence of proof
or even an allegation of bad faith, ill motive, or
improper consideration.
7. Does not apply to members of collegiate
courts who render collective judgment
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(Supreme Court, Court of Appeals,
Sandiganbayan, and Court of Tax Appeals).
Art. 205. Judgment Rendered Through
Negligence
Any judge who, by reason of inexcusable
negligence or ignorance, shall render a
manifestly unjust judgment in any case
submitted to him for decision
Elements: (J-C-M-I) (4)
1. That the offender is a Judge;
2. That he renders judgment in a Case
submitted to him for decision;
3. That the judgment is Manifestly unjust; and
4. That it is due to Inexcusable negligence or
ignorance.
Manifestly unjust judgment – Manifestly
contrary to law that even a person having meager
knowledge of it cannot doubt the injustice.
Note: Abuse of discretion or mere error of
judgment is not punishable.
Art. 206. Unjust Interlocutory Order
Any judge who shall knowingly render an
unjust interlocutory order or decree or who
shall render a manifestly unjust interlocutory
order by inexcusable negligence
Elements: (J-KM) (2)
1. That the offender is a Judge; and
2. That he performs any of the following acts:
a. Knowingly
renders
an
unjust
interlocutory order or decree, or
b. Renders
a
Manifestly
unjust
interlocutory order or decree through
inexcusable negligence or ignorance
Interlocutory order - one issued by the court
deciding a collateral or incidental matter; it is not
a final determination of the issues of the action or
proceeding.
Note: Test in determining whether an order or
judgment is interlocutory or final - “Does it leave
something to be done in the trial court with respect
to the merits of the case?” If it does, it is
interlocutory; if it does not, it is final.
Example: An order granting preliminary injunction
or an order appointing a receiver is an
interlocutory order.
Art. 207. Malicious Delay in the
Administration of Justice
Any judge guilty of malicious delay in the
administration of justice
Elements: (J-P-D-M) (4)
1. That the offender is a Judge;
2. That there is a Proceeding in his court;
3. That he Delays the administration of
justice; and
4. That the delay is Malicious, that is, the delay
is caused by the judge with deliberate intent
to inflict damage on either party in the case
Note: Mere
punishable.
delay
without
malice
is
not
Art. 208. Prosecution of Offenses;
Negligence and Tolerance
Any public officer, or officer of the law, who, in
dereliction of the duties of his office, shall
maliciously refrain from instituting prosecution
for the punishment of violators of the law, or
shall tolerate the commission of offenses
Punishable acts: (2)
1. Maliciously
refraining
from
instituting
prosecution against violators of the law; and
2. Maliciously tolerating the commission of
offenses
Elements:
1. That the offender is a public officer or officer
of the law who has a duty to cause the
prosecution of, or to prosecute, offenses;
2. That there is dereliction of the duties of his
office, that is, knowing the commission of the
crime, he does not cause the prosecution of
the criminal or knowing that a crime is about
to be committed, he tolerates its commission;
and
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3. That the offender acts with malice and
deliberate intent to favor the violator of the
law
Who can be offenders in Art. 208
1. Officer of the Law – includes all those who,
by reason of the position held by them, are
duty bound to cause the prosecution and
punishment of offenders
2. Public Officer – extends to officers of the
prosecution department whose duty is to
institute criminal proceedings for felonies the
perpetrations of which are made known to
them
Notes:
1. PREVARICACION is the negligence in the
prosecution,
and
tolerance
in
the
commission, of an offense.
2. There must be a duty on the part of the public
officer to prosecute or move for the
prosecution of the offender. However, a fiscal
is under no compulsion to file an information
based upon a complaint if he is convinced that
the evidence before him is insufficient to
warrant filing an action in court.
3. The crime must be proved first before an
officer can be convicted of dereliction of duty.
If the guilt of the law-violator is not proved, the
person charged with the dereliction of duty is
not liable.
4. “Maliciously” signifies deliberate evil intent; a
dereliction of duty caused by poor judgment
or honest mistake is not punishable.
5. A public officer who harbors, conceals, or
assists in the escape of an offender, when it
is his duty to prosecute him, is liable as
principal in the crime of dereliction of duty in
the prosecution of offenses. He is not an
accessory.
6. If gift/promise is a consideration for his
conduct, the crime is direct bribery under Art.
210.
Art. 209. Betrayal of Trust by an Attorney or
Solicitor – Revelation of Secrets
Any attorney-at-law or any person duly
authorized to represent and/or assist a party to a
case who:
a) by any malicious breach of professional duty
or of inexcusable negligence or ignorance, shall
prejudice his client, or
b) by any malicious breach of professional duty
or of inexcusable negligence or ignorance, reveal
any of the secrets of the latter learned by him in
his professional capacity; or
c) having undertaken the defense of a client or
having received confidential information from
said client in a case, shall undertake the defense
of the opposing party in the same case, without
the consent of his first client
Punishable Acts: (3)
1. Causing damage to client either
a. By any malicious breach of professional
duty, or
b. By
inexcusable
negligence
or
ignorance
• Damage is necessary
2. Revealing any of the secrets of his client
learned by him in his professional capacity
• Damage is NOT necessary.
3. Undertaking the defense of the opposing
party in the same case, without the consent
of his first client, after having undertaken the
defense of the latter or having received
confidential information from the latter
• If the client consents to the
attorney’s taking of the defense of
the other party, there is no crime.
Section 2. – Bribery
Art. 210. Direct Bribery
Any public officer who shall agree to perform an
act constituting a crime, in connection with the
performance of this official duties, in
consideration of any offer, promise, gift or
present received by such officer, personally or
through the mediation of another,
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Punishable Acts: (3)
1. Agreeing to perform, or performing, in
consideration of any offer, promise, gift or
present, an act constituting a crime, in
connection with the performance of the
offender’s official duties;
2. Acceptance of the offer or promise is enough
to consummate the crime. If the offer is not
accepted, only the person offering the gift is
liable for attempted corruption of a public
officer.
3. Gift must have a value or be capable of
pecuniary estimation. It could be in the form
of money, property or services.
4. Accepting a gift in consideration of the
execution of an act which does not constitute
a crime, in connection with the performance
of the offender’s official duty; and
5. Agreeing to refrain, or refraining, from doing
something which it is the offender’s official
duty to do, in consideration of a gift or
promise.
a. Prevaricacion (Art. 208) distinguished
from bribery: differs from bribery in the
sense that in the latter, the offender
refrains from doing his official duty in
consideration of a gift received or
promised. This element is not
necessary in the crime of prevaricacion.
Elements: (PARE) (4)
1. That the offender be a Public officer;
2. That the offender Accepts an offer or
promise or receives a gift or present by
himself or through another;
3. That such offer or promise be accepted or
gift/present Received by the public officer a. With a view to committing some crime;
OR
b. In consideration of an execution of an
act which does not constitute a crime,
but the act must be unjust; OR
c. To refrain from doing something which
is his official duty to do;
4. That the act which the offender agrees to
perform or which he Executes be connected
with the performance of his official duties
CRIMINAL LAW
Temporary performance of public functions
make the person a public officer
For purposes of this article, temporary
performance of public functions is sufficient to
constitute a person a public officer. A private
person may commit this crime only in the case in
which custody of prisoners is entrusted to him.
Bribery exists when the gift is:
1. Voluntarily offered by a private person;
2. Solicited by the public officer and voluntarily
delivered by the private person; and
3. Solicited by the public officer but the private
person delivers it out of fear of the
consequences should the public officer
perform his functions. The crime by the giver
is not corruption of public officials due to his
involuntariness.
Bribery and Prevaricacion, Distinguished
BRIBERY
PREVARICACION
Both consist of omissions to do an act
required to be performed.
A gift or promise is Not necessary
given in consideration
of
the omission
Fourth element: The act which the public officer
agrees to perform must be connected with the
performance of his official duties. It is enough
that the act is part of the established procedure of
a governmental agency.
Bribery and Robbery, Distinguished
BRIBERY
ROBBERY (ART. 294)
When the victim When the victim did not
has committed a commit a crime and he
crime and gives is intimidated with
money/gift to avoid arrest
and/or
arrest
or prosecution to deprive
prosecution
him of his personal
property
Victim parts with his Victim is deprived of his
money or property money or property by
voluntarily
force or intimidation
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Art. 211. Indirect Bribery
Any public officer who shall accept gifts
offered to him by reason of his office
Elements: (PAB) (3)
1. That the offender is a Public officer;
2. That he Accepts gifts; and
3. That the said gifts are offered to him By
reason of his office.
Notes:
1. The article uses the words “gift” and not
“promise,” and “accept”, not just “receive”.
2. The gift is given in anticipation of future favor
from the public officer.
3. There must be clear intention on the part of
the public officer to take the gift offered and
consider the property as his own from that
moment.
Mere
physical
receipt
unaccompanied by any other sign,
circumstance or act to show such acceptance
is not sufficient to convict the officer.
4. There is no attempted or frustrated
indirect bribery.
Indirect and Direct Bribery, Distinguished
INDIRECT
DIRECT BRIBERY
BRIBERY
In both, a public officer receives a gift
Usually no such There
is
an
agreement
agreement between
the public officer and
the giver
Not necessary that Officer agrees to
the officer do an act, perform or refrain
as long as he from doing an act
accepts gifts by
reason of his office
Art. 211-A. Qualified Bribery
Elements: (PRE) (3)
1. The offender is a public officer Entrusted
with law enforcement;
2. He Refrains from arresting/ prosecuting an
offender for crime punishable by reclusion
perpetua and/or death; and
CRIMINAL LAW
3. His refusal is in consideration of any offer,
Promise or gift
Art. 212. Corruption of Public Officials
Any person who shall have made the offers or
promises or given the gifts or presents as
described in the preceding articles
Elements:
1. The offender makes offers or promises or
gives gifts or presents to a public officer; and
2. The offers or promises are made, or the gifts
or presents are given, to a public officer,
under circumstances that will make the public
officer liable for direct bribery or indirect
bribery
Notes:
1. The offender is the giver of the gift or the
offeror of the promise. The act may or may
not be accomplished.
2. Under P.D. 749, givers of bribes and other
gifts as well as accomplices in bribery and
other graft cases are immune from
prosecution if they voluntarily give any
information about any commission of direct,
indirect, and qualified bribery, and any
corruption of public officials, provided that:
a. The information must refer to
consummated violations of any of the
above-mentioned provisions of law,
rules and regulations;
b. The information, and the informant’s
testimony, are necessary for the
conviction of the accused public
officer;
c. Such information and testimony are
not in possession of the State;
d. Such information and testimony can
be corroborated on its material points;
and
e. Informant or witness has not been
previously convicted of a crime
involving moral turpitude.
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Chapter 3: Frauds and Illegal Transactions
and Exactions
Art. 213. Frauds against the Public Treasury
and Similar Offenses
Frauds against Public Treasury
Elements: (4)
1. The offender is a public officer;
2. He should have taken advantage of his office
- that is, he intervened in the transaction in his
official capacity;
3. 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 an account relating to public property or
funds; and
4. The accused had intent to defraud the
government.
Notes:
1. The public officer must act in his official
capacity.
2. 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.
Illegal Exactions
Elements: (2)
1. The offender is a public officer entrusted with
the collection of taxes, licenses, fees and
other imposts; and
2. He is guilty of any of the following acts or
omissions:
a. Demanding, directly or indirectly, the
payment of sums different from or larger
than those authorized by law,
b. Failing voluntarily to issue a receipt, as
provided by law, for any sum of money
collected by him officially, or
c. Collecting or receiving, directly or
indirectly, by way of payment or
otherwise, things or objects of a nature
different from that provided by law.
CRIMINAL LAW
Notes:
1. Mere demand of a larger or different amount
is sufficient to consummate the crime. The
essence is the improper collection, and
damage to the government is not required.
2. 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.
3. When there is deceit in demanding larger
fees, the crime committed is estafa.
4. This felony may be complexed with
malversation. Ex. A tax collector who
collected a sum larger than that authorized by
law and spent all of them is guilty of two
crimes, namely:
a. illegal exaction, for demanding a
greater amount; and
b. malversation for misappropriating the
amount collected.
5. Officers and employees of the BIR and the
Bureau of Customs are not covered by this
article, since their acts are covered by the
NIRC and the Administrative Code,
respectively.
Art. 214. Other Frauds
Any public officer who, taking advantage of
his official position, shall commit any of the
frauds or deceits enumerated in Arts. 315 and
316 of the RPC
Elements: (PAC) (3)
1. That the offender is a Public officer;
2. That he takes Advantage of his official
position; and
3. That he Commits any of the frauds or
deceits enumerated in Arts. 315 and 316
(Estafa, Swindling)
Note: The penalty under this Article is in addition
to the penalties prescribed in the articles violated
Art 215. Prohibited Transactions
Any appointive public officer who, during his
incumbency, shall directly or indirectly
become interested in any transaction of
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exchange or speculation within the territory
subject to his jurisdiction
Elements: (AI-WI) (4)
1. That the offender is an Appointive public
officer;
2. That he becomes Interested, directly or
indirectly, in any transaction of exchange or
speculation;
3. That the transaction takes place Within the
territory subject to his jurisdiction; and
4. That he becomes interested in the
transaction during his Incumbency.
Notes:
1. The transaction must be of exchange or
speculation.
2. Examples of transactions of exchange or
speculation are buying and selling stocks,
commodities, land, etc. wherein one hopes to
take advantage of an expected rise or fall in
price for gain or profit, and not merely as
investment
3. Purchasing of stocks or shares in a company
is simple investment and not a violation of the
article. However, regularly buying securities
for resale is speculation.
Art. 216. Possession of Prohibited Interests
by a Public Officer
A public officer who, directly or indirectly, shall
become interested in any contract or business
in which it is his official duty to intervene. This
provision is applicable to experts, arbitrators
and private accountants who, in like manner,
shall take part in any contract or transaction
connected with the estate or property in
appraisal, distribution or adjudication of which
they shall have acted, and to guardians and
executors with respect to the property
belonging to their wards or estate.
Persons liable:
1. Public officer who become interested in
any contract or business in which it is his
official duty to intervene;
2. Experts,
arbitrators
and
private
accountants who take part in any contract or
CRIMINAL LAW
transaction connected with the estate or
property in the approval, distribution or
adjudication of which they had acted; and
3. Guardians and executors with respect to
property belonging to their wards or the
estate
Notes:
1. Actual fraud is not necessary.
2. Intervention must be by virtue of public office
held.
3. Act is punished because of the possibility that
fraud may be committed or that the officer
may place his own interest above that of the
Government or of the party which he
represents.
4. Pertinent Constitutional prohibitions:
a. Member of Congress cannot personally
appear as counsel; cannot be interested
financially in any franchise or special
privilege granted by government; cannot
intervene in any matter before any office of
Government;
b. Members of the Executive branch cannot
hold any other office; and
c. Members of Constitutional Commissions
cannot hold any other office, or engage in
practice of profession or management of
business, or be financially interested in a
contract with, or franchise/privilege by,
the government.
Chapter 4: Malversation of Public Funds or
Property
Art. 217. Malversation of Public Funds or
Property
Any public officer who, by reason of the duties
of his office, is accountable for public funds or
property, shall appropriate the same or shall
take or misappropriate or shall consent,
through abandonment or negligence, shall
permit any other person to take such public
funds, or property, wholly or partially, or shall
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otherwise be guilty of the misappropriation or
malversation of such funds or property
Elements:
1. That the offender be a public officer (or
private person, if entrusted with public funds
or if in connivance with public officers);
2. That he has the custody or control of funds or
property (if not accountable for the funds,
crime committed is theft or qualified theft);
3. That those funds or property are public funds
or property (even if private funds, they
become public if attached, seized, deposited
or commingled with public funds); and
4. That he:
a. Appropriated the funds or property;
b. Took or misappropriated them; or
Consented or, through abandonment or
negligence, permitted any other person
to take such public funds or property.
Meaning of misappropriate or convert
The words “misappropriate” and “convert”
connote an act of using or disposing of another’s
property as if it were one’s own or of devoting it to
a purpose or use different from that agreed upon.
(Ceniza-Manatan v People, GR No. 156248,
August 28, 2007)
Notes:
1. It is not necessary that the offender profited
by his malversation. His being remiss in the
duty of safekeeping public funds violates the
trust reposed in him.
2. Public
funds
taken
need
not
be
misappropriated.
3. It can be committed either with malice or
through negligence or imprudence, although
the penalty is the same. Negligence of the
accountable public officer must be positively
and clearly shown to be inexcusable.
4. In determining whether the offender is a
public officer, what is controlling is the nature
of his office and not the designation. He
should be a public officer who receives money
or property from government for which he is
bound to account, and which he has authority
to collect or receive
CRIMINAL LAW
5. The funds or property must be received in an
official capacity. Otherwise, the crime
committed is estafa.
Circumstances
which
make
private
individuals liable
1. When they are in conspiracy with public
officers;
2. When they have charge of national, provincial
or municipal funds, revenues or property in
any capacity;
3. Those who are accessories or accomplices of
an erring public officer; and
4. Depositories or administrators of public funds
or property
Notes:
1. When malversation is not committed through
negligence, lack of criminal intent or good
faith is a defense.
2. The failure of a public officer to have any dulyforthcoming public funds or property upon
demand, by any authorized officer shall be
prima facie evidence that he has put such
missing funds or property to personal use.
However, if at the very moment when the
shortage is discovered, the accountable
officer is notified, and he immediately pays
the amount from his pocket, the presumption
does not arise. (U.S. v Feliciano, 15 Phil 147)
3. Returning embezzled funds is not an
exempting circumstance but only mitigating.
However, the return of the malversed funds
should be “prompt.”
4. A person whose negligence made possible
the commission of malversation by another
can be held liable as a principal by
indispensable cooperation.
5. Malversation may be commited either
through a positive act of misappropriation of
public funds or property or passively through
negligence, by allowing another to commit
such misappropriation. (People v Jose Ting
Lan Uy, GR No. 157399, November 17, 2005)
6. The fact that the obligation to deposit the
collections of the City Treasurer's Office is not
covered by appellant's official job description
is of no legal consequence in a prosecution
for Malversation. What is essential is that
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CRIMINAL LAW
appellant had custody or control of public
funds by reason of the duties of his office.
[People v. Hipol, 454 Phil. 679 (2003)]
7. See Azarcon v. Sandiganbayan [G.R. No.
116033, Feb. 26, 1997] where the
Sandiganayan ruled it had no jurisdiction over
a person who was given custody of distrained
property. The Court said, “It is evident that
the petitioner did not cease to be a private
individual when he agreed to act as a
depositary of the garnished dump truck.”
2. That he must be an Accountable officer for
public funds or property; and
3. That he must have Unlawfully left (or be on
the point of leaving) the Philippines without
securing from the Commission on Audit a
certificate showing that his accounts have
been finally settled
Art. 218. Failure of Accountable Officer to
Render Account
Any public officer, whether in the service or
separated therefrom by resignation or any
other cause, who is required by law or
regulation to render account to the (Insular)
Auditor or to a provincial auditor, and who fails
to do so for a period of two months after such
accounts should be rendered
Art. 220. Illegal Use of Public Funds or
Property (Technical Malversation)
Any public officer who shall apply any public
fund or property under his administration to any
public use other than that for which such fund
or property was appropriated by law or
ordinance
Elements: (FRAP) (4)
1. That the offender is a Public officer, whether
in the service or separated therefrom;
2. That he must be an Accountable officer for
public funds or property;
3. That he is Required by law or regulation to
render accounts to the Commission on Audit
or to a provincial auditor; and
4. That he Fails to do so for a period of two
months after such accounts should be
rendered
Note: Demand and misappropriation are not
necessary.
Art. 219. Failure of a Responsible Public
Officer to Render Accounts before Leaving
the Country
Any public officer who unlawfully leaves or
attempts to leave the Philippine Islands
without securing a certificate from the
(Insular) Auditor showing that his accounts
have been finally settled
Elements: (PAU) (3)
1. That the offender is a Public officer;
Note:
The act of leaving the Philippines must be
unauthorized or not permitted by law.
Elements: (PAPA) (4)
1. That the offender is a Public officer;
2. That there is a Public fund or property
under his administration;
3. That such public fund or property has been
Appropriated by law or ordinance (without
this, it is simple malversation); and
4. That he Applies the same to a public use
other than for which such fund or property
has been appropriated by law or ordinance
Notes:
1. Unlike in Art. 217 (Malversation), in illegal use
of public funds or property (Technical
Malversation), the offender does not derive
any personal gain; the funds are merely
devoted to some other public use.
2. Absence of damage is only a mitigating
circumstance.
3. Criminal intent is not an element of technical
malversation. The law punishes the act of
diverting public property earmarked by law or
ordinance for a particular public purpose to
another public purpose. The offense is mala
prohibita, meaning that the prohibited act is
not inherently immoral but becomes a
criminal offense because positive law forbids
its commission, based on considerations of
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public policy, order, and convenience. It is the
commission of an act as defined by the law,
and not the character or effect thereof, that
determines whether or not the provision has
been violated. Hence, malice or criminal
intent is completely irrelevant. (Arnold James
M. Ysidoro v. People, G.R. No. 192330,
November 14, 2012)
4. In relation to the second element, if the public
funds are established to be part of savings,
the same ceased to be appropriated by law
or ordinance for any specific purpose.
(Abdulla v. People, G.R. No. 150129, April 6,
2005)
Illegal Use of funds or property and
Malversation, Distinguished
ILLEGAL USE OF
MALVERSATION
FUNDS OR
PROPERTY
In both, offender is an accountable public
officer
Offender does not Offender, in certain
derive any personal cases, profits from
gain or profit
the proceeds of the
crime
The public fund or The public fund or
property is applied to property is applied to
another public use
personal use
deliver property in his custody or
administration when ordered by
competent authority to do so; and
3. That he maliciously fails or refuses to do so
b.
Art. 222. Officers Included In the Preceding
Provisions
Persons liable under Arts. 217 to 221:
1. Private individual who, in any
capacity, have charge of any national,
provincial or municipal funds, revenue, or
property Example: a withholding tax
agent
2. Administrator or depositary of funds
or property that has been attached,
seized or deposited by public authority,
even if owned by a private individual
Notes:
1. Sheriffs and receivers fall under the term
“administrator”
2. Judicial administrator not covered by this
article (Appointed to administer estate of
deceased and not in charge of property
attached, impounded or placed in deposit by
public authority)
3. Private property is included if it is attached,
seized or deposited by public authority
Chapter 5: Infidelity of Public Officers
Art. 221. Failure to Make Delivery of Public
Funds or Property
Any public officer under obligation to make
payment from Government funds in his
possession, who shall FR (2)
1. Fail to make payment; and
2. Refuse to make delivery despite being
ordered by competent authority to deliver
any property in his custody or under his
administration (must be malicious)
Elements:
1. That the public officer has government funds
or property in his possession
2. That he is under obligation to either:
a. make payment from such funds, or
Section 1. – Infidelity in the Custody of
Prisoners
Art. 223. Conniving With or Consenting To
Evasion
Any public officer who shall consent to the
escape of a prisoner in his custody or charge
Elements:
1. That the offender is a public officer (on duty);
2. That he is charged with the conveyance or
custody of a prisoner, either detention
prisoner or prisoner by final judgment;
3. That such prisoner escaped from his custody;
and
4. That he was in connivance with the prisoner
in the latter’s escape
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CRIMINAL LAW
Notes:
1. A person becomes a detention prisoner from
the moment he is “booked”. This refers to the
accomplishment of the booking sheet and
filling out of a form where his finger-prints are
affixed. From that time on, he is already a
detention prisoner even if he is not yet
incarcerated.
2. 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 does mere
leniency or laxity in the performance of duty
constitute infidelity.
3. There is real and actual evasion of service of
sentence when the custodian permits the
prisoner to obtain a relaxation of his
imprisonment.
4. The negligent public officer suffers the same
penalty regardless of whether the prisoner is
a convict or merely a detention prisoner.
5. Any public officer who has direct custody of a
detained person under the provisions of this
Act and who, by his deliberate act,
misconduct or inexcusable negligence
causes or allows the escape of such detained
person, shall be guilty of an offense. (RA
11479, Sec. 42)
Art. 224. Evasion Through Negligence
Any public officer charged with the
conveyance or custody of a prisoner who,
through negligence, shall allow the evasion
(escape) of the prisoner
Elements:
1. That the offender is a private person;
2. That the conveyance or custody of a prisoner
or person under arrest is confided to him; (He
has custody)
3. That the prisoner or person under arrest
escapes; and
4. That the offender consents to the escape of
the prisoner or person under arrest, or that
the escape takes place through his
negligence
Elements: (PCE) (3)
1. That the offender is a Public officer;
2. That he is charged with the Conveyance or
custody of a prisoner, either detention
prisoner or prisoner by final judgment; and
3. That such prisoner Escapes through his
negligence
Notes:
1. The article punishes a definite laxity which
amounts to deliberate non-performance of a
duty.
2. The fact that the public officer recaptured the
prisoner who had escaped from his custody
does not afford him complete exculpation.
3. Extent of liability of an escaping prisoner:
a. if a prisoner by final judgment, he is liable
for evasion of service (Art. 157)
b. if a detention prisoner, he does not incur
criminal liability (unless he cooperated
with the offender)
Art. 225. Escape of Prisoner under the
Custody of a Person Not a Public Officer
Any private person to whom the conveyance or
custody of a prisoner or person under arrest
shall have been confided, who shall commit any
of the offenses mentioned in the two preceding
articles
Note: This article is not applicable if a private
person made the arrest and he consented to the
escape of the person he arrested.
Section 2. – Infidelity in the Custody of
Documents
Art. 226. Removal, Concealment or
Destruction of Documents
Public officer who shall remove, destroy or
conceal documents or papers officially
entrusted to him
Elements: (PAED) (4)
1. That the offender be a Public officer;
2. That he Abstracts, destroys or conceals a
document or paper;
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3. That the said document or paper should have
been Entrusted to such public officer by
reason of his office; and
4. That Damage, whether serious or not, to a
third party or to the public interest should
have been caused.
Notes:
1. The document or paper must be complete
and one by which a right could be established
or an obligation could be extinguished.
2. “Papers” would include checks, promissory
notes and paper money.
3. A post office official who retained mail/letters
without forwarding them to their destination is
guilty of infidelity in the custody of papers.
4. Removal (“abstracting”) of a document or
paper must be for an illicit purpose. There is
illicit purpose when the intention of the
offender is to:
a. tamper with it,
b. to profit by it, or
c. to commit any act constituting a
breach of trust in the official care thereof.
(Kataniag v People, 74 Phil 45)
5. Removal is consummated upon the removing
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.
6. Destruction or concealment of a document or
paper does not require proof of an illicit
purpose. (Reyes, Book Two, p. 480)
7. Delivering a document (a backpay certificate)
to a wrong party instead of returning it to the
releasing clerk after it was signed by the
Treasurer, with the resut that the owner could
not make withdrawal of his backpay, is
infidelity in the custody thereof. (People v
Irineo, CA, 53 OG 2827)
Art. 227. Officer Breaking Seal
Any public officer charged with the custody of
papers or property sealed by proper authority,
who shall break the seals or permit them to be
broken
CRIMINAL LAW
Elements: (4)
1. That the offender is a Public officer;
2. That he is Charged with the custody of
papers or property;
3. That these papers or property are Sealed by
proper authority; and
4. That he Breaks the seals or permits them to
be broken.
Notes:
1. It is the breaking of the seals and not the
opening of a closed envelope which is
punished.
2. Damage or intent to cause damage is not
necessary; damage is presumed.
Art. 228. Opening of Closed Documents
Any public officer not included in the provisions
of the next preceding article who, without
proper authority, shall open or shall permit to be
opened any closed papers, documents or
objects entrusted to his custody
Elements: (P-E-H-N) (4)
1. That the offender is a Public officer;
2. That any closed papers, documents, or
objects are Entrusted to his custody;
3. That He opens or permits to be opened said
closed papers, documents or objects; and
4. That he does Not have proper authority.
Notes:
1. “Custody” means guarding or keeping safe;
care.
2. Damage or intent to cause damage is not
necessary.
Section 3. – Revelation of Secrets
Art. 229. Revelation of Secrets by an Officer
Any public officer who shall reveal any secret
known to him by reason of his official capacity,
or shall wrongfully deliver papers or copies of
papers of which he may have charge and which
should not be published
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Punishable Acts:
1. By revealing any secret known to the
offending public officer by reason of his
official capacity; and
2. By delivering wrongfully papers or copies of
papers of which he may have charge and
which should not be published.
Elements of para. 1 (Secrets known by reason
of his official capacity): (DOWP) (4)
1. That the offender is a Public officer;
2. That he knows of a secret by reason of his
Official capacity;
3. That he reveals such secret Without
authority or justifiable reasons; and
4. That Damage, great or small, be caused to
the public interest.
Notes:
1. Secret must affect public interest, not secrets
of a private individual.
2. Espionage for the benefit of another State is
not contemplated by the article. If the secrets
are with regard to military secrets or secrets
affecting Philippine State security, the crime
may be espionage.
Elements of para. 2 (wrongfully delivering
papers or copies of papers of which he may
have charge and which should not be
published): (6)
1. That the offender is a public officer;
2. That he has charge (custody or control) of
papers;
3. That those papers should not be published;
4. That he delivers those papers or copies
thereof to a third person;
5. That the delivery is wrongful; and
6. That damage is caused to public interest.
Notes:
1. Charge means custody or control. If the
offender is merely entrusted with the
possession of papers but not with the custody
thereof, he is not liable under this article.
2. If the papers contain secrets which should not
be published, and the public officer having
charge thereof removes and delivers them
wrongfully to a third person, the crime is
CRIMINAL LAW
revelation of secrets. On the other hand, if the
papers do not contain secrets, their removal
for an illicit purpose is infidelity in the custody
of documents.
3. Damage is essential to the act committed.
Art. 230. Public Officer Revealing Secrets of
Private Individual
Any public officer, to whom the secrets of any
private individual shall become known by
reason of his office, who reveals such secrets
Elements: (3)
1. That the offender is a Public officer;
2. That he Knows of the secret of a private
individual by reason of his office; and
3. That he Reveals such secrets without
authority or justifiable reason.
Notes:
1. Revelation to one person is sufficient.
2. If the offender is an attorney, he is properly
liable under Art. 209 (betrayal of trust by an
attorney).
3. It is not necessary that damage is suffered by
the private individual. The reason for this
provision is to uphold faith and trust in the
public service.
Chapter 6: Other Offenses or Irregularities by
Public Officers
Section 1. – Disobedience, Refusal of
Assistance, and Maltreatment of Prisoners
Art. 231. Open Disobedience
Any judicial or executive officer who shall
openly refuse to execute the judgment,
decision or order of any superior authority
made within the scope of the jurisdiction of the
latter and issued with all the legal formalities
Elements: (JJJ-O) (4)
1. That the offender is a Judicial or executive
officer;
2. That there is a Judgment, decision or order
of superior authority;
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3. That such Judgment, decision or order
was made within the scope of the
jurisdiction of the superior authority and
issued with all the legal formalities; and
4. That the offender, without any legal
justification, Openly refuses to execute the
said judgment, decision or order which he is
duty bound to obey.
Art. 232. Disobedience to Order of Superior
Officer; When Said Order was Suspended by
Inferior Officer
Any public officer who, having for any reason
suspended the execution of the orders of his
superiors, shall disobey such superiors after
the latter have disapproved the suspension
Elements: (POSS-D) (5)
1. That the offender is a Public officer;
2. That an Order is issued by his superior for
execution;
3. That he has, for any reason Suspended the
execution of such order;
4. That his Superior disapproves the
suspension of the execution of the order; and
5. 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.
Art. 233. Refusal of Assistance
A public officer who, upon demand from
competent authority, shall fail to lend his
cooperation towards the administration of
justice or other public service
Elements: (PCM) (3)
1. That the offender is a Public officer;
2. That a Competent authority demands from
the offender that he lend his cooperation
towards the administration of justice or other
public service; and
3. That the offender fails to do so Maliciously
CRIMINAL LAW
Notes:
1. This felony involves a request from one public
officer to another.
2. Damage to the public interest or third party is
essential.
3. Demand is necessary.
4. Demand must be from competent authority.
Art. 234. Refusal To Discharge Elective Office
Any person who, having been elected by popular
election to a public office, shall refuse, without
legal motive, to be sworn in or to discharge the
duties of said office
Elements: (REN) (3)
1. That the offender is Elected by popular
election to a public office;
2. That he Refuses to be sworn in or
discharge the duties of said office;
3. That there is No legal motive for such refusal
to be sworn in or to discharge the duties of
said office.
Notes:
1. If the elected person is disqualified, his
refusal to be sworn in or to discharge the
duties of the office is justified.
2. Refusal to discharge the duties of an
appointive office is not covered by this article.
Art. 235. Maltreatment of Prisoners
Any public officer or employee who shall overdo
himself in the correction or handling of a
prisoner or detention prisoner under his charge,
by the imposition of punishments not
authorized by the regulations, or by inflicting
such punishments in a cruel and humiliating
manner
Elements:
1. That the offender is a public officer or
employee;
2. That he has charge of a prisoner or detention
prisoner (otherwise the crime is physical
injuries); and
3. That he maltreats such prisoner in either of
the following manners:
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CRIMINAL LAW
By overdoing himself in the correction
or handling of a prisoner or detention
prisoner under his charge either –
i. by the imposition of punishments
not authorized by the regulations,
or
ii. by inflicting such punishments
(those authorized) in a cruel and
humiliating manner, or
by maltreating such prisoner to extort
a confession or to obtain some
information from the prisoner.
3. That he Assumes the performance of the
duties and powers of such office; and
4. That he has Not taken his oath of office
and/or given the bond required by law.
Notes:
1. The public officer must have actual charge of
the prisoner in order to be held liable (not
merely a charge by legal fiction).
2. Offended party must be a: (1) convict by final
judgment, or (2) detention prisoner.
3. Maltreatment should not be due to personal
grudge, otherwise, liability is for physical
injuries only.
4. Offender may also be held liable for physical
injuries or damages caused. (The penalty
provided in Article 235 is imposed in addition
to penalty for injury or damage caused.)
There is no complex crime of maltreatment of
prisoners with serious or less serious
physical injuries.
Elements:
1. That the offender is holding a public office;
2. That the period provided by law, regulations
or special provisions for holding such office
has already expired; and
3. That he continues to exercise the duties and
powers of such office.
a.
b.
Section 2. – Anticipation, Prolongation and
Abandonment of the Duties and Powers of
Public Office
Art. 236. Anticipation of Duties of a Public
Office
Any person who shall assume the
performance of the duties and powers of any
public officer or employment without first
being sworn in or having given the bond
required by law
Elements: (LANE) (4)
1. That the offender is Entitled to hold a public
office or employment, either by election or
appointment;
2. That the Law requires that he should first be
sworn in and/or should first give a bond;
Art. 237. Prolonging Performance of Duties
and Powers
Any public officer shall continue to exercise
the duties and powers of his office,
employment or commission beyond the
period provided by law, regulation or special
provisions applicable to the case
Note:
The officers contemplated are those who have
been suspended, separated, declared over-aged
or dismissed.
Art. 238. Abandonment of Office or Position
Any public officer who, before the acceptance
of his resignation, shall abandon his office to
the detriment of the public service
Elements:
1. That the offender is a public officer;
2. That he formally resigns from his position;
3. That his resignation has not yet been
accepted; and
4. That he abandons his office to the detriment
of the public service.
Notes:
1. There must be formal or written resignation.
2. The offense is qualified if the purpose behind
the abandonment is to evade the discharge
of
duties
consisting
of
preventing,
prosecuting or punishing any of the crimes
against national security (e.g. treason,
espionage), in which case, the penalty is
higher.
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Abandonment of Office or Position and
Dereliction of Duty, Distinguished
ABANDONMENT
DERELICTION OF
OF OFFICE OR
DUTY (ART. 208)
POSITION
Committed only by
public officers who
Committed by any
have the duty to
public officer
institute
prosecution
There
is
actual Public officer does
abandonment
not abandon his
through resignation office but merely
to
evade
the fails to prosecute a
discharge of duties
violation of the law
Section 3. – Usurpation of Powers and
Unlawful Appointments
Art. 239. Usurpation of Legislative Powers
Any executive or judicial officer who shall
encroach upon the powers of the legislative
branch of the Government, either by making
general rules or regulations beyond the scope
of his authority or by attempting to repeal a
law or suspending the execution thereof
Elements:
1. That the offender is an executive or judicial
officer; and
2. That he:
a. makes general rules or regulations
beyond the scope of his authority, or
b. attempts to repeal a law, or
c. suspends the execution thereof
Art. 240. Usurpation of Executive Functions
Any judge who shall assume any power
pertaining to the executive authorities or shall
obstruct the latter in the lawful exercise of
their powers
Elements:
1. That the offender is a judge; and
2. That he:
a. assumes a power pertaining to the
executive authorities, or
b.
obstructs executive authorities in the
lawful exercise of their powers
Note:
Legislative officers are not liable for usurpation of
executive functions.
Art. 241. Usurpation of Judicial Functions
Any officer of the executive branch of the
Government who shall assume judicial powers or
shall obstruct the execution of any order or
decision rendered by any judge within his
jurisdiction
Elements:
1. That the offender is an officer of the executive
branch of the government; and
2. That he:
a. assumes judicial powers, or
b. obstructs the execution of any order or
decision rendered by any judge within
his jurisdiction
Note: Legislative officers are not liable for
usurpation of judicial functions.
Art. 242. Disobeying Request for
Disqualification
Any public officer who, before a question of
jurisdiction by him over a proceeding is decided,
shall continue any proceeding after having been
lawfully required to refrain from so doing
Elements:
1. That the offender is a public officer;
2. That a proceeding is pending before such
public officer;
3. That there is a question brought before the
proper authority regarding his jurisdiction,
which is not yet decided;
4. That he has been lawfully required to refrain
from continuing the proceeding; and
5. That he continues the proceeding
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Art. 243. Orders or Requests by Executive
Officer to Any Judicial Authority
Any executive officer who shall address any
order or suggestion to any judicial authority
with respect to any case or business coming
within the exclusive jurisdiction of the courts
of justice
Elements: (3)
1. That the offender is an executive officer;
2. That he addresses any order or suggestion
to any judicial authority; and
3. That the order or suggestion relates to any
case or business coming within the exclusive
jurisdiction of the courts of justice
Note:
Legislative or judicial officers are not liable under
this article.
Art. 244. Unlawful Appointments
Any public officer who shall knowingly
nominate or appoint to any public office any
person lacking the legal qualifications therefor
Elements:
1. That the offender is a public officer;
2. That he nominates or appoints a person to a
public office;
3. That such person lacks the legal qualification
therefor; and
4. That the offender knows that his nominee or
appointee lacks the qualification at the time
he made the nomination or appointment
Notes:
1. Mere recommending, even if with the
knowledge that the person recommended is
not qualified, is not a crime. He must
nominate.
2. There must be a law providing for the
qualifications of a person to be nominated or
appointed to a public office.
CRIMINAL LAW
Section 4. – Abuses against Chastity
Art. 245. Abuses against Chastity
Any public officer who shall solicit or make
immoral or indecent advances to a woman
interested in matters pending before such
officer for decision, or with respect to which he
is required to submit a report to or consult with
a superior officer;
Any warden or other public officer directly
charged with the care and custody of
prisoners or persons under arrest who shall
solicit or make immoral or indecent advances
to a woman under his custody
Punishable Acts: (3)
1. By soliciting or making immoral or indecent
advances to a woman interested in matters
pending before the offending officer for
decision, or with respect to which he is
required to submit a report to or consult with
a superior officer;
2. By soliciting or making immoral or indecent
advances to a woman under the offender’s
custody; and
3. By soliciting or making immoral or indecent
advances to the wife, daughter, sister, or
relative within the same degree by affinity of
any person in custody of the offending
warden or officer
Elements:
1. That the offender is a public officer;
2. That he solicits or makes immoral or indecent
advances to a woman; and
3. That such woman must be –
a. interested in matters pending before the
offender for decision, or with respect to
which he is required to submit a report to
or consult with a superior officer, or
b. under the custody of the offender who is
a warden or other public officer directly
charged with care and custody of
prisoners or person under arrest, or
c. the wife, daughter, sister or relative within
the same degree by affinity of the person
in the custody of the offender.
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Notes:
1. The mother of the person in the custody of the
public officer is not included.
2. To solicit means to propose earnestly and
persistently something unchaste and immoral
to a woman.
3. The crime is consummated by mere
proposal.
4. Proof of solicitation is not necessary when
there is sexual intercourse.
————end of topic ————
G. CRIMES AGAINST PERSONS
Chapter 1: Destruction of Life
Section 1 - Parricide, Murder, Homicide
Art. 246. Parricide
Any person who shall kill his father, mother, or
child, whether legitimate or illegitimate, or any
of his ascendants, or descendants, or his
spouse
Elements: (RAK)
1. That a person is killed;
2. That the deceased is killed by the accused;
3. That the deceased is the (relationship)
a. father, mother, or child, whether
legitimate or illegitimate, or
b. legitimate other ascendant or other
descendant, or
c. legitimate spouse of the accused
Relationship of the offender with the victim is
the essential element.
1. Required to determine legitimacy of
relationship with victims;
2. The following are excluded (i.e., the accused
will not be guilty of parricide if they are killed
by him/her) (A3-RIC)
a. Adoptive relationship (adopting parentadopted child); (Reyes, Book Two, p.507)
CRIMINAL LAW
b. Child Less than 3 days old (infanticide);
c. Relationship by Affinity (in-laws);
d. Illegitimate
other
Ascendant/descendant; and
e. Common-law spouse
Notes:
1. Relationship must be alleged in the
Information and proved. If not alleged, it can
only be considered as an ordinary
aggravating circumstance.
2. Punished by reclusion perpetua to death
3. Only relatives by blood and in direct line
(except spouse) are considered. Only
relatives by blood may be legitimate or
illegitimate. An adoptive father or adopted
son, or father-in-law or son-in- law, is not
included in this provision. (Reyes, Book Two,
p.507)
4. Marriages among Muslims or among
members of ethnic cultural communities
recognized (Art. 33, Family Code)
5. Punishment
for
Parricide
through
imprudence/negligence:
a. Reckless imprudence – punished by
Arresto Mayor in its maximum period to
Prision Correccional in its medium
period; and
b. Simple imprudence or negligence –
punished by Arresto Mayor in its medium
maximum periods.
6. Parricide by mistake: if there is intent to kill
a stranger but, by mistake, a covered relative
is killed, offender will be liable, applying Art.
4(1) (in relation to Art. 49 of the RPC, for
penalization),
because
knowledge of
relationship is not required in parricide
7. Parricide by omission (in relation to Art. 276,
2nd par. – Abandoning a minor)
8. Stranger cooperating in parricide is only guilty
of homicide or murder, as the case may be
Parricide is not punishable by Reclusion
Perpetua to Death when:
1. It is committed through negligence (Art. 365);
or
2. It
is
committed
under
exceptional
circumstances (Art. 247).
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Art. 247. Death or Physical Injuries Inflicted
Under Exceptional Circumstances
Committed by
1. any legally married person who, having
surprised his spouse in the act of
committing sexual intercourse with another
person, shall kill or inflict serious physical
injuries on any of them or both of them in
the act or immediately thereafter; or
2. Parents who, having surprised their
daughters under 18 years of age and living
with them in the act of committing sexual
intercourse with other persons, shall kill or
inflict serious physical injuries on any of
them or both of them in the act or
immediately thereafter
Elements: (3)
1. A legally married person or parent surprises
his spouse or daughter (the latter must be
under 18 and living with them) in the act of
committing sexual intercourse with another
person;
2. He/she kills any or both of them or inflicts
upon any or both of them any serious physical
injury in the act or immediately thereafter; and
3. He/she has not promoted or facilitated the
prostitution of his wife or daughter, or that
he/she has not consented to the infidelity of
his/her spouse.
Definitions of terms
1. The requirement of being legally married
therefore
excludes
common-law
relationships.
2. Legitimacy of parent is not required, where a
daughter is minor, unmarried and living with
her parents.
3. Surprise means “to come up suddenly and
unexpectedly.”
4. In the act of committing sexual
intercourse with another person is satisfied
if circumstances show reasonably that the
carnal act is being committed or has just been
committed.
5. Immediately
thereafter
means
the
discovery, escape, pursuit and the killing
must all form parts of one continuous act.
CRIMINAL LAW
Justification for Art. 247: Burst of Passion
The killing must be the proximate result of the
outrage overwhelming the accused; and not
influenced by external factors.
Notes:
1. The article does not define a crime, but when
death/serious physical injuries are inflicted, it
grants a “singular mitigating circumstance”
and, provides for the “penalty” of destierro (as
a form of protection for the accused) instead
of the severe penalty prescribed for parricide,
homicide, or physical injuries.
2. If the physical injuries caused are less
serious or slight, the circumstances present
an absolutory cause, thus no criminal liability
is ascribed.
3. Both wives and husbands are entitled to the
benefits of this article.
4. Sexual intercourse does not include
preparatory acts.
5. It is immaterial whether the offending
daughter is legitimate or illegitimate, provided
they are living with their offended parents.
Physical Injuries:
1. When only other types of physical injuries are
inflicted, the article grants absolution from
criminal liability (no penalty imposable).
2. Although as a rule, one committing an
offense is liable for all the consequences of
his act, the rule presupposes that the act
done amounts to a felony. If the act done is
not a felony, the accused cannot be held
liable for physical injuries inflicted upon third
persons (i.e., those other than the
wife/daughter and the paramour). (People v.
Abarca, 153 SCRA 735)
Art. 248. Murder
Any person who, not falling within the
provisions of Article 246, shall kill another with
the attendance of certain qualifying
circumstances
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Elements:
1. That a person is killed;
2. That the deceased is killed by the accused;
3. That the killing was attended by any of the
following qualifying circumstances:
a. with treachery, taking advantage of
superior strength, with the aid of armed
men, or employing means to weaken the
defense or of means or persons to insure
or afford impunity,
b. in consideration of price, reward or
promise,
c. by means of inundation, fire, poison,
explosion, shipwreck, stranding of
vessel, derailment or assault upon a
street car or locomotive, fall of airship, by
means of motor vehicles, or with the use
of any other means involving great waste
or ruin,
d. on occasion of any of the calamities
enumerated in the preceding paragraph,
or of an earthquake, eruption of a
volcano, destructive cyclone, epidemic or
any other public calamity,
e. with evident premeditation, or
f. with cruelty, by deliberately and
inhumanely augmenting the suffering of
the victim, or outraging or scoffing at his
person or corpse; and
4. The killing is not parricide or infanticide.
Murder is the unlawful killing of any person, which
is not parricide or infanticide, provided that any of
the above-enumerated circumstances are
present.
Notes:
1. Intent to kill – essential in all qualifying
circumstances, except treachery
2. Victim must be killed in order to consummate
the crime; if victim is not killed, only either
attempted or frustrated murder is committed
3. Treachery – present when the act
constituting the felony is sudden and
unexpected, to the point of incapacitating the
victim from being able to repel or escape it
a. The means, methods, or form of attack
must be consciously adopted by the
offender.
CRIMINAL LAW
b. Present when an adult person attacks a
child of tender years
c. The essence of treachery is that the
attack comes without a warning and in a
swift, deliberate, and unexpected
manner, affording the hapless, unarmed,
and unsuspecting victim no chance to
resist or escape.
Treachery must have been deliberately or
consciously adopted as the means of
execution to ensure the success of the felony.
[LEONEN] There was no treachery because X
had tapped the victim on his shoulder before he
stabbed him. The mere suddenness of an attack
shouldn’t be the sole basis in finding treachery.
There must be evidence to show that the accused
deliberately or consciously adopted the means of
execution to ensure its success. Also, before the
attack, the victim had been insulting him and
mocking him in a loud voice. This utterance, along
with the testimonies of victim’s previous insults,
would have been sufficient provocation for X to
stab him. Since treachery hasn’t been
established, the crime is only homicide. (People
v. Oloverio, G.R. No. 211159, March 18, 2015)
[LEONEN] For there to be treachery, the
following must be proven: (1) that at the time of
the attack, the victim was not in a position to
defend himself, and (2) that the offender
consciously adopted the particular means,
method or form of attack employed by him. When
Z grabbed X's arm by surprise and
simultaneously stabbed him with a knife despite
being unarmed. This left X helpless as it left him
with no opportunity to defend himself or even to
retaliate. (People v. Antonio y Pableo, G.R. No.
229349, January 29, 2020)
[LEONEN] After responding to a report and
resorting to a car chase, the officers were able to
block its path. Upon order of the officers, all the
riders stepped out of the vehicle except for the
driver. Police X, who was fully armed, opened the
door opposite the driver’s side to check on him,
but as soon as he did, the driver shot Police X
thrice in the chest. Police X was a fully armed and
trained police officer; his training and police work
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would have prepared him for the possible
hostilities that a person’s impending arrest may
commit. The previous car chase and accused’s
refusal to heed police orders should have warned
him of possible violent behavior to evade arrest.
When a police officer had been forewarned of
brewing violence, he or she could not have been
completely taken by surprise by the attack. In
such instance, therefore, treachery could not
have attended the killing. (People v. Pitulan y
Briones, G.R. No. 226486, January 22, 2020)
They hid in a dark portion of the road and
assaulted Jesus with their bolos while he was
urinating with his back to them. They even held
him by his shoulders to render him defenseless
and unable to resist the attack on him by his
assailants. Jesus was unaware of the imminent
peril to his life and was rendered incapable of
defending himself. (People v. Benny Cabtalan,
G.R. No. 175980, February 15, 2012)
Notes (continued):
4. Not enough that superior strength is
present; it must be taken advantage of
5. Taking advantage of superior strength also
applies when the act is committed on
occasion of a public calamity.
6. Armed men must take part in the
commission of the crime directly or indirectly.;
accused must avail himself of their aid or rely
upon them.
7. Person who received the price, reward, or
promise is a principal by direct participation;
person who gave such price, reward, or
promise is a principal by induction. BOTH are
guilty of murder.
8. Treachery and premeditation are inherent in
murder by poison, and thus, cannot be
considered as aggravating.
When abuse of superior strength does not
apply
The presence of abuse of superior strength
should not result in qualifying the offense to
murder when it obtains in the special complex
crime of robbery with homicide. In such case, it
should be regarded as a generic circumstance.
(Judge Pimentel Notes, page 220)
CRIMINAL LAW
Complex crime of direct assault with murder
or homicide
When the assault results in the killing of an agent
or of a person in authority, there arises the
complex crime of direct assault with murder or
homicide. (People v Ex-Mayor Carlos Estonilo
Sr., et al., GR No 201565, October 13, 2014)
Rules
for
application
of
qualifying
circumstances
1. Murder will exist with only one of the
circumstances; others must be considered as
generic aggravating.
2. When other circumstances are absorbed or
included in one qualifying circumstance, they
cannot be considered as generic aggravating
circumstances.
3. Any of the circumstances must be alleged in
order to qualify the crime to murder. If not
alleged, it will not even be considered as a
generic aggravating circumstance. (Secs. 8
and 9, Rule 110 of the Rules of Court)
Outraging or scoffing at the victim or his
corpse: additional qualifying circumstance
not mentioned in Art. 14
1. Outraging: to commit an extremely vicious or
deeply insulting act
2. Scoffing: to jeer; implies a showing of
irreverence
Jurisprudence:
[LEONEN] While the court does not condone the
archaic and oftentimes barbaric traditions of the
fraternities involved, it is conceded that there are
certain practices that are unique to fraternal
organizations. It is quite possible that the victims
knew the identities of their attackers but chose not
to disclose it without first conferring with their
other fraternity brothers. Seniority is also often
the norm in fraternities. It was upon the advice of
the victims’ senior "brods" and their legal counsel
that they executed their sworn statements before
the National Bureau of Investigation four (4) days
after the incident. Treachery was present in the
commission of the crime. The victims were eating
lunch on campus, where there is no reasonable
expectation for any sudden attack. They were
also unarmed, while the assailants, who
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outnumbered the victims, were armed with
baseball bats and lead pipes. The swiftness and
suddenness of the attack gave no opportunity for
the victims to retaliate or even to defend
themselves. Finally, since there is proven
conspiracy, the CA erred in distinguishing the
liabilities of the assailants per the degrees of
seriousness of the injuries suffered by their
respectively-assailed victims because the “act of
one is the act of all” in crimes with conspiracy.
(People v Feliciano, G.R. No. 196735, May 5,
2014)
[LEONEN] The fact that the wounds sustained by
the victim were merely superficial and not fatal did
not negate the liability of the accused for
attempted murder. In this case, Mr. Z managed to
parry an attempted blow, causing a fracture in his
right hand instead of a more serious and possibly
fatal injury on his head. In any case, the fact that
Mr. Z was successful in blocking the blow with his
hand does not, in and of itself, mean that
respondents could not have possibly killed him. It
does not negate any homicidal intent. It remains
that Mr. X attempted to hit Mr. Z on the head with
a hollow block while Mr. C and Mr. L made efforts
to restrain Mr. Z. (Marasigan y De Guzman v.
Fuentes, G.R. No. 201310, January 11, 2016)
[LEONEN] Victim’s medical certificate belies his
claim that he was assaulted. If he were actually
“relentlessly” assaulted, there would be a greater
chance that he must have been “black and blue
all over”. The Court cannot be persuaded by the
claim of perpetration of physical violence in the
absence of any marked physical injuries on the
various parts of the victim’s face and body.
Additionally, he admitted that the injury was
caused by hitting his head on the pavement rather
than by petitioners’ attack. (Daayata v. People,
G.R. No. 205745, March 8, 2017.)
Art. 249. Homicide
Any person who, not falling within the provisions
of Article 246, shall kill another without the
attendance of any of the circumstances
enumerated in Article 248
CRIMINAL LAW
Elements: (PAIN) (4)
1. That a Person was killed;
2. That the Accused killed him without any
justifying circumstances;
3. That the accused had the Intention to kill,
which is presumed; and
4. That the killing was Not attended by any of
the qualifying circumstances of murder, or
by those of parricide or infanticide
Notes:
1. Homicide is the unlawful killing of any
person, which is neither parricide, murder, or
infanticide
2. Consummated when victim is killed;
otherwise, attempted or frustrated
3. Presumption of intent to kill
a. With respect to crimes of personal
violence, the penal law looks particularly
to the material results following the
unlawful act and holds the aggressor
responsible for all the consequences
thereof
b. Evidence of intent to kill is important only
in attempted or frustrated homicide
- Intent to kill is conclusively presumed
when the victim dies
- Otherwise, intent to kill must be
proved beyond reasonable doubt
• Generally shown by the kind of
weapon used, the parts of the
victim’s body at which it was
aimed, and by the wounds
inflicted
• But purpose of the accused may
also be considered
• The element of intent to kill is
incompatible with imprudence or
negligence
• No attempted or frustrated
homicide through imprudence or
negligence; crime would be
physical
injuries
through
reckless imprudence
• Accidental Homicide is not the
same as Homicide through
imprudence or negligence; no
criminal liability for accidental
homicide
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Accidental Homicide is the death of a person
brought about by a lawful act performed with
proper care and skill, and without homicidal
intent.
a. If in a game, rules are violated and death
resulted, the significance of the presence
or absence of intent to kill is as follows:
b. If there was intent to kill, it is intentional
homicide
c. If there was no intent to kill, it is homicide
through negligence.
4. When two different persons inflicted the
wounds which caused the death, both are
guilty of homicide.
a. The burden to prove otherwise is on each
of the defendants.
b. Proof of conspiracy is not necessary.
c. Also applies when it is not shown which
wounds were inflicted by each person
5. Use of unlicensed firearm in homicide (and in
other crimes v persons) is considered an
aggravating circumstance and not a separate
crime.
Unallowable exculpatory defenses:
1. Refusal of victim to be operated
2. The fact that suicide by the victim concurs
Corpus Delicti
In all crimes against persons in which the death
of the victim is an element of the offense, there
must be satisfactory evidence of:
1. The fact of death, and
2. The identity of the victim.
Corpus delicti does not refer to the body of the
victim but to the “body of the crime” – the actual
commission of the crime charged.
Art. 250. Penalty for Frustrated Parricide,
Murder, or Homicide
1. Courts may impose a penalty two
degrees lower for frustrated parricide,
murder or homicide, under Article 50.
2. Courts may impose a penalty three
degrees lower for attempted parricide,
murder or homicide, under Article 51.
3. This rule is permissive—not mandatory
Art. 251. Death Caused in a Tumultuous
Affray
When, while several persons, not composing
groups organized for the common purpose of
assaulting and attacking each other reciprocally,
quarrel and assault each other in a confused and
tumultuous manner, and in the course of the
affray someone is killed, and: (a) it cannot be
ascertained who actually killed the deceased, but
the person or persons who inflicted serious
physical injuries can be identified, or (b) it also
cannot be determined who inflicted serious
physical injuries on the victim, but those who
used violence on the person of the victim can be
identified
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; and
6. That the person or persons who inflicted
serious physical injuries or who used violence
can be identified
Definition of “Tumultuous”
Tumultuous (as used in Art. 153) means that the
disturbance is caused by at least four persons
who are armed or are provided with means of
violence. There must be no unity of purpose and
intention among the persons who used violence.
Persons liable:
1. Person or persons who inflicted serious
physical injuries, if identifiable; or
2. If it is not known who inflicted serious physical
injuries on the deceased, all persons who
used violence upon the person of the victim
Notes:
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1. When there are two identified groups which
assaulted each other, there is no tumultuous
affray.
2. The person killed need not be a participant in
the affray.
3. Does not apply when the person who inflicted
the fatal wound is known; in that case, the
crime will be homicide under Art. 249
Art. 252. Physical Injuries Inflicted in a
Tumultuous Affray
When in a tumultuous affray as referred to in
Article 251, only serious or less serious
physical injuries are inflicted upon the
participants and the persons responsible
therefor cannot be identified, but those who
used violence on the person of the victim can
be identified.
Elements:
1. That there is a tumultuous affray as referred
to in the Article 251;
2. That a participant or some participants
thereof suffer serious physical injuries or
physical injuries of a less serious nature only;
3. That the persons responsible therefor cannot
be identified; and
4. That all those who appear to have used
violence upon the person of the offended
party are known
Notes:
1. Persons liable: only those who used violence
on the person of the offended party
2. Penalty will be one degree lower than that
provided for the physical injury inflicted.
3. Injured party must be a participant of the
tumultuous affray (as opposed to the
preceding article).
4. If the one who caused physical injuries on the
victim is known, he will be liable for the
physical injuries actually committed.
5. Slight physical injuries are not included.
CRIMINAL LAW
Art. 253. Giving Assistance to Suicide
Any person who shall assist another to
commit suicide, whether the suicide was
consummated or not
Punishable Acts:
1. Assisting another to commit suicide (that
is, only furnishing the person committing
suicide with the means to kill him/herself),
whether the suicide is consummated or not;
and
2. Lending assistance to another to commit
suicide to the extent of doing the killing
himself
Notes:
1. If the suicide is not consummated:
a. For the first punishable act: punishable
by arresto mayor in its medium and
maximum periods; and
b. For the second punishable act: one or
two degrees lower than that provided for
consummated suicide
2. An attempt to commit suicide is an act, but it
is not punishable by law. The person so
attempting is not criminally liable.
3. A pregnant woman who tries to commit
suicide by means of poisoning herself, but
instead of dying, the fetus in her womb was
expelled, is not liable for abortion.
a. In order to incur criminal liability for the
result not intended, one must be
committing a felony.
b. Unintentional abortion is punishable only
when it is caused by violence, not by
poisoning oneself (Art. 257).
4. Assistance to suicide is different from mercykilling. Euthanasia or mercy-killing is the
practice of painlessly putting to death a
person suffering from some incurable
disease. In this case, the person does not
want to die. A doctor who resorts to
euthanasia may be held liable for murder.
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Art. 254. Discharge of Firearms
Any person who shall shoot at another with
any firearm if the shooting does not amount to
attempted, frustrated, or consummated
murder, homicide, parricide, or any other
crime that imposes a higher penalty
Elements: (ON) (2)
1. That the Offender discharges a firearm
against or at another person; and
2. That the offender has No intention to kill that
person.
Notes:
1. The offender must shoot at another with any
firearm without intention of killing him.
a. The purpose of the offender may be only
to intimidate or frighten the offended
party.
b. If the firearm is not discharged at a
person, the act is not punished under this
article.
c. A discharge towards the house of the
offended party, not knowing in what part
of the house the people inside were, is
only alarm under Art. 155.
d. It is sufficient that the gun was initially
aimed at or against the offended party,
even if it was not pointed at the offended
party when it was fired.
e. If there was intent to kill, it may be
frustrated or attempted parricide, murder,
or homicide.
2. Essential to prove that the discharge of
firearm was directed precisely against the
offended party
3. If the illegal discharge inflicts serious or less
serious physical injuries to the offended party,
there will be a complex crime of illegal
discharge of firearm with serious or less
serious physical injuries.
Section 2. - Infanticide and Abortion
Art. 255. Infanticide
Infanticide is the killing of any child less than
three days of age, whether the killer is a
CRIMINAL LAW
parent or grandparent, any other relative of
the child, or a stranger
Elements: (KLA) (3)
1. That a child was Killed;
2. That the deceased child was Less than three
days (72 hours) of age; and
3. That the Accused killed the child
Notes:
1. The child must be born alive and can sustain
an independent life when it is killed.
a. Burden of proof upon the prosecution
2. Penalty is that of either parricide or murder,
depending on the relationship of the accused
with the victim
3. Mitigating circumstance of concealing
dishonor
a. Applicable only to the mother and
maternal grandparents; and
b. Delinquent mother must be of good
reputation
Art. 256. Intentional Abortion
Willful killing of the fetus in the uterus, or the
violent expulsion of the fetus from the maternal
womb which results in the death of the fetus
Elements:
1. That there is a pregnant woman;
2. That any of the following is accomplished
a. violence is exerted upon the person of
the pregnant woman, or
b. drugs or beverages are administered to
the woman or other acts done, without
using violence and without the consent of
the, or
c. drugs or beverages are administered to
the woman or other acts done, with her
consent;
3. That as a result of the use of violence, drugs
or beverages by, or any other act of, the
accused, the fetus dies, either in the womb or
after having been expelled therefrom; and
4. That the abortion is intended.
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Notes:
1. Fetus must die, in consummated abortion;
otherwise (meaning fetus lives):
a. If there is an intention to abort, frustrated
intentional abortion;
b. If there is no such intention to abort,
physical injuries
2. The crime is infanticide (as opposed to
abortion) if the fetus:
a. Could sustain an independent life, after
separation from the womb; and
b. Dies
3. The person who intentionally caused the
abortion is liable. As for the woman:
a. If she permitted the acts to be done to her,
she will be liable under Art. 258;
b. otherwise, she is not liable
Art. 257. Unintentional Abortion
Any person who shall cause an abortion by
violence, but unintentionally
Elements: (4)
1. That there is a pregnant woman;
2. That violence is used upon such pregnant
woman without intending an abortion;
3. That the violence is intentionally exerted; and
4. That as a result of the violence the fetus dies,
either in the womb or after having been
expelled therefrom
Notes:
1. Can only be committed by violence
a. Violence or actual physical force (as
opposed to threats or mere administering
of substance with no intention to commit
abortion) must be used
2. Intention may be inferred from the condition
of the pregnant woman (i.e. whether
pregnancy is noticeable)
3. May be committed through imprudence
4. May be complexed with homicide and
parricide
5. If there is no intent to cause abortion and no
violence committed, no abortion of any kind
CRIMINAL LAW
Art. 258. Abortion Practiced by the Woman
Herself or by Her Parents
Elements:
1. That there is a pregnant woman who has
suffered an abortion;
2. That the abortion is intended; and
3. that the abortion is caused by –
a. the pregnant woman herself;
b. any other person, with her consent; or
c. particularly by any of her parents, with
her consent, for the purpose of
concealing her dishonor
Notes:
1. Mitigating circumstance (as distinguished
from infanticide): done for the purpose of
concealing dishonor; only applicable to the
pregnant woman and not to the parents of the
pregnant woman
2. If the purpose of the woman’s parents was
not to conceal dishonor, they will be liable for
intentional abortion under Art. 256.
Art. 259. Abortion Practiced by a Physician
or Midwife and Dispensing of Abortives
Elements: (4)
1. That there is a pregnant woman who has
suffered an abortion;
2. That the abortion is intended;
3. That the offender, who must be a physician or
midwife, causes, or assists in causing, the
abortion; and
4. That said physician or midwife takes
advantage of his or her scientific knowledge
or skill
Elements as to Pharmacists: (3)
1. That the offender is a pharmacist;
2. That there is no proper prescription from a
physician; and
3. That the offender dispenses any abortive
Notes:
1. The taking advantage of scientific knowledge
or skill for the destruction of human life
justifies the imposition of the maximum
penalty.
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2. The significance of knowledge that the
abortive would be used to cause abortion:
a. Without such knowledge, punishable
under this article; or
b. With knowledge, punishable as an
accomplice in the crime of abortion
3. Not necessary for the abortive to be actually
used; the act constituting the offense is
dispensing the abortive without proper
prescription
Section 3 – Duel
Art. 260. Responsibility of Participants in a
Duel
Punishable Acts:
1. Killing one’s adversary in a duel;
2. Inflicting upon such adversary physical
injuries; and
3. Making a combat although no physical
injuries have been inflicted by either
combatant on the other
Persons liable:
1. Principals – person who killed, or inflicted
physical injuries upon, his adversary, or both
combatants, in any other cases
2. Accomplices – seconds (person who make
the selection of the arms and fix the other
conditions of the fight)
Notes:
1. A duel is a formal or regular combat
previously concerted between two parties in
the presence of two or more seconds of
lawful age on each side, who make the
selection of arms and fix all the other
conditions of the fight.
2. Intent to kill is disregarded where only
physical injuries result. Penalty will be that for
physical injuries only, as opposed to those
imposed for frustrated/attempted homicide.
(2nd paragraph of the provision)
Art. 261. Challenging to a Duel
Punishable Acts:
1. Challenging another to a duel;
2. Inciting another to give or accept a challenge
to a duel; and
3. Scoffing at or decrying another publicly for
having refused to accept a challenge to fight
a duel
Persons liable:
1. Challengers, and
2. Instigators
There must be intention to have a formal duel (as
opposed to light threats under Art. 285, par. 2)
Chapter 2: Physical Injuries
Crimes Punishable:
1. Mutilation;
2. Serious physical injuries;
3. Administering
injurious
substance
or
beverages;
4. Less serious physical injuries; and
5. Slight physical injuries and maltreatment.
Note: To be found guilty of violation of Articles 262
to 266, there must be a specific malicious intent
to do wrong against the physical integrity or
well-being of a person, so as to incapacitate
and deprive the victim of certain bodily
functions. (Villa v Manual Lorenzo Escalona II,
et. al, GR No 178057 & 178080, December 1,
2014) – animus iniuriandi
Art. 262. Mutilation
Any person who shall intentionally mutilate
another by depriving him, either totally or
partially, of some essential organ of
reproduction
Two (2) Kinds:
1. Castration: Intentionally mutilating another
by depriving him, totally or partially, of some
essential organ for reproduction
2. Mayhem or other intentional mutilation:
Intentionally making other mutilation, i.e.
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lopping, clipping off any part of the body of
the offended party, other than the essential
organ for reproduction, to deprive him of that
part of his body
There must be intent to mutilate – offender must
have the intention of depriving the offended party
of a part of his body. If there’s no such intention,
the crime will be considered as serious physical
injuries.
Physical Injuries distinguished from other
crimes
1. Attempted or Frustrated Homicide
a. Attempted homicide may be committed,
even if no physical injuries are inflicted;
and
b. Intent to kill is not present in the crime of
physical injuries.
2. Mutilation
a. Intention to lop or clip off some part of the
body is present in mutilation.
Art. 263. Serious Physical Injuries
How committed:
1. Wounding;
2. Beating; or
3. Assaulting
Elements: (3)
1. The offender has wounded, beaten,
assaulted another;
2. The physical injuries inflicted shall have
caused the illness or incapacity for labor of
the injured person for more than 30 days;
3. There must be no intent to kill on the part of
the offender in inflicting the injury (Pilares Sr.
vs. People, GR No 165685, March 12, 2007)
Serious Physical Injuries Are:
1. When the injured person becomes insane,
imbecile, impotent or blind as a consequence
of the physical injuries inflicted;
2. When the injured person –
a. loses the use of speech or the power to
hear or to smell,
b. loses an eye, a hand, foot, arm or leg, or
loses the use of any such member,
CRIMINAL LAW
c. becomes incapacitated for the work in
which he had been habitually engaged;
3. When the injured person –
a. becomes deformed,
b. loses any other member of his body,
c. loses the use thereof, or
d. becomes ill or incapacitated for the
performance of the work in which he had
been habitually engaged in for more than
90 days; and
4. When the injured person becomes ill or
incapacitated for labor for more than 30 days
(but not more than 90 days).
Paragraph 1
1. Impotency includes inability to copulate and
sterility; no intent to deprive the person of
such abilities, however (as opposed to
castration); and
2. Complete blindness (as opposed to
paragraph 2 – loss of an eye only)
Paragraph 2 (mentions principal members of the
body)
1. Loss of power to hear of both ears (as
opposed to paragraph 3 – loss of one ear
only);
2. Loss of use of hand or incapacity for usual
work must be permanent; This must be
proven by clear and conclusive evidence;
3. The offended party must have an avocation
or work at the time of the injury [also in
paragraph (3)];
a. Work includes studies or preparation for
a profession; and
b. Incapacity is for a certain kind of work
only, but not for all
Paragraph 3
1. Deformity means physical ugliness, or
permanent and defining abnormality. It must
be conspicuous and visible (i.e., depending
on what part of the body);
a. If scar is usually covered, then it’s not
considered conspicuous or visible;
b. Loss of teeth may be considered as
deformity;
c. Injury must be that which cannot be
repaired by the action of nature;
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EXCEPTIONS: old men/women and
children;(Reyes, Book Two, p. 586, citing
People v. Balubar)
2. Loss of fingers may fall under paragraph 2 if
it results in the loss of the use of the hand
itself; and
3. Covers any member which is not a principal
member of the body.
Paragraph 4
1. Any kind of labor is included;
2. Hospitalization for more than 30 days may
mean either illness or incapacity for labor for
more than 30 days;
3. There must be evidence of the length of
period of illness or incapacity when the
category of the offense is serious physical
injuries. The absence thereof makes the
offense only slight physical injuries; and
4. Lessening of efficiency in work is not
incapacity.
Qualified Serious Physical Injuries
1. In relation to persons enumerated in parricide
(Art. 246) and circumstances mentioned in
murder (Art. 248) – higher penalties will be
inflicted.
2. Does not include injuries caused by
excessive chastisement of a parent upon his
child
Notes:
1. It can be committed by reckless imprudence,
or by simple imprudence or negligence.
2. There must be no intent to kill; otherwise, the
crime would be frustrated/attempted murder,
parricide, or homicide.
3. Medical attendance is not important in
serious physical injuries.
4. In case of physical injuries under the Revised
Penal Code, there must be a specific animus
iniuriandi or malicious intention to do wrong
against the physical integrity or well-being of
a person so as to incapacitate and deprive
the victim of certain bodily functions. Without
proof beyond reasonable doubt of the
required animus iniuriandi, the overt act of
inflicting physical injuries per se merely
satisfies the elements of freedom and
CRIMINAL LAW
intelligence in an intentional felony. The
commission of the act does not, in itself,
make a man guilty unless his intentions are.
(Villareal v. People, G.R. No. 151258,
February 1, 2012)
Art. 264. Administering Injurious Substances
or Beverages
Any person who, without intent to kill, inflicts
upon another any serious physical injury, by
knowingly administering to him any injurious
substances or beverages or by taking
advantage of his weakness of mind or credulity
Elements:
1. That the offender inflicted upon another
person any Serious physical injury;
2. That it was done by Knowingly administering
to him any injurious substances or beverages
or by taking advantage of his weakness of
mind or credulity; and
3. He had No intent to kill
Notes:
1. Administering means introducing into the
body.
2. If there is intent to kill, it is frustrated murder
– the injurious substance to be considered as
poison.
3. Knowledge applies to the injurious nature of
the substance or beverage.
4. “By taking advantage of his weakness of
mind or credulity” may take place in the case
of witchcraft, philters, magnetism and the like.
Art. 265. Less Serious Physical Injuries
Any person who shall inflict upon another
physical injuries not described in the preceding
articles, but which shall incapacitate the
offended party for labor for ten days or more, or
shall require medical attendance for the same
period, shall be guilty of less serious physical
injuries
Elements: (I-NP) (2)
1. That the offended party is Incapacitated for
labor or needs medical attendance for 10
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days or more (but not more than 30 days);
and
2. That the physical injuries must Not be those
described in the Preceding articles
Qualified Less Serious Physical Injuries
1. Fine not exceeding ₱50,000, in addition to
Arresto Mayor (Amended by RA 10951),
when
a. There is a manifest intent to insult or
offend the injured person, or
b. There
are
circumstances
adding
ignominy to the offense
[a. and b. are considered as 1. Ordinary aggravating circumstances in
less serious physical injuries; and
2. Elements of slander by deed, when
only slight physical injuries result]
2. A higher penalty, when the victim is either a. The offender’s parents, ascendants,
guardians, curators or teachers; or
b. Persons of rank or persons in authority,
provided the crime is not direct assault
Notes:
1. Medical attendance or incapacity for labor is
required. There must be proof as to the
period of required medical attendance.
2. Even if there was no incapacity but the
medical treatment was for more than 10 days
- less serious physical injuries
3. If injuries heal within 30 days - less serious
physical injuries;
if injuries heal only after 30 days - serious
physical injuries (as illness for more than 30
days)
4. When there is no incapacity for labor or
medical attendance needed - slight physical
injuries
Art. 266. Slight Physical Injuries and
Maltreatment
Three (3) kinds:
1. Physical injuries which incapacitated the
offended party for labor from one to nine (9)
days or required medical attendance during
the same period;
2. Physical injuries which did not prevent the
offended party from engaging in his habitual
work or which did not require medical
attendance (ex. black eye); and
3. Ill-treatment of another by deed without
causing any injury (ex. slapping the face
without causing dishonor)
Notes:
1. Presumption
a. In the absence of proof as to the period
of the offended party’s incapacity for
labor or of the required medical
attendance, the crime committed is
presumed as slight physical injuries.
b. When there is no evidence to establish
the gravity or duration of actual injury or
to show the causal relationship to death,
the offense is slight physical injuries.
2. Supervening Event
a. When the charge contained in the
information filed was for slight physical
injuries because it was believed that the
wound suffered would require medical
attendance for eight (8) days only, but
during preliminary investigation it was
found that the healing would require
more than thirty (30) days, this
supervening event can still be the subject
of amendment of the information or of a
new charge, without placing the accused
in double jeopardy .(People v. Manolong,
85 Phil. 829)
Chapter 3: Rape
Art. 266-A. Rape; 266-B. Penalties
Rape By Sexual Intercourse (Under Para. 1):
Elements of Rape By Sexual Intercourse (MC-A) (3)
1. The offender is a Man – in general;
2. The offender had Carnal knowledge of a
woman;
3. Such Act is accomplished (any one of the
following) -: FIT-D-M-U (4)
a. Through Force, Threat or Intimidation;
b. when the offended party is Deprived of
reason or otherwise unconscious;
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c. by means of fraudulent Machination or
grave abuse of authority; or
d. when the offended party is Under 12
years of age (statutory rape) or is
demented, even though none of the
circumstances mentioned above be
present
Penalties imposed on Rape By Sexual
Intercourse (Pursuant to R.A. 9346: Act
Prohibiting the Imposition of Death Penalty in the
Philippines, the penalty of reclusion perpetua
without eligibility for parole shall be imposed, in
lieu of death penalty)
1. reclusion perpetua;
2. reclusion perpetua to death when:
a. rape is committed with the use of a
deadly weapon or by two or more
persons; or
b. victim became insane by reason or on the
occasion of rape; or
c. the rape is attempted and a homicide is
committed by reason or on the occasion
thereof.
3. death when:
a. by reason or on occasion of the
(frustrated or consummated) rape,
homicide is committed;
b. victim is under 18 years old and offender
is:
i. parent,
ii. ascendant,
iii. step-parent,
iv. guardian – must be a person who
has a legal relationship with his ward.
(People v Virgilio Antonio y Rivera,
GR No. 208623, July 23, 2014),
v. relative by consanguinity or affinity
within the 3rd civil degree,
vi. common law spouse of victim’s
parent;
c. victim is under the custody of the police
or military authorities or any law
enforcement or penal institution;
d. rape is committed in full view of the
spouse, parent or any of the children or
other relatives within the 3rd civil degree
of consanguinity;
CRIMINAL LAW
e. victim is a religious engaged in legitimate
religious vocation or calling and is
personally known to be such by the
offender before or at the time of the
commission of the crime;
f. victim is a child below 7 years old;
g. offender knows he is afflicted with HIV or
AIDS or any other sexually transmissible
disease and the virus is transmitted to the
victim;
h. offender is a member of the AFP, or paramilitary units thereof, or the PNP, or any
law enforcement agency or penal
institution, when the offender took
advantage of his position to facilitate the
commission of the crime;
i. by reason or on occasion of the rape, the
victim suffered permanent physical
mutilation or disability;
j. the offender knew of the pregnancy of the
offended party at the time of the
commission of the crime; and
k. the offender knew of the mental disability,
emotional disorder and/or physical
handicap of the offended party at the time
of the commission of the crime
Rape Through Sexual Assault (Under Para. 2)
Elements: (S-I-1) (3)
1. the offender (man or woman) commits an act
of Sexual assault;
2. the act is committed by Inserting:
a. his penis into another person's mouth or
anal orifice; or
b. any instrument or object into the genital
or anal orifice of another person;
3. the act is committed under any of the
circumstances mentioned under paragraph 1
(FIT-D-M-U)
Penalties imposed on Rape by Sexual Assault
1. Prision mayor – in general;
2. Prision mayor to reclusion temporal when:
a. there was use of deadly weapon, or
b. committed by two or more persons;
3. Reclusion temporal – when the victim has
become insane;
4. Reclusion temporal to reclusion perpetua –
rape is attempted and homicide is committed;
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5. Reclusion perpetua – homicide is committed
by reason or on occasion of (the frustrated or
consummated) rape; and
6. Reclusion temporal – committed with any of
the
ten
aggravating
circumstances
mentioned in this article (letters b. to k. of
when death is imposed in rape through
sexual intercourse)
The four circumstances:
1. Using force or intimidation; the degree
sufficient to overcome resistance:
a. According to People v. Las Piñas, Jr.
(G.R. No. 133444, February 20, 2002),
the test is whether reasonable fear is
produced in the mind of the victim; where
resistance would be futile, offering none
at all does not amount to consent.
b. Verbal refusal alone will not do; there
must be a physical struggle that’s
manifest and tenacious. (People v. Lago,
G.R. No. 121272, June 6, 2001)
c. The force need not be irresistible; force
or violence necessary is relative,
depending on the age, size, and strength
of the parties and their relation to each
other.
d. 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 the force or
intimidation be sufficient to consummate
the purpose which the accused had in
mind.
e. Intimidation – enough that it produces
fear in the victim; must be viewed in light
of the victim’s perception and judgment at
the time of rape.
f. Moral ascendancy or influence has been
held to be a substitute for intimidation, in
a long line of cases. [People v. Dichoson,
G.R. No. 118986-89, February 19, 2001;
People v. Bazona, G.R. No. 133343-44,
March 2, 2000; People v. Panique, 316
SCRA 757 (1999); People v. Perez, 307
SCRA 276 (1999)] In such a case, it is not
necessary that the victim put up a
determined resistance.
CRIMINAL LAW
g. [LEONEN] The abuse of moral influence
is the intimidation required in rape
committed by the common-law father of a
minor. (People v. ZZZ, G.R. No. 229862,
June 19, 2019)
h. [LEONEN] The victim need not complain
immediately or struggle to oppose the
action of the offender in a rape case,
since, first, fear is recognized as a
legitimate deterrent for struggling
against, and that (second), since he was
the common law father of the victim, he
had moral ascendancy and abused his
authority by doing such action. (People v.
Gacusan, G.R. 207776, April 26, 2017)
i. Intimidation is addressed to the mind of
the victim. It is subjective and its
presence cannot be tested by any hardand-fast rule, but must be viewed in the
light of the victim’s perception and
judgment at the time of the crime.
(People. v Mostrales, GR No 125937,
August 28, 1998).
2. Offended party is deprived of reason or
otherwise unconscious:
a. Deprivation need not be complete;
b. Intercourse with a deaf-mute woman will
only be considered rape if she’s also
proven to be an imbecile.
c. Not considered rape where consent is
induced by the administration of
drugs/liquor, which incites the victim’s
passions and doesn’t deprive her of will
power (Reyes, Book Two, p. 586, citing
State v. Lung)
3. By means of fraudulent machination or grave
abuse of authority; and
4. When the offended party is under 12 years of
age or is demented, even though none of the
other circumstances be present (Statutory
rape).
a. Consent and character (e.g. prostitute) of
the offended party is immaterial.
b. [LEONEN] It is also called statutory rape
as "it departs from the usual modes of
committing rape." It is enough that the
age of the victim is proven and that there
was sexual intercourse. (People v.
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c.
d.
e.
f.
Francica, G.R. No. 208625, September
6, 2017)
It is immaterial that the prosecution failed
to allege in the information the exact date
of the commission of the offenses. It is
sufficient that it was alleged that the
victim was under 12 years of age when
the crime was committed. (People v
Marciano Dollano, Jr., GR No 188851,
October 19, 2011)
The term “demented” refers to a person
who has dementia, which is a condition
of deteriorated mentality, characterized
by marked decline from the individual’s
former intellectual level and often by
emotional apathy, madness, or insanity.
[LEONEN] The offender engaged in
sexual intercourse even though he knew
fully well that the child was mentally ill
and was deprived of reason. (People v.
Corpuz, G.R. No. 208013, July 3, 2017)
[LEONEN] Conditions under Article 266A should be construed in the light of one's
capacity to give consent. An intellectually
disabled person is not necessarily
deprived of reason or demented. The
victim’s chronological age might be over
12 years old but her mental age was
proved to be lower than 12-years-old.
(People v. Tayaban, G.R. No. 207666,
November 22, 2017).
Two stages: (Rape does not admit of a frustrated
stage)
1. Consummated
a. Penetration is necessary;
b. It is not essential that there be a complete
penetration of the female organ; neither
is it essential that there be a rupture of
the hymen.
c. It is enough that the labia majora be
penetrated, even the slightest.
d. The penis need not be erect; it is still
considered rape if the accused
repeatedly tried to insert the penis in the
vagina, even if in vain.
2. Attempted
a. The offender has already performed
overt acts with the intention to have
CRIMINAL LAW
carnal knowledge of the offended party,
but which was not consummated due to
some cause or accident other than his
own spontaneous desistance.
b. There must be intent to have carnal
knowledge of the woman against her will.
c. There can be no frustrated rape because
any penetration of the female organ is
sufficient.
Notes:
1. Homicide committed “by reason of” (i.e., “in
the course of” or “because of”) rape is a
special complex crime.
a. Rape must come before intent to kill or
act of killing.
b. Does not apply when the intent to kill or
killing act preceded the rape act (i.e.,
when victim was on the point of death
when she was ravaged).
c. Includes death of victim through STD
given by the accused who raped her.
(Reyes, Book Two, p.592)
2. Homicide committed "on the occasion of the
rape" - killing that occurs immediately before
or after, or during the commission itself of the
rape, where the victim of the homicide may
be a person other than the rape victim herself
for as long as the killing is linked to the rape.
3. [LEONEN] The elements of the special
complex crime of rape with homicide are
the following:
a. the appellant had carnal knowledge of a
woman;
b. the carnal knowledge of a woman was
achieved by means of force, threat or
intimidation; and
c. by reason or on occasion of such carnal
knowledge by means of force, threat or
intimidation, the appellant killed a
woman. (People v. ZZZ, G.R. No.
228828, July 24, 2019)
4. Character of the woman is immaterial.
5. Testimony of victim alone is enough for
conviction.
a. [LEONEN] The victim was able to
recount
her
experience
in
a
straightforward,
spontaneous,
and
believable manner, regardless of her
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6.
7.
8.
9.
mental condition, as this doesn’t
determine whether her testimony is
credible or not. (People v. Quintos, G.R.
No. 199402, November 12, 2014).
Fingers – count as "objects" under rape
through sexual assault
Indemnity and Damages
a. Awarding of Php50,000 as indemnity is
mandatory upon finding of the fact of
rape; and
b. Moral damages may be automatically
awarded in rape cases without need of
proof.
Multiple Rape
a. Each offender is responsible not only for
the rape he personally committed, but
also for those committed by the others.
b. Each and every rape alleged must be
proven.
c. In the case of People v Aaron, the
accused inserted his penis into the
victim's vagina; he then withdrew it and
ordered the latter to lie down on the floor,
and for the second time, he inserted his
penis into the victim’s vagina; thereafter,
the accused commanded the victim to lie
near the headboard and for the third time,
he inserted his penis into the victim’s
vagina. The accused was convicted for
only one count of rape despite the three
successful penetrations because there is
no indication that the accused decided to
commit separate and distinct acts of
sexual assault. There was only a lustful
desire to change positions.
d. In the case of People v Manolito Lucena
y Velasquez, the accused succeeded in
inserting his penis into the victim's
vagina. The three penetrations occurred
one after the other at an interval of five
minutes wherein the accused would rest.
From this set of facts, the accused was
convicted of three counts of rape as it can
be inferred that the accused decided to
commit those separate and distinct acts
of sexual assault.
[LEONEN] Qualified rape has twin
requisites—(1) the victim's age of minority
(under 18 years) and (2) the relationship of
10.
11.
12.
13.
14.
15.
16.
the offender, both of which much be alleged
in the information, regardless if the
relationship was proven during trial. (People
v. Armodia, G.R. 210654, June 7, 2017)
Sweetheart defense is an affirmative defense
that must be supported by convincing proof.
Evidence such as a love letter, a memento, or
even a single photograph to substantiate the
claim that they had a romantic relationship
should be presented.
Each of the penetrations constitute separate
and distinct acts of rape. However, in Aaron
(2002), the Court convicted the accused for
only one count of rape despite the three
successful penetrations because there was
no indication that the accused decided to
commit separate and distinct acts of sexual
assault other than his lustful desire to change
positions inside the room where the crime
was committed.
The act of cunnilingus or insertion of the
tongue to the vagina of a woman is rape
through sexual assault. (People v Bonaagua,
GR No 188897, June 6, 2011)
A medical examination of the victim is not an
element of rape. (People v Rico Jamlan
Salem, GR No 118946, October 16, 1997)
[LEONEN] In rape cases, impotency as a
defense must be proven with certainty to
overcome the presumption in favor of
potency (People v. ZZZ, G.R. No. 229209,
February 12, 2020).
[LEONEN] The absence of external signs or
physical injuries on the complainant’s body
doesn’t necessarily negative commission of
the rape, hymenal laceration not being, to
repeat, an element of the crime of rape.
(People v. Buclao, G.R. No. 208173, June 11,
2014) The foremost consideration in the
prosecution of rape is the victim's testimony
and not the findings of the medico-legal
officer. (People v. Austria, G.R. No. 210568,
November 08, 2017)
[LEONEN] The Court previously held, in
People v. Soria, that a victim need not identify
what was inserted into his or her genital or
anal orifice for the court to find that rape
through sexual assault was committed.
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(Ricalde v. People, G.R. No. 211002, January
21, 2015)
Guiding Principles in the crime of Rape
(People v Ayade, GR No 188561, January 15,
2010):
1. An accusation of rape can be made with
facility; while the accusation is difficult to
prove, it is even more difficult for the accused,
though innocent, to disprove.
2. Considering that, in the nature of things, only
two persons are usually involved in the crime
of rape, the testimony of the complainant
must be scrutinized with extreme caution.
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.
Art. 266-C. Effect of Pardon. Effect of Marriage
Notes:
1. Marriage extinguishes not only the penal
action but likewise the penalty imposed, and
only as to the principal. Since rape has
ceased to be a crime against chastity and is
now a crime against persons, it now appears
that marriage extinguishes that penal action
and the penalty only as to the principal (i.e.,
husband) and not as to the accomplices and
accessories.
2. A man who penetrates his wife without her
consent or against her will commits sexual
violence against her. xxx Besides, a husband
who feels aggrieved by his indifferent or
uninterested wife’s absolute refusal to
engage in sexual intimacy may legally seek
the court’s intervention to declare her
psychologically incapacitated to fulfill an
essential martial obligation. But he cannot
and should not demand sexual intimacy from
her coercively or violently. (People v
Jumawan, GR No 187495, April 21, 2014)
Art. 266-D. Presumptions
Evidence which may be accepted
1. Any physical overt act manifesting resistance
against the act of rape in any degree from the
offended party
2. Circumstances showing the offended party to
be so situated as to render him/her incapable
of giving consent.
Please see SPL reviewer on:
1. R.A. 9262 Anti – Violence Against Women
and Children Act
2. R.A. 9775 Anti – Child Pornography Act of
2009
3. R.A. 8049 Anti-Hazing Law
4. R.A. 7610 Special Protection of Children
Against Child Abuse, Exploitation And
Discrimination Act
5. R.A. 9344 Juvenile Justice And Welfare Act
of 2006
6. P.D. 603 Child And Youth Welfare Code
———— end of topic ————
H. CRIMES AGAINST PERSONAL LIBERTY
AND SECURITY
Chapter 1: Crimes against Liberty
Section 1. Illegal Detention
Article 267. Kidnapping and Serious Illegal
Detention
Any private individual who shall kidnap or
detain another, or in any other manner deprive
him of his liberty
Elements: (P-K-I-F) (4)
1. That the offender is a Private individual;
2. That he Kidnaps or detains another, or in any
other manner deprives the latter of liberty;
3. That the act of detention or kidnapping must
be Illegal; and
4. That in the commission of the offense, any of
the following circumstances are present (3-SS-M)
a. The kidnapping/detention lasts for more than
3 days, or
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b. committed by Simulating public authority, or
c. any Serious physical injuries are inflicted
upon the person kidnapped or detained
or threats to kill him are made, or
d. the person kidnapped or detained is a Minor
(except if parent is the offender), female
or a public officer
If any of these are present, detention
becomes serious and purpose of detention is
immaterial
Death is imposed in the following instances:
[but death penalty imposition is suspended]
1. if kidnapping is committed for the purpose of
extorting ransom either from the victim or from
any other person, even if none of the
aforementioned circumstances are present in
the commission of the offense; and
2. when the victim is killed or dies as a
consequence of the detention or is raped or
is subjected to torture or dehumanizing acts
Notes:
1. It is true that for kidnapping to take place, it is
not necessary that the victim be placed in an
enclosure; neither is it necessary that the
detention be prolonged or permanent.
However, the essence of kidnapping is the
actual deprivation of the victim's liberty
coupled with indubitable proof of the intent of
the accused to effect such deprivation.
(People v. Obeso,G.R. No. 152285, October
24, 2003)
2. The victim’s lack of consent is also a
fundamental element of kidnapping and
serious illegal detention. The involuntariness
of the seizure and detention is the very
essence of the crime. Although the victim
may have inceptually consented to go with
the offender to a place but the victim is
thereafter prevented, with the use of force,
from leaving the place where he was brought
to with his consent and is detained against his
will, the offender is guilty of kidnapping and
serious illegal detention. (People v. Pickrell
G.R. No. 120409, October 23, 2003)
3. Actual demand for ransom is not necessary.
4. When detention is for purpose of extorting
ransom, it is not necessary that one or any of
5.
6.
7.
8.
9.
10.
11.
12.
the four circumstances enumerated in
element (4) are present.
[LEONEN] The elements of kidnapping for
ransom were met in this case.
a. The accused are private persons,
b. The person kidnapped is deprived of
liberty,
c. That person was taken or detained
against his/her will,
d. such kidnapping was illegal or unlawful,
and
e. the kidnapping was done in consideration
of a ransom or a payment of release.
(People v. Avancena, G.R. 200512, June
7, 2017)
Essential that there be actual confinement or
restriction of the person of the offended party
Detention is illegal when not ordered by
competent authority or not permitted by law.
Detention for more than 3 days not necessary
when any of the other circumstances are
present
Special complex crime of kidnapping with
murder or homicide – where the person
kidnapped is killed in the course of the
detention, regardless of whether the killing
was purposely sought or was merely an
afterthought.
When a person died of natural causes (heart
attack) on the occasion of kidnapping, the
kidnappers are guilty of kidnapping with
homicide. (People v. Montanir, G.R. No.
187534, April 4, 2011)
When murder and not kidnapping –
a. when the victim is taken from one place
to another solely for the purpose of killing
him, the crime committed is murder.
b. If primary and ultimate purpose is to kill,
and detention was only incidental.
c. Specific intent is determinative of
whether the crime committed is murder
or kidnapping.
d. Must be alleged in information and
proven by prosecution.
[LEONEN] RA 7055, Sec. 1 provides that if
the accused is a member of the AFP and the
crime involved is one punished under the
RPC, civil courts shall have the authority to
hear, try, and decide the case. Exception:
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CRIMINAL LAW
courts-martial may assume jurisdiction if,
before arraignment, the civil court determines
that the offense is "service-connected."
(Osorio v. Navera, G.R. No. 223272
(Resolution), February 26, 2018)
13. [LEONEN] Although the crime of kidnapping
can only be committed by a private individual,
the fact that the accused is a public official
does not automatically preclude the filing of
an information for kidnapping against him. A
public officer who detains a person for the
purpose of extorting ransom cannot be said
to be acting in an official capacity. It is not, in
fine, in relation to their office, but in purely
private capacity. (People v. Borja, G.R. No.
199710, August 2, 2017)
he furnishes the place for the perpetuation of
the detention;
3. That the act of detention or kidnapping must
be Illegal; and
4. That the crime is committed Without the
attendance of any of the circumstances
enumerated in Art. 267
Privileged Mitigating Circumstance (Voluntary
Release): If the offender:
1. voluntarily releases the person so kidnapped
or detained within 3 days from the
commencement of the detention;
2. without having attained the purpose
intended; and
3. before the institution of criminal proceedings
against him
Illegal Detention and Arbitrary Detention,
Distinguished
ARBITRARY
ILLEGAL
DETENTION
DETENTION
Committed
by
a Committed
by
a
private individual who public
officer
or
unlawfully
kidnaps, employee who has
detains or otherwise duty under law to
deprives a person of detain a person but
liberty
who detains a person
without legal ground
Crime
is
against Crime is against the
personal liberty and fundamental law of
security
the State
Notes on voluntary release:
1. The three requisites must concur.
2. Must be shown by the offender that he was in
a position to prolong the detention for more
than 3 days and yet he released the person
detained w/in that time
3. Voluntary release not considered privileged
mitigating if the victim is a woman
(considered serious illegal detention)
However, if such public officer has no duty to
detain a person (e.g. sanitary inspector or clerk)
and he detains a person, he is liable for Illegal
Detention.
Art. 268. Slight Illegal Detention
Any private individual who shall commit the
crimes described in Article 267 without the
attendance of any of the circumstances
enumerated therein
Elements: (P-W-D-I) (4)
1. That the offender is a Private person;
2. That he kidnaps or Detains another or in any
other manner deprives the victim of liberty or
Art. 269. Unlawful Arrest
Any person who, in any case other than those
authorized by law, or without reasonable
ground therefor, shall arrest or detain another
for the purpose of delivering him to the proper
authorities
Elements: (AD-A-N) (3)
1. That the offender Arrests or Detains another
person;
2. That the purpose of the offender is to deliver
him to the proper Authorities; and
3. That the arrest or detention is Not authorized
by law or there is no reasonable ground
therefor.
Notes:
1. Offender is any person. Either a public officer
or private individual may be liable.
2. Public officer either:
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a. has no authority to arrest or detain a
person or
b. has not acted in his official capacity
3. Arrest/ detention refers to warrantless
arrests.
Unlawful Arrest and Arbitrary Detention,
Distinguished
ARBITRARY
UNLAWFUL
DETENTION
ARREST
Committed
person
by
any
Arrest made for the
purpose of delivering
the latter to the proper
authorities
The arrest is not
authorized by law or
there is no legal
ground for the arrest
Committed
by
a
public
officer
or
employee who has
duty under law to
detain a person
same purpose as for
unlawful arrest
There is no legal
ground for the arrest
[LEONEN] X and Y were respectively Barangay
Kagawad and Barangay Tanod. Spotting the
members of Cooperative Z, X and Y thought a
theft was being committed. They further claim that
one of the members had a violent outburst, which
prompted them to take the members to the police
station. The members were subsequently
released with the Chief of Police determining that
X and Y had no legal basis to make the arrest. X
and Y are guilty of unlawful arrest. The act of
conducting the apprehended persons to the
proper authorities takes the offense out of the
crime of illegal detention. (Duropan v. People,
G.R. No. 230825, June 10, 2020)
Section 2. Kidnapping of Minors
Art. 270. Kidnapping and Failure to Return A
Minor
Any person who, being entrusted with the
custody of a minor person, shall deliberately
fail to restore the latter to his parents or
guardians
CRIMINAL LAW
Elements: (E-D) (2)
1. That the offender is Entrusted with the
custody of a minor person; and
2. That he Deliberately fails to restore the said
minor to his parents
Notes:
1. This may also be committed by the mother or
father of the child. When committed by a
parent, penalty is arresto mayor.
2. Essential element which qualifies the crime:
offender is entrusted with the custody of the
minor
Kidnapping & Failure to Return a minor and
Kidnapping & Serious Illegal Detention (Art.
267), Distinguished
KIDNAPPING AND
KIDNAPPING AND
FAILURE TO
SERIOUS ILLEGAL
RETURN A MINOR
DETENTION
Offender is entrusted Offender
is
not
with the custody of entrusted with the
the victim
custody of the victim
Offender punished for Offender punished for
deliberately failing to outright
taking
restore the minor to “custody” of/detaining
his/her
the minor
parents/guardian
Art. 271. Inducing a Minor to Abandon his
Home
Anyone who shall induce a minor to abandon
the home of his parents or guardians or the
persons entrusted with his custody
Elements: (L-I) (2)
1. That the minor is Living in the home of his
parents or guardians or the person entrusted
with his custody; and
2. That the offender Induces the minor to
abandon such home
Notes:
1. Inducement must be actual, committed with
criminal intent, and determined by a will to
cause damage.
2. The minor should not leave his home of his
own free will.
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3. “To induce” is to influence, to prevail on, to
move by persuasion, to incite by motives.
4. The minor need not actually abandon his
home or the home of the guardian. Mere
commission of any act which tends to
influence, persuade or prevail on a minor to
abandon his home is what constitutes the
crime.
5. Mitigated if committed by the father or mother
of the victim – applies to Arts. 270 and 271
Section 3. Slavery and Servitude
Art. 272. Slavery
Anyone who shall purchase, sell, kidnap or
detain a human being for the purpose of
enslaving him, including but not limited to for
purposes of assigning the offended party to
some immoral traffic
Elements: (PSKD-E) (2)
1. That the offender Purchases, Sells, Kidnaps
or Detains a human being; and
2. That the purpose of the offender is to Enslave
such human being.
Qualifying circumstance – if the purpose is
some immoral traffic (ex. Prostitution); effect is to
impose the penalty in the maximum period.
Notes:
1. The purpose must be to enslave the victim;
otherwise, it is kidnapping or illegal detention.
2. Slavery – providing services without
remuneration whatsoever. (Reyes v. Alojado,
G.R. No. L-5671, August 24, 1910)
Art. 273. Exploitation of Child Labor
Anyone who, under the pretext of reimbursing
himself of a debt incurred by an ascendant,
guardian or person entrusted with the custody
of a minor, shall, against the latter's will, retain
him in his service
Elements: (R-A-P) (3)
1. That the offender Retains a minor in his
service;
2. That it is Against the will of the minor; and
CRIMINAL LAW
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
Note:
Indebtedness is not a ground for detention.
Art. 274. Services Rendered Under
Compulsion in Payment of Debt
Any person who, in order to require or enforce
the payment of a debt, shall compel the debtor
to work for him, against his will, as household
servant or farm laborer
Elements: (C-A-P) (3)
1. That the offender Compels a debtor to work
for him, either as household servant or farm
laborer;
2. That it is Against the debtor’s will; and
3. That the Purpose is to require or enforce the
payment of a debt.
Note:
Debtor-Creditor
relationship
must
exist;
otherwise, the crime committed is coercion.
Services rendered under compulsion in
payment of debt and Exploitation of Child
Labor, Distinguished
SERVICES
RENDERED UNDER EXPLOITATION OF
COMPULSION IN
CHILD LABOR
PAYMENT OF DEBT
Does not distinguish
whether the victim is a Victim is a minor
minor or not
Minor is compelled to
render services to the
Debtor is compelled offender
for
to work for offender
reimbursement
of
debt
of
parent/guardian
Work
limited
to Service not limited to
household and farm household and farm
work
work
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Chapter 2: Crimes against Security
Section 1. Abandonment of Helpless Persons
and Exploitation of Minors
Art. 275. Abandonment of Person in Danger
and Abandonment of One’s Own Victim
Punishable Acts:
1. Anyone who fails to render assistance to
any person whom he (the offender) finds
in an uninhabited place wounded or in
danger of dying, when he can render
such assistance without detriment to
himself, unless such omission shall
constitute a more serious offense
2. Anyone who fails to help or render
assistance to another whom he (the
offender) has accidentally wounded or
injured
3. Anyone who fails to deliver a child under
seven years of age whom he (the
offender) has found abandoned, to the
authorities or to his family or to take him
to a safe place
“By failing to render assistance to any person
whom the offender finds in an uninhabited
place wounded or in danger of dying, when he
can render such assistance without detriment
to himself, unless such omission shall
constitute a more serious offense”
Elements: (N-W-R-F) (4)
1. That place is Not inhabited;
2. The accused found there a person Wounded
or in danger of dying;
3. The accused can Render assistance without
detriment to himself; and
4. The accused Fails to render assistance
“By failing to help or render assistance to
another whom the offender has accidentally
wounded or injured”
Note:
This paragraph applies only when someone is
accidentally injured by the accused. If a person
intentionally stabs or shoots another who is
CRIMINAL LAW
wounded and does not render him assistance,
that person is not liable under this article but is
liable for the crime resulting from the stabbing or
shooting.
“By failing to deliver a child under 7 whom the
offender has found abandoned, to the
authorities or to his family, or by failing to take
him to a safe place (may be applied to a lost
child)”
Notes:
1. It is immaterial that the offender did not know
that the child is under seven years.
2. The child under seven years of age must be
found by the accused in an unsafe place.
Art. 276. Abandoning a Minor
Anyone who shall abandon a child under
seven (7) years of age, the custody of which
is incumbent upon him
Elements: (C-7-A-N) (4)
1. That the offender has the Custody of a child;
2. That the child is Under 7 years of age;
3. That he Abandons such child; and
4. That he has No intent to kill the child when
the latter is abandoned.
Notes:
1. Abandonment must be conscious, deliberate,
and permanent.
2. Parents guilty of abandoning their children
shall be deprived of parental authority.
3. Intent to kill cannot be presumed from the
death of the child. Such a presumption
applies only to crimes against persons, not to
crimes against security.
Art. 277. Abandonment of Minor by Person
Entrusted with His Custody; Indifference of
Parents
Anyone who, having charge of the rearing or
education of a minor, shall deliver said minor
to a public institution or other persons, without
the consent of the one who entrusted such
child to his care or, in the absence of the latter,
without the consent of the proper authorities
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Parents who shall neglect their children by not
giving them the education which their station
in life requires and which their financial
condition permits
Punishable Acts/Elements:
1. Delivering a minor to a public institution
or other persons without the consent of
the one who entrusted such minor to the
care of the offender or, in the absence of
the entruster, without the consent of the
proper authorities
Elements: (C-D-N) (3)
a. Offender has Charge of the rearing or
education of a minor (To rear means to
bring to maturity by educating,
nourishing, etc.);
b. He Delivers said minor to a public institution
or other persons.; and
c. 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. Neglecting one’s children by not giving
them education which the parent/s’
station in life requires and financial
condition permits
Elements: (P-N-SF) (3)
a. That the offender is a Parent;
b. That he/she Neglects his/her children by not
giving them education; and
c. That his/her Station in life requires such
education and his/her Financial condition
permits it
Notes:
1. Old jurisprudence has held that the obligation
to educate children terminates if the mother
and children refuse without good reason to
live with the accused father.
2. Failure to give education must be due to
deliberate desire to evade such obligation.
CRIMINAL LAW
Abandonment of Minor by person entrusted
with custody and Abandonment of Minor
(Art. 266), Distinguished
ABANDONMENT OF
ABANDONMENT
MINOR BY PERSON
OF MINOR (ART.
ENTRUSTED WITH
266)
HIS CUSTODY
Custody of offender is
Custody is stated in
specific – for rearing
general terms
or education of minor
Minor here – under 18 Minor here – under 7
years of age
years of age
Minor is abandoned
Minor is delivered to a
in such a way as to
public institution or
deprive him of care
other person
and protection
Article 278. Exploitation of Minors
Punishable Acts:
1. Anyone who causes any boy or girl under 16
years of age to perform any dangerous feat
of balancing, physical strength or contortion;
2. Any acrobat, gymnast, rope-walker, diver, or
wild- animal tamer or circus manager, or
engaged in a similar calling who employs
children under 16 years of age who are not
his/her own children or descendants of the
offender in exhibitions of such kinds;
3. Any acrobat, gymnast, rope-walker, diver, or
wild- animal tamer or circus manager, or
engaged in a similar calling who employs any
of his/her descendants under 12 years of age
in such dangerous exhibitions;
4. Any ascendant, guardian, teacher or person
entrusted in any capacity with the care of a
child under 16 years of age who gratuitously
delivers such child to any person following
any of the callings enumerated in paragraph
2 or to any habitual vagrant or beggar; and
5. Anyone who induces any child under 16
years of age to abandon the home of its
ascendants, guardians, curators or teachers
to follow any person engaged in any of the
callings mentioned in paragraph 2 or to
accompany any habitual vagrant or beggar
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Qualifying circumstance: If the delivery, in
paragraph 4, shall have been made in
consideration of any price, compensation or
promise, the guardian or curator shall be deprived
of parental authority or guardianship.
Note:
The exploitation of the minor must be of such a
nature as to endanger his life or safety.
Exploitation of Minors and Inducing Minor to
Abandon His Home (Art. 271), Distinguished
INDUCING MINOR
EXPLOITATION OF
TO ABANDON HIS
MINORS
HOME
Purpose of inducing
the minor to abandon
the home is to follow
any person engaged
in any of the callings No such purpose
mentioned
or
to
accompany
any
habitual vagrant or
beggar
Minor is under 16
years of age (or under Victim is a minor
12 years of age, in the under 18 years of age
case of paragraph 3)
Art. 279. Additional Penalties for Other
Offenses
The offender is liable not only for the
abandonment or exploitation but also for all its
consequences. If as a result, physical injuries
or death resulted, another crime is committed
by authority of Art 279.
Section 2. Trespass to Dwelling
Art. 280. Qualified Trespass to Dwelling
Any private individual who enters the dwelling
of another against the latter’s will, whether or
not the entry was attended by violence or
intimidation
Elements: (P-E-A) (3)
1. That the offender is a Private person;
2. That he Enters the dwelling of another; and
CRIMINAL LAW
3. That such entrance is Against the latter’s will.
Qualifying circumstance: where the offense is
committed by means of violence or intimidation
Notes:
1. There must be an opposition on the part of
the owner of the house to the entry of the
accused. Mere absence of his consent or
permission is not enough.
2. Dwelling: any building or structure exclusively
devoted for rest and comfort; depends upon
use; may be just a room.
3. Prohibition may be express or implied,
depending on the circumstances.
4. Implied prohibition is present in the following
situations: felony is committed late at night
when everyone is asleep, or entrance is
made through a window
5. Prohibition must exist prior to or at the time of
entrance.
6. Prohibition is not necessary when violence or
intimidation is employed by the offender.
7. Violence or intimidation may take place
immediately after the entrance.
8. When there is no overt act of a crime intended
to be committed by means of the entry (ex.
robbery), the crime is only trespass to
dwelling.
9. Trespass may be committed even by the
owner of the dwelling against the actual
occupant thereof.
10. If the offender is a public officer, the crime
committed is violation of domicile under Art.
128.
Not applicable:
1. Where the entrance is for the purpose of
preventing harm to himself, the occupants or
a third person
2. Where the purpose is to render some service
to humanity or justice
3. When the accused entered the dwelling
through the window, he had no intent to kill
any person inside. His intention to kill came
to his mind when he was being arrested by
the occupants thereof. Hence, the crime of
trespass to dwelling is a separate and distinct
offense from frustrated homicide.
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4. Where a person enters establishments which
cater to/serve the public while still open for
such patronage.
5. If a public officer or an authorized person is
conducting a valid arrest or a valid search
and seizure. (Rules on Criminal Procedure,
Rule 113)
Art. 281. Other Forms of Trespass
Any person who shall enter the closed
premises or the fenced estate of another,
while either or both of them are uninhabited, if
the prohibition to enter be manifest and the
trespasser has not secured the permission of
the owner or the caretaker thereof
Elements: (NUPE) (4)
1. That the offender Enters the closed premises
or the fenced estate of another (Premises –
signifies a distinct and definite locality which
is fixed);
2. That the entrance is made while either of
them is Uninhabited;
3. That the Prohibition to enter be manifest; and
4. That the trespasser has Not secured the
permission of the owner or the caretaker
thereof.
Other Forms of Trespass and Qualified
Trespass to Dwelling, Distinguished
QUALIFIED
OTHER FORMS OF
TRESPASS TO
TRESPASS
DWELLING
Offender
is
any Offender is a private
person
person
Offender
enters
Offender enters a
closed premises or a
dwelling
fenced estate
The place entered is The place entered is
uninhabited
inhabited
Act
entailed
is
entering into closed Act
entailed
is
premises/fenced
entering the dwelling
estates
without against the will of
permission of the owner
owner/caretaker
Prohibition must be
Prohibition from
manifest
CRIMINAL LAW
entering may be
express or implied
Section 3. Threats and Coercion
Art. 282. Grave Threats
Any person who shall threaten another with
the infliction, upon the person, honor or
property of the latter or of his family, of any
wrong amounting to a crime
Punishable Acts:
1. By threatening another with the infliction,
upon his person, honor or property or that of
his family, of any wrong amounting to a crime
and demanding money or imposing any other
condition, even though not unlawful, and the
offender attained his purpose.
Elements: (T-W-D-A) (4)
a. The offender Threatens another person with
the infliction, upon the latter’s person, honor
or property, or upon that of the latter’s family,
of any wrong;
b. The Wrong amounts to a crime;
c. There is Demand for money or any other
condition is imposed, even if not unlawful;
and
d. The offender Attains his purpose.
2. By making such threat without the offender
attaining his purpose; and
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
Elements: (T-W-N) (3)
a. The offender Threatens another person with
the infliction, upon the latter’s person, honor
or property, or upon that of the latter’s family,
of any wrong;
b. The Wrong amounts to a crime; and
c. The threat is Not subject to a condition.
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Notes:
1. Threat must not be made in heat of anger,
because such threat would be punished as
“Other Light Threats”.
2. Grave threats may be committed by indirect
challenge to a gun fight, even if complainant
was absent when challenge was made. It is
sufficient that threats came to knowledge of
offended party.
3. Threats made in connection with the
commission of other crimes are absorbed by
the latter.
4. The offender in grave threats does not
demand the delivery on the spot of the money
or other personal property asked by him.
Otherwise, that’s robbery by intimidation.
5. Essential that there be intimidation: that
there’s a promise of some future harm or
injury
6. Act threatened to be done must be wrong
Art. 283. Light Threats
The wrong threatened does not amount to a
crime.
Elements: (DANT) (4)
1. That the offender Threatens another person
with the infliction of a wrong;
2. That the wrong does Not constitute a crime;
3. That there is a Demand for money or any
other condition is imposed, even though not
unlawful; and
4. That the offender has either Attained or not
attained his purpose.
Notes:
1. In light threats, the wrong threatened does
not amount to a crime.
2. Required that there be a demand of money or
that other condition be imposed.
3. Blackmailing may be punished under this
provision.
Art. 284. Bond for Good Behavior
In all cases falling within Articles 283 and 284,
the person making the threats may also be
required to give bail not to molest the person
CRIMINAL LAW
threatened, or if he shall fail to give such bail,
he shall be sentenced to destierro.
The person making the threats under the Articles
283 and 284 (grave and light threats) may also be
required by the court to give bail conditioned upon
the promise not to molest the person threatened.
Bond for Good Behavior and Bond to Keep
the Peace (Art. 35), Distinguished
BOND FOR GOOD
BOND TO KEEP THE
BEHAVIOR
PEACE
Only for grave threats Application
not
to
and light threats
particular cases only
An additional penalty A distinct penalty
If offender fails to give
the bond, he shall be
If offender fails to give detained for a period not
bail, he shall be exceeding 6 months if
sentenced
to prosecuted for a grave
destierro.
or a less grave felony or
for 30 days if prosecuted
for a light felony.
Art. 285. Other Light Threats
Punishable Acts:
1. By threatening another with a weapon (even
if there is no quarrel), or by drawing a weapon
in a quarrel, unless it be in lawful selfdefense;
2. By orally threatening another, in the heat of
anger, with some harm constituting a crime,
without persisting in the idea involved in the
threat; and
3. By orally threatening another with harm not
constituting a felony
Notes:
1. No demand for money or condition is involved
2. Threat is not deliberate
3. That which is ordinarily a grave threat may be
considered under this article if made in the
heat of anger.
4. Where threats are directed to a person who
is absent and uttered in a temporary fit of
anger, the offense is only light threats.
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Art. 286. Grave Coercions
Any person who, without any authority of law,
shall, by means of violence, threats, or
intimidation, prevent another from doing
something not prohibited by law, or compel
him to do something against his will, whether
it be right or wrong
Two ways of committing Grave Coercion
1. By preventing another, by means of violence,
threats or intimidation, from doing something
not prohibited by law; and
2. By compelling another, by means of violence,
threats or intimidation, to do something
against his will, whether it be right or wrong
Elements:
1. That a person
a. Prevented another from doing something
not prohibited by law, or
b. Compelled another to do something
against his will, be it right or wrong;
2. That the prevention or compulsion is effected
by Violence, Threats, or Intimidation; and
3. That it is committed Without authority of law
or not in the exercise of any lawful right.
When preventing is not considered Coercion
but is covered by some other provision:
1. When a public officer prevents the
ceremonies of a religious group under Art.
132;
2. When a person prevents the meeting of a
legislative assembly under Art. 143; and
3. When a person prevents a member of
Congress
from
attending
meetings,
expressing his opinions, or casting his vote
through the use of force or intimidation, under
Art. 145
When compelling is not Coercion but is
covered by some other provision:
1. When a public officer compels a person to
change his residence, under Art. 127; and
2. When a person kidnaps his debtor to compel
him to pay, under Art. 267.
CRIMINAL LAW
Notes:
1. The thing prevented from execution must not
be prohibited by law. Otherwise, there will be
no coercion.
2. Owner of a thing has no right to prevent
interference when such interference is
necessary to avert greater damage.
3. Coercion is consummated even if the
offended party did not accede to the purpose
of the coercion.
Grave Coercion and Illegal Detention,
Distinguished
ILLEGAL
GRAVE
DETENTION
COERCION
Intent to deprive the Intent to deprive
offended party of his liberty present
liberty is not clear
Grave Coercion and Maltreatment of
Prisoners, Distinguished
GRAVE COERCION
MALTREATMENT
OF PRISIONERS
If the offended party is If the offended party
not
a
prisoner, is
a
prisoner,
extracting
extracting
information,
using information,
using
force or intimidation is force or intimidation is
coercion
maltreatment
Art. 287. Light Coercions
Any person who, by means of violence, shall
seize anything belonging to his debtor for the
purpose of applying the same to the payment
of the debt
Light Coercion (Par. 1)
Elements: (C-S-V-P) (4)
a. That the offender must be a Creditor of the
offended party;
b. That he Seizes anything belonging to his
debtor;
c. That the seizure of the thing be accomplished
by means of Violence or a display of material
force producing intimidation; and
d. That the purpose of the offender is to apply
the same to the Payment of the debt.
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Unjust Vexation (Par. 2)
1. Any other coercion or unjust vexation
2. Paragraph 2 of Art. 287 covers unjust
vexation. It includes any human conduct
which, although not productive of some
physical or material harm would, however,
unjustly annoy or vex an innocent person.
3. Light coercion under the 1st paragraph of this
article will only be unjust vexation if the 3rd
element (employing violence or intimidation)
is absent.
4. The paramount question to be considered is
whether the offender’s act caused
annoyance, irritation, torment, distress, or
disturbance to the mind of the person to
whom it is directed.
Unjust Vexation and Grave Coercion,
Distinguished
UNJUST
GRAVE
VEXATION
COERCION
Act of preventing by Act of preventing by
force was already force was made at
done
when
the the time the offended
violence was exerted party was doing or
about to do the act
prevented
Art. 288. Other Similar Coercions
(Compulsory Purchase of Merchandise and
Payment of Wages By Means of Tokens)
Any person, agent or officer of any
association or corporation who shall force or
compel, directly or indirectly, or shall
knowingly permit any laborer or employee
employed by him or by such firm or
corporation to be forced or compelled, to
purchase merchandise or commodities of any
kind
Any person who shall pay the wages due a
laborer or employee employed by him, by
means of tokens or objects other than the
legal tender currency of the Philippines,
unless expressly requested by the laborer or
employee.
CRIMINAL LAW
Punishable Acts:
1. By forcing or compelling, directly or indirectly,
or knowingly permitting the forcing or
compelling of the laborer or employee of the
offender to purchase merchandise or
commodities of any kind from him
Elements: (A-E-FP) (3)
a. That the offender is Any person, agent or
officer of any association or corporation;
b. That he or such firm or corporation has
Employed laborers or employees; and
c. That he Forces or compels, directly or
indirectly, or knowingly permits to be forced or
compelled, any of his or its laborers or
employees to Purchase merchandise or
commodities of any kind from him or from said
firm or corporation
2. By paying the wages due his laborer or
employee by means of tokens or objects
other than the legal tender currency of the
Philippines, unless expressly requested by
such laborer or employee
Elements: (PON) (3)
a. That the offender Pays the wages due a
laborer or employee employed by him by
means of tokens or objects;
b. That those tokens or objects are Other than
the legal tender currency of the Philippines;
and
c. That such employee or laborer does Not
expressly request that he be paid by means of
tokens or objects
Note:
Inducing an employee to give up any part of his
wages by force, stealth, intimidation, threat or by
any other means is unlawful under the Labor
Code, not under the RPC.
Art. 289. Formation, Maintenance, and
Prohibition of Combination of Capital or
Labor through Violence or Threats
Any person who, for the purpose of
organizing, maintaining
or preventing
coalitions of capital or labor, strike of laborers
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or lock-out of employers, shall employ
violence or threats in such a degree as to
compel or force the laborers or employees in
the free and legal exercise of their industry or
work, if the act shall not constitute a more
serious offense in accordance with the
provisions of the RPC
Elements: (PEN) (3)
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; and
3. The act shall Not constitute a more serious
offense under the RPC
Notes:
1. Peaceful picketing is not prohibited, but it
must be confined strictly and in good faith to
gaining information and to peaceful
persuasion and argument.
2. But employing violence or making threats by
picketers may make them liable for coercion
Chapter 3: Discovery and Revelation of
Secrets
Art. 290. Discovering Secrets through
Seizure of Correspondence
Any private individual who, in order to
discover secrets of another, seizes his papers
or letters, and reveals the contents thereof
Elements: (PIPS) (4)
1. That the offender is a Private individual or
even a public officer not in the exercise of his
official functions;
2. That he Seizes the papers or letters of
another;
3. That the Purpose of the seizure is to discover
the secrets of such other person; and
4. The offender is Informed of the contents of
the papers or letters seized
CRIMINAL LAW
Notes:
1. Seize - to place a thing in the control of
someone or to give him the possession
thereof; it is not necessary that in the act,
there be force or violence
2. This article is not applicable to parents with
respect to their minor children or to spouses
with respect to the papers or letters of either
of them.
3. Contents of the correspondence need not be
secret. The purpose of the offender prevails.
4. Qualifying circumstance: when the offender
reveals the contents of such papers or letters
to a third person
5. This article does not require that the offended
party be prejudiced.
Discovering Secrets and Revealing secrets
of private individual (Art. 230), Distinguished
DISCOVERING
REVEALING
SECRETS THROUGH
SECRETS OF
SEIZURE OF
PRIVATE
CORRESPONDENCE
INDIVIDUAL
Private individual seizes Public
officer
the papers or letters of comes to know of
another to discover the secret of any
latter’s secrets
private individual
by reason of his
office
Not necessary that there There is a secret
actually be a secret in the which has come to
papers or letters seized
be known
If
there
was,
not Reveals
secret
necessary to reveal the without justifiable
secret
means
Art. 291. Revealing Secrets with Abuse of
Office
Any manager, employee, or servant who, in
such capacity, shall learn the secrets of his
principal or master and shall reveal such
secrets
Elements: (M-L-R) (3)
1. That the offender is a Manager, employee or
servant;
2. That he Learns the secrets of his principal or
master in such capacity; and
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3. That he Reveals such secrets
Notes:
1. Damage is not required by this article.
2. Secret must be learned by reason of the
offender’s employment
Art. 292. Revelation of Industrial Secrets
A person in charge, employee or workman of
any manufacturing or industrial establishment
who, to the prejudice of the owner thereof,
shall reveal the secrets of the industry of the
latter
Elements (POPS) (4)
1. That the offender is a Person in charge,
employee or workman of a manufacturing or
industrial establishment;
2. That the manufacturing or industrial
establishment has a Secret of the industry
which the offender has learned;
3. That the Offender reveals such secrets; and
4. That Prejudice is caused to the owner.
Notes:
1. Prejudice is an essential element of this
offense.
2. The revelation of the secret might be made
after the employee or workman had ceased
to be connected with the establishment.
Please see SPL reviewer on
1. R.A 4200 Anti-Wiretapping Act
2. R.A. 11479 Anti-Terrorism Act of 2020
————— end of topic —————
I.
CRIMES AGAINST PROPERTY
Chapter 1: Robbery in General
Robbery is the taking of personal property
belonging to another, with intent to gain, by
means of violence against, or intimidation of any
person, or using force upon anything.
Taking, as an element of robbery, means
depriving the offended party of ownership of the
thing taken with the character of permanency.
CRIMINAL LAW
The taking should not be under a claim of
ownership. Thus, one who takes the property
openly and avowedly under claim of title offered
in good faith is not guilty of robbery even though
the claim of ownership is untenable. (Sy v.
Gutierrez, G.R. No. 171579, November 14, 2012)
Article 293. Who Are Guilty Of Robbery
Any person who, with intent to gain, shall take
any personal property belonging to another,
by means of violence or intimidation of any
person, or using force upon anything
Elements: (P-U-I-VF) (4)
1. There must be Personal property belonging
to another;
2. Unlawful taking of that property;
3. Taking was with Intent to gain (animus
lucrandi); and
4. That there is (a) Violence against or
intimidation of person, or (b) Force upon
anything.
Distinctions between effects of employment
of Violence or Intimidation and Use of Force
upon things
VIOLENCE OR
FORCE UPON
INTIMIDATION OF
THINGS
PERSONS
WHEN ROBBERY
Whenever violence Robbery is appreciated
against or intimidation only when force is used
of any person is to either:
present, Robbery is 1. enter the building,
always appreciated
or
2. to break doors,
wardrobes, chests,
or any other kind of
locked or sealed
furniture
or
receptacles inside
the building, or to
force them open
outside after taking
the same from the
building
BASIS OF PENALTY
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result of the violence
used,
and
the
existence
of
intimidation
value of personal
property is immaterial
When committed in an
inhabited house, public
building, or edifice
devoted to religious
worship, based on:
1. value
of
the
property taken, and
2. whether or not
offenders
carry
arms;
When committed in an
uninhabited
building,
based on:
1. Value
of
the
property taken
Notes:
1. Unlawful taking is complete when:
a. With violence/intimidation: property must
at least be in the possession of the
offender; and
b. With force: property must be taken out of
the building (Reyes, Book Two, p. 684,
citing People v, Del Rosario, C.A. 46.
O.G. 4332)
2. Intent to gain is presumed from unlawful
taking and must concur with “personal
property belonging to another”.
3. When violence/intimidation must take place:
a. General Rule: before taking is complete;
b. Exception: when violence results in (1)
homicide, (2) rape, (3) intentional
mutilation, or (4) any of the serious
physical injuries under Art. 263, par. 1
and 2; Robbery will be deemed specially
complexed with any of those crimes,
even if the taking was already complete
when the violence was used by the
offender.
4. The taking need not immediately precede the
intimidation.
5. Prohibited articles may be the subject matter
of robbery.
6. [LEONEN] The accused customarily called
the victim her “madam” and, over the phone,
the caller referred to her as “madam.” The
accused was acquitted of the charge of
CRIMINAL LAW
robbery since being called “madam” isn’t a
unique-enough circumstance for establishing
the relationship between them by which to
ascertain that the alleged caller was indeed
the accused. (Macayan, Jr. v. People, G.R.
No. 175842, March 18, 2015).
“Entrance” as an element.
1. General rule: necessary
2. Exceptions:
a. when the robbery is committed by
breaking wardrobes, chests, or any other
kind of locked or sealed furniture or
receptacle inside an inhabited house, a
public building or an edifice devoted to
religious worship, or by taking such
furniture or objects away to be broken or
forced open outside [Art. 299, subdivision
(b)]; and
b. when the robbery in an uninhabited
building, other than a public building or
edifice devoted to religious worship, is
committed by breaking any wardrobe,
chest, or any sealed or closed furniture or
receptacle, or by removing a closed or
sealed receptacle even if the same be
broken open elsewhere [Art. 302, par. 4
and 5].
Section 1 – Robbery with Violence against or
Intimidation of Persons
Art 294. Robbery with Violence against or
Intimidation of Persons
Punishable Acts:
1. By reason or on occasion of the robbery,
homicide is committed;
2. Rape or intentional mutilation or arson
accompany the commission of robbery;
3. By reason or on occasion of the robbery, any
of the physical injuries resulting in insanity,
imbecility, impotency, or blindness is inflicted
(Art. 263, par. 1); or serious physical injuries
resulting in the loss of the use of speech, or
the power to hear or to smell, or the loss of
an eye, hand, foot, arm, leg, or the loss of the
use of any such member or incapacity for
work in which victim is habitually engaged is
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CRIMINAL LAW
inflicted by the robber on someone (Art. 263,
par. 2);
4. If the violence or intimidation which
accompanies the robbery is carried to a
degree clearly unnecessary for the crime;
5. In the course of executing the robbery, any of
the physical injuries resulting to deformity,
loss of any part of the body or the use thereof,
or illness or incapacity for the performance of
the work habitually engaged in for > 90 days
or becomes ill or incapacitated for labor for >
30 days (Art. 263, para. 3 and 4) is inflicted
by the robber on someone; or
6. The offender does not, during the robbery,
cause any serious physical injuries defined in
Art. 263, or if the offender employs only
intimidation.
merely incidental and subsidiary. (People v.
Palema, G.R. No. 228000, July 10, 2019)
3. “Any person” may be killed; the killing of a corobber is still covered.
4. [LEONEN] In the special complex crime of
robbery with homicide, homicide is committed
in order:
a. to facilitate the robbery or the escape of
the culprit;
b. to preserve the possession by the culprit
of the loot;
c. to prevent discovery of the commission of
the robbery; or
d. to eliminate witnesses to the commission
of the crime. (People v. Chavez y
Bitancor, G.R. No. 207950, September
22, 2014)
Notes:
1. The crime as described in punishable acts 1,
2, 3, and 5 are special complex crimes.
2. “On the occasion” and “by reason” of the
robbery mean “in the course” or “because of”
robbery.
3. Robbery and homicide are separate offenses
when the homicide was not committed “on
the occasion” or “by reason” of the robbery.
Participation and Liability
1. Principals – All who participated as principals
in the robbery are principals in robbery with
homicide although they did not actually take
part in the killing, unless it clearly appears
they endeavored to prevent the same.
(People v. Carrozo, 342 SCRA 600 [2000];
People v. Hernandez, G.R. No. 139697, June
15, 2004)
a. [LEONEN] Eyewitness identification or
“positive identification” is the bedrock of
many pronouncements of guilt. However,
it is but a product of flawed human
memory. The length of time, coupled with
the deficiencies and doubts over the
witnesses’ testimonies, clearly show that
the prosecution did not manage to satisfy
even one of the six factors that impel
consideration under the totality of
circumstances test. (People v. Nuñez,
G.R. No. 209342, October 4, 2017)
2. Accessory – necessity of knowledge
a. There is an issue regarding the penalty
imposable against an accessory without
knowledge of the killing committed during
robbery. Jurisprudence [People v. Doble,
114 SCRA 131; People v. Adriano y
Sanguesa, 95 SCRA 107] provides that
such an accessory could not have
prevented the same, hence, should be an
accessory only to the crime of simple
Paragraph 1: Robbery with Homicide
Elements:
1. Taking of personal property with the use of
violence or intimidation against persons
2. Personal property thus taken belongs to
another.
3. The taking is characterized by intent to gain
or animus lucrandi.
4. On the occasion of the robbery or by reason
thereof, the crime of homicide was
committed.
Homicide is understood in its generic sense
(i.e., including parricide and murder)
1. Homicide may precede or may occur after
robbery; and need not be committed in the
place of robbery.
2. [LEONEN] The offender's original intent must
be the commission of robbery. The killing is
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robbery; Art. 53 of the RPC provides that
the penalty for an accessory is the
penalty lower by two degrees than that
prescribed by law for the consummated
felony. Since robbery cannot be
disaggregated from the special complex
crime of robbery with homicide, there is
an issue on the basis of such an
accessory’s penalty.
Distinguished from Highway Robbery
1. Conviction for highway robbery requires proof
that several accused were organized for the
purpose of committing it indiscriminately.
2. When homicide is not proved, the crime is
only robbery, and vice versa.
Paragraph 2: Robbery with Rape
1. It is important to determine the primary
objective or intent of the accused.
2. Intent to gain from personal property of
another must precede the rape.
3. Rape is committed on the occasion of
robbery, even if committed in another place
within the house.
4. When rape and homicide co-exist in the
commission of robbery, rape is considered as
an aggravating circumstance only to Robbery
with Homicide.
5. There is no robbery with attempted rape.
6. Additional rapes committed on the same
occasion of robbery will not increase the
penalty.
7. [LEONEN] For the crime of robbery with
rape, the law does not distinguish whether
the rape was committed before, during, or
after the robbery, but only that it punishes
robbery that was accompanied by rape. The
elements of robbery with rape are: (People v.
Salen, Jr. y Sena, G.R. No. 231013, January
29, 2020)
a. the taking of personal property is
committed
with
violence
or
intimidation against persons;
b. the property taken belongs to another;
c. the taking is characterized by intent to
gain or animus lucrandi; and
d. the robbery is accompanied by rape.
CRIMINAL LAW
Paragraph 4: Robbery with Unnecessary
Violence and Intimidation
1. There are two cases provided:
a. When the violence or intimidation was
carried
to
a
degree
clearly
unnecessary, or
b. When physical injuries covered by
sub. 3 and 4 of Art. 263 were inflicted
upon any person not responsible for
the commission of robbery
2. Violence or intimidation in the first case need
not be present before or at the exact moment
when the object is taken.
3. The violence or intimidation may be
committed at any time before the owner is
finally deprived of his property.
Paragraph 5: Robbery with Violence or
Intimidation in Other Cases
1. Acts done, either by their own nature or by
reason of the circumstances under which
they are executed, must inspire fear in the
person against whom they are directed.
a. It must be objective fright (due to
some act on the part of the accused),
and not subjective fright (fear arising
from the mere temperamental timidity
of the offended party).
Robbery through Intimidation and Threats to
extort money, Distinguished
ROBBERY
THREATS TO
THROUGH
EXTORT MONEY
INTIMIDATION
Actual and immediate Conditional or future
intimidation
intimidation
Intimidation may be
Intimidation
is
through
an
personal
intermediary
Intimidation may refer
Intimidation
is
to person, honor or
directed only to the
property
of
the
offended party
offended party
Gain is immediate
Gain is not immediate
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Robbery with Violence and Grave coercion,
Distinguished
ROBBERY WITH
GRAVE COERCION
VIOLENCE
Violence is used
Intent to gain
No intent to gain
Robbery and Bribery, Distinguished
ROBBERY
BRIBERY
The owner of the
property
did
not The owner of the
commit a crime but is property has committed
intimidated by the a crime and gives
offender so as to money as way to avoid
deprive him of his arrest or prosecution
property
Victim is deprived of
money thru force or
Giving of money by
intimidation; neither
victim is in a sense
voluntary nor mutual
voluntary
parting
with
the
money
Example: Accused, a sanitary inspector,
demands payment of an amount from the
offended party with threats of his arrest and
prosecution after inspection of the offended
party’s store. The crime committed is robbery
because the principal distinction from bribery is
the voluntariness of the transaction on the part
of the owner of the property. (People v.
Francisco, G.R. No. 21390, March 26, 1924)
Art. 295. Robbery with Physical Injuries,
Committed in an Uninhabited Place and by a
Band, or with the Use of Firearm on a Street,
Road or Alley (Qualified Robbery)
Instances Qualifying Robbery with Violence
against or Intimidation of Persons
1. in an uninhabited place, or
2. by a band, or
3. by attacking a moving train, street car, motor
vehicle or airship, or
4. by entering the passenger’s compartments in
a train, or in any manner taking the
passengers thereof by surprise in the
respective conveyances, or
CRIMINAL LAW
5. on a street, road, highway or alley and the
intimidation is made with the use of firearms,
whether licensed or unlicensed.
Notes:
1. This article does not apply to the special
complex crimes of robbery with homicide,
with rape, or with serious physical injuries
under paragraph 1 of Art. 263.
2. Any of the qualifying circumstances must be
alleged in the information and proved during
trial. They cannot be offset by generic
mitigating circumstances.
Art. 296. Definition of a Band and Penalty
Incurred by Members Thereof
When more than three armed malefactors
take part in the commission of a robbery, it
shall be deemed to have been committed by
a band.
Robbery is Deemed Committed by a Band when
at least 4 armed malefactors take part.
Requisites for liability for the acts of the
other members of the band: (M-P-A-N) (4)
1. That the accused was a Member of the band;
2. That he was Present at the commission of a
robbery by that band;
3. That the other members of the band
committed an Assault; and
4. That he did Not attempt to prevent the assault
Notes:
1. If robbery and assault were committed by a
band, even if the members conspired to
commit robbery only, all the participants are
nonetheless liable for both acts; unless:
a. [LEONEN] The accused prevented or
attempted to prevent the assault
(Amparo v. People, G.R. No. 204990,
February 22, 2017); or
b. The accused is a principal by inducement
as to the commission of robbery, unless
he ordered such killing or the commission
of other crimes
2. Proof of conspiracy is not necessary when
four or more armed persons committed
robbery.
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3. If rape was committed by one member of the
band without the knowledge of the others, he
alone is guilty of robbery with rape.
Art 297. Attempted and Frustrated Robbery
Committed Under Certain Circumstances
Attempted or Frustrated Robbery with
Homicide
1. This is a special complex crime.
a. The term “homicide” is used in its generic
sense. It includes any unlawful killing.
b. There must be overt acts pointing to
robbery.
“Unless the homicide committed should
deserve a higher penalty”
When homicide is committed with a qualifying
circumstance, then a higher penalty shall be
imposed (e.g., for murder or parricide).
Distinctions (People v. Villanueva, C.A.- G.R.
No. 2676, May 31, 1939):
1. Art 294 applies if the offense committed is
consummated robbery with homicide.
2. Art 297 applies if the offense committed is
attempted or frustrated robbery with
homicide.
3. Art 48 applies if the offense committed is
attempted or frustrated robbery but only
serious physical injuries, provided serious
physical injuries must be employed as the
necessary means of committing robbery.
If physical injuries were inflicted on the
victim, but no intent to kill was proven and the
victim did not die, the liability of the offender
may be as follows:
1. If physical injuries were inflicted as a means
for the commission of attempted or frustrated
robbery, the injuries are absorbed. The crime
shall only be attempted or frustrated robbery.
2. If physical injuries were inflicted on the
occasion of robbery but not as a means for
the commission of attempted or frustrated
robbery, they are treated as separate crimes
of attempted or frustrated robbery and
physical injuries.
CRIMINAL LAW
3. If both killing and physical injuries were
committed on that occasion, the crime shall
be penalized in accordance with Art. 297, but
the physical injuries will be absorbed.
Art 298. Execution of Deeds By Means of
Violence or Intimidation
Any person who, with intent to defraud
another, by means of violence or intimidation,
shall compel him to sign, execute or deliver
any public instrument or document
Elements: (I-C-VI) (3)
1. That the offender has Intent to defraud
another;
2. That the offender Compels him to sign,
execute, or deliver any public instrument or
document; and
3. That the compulsion is by means of Violence
or Intimidation
Notes:
1. This article is not applicable if the document
is void.
2. “Public” describes only “instrument”; hence,
this article also applies to private or
commercial documents
Section 2 – Robbery by the Use of Force upon
Things
Two (2) instances:
1. Robbery which occurs in:
a. An inhabited house or public building or
edifice devoted to religious worship (Art.
299), or
b. An uninhabited place or in a private
building (Art. 302); and
2. If the offender did not enter the premises
through any of the means mentioned in Art.
299(a) but broke a wardrobe, chest, or any
other kind of locked or closed or sealed
furniture or receptacle in the house or
building, or he took it away to be broken or
forced open outside.
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Art 299. Robbery in an Inhabited House or
Public Building or Edifice Devoted To
Worship
Any armed person who shall commit robbery
in an inhabited house or public building or
edifice devoted to religious worship
Subdivision (a) elements:
1. That the offender entered
a. an inhabited house, or
b. public building, or
c. edifice devoted to religious worship;
2. That the entrance was effected by any of the
following means:
a. Through an opening not intended for
entrance or egress;
b. By breaking any wall, roof, or floor or
breaking any door or window;
c. By using false keys, picklocks or similar
tools; or
d. By using any fictitious name or
pretending the exercise of public
authority; and
3. That once inside the building, the offender
took personal property belonging to another
with intent to gain
Definitions
1. An Inhabited house is any shelter, ship or
vessel constituting the dwelling of one or
more persons, even if inhabitants are not
present.
2. A Public building is every building owned by
the Government or belonging to a private
person but used or rented by the
Government,
although
temporarily
unoccupied by the same.
Notes:
1. There must be intention to take personal
property in entering the building.
2. The offender must wholly enter the building in
which the robbery was committed (i.e., whole
body of the culprit must be inside the building).
3. False keys are genuine keys stolen from the
owner or any keys other than those intended
by the owner for use in the lock forcibly
opened by the offender (Art. 305).
CRIMINAL LAW
4. Picklock or similar tools are those specially
adopted to the commission of robbery (Art.
304).
5. When the false key is used to open a
wardrobe or locked receptacle or drawer or
inside door, it is only theft.
6. Using of fictitious name or pretending the
exercise of public authority must be the
efficient cause of the opening by the offended
party of the door of his house to the accused.
7. The four means described must be resorted
to by the offender to enter, not to get out.
Art. 299, subdivision (b) elements:
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; and
2. That the offender takes personal property
belonging to another with intent to gain, under
any of the following circumstances:
a. by the breaking of doors, wardrobes,
chests, or any other kind of locked or
sealed furniture or receptacle, or
b. by taking such furniture or objects away
to be broken or forced open outside the
place of the robbery
Notes:
1. Entrance need not be effected by any of the
means mentioned in Art. 299, subdivision (a).
2. “Doors” refer only to “doors, lids, or opening
sheets” of furniture or other portable
receptacles – not to inside doors of house or
building.
3. When a sealed box is taken out for the
purpose of breaking it, the crime is already
consummated robbery. There is no need to
actually open it inside the building from where
it was taken.
a. If the box was confided into the custody
of accused and he takes the money
contained therein, the crime is estafa.
b. If the box was found outside of the
building and the accused forced it open,
the crime is theft.
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Art 300. Robbery in an Uninhabited Place and
by a Band
The robbery mentioned in Article 299, if
committed in an uninhabited place and by a
band
Notes:
1. The penalty in Article 299 will be in the
maximum period, if robbery with force upon
things is committed in an uninhabited place
and by a band.
2. The inhabited house, public building, or
edifice devoted to religious worship must be
located in an uninhabited place, as opposed
to robbery with violence against or
intimidation of persons, which must be
committed in an uninhabited place or by a
band.
Art 301. What Is an Inhabited House, Public
Building, or Building Dedicated To Religious
Worship and Their Dependencies
Requisites for Dependencies (CIP)(3)
All interior courts, corrals, warehouses, granaries
or enclosed places must be:
a. Contiguous to the building;
b. Having an Interior entrance connected
therewith, and
c. Forming Part of the whole.
Notes:
1. Place is still considered inhabited even if the
occupant is absent when robbery occurred
2. Orchard and other lands for cultivation or
production are not included in the term
dependencies (Art 301, par. 3).
Art. 302. Robbery in an Uninhabited Place or
in a Private Building
Elements:
1. That the offender entered an uninhabited
place or a building which is not a dwelling
house, not a public building, or not an edifice
devoted to religious worship;
CRIMINAL LAW
2. That with intent to gain, the offender took
therefrom personal property belonging to
another;
3. That any of the following circumstances was
present:
a. Entrance was effected through an
opening not intended for entrance or
egress;
b. A wall, roof, floor, or outside door or
window was broken;
c. The entrance was effected through the
use of false keys, picklocks or other
similar tools;
d. A door, wardrobe, chest, or any sealed or
closed furniture or receptacle was
broken; or
e. A closed or sealed receptacle was
removed, even if the same be broken
open elsewhere
Notes:
1. Uninhabited place means an uninhabited
building.
2. Building includes any kind of structure for
storage or safekeeping of personal property.
3. When the property taken is mail matter or
large cattle during any of the robberies
defined in Arts. 294, 295, 297, 299, 300 &
302, the penalties next higher in degree than
those provided in said articles shall be
imposed.
4. Taking of large cattle is now punished under
P.D. 533.
Robbery in a store:
1. Art. 299 – if the store is used as a dwelling; or
if the store is a dependency of an inhabited
house with an interior entrance connected
therewith;
2. Art. 302 – if the store is not used as a
dwelling;
Art. 303. Robbery of Cereals, Fruits, or
Firewood in an Uninhabited Place or Private
Building
In the cases enumerated in Articles 299 and
302, when the robbery consists in the taking
of cereals, fruits, or firewood
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Definition:
Cereals (also known as palay)– seedlings which
are the immediate product of the soil
Notes:
1. When the robbery described in Arts. 299 and
302 consists in the taking of cereals, fruits, or
firewood, the penalty is one degree lower.
2. Applicable only to robbery by “force upon
things”
3. The palay must be kept by the owner as
“seedlings” or taken for that purpose by the
robbers.
4. Does not include taking sacks of hulled rice
(bigas), which falls under Art. 302
Art. 304. Possession of Picklocks or Similar
Tools
Any person who shall, without lawful cause,
have in his possession picklocks or similar
tools especially adopted to the commission of
the crime of robbery
Any person who makes such tools
Elements: (PAN) (3)
1. That the offender has in his Possession
picklocks or similar tools;
2. That such picklocks or similar tools are
specially Adopted to the commission of
robbery; and
3. That the offender does Not have lawful cause
for such possession
Notes:
1. Actual use of the picklocks or similar tools is
not necessary.
2. The liability of a locksmith is higher than that
of a mere possessor of picklocks.
Art. 305. False Keys:
"False keys" shall be deemed to include:
1. The tools mentioned in the next
preceding article.
2. Genuine keys stolen from the owner.
3. Any keys other than those intended by
the owner for use in the lock forcibly
opened by the offender.
Notes:
1. If the key was entrusted to the offender and
he used it to steal, crime is not robbery but
theft.
2. Possession of false keys in (2) and (3) are not
punishable.
3. A master key is considered a picklock and its
possession is punishable. (People v. Lopez
G.R. No. L-18766)
Chapter 2: Brigandage
Brigandage 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 violence.
Art. 306. Who are Brigands – Penalty
Brigands/highway robbers are more than
three armed persons who form a band of
robbers for the purpose of committing robbery
on 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.
If any of the arms carried by any of said
persons be an unlicensed firearm, it shall be
presumed that said persons are highway
robbers or brigands
Elements:
1. There are at least 4 armed persons;
2. They formed a band of robbers;
3. Their purpose is any of the following:
a. to commit robbery in the highway, or
b. to kidnap persons for the purpose of
extortion or to obtain ransom, or
c. to attain by means of force and violence
any other purpose
Notes:
1. The mere formation of a band for any of the
purposes mentioned is sufficient to convict.
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2. If any of the members carries unlicensed
firearm, all are presumed highway robbers or
brigands.
3. Arms carried need not necessarily be
firearms—as long as they are weapons in
general. (People v. De La Rosa C.A., 49 O.G.
2863)
Brigandage and Robbery by a Band,
Distinguished
BRIGANDAGE
ROBBERY BY A
BAND
Purpose is only to
Purposes are those commit robbery, not
enumerated above
necessarily
on
a
highway
Agreement to commit Agreement is to commit
robbery not limited to only
a
particular
one occasion
robbery
Mere formation of a Necessary to prove
band is sufficient to actual commission of
convict
robbery
Both require that the offenders form a band of
robbers.
Things to prove:
1. There is an organization of more than 3
armed persons forming a band of robbers;
2. The purpose of the band is any of those
enumerated;
3. They go upon the highway or roam upon the
country for that purpose; and
4. The accused is a member of the band.
Art. 307. Aiding and Abetting a Band of
Brigands
Elements:
1. That there is a band of brigands;
2. That the offender knows the band to be of
brigands; and
3. That the offender does any of the following
acts:
a. the offender in any manner aids, abets or
protects such band of brigands, or
b. the offender gives them information of the
movements of the police or other peace
officers of the Government, or
c. the offender acquires or receives the
property taken by such brigands
Presumption of law as to knowledge
Any person performing any of the acts provided
in this article is presumed to have performed them
knowingly, unless the contrary is proven.
Chapter 3: Theft
Art. 308. Who are Liable for Theft
Theft is the taking of personal property
belonging to another without the owner’s
consent and without the attendance of
violence or intimidation of persons or force
upon things.
Elements:
1. That there be taking of personal property;
2. That such property belongs to another;
3. That the taking be done with intent to gain;
4. That the taking be done without the consent
of the owner; and
5. That the taking be accomplished without the
use of violence against or intimidation of
persons or force upon things.
Persons liable:
1. Those who:
a. with intent to gain,
b. but without violence against or
intimidation of persons nor force upon
things,
c. take personal property of another,
d. without the latter’s consent.
2. Those who:
a. having found lost property,
b. fail to deliver the same to the local
authorities or its owner.
(Retention of money/property found is theft.
What is punished is retention or failure to
return with intent to gain. The offender’s
knowledge of the identity of the owner of
the property is not required. His
knowledge that the property is lost is
enough.)
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3. Those who:
a. after having maliciously damaged the
property of another,
b. remove or make use of the fruits or object
of the damage caused by them.
(Killing the cattle of another which destroyed
his [offender’s] property and getting meat
for himself is theft.)
4. Those who:
a. enter an enclosed estate or a field,
b. where trespass is forbidden or which
belongs to another, and
c. without the consent of its owner, hunt,
fish or gather fruits, cereals or other farm
products therefrom.
(Fishing should not be in a fishpond or
fishery within the field or estate;
otherwise, it is qualified theft under Art.
310.)
Notes:
1. Taking is consummated the moment the
offender has full possession of the thing even
if he did not have an opportunity to dispose of
the same; it does not require “taking away or
carrying away.”
2. The “taking” must be accompanied by the
intention, at the time of the taking, of
withholding the thing with character of
permanency. (People v. Rico, et al. C.A., 50
O.G. 3103; Peple v. Galang, et al. C.A., 43
O.G. 577)
3. Intent to gain is presumed from the unlawful
taking, except if the person takes the thing
from another believing in good faith that it is
his own.
4. Actual or real gain is not necessary; it is
enough that on taking the property, the
accused was actuated by the desire or intent
to gain.
5. [LEONEN] The existence of the DARAB
Decision adjudicating the issue of tenancy
between the offended party and the offender
negates the existence of the element that the
taking was done without the owner's consent.
The DARAB Decision implies that the
offender had legitimate authority to harvest
the abaca. (Ligtas v. People, G.R. No.
200751, August 17, 2015)
CRIMINAL LAW
6. Consent (of owner) contemplated in the
element of theft refers to consent freely given
and not merely implied from silence of the
owner.
7. Allegation in the information of lack of
consent is indispensable.
8. In theft of lost property, it is necessary to
prove:
a. Time of the seizure of the things;
b. That it was lost property belonging to
another; and
c. That the accused, having had the opportunity
to return or deliver the lost property to its
owner or to the local authorities, refrained
from doing so.
9. Unless force upon things is used to enter a
building, it is theft and not robbery, except
that it is robbery when a furniture, chest, or
other locked/sealed receptacle is broken in
the house or building or taken therefrom and
broken outside.
10. When a person possesses part of recently
stolen property, he is presumed to be the thief
of all unless he has a satisfactory explanation
of his possession.
11. Theft is NOT a continuing offense.
12. There is no frustrated theft.
Theft and Robbery, Distinguished
THEFT
ROBBERY
If
violence
or
intimidation
is
If
violence
or committed
after
intimidation
is taking is complete
committed
after which
results
in
taking is complete – homicide,
rape,
separately-punished
intentional mutilation,
crimes
or serious physical
injuries
–special
complex crimes
Any “force” needed
Force
may
be
for taking (which is
employed to enter;
not under force upon
“force” needed for
things in robbery; e.g.
taking
(e.g.
snatching)
is
snatching) is part
absorbed in theft;
of/absorbed in the
force entailed in the
taking
separate
crimes
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resulting
from
violence
or
intimidation
after
taking is complete is
an element of those
separate crimes
Lack of consent by
the
owner
is
sufficient.
It is necessary that
taking
must
be
against the will of the
owner.
Theft and Estafa, Distinguished
THEFT
ESTAFA
If
only
material If juridical possession
possession
(i.e. is transferred (ex., by
custody of object) a
contract
of
was given to the bailment)
to
the
accused and it is accused
and
he
actually taken by him takes the property
with no intent to with intent to gain
return; or material
possession/custody
is not even given to,
but obtained by, the
accused
through
taking the object
without the owner’s
consent and with
intent to gain
Art 309. Penalties
Basis for penalty:
1. The value of the thing stolen;
2. The value and the nature of the thing taken;
or
3. The circumstances or causes that impelled
the culprit to commit the crime
Art 310. Qualified Theft
Acts of theft committed:
a. By a domestic servant, or
b. With grave abuse of confidence, or
c. The property stolen is a:
i. Motor vehicle,
ii. Mail matter,
iii. Large cattle,
CRIMINAL LAW
iv. Coconut taken from the premises of
a plantation (whether still in the tree
or deposited on the ground),
v. Fish from a fishpond or fishery; or
d. On the occasion of fire, earthquake,
typhoon, volcanic eruption, or any
other calamity, vehicular accident or
civil disturbance
Elements:
1. Taking of personal property;
2. Said property belongs to another;
3. Said taking be done with intent to gain;
4. It be done without the owner’s consent;
5. It be accomplished without the use of
violence or intimidation against persons, nor
of force upon things; and
6. It be done under any of the qualifying
circumstances.
Notes:
1. “Grave abuse of confidence” necessitates
a high degree of confidence between the
offender and the offended party. (ex. guests);
there must be an allegation in the information
of proof of a relation by reason of
dependence, guardianship or vigilance,
between the accused and the offended party,
that has created a high degree of
confidence between them.
2. [LEONEN] In a case where the domestic
helper received a call from a stranger to bring
the valuable items of her employer because
the latter was involved in an accident, and
they later found out that this was not true, the
Court found the helper guilty of qualified theft
because it was clear that it was she who took
the valuables and the fact that she did not
pause to evaluate the situation despite
warnings by co-workers and security
personnel, was contrary to human
experience. (People v. Mejares, G.R.
225735, January 10, 2018)
3. Theft is qualified if it is committed by one who
has access to the place where stolen
property is kept. (ex. security guards, tellers)
4. A bank’s employees are entrusted with the
possession of money of the bank due to the
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5.
6.
7.
8.
confidence reposed in them and as such they
occupy positions of confidence. Thus, when
a bank manager issues manager’s checks in
order to take money from certain accounts to
benefit himself and another, such manager is
guilty of qualified theft. (PNB v. Tria, G.R. No.
193250, April 25, 2012)
Theft by a laborer is only simple theft; not all
theft by a housemate is qualified theft.
Novation theory applies only when there is a
contractual relationship between the accused
and complainant.
Theft by a domestic servant is always
qualified.
PD 705: Any person who directly or indirectly
cuts, gathers, removes, or smuggles timber,
or other forest products from any of the public
forest is penalized with Qualified Theft.
Other Circumstances
1. Theft of motor vehicle – Anti-Carnapping Act
of 2016 (R.A. 10883)
2. Theft of large cattle – Anti-Cattle Rustling Law
of 1974 (P.D. No. 533)
Elements: [LEONEN]
a. large cattle is taken;
b. it belongs to another;
c. the taking is done without the consent of
the owner or raiser;
d. the taking is done by any means, method,
or scheme;
e. the taking is done with or without intent to
gain; and,
f. the taking is accomplished with or without
violence or intimidation against persons
or force upon things (Lopez v. People,
G.R. No. 212186, June 29, 2016)
Art 311. Theft of the Property of the National
Library and National Museum
General Rule: It has a fixed penalty regardless of
its value – Arresto Mayor or a fine ranging from
₱40,000 to ₱100,000, or both.
Exception: When a higher penalty should be
provided under other provisions of this Code.
(e.g. theft with abuse of confidence penalty for
qualified theft) (Amended by RA 10951)
Please see SPL reviewer on P.D. 1612 AntiFencing Law & Its Implementing Rules and
Regulations p. 252
Chapter 4: Usurpation
Art. 312. Occupation of Real Property or
Usurpation of Real Rights in Property
Any person who, by means of violence
against or intimidation of persons, shall take
possession of any real property or shall usurp
any real rights in property belonging to
another
Elements:
1. That the offender takes possession of any
real property, or usurps any real rights in
property;
2. That the real property or real rights belong to
another;
3. That violence against or intimidation of
persons is used by the offender in occupying
real property or usurpation of real rights in
property; and
4. That there is intent to gain.
Usurpation and Theft or Robbery,
Distinguished
USURPATION
THEFT OR ROBBERY
Occupation
or Taking or asportation
usurpation
Involves real property Involves
personal
or real right
property
Intent to gain
Notes:
1. Violence/intimidation must be the means
used in occupying real property or usurping
real right belonging to another.
2. Criminal action is not a bar to civil action for
forcible entry.
3. When there is no intent to gain, the crime
committed is coercion.
4. When there is no violence used and no intent
to gain, the crime is malicious mischief.
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Art. 313. Altering Boundaries or Landmarks
Any person who shall alter the boundary
marks or monuments of towns, provinces, or
estates, or any other marks intended to
designate the boundaries of the same
have been adjudged
bankrupt or insolvent.
Chapter 6: Swindling and Other Deceits
Art. 315. Swindling (Estafa)
Elements:
1. That there be boundary marks or monuments
of towns, provinces, or estates, or any other
marks intended to designate the boundaries
of the same; and
2. That the offender alters said boundary marks.
Notes:
1. Intent to gain or fraudulent intent is not
necessary; mere alteration is sufficient
2. “Alter” has a general and indefinite meaning:
to make something different without changing
it into something else.
Chapter 5: Culpable Insolvency
Art. 314. Fraudulent Insolvency
Any person who shall abscond with his
property to the prejudice of his creditors
Elements: (DAP) (3)
1. Offender is a Debtor, that is, he has
obligations due and payable;
2. Offender Absconds with his property; and
3. That there be Prejudice to his creditors.
Notes:
1. Actual prejudice is required; mere intention to
prejudice is not sufficient.
2. May involve real property
Fraudulent Insolvency under RPC and
Insolvency under Insolvency Law,
Distinguished
FRAUDULENT
INSOLVENCY
Institution
of
insolvency
proceedings is not
necessary. It is not
required that the
defendant
should
INSOLVENCY LAW
The
criminal
act
should have been
committed after the
institution
of
insolvency
proceedings.
Elements, in General:
1. Accused defrauded another;
2. Damage or prejudice capable of pecuniary
estimation is caused to the offended party or
third person;
3. The element of damage or prejudice may
consist in:
a. The offended party being deprived of his
money or property, as a result of the
defraudation;
b. Disturbance in property rights; or
c. Temporary prejudice.
Note:
Fraud, in its general sense, is deemed to
comprise anything calculated to deceive,
including all acts, omissions, and concealment
involving a breach of legal or equitable duty, trust,
or confidence justly reposed, resulting in damage
to another, or by which an undue and
unconscientious advantage is taken of another.
Three ways of committing Estafa
1. With unfaithfulness or abuse of confidence;
2. By means of false pretenses or fraudulent
acts; or
3. Through Fraudulent Means.
First way of committing Estafa
Unfaithfulness or Abuse of Confidence)
(By
Acts Punishable (3 Acts):
1. By altering the substance
2. By misappropriation or conversion
3. By taking undue advantage of the signature
of the offended party in blank
Elements of Altering the Substance
1. Offender has an onerous obligation to deliver
something of value;
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CRIMINAL LAW
2. He alters its substance, quantity, or quality;
and
3. Damage or prejudice is caused to another
or after a criminal information/ complaint has
already been filed.
6. There is no estafa through negligence.
Notes
1. When there is no agreement as to the quality
of the thing to be delivered, the delivery of the
thing in a state not acceptable to the
complainant is not estafa.
2. Crime may arise even though the obligation
is based on an immoral or illegal
consideration.
Second Element of Misappropriation or
Conversion: Three ways of committing Estafa
with Abuse of Confidence
1. By misappropriating the thing received.
Misappropriation means taking something for
one’s own benefit.
2. By converting the thing received. Conversion
means using or disposing of another’s
property as if it were one’s own.
The words “convert” and “misappropriate”
connote an act of using or disposing of another’s
property as if it were one’s own or devoting it to a
purpose or use different from that agreed upon.
3. By denying that the thing was received.
Elements of Misappropriation or Conversion
1. Money, goods, or other personal property are
received by the offender in trust, or on
commission, or for administration, or under
any other obligation involving the duty to
make delivery of, or to return, the same;
2. Such money or property is misappropriated
by the offender, or is denied being received
by him;
3. Such misappropriation or conversion or
denial is to the prejudice of another; and
4. There is a demand made by the offended
party to the offender to account for the
property
Notes:
1. Juridical possession (right of possession
which may be set up against its owner) is
transferred.
2. Transfer of juridical possession is distinct
from (a) transfer of material possession which
results in theft, or (b) transfer of ownership
which results in civil liability only.
3. It is presumed that the possession of, and title
to, the thing delivered remains in the owner,
when the delivery of a chattel has not the
effect of transferring the juridical possession
thereof, or title thereto.
4. Includes
quasi-contracts
and
certain
contracts of bailment (deposit, lease,
commodatum, but not mutuum [loan of
money])
5. Criminal liability for estafa is not affected by
subsequent novation of contract after estafa
has already been consummated or incurred,
Third element of Misappropriation or
Conversion: Prejudice befalling “another”
means any third person, and not merely to the
owner
1. A partner may be liable for estafa if he
misappropriates the share of another partner
in profits or if he receives money/property for
a specific purpose and later misappropriates
it
Fourth element of Misappropriation or
Conversion: Demand, though not mentioned
by the provision of law, is necessary to
provide circumstantial evidence, if there is
failure to account upon demand
1. Demand is not dispensed with even if:
a. The offender cannot be located
(BUT People v. Villegas [56 O.G. 11, 1938]
held that if the offender is in hiding, it is a
clear indication of a premeditated
intention to abscond with the thing
received and the offender could not have
complied with the demand even if made,
hence, demand is not necessary.)
b. There was an agreement upon a specific
time for delivery or return of the things
received
(BUT People v. Librea [48 O.G. 5305] held
that, if the receipt signed by the accused
stipulated a specified date for the return
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of the thing, such specified date is in itself
a demand, dispensing with the need for a
subsequent demand to be made.)
Estafa and Theft with abuse of confidence,
Distinguished
THEFT WITH
ESTAFA
ABUSE OF
CONFIDENCE
Offender receives the Offender takes the
thing
from
the thin from the offended
offended party
party
In receiving the thing,
In receiving the thing, the offender acquires
the offender acquires only
material
or
not only material but transitory
also
juridical possession, while the
possession of the juridical possession
thing.
remains with the
offended party.
Test to distinguish Estafa from Theft:
1. Whether the owner expects the immediate
return of the thing he delivered to the
accused:
a. if yes, it is theft;
b. otherwise, it is estafa; EXCEPTION:
where the offender is a servant,
domestic, or employee in whom custody
of the thing delivered is only precarious
and for a temporary purpose or for a short
period, hence, juridical or constructive
possession remains with the owner
(Constructive possession is when the
owner still has, under his control and
management and subject to his
disposition, the thing even if actual
physical
possession
is
already
transferred).
Estafa and Malversation, Distinguished
ESTAFA WITH
MALVERSATION
ABUSE OF
(ART. 217)
CONFIDENCE
Offenders are entrusted with funds or property
Considered as a continuing offense
Always
involves Involves public funds or
private funds
property
Offender is a private
individual or even a
public officer who is
not accountable for
public
funds/property
Offender is usually a
public officer who is
accountable for the
public funds/property
Crime is committed
by
misappropriating,
converting,
or
denying
having
received
money,
goods
or
other
personal property
Crime is committed by
appropriating, taking,
or
misappropriating/
consenting,
or
through
abandonment
or
negligence,
permitting any other
person to take the
public funds/property
Elements of Taking Undue Advantage of the
Signature of the Offended Party in Blank
1. The paper with the signature of the offended
party is blank;
2. The offended party should have delivered it
to offender;
3. Above the signature of the offended party in
the otherwise blank paper, a document is
written by the offender without authority to do
so; and
4. The document so written creates a liability of,
or causes damage to, the offended party or
any third person.
Note: If the blank paper with the offended party’s
signature was stolen, the crime is falsification if
the offender made it appear that the victim
participated in a transaction, when in fact he did
not so participate therein.
Second way of committing Estafa (By Means
of Deceit)
Elements, in General:
1. There must be a false pretense, fraudulent
act or fraudulent means;
2. Such false pretense, fraudulent act or
fraudulent means must be made or executed
prior to or simultaneously with the
commission of the fraud;
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3. The offended party must have relied on the
false pretense, fraudulent act, or fraudulent
means, that is, he was induced to part with
his money or property because of the false
pretense, fraudulent act, or fraudulent
means; and
4. As a result thereof, the offended party
suffered damage
Estafa by means of deceit and Theft,
Distinguished
ESTAFA BY MEANS
THEFT
OF DECEIT
Involves both material
Involves only material
or
physical
or
physical
possession
and
possession
juridical possession
Always
involves May or may not
deceit
involve deceit
Acts Punishable:
1. By using fictitious name, or by falsely
pretending to possess (a) power, (b)
influence, (c) qualifications, (d) property,
(e) credit, (f) agency, (g) business, or (h)
imaginary transactions, or by means of
other similar deceits
a. It is indispensable that the element of
deceit (i.e., the false statement or
fraudulent representation) be made prior
to, or at least simultaneously with, the
delivery of the thing, such that the deceit
used constitutes the very cause or the
only motive which induces the
complainant to part with the thing
Note: Ponzi Scheme is syndicated Estafa defined
under paragraph 2(a) of Art. 315, in relation to PD
1689 (Decree Increasing the Penalty for certain
forms of Swindling and Estafa). It is a type of
investment fraud that involves the payment of
purported returns to existing investors from funds
contributed by new investors. Its organizers often
solicit new investors by promising to invest funds
in opportunities claimed to generate high returns
with little or no risk.
CRIMINAL LAW
2. By altering the quality, fineness, or weight
of anything pertaining to the offender’s art
or business
3. By pretending to have bribed any
Government employee, without prejudice
to the action for calumny which the
offended party may deem proper to bring
against the offender
4. By postdating a check, or issuing a check
in payment of an obligation when the
offender had no funds in the bank, or his
funds deposited therein were not
sufficient to cover the amount of the
check
a. Prima facie evidence of deceit: failure to
deposit the amount necessary to cover
check within three (3) days from receipt
of notice from bank of dishonor for
insufficiency of funds
b. The check issued must be genuine, and
not falsified; otherwise, it is estafa by
means of false pretense or through
falsification.
c. The obligation covered by the check
must be contracted at the time of the
issuance and delivery of the check;
otherwise (i.e., if for a pre-exisiting
obligation), there is no estafa.
d. The accused must be able to obtain
something from the offended party by
means of the check – damage done to
the offended party.
e. There is no estafa if the postdated checks
are issued and intended merely as a
security.
f. The payee should not have been
informed by the offender and the payee
should not have known that the offender
had no funds or insufficient funds. (Andan
v People, GR No 136388, March 14,
2006)
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Estafa and Bouncing Checks Law (B.P. 22),
Distinguished
ESTAFA BY
BOUNCING
POSTDATING A
CHECKS LAW
CHECK
Offender employed No deceit employed
deceit
(malum prohibitum)
Payee or person No
damage
using receiving the necessary
check
must
be
defrauded
or
damaged
(damage
being the basis of
penalty)
Does
not
cover May be issued to
checks issued for a cover for pre-existing
pre-existing
obligation
(“for
obligation
account or value”)
Please see SPL reviewer on: Bouncing
Checks Law (B.P. 22) and Administrative
Circular No. 12-2000 Re: Penalty for Violation
of B.P. 22
Administrative Circular No. 13-3001 Re:
Clarification of A.C. 12- 2000) and P.D. No.
1689 (Increasing the Penalty for Certain
Forms of Swindling on Estafa).
5. By any of the following acts committed at
a hotel, inn, restaurant, boarding house,
lodging house, or apartment house
a. By obtaining food, refreshment or
accommodation therein without paying
therefor, with intent to defraud the
proprietor or manager thereof;
b. By obtaining credit therein by the use of
any false pretense; and
c. By
abandoning
or
surreptitiously
removing any part of his baggage from
therein after obtaining credit, food,
refreshment, or accommodation therein,
without paying therefor
CRIMINAL LAW
Third way of committing
Fraudulent Means)
Estafa
(By
Acts Punishable (3 Acts):
1. By inducing another to sign any
document
Elements:
a. The offender induced the offended party to
sign a document;
b. Deceit was employed to make the offended
party sign the document;
c. The offended party personally signed the
document; and
d. Prejudice was caused
Estafa and Falsification, Distinguished
ESTAFA BY
INDUCING
FALSIFICATION
ANOTHER TO SIGN
ANY DOCUMENT
Misrepresentations
Offended party was
as to the character of willing and ready from
the
documents the beginning to sign
executed
the document, in the
belief it contained
statements made by
him; but the offender,
in
preparing
the
document, attributed
to the offended party
statements different
from those actually
made by him
2. By resorting to some fraudulent practice
to insure success in a gambling game
3. By removing, concealing or destroying
documents
Elements:
a. There are court records, office files,
documents or any other papers;
b. The offender removed, concealed, or
destroyed any of them; and
c. The offender had intent to defraud another
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Elements of the Complex Crime of Estafa
through Falsification
1. For Estafa:
a. Deceit
b. Damage
2. For Falsification:
a. The offender is a public officer,
employee, or notary public;
b. He takes advantage of his official
position;
c. He falsifies a document by committing
any of the acts defined under Art. 171 of
the RPC
Notes:
1. There is no complex crime of estafa through
falsification of private document.
2. If the falsification of a private document is
committed as a means to commit estafa, the
proper crime to be charged is falsification.
3. If the estafa can be committed without
necessity of falsifying a document, the proper
crime to be charged is estafa. (Batulanon v
People, GR No 139857, September 15,
2006)
4. [LEONEN] A public official was found liable
for the complex crime for estafa through
falsification of public documents when he
signed the documents given to him by his
subordinates granting financial grant to a
fictitious NGO. The peculiar circumstances
attendant should have prompted a higher
degree of circumspection on the part of the
public official and necessarily, he should go
beyond what his subordinates prepared.
(Escobar v. People, G.R. No. 205576,
November 20, 2017)
Estafa and Malicious Mischief, Distinguished
ESTAFA BY
MALICIOUS
DESTROYING
MISCHIEF
DOCUMENTS
Intent to defraud Intent to defraud is
required
not required
CRIMINAL LAW
Estafa and Infidelity in custody of
documents, Distinguished
ESTAFA BY
REMOVING,
INFIDELITY IN
CONCEALING, OR
CUSTODY OF
DESTROYING
DOCUMENTS
DOCUMENTS
Similar in the manner of committing the offense
Offender is a private Offender is a public
individual or even a officer who is officially
public officer who is entrusted
with
the
not officially entrusted documents
with the documents
Intent to defraud Intent to defraud is not
required
required
Complex Crime of Estafa and Theft
It is committed when theft is employed as a
necessary means to commit estafa. (People vs.
Yusay, 60 Phil. 598)
Illustration: A owns pawnshop tickets which he
entrusted to B for safekeeping. A forgot about the
entrustment and a week later, C took the ticket
from B and refused to return it, despite insistent
demands made by B for the return. Then, using a
fictitious name, C redeemed jewels using the
ticket without the knowledge and consent of A and
B. C committed theft, as a necessary means to
commit estafa: C took the ticket with intent to gain
and without the consent of either A or B. C then
used a fictitious name to redeem the jewels,
thereby committing estafa.
Notes:
1. Damage caused without deceit or without
abuse of confidence gives rise only to civil
liability.
2. Ownership is not a necessary element of
estafa. In a case, A handed a check signed
by his father to B for the purpose of
exchanging the peso amount stated in the
check with dollars. B subsequently ran away
with the check without giving the appropriate
dollar equivalent. A may sue B even if the
former does not own the funds of the check
taken by B.
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3. If the subject matter of the offense is generic
and not identifiable, such as money
unlawfully taken, an error in the designation
of the offended party is fatal and would result
in the acquittal of the accused. However, if
the subject matter of the offense is specific
and identifiable, such as a warrant, a check,
or jewelries, an error in the designation of the
offended party is immaterial for the purpose
of convicting the accused. (Senador v. Jaime,
G.R. No. 201620, 2013)
Art 316. Other Forms of Swindling
Punishable Acts (6):
1. Conveying, selling, encumbering, or
mortgaging any real property, pretending
to be the owner of the same
2. Disposing of real property as free from
encumbrance,
although
such
encumbrance be not recorded
3. Wrongfully taking by the owner of his
personal property from its lawful
possessor
4. Executing a fictitious contract to the
prejudice of another (as distinguished
from fraudulent insolvency, however)
5. Accepting any compensation for services
not rendered
6. Selling or mortgaging or encumbering
real property or properties with which the
offender guaranteed the fulfillment of his
obligation as surety
Note:
There must be actual damage, not merely intent
to cause damage, in view of the basis of the
penalty which is the “value of the damage caused.
By conveying, selling, encumbering, or
mortgaging any real property, pretending to
be the owner of the same
Elements (I-N-E-P) (4)
1. That the thing be Immovable, such as a
parcel of land or a building;
2. That the offender, who is Not the owner of
said property, represented that he is the
owner thereof;
CRIMINAL LAW
3. That the offender should have Executed an
act of ownership (selling, leasing,
encumbering or mortgaging the real
property); and
4. That the act be made to the Prejudice of the
owner or a third person
Note:
Claim of ownership is different from pretense of
ownership: a good faith claimant of ownership
cannot be considered a mere pretender of
ownership, even if his claim is defective; hence,
the claimant is not liable under the article.
First act under other forms of swindling (Art.
316, para. 1) and Estafa by falsely pretending
to possess property (Art. 315, para. 2(a)),
Distinguished
First act under
Estafa by falsely
other form of
pretending to
swindling
possess property
Refers only to real Covers both real and
property
personal property
Covers a specific
situation where the
offender exercises or
executes, as part of
the
false Need not exercise or
representation, some execute some act of
act of dominion or dominion to prejudice
ownership of the the real owner
property
to
the
damage
and
prejudice of the real
owner of the thing
By disposing of real property as free from
encumbrance, although such encumbrance
be not recorded
Elements (F-R-E-D) (4)
1. That the thing disposed of be Real property;
2. That the offender knew that the real
property was Encumbered, whether the
encumbrance is recorded or not;
3. That there must be express representation
by the offender that the real property is
Free from encumbrance; and
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4. That the act of disposing of the real property
be made to the Damage of another
Notes:
1. The encumbrance must be legally
constituted, notwithstanding the provision
“although such encumbrance be not
recorded”.
2. The encumbrance includes every right or
interest in the land which exists in favor of
third persons
3. The offended party must have been
deceived, i.e., he would not have granted the
loan had he known that the property was
already encumbered.
4. If personal property is involved, apply Art.
319.
By the owner wrongfully taking his personal
property from its lawful possessor
Elements:
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; and
4. That prejudice is thereby caused to the
possessor or third person
Notes:
1. The act is punishable as theft when the owner
of a property took it without the consent of the
lawful possessor, then charged the
possessor with the value of the property,
because there is intent to gain.
2. “Wrongful taking” does not include violence:
a. With intent to gain – as this is robbery; or
b. Without intent to gain – as this is grave
coercion.
By executing a fictitious contract to the
prejudice of another distinguished from
fraudulent insolvency
CRIMINAL LAW
Estafa by executing fictitious contract (Art.
316, para. 4) and Fraudulent Insolvency, (Art.
314) Distinguished
ESTAFA BY
FRAUDULENT
EXECUTING ANY
INSOLVENCY Art.
FICTITIOUS
314
CONTRACT
Offender simulates a The conveyance is
conveyance of his real and made for a
property
consideration
By accepting any compensation for services
not rendered
Notes:
1. This crime requires fraud; otherwise, solutio
indebiti results for which only a civil obligation
arises.
2. If the money in payment of a debt is delivered
to a wrong person and said person refused or
failed to return the money to the owner
thereafter, it is estafa by denial of receipt of
money, under Art. 315, 1(b).
By selling or mortgaging or encumbering real
property or properties with which the offender
guaranteed the fulfillment of his obligation as
surety
Elements:
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;
3. That he sells, mortgages, or, in any other
manner, encumbers said real property;
4. That such sale, mortgage or encumbrance is
a. without express authority from the court,
or
b. made before the cancellation of his bond,
or
c. made before being relieved from the
obligation contracted by him
Art. 317. Swindling a Minor
Any person who, taking advantage of the
inexperience or emotions or feelings of a
minor, to his detriment, shall induce him to
assume any obligation or to give any release
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or execute a transfer of any property right in
consideration of some loan of money, credit or
other personal property, whether the loan
clearly appears in the document or is shown
in any other form
Elements:
1. That the offender takes advantage of the
inexperience or emotions or feelings of a
minor;
2. That he induces such minor
a. to assume an obligation, or
b. to give release, or
c. to execute a transfer of any property
right;
3. That the consideration is
a. some loan of money,
b. credit, or
c. other personal property; and
4. That the transaction is to the detriment of
such minor
Notes:
1. It is sufficient that the offender takes
advantage of the inexperience or emotions of
the minor.
2. Actual proof of deceit or misrepresentation is
not necessary.
3. Real property is not included.
Art. 318. Other Deceits
Any person who shall defraud or damage
another by any other deceit not mentioned in
the preceding articles of this chapter.
Any person who, for profit or gain, shall
interpret dreams, make forecasts, tell
fortunes, or take advantage of the credulity of
the public in any other similar manner
Punishable Acts:
1. By defrauding or damaging another by any
other deceit not mentioned in preceding
articles; and
2. By interpreting dreams, making forecasts,
fortune-telling, or by taking advantage of the
credulity of the public in any other similar
manner, for profit or gain.
CRIMINAL LAW
Notes:
1. Damage to the offended party is required.
2. Scope – any other kind of conceivable deceit
may fall under this article
Example: [LEONEN] X, an agent of an insurance
company, was convicted for the crime of estafa
for allegedly inducing Y to enter into a fraudulent
investment
opportunity.
X
made
misrepresentations to Y that the latter’s money
would be invested in the insurance company and
not to an investment company. X did not employ
any deceit in soliciting Y’s investments because
she did not use a fictitious name or pretend to
possess, power, agency, or certain qualifications,
so that X’s acts do not fall under Art. 315 (2)(a).
But she may be held liable for other deceits under
Article 318, which is intended as a catch-all
provision to cover all other kinds of deceit not
falling under Articles 315, 316, and 317 of the
Revised Penal Code. (Osorio v. People, G.R. No.
207711, July 2, 2018)
Chapter 7: Chattel Mortgage
Art. 319. Removal, Sale or Pledge of
Mortgaged Property
Punishable Acts: (2)
1. Knowingly removing mortgaged personal
property
2. Selling or pledging personal property
already pledged
Elements of Knowingly Removing Mortgaged
Personal Property (5)
1. That personal property is mortgaged under
the Chattel Mortgage Law;
2. That the offender knows that such property is
so mortgaged;
3. That he removes such mortgaged personal
property to any province or city other than the
one in which it was located at the time of the
execution of the mortgage;
4. That the removal is permanent; and
5. That there is no written consent of the
mortgagee or his executors, administrator or
assignees to such removal.
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CRIMINAL LAW
Notes:
1. The offender need not be the mortgagor; it
may be “any person”.
2. Purpose is to protect mortgagee who should
be able to have a ready access to, and easy
reach of, the property subject of mortgage.
3. Chattel mortgage must be registered.
4. Removal must be coupled with intent to
defraud.
5. Filing a civil action for collection instead for
foreclosure of chattel mortgage relieves the
accused of criminal responsibility
should inform the consent
of
the
purchaser that the mortgagee in writing
thing
sold
is
mortgaged
Consent of
mortgagee is
Consent of mortgagee
material; knowledge
is immaterial
as to encumbrance is
not
Purpose is to protect
Purpose is to protect
the mortgagee
the purchaser
Both involve the selling of mortgaged property
Elements of Selling or Pledging Personal
Property Already Pledged (3)
1. That personal property is already pledged
under the terms of the Chattel Mortgage Law;
2. That the offender, who is the mortgagor of
such property, sells or pledges the same or
any part thereof; and
3. That there is no consent of the mortgagee
written on the back of the mortgage and notes
on the record thereof in the office of the
register of deeds
Chapter 8: Arson and Other Crimes Involving
Destruction
Note:
Damage to mortgagee is not essential. If damage
accrues, it may give rise to estafa by means of
deceit.
Selling or pledging property already pledged
(Art. 319, para. 2) and Estafa by disposing of
encumbered property (Art. 316, para. 2),
Distinguished
SELLING OR
ESTAFA BY
PLEDGING
DISPOSING OF
PROPERTY
ENCUMBERED
ALREADY
PROPERTY
PLEDGED
Personal property is
involved (except if Real
property
is
house is subject to involved
chattel mortgage)
Committed by the Sufficient that the real
mere failure to obtain property mortgaged be
the consent of the sold as free, even
mortgagee in writing, though the vendor may
even if the offender have
obtained
the
Arson is the malicious destruction of property by
fire.
Three categories of the crime of Arson:
1. Destructive Arson (Art. 320, as amended by
R.A. 7659);
2. Simple Arson (Sec. 1, P.D. 1613); and
3. Other cases of arson (Sec. 3, P.D. 1613).
Punishable Acts/Persons Liable:
The penalty of reclusion perpetua to death shall
be imposed upon:
1. Any person who shall burn (7 acts)
a. One or more buildings or edifices,
consequent to one single act or
simultaneous acts of burning;
b. Building of public or private ownership
generally open to public or where people
usually gather or congregate for a
purpose, regardless of whether the
offender had knowledge that there are
persons present or whether building is
inhabited or not;
c. Train or locomotive, ship or vessel,
airship or airplane, for transportation or
conveyance, public use, leisure or
entertainment;
d. Building, factory, warehouse installation,
and any appurtenance thereto for service
of public utilities;
e. Any
building
to
conceal/destroy
incriminatory
evidence,
conceal
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bankruptcy, defraud creditors, or collect
from insurance;
f. Arsenal, shipyard, storehouse, or military
power or fireworks factory, ordinance,
archives or general museum of the
Government; and
g. Any factory/storehouse of inflammable or
explosive materials, in an uninhabited
place
2. Two (2) or more persons or a group of
persons who destroy property by fire
a. Irrespective of the abovementioned
qualifying circumstances, and
b. Regardless of whether the purpose is
merely to burn or destroy or as an overt
act to commit another violation of law
Three (3) stages
1. Attempted: Offender commences the
commission of the crime directly by overt acts
but he does not perform all acts of execution
(i.e., was not able to light fire) due to timely
intervention of another. It is not necessary
that there be a fire (e.g., placing rags soaked
in gasoline beside the wooden wall of building
sufficient).
2. Frustrated: Offender was able to light or set
fire to the item or building, but the fire was put
out before any part of it was burned
3. Consummated: Offender was able to light a
fire and to burn at least a part of building (e.g.,
charring of the wood whereby the fiber of the
wood is destroyed); EXCEPTION: when the
contents of a building were set on fire, no part
of the building need be burned in order that
there be consummated arson
Example: [LEONEN] In this case, no one saw
the offender actually set fire to the nipa hut.
Nevertheless, the prosecution has established
multiple circumstances, which, after being
considered in their entirety, support the
conclusion that petitioner is guilty beyond
reasonable doubt of simple arson.
First, the evidence was credible and sufficient to
prove that the offender stoned the victim’s house
and threatened to burn him.
CRIMINAL LAW
Second, the evidence was credible and sufficient
to prove that the offender returned a few hours
later and made his way to the victim’s nipa hut.
Third, the evidence was also credible and
sufficient to prove that the offender was in close
proximity to the nipa hut before it caught fire.
The stoning incident and the burning incident
cannot be taken and analyzed separately.
(Bacerra v. People,G.R. No. 204544)
Guidelines when death occurs on the
occasion of Arson (a special complex crime):
1. If the intent was to burn the building, but
death results on the occasion or by reason of
burning the building, ARSON is committed,
and the homicide is absorbed.
2. If there is intent to kill a particular person, and
he resorted to arson or fire as a means of
accomplishing the desired death of the victim
– only MURDER is committed. Art. 248
includes as a qualifying circumstance the use
of fire.
3. If the objective is to kill a particular person,
and in fact, the offender had killed the victim,
and fire is resorted to as a means to cover the
killing, there are two separate crimes
committed – MURDER and ARSON.
4. Under The Anti-Terrorism Act of 2020
(R.A. 11479), which expressly repealed the
Human Security Act, the crime of arson is no
longer expressly considered as “predicate
crimes”- specific crimes or acts which could
constitute terrorism as enumerated in Section
3 of R.A. 9372. However, the act of arson
may still amount to terrorism under the
broader formulation of terrorism under
Section 4 (b) and (c) of R.A. 11479 where
terrorism is committed by any person, who,
within or outside the Philippines, regardless
of the stage of execution, engages in acts
intended to cause “extensive damage or
destruction” to a government or public facility,
public place or private property or cause
extensive interference with, damage or
destruction to critical infrastructure when the
purpose of such act, by its nature and
context, to intimidate the general public or
segment thereof, create an atmosphere or
spread the message of fear, to provoke or
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influence by intimidation the government or
any international organization, or seriously
destabilize or destroy the fundamental
political, economic, or social structures of the
country, or create a public emergency or
seriously undermine public safety.
5. There is NO complex crime of Arson with
(Multiple) Homicide.
Destructive and Simple Arson, Distinguished
DESTRUCTIVE
SIMPLE ARSON
ARSON (ART. 320)
(PD 1613)
Contemplates
the
malicious burning of
Contemplates
the
public and private
malicious burning of
structures,
structures,
both
regardless of size,
public and private,
not in included in Art.
hotels,
buildings,
320. These include
edifices,
trains,
houses,
dwellings,
vessels,
aircraft,
government
factories and other
buildings,
farms,
military, government,
mills,
plantations,
or
commercial
railways,
bus
establishments
by
stations,
airports,
any person or group
wharves, and other
of persons
industrial
establishments
Please see SPL reviewer on:
1. P.D. 1613 Anti-Arson Law
2. P.D. 1613 Expressly Repealed or
Amended Arts. 320-326(B);
3. P.D. 1744 Then Revived Art. 320;
4. R.A. 7659 Amended The Provisions Of
Art. 320; The Provisions of P.D. 1613
Inconsistent with R.A. 7659 are Repealed.
Chapter 9: Malicious Mischief
Malicious Mischief is the willful damaging of
another’s property for the sake of causing
damage due to hate, revenge, or other evil
motive.
CRIMINAL LAW
Art. 327. Who Are Liable For Malicious
Mischief
Any person who shall deliberately cause the
property of another any damage not falling
within the terms of the next preceding chapter
Elements of Malicious Mischief: (3)
1. That the offender deliberately caused
damage to the property of another;
2. That such act does not constitute arson or
other crimes involving destruction; and
3. That the act of damaging another’s property
be committed merely for the sake of
damaging it.
Notes:
1. Third element presupposes hate, revenge, or
other evil motive of the offender or the mere
pleasure of destroying
2. Damage includes not only loss but also
diminution (e.g. defacing another’s house)
3. If there is no malice, as when damage
resulted from a crime or only incidental to the
commission of another crime, there is only
civil liability.
4. Intent to gain by removing or making use of
the fruits or objects of a property after it is
damaged makes it theft (Art 308 par. 2).
Art. 328. Special Cases of Malicious Mischief
Any person who shall cause damage to
obstruct the performance of public functions,
or use any poisonous or corrosive substance;
or spread any infection or contagion among
cattle; or who causes damage to the property
of the National Museum or National Library, or
to any archive or registry, waterworks, road,
promenade, or any other thing used in
common by the public
Qualified Malicious Mischief (3):
1. Causing damage to obstruct performance of
public functions;
2. Using any poisonous or corrosive substance;
3. Spreading any infection or contagion among
cattle; and
4. Causing damage to property of National
Museum or National Library, or to any archive
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or registry, waterworks, road, promenade, or
any other thing used in common by the
public.
Distinguished from Sedition
Although both involve the intent to obstruct the
performance of public functions, the element of
public and tumultuous uprising is not present in
Article 328.
Art. 329. Other Mischiefs
Mischiefs not included in Art. 328
Examples:
1. Scattering human excrement in public
building
2. Killing of cow as an act of revenge (value of
damage cannot be estimated)
3. A servant releasing a bird from cage as an act
of hate against its owner (value of the bird as
basis)
Art. 330. Damage and Obstruction to Means
of Communication
Any person who shall damage any railway,
telegraph or telephone lines (which, for the
purpose of Article 330, pertain to the electric
wires, traction cables, signal system and
other things pertaining to railways as
constituting an integral part of a railway
system)
Notes:
1. It is committed by damaging any railway (that
is, any component of its system), telegraph,
or telephone lines.
2. Telegraph or telephone lines must also
pertain to a railway system.
3. Any derailment of cars, collision, or other
accident which was a result of the damage
done shall be ground for the imposition of a
higher penalty. But such derailment must not
have been purposely sought by the offender.
4. The object is to merely cause damage, as
constructed
with
Crimes
involving
Destruction (Art. 324), where the object is to
cause destruction.
5. When persons are killed:
CRIMINAL LAW
a. If there is no intent to kill, it is the
complexed crime of damage to
means of communication with
homicide (in relation to Art. 48); and
b. If there is intent to kill, and damaging the
railways was used to accomplish the
criminal purpose, it is murder.
Art. 331. Destroying or Damaging Statues,
Public Monuments, or Paintings
Any person who shall destroy or damage
statues or any other useful or ornamental
public monument
Any person who shall destroy or damage any
useful or ornamental painting of a public
nature
Punishable Acts:
1. Destroy or Damage statues or any other
useful or ornamental public monument; and
2. Destroy or damage any useful or ornamental
painting of a public nature
Chapter 10: Exemptions from Criminal
Liability in Crimes against Property
Art. 332. Persons Exempt from Criminal
Liability
No criminal, but only civil, liability shall result
from the commission of the crime of theft,
swindling or malicious mischief committed or
caused mutually by the following persons:
1. Spouses, ascendants and descendants, or
relatives by affinity in the same line;
2. The widowed spouse with respect to the
property which belonged to the deceased
spouse before the same shall have passed
into the possession of another; and
3. Brothers and sisters and brothers-in-law
and sisters-in-law, if living together.
The exemption established by this article shall
not be applicable to strangers participating in
the commission of the crime
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Notes:
1. Crimes involved in the Exemption
a. Theft,
b. Swindling (estafa), and
c. Malicious mischief
2. Persons exempted from criminal liability
for such crimes when caused mutually by
them against each other
a. Spouses, ascendants and descendants,
or relatives by affinity in the same line
b. The widowed spouse with respect to the
property which belonged to the deceased
spouse before the same passed into the
possession of another
c. Brothers and sisters and brothers-in-law
and sisters-in-law, if living together at the
time of the commission of the crime
d. Stepfather/mother,
adopted
father/
mother, natural children, common-law
spouse, concubine, paramour included
Notes:
1. The article does not apply to strangers
participating in the commission of the crime.
2. There is only civil liability.
3. Does not apply to robbery or estafa through
falsification; hence, if a son committed estafa
through falsification of a commercial
document against his father, he is criminally
liable for the crime of falsification.
————— end of topic —————
J. CRIMES AGAINST CHASTITY
Chapter 1: Adultery and Concubinage
Art. 333. Who Are Guilty Of Adultery
Adultery is committed by any married women
who shall have sexual intercourse with a man
not her husband, and by the man who has
carnal knowledge of her, knowing her to be
married, even if the marriage be subsequently
declared void.
Elements: (3)
1. That the woman is married (even if marriage
is subsequently declared void);
CRIMINAL LAW
2. That she has sexual intercourse with a man
not her husband; and
3. That as regards the man with whom she has
sexual intercourse, he must know her to be
married
Persons Liable:
1. Married woman who engages in sexual
intercourse with a man not her husband; and
2. The man who, knowing of the marriage of the
woman, has sexual intercourse with her
Notes:
1. The gist of the crime of adultery is the danger
of introducing spurious heirs into the family.
2. Carnal knowledge may be proved by
circumstantial evidence.
3. Each sexual intercourse constitutes a
separate crime of adultery. It is not a
continuing offense. Any act of infidelity
subsequent to condonation constitutes a new
offense that is subject to criminal prosecution.
4. No crime of frustrated adultery
5. The offended party must be legally married to
the offender at the time of filing the complaint.
a. But even if the marriage is subsequently
declared void, there is still adultery when
the adulterous act is committed before
the marriage is judicially declared null
and void in a final judgment.
6. Acquittal of one defendant does not operate
as acquittal of the other:
a. There may not be a joint criminal intent
although there is a joint physical act.
b. One of the parties may be insane and the
other is sane.
c. The man may not know that the woman
is married.
d. The death of the woman during the
pendency of the action cannot defeat the
trial and convict the man. (U.S. v. De la
Torre and Gregorio, 25 Phil. 36)
e. Even if the man had left the country and
could not be apprehended, the woman
can be tried and convicted. (U.S. v.
Topiño and Guzman, 35 Phil. 901)
7. Death of the offended party will not terminate
the proceedings. However, if the offended
party dies before a complaint is filed, then the
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case cannot proceed because no one can
sign the complaint, adultery being a crime
which cannot be prosecuted de oficio.
Mitigating circumstances in Adultery
1. Adultery is mitigated if the adulterous wife
was abandoned without justification by his
spouse.
a. Both the wife and her paramour are
entitled to this mitigating circumstance.
(People v. Avelino, C.A., 40 O.G., Supp.
11, 194)
2. Sheer necessity, as when a woman was left
helpless by her husband (although justifiably,
for it was in response to a duty) and in such a
great need that she found herself in the
predicament of committing adultery for the
sake of her children, mitigates her liability.
(People v. Alberto, et al., C.A., 47 O.G. 2438)
Pardon by the offended party
1. Express/implied pardon by the offender’s
husband bars prosecution for adultery.
2. Sexual intercourse by the offended husband
with the offending spouse subsequent to the
adulterous conduct constitutes an implied
pardon.
Requirements for Pardon to be effective (Art.
344):
1. The pardon must come before the institution
of the criminal prosecution; and
2. Both offenders must be pardoned by the
offended party.
Consent is a cause for dismissal of complaint
1. Prior consent is as effective as subsequent
consent to bar the offended party from
prosecuting the offense.
2. When consent is given, whether express or
implied, the offended husband can no longer
institute the criminal complaint.
When is there consent?
1. When the husband does not interfere with his
wife’s adulterous relationship or has failed to
assert his rights
CRIMINAL LAW
2. When the spouses sign an agreement that
they may each get any mate and live as
husband and wife without any interference
Art. 334. Concubinage
Any husband who shall keep a mistress in the
conjugal dwelling, or shall have sexual
intercourse under scandalous circumstances
with a woman who is not his wife, or shall
cohabit with her in any other place
Elements: (3)
1. The man must be married (even if the
marriage may be subsequently declared
void);
2. He committed any of the following acts:
a. Keeping a mistress in the conjugal
dwelling,
b. Having
sexual
intercourse
under
scandalous circumstances with a woman
who is not his wife,
c. Cohabiting with her in any other place;
3. As regards the woman, she must know him to
be married.
Persons liable:
1. The married man; and
2. The woman who knew that the man was
married
Definition of terms:
1. Conjugal Dwelling means the home of the
husband and wife, even if the wife happens
to be temporarily absent on any account.
2. Scandal consists in any reprehensible word
or deed that offends public conscience,
redounds to the detriment of the feelings of
honest persons, and gives occasion to the
neighbors’ spiritual damage and ruin
3. Cohabit means to dwell together, in the
manner of husband and wife, for some period
of time, as distinguished from occasional,
transient interviews for unlawful intercourse
4. Mistress – It is necessary that the woman is
taken by the accused into the conjugal
dwelling as a concubine.
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Notes:
1. People in the vicinity are the best witnesses
to prove scandalous circumstances.
2. Adultery is more severely punished than
concubinage. Unlike adultery, concubinage is
a continuing crime.
Chapter 2: Rape and Acts of Lasciviousness
Art. 335. When and How Rape Is Committed
Note: Art. 335 has been repealed by R.A. No.
8353 (Anti-Rape Law of 1997)
Art. 336. Acts of Lasciviousness
Any person who shall commit any act of
lasciviousness upon other person of either
sex, under any of the circumstances
mentioned in rape
Elements:
1. That the offender commits any act of
lasciviousness or lewdness;
2. That the act of lasciviousness is committed
against a person of either sex; and
3. That it is done under any of the following
circumstances:
a. by using force or intimidation,
b. when the offended party is deprived of
reason or otherwise unconscious,
c. by means of fraudulent machination or
grave abuse of authority,
d. when the offended party is under 12
years of age or is demented.
Notes:
1. Lewd is defined as obscene, lustful, indecent
or lecherous. It signifies the form of
immorality which has relation to moral
impurity; or that which is carried on in a
wanton manner.
2. That an accused is entertaining a lewd or
unchaste design is necessarily a mental
process, the existence of which can be
inferred by overt acts carrying out such
intention. The presence or absence of lewd
designs is inferred from the nature of the acts
themselves
and
the
environmental
CRIMINAL LAW
circumstances. (People v Soria, GR No.
179031, November 14, 2012)
3. Definition of “Lascivious Conduct” (in
relation to R.A. 7610, Section 5) – A crime
committed through the intentional touching,
either directly or through the clothing, of the
genitalia, anus, groin, breast, inner thigh, or
buttocks with the intention to abuse,
humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person,
among others.
4. There is no attempted or frustrated crime of
acts of lasciviousness.
Acts of Lasciviousness and Unjust Vexation,
Distinguished
ACTS OF
UNJUST
LASCIVIOUSNESS
VEXATION
There is lewd design The element of lewd
which may be inferred design is not present.
from
the The
alleged
circumstances
lascivious act was a
surrounding
the mere incident of the
commission of the embrace or the act
crime, such as the was just committed
place, time, other merely to satisfy a
people’s
presence silly whim.
and
the
acts
complained of.
Acts of Lasciviousness and Attempted Rape,
Distinguished
ACTS OF
ATTEMPTED RAPE
LASCIVIOUSNESS
Offender’s lascivious Acts performed by
acts do not indicate offender
clearly
intent to have sexual indicate
that
his
intercourse.
purpose was to lie with
the offended party.
The lascivious acts The lascivious acts are
are the final objective but preparatory acts to
sought
by
the the commission of
offender.
rape.
Manner of commission is the same
The performance of acts of lascivious character
is common to both.
Offended party is a person of either sex.
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Acts of Lasciviousness and Grave Coercion,
Distinguished
ACTS OF
GRAVE COERCION
LASCIVIOUSNESS
Compulsion
is Compulsion is the
included
in
the very act constituting
constructive element the offense of grave
of force in the actual coercion.
act of lasciviousness.
Cases on Acts of Lasciviousness
1. In the absence of convincing proof that the
penis had slid into the female organ, rape
was not committed. Where the victim merely
stated that she was carried around the sala
with appellant's penis "touching" her vagina,
it would not be right to conclude that the act
of the penis "touching" the vagina was an
entry or penetration, even slightly, of the labia
majora or the labia minora of the pudendum.
The appellant is guilty of acts of
lasciviousness and not rape. (People v.
Palma, G.R. No. 148869-74, December 11,
2003)
2. The appellant’s act of directing Analyn to
remove her lower apparel constitutes an act
of lasciviousness under Article 336 of the
RPC, and not rape. (People v. Aquino, G.R.
No. 139181, October 27, 2003)
Crimes and Abuses against Chastity,
Distinguished
CRIME AGAINST
ABUSES
CHASTITY (ACTS
AGAINST
OF
CHASTITY (ART.
LASCIVIOUSNESS)
248)
The offender is, in a
majority of cases, a
private individual.
It is necessary that
some actual act of
lasciviousness should
have been executed
by the offender.
The offender is a
public officer.
A mere immoral or
indecent proposal
made earnestly and
persistently
is
sufficient.
CRIMINAL LAW
Chapter 3: Seduction, Corruption of Minors
and White Slave Trade
Seduction - Enticing a woman to unlawful sexual
intercourse by promise of marriage or other
means of persuasion without the use of force
Art. 337. Qualified Seduction
Seduction is committed when the offender has
carnal knowledge of any of the persons and
under the circumstances described below.
The seduction of a virgin over twelve years and
under eighteen years of age, committed by any
person in public authority, priest, home-servant,
domestic, guardian, teacher, or any person
who, in any capacity, shall be entrusted with the
education or custody of the woman seduced
Two classes of Qualified Seduction:
1. Seduction of a virgin over 12 and under 18
years of age by certain persons, such as a
person in authority, priest, teacher, etc.; and
2. Seduction of a sister by her brother, or
seduction of a descendant by her ascendant,
regardless of her age or reputation
(Incestuous Seduction)
Elements of Qualified Seduction of a Virgin
(VASA) (4)
1. That the offended party is a Virgin, which is
presumed if she is unmarried and of good
reputation;
2. That she must be over 12 and under 18
years of Age;
3. That the offender has Sexual intercourse with
her; and
4. That there is Abuse of authority, confidence
or relationship on the part of the offender
Persons liable:
1. Those who abused their authority:
a. Person in public authority
b. Guardian
c. Teacher
d. Person who, in any capacity, is entrusted
with the education or custody of the
woman seduced
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2. Those who abused confidence reposed in
them:
a. Priest
b. House servant
c. Domestic (any person living in the same
roof; may be temporary or permanent, as
long as in the same house.)
3. Those who abused their relationship:
a. Brother who seduced his sister
b. Ascendant who seduced his descendant
(The
relationship
must
be
by
consanguinity but need not be
legitimate.)
Notes:
1. Penalty for qualified seduction of a sister or
descendant is higher than qualified seduction
of a virgin.
2. Deceit is not an element of qualified
seduction but it is an element of simple
seduction.
3. In Abuse of Confidence, acts are punished
because of the character of the person
committing the same, on account of the
excess of power/authority or abuse of
confidence/relationship.
4. A virgin is a virtuous woman of good
reputation.
5. The offended party need not be a virgin in the
case of incestuous seduction.
6. An accused charged with rape cannot be
convicted of qualified seduction under the
same information.
7. If any of the circumstances in the crime of
rape is present, the crime is not to be
punished under Article 337 but under Art.
226-A or 226-B.
8. If there is no sexual intercourse, the crime
would only be acts of lasciviousness.
Art. 338. Simple Seduction
The seduction of a woman who is single or a
widow of good reputation, over twelve but
under eighteen years of age, committed by
means of deceit
Elements: (4)
1. That the offended party is over 12 and under
18 years of age;
CRIMINAL LAW
2. That she must be of good reputation, single
or a widow;
3. That the offender has sexual intercourse with
her; and
4. That it is committed by means of deceit
Notes:
1. Virginity of the victim is not required.
2. Deceit generally takes the form of an
unfulfilled promise to marry.
3. There is no continuing offense of seduction.
4. If there is no sexual intercourse, the crime
committed is only acts of lasciviousness.
5. The man may be willing and ready to marry
the girl, but simple seduction is still committed
when the man knows that the offended party
cannot legally consent to marriage because
of her minority.
The following do not constitute Deceit:
1. Promise of material things
2. Promise of marriage by a married man, whom
the victim knew to be married
3. Promise of marriage after sexual intercourse
Art. 339. Acts of Lasciviousness with the
Consent of the Offended Party
Any other acts of lasciviousness committed
by the same persons and under the same
circumstances as those provided in Articles
337 and 338
Elements:
1. That the offender commits acts of
lasciviousness or lewdness;
2. That the acts are committed upon a woman
who is a virgin or single or a widow of good
reputation, under 18 years of age but over 12
years, or a sister or descendant regardless of
her reputation or age; and
3. That the offender accomplishes the acts by
abuse of authority, confidence, relationship,
or deceit
Notes:
1. A male cannot be the offended party here.
2. It is necessary that the crime be committed
under circumstances which would make it
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qualified or simple seduction had there been
sexual intercourse.
3. Consent is obtained by abuse of authority,
confidence, or relationship, or by means of
deceit.
Acts of Lasciviousness with consent and
Acts of Lasciviousness under Art. 336,
Distinguished
ACTS OF
ACTS OF
LASCIVIOUSNESS
LASCIVIOUSNESS
WITH CONSENT OF
(ART. 336)
OFFENDED PARTY
(ART. 339)
Acts are committed Acts are committed
under circumstances under circumstances
which, had there been which, had there been
carnal
knowledge, carnal
knowledge,
would amount to would amount to rape
either qualified or
simple seduction
*There
may
be
consent, but there is
abuse of authority,
relationship,
confidence, or
deceit
Art. 340. Corruption of Minors
Any person who shall promote or facilitate the
prostitution or corruption of persons underage
to satisfy the lust of another
Please see SPL reviewer on R.A. 7610,
Particularly on Child Trafficking, Child
Prostitution and Persons Liable for
Committing Child Prostitution
Art. 341. White Slave Trade
Any person who, in any manner, or under any
pretext, shall engage in the business of, or
shall profit by, prostitution, or shall enlist the
services of any other person for the purpose
of prostitution
Acts Penalized:
1. Engaging in the business of prostitution;
2. Profiting by prostitution; and
3. Enlisting the service of women for the
purpose of prostitution
Notes:
1. One of those above-mentioned acts is
sufficient to constitute the offense.
2. Habituality is not a necessary element of this
crime.
3. Offender need not be owner of the house
used for prostitution and need not be present
there at time of the raid; it suffices that he
maintains or engages in the business carried
out there.
4. “Under any pretext” – if the real purpose is
prostitution, it does not matter if one engages
the services of a woman ostensibly as a
maid, for example.
Chapter 4: Abduction
Notes:
1. The act punishable is the promotion or
facilitating the prostitution or corruption of
persons underage (under 18) to satisfy the
lust of another.
2. A mere proposal will consummate the
offense. It is not necessary that the unchaste
acts shall have been done to the minor.
3. A single act without abuse of authority or
confidence is now a crime, pursuant to B.P.
Blg. 92.
4. Victim must be of good reputation, not a
prostitute or a corrupted person.
Abduction - The taking away of a woman from
her house or the place where she may be for the
purpose of carrying her to another place, with the
intent to marry or to corrupt her.
ART. 342. Forcible Abduction
Abduction of any woman against her will and
with lewd designs
Elements: (3)
1. That the person abducted is any woman,
regardless of her age, civil status, or
reputation;
2. That the abduction is against her will; and
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3.
That the abduction is with lewd designs
Notes:
1. If child-victim is under 12 years of age, the
crime is forcible abduction even if she
voluntarily goes with her abductor.
2. “Taking away” must be against the will of the
woman. This may be accomplished by means
of deceit first and then by means of violence
and intimidation.
3. Actual intercourse is not necessary. Lewd
designs may be shown by conduct of the
accused. Intent to seduce the girl is sufficient.
4. Lewd design is present in a hurried marriage
ceremony by force, where the marriage is
merely an artifice by which the accused
sought to escape the criminal consequences
of his acts.
5. The husband may not be held liable for the
abduction of his wife as lewd design is
wanting.
6. If there are several defendants, it is enough
that one of them had lewd designs and the
others knew about it.
7. Nature of crime: against liberty, honor and
reputation, and public order
8. There must be only one complex crime of
forcible abduction with (one) rape.
Subsequent rapes committed should be
considered independent of the abduction.
9. Conviction for acts of lasciviousness is not a
bar to conviction for forcible abduction.
Forcible Abduction v. Grave Coercion v.
Kidnapping
1. Presence of lewd design makes it forcible
abduction.
2. When there is no lewd design and no
deprivation of liberty, it is coercion.
3. There is kidnapping and serious illegal
detention if there was deprivation of liberty
with no lewd design.
4. If there was violent taking of the woman
motivated by lewd design and the victim was
raped, the crime committed is forcible
abduction with rape instead of kidnapping
with rape. Attempt to rape is absorbed in the
crime of forcible abduction.
Forcible Abduction and Corruption of Minors,
Distinguished
FORCIBLE
ABDUCTION
If the minor was
abducted
by
the
accused with lewd
design on his part
CORRUPTION OF
MINORS
If the purpose of
abduction is to lend
her
to
illicit
intercourse
with
others
Distinguished from rape
1. If there was abduction but the resistance of
the woman to the alleged rape was not
tenacious, the accused would be guilty only
of abduction.
2. Rape may absorb forcible abduction if the
main objective was to rape the victim.
Case on Forcible Abduction
The Court has previously ruled that if the victim's
consent was obtained through deceit and there
was therefore no valid consent, the crime is
forcible abduction, as the deceit may be
considered as constructive force. The second
element, lewd design, was established by the
actual rapes. (People v. Caraang, G.R. No.
148424- 27, December 11, 2003)
Forcible abduction with rape
[LEONEN] The facts show that after raping the
victim, the offender continued to detain her and
refused to release her. Thus, although the initial
abduction may have been absorbed by the crime
of rape, the continued detention after the rape
cannot be deemed absorbed in it. Likewise, since
the detention continued after the rape had been
completed, it cannot be deemed a necessary
means for the crime of rape. (People v.
Concepcion, G.R. No. 214886, April 4, 2018)
Age and Reputation of the victim are
immaterial in:
1. Rape;
2. Acts of lasciviousness against the will or
without the consent of the offended party;
3. Qualified seduction of sister or descendant;
and
4. Forcible Abduction
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Art. 343. Consented Abduction
Abduction of a virgin over twelve years and
under eighteen years of age, carried out with
her consent and with lewd designs
Elements: (4)
1. That the offended party must be a virgin (not
necessarily in a physical sense, since the
term includes virtuous women of good
reputation);
2. That she must be over 12 and under 18 years
of age;
3. That the taking away of the offended party
must be with her consent, after solicitation or
cajolery from the offender; and
4. That the taking away of the offended party
must be with lewd designs.
Notes:
1. If the virgin is under 12 years of age, the
crime committed is forcible abduction, even if
the girl consented to the elopement.
2. The abduction of the victim need not be with
some character of permanence.
3. The victim need not be taken from her house.
It is sufficient that the abductor was
instrumental to her escape.
4. There can be consented abduction with rape.
Chapter 5: Provisions Relative
Preceding Chapters of Title Eleven
to
Art. 344. Prosecution of the Crimes of
Adultery, Concubinage, Seduction,
Abduction, and Acts of Lasciviousness
1. Adultery and concubinage must be
prosecuted upon complaint signed by the
offended spouse.
2. Seduction, abduction, or acts of
lasciviousness must be prosecuted upon
complaint signed by:
i. offended party,
ii. her parents,
iii. grandparents, or
iv. legal guardians.
*In the order in which they are named
above.
the
Effect of Marriage
General Rule: Marriage in good faith of the
offender with the offended party extinguishes the
criminal action or remits the penalty already
imposed upon him. This applies as well to
accomplices and accessories-after-the-fact.
Exception: In case of rape, marriage
extinguishes the criminal action only as to the
principal but not as to the accomplices and
accessories. This rule also does not apply to
parties guilty of concubinage and adultery.
Notes:
1. Art. 344 was enacted “out of consideration for
the offended woman and her family who
might prefer to suffer the outrage in silence
rather than go through with the scandal of a
public trial.”
2. Rape is now a crime against persons, and
thus, may be prosecuted de oficio or upon
complaint of any person.
3. In adultery and concubinage, both offenders
must be included in the complaint, even if
only one is guilty.
4. When the offended party is of age and is in
complete possession of her mental and
physical faculties, she alone can file the
complaint (applies to crimes against chastity).
The complaint must be filed in court and not
with the prosecutor.
Pardon in Crimes against Chastity
1. Express or implied pardon by the offended
party is a bar to prosecution for adultery or
concubinage. However, pardon must extend
to both offenders and must come before the
institution of the criminal action.
2. Express pardon by the offended party or
other persons named in the law, as the case
may be, is a bar to prosecution for seduction,
abduction, rape or acts of lasciviousness.
Pardon in seduction must also come before
the institution of criminal action.
Pardon By Parents, Grandparents or
Guardian Must Be Accompanied by the
Express Pardon of the Girl Herself
Pardon must be granted directly by the offended
party and it is only when she is dead or otherwise
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incapacitated to grant it, that her parents,
grandparents or guardian may do so for her. (U.S.
v. Luna, 1 Phil. 360)
7. White slave trade
8. Forcible abduction
9. Consented abduction
Art. 345. Civil Liability of Persons Guilty of
Crimes against Chastity
Other instance when accomplice is punished
as principal:
Anyone who shall furnish the place for the
perpetration of slight illegal detention shall
receive the same penalty for the crime. (Reyes,
Book Two, p.998, Art. 268 par. 2)
Compare
Prosecution
For
Acts
Of
Lasciviousness Under Art. 336 of the RPC and
R.A. 7610, As Amended
Notes:
1. The adulterer and concubine in the case
provided for in Articles 333 and 334 may also
be sentenced, in the same proceeding or in a
separate civil proceeding, to indemnify for
damages caused to the offended spouse.
2. There is no civil liability for Acts of
Lasciviousness.
3. Moral damages may be awarded to the
offended party, and her parents, for
seduction, abduction, rape, other lascivious
acts (Art. 2219 Civil Code).
4. In multiple rapes by multiple offenders, all of
them must support offspring. No one may be
made to acknowledge his offspring.
5. The offender in a rape case who is married
is no longer prohibited from acknowledging
his offspring because, since the child is
illegitimate, the Family Code automatically
confers parental authority to the mother. He
can, however, only be sentenced to indemnify
the victim and support his offspring. The
amount and terms of support should be
determined only after due notice and hearing.
6. Only indemnity is allowed in rape of a
married woman. The defendant cannot be
sentenced to acknowledge and support the
offspring.
Art. 346. Liability of Ascendants, Guardians,
Teachers, or Other Persons Entrusted with
Custody of Offended Party
Provision is applicable to the following
crimes:
1. Rape
2. Acts of lasciviousness
3. Qualified seduction
4. Simple seduction
5. Acts of lasciviousness with consent of the
offended party
6. Corruption of minors
[LEONEN] If the acts constituting sexual assault
are committed against a victim under 12 years of
age or is demented, the nomenclature of the
offense should now be "Sexual Assault under
paragraph 2, Article 266-A of the RPC in relation
to Section 5 (b) of R.A. No. 7610" and no longer
'"Acts of Lasciviousness under Article 336 of the
RPC in relation to Section 5 (b) of R.A. No. 7610,"
because sexual assault as a form of acts of
lasciviousness is no longer covered by Article 336
but by Article 266-A (2) of the RPC, as amended
by R.A. No. 8353. Nevertheless, the imposable
penalty is still reclusion temporal in its medium
period, and not prision mayor. The penalty
imposed is likewise modified to reclusion
temporal in its medium period instead of prision
mayor as prescribed in Article 266-A, paragraph
2 of the Revised Penal Code. (People v.
Sumayod y Osano, G.R. No. 230626, March 9,
2020)
Jurisprudence:
1. The implementing rules elaborated on this
definition when it defined a “child” as one who
is below 18 years of age or over said age
who, upon evaluation of a qualified physician,
psychologist or psychiatrist, is found to be
incapable of taking care of herself fully
because of a physical or mental disability or
condition or of protecting herself from abuse.
(People v. Abello, G.R. No. 151952, March
25, 2009)
2. Under Section 5(b), Article III of R.A. 7610 in
relation to R.A. 8353, if the victim of sexual
abuse is below 12 years of age, the offender
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should not be prosecuted for sexual abuse
but for statutory rape under Art. 266-A(1)(d)
of the RPC and penalized with reclusion
perpetua. If the victim is 12 years or older, the
offender should be charged with either sexual
abuse under Section 5(b) of R.A. 7610 or
rape under Art. 266-A (except paragraph 1[d])
of the RPC. However, the offender cannot be
accused of both crimes for the same act
because his right against double jeopardy will
be prejudiced. Likewise, rape cannot be
complexed with a violation of Section 5(b) of
R.A. 7610. Under Section 48 of the RPC (on
complex crimes), a felony under the RPC
(such as rape) cannot be complexed with an
offense penalized by a special law. (People v.
Abay, G.R. No. 177752, February 24, 2009)
———— end of topic ————
Please see SPL reviewer on:
1. R.A. 9208, Anti-Trafficking in Persons Act
of 2003 Particularly Sec 4. Acts of
Trafficking in Persons, Sec 5. Acts that
Promote Trafficking in Persons And Sec
6. Qualified Trafficking in Persons
2. R.A. 9995, Anti-Photo and Video
Voyeurism Act 2009, Particularly,
Sections 3, 4, 6 & 7
3. R.A. 9262 Anti-Violence against Women
and their Children Act of 2004 Particularly
Psychological Violence Punishable Acts,
Sec 5(G)
4. R.A. 7610, As amended Special
Protection of Children against Child
Abuse, Exploitation and Discrimination
Act Particularly Sections 5, 6, 7 and 8.
K. CRIMES AGAINST CIVIL STATUS OF
PERSONS
Chapter 1: Simulation
Usurpation of Civil Status
of
Births
and
Art. 347. Simulation of Births, Substitution of
One Child for Another, and Concealment or
Abandonment of a Legitimate Child
Any person who shall conceal or abandon any
legitimate child with intent to cause such child
to lose its civil status, or conceal or abandon
any legitimate child, with intent to cause such
child to lose its civil status,
Any physician or surgeon or public officer who,
in violation of the duties of his profession or
office, shall cooperate in the execution of any
of the acts aforementioned
Punishable Acts: (SSC) (3)
1. Simulation of births,
2. Substitution of one child for another, or
3. Concealing or abandoning any legitimate
child with intent to cause such child to lose its
civil status.
Elements of Simulation of Births:
1. The child is baptized or registered in the
Registry of birth as the offender’s;
2. Thus, the child loses its real status and
acquires a new one; and
3. The offender’s purpose was to cause the loss
of any trace as to the child’s true filiation
Elements of Concealing or Abandoning any
legitimate child with the intent to cause such
child to lose its civil status:
1. The child must be legitimate, fully developed
and a living being;
2. The offender conceals or abandons such
child; and
3. The offender has the intent to cause the child
to lose its civil status
Notes:
1. In simulation, the person’s civil status must
be altered.
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2. Simulation involves a woman pretending to
be pregnant when in fact she is not. The
woman who simulates birth and the woman
who furnishes the child are both responsible
as principals.
3. The fact that the child will be benefited by the
simulation of birth is not a defense since it
creates a false status to the detriment of the
members of the family to which the child is
introduced.
4. A father who sells his child is not liable for
“abandonment” under this article. The
practice of abandoning newly-born infants
and very young children at the doors of
hospitals, churches, and other religious
institutions, which was formerly well known in
Spain, is what the act of “abandonment”
contemplates.
Abandoning a Legitimate Child and
Abandoning Minor under Art. 276,
Distinguished
ABANDONING A
ABANDONING A
CHILD (ART. 347)
MINOR (ART. 276)
The offender is any The offender must be
person.
one who has custody
of the child.
The purpose is to The purpose is to
cause the child to lose avoid the obligation
its civil status.
of rearing and caring
for the child.
Art. 348. Usurpation of Civil Status
Any person who shall usurp the civil status of
another, should he do so for the purpose of
defrauding the offended party or his heirs
Usurpation of civil status is committed by a
person who assumes the filiation, or the parental
or conjugal rights, of another.
Notes:
1. Criminal intent of the offender to enjoy the
civil rights of another/the individual
impersonated, knowing he is not entitled
thereto, is necessary to constitute this crime.
2. Qualifying Circumstance: purpose of the
impersonation is to defraud the offended
party or his heirs.
3. This article includes usurpation of profession.
4. It is absolutely necessary that there is intent
to enjoy the rights arising from the civil status
of the person impersonated.
Chapter 2: Illegal Marriages
Art. 349. Bigamy
Any person who shall contract a second or
subsequent marriage before the former
marriage has been legally dissolved, or
before the absent spouse has been declared
presumptively dead by means of a judgment
rendered in the proper proceedings
Elements: (4)
1. That the offender has been legally married;
2. That the marriage has not been legally
dissolved or, in case his or her spouse is
absent, the absent spouse could not yet be
presumed dead according to the Civil Code;
3. That he or she contracts a second or
subsequent marriage; and
4. That the second or subsequent marriage has
all the essential requisites for validity.
Notes:
1. The crime of bigamy does not fall within the
category of private crimes. Hence, it can be
prosecuted even without the initiative of the
offended party.
2. The fact that the first marriage is void from the
beginning is not a defense in a bigamy
charge. There is a need for judicial
declaration of the nullity of the first marriage.
Similarly, there must also be a summary
proceeding to declare the absent spouse
presumptively dead for purposes of
remarriage.
3. Even if the first marriage was subsequently
annulled, there is bigamy if the second
marriage took place during the existence of
the first marriage. In such a situation, the
validity of the first marriage is not a prejudicial
question to the liability of bigamy.
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4. The validity of the second marriage is a
prejudicial question to the liability for bigamy.
However, in Tenebro v CA, GR No. 150578,
February 18, 2004, the SC held that the
nullity of the second marriage is immaterial in
a prosecution for the crime of bigamy. “A plain
reading of [Art. 349] would indicate that the
provision penalizes the mere act of
contracting a second or subsequent marriage
during the subsistence of a valid marriage.
xxx [T]here is no cogent reason for
distinguishing between a subsequent
marriage that is null and void purely because
it is a second marriage, and a subsequent
marriage that is null and void on the ground
of psychological incapacity, at least insofar as
criminal liability for bigamy is concerned.” (A
dissenting opinion from Justice Carpio and
others points out that the majority opinion
unduly disregards the fourth element of
bigamy and jurisprudence thereon.)
5. One convicted for bigamy may be prosecuted
for concubinage, as they are distinct
offenses. However, the second spouse is not
necessarily liable for bigamy.
6. One who falsely vouches for the capacity to
marry of either of the contracting parties,
knowing that one of the parties is already
married, is an accomplice.
7. If the accused, in contracting the second
marriage, acting on the honest belief that he
was lawfully divorce from his first wife, he is
liable
for
bigamy
through
reckless
imprudence. ((Reyes, Book Two, p.1010,
citing People v. Schneckenburger, C.A., G. R.
No. 2457, August 31, 1938)
8. A pardon by the offended party does not
extinguish the criminal action, considering
that bigamy is a public offense which can be
denounced not only by the person affected
thereby but even by a civic-spirited citizen
who may come to know the same.
9. The false application for a marriage license
which the person guilty of bigamy swore to,
although felonious, should be considered
absorbed in the crime of bigamy since it is a
routine step in contracting any marriage.
10. The 15-year prescriptive period for the crime
of bigamy must be counted from the date of
CRIMINAL LAW
the discovery of the second marriage by the
offended spouse.
Effect of Divorce
1. Divorce granted by a foreign court has no
effect. Residence is not sufficient to confer
jurisdiction on the court of that state. This
applies to those domiciled in the Philippines
although
they
contracted
marriage
elsewhere.
2. Divorce obtained abroad by alien spouse
which capacitates him or her to remarry
shall likewise restore the Filipino
spouse’s capacity to remarry under
Philippine Law. (Art. 26[2], Family Code)
Burden of Proof in Bigamy
1. Once the prosecution has established that
the defendant was already married at the
time he contracted the second marriage, the
burden of proof to show the prior dissolution
of the first marriage is upon the defense.
2. When a person marries twice, the second
marriage is presumed valid and the former
one is presumed to have been dissolved by
death or divorce. But this presumption may
yield to circumstances.
Jurisprudence:
The mere private act of signing a marriage
contract bears no semblance to a valid marriage
and, thus, needs no judicial declaration of nullity.
Such act alone, without more, cannot be deemed
to constitute an ostensibly valid marriage for
which petitioner might be held liable for bigamy
unless he first secures a judicial declaration of its
nullity before he contracts a subsequent
marriage. (Morigo v. People, G.R. No. 145226,
February 06, 2004)
For the accused to be held guilty of bigamy, the
prosecution is burdened to prove the following:
(a) he/she has been legally married; and (b)
he/she contracts a subsequent marriage without
the former marriage having been lawfully
dissolved. The felony is consummated on the
celebration of the second or subsequent
marriage. It is essential in a prosecution for
bigamy that the alleged second marriage, having
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all the essential requirements, would be valid
were it not for the subsistence of the first
marriage. (Manuel v.People, G.R. No. 165842.
November 29, 2005)
[LEONEN] The second or subsequent marriage
contemplated under Article 349 of the RPC is a
marriage entered into under the law. It is essential
in the prosecution for bigamy that the alleged
second marriage, having all the essential
requirements, would be valid were it not for the
subsistence of the first marriage. Religious
marriages are recognized in and may be
governed by our laws only if they conform to legal
requirements. Religious marriages that lack legal
requirements are invalid. They are not considered
entered into under the law. X’s marriage was
conducted without the authority of a solemnizing
officer, making it void. Therefore, it cannot be
considered as the subsequent marriage
contemplated in the RPC. (Perfecto v. Esidera,
A.M. No. RTJ-15-2417 (Resolution), July 22,
2015)
[LEONEN] The law provides that a judicial
declaration of nullity is indispensable for the
purposes of remarriage. In the case of Teves v.
People, it was settled that a declaration of the
absolute nullity of a marriage is now explicitly
required either as a cause of action or a ground
for defense. Where the absolute nullity of a
previous marriage is sought to be invoked for
purposes of contracting a second marriage, the
sole basis acceptable in law for said projected
marriage to be free from legal infirmity is a final
judgment declaring the previous marriage void. X
cannot claim to have been in good faith in
assuming that there was no legal impediment for
him to remarry based merely on the National
Statistics Office's issuance of a Certificate of No
Marriage Record. Based on X and Y’s Marriage
Certificate, along with the photos of the wedding
ceremony, they were indeed married. (Jumaquio
v. People, GR 224742, August 7, 2019).
CRIMINAL LAW
Art. 350. Marriage Contracted against
Provisions of Laws
Any person who, without being included in the
provisions of the next proceeding article, shall
contract marriage knowing that the
requirements of the law have not been
complied with or that the marriage is in
disregard of a legal impediment
Elements: (2)
1. That the offender contracted marriage; and
2. That he knew at the time that:
a. Requirements of law were not complied
with, or
b. The marriage was in disregard of a legal
impediment.
Qualifying circumstance: if either of the
contracting parties obtains the consent of the
other by means of violence, intimidation or fraud.
Requirements of the Law for Valid Marriage:
(Arts. 2 and 3 of the Family Code)
1. Legal capacity of the contracting parties who
must be male and female;
2. Consent freely given in the presence of the
solemnizing officer;
3. Authority of the solemnizing officer;
4. A valid marriage license, except in marriages
of exceptional character; and
5. A marriage ceremony which takes place with
the appearance of the contracting parties
before the solemnizing officer and their
personal declaration that they take each
other as husband and wife in the presence of
not less than two witnesses of legal age
Notes:
1. Uncles and nieces cannot marry because
their relationship is a legal impediment.
(Reyes, Book Two, p.1018)
2. Conviction for violation of Art. 350 involves
moral turpitude. The convicted respondent is
thus disqualified from being admitted into the
Bar.
3. The offender must not be liable for bigamy.
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Art. 351. Premature Marriages
Note:
Art. 351 has been repealed by Republic Act. No.
10655, An Act Repealing the Crime of Premature
Marriages. (Reyes, Book Two, p.1019)
Persons liable:
1. A widow who married within 301 days from
the date of the death of her husband, or
before having delivered if she is pregnant at
the time of his death; and
2. A woman whose marriage having been
dissolved or annulled, married before her
delivery or before the expiration of the period
of 301 days after the date of the legal
separation
Notes:
1. Period may be disregarded if the first
husband was impotent or sterile or if the
woman was pregnant before the death of the
first husband and gave birth within the said
period
2. The period of 301 days is important only in
cases where the woman is not pregnant, or
does not know that she is pregnant at the
time she becomes a widow. If she is pregnant
at such time, the prohibition is good only up
to delivery.
Purpose of the law
Since the purpose of punishing the foregoing acts
is to prevent cases of doubtful paternity, the
woman will not be liable thereunder if: (a) she has
already delivered; and (b) she has conclusive
proof that she was not pregnant by her first
spouse since he was permanently sterile. (People
v. Masinsin, C.A., 49 O.G. 390)
Art. 352. Performance of Illegal Marriage
Ceremony
Priests or ministers of any religious
denomination or sect, or civil authorities who
shall perform or authorize any illegal marriage
ceremony
Punishable Act
Performance or authorization, by a priest or
minister of any religious denomination or sect or
by civil authorities, of any illegal marriage
ceremony
Exception
A clergyman who performed a marriage
ceremony without knowledge of the minority age
of one of the parties, is not liable.
Note:
The offender must be authorized to solemnize
marriages.
———— end of topic ————
L. CRIMES AGAINST HONOR
Chapter 1: Libel
Section 1. – Definition,
Punishment of this Crime
Forms,
and
Art. 353. Definition of Libel/Defamation
Libel - Public and malicious imputation of a
crime, or a vice or defect, real or imaginary, or
any act, omission, condition, status or
circumstance tending to cause the dishonor,
discredit or contempt of a natural or juridical
person, or to blacken the memory of one who
is dead. It must be committed through any of
the acts enumerated in Art. 355.
Defamation may be libel or slander. Defamation
is the proper term for libel as used in Art. 353.
Elements:
1. That there must be an imputation of a crime,
or of a vice or defect, real or imaginary, or any
act, omission, condition, status, or
circumstance (defamatory imputation);
2. That the imputation must be made publicly;
3. That it must be malicious;
4. That it must be directed at a natural or
juridical person, or one who is dead; and
5. That it must tend to cause the dishonor,
discredit or contempt of the person defamed
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Publication is the communication of the
defamatory matter to some third person/s (not to
the offended party or not just to him/her).
Kinds of Malice
1. Malice in Law is presumed from a defamatory
imputation. Proof of malice is not required;
malice may be taken for granted as attending
the imputation in view of the grossness of the
imputation.
2. Malice in Fact is actual malice or ill-will, which
must be proved. It may be shown by proof of
ill-will, hatred or purpose to injure.
When does Malice in Fact apply?
Malice in fact must be proved whenever the
defamatory imputation appears in a privileged
communication.
When does the presumption of Malice in law
disappear?
Upon proof established of good intention and
justifiable motive
Notes:
1. There is no distinction between calumny,
insult and libel. All kinds of attack against
honor and reputation are punished by the
RPC provisions on defamation.
2. Malice is presumed to exist in injurious
publications.
3. Defamatory remarks directed at a group of
persons are not actionable unless the
statements are all-embracing or sufficiently
specific for each victim to be identifiable.
4. The meaning of the writer is immaterial in
determining defamation.
5. In libel, the false accusation need not be
made under oath. It is perjury which requires
that the false accusation is made under oath.
6. Seditious libel is punished under Article 142.
7. Imputation of criminal intention is not libelous.
8. There are as many counts of libel as there are
persons defamed.
CRIMINAL LAW
the description of the person referred to in the
defamatory publication was sufficiently clear so
that at least a third person would have identified
the offended party.
Presumption of Publication
To presume publication, there must be a
reasonable probability that the alleged libelous
matter was thereby exposed to be read or seen
by third persons.
Criteria to determine whether statements are
defamatory:
1. In determining whether a statement is
defamatory, the words used are construed in
their entirety and taken in their plain, natural
and ordinary meaning as they would naturally
be understood by persons reading them,
unless it appears that they were used and
understood in another sense. (Novicio v.
Aggabao, G.R. No. 141332, December 11,
2003)
2. Whether the words used are calculated to
induce the readers to suppose and
understand that the person against whom
they are uttered were guilty of certain
offenses, or are sufficient to impeach their
honesty, virtue or reputation, or to hold the
person up to public ridicule. (U.S. v.
O’Connell, 37 Phil.767) and
3. Words are construed not only as to the
expression used but also with respect to the
whole scope and apparent object of the
writer. (People v. Encarnacion, C.A., 48 O.G.
1817)
Any imputation will be sufficient if it tends to
cause:
1. Dishonor – disgrace, shame or ignominy
2. Discredit – loss of credit or reputation;
disesteem
3. Contempt – state of being despised
4. Blackening of the memory of the dead
Art. 354. Requirement for Publicity
Generally, the person libeled must be
identified.
But the publication need not refer by name to the
libeled party. If not named, it must be shown that
Kinds of Privileged Communication:
1. Absolutely Privileged – not actionable even if
the actor has acted in bad faith; and
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2. Qualifiedly Privileged – those which, although
containing defamatory imputations, are not
actionable unless made with malice or bad
faith
General rule: Every defamatory imputation is
presumed malicious, even if it be true, if no good
intention and justifiable motive for making it is
shown.
However, the presumption of malice is rebutted if
it is shown by the accused that:
1. The defamatory imputation is true, in case the
law allows proof of the truth of the imputation;
2. It is published with good intention; and
3. There is justifiable motive for making it.
Exceptions to the foregoing general rule (that
is, when malice is not presumed from a
defamatory imputation):
1.
Private communication in performance of
any legal, moral or social duty
Requisites:
a. That
the
person
who
made
the
communication had a legal, moral or social
duty to make the communication or at least
an interest to be upheld; legal duty
presupposes a provision of law conferring
upon the accused the duty to communicate;
b. That the communication is addressed to an
officer or a board, or superior, having some
interest or duty on the matter; and
c. That the statements in the communication
are made in good faith without malice in fact
The defense of privileged communication will be
rejected if it shown by the prosecution or the
plaintiff:
a. That the defendant acted with malice in fact,
or
b. That there is no reasonable ground for
believing the charge to be true
2.
Fair and true report of official
proceedings, made in good faith, without
any comments and remarks
CRIMINAL LAW
Requisites:
a. That the publication of a report of an official
proceeding is a fair and true report of judicial,
legislative, or other official proceedings which
are not of confidential nature, or of a
statement, report, or speech delivered in said
proceedings, or of any other act performed by
a public officer in the exercise of his
functions;
b. That it is made in good faith; and
c. That it is made without any comments or
remarks
Doctrine of Fair Comment
Fair commentaries on matters of public interest
are also qualifiedly privileged and constitute a
valid defense in an action for libel or slander.
Malice in fact is the intention to injure the
reputation of the offended party, which may be
spawned by rivalry, grudges or ill-feeling existing
at the date of publication and motivated by hate
and revenge, .
Malice in fact may be proved or shown by:
1. Extrinsic evidence that the defendant bore a
grudge against the offended party; or
2. That there was rivalry or ill-feeling between
them which existed at the date of the
publication of the defamatory imputation; or
3. That the defendant had an intention to injure
the reputation of the offended party as shown
by the words used and the circumstances
attending the publication of the defamatory
imputation
Notes:
1. Prosecution must prove malice in fact to
convict the accused in case of qualified
privileged communication.
2. Absolutely privileged communications are not
actionable even if done in bad faith. This
covers statements made by members of
Congress in discharge of functions, and
judicial proceedings when pertinent and
relevant to subject of inquiry.
3. Unnecessary publicity destroys good faith.
Defense of privileged communication in
paragraph 1 of Art. 354 will be rejected if it is
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4.
5.
6.
7.
8.
shown that the accused acted with malice
and there is no reasonable ground for
believing the charge to be true.
Privileged Communication may be found in a
public document.
That the statement is a privileged
communication is a matter of defense.
Statements made in self defense or in mutual
controversy are often privileged. The person
libeled is justified to hit back with another
libel. However, retaliation and vindictiveness
cannot be the basis of self-defense in
defamation. Self-defense must be on matters
related to the specific defamatory imputations
cast upon the person invoking the defense.
Defamatory remarks and comments on the
conduct or acts of public officers which are
related to the discharge of their official duties
will not constitute libel if defendant proves the
truth of imputation. However, any attack upon
private character on matters not related to the
discharge of official duties may be libelous.
Similarly, the mental, moral and physical
fitness of a candidate for public office may be
subject to criticism. Criticism deals only with
such things as shall invite public attention or
call for public comment. It does not follow a
public man into his private life and domestic
concerns. (Reyes, Book Two, p.1051)
Jurisprudence
A public figure has been defined as a person who,
by his accomplishments, fame, or mode of living,
or by adopting a profession or calling which gives
the public a legitimate interest in his doings, his
affairs, and his character, has become a 'public
personage.' He is, in other words, a celebrity.
Obviously to be included in this category are
those who have achieved some degree of
reputation by appearing before the public, as in
the case of an actor, a professional baseball
player, a pugilist, or any other entertainer. The list
is, however, broader than this. It includes public
officers, famous inventors and explorers, war
heroes and even ordinary soldiers, an infant
prodigy, and no less a personage than the Grand
Exalted Ruler of a lodge. It includes, in short,
anyone who has arrived at a position where public
attention is focused upon him as a person.
CRIMINAL LAW
(Guingguing v. CA, G.R. No. 128959, September
30, 2005)
Art. 355. Libel by Means of Writings or
Similar Means
The means by which libel may be
committed are by:
1. writing;
2. printing;
3. lithography;
4. engraving;
5. radio;
6. phonograph;
7. painting;
8. theatrical exhibitions;
9. cinematographic exhibitions; or
10. any similar means.
Notes:
1. The law provides “or any similar means”,
which easily qualifies television as such a
species or category. Defamation made in a
television program is libel. Also included are
pictures.
2. Defamation through an amplifier is not libel,
but oral defamation (slander).
3. The penalty prescribed is in addition to civil
liability.
4. Libel may be absorbed in the crime of threats
if the intent to threaten is the principal aim
and object.
Jurisprudence:
[LEONEN]
Whether emailing is sufficiently
“public” as required by Articles 353 and 355 of the
RPC and the Anti-Cybercrime Law, is a matter of
defense that should be properly raised during
trial. While grievances, channeled through proper
public authorities, has a degree of protected
freedom of speech, the scope and extent of that
protection cannot be grounded in abstractions.
The facts of the case need to be proven by
evidence. (Dio v. People, G.R. No. 208146, June
8, 2016.)
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Art. 356. Threatening to Publish Libel and
Offer to Prevent such Publication for a
Compensation
Any person who threatens another to publish
a libel concerning him or the parents, spouse,
child, or other member of the family of the
latter, or anyone who shall offer to prevent the
publication of such libel for a compensation or
money consideration
Punishable acts:
1. By threatening another to publish a libel
concerning him, or his parents, spouse, child,
or other members of his family; or
2. By offering to prevent the publication of
such libel for compensation, or money
consideration
Blackmail is any unlawful extortion of money by
threats of accusation or exposure. It is possible to
charge such acts in the crimes of light threats (Art.
283) and in threatening to publish libel (Art. 356).
Art. 357. Prohibited Publication of Acts
Referred to in the Course of Official
Proceedings
Any reporter, editor or manager of a
newspaper, daily or magazine, who shall
publish facts connected with the private life of
another and offensive to the honor, virtue and
reputation of said person, even though said
publication be 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
Elements: (3)
1. That the offender is a reporter, editor or
manager of a newspaper, daily or magazine;
2. That he publishes facts connected with the
private life of another; and
3. That such facts are offensive to the honor,
virtue and reputation of said person.
Notes:
1. The prohibition to publish such facts applies
even if such publication is made in
CRIMINAL LAW
connection with or under the pretext that it is
necessary in the narration of any judicial or
administrative proceedings in which such
facts have been mentioned.
2. Art. 357 constitutes the “Gag Law” which bars
from publication news reports on cases
pertaining to adultery, divorce, issues about
the legitimacy of children, etc.
3. The identities of individuals who are sources
of news report may not be revealed unless
the courts or Congress hold that such
revelation is demanded by the security of the
State.
Art. 358. Slander/ Oral Defamation
Kinds of Oral Defamation:
1. Grave Slander - defamation is of a serious
and insulting nature; and
2. Simple Slander - light insult or defamation
Factors that determine gravity of the offense:
1. expressions used;
2. personal relations of the accused and the
offended party;
3. circumstances surrounding the case; and
4. social standing and position of the victim
Notes:
1. Words uttered in the heat of anger constitute
light oral defamation.
2. If the utterances were made publicly and
were heard by many people and the accused
at the same time pointed his finger at the
complainant, oral defamation is committed.
3. The slander need not be heard by the
offended party.
4. Uttering defamatory words in the heat of
anger, with some provocation on the part of
the offended party, constitutes only a light
felony. (Villanueva v. People, G.R. No.
160351, April 10, 2006)
Art. 359. Slander by Deed
Any person who shall perform any act not
included and punished in this title, which shall
cast dishonor, discredit or contempt upon
another person
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Elements: (3)
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/s; and
3. That such act casts dishonor, discredit or
contempt upon the offended party/ies
Notes:
1. Slander may either be simple or grave,
depending upon the nature of the deed.
2. Pointing a dirty finger constitutes simple
slander by deed, it appearing from the factual
milieu of the case that the act complained of
was employed "to express anger or
displeasure" at complainant. While it may
have cast dishonor, discredit or contempt
upon complainant, said act is not of a serious
nature.
3. Cursing, however, has been held not
constitutive of slander by deed, though
depending
on
the
environmental
circumstances when uttered.
Seriousness of slander by deed depends on:
1. The social standing of offended party;
2. The circumstances surrounding the act; and
3. The occasion
Distinctions:
1. Unjust Vexation – causative of irritation or
annoyance without justification
2. Slander By Deed – with irritation or
annoyance AND attendant publicity and
dishonor or contempt
3. Acts of Lasciviousness – with irritation or
annoyance AND any of the three
circumstances provided in Art. 266-A on rape
(i.e. use of force, threat or intimidation;
deprivation of reason or rendering the
offended unconscious; use of fraudulent
machination or grave abuse of authority; or if
offended party was under 12 years old),
together with lewd designs
CRIMINAL LAW
Section 2. General Provisions
Art. 360. Persons Responsible for Libel
1. The person who publishes, exhibits or
causes the publication or exhibition of any
defamation in writing or similar means;
2. The author or editor of a book or
pamphlet;
3. The editor or business manager of a daily
newspaper
magazine
or
serial
publication; and
4. The owner of the printing plant which
publishes a libelous article with his
consent, and all other persons who, in
any way, participate in or have connection
with its publication
Venue of criminal and civil action for damages
in cases of written defamation (provides for
exclusive jurisdiction):
1. Where the libelous article is printed and first
published, or
2. Where any of the offended parties actually
resides at the time of the commission of the
offense, or
3. Where one of the offended parties is a public
officer:
a. if his office is in the City of Manila, with
the RTC of Manila; otherwise, with the
RTC of the city/province where he held
office at the time of offense;
b. or the city/province where the article was
first published;
4. Where one of the offended parties is a private
individual, with the RTC of province/city
where he actually resides at the time of the
crime or where the article was printed or first
published
Guidelines in the observance of a rule of
preference in the imposition of penalties in
Libel Cases (Administrative Circular No. 082008)
1. This Administrative Circular does not remove
imprisonment as an alternative penalty for the
crime of libel under Article 355 of the Revised
Penal Code.
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2. The Judges concerned may, in the exercise
of sound discretion, and taking into
consideration the peculiar circumstances of
each case, determine whether the imposition
of a fine alone would best serve the interests
of justice or whether forbearing to impose
imprisonment
would
depreciate
the
seriousness of the offense, work violence on
the social order, of otherwise be contrary to
the imperative of justice.
3. Should only a fine be imposed and the
accused be unable to pay the fine, there is no
legal obstacle to the application of the
Revised Penal Code provision on subsidiary
imprisonment.
Notes:
1. A complaint for defamation imputing a private
crime (i.e. adultery, concubinage, seduction,
abduction, and acts of lasciviousness) must
be filed by the offended party.
2. If the libel imputes a vice or defect and not a
crime, it is always prosecuted upon
information signed and filed by the fiscal.
3. The person who publishes a libelous letter
written by the offended party is liable
(publishing, not composing, is the prime
requisite of the crime).
4. The liability of the editor is the same as that
of the author.
5. Limitations of venue: aimed at minimizing
interference with public functions when the
case involves a public officer, and avoiding
unnecessary harassment of the accused by
limiting out-of-town libel suits.
6. Exemplary damages may be awarded if
actions are based on quasi-delict.
7. Civil and criminal actions must be filed in the
same court.
8. No remedies - civil or criminal - for damages
for slander or libel in case of absolutely
privileged communication.
Art. 361. Proof of the Truth
In every criminal prosecution for libel, the truth
may be given in evidence to the court, and if it
appears that the matter charged as libelous is
true, and, moreover, that it was published with
CRIMINAL LAW
good motives and for justifiable ends, the
defendants shall be acquitted.
Proof of the truth of an imputation of an act or
omission not constituting a crime shall not be
admitted, unless the imputation shall have been
made against Government employees with
respect to facts related to the discharge of their
official duties.
In such cases if the defendant proves the truth
of the imputation made by him, he shall be
acquitted.
Proof of Truth is Admissible when:
1. The act or omission imputed constitutes a
crime, regardless of whether the offended
party is a private individual or a public officer,
or
2. The offended party is a government
employee, even if the act or omission
imputed does not constitute a crime,
provided, it is related to the discharge of his
official duties.
Requisites for acquittal from a Libel charge:
1. It appears that the matter charged as libelous
is TRUE (for situations 1 and 2 above); and
2. It was published with good motives and for a
justifiable end. (for situation 1 only).
Notes:
1. The proof of the truth of the accusation
cannot be made to rest upon mere hearsay,
rumors, or suspicion but upon positive, direct
evidence upon which a definite finding may
be made by the court.
2. An imputation that a person has a contagious
disease might, under ordinary circumstances
be defamatory but loses such character when
made with good intention and justifiable
motive.
3. There is no libel when there is no malice.
4. Retraction may mitigate the damages. If the
article is libelous per se, publication due to
honest mistake is only mitigating.
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Art. 362. Libelous Remarks
Libelous remarks or comments connected
with the matter privileged under the provisions
of Article 354, if made with malice, shall not
exempt the author thereof nor the editor or
managing editor of a newspaper from criminal
liability.
Notes:
1. Libelous remarks or comments on privileged
matters (under Art. 354), if made with malice
in fact, will not exempt the author and editor.
2. This article is a limitation to the defense of
privileged communication. Even if a matter is
privileged, if malice in fact was proved, the
author and editor are liable.
3. The author and editor of publications who
distort,
mutilate
or
discolor
official
proceedings reported by them, or add
comments thereon to cast aspersion on the
characters of parties concerned, are guilty of
libel.
Chapter 2: Incriminatory Machinations
Art. 363. Incriminating Innocent Person
Any person who, by an act not constituting
perjury, shall directly incriminate or impute to
an innocent person the commission of a crime
Elements: (3)
1. That the offender performs an act;
2. That by such act he directly incriminates or
imputes to an innocent person the
commission of a crime; and
3. That such act does not constitute perjury.
Two kinds of incrimination of an innocent
person:
1. Making a statement which constitutes:
a. defamation, or
b. perjury (if made under oath and is false);
and
2. Planting evidence.
CRIMINAL LAW
Notes:
1. Art. 363 is limited to planting evidence and
the like, which tend directly to cause false
prosecution.
2. Those
who
resort
to
incriminatory
machinations do not avail themselves of
written or spoken words, unlike in
defamation.
3. There is a complex crime of incriminating an
innocent person through unlawful arrest.
4. The perpetrators of the tanim bala scheme in
airports are liable for violating both Article 363
of RPC and Section 38 of RA 10591
(Comprehensive Firearms and Ammunition
Regulation Act). See also Section 29 of RA
9165 (Comprehensive Dangerous Drugs Act
of 2002)
Incriminating an Innocent Person and
Perjury, Distinguished
INCRIMINATING
PERJURY BY MAKING
AN INNOCENT
FALSE ACCUSATION
PERSON
Performs act to Incriminates/imputates
directly incriminate the crime falsely directly
someone
to/before an officer
for/impute
to
someone,
the
commission
of
crime
Acts are such as Acts consist of making
consist of planting false
statements
or
evidence and the affidavits under oath
like
Penalty is Arresto Penalty is Arresto Mayor
Mayor
maximum to Prision
Correccional minimum
period
Art. 364. Intriguing against Honor
Making any intrigue which has, for its principal
purpose, blemishing the honor or reputation
of a person
How committed:
This felony is committed by any person who shall
make any intrigue with the principal purpose of
blemishing the honor or reputation of another
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person. It is committed by saying to others an
unattributable thing, which, if it said to the person
himself, amounts to slander.
Notes:
1. Must be committed by means of some
trickery and secret plot, and not through
gossiping, which falls under defamation.
2. Where the source or author of derogatory
information cannot be determined and
defendant passes it to others, defendant’s act
is one of intriguing against honor. If it came
from a definite source, slander is committed.
Intriguing against honor and Incriminating an
Innocent Person, Distinguished
INCRIMINATING AN
INTRIGUING
INNOCENT
AGAINST HONOR
PERSON
The offender resorts The
offender
to an intrigue for the performs an act by
purpose
of which he directly
blemishing the honor incriminates
or
or
reputation
of imputes
to
an
another person.
innocent person the
commission of a
crime.
Intriguing against honor and Slander,
Distinguished
INTRIGUING
SLANDER
AGAINST HONOR
The source or author The
source
of
of the derogatory information can be
information cannot be pinpointed
and
determined and the definitely determined
defendant
borrows and the defendant,
the same and, without adopting as his own
subscribing to the the information he
truth thereof, passes has obtained, passes
it to others.
the same to another
for the purpose of
causing dishonor to
complainant’s
reputation.
CRIMINAL LAW
M. QUASI-OFFENSES
Art. 365. Imprudence and Negligence
Reckless
Imprudence:
Anyone
who
voluntarily, but without malice, does or fails to
do an act from which material damage results
by reason of inexcusable lack of precaution
Simple Imprudence or Negligence: Anyone
who voluntarily, but without malice, does or fails
to do an act from which material damage
results by reason of lack of precaution
displayed in cases in which the impending
damage caused is not immediate and the
danger is clearly manifest
Ways of committing Quasi-offenses
1. By committing, through reckless imprudence,
any act which, had it been intentional, would
constitute a grave or less grave felony or light
felony;
2. By committing, through simple imprudence or
negligence, an act which would otherwise
constitute a grave or a less serious felony;
3. By causing damage to the property of another
through reckless imprudence or simple
imprudence or negligence; or
4. By causing, through simple imprudence or
negligence, some wrong which, if done
maliciously, would have constituted a light
felony
Elements of Reckless Imprudence
1. That the offender does or fails to do an act;
2. That the doing of or the failure to do that act
is voluntary;
3. That it is without malice;
4. That material damage results;
5. That there is inexcusable lack of precaution
on the part of the offender, taking into
consideration: (1) his employment or
occupation, (2) his degree of intelligence and
physical
condition,
and
(3)
other
circumstances regarding persons, time and
place
———— end of topic ————
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Elements
of
Simple
Imprudence
or
Negligence
1. That there is lack of precaution on the part of
the offender; and
2. That the damage impending to be caused is
not immediate or the danger is not clearly
manifest
Notes:
1. Imprudence is deficiency of action, while
Negligence is deficiency of perception
2. Imprudence or Negligence is not a crime in
itself, but simply a way of committing a crime.
However, in Ivler v Modesto-San Pedro, G.R.
No. 172716, November 17, 2010, the SC
declared that quasi-offenses are distinct
species of crimes.
3. Art. 64 of the RPC on mitigating and
aggravating circumstances is not applicable
in quasi- offenses.
4. In the technical term “Reckless Imprudence
resulting in Homicide”, what is punished is not
the act itself but the mental attitude or
condition behind the act.
5. Negligence is a quasi-offense. What is
punished is not the effect of the negligence
but the recklessness of the accused.
6. Contributory negligence of the offended party
is not an absolute defense but only mitigates
criminal liability.
7. Violation of a rule or regulation or law is proof
of negligence.
8. There is no criminal liability for death or
injuries to trespassers (e.g. stow-aways)
caused by recklessly negligent acts where
the defendant is not aware of their presence.
Qualifying Circumstance in Quasi-Offenses
The offender’s failure to lend on-the-spot
assistance to the victim of his negligence or
abandoning one’s victim is usually punishable
under Art. 275. However, if the act is charged
under Art. 365, it is only a qualifying
circumstance. If not alleged at all, it cannot even
be considered as an aggravating circumstance.
Test of Negligence
Did the defendant, in doing the alleged negligent
act, use the reasonable care and caution which
CRIMINAL LAW
an ordinary prudent person would have used in
the same situation? If not, then he is guilty of
negligence.
Reckless Imprudence and Force Majeure.
Distinguished
RECKLESS
FORCE MAJEURE
IMPRUDENCE
The
immediate Pertains to events
personal harm or which could not be
damage to property is foreseen, or which,
perceivable and can though
foreseen,
be prevented by the were inevitable. It
exercise
of implies
an
reasonable care. The extraordinary
want of reasonable circumstance which
care to prevent harm is independent of the
or
damage will of the actor.
constitutes reckless
imprudence.
Last Clear Chance Rule
The contributory negligence of the injured party
will not defeat the action if it is shown that the
accused might, by the exercise of reasonable
care and prudence, have avoided the
consequences of the negligence of the injured
party.
Doctrine of Pre-Emption in Vehicle Collisions
Although the driver of a motor vehicle crossing a
thru-street is supposed to wait along the
intersection for the driver of another vehicle
running along said thru- street, if the driver
crossing the street had already reached the
middle thereof, the other driver travelling along
the thru-street, although with a right of preemption, has the duty to stop his motor vehicle to
avoid a collision.
Emergency Rule
A person confronted with an emergency may be
left with no time for thought and must make a
speedy decision based on impulse or instinct, and
cannot be held liable for the same conduct as one
who had the opportunity to reflect. This is
applicable only when the situation that arises is
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CRIMINAL LAW
sudden, unexpected, and is such as to deprive
him of all opportunity for deliberation.
Ex. An automobile driver, who, by the negligence
of another, is suddenly placed in an emergency
and is compelled to act instantly to avoid a
collision or injury, is not guilty of negligence if he
makes a choice which a person of ordinary
prudence placed in such a position might make,
even though he did not make the wisest choice.
Note:
The Emergency Rule cannot be applied to
exempt him from liability, if there is proof of
negligence on his part. (Reyes, Book Two,
p.1110)
———— end of topic ————
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SPECIAL PENAL
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Criminal Law
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III. SPECIAL PENAL LAWS
A.
NEW ANTI-CARNAPPING ACT OF 2016
I. Elements
TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
A. NEW ANTI-CARNAPPING ACT OF 2016
(RA 10883)
1. Elements
2. Punishable acts; Penalty
3. Aggravating circumstances resulting to
denial of bail
4. Other relevant rules
Elements of carnapping
1. Taking, with intent to gain;
2. A motor vehicle belonging to another;
3. Without the latter’s consent;
4. By means of violence against or intimidation
of persons; or by using force upon things.
(Sec. 3)
Definition of motor vehicle
It refers to any vehicle propelled by any power
other than muscular power using the public
highways, EXCEPT for the following:
1. road rollers, trolley cars, street sweepers,
sprinklers, lawn mowers, bulldozers,
graders, forklifts, amphibian trucks, and
cranes if not used on public highways;
2. vehicles which run only on rails or tracks;
and,
3. tractors, trailers and traction engines of all
kinds used exclusively for agricultural
purposes.
Trailers having any number of wheels, when
propelled or intended to be propelled by
attachment to a motor vehicle, shall be classified
as a separate motor vehicle with no power rating.
(Sec. 2)
II. Punishable acts
The following acts shall be punishable under this
Act:
a. When the carnapping is committed
WITHOUT violence against or intimidation of
persons, or force upon things (Sec. 3);
b. When the carnapping is committed BY
MEANS OF violence against or intimidation
of persons, or force upon things (Sec. 3);
c. When the owner, driver, or occupant of the
carnapped motor vehicle is killed or raped in
the commission of the carnapping (Sec. 3);
d. Concealment of carnapping (Sec. 4);
e. For unregistered moto vehicles or parts
thereof in knock down condition, failure to
register the vehicle engine, engine block and
chassis with the LTO within one (1) year from
the effectivity of the New Anti-Carnapping
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f.
Act of 2016 – the law provides that the
unregistered vehicle engine, engine block
and chassis with the LTO shall be
considered as a carnapped vehicle, an
untaxed importation or coming from illegal
source and shall be confiscated in favor of
the government (Sec. 6); and,
Failure to register the sale, transfer,
conveyance of motor vehicle engine, engine
block or chassis of a motor vehicle – the law
creates a presumption that it is a carnapped
vehicle, an untaxed imported vehicle, or a
vehicle proceeding from illegal sources
unless proven otherwise and shall be
confiscated in favor of the government (Sec.
8).
Unlawful Acts
The following are classified as “UNLAWFUL
ACTS” under the law. However, the law does not
provide for their penalties.
a. Defacing or tampering with serial numbers of
motor vehicles, engine blocks and chassis
(Sec. 14);
b. Transfer into another name, the chassis
number, engine number and plate number of
a motor vehicle declared as "total wreck" or
beyond economic repair by concerned
insurance company and/or law enforcement
agencies (Sec. 15);
c. Transfer of vehicle plate (Sec. 16); and,
d. Sale of second-hand spare parts taken from
carnapped vehicle (Sec. 17).
III. Aggravating circumstances resulting to
denial of bail
Denial of bail when evidence of guilt is strong
Bail shall be denied when the evidence of guilt is
strong against any person charged with
carnapping or when the crime of carnapping is
committed:
a. by criminal groups, gangs or syndicates;
b. by means of violence or intimidation of any
person or persons;
c. by means of forced upon things;
d. when the owner, driver, passenger, or
occupant of the carnapped vehicle is killed
or raped in the course of the carnapping.
(Sec. 3)
IV. Other relevant rules
Carnapping and homicide/murder
Since the law used the phrase “is killed,” there
shall be no distinction between homicide and
murder. It follows then that the killing, whether it
be homicide or murder, cannot be treated as a
separate offense, but should only be considered
to qualify the crime of carnapping.
Consequently,
said
phrase
gives
the
unmistakable import thereof that it refers only to
the consummated felony of either murder or
homicide. The frustrated and attempted homicide
or murder will not qualify carnapping. (People v.
Mejia, G.R. No. 118940-41, 1997)
To prove the special complex crime of carnapping
with homicide, there must be proof not only of the
essential elements of carnapping, but also that it
was the original criminal design of the culprit and
the killing was perpetrated in the course of
carnapping or on the occasion thereof. The killing
of the victim cannot qualify the carnapping into a
special complex crime because the carnapping
was an afterthought when the victim’s death was
already fait accompli. (People v. Aquino, G.R. No.
201092, 2014)
Unlawful taking
Unlawful taking is the taking of the motor vehicle
without the consent of the owner, or by means of
violence against or intimidation of persons, or by
using force upon things; it is deemed complete
from the moment the offender gains
possession of the thing, even if he has no
opportunity to dispose of the same.
When one takes the motor vehicle of another
without the latter’s consent even if the motor
vehicle is later returned, there is theft, there
being intent to gain as the use of the thing
unlawfully taken constitutes gain. (People v.
Bustinera, G.R. No. 148233, 2004)
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If what is intended to be taken is only a part of the
vehicle, like a spare tire, the crime is not
carnapping, but theft or robbery.
B. ANTI-ELECTRICITY AND ELECTRIC
TRANSMISSION LINES/MATERIALS
PILFERAGE ACT OF 1994 (RA 7832)
I. Punishable acts
————- end of topic ————-
TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
B. ANTI-ELECTRICITY AND ELECTRIC
TRANSMISSION
LINES/MATERIALS
PILFERAGE ACT OF 1994 (RA 7832)
a. Illegal use of electricity
It is unlawful for any person, whether natural or
juridical, public or private, to:
1. Tap, make or cause to be made any
connection with overhead lines, service
drops, or other electric service wires, without
previous authority or consent of the private
electric utility or rural electric cooperative
concerned;
1. Punishable Acts
a. Illegal use of electricity (Sec. 2)
b. Theft of electric power transmission
linen and materials (Sec. 3)
2. Prima facie evidence of punishable acts
(Sec. 4)
3. Disconnection of electric service (Sec. 6)
4. Penalties (Sec. 7)
2. Tap, make or cause to be made any
connection to the existing electric service
facilities of any duly registered consumer
without the latter’s or the electric utility’s
consent or authority;
3. Tamper, install or use a tampered electrical
meter, jumper, current reversing transformer,
shorting or shunting wire, loop connection or
any other device which interferes with the
proper or accurate registry or metering of
electric-current or otherwise results in its
diversion in a manner whereby electricity is
stolen or wasted;
4. Damage or destroy an electric meter,
equipment, wire or conduit or allow any of
them to be so damaged or destroyed as to
interfere with the proper or accurate
metering of electric current; and
5. Knowingly use or receive the direct benefit of
electric service obtained through any of the
acts mentioned in subsections (1), (2), (3),
and (4) above. (Sec. 2)
b. Theft of electric power transmission linen
and materials
It is unlawful for any person to:
1. Cut, saw, slice, separate, split, severe, smelt,
or remove any electric power transmission
line/material or meter from a tower, pole, any
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other installation or place of installation or
any other place or site where it may be
rightfully or lawfully stored, deposited, kept,
stocked, inventoried, situated or located,
without the consent of the owner, whether or
not the act is done for profit or gain;
2. Take, carry away or remove or transfer, with
or without the use of a motor vehicle or other
means of conveyance, any electric power
transmission line/material or meter from a
tower, pole, any other installation or place of
installation, or any place or site where it may
be rightfully or lawfully stored, deposited,
kept, stocked, inventoried, situated or
located, without the consent of the owner,
whether or not the act is done for profit or
gain;
3. Store, possess or otherwise keep in his
premises, custody or control, any electric
power transmission line/material or meter
without the consent of the owner, whether or
not the act is done for profit or gain; and
4. Load, carry, ship or move from one place to
another, whether by land, air or sea, any
electrical power transmission line/material,
whether or not the act is done for profit or
gain,
without
first
securing
a
clearance/permit for the said purpose from
its owner or the National Power Corporation
(NPC) or its regional office concerned, as the
case maybe.
For purposes of this section, “electrical power
transmission line/material” refers to electric
power
transmission
steel
towers,
woodpoles, cables, wires, insulators, line
hardwares, electrical conductors and other
related items with a minimum voltage of
sixty-nine kilovolts (69 kv), such as the
following:
(1)
Steel transmission line towers made
of galvanized steel angular members
and plates or creosoted and/or
tannelized woodpoles/concrete poles
and designed to carry and support the
conductors;
(2)
Aluminum conductor steel reinforced
(ACSR) in excess of one hundred
(100) MCM;
(3)
Overhead ground wires made of 7
strands of galvanized steel wires, 3.08
millimeters in diameter and designed
to protect the electrical conductors
from lightning strikes;
(4)
Insulators made of porcelain or glass
shell and designed to insulate the
electrical conductors from steel
towers or woodpoles; and
(5)
Various transmission line hardwares
and materials made of aluminum alloy
or malleable steel and designed to
interconnect the towers, conductors,
ground
wires,
and
insulators
mentioned in subparagraphs (1), (2),
(3), and (4) above for the safe and
reliable operation of the transmission
lines. (Sec. 3)
II. Prima facie evidence of punishable acts
Prima facie evidence of illegal use of
electricity
The presence any of the following circumstances
shall constitute prima facie evidence of illegal use
of electricity by the person benefitted thereby:
a.
The presence of a bored hole on the glass
cover of the electric meter, or at the back or
any other part of said meter;
b.
The presence inside the electric meter of
salt, sugar and other elements that could
result in the inaccurate registration of the
meter’s internal parts to prevent its accurate
registration of consumption of electricity;
c.
The existence of any wiring connection
which affects the normal operation or
registration of the electric meter;
d.
The presence of a tampered, broken, or fake
seal on the meter, or mutilated, altered, or
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tampered meter recording chart or graph, or
computerized chart, graph or log;
The above-mentioned circumstances shall be the
basis for:
The presence in any part of the building or
its premises which is subject to the control of
the consumer or on the electric meter, of a
current reversing transformer, jumper,
shorting and/or shunting wire, and/or loop
connection or any other similar device;
a.
the immediate disconnection by the electric
utility to such person after due notice;
b.
the holding of a preliminary investigation by
the prosecutor and the subsequent filing in
court of the pertinent information; and
f.
The mutilation, alteration, reconnection,
disconnection, bypassing or tampering of
instruments, transformers, and accessories;
c.
the lifting of any temporary restraining order
or injunction which may have been issued
against a private electric utility or rural
electric cooperative. (Sec. 4 (a))
g.
The destruction of, or attempt to destroy, any
integral accessory of the metering device
box which encases an electric meter, or its
metering accessories; and
e.
h.
The acceptance of money and/or other
valuable consideration by any officer or
employee of the electric utility concerned or
the making of such an offer to any such
officer or employee for not reporting the
presence of any of the circumstances
enumerated above-items.
Note: The discovery of any of the foregoing
circumstances, in order to constitute prima
facie evidence, must be personally witnessed
and attested to by an officer of the law or a
duly authorized representative of the Energy
Regulatory Board (ERB).
We hold the view, however, that the inclusion of
the phrase ‘by the consumer concerned’ in
the IRR is invalid because it is in excess of what
the
law
being
implemented
provides.
As RA 7832 stands, only the presence of an
authorized government agent, either an officer of
the law or an authorized representative of the
ERB, during the MERALCO inspection would
allow any of the circumstances enumerated in
Section 4 of RA 7832 to be considered prima
facie evidence of illegal use of electricity by the
benefited party. The law does not include the
consumer or the consumer's representative in
this enumeration. (Manila Electric Co. v. Spouses
Chua, G.R. No. 160422, 2010)
Prima facie evidence of theft of electric power
transmission linen and materials
The possession, control or custody of electric
power transmission line/material by any person,
natural or juridical, not engaged in the
transformation, transmission or distribution of
electric power, or in the manufacture of such
electric power transmission line/material shall be
prima facie evidence that such line/material is
the fruit of the theft of electric power transmission
linen and materials and therefore such
line/material may be confiscated from the person
in possession, control or custody thereof. (Sec. 4
(b))
III. Disconnection of electric service
Rules on disconnection of electric service
a. The private electric utility or rural electric
cooperative concerned shall have the right
and authority to disconnect immediately
the electric service after serving a written
notice or warning to that effect, without the
need of a court or administrative order,
and deny restoration of the same, when
the owner of the house or establishment
concerned or someone acting in his behalf
shall have been caught en flagrante delicto
doing any of the acts enumerated in Section
4(a) hereof, or when any of the
circumstances so enumerated shall have
been discovered for the second time.
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Note: If any of the circumstances so enumerated
shall have been discovered for the second
time, a written notice or warning shall have
been issued upon the first discovery.
b. The electric service shall not be immediately
disconnected or shall be immediately
restored upon the deposit of the amount
representing the differential billing by the
person denied the service, with the private
electric utility or rural electric cooperative
concerned or with the competent court, as
the case may be.
c.
If the court finds that illegal use of
electricity has not been committed by the
same person, the amount deposited shall
be credited against future billing with
legal interest thereon chargeable against
the private utility or rural electric cooperative.
The utility or cooperative shall be made to
immediately pay such person double the
value of the payment or deposit with legal
interest, which amount shall likewise be
creditable against immediate future billings,
without prejudice to any criminal, civil or
administrative action that such person may
be entitled to file under existing laws, rules
and regulations.
d.
If court finds the same person guilty of such
illegal use of electricity, he shall, upon final
judgment, be made to pay the electric utility
or rural electric cooperative concerned
double the value of the estimated electricity
illegally used which is referred to in this
section as differential billing. (Sec. 6)
IV. Penalties
The following penalties shall be imposed for
violation of this Act:
a. Illegal use of electricity (Sec. 2) – Prision
mayor or a fine ranging from P10,000 to
P20,000 or both, at the discretion of the court
b. Theft of electric power transmission linen
and materials (Sec. 3) – Reclusion temporal
or a fine ranging from P 50,000 to P100,000
or both, at the discretion of the court
c.
d.
e.
Common to violations of Secs. 2 and 3 – If
the offense is committed by, or in connivance
with, an officer or employee of the power
company, private electric utility or rural
electric cooperative concerned, such
officer or employee shall, upon conviction,
be punished with a penalty one (1) degree
higher than the penalty provided herein, and
forthwith be dismissed and perpetually
disqualified from employment in any public
or private utility or service company and from
holding any public office
If, in committing any of the acts enumerated
in Sec. 4, any of the other acts as
enumerated is also committed, then the
penalty next higher in degree as provided
herein shall be imposed
If the offense is committed by, or in
connivance with an officer or employee of
the electric utility concerned, such officer
or employee shall, upon conviction, be
punished with a penalty one (1) degree
higher than the penalty provided herein, and
forthwith be dismissed and perpetually
disqualified from employment in any public
or private utility or service company.
The electric utility concerned which shall have
knowingly
permitted
or
having
knowledge of its commission shall have
failed to prevent the same, or was
otherwise guilty of negligence in
connection with the commission thereof,
shall be made to pay a fine not exceeding
triple the amount of the “differential billing”
subject to the discretion of the courts.
f.
If the violation is committed by a
partnership,
firm,
corporation,
association or any other legal entity,
including a government-owned orcontrolled corporation, the penalty shall
be imposed on the president, manager and
each of the officers thereof who shall have
knowingly permitted, failed to prevent or was
otherwise responsible for the commission of
the offense. (Sec. 7)
————- end of topic ————-
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TOPIC OUTLINE UNDER THE SYLLABUS:
The discovery of any person engaging in
any of the above activities without a
lease, license or permit shall constitute
prima facie presumption that the
person is engaged in unauthorized
fisheries activity. (Sec. 87)
III. SPECIAL PENAL LAWS
C. FISHERIES CODE (RA 8550, AS AMENDED
BY RA 10654)
1. Punishable acts (Sec. 17, RA 10654)
c.
C. FISHERIES CODE (RA 8550, AS
AMENDED BY RA 10654)
I. Punishable acts
a. Unauthorized fishing
i. To capture or gather or to cause the
capture or gathering of fish, fry or
fingerlings of any fishery species or
fishery products without license or permit
from the Department or LGU;
ii. Any commercial fishing vessel to fish in
municipal waters, except in cases
specified under this Code; and,
iii. Any person not listed in the registry of
municipal fisherfolk to engage in any
commercial fishing activity in municipal
waters.
The discovery of any person in possession
of a fishing gear or operating a fishing
vessel in a fishing area where he has no
license or permit shall constitute prima
facie presumption that the person is
engaged
in
unauthorized fishing:
Provided, That fishing for daily food
sustenance or for leisure which is not for
commercial, occupation or livelihood
purposes may be allowed. (Sec. 86)
b. Engaging in unauthorized fisheries activities
– To exploit, occupy, produce, breed or
culture fish, fry or fingerlings of any
fishery species or fishery products or
construct and operate fish corrals, fish
traps, fish pens and fish cages or
fishponds without a license, lease or
permit.
Failure to secure fishing permit prior to
engaging in distant water fishing
i. To fish in the high seas, in the territorial
seas, archipelagic waters, and
Exclusive Economic Zones of other
states using a Philippine flagged
fishing vessel without first securing a
fishing permit from the Department
and authorization from the coastal
state.
The discovery of any person in
possession of a fishing gear or operating
a fishing vessel in the abovementioned
areas without a fishing permit from the
Department or authorization from the
coastal state shall constitute a prima
facie presumption that the person is in
violation of this provision.
ii. An owner or operator, and the three
(3) highest officers, of a commercial
fishing vessel to commit acts that are
in contravention of the terms and
conditions stated in the fishing permit
or as may be promulgated by the
Department. (Sec. 88)
d.
e.
f.
Unreported fishing – To engage in
unreported fishing or to fail to comply with
the reportorial requirements in Section 38 of
this Code. (Sec. 89)
Unregulated fishing – To engage in
unregulated fishing in waters within and
beyond national jurisdiction. (Sec. 90)
Poaching in Philippine Waters - Any foreign
person, corporation or entity to fish or
operate any fishing vessel in Philippine
waters.
The entry of any foreign fishing vessel in
Philippine waters shall constitute a prima facie
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presumption that the vessel is engaged in
fishing in Philippine waters. (Sec. 91)
g.
Fishing Through Explosives, Noxious or
Poisonous Substance, or Electricity.
i.
To catch, take or gather or cause to be
caught, taken or gathered fish or any
fishery species in Philippine waters
with the use of explosives, noxious or
poisonous substance such as sodium
cyanide, which will kill, stupefy,
disable or render unconscious fish or
fishery species.
The Department, subject to such
safeguards and conditions deemed
necessary
and
with
the
endorsement from the concerned
LGUs, may allow, for research,
educational or scientific purposes
only, the use of poisonous or
noxious substances to catch, take or
gather fish or fishery species.
The use of poisonous or noxious
substances to eradicate predators
and
pests
in
fishponds
in
accordance with accepted scientific
practices and without causing
adverse environmental impact in
neighboring waters and grounds
shall not be construed as illegal
fishing.
The discovery in any fishing vessel
of fish caught or killed with the use
of explosives, noxious or poisonous
substances, or by electricity shall
constitute
a
prima
facie
presumption that the fisherfolk,
operator, boat official or fishworker is
fishing with the use thereof.
ii.
To possess explosives, and
noxious
or
poisonous
substances for illegal fishing.
(Sec. 92)
h. Use of fine mesh net. – To engage in fishing
using nets with mesh smaller than that which
may be determined by the Department.
The prohibition on the use of fine mesh
net shall not apply to the gathering of fry,
glass eels, elvers, tabios, and alamang
and other species that by their nature are
small but already mature, as identified in
the implementing rules and regulations
by the Department.
i.
j.
The discovery of dynamite, other
explosives
and
chemical
compounds
which
contain
combustible elements, or noxious or
poisonous
substances,
or
equipment
or
device
for
electrofishing in any fishing vessel or
in the possession of any fisherfolk,
operator, fishing boat official or
fishworker shall constitute a prima
facie presumption that any of these
devices was used for fishing in
violation of this Code.
k.
The discovery of a fine mesh net in a
fishing vessel shall constitute a prima
facie presumption that the person or
fishing vessel is engaged in fishing with
the use of fine mesh net. (Sec. 93)
Fishing
in
overexploited
fishery
management areas – To fish in fishery
management
areas
declared
as
overexploited. (Sec. 94)
Use of active gear in municipal waters, bays
and other fishery management areas – To
engage in fishing in municipal waters and in
all bays as well as other fishery management
areas using active fishing gears as defined
in this Code. (Sec. 95)
Ban on Coral Exploitation and Exportation. –
To gather, possess, commercially transport,
sell or export ordinary, semi-precious and
precious corals, whether raw or in processed
form, except for scientific or research
purposes.
It shall also be unlawful for any person,
corporation or entity to commit any activity
that damage coral reefs. (Sec. 96)
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l.
Ban on muro-ami, other methods and gear
destructive to coral reefs and other marine
habitat
i. To fish with gear or method that
destroys coral reefs, seagrass beds,
and other fishery marine life habitat as
may
be
determined
by
the
Department.
ii.
‘Muro-ami’ and any of its
variation, and such similar gears
and methods that require diving,
other physical or mechanical
acts to pound the coral reefs and
other habitat to entrap, gather or
catch fish and other fishery
species are also prohibited.
(Sec. 97)
m. Illegal use of superlights or fishing light
attractor – To engage in fishing with the use of
superlight in municipal waters, or to fish with
fishing light attractor using candlelight power
or intensity beyond the standards set by the
Department. (Sec. 98)
n. Conversion of mangroves – To convert
mangroves into fishponds or for any other
purpose (Sec. 99)
o. Fishing during closed season (Sec. 100)
p. Fishing in marine protected areas, fishery
reserves, refuge and sanctuaries, as declared
by the Department or the LGUs (Sec. 101)
q. Fishing or taking of rare, threatened or
endangered species
i.
To fish or take, catch, gather, sell,
purchase, possess, transport,
export, forward or ship out
aquatic
species
listed
in
Appendix I of the Convention on
the International Trade in
Endangered Species of Wild
Flora and Fauna (CITES), or
those categorized by the
International
Union
for
Conservation of Nature and
Natural Resources (IUCN) as
threatened and determined by
the Department as such.
iii.
r.
To fish, take, catch, gather, sell,
purchase, possess, transport,
export, forward or ship out
aquatic species listed in CITES
Appendices II and III if scientific
assessments
show
that
population of the species in the
wild cannot remain viable under
pressure of collection and trade.
The taking or fishing of these
species from the wild for
scientific
research,
or
conservation
breeding
simultaneous with commercial
breeding may be allowed.
To gather, take, possess, transport, or
export, forward or ship out
captive-bred species that have
been transplanted to the wild.
(Sec. 102)
Capture
of
sabalo
and
other
breeders/spawners – To catch, gather,
capture or possess mature milkfish or sabalo
and other breeders or spawners of other
fishery species as may be determined by the
Department.
Catching of sabalo and other breeders/spawners
for local breeding purposes or scientific or
research purposes may be allowed subject
to guidelines that shall be promulgated by
the Department. (Sec. 103)
s.
Exportation of breeders, spawners, eggs or
fry
Failure on the part of the shipping or
forwarding company from whose
possession the breeders, spawners,
eggs, or fry are discovered or seized to
fully cooperate in the investigation
conducted by concerned government
authorities on the matter shall create a
presumption that there is connivance or
conspiracy between the company and
the shipper to violate the provisions of
this section. (Sec. 104)
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t. Importation or exportation of fish or fishery
species
u.
Failure on the part of the shipping or
forwarding company from whose
possession the fish or fishery species
imported or exported are discovered or
seized to fully cooperate in the
investigation conducted by concerned
government authorities shall create a
presumption that there is connivance
or conspiracy between the shipping
company and the shipper to perpetrate
the aforementioned offense. (Sec. 105)
Violation of Harvest Control Rules as
determined by the Department. (Sec. 106)
Aquatic pollution – the introduction by
human or machine, directly or indirectly,
of substances or energy to the aquatic
environment which result or is likely to
result in such deleterious effects as to
harm living and non-living aquatic
resources, pose potential and/or real
hazard to human health, hindrance to
aquatic activities such as fishing and
navigation.
Deforestation,
unsound
agricultural practices such as the use of
banned chemicals and excessive use of
chemicals, intensive use of artificial fish
feed, and wetland conversion, which
cause similar hazards and deleterious
effects shall also constitute aquatic
pollution.
e.g., Dumping/disposal of waste and
other marine litters, discharge of
petroleum or residual products of
petroleum
or
carbonaceous
materials/substances,
and
other,
radioactive, noxious or harmful liquid,
gaseous or solid substances, from any
water, land or air transport or other
human-made structure. (Sec. 107)
v.
w.
Failure to comply with minimum safety
standards (Sec. 108)
Failure of owners and operators of
fishponds, fishpens and fish cages to submit
x.
y.
z.
aa.
bb.
cc.
dd.
ee.
an annual report to the Department pursuant
to Section 57 of this Code (Sec. 109)
Gathering and marketing of shell fishes or
other aquatic species – To gather, take, sell,
transfer, possess, commercially transport,
export, forward or ship out any sexually
mature shell fish or other aquatic species
identified by the Department, or below the
minimum size, or above the maximum
quantities prescribed for the species. (Sec.
110)
Obstruction to navigation or flow or ebb of
tide in any stream, river, lake or bay (Sec.
111)
Noncompliance with good aquaculture
practices (Sec. 112)
Commercial fishing vessel operators
employing unlicensed fisherfolk, fishworker
or crew (Sec. 113)
Obstruction of defined migration paths (Sec.
114)
Obstruction to Fishery Law Enforcement
Officer – The fishing vessel owner, master or
operator or any other person acting on
behalf of any fishing vessel who assaults,
resists, intimidates, harasses, seriously
interferes with, or unduly obstructs or delays
a fishery law enforcement officer, authorized
inspector or observer, the deputized
fishwarden of the LGU, or any lawfullyboarding government officers, in the
exercise of their duties shall be penalized
under this Code.
Any person who does not allow any
authorized officer or an observer to exercise
any of the legal duties shall be deemed to be
obstructing that officer or person. (Sec. 115)
Noncompliance with Fisheries Observer
Coverage (Sec. 116)
Noncompliance with Port State Measures. –
No foreign fishing vessel shall be allowed
entry without providing at least twenty-four
(24)-hour prior notice. When a foreign fishing
vessel is granted entry, failure to provide a
catch report shall be deemed unlawful. It
shall likewise be unlawful for any person to
fail to comply with other rules on port state
measures promulgated by the Department in
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coordination with port state authorities. (Sec.
117)
ff. Failure to comply with rules and regulations
on
conservation
and
management
measures, adopted in rules and regulations
to be promulgated by the Department. (Sec.
118)
gg. To engage in fishing activity without
complying with the vessel monitoring
measures promulgated by the Department in
coordination with the LGUs.
————- end of topic ————TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
D. ANTI-FENCING LAW OF 1979 (PD 1612)
1. Definition of terms (Sec. 2)
2. Elements
For vessels operating in Philippine waters, only
the catcher vessel shall be covered by this
requirement. It shall also be unlawful to
intentionally tamper with, switch off or
disable the vessel monitoring system. (Sec.
119)
hh. To construct or import fishing vessels or
gears or to convert other vessels into fishing
vessels without permit from the Department
(Sec. 120)
ii. Use of unlicensed gear (Sec. 121)
jj. Falsifying, concealing or tampering with
vessel markings, identity or registration
(Sec. 122)
kk. Concealing, tampering or disposing of
evidence relating to an investigation of a
violation (Sec. 123)
ll. Noncompliance with the requirements for the
introduction of foreign or exotic aquatic
species (Sec. 124)
mm. Failure to comply with standards and traderelated measures. (Sec. 125)
nn. Possessing, dealing in or disposing illegally
caught or taken fish – The discovery of any
fish or species caught with the use of
explosives or noxious or poisonous
substances shall constitute a prima facie
presumption that the possessor, seller, fish
dealer, transporter, importer, or exporter
thereof has knowledge that the fish or
species was caught or taken in violation of
this Code. (Sec. 126)
oo. Unauthorized disclosure of sensitive
technical information (Sec. 127)
pp. Violation of administrative orders or
regulations promulgated by the Department
or any provision thereof
3. Penalties (Sec. 3)
4. Liability of officials of juridical persons
(Sec. 4)
5. Presumption of fencing; Exception (Sec.
5 & 6)
6. Other relevant rules
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D. ANTI-FENCING LAW OF 1979
I. Definition of terms
Fencing
It is the act of any person who, with intent to gain
for himself or for another, shall buy, receive,
possess, keep, acquire, conceal, sell or dispose
of, or shall buy and sell, or in any other manner
deal in any article, item, object or anything of
value which he knows, or should be known to him,
to have been derived from the proceeds of the
crime of robbery or theft. (Sec. 2)
Fence
This includes any person, firm, association,
corporation or partnership or other organization
who/which commits the act of fencing. (Sec. 2)
II. Elements
Elements of the crime of fencing
1. The crime of robbery or theft has been
committed;
2. The accused, who is not the principal or
accomplice in the crime of robbery or theft,
buy, receive, possess, keep, acquire,
conceal, sell or dispose of, or shall buy and
sell, or in any other manner deal in any
article, item, object or anything of value,
which has been derived from the proceeds
of the said crime;
3. The accused knows or should have known
that the said article, item, object or anything
of value has been derived from the proceeds
of the crime of robbery or theft; and,
4. There is, on the part of the accused, intent to
gain for himself or another. (DizonPamintuan v. People, G.R. No. 111426,
1994)
Complainant Rosita Lim testified that she lost
certain items and Manuelito Mendez confessed
that he stole those items and sold them
to the accused. However, Rosita Lim never
reported the theft or even loss to the police. She
admitted that after Manuelito Mendez, her former
employee, confessed to the unlawful taking
of the items, she forgave him, and did not
prosecute him. Theft is a public crime.
It can be prosecuted de oficio, or even without a
private complainant, but it cannot be without a
victim. As complainant reported no loss, [the
Court] cannot hold for certain that there was a
committed crime of theft. The first element of the
crime of fencing is absent. (Tan v. People, G.R.
No. 134298, 1999)
III. Penalties
Penalties as provided under Sec. 3
Value of property
Penalty
(P)
12,000 < x ≤ 22,000
Prision mayor
x > 22,000
Prision mayor, maximum +
1 year for every additional
P10,000, but shall not
exceed 20 years
6,000 < x ≤ 12,000
Prision correccional,
medium to maximum
200 < x ≤ 6,000
Prision correccional,
minimum to medium
50 < x ≤ 200
Arresto mayor, medium to
prision correccional,
minimum
5 < x ≤ 50
Arresto mayor, medium
x<5
Arresto mayor, minimum
IV. Liability of officials of juridical persons
If the fence is a partnership, firm, corporation or
association, the president or the manager or
any officer thereof who knows or should have
known the commission of the offense shall be
liable. (Sec. 4)
V. Presumption of fencing; Exception
General rule: Mere possession of any good,
article, object or anything of value which has been
subject of robbery or thievery shall be prima facie
evidence for fencing. (Sec. 5)
Exception: Possession of clearance/permit to
sell/use second hand articles (Sec. 6)
All stores, establishments or entities dealing in
the buy and sell of any good, article, item, object
or anything of value obtained from an
unlicensed dealer or supplier thereof, shall
before offering the same for sale to the public,
secure the necessary clearance or permit from
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the station commander of the Integrated National
Police of the town/city where it is located.
Failure to secure the clearance or permit herein
required shall upon conviction be punished as a
fence.
Factors that are to be considered in justifying the
presumption include:
a. the time and place of the sale, both of which
may not be in accord with the usual practices
of commerce;
b. the nature and condition of the goods sold;
and,
c. the fact that the seller is not regularly
engaged in the business of selling goods.
(Ong v. People, G.R. No. 190475, 2013)
VI. Other relevant rules
TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
E. BOUNCING CHECKS LAW (BP 22)
1. Punishable acts; Elements (Sec. 1)
2. Evidence of knowledge of insufficient
funds (Sec. 2)
3. Duty of drawee (Sec. 3)
4. Defenses against BP 22
5. Estafa under BP 22 vs. estafa under
Revised Penal Code
6. Other relevant rules
Fencing vis-à-vis robbery/theft
The one who acts as a fence or commits the act
of fencing may be prosecuted EITHER under the
Revised Penal Code, as an accessory OR under
the Anti-Fencing Law, as a principal.
Fencing does not require that the accused
participated in the design to commit theft or
robbery.
The crimes of robbery and theft, on the one hand,
and fencing, on the other, are separate and
distinct offenses. The state may choose to
prosecute him either under the RPC or the AntiFencing Law, although the preference for the
latter would seem inevitable considering that
fencing is a malum prohibitum, and the special
law creates a presumption of fencing and
prescribes a higher penalty based on the value of
the property. (Dizon-Pamintuan v. People, G.R.
No. 111426, 1994)
————- end of topic ————-
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E. BOUNCING CHECKS LAW (BP 22)
I. Punishable acts
a. With insufficient funds upon making or
drawing and issuing check (Sec. 1, par. 1)
ELEMENTS:
1.
Any person makes or draws and issues a
check to apply on account or for value;
2.
Knowledge of the maker, drawer or issuer
that he does not have sufficient funds in the
drawee bank for the payment of such check
in full upon its presentment;
3.
The (a) subsequent dishonor of the check by
the drawee bank for insufficiency of funds or
credit, OR (b) dishonor for the same reason
had not the drawer, without any valid cause,
ordered the bank to stop payment;
4.
The payee or holder of the dishonored check
gives a written notice of dishonor and
demand for payment; and,
5.
After receipt of the written notice and
demand, refuses or fails to pay the value of
the check within five (5) banking days. (Bax
v. People, G.R. No. 149858, 2007)
b. With sufficient funds upon making or
drawing and issuing, but failed to keep the
funds (Sec. 1, par. 2)
ELEMENTS:
1. Any person makes or draws and issues a
check to apply on account or for value;
2. He had sufficient funds in or credit with the
drawee bank upon making or drawing and
issuing the check;
3. Failure to keep sufficient funds or to maintain
a credit to cover the full amount of the check,
if presented within 90 days from the date
appearing thereon;
4. The drawee bank dishonors the check for
such reason;
5. The payee or holder of the dishonored check
gives a written notice of dishonor and
demand for payment; and,
6. After receipt of the written notice and
demand, refuses or fails to pay the value of
the check within five (5) banking days.
II. Evidence of knowledge of insufficient
funds
General rule: The making, drawing and issuance
of a check which is refused by the drawee
because of insufficient funds in or credit with such
bank, when presented within ninety (90) days
from the date of the check, shall be prima facie
evidence of knowledge of such insufficiency of
funds or credit. In case of insufficiency of funds in
or credit with such drawee bank, such fact shall
always be explicitly stated in the notice of
dishonor or refusal.
Exceptions: If the maker or drawer
a. Pays the holder thereof the amount due
thereon; or,
b. Makes arrangements for payment in full by
the drawee of such check within five (5)
banking days after receiving notice that such
check has not been paid by the drawee.
(Sec. 2)
If such notice of non-payment by the drawee bank
is not sent to the maker or drawer of the check, or
if there is no proof as to when such notice was
received by the drawer, then the presumption or
prima facie evidence cannot arise, since there
would simply be no way of reckoning the crucial
5-day period.
Thus, this Court further ruled in King, "in order to
create the prima facie presumption that the issuer
knew of the insufficiency of funds, it must be
shown that he or she received a notice of
dishonor and, within five banking days thereafter,
failed to satisfy the amount of the check or make
arrangement for its payment." (Chua vs. People,
G.R. No. 196853, 2015)
III. Duty of drawee
a.
b.
When refusing to pay check to the holder
upon presentment, the drawee must cause
to be written, printed, or stamped in plain
language thereon, or attached thereto, the
reason for drawee's dishonor or refusal to
pay the same.
If there are no sufficient funds in or credit
with such drawee bank, such fact shall
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c.
always be explicitly stated in the notice of
dishonor or refusal.
Notwithstanding receipt of an order to stop
payment, the drawee shall state in the notice
that there were no sufficient funds in or credit
with such bank for the payment in full of such
check, if such be the fact.
d.
The introduction in evidence of the unpaid
and dishonored check, with drawee’s refusal
written, printed or stamped on it, with the
reason therefore, shall be prima facie
evidence of the making, issuance and
presentment for payment of the said check to
the drawee, as well as its proper dishonor for
the reason written on said check. (Sec. 3)
h.
IV. Defenses against BP 22
The following are possible defenses against
liability under BP 22:
a. The check was issued as payment of a
warranty deposit paid by an accommodating
party (respondent/private complainant) as
required
under
the
lease-purchase
agreement. Unknown to the petitioner, the
Vice President of the company that
distributed the equipment to be bought. The
lease-purchase agreement did not ripen into
a purchase but remained a lease with
rentals. To charge the accused for the refund
of a "warranty deposit" which he did not
withdraw as it was not his own account, it
having remained with LS Finance, is to even
make him pay an unjust "debt", to say the
least, since petitioner (accused) did not
receive the amount in question. (Magno v.
CA, G.R. No. 96132, 1992)
b. The required notice of dishonor has not been
given. The drawer should be given a notice
of dishonor to give him the opportunity to
make good the value of the check within 5
banking days.
c. The dishonor of the check was not due to
insufficiency of funds. If the reason for
dishonor is other than insufficiency of funds,
such as failure of consideration, BP 22 is not
violated.
e.
f.
g.
The check was presented for payment
beyond 180 days from maturity.
Valid cause to stop payment.
Complainant was informed by issuer
beforehand that the account had closed.
The complainant is the actual or potential
wrongdoer or he had no more right to encash
the check for payment.
Only an oral notice or demand to pay was
given to the drawer upon dishonor of
drawee. The law requires that the
insufficiency of funds in or credit shall be
explicitly stated in the written notice of
dishonor and demand for payment.
(Domagsang v. Court of Appeals, G.R. No.
139292, 2000)
V. Estafa under BP 22 vs. Estafa under RPC
Distinguishing estafa through issuance of a
check under the RPC and BP 22
ESTAFA THROUGH
ISSUANCE OF A
BP 22
CHECK UNDER THE
RPC
The check is issued
The check can be
concurrently and
issued even in
reciprocally in
payment for a prepayment, never for a
existing obligation.
pre-existing obligation.
Damage and deceit
Damage and deceit
are elements of the
are immaterial.
crime.
Crime against public
interest (Causes
Crime against
prejudice to the
property
economy and banking
system)
BOTH DRAWER AND
ONLY THE DRAWER
INDORSER are liable.
is liable.
Drawer has 3 days
Drawer has 5 days
from notice of
from notice of dishonor
dishonor to make
to make good the
good the check
check
Malum in se
Malum prohibitum
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checks before the filing of the information
has already attained the purpose of the law.
VI. Other relevant rules
Check drawn by a corporation, company or
entity
Where the check is drawn by a corporation,
company or entity, the person/s who actually
signed the check in behalf of such drawer shall
be liable. (Sec. 1, par. 3)
HOWEVER, payment of the value of the
bounced check AFTER the filing of
information would no longer have the effect
of exonerating the accused from possible
conviction for violation of BP 22.
No double jeopardy
One can be convicted for estafa and violating BP
22; no double jeopardy. It is expressly provided
under Sec. 5 of BP 22 that, “(p)rosecution under
this Act shall be without prejudice to any liability
for violation of any provision of the RPC.” (Nierras
v. Dacuycuy, G.R. Nos. 59568-76, 1990)
Issuance of check as accommodation party
What the law punishes is the issuance itself of a
bouncing check and not the purpose for which it
was issued or of the terms and conditions relating
to its issuance. The mere act of issuing a
worthless check, whether merely as an
accommodation, is covered by BP 22. (Ruiz v.
People, G.R. No. 160893, 2005)
Proof of dishonor for insufficiency of funds
AND knowledge of such insufficiency
required
To hold petitioner liable for violation of BP 22, it is
not enough that she issued the check that was
subsequently dishonored for insufficiency of
funds. It must also be shown beyond reasonable
doubt that she knew of the insufficiency of funds
at the time the check was issued. (Vergara v.
People, G.R. No. 160328, 2005)
Summary of relevant periods under BP 22
1. Five (5) banking days – the maker or issuer
must make arrangements to make good the
check within five (5) banking days from
receipt of notice of dishonor to not be held
criminally liable for the check issued.
Since from the commencement of the
criminal proceedings in court, there is no
circumstance to show that the accused had
every intention to mitigate or totally alleviate
the ill effects of his issuance of the unfunded
check, then there is no equitable and
compelling reason to preclude his
prosecution. In such a case, the letter of the
law should be applied to its full extent. (Lim
v. People, G.R. No. 190834, 2014)
2.
3.
Ninety (90) days – The maker or issuer must
maintain sufficient funds within ninety (90)
days from the date of the check to destroy
the prima facie presumption of knowledge of
insufficiency of funds under Sec. 2.
One hundred eighty (180) days – Failure of
the payee to present the check for payment
or deposit within one hundred eighty (180)
days from the date of the check will make the
it stale and valueless, thus, no criminal
action shall arise therefrom.
————- end of topic ————TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
F. SWINDLING BY SYNDICATE (PD 1689)
1. Elements; Penalty
2. Other relevant rules
Payment made AFTER the five (5) banking
days provided by law, BUT BEFORE the
filing of the Information shall exonerate the
accused. In effect, the payment of the
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When punishable by reclusion temporal to
reclusion perpetua –
F. SWINDLING BY SYNDICATE (PD 1689)
I. Elements
Elements of swindling by syndicate
When punishable by life imprisonment to
death –
1.
Estafa or other forms of swindling as defined
in Article 315 and 316 of the Revised Penal
Code is committed;
a.
With unfaithfulness or
confidence (Art. 315);
abuse
of
b.
By means of false pretenses or
fraudulent acts executed prior to or
simultaneously with the commission
of fraud (Art. 315);
c.
Through inducement by means of
deceit to sign a document, by
resorting to fraudulent practice in a
gambling game, by removing,
concealing, or destroying documents
or any other papers (Art. 315);
d.
Encumbrance of property
pretending to be the owner
e.
Disposal of encumbered property
f.
Unlawful taking of personal property
g.
Execution of fictitious contract
h.
Mortgage, encumbrance, or sale of
surety in a bond in a criminal or civil
action
whilst
2.
The estafa or swindling is committed by a
syndicate of five or more persons;
3.
Formed with the intention of carrying out the
unlawful or illegal act, transaction, enterprise
or scheme; and,
4.
1.
The estafa or swindling is NOT committed by
a syndicate, as defined above;
2.
Amount of the fraud EXCEEDS P100,000;
and,
3.
All other elements above are present.
II. Other relevant rules
To be considered as a syndicate under PD 1689,
the perpetrators of an estafa must not only be
comprised of at least five individuals but must
also have also used the association that they
formed or managed to defraud its own
stockholders, members or depositors.
Section 1 of PD 1689 speaks of a syndicate
formed with the intention of carrying out the
unlawful scheme for the misappropriation of
the money contributed by the members of the
association. Thus, only those who formed [or]
manage associations that receive contributions
from the general public who misappropriated the
contributions can commit syndicated estafa.
(Remo v. Secretary of Justice, G.R. No. 192925,
2016)
As the preamble of PD 1689 shows, the act
prohibited therein need not necessarily
threaten the stability of the nation. It is
sufficient that it "contravenes public interest."
Public interest was affected by the solicitation of
deposits under a promise of substantial profits, as
it was people coming from the lower income
brackets who were victimized by the illegal
scheme. (People v. Balasa, G.R. No. 106357,
1998)
————- end of topic ————-
Defraudation results in the misappropriation
of moneys contributed by stockholders, or
members of rural banks, cooperatives,
"samahang
nayon(s),"
or
farmers’
associations or of funds solicited by
corporations / associations from the general
public.
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TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
G. MIGRANT WORKERS AND OVERSEAS
FILIPINOS ACT OF 1995 (RA 8042 AS
AMENDED BY RA 10022)
1. Definition of terms (Sec. 3, RA 8042)
2. Acts included in illegal recruitment (Sec.
5, RA 10022)
3. Prohibited acts (Sec. 5, RA 10022)
4. Penalties (Sec. 6, RA 10022)
5. Prescription (Sec. 12, RA 8042)
G. MIGRANT WORKERS AND OVERSEAS
FILIPINOS ACT OF 1995 (RA 8042 AS
AMENDED BY RA 10022)
I. Definition of terms
a. Migrant worker
It refers to a person who is to be engaged, is
engaged or has been engaged in a
remunerated activity in a state of which he or
she is not a legal resident; to be used
interchangeably with overseas Filipino worker.
b. Overseas Filipinos
It refers to dependents of migrant workers and
other Filipino nationals abroad who are in
distress. (Sec. 3, RA 8042)
c. Illegal recruitment
6. Other relevant rules
It refers to any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, or
procuring workers and includes referring, contract
services,
promising
or
advertising
for
employment abroad, whether for profit or not,
when undertaken by a non-licensee or nonholder of authority contemplated under Article
13(f) of Presidential Decree No. 442, as
amended, otherwise known as the Labor Code of
the Philippines.
Any such non-licensee or non-holder who, in any
manner, offers or promises for a fee employment
abroad to two (2) or more persons shall be
deemed so engaged. (Sec. 5, RA 10022)
d. Illegal recruitment by a syndicate
Illegal recruitment is deemed committed by a
syndicate if carried out by a group of three (3) or
more persons conspiring or confederating with
one another. This shall be considered an offense
involving economic sabotage. (Sec. 5, RA 10022)
e. Illegal recruitment in large scale
It is deemed committed in large scale if committed
against three (3) or more persons individually or
as a group. This shall be considered an offense
involving economic sabotage. (Sec. 5, RA 10022)
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II. Acts included in illegal recruitment
h.
Illegal recruitment shall include the following acts,
whether committed by any person, whether a
non-licensee, non-holder, licensee or holder
of authority:
a.
b.
c.
d.
e.
f.
g.
To charge or accept directly or indirectly any
amount greater than that specified in the
schedule of allowable fees prescribed by the
SOLE, or to make a worker pay or
acknowledge any amount greater than that
actually received by him as a loan or
advance;
To furnish or publish any false notice or
information or document in relation to
recruitment or employment;
To give any false notice, testimony,
information or document or commit any act
of misrepresentation for the purpose of
securing a license or authority under the
Labor Code, or for the purpose of
documenting hired workers with the POEA,
including reprocessing workers through
a job order that pertains to nonexistent
work, work different from the actual
overseas work, or work with a different
employer whether registered or not with the
POEA;
To induce or attempt to induce a worker
already employed to quit his employment
in order to offer him another UNLESS the
transfer is designed to liberate a worker
from oppressive terms and conditions of
employment;
To influence or attempt to influence any
person or entity not to employ any worker
who has not applied for employment
through his agency or who has formed,
joined or supported, or has contacted or is
supported by any union or workers'
organization;
To engage in the recruitment or placement of
workers in jobs harmful to public health or
morality or to the dignity of the Republic of
the Philippines;
To obstruct or attempt to obstruct
inspection by the SOLE or by his duly
authorized representative;
i.
j.
k.
l.
m.
n.
To fail to submit reports on the status of
employment,
placement
vacancies,
remittance of foreign exchange earnings,
separation from jobs, departures and such
other matters or information as may be
required by the SOLE;
To substitute or alter to the prejudice of
the worker, employment contracts
approved and verified by the DOLE from
the time of actual signing thereof by the
parties up to and including the period of the
expiration of the same without the approval
of the DOLE;
For an officer or agent of a recruitment or
placement agency to become an officer or
member of the Board of any corporation
engaged in travel agency or to be engaged
directly or indirectly in the management of a
travel agency;
To withhold or deny travel documents
from applicant workers before departure
for monetary or financial considerations,
or for any other reasons, other than those
authorized under the Labor Code and its
implementing rules and regulations;
Failure to actually deploy a contracted
worker without valid reason as determined
by the DOLE;
Failure to reimburse expenses incurred by
the worker in connection with his
documentation and processing for
purposes of deployment, in cases where the
deployment does not actually take place
without the worker's fault; and
To allow a non-Filipino citizen to head or
manage a licensed recruitment/manning
agency. (Sec. 5, RA 10022)
III. Prohibited acts
In addition, it shall also be unlawful for any person
or entity to commit the following prohibited acts:
a. Grant a loan to an overseas Filipino worker
with interest exceeding eight percent (8%)
per annum, which will be used for payment
of legal and allowable placement fees and
make the migrant worker issue, either
personally or through a guarantor or
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b.
c.
d.
e.
f.
g.
accommodation party, postdated checks in
relation to the said loan;
Impose a compulsory and exclusive
arrangement whereby an overseas Filipino
worker is required to avail of a loan only
from specifically designated institutions,
entities or persons;
Refuse to condone or renegotiate a loan
incurred by an overseas Filipino worker after
the latter's employment contract has been
prematurely terminated through no fault of
his or her own;
Impose a compulsory and exclusive
arrangement whereby an overseas Filipino
worker is required to undergo health
examinations only from specifically
designated medical clinics, institutions,
entities or persons, EXCEPT in the case of a
seafarer whose medical examination cost is
shouldered by the principal/shipowner;
Impose a compulsory and exclusive
arrangement whereby an overseas Filipino
worker is required to undergo training,
seminar, instruction or schooling of any
kind only from specifically designated
institutions, entities or persons, EXCEPT for
recommendatory trainings mandated by
principals/shipowners where the latter
shoulder the cost of such trainings;
For a suspended recruitment/manning
agency to engage in any kind of recruitment
activity including the processing of pending
workers' applications; and
For a recruitment/manning agency or a
foreign principal/employer to pass on to the
overseas Filipino worker or deduct from his
or her salary the payment of the cost of
insurance fees, premium or other
insurance related charges, as provided
under the compulsory worker's insurance
coverage. (Sec. 5, RA 10022)
IV. Penalties
If found guilty of –
a. Illegal recruitment – Imprisonment of not
less than twelve (12) years and one (1) day
but not more than twenty (20) years and a
b.
c.
fine of not less than P1,000,000 nor more
than P2,000,000.
Illegal recruitment constituting economic
sabotage – Life imprisonment and a fine of
not less than P2,000,000 nor more than
P5,000,000.
Any of the prohibited acts – Imprisonment of
not less than six (6) years and one (1) day
but not more than twelve (12) years and a
fine of not less than P500,000 nor more than
P1,000,000.
If the offender is an alien, he or she shall, in
addition to the penalties herein prescribed, be
deported without further proceedings.
In every case, conviction shall cause and carry
the automatic revocation of the license or
registration of the recruitment/manning agency,
lending institution, training school or medical
clinic. (Sec. 6, RA 10022)
V. Prescription
Illegal recruitment cases under this Act shall
prescribe in five (5) years.
Illegal recruitment cases involving economic
sabotage as defined herein shall prescribe in
twenty (20) years. (Sec. 12, RA 8042)
VI. Other relevant rules
Persons liable
The persons criminally liable for the above
offenses are the principals, accomplices and
accessories.
In case of juridical persons, the officers having
ownership, control, management or direction of
their business who are responsible for the
commission of the offense and the responsible
employees/agents thereof shall be liable. (Sec. 5,
RA 10022)
Estafa and illegal recruitment
Estafa and illegal recruitment are entirely different
offenses. Neither one necessarily includes or is
necessarily included in the other. A person who is
convicted of illegal recruitment may, in addition be
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convicted of estafa under Article 315 2(a) of the
Revised Penal Code. (People v. Billaber, G.R. No.
114967-68, 2004)
The filing of an offense punishable under this Act
shall be without prejudice to the filing of cases
punishable under other existing laws, rules or
regulations. (Sec. 5, RA 10022)
————- end of topic ————-
H. ANTI-ILLEGAL NUMBERS GAMES LAW
(PD 1602, AS AMENDED BY RA 9287)
I. Definition of terms
Illegal numbers game
It refers to any form of illegal gambling activity
which uses numbers or combinations thereof as
factors in giving out jackpots. (Sec. 2, RA 9287)
II. Persons liable
a.
TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
H. ANTI-ILLEGAL NUMBERS GAMES LAW (PD
1602, AS AMENDED BY RA 9287)
1.
Definition of terms (Sec. 2)
2.
Persons liable
3.
Possession of gambling paraphernalia
as prima facie evidence (Sec. 4, RA
9287)
4.
Informer’s reward (Sec. 11, RA 9287)
5.
Other relevant rules
b.
c.
Other than those in the succeeding items,
any person who participates in any illegal
numbers game or any illegal or
unauthorized activities or games of
cockfighting, jueteng, jai-alai or horse racing
to include bookie operations and game
fixing, numbers, bingo and other forms of
lotteries; cara y cruz, pompiang and the like;
7-11 and any game using dice; black jack,
lucky nine, poker and its derivatives, monte,
baccarat, cuajo, pangguingue and other
card games; paik que, high and low,
mahjong, domino and other games using
plastic tiles and the like; slot machines,
roulette, pinball and other mechanical
contraptions and devices; dog racing, boat
racing, car racing and other forms of races,
basketball, boxing, volleyball, bowling,
pingpong and other forms of individual or
team 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,
wherein wagers consisting of money,
articles of value or representative of
value are at stake or made;
Any person who shall knowingly permit any
form of gambling referred to in (a) to be
carried on in inhabited or uninhabited
place or in any building, vessel or other
means of transportation owned or
controlled by him;
Any person who shall knowingly permit any
form of gambling referred to in (a) in a 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
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d.
e.
f.
g.
h.
i.
j.
k.
government building or barangay hall; (Sec.
1, PD 1602)
Bettor – places bets for himself/herself or in
behalf of another person, or any person,
other than the personnel or staff of any illegal
numbers game operation;
Personnel or staff of an illegal numbers
game operation – acts in the interest of the
maintainer, manager or operator, such as,
but not limited to, an accountant, cashier,
checker, guard, runner, table manager,
usher, watcher, or any other personnel such
similar functions in a building, structure,
vessel, vehicle, or any other place where an
illegal numbers game is operated or
conducted;
• This includes any person who allows
his vehicle, house building or land to
be used in the operation of the illegal
numbers games.
Collector or agent – collects, solicits or
produces bets in behalf of his/her principal for
any illegal numbers game who is usually in
possession of gambling paraphernalia;
Coordinator, controller or supervisor –
exercises control and supervision over the
collector or agent;
Maintainer, manager or operator – maintains,
manages or operates any illegal numbers
game in a specific area from whom the
coordinator, controller or supervisor, and
collector or agent take orders;
Financier or capitalist – finances the
operations of any illegal numbers game; and,
Protector or coddler - lends or provides
protection, or receives benefits in any manner
in the operation of any illegal numbers game.
A government employee and/or public official,
whether elected or appointed, shall be held
liable for the following acts:
1. Assumes the role/s of collector, agent,
coordinator,
controller,
supervisor,
maintainer,
manager,
operator,
financier or capitalist (items (f) to (i) of
“Persons Liable” section);
2. While having knowledge of the
existence of the operation of any illegal
numbers game in his/her jurisdiction,
fails to abate or to take action, or
l.
tolerates the same in connection
therewith; and,
3. Failure to apprehend perpetrators of
any illegal numbers game. (Sec. 5, RA
9287); and,
Any parent, guardian or person exercising
moral authority or ascendancy over a minor,
ward or incapacitated person, and not
otherwise falling under any of the
abovementioned acts, who induces or
causes such minor, ward or incapacitated
person to commit any of the offenses
punishable under this Act.
• Upon
conviction,
said
parent,
guardian or person exercising moral
authority or ascendancy shall be
deprived of his/her authority over the
minor, ward or incapacitated person.
(Sec. 6, RA 9287)
III. Possession of gambling paraphernalia as
prima facie evidence
The possession of any gambling paraphernalia
and other materials used in the illegal numbers
game operation shall be deemed prima facie
evidence of any offense covered by this Act. (Sec.
4, RA 9287)
IV. Informer’s reward
Any person who, having knowledge or
information of any offense committed under this
Act and who shall disclose the same which may
lead to the arrest and final conviction of the
offender, may be rewarded a certain percentage
of the cash money or articles of value confiscated
or forfeited in favor of the government, which shall
be determined by the DOJ, in coordination with
the DILG and the NAPOLCOM. (Sec. 11, RA
9287)
V. Other relevant rules
Immunity from prosecution
Any person who serves as a witness for the
government or provides evidence in a criminal
case involving any violation of this Act, or who
voluntarily or by virtue of a subpoena
testificandum or duces tecum, produces,
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identifies, or gives testimony shall be immune
from any criminal prosecution. (Sec. 8, RA 9287)
TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
Prosecution, judgment and forfeiture of
property
Any person may be charged with or convicted of
the offenses covered by this Act without
prejudice to the prosecution of any act or acts
penalized under the Revised Penal Code or
other existing laws.
During the pendency of the case, no property or
income used or 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.
Upon conviction, all proceeds, gambling
paraphernalia and other instruments of the crime
including any real or personal property used in
any illegal numbers game operation shall be
confiscated and forfeited in favor of the State.
All assets and properties of the accused either
owned or held by him/her in his/her name or in
the name of another person found to be
manifestly out of proportion to his/her lawful
income shall be prima facie presumed to be
proceeds of the offense and shall likewise be
confiscated and forfeited in favor of the State.
(Sec. 9, RA 9287)
I.
COMPREHENSIVE
FIREARMS
AND
AMMUNITION REGULATION ACT (RA 10591)
1.
2.
3.
Definition of terms
a.
Firearm
b.
Light Weapons
c.
Loose Arm
d.
Small Arms
Punishable acts
a.
Unlawful
acquisition,
possession of firearms
ammunition (Sec. 28)
or
and
b.
Use of loose firearm in the
commission of a crime (Sec. 29)
c.
Other prohibited acts
Other relevant rules
————- end of topic ————-
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I.
COMPREHENSIVE
FIREARMS
AND
AMMUNITION REGULATION ACT (RA
10591)
1.
I. Definition of Terms
Definition of Firearm
Any handheld or portable weapon, whether a
small arm or light weapon, that expels or is
designed to expel a bullet, shot, slug, missile or
any projectile, which is discharged by means of
expansive force of gases from burning
gunpowder or other form of combustion or any
similar instrument or implement. (Sec. 3 (l))
2.
Definition of Light weapons
Class-A Light weapons which refer to self-loading
pistols, rifles and carbines, submachine guns,
assault rifles and light machine guns not
exceeding caliber 7.62MM which have fully
automatic mode;
Class-B Light weapons which refer to weapons
designed for use by two (2) or more persons
serving as a crew, or rifles and machine guns
exceeding caliber 7.62MM such as heavy
machine guns, handheld underbarrel and
mounted grenade launchers, portable anti-aircraft
guns, portable anti-tank guns, recoilless rifles,
portable launchers of anti-tank missile and rocket
systems, portable launchers of anti-aircraft
missile systems, and mortars of a caliber of less
than 100MM (Sec. 3 (t)).
3.
II. Punishable acts
a. Unlawful acquisition, or possession of
firearms and ammunition (Sec. 28)
1.
Small arm/s (or a major part thereof) –
intended for individual use, to be fired from
hand or shoulder, not capable of fully
automatic burst;
2.
Class-A light weapons (or a major part
thereof) – self-loading pistols, rifles, etc. not
exceeding caliber 7.62MM which have fully
automatic mode;
3.
Class-B light weapons (or a major part
thereof) – designed for use of 2 or more
persons, which has a caliber exceeding
7.62MM;
4.
Firearm/s – any handheld weapon, small or
light weapon, that expels a bullet or any
projectile; this includes a barrel, frame, or
receiver, or any major part thereof; or
Definition of Loose firearm
An unregistered firearm, an obliterated or altered
firearm, firearm which has been lost or stolen,
illegally manufactured firearms, registered
firearms in the possession of an individual other
than the licensee and those with revoked licenses
in accordance with the rules and regulations
(Sec. 3 (v)).
Definition of Small arms
Small arms refer to firearms intended to be or
primarily designed for individual use or that which
is generally considered to mean a weapon
intended to be fired from the hand or shoulder,
which are not capable of fully automatic bursts of
discharge, such as:
Handgun which is a firearm intended to be
fired from the hand, which includes:
(i) A pistol which is a hand-operated
firearm having a chamber integral with
or permanently aligned with the bore
which may be self-loading; and
(ii) Revolver which is a hand-operated
firearm with a revolving cylinder
containing chambers for individual
cartridges.
Rifle which is a shoulder firearm or
designed to be fired from the shoulder that
can discharge a bullet through a rifled
barrel by different actions of loading, which
may be classified as lever, bolt, or selfloading; and
Shotgun which is a weapon designed, made
and intended to fire a number of ball shots or
a single projectile through a smooth bore by
the action or energy from burning
gunpowder. regulations (Sec. 3 (dd)).
5. Ammunition.
Aggravating circumstances for items (1)
to (3) –
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i.
Loaded with ammunition or inserted with a
loaded magazine;
ii.
Fitted or mounted with laser or any gadget
used to guide the shooter to hit the target
such as thermal weapon sight (TWS) and
the like;
iii.
Fitted or mounted with sniper scopes,
firearm muffler or firearm silencer;
iv.
Accompanied with an extra barrel; and
v.
Converted to be capable of firing full
automatic bursts.
b. Use of loose firearm in the commission of a
crime (Sec. 29)
A loose firearm refers to
If the crime committed with the use of a loose
firearm is penalized by the law with a maximum
penalty which is equal to the penalty imposed for
illegal possession of firearms, the penalty of
prision mayor in its minimum period shall be
imposed in addition to the penalty for the crime
punishable under the Revised Penal Code or
other special laws of which he/she is found guilty.
Absorbed as an element of the crime of
rebellion, or insurrection, or attempted coup
d' etat
If the violation of this Act is made in furtherance
of, or incident to, or in connection with the
crime of rebellion or insurrection, or attempted
coup d' etat, such violation shall be absorbed as
an element of said crime/s.
Considered as a distinct and separate offense
1.
Unregistered firearm;
2.
Obliterated or altered firearm;
3.
Firearm which has been lost or stolen;
If the crime is committed by the person without
using the loose firearm, the violation of this Act
shall be considered as a distinct and separate
offense.
4.
Illegally manufactured firearms;
Liability of Juridical Person
5.
Registered firearms in the possession of an
individual other than the licensee; and
6.
Those with revoked licenses.
The penalty of prision mayor in its minimum to
prision mayor in its medium period shall be
imposed upon the owner, president, manager,
director or other responsible officer of any
juridical entity who shall willfully or knowingly
allow any of the firearms owned by such to be
used by any person or persons found guilty of
violating the provisions of the preceding
section, or willfully or knowingly allow any of
them to use unregistered firearms without any
legal authority to be carried outside of their
residence in the course of their employment.
Considered an aggravating circumstance
The use of a loose firearm, when inherent in the
commission of a crime punishable under the
Revised Penal Code or other special laws, shall
be considered as an aggravating circumstance.
If penalty for crime charged is lower than the
penalty for illegal possession of firearms
If the crime committed with the use of a loose
firearm is penalized by the law with a maximum
penalty which is lower than the penalty imposed
for illegal possession of firearms, the penalty for
illegal possession of firearm shall be imposed
in lieu of the penalty for the crime charged.
If penalty for crime charged is equal to the
penalty for illegal possession of firearms
c. Other prohibited acts
1.
Unlawful manufacture, importation, sale or
disposition of a firearm or ammunition, or a
major part thereof, or machinery, tool or
instrument used or intended to be used by
the same person in the manufacture of a
firearm, ammunition, or a major part thereof
(Sec. 32);
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2.
Possession of machinery, tool or instrument
in the manner stated above by any person
whose business, employment or activity
does not lawfully deal with the possession of
such article shall be prima facie evidence
that such article is intended to be used
unlawfully.
3.
Arms smuggling (Sec. 33);
4.
Tampering, obliteration or alteration of
firearms identification (Sec. 34);
5.
Use of imitation firearm (Sec. 35);
6.
Planting evidence (Sec. 38);
7.
Failure to notify lost or stolen firearm or light
weapon (Sec. 40); and,
8.
Unlawful transfer/registration of firearms
(Sec. 41).
Summary of penalties under Sec. 28 & 29
Punishable act/s
Penalty
P of a small arm (a)
Prision mayor
P of 3 or more small Reclusion temporal
arms or Class A
to reclusion
light weapons (b)
perpetua
P of a Class A light
Prision mayor in its
weapon (c)
maximum period
P of a Class B light
Reclusion perpetua
weapon
P + any of the
One degree higher
following
than the penalties in
1) Loaded with
(a), (b), and (c)
ammunition or
inserted with a
loaded
magazine
2) Fitted or
mounted with
laser or any
gadget used to
guide the
shooter to hit
the target
3) Fitted or
mounted with
sniper scopes,
firearm muffler,
or firearm
silencer
4) Accompanied
with an extra
barrel
5) Converted to be
capable of firing
full automatic
bursts
P of a major part of
a small arm
P of ammunition for
a small arm or
Class A light
weapon
P of a major part of
a Class A weapon
P of ammunition for
a Class A light
weapon
P of a major part of
a Class B light
weapon
P of ammunition for
a Class B light
weapon
Prision mayor in its
minimum period
Prision mayor in its
medium period
If this violation is
committed by the
same person
charged with
unlawful acquisition
or possession of a
small arm, the
former violation
shall be absorbed
by the latter
Prision mayor in its
medium period
Prision mayor in its
medium period
If this violation is
committed by the
same person
charged with
unlawful acquisition
or possession of a
Class A weapon,
the former violation
shall be absorbed
by the latter
Prision mayor in its
maximum period
Prision mayor in its
maximum period
If this violation is
committed by the
same person
charged with
unlawful acquisition
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P + inherent in the
crime
P + used in crime
with a lower penalty
P + used in crime
with same penalty
P + not used in the
crime
P + furtherance of,
incident to, or in
connection with
the crime of
rebellion, or
insurrection,
sedition, attempted
coup d’etat.
or possession of a
Class B weapon,
the former violation
shall be absorbed
by the latter
Penalty for the
crime
+
aggravating
circumstance
Prision Mayor
(the penalty for
illegal possession of
firearms)
Penalty for crime
+
Prision Mayor
minimum
Penalty for the
crime +
Penalty for illegal
possession of
firearms (the
penalty would be
separate and
distinct)
The crime of P is
absorbed.
III. Other relevant rules
Use of an imitation firearm (Sec. 35)
An imitation firearm used in the commission of a
crime shall be considered a real firearm as
defined in this Act and the person who committed
the crime shall be punished in accordance with
this Act.
However, injuries caused on the occasion of the
conduct of competitions, sports, games, or any
recreation activities involving imitation firearms
shall not be punishable under this Act.
Authority of Barangay Captain to carry
firearm
The authority of a Barangay Captain to carry his
firearm outside his residence was rooted in the
authority given to him by Local Government Code
(LGC), which states that “in the performance of
his peace and order functions, the punong
barangay shall be entitled to possess and carry
the necessary firearms within his territorial
jurisdiction…” If the Barangay Captain is within
his barangay, he cannot be separated from his
duty as a punong barangay – to maintain peace
and order. (Artillero v. Casimiro, G.R. No. 190569,
2012)
Ownership of the firearm is not an essential
element
The petitioner was indicted of the crime of illegal
possession of firearms, as defined and penalized
by P.D. No. 1866, as amended by R.A. No. 8294.
The elements for the prosecution of which crime
are: (1) the existence of subject firearm; and (2)
the fact that the accused who possessed or
owned the same does not have the
corresponding license for it.
Verily, ownership is not an essential element of
the crime of illegal possession of firearms. What
is merely required is either actual or constructive
possession coupled with animus possidendi or
intent to possess. (Mendoza v. People, G.R. No.
234196, 2018)
What needs to be established for illegal
possession of firearms
To sustain convictions for illegal possession of
firearms, the prosecution must show that:
1.
the firearm exists; and,
2.
the accused had no corresponding license
for it. (De Guzman y Aguilar v People, G.R.
No. 240475, 2019)
————- end of topic ————-
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TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
J. ANTI-HAZING ACT OF 2018 RA 8049, AS
AMENDED BY RA 11053
1.
Definition of terms (Sec. 2)
2.
Prohibition on hazing (Sec. 3)
3.
Regulation of school-based initiation
rites (Sec. 4, RA 11053)
4.
Persons liable
5.
Other relevant rules
J. ANTI-HAZING ACT OF 2018 (RA 8049, AS
AMENDED BY RA 11053)
I. Definition of terms
Hazing
1.
Any act that results in physical or
psychological suffering, harm, or injury;
2.
Inflicted on a recruit, neophyte, applicant, or
member as part of an initiation rite or
practice made as a prerequisite for
admission or a requirement for continuing
membership in a fraternity, sorority, or
organization;
3.
Including, but not limited to, paddling,
whipping,
beating,
branding,
forced
calisthenics, exposure to the weather, forced
consumption of any food, liquor, beverage,
drug or other substance, or any other brutal
treatment or forced physical activity
which is likely to adversely affect the
physical and psychological health of such
recruit, neophyte, applicant, or member;
and,
4.
Additionally, hazing includes any activity,
intentionally made or otherwise, by one
person alone or acting with others, that
tends to humiliate or embarrass, degrade,
abuse, or endanger, by requiring a recruit,
neophyte, applicant, or member to do
menial, silly, or foolish tasks. (Sec. 2)
Organization
It is an organized body of people which includes,
but is not limited to, any club, association,
group, fraternity, and sorority. This term shall
include the Armed Forces of the Philippines
(AFP), the Philippine National Police (PNP), the
Philippine Military Academy (PMA), the Philippine
National Police Academy (PNPA), and other
similar uniformed service-learning institutions.
(Sec. 2)
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Initiation or initiation rites
It refers to ceremonies, practices, rituals, or other
acts, whether formal or informal, that a person
must perform or take part in order to be
accepted into a fraternity, sorority, or
organization as a full-fledged member.
It includes ceremonies, practices, rituals, and
other acts in all stages of membership in a
fraternity, sorority, or organization. (Sec. 2)
III. Regulation of school-based initiation
rites
School-based initiation rites do not constitute
hazing provided that –
1.
2. The written application must indicate:
II. Prohibition on hazing
All forms of hazing shall be prohibited in
fraternities, sororities, and organizations in
schools, including citizens' military training and
citizens' army training, including not schoolbased such as community-based and other
similar organizations.
HOWEVER, the following
considered hazing:
1.
2.
3.
shall
not
be
Tests, trainings, practices and procedures
employed
for
prospective
regular
members of the Armed Forces of the
Philippines (AFP) and Philippine National
Police (PNP), as approved by the Secretary
of National Defense and the National Police
Commission duly recommended by the
Chief of Staff of AFP and the Director
General of PNP;
No hazing shall be made a requirement for
employment in any business or corporation. (Sec.
3)
a.
Place and date of the initiation rites;
b.
Names of the recruits, neophytes or
applicants to be initiated;
c.
Manner by which they will conduct the
initiation rites; and,
d.
Names of the incumbent officers of
the fraternity, sorority, or organization
and any person or persons who will
take charge in the conduct of the
initiation rites.
The application shall be under oath with
a declaration that it has been posted in
the official school bulletin board, the
bulletin board of the office of the
fraternity, sorority, or organization, AND
two (2) other conspicuous places in the
school or in the premises of the
organization.
Similar procedures and practices approved
by the respective heads of other
uniformed learning institutions as to their
prospective members; and,
Any customary athletic events or other
similar contests and competitions, or any
activity or conduct that furthers a legal and
legitimate objective, subject to prior
submission of a medical clearance or
certificate.
A written application to conduct initiation
rites shall be made to the proper authorities
of the school not later than seven (7) days
prior to the conduct of initiation;
The application shall be posted from the
time of submission of the written notice to
the school authorities or head of
organization and shall only be removed
from its posting three (3) days after
the conduct of the initiation rites;
3.
The initiation rites shall not last more than
three (3) days; and,
4.
There are at least two (2) representatives of
the school present during the initiation.
School officials shall have the authority to impose
after due notice and summary hearing,
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disciplinary sanctions, in accordance with the
school's guidelines and regulations on the matter.
All members of the fraternity, sorority, or
organization,
who
participated
in
the
unauthorized initiation rites, even if no hazing was
conducted, shall also be punished accordingly.
(Sec. 4, RA 11053)
The persistent and repeated proposal or
invitation made to a person who had
twice refused to participate or join the
proposed
fraternity,
sorority,
or
organization, shall be prima facie
evidence of vexation.
h.
Owner or lessee of the place where hazing
is conducted, when he has actual knowledge
of the hazing but failed to take action to
prevent the same, OR failed to promptly
report the same if they can do so without
peril to their person or their family;
i.
Parents if held in the home of one of the
officers or members of the fraternity, group,
or organization, when they have actual
knowledge the hazing conducted but failed
to take any action to prevent the same OR
failed to promptly report the same if they can
do so without peril to their person or their
family.
IV. Persons liable
Liable as PRINCIPALS
a.
All persons who actually planned OR
participated in the conduct of the hazing;
b.
All incumbent and former officers,
nonresident members, or alumni of the
fraternity, sorority or organization who are
actually present during the hazing;
c.
The adviser of the fraternity, sorority or
organization who is –
1. Present when the acts constituting the
hazing were committed; and
2. Failed to take action to prevent the
same; or,
3. Failed to promptly report the same to
the law enforcement authorities, if such
adviser or adviser or advisers can do so
without peril to their person or their
family.
d. Officers or members who knowingly
cooperated in carrying out the hazing by
inducing the victim to be present thereat;
e. Members who are present during the
hazing when they are intoxicated or
under the influence of alcohol or illegal
drugs;
f.
Any person who shall intimidate,
threaten, force, or employ, or administer
any form of vexation against another
person for the purpose of recruitment
in joining or promoting a particular
fraternity, sorority, or organization.
The presence of any person, even if such
person is not a member of the fraternity, sorority,
or organization, during the hazing is prima facie
evidence of participation therein as a principal,
unless such person or persons prevented the
commission of the acts punishable, or promptly
reported the same to the law enforcement
authorities if they can do so without peril, to their
person or their family.
All forms of hazing shall be prohibited in
fraternities, sororities, and organizations in
schools, including citizens' military training and
citizens' army training, including not schoolbased such as community-based and other
similar organizations.
Liable as ACCOMPLICE
School authorities, barangay, municipal or city
officials shall be held liable as accomplice if:
a.
They have consented to the hazing; or
b.
Have actual knowledge, but failed to take
any action to prevent the same; or,
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c.
Failed to promptly report the same if they
can do so without peril to their person or their
family.
V. Other relevant rules
Recognizing the malum prohibitum characteristic
of hazing, the law provides that any person
charged with the said crime shall not be entitled
to the mitigating circumstance that there was
no intention to commit so grave a wrong. Also,
the framers of the law intended that the consent
of the victim shall not be a defense in hazing.
(Dungo v. People, G.R. No. 209464, 2015)
————- end of topic ————TOPIC OUTLINE UNDER THE SYLLABUS:
K. COMPREHENSIVE DANGEROUS DRUGS
ACT OF 2002 (RA 9165, AS AMENDED BY
RA 10640)
I. Definition of terms
Den, dive or resort
It is a place where any dangerous drug and/or
controlled precursor and essential chemical is
administered, delivered, stored for illegal
purposes, distributed, sold or used in any form.
Drug syndicate
It refers to any organized group of two (2) or more
persons forming or joining together with the
intention of committing any offense prescribed
under this Act.
III. SPECIAL PENAL LAWS
Financier
K. COMPREHENSIVE DANGEROUS DRUGS
ACT OF 2000 (RA 9165, AS AMENDED BY RA
10640)
It refers to any person who pays for, raises or
supplies money for, or underwrites any of the
illegal activities prescribed under this Act.
1.
Definition of terms (Sec. 3)
Protector/coddler
2.
Punishable acts
3.
Chain of custody (Sec. 21)
4.
Plea-bargaining (Sec. 23)
5.
Other relevant rules
It refers to any person who knowingly and willfully
consents to the unlawful acts provided for in this
Act and uses his/her influence, power or position
in shielding, harboring, screening or facilitating
the escape of any person he/she knows, or has
reasonable grounds to believe on or suspects,
has violated the provisions of this Act in order to
prevent the arrest, prosecution and conviction of
the violator.
II. Punishable acts
a.
Importation of dangerous drugs and/or
controlled
precursors
and
essential
chemicals, regardless of quantity or purity
involved. The maximum penalty shall be
imposed when:
•
Done through the use of a diplomatic
passport, diplomatic facilities, or any
other means involving an offenders'
official status intended to facilitate
unlawful entry; and
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•
b.
Acting as organizer,
financier. (Sec. 4)
manager,
or
Sale,
trading,
administration,
dispensation, delivery, distribution and
transportation of dangerous drugs and/or
controlled
precursors
and
essential
chemicals, including any and all species of
opium poppy regardless of the quantity
and purity involved. The maximum penalty
shall be imposed when:
•
•
•
•
It transpires within one hundred (100)
meters from the school.
Using minors or mentally incapacitated
individuals as runners, couriers and
messengers, or in any other capacity.
The victim of the offense is a minor or a
mentally incapacitated individual, or
should a dangerous drug and/or a
controlled precursor and essential
chemical involved in any offense herein
provided be the proximate cause of death
of a victim.
Acting as organizer, manager, or
financier. (Sec. 5)
Illegal sale
In order to sustain conviction for selling prohibited
drugs, the element of sale must be unequivocally
established. Also, what the law proscribes is not
only the act of selling but also, albeit not limited
to, the act of delivering. The commission of the
offense of illegal sale of marijuana required
merely the consummation of the selling
transaction. What is important is that the poseurbuyer received the marijuana from the accused.
(People v. Ponferada, G.R. NO. 101004, 1993)
Delivery is any act of knowingly passing
a dangerous drug to another, personally
or otherwise, and by any means, with or
without consideration.
c.
d.
Maintenance of a den, dive or resort. The
maximum penalty shall be imposed when:
•
Any dangerous drug is administered,
delivered or sold to a minor who is
allowed to use the same in such a
place.
•
Acting as organizer,
financier. (Sec. 6)
Any person who, not being included in
the provisions of the next preceding
paragraph, is aware of the nature of the
place as such and shall knowingly visit
the same.
Manufacture of dangerous drugs and/or
controlled
precursors
and
essential
chemicals (Sec. 8)
The presence of any controlled precursor
and essential chemical or laboratory
equipment in the clandestine laboratory is a
prima facie proof of manufacture of any
dangerous drug. It shall be considered an
aggravating circumstance if the clandestine
laboratory is undertaken or established
under the following circumstances:
1.
Any phase of the manufacturing
process was conducted in the
presence or with the help of minor/s;
2.
Any phase or manufacturing process
was established or undertaken within
one hundred (100) meters of a
residential, business, church or
school premises;
Elements of illegal sale
1. Identity of the buyer and the seller, the object
of the sale and the consideration;
2. Delivery of the thing sold and the payment
therefor. (People of the Philippines v. Teofilo
Honrado and Romulo Honrado, G.R. No.
182197, 2012)
or
Being an employee of a den, dive or resort,
who is aware of the nature of the place as
such. (Sec. 7)
•
e.
manager,
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3.
Any clandestine laboratory was
secured or protected with booby
traps;
3.
4.
Any clandestine laboratory was
concealed with legitimate business
operations; or
5.
Any employment of a practitioner,
chemical engineer, public official or
foreigner.
Jurisprudence is consistent in that mere
possession of a prohibited drug
constitutes prima facie evidence of
knowledge or animus possidendi
sufficient to convict an accused in the
absence of any satisfactory explanation.
Illegal possession of regulated drugs is
mala prohibita, and, as such, criminal
intent is not an essential element.
However, the prosecution must prove
that the accused had the intent to
possess (animus posidendi) the drugs.
Possession, under the law, includes not
only actual possession, but also
constructive
possession.
Actual
possession exists when the drug is in the
immediate possession or control of the
accused. On the other hand, constructive
possession exists when the drug is under
the dominion and control of the accused
or when he has the right to exercise
dominion and control over the place
where it is found. Exclusive possession
or control is not necessary. (People v.
Trinidad, G.R. No. 199898, 2014)
The maximum penalty provided for under
this Section shall be imposed upon any
person, who organizes, manages or acts
as a "financier" of any of the illegal
activities prescribed in this Section.
f.
Illegal chemical diversion of controlled
precursors and essential chemicals (Sec. 9)
g.
Manufacture or delivery of equipment,
instrument,
apparatus,
and
other
paraphernalia for dangerous drugs and/or
controlled
precursors
and
essential
chemicals. The maximum penalty shall be
imposed when any person, who uses a
minor or a mentally incapacitated individual
to deliver such equipment, instrument,
apparatus and other paraphernalia for
dangerous drugs. (Sec. 10)
h.
i.
Possession of equipment, instrument,
apparatus and other paraphernalia for fit or
intended
for
smoking,
consuming,
administering, injecting, ingesting, or
introducing any dangerous drug into the
body (Sec. 12)
j.
Possession of dangerous drugs during
parties, social gatherings or meetings, or in
the proximate company of at least two (2)
persons, regardless of quantity and purity,
shall suffer maximum penalty (Sec. 13)
k.
Possession of equipment, instrument,
apparatus and other paraphernalia for fit or
intended
for
smoking,
consuming,
administering, injecting, ingesting, or
introducing any dangerous drug into the
body, during parties, social gatherings or
meetings, or in the proximate company of at
Possession of dangerous drugs, regardless
of purity of the quantities laid down in the act.
(Sec. 11)
If person who has tested positive is also
found in possession of dangerous drugs,
he
should
be
prosecuted
under
possession. Hence, USE is subsumed by
POSSESSION.
Elements of possession
1.
the accused is in possession of an
item or object, which is identified to
be prohibited or regulated drug;
2.
such possession is not authorized
by law; and
the accused freely and consciously
possessed the drug. (People v.
Trinidad, G.R. No. 199898, 2014)
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least two (2) persons shall suffer maximum
penalty (Sec. 14)
Rules on chain of custody
a.
l.
Use of Dangerous Drugs, after being found
positive via a confirmatory test. (Sec. 15)
As discussed under Sec. 11, this provision is
not applicable if the person tested is also
found to have in his/her possession such
quantity of any dangerous drug provided
under Sec. 11.
m.
n.
o.
p.
Cultivation or culture of plants classified as
dangerous drugs or are sources thereof
(Sec. 16)
Failure to maintain or keep original records
of transactions on Dangerous Drugs and/or
controlled
precursors
and
essential
chemicals (Sec. 17)
Unnecessary prescription of dangerous
drugs – It is the act of prescribing any
dangerous drug to any person whose
physical or physiological condition does not
require the use or in the dosage prescribed
therein (Sec. 18)
It refers to the duly recorded authorized
movements and custody of seized drugs or
controlled chemicals or plant sources of
dangerous drugs or laboratory equipment of each
stage, from the time of seizure/confiscation to
receipt in the forensic laboratory to safekeeping
to presentation in court for destruction. Such
record of movements and custody of seized item
shall include the identity and signature of the
person who held temporary custody of the seized
item, the date and time when such transfer of
custody were made in the course of safekeeping
and use in court as evidence, and the final
disposition. (Section 1(b) of Dangerous Drugs
Board Regulation No. 1, Series of 2002)
1.
An elected public official; and
2.
Representative
of
the
National
Prosecution Service or the media.
b.
Within 24 hours from seizure, items must be
submitted to the PDEA Forensic laboratory
for examination.
c.
Immediately upon receipt of the subject
item/s, a certification under oath of the
forensic laboratory examiner shall be made.
d.
Within 72 hours from filing of criminal case,
an ocular inspection shall be made.
e.
Within 24 hours from filing of ocular, the
drugs seized must be destroyed by the
PDEA in the presence of the accused or the
person/s from whom such items were
confiscated and/or seized, or his/her
representative or counsel, a representative
from the media and the DOJ, civil society
groups and any elected public official.
f.
A representative sample in min. quantity
shall be retained. Those that belong to lawful
commerce shall be donated or recycled for
legitimate purposes.
g.
Sworn certification of destruction shall be
issued by the Board and submitted to the
court with jurisdiction of the case, along with
the sample.
h.
Accused or representative are allowed to
observe proceedings. If accused has no
counsel within 72hrs from written notice prior
to destruction, court shall appoint a counsel
from PAO.
Unlawful prescription of drugs – Any person,
who, unless authorized by law, shall make or
issue a prescription or any other writing
purporting to be a prescription for any
dangerous drug (Sec. 19)
III. Chain of custody
At the place where the search warrant is
served, or nearest police station, or nearest
office of the apprehending officer/team,
there must be the inventory and photographs
done in the presence of the accused, or
his/her representative or counsel with:
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i.
Within 24 hours from receipt of judgment –
trial prosecutor shall inform the Board and
request for leave to turn over the samples to
PDEA for destruction.
Non-compliance with these requirements under
justifiable grounds, as long as the integrity and
the evidentiary value of the seized items are
properly preserved by the apprehending
officer/team, shall not render void and invalid
such seizures and custody over said items. (Sec.
21)
i.
There was a discrepancy in the weight of the
seized items (People v. Ramos, G.R. No.
233744, 2018)
j.
There was a discrepancy in the number of
the sachets shown in the photographs and
the number of sachets for which the accused
is being charged of illegally possessing
(People v. Lumaya, G.R. No. 231983, 2018)
k.
No physical inventory was conducted for the
items taken (People v. Mercader, G.R. No.
233480, 2018)
l.
No photographs of the seized items were
taken (People v. Mercader, G.R. No.
233480, 2018)
Considered violations of chain of custody rule
a.
Accused was not present during the
photography of the seized items (People v.
Cordova, 231130, 2018)
b.
A representative of either the National
Prosecution Service or the media was
absent during the photography and
inventory of the seized items (People v.
Cordova, G.R. No. 231130, 2018)
c.
d.
e.
f.
Three days had passed since the items were
seized from the accused (People v. Cordova,
G.R. No. 231130, 2018)
Two separate inventories were conducted
which were attended by different witnesses
(People v. Cabrellos, G.R. No. 229826,
2018)
The drugs were turned over to the crime
laboratory 10 days after seizure (People v.
Ching, G.R. No. 223556, 2017)
The drugs were turned over immediately to
the crime laboratory, without it being first
delivered to an investigating officer (People
v. Calibod, G.R. No. 230230, 2017)
g.
The drugs were not directly turned over to
the forensic chemist. Instead, it was only left
within the premises of the crime laboratory
(People v. Calibod, G.R. No. 230230, 2017)
h.
There were discrepancies in the labels of the
seized items (People v. Alvaro, G.R. No.
225596, 2018)
Links that the prosecution must endeavor to
establish with respect to the chain of custody
in a buy-bust operation
The following links must be established:
a. Seizure and marking of the illegal drug
recovered from the accused by the
apprehending officer;
b. Turnover of the illegal drug seized by the
apprehending officer to the investigating
officer;
c.
Turn over by the investigating officer of the
illegal drug to the forensic chemist for
laboratory examination; and,
d. Turnover and submission of the marked
illegal drug seized by the forensic
chemist to the court. (People v.
Watamama, G.R. No. 18871, 2014)
IV. Plea bargaining
While Section 23 of the Dangerous Drugs Act
provides that “any person charged under any
provision of this Act regardless of the imposable
penalty shall not be allowed to avail of the
provision on plea-bargaining,” this provision has
been stricken down as unconstitutional in
Estipona v. Hon. Lobrigo (G.R. 226679, 2017) for
being contrary to the rule-making authority of the
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Supreme Court under Section 5 (5), Article VIII of
the Constitution.
TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
V. Other relevant rules
While testimony about a perfect chain is not
always the standard because it is almost always
impossible to obtain, an unbroken chain of
custody
becomes
indispensable
and
essential when the item of real evidence is not
distinctive and is not readily identifiable, or
when its condition at the time of testing or trial
is critical, or when a witness has failed to
observe its uniqueness. The same standard
likewise obtains in case the evidence is
susceptible
to
alteration,
tampering,
contamination and even substitution
and
exchange. In other words, the exhibit’s level of
susceptibility to fungibility, alteration or tampering
– without regard to whether the same is advertent
or otherwise not – dictates the level of strictness
in the application of the chain of custody rule.
(People v. Climaco, G.R. No. 199403, 2012)
L. CODE OF CONDUCT AND ETHICAL
STANDARDS FOR PUBLIC OFFICIALS AND
EMPLOYEES (RA 6713)
1.
Definition of terms (Sec. 3)
2.
Norms of conduct of public officials and
employees (Sec. 4)
3.
Duties of public officials and employees
(Sec. 5)
4.
Prohibited acts (Sec. 7)
5.
Statements and disclosure (Sec. 8)
6.
Divestment (Sec. 9)
7.
Other relevant rules
Non-compliance
with
the
procedural
requirements under RA 9165 and its IRR relative
to the custody, photographing, and drug-testing of
the apprehended persons, is not a serious flaw
that can render void the seizures and custody of
drugs in a buy-bust operation (People v.
Cardenas, G.R. No. 190342, 2012)
A buy-bust operation is valid despite the absence
of a prior surveillance. Prior surveillance is not
required, especially when the team is
accompanied to the scene by the informant
(People of the Philippines v. Camilo D. Nicart and
Manuel T. Capanpan, G.R. No. 182059, 2012)
————- end of topic ————-
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L. CODE OF CONDUCT AND ETHICAL
STANDARDS FOR PUBLIC OFFICIALS
AND EMPLOYEES (RA 6713)
I. Definition of terms
Government
It includes the National Government, the local
governments, and all other instrumentalities,
agencies, or branches of the Republic of the
Philippines, including government-owned or
controlled corporations, and their subsidiaries.
Public Officials
It includes elective and appointive officials and
employees, permanent or temporary, whether in
the career or non-career service, including
military and police personnel, whether or not they
receive compensation, regardless of amount.
Gift
It refers to a thing or a right to dispose of
gratuitously, or any act or liberality, in favor of
another who accepts it, and shall include a
simulated sale or an ostensibly onerous
disposition thereof. It shall not include an
unsolicited gift of nominal or insignificant value
not given in anticipation of, or in exchange for, a
favor from a public official or employee.
Receiving any gift
It includes the act of accepting directly or
indirectly, a gift from a person other than a
member of his family or relative as defined in this
Act, even on the occasion of a family celebration
or national festivity like Christmas, if the value of
the gift is neither nominal nor insignificant, or the
gift is given in anticipation of, or in exchange for,
a favor.
Loan
It covers both simple loan and commodatum as
well as guarantees, financing arrangements or
accommodations intended to ensure its approval.
Substantial stockholder
It means any person who owns, directly or
indirectly, shares of stock sufficient to elect a
director of a corporation. This term shall also
apply to the parties to a voting trust.
CRIMINAL LAW
Family of public officials or employees
It means their spouses and unmarried children
under eighteen (18) years of age.
Person
It includes natural and juridical persons, unless
the context indicates otherwise.
Conflict of interest
It arises when a public official or employee is a
member of a board, an officer, or a substantial
stockholder of a private corporation or owner or
has a substantial interest in a business, and the
interest of such corporation or business, or his
rights or duties therein, may be opposed to or
affected by the faithful performance of official
duty.
Divestment
It is the transfer of title or disposal of interest in
property by voluntarily, completely and actually
depriving or dispossessing oneself of his right or
title to it in favor of a person or persons other than
his spouse and relatives as defined in this Act.
Relatives
It refers to any and all persons related to a public
official or employee within the fourth civil degree
of consanguinity or affinity, including bilas, inso
and balae. (Sec. 3)
II. Norms of conduct of public officials and
employees
Every public official and employee shall observe
the following as standards of personal conduct in
the discharge and execution of official duties:
a.
Commitment to public interest;
b.
Professionalism;
c.
Justness and sincerity;
d.
Political neutrality;
e.
Responsiveness to the public;
f.
Nationalism and patriotism;
g.
Commitment to democracy; and,
h.
Simple living. (Sec. 4)
III. Duties of public officials and employees
In the performance of their duties, all public
officials and employees are under obligation to:
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a.
b.
c.
d.
e.
Act promptly on letters and requests. - All
public officials and employees shall, within
fifteen (15) working days from receipt
thereof, respond to letters, telegrams or
other means of communications sent by the
public. The reply must contain the action
taken on the request.
Submit annual performance reports. - All
heads or other responsible officers of offices
and agencies of the government and of
government-owned
or
controlled
corporations shall, within forty-five (45)
working days from the end of the year,
render a performance report of the agency
or office or corporation concerned. Such
report shall be open and available to the
public within regular office hours.
Process
documents
and
papers
expeditiously. - All official papers and
documents must be processed and
completed within a reasonable time from the
preparation thereof and must contain, as far
as practicable, not more than three (3)
signatories therein. In the absence of duly
authorized signatories, the official next-inrank or officer in charge shall sign for and in
their behalf.
Act immediately on the public's personal
transactions. - All public officials and
employees must attend to anyone who
wants to avail himself of the services of their
offices and must, at all times, act promptly
and expeditiously.
Make documents accessible to the public. All public documents must be made
accessible to, and readily available for
inspection by, the public within reasonable
working hours. (Sec. 4)
b.
c.
IV. Prohibited acts
In addition to acts and omissions of public officials
and employees now prescribed in the
Constitution and existing laws, the following shall
constitute prohibited acts and transactions of any
public official and employee and are hereby
declared to be unlawful:
a. Financial and material interest – Public
officials and employees shall not, directly or
d.
indirectly, have any financial or material
interest in any transaction requiring the
approval of their office.
Outside employment and other activities
related thereto – Public officials and
employees during their incumbency shall
not:
1. Own, control, manage or accept
employment as officer, employee,
consultant, counsel, broker, agent,
trustee or nominee in any private
enterprise regulated, supervised or
licensed by their office unless expressly
allowed by law;
2. Engage in the private practice of their
profession unless authorized by the
Constitution or law, provided, that such
practice will not conflict or tend to
conflict with their official functions; or
3. Recommend any person to any position
in a private enterprise which has a
regular or pending official transaction
with their office.
These prohibitions shall continue to apply
for a period of one (1) year after
resignation, retirement, or separation
from public office, except in the case of
subparagraph (b) (2) above, but the
professional concerned cannot practice
his profession in connection with any
matter before the office he used to be
with, in which case the one-year
prohibition shall likewise apply.
Disclosure and/or misuse of confidential
information – Public officials and employees
shall not use or divulge, confidential or
classified information officially known to
them by reason of their office and not made
available to the public, either:
1. To further their private interests, or give
undue advantage to anyone; or
2. To prejudice the public interest.
Solicitation or acceptance of gifts – Public
officials and employees shall not solicit or
accept, directly or indirectly, any gift, gratuity,
favor, entertainment, loan or anything of
monetary value from any person in the
course of their official duties or in connection
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with any operation being regulated by, or any
transaction which may be affected by the
functions of their office.
As to gifts or grants from foreign
governments, the Congress consents to:
1. The acceptance and retention by a
public official or employee of a gift of
nominal value tendered and received
as a souvenir or mark of courtesy;
2. The acceptance by a public official or
employee of a gift in the nature of a
scholarship or fellowship grant or
medical treatment; or
3. The acceptance by a public official or
employee of travel grants or expenses
for travel taking place entirely outside
the Philippine (such as allowances,
transportation, food, and lodging) of
more than nominal value if such
acceptance is appropriate or consistent
with the interests of the Philippines, and
permitted by the head of office, branch
or agency to which he belongs.
V. Statements and disclosure
Public officials and employees have an obligation
to accomplish and submit declarations under oath
of, and the public has the right to know, their
assets, liabilities, net worth and financial and
business interests including those of their
spouses and of unmarried children under
eighteen (18) years of age living in their
households.
a. Statements of Assets and Liabilities and
Financial Disclosure
All public officials and employees, except those
who serve in an honorary capacity, laborers and
casual or temporary workers, shall file under oath
their Statement of Assets, Liabilities and Net
Worth and a Disclosure of Business Interests and
Financial Connections and those of their spouses
and unmarried children under eighteen (18) years
of age living in their households.
CRIMINAL LAW
Contents
a. real property, its improvements, acquisition
costs, assessed value and current fair
market value;
b. personal property and acquisition cost;
c. all other assets such as investments, cash
on hand or in banks, stocks, bonds, and the
like;
d. liabilities, and;
e. all business interests and financial
connections.
When to file
a. within thirty (30) days after assumption of
office;
b. on or before April 30, of every year
thereafter; and
c. within thirty (30) days after separation from
the service.
Additional requirements
All public officials and employees required under
this section to file the aforestated documents
shall also execute, within thirty (30) days from the
date of their assumption of office, the necessary
authority in favor of the Ombudsman to obtain
from all appropriate government agencies,
including the Bureau of Internal Revenue, such
documents as may show their assets, liabilities,
net worth, and also their business interests and
financial connections in previous years, including,
if possible, the year when they first assumed any
office in the Government.
Husband and wife who are both public officials
or employees may file the required statements
jointly or separately.
Who shall file
a. Constitutional and national elective officials,
with the national office of the Ombudsman;
b. Senators and Congressmen, with the
Secretaries of the Senate and the House of
Representatives, respectively; Justices, with
the Clerk of Court of the Supreme Court;
Judges, with the Court Administrator; and all
national executive officials with the Office of
the President.
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c.
d.
e.
Regional and local officials and employees,
with the Deputy Ombudsman in their
respective regions;
Officers of the armed forces from the rank of
colonel or naval captain, with the Office of
the President, and those below said ranks,
with the Deputy Ombudsman in their
respective regions; and
All other public officials and employees,
defined in Republic Act No. 3019, as
amended,
with
the
Civil
Service
Commission.
b. Identification and disclosure of relatives
It shall be the duty of every public official or
employee to identify and disclose, to the best of
his knowledge and information, his relatives in the
Government in the form, manner and frequency
prescribed by the Civil Service Commission.
c. Accessibility of documents
a.
b.
c.
d.
Any and all statements filed under this Act,
shall be made available for inspection at
reasonable hours.
Such statements shall be made available for
copying or reproduction after ten (10)
working days from the time they are filed as
required by law.
Any person requesting a copy of a statement
shall be required to pay a reasonable fee to
cover the cost of reproduction and mailing of
such statement, as well as the cost of
certification.
Any statement filed under this Act shall be
available to the public for a period of ten (10)
years after receipt of the statement. After
such period, the statement may be
destroyed unless needed in an ongoing
investigation.
d. Prohibited acts
It shall be unlawful for any person to obtain or use
any statement filed under this Act for:
a. any purpose contrary to morals or public
policy; or
b.
any commercial purpose other than by news
and
communications
media
for
dissemination to the general public. (Sec. 8)
VI. Divestment
A public official or employee shall avoid conflicts
of interest at all times. When a conflict of interest
arises, he shall resign from his position in any
private business enterprise within thirty (30) days
from his assumption of office and/or divest
himself of his shareholdings or interest within
sixty (60) days from such assumption.
The same rule shall apply where the public
official or employee is a partner in a
partnership.
The requirement of divestment shall not apply to
those who serve the Government in an
honorary capacity nor to laborers and casual
or temporary workers. (Sec. 9)
VII. Other relevant rules
To warrant dismissal from the service, the
misconduct must be grave, serious, important,
weighty, momentous, and not trifling. The
misconduct must imply wrongful intention and not
a mere error of judgment. Corruption as an
element of grave misconduct consists in the act
of an official or employee who unlawfully or
wrongfully uses her station or character to
procure some benefit for herself or for another, at
the expense of the rights of others. Nonetheless,
"a person charged with grave misconduct may be
held liable for simple misconduct if the
misconduct does not involve any of the additional
elements to qualify the misconduct as grave.
Grave misconduct necessarily includes the lesser
offense of simple misconduct." (GSIS v.
Mayordomo, G.R. No. 191218, 2011)
A gift is covered by the prohibition, so long as it
has more than nominal monetary value. It is not
necessary for the solicitation to be for a fundraising project. The mere fact that the gift
received was unsolicited cannot, by itself, suffice
to exonerate the recipient. It would only suffice to
exonerate the recipient if the unsolicited gift is
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also nominal in value and not given in anticipation
of, or in exchange for, a favor. In such a situation,
the gift would fall outside the purview of RA 6713,
which expressly provides that the term "gift" does
"not include an unsolicited gift of nominal or
insignificant value[;] not given in anticipation of, or
in exchange for, a favor from a public official or
employee. (Mabini v. Raga, A.M. No. P-06-2150,
2006)
Cases
Dichaves v. Office of the Ombudsman, G.R. No.
206310-11, 2016
On August 26, 1999, a person opened a Savings
Account with the Equitable Banking Corporation
and Equitable-PCI Bank, under a fictitious name
“Jose Velarde”. Aside from these, a Current
Account and Investment Management Trust
Account were opened as well. On February 4,
2000, a P500 million was withdrawn from the
Savings Account by former President X. Y claims
ownership of the said accounts, asserting that he
used the alias “Jose Velarde” for security
purposes. In the first complaint, Y was accused of
direct bribery, indirect bribery, corruption of public
officials, and violations of PD 46. In another
complaint, Y is accused of violating RA 6713, RA
3019 or the Anti-Graft and Corrupt Practices Act,
and plunder under RA 8080. On September 12,
2007, X was found guilty beyond reasonable
doubt of the crime of plunder.
The
Sandiganbayan ruled that X was the real and
beneficial owner of the "Jose Velarde" account.
The Ombudsman commenced the preliminary
investigation in 2011, and found probable cause
to charge him with plunder in 2012. Y was
indicted for conspiring with the former President
in amassing ill-gotten wealth. Did the Office of the
Ombudsman gravely abuse its discretion in
finding probably cause against X to charge him of
plunder, by incorrectly considering pieces of
evidence allegedly not presented during the
preliminary investigation?
No. As a general rule, this Court does not interfere
with the Office of the Ombudsman's exercise of
its constitutional mandate. Both the Constitution
and Republic Act No. 6770 (The Ombudsman Act
of 1989) give the Ombudsman wide latitude to act
CRIMINAL LAW
on criminal complaints against public officials and
government employees. The rule on noninterference is based on the "respect for the
investigatory and prosecutory powers granted by
the Constitution to the Office of the Ombudsman.
As an independent constitutional body, it has the
sole power to determine whether there is
probably cause to warrant the filing of a criminal
case against an accused; this function is
executive in nature. Further, the public prosecutor
is not bound by the technical rules on evidence.
The executive finding of probable cause requires
only substantial evidence, not absolute certainty
of guilt. As the Office of the Ombudsman's
conclusion is based on a belief or an opinion, the
technical rules on evidence cannot be made to
apply to it. This Court finds no reason to violate
the policy of non-interference in the exercise of
the Ombudsman's constitutionally mandated
powers. The Ombudsman's ruling must be
respected.
Office of the Ombudsman v. Regalado, G.R.
208481-82, 2018
Respondent X is an immigration officer in the
Davao Office of the Bureau of Immigration
wherein complainant Y was requesting for an
accreditation for admission of foreign student’s in
her preparatory school. X claims that a
processing fee of Php 50,000 was necessary plus
honorariums for the accreditors since they will
come from outside Mindanao. X was then found
guilty by the lower courts for violating Section 7(d)
of R.A. 6713 (CODE OF CONDUCT AND
ETHICAL
STANDARDS
FOR
PUBLIC
OFFICIALS AND EMPLOYEES) for solicitations
of any gift, gratuity, loan or anything of monetary
value since it was discovered that the actual
processing fee was only Php 10,000 pesos no
more no less. The excess amount being asked for
was admittedly for red tape or bribe purposes.
The court of appeals however, instead of
dismissing her from service, applied a mitigating
circumstances of her “good work performance”
and being a first time offender which they
rendered a judgment of only 1 year suspension
without pay. Is X guilty for violating Article 7(d) of
R.A. 6713 and is it possible to lower the penalty
through a mitigating circumstance?
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Yes she is guilty of violating such law
since she admitted that such acts of
bribery and solicitation of money were
common and accepted practice in the
immigration department. It was a clear
and overt violation of the law provided. It
was not possible to lower the penalty by
a mitigating circumstance of “good work
performance” and as a first time offender
because of the absence that such
penalty was subject to a mitigating
circumstance and the law is clear in
providing the penalty of dismissal even
on the first offense.
————- end of topic ————TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
M. ANTI-GRAFT AND CORRUPT PRACTICES
ACT (RA 3019, AS AMENDED BY RA 3047, PD
677, PD 1288, BP 195 AND RA 10910)
1.
Definition of terms (Sec. 2)
2.
Punishable acts (Sec. 3)
3.
Prohibitions on individuals (Secs. 4 to 6)
4.
Statement of assets and liabilities (Sec.
7)
5.
Dismissal due to unexplained wealth
(Sec. 8)
6.
Other relevant rules
M. ANTI-GRAFT AND CORRUPT PRACTICES
ACT (RA 3019, AS AMENDED BY RA 3047,
PD 677, PD 1288, BP 195 AND RA 10910)
I. Definition of terms
Government
It includes the national government, the local
governments, the government-owned and
government-controlled corporations, and all
other instrumentalities or agencies of the
Republic of the Philippines and their branches.
Public officer
It includes elective and appointive officials and
employees, permanent or temporary, whether
in the classified or unclassified or exempt service
receiving compensation, even nominal, from the
government as defined in the preceding
subparagraph.
Receiving any gift
It includes the act of accepting directly or
indirectly a gift from a person other than a
member of the public officer's immediate family,
in behalf of himself or of any member of his family
or relative within the fourth civil degree, either by
consanguinity or affinity, even on the occasion of
a family celebration or national festivity like
Christmas, if the value of the gift is under the
circumstances manifestly excessive. (Sec. 2)
II. Punishable acts
In addition to acts or omissions of public officers
already penalized by existing law, the following
shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful:
a. Persuading, inducing or influencing another
public officer to perform an act constituting a
violation of rules and regulations duly
promulgated by competent authority or an
offense in connection with the official duties of
the latter, or allowing himself to be persuaded,
induced, or influenced to commit such
violation or offense.
Note: The persuasion need not be successful.
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b. Directly or indirectly requesting or receiving
any gift, present, share, percentage, or
benefit, for himself or for any other person, in
connection with any contract or transaction
between the Government and any other part,
wherein the public officer in his official
capacity has to intervene under the law.
Notes:
• Sec. 3(b) of R.A. No. 3019, refers to a
public officer whose official intervention is
required by law in a contract or
transaction (Jaravata v. Sandiganbayan
G.R. L-56170, 1984)
• Lack of “demand” is immaterial since the
provision uses the word “or” between
requesting and receiving.
• There must be a clear intention on the
part of the public officer to take the gift so
offered and consider it as his or her own
property from then on. Mere physical
receipt is not sufficient that the crime has
been committed. (Peligrino v. People
G.R. 136266, 2001)
• Conspiracy by silence and inaction
occurs when the accused are all heads of
their respective offices that perform
interdependent
functions
in
the
processing of cash advances and, exhibit
an attitude of “buck- passing” [the
practice of shifting the responsibility for
something to someone else] in the face
of the irregularities (Jaca v. People, G.R.
No. 166967, 2013)
c. Directly or indirectly requesting or receiving
any gift, present or other pecuniary or material
benefit, for himself or for another, from any
person for whom the public officer, in any
manner or capacity, has secured or obtained,
or will secure or obtain, any Government
permit or license, in consideration for the help
given or to be given, without prejudice to
Section thirteen of this Act.
d. Accepting or having any member of his family
accept employment in a private enterprise
which has pending official business with him
during the pendency thereof or within one year
after its termination.
CRIMINAL LAW
e. Causing any undue injury to any party,
including the Government, or giving any
private party any unwarranted benefits,
advantage or preference in the discharge of
his official administrative or judicial functions
through manifest partiality, evident bad faith or
gross inexcusable negligence. This provision
shall apply to officers and employees of offices
or government corporations charged with the
grant of licenses or permits or other
concessions.
Notes:
• A violation of this provision may be committed
either by dolo, as when the accused acted
with evident bad faith or manifest partiality, or
by culpa as when the accused acted with
gross inexcusable negligence (Jaca v.
People, G.R. No. 166967, 2013)
• Manifest Partiality – synonymous with "bias"
(Fonacier v. Sandiganbayan, G.R. No. L50691, 1994)
• Bad faith – imputes a dishonest purpose or
some moral obliquity and conscious doing of
a wrong; it partakes of the nature of fraud
(Fonacier v. Sandiganbayan, G.R. No. L50691, 1994)
• Gross negligence – as negligence
characterized by the want of even slight care,
acting or omitting to act in a situation where
there is a duty to act, not inadvertently but
willfully and intentionally with a conscious
indifference to consequences in so far as
other persons may be affected (Fonacier v.
Sandiganbayan, G.R. No. L-50691, 1994)
• The inclusion of all the modes of violating
Section 3(e) of R.A. 3019 in the charge sheet
is not equivalent to charging the accused with
3 acts. The use of the three phrases
"manifest partiality," "evident bad faith" and
"gross inexcusable negligence" in the same
information does not mean that the
indictment charges three distinct offenses but
only implies that the offense charged may
have been committed through any of the
modes provided by the law (Fonacier v.
Sandiganbayan, G.R. No. L-50691, 1994)
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•
There is no attempted or frustrated stage of
the crime defined in Sec. 3(e) of R.A. No.
3019.
f.
Neglecting or refusing, after due demand or
request, without sufficient justification, to act
within a reasonable time on any matter
pending before him for the purpose of
obtaining, directly or indirectly, from any
person interested in the matter some
pecuniary or material benefit or advantage,
or for the purpose of favoring his own
interest or giving undue advantage in favor
of or discriminating against any other
interested party.
g.
Entering, on behalf of the Government, into
any contract or transaction manifestly and
grossly disadvantageous to the same,
whether or not the public officer profited or
will profit thereby.
Notes:
• Determining whether the contract was
manifestly and grossly disadvantageous
is not merely based on consideration of
the pecuniary amount involved. (Marcos
v. Sandiganbayan, G.R. No. 126995,
1998)
• This partakes of the nature of malum
prohibitum (Go v. Sandiganbayan, G.R.
No. 172602, 2007)
• Section 3(g) of RA 3019 is for PUBLIC
OFFICERS ONLY. The liability of private
individuals who participated in the
transaction must be established under
another MORE appropriate provision,
which is Section 4(b) of RA 3019, for
knowingly inducing or causing the public
officers to commit crimes punished under
Section 3(g) where criminal intent must
necessarily be proved. This is in clear
recognition that Section 3(g), a malum
prohibitum, specifically applies to public
officers only (Go v. Sandiganbayan, G.R.
No. 172602, 2007)
• Where the government was amply
protected in the subject transaction, and
consequently the contract was not
•
grossly and manifestly disadvantageous
to the government, it was held that one of
the elements of the crime, i.e., that the
contract or transaction is grossly and
manifestly disadvantageous to the
government, is conspicuously missing
(Froilan v. Sandiganbayan, G.R. No.
115221, 2000)
There is no need to prove the validity of
the contract or transaction. (Luciano v.
Estrella, G.R. No. L- 31622, 1970)
h. Directly or indirectly having financing or
pecuniary interest in any business, contract or
transaction in connection with which he
intervenes or takes part in his official capacity,
or in which he is prohibited by the Constitution
or by any law from having any interest.
Note: Actual intervention is required.
i. Directly or indirectly becoming interested, for
personal gain, or having a material interest in
any transaction or act requiring the approval
of a board, panel or group of which he is a
member, and which exercises discretion in
such approval, even if he votes against the
same or does not participate in the action of
the board, committee, panel or group.
Interest for personal gain shall be presumed
against those public officers responsible for the
approval of manifestly unlawful, inequitable, or
irregular transaction or acts by the board, panel
or group to which they belong.
j. Knowingly approving or granting any license,
permit, privilege or benefit in favor of any
person not qualified for or not legally entitled
to such license, permit, privilege or advantage,
or of a mere representative or dummy of one
who is not so qualified or entitled.
k. Divulging
valuable
information
of
a
confidential character, acquired by his office or
by him on account of his official position to
unauthorized persons, or releasing such
information in advance of its authorized
release date.
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compliance with requisites provided by law,
or rules or regulations issued pursuant to
law, nor to any act lawfully performed in an
official capacity or in the exercise of a
profession (Sec. 5)
III. Prohibitions on individuals
Prohibition on private individuals.
It shall be unlawful for any person having family
or close personal relation with any public
official to capitalize or exploit or take
advantage of such family or close personal
relation by directly or indirectly requesting or
receiving any present, gift or material or
pecuniary advantage from any other person
having some business, transaction, application,
request or contract with the government, in which
such public official has to intervene.
Family relation shall include the spouse or
relatives by consanguinity or affinity in the third
civil degree.
Close personal relation shall include close
personal friendship, social and fraternal
connections, and professional employment all
giving rise to intimacy which assures free access
to such public officer. (Sec. 4)
Prohibition on certain relatives.
It shall be unlawful for the spouse or for any
relative, by consanguinity or affinity, within the
third civil degree, of the President of the
Philippines, the Vice-President of the
Philippines, the President of the Senate, or the
Speaker of the House of Representatives, to
intervene, directly or indirectly, in any business,
transaction, contract or application with the
Government.
This prohibition shall not apply to the following:
a.
b.
any person who prior to the assumption of
office of any of the above officials to whom
he is related, has been already dealing with
the Government along the same line of
business; nor,
to any transaction, contract or application
already existing or pending at the time of
such assumption of public office, nor to any
application filed by him the approval of which
is not discretionary on the part of the official
or officials concerned but depends upon
Prohibition on Members of Congress
It shall be unlawful hereafter for any Member of
the Congress during the term for which he has
been elected, to acquire or receive any personal
pecuniary interest in any specific business
enterprise which will be directly and particularly
favored or benefited by any law or resolution
authored by him previously approved or adopted
by the Congress during the same term.
This also applies to any other public officer who
recommended the initiation in Congress of the
enactment or adoption of any law or resolution,
and acquires or receives any such interest during
his incumbency.
It shall likewise be unlawful for such member of
Congress or other public officer, who, having such
interest prior to the approval of such law or
resolution authored or recommended by him,
continues for thirty days after such approval
to retain such interest. (Sec. 6)
IV. Statement of assets and liabilities
What to file
A true detailed and sworn statement of assets and
liabilities, including a statement of the amounts
and sources of his income, the amounts of his
personal and family expenses and the amount of
income taxes paid for the next preceding
calendar year
Who shall file
Every public officer
When to file
a.
after assuming office, and within the month
of January of every other year thereafter;
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b.
upon the expiration of his term of office, or
upon his resignation or separation from
office;
c.
public officers assuming office less than two
months before the end of the calendar year,
may file their statements in the following
months of January.
To whom shall it be submitted
the
Prosecution under AMLA
a.
In the office of
Department Head, or
b.
in the case of a Head of Department or chief
of an independent office, with the Office of
the President, or
c.
In the case of members of the Congress and
the officials and employees thereof, with the
Office of the Secretary of the corresponding
House (Sec. 7)
corresponding
V. Dismissal due to unexplained wealth
The following are prima facie evidence of and
grounds for dismissal due to unexplained wealth
if any public official is found:
a.
Public officers charged under this Act must first
undergo a pre-suspension hearing before being
suspended. A pre-suspension hearing is required
to determine the validity of the information.
However, an actual hearing is not necessary. All
that is required is that the accused be given an
opportunity
to
be
heard.
(Miguel
v.
Sandiganbayan, G.R. 172035, 2012)
To have acquired during his incumbency, an
amount of property and/or money manifestly
out of proportion to his income;
b.
Properties in the name of the spouse and
dependents of such public official may be
taken into consideration; or
c.
Bank deposits in the name of or manifestly
excessive expenditures incurred by the
public official or any of their dependents.
(Sec. 8)
The prosecution of any offense or violation under
the AMLA shall proceed independently of any
proceeding relating to the unlawful activity.
(Section 6 (b), R.A. No. 10365 amending RA
9160, as amended).
————- end of topic ————TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
N. ANTI-PLUNDER ACT
AMENDED BY RA 7659)
(RA
7080,
AS
1. Definition of terms
2. Elements (Sec. 12)
3. Prescription (Sec. 6)
4. Other relevant rules
VI. Other relevant rules
Prescription
20 years (Sec. 1, RA 10910)
Competent court
Sandiganbayan
Pre-suspension hearing
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N. ANTI-PLUNDER ACT (RA
AMENDED BY RA 7659)
I.
7080,
AS
Definition of terms
a. Ill-gotten wealth
It refers to any asset, property, business
enterprise or material possession of any person,
acquired by him directly or indirectly through
dummies, nominees, agents, subordinates and/or
business associates by any combination or
series of the following means or similar
schemes:
1.
2.
3.
4.
5.
6.
Through misappropriation, conversion,
misuse, or malversation of public funds or
raids on the public treasury;
By receiving, directly or indirectly, any
commission, gift, share, percentage,
kickbacks or any other form of pecuniary
benefit from any person and/or entity in
connection with any government contract or
project or by reason of the office or position
of the public officer concerned;
By the illegal or fraudulent conveyance or
disposition of assets belonging to the
National Government or any of its
subdivisions, agencies or instrumentalities
or
government-owned
or
-controlled
corporations and their subsidiaries;
By obtaining, receiving or accepting directly
or indirectly any shares of stock, equity or
any other form of interest or participation
including promise of future employment in
any business enterprise or undertaking;
By establishing agricultural, industrial or
commercial
monopolies
or
other
combinations and/or implementation of
decrees and orders intended to benefit
particular persons or special interests; or
By taking undue advantage of official
position, authority, relationship, connection
or influence to unjustly enrich himself or
themselves at the expense and to the
damage and prejudice of the Filipino people
and the Republic of the Philippines.
b. Combination
It refers to at least two (2) acts falling under
different categories of enumeration provided in
the definition of “ill-gotten wealth.”
Example: raids on the public treasury and
fraudulent conveyance of assets belonging to the
National
Government
(Estrada
v.
Sandiganbayan, G.R. No. 148560, 2001)
c. Series
It refers to two (2) or more overt or criminal acts
falling under the same category of enumeration
found in the definition of “ill-gotten wealth.”
Example: Misappropriation, malversation and
raids on the public treasury, all of which falling
under item (1) in the enumeration under the
definition of “ill-gotten wealth.” (Estrada v.
Sandiganbayan, G.R. No. 148560, 2001)
d. Pattern
It consists of at least a combination or series of
overt or criminal acts enumerated under the
definition of “ill-gotten wealth,” directed towards
a common purpose or goal which is to enable
the public officer to amass, accumulate or acquire
ill-gotten wealth. There must either be an “overall
unlawful scheme” or “conspiracy” to achieve
said common goal.
Overall unlawful scheme
It indicates a 'general plan of action or method'
which the principal accused and public officer and
others conniving with him follow to achieve the
aforesaid common goal.
Absence of such overall scheme or where the
schemes or methods used by multiple accused
vary, the overt or criminal acts must form part of
a conspiracy to attain a common goal. (Estrada v.
Sandiganbayan, G.R. No. 148560, 2001)
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II. Elements
Rule of evidence
Elements of plunder
To establish the crime of plunder, it shall not be
necessary to prove each and every criminal
act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern
of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy. (Sec. 4, RA 7080)
1.
That the offender is a public officer who acts
by himself or in connivance with members of
his family, relatives by affinity or
consanguinity,
business
associates,
subordinates, or other persons;
2.
That he amassed, accumulated or acquired
ill-gotten wealth through a combination or
series using the means or similar scheme
enumerated under the definition of “ill-gotten
wealth” above; and,
3.
III.
That the aggregate amount or total value of
the ill-gotten wealth amassed, accumulated
or acquired is at least P50,000,000.00. (Sec.
12, RA 7659)
Prescription
The crime of plunder shall prescribe in twenty (20)
years.
However, the right of the State to recover
properties unlawfully acquired by public officers
from them or from their nominees or transferees
shall not be barred by prescription, laches, or
estoppel. (Sec. 6, RA 7080)
Jurisdiction
Unless otherwise provided by law, all
prosecutions for the crime of plunder shall be
within
the
original
jurisdiction
of
the
Sandiganbayan (Sec. 3, RA 7080)
Plunder is a crime malum in se
The legislative declaration in R.A. No. 7659 that
plunder is a heinous offense implies that it is a
malum in se. For when the acts punished are
inherently immoral or inherently wrong, they are
mala in se and it does not matter that such acts
are punished in a special law, especially since in
the case of plunder the predicate crimes are
mainly mala in se. (Estrada v. Sandiganbayan,
G.R. No. 148530, 2001)
Wheel or circle conspiracy
IV. Other relevant rules
Any person who participated with the said public
officer in the commission of an offense
contributing to the crime of plunder shall likewise
be liable for the crime of plunder.
In the imposition of penalties, the degree of
participation and the attendance of mitigating and
extenuating circumstances, as provided by the
Revised Penal Code, shall be considered by the
court.
The court shall declare any and all ill-gotten
wealth and their interests and other incomes and
assets including the properties and shares of
stocks derived from the deposit or investment
thereof forfeited in favor of the State. (Sec. 12, RA
7659)
In the wheel or circle conspiracy, a person or a
group (“hub”) deals with 2 or more persons or
groups (“spokes”), to achieve the common goal of
amassing and accumulating ill-gotten wealth. A
public officer need not be the “hub” because what
Sec. 2 merely requires is that the public officer
must be in connivance with others. In other
words, such public officer, by his individual acts,
agreed to participate, directly or indirectly, in the
amassing, accumulation and acquisition of illgotten wealth with others in a wheel conspiracy
either as a hub or part of spokes. (MacapagalArroyo v. People, G.R. No. 220598, 2017)
————- end of topic ————-
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TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
O. ANTI-MONEY LAUNDERING ACT OF 2001
(RA 9160, as amended by RA 9194, RA 10167,
RA 10365 AND RA 10927)
1. Definition of terms (Sec. 3)
2.
Money laundering offense (Sec. 4)
3.
Jurisdiction; Prosecution (Secs. 5 and 6)
4.
Issuance of Freeze Order
5.
Other relevant rules
O. ANTI-MONEY LAUNDERING ACT OF 2001
(RA 9160, as amended by RA 9194, RA
10167, RA 10365 AND RA 10927)
I. Definition of terms
Covered institution
It refers to the following:
a. banks, non-banks, quasi-banks, trust
entities, and all other institutions and their
subsidiaries and affiliates supervised or
regulated by the Bangko Sentral ng Pilipinas
(BSP);
b. Insurance companies and all other
institutions supervised or regulated by the
Insurance Commission;
(i) securities dealers, brokers, salesmen,
investment houses and other similar
entities managing securities or rendering
services as investment agent, advisor, or
consultant,
(ii) mutual funds, close and investment
companies, common trust funds, preneed companies and other similar
entities,
(iii) foreign exchange corporations, money
changers, money payment, remittance,
and transfer companies and other similar
entities, and
(iv) other entities administering or otherwise
dealing in currency, commodities or
financial derivatives based thereon,
valuable objects, cash substitutes and
other similar monetary instruments or
property supervised or regulated by
Securities and Exchange Commission;
c. Jewelry dealers in precious metals, who, as
a business, trade in precious metals, for
transactions in excess of P1,000,000.00;
d. jewelry dealers in precious stones, who, as
a business, trade in precious stones, for
transactions in excess of P1,000,000.00;
e. company service providers which, as a
business, provide any of the following
services to third parties: (i) acting as a
formation agent of juridical persons; (ii)
acting as (or arranging for another person to
act as) a director or corporate secretary of a
company, a partner of a partnership, or a
similar position in relation to other juridical
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f.
persons; (iii) providing a registered office,
business address or accommodation,
correspondence or administrative address
for a company, a partnership or any other
legal person or arrangement; and (iv) acting
as (or arranging for another person to act as)
a nominee shareholder for another person;
and
persons who provide any of the following
services: (i) managing of client money,
securities or other assets; (ii) management
of bank, savings or securities accounts; (iii)
organization of contributions for the creation,
operation or management of companies;
and (iv) creation, operation or management
of juridical persons or arrangements, and
buying and selling business entities. (Sec. 1,
RA 10365)
‘Precious metals’ shall mean gold, silver, ,
platinum, palladium, rhodium, ruthenium, iridium
and osmium. These include alloys of precious
metals, solders and plating chemicals such as
rhodium and palladium plating solutions and
potassium gold cyanide and potassium silver
cyanide and silver cyanide in salt solution.
'Precious stones' shall mean diamond, ruby,
emerald, sapphire, opal, amethyst, beryl, topaz,
and garnet that are used in jewelry making,
including those formerly classified as semiprecious stones. (Sec. 3. RA 10365)
a.
For purposes of covered persons, the
following terms are hereby defined as
follows:
i.
Casino – a business authorized by the
appropriate government agency to
engage in gaming operations
ii.
Internet-based casino – casinos in
which persons participate by the use
of remote communication facilities
such as, but not limited to, telephone,
television, radio, or any other kind of
electronic or other technology for
facilitating communication
iii.
Ship-based casino – casinos, the
operation of which is undertaken on
board a vessel, ship, boat, or any
iv.
v.
other water-based craft wholly or
partly intended for gambling
Casino
cash
transaction
–
transactions involving the receipt of
case by a casino paid by or on behalf
of a customer, or transactions
involving the payout of cash by a
casino to a customer or to ny person
in his/her behalf
Gaming operations – activities of the
casino offering games of chance and
any variations thereof approved by the
appropriate government authority
(Sec. 3, RA 10927)
The term ‘covered persons’ shall exclude lawyers
and accountants acting as independent legal
professionals in relation to information
concerning their clients or where disclosure of
information would compromise client confidences
or the attorney-client relationship: Provided, that
these lawyers and accountants are authorized to
practice in the Philippines and shall continue to
be subject to the provisions of their respective
codes
of
conduct
and/or
professional
responsibility or any of its amendments. (Sec. 1,
RA 10365)
Covered transaction
It refers to a transaction in cash or other
equivalent monetary instrument involving a total
amount in excess of P500,000.00 within one (1)
banking day.
For covered persons under Section 3(a)(8), a
single casino cash transaction involving an
amount in excess of five million pesos (P
5,000,000.00) or its equivalent in any other
currency (Sec. 2, RA 10927)
Unlawful activity
It refers to any act or omission or series or
combination thereof involving or having relation to
the following:
a. Kidnapping for ransom under RPC, as
amended;
b. Sections 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15
and 16 of RA 9165 or the Comprehensive
Dangerous Drugs Act of 2002;
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c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
n.
o.
p.
q.
r.
s.
t.
Section 3 paragraphs B, C, E, G, H and I of
RA 3019, as amended, or the Anti-Graft and
Corrupt Practices Act;
Plunder under RA 7080, as amended;
Robbery and extortion under Articles 294,
295, 296, 299, 300, 301 and 302 of the RPC,
as amended;
Jueteng and Masiao punished as illegal
gambling under PD 1602;
Piracy on the high seas under RPC, as
amended and PD 532;
Qualified theft under Article 310 of the RPC,
as amended;
Swindling under Article 315 and Other Forms
of Swindling under Article 316 of the RPC, as
amended;
Smuggling under RA 455 and RA 1937;
Violations of RA 8792 or the Electronic
Commerce Act of 2000;
Hijacking and other violations under RA
6235; destructive arson and murder, as
defined under the RPC, as amended;
Terrorism and conspiracy to commit
terrorism as defined and penalized under
Sections 3 and 4 of RA 9372;
Financing of terrorism under Section 4 and
offenses punishable under Sections 5, 6, 7
and 8 of RA 10168, or the Terrorism
Financing Prevention and Suppression Act
of 2012:
Bribery under Articles 210, 211 and 211-A of
the RPC, as amended, and Corruption of
Public Officers under Article 212 of the RPC,
as amended;
Frauds
and
Illegal
Exactions
and
Transactions under Articles 213, 214, 215
and 216 of the RPC as amended;
Malversation of Public Funds and Property
under Articles 217 and 222 of the RPC, as
amended;
Forgeries and Counterfeiting under Articles
163, 166, 167, 168, 169 and 176 of the RPC,
as amended;
Violations of Sections 4 to 6 of RA. 9208, or
the Anti-Trafficking in Persons Act of 2003;
Violations of Sections 78 to 79 of Chapter IV,
of PD 705, or the Revised Forestry Code of
the Philippines, as amended;
u.
v.
w.
x.
y.
z.
aa.
bb.
cc.
dd.
ee.
ff.
gg.
hh.
Violations of Sections 86 to 106 of Chapter
VI, of RA 8550, or the Philippine Fisheries
Code of 1998;
Violations of Sections 101 to 107, and 110 of
RA 7942, or the Philippine Mining Act of
1995;
Violations of Section 27(c), (e), (f), (g) and
(i), of RA 9147, or the Wildlife Resources
Conservation and Protection Act;
Violation of Section 7(b) of RA 9072, or the
National Caves and Cave Resources
Management Protection Act;
Violation of RA 6539, or the Anti-Carnapping
Act of 2002, as amended;
Violations of Sections 1, 3 and 5 of PD 1866,
as amended, or the decree Codifying the
Laws on Illegal/Unlawful Possession,
Manufacture, Dealing In, Acquisition or
Disposition of Firearms, Ammunition or
Explosives;
Violation of PD 1612, otherwise known as
the Anti-Fencing Law;
Violation of Section 6 of RA 8042, or the
Migrant Workers and Overseas Filipinos Act
of 1995, as amended by Republic Act No.
10022;
Violation of RA 8293, or the Intellectual
Property Code of the Philippines;
Violation of Section 4 of RA 9995, or the AntiPhoto and Video Voyeurism Act of 2009;
Violation of Section 4 of RA 9775, or the AntiChild Pornography Act of 2009;
Violations of Sections 5, 7, 8, 9, 10(c), (d)
and (e), 11, 12 and 14 of RA 7610, or the
Special Protection of Children Against
Abuse, Exploitation and Discrimination;
Fraudulent practices and other violations
under RA 8799, or the Securities Regulation
Code of 2000; and
Felonies or offenses of a similar nature that
are punishable under the penal laws of other
countries. (Sec. 2, RA 10365)
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II.
Money laundering offense
Money laundering is a crime whereby the
proceeds of an unlawful activity are
transacted, thereby making them appear to
have originated from legitimate sources.
Who are liable
Money laundering is committed by any person
who, knowing that any monetary instrument or
property represents, involves, or relates to the
proceeds of any unlawful activity:
a. transacts said monetary instrument or
property;
b. converts, transfers, disposes of, moves,
acquires, possesses or uses said monetary
instrument or property;
c. conceals or disguises the true nature,
source, location, disposition, movement or
ownership of or rights with respect to said
monetary instrument or property;
d. attempts or conspires to commit money
laundering
offenses referred to in
paragraphs (a), (b) or (c);
e. aids, abets, assists in or counsels the
commission of the money laundering
offenses referred to in paragraphs (a), (b) or
(c) above; and performs or fails to perform
any act as a result of which he facilitates the
offense of money laundering referred to in
paragraphs (a), (b) or (c) above; or
f.
Any covered person who, knowing that a
covered or suspicious transaction is required
under this Act to be reported to the AntiMoney Laundering Council (AMLC), fails to
do so. (Sec. 4, RA 10365)
III.
Jurisdiction; Prosecution
Jurisdiction
The Regional Trial Courts shall have jurisdiction
to try all cases on money laundering.
If committed by public officers and private
persons who are in conspiracy with such public
officers shall be under the jurisdiction of the
Sandiganbayan. (Sec. 5)
Prosecution
Any person may be charged with and
convicted of both the offense of money
laundering and the unlawful activity as herein
defined. (Sec. 6(a), RA 9160)
The prosecution of any offense or violation under
this Act shall proceed independently of any
proceeding relating to the unlawful activity. (Sec.
5, RA 10365)
IV. Issuance of a Freeze Order
A freeze order is only valid for a maximum period
of six (6) months. It cannot be extended beyond
six (6) months. (Republic of the Philippines vs.
Bloomberry Resorts and Hotels, Inc. (Solaire)
and Banco De Oro, G.R. 224112, 2020)
To begin with, a freeze order is not dependent on
a separate criminal charge, much less does it
depend on a conviction. Based on Section
10 of R.A. No. 9160, as amended, there are only
two requisites for the issuance of a freeze order:
(1) the application ex-parte by the AMLC and (2)
the determination of probable cause by the
CA. (Yambao v. Republic, G.R. No. 171054,
2021)
[P]robable cause refers to the sufficiency of the
relation between an unlawful activity and the
property or monetary instrument which is the
focal point of Section 10 of R.A. No. 9160, as
amended. (Yambao v. Republic, G.R. No.
171054, 2021)
V. Other relevant rules
Effect of Bank Deposit Secrecy Law on AMLA
When reporting covered transactions to the AntiMoney Laundering Council, covered institutions
and their officers, employees, representatives,
agents, advisors, consultants or associates shall
not be deemed to have violated Republic Act No.
1405, as amended; Republic Act No. 6426, as
amended; Republic Act No. 8791 and other
similar laws. (Sec. 9, RA 9160)
Covered persons and their officers and
employees are prohibited from communicating,
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directly or indirectly, in any manner or by any
means, to any person or entity, the media, the fact
that a covered or suspicious transaction has been
reported or is about to be reported, the contents
of the report, or any other information in relation
thereto. Neither may such reporting be published
or aired in any manner or form by the mass
media", electronic mail, or other similar devices.
In case of violation thereof, the concerned officer
and employee of the covered person and media
shall be held criminally liable. (Sec. 7, RA 10365)
P. OBSTRUCTION OF JUSTICE LAW (PD
1829)
I. Punishable acts
Any person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension
of suspects and the investigation and
prosecution of criminal cases shall be liable by
committing any of the following acts:
a.
preventing witnesses from testifying in any
criminal proceeding or from reporting the
commission of any offense or the identity of
any offender/s by means of bribery,
misrepresentation, deceit, intimidation, force
or threats;
b.
altering, destroying, suppressing or
concealing any paper, record, document, or
object, with intent to impair its verity,
authenticity,
legibility,
availability,
or
admissibility
as
evidence
in
any
investigation of or official proceedings in,
criminal cases, or to be used in the
investigation of, or official proceedings in,
criminal cases;
c.
harboring or concealing, or facilitating
the escape of, any person he knows, or has
reasonable ground to believe or suspect,
has committed any offense under existing
penal laws in order to prevent his arrest,
prosecution and conviction;
d.
publicly using a fictitious name for the
purpose of concealing a crime, evading
prosecution or the execution of a judgment,
or concealing his true name and other
personal circumstances for the same
purpose or purposes;
e.
delaying the prosecution of criminal cases by
obstructing the service of process or
court orders or disturbing proceedings in
the fiscal's offices, in Tanodbayan, or in the
courts;
f.
making, presenting or using any record,
document, paper or object with knowledge
of its falsity and with intent to affect the
————- end of topic ————TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
P. OBSTRUCTION OF JUSTICE LAW (PD 1829)
1.
Punishable acts (Sec. 1)
2.
Obstruction of justice vs. accessory to a
crime
3.
Other relevant rules
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course or outcome of the investigation of,
or official proceedings in, criminal cases;
g.
soliciting, accepting, or agreeing to accept
any benefit in consideration of abstaining
from, discontinuing, or impeding the
prosecution of a criminal offender;
h.
threatening directly or indirectly another with
the infliction of any wrong upon his
person, honor or property or that of any
immediate member or members of his family
in order to prevent such person from
appearing in the investigation of, or official
proceedings in, criminal cases, or imposing
a condition, whether lawful or unlawful, in
order to prevent a person from appearing in
the investigation of or in official proceedings
in, criminal cases; or
i.
giving of false or fabricated information to
mislead or prevent the law enforcement
agencies from apprehending the offender or
from protecting the life or property of the
victim; or fabricating information from the
data gathered in confidence by investigating
authorities for purposes of background
information and not for publication and
publishing or disseminating the same to
mislead the investigator or the court.
Covers different acts
in the apprehension,
investigation and
prosecution of the
crime
Punishes both private
and public individuals,
but with an additional
penalty for public
officials; Not limited to
a set of particular
crimes
Relatives of the
offender do not enjoy
the same exemption
from criminal liability
as that of an
accessory under the
RPC.
If any of the acts mentioned herein is penalized
by any other law with a higher penalty, the higher
penalty shall be imposed. (Sec. 1)
Punishes the act of
harbouring, concealing
and assisting in the
escape of the principal
Punishes public
officials who abused
their positions;
punishes private
individuals but only in
the crimes of treason,
attempt on the life of
the Chief Executive,
murder, parricide or a
principal known to be
habitually guilty of
some other crime
Penalties for
accessories under the
RPC shall not be
imposed upon those
who are such with
respect to their
spouses, ascendants,
descendants,
legitimate, natural, and
adopted brothers and
sisters, or relatives by
affinity within the same
degrees, subject to a
single exception.
(Article 20, RPC)
III. Other relevant rules
II. Obstruction of justice vs. accessory to a
crime
Distinguishing an accessory from a principal
in PD 1829
Obstruction of
Accessory to a crime
justice
Punished as a
Part of the original
separate crime
crime
Offender is an
Offender is principal
accessory
Focuses on the
Focuses on the
prosecution of the
prevention of the
crime
discovery of the crime
Obstruction of justice by a public official or
employee
If any of the foregoing acts is committed by a
public official or employee, he shall in addition to
the penalties provided thereunder, suffer
perpetual disqualification from holding public
office. (Sec. 2)
Refusal to surrender
When there is no warrant of arrest or there exist
no ground for a valid warrantless arrest, there
could be no violation of PD 1829 as the refusal to
surrender by the accused was done within the
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bounds of law. (Posadas v. Ombudsman, G.R.
No. 131492, 2000)
Intent to conceal under other offenses
proceeds of the offense and shall likewise be
confiscated and forfeited in favor of the State.
(Sec. 9, RA 9287)
A person cannot be prosecuted for both rebellion
and PD 1829. In determining the proper charge,
the intent or motive is a decisive factor. If the act
of concealment is committed with political or
social motives, that is in furtherance of rebellion,
then it should be deemed to form part of the crime
of rebellion instead of being punished separately
under PD 1829. (Enrile v. Amin, G.R. No. 93335,
1990)
————- end of topic ————-
Immunity from prosecution
Any person who serves as a witness for the
government or provides evidence in a criminal
case involving any violation of this Act, or who
voluntarily or by virtue of a subpoena
testificandum or duces tecum, produces,
identifies, or gives testimony shall be immune
from any criminal prosecution. (Sec. 8, RA 9287)
Prosecution, judgment and forfeiture of
property
TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
Q. ANTI-TORTURE ACT OF 2009 (RA 9745)
1.
Elements (Sec. 3)
2.
Acts of torture (Sec. 4)
3.
Persons liable (Sec. 13)
4.
Prohibited detention (Sec. 7)
5.
Applicability of exclusionary rule;
Exception (Sec. 8)
6.
Applicability of refouler (Sec. 9)
7.
Other relevant rules
Any person may be charged with or convicted of
the offenses covered by this Act without
prejudice to the prosecution of any act or acts
penalized under the Revised Penal Code or
other existing laws.
During the pendency of the case, no property or
income used or 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.
Upon conviction, all proceeds, gambling
paraphernalia and other instruments of the crime
including any real or personal property used in
any illegal numbers game operation shall be
confiscated and forfeited in favor of the State.
All assets and properties of the accused either
owned or held by him/her in his/her name or in
the name of another person found to be
manifestly out of proportion to his/her lawful
income shall be prima facie presumed to be
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Q. ANTI-TORTURE ACT OF 2009 (RA 9745)
b.
Food deprivation or forcible feeding with
spoiled food, animal or human excreta and
other stuff or substances not normally eaten;
c.
Electric shock;
d.
Cigarette burning; burning by electrically
heated rods, hot oil, acid; by the rubbing of
pepper or other chemical substances on
mucous membranes, or acids or spices
directly on the wound(s);
e.
The submersion of the head in water or
water polluted with excrement, urine, vomit
and/or blood until the brink of suffocation;
f.
Being tied or forced to assume fixed and
stressful bodily position;
g.
Rape and sexual abuse, including the
insertion of foreign objects into the sex organ
or rectum, or electrical torture of the genitals;
h.
Mutilation or amputation of the essential
parts of the body such as the genitalia, ear,
tongue, etc.;
i.
Dental torture or the forced extraction of the
teeth;
j.
Pulling out of fingernails;
k.
Harmful exposure to the elements such as
sunlight and extreme cold;
l.
The use of plastic bag and other materials
placed over the head to the point of
asphyxiation;
m.
The use of psychoactive drugs to change the
perception, memory, alertness or will of a
person, such as:
I. Elements
Elements of torture
1.
Any act by which severe physical or mental
pain or suffering;
2.
Is inflicted by or at the instigation of or with
the consent or acquiescence of a person in
authority or his agent;
3.
Intentionally inflicted on a person;
4.
For the purpose of:
II.
a.
Obtaining information or a confession;
b.
Punishment for an act he or a third
person has committed, or is
suspected of having committed;
c.
Intimidation or coercion; and
d.
Any reason based on discrimination of
any kind. (Sec. 3)
Acts of torture
Who is a victim
Person subjected to torture or other cruel,
inhuman and degrading treatment or punishment
as defined above and any individual who has
suffered harm as a result of any act(s) of torture,
or other cruel, inhuman and degrading treatment
or punishment. (Sec. 3)
Physical torture
It is a form of treatment or punishment inflicted by
a person in authority or agent of a person in
authority upon another in his/her custody that
causes severe pain, exhaustion, disability or
dysfunction of one or more parts of the body, such
as:
a.
Systematic beating, headbanging, punching,
kicking, striking with truncheon or rifle butt or
other similar objects, and jumping on the
stomach;
n.
•
The administration of drugs to induce
confession and/or reduce mental
competency; or
•
The use of drugs to induce extreme
pain or certain symptoms of a
disease; and
Other analogous acts of physical torture.
(Sec. 4)
Mental/Psychological torture
It refers to acts committed by a person in authority
or agent of a person in authority which are
calculated to affect or confuse the mind and/or
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undermine a person’s dignity and morale, such
as:
punishment, its physical and mental effects and,
in some cases, the sex, religion, age and state of
health of the victim. (Sec. 5)
a.
Blindfolding;
b.
Threatening a person(s) or his/her relative(s)
with bodily harm, execution or other wrongful
acts;
III.
c.
Confinement in solitary cells or secret
detention places;
a. Liable as principals –
d.
Prolonged interrogation;
e.
Preparing a prisoner for a “show trial”, public
display or public humiliation of a detainee or
prisoner;
f.
Causing unscheduled transfer of a person
deprived of liberty from one place to another,
creating the belief that he/she shall be
summarily executed;
g.
Maltreating a member/s of a person’s family;
h.
Causing the torture sessions to be witnessed
by the person’s family, relatives or any third
party;
i.
Denial of sleep/rest;
j.
Shame infliction such as stripping the person
naked, parading him/her in public places,
shaving the victim’s head or putting marks
on his/her body against his/her will;
k.
Deliberately prohibiting the victim to
communicate with any member of his/her
family; and
l.
Other
analogous
acts
mental/psychological torture. (Sec. 4)
Other cruel, inhuman
treatment or punishment
and
of
degrading
It refers to a deliberate and aggravated
treatment or punishment not enumerated under
Section 4 of this Act, inflicted by a person in
authority or agent of a person in authority against
another person in custody, which attains a level
of severity sufficient to cause suffering, gross
humiliation or debasement to the latter.
The assessment of the level of severity shall
depend on all the circumstances of the case,
including the duration of the treatment or
Persons liable
The following shall be held criminally liable for
the crime of torture:
1.
Any person who actually participated
or induced another in the commission
of torture or other cruel, inhuman and
degrading treatment or punishment or
who cooperated in the execution of the
act of torture or other cruel, inhuman
and degrading treatment or punishment
by previous or simultaneous acts
2.
Any superior military, police or law
enforcement
officer
or
senior
government official who issued an order
to any lower ranking personnel to
commit torture for whatever purpose
3.
The immediate commanding officer of
the unit concerned of the AFP or the
immediate senior public official of the
PNP and other law enforcement
agencies for any act or omission, or
negligence committed by him/her that
shall have led, assisted, abetted or
allowed, whether directly or indirectly,
the commission thereof by his/her
subordinates
If he/she has knowledge of or, owing to the
circumstances at the time, should have
known that acts of torture or other cruel,
inhuman and degrading treatment or
punishment shall be committed, is being
committed, or has been committed by
his/her subordinates or by others within
his/her area of responsibility and, despite
such knowledge, did not take preventive or
corrective action either before, during or
immediately after its commission, when
he/she has the authority to prevent or
investigate allegations of torture or other
cruel, inhuman and degrading treatment or
punishment but failed to prevent or
investigate allegations of such act, whether
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b.
deliberately or due to negligence shall also
be liable as principals.
V. Applicability of exclusionary rule;
Exception
Liable as accessory – Any public officer or
employee shall be liable as an accessory if
he/she has knowledge that torture or other
cruel, inhuman and degrading treatment or
punishment is being committed and without
having participated therein, either as
principal or accomplice, takes part
subsequent to its commission in any of the
following manner:
General rule: Any confession, admission or
statement obtained as a result of torture shall be
inadmissible in evidence in any proceedings,
1.
By themselves profiting from or
assisting the offender to profit from the
effects of the act of torture or other
cruel,
inhuman
and
degrading
treatment or punishment;
2.
By concealing the act of torture or other
cruel,
inhuman
and
degrading
treatment or punishment and/or
destroying the effects or instruments
thereof in order to prevent its discovery;
or
3.
By harboring, concealing or assisting in
the escape of the principals in the act of
torture or other cruel, inhuman and
degrading treatment or punishment.
EXCEPTION: If the same is used as evidence
against a person or persons accused of
committing torture. (Sec. 8)
VI.
Applicability of refouler
No person shall be expelled, returned or
extradited to another State where there are
substantial grounds to believe that such
person shall be in danger of being subjected to
torture.
For the purposes of determining whether such
grounds exist, the Secretary of the Department of
Foreign Affairs (DFA) and the Secretary of the
DOJ, in coordination with the Chairperson of the
CHR, shall take into account all relevant
considerations including, where applicable and
not limited to, the existence in the requesting
State of a consistent pattern of gross, flagrant
or mass violations of human rights. (Sec. 17)
The accessory acts should be done with the
abuse of the official’s public functions. (Sec.
13)
IV.
Prohibited detention
Secret detention places, solitary confinement,
incommunicado or other similar forms of
detention, where torture may be carried out with
impunity are hereby prohibited.
The PNP, AFP and other law enforcement
agencies concerned shall make an updated list of
all detention centers and facilities under their
respective jurisdictions with the corresponding
data on prisoners or detainees incarcerated or
detained therein. This list shall be available to the
public at all times and updated by the same
agencies every 5 days of the month at the
minimum. (Sec. 7)
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VII. Other relevant rules
Torture as a separate and independent crime
Torture as a crime shall not absorb or shall not be
absorbed by any other crime or felony committed
as a consequence, or as a means in the conduct
or commission thereof. It shall be treated as a
separate and independent criminal act whose
penalties shall be imposable without prejudice to
any other criminal liability provided for by
domestic and international laws. (Sec. 15)
R. HUMAN SECURITY ACT OF 2007 (RA
9372)
I. Elements
Elements of terrorism
1.
Applicability of the Revised Penal Code
The provisions of the Revised Penal Code insofar
as they are applicable shall be suppletory to this
Act. Moreover, if the commission of any crime
punishable under Title Eight (Crimes Against
Persons) and Title Nine (Crimes Against Personal
Liberty and Security) of the Revised Penal Code
is attended by any of the acts constituting torture
and other cruel, inhuman and degrading
treatment or punishment as defined herein, the
penalty to be imposed shall be in its maximum
period. (Sec. 22)
————- end of topic ————TOPIC OUTLINE UNDER THE SYLLABUS:
2.
III. SPECIAL PENAL LAWS
R. HUMAN SECURITY ACT OF 2007 (RA 9372)
1.
Elements of terrorism (Sec. 3)
2.
Other punishable acts
3.
Conspiracy to commit terrorism (Sec. 4)
4.
Accomplice and accessory (Secs. 5 and
6)
5.
Other relevant provisions
3.
Any person who commits an act punishable
under any of the following:
a. Piracy in general and Munity in the High
Seas or in the Philippine Waters;
b. Rebellion or Insurrection;
c. Coup d’état, including acts committed
by private persons;
d. Murder; Kidnapping and Serious Illegal
Detention;
e. Crimes Involving Destruction or under
f.
The Law on Arson;
g. Toxic Substances and Hazardous and
Nuclear Waste Control Act of 1990;
h. Atomic Energy Regulatory and Liability
Act of 1968;
i.
Anti-Hijacking Law;
j.
Anti-piracy and Anti-highway Robbery
Law of 1974; and
k. Decree Codifying the Laws on Illegal
and Unlawful Possession, Manufacture,
Dealing in, Acquisition or Disposition of
Firearms, Ammunitions or Explosives;
Thereby sowing and creating widespread
and extraordinary fear and panic among the
populace; and,
To coerce the government to give in to an
unlawful demand.
Anyone found guilty of terrorism or conspiring to
commit terrorism shall suffer the penalty of 40
years imprisonment, without the benefit of parole
as provided for under the Indeterminate Sentence
Law. (Sec. 3)
II. Other punishable acts
The following are punishable under RA 9372:
a.
Unauthorized or malicious examination of a
bank or a financial institution;
b.
Bank officials and employees defying a court
authorization;
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c.
False
or
untruthful
statement
or
misrepresentation of material fact in joint
affidavits;
d.
Unjustified refusal to restore or delay in
restoring seized, sequestered and frozen
bank deposits, placements, trust accounts,
assets and records;
e.
Loss, misuse, diversion or dissipation of
seized, sequestered and frozen bank
deposits, placements, trust accounts, assets
and records;
f.
Infidelity in the custody of detained persons;
g.
Unauthorized
materials; and
h.
Furnishing false evidence, forged document,
or spurious evidence.
revelation
of
classified
a. by profiting himself or assisting the offender
to profit by the effects of the crime;
b. by concealing or destroying the body of the
crime, or the effects, or instruments
thereof, in order to prevent its discovery;
c.
by harboring, concealing, or assisting in the
escape of the principal or conspirator of
the crimes.
The penalties prescribed for accessories shall not
be imposed upon those who are such with
respect
to
their
spouses,
ascendants,
descendants, legitimate, natural, and adopted
brothers and sisters, or relatives by affinity within
the same degrees, with the single exception of
accessories falling within the provisions of item
(a). (Sec. 6)
————- end of topic ————-
III. Conspiracy to commit terrorism
There is conspiracy when two or more persons
come to an agreement concerning the
commission of the crime of terrorism as defined
above and decide to commit the same.
Persons who conspire to commit the crime of
terrorism shall suffer the penalty of forty (40)
years of imprisonment. (Sec. 4)
TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
S. TERRORISM FINANCING PREVENTION
AND SUPPRESSION ACT OF 2012 (RA 10168)
1.
Definition of terms (Sec. 3)
2.
Financing of terrorism (Sec. 4)
Accomplice to terrorism
3.
Extraterritorial application (Sec. 19)
Any person who, not being a principal under
Article 17 of the Revised Penal Code or a
conspirator as defined in Section 4, cooperates
in the execution of either the crime of terrorism
or conspiracy to commit terrorism by previous or
simultaneous acts shall be liable as an
accomplice. (Sec. 5)
4.
Extradition (Sec. 20)
IV. Accomplice and accessory
Accessory to terrorism
Any person who, having knowledge of the
commission of the crime of terrorism or
conspiracy to commit terrorism, and without
having participated therein, either as principal or
accomplice under Articles 17 and 18 of the
Revised Penal Code, takes part subsequent to its
commission in any of the following manner, shall
be liable as an accessory:
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S. TERRORISM FINANCING PREVENTION
AND SUPPRESSION ACT OF 2012 (RA
10168)
I. Definition of terms
Covered institutions
This refers to or shall have the same meaning as
defined under the Anti-Money Laundering Act
(AMLA).
Dealing, with regard to property or funds
This refers to receipt, acquisition, transacting,
representing,
concealing,
disposing
or
converting, transferring or moving, use as
security of or providing financial services.
Designated persons
It refers to:
a.
Any person or entity designated and/or
identified as a terrorist, one who finances
terrorism, or a terrorist organization or group
under the applicable United Nations Security
Council Resolution or by another jurisdiction
or supranational jurisdiction;
b.
Any organization, association, or group of
persons proscribed pursuant to Section 17 of
the Human Security Act of 2007; or
c.
Any person, organization, association, or
group of persons whose funds or property,
based on probable cause are subject to
seizure and sequestration under Section 39
of the Human Security Act of 2007.
Forfeiture
It is a court order transferring in favor of the
government, after due process, ownership of
property or funds representing, involving, or
relating to financing of terrorism as defined in
Section 4 or an offense under Sections 5, 6, 7, 8,
or 9 of this Act.
Freeze
It refers to the blocking or restraining of specific
property or funds from being transacted,
CRIMINAL LAW
converted, concealed, moved or disposed without
affecting the ownership thereof.
Property or funds
It refers to financial assets, property of every kind,
whether tangible or intangible, movable or
immovable, however acquired, and legal
documents or instruments in any form, including
electronic or digital, evidencing title to, or interest
in, such funds or other assets, including, but not
limited to, bank credits, travellers cheques, bank
cheques, money orders, shares, securities,
bonds, drafts, or letters of credit, and any interest,
dividends or other income on or value accruing
from or generated by such funds or other assets.
Terrorist
It refers to any natural person who:
a. Commits, or attempts, or conspires to
commit terrorist acts by any means, directly
or indirectly, unlawfully and willfully;
b. Participates, as a principal or as an
accomplice, in terrorist acts;
c. Organizes or directs others to commit
terrorist acts;
d. Contributes to the commission of terrorist
acts by a group of persons acting with a
common purpose where the contribution is
made intentionally and with the aim of
furthering the terrorist act or with the
knowledge of the intention of the group to
commit a terrorist act.
Terrorist acts
This refers to the following:
a. Any act in violation of Section 3 or Section 4
of the Human Security Act of 2007;
b. Any other act intended to cause death or
serious bodily injury to a civilian, or to any
other person not taking an active part in the
hostilities in a situation of armed conflict,
when the purpose of such act, by its nature
or context, is to intimidate a population, or to
compel a government or an international
organization to do or to abstain from doing
any act;
c. Any act which constitutes an offense under
this Act, that is within the scope of any of the
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following treaties of which the Republic of
the Philippines is a State party.
Terrorist organization, association or a group
of persons
It refers to any entity owned or controlled by any
terrorist or group of terrorists that:
a. Commits, or attempts to commit, terrorist
acts by any means, directly or indirectly,
unlawfully and willfully;
b. Participates as an accomplice in terrorist
acts;
c. Organizes or directs others to commit
terrorist acts;
d. Contributes to the commission of terrorist
acts by a group of persons acting with
common purpose of furthering the terrorist
act where the contribution is made
intentionally and with the aim of furthering
the terrorist act or with the knowledge of the
intention of the group to commit a terrorist
act. (Sec. 3)
Accomplice under RA 10168
Any person who, not being a principal under
Article 17 of the Revised Penal Code or a
conspirator as defined in Section 5 hereof,
cooperates in the execution of either the crime of
financing of terrorism or conspiracy to commit the
crime of financing of terrorism by previous or
simultaneous acts. (Sec. 6)
Accessory under RA 10168
Any person who, having knowledge of the
commission of the crime of financing of terrorism
but without having participated therein as a
principal, takes part subsequent to its
commission, by profiting from it or by assisting the
principal or principals to profit by the effects of the
crime, or by concealing or destroying the effects
of the crime in order to prevent its discovery, or by
harboring, concealing or assisting in the escape
of a principal of the crime. (Sec. 7)
II. Financing of terrorism
The following shall be guilty of the crime of
financing of terrorism:
a. Any person who, directly or indirectly,
willfully and without lawful excuse,
possesses, provides, collects or uses
CRIMINAL LAW
property or funds or makes available
property, funds or financial service or other
related services, by any means, with the
unlawful and willful intention that they should
be used or with the knowledge that they are
to be used, in full or in part:
1.
to carry out or facilitate the
commission of any terrorist act;
2.
by
a
terrorist
organization,
association or group; or
3.
by an individual terrorist;
b. Any person who organizes or directs others
to commit financing of terrorism
Knowledge or intent may be established by
direct evidence or inferred from the attendant
circumstances.
For an act to constitute a crime under this Act, it
shall not be necessary that the funds were
actually used to carry out terrorist acts. (Sec. 4)
III. Extraterritorial application
Subject to the provision of an existing treaty,
including the International Convention for the
Suppression of the Financing of Terrorism of
which the Philippines is a State Party, and to any
contrary provision of any law of preferential
application, the criminal provisions of this Act
shall apply:
a. to individual persons who, although
physically outside the territorial limits of the
Philippines, commit, conspire or plot to
commit any of the crimes defined and
punished in this Act inside the territorial limits
of the Philippines;
b. to individual persons who, although
physically outside the territorial limits of the
Philippines, commit any of the said crimes
on board Philippine ship or Philippine
airship;
c. to individual persons who commit any of said
crimes within any embassy, consulate, or
diplomatic premises belonging to or
occupied by the Philippine government in an
official capacity;
d. to individual persons who, although
physically outside the territorial limits of the
Philippines, commit said crimes against
Philippine citizens or persons of Philippine
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e.
f.
descent, where their citizenship or ethnicity
was a factor in the commission of the crime;
to individual persons who, although
physically outside the territorial limits of the
Philippines, commit said crimes directly
against the Philippine government; and,
to a Filipino national who, although outside
the territorial jurisdiction of the Philippines,
commit, conspire or plot to commit any of the
crimes defined and punished in this Act.
(Sec. 19)
IV. Extradition
The Philippines may, at its option, subject to the
principle of reciprocity, consider the International
Convention for the Suppression of the Financing
of Terrorism as a legal basis for requesting or
granting extradition in respect of the offenses set
forth under this Act. (Sec. 20)
In case of an alien whose extradition is requested
pursuant to the International Convention for the
Suppression of the Financing of Terrorism, and
that alien is not extradited to the requesting State,
the Republic of the Philippines, without exception
whatsoever and whether or not the offense was
committed in the Philippines, shall submit the
case without undue delay to the Department of
Justice for the purpose of prosecution in the same
manner as if the act constituting the offense had
been committed in the Philippines, in which case,
the courts of the Philippines shall have jurisdiction
over the offense. (Sec. 19)
————- end of topic ————TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
T. ANTI-WIRE TAPPING ACT (RA 4200)
T. ANTI-WIRE TAPPING ACT (RA 4200)
I. Prohibited acts
It shall unlawful for any person to commit any of
the following acts:
a.
Not being authorized by all the parties to any
private communication or spoken word, to
tap any wire or cable, or by using any other
device or arrangement, to secretly
overhear, intercept, or record such
communication or spoken word by using a
device commonly known as a dictaphone or
dictagraph or detectaphone or walkie-talkie
or tape recorder, or however otherwise
described;
b.
Be he a participant or not in the act or acts
penalized in the next preceding sentence, to
knowingly possess any tape record, wire
record, disc record, or any other such record,
or copies thereof, of any communication or
spoken word secured either before or after
the effective date of this Act in the manner
prohibited by this law;
c.
To replay the same for any other person/s;
d.
To communicate the contents thereof, either
verbally or in writing, or to furnish
transcriptions thereof, whether complete or
partial, to any other person; or,
e.
To willfully or knowingly do or aid, permit, or
cause to be done any of the acts under the
above-items (a) to (d) or any order issued
thereunder, or aids, permits, or causes such
violation. (Secs. 1 and 2)
II. Allowable wire tapping
Nothing under this Act shall render it unlawful or
punishable for any peace officer, authorized by
a written order of the Court, to execute any of
the acts declared to be unlawful above in cases
involving the following crimes:
1. Prohibited acts (Secs. 1 and 2)
a.
Treason;
2. Allowable wire tapping (Sec. 3)
b.
Espionage;
3. Inadmissibility (Sec. 4)
c.
Provoking war and disloyalty in case of war;
d.
Piracy;
4. Other relevant rules
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e.
Mutiny in the high seas;
communications, the telegraph line or the
telephone number involved and its location;
f.
Rebellion;
g.
Conspiracy and proposal
rebellion, inciting to rebellion;
h.
Sedition, conspiracy to commit sedition,
inciting to sedition;
i.
Kidnapping as defined by the Revised Penal
Code; and,
j.
Violations of Commonwealth Act No. 616,
punishing espionage and other offenses
against national security. (Sec. 3)
to
commit
The written order shall only be issued or granted
–
a.
b.
Upon written application and the
examination under oath or affirmation of the
applicant and the witnesses he may
produce;
That there are reasonable grounds to
believe that any of the crimes enumerated
above has been committed or is being
committed or is about to be committed;
In cases involving the offenses of rebellion,
conspiracy and proposal to commit rebellion,
inciting to rebellion, sedition, conspiracy to
commit sedition, and inciting to sedition, such
authority shall be granted only upon prior proof
that a rebellion or acts of sedition, as the case
may be, have actually been or are being
committed.
c.
That there are reasonable grounds to
believe that evidence will be obtained
essential to the conviction of any person
for, or to the solution of, or to the
prevention of, any such crimes; and
d.
that there are no other means readily
available for obtaining such evidence.
The written order of the Court granted or issued
shall specify –
a.
identity of the person or persons whose
communications,
conversations,
discussions, or spoken words are to be
overheard, intercepted, or recorded and, in
the case of telegraphic or telephonic
b.
identity of the peace officer authorized to
overhear,
intercept,
or
record
the
communications,
conversations,
discussions, or spoken words;
c.
offense or offenses committed or sought to
be prevented; and
d. the period of the authorization.
The authorization shall be effective for the period
specified in the order which shall not exceed
sixty (60) days from the date of issuance of the
order, UNLESS extended or renewed by the court
upon being satisfied that such extension or
renewal is in the public interest.
III. Inadmissibility
Any communication or spoken word, or the
existence, contents, substance, purport, effect, or
meaning of the same or any part thereof, or any
information therein contained, obtained or
secured by any person in violation of this Act
shall not be admissible in evidence in any
judicial,
quasi-judicial,
legislative
or
administrative hearing or investigation. (Sec.
4)
IV. Other relevant rules
All recordings made under court authorization
shall, within forty-eight hours after the expiration
of the period fixed in the order, be deposited with
the court in a sealed envelope or sealed package,
and shall be accompanied by an affidavit of the
peace officer granted such authority stating the
number of recordings made, the dates and times
covered by each recording, the number of tapes,
discs, or records included in the deposit, and
certifying that no duplicates or copies of the whole
or any part thereof have been made, or if made,
that all such duplicates or copies are included in
the envelope or package deposited with the court.
(Sec. 3)
The envelope or package so deposited shall not
be opened, or the recordings replayed, or used in
evidence, or their contents revealed, except upon
order of the court, which shall not be granted
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except upon motion, with due notice and
opportunity to be heard to the person or persons
whose conversation or communications have
been recorded. (Sec. 3)
The Act clearly and unequivocally makes it illegal
for any person, not authorized by all the parties to
any private communication to secretly record
such communication by means of a tape
recorder. The law makes no distinction as to
whether the party sought to be penalized by the
statute ought to be a party other than or different
from those involved in the private communication.
(Ramirez v. Court of Appeals, G.R. No. 93833,
1995)
An extension telephone cannot be placed in the
same category as a dictaphone, dictagraph or the
other devices enumerated in Section 1 of RA No.
4200 as the use thereof cannot be considered as
"tapping" the wire or cable of a telephone line.
Hence, the phrase "device or arrangement" in
Section 1 of RA No. 4200, although not exclusive
to that enumerated therein, should be construed
to comprehend instruments of the same or similar
nature, that is, instruments the use of which would
be tantamount to tapping the main line of a
telephone. It refers to instruments whose
installation or presence cannot be presumed by
the party or parties being overheard because, by
their very nature, they are not of common usage
and their purpose is precisely for tapping,
intercepting
or
recording
a
telephone
conversation. (Gaanan v. Intermediate Appellate
Court, G.R. No. L-69809, 1986)
TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
U. CYBERCRIME PREVENTION ACT OF 2012
(RA 10175)
1.
Definition of terms (Sec. 3)
2.
Punishable acts
a.
Cybercrime offenses (Sec. 4)
b.
Other offenses (Sec. 5)
3.
Jurisdiction (Sec. 21)
4.
Other relevant rules
————- end of topic ————-
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U. CYBERCRIME PREVENTION ACT OF 2012
(RA 10175)
I. Definition of terms
Access
It refers to the instruction, communication with,
storing data in, retrieving data from, or otherwise
making use of any resources of a computer
system or communication network
Alteration
It refers to the modification or change, in form or
substance, of an existing computer data or
program.
Without right
It refers to either (1) conduct undertaken without
or in excess of authority; or (2) conduct not
covered by established legal defenses, excuses,
court orders, justifications, or relevant principles
under the law.
II. Punishable acts
a. Cybercrime Offenses (Sec. 4)
Offenses against the confidentiality, integrity
and availability of computer data and
systems
1.
Illegal Access – the access to the whole or
any part of a computer system without right
2.
Illegal Interception – interception made by
technical means without right of any nonpublic transmission of computer data to, from,
or within a computer system including
electromagnetic emissions from a computer
system carrying such computer data.
3.
Data Interference – intentional or reckless
alteration,
damaging,
deletion
or
deterioration of computer data, electronic
document, or electronic data message,
without right, including the introduction or
transmission of viruses.
4.
System Interference – intentional alteration
or reckless hindering or interference with the
functioning of a computer or computer
network
by
inputting,
transmitting,
damaging, deleting, deteriorating, altering or
suppressing computer data or program,
electronic document, or electronic data
message, without right or authority, including
the introduction or transmission of viruses.
5.
Misuse of Devices
Communication
It refers to the transmission of information through
ICT media, including voice, video and other forms
of data.
Computer data
Any representation of facts, information, or
concepts in a form suitable for processing in a
computer system including a program suitable to
cause a computer system to perform a function
and includes electronic documents and/or
electronic data messages whether stored in local
computer systems or online.
Interception
It refers to listening to, recording, monitoring or
surveillance of the content of communications,
including procuring of the content of data, either
directly, through access and use of a computer
system or indirectly, through the use of electronic
eavesdropping or tapping devices, at the same
time that the communication is occurring.
Service provider
It refers to (1) any public or private entity that
provides to users of its service the ability to
communicate by means of a computer system
and (2) any other entity that processes or stores
computer data on behalf of such communication
service or users of such service.
a.
The
use,
production,
sale,
procurement, importation, distribution,
or otherwise making available, without
right, of:
•
A device, including a computer
program, designed or adapted
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primarily for the purpose of
committing any of the offenses
under this Act; or
•
a.
6.
A computer password, access
code, or similar data by which the
whole or any part of a computer
system is capable of being
accessed with intent that it be
used for the purpose of
committing any of the offenses
under this Act.
The possession of an item referred to
above with intent to use said devices
for the purpose of committing any of
the offenses under this section.
Cyber-squatting – acquisition of a domain
name over the internet in bad faith to profit,
mislead, destroy reputation, and deprive
others from registering the same, if such a
domain name is:
a.
b.
c.
Similar, identical, or confusingly
similar to an existing trademark
registered with the appropriate
government agency at the time of the
domain name registration;
Identical or in any way similar with the
name of a person other than the
registrant, in case of a personal name;
and
2.
1. Computer-related Forgery
Input, alteration, or deletion of any
computer data without right resulting in
inauthentic data with the intent that it be
considered or acted upon for legal
purposes as if it were authentic,
regardless whether or not the data is
directly readable and intelligible; or
Act of knowingly using computer data
which is the product of computerrelated forgery as denied herein, for the
purpose of perpetuating a fraudulent or
dishonest design.
Computer-related Fraud – Unauthorized
input, alteration, or deletion of computer data
or program or interference in the functioning
of a computer system, causing damage
thereby with fraudulent intent.
If no damage has yet been caused, the penalty
imposable shall be one (1) degree lower.
3.
Computer-related Identity Theft – Intentional
acquisition,
use,
misuse,
transfer,
possession, alteration or deletion of
identifying information belonging to another,
whether natural or juridical, without right.
If no damage has yet been caused, the penalty
imposable shall be one (1) degree lower.
Content-related offenses
1.
Cybersex
–
Willful
engagement,
maintenance, control, or operation, directly
or indirectly, of any lascivious exhibition of
sexual organs or sexual activity, with the aid
of a computer system, for favor or
consideration.
2.
Child Pornography — the unlawful or
prohibited acts denied and punishable by
Republic Act No. 9775 or the Anti-Child
Pornography Act of 2009, committed through
a computer system.
Acquired without right or with
intellectual property interests in it.
Computer-related offenses
a.
b.
That the penalty to be imposed shall be one (1)
degree higher than that provided for in
Republic Act No. 9775.
3.
[UNCONSTITUTIONAL]
Unsolicited
Commercial
Communications
–
The
transmission of commercial electronic
communication with the use of computer
system which seek to advertise, sell, or offer
for sale products and services are prohibited
unless:
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a.
There is prior affirmative consent from
the recipient; or
b.
The
primary
intent
of
the
communication is for service and/or
administrative announcements from
the sender to its existing users,
subscribers or customers; or
c.
a.
Illegal Access
b.
Illegal Interception
The commercial electronic
communication contains a
simple, valid, and reliable way
for the recipient to reject.
receipt of further commercial
electronic messages (opt-out)
from the same source;
c.
Data Interference
d.
System Interference
e.
Misuse of Devices
f.
Cyber Squatting
g.
Computer- related Forgery
The commercial electronic
communication
does
not
purposely disguise the source
of the electronic message; and
h.
Computer- related Fraud
i.
Computer-related Identity Theft
j.
Cybersex
The following conditions are present:
•
•
•
4.
The commercial electronic
communication
does
not
purposely include misleading
information in any part of the
message in order to induce the
recipients to read the message.
Libel — the unlawful or prohibited acts of
libel as defined in Article 355 of the Revised
Penal Code, as amended, committed
through a computer system or any other
similar means which may be devised in the
future.
It only penalizes online libel as valid and
constitutional with respect to the original author of
the post; but void and unconstitutional with
respect to others who simply receive the post and
react to it.
b. Other offenses (Sec. 5)
1.
The Supreme Court in the case of Disini v.
Secretary of Justice, G.R. No. 203335,
2014) declared that this provision only
penalizes aiding or abetting and attempt in
the commission of cybercrime as valid and
constitutional only in relation to:
Aiding or Abetting in the Commission of
Cybercrime – any person who willfully abets
or aids in the commission of any of the
offenses enumerated in this Act shall be held
liable.
HOWEVER, the provision is considered
void and unconstitutional in relation to
child pornography and online libel.
2.
Attempt in the Commission of Cybercrime —
any person who willfully attempts to commit
any of the offenses enumerated in this Act
shall be held liable.
III. Jurisdiction
The Regional Trial Court shall have jurisdiction
over any violation of the provisions of this Act.
including any violation committed by a Filipino
national regardless of the place of
commission.
Jurisdiction shall lie if any of the elements was
committed within the Philippines or committed
with the use of any computer system wholly or
partly situated in the country, or when by such
commission any damage is caused to a natural or
juridical person who, at the time the offense was
committed, was in the Philippines. (Sec. 21)
IV. Other relevant rules
The penalty of one degree higher than that
provided for by the RPC and special laws shall be
imposed on all crimes under RPC and special
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laws if committed by, through and with the use of
information and communications technologies
shall be covered by the relevant provisions of this
Act. (Sec. 6)
Any evidence procured without a valid warrant or
beyond the authority of the same shall be
inadmissible for any proceeding before any
court or tribunal. (Sec. 18)
All relevant international instruments on
international cooperation in criminal matters,
arrangements agreed on the basis of uniform or
reciprocal legislation, and domestic laws, to the
widest extent possible for the purposes of
investigations or proceedings concerning criminal
offenses related to computer systems and data,
or for the collection of evidence in electronic form
of a criminal, offense shall be given full force and
effect. (Sec. 22)
TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
V. ANTI-CHILD PORNOGRAPHY ACT OF 2009
(RA 9775)
1.
Definition of terms (Sec. 3)
2.
Prohibited acts (Sec. 4)
3.
Syndicated child pornography (Sec. 5)
4.
Other relevant rules
Case study: X was charged with libel after
sending libelous emails to the officers of Corp A
and Y. In said emails, she aired grievances about
the performance of Y as chairman of Corp A. She
argued that publication, one of the elements of
libel was not present and that emailing does not
constitute publication under Article 355 of the
RPC. Since the information did not allege that the
emails were accessed by other persons, there
could be no publication. Lastly, X alleged that she
sent the emails as private communication of Corp
A with good faith and in the performance of a legal
duty. Are X’s emails covered under Article 355 of
the RPC?
Whether emailing is sufficiently “public”
as required by Articles 353 and 355 of the
RPC and the Anti-Cybercrime Law, is a
matter of defense that should be properly
raised during trial. While grievances,
channeled
through
proper
public
authorities, has a degree of protected
freedom of speech. The scope and extent
of that protection cannot be grounded in
abstractions. The facts of the case need
to be proven by evidence. (Dio v. People,
G.R. No. 208146, 2016)
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V. ANTI-CHILD PORNOGRAPHY ACT OF
2009 (RA 9775)
I. Definition of terms
Child
It refers to any person below 18 or over, but is
unable to fully take care of himself/herself from
abuse,
neglect,
cruelty,
exploitation
or
discrimination because of a physical or mental
disability or condition.
It shall also refer to –
a. Any person regardless of age who is
presented, depicted or portrayed as a child;
and,
b. Computer-generated, digitally or manually
crafted images or graphics of a person who
is represented or who is made to appear to
be a child.
Child pornography
It refers any representation of a child engaged or
involved in real or simulated explicit sexual
activities.
Explicit sexual activity
This term includes actual or simulated –
a. sexual intercourse or lascivious act
including, but not limited to, contact involving
genital to genital, oral to genital, anal to
genital, or oral to anal, whether between
persons of the same or opposite sex;
b. bestiality;
c. masturbation;
d. sadistic or masochistic abuse;
e. lascivious exhibition of the genitals,
buttocks, breasts, pubic area and/or anus; or
f.
use of any object or instrument for lascivious
acts
Child pornography materials
It refers to the means and methods by which child
pornography is carried out:
a. As to form:
• Visual depiction – not only images of real
children but also digital images, computer
images or computer-generated images;
• Audio representation of a person who is
or is represented as being a child and
who is engaged in or is represented as
being engaged in explicit sexual activity,
or an audio representation that
advocates, encourages or counsels any
sexual activity with children which is an
offense under this Act; and
• Written text or material that advocates or
counsels explicit sexual activity with a
child and whose dominant characteristic
is the description, for a sexual purpose,
of an explicit sexual activity with a child.
b. As to content:
It includes representation of a person who is,
appears to be, or is represented as being a
child, the dominant characteristic of which is
the depiction, for a sexual purpose, of:
• the sexual organ or the anal region, or a
representation thereof; and
• the breasts, or a representation of the
breasts, of a female person.
II. Prohibited acts
It shall be unlawful for any person:
a. To hire, employ, use, persuade, induce or
coerce a child to perform in the creation or
production of any form of child pornography
b. To produce, direct, manufacture or create
any form of child pornography.
c. To publish, offer, transmit, sell, distribute,
broadcast, advertise, promote, export or
import any form of child pornography
d. To possess any form of child pornography
with the intent to sell, distribute, publish, or
broadcast.
e. Willfully and intentionally providing a venue
for the commission of prohibited acts.
f.
Distribution of any form of child pornography
by
film
distributors,
theaters
and
telecommunication
companies,
by
themselves or in cooperation with other
entities.
g. Assisting in any form of child pornography by
a parent or guardian.
h. Engaging in luring or grooming.
i.
Engaging in pandering of any form of child
pornography.
j.
Willful access any form of child pornography;
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k.
l.
To conspire to commit any of the prohibited
acts stated in this section. Conspiracy to
commit any form of child pornography shall
be committed when two (2) or more persons
come to an agreement concerning the
commission of any of the said prohibited acts
and decide to commit it; and
Possession of any form of child
pornography. (Sec. 4)
The possession of three (3) or more articles of
child pornography of the same form shall be
prima facie evidence of the intent to sell,
distribute, publish, or broadcast
III. Syndicated child pornography
The crime of child pornography is deemed
committed by a syndicate if carried out by a
group of three (3) or more persons conspiring
or confederating with one another. (Sec. 5)
IV. Disputable Presumption of Knowledge
All mall owners/operators and owners or lessors
of other business establishments shall notify the
PNP or the NBI within 7 days from obtaining facts
and circumstances that child pornography is
being committed in their premises.
Provided that public display of any form of child
pornography within their premises is a conclusive
presumption of the knowledge of the mall
owners/operators and owners or lessors of other
business establishments of the violation of this
Act:
Provided, further, that a disputable presumption
of knowledge by mall owners/operators and
owners or lessors of other business
establishments should know or reasonably know
that a violation of this Act is being committed in
their premises. Photo developers, information
technology professionals, credit card companies
and banks and any person who has direct
knowledge of any form of child pornography
activities shall have the duty to report any
suspected child pornography materials or
transactions to the proper authorities within seven
(7) days from discovery thereof.
V. Other relevant rules
Duties of an Internet Service Provider (ISP)
All internet providers (ISPs) shall notify the
Philippine National Police (PNP) or the National
Bureau of Investigation (NBI) within seven (7)
days from obtaining facts and circumstances that
any form of child pornography is being committed
using its server or facility of any user, subscriber,
or customer, or the content of any communication
of any such person
Provided, that no ISP shall be held civilly liable for
damages on account of any notice given in good
faith in compliance with this section.
Furthermore, an ISP shall preserve such
evidence for purposes of investigation and
prosecution by relevant authorities
An ISP shall, upon the request of proper
authorities, furnish the particulars of users who
gained or attempted to gain access to an internet
address which contains any form of child
pornography.
All ISPs shall install available technology,
program, or software to ensure that access to or
transmittal of any form of child pornography will
be blocked or filtered.
An ISP who shall knowingly, willfully, and
intentionally violate the provision shall be subject
to the penalty provided under Section 15(k) of this
Act (Section 9)
Liability of mall owners/operators and
owners/lessors of business establishments
All mall owners/operators and owners or lessors
of other business establishments shall notify the
PNP or the NBI within seven (7) days from
obtaining facts and circumstances that child
pornography is being committed in their
premises.
It should be noted that the public display of any
form of child pornography within their premises is
a conclusive presumption of the knowledge of
the mall owners/operators and owners or lessors
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of other business establishments of the violation
of this Act.
There is disputable presumption of knowledge
that mall owners/operators and owners or lessors
of other business establishments should know or
reasonably know that a violation of this Act is
being committed in their premises.
Photo developers, information technology
professionals, credit card companies and banks
and any person who has direct knowledge of
any form of child pornography activities shall
have the duty to report any suspected child
pornography materials or transactions to the
proper authorities within seven (7) days from
discovery thereof.
within forty-eight (48) hours from receiving the
notice that any form of child pornography is hitting
its server shall be conclusive evidence of willful
and intentional violation thereof.
————- end of topic ————-
TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
W. ANTI-PHOTO AND VIDEO VOYEURISM
ACT OF 2009 (RA 9995)
1.
Definition of terms (Sec. 3)
2.
Prohibited acts (Sec. 4)
Any willful and intentional violation of this
provision shall be subject to the penalty provided
under Section 15(l) (Sec. 10)
Duties of an Internet Content Host
An internet content host shall
a. Not host any form of child pornography on
its internet address;
b. Within seven (7) days, report the presence
of any form of child pornography, as well as
the particulars of the person maintaining,
hosting, distributing or in any manner
contributing to such internet address, to the
proper authorities; and
c. Preserve such evidence for purposes of
investigation and prosecution by relevant
authorities.
An internet content host shall, upon the request
of proper authorities, furnish the particulars of
users who gained or attempted to gain access to
an internet address that contains any form of child
pornography.
An internet content host who shall knowingly,
willfully and intentionally violate this provision
shall be subject to the penalty provided under
Section 15 (j) of this Act:
Provided, That the failure of the internet content
host to remove any form of child pornography
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W. ANTI-PHOTO AND VIDEO VOYEURISM
ACT OF 2009 (RA 9995)
I. Definition of terms
a. Broadcast
It is to make public, by any means, a visual image
with the intent that it be viewed by a person or
persons.
b. Capture
It means to videotape, photograph, film, record by
any means, or broadcast an image
c. Photo or video voyeurism
It refers to the act of taking photo or video
coverage of a person or group of persons
performing sexual act or any similar activity or of
capturing an image of the private area of a person
or persons without the latter's consent, under
circumstances in which such person/s has/have
a reasonable expectation of privacy, or the act of
selling, copying, reproducing, broadcasting,
sharing, showing or exhibiting the photo or video
coverage or recordings of such sexual act or
similar activity through VCD/DVD, internet,
cellular phones and similar means or device
without the written consent of the person/s
involved, notwithstanding that consent to record
or take photo or video coverage of same was
given by such person/s.
d. Under circumstances in which a person has
a reasonable expectation of privacy
It refers to circumstances in which a reasonable
person would believe that he/she could disrobe in
privacy, without being concerned that an image or
a private area of the person was being captured;
or circumstances in which a reasonable person
would believe that a private area of the person
would not be visible to the public, regardless of
whether that person is in a public or private place.
(Sec. 3)
II. Prohibited acts
Any person who commits the following shall be
liable for photo or video voyeurism:
a. To take photo or video coverage of a person
or group of persons performing sexual act or
any similar activity or to capture an image of
the private area of a person/s such as the
naked or undergarment clad genitals, pubic
area, buttocks or female breast without the
consent of the person/s involved and under
circumstances in which the person/s
has/have a reasonable expectation of
privacy;
b. To copy or reproduce, or to cause to be
copied or reproduced, such photo or video or
recording of sexual act or any similar activity
with or without consideration;
c.
To sell or distribute, or cause to be sold or
distributed, such photo or video or recording
of sexual act, whether it be the original, copy
or reproduction thereof; or
d. To publish or broadcast, or cause to be
published or broadcast, whether in print or
broadcast media, or show or exhibit the
photo or video coverage or recordings of
such sexual act or any similar activity
through VCD/DVD, internet, cellular phones
and other similar means or device.
The prohibition under items (b), (c) and (d) shall
apply notwithstanding that consent to record
or take photo or video coverage of the same
was given by such person/s.
————- end of topic ————-
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TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
X. ANTI-SEXUAL HARASSMENT ACT OF 1995
(RA 7877)
1.
Persons liable
2.
Punishable acts (Sec. 3)
3.
Other relevant rules
X. ANTI-SEXUAL HARASSMENT ACT OF
1995 (RA 7877)
I. Persons liable
The following persons shall be held liable:
a.
Principal by direct participation; and,
b.
Principals by inducement and indispensable
cooperation – Any person who directs or
induces another to commit any act of sexual
harassment as herein defined, or who
cooperates in the commission thereof by
another without which it would not have
been committed, shall also be held liable
under this Act. (Sec. 3)
II. Punishable acts
Work, education or
training-related sexual
harassment is committed by an employer,
employee, manager, supervisor, agent of the
employer, teacher, instructor, professor, coach,
trainor, or any other person who, having
authority, influence or moral ascendancy
over another in a work or training or education
environment, demands, requests or otherwise
requires any sexual favor
from the other,
regardless of whether the demand, request or
requirement for submission is accepted by the
object of said act.
Sexual harassment in
employment environment
work-related
or
a. Sexual favor is made as a condition:
b.
i.
For hiring or employment;
ii.
Re-employment
employment;
iii.
Granting
promotions,
favorable
compensation, or privileges; or,
iv.
Refusal to grant the sexual favor results
in classifying the employee which would
discriminate or deprive employment
opportunities or otherwise adversely
affect said employee;
or
continued
Acts would impair the employee's rights or
privileges under existing labor laws; or,
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c.
Acts would result in an intimidating, hostile,
or offensive environment for the employee.
(Sec. 3)
Sexual harassment in education or training
environment
a.
Against one who is under the care, custody
or supervision of the offender;
b.
Against one whose education, training,
apprenticeship or tutorship is entrusted to
the offender;
c.
d.
When the sexual favor is made a condition
to the giving of a passing grade, or the
granting of honors and scholarships, or the
payment of a stipend, allowance or other
benefits, privileges, or consideration; or,
When the sexual advances result in an
intimidating, hostile or offensive environment
for the student, trainee or apprentice. (Sec.
3)
III. Other relevant rules
It is not essential that the demand, request or
requirement be made as a condition for continued
employment or for promotion to a higher position.
It is enough that the respondents acts result in
creating an intimidating, hostile or offensive
environment for the employee. (Domingo v.
Rayala, G.R. No. 155831, 2008)
————- end of topic ————TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
Y. ANTI-TRAFFICKING IN PERSONS ACT OF
2003 (RA 9208, AS AMENDED BY RA 10364)
1.
Definition of terms; Elements (Sec. 3)
2.
Punishable acts (Sec. 4)
3.
Attempted trafficking (Sec. 4-A)
4.
Liability of accomplices; accessories
(Secs. 4-B and 4-C)
5.
Acts that promote trafficking (Sec. 5)
6.
Qualified trafficking (Sec. 6)
7.
Initiation and prosecution of cases
(Sec. 8)
8.
Prescriptive period (Sec. 12)
9.
Other relevant rules
Under RA 7877, an act of sexual harassment may
result in a criminal action wherein the accused is
prosecuted for a wrong committed against society
itself or the State whose law he or she violated.
Sexual harassment as defined and penalized
under Republic Act No. 7877 requires three
elements for an accused to be convicted: (1) that
the accused has authority, influence, or moralascendancy over another; (2) the authority,
influence, or moral ascendancy exists in a workrelated, training-related, or education-related
environment, and (3) the accused who has
authority, influence, or moral-ascendancy over
another makes a demand, request, or
requirement of a sexual favor. (Escandor v.
People, G.R. No. 211962, July 06, 2020.)
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Y. ANTI-TRAFFICKING IN PERSONS ACT OF
2003 (RA 9208, AS AMENDED BY RA
10364)
I. Definition of terms
Child
It refers to a person below eighteen (18) years of
age or one who is over eighteen (18) but is unable
to fully take care of or protect himself/herself from
abuse, neglect, cruelty, exploitation, or
discrimination because of a physical or mental
disability or condition.
Involuntary Servitude
A condition of enforced and compulsory service
induced by means of any scheme, plan or pattern,
intended to cause a person to believe that if he or
she did not enter into or continue in such
condition, he or she or another person would
suffer serious harm or other forms of abuse or
physical restraint, or threat of abuse or harm, or
coercion including depriving access to travel
documents and withholding salaries, or the abuse
or threatened abuse of the legal process. (Sec. 3)
Sex Tourism
Trafficking in persons
Elements
1.
Recruitment, transportation, transfer
harboring, or receipt of persons;
2.
With or without the victim’s consent or
knowledge;
3.
Within or across national borders;
4.
By means of threat or use of force, or other
forms of coercion, abduction, fraud,
deception, abuse of power or of position,
taking advantage of the vulnerability of the
person, or, the giving or receiving of
payments or benefits to achieve the consent
of a person having control over another
person; and
5.
or
For the purpose of exploitation which
includes at a minimum, the exploitation or
the prostitution of others or other forms of
sexual exploitation, forced labor or services,
slavery, servitude or the removal or sale of
organs.
The
recruitment,
transportation,
transfer,
harboring or receipt of a child for the purpose of
exploitation shall also be considered as
“trafficking in persons” even if it does not involve
any of the means set forth in the preceding
paragraph. (Sec. 3)
A program organized by travel and tourismrelated establishments and individuals which
consists of tourism packages or activities, utilizing
and offering escort and sexual services as
enticement for tourists. This includes sexual
services and practices offered during rest and
recreation periods for members of the military.
(Sec. 3)
Sexual Exploitation
Participation by a person in prostitution,
pornography or the production of pornography, in
exchange for money, profit or any other
consideration or where the participation is caused
or facilitated by any means of intimidation or
threat, use of force, or other forms of coercion,
abduction, fraud, deception, debt bondage,
abuse of power or of position or of legal process,
taking advantage of the vulnerability of the
person, or giving or receiving of payments or
benefits to achieve the consent of a person
having control over another person; or in sexual
intercourse or lascivious conduct caused or
facilitated by any means as provided in this Act.
(Sec. 3)
Debt Bondage
Refers to the pledging by the debtor of his/her
personal services or labor or those of a person
under his/her control as security or payment for a
debt, when the length and nature of services is
not clearly defined or when the value of the
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services as reasonably assessed is not applied
toward the liquidation of the debt. (Sec. 3)
g.
To adopt or facilitate the adoption of persons
for the purpose of prostitution, pornography,
sexual exploitation, forced labor, slavery,
involuntary servitude or debt bondage;
h.
To recruit, hire, adopt, transport, transfer,
obtain, harbor, maintain, provide, offer,
receive or abduct a person, by means of
threat or use of force, fraud, deceit, violence,
coercion, or intimidation for the purpose of
removal or sale of organs of said person;
i.
To recruit, transport, obtain, transfer, harbor,
maintain, offer, hire, provide, receive or
adopt a child to engage in armed activities in
the Philippines or abroad;
j.
To recruit, transport, transfer, harbor, obtain,
maintain, offer, hire, provide or receive a
person by means defined in Section 3 of this
Act for purposes of forced labor, slavery,
debt bondage and involuntary servitude,
including a scheme, plan, or pattern
intended to cause the person either:
II. Punishable acts
It shall be unlawful for any person, natural or
juridical, to commit any of the following acts:
a.
b.
c.
To recruit, obtain, hire, provide, offer,
transport, transfer, maintain, harbor, or
receive a person by any means, including
those done under the pretext of domestic or
overseas employment or training or
apprenticeship, for the purpose of
prostitution,
pornography,
or
sexual
exploitation;
To introduce or match for money, profit, or
material, economic or other consideration,
any person or, as provided for under
Republic Act No. 6955, any Filipino woman
to a foreign national, for marriage for the
purpose of acquiring, buying, offering, selling
or trading him/her to engage in prostitution,
pornography, sexual exploitation, forced
labor, slavery, involuntary servitude or debt
bondage;
To offer or contract marriage, real or
simulated, for the purpose of acquiring,
buying, offering, selling, or trading them to
engage in prostitution, pornography, sexual
exploitation, forced labor or slavery,
involuntary servitude or debt bondage;
d.
To undertake or organize tours and travel
plans consisting of tourism packages or
activities for the purpose of utilizing and
offering
persons
for
prostitution,
pornography or sexual exploitation;
e.
To maintain or hire a person to engage in
prostitution or pornography;
f.
To adopt persons by any form of
consideration for exploitative purposes or to
facilitate the same for purposes of
prostitution,
pornography,
sexual
exploitation,
forced
labor,
slavery,
involuntary servitude or debt bondage;
k.
i.
To believe that if the person did not
perform such labor or services, he or
she or another person would suffer
serious harm or physical restraint; or
ii.
To abuse or threaten the use of law or
the legal processes; and
To recruit, transport, harbor, obtain, transfer,
maintain, hire, offer, provide, adopt or
receive a child for purposes of exploitation or
trading them, including but not limited to, the
act of baring and/or selling a child for any
consideration or for barter for purposes of
exploitation. Trafficking for purposes of
exploitation of children shall include:
i.
All forms of slavery or practices similar
to slavery, involuntary servitude, debt
bondage and forced labor, including
recruitment of children for use in
armed conflict;
ii.
The use, procuring or offering of a
child for prostitution, for the production
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of pornography, or for pornographic
performances;
iii.
The use, procuring or offering of a child
for the production and trafficking of drugs;
and
iv.
The use, procuring or offering of a child
for illegal activities or work which, by its
nature or the circumstances in which it is
carried out, is likely to harm their health,
safety or morals; and
l.
justification from the child’s parent or legal
guardian;
b.
Executing, for a consideration, an affidavit of
consent or a written consent for adoption;
c.
Recruiting a woman to bear a child for the
purpose of selling the child;
d.
Simulating a birth for the purpose of selling
the child; and
e.
Soliciting a child and acquiring the custody
thereof through any means from among
hospitals, clinics, nurseries, daycare
centers, refugee or evacuation centers, and
low-income families, for the purpose of
selling the child. (Sec. 4-A)
To organize or direct other persons to
commit the offenses defined as acts of
trafficking under this Act. (Sec. 4)
Penalty
Any person found guilty of committing any of the
acts enumerated above shall suffer the penalty of
imprisonment of twenty (20) years and a fine of
not less than P1,000,000.00 but not more than
P2,000,000.00. (Sec. 10(a))
III. Attempted trafficking
Where there are acts to initiate the
commission of a trafficking offense but the
offender failed to or did not execute all the
elements of the crime, by accident or by reason
of some cause other than voluntary
desistance, such overt acts shall be deemed as
an attempt to commit an act of trafficking in
persons. As such, an attempt to commit any of the
offenses enumerated in Section 4 of this Act
shall constitute attempted trafficking in
persons.
Where victim is a child
Any of the following acts shall also be deemed as
attempted trafficking in persons where victim
is a child:
a.
Facilitating the travel of a child who travels
alone to a foreign country or territory without
valid reason therefor and without the
required clearance or permit from the
Department of Social Welfare and
Development, or a written permit or
Penalty
Any person found guilty of committing any of the
acts enumerated above shall suffer the penalty of
imprisonment of fifteen (15) years and a fine of
not less than P500,000.00 but not more than
P1,000,000.00. (Sec. 10 (b))
IV. Liability of accomplices; accessories
Accomplice
Whoever knowingly aids, abets, cooperates in the
execution of the offense by previous or
simultaneous acts defined in this Act shall be
punished with imprisonment of fifteen (15) years
and a fine of not less than P500,000.00 but not
more than P1,000,000.00. (Sec. 10 (c))
Accessories
Whoever has the knowledge of the commission
of the crime, and without having participated
therein, either as principal or as accomplices,
take part in its commission in any of the following
manners:
a.
By profiting themselves or assisting the
offender to profit by the effects of the crime;
b.
By concealing or destroying the body of the
crime or effects or instruments thereof, in
order to prevent its discovery;
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c.
By harboring, concealing or assisting in the
escape of the principal of the crime, provided
the accessory acts with abuse of his or her
public functions or is known to be habitually
guilty of some other crime.
Accessories shall suffer the penalty of
imprisonment of fifteen (15) years and a fine of
not less than imprisonment of fifteen (15) years
and a fine of not less than P500,000.00 but not
more than P1,000,000.00. (Sec. 10(d))
international and local airports, territorial
boundaries and seaports who are in
possession of unissued, tampered or
fraudulent travel documents for the purpose
of promoting trafficking in persons;
f.
To confiscate, conceal, or destroy the
passport, travel documents, or personal
documents or belongings of trafficked
persons in furtherance of trafficking or to
prevent them from leaving the country or
seeking redress from the government or
appropriate agencies;
g.
To knowingly benefit from, financial
otherwise, or make use of, the labor
services of a person held to a condition
involuntary servitude, forced labor,
slavery.
h.
To tamper with, destroy, or cause the
destruction of evidence, or to influence or
attempt to influence witnesses, in an
investigation or prosecution of a case under
this Act;
i.
To destroy, conceal, remove, confiscate or
possess, or attempt to destroy, conceal,
remove, confiscate or possess, any actual or
purported passport or other travel,
immigration or working permit or document,
or any other actual or purported government
identification, of any person in order to
prevent or restrict, or attempt to prevent or
restrict, without lawful authority, the person’s
liberty to move or travel in order to maintain
the labor or services of that person; or
j.
To utilize his or her office to impede the
investigation, prosecution or execution of
lawful orders in a case under this Act. (Sec.
5)
V. Acts that promote trafficking
The following acts which promote or facilitate
trafficking in persons, shall be unlawful:
a.
b.
c.
d.
e.
To knowingly lease or sublease, use or allow
to be used any house, building or
establishment for the purpose of promoting
trafficking in persons;
To produce, print and issue or distribute
unissued, tampered or fake counseling
certificates, registration stickers, overseas
employment certificates or other certificates
of any government agency which issues
these certificates, decals and such other
markers as proof of compliance with
government regulatory and pre-departure
requirements for the purpose of promoting
trafficking in persons;
To advertise, publish, print, broadcast or
distribute, or cause the advertisement,
publication, printing, broadcasting or
distribution by any means, including the use
of information technology and the internet, of
any brochure, flyer, or any propaganda
material that promotes trafficking in persons;
To assist in the conduct of misrepresentation
or fraud for purposes of facilitating the
acquisition of clearances and necessary exit
documents from government agencies that
are mandated to provide pre-departure
registration and services for departing
persons for the purpose of promoting
trafficking in persons;
To facilitate, assist or help in the exit and
entry of persons from/to the country at
or
or
of
or
Penalty
Any person found guilty of committing any of the
acts enumerated above shall suffer the penalty of
imprisonment of fifteen (15) years and a fine of
not less than P500,000.00 but not more than
P1,000,000.00. (Sec. 10 (d))
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VI. Qualified trafficking
The following are considered as qualified
trafficking:
a.
When the trafficked person is a child;
b.
When the adoption is effected through
Republic Act No. 8043, otherwise known as
the “Inter-Country Adoption Act of 1995” and
said adoption is for the purpose of
prostitution,
pornography,
sexual
exploitation,
forced
labor,
slavery,
involuntary servitude or debt bondage;
c.
When the crime is committed by a syndicate,
or in large scale.
Trafficking is deemed committed by a syndicate
if carried out by a group of three (3) or more
persons conspiring or confederating with one
another. It is deemed committed in large scale if
committed against three (3) or more persons,
individually or as a group;
d.
When the offender is a spouse, an
ascendant, parent, sibling, guardian or a
person who exercises authority over the
trafficked person or when the offense is
committed by a public officer or employee;
e.
When the trafficked person is recruited to
engage in prostitution with any member of
the military or law enforcement agencies;
f.
When the offender is a member of the
military or law enforcement agencies;
g.
When by reason or on occasion of the act of
trafficking in persons, the offended party
dies, becomes insane, suffers mutilation or
is afflicted with Human Immunodeficiency
Virus (HIV) or the Acquired Immune
Deficiency Syndrome (AIDS);
h.
i.
When the offender commits one or more
violations of Section 4 over a period of sixty
(60) or more days, whether those days are
continuous or not; and
When the offender directs or through
another manages the trafficking victim in
carrying out the exploitative purpose of
trafficking. (Sec. 6)
Penalty
Any person found guilty of qualified trafficking
shall suffer the penalty of life imprisonment and a
fine of not less than P2,000,000.00 but not more
than P5,000,000.00. (Sec. 10 (d))
VII. Initiation and prosecution of cases
Initiation of investigation
Law enforcement agencies are mandated to
immediately initiate investigation and countertrafficking-intelligence gathering upon receipt of
statements or affidavit from victims of trafficking,
migrant workers, or their families who are in
possession of knowledge or information about
trafficking in persons cases.
Prosecution of cases
Any person who has personal knowledge of the
commission of any offense under this Act, such
as the trafficked person, the parents, spouse,
siblings, children or legal guardian may file a
complaint for trafficking.
Affidavit of desistance
Cases involving trafficking in persons should not
be dismissed based on the affidavit of
desistance executed by the victims or their
parents or legal guardians. Public and private
prosecutors are directed to oppose and manifest
objections to motions for dismissal. (Sec. 8)
VIII. Prescriptive period
Trafficking cases under this Act shall prescribe in
ten (10) years.
Trafficking cases committed by a syndicate or in
a large scale, or against a child, shall prescribe in
twenty (20) years.
The prescriptive period shall commence to run
from the day on which the trafficked person is
delivered or released from the conditions of
bondage, or in the case of a child victim, from
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the day the child reaches the age of majority,
and shall be interrupted by the filing of the
complaint or information and shall commence to
run again when the proceedings terminate
without the accused being convicted or acquitted
or are unjustifiably stopped for any reason not
imputable to the accused. (Sec. 12)
Lalli, Aringoy and Relampagos have conspired
and confederated with one another to recruit and
place Lolita for work in Malaysia without a POEA
license. The three elements of syndicated illegal
recruitment are present in this case:
1.
The accused have no valid license or
authority required by law to lawfully engage
in recruitment and placement of workers;
Legal protection
2.
Trafficked persons shall not be penalized for
unlawful acts committed as a direct result or
incident, or in-elation to being trafficked
enumerated in this act. In this regard, the consent
of a trafficked person to the intended exploitation
set forth in this Act shall be irrelevant.
The accused engaged in recruitment and
place by actually recruiting, deploying, and
transporting Lolita to Malaysia; and,
3.
Illegal recruitment was committed by three
persons, conspiring and confederating with
one another.
IX. Other relevant rules
Victims of trafficking for purposes of prostitution
as defined under Section 4 of this Act are not
covered by Article 202 of the Revised Penal Code
and as such, shall not be prosecuted, fined, or
otherwise penalized under the said law. (Sec. 17)
Irrelevance of past sexual behavior
The past sexual behavior or the sexual
predisposition of a trafficked person shall be
considered inadmissible in evidence for the
purpose of proving consent of the victim to
engage in sexual behavior, or to prove to
predisposition, sexual or otherwise, of a trafficked
person.
Cases
People v. Lalli, G.R. No. 195419, 2011
Given the broad definition of recruitment and
placement, even the mere act of referring
someone for placement abroad can be
considered recruitment. Such act of referral, in
connivance with someone without the requisite
authority or POEA license, constitutes illegal
recruitment. In its simplest terms, illegal
recruitment is committed by persons who, without
authority from the government, give the
impression that they have the power to send
workers abroad for employment purposes.
People v. Casio, G.R. No. 211465, 2014
An Information was filed against X, charging her
for violating R.A. 9208 Sec. 4(a), qualified by Sec.
6(a). The Information states that: X, with
deliberate intent, with intent to gain, did then and
there hire and/or recruit Y, a minor, 17 years old
and Z for the purpose of prostitution and sexual
exploitation, by acting as their procurer for
different customers, for money, profit, or any other
consideration. The accused, X, testified that while
she was walking outside, two men asked her if
she knew someone named “A,” but she replied
that she only knew a certain “Y.” The two men said
that they were actually looking for Y, gave her a
piece of paper with a number on it, and told her to
tell Y to bring companions. When X arrived home,
she contacted Y. Y convinced her to come
because allegedly, she would be given money by
the two males. The RTC found X guilty beyond
reasonable doubt. The Court of Appeals likewise
affirmed the same. X argued that Y admitted to
her that she was already engaged in prostitution,
and therefore led X to conclude that Y was
predisposed to having sex with customers for
money. Can X’s argument prosper?
No. Under Sec. 3(a) of R.A. 9208,
trafficking in persons can still be
committed even if victim gives consent.
The victim’s consent is rendered
meaningless due to coercive, abusive, or
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deceptive
means
employed
by
perpetrators of human trafficking. R.A.
9208 further defines what qualifies the
crime of trafficking in persons, and one of
them is when trafficked person is a child.
The crime has been consummated for
the mere “transaction” i.e. that
‘solicitation’ for sex and handling over of
the “bust money” already consummated
the act.
People of the Philippines v. Nancy Lasaca
Ramirez, G.R. No. 217978, 2019
Officer X went undercover in a KTV Bar where
prostitution was rampant. Y approached officer X
and offered special services to be given by Z in
exchange for money. Z was a minor. Officer X
accepted the agreement and hailed a cab for Z
and himself to head to a motel. Before arriving in
the motel Z asked for the payment in exchange
for the special services which Officer X complied
with, however shortly after he asked the taxi to
stop and introduced himself as an Officer. He
went back to the KTV Bar and arrested Y. In the
defense of, Y she claimed that Z has given
consent to conduct the interaction therefore
absolving her from liability. Is Y still guilty?
Yes. Under Republic Act No. 10364, the
elements of trafficking in persons have been
expanded to include the following acts:
1. The act of "recruitment, obtaining, hiring,
providing,
offering,
transportation,
transfer, maintaining, harboring, or
receipt of persons with or without the
victim's consent or knowledge, within or
across national borders
2. The means used include "by means of
threat, or use of force, or other forms of
coercion, abduction, fraud, deception,
abuse of power or of position, taking
advantage of the vulnerability of the
person, or, the giving or receiving of
payments or benefits to achieve the
consent of a person having control over
another person
CRIMINAL LAW
3. The purpose of trafficking includes "the
exploitation or the prostitution of others or
other forms of sexual exploitation, forced
labor or services, slavery, servitude or the
removal or sale of organs[.]"
Here, Y was charged with having violated
qualified trafficking in relation to Section 4 (e) of
Republic Act No. 9208, which provides that it is
unlawful for anyone to maintain or hire a person
to engage in prostitution or pornography.
The court held that the victim’s consent is
rendered meaningless due to the coercive,
abusive, or deceptive means employed by
perpetrators of human-trafficking. Even without
the use of coercive, abusive, or deceptive means,
a minor’s consent is not given out of his or her
own free will. Y took advantage of the vulnerability
of Z as a minor. Z ‘s acquiescence to the
transaction cannot be a valid defense.
Santiago, Jr. y Santos v. People, G.R. No.
213760, 2019
The RTC found X of the crime of trafficking in
persons punished under Section 4(a) of AntiTrafficking in Persons, giving credence to the
testimony of A, whom X recruited to have sex with
Z, who was designated as a confidential police
asset, for P500. The CA affirmed the conviction of
X. X argues that the prosecution failed to prove
his guilt beyond reasonable doubt as Z, the
confidential informant was not able to give a
testimony, thus raising doubt on whether
petitioner truly offered A to Z. Is X’s argument
tenable?
No. The Court denied X’s contention. The
testimony of the confidential informant is
not indispensable in the crime of
trafficking in persons. Neither is his
identity relevant. It is sufficient that the
accused has lured, enticed, or engaged
its victims or transported them for the
established purpose of exploitation,
which was sufficiently shown by the
trafficked person's testimony alone.
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TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
Z. ANTI-VIOLENCE AGAINST WOMEN AND
THEIR CHILDREN ACT OF 2004 (RA 9262)
Z. ANTI-VIOLENCE AGAINST WOMEN AND
THEIR CHILDREN ACT OF 2004 (RA 9262)
I. Definition of terms
Violence against women and their children
1.
Definition of terms; Elements (Sec. 3)
It refers to any act or a series of acts committed
by any person
2.
Punishable acts (Sec. 5)
a.
3.
Battered Woman Syndrome (Sec. 26)
4.
Other relevant rules
against a woman who is his wife, former
wife, or against a woman with whom the
person has or had a sexual or dating
relationship, or with whom he has a common
child; or
b.
against her child whether legitimate or
illegitimate, within or without the family
abode,
which result in or is likely to result in physical,
sexual, psychological harm or suffering, or
economic abuse including threats of such acts,
battery, assault, coercion, harassment or arbitrary
deprivation of liberty. It includes, but is not limited
to, the following acts:
a.
Physical violence refers to acts that include
bodily or physical harm;
b.
Sexual violence refers to an act which is
sexual in nature, committed against a
woman or her child. It includes, but is not
limited to:
•
rape, sexual harassment, acts of
lasciviousness, treating a woman or her
child as a sex object, making
demeaning and sexually suggestive
remarks, physically attacking the sexual
parts of the victim’s body, forcing
her/him to watch obscene publications
and indecent shows or forcing the
woman or her child to do indecent acts
and/or make films thereof, forcing the
wife and mistress/lover to live in the
conjugal home or sleep together in the
same room with the abuser;
•
acts causing or attempting to cause the
victim to engage in any sexual activity
by force, threat of force, physical or
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other harm or threat of physical or other
harm or coercion;
•
c.
Prostituting the woman or child.
Psychological violence refers to acts or
omissions causing or likely to cause
mental or emotional suffering of the
victim such as but not limited to intimidation,
harassment, stalking, damage to property,
public ridicule or humiliation, repeated verbal
abuse and marital infidelity.
It includes causing or allowing the victim to
witness the physical, sexual or psychological
abuse of a member of the family to which the
victim belongs, or to witness pornography in any
form or to witness abusive injury to pets or to
unlawful or unwanted deprivation of the right to
custody and/or visitation of common children.
d.
Economic abuse refers to acts that make
or attempt to make a woman financially
dependent which includes, but is not limited
to the following:
•
•
Withdrawal of financial support or
preventing the victim from engaging in
any legitimate profession, occupation,
business or activity, except in cases
wherein the other spouse/partner
objects on valid, serious and moral
grounds as defined in Article 73 of the
Family Code;
Deprivation or threat of deprivation of
financial resources and the right to the
use and enjoyment of the conjugal,
community or property owned in
common;
•
Destroying household property; or
•
Controlling the victims’ own money or
properties or solely controlling the
conjugal money or properties.
Battery
It refers to an act of inflicting physical harm upon
the woman or her child resulting to the physical
and psychological or emotional distress.
Battered Woman Syndrome
It refers to a scientifically defined pattern of
psychological and behavioral symptoms found in
women living in battering relationships as a result
of cumulative abuse.
Stalking
It refers to an intentional act committed by a
person who, knowingly and without lawful
justification follows the woman or her child or
places the woman or her child under surveillance
directly or indirectly or a combination thereof.
Dating relationship
It refers to a situation wherein the parties live as
husband and wife without the benefit of
marriage or are romantically involved over
time and on a continuing basis during the
course of the relationship.
A casual acquaintance or ordinary socialization
between two individuals in a business or social
context is not a dating relationship.
Sexual relations
It refers to a single sexual act which may or may
not result in the bearing of a common child.
Children
It refers to those below eighteen (18) years of age
or older but are incapable of taking care of
themselves as defined under Republic Act No.
7610. This term includes the biological children of
the victim and other children under her care. (Sec.
3)
II. Punishable acts
The crime of violence against women and their
children is committed through any of the following
acts:
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a.
Causing physical harm to the woman or her
child;
b.
Threatening to cause the woman or her child
physical harm;
c.
Attempting to cause the woman or her child
physical harm;
d.
Placing the woman or her child in fear of
imminent physical harm;
e.
Attempting to compel or compelling the
woman or her child to engage in conduct
which the woman or her child has the right to
desist from or desist from conduct which the
woman or her child has the right to engage
in, or attempting to restrict or restricting the
woman’s or her child’s freedom of movement
or conduct by force or threat of force,
physical or other harm or threat of physical
or other harm, or intimidation directed
against the woman or child. This shall
include, but not limited to, the following acts
committed with the purpose or effect of
controlling or restricting the woman’s or her
child’s movement or conduct:
•
Threatening to deprive or actually
depriving the woman or her child of
custody to her/his family;
•
Depriving or threatening to deprive the
woman or her children of financial
support legally due her or her family,
or deliberately providing the woman’s
children insufficient financial support;
•
Depriving or threatening to deprive the
woman or her child of a legal right;
•
Preventing the woman in engaging in
any legitimate profession, occupation,
business or activity or controlling the
victim’s own mon4ey or properties, or
solely controlling the conjugal or
common money, or properties;
g.
Causing or attempting to cause the woman
or her child to engage in any sexual activity
which does not constitute rape, by force or
threat of force, physical harm, or through
intimidation directed against the woman or
her child or her/his immediate family;
h.
Engaging in purposeful, knowing, or reckless
conduct, personally or through another, that
alarms or causes substantial emotional or
psychological distress to the woman or her
child. This shall include, but not be limited to,
the following acts:
i.
•
Stalking or following the woman or her
child in public or private places;
•
Peering in the window or lingering
outside the residence of the woman or
her child;
•
Entering or remaining in the dwelling or
on the property of the woman or her
child against her/his will;
•
Destroying the property and personal
belongings or inflicting harm to animals
or pets of the woman or her child; and
•
Engaging in any form of harassment or
violence;
Causing mental or emotional anguish, public
ridicule or humiliation to the woman or her
child, including, but not limited to, repeated
verbal and emotional abuse, and denial of
financial support or custody of minor children
of access to the woman’s child/children.
(Sec. 5)
III. Battered woman syndrome
f.
Inflicting or threatening to inflict physical
harm on oneself for the purpose of
controlling her actions or decisions;
Cycle of violence
a.
Tension building phase;
b.
Acute battering incident; and
c.
Tranquil, loving phase (non-violent phase).
(People v. Genosa, G.R. No. 1395981,
2004)
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Characteristics of the syndrome
a.
The woman believes that the violence was
her fault;
b.
She has an inability to place the
responsibility for the violence elsewhere;
c.
She fears for her life and/or her children’s
life; and
d.
She has an irrational belief that the abuser is
omnipresent and omniscient.
Battered woman syndrome as a defense
Victim-survivors who are found by the courts to
be suffering from battered woman syndrome do
not incur any criminal and civil liability
notwithstanding the absence of any of the
elements for justifying circumstances of selfdefense under the Revised Penal Code.
In the determination of the state of mind of the
woman who was suffering from battered woman
syndrome at the time of the commission of the
crime, the courts shall be assisted by expert
psychiatrists/ psychologists. (Sec. 26)
IV. Other relevant rules
Women may be held liable under the law for
lesbian relationships. (Barangay Protection Order
RA 9262: A Primer. Department of Interior and
Local
Government,
National
Barangay
Operations Office, 2004.)
Notably, while it is required that the offender has
or had a sexual or dating relationship with the
offended woman, for RA 9262 to be applicable, it
is not indispensable that the act of violence be a
consequence of such relationship. Nowhere in
the law can such limitation be inferred. Hence,
applying the rule on statutory construction that
when the law does not distinguish, neither should
the courts, then, clearly, the punishable acts refer
to all acts of violence against women with whom
the offender has or had a sexual or dating
relationship. As correctly ruled by the RTC, it is
immaterial whether the relationship had ceased
for as long as there is sufficient evidence showing
the past or present existence of such relationship
between the offender and the victim when the
physical harm was committed. Consequently,
the Court cannot depart from the parallelism
in Ang and give credence to petitioner's assertion
that the act of violence should be due to the
sexual or dating relationship. (Dabalos v. RTC,
Branch 59, Angeles City, G.R. No. 193960, 2013)
While the said provision provides that the
offender be related or connected to the victim by
marriage, former marriage, or a sexual or dating
relationship, it does not preclude the application
of the principle of conspiracy under the RPC.
Hence, parents-in-law may be punished under
the said law. (Go-Tan v. Tan, G.R. No. 168852,
2008)
Case
Pavlov v. Mendenilla, G.R. No. 181489, 2017
AA filed a Complaint-Affidavit against X for slight
physical injuries. Subsequently, filed an Amended
Complaint-Affidavit to include maltreatment in
relation to the Anti-VAWC Law as a ground. The
Assistant Prosecutor dismissed because she
failed to substantiate her allegations. BB (mother
of AA) filed in the lower court for AA’s benefit,
praying for the issuance of a Temporary
Protection Order or Permanent Protection Order
under the Anti-VAWC Law. BB added that she
had been aware of her daughter's ordeal and that
her daughter was admitted to St. Agnes General
Hospital for injuries borne by X‘s alleged acts of
violence. X filed Omnibus Motions praying for the
dismissal of BB's petition alleging that he did not
personally received it. However, the court
dismissed his claim for the reason that
substituted summons suffice because he is out of
the country. Did BB engage in forum shopping by
filing a petition for the issuance of a protection
order after a criminal complaint under the AntiVAWC Law was dismissed by the prosecutor?
NO. In denying petitioner's Omnibus
Motion, Judge CC ruled that BB had
personality to file a petition for the
issuance of a protection order to benefit
her daughter. It was equally ruled that BB
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did not engage in forum shopping despite
the prosecutor's prior dismissal of a
criminal complaint filed by AA against
petitioner for slight physical injuries and
maltreatment in relation to the AntiVAWC Law. Finally, it was established
that jurisdiction over petitioner's person
was
properly
acquired
through
substituted service.
The mother of a victim of acts of violence against
women and their children is expressly given
personality to file a petition for the issuance of a
protection order by Section 9(b) of the Anti-VAWC
Law. However, the right of a mother and of other
persons mentioned in Section 9 to file such a
petition is suspended when the victim has filed a
petition for herself. Nevertheless, in this case,
respondent BB filed her petition after her
daughter's complaint-affidavit had already been
dismissed.
TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
AA. SPECIAL PROTECTION OF CHILDREN
AGAINST ABUSE, EXPLOITATION, AND
DISCRIMINATION ACT (RA 7610, AS
AMENDED BY RA 7658 AND RA 9231)
1.
Definition of terms (Sec. 3)
2.
Punishable acts (Secs. 5 and 10)
3.
Other relevant rules
Thus, in Republic v. Yahon, the Court held that
PGMC may be ordered to automatically deduct a
portion from the retirement benefits of its
member-recipients for direct remittance to the
latter's legal spouse as and by way of support in
compliance with a protection order issued by the
trial court, pursuant to the provisions of Republic
Act No. 9262 (RA 9262) or the Anti-Violence
against Women and Their Children Act of 2004.
The Court declared therein that RA 9262 — which
is a special law; a later enactment; a support
enforcement legislation; and one that addresses
one form of violence, which is economic abuse
against women and children — should be
construed as laying down an exception to the
general rule that retirement benefits are exempt
from execution. The Court therein noted that RA
9262 itself explicitly authorizes the courts to order
the withholding of a percentage of the income or
salary of the defendant or respondent by the
employer, which shall be remitted directly to the
plaintiff or complainant — other laws to the
contrary notwithstanding. (Pension and Gratuity
Management Center v. AAA, G.R. No. 201292,
2018)
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AA. SPECIAL PROTECTION OF CHILDREN
AGAINST ABUSE, EXPLOITATION, AND
DISCRIMINATION ACT (RA 7610, AS
AMENDED BY RA 7658 AND RA 9231)
I. Definition of terms
c.
Living in or fending for themselves in the
streets of urban or rural areas without the
care of parents or a guardian or basic
services needed for a good quality of life;
d.
Being a member of a indigenous cultural
community and/or living under conditions of
extreme poverty or in an area which is
underdeveloped and/or lacks or has
inadequate access to basic services needed
for a good quality of life;
e.
Being a victim of a man-made or natural
disaster or calamity; or
f.
Circumstances
analogous
to
those
abovestated which endanger the life, safety
or normal development of children. (Sec. 3)
Children
It refers to person below eighteen (18) years of
age OR those over but are unable to fully take
care of themselves or protect themselves from
abuse,
neglect,
cruelty,
exploitation
or
discrimination because of a physical or mental
disability or condition;.
Child abuse
It refers to the maltreatment, whether habitual or
not, of the child which includes any of the
following:
a.
Psychological and physical abuse, neglect,
cruelty, sexual abuse and emotional
maltreatment;
b.
Any act by deeds or words which debases,
degrades or demeans the intrinsic worth and
dignity of a child as a human being;
c.
Unreasonable deprivation of his basic needs
for survival, such as food and shelter; or
d.
Failure to immediately give medical
treatment to an injured child resulting in
serious impairment of his growth and
development or in his permanent incapacity
or death.
Circumstances which gravely threaten or
endanger
the
survival
and
normal
development of children
II. Punishable acts
Child prostitution and other sexual abuse
Children, whether male or female, who for money,
profit, or any other consideration or due to the
coercion or influence of any adult, syndicate or
group, indulge in sexual intercourse or lascivious
conduct (Sec. 5)
Persons liable:
a.
Those who engage in or promote,
facilitate or induce child prostitution which
include, but are not limited to, the following:
1.
Acting as a procurer of a child
prostitute;
2.
Inducing a person to be a client of a
child prostitute by means of written or
oral advertisements or other similar
means;
3.
Taking advantage of influence or
relationship to procure a child as
prostitute;
4.
Threatening or using violence towards
a child to engage him as a prostitute;
or
5.
Giving monetary consideration goods
or other pecuniary benefit to a child
with intent to engage such child in
prostitution. (Sec. 5 (a))
This include, but are not limited to, the following:
a.
Being in a community where there is armed
conflict or being affected by armed conflictrelated activities;
b.
Working under conditions hazardous to life,
safety and normal which unduly interfere
with their normal development;
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Elements of sexual abuse under Sec. 5 (a)
Elements of sexual abuse under Sec. 5(b)
1.
The accused engages in, promotes,
facilitates or induces child prostitution;
1.
The accused commits the act of sexual
intercourse or lascivious conduct;
2.
The act is done through, but not limited to,
the following means:
2.
The said act is performed with a child
exploited in prostitution or subjected to other
sexual abuse; and
3.
The child, whether male or female, is below
18 years of age. (Garingarao v. People, G.R.
No. 192769, 2011)
a.
b.
acting as a procurer of a child
prostitute;
inducing a person to be a client of a
child prostitute by means of written or
oral advertisements or other similar
means;
c.
taking advantage of influence or
relationship to procure a child as a
prostitute;
d.
threatening or using violence towards
a child to engage him as a prostitute;
or
e.
giving monetary consideration, goods
or other pecuniary benefit to a child
with intent to engage such child in
prostitution;
3.
the child is exploited or intended to be
exploited in prostitution; and
4.
the child, whether male or female, is below
18 years of age. (People v. Dulay, G.R. No.
193854, 2012)
Sexual abuse under Sec. 5(a) essentially
punishes acts pertaining to or connected with
child prostitution. It contemplates sexual
abuse of a child exploited in prostitution. In
other words, under Sec. 5(a), the child is
abused primarily for profit.
b.
Those who commit the act of sexual
intercourse of lascivious conduct with a
child exploited in prostitution or subject to
other sexual abuse.
When victims is under twelve (12) years
of age, the perpetrators shall be
prosecuted under Article 335, paragraph
3, for rape and Article 336 of Act No.
3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as
the case may be. (Sec. 5(b))
For consensual sexual intercourse or
lascivious conduct with a minor, who is not
exploited in prostitution, to thus fall within the
purview of Section 5(b) of R.A. No. 7610,
"persuasion, inducement, enticement or
coercion" of the child must be present.
(People v. Court of Appeals, G.R. No.
171863, 2008)
Violation of Section 5(b), Article III of RA 7610
and rape are separate and distinct crimes.
The two are separate and distinct crimes.
Thus, petitioner can be held liable for
violation of Section 5(b), Article III of RA 7610
despite a finding that he did not commit rape.
(Malto v. People, G.R. No. 164733, 2007)
Under Section 5(b), Article III of RA 761012 in
relation to RA 8353, if the victim of sexual
abuse14 is below 12 years of age, the
offender should not be prosecuted for sexual
abuse but for statutory rape under Article
266-A(1)(d) of the Revised Penal Code15
and penalized with reclusion perpetua.
On the other hand, if the victim is 12 years or
older, the offender should be charged with
either sexual abuse17 under Section 5(b) of
RA 7610 or rape under Article 266-A (except
paragraph 1[d]) of the Revised Penal Code.
However, the offender cannot be accused of
both crimes18 for the same act because his
right against double jeopardy will be
prejudiced. A person cannot be subjected
twice to criminal liability for a single criminal
act. (People v. Abay, G.R. No. 177752, 2009)
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c.
Those who derive profit or advantage
therefrom, whether as manager or owner of
the establishment where the prostitution
takes place, or of the sauna, disco, bar,
resort,
place
of
entertainment
or
establishment serving as a cover or which
engages in prostitution in addition to the
activity for which the license has been issued
to said establishment. (Sec. 5(c))
Other acts of neglect, abuse, cruelty or
exploitation and other conditions prejudicial
to the child's development
a.
Any person who shall commit any other acts
of child abuse, cruelty or exploitation or to be
responsible for other conditions prejudicial to
the child's development including those
covered by Article 59 of Presidential Decree
No. 603, as amended, but not covered by the
Revised Penal Code, as amended
b.
Any person who shall keep or have in his
company a minor, twelve (12) years or under
or who in ten (10) years or more his junior in
any public or private place, hotel, motel, beer
joint, discotheque, cabaret, pension house,
sauna or massage parlor, beach and/or
other tourist resort or similar places.
This provision shall not apply to any person who
is related within the fourth degree of
consanguinity or affinity or any bond
recognized by law, local custom and tradition
or acts in the performance of a social, moral
or legal duty.
c.
Any person who shall induce, deliver or offer
a minor to any one prohibited by this Act to
keep or have in his company a minor as
provided in the preceding paragraph.
d.
Any person, owner, manager or one
entrusted with the operation of any public or
private place of accommodation, whether for
occupancy, food, drink or otherwise,
including residential places, who allows any
person to take along with him to such place
or places any minor herein described.
e.
Any person who shall use, coerce, force or
intimidate a street child or any other child to;
1.
Beg or use begging as a means of
living;
2.
Act as conduit or middlemen in drug
trafficking or pushing; or
3.
Conduct any illegal activities
III. Other relevant rules
Cases
People v. Udang, Sr. y Sevilla, G.R. No. 210161,
2018
X was charged with two counts of rape against Y,
who at the time was a minor, in Violation of Article
266-A in relation to Sec. 5 (b) of R.A. 7610. X
raped 13-year-old Y in his house while Y was
intoxicated, once in Sept 2003 and again on
December 2003. The RTC and CA convicted X of
rape under Article 266-A(1) of the Revised Penal
Code, instead of sexual abuse under Section 5(b)
of Republic Act No. 7610. It ratiocinated that
while the allegations in the first and second
Informations satisfied the elements of rape under
the first and third paragraphs of Article 266-A,
respectively, the charges can only be one (1) for
rape under the first paragraph of Article 266-A
because an accused cannot be prosecuted twice
for a single criminal act. Was X correctly
convicted of rape punished under the first
paragraph of Article 266-A of the Revised Penal
Code?
No, X was charged and convicted for
violation of Section 5 (b), Article III of RA
7610, not rape. The offense for which he
was convicted is punished by a special
law while rape is a felony under the
Revised Penal Code. They have different
elements. The two are separate and
distinct crimes. Thus, X can be held liable
for violation of Section 5 (b), Article III of
RA 7610 despite a finding that he did not
commit rape. Unlike rape, consent is
immaterial in cases involving violation of
Section 5, Article III of RA 7610.
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Perez v. People, G.R. No. 201414, 2018
X was found guilty beyond reasonable doubt of
violating Section 5 (b) of Republic Act No. 7610.
The prosecution alleged that X committed child
abuse when he followed minor Y into the kitchen,
kissed her nape, told her to keep quiet, and
inserted his finger inside her vagina while
mashing her breasts. The elements of the offense
aforementioned are: (1) the accused commits the
acts of sexual intercourse or lascivious conduct;
(2) the said act is performed with a child exploited
in prostitution or subjected to other sexual abuse;
and, (3) the child, whether male or female, is
below 18 years of age. X contends that assuming
the crime is committed, it should only be acts of
lasciviousness since the prosecution was not
able to prove the second element. Is X liable only
for acts of lasciviousness since not all the
elements of child abuse under R.A. 7610 were
present?
No. Section 5 (b) of Republic Act No.
7610 refers to a specification only as to
who is liable and the penalty to be
imposed. The person who engages in
sexual intercourse with a child already
coerced is liable. Children who are
likewise coerced in lascivious conduct
are “deemed to be children exploited in
prostitution and other sexual abuse.”
Therefore, all the elements of the crime
were present.
Fernandez y Medina v. People, G.R. 217542,
2018
X was the house helper turned stepmother of two
children Y and Z. While in the beginning their
relationship was fine, X eventually started
inflicting abuse on Y and Z. X would beat the kids,
use pliers to pinch and crimp their ears, kick them
and hit them with various household items, and
would force them to lie about how they acquired
their injuries. It was only after some prodding from
their teacher that Z disclosed the abuse, she and
her brother Y were suffering at the hands of X.
Their teacher reported this to the principal who
then called in a barangay councilor. After talks
with a Department of Social Welfare and
CRIMINAL LAW
Development (DSWD) representative, a case
was filed against X for committing child abuse in
violation of RA 7610. Being found guilty by both
the trial court and the appellate court, X appealed.
X argues that the lower courts erred in finding her
guilty because the children’s testimonies were
inconsistent with each other, evidencing that they
were coached. Are inconsistencies in the
testimony of children enough to acquit a person
from violating RA 7610?
NO. Though
there
were
some
inconsistencies in the details of the
abuse, this does not detract from the
veracity of their testimonies. As the Court
of Appeals
correctly
ruled,
the
straightforward, candid, and intrepid
revelation of Y and Z is more convincing
and plausible compared to the weak and
uncorroborated defense of X. Courts
expect minor inconsistencies when a
child-victim narrates the details of a
harrowing experience, especially when
the details are too painful to recall. Such
inconsistencies only prove that the childvictim was unrehearsed, especially when
the discrepancies are minor details
irrelevant to the elements of the crime,
and thus, cannot be considered as
grounds for acquittal. Y and Z’s
testimonies sufficiently established that X
committed physical violence against
them. They validated their testimonies
with properly identified photos depicting
the injuries they had suffered, further
corroborated by their medical certificates.
Thus, there is sufficient basis to conclude
that they were telling the truth.
Torres y Salera v. People, G.R. No. 206627, 2017
B, with intent to harm and humiliate, did then and
there, abuse, slap and whip A, a 14 year old minor
with a T-shirt hitting his neck and shoulder and
causing him to fall down on the stairs of the
barangay hall, to the damage and prejudice of the
said victim in the amount to be proved during trial.
Based on the physical examination conducted by
Dr. Y, AA sustained a contusion. A is the victim
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and B is the uncle of A. Is the prejudice to the
development of the child necessary in violating
Republic Act No. 7610?
NO, prejudice to the development of the
child is not a necessary element of the
crime but constitutes another act different
the 3 other acts which are enumerated in
the same provision: child abuse, child
cruelty and child exploration. The act of
whipping a child three (3) times in the
neck with a wet t-shirt constitutes child
abuse. The victim, AA, was a child when
the incident occurred.
Article VI, Section 10(a) of Republic Act
No. 7610 punishes not only those
enumerated under Article 59 of
Presidential Decree No. 603, but also
four distinct acts, i.e., (a) child abuse, (b)
child cruelty, (c) child exploitation and (d)
being
responsible
for
conditions
prejudicial to the child's development.
AA is entitled to protection under
Republic Act No. 7610. Further, the use
of "or" in Section 10(a) of Republic Act
No. 7610 before the phrase "be
responsible
for
other
conditions
prejudicial to the child's development"
supposes that there are four punishable
acts therein. First, the act of child abuse;
second, child cruelty; third, child
exploitation;
and
fourth,
being
responsible for conditions prejudicial to
the child's development. The fourth
penalized act cannot be interpreted as a
qualifying condition for the three other
acts, because an analysis of the entire
context of the questioned provision does
not warrant such construal.
Lucido v. People, G.R. No. 217764, 2017
X was accused, and convicted, of child abuse
under §10(a) of RA 7610, or otherwise known as
the Special Protection of Children against Child
Abuse, Exploitation and Discrimination Act. X
beat with the use of a belt, pinched and
strangulated Y, an 8-year-old child placed under
CRIMINAL LAW
her care. X claims that the prosecution failed to
prove the infliction of physical injuries on the child,
and tried to impugn ill motives on the
prosecution’s Witness Z. X also claims that the
prosecution failed to prove the infliction of
physical injuries on the child has “prejudiced the
child’s development” as required by §10(a) of RA
7610. Further, X asserts that she should have
been charged with slight physical injuries under
the RPC and not child abuse under RA 7610. Is X
guilty of child abuse in violation of §10(a) of RA
7610?
Yes. At the time of the physical abuse, Y
was a child entitled to the protection of
RA 7610. Under Article 1, §3(b) of RA
7610, physical abuse, whether habitual
or not, constitute child abuse. The
testimonies of Y, Z, Y’s father, and the
medical findings all support the fact that
physical abuse did occur. The SC held
that §10(a) of RA 7610 punished 4
distinct offenses which are (1) child
abuse, (2) child cruelty, (3) child
exploitation, and (4) being responsible for
the conditions prejudicial to the child’s
development. The element that acts must
be prejudicial to the child’s development
pertains only to the fourth offense.
Finally, the SC distinguishes the factual
circumstances between this case and
that of Bongalon v People, where the
Bongalon was overwhelmed by the
protective instincts of a father and
slapped the minor complainant’s left
cheek and hit his back. It is not applicable
in this case because X’s maltreated Y
though repeated acts of physical abuse.
It must be stressed that crimes punished
by RA 7610 are mala prohibitum. Intent
to debase, degrade or demean the minor
is not essential to establish guilt.
People v. Tulagan, G.R. No. 227363, 2019
In People vs. Tulagan, the Supreme Court made
a comparison of the elements of rape under the
RPC and sexual intercourse with a child under
Section 5(b) of the Child Abuse Law where the
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CRIMINAL LAW
offended party is between 12 years old and below
18:
RAPE UNDER
ARTICLE 266-A (1)
(A, B, C) UNDER
THE RPC
SECTION 5 (1) OF
R.A. NO. 7610
1. Offender is a man;
1. Offender is a man;
2. Carnal knowledge
of a woman;
2. Indulges in sexual
intercourse with a
female child
exploited in
prostitution or other
sexual abuse, who
is 12 years old or
below 18 or above
18 under special
circumstances;
3. Through force,
threat or
intimidation;
when the
offended party is
deprived of
reason or
otherwise
unconscious;
and by means of
fraudulent
machination or
grave abuse of
authority.
3. Coercion or
influence of any
adult, syndicate or
group is employed
against the child to
become a
prostitute.
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In the same case, the Supreme Court made the following designation of crime and its penalty:
Age of Victim
12 years old or below 18, or
18 under special
circumstances
Crime Committed
Under 12 years old or
demented
18 years old
and above
Acts of
Lasciviousness
committed against
children exploited in
prostitution or other
sexual abuse
Acts of Lasciviousness
under Article 336 of the
RPC in relation to Section
5 (b) of R.A. No.
7610: reclusion
temporal in its medium
period
Lascivious conduct under
Section 5 (b) of R.A. No.
7610: reclusion temporal in its
medium period to reclusion
perpetua
N/A
Sexual Assault under
Article 266-A (2) of the
RPC in relation to Section
5 (b) of R.A. No.
7610: reclusion
temporal in its medium
period
Lascivious Conduct under
Section 5 (b) of R.A. No.
7610: reclusion temporal in its
medium period to reclusion
perpetua
N/A
Sexual Assault
committed against
children exploited in
prostitution or other
sexual abuse
Rape under Article 266-A
(1) of the RPC: reclusion
perpetua, except when
the victim is below 7 years
old in which case death
penalty shall be imposed
76
Sexual Abuse 77 under
Section 5 (b) of R.A. No.
7610: reclusion temporal in its
medium period to reclusion
perpetua
N/A
Sexual Intercourse
committed against
children exploited in
prostitution or other
sexual abuse
Rape by carnal
knowledge
Rape under Article 266-A
(1) in relation to Art. 266-B
of the RPC: reclusion
perpetua, except when
the victim is below 7 years
old in which case death
penalty shall be imposed
Rape under Article 266-A (1) in
relation to Art. 266-B of the
RPC: reclusion perpetua
Rape under
Article 266-A
(1) of the
RPC: reclusion
perpetua
Rape by Sexual
Assault
Sexual Assault under
Article 266-A (2) of the
RPC in relation to Section
5 (b) of R.A. No.
7610: reclusion
temporal in its medium
period
Lascivious Conduct under
Section 5 (b) of R.A. No.
7610: reclusion temporal in its
medium period to reclusion
perpetua
Sexual
Assault under
Article 266-A
(2) of the
RPC: prision
mayor
————- end of topic ————-
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TOPIC OUTLINE UNDER THE SYLLABUS:
III. SPECIAL PENAL LAWS
BB. SAFE SPACES ACT (RA 11313)
1.
Definition of terms
2.
Gender-based streets and public spaces
sexual harassment
3.
Gender-based online sexual harassment
4.
Qualified gender-based streets, public
spaces and online sexual harassment
5.
Gender-based sexual harassment in the
workplace
6.
Gender-based sexual harassment in
educational and training institutions
BB. SAFE SPACES ACT (RA 11313)
I. Definition of terms
Catcalling
It is unwanted remarks directed towards a
person, commonly done in the form of wolfwhistling
and
misogynistic,
transphobic,
homophobic, and sexist slurs;
Employee
A person, who in exchange for remuneration,
agrees to perform specified services for another
person, whether natural or juridical, and whether
private or public, who exercises fundamental
control over the work, regardless of the term or
duration of agreement
For the purposes of this law, a person who is
detailed to an entity under a subcontracting or
secondment agreement shall be considered an
employee;
Employer
A person who exercises control over an employee
For the purpose of this Act, the status or
conditions of the latter's employment or
engagement shall be disregarded;
Gender
It is a set of socially ascribed characteristics,
norms, roles, attitudes, values and expectations
identifying the social behavior of men and
women, and the relations between them;
Gender-based online sexual harassment
It is an online conduct targeted at a particular
person that causes or likely to cause another
mental, emotional or psychological distress, and
fear of personal safety, sexual harassment acts
including unwanted sexual remarks and
comments, threats, uploading or sharing of one's
photos without consent, video and audio
recordings, cyberstalking and online identity theft;
Gender identity and/or expression
It is the personal sense of identity as
characterized, among others, by manner of
clothing, inclinations, and behavior in relation to
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masculine or feminine conventions. A person may
have a male or female identity with physiological
characteristics of the
opposite sex, in which case this person is
considered transgender;
Public Spaces
It refers to streets and alleys, public parks,
schools, buildings, malls, bars, restaurants,
transportation terminals, public markets, spaces
used as evacuation centers, government offices,
public utility vehicles as well as private vehicles
covered by app-based transport network services
and other recreational spaces such as, but not
limited to, cinema halls, theaters and spas; and
Stalking
It is conduct directed at a person involving the
repeated visual or physical proximity, nonconsensual communication, or a combination
thereof that cause or will likely cause a person to
fear for one's own safety or the safety of others,
or to suffer emotional distress. (Sec. 3)
II. Gender-based streets and public spaces
sexual harassment
The following acts are unlawful and shall be
penalized as follows:
a. For acts such as cursing, wolf-whistling,
catcalling, leering and intrusive gazing,
taunting, pursing, unwanted invitations,
misogynistic, transphobic, homophobic, and
sexist slurs, persistent unwanted comments
on one’s appearance, relentless requests for
one’s personal details such as name,
contact and social media details or
destination, the use of words, gestures or
actions that ridicule on the basis of sex,
gender or sexual orientation, identity and/or
expression including sexist, homophobic,
and transphobic statements and slurs, the
persistent telling of sexual jokes, use of
sexual names, comments and demands,
and any statement that has made an
invasion on a person’s personal space or
threatens the person’s sense of personal
safety;
b.
c.
Acts such as making offensive body
gestures at someone, and exposing private
parts for the sexual gratification of the
perpetrator with the effect of demeaning,
harassing, threatening or intimidating the
offended party including flashing of private
parts, public masturbation, groping, and
similar lewd sexual actions; and,
Acts such as stalking, and any of the acts
mentioned in items (a) and (b), when
accompanied by touching, pinching or
brushing against the body of the offended
person; or any touching, pinching, or
brushing against the genitalia, face, arms,
anus, groin, breasts, inner thighs, face,
buttocks or any part of the victim’s body even
when not accompanied by acts mentioned in
items (a) and (b).
Places covered
Streets, public spaces, restaurants, bars,
cinemas, malls, buildings and other privatelyowned places and in public utility vehicles (PUVs)
III. Gender-based online sexual harassment
Acts that use information and communications
technology in terrorizing and intimidating victims
through the following:
a. physical, psychological, and emotional
threats, unwanted sexual misogynistic,
transphobic, homophobic and sexist
remarks and comments online whether
publicly or through direct and private
messages,
b. invasion of victim’s privacy through
cyberstalking and incessant messaging;
c. uploading and sharing without the consent of
the victim, any form of media that contains
photos, voice, or video with sexual content,
any unauthorized recording and sharing of
any of the victim’s photos, videos, or any
information online; or,
d. impersonating identities of victims online or
posting lies about victims to harm their
reputation, or filing, false abuse reports to
online platforms to silence victims.
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