CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO TITLE I – CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS Chapter 1: Crimes against National Security Section 1 – Treason and espionage Art. 114 – Treason Any Filipino citizen who levies war against the Philippines or adheres to her enemies, giving them aid or comfort within the Philippines or elsewhere, shall be punished by reclusion perpetua to death and shall pay a fine not to exceed 100,000 pesos. No person shall be convicted of treason unless on the testimony of two witnesses at least to the same over act or on confession of the accused in open court. Likewise, an alien, residing in the Philippines who commits acts of treason as defined in paragraph 1 of this article shall be punished by reclusion temporal to death and shall pay a fine not to exceed 100, 000 pesos. Elements: (FWO: la) a. That the offender is a Filipino citizen or an alien residing in the Philippines b. That there is a war in which the Philippines is involved c. That the offender either: a. levies war against the Government, or b. adheres to the enemies, giving them aid or comfort. Treason • Treason – breach of allegiance to a government, by a person who owes allegiance to it. • Treason is the violation by a subject of his allegiance to his sovereign or to the supreme authority of the state. (U.S. v. Abad) • “Allegiance” – the obligation of fidelity and obedience which the individuals owe to the government which they live or to their sovereign in return for the protection they receive a. Permanent allegiance – Obedience and fidelity that a citizen or subject owes to his government. b. Temporary allegiance – Obligation of fidelity and obedience which a resident alien owes to our government. •
BLOCK A 2011-­‐2012 Who may commit treason? 1. Filipino citizen May be proved by:  Documents proving citizenship  Prison record (People v. Martin)  Testimony of witnesses who know him (People v. Flavier) 2. Resident alien  Aliens who aid the enemy can now be prosecuted under Art. 144 War: •
Treason is a war crime, treasonable acts may actually be perpetrated during peace but there are no traitors until war has started. Punished by the state as a measure of self-­‐defense and preservation. •
Ways or modes : 1. By levying war against the Government. a. There must be an actual assembling of men. b. For the purpose of executing a treasonable design by force.  It is not necessary that there be a formal declaration of the existence of a state of war. (Justice Johnson, dissenting; U.S. v. Lagnason)  Levying of war must be with the intent to overthrow the government.  It does not matter how vain and futile the attempt was and how impossible of accomplishment.  Levying war as an act of treason must be for the purpose of executing a treasonable design by force.  Levying war must be in collaboration with a foreign enemy, if the levying is merely a civil uprising without any intention of helping an external enemy, offenders will be liable for treason. 2. Adheres to the enemies, giving them aid or comfort a. Adherence to the enemy  When a citizen intellectually or emotionally favors the enemy and harbors sympathies or convictions disloyal to his country’s policy or interest. (Cramer v. U.S.)  Giving information to the enemy (People v. Paar)  Being a makapili constitutes an overt act, since he placed himself at the enemy’s call to fight side by side with him (People v. Adriano) b. Giving them aid or comfort  An act which strengthens or tends to strengthen the traitors or weakens the state to resist and attack the enemy Direct and indirect act 1
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Direct – Materially contributes to the traitors and external force. i.e. selling bullets  Indirect – Normal conduct of business such as Selling food or clothing 3. Public office  Mere governmental work under the Japanese government is not treason  However, if due to his position he helped in the propagation of the creed of the invader, such constitute treason. 4. Treason as an offense  No complex crime of treason  Treason is a continuous offense, thus it may be committed by a series of acts. 5. Aggravating Circumstances (Exclusively on)  Cruelty  Ignominy Proving treason: 1. 2 witnesses testifying to same overt act a. The testimonies must refer to the same act, place and moment of time. Treason cannot be proved by circumstantial evidence or by extrajudicial confession.  Example: X saw arms landed in La Union and loaded into a motor vehicle. At this stage, not sufficient to convict yet. Y later saw the arms unloaded in a warehouse. Will X + Y be sufficient witnesses to convict? Answer: NO. Because the law requires that 2 witnesses see the SAME OVERT ACT. b. Confession of the accused in open court.  If he has pleaded NOT guilty already during arraignment, he can still confess in open court by stating the particular acts constituting treason.  During trial, simply saying “I’m guilty” is not enough.  If during arraignment he pleads guilty, court will ask if the accused understands is plea. Submission of affidavit during trial, even if assisted by counsel is not enough. *Reason: Nature of the crime of treason requires that the accused be afforded a special protection not required in other cases so as to avoid miscarriage of justice 2. Proving Adherence a. By one witness b. From nature of the act itself c. From the circumstances surrounding the act 
BLOCK A 2011-­‐2012 *Reason: What is designed in the mind of an accused never is susceptible of proof by direct testimony. 3. Defense  Duress or uncontrollable fear, only fear of immediate death shall be accepted.  Suspended allegiance and change of sovereignty not accepted. Art. 115 -­‐ Conspiracy and proposal to commit treason The conspiracy or proposal to commit the crime of treason shall be punished respectively, by prision mayor and a fine not exceeding P10,000 pesos, and prision correccional and a fine not exceeding P5,000 pesos. Acts punished: 1. Conspiracy to commit treason – when in time of war, two or more persons come to an agreement to levy war against the government or to adhere to the enemies and to give them aid or comfort, and decide to commit it. 2. Proposal to commit treason – when in time of war a person who has decided to levy war against the government or to adhere to the enemies and to give them aid or comfort, proposes its execution to some other person or persons. Art. 116 -­‐ Misprision of treason Every person owing allegiance to (the United States) the Government of the Philippine Islands, without being a foreigner, and having knowledge of any conspiracy against them, conceals or does not disclose and make known the same, as soon as possible to the governor or fiscal of the province, or the mayor or fiscal of the city in which he resides, as the case may be, shall be punished as an accessory to the crime of treason. Elements: (OKC) a. That the offender must be owing allegiance to the government, and not a foreigner; b. That he has knowledge of any conspiracy (to commit treason) against the government; c. That he conceals or does not disclose and make known the same as soon as possible to the governor or fiscal of the province or the mayor or fiscal of the city in which he resides. 2
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Offender: 1. Applies to Filipino citizens, resident alien is not included. 2. Does not apply if treason is actually committed. 3. This article is an exception to the rule that mere silence does not make a person criminally liable, for it punishes non-­‐disclosure. (U.S. v. Caballeros, et al.) 4. What if other high ranking official such as PNP chief? It is still applicable as long as the official is under DILG Art. 117 – Espionage The penalty of prision correccional shall be inflicted upon any person who: 1. Without authority therefor, enters a warship, fort, or naval or military establishment or reservation to obtain any information, plans, photographs, or other data of a confidential nature relative to the defense of the Philippine Archipelago; or 2. Being in possession, by reason of the public office he holds, of the articles, data, or information referred to in the preceding paragraph, discloses their contents to a representative of a foreign nation. The penalty next higher in degree shall be imposed if the offender be a public officer or employee. Elements: 1. Paragraph 1 Elements: (WAP) a. That the offender enters a warship, fort, or naval or military establishment or reservation; 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. Paragraph 2 Elements: (PAD) a. that the offender is a public officer; b. That he has in his possession the articles, data or information referred to in paragraph No. 1 of Art. 117, by reason of the public office he holds; c. That he discloses their contents to a representative of a foreign nation. Note: Not necessary that Philippines is at war with the country to which the information was revealed. What is important is that the information related is connected with the defense system of the Philippines. BLOCK A 2011-­‐2012  It is sufficient that he has the purpose to obtain any of them Commonwealth act No. 616: a. Section 1 “Unlawfully obtaining”  Going upon, entering, flying over or otherwise by obtaining information concerning any vessel, aircraft, work of defense, for the purpose of obtaining information with the intent to use it to the injury of the Philippines or to advantage any foreign nation.  Copying, taking, making or attempting or inducing or aiding another to copy, take, make or obtain any sketch, photograph, photographic negative, blue print, plan, map, instrument, appliance, document, writing for the purpose in paragraph 1.  Receiving or obtaining or agreeing or attempting or inducing or aiding another to receive or obtain those mentioned in paragraph 2.  Communicating or transmitting or attempting to communicate or transmit to any person not entitled to receive it, by willfully retaining and failing to deliver it on demand.  Permitting through gross negligence to be removed from its proper place or custody or deliver to anyone in violation of his trust, or to be lost, stolen, abstracted or destroyed. b. Section 2 “Unlawful Disclosure”  By communicating, delivering or transmitting or attempting or aiding or inducing another to do it.  In time of war, by collecting, recording, publishing or communicating or attempting to elicit any information with respect to the movement, number, description, condition, or disposition of any of the armed forces. c. Section 3 “Disloyal act or words during peace time”  Advising, counseling, urging or in any other manner by causing insubordination, disloyalty, mutiny or refusal of duty.  Disturbing any written or printed matter which urges the acts cited in paragraph 1. d. Section 4 “Disloyal acts or words during war”  Willfully making or conveying false reports or false statements with the intent to interfere with the AFP  Willfully causing or attempting to cause insubordination, disloyalty, mutiny or refusal of duty  Willfully obstructing the recruiting or enlistment service e. Section 5 “Conspiracy”  Two or more persons conspire to violate the preceding provisions 3
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO One or more of such person do any act to effect the object of the conspiracy f. Section 6 “Harboring or concealing”  Offender knows that a person has committed or is about to commit an offense under this act  Harbors and conceals such person Espionage compared from Treason:  Both crimes are not conditioned upon the citizenship of the offender, however in treason alien must reside in the Philippines.  Treason is committed in time of war, while espionage may be committed both in time of peace and war. Note:  In crimes against the law of nations, the offenders can be prosecuted anywhere in the world because these crimes are considered as against humanity in general, like piracy and mutiny. Crimes against national security can be tried only in the Philippines, as there is a need to bring the offender here before he can be made to suffer the consequences of the law.  The acts against national security may be committed abroad and still be punishable under our law, but it cannot be tried under foreign law. 
Section 2 – Provoking war and disloyalty in case of war Art. 118: Inciting to war or giving motives for reprisals The penalty of reclusion temporal shall be imposed upon any public officer or employee, and that of prision mayor upon any private individual, who, by unlawful or unauthorized acts provokes or gives occasion for a war involving or liable to involve the Philippine Islands or exposes Filipino citizens to reprisals on their persons or property. Elements: (PA) a. That the offender performs unlawful or unauthorized acts b. That 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 Notes:  Crime is committed in time of peace, intent is immaterial 
BLOCK A 2011-­‐2012 Reprisals is not limited to military action, it could be economic reprisals, or denial of entry into their country. Penalty is higher when the offender is a public officer or employee 
Examples  Raising troops within the Philippines without proper authorization for the service of another nation against another nation  Public destruction of the flag or seal of a foreign state or public manifestations of hostility to the head or ambassador of another state. Art. 119 -­‐ Violation of neutrality
The penalty of prision correccional shall be inflicted upon anyone who, on the occasion of a war in which the Government is not involved, violates any regulation issued by competent authority for the purpose of enforcing neutrality The penalty of prision correccional shall be inflicted upon anyone who, on the occasion of a war in which the Government is not involved, violates any regulation issued by competent authority for the purpose of enforcing neutrality. Elements: (WRV) a. That there is war in which the Philippines is not involved b. That there is a regulation issued by competent authority for the purpose of enforcing neutrality c. That the offender violates such regulation Neutrality: 1. Neutrality – a nation or power which takes no part in a contest of arms going on between others.  Government declared the neutrality of the Philippines in a war between 2 other countries 2. Congress has the right to declare neutrality 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 shall be punished: 1. By prision correccional, if the correspondence has been prohibited by the Government; 4
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 2. By prision mayor, if such correspondence be carried on in ciphers or conventional signs; and 3. By reclusion temporal, if notice or information be given thereby which might be useful to the enemy. If the offender intended to aid the enemy by giving such notice or information, he shall suffer the penalty of reclusion temporal to death. Elements: (WCE: pnc) a. That it is in time of war in which the Philippines is involved b. That the offender makes correspondence with an enemy country or territory occupied by enemy troops c. That the correspondence is either – i.
prohibited by the government, or ii.
carried on in ciphers or conventional signs, or iii.
containing notice or information which might be useful to the enemy Circumstances qualifying the offense: 1. Notice or information might be useful to the enemy 2. Offender intended to aid the enemy Correspondence: • Communication by means of letter. • If ciphers were used, no need for prohibition Art. 121 -­‐ Flight to enemy country
The penalty of arresto mayor shall be inflicted upon any person who, owing allegiance to the Government, attempts to flee or go to an enemy country when prohibited by competent authority. 2
Elements: (WA P) a. That there is a war in which the Philippines is involved b. That the offender (Filipino or resident alien) must be owing allegiance to the government c. That the offender attempts to flee or go to enemy country d. That going to enemy country is prohibited by competent authority BLOCK A 2011-­‐2012 Notes:  There must be a prohibition  Mere attempt consummates the crime  Even aliens can be guilty Section 3 – Piracy and mutiny on the high seas Art. 122 -­‐ Piracy in general and mutiny on the high seas The penalty of reclusion temporal shall be inflicted upon 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 said vessel, its equipment, or personal belongings of its complement or passengers. The same penalty shall be inflicted in case of mutiny on the high seas. Ways of Committing Piracy: a. By attacking or seizing a vessel on the high seas or in the Philippine waters (PD 532) b. By seizing the whole or part of the cargo of said vehicles, its equipment or personal belongings of its complement or passengers Elements: (VNO: as) a. That a vessel is on the high seas/Philippine waters b. That the offenders are not members of its complement or passengers of the vessel c. That the offenders – • attack or seize that vessel or (hence, if committed by crew or passengers, the crime is not piracy but robbery in the high seas) • seize the whole or part of the cargo of said vessel, its equipment or personal belongings of its complement or passengers Definitions: • High seas – 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. • Piracy – 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. (People v. Lol-­‐lo) 5
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Mutiny – Committed by the other members of the complement and may be committed by the passengers of the vessel. Unlawful resistance to a superior officer. Distinctions: • Piracy from robbery on the high seas  If offender is a member of the complement or passenger of the vessel – robbery  If the robbery is committed by an outsider – piracy Purpose of severe penalty - to impose discipline
PIRACY MUTINY Robbery or forcible degradation on the Unlawful resistance to a superior high seas, without lawful authority and officer, or the raising of commotion done with animo lucrandi and in the spirit and disturbances on board a ship and intention of universal hostility. against the authority of its commander Intent to gain is an element. No criminal intent Attack from outside. Offenders are Attack from the inside. strangers to the vessel. •
Art. 123 – Qualified piracy The penalty of reclusion temporal to death shall be imposed upon those who commit any of the crimes referred to in the preceding article, under any of the following circumstances: c.
BLOCK A 2011-­‐2012 • Setting the boat on fire Whenever the crime is accompanied by murder, homicide, physical injuries, or rape. (the above may result to qualified mutiny) • Judge Pimentel said that parricide should also be included (In short, take into consideration other killings which is necessarily transformed into other crimes because of qualifying factors) Republic Act No. 6235 (The Anti Hi-­‐Jacking Law): • Anti hi-­‐jacking is another kind of piracy which is committed in an aircraft. In other countries, this crime is known as aircraft piracy. • Four situations governed by anti hi-­‐jacking law: (1) usurping or seizing control of an aircraft of Philippine registry while it is in flight, compelling the pilots thereof to change the course or destination of the aircraft; (2) usurping or seizing control of an aircraft of foreign registry while within Philippine territory, compelling the pilots thereof to land in any part of Philippine territory; (3) carrying or loading on board an aircraft operating as a public utility passenger aircraft in the Philippines, any flammable, corrosive, explosive, or poisonous substance; and (4) loading, shipping, or transporting on board a cargo aircraft operating as a public utility in the Philippines, any flammable, corrosive, explosive, or poisonous substance if this was done not in accordance with the rules and regulations set and promulgated by the Air Transportation Office on this matter. 1. Whenever they have seized a vessel by boarding or firing upon the same; 2. Whenever the pirates have abandoned their victims without means of saving themselves; or 3. Whenever the crime is accompanied by murder, homicide, physical injuries or rape. Qualifying circumstances (includes mutiny): a. Whenever they have seized a vessel by boarding or firing upon the same • Boarded • Fired guns b. Whenever the pirates have abandoned their victims without means of saving themselves 6
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO TITLE II – 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 They are called crimes against the fundamental laws of the State because they violate certain provisions of the Bill of Rights (Article 3) of the 1987 Constitution Art 124: Arbitrary Detention Any public officer or employee who, without legal grounds, detains a person, shall suffer: 1. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if the detention has not exceeded three days; 2. The penalty of prision correccional in its medium and maximum periods, if the detention has continued for more than three but not more than fifteen days; 3. The penalty of prision mayor, if the detention has continued for more than fifteen days but not more than six months; and •
If the offender is a private individual, he is guilty of Illegal detention under Art 267 •
Detention is defined as the actual confinement of a person in an enclosure, or in any manner depriving him of his liberty (People v Gungon) Legal grounds for detention: Elements: (P-­‐D-­‐W) 1. That the offender is a public officer or employee 2. That he detains a person 3. That the detention is without legal grounds • The public officers liable for arbitrary detention must be vested with authority to detain or order the detention of persons accused of a crime, although the legal grounds for such detention is lacking List of lawful arrest without warrant - see p.45
1.
The commission of a crime 2.
Violent insanity or any other ailment requiring compulsory confinement of the patient in a hospital •
Arrest without warrant is the usual cause of arbitrary detention •
An arrest without warrant is lawful when the suspect is caught in flagrante delicto or immediately thereafter, or when the suspect is an escaping prisoner •
It must be stressed that "presence" does not only required that the arresting person sees the offense, but also when he "hears the disturbance created thereby and proceeds at one to the scene" (U.S. v Samonte) •
An officer arresting a person who has just committed an offense must have probable cause to believe based on personal knowledge of facts and circumstances that the person to be arretsted has committed it. •
Probable cause can be defined as such facts and circumstances which could lead a reasonable discreet and prudent man to believe that an offense has been committed and that the object sought in connection with the offense are in the place sought to be searched •
A crime must in fact or actually have been committed first •
Under Sec. 5 Rule 113 of the Revised Rules of Criminal Procedure, the actual commission of a crime by the person detained is not necessary to justify his detention. It depends upon the nature of his deed, when it's characterization as a crime may reasonably be in erred by the officer to whon the law at the moment leaves the decision for the urgent purpose of suspending the liberty of that person (U.S. v Sanchez) •
The right of arrest without warrant of arrest of an escaped prisoner is founded on the principle that at the time of the arrest, the escapee is in the continuous act of committing a crime which is evading the serving of his sentence (Paraluman v Director of Prisons) 4. That of reclusion temporal, if the detention shall have exceeded six months. The commission of a crime, or violent insanity or any other ailment requiring the compulsory confinemen of the patient in a hospital, shall be considered legal grounds for the detention of any person BLOCK A 2011-­‐2012 7
CRIMINAL LAW II FINALS REVIEWER •
ATTY. JOSE ARTURO DE CASTRO The crime if arbitrary detention can be committed through imprudence provided for and punished under Article 365 Periods of detentions penalized: 1. If detention has not exceeded 3 days 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 thn 6 months 4. If the detention has exceeded 6 months • The law does not fix any minimum period of detention. Art. 125. Delay in the delivery if detained persons to the proper judicial authorities The penalties provided in the next preceeding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of: twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent; and thirty-­‐six (36) hours, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent. In every case, the person detained shall be informed of the cause of his detention and shall be allowed, upon his request, to communicate and confer at any time with his attorney or counsel. Elements: (P-­‐D-­‐F-­‐12L-­‐18c-­‐36a) 1. That the offender is a public officer or employee 2. That he detained a person for some legal ground Without warrant
3. That he fails to deliver such person to the proper judicial authorities within: a. Twelve (12) hours, for crimes punishable by light penalities or their equivalent; b. Eighteen (18) hours, for correcional or their equivalent; c. Thirty-­‐six (36) hours, for afflictive or their equivalent • If the offender is a private person, the crime is illegal detention • The arrest must have been made for some legal ground (under any of the circumstances where arrest without warrant is authorized by law) Art. 125 •
•
•
•
BLOCK A 2011-­‐2012 therefore applies only when the arrest is made without warrant of arrest. But the arrest must be lawful. The person arrested without a warrant shall be forthwith delivered to the nearest police station or jail. The delivery does not consist in a physical delivery, but in making an accusation or charge or filing of an information against the person arrested wight he corresponding court or judge (Sayo v Chief of Police of Manila) Duty of detaining officer us deemed complied with upon the filing of the complaint with the judicial authority. The "proper judicial authority" means the Supreme Court and suc inferior courts as may be established by law Detained person should be released when a judge is not available uf the maximum hours for detention provided under Art. 125 has already expired. Failure to cause the release may result in an offense under Art. 125 (Albior v Auguis) For the purpose if determining the criminal liability of an officer detaining a person for more than the time prescribed, 1. The means if communication, as well as 2. The 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 file in time the necessary information • Violation of Art. 125 does not affect legality of confinement under process issued by a court. Such violation is not considered as one of the grounds on which one can predicate a motion to quash the information. • A subsequent filing of the information in court does not cure the illegality of detention. The arresting officer will still be liable because the violation had already been committed. • If no charge is filed by the fiscal in court within the period fixed in Art. 125, the arresting officer must release the detainee. If the arresting officer does not release such person he will be guilty under Art. 125 while the fiscal who fails to file the information will not be liable, unless he has ordered induced the officer 8
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO to hold and not release the prisoner after the expiration of said period. (Sayo v Chief of Police of Manila) To avoid harassment, abuse
• Reason: To protect our consti right of liberty
o 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) Art. 125 distinguished from Art. 124 Delay in the delivery Detention is legal in the beginning but the illegality starts from expiration of any of the periods specified Arbitrary Detention Detention is illegal from the beginning Art. 126. Delaying Release The penalties provided in Article 124 shall be imposed upon any public officer or employee who delays for the period of time specified therein 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 to said prisoner or the proceedings upon any petition for the liberation of such persons. Elements: (P-­‐J-­‐S-­‐P-­‐P) 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 b. the performance of such judicial or executive order for the release of the prisoner c. the proceedings upon petition for the release of such person. • Wardens and jailers are the public officers most likely to violate Art. 126 as they are the ones temporarily charged of the custody of prisoners or detained persons. BLOCK A 2011-­‐2012 Art. 127. Expulsion The penalty of prision correccional shall be imposed upon any public officer or employee who, not being thereunto authorized by law, shall expel any person from the Philippine Islands or shall compel such person to change his residence. Who can order expulsion?
Elements: (P-­‐E-­‐N) Court, but it only applies to aliens.
1. That the offender is a public officer or employee 2. That he expels any person from the Philippines, or compels a person to change his residence 3. That the offender is not authorized to do so by law • Only the court by a final judgment can order a person to change his residence. This is illustrated in ejectment proceedings, expropriation proceedings and in the penalty of destierro. See definition of each
List is exclusive
Art. 128. Violation of domicile The penalty of prision correccional in it minimum period shall be imposed upon any public officer or employee who, not being authorized by judicial order, shall enter any dwelling against the will of the owner thereof, search papers or other effects found therein without the previous consent of such owner, or, having surreptitiously entered said dwelling, and being required to leave the premises, shall refuse to do so. If the offense be committed in the nighttime, of it any papers or effects not constitutiong evidence of a crim be not returned immediately after the search made by the offender, the penalty shall be prision correccional in its medium and maximum periods. Elements: (P-­‐E-­‐S-­‐R) 1. That the offender is a public officer or employee 2. That he is not authorized to: a. enter any dwelling against the will of the owner thereof, b. search papers or other effects found therein without the previous consent of such owner, c. refuse to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same • Offender must be a public officer. If it is a private person, the crime committed is trespass to dwelling 9
CRIMINAL LAW II FINALS REVIEWER •
•
•
•
•
•
•
ATTY. JOSE ARTURO DE CASTRO A public officer or employee is authorized by judicial order when he is armed with a search warrant duly issued by the court. Against the will of the owner presupposes opposition or prohibition by said owner, whether express or implied. Against the will is not the same as without the consent of the owner. If refused admittance after announcing his authority and purpose, the officer has the right to break into building or enclosure to make an arrest by virtue of a warrant or without a warrant as provided in section 5 (Sec. 11, Rule 113, Revised Rules of Criminal Procedure) But the mere fact that on is suspected of having unlawful possession of opium, is no excuse for entry into the house by a peace officer for the purpose of search against the will of its owner and without search warrant. (U.S. V De los Reyes) The right to be secure from unreasonable search may like every right be waived and such waiver may be made expressly or impliedly. Silence of the owner of the dwelling before or during the search may show implied waiver. 128 will not be applicable.
Art
Papers or other effects under Art. 128 without search warrant and such person is not legally arrested, must be found in the dwelling, not outside. In such case, the crime committed by the public officer is grave coercion, if violence or intimidation is used, or unjust vexation if there is no violence or intimidation. Having surreptitiously entered said dwelling is an instance where a public officer or employee may commit violation of domicile even if the entrance is only without the consent of its owner. What constitutes the crime is thew refusal of the offender to leave the premises when required to do so, not the entrance. Question:
what if owner is absent and there is a doormat saying welcome?
Qualifying circumstances: Not an aggravating circumstance - cannot
be offset by mitigating circumstance
1. Nighttime 2. If any papers or effects not constituting evidence of a crime are not returned immediately after the search made by the offender. Distinguish if public officer committee the act using his public position or in his private capacity
Go-Tan vs tan 2008 VAWC - application of conspiracy on special laws
BLOCK A 2011-­‐2012 Art. 129. Search warrants maliciously obtained, and abuse in the service of those legally obtained In addition to the liability attaching to the offender for the commission of any other offense, the penalty of arresto mayor in its maximum period to prision correccional in its minimum period and a fine not exceeding 1,000 pesos shall be imposed upon any publci officer or employee who shall procure a search warrant without just cause, or, having legally procured the same, shall exceed his authority or use unncessary severity in executing the same. Acts punishable with elements: (W-­‐E) 1. By procuring a search warrant without just cause. (P-­‐S-­‐N) a. That the offender is a public officer or employee b. That he procures a search warrant c. There is no just cause 2. By exceeding his authority or by using unnecessary severity in executing a Exceed search arrant legally procured (P-­‐S-­‐E) Severity obtaining
a. That the offender is a public officer or employee destroying of
what is not
b. That he has legally procured a search warrant items w/o cause
needed
c. That he exceeds his authority or uses unnecessary severity in executing Personal
Property
to
be
seized:
the same. 1) subject of the offense; 2) stolen or embezzled and other fruits; 3) used or
intended to be used for an offense
• Search warrant -­‐ an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer commanding him to search for personal property described therein and bring it before the court. • Searches shall be made in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in the same locality. RECEIPT
• A detailed receipt for the property seized must be given to such persons. VALIDITY OF WARRANT
• A search warrant shall be valid for ten (10) days from its date. PROBABLE CAUSE
• Probable cause -­‐ such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the object sought in connection with the offense are in the place sought to be searched. 10
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO The true 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 be held liable for damages. addition to the liability attaching to the offender..."
"In
• Perjury shall be treated as a separate offense in view of the phrase “in addition to the liablity attaching to the offender for the commission of any other offense. They cannot form a complex crime. LEGAL: 1) Search and seizure incidental to a
lawful arrest; 2) moving vehicle
Moncado ruling - fruits of the poisonous tree - inadmissible but may be put in custodia legis
• Seizing other property having no remote or no connection to the items specified in the search warrant shall constitute exceeding authority in executing a search warrant. •
Art. 130. Searching domicile without witnesses The penalty of arresto mayor in its medium and maximum periods shall be imposed upon a public officer or employee who, in cases where a search is proper, shall search the domicile, papers, or other 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. How about trailer/bus
Elements: (P-­‐S-­‐S-­‐N) used as a house?
1. That the offender is a public officer or employee 2. That he is armed with search warrant legally procured 3. That he searches the domicile, papers or other belongings of any person. 4. That the owner, or any member of his family, or two witnesses residing in the same locality are not present Not applicable to: vehicles/transpo (not dwelling)
Tariff and Customs Code - no need for warrant
• Search means to go over or look through for the purpose of finding something; to examine. As the crime defined in Art. 130, the papers or other belongings must be in the dwelling of their owner at the time the search is made. Art. 130 does not apply to searches of vehicles or other means of transportation. Art. 131. Prohibition, interruption, and dissolution of peaceful meetings The penalty of prision correccional in its minimum period shall be imposed upon any public officer or employee who, without legal ground, shall prohibit or interrupt the holding of a peaceful meeting, or shall dissolve the same. The same penalty shall be imposed upon any public officer or employee who shall hinder any person from joining any lawful association or from attending any ot its meetings. BLOCK A 2011-­‐2012 The same penalty shall be imposed upon any public officer or employee who shall prohibit or hinder any person from addressing, either alone or together with others, any petition to the quthorities for the correction of abuses or redress of grievances. Elements: (P-­‐P-­‐H-­‐P) 1. That the offender is a public officer or employee 2. That he performs any of the following acts: a. Prohibiting or interrupting, without legal ground, the holding of a peaceful meeting, or by dissolving the same. b. Hindering any person from joining any lawful association or from attending any of its meeting 1. 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. • A private individual cannot commit this crime. • Right to peaceful meetings is not absolute as it may be regulated to promote good order or safety and general welfare of the people. • When the meeting to be held is not peaceful, there is legal ground for prohibiting it. • Denial of a petition is not a violation of this article because as mentioned, the right to peaceably assemble may be regulated so that it shall not be injurious to the equal enjoyment of others having equal rights nor injurious to the rights of the community or society. • There is no legal ground to prohibit the holding of a meeting when the danger apprehended is not imminent and the evil to be prevented is not a serious one. • The offender must be a stranger, not a participant in the peaceful meeting. Art. 132. Interruption of religious worship. The penalty of prision correccional in its minimum period shall be imposed upon any public officer or employee who shall prevent or disturb the ceremonies or manifestations of any religion. 11
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO If the crime shall have been committed with violence, the penalty shall be prision correccional in its medium and maximum periods. •
Elements: (P-­‐R-­‐P) 1. That the offender is a public officer or employee 2. That religious ceremonies or manifestations of any religion are about to take place or are going on. 3. That the offender prevents or disturbs the same • Qualifying circumstance: Presence of Violence or threats • The religious worship should be a ceremony or manifestation of a religion, not merely a meeting of a religious sect. •
BLOCK A 2011-­‐2012 A cemetery is not a place devoted to religious worship, although a religious ceremony may be conducted in such. Offense to feelings is judged from complainant's point of view, not from that of the offender. Art. 133. Offending the religious feelings The penalty of arresto mayor in its maxium period to prision correccional in its minimum period shall be imposed upon anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony, shall perform acts notoriously offensive to the feelings of the faithful. Elements: (D-­‐O) 1. That the acts complained of were performed in a place devoted to religious worship, or during the celebration of any religious ceremony 2. That the acts must be notoriously offensive to the feelings of the faithful. PLACE DEVOTED TO RELIGIOUS WORSHIP
• The place must be devoted to religious worship although it is not necessary that there is a religious ceremony going on. RELIGIOUS
CEREMONY Not necessarily inside a place devoted to religious worship
• Religious ceremonies are those religious acts performed outside of a church, such as processions and special prayers for burying the dead. • Acts notoriously offensive to the feelings of the faithful must be directed against religious practice or dogma or ritual for the purpose of ridicule. • There must be deliberate intent to hurt the feelings of the faithful. 12
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO TITLE III – CRIMES AGAINST PUBLIC ORDER Chapter 1: Rebellion, Coup d’etat, Sedition and Disloyalty Art. 134: Rebellion or 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 Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives. Elements: (TAE) a. That there be (a) public uprising and (b) taking arms against the Government b. That the purpose of the uprising or movement is either 1. to remove from the allegiance to said government or its loaws i. the territory of the Philippines or any part thereof; or ii. any body of land, naval or other armed forces; or 2. to deprive the Chief Executive or Congress, wholly or partially of any of their powers or prerogatives Rebellion 1. Rebellion – Object of the movement is completely to overthrow and supersede the government. •
By its nature a crime of masses, of multitude. (Peoplve v. Almazan) •
Not merely a challenge to authorities, but also civil war on a bigger or lesser scale. (People v. Hernandez) •
The purpose of the uprising must be shown to constitute rebellion. (U.S. v. Constantino) 2. Insurrection – a movement which seek merely to effect some change of minor importance, or to prevent the exercise of governmental authority with respect to particular matters or subjects. Consumation •
An actual clash of arms with government forces no necessary, the mere fact of being identified and openly fighting against the government is enough. (People v. Cube) •
Acting as couriers or spies for the rebels are also guilty of rebellion •
BLOCK A 2011-­‐2012 The crime of rebellion is complete the very moment a group of rebels rise publicly and take arms against the Government, for the purpose of overthrowing the same by force. Rising publicly and taking arms against the government is the normative element of the offense, while the Intent or purpose is the subjective element. Distinguish 1. Treason and Rebellion •
Treason – Levying war against the government; mere adhering to the enemy, giving him aid and comfort. •
Rebellion – Levying war against the government during peace time. Taking up arms against the Government. 2. Subversion and Treason •
Subversion – crime against national security •
Rebellion – crime against public order Rule by exclusion point: During the time of war Art. 134-­‐A: Coup d'etat; How committed The crime of coup d'etat 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 network, 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 of employment with or without civilian support or participation for the purpose of seizing or diminishing state power. Elements: (PSAS) a. That the offender is a person or persons belonging to the military or police or holding any public office or employment; b. That it is committed by means of a swift attack accompanied by violence, intimidation, threat, strategy, or stealth; c. That the attack is directed against duly constituted 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; d. That the purpose of the attack is to seize or diminish state power. 13
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Art. 135: Penalty for rebellion, insurrection or coup d'etat Any person who promotes, maintains, or heads rebellion or insurrection shall suffer the penalty of reclusion perpetua. Any person merely participating or executing the commands of others in a rebellion shall suffer the penalty of reclusion temporal. Any person who leads or in any manner directs or commands others to undertake a coup d'etat shall suffer the penalty of reclusion perpetua. Any person in the government service who participates, or executes directions or commands of others in undertaking a coup d'etat shall suffer the penalty of prision mayor in its maximum period. Any person not in the government service who participates, or in any manner supports, finances, abets or aids in undertaking a coup d'etat shall suffer the penalty of reclusion temporal in its maximum period. When the rebellion, insurrection, or coup d'etat shall be under the command of unknown leaders, any person who in fact directed the others, spoke for them, signed receipts and other documents issued in their name, as performed similar acts, on behalf or the rebels shall be deemed a leader of such a rebellion, insurrection, or coup d'etat. Who are liable 1. The leaders a. Any person who promotes, maintains, or heads a rebellion or insurrection; or b. Any person who leads, directs, or commands others to undertake a coup d’etat. 2. The participants a. Any person who participates, or executes the commands of others in rebellion, or insurrection; b. Any person in the government service who participates, or executes directions or commands of others in undertaking a coup d’etat. c. Any person not in the government service who participates, supports, finances, abets, or aids in the undertaking a coup d’etat. Rules regarding attachment to the crime 1. Public officer must take active part to be liable; omission is not punishable in rebellion. (U.S. v. Radivas) BLOCK A 2011-­‐2012 2. If the leader is unknown, those who in fact directed the others, spoke for them, signed receipts and other documents issued in their name, or performed similar acts on behalf of the rebels, shall be deemed as the leader. 3. Mere assistant to a principal is only guilty as a participant in the commission of the crime of rebellion. 4. Inasmuch as the acts specified in Art. 135 constitute one single crime, it follows necessarily that said acts offer no occasion for the application of Art. 48 which requires therefor the commission of, at least, two crimes. (People v. Hernandez) 5. If the killing or robbery during the rebellion is without political motivation it shall be separately punished. (People v. Geronimo. Art. 136: Conspiracy and proposal to commit coup d'etat, rebellion or insurrection The conspiracy and proposal to commit coup d'etat shall be punished by prision mayor in minimum period and a fine which shall not exceed eight thousand pesos (P8,000.00). The conspiracy and proposal to commit rebellion or insurrection shall be punished respectively, by prision correccional in its maximum period and a fine which shall not exceed five thousand pesos (P5,000.00) and by prision correccional in its medium period and a fine not exceeding two thousand pesos (P2,000.00). Crimes punished: a. Conspiracy to commit rebellion; and b. Proposal to commit rebellion. Definition: a. Conspiracy to commit rebellion – two or more persons come to an agreement to rise publicly and take arms against the Government for any of the purposes of rebellion and decide to commit it. b. Proposal to commit rebellion – person who has decided to rise publicly and take arms against the Government for any of the purposes of rebellion proposes its execution to some other person or persons Art. 137: Disloyalty of public officers or employees The penalty of prision correccional in its minimum period shall be imposed upon public officers or employees who have failed to resist a rebellion by all the means in their power, or shall continue to discharge the duties of their offices under the control of the rebels or shall accept appointment to office under them. 14
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Act punished: (FCA) Offender must be a public officer or employee during the existence of a rebellion by other persons (connotes that there must be no conspiracy). a. By failing to resist a rebellion by all the means in their power; or b. By continuing to discharge the duties of their offices under the control of the rebels; or c. By accepting appointment to office under them. Art. 138: Inciting a rebellion or insurrection The penalty of prision mayor in its minimum period shall be imposed upon 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 specified in article 134 of this Code, by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end. Elements: (NES) a. That the offender does not take arms or is not in open hostility against the government; b. That he incites others to the execution of any of the acts of rebellion; c. That the inciting is done by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end. Inciting to rebellion distinguished from proposal 1. In both crimes, the offender induces another to commit rebellion. 2. In proposal, the person who proposes has decided to commit rebellion; In inciting to rebellion, it is not required that the offender has decided to commit rebellion. 3. In proposal, the person who proposes the execution of the crimes uses secret means; In inciting to rebellion, the act of inciting is done publicly. Note: Rebellion should not be committed by the persons proposed to or who are incited. Otherwise, the person who incited them shall be a principal by inducement. Art. 139: Sedition; How committed The crime of sedition is committed by persons who rise publicly and tumultuously in order to attain by force, intimidation, or by other means outside of legal methods, any of the following objects: 1. To prevent the promulgation or execution of any law or the holding of any popular election; BLOCK A 2011-­‐2012 2. To prevent the National Government, or any provincial or municipal government or any public officer thereof from freely exercising its or his 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, municipality or province, or the National Government (or the Government of the United States), of all its property or any part thereof. Elements: (PEP) a. That the offenders rise: 1. Publicly (if no public uprising = tumult and other disturbance of public order) 2. Tumultuously (vis-­‐à-­‐vis rebellion where there must be a taking of arms) b. That they employ force, intimidation, or other means outside of legal methods; c. That the offenders employ any of those means to attain any of the following objects: 1. To prevent the promulgation or execution of any law or the holding of any popular election; 2. To prevent the national government, or any provincial or municipal government, or any public thereof from freely exercising its or his functions, or prevent the execution of any administrative order; 3. To inflict any act or hate or revenge upon the person or property of any public officer or employee; 4. To commit for any political or social end, any act of hate or revenge against private persons or any social class (hence, even private persons may be offended parties); 5. To despoil, for any political or social end, any person, municipality or province, or the national government of all its property or any part thereof. Sedition 1. Sedition 
In its general sense, is the raising of commotions or disturbances in the state. (People v. Cabrera) 15
CRIMINAL LAW II FINALS REVIEWER 
ATTY. JOSE ARTURO DE CASTRO The ultimate object of sedition is a violation of the public peace or at least such a course of measures as evidently engenders it. (People v. Perez) Distinguishing Sedition 1. Sedition compared with rebellion •
In both crimes, there must be public uprising. •
In Rebellion there must be taking up of arms against the government; in Sedition, it is sufficient that the public uprising is tumultuous. •
In Sedition, the purpose of the offenders may be political or social; in Rebellion, it is always political. 2. Sedition compared with treason •
Treason, is the violation by a subject of his allegiance to his sovereign or liege, lord, or to the supreme authority of the state. •
Sedition, is the raising of commotions or disturbances in the State. Art. 140: Penalty for sedition The leader of a sedition shall suffer the penalty of prision mayor in its minimum period and a fine not exceeding 10,000 pesos. Other persons participating therein shall suffer the penalty of prision correccional in its maximum period and a fine not exceeding 5,000 pesos. Persons liable for sedition: 1. The leader of the sedition; and 2. Other persons participating in the sedition. Art. 141: Conspiracy to commit sedition Persons conspiring to commit the crime of sedition shall be punished by prision correccional in its medium period and a fine not exceeding 2,000 pesos. Note: Art. 141 punishes only conspiracy to commit sedition. Hence, proposal to commit sedition is not punishable. Art. 142: Inciting to sedition The penalty of prision correccional in its maximum period and a fine not exceeding 2,000 pesos shall be imposed upon any person who, without taking any direct part in the crime of sedition, should incite others to the accomplishment of any of the acts which constitute sedition, by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending to the BLOCK A 2011-­‐2012 same end, or upon any person or persons who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government (of the United States or the Government of the Commonwealth) of the Philippines, or any of the duly constituted authorities thereof, or which tend to disturb or obstruct any lawful officer in executing the functions of his office, or which tend to instigate others to cabal and meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which 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, or who shall knowingly conceal such evil practices. Acts Punished: (IUK) a. Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems etc. b. Uttering seditious words or speeches which tend to disturb the public peace or writing, publishing, or circulating scurrilous [vulgar, mean, libelous] libels against the government or any of the duly constituted authorities thereof, which tend to disturb the public peace 
“Filipinos, like myself, must use bolos for cutting off Wood’s head for having recommended a bad thing for the Filipino, for he has killed our independence” (People v. Perez) c. Knowingly concealing such evil practices Elements: (DIM) a. That the offender does not take a direct part in the crime of sedition b. That he incites others to the accomplishment of any of the acts which constitute sedition (134) c. That the inciting is done by means of speeches, proclamations, writing, emblems, cartoons, banners, or other representations tending to the same end (purpose: cause commotion not exactly against the government; actual disturbance not necessary) Note: The reason why utterances are prohibited is because the state cannot wait until the apprehended danger became certain, and then its right to protect itself would come into being simultaneously with the overthrow of the government. Scurrilous libel 1. Scurrilous – low, vulgar, mean or foul. •
A positioned himself depicting that he was lifelessly hanging in a tree with a note that reasoned his discontent with the Roxas administration. The 16
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO letter is scurrilous against the government as it undermines its security or weakened the confidence of the people. (Espuelas v. People) •
A theatrical play where the words uttered or speeches delivered where seditious were punished. (U.S. v. Tolentino) •
Proposal to throw grenades in a public place, intended to cause common commotion as an act of hate against the police force is inciting to sedition. (People v. Quimpo) 2. When is uttering seditious words or speeches punishable? •
They tend to disturb or obstruct any lawful officer in executing the functions of his office; or •
They tend to instigate others to cabal and meet together for unlawful purposes; or •
They suggest or incite rebellious conspiracies or riots; or •
They lead or ten to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the government. Note: What is important is that the utterance may endanger public order. (People v. Nabong) 3. Rules relative to seditious words: •
Clear and present danger rule – By uttering them there is danger of public uprising and that such danger should be both clear and imminent. The danger must not only be probable but very likely inevitable. •
Dangerous tendency rule – Tends to create a danger of public uprising. The words uttered or published could easily produce disaffection among the people and a state of feeling in them incompatible with a disposition to remain loyal to the Government and obedient to the laws. Chapter 2: Crimes against popular representation Section 1 – Crimes against legislative bodies and similar bodies Art. 143: Act tending to prevent the meeting of the Assembly and similar bodies BLOCK A 2011-­‐2012 The penalty of prision correccional or a fine ranging from 200 to 2,000 pesos, or both, shall be imposed upon any person who, by force or fraud, prevents the meeting of the National Assembly (Congress of the Philippines) or of any of its committees or sub-­‐committees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board. Elements: (PP) a. That there be a projected or actual meeting of Congress or any of its committees or subcommittees, constitutional commissions or committees or division thereof, or of any provincial board or city or municipal council or board; b. That the offender who may be any persons prevents such meeting by force or fraud. Art. 144: Disturbance of proceedings The penaly of arresto mayor or a fine of 200 to 1,000 pesos shall be imposed upon any person who disturbs meetings of the National Assembly (Congress of the Philippines) or any of its committees or subcommittees, constitutional commissions or committees or division thereof, or if any provincial board or city or municipal council or board, or in the presence of any such bodies should behave in such a manner as to interrupt its proceedings or to impair the respect due to it. Elements: (C-­‐DI) a. That there be a 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; b. That the offender does any of the following acts: 1. He disturbs any of such meetings; 2. He behaves while in the presence of any such bodies in such a manner as to interrupt its proceedings or to impair the respect due it. Note: The mayor called a meeting. A heated exchange of words among the mayor, councilor and chief of police ensued; the chief of police is guilty of unjust vexation. (Legislative body, provincial board, city or municipal council is required) Furthermore, the assembly may also punish a person by contempt. (Contempt – Coercive; Crime – Punitive) Section 2 – Violation of parliamentary immunity Art. 145: Violation of parliamentary immunity 17
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO The penaly of prision mayor shall be imposed upon any person who shall use force, intimidation, threats or fraud to prevent any member of the National Assembly (Congress of the Philippines) from attending the meetings of the Assembly (Congress) or of any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, from expressing his opinions or casting his vote; and the penalty of prision correccional shall be imposed upon any public officer or employee who shall, while the Assembly(Congress) is in regular or special session, arrest or sear any member thereof, except in case such member has committed a crime higher than prision mayor. Elements: (ACEU) a. By using force, intimidation, threats, or frauds to prevent any member of Congress from – 1. Attending the meeting of the assembly or any of its committees, constitutional commissions or committees or divisions thereof, or from; 2. Expressing his opinions; or 3. Casting his vote. b. By arresting or searching any member thereof while Congress is in a regular or special session, except in case such member has committed a crime punishable under the code by a penalty higher than prision mayor ( 6 years up ) Elements: (PASP) 1. That the offender is a public officer or employee; 2. That he arrests or searches any member of Congress; 3. That Congress, at the time of arrest or search, is in a regular or special session; 4. That the member searched has not committed a crime punishable under the code by a penalty higher than prision mayor (1987 constitution: privilege from arrest while congress in session in all offenses punishable by not more than 6 years imprisonment). Note: Parliamentary immunity – guarantees the legislator complete freedom of expression without fear of being made responsible in criminal or civil actions before the courts or any other forum outside of the congressional hall. Chapter 3 – Illegal Assemblies and Associations Art. 146: Illegal assemblies The penalty of prision correccional in its maximum period to prision mayor in its medium period shall be imposed upon the organizers or leaders of any meeting attended by armed persons for the purpose of committing any of the crimes BLOCK A 2011-­‐2012 punishable under this Code, or of 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. Persons merely present at such meeting shall suffer the penalty of arresto mayor, unless they are armed, in which case the penalty shall be prision correccional.chan robles virtual law library If any person present at the meeting carries an unlicensed firearm, it shall be presumed that the purpose of said meeting, insofar as he is concerned, is to commit acts punishable under this Code, and he shall be considered a leader or organizer of the meeting within the purview of the preceding paragraph. As used in this article, the word "meeting" shall be understood to include a gathering or group, whether in a fixed place or moving. Elements 1. Any meeting attended by armed persons for the purpose of committing any of the crimes punishable under the Code. Requisites: (MAP) a. That there is a meeting, a gathering or group of persons, whether in a fixed place or moving; b. That the meeting is attended by armed persons; c. That the purpose of the meeting is to commit any of the crimes punishable under the code. 2. Any meeting in which the audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition or assault upon a person in authority of his agents. Requisites: (MI) a. That there is a meeting, a gathering, or group of persons, whether in a fixed place or moving. b. That the audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition or direct assault. Persons liable 1. Participants •
Organizers or leaders of the meeting •
Persons merely present at the meeting (must have common intent to commit the felony of illegal assembly) 2. Responsibilities •
if they are not armed, penalty is arresto mayor 18
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO if they carry arms, like bolos or knives, or licensed firearms, penalty is prision correccional 3. Presumption when at the meeting carries an unlicensed firearm •
purpose of the meeting is to commit acts punishable under the RPC •
considered as leader or organizer of the meeting 
•
Art. 147: Illegal associations The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 1,000 pesos shall be imposed upon the founders, directors, and presidents of 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. Mere members of said associations shall suffer the penalty of arresto mayor. What are illegal associations? 1. Associations totally or partially organized for the purpose of committing any of the crimes punishable under the code. 2. Associations totally or partially organized for some purpose contrary to public morals Persons liable: 1. Founders, directors and president of the association. 2. Mere members of the association. Distinguishing Illegal association from Illegal assembly 1. Illegal assembly, an actual meeting or assembly of armed persons for the purpose of committing any of the crimes punishable under the code. Illegal association, it is not necessary that there be an actual meeting. 2. Illegal assembly, meeting and attendance at such meeting are punished; Illegal associations, act of forming, organizing and membership are punished. 3. Illegal assembly, the person liable (a) the organizers or leaders and (b) persons present at the meeting; Illegal association, (a) founders, directors and president and (b) members. Note: Subversion – (Repealed) 
Knowingly, willfully, and by over act affiliating with, becoming or remaining a member of a subversive association or organization BLOCK A 2011-­‐2012 Taking up arms against the Government, the offender being a member of such subversive association or organization. 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 purpose 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, shall suffer the penalty of prision correccional in its medium and maximum periods and a fine not exceeding P1,000 pesos, when the assault is committed with a weapon or when the offender is a public officer or employee, or when the offender lays hands upon a person in authority. If none of these circumstances be present, the penalty of prision correccional in its minimum period and a fine not exceeding P500 pesos shall be imposed. Elements of the first form: (FRN) a. That the offender employs force or intimidation. b. That the aim of the offender is to attain any of the purposes of the crime of rebellion or any of the objects of the crimes of sedition. (victim need not be person in authority) c. That there is no public uprising. •
Chief of police together with 4 policemen, entered the house of the municipal president and held him for four hours because of failure to disperse their salaries. The crime is direct assault for revenge upon a public officer Elements of the second form: (APE-­‐KN) a. That the offender (a) makes an attack, (b) employs force, (c) makes a serious intimidation, or (d) makes a serious resistance. b. That the person assaulted is a person in authority or his agent. c. That at the time of the assault the person in authority or his agent (a) is engaged in the actual performance of official duties (motive is not essential), or that he is assaulted (b) by reason of the past performance of official duties (motive is essential). 19
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO d. That the offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties (with intention to offend, injure or assault). e. That there is no public uprising. First element FORCE EMPLOYED INTIMIDATION/RESISTANCE Person in authority Need not be serious Serious Agent Must be of serious Serious character 1. Serious – Hitting in the breast, pushing without hitting is not serious. 2. Intimidation or resistance – Must be serious and resistance must be active. Second element – “Person in Authority or his Agent” 1. Persons in authority – any person directly vested with jurisdiction, whether as a member of some court or governmental corporation, board or commission. •
Powers and duties vested in him by law should be determined. 2. Agent in Authority – By direct provision of law or by election or by appointment by competent authority is charged with the (a) maintenance of public order and (b) protection and security of life and property. Note: Functions of the person in authority or his agent must be clearly shown in the information. 3. In the performance of duty or by reason thereof a. Those engaged in the performance of official duties i. A killed the governor while in the performance of his duties, the charge is complex crime of direct assault with murder. (U.S. v. Baluyot) ii. Elbowed the governor when he was going down the stairs for inspection. iii. When a barrio captain tried to stop the accused, in doing so, his person was attacked. iv. A fiscal on his way to an area encountered a service truck that was zigzagging v. A teacher who travels from one place to another to deliver school reports. b. On occasion of such performance – impelling motive of the attack is the performance of official duty. i. A is a teach walking on the beach and was attacked by his former student who got a failing mark on his grade under the said teacher. BLOCK A 2011-­‐2012 4. Knowledge of the offended party as an agent of authority is essential and must be alleged in the information. 5. Evidence of motive is important when the person in authority or his agent is not in the actual performance of his official duty. Note: Persons not acting in authority: •
When he exceeds his power or acts without authority •
When he/she descends to matters which are private in nature. Qualified assault 1. Two kinds: a. Simple assault b. Qualified assault 2. Qualified a. When the assault is committed with a weapon; or (firearm, sharp and cutting instruments can also be clubs or stones) b. When the offender is a public officer or employee; or c. When the offender lays hands upon the person in authority. 3. Can be complexed with homicide, murder or with serious physical injuries 4. Slight physical injury is absorbed Art. 149: Indirect assaults The penalty of prision correccional in its minimum and medium periods and a fine not exceeding P500 pesos shall be imposed upon 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. Elements: (VAFI) a. That a person in authority or his agent is the victim of any of the forms of direct assault defined in ART. 148; b. That a person comes to the aid of such authority or his agent; c. That the offender makes use of force or intimidation upon such person coming to the aid of the authority or his agent. Note: It can only apply when direct assault is committed. A is a police officer attacked by B, C comes to aid and force and intimidation is used against him. The crime against A is direct assault while the crime against C is indirect assault. 20
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Art. 150: Disobedience to summons issued by the National Assembly, its committees or subcommittees, by the Constitutional Commissions, its committees, subcommittees or divisions The penalty of arresto mayor or a fine ranging from two hundred to one thousand pesos, or both such fine and imprisonment shall be imposed upon 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. The same penalty shall be imposed upon 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. Acts punished: (OSARI) a. Refusing without legal excuse to obey summons; b. Refusing to be sworn or placed under affirmation; c. Refusing to answer any legal inquiry to produce books, records etc.; d. Restraining another from attending as witness in such body; e. Inducing disobedience to a summons or refusal to be sworn. Note: Art. 150 does not apply when the papers or documents may be used in evidence against him. (Uy Khaytin v. Villareal) Art. 151: Resistance and disobedience to a person in authority or the agents of such person The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon 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. BLOCK A 2011-­‐2012 When the disobedience to an agent of a person in authority is not of a serious nature, the penalty of arresto menor or a fine ranging from 10 to P100 pesos shall be imposed upon the offender. Elements of resistance and serious disobedience (Par. 1): (E-­‐RD-­‐N) a. That a person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender. b. That the offender resists or seriously disobeys such person in authority. c. That the act of the offender is not included in the provisions of Art. 148, 149 and 150. Note: •
Disobedience contemplated consists in the failure or refusal to obey a direct order from authority or his agent •
Must have knowledge that the person arresting him is a peace officer •
If the police officers did not identify themselves and they have been mistaken to be bandits, resistance is justified. Elements of simple disobedience (EDN) a. That an agent of a person in authority is engaged in the performance of official duty or gives a lawful order to the offender. b. That the offender disobeys such agent of a person in authority c. That such disobedience is not of a serious nature Note: •
Order must be lawful •
Disobedience should not be of a serious nature Article 151: Persons in authority and agents of persons in authority; Who shall be deemed as such In applying the provisions of the preceding and other articles of this Code, any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board, or commission, shall be deemed a person in authority. A barrio captain and a barangay chairman shall also be deemed a person in authority. A 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, such as a barrio councilman, barrio 21
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO BLOCK A 2011-­‐2012 policeman and barangay leader and any person who comes to the aid of persons in authority, shall be deemed an agent of a person in authority. In applying the provisions of Articles 148 and 151 of this Code, 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. rebellion or sedition or in such place shall display placards or emblems which provoke a disturbance of the public order. Example of persons in authority: 1. Municipal mayor 2. Division superintendent of schools 3. Public and private school teachers 4. Teacher-­‐nurse 5. President of sanitary division 6. Provincial fiscal 7. Justice of peace 8. Municipal councilor 9. Barrio captain What are tumults and other disturbances? (SI-­‐POP) Chapter 5 – Public Disorders Art. 153 – Tumults and other disturbances of public order The penalty of arresto mayor in its medium period to prision correccional in its minimum period and a fine not exceeding 1,000 pesos shall be imposed upon 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. The penalty next higher in degree shall be imposed upon persons causing any disturbance or interruption of a tumultuous character. The disturbance or interruption shall be deemed to be tumultuous if caused by more than three persons who are armed or provided with means of violence. The penalty of arresto mayor shall be imposed upon any person who in any meeting, association, or public place, shall make any outcry tending to incite The penalty of arresto menor and a fine not to exceed 200 pesos shall be imposed upon those persons who in violation of the provisions contained in the last clause of Article 85, shall bury with pomp the body of a person who has been legally executed. Causing any serious disturbance in a public place, office, or establishment o Disturbance must be planned or intended o When the disturbance was not planned, the crime may only be alarm • Interrupting or disturbing performances, functions or gatherings, or peaceful meetings, if act is not included in articles 131 and 132 (peaceful meeting, religious worship) o The determining factor here is whether the offender is a public officer o If he is a public officer, then Arts 131-­‐132 will apply. o Art 153 applies when  the offender is not a public officer  the offender is a public officer who is a participant in the meeting or religious worship. • Making any outcry tending to incite rebellion or sedition in any meeting, association, or public place o “Outcry” – to shout subversive or provocative words o Tending to stir the people up to rebellion or sedition o There must be no intent for this article to apply  An outcry is an unconscious outburst – the offender did not plan for his words to induce others to sedition or rebellion.  If there was intent behind his words, then the crime is inciting to commit sedition or rebellion • Displaying placards or emblems which provoke a disturbance of public order in such place • Burying with pomp the body of a person who has been legally executed Qualifying Circumstance • Penalty next higher shall be imposed if the disturbance is tumultuous in character • Tumultuous -­‐-­‐ > 3 persons who are armed or provided with means of violence •
22
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Art. 154 – Unlawful use of means of publication and unlawful utterances The penalty of arresto mayor and a fine ranging from 200 to 1,000 pesos shall be imposed upon: 1. Any person who by means of printing, lithography, or any other means of publication shall publish or cause to be published as news any false news which may endanger the public order, or cause damage to the interest or credit of the State; •
•
BLOCK A 2011-­‐2012 Maliciously publishing or causing to be published any official resolution or document without proper authority, or before they have been published officially o Punished by RA 248 – reprintin of government publications and official documents without previous authority Printing, publishing or distributing (or causing the same) books, pamphlets, periodicals, or leaflets which do not bear the real printer’s name, or which are classified as anonymous. 2. Any person who by the same means, or by words, utterances or speeches, shall encourage disobedience to the law or to the constituted authorities or praise, justify, or extol any act punished by law; Art. 155 – Alarms and Scandals The penalty of arresto menor or a fine not exceeding 200 pesos shall be imposed upon: 3. Any person who shall maliciously publish or cause to be published any official resolution or document without proper authority, or before they have been published officially; or 1. Any person who within any town or public place, shall discharge any firearm, rocket, firecracker, or other explosive calculated to cause alarm or danger; 4. Any person who shall print, publish, or distribute or case to be printed, published, or distributed books, pamphlets, periodicals, or leaflets which do not bear the real printer’s name, or which are classified as anonymous. Acts Punished: (FEOR) •
•
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. o Actual damage or disorder is not necessary o The usage of “may” o The mere possibility of causing such danger or damage is sufficient. o The offender must know that the news is false.  There must be criminal intent o If there is no possibility of danger or damage, then this article is not applicable Encouraging disobedience to the law or to the constituted authorities, or by praising, justifying or extolling any act punished by law, by the same means or by words, utterances or speeches o Ex. Distributing leaflets urging people to disobey the National Defense Act requiring compulsory military training. 2. Any person who shall instigate or take an active part in any charivari or other disorderly meeting offensive to another or prejudicial to public tranquility; 3. Any person who, while wandering about at night or while engaged in any other nocturnal amusements, shall disturb the public peace; or 4. Any person who, while intoxicated or otherwise, shall cause any disturbance or scandal in public place, provided that the circumstances of the case shall not make the provisions of Article 153 applicable. Acts Punished : (DINC) •
•
Discharging any firearm, rocket, firecracker or other explosive within any town or public place, calculated to cause alarm or danger o Firearm should not be aimed at a person – otherwise, discharge of firearm o It is the result that counts – the act must produce alarm or danger o No distinction as to particular place – as long as it produces alarm or danger Instigating or taking an active part in any charivari or other disorderly meeting offensive to anther or prejudicial to public tranquility o Charivari – medley of discordant voices, discordant noises designed to offend and insult o It is punished to prevent more serious disorders. 23
CRIMINAL LAW II FINALS REVIEWER •
•
ATTY. JOSE ARTURO DE CASTRO Disturbing the public peace while wandering about at night or while engaged in any other nocturnal amusements Causing any disturbance or scandal in public places while intoxicated or otherwise, provided Art 153 is not applicable o Ex. Person hurled a general insult at everyone in a billiard hall, causing commotion and disorder. – no serious disturbance created. o If disturbance is serious, Art 153 is applicable. Art. 156 – Delivering Prisoners from Jail The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who shall remove from any jail or penal establishment any person confined therein, or shall help the escape of such person, by means of violence, intimidation or bribery. If other means are used, the penalty of arresto mayor shall be imposed. If the escape of the prisoner shall take place outside of said establishments by taking the guards by surprise, the same penalties shall be imposed in their minimum period. Elements : (CR) 1.
2.
There is a person confined in a jail or penal establishment The offender removes therefrom such person, or helps the escape of such person •
•
Person confined o May be a mere detention prisoner o Hospital or asylum is considered jail or prison Offender removes such person o Offender : usually an outsider o Art 156 can also be applied to an employee  Provided he does not have custody of such person • Guard of jail, when off duty, may be liable  If public officer, with custody of prisoner, he is liable under Art 223, infidelity in custody of prisoners o The offender is any person o Violence, intimidation, or bribery are not elements, but serve to aggravate the penalty. BLOCK A 2011-­‐2012 Bribery referred to here is a means of delivering the prisoner If the offender commits this crime by reason of a bribe, then it serves as a generic aggravating circumstance Neither is deceit an element Mitigating circumstance – if the escape takes place outside the prison, by taking the guards by surprise 

o
o
Chapter 6 – Evasion of Service of Sentence Art. 157: Evasion of service of sentence The penalty of prision correccional in its medium and maximum periods shall be imposed upon any convict who shall evade service of his sentence by escaping during the term of his imprisonment by reason of final judgment. However, if such evasion or escape shall have taken place by means of unlawful entry, by breaking doors, windows, gates, walls, roofs, or floors, or by using picklocks, false keys, deceit, violence or intimidation, or through connivance with other convicts or employees of the penal institution, the penalty shall be prision correccional in its maximum period. Elements: (FLE) a. That the offender is a convict by final judgment. b. That he is serving his sentence which consists in deprivation of liberty (destierro included) c. That he evades the service of his sentence by escaping during the term if his sentence. (fact of return immaterial). Note: Not applicable in deportation since it is an administrative proceeding. Escape 1. Escape – flee from; to avoid; to get out of the way, as to flee to avoid arrest. It requires acts and mere intent while being spotted loitering the courthouse where they can easily be identifiable is not escaping. 2. Qualifying circumstance: 
By means of unlawful entry (this should be by scaling or climbing) 
By breaking doors, windows, gates, walls, roofs or floors; 
By using picklocks, false keys, disguise, deceit, violence or intimidation; or 
Through connivance with other convicts or employees of the penal institution. 24
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Art. 158: Evasion of service of sentence on the occasion of disorder, 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 similar catastrophe, or during a mutiny in which he has not participated, shall suffer an increase of one-­‐
fifth of the time still remaining to be served under the original sentence, which in no case shall exceed six months, if he shall fail to give himself up to the authorities within forty-­‐eight hours following the issuance of a proclamation by the Chief Executive announcing the passing away of such calamity. Convicts who, under the circumstances mentioned in the preceding paragraph, shall give themselves up to the authorities within the above mentioned period of 48 hours, shall be entitled to the deduction provided in Article 98. Elements: (CDEF) a. That the offender is a convict by final judgement who is confined in a penal institution. b. That there is disorder, resulting from-­‐ 1. conflagration, 2. earthquake, or 3. explosion, or 4. similar catastrophes, or 5. mutiny, not participated by the offender. c. That the offender evades the service of his sentence by leaving the penal institution where he is confined, on the occasion of such disorder or during the mutiny. d. That the offender fails to give himself up to the authorities within 48 hours following the issuance of sa proclamation by the chief executive announcing the passing away of such calamity. Note: •
If offender fails to surrender, 1/5 of the time still remaining to be served by him shall be imposed provided that it does not exceed 6 months •
If offender gives himself up within 48 hours are given reduction by 1/5 of their time to be served. BLOCK A 2011-­‐2012 Art. 159: Other case of evasion of service of sentence The penalty of prision correccional in its minimum period shall be imposed upon the convict who, having been granted conditional pardon by the Chief Executive, shall violate any of the conditions of such pardon. However, if the penalty remitted by the granting of such pardon be higher than six years, the convict shall then suffer the unexpired portion of his original sentence. Conditional pardon It is a contract between the Chief executive and the convict who accepts it. The pardoned convict is bound to fulfill its conditions and accept all its consequences, not as he chooses, but according to strict terms. Elements: (CGV) a. That the offender was a convict b. That he was granted a conditional pardon by the Chief Executive. c. That he violated any of the conditions of such pardon. I. Penalties a. Prision correccional in its minimum – if he penalty remitted does not exceed 6 years b. The unexpired portion of his original sentence – if the penalty remitted is higher than 6 years. Notes: •
Offender must have been found guilty of the subsequent offense before he can be prosecuted under this Article. But if under Revised Admin Code, no conviction necessary. President has power to arrest, reincarnate offender without trial •
Article 159 is a distinct felony. It is a substantive crime. For one to suffer the consequence of its violation, the prisoner must be formally charged in court. He will be entitled to a full blown hearing, in full enjoyment of his right to due process. Only after a final judgment has been rendered against him may he suffer the penalty prescribed under Article 159 (Torres vs. Gonzales, et al.) •
The president has the specific power to authorize the arrest and reincarceration of any convicted person granted pardon or parole who, in his judgment, shall fail to comply with the condition or conditions of his pardon or parole. (Tesoro v. Director of prisons) Violation of pardon Ordinary evasion Infringment of conditions/terms of the To evade the penalty given by the President courts—disturbs the public order 25
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 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 offense; Penalty Besides the provisions of Rule 5 of Article 62, 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. Any convict of the class referred to in this article, who is not a habitual criminal, shall be pardoned at the age of seventy years if he shall have already served out his original sentence, or when he shall complete it after reaching the said age, unless by reason of his conduct or other circumstances he shall not be worthy of such clemency. •
•
•
•
BLOCK A 2011-­‐2012 It makes no difference whether the crime for which an accused is serving sentence, at the time of the commission of the offense charged, falls under said Code or under a special law. (People v. Peralta) Quasi-­‐recidivism cannot be offset by ordinary mitigating circumstances. Reiteration – shall have served out his sentence for prior offenses If at aged 70, quasi-­‐recidivist may be pardoned. A quasi-­‐recidivist cannot be pardoned Elements: (CC) a. That the offender was already convicted by final judgment of one offense. b. That he committed a new felony before beginning to serve such sentence or while serving the same. Quasi-­‐recidivism 1. Quasi-­‐recidivism – is a special aggravating circumstance where a person, after having been convicted by final judgment, shall commit a new felony before beginning to serve such sentence, or while serving the same. 2. “Before beginning to serve such sentence” •
When the judgment of conviction of the lower court in the first offense having been affirmed by the appellate court, and his commitment having been ordered he committed the new felony while being taken to the prison or jail 3. “Or while serving the same” •
When a convict by final judgment shall commit a new felony while serving his sentence for the first offense Notes: 26
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO TITLE IV – CRIMES AGAINST PUBLIC INTEREST Chapter 1: Forgeries 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.
The penalty of reclusion temporal shall be imposed upon any person who shal forge the Great Seal of the Government of the Philippines Islands or the signature or stamp of the Chief Executive. Acts punished: (GSS) 1. Forging the Great Seal of the Government of the Philippines 2. Forging the signature of the President 3. Forging the stamp of the President • The Great Seal is beautifully described in Sec. 18 of the Revised Administrative Code as amended by Com. Acts Nos. 602, 614, and 731 • The custody and use of the Great Seal shall be and remain with the President of the Philippines • In a Government document where the signature of the President is forged, the crime is forging the signature of the Chief Executive, not falsification. Art. 161 supplies the specific provision to govern such case • The signature of the President must be formed or imitated. If a document is written above the actual signature of the President, the crime is not under Art. 161, but under Art. 171 or 172 Art. 162 – Using forged signature or counterfeit seal or stamp.
The penalty of prision mayor shall bei mposed upon any person who shall knowingly make use of the counterfeit seal or forged signature or stamp mentioned in the preceeding article. •
Elements (CountFor-­‐KU) 1. That the Great Seal of the Philippines as counterfeited or the signature or stamp of the Chief Executive was forged by another •
BLOCK A 2011-­‐2012 person. 2. That the offender knew of the counterfeiting or forgery 3. That he used the counterfeit seal or forged signature or stamp The offender under this article should not be the forger of the seal or signature of the Chief Executive. Section 2 – Counterfeiting coins Art. 163 – Making and importing and uttering false coins.
Any person who makes, imports, or utters false coins, in connivance with counterfeiters ir importers, shall suffer: 1. Prision mayor in its minimum and medium periods and a fine not exceeding 10,000 pesos, if the counterfeited coin be silver coin of the Philippines or coin of the Central Bank of the Philippines of ten-­‐centavo denomination or above. 2. Prision correccional in its minimum and medium periods and a fine not exceeding 2,000 pesos if the counterfeited coins be any of the mnor coinage of the Philippines or the Central Bank of the Philippines below the ten-­‐centavo denomination. 3. Prision correccional in its minimum period and a fine not to exceed 1,000 pesos if th countefeited coin be currency of a foreign country. (As amended by RA No. 4202, approved on June 19, 1965) Elements: (FC-­‐MIU-­‐C) 1. That there be false or counterfeited coins 2. That the offender either made, imported, or uttered such coins 3. That in case of uttering such false or counterfeited coins, he connived with the counterfeiters or importers • Coin is a piece of metal stamped with certain marks and made current at a certain value. • A coin is forged or counterfeited if it is forged or it is not authorized by the Government as legal tender, regardless of its extrinsic value. • Counterfeiting means the imitation of a legal or genuine coin. • Import means to bring them into port. Importation is complete before entry at Customs House • Utter is to pass counterfeited coins. It includes their delivery or the act of giving them away. • Kinds of coins the counterfeiting of which is punished: (SMF) 27
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 1.
•
•
Silver coin of the Philippines or coin of the Central Bank of the Philippines 2. Coin of the minor coinage of the Philippines or of the Central Bank of the Philippines 3. Coin of the currency of a foreign country Minor coins are the coins below ten-­‐centavo denomination Former coins withdrawn from circulation may be counterfeited. The word coin under the provision does not have a qualifying word such as “current” Art. 164 – Mutilation of coins – Importation and utterance of mutilated
coins.
The penalty of prision correccional in its minimum period and a fine not exceeding 2,000 pesos shall be imposed upon any person who shall mutilate coins of the legal currency of the (United States or of the) Philippines Islands or import or utter mutilated current coins, in the connivance with the mutilator or importer. Acts punished: (MI) 1. Mutilating coins of the legal currency, with the further requirement that there be intent to damage or to defraud another. 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 • Mutilation means to take off part of the metal either by filling it or substituting it for another metal of inferior quality. It is to diminish by ingenious means the metal in the coin. • Offender must take advantage of the metal abstracted and does not do so for the sake of mutilating. • The coin mutilated must be of legal tender in mutilation. Only in this article that the law requires such as an element of the offense in the case of mutilation • Coins of foreign currency not included Art. 165 – Selling of false or mutilated coin, without connivance.
Any person who knowingly, although without the connivance mentioned in the preceeding articles, shall possess false or mutilated coin with intent to utter the same, or shall actually utter such coin, shall suffer the penalty lower by one degree than that prescribed in the said articles. BLOCK A 2011-­‐2012 Acts punished with Elements: 1. Possession of coin, counterfeited or mutilated by another person, with intent to utter the same, knowing that is false or mutilated (PIK) a. Possession b. with intent to utter, and c. Knowledge 2. Actually uttering such false or mutilated coin, knowing the same to be false or mutilated (AK) a. Actually uttering, b. Knowledge • Possession of or uttering false coin does not require that the counterfeited coin is legal tender • Constructive possession is included. The provision prohibits possession in general. • Possession of counterfeiter or importer not punished as separate offense. • Accused must have knowledge of the fact that the coin is false. The accused shall be punishable although without the connivance mentioned in the preceding articles 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 and
documents.
The forging or falsification of treasury or bank notes or certificates or other obligations and securities payable to bearer and the importation and uttering in connivance with forgers or importers of such false or forged obligations or notes, shall be punished as follows: 1. By reclusion temporal in its minimum period and a fine not to exceed P10,000 pesos, if the document which has been falsified, counterfeited, or altered, is an obligations or security of the United States or of the Philippines Islands. The word "obligation or security of the United States or of the Philippine Islands" shall be held to mean all bonds, certificates of indebtedness, national bank notes, fractional notes, certificates of deposit, bills, checks, or drafts for money, drawn by or upon authorized officers of the United States or of the Philippine Islands, and other representatives of value, of whatever denomination, which have been 28
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO or may be issued under any act of the Congress of the United States or of the Philippine Legislature. 2. By prision mayor in its maximum period and a fine not to exceed P5,000 pesos, if the falsified or altered document is a circulating note issued by any banking association duly authorized by law to issue the same. 3. By prision mayor in its medium period and a fine not to exceed P5,000 pesos, if the falsified or counterfeited document was issued by a foreign government. 4. By prision mayor in its minimum period and a fine not to exceed P2,000 pesos, when the forged or altered document is a circulating note or bill issued by a foreign bank duly authorized therefor. Acts penalized under 166: (FIU) 1. Forging or falsification of treasury or bank notes or other documents payable to bearer 2. Importation of such false or forged obligations or notes 3. Uttering of such false or forged obligation or notes in connivance with the forgers or importers • Forging is committed by giving to a treasury or bank note or any instrument payable to bearer or to order the appearance of a true and genuine document. To forge an instrument is to make false instrument intended to be passed for the genuine one • Falsification is committed by erasing, substituting, counterfeiting, or altering by any means, the figures, letters, words, or signs contained therein. • Importation of false or forged obligations or notes means to bring them into the Philippines, which presupposes that the obligations or notes are forged or falsified in a foreign country • Uttering means offering obligations or notes knowing them to be false or forged, whether such offer is accepted or not, with a representation, by words or actions, that they are genuine and with an intent to defraud. • Uttering forged bill must be with connivance to constitute a violation of Art. 166 • Notes or other obligations and securities that may be forged or falsified under Art. 166 (TCO) 1. Treasury or bank notes 2. Certificates and 3. Other obligations and securities, payable to bearer •
•
BLOCK A 2011-­‐2012 A bank note, certificate or obligation and security is payable to bearer when it can negotiated by mere delivery. The penalties depend on the kind of forged treasury or bank notes or other documents. Art. 167 – Counterfeiting, importing, and 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, shall suffer the penalties of prision correccional in its medium and maximum periods and a fine not exceeding P6,000 pesos. Elements: (IFC) 1. That there be an instrument payable to order or other document of credit not payable to bearer 2. That the offender either forged, imported or uttered such instrument 3. That in case of uttering, he connived with the forger or importer. • Application of this article is limited to payable to order or other document or credit not payable to bearer. • An instrument is payable to order where it is drawn payable to the order of a specified person or to him or his order • Connivance is not required in uttering if the utterer is the forger Art. 168 – Illegal possession and use of false treasury or bank notes
and other instruments of credit.
Unless the act be one of those coming under the provisions of any of the preceding articles, 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, shall suffer the penalty next lower in degree than that prescribed in said articles. Elements: (FK-­‐UP) 1.
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That any treasury or bank note or certificate or other obligation and security payable to bearer, or any instrument payable to order or other document of credit not payable to bearer is forged or falsified by another person. That the offender knows that any of those instruments is forged or falsified 29
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That he performs any of these acts: a. using any of such forged or falsified instruments; or b. possessing with intent to use any such forged or falsified instruments Intent to posses is not intent to use. To be charged under this article, there must be a corresponding intent to use. To prove that a bank note is forged, evidence must be presented that the number which the questioned bank note bears does not check with the genuine one issued with the same number. (People v Barraquia) Knowledge of the forged character of the note is an essential element in this offense The conduct of the accused could be used to establish knowledge of forgery, ie. The offender refused to make any explanation of his possession of the forged bank bills; after discovery the owner snatched and tore the bill before the examiner. A person in possession of falsified document and who makes use of the same is presumed to be material author of falsification. Intent to use is sufficient to consummate the crime when the offender is in possession of false or falsified obligations or notes It is not an impossible crime when the act performed would have been a crime of illegal possession of false treasury notes 30
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO TITLE VIII: 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, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death (As amdended by RA No. 7659) Elements: (KAD: fmc-­‐ads) 1. That a person is killed; 2. That the deceased is killed by the accused; 3. That the deceased is: a. father, mother, or b. child, whether LEGITIMATE OR ILLEGITIMATE, or c. legitimate other ascendant or other descendant, or d. legitimate spouse of the accused • Relationship: Key element in Parricide a. The best proof of relationship is the marriage certificate where the accused’s victim is his/her spouse. b. When relationship is NOT alleged in the Information, the accused, who was admittedly the wife of the victim, was convicted of Murder – not Parricide. (People v. Bohol, G.R. No. 178198, December 10, 2008). Q: Which takes precedence, infanticide or parricide? Infanticide • Parents, children – not included in “other ascendants” or “descendants” • Father, mother, child – may be legitimate or illegitimate. • However, the following must be legitimate: •
BLOCK A 2011-­‐2012 a. Spouse b. other ascendants or descendants The child should not be less than 3 days old. Otherwise, the offense is infanticide. Relationship must be alleged and proved. • A stranger who cooperates in committing parricide is liable for murder or homicide. • Even if the offender did not know that the person he had killed is his son, he is still liable for parricide because the law does not require knowledge of the relationship. Other notes: a. Killing of adoptive parent or adopted child is not parricide. b. Killing of a brother/sister is not parricide. Art. 247 -­‐ Death or physical injuries inflicted under exceptional circumstances. Any legally married person who having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment. These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducer, while the daughters are living with their parents. Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article. Elements: (SKP) 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; 31
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 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 has not promoted or facilitated the prostitution of his wife or daughter, or that he has not consented to infidelity of the other spouse. • This article does not define or penalize a felony. • Penalty in Article 247: Destierro • Destierro is not really intended as a penalty but to remove the killer spouse from the vicinity and to protect him/her from acts of reprisal by the relatives of the deceased spouse. • Legitimacy of parents – not necessary for the application of this article • This article applies only when the daughter is single. • Surprise – to come upon suddenly or unexpectedly a. Indispensable requisite: surprising in the act of sexual intercourse • General Rule: Article 247 is not applicable when the accused did not see his spouse in the act of sexual intercourse with another person. a. Exception: If the circumstances show reasonably that the carnal act is being committed or has just been committed. b. Sexual intercourse does not include preparatory acts. • The killing or inflicting of serious physical injuries must be: o “in the act of sexual intercourse”, or o “immediately thereafter” • “Immediately thereafter” means that the discovery, escape, pursuit and the killing must all form parts of one continuous act. • The killing must be the direct by-­‐product of the rage of the accused. • The killing must be by reason of having surprised her in the act of sexual intercourse. • Article 247 applies only when a spouse surprises the other in flagrant adultery. (If a husband caught a man having sexual intercourse with the former’s wife against her will, an attack upon that man by the husband may be a defense of relative under Article 11, par.2 and not under Article 247) • No criminal liability when less serious or slight physical injuries are inflicted. •
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BLOCK A 2011-­‐2012 In case third persons caught in the crossfire suffer physical injuries, the accused is not liable for physical injuries. The principle that one is liable for the consequences of his felonious act is not applicable because his act under Article247 does not amount to a felony. Other notes: o Q: Is there parricide in Article247? Yes. o Article 247 is recognition of what is termed as “temporary insanity”. Passion and obfuscation are usually mitigating but for Article 247, they are necessitating. o Passion and obfuscation must also be immediate. (Accused did not expect to see it.) o *“Destierro is not intended as a penalty but it is a penalty nonetheless. It is not logical that it is not intended as a penalty.” – Atty. de Castro o Parent/spouse are not justified in seriously injuring or killing daughter/spouse. (Reason why destierro is provided.) o Q: Is there a crime in Article 247? Yes, as indicated by the phrase nd
“exempt” in the 2 paragraph o Q: Who is supposed to be surprised? Accused/Discoverer o Q: Is sexual intercourse between the victims necessary? The point of Justice Laurel in his dissenting opinion where he believes that sexual intercourse should include preparatory acts [Reyes, RPC (2008), p. 490] is that Article 247 is intended to favor the accused. “When there is doubt, rule in favor of the accused.” This point is supported further by the doctrine of mistake of fact (accused believed something to be true). o *Sexual intercourse is not necessary.” – Atty. De Castro o Requisites for “Parents”: (L-­‐18) 1. Daughter must be living with them 2. Below 18 Art. 248: -­‐ Murder. Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its 32
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO maximum period to death, if committed with any of the following attendant circumstances: 1. 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. 2. In consideration of a price, reward, or promise. 3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin. 4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity. 5. With evident premeditation. 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. Elements: (KAQ -­‐ PI) 1. That a person was killed; 2. That the accused killed him; 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 railroad, fall of an 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, BLOCK A 2011-­‐2012 e. with evident premeditation, or f. with cruelty, by deliberately and inhumanly augmenting the suffering of the victim or outraging or scoffing at his person or corpse; and 4. The killing is not parricide or infanticide. o The testimony of a single witness, if positive and credible, is sufficient to support a conviction even in the charge of murder. (People v. Manchu) o Treachery as a qualifying circumstance in the crime of Murder. o In People v. Delpino, G.R. No. 171453, June 18, 2009, where an information alleged that accused-­‐appellant killed the victim with the use of a short firearm, and with treachery and evident premeditation, treachery was considered as qualifying. o Failure to present and identify the murder weapon would not exculpate the accused-­‐appellant from criminal liability, as the same is not indispensable to prove the guild of the accused. But • Presence of intent to kill distinguishes Frustrated or Attempted Murder OR Frustrated or Attempted Homicide, FROM Consummated Physical Injuries o No intention to kill – Consummated Physical Injuries o With intention to kill – Frustrated/Attempted Homicide or murder, as the case may be. • Other notes: o The victim must be killed in order to consummate the offense. Otherwise, it would be attempted or frustrated murder. Rules for the application of the qualifying/aggravating circumstances: 1. That murder will exist with only one of the circumstances described in Article 248. 2. When more than one of said circumstances are present, the others must be considered as generic aggravating. 3. That when the other circumstances are absorbed or included in one qualifying circumstance, they cannot be considered as generic aggravating. 4. Any of the qualifying circumstances must be alleged in the information. Otherwise, they will only be considered as generic aggravating circumstances. 33
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO •
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For those enumerated in par. 3 of this article, (par. c herein) the offender must have intent to kill to be liable for murder. “Killing a person by means of fire is murder, only when there is actual design to kill on the part of the offender.” Killing of a child of tender years is murder. Treachery and premeditation are inherent in murder with the use of poison. They cannot be used as aggravating. “Superior strength” and “on occasion of inundation, shipwreck, eruption of a volcano, epidemic, or any other public calamity” must be taken advantage of. In determining if a killing is murder, rule out first if infanticide or parricide. •
Elements of treachery: (PMCW) 1. Crimes against persons 2. Means/mode of attack especially sought by offender 3. Directly and especially ensure commission of the crime 4. Without risk to himself arising from the defense the offended party might make Elements of evident premeditation: (TOS) 1. Time when the offender determined (conceived) to kill his victim 2. Overt act indicating he has clung to his determination 3. Sufficient lapse of time between determination and execution so as to show cool thought and reflection • Q: What is the difference between par. 3 and par. 4 of Article 248? o For par. 3, design to kill must be present. For par. 4, such circumstances are merely taken advantage of. o “By means of” in par. 3 implies that such aggravating circumstances must serve as the means to the commission of the crime. For par. 4, “On occasion” means during such calamities, earthquake, x x x. • Q: In cruelty, must the victim be alive? Yes, being alive is essential to constitute cruelty. •
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BLOCK A 2011-­‐2012 Q: Is ignominy covered by cruelty? No. “Outraging” and “scoffing” may fall within the purview of ignominy. Q: Is using “disguise” a qualifying circumstance? Yes. It falls under “means to insure or afford impunity” under par. 1. For par. 1, treachery has the power to absorb many aggravating circumstances, provided: 1. Such circumstance relates to the means, methods, manner used in the commission of the crime 2. It destroyed the risk to the offender Example of Atty. De Castro in class: • Q: A uses a motorized pedicab with iron spikes. He used this to impale B from behind as he was walking. What are the aggravating circumstances present? o A: Treachery and Use of Motor Vehicle; To qualify to murder, treachery will be used. However, there is no more generic aggravating circumstance which can be used. The use of motor vehicle will be absorbed in treachery because it relates to the means, methods, manner used in the commission of the crime. (Again, treachery has the power to absorb many aggravating circumstances, provided the two above-­‐mentioned requisites are present.) ARTICLE 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 the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal. Elements: (K-­‐JIN) 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 34
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 4. That the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide. o All acts of execution are deemed performed only if the wound inflicted on the victim is mortal and could cause the death of the victim without medical intervention or attendance. o Intent to kill a. Intent to kill immediately before or simultaneously with the infliction of injuries is an essential element of homicide, whether in its consummated, frustrated or attempted stage. b. Intent to kill is a specific intent, which the prosecution must prove by direct or circumstantial evidence. c. How determined, inter alia: i. means used by the malefactors; ii. the nature, location and number of wounds sustained by the victim; iii. the conduct of the malefactors before, at the time of, or immediately after the killing of the victim; iv. the circumstances under which the crime was committed; and v. the motive of the accused. (Mahawan v. People) o Elements of the crime of Frustrated Homicide o The accused intended to kill his victim, as manifested by his use of a deadly weapon in his assault; o The victim sustained fatal or mortal wound/s but did not die because of timely medical assistance; and o None of the qualifying circumstance for murder under Art. 248 RPC is present. (Mahawan v. People) Remember: In special complex crimes like robbery with homicide, killing a person (homicide) is always used in the generic sense. That’s why there is no robbery with “murder”. But in crimes against persons, homicide takes in a special meaning. The present rule regarding qualifying circumstances: You have to allege and then prove it for it to be considered in the imposition of penalty. If the circumstances BLOCK A 2011-­‐2012 were not alleged but nevertheless proven, they will not be considered in the imposition of penalty. However, it can be used for fixing civil indemnity only. • Other notes: a. Homicide is the unlawful killing of any person, which is neither infanticide, parricide, nor murder. b. The victim must be killed in order to consummate the crime. Otherwise, it would be attempted or frustrated homicide. c. Intent to kill is conclusively presumed when death resulted. Hence, evidence of intent to kill is required only in attempted or frustrated homicide (*but it is still an essential element of consummated homicide – De Castro) d. There is no crime of frustrated homicide through negligence/imprudence. Intent to kill (which is required in frustrated homicide) is incompatible with negligence/imprudence. e. When wounds that caused the death were inflicted by two different persons, even if they were not in conspiracy, each one of them is guilty of homicide. f. Corpus delicti – actual commission of the crime charged; It means that a crime was actually perpetuated. It does not refer to the body of the murdered person. g. In all crimes against persons in which the death of the victim is an element, there must be satisfactory evidence of: vi. the fact of death and vii. the identity of the victim ARTICLE 250: Penalty for frustrated parricide, murder or homicide. The courts, in view of the facts of the case, may impose upon the person guilty of the frustrated crime of parricide, murder or homicide, defined and penalized in the preceding articles, a penalty lower by one degree than that which should be imposed under the provision of Article 50. The courts, considering the facts of the case, may likewise reduce by one degree the penalty which under Article 51 should be imposed for an attempt to commit any of such crimes. 35
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Q: How do you determine the penalty for attempted and frustrated homicide? General Rule: Article 50 – 57: Article 50 -­‐ 57 Additional Participation Consummated Frustrated Attempted Rule: Article 250 Principal provides a Penalty 1 less 2 less imposed by law Accomplice 1 less 2 less 3 less Accessory 2 less 3 less 4 less discretionary authority to the courts to lower the penalty provided by Articles 50 and 51 by one or two degrees. ARTICLE 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 it cannot be ascertained who actually killed the deceased, but the person or persons who inflicted serious physical injuries can be identified, such person or persons shall be punished by prision mayor. If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty of prision correccional in its medium and maximum periods shall be imposed upon all those who shall have used violence upon the person of the victim. Elements: (SOQ-­‐KCP) 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; BLOCK A 2011-­‐2012 6. That the person or persons who inflicted serious physical injuries or who used violence can be identified. • “Tumultuous” – more than three persons who are armed or provided with means of violence o For tumultuous affray to exist, at least 4 persons must take part in it. • When there are two identified groups of men who assaulted each other, there is no tumultuous affray. • The person killed need not be a participant in the affray. • Those who used violence are liable only if it cannot be determined who inflicted the serious physical injuries on the deceased. • Other notes” o Q: As per element no. 2, what if the composed groups are organized for a common purpose? No, it is not under Article 251. o Q: When is it tumultuous? Does having 4 people and engaging in a riot, in itself, constitute tumultuous affray? No, there must be arms or means of violence. o Q: Frat wars? Not considered as tumultuous affray. Where groups are identified and subsequently attacked one another, it cannot be considered tumultuous affray. For it to be tumultuous, it has to be: 1. in a chaotic, confused manner; and 2. the persons are provided with arms. Guide to the provision: 1. If not known who inflicted death, look for those persons who inflicted serious physical injuries. 2. If it is not known who inflicted serious physical injuries, look for those who used violence. Remember: Each element must be strictly complied with. Otherwise, it is homicide or murder. 36
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO BLOCK A 2011-­‐2012 ARTICLE 252: Physical injuries inflicted in a tumultuous affray. ARTICLE 253: Giving assistance to suicide. When in a tumultuous affray as referred to in the preceding article, only serious physical injuries are inflicted upon the participants thereof and the person responsible therefor cannot be identified, all those who appear to have used violence upon the person of the offended party shall suffer the penalty next lower in degree than that provided for the physical injuries so inflicted. Any person who shall assist another to commit suicide shall suffer the penalty of prision mayor; if such person lends his assistance to another to the extent of doing the killing himself, he shall suffer the penalty of reclusion temporal. However, if the suicide is not consummated, the penalty of arresto mayor in its medium and maximum periods, shall be imposed. When the physical injuries inflicted are of a less serious nature and the person responsible therefor cannot be identified, all those who appear to have used any violence upon the person of the offended party shall be punished by arresto mayor from five to fifteen days. ACTS PUNISHABLE: (AK) 1. Assisting another to commit suicide, whether the suicide is consummated or not. 2. Lending his assistance to another to commit suicide to the extent of doing the killing himself. • A person who attempts to commit suicide is not criminally liable. • Art. 253 does not distinguish and does not make any reference to the relation of the offender with the person committing the suicide. • A pregnant woman who tried to commit suicide by means of poison but instead of dying, the fetus in her womb was expelled, is not liable for unintentional abortion because such is punishable only when it is caused by violence, not by poison. • Assistance to suicide is different from mercy killing. 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. • Penalty is mitigated if suicide is not successful. • Other notes: o Q: Is suicide a crime? No. o Q: A jumps out of a building and lands on someone. What is his liability? No criminal liability. However, he may be held civilly liable under the law on torts. Elements: (T-­‐CUP) 1. That there is a tumultuous affray as referred to in the preceding article; 2. That a participant or some participants thereof suffers serious physical injuries or physical injuries of a less serious nature only; 3. That the person responsible therefor cannot be identified; and 4. That all those who appear to have used violence upon the person of the offended party are known. • Persons liable: Only those who used violence on the person of the offended party. If the one who caused the physical injuries is known, he will be liable for the physical injuries actually committed. • Injured party must be a participant of the tumultuous affray. • Other notes: o Q: Is slight physical injuries included? No, the penalty provided in Article 252 is arresto mayor. Slight physical injuries are light felonies punishable with arresto menor. o Q: What if slight physical injuries were caused and it is not known who inflicted it, is there no opportunity for redress? There is. Determine first who used violence. How is he punished? He is punished with a penalty one degree lower than that for slight physical injuries. 37
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ATTY. JOSE ARTURO DE CASTRO Q: Is there a distinction as to the extent of assistance given? Yes. The second act punishable provides for assistance to the extent of doing the killing himself.  The penalty for homicide and giving assistance to suicide are similar.  Is euthanasia giving assistance to suicide? Is Article 253 applicable to euthanasia? If the patient is conscious and he gives his consent to Euthanasia, Article 253 is applicable. If not, person who resorts to euthanasia may be liable for murder or homicide. (Compare with Estrada, p. 319, where euthanasia is covered by this article) ARTICLE 254: Discharge of firearms. Any person who shall shoot at another with any firearm shall suffer the penalty of prision correccional in its minimum and medium periods, unless the facts of the case are such that the act can be held to constitute frustrated or attempted parricide, murder, homicide or any other crime for which a higher penalty is prescribed by any of the articles of this Code. Elements: (DN) 1. That the offender discharges a firearm against or at another person; and 2. That the offender has no intention to kill that person. • The offender must shoot at another with any firearm without intention of killing him. If the firearm is not discharged at a person, the act is not punished under this article. • A discharge towards the house of the victim is not discharge of firearm. Firing a gun at the house of the offended party, not knowing in what part of the house the people inside were, is only alarms and scandals under Article 155. • The purpose of the offender is only to intimidate or frighten the offended party. • Intent to kill is negated by the fact that the distance between the victim and the offender is 200 yards. •
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BLOCK A 2011-­‐2012 A person can be held liable for discharge even if the gun was not pointed at the offended party when it fired as long as it was initially aimed by the accused at or against the offended party. Other notes: o Q: Does it matter whether the firearm is licensed or not? No. o Under Article 254, distance negates intent to kill. o Firing in the air is not punishable under Article 254. However, it constitutes another crime under alarms and scandals. (Q: What is its main difference with Article 254? Firearm was not aimed at a person but nevertheless caused alarm.) Remember: Discharge of firearms can be a complex crime. (Ex: absent intent to kill, physical injuries were also caused) Remember: “any other crimes for which a higher penalty is prescribed” – exemption from liability under this article is not limited to frustrated or attempted parricide, murder, or homicide Section 2 – Infanticide and Abortion ARTICLE 255: Infanticide. The penalty provided for parricide in Article 246 and for murder in Article 248 shall be imposed upon any person who shall kill any child less than three days of age. If the crime penalized in this article be committed by the mother of the child for the purpose of concealing her dishonor, she shall suffer the penalty of prision correccional in its medium and maximum periods, and if said crime be committed for the same purpose by the maternal grandparents or either of them, the penalty shall be reclusion temporal. (As amended by RA No. 7659) Elements: (C-­‐3-­‐A) 1. That a child was killed; 38
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 2. That the deceased child was less than three days (72 hours) of age; and 3. That the accused killed the child. • Infanticide necessitates that the child be born alive and by viable, i.e., capable of independent existence a. Exception: Considering that a fetus with an intrauterine life of 6 months is NOT VIABLE, the premature expulsion thereof due to violence intentionally exerted by the offender would constitute abortion notwithstanding the fact that the fetus was alive at birth. b. Intrauterine life < or = 6 mos. – expulsion due to violence is not infanticide but UNINTENTIONAL ABORTION, provided that all elements of the latter (See Art. 257) are present. (People v. Paycana) • If the victim is a child of tender years, the need to prove treachery is not necessary. It is presumed that the child cannot give any defense. o Presence of treachery – killing a child becomes murder and not simply homicide. o Q: Is the penalty mitigated if the person who killed the child is/are the paternal grandparents? No mitigation. o Q: Is there a situation where the mother can avail of this article even if she is already married? Yes, if the father is not the husband. o Other notes: a. When the offender is the father, mother or legitimate ascendant, he shall suffer the penalty prescribed for parricide. If the offender is any other person, the penalty is that for murder. In either case, the proper qualification for the offense is infanticide. b. When the mother or maternal grandmother of the victim commits infanticide in order to conceal the mother’s dishonor, such fact is only mitigating. c. The delinquent mother who claims that she committed the offense to conceal the dishonor must be of good reputation. Thus, if she is a prostitute, she is not entitled to a lesser penalty because she has no honor to protect. d. There is no infanticide when: BLOCK A 2011-­‐2012 i. the child was born dead, or ii. although born alive it could not sustain an independent life when it was killed. (See People v. Paycana cited in De Castro, supra) e. Difference between Parricide and Infanticide (Estrada): Parricide Infanticide Child’s age: 3 days and above Less than 3 days (less than 72 hours) Can be committed if victim and Offender may or may not be related offender are related by blood by blood Concealment of dishonor not Concealment of dishonor is mitigating mitigating ARTICLE 256: Intentional abortion. Any person who shall intentionally cause an abortion shall suffer: 1. The penalty of reclusion temporal, if he shall use any violence upon the person of the pregnant woman. 2. The penalty of prision mayor if, without using violence, he shall act without the consent of the woman. 3. The penalty of prision correccional in its medium and maximum periods, if the woman shall have consented. Elements: (PIVD) 1. That there is a pregnant woman; 2. That violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon such pregnant woman; 3. That as a result of the use of violence or drugs or beverages upon her, or any other act of the accused, the fetus dies, either in the womb or after having been expelled therefrom. 4. That the abortion is intended. 39
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ATTY. JOSE ARTURO DE CASTRO Ways of committing intentional abortion: a. By using any violence upon the person of the pregnant woman. b. By acting, but without using violence, without the consent of the woman. (Ex. By administering drugs or beverages without her consent.) c. By acting with the consent of the pregnant woman. Abortion (which results in the death of the fetus) is the: 1. willful killing of the fetus in the uterus, or 2. the violent expulsion of the fetus from the maternal wound . th
Under the RPC, abortion ordinarily means the expulsion before the 6 month or before the term of its viability (capable of sustaining life). But according to Viada, Vol. V, as long as the fetus dies as a result of violence used or drugs administered, abortion exists even if the fetus is full term. If abortion is intended and the fetus does not die, it is frustrated intentional abortion when the offender has performed all the acts of execution. If abortion is not intended and the fetus does not die, the crime may be only physical injuries. No frustrated unintentional abortion in view of the lack of intention to cause an abortion. The person who intentionally caused the abortion is the one liable under Article 256. If the woman consented to the abortion caused on her, she is liable but under Article 258 (Abortion practiced by the woman herself or her parents). If she did not consent, she is not liable. If the fetus could sustain an independent life after its separation from the maternal womb and is subsequently killed, the crime is infanticide. Other notes: o Q: Is the consent of the woman material? If violence exists, consent is not material (Par. 1). However, for par. 2 and par. 3 consent of the woman makes a difference. o Q: How do you consummate abortion? Death of the fetus Remember: There is also a crime of dispensing abortive pills (Article 259) and it falls within intentional abortion but punished differently. BLOCK A 2011-­‐2012 True or False? If the fetus is 6 months or less and the fetus dies outside the womb, it is abortion. TRUE. True or False? If the fetus dies outside the womb, the term of the fetus is material (whether it can sustain life or not). TRUE. Remember: As long as it dies inside the womb, abortion. ARTICLE 257: Unintentional abortion. The penalty of prision correccional in its minimum and medium period shall be imposed upon any person who shall cause an abortion by violence, but unintentionally. Elements: (P -­‐ Violence without intending abortion -­‐ ID) 1. That there is a pregnant woman; 2. That violence is used upon such pregnant woman without intending an abortion; 3. But 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. • Article 257, Unintentional Abortion, is committed only through violence (that is, actual physical force). • Violence must be intentionally exerted. • Unintentional abortion can also be committed through negligence/imprudence. (People vs. Jose p. 524, wherein a truck driven by Romeo Jose bumped a calesa causing the pregnant woman to bump her abdomen against the front wall of the calesa subsequently causing blood to flow out of the woman’s vagina) • The accused can only be held liable if he knew that the woman was pregnant. (Compare with Estrada, p. 327: It is not material that the offender knows that the woman is pregnant or not.) • Unintentional abortion may be complexed with other crimes such as parricide or homicide. • Article 256 and 257 do not apply if: 40
CRIMINAL LAW II FINALS REVIEWER •
ATTY. JOSE ARTURO DE CASTRO 1. there was no intention to cause abortion; and 2. there was no violence exerted Other notes: o Q: Can unintentional abortion be committed without violence? No. o Q: Is a woman’s consent material? What if the mother is a masochist who consented to the violence? As long as abortion was not intended and violence existed, it will fall under Article 257. o Knowledge of the pregnancy is important. ARTICLE 258: Abortion practiced by the woman herself or by her parents. The penalty of prision correccional in its medium and maximum periods shall be imposed upon a woman who shall practice abortion upon herself or shall consent that any other person should do so. Any woman who shall commit this offense to conceal her dishonor, shall suffer the penalty of prision correccional in its minimum and medium periods. If this crime be committed by the parents of the pregnant woman or either of them, and they act with the consent of said woman for the purpose of concealing her dishonor, the offenders shall suffer the penalty of prision correccional in its medium and maximum periods. Elements: (PIC: wop) 1. That there is a pregnant woman who has suffered an abortion; 2. That the abortion is intended; 3. That the abortion is caused by – a. the pregnant woman herself b. any other person, with her consent, c. any of her parents, with her consent for the purpose of concealing her dishonor. • The woman is liable under Article 258 either: a. when she shall practice an abortion upon herself b. when she shall consent that any other persons should do so •
BLOCK A 2011-­‐2012 Persons liable under Article 258: 1. The pregnant woman if she herself committed the abortion (*WON it was for the purpose of concealing her dishonor. But if in case it was to conceal her dishonor, her liability is mitigated.) 2. The parents of the woman if they committed the abortion to conceal her dishonor and with the latter’s consent Note: The “other person” who caused the abortion even if with the pregnant woman’s consent is liable under Article 256 and not under this article. (De Castro: The person other than the woman is liable under Article 256.) Note: If the purpose of the parents was not to conceal her dishonor, they are liable under Article 256 and not under this article. • If the abortion was done by the parents and even if with their pregnant daughter’s consent, there is no mitigation unlike in Infanticide. • Other note: o This article is parallel to infanticide committed by the mother or her parents. Art. 259 – Abortion practiced by a physician or midwife and dispensing of abortives. The penalties provided in Article 256 shall be imposed in its maximum period, respectively, upon any physician or midwife who, taking advantage of their scientific knowledge or skill, shall cause an abortion or assist in causing the same. Any pharmacist who, without the proper prescription from a physician, shall dispense any abortive shall suffer arresto mayor and a fine not exceeding 1,000 pesos. Elements: (PIPA) 1. That there is a pregnant woman who has suffered an abortion; 2. That the abortion is intended; 41
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 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. • It is not necessary that the pharmacist knew that the abortive would be used to cause abortion or that the abortive be actually used. What is punished is the act of dispensing an abortive without the proper prescription. • If the pharmacist knew that the abortive would be used to cause abortion and abortion results, he is liable as an accomplice. • RA 4729 regulates the sale, dispensation, and/or distribution of contraceptive drugs and devices. • It is not unlawful if the sale, dispensation, or distribution of contraceptive drug or contraceptive device is by a duly licensed drug store or pharmaceutical company and with prescription of qualified medical practitioner • Other notes: o The punishable act is not just abortion practiced by the physician or midwife but also the dispensing of abortive. o Q: Is a person liable even if the abortive was not used? Yes. The mere act of dispensing is enough. Section 3 – Duel ARTICLE 260: Responsibility of participants in a duel. The penalty of reclusion temporal shall be imposed upon any person who shall kill his adversary in a duel. If he shall inflict upon the latter physical injuries only, he shall suffer the penalty provided therefor, according to their nature. BLOCK A 2011-­‐2012 The seconds shall in all events be punished as accomplices. ACTS PUNISHED: (KSC) 1. Killing one’s adversary in a duel. 2. Inflicting upon the adversary serious physical injuries. 3. Making combat although no physical injuries have been inflicted. o A duel is a formal or regular combat previously concerted between 2 parties in the presence of 2 or more seconds of lawful age on each side, who make the selection of arms and fix all the other conditions of the fight. (Estrada: This is a dead law. Duel is no longer being practiced today.) o Persons liable: 1. person who killed or inflicted physical injuries upon his adversary, or both combatants in any other case, as principals 2. The seconds, as accomplices • If death results the penalty is the same as that for homicide • When there is an agreement to fight to the death, there is intent to kill on the part of the combatants. Normally, when there is intent to kill, the inflicting of physical injuries is either attempted or frustrated homicide. However, the Code disregards the intent to kill in considering the penalty for duel when only physical injuries are inflicted upon the adversary. • Other notes: o Even if no injuries were inflicted, there would still be liability (Par. 3). o Q: What if there are no seconds? It is not a duel anymore. (Refer to legal definition of duel provided above) o The situation must fall strictly within the definition of duel. ARTICLE 261: Challenging to a duel. The penalty of prision correccional in its minimum period shall be imposed upon any person who shall challenge another, or incite another to give or accept a challenge to a duel, or shall scoff at or decry another publicly for having refused to accept a challenge to fight a duel. In any other case, the combatants shall suffer the penalty of arresto mayor, although no physical injuries have been inflicted. 42
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO ACTS PUNISHABLE: (CIS) 1. Challenging another to a duel. 2. Inciting another to give or accept a challenge to a duel. 3. Scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel. • The person making the challenge must have in mind a formal combat. A challenge to fight, without contemplating a duel, is not challenging to a duel. • Persons responsible under Article 261: 1. Challenger 2. Instigators • Other notes: o Does it matter that the duel actually happens? No. Remember: Whatever the challenge is, it must pertain to a duel. a.
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Chapter 2: Physical Injuries ARTICLE 262: Mutilation. The penalty of reclusion temporal to reclusion perpetua shall be imposed upon any person who shall intentionally mutilate another by depriving him, either totally or partially, of some essential organ of reproduction. Any other intentional mutilation shall be punished by prision mayor in its medium and maximum periods. Elements: (CP) 1. There must be castration, that is, mutilation of organs necessary for generation, such as the penis or ovarium; 2. The mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction. • Two kinds of mutilation: BLOCK A 2011-­‐2012 By intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction. b. Intentionally making other mutilation, that is, by lopping or 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. In the first kind of mutilation, the castration must be made purposely. Otherwise, it will be considered as mutilation of the second kind. (Compare Estrada, p. 331: In each case the mutilation is deliberate or intentional. If the mutilation was not intentional, the crime committed is Serious Physical Injuries under Article 263) Mayhem refers to any other intentional mutilation. Under R.A. 7610, the penalty for the second type of mutilation shall be one degree higher when the victim is below 12 years old. The offender must have the intention to purposely and deliberately deprive the offended party of his body. If not, the case will be considered physical injuries Other notes: o Is ligation mutilation? No, nothing is clipped off. o Mutilation is the clipping or lopping off of an organ. If the organ is for sexual reproduction, the penalty is higher as long as there is intentional lopping or cutting. o If there is no cutting off, it is not mutilation but physical injuries. o Difference between the 2 kinds of mutilation lies in the penalty imposable: Severance of reproductive organ Severance of any other body part Reclusion temporal to reclusion Prision mayor (medium and perpetua (even higher than the maximum periods) penalty for homicide, which is reclusion temporal) 43
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO ARTICLE 263: Serious physical injuries. Any person who shall wound, beat, or assault another, shall be guilty of the crime of serious physical injuries and shall suffer: 1. The penalty of prision mayor, if in consequence of the physical injuries inflicted, the injured person shall become insane, imbecile, impotent, or blind; 2. The penalty of prision correccional in its medium and maximum periods, if in consequence of the physical injuries inflicted, the person injured shall have lost the use of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm, or a leg or shall have lost the use of any such member, or shall have become incapacitated for the work in which he was therefor habitually engaged; 3. The penalty of prision correccional in its minimum and medium periods, if in consequence of the physical injuries inflicted, the person injured shall have become deformed, or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance of the work in which he as habitually engaged for a period of more than ninety days; 4. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if the physical injuries inflicted shall have caused the illness or incapacity for labor of the injured person for more than thirty days. If the offense shall have been committed against any of the persons enumerated in Article 246, or with attendance of any of the circumstances mentioned in Article 248, the case covered by subdivision number 1 of this Article shall be punished by reclusion temporal in its medium and maximum periods; the case covered by subdivision number 2 by prision correccional in its maximum period to prision mayor in its minimum period; the case covered by subdivision number 3 by prision correccional in its medium and maximum periods; and the case covered by subdivision number 4 by prision correccional in its minimum and medium periods. The provisions of the preceding paragraph shall not be applicable to a parent who shall inflict physical injuries upon his child by excessive chastisement. BLOCK A 2011-­‐2012 How Committed: (W-­‐BAI) 1. Wounding; 2. Beating; 3. Assaulting; 4. By administering injurious substance. • What are considered Serious Physical Injuries? 1. When the injured person becomes insane, imbecile, impotent or blind in consequence of the physical injuries inflicted. 2. When the injured person – a. Loses the use of speech or the power to hear or to smell, or loses an eye, a hand, a foot, an arm, or a leg; b. Loses the use of any such member; or c. Becomes incapacitated for the work in which he was therefore habitually engaged, in consequence of the physical injuries inflicted; 3. When the person injured: a. Becomes deformed; or b. Loses any other member of his body; or c. Loses the use thereof; or d. Becomes ill or incapacitated for the performance of the work in which he was habitually engaged for more than 90 days in consequence of the physical injuries inflicted; 4. When the injured person becomes ill or incapacitated for labor for more than 30 days (but must not be more than 90 days), as a result of the physical injuries inflicted. • Serious physical injuries may be committed by reckless imprudence or by simple negligence or imprudence. • There must be no intent to kill. • Impotence includes inability to copulate. It also has been used synonymously with sterility. • Paragraph 1 requires complete blindness of both eyes. Mere weakness in vision is not contemplated. a. Loss of power to hear must involve both ears. Otherwise, it will be considered as serious physical injuries under par 3. 44
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO b.
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Loss of the power to hear in the right ear is considered as merely loss of use of some other part of the body. c. Loss of use of hand or incapacity of usual work in paragraph 2 must be permanent. Paragraph 2 refers to principal members of the body while paragraph 3 covers any other member that is not a principal part of the body. Paragraph 3: a. Deformity means: 1. physical ugliness, 2. permanent and definite abnormality that is not curable by natural means or by nature 3. conspicuous and visible. Note: If the scar is usually covered by a dress, it would not be conspicuous and visible. Loss of teeth as deformity will not apply to child or old man. a.
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The loss of 3 incisors is a visible deformity. Loss of one incisor is not. However, loss of one tooth which impaired appearance is a deformity. b. Deformity by loss of teeth refers to injury which cannot be repaired by the action of nature. c. Loss of outer ears, loss of the power to hear, and loss of the lobule of the ear constitute deformity. d. Loss of the index and middle fingers is either a deformity or loss of a member, not a principal one, of his body or use of the same. Paragraph 4: a. If the injury would require medical attendance for more than 30 days, the illness of the offended party may be considered as lasting more than 30 days. The fact that there was medical attendance for that period of time shows that the injuries were not cured for that length of time. b. Under paragraph 4, all that is required is illness or incapacity, not medical attendance. BLOCK A 2011-­‐2012 c.
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In determining incapacity, the injured party must have a vocation or work at the time of the injury. Work includes studies or preparation for a profession. When the category of the offense of serious physical injuries depends on the period of the illness or incapacity for labor, there must be evidence of the length of that period. Otherwise, the offense will only be considered as slight physical injuries. a. There is no incapacity if the injured party could still engage in his work although less effectively than before. Serious physical injuries is qualified when the crime is committed against the same persons enumerated in the article on parricide or when it is attended by any of the circumstances defining the crime of murder. However, serious physical injuries resulting from excessive chastisement by parents is not qualified serious physical injuries. Other notes: o The first type of serious physical injuries does not require any number of days for incapacity or injury. o Q: For the second type, how do you determine if mutilation or serious physical injuries? Intent to deprive that person of that body part is mutilation o Q: For the third type, how many days is he required to be hospitalized? More than 90 o Q: For the fourth type, how many days is he required to be hospitalized? More than 30 o The four paragraphs graduate in terms of penalty. But all are physical injuries. Par. 4 is the floor. Anything higher is serious physical injuries. Tip: Look at the floor to know if it is serious physical injury. No need to classify under par. 1, 2, 3, or 4. ARTICLE 264: Administering injurious substances or beverages. The penalties established by the next preceding article shall be applicable in the respective case to any person who, without intent to kill, shall inflict upon 45
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO another any serious physical injury, by knowingly administering to him any injurious substance or beverages or by taking advantage of his weakness of mind or credulity. Elements: (SKN) 1. The offender inflicted upon another any serious physical injury; 2. It was done by knowingly administering to him any injurious substance or beverage by taking advantage of his weakness of mind or credulity; 3. He had no intent to kill. • It is frustrated murder when there is intent to kill. • Administering means introducing into the body the substance, thus throwing of the acid in the face is not contemplated. • Weakness of mind or credulity – witchcraft, philters, magnetism • Other notes: o Article 264 is also serious physical injuries. The difference though lies in the mode. o Mere administration is not punishable because the law requires that he knows that the substance is injurious. o Q: Must the physical injuries be serious? Yes. o Q: “Administering” – mere act of giving? No. There must be introduction of the substance into the body. o Q: What if you did not administer injurious substance but took advantage of the weakness of mind or credulity? Should there be administration? It seems like Article 264 provides for a different mode other than administration. ARTICLE 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 assistance for the same period, shall be guilty of less serious physical injuries and shall suffer the penalty of arresto mayor. BLOCK A 2011-­‐2012 Whenever less serious physical injuries shall have been inflicted with the manifest intent to insult or offend the injured person, or under circumstances adding ignominy to the offense, in addition to the penalty of arresto mayor, a fine not exceeding 500 pesos shall be imposed. Any less serious physical injuries inflicted upon the offender's parents, ascendants, guardians, curators, teachers, or persons of rank, or persons in authority, shall be punished by prision correccional in its minimum and medium periods, provided that, in the case of persons in authority, the deed does not constitute the crime of assault upon such person. What can be considered as Less Serious Physical Injuries? 1. The offender is incapacitated for labor for 10 days or more but not more than 30 days, or needs medical attendance for the same period of time; 2. The physical injuries must not be those described in the preceding articles. • Circumstances Qualifying the Offense: a. There is manifest intent to insult or offend the injured person; or b. There are circumstances adding ignominy to the offense. c. The offender’s parents, ascendants, guardians, curators, or teachers; or d. Persons of rank or person in authority provided the crime is not a direct assault. • Medical attendance or incapacity is required in less serious physical injuries. It is only slight physical injury when there is no medical attendance or incapacity for labor. • Other notes: o Duration: 10 days or more but not more than 30 o Q: Is incapacity for labor required for the whole duration or could it include the need for medical assistance? It could be a combination of both. Remember: There are cases when it is not required to be incapacitated for the entire duration provided, such as partial blindness and deformity. Is treachery qualifying in less serious physical injuries? No. 46
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Treachery is NOT always qualifying in all crimes against persons (i.e. less serious physical injuries) ARTICLE 266: Slight physical injuries and maltreatment. The crime of slight physical injuries shall be punished: 1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the offended party for labor from one to nine days, or shall require medical attendance during the same period. 2. By arresto menor or a fine not exceeding 20 pesos and censure when the offender has caused physical injuries which do not prevent the offended party from engaging in his habitual work nor require medical assistance. 3. By arresto menor in its minimum period or a fine not exceeding 50 pesos when the offender shall ill-­‐treat another by deed without causing any injury. 3 Kinds of Slight Physical Injuries: 1. Physical injuries which incapacitated the offended party for labor from 1 to 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 required medical attendance 3. Ill-­‐treatment of another by deed without causing any injury (Maltreatment Ex. Slapping) • When there is no evidence of actual injury, it is only slight physical injuries. • Supervening event converting the crime into serious physical injuries after filing of information can still be the subject of a new charge. • Article 266 is a general law that punishes ill-­‐treatment. • Other notes: a. Q: Is the slapping of someone in front of a lot of people under Article 266? If ill-­‐treatment has a specific purpose, it becomes slander by deed. b.
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BLOCK A 2011-­‐2012 Ill-­‐treatment by deed constitutes slight physical injuries if it results in hospitalization/requiring medical assistance of 1-­‐9 days. Slight physical injury is a light felony incapable of being complexed under Article 48. Chapter 3: Rape ARTICLE 266-­‐A: Rape: When And How Committed. Rape is committed: 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat, 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; and d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. 2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. Par. 1 -­‐ Rape by Sexual Intercourse: By a man who shall have carnal knowledge of a woman under any of the following circumstances: (F-­‐D-­‐F-­‐12) a. Through force, threat 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; and 47
CRIMINAL LAW II FINALS REVIEWER d.
ATTY. JOSE ARTURO DE CASTRO When the offended party is under 12 years of age, is demented, even though none of the circumstances mentioned above be present. Par. 2 – Rape by Sexual Assault: By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault; a. By inserting his penis into another person’s mouth or anal orifice; b. By inserting any instrument or object into the genital or anal orifice of another person. • Reclassification of Rape as a Crime against Persons – it may now be prosecuted de oficio: Complaint by offended party is NO longer necessary. a. Name and identity of the rape victim and her immediate family or household members are NOT disclosed in Rape cases. • Time and date of commission – NOT ELEMENTS a. Failure to specify the exact date or time when the rape occurred does NOT ipso facto make the information defective on its face. b. Discrepancy on the actual date of rape does NOT constitute serious error warranting the reversal of the accused’s conviction. c. Date or time of commission is NOT an element of Rape because the gravamen of rape is CARNAL KNOWLEDGE of a woman through force or intimidation. (People v. Aure) • General Principles in Rape Cases a. 3 well-­‐entrenched principles in determining the innocence or guilt of the accused in Rape cases (as a result of these principles, CREDIBILITY is the single most important issue) i. An accusation of rape can be made with facility and while the accusation is difficult to prove, it is even more difficult for the accused, thought innocent, to disprove; ii. Considering that in the nature of things, only 2 persons are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution; and BLOCK A 2011-­‐2012 iii. The evidence of 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. b. Penile penetration cannot be presumed from pain alone; some other piece of evidence showing that there was indeed carnal knowledge is necessary, i.e.: i. Positive testimony of slight penetration of the vagina ii. Testimony that the penis was erect at the time that it was touching the vagina iii. That the vagina bled due to the attempt to insert the penis iv. That there were abrasions or contusions on the labia of the vagina c. Best evidence of victim’s age: ORIGINAL/CERTIFIED TRUE COPY – BIRTHE CERTIFICATE d. Sole testimony of a rape victim, if credible, suffices to convict. i. Inaccuracies and inconsistencies in the Rape victim’s testimony are to be expected. e. Report and testimony of a medico-­‐legal officer that there are hymenal lacerations on the victim’s vagina is the best evidence that an object, such as an erect penis, has been inserted into it i. Such report and testimony, when weighed along with the victim’s positive testimony that her assailant, armed with a gun, inserted his penis into her vagina, sufficiently establish the essential element of rape, which is carnal knowledge against her will. ii. However, medical examination and the doctor’s certificate thereon are NOT INDISPENSIBLE but merely CORROBORATIVE. SEXUAL INTERCOURSE SEXUAL ASSAULT Offender Man Man or woman Offended party Woman Man or woman Mode/manner of Penile penetration 1. Insertion of PENIS in commission another person’s MOUTH or ANAL 48
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO orifice; 2. Insertion of any instrument or object into another person’s GENITAL OR ANAL ORIFICE f.
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In view of the material differences between them, rape through SEXUAL INTERCOURSE in not necessarily included in rape through SEXUAL ASSAULT and vice-­‐versa i. Where the Information charges Rape through Sexual Intercourse, the accused CANNOT be found guilty of Rape through SEXUAL ASSAULT (People v. Abulon), but he can be found guilty of Acts of Lasciviousness (People v. Ceballos). RAPE THROUGH SEXUAL INTERCOURSE a. ELEMENTS: i. Accused had carnal knowledge of the victim; and ii. Said act was accomplished: 1. Through the use of force or intimidation, or 2. When the victim is deprived of reason or otherwise unconscious, or 3. When the victim is under 12 years old or is demented. b. Mere introduction of the penis into the aperture of the female organ, thereby touching the labia of the pudendum, already consummates the crime of rape. c. Sexual congress with a woman by force and without consent is the gravamen of rape. d. In STATUTORY RAPE, where the woman is under 12 years of age, conviction will lie provided sexual intercourse is proven because proof of force is NOT an element and the absence of a free consent is PRESUMED. •
BLOCK A 2011-­‐2012 i. If the woman is 12 YEARS OF AGE OR OLDER at the time she was violated, the sexual intercourse and the fact that it was done through force, violence, intimidation or threat must both be proven. ii. If victim is below 12 years of age, the offender should be prosecuted for STATUTORY RAPE under Art. 266-­‐A [1] [d] RPC and not SEXUAL ABUSE (Sec. 5[b], RA 7610) iii. If the victim is 12 years of age or over, offender should be charged with either, except under Art. 266-­‐A [1] [d] RPC. iv. Sexual congress with a girl UNDER 12 YEARS OLD is ALWAYS rape. v. The prosecution must prove: 1. Age of the complainant 2. Identity of the accused 3. Carnal knowledge between the accused and the complainant. e. QUALIFIED RAPE i. Requires that at least 1 of the aggravating/qualifying circumstances in Art. 266-­‐B RPC MUST be alleged in the information and duly proven during the trial. (People v. Basmayor) ii. Where the Information alleges that the rape victim was UNDER 12 years old but likewise explicitly declares the said victim as being 3 years of age, the crime should be QUALIFIED RAPE under Art. 266-­‐B, par. 6(5), and not statutory rape. (People v. Rentoria) iii. Incestuous rape of a minor – doubts as to the weapon used is immaterial because the accused father’s moral ascendancy over the minor victim replaces “force and intimidation”. (People v. Garte citing People v. Rodavia) RAPE BY SEXUAL ASSAULT a. ELEMENTS: i. that the offender commits an act of sexual assault; ii. that the act of sexual assault is committed by any of the following means: 49
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 1.
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by inserting his penis into another person’s mouth or anal orifice; or 2. by inserting any instrument or object into the genital or anal orifice of another person iii. that the act of sexual assault is accomplished under any of the following circumstances: 1. by using force or intimidation’ 2. when a woman is deprived or reason or otherwise unconscious; by means of fraudulent machination or grave abuse of authority; 3. when the offended party is under 12 years of age or is demented, even though none of the circumstances mentioned above be present. b. When fingers are used as the assaulting object, there should be evidence of at least the slightest penetration of the sexual organ and not merely a brush or graze of its surface. i. “Insertion” is necessary. ii. The act of touching the female sexual organ, in itself, is NOT equivalent to rape, not even an attempted one. (People v. Mendoza) SWEETHEART THEORY a. To prove this, independent proof other than testimonial evidence is required. i. A love affair does not justify rape – a man does not have the unbridled license to subject his beloved to his carnal desires. (People v Nogpo, People v. Baldo, People v. Corpuz, etc) Other notes: o Multiple rape by two or more offenders – each one is responsible not only for rape personally committed, but also for rape committed by others. o Rape with homicide is now a special complex crime. o Rape infecting victim with gonorrhea that caused death is an illustration of rape with homicide. o Q: Is treachery applicable to rape? Yes. o
o
BLOCK A 2011-­‐2012 Is statutory rape qualified rape? No. Can statutory rape and incestuous rape co-­‐exist? No. Statutory rape is ordinary rape, which falls under 266-­‐A. Incestuous rape is under 266-­‐B and provides for qualifying circumstances. ARTICLE 266-­‐B: Penalty. Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall become reclusion perpetua to death. When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. When by reason or on the occasion ofthe rape, homicide is committed, the penalty shall be death. The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: l) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-­‐parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-­‐law spouse of the parent of the victim; 2) When the victim is under the custody of the police or military authorities or any law enforcement or penal institution; 3) When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity; 50
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 4) When the 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; 5) When the victim is a child below seven (7) years old; 6) When the offender knows that he is afflicted with the Human Immuno-­‐
Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim; 7) When committed by any member of the Armed Forces of the Philippines or para-­‐military units thereof or the Philippine National Police or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime; 8) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability; 9) When the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and 10) When 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 under paragraph 2 of the next preceding article shall be punished by prision mayor. Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be prision mayor to reclusion temporal. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be reclusion temporal. When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion temporal to reclusion perpetua. When by reason or on the occasion ofthe rape, homicide is committed, the penalty shall be reclusion perpetua. BLOCK A 2011-­‐2012 Reclusion temporal shall be imposed if the rape is committed with any of the ten aggravating/ qualifying circumstances mentioned in this article. Rape committed under paragraph 1 is punishable by: 1. reclusion perpetua 2. reclusion perpetua to DEATH when: a. victim became insane by reason or on the occasion of rape; or b. the rape is attempted and a homicide is committed by reason or on the occasion thereof. c. when committed with the use of a deadly weapon or by two or more persons 3. DEATH when: a. homicide is committed; b. victim is under 18 years old and offender is: i. parent, ii. ascendant, iii. step-­‐parent, iv. guardian, v. relative by consanguinity or affinity within the 3rd civil degree, vi. common law spouse of victim’s parent; c. under the custody of the police or military authorities or any law enforcement or penal institution; d. committed in full view of the spouse, parent or any of the children or other relatives within the 3rd degree of consanguinity; e. victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime; f. a child below 7 years old; g. offender knows he is afflicted with HIV or AIDS or any other sexually transmissible disease and the virus is transmitted to the victim; h. offender is a member of the AFP, or para-­‐military units thereof, or the PNP, or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime; i. the victim suffered permanent physical mutilation or disability; 51
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO j. the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and k. when 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. The subsequent valid marriage between the offended party shall extinguish the criminal action or the penalty imposed. In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio. •
•
Marriage extinguishes not only the penal action, but likewise the penalty that may be imposed. (Marriage extinguished only as to the principal not as to accomplices and accessories) In case when multiple rape is committed, the effects and benefits of marriage with one defendant does not extend to the others. The wife can rape the husband and then subsequently forgive him for the extinguishment of criminal liability. ARTICLE 266-­‐D: Presumption. Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution of the acts punished under Article 266-­‐A. 2.
Where the offended party is so situated as to render him/her incapable of giving consent •
Other notes: o People v. Lazo doctrine that resistance must be manifest and tenacious has been superseded. Under RA 8353, half-­‐hearted resistance or a mere act of trying to resist the sexual assault may be accepted as evidence in the prosecution of rape. o Consent of minors (e.g., girl under 12 years of age) is NOT a valid defense. Gravamen of statutory rape is merely carnal knowledge of a girl below 12 years of age. o In statutory rape, proof of intimidation or force used on the victim, or lack of it, is immaterial. (People v. Mangalino) o Force and intimidation xxx may be present or absent without affecting the criminality of the carnal knowledge. (Id.)  Consent obtained by fear is void.  Complete deprivation of reason is not necessary.  A mentally retarded woman cannot give valid and legal consent to sexual act. (People v Daing)  Lack of knowledge of the victim’s mental condition is NOT a valid defense (People v Canillo). However, mistake of fact may be invoked as defense (People v. Ah Chong). Take note, however, that Ah Chong is not a rape case. ARTICLE 266-­‐C: Effect of Pardon. •
BLOCK A 2011-­‐2012 Evidence which may be accepted in the prosecution of rape: 1. Any physical over act manifesting resistance against the act of rape in any degree from the offended party; or 52
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO TITLE IX – CRIMES AGAINST PERSONAL LIBERTY AND SECURITY Chapter 1: Crimes Against Liberty Section 1 – Illegal Detention Art. 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, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than five days. 2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, female or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-­‐mentioned were present in the commission of the offense. When the victim is killed or dies as a consequence of the detention, or is raped or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. 2 Elements: (PDIC: 3s mfp) 1. The offender is a private individual; 2. He kidnaps or detains another, or in any other manner deprives the latter of his liberty; 3. The act of detention or kidnapping must be illegal; 4. In the commission of the offense, any of the following circumstances is present: a. The kidnapping lasts for more than 3 days; b. It is committed simulating public authority; c. Any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or d.
BLOCK A 2011-­‐2012 The person kidnapped or detained is a minor (except when the accused is any of the parents), female or a public officer. Qualifying instances Death is imposed in the following instances: [death penalty suspended] 1. If kidnapping is committed for the purpose of extorting ransom either from the victim or from any other person even if none of the aforementioned circumstances are present in the commission of the offense; and 2. When the victim is killed or dies as a consequence of the detention or is raped or is subjected to torture or dehumanizing acts. Rule on special complex crime of Kidnapping with homicide: 1. 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, the kidnapping and murder or homicide can no longer be complexed under Article 48, nor be treated as separate crimes but shall be punished as a special complex crime of Kidnapping with Homicide. (People v Rimorin) 2. The term homicide is used in its generic sense. Thus, it is Kidnapping with Homicide not Kidnapping with Murder. Kidnapping for ransom: 1. Even if there was no demand for ransom, if it is clear that the purpose of the offender is to demand for ransom, the crime is kidnapping with a demand for ransom. (People v. Garcia) 2. If a victim is kidnapped for the purpose of ransom, and during a car chase the victim was killed by the abductors, it is Kidnapping for Ransom and Murder, not a complex crime of Kidnapping with murder. 3. There are as many crimes of kidnapping as there are persons whose liberties are deprived. 4. As long as the kidnapping or detention was committed for the purpose of extorting ransom, actual demand is not necessary. 5. If the victim is a minor and the accused is any of the parents, the penalty is mitigated. Offender 1. When a public officer conspires with a private person in the commission of any of the crimes under Title IX, the crime is also one committed under this title and not under Title II (Arbitrary Detention). 2. If the offender does not act in a public capacity he will be liable under this Article. 53
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO BLOCK A 2011-­‐2012 Kidnaps, detains or in any other manner deprives the latter of his liberty 1. There must be actual confinement or restriction of the person of the offended party. (U.S. v. Cabanag) Ex. You are detained in your room and deprived of leaving the premises 2. Inclosure is not the only factor which can produce this crime; it can also be detaining him or depriving him in any manner of his liberty. (People v. Crisostomo) When motive is important: Forcible Abduction -­‐ woman taken against her will -­‐ with lewd designs -­‐ transported from one place to another Grave Coercion -­‐ woman is dragged to a distance of 5 meters -­‐ against her will -­‐ no intention to deprive person of liberty Illegal Detention -­‐ woman is taken -­‐ against her will -­‐ without lewd designs -­‐ transported from one place to another Special Complex Crime: Although 2 crimes are committed, in the eyes of the law there is only one criminal liability. Also known as component crime or single indivisible offense. Elements: (PKIW) 1. The offender is a private individual; 2. He kidnaps or detains another, or in any other manner deprives him of his liberty; 3. The act of kidnapping or detention is illegal; 4. The crime is committed without the attendance of any of the circumstances mentioned in Article 267. Accomplice The same penalty is incurred by the accomplice who furnished the place for the perpetration of the crime. His participation is raised to that of a co-­‐principal. Privileged Mitigating Circumstance if the offender: a. voluntarily releases the person so kidnapped or detained within 3 days from the commencement of the detention; b. without having attained the purpose intended; and c. before the institution of criminal proceedings against him. Note: It must be shown by the offender that he was in a position to prolong the detention for more than three days and yet he released the person detained within that time. 1. No mitigation when the proceedings have already been instituted. The accused acted through fear rather than through repentance. 2. When the victim is a female, the detention is punished under Article 267. Voluntary release is not mitigating under that article. Art. 268 – Slight illegal detention. Art. 269 – Unlawful arrest. The penalty of reclusion temporal shall be imposed upon any private individual who shall commit the crimes described in the next preceding article without the attendance of any of circumstances enumerated therein. The same penalty shall be incurred by anyone who shall furnish the place for the perpetration of the crime. If the offender shall voluntarily release the person so kidnapped or detained within three days from the commencement of the detention, without having attained the purpose intended, and before the institution of criminal proceedings against him, the penalty shall be prision mayor in its minimum and medium periods and a fine not exceeding seven hundred pesos. The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon 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: (AND) 1. The offender arrests or detains another person; 2. The purpose of the offender is to deliver him to the proper authorities; 3. The arrest or detention is not authorized by law or there is no reasonable ground therefor. “Any Person” 54
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 1. Private person 2. Public person – Must have no authority to arrest or did not act in his official capacity Exception: When the arrest is authorized by a warrant issued by court Purpose: to deliver him to the proper authorities 1. Purpose is a controlling factor, if the detention was for the reason of delivering him to proper authority must fall under this article. Ex. A tied B with a piece of rope and conducted him to the municipal court and was detained there for several hours until the Justice of peace ordered his release. Note: Motive is controlling; if his purpose is to deliver him to the proper authorities, it is still unlawful arrest. But absence of this motive may be shown by the length of time the victim is detained. Rule by exclusion point: Purpose to deliver to authorities 2. Arrest/detention refers to warrantless arrests. Unlawful arrest v. Art. 125 In Article 125 (Delay in the delivery of detained persons to the proper judicial authorities), the detention is for some legal ground. While in an unlawful arrest, the detention is not authorized by law. Section 2 – Kidnapping of Minors Art. 270: Kidnapping and failure to return a minor. The penalty of reclusion perpetua shall be imposed upon any person who, being entrusted with the custody of a minor person, shall deliberately fail to restore the latter to his parents or guardians. Elements: (EF) 1. The offender is entrusted with the custody of a minor person (whether over or under 7 years but less than 18 years of age); 2. He deliberately fails to restore said minor to his parents or guardians. Age BLOCK A 2011-­‐2012 DE CASTRO: Minor – under 18 years old Act punished “Deliberate failure of the custodian of such minor to restore the latter to his parents or guardian” Ex. A is entrusted with the custody of C, Jr. He left the house of his employer, the Father of C. After two days A was caught by the police. However, kidnapping and failure to return a minor is included in kidnapping and serious illegal detention. Who can commit the crime? 1. The person entrusted with the custody of the child 2. Father and mother of minor. However penalty is mitigated to arresto mayor or a fine not exceeding 300 or both (Estrada, p. 374) 267 and 270 compared • In both, kidnapping is punished. In 270 the offender is entrusted with the custody of the minor; under 267, the offender is not entrusted with the custody of the victim. Rule by exclusion point: Entrusted with the custody of a minor Art. 271 – Inducing a minor to abandon his home. The penalty of prision correccional and a fine not exceeding seven hundred pesos shall be imposed upon anyone who shall induce a minor to abandon the home of his parent or guardians or the persons entrusted with his custody. If the person committing any of the crimes covered by the two preceding articles shall be the father or the mother of the minor, the penalty shall be arresto mayor or a fine not exceeding three hundred pesos, or both. Elements: (MI) 1. A minor (whether under or over 7 yrs of age) is living in the home of his parents or guardians or the person entrusted with his custody; 2. Offender induces said minor to abandon such home. Inducement 1. Inducement must be actual, committed with criminal intent and determined by a will to cause damage. (Estrada: Mere inducement consummates the crime.) 55
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Ex. Z a maid of A,B, is entrusted with the custody of C. Z describes to C that the city has bigger malls, movie houses and that it has a lot of exotic candies. Held: It does not equate to inducement. The phrase to induce means, “to influence; to prevail on; t move by persuasion; to incite by motives.” 2. The minor should not leave his home of his own free will. Mitigated if committed by the father or mother of the victim. 3. The minor need not actually abandon his home or home of guardian. Mere commission of any act which tends to influence, persuade or prevail on a minor to abandon his home is what constitutes a crime. Note: Is mere inducement punishable?  Yes. Reyes said that it is not necessary that the minor actually abandons the home.  However, Atty. De Castro opined, that actual abandonment must occur; otherwise it will be very difficult to prove the case under this provision. Section 3 – Slavery and Servitude Art. 272 – Slavery. The penalty of prision mayor and a fine of not exceeding 10,000 pesos shall be imposed upon anyone who shall purchase, sell, kidnap or detain a human being for the purpose of enslaving him. If the crime be committed for the purpose of assigning the offended party to some immoral traffic, the penalty shall be imposed in its maximum period. Elements: (PEI) 1. The offender purchases, sells, kidnaps, or detains a human being; or 2. The purpose of the offender is to enslave such human being; 3. To assign the victim to immoral traffic. Qualifying circumstance 1. If the purpose is some immoral traffic (Ex. prostitution). “For the purpose of enslaving him” BLOCK A 2011-­‐2012 1. There must be specific intent to enslave. (De Castro) Ex. A was obliged to be a servant of B without remuneration whatever and to remain there so long as she has not paid her debt. There is slavery. (Reyes v. Alojado) Rule by exclusion point: Purpose is to enslave the victim. Otherwise if such is absent, it will fall under kidnapping or illegal detention. Art. 273 – Exploitation of child labor. The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon 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: (MAR) 1. Offender retains a minor in his services; 2. It is against the will of the minor; 3. 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. Against the will of the minor 1. The minor must not consent to the offender, otherwise there is no violation. 2. Indebtedness is not a ground for detention. Existence of indebtedness constitutes no legal justification for the detention. Art. 274: Services rendered under compulsion in payment of debt. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon 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: (CAP) 1. Offender compels a debtor to work for him, either as a household servant or farm laborer; 2. It is against the debtor’s will; 3. The purpose is to require or enforce the payment of a debt. “As household servant or farm laborer” 56
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 1. A was compelled to work as a janitor to enforce the payment of his debt to B. It will not be punishable under this article, offended party must be compelled to work as household servant or farm laborer. 2. This article does not distinguish if the victim is a minor or not. Rule by exclusion point: Household servant or farm laborer. In 273, service of the minor is not limited to household and farming. 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. The penalty of arresto mayor shall be imposed upon: 1. Anyone who shall fail to render assistance to any person whom he shall find 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 shall fail to help or render assistance to another whom he has accidentally wounded or injured. 3. Anyone who, having found an abandoned child under seven years of age, shall fail to deliver said child to the authorities or to his family, or shall fail to take him to a safe place. 2
Elements of paragraph 1: (NW F) 1. The place is not inhabited; 2. Accused found there a person wounded or in danger of dying; 3. Accused can render assistance without detriment to himself; 4. Accused fails to render assistance. Paragraph 2: BLOCK A 2011-­‐2012 Failing to help or render assistance to another whom the offender has accidentally wounded or injured. Paragraph 3: By failing to deliver a child, under 7 years of age, whom the offender has found abandoned, to the authorities or to his family, or by failing to take him to a safe place. “Shall find xxx wounded or in danger of dying” 1. If a person intentionally wounded another in an uninhabited place, paragraph 1 is not applicable. 2. Unless such omission shall constitute a more serious offense Ex. When the offender had the custody of the minor under 7 years, he shall be punished under Art. 276 which is a heavier penalty. Paragraph 2 1. Offender must have accidentally wounded another, if he intentionally did it he will be prosecuted for the offense produced. Paragraph 3 1. The child under 7 must be found by the accused in an unsafe place. 2. It is immaterial that the offender did not know that the child is under 7 years. Applies also to lost child. Art. 276: Abandoning a minor. The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any one who shall abandon a child under seven years of age, the custody of which is incumbent upon him. When the death of the minor shall result from such abandonment, the culprit shall be punished by prision correccional in its medium and maximum periods; but if the life of the minor shall have been in danger only, the penalty shall be prision correccional in its minimum and medium periods. The provisions contained in the two preceding paragraphs shall not prevent the imposition of the penalty provided for the act committed, when the same shall constitute a more serious offense. Elements: (C-­‐7-­‐AN) 1. The offender has custody of a child; 57
CRIMINAL LAW II FINALS REVIEWER 2.
3.
4.
ATTY. JOSE ARTURO DE CASTRO The child is under 7 years of age; He abandons such child; He has no intent to kill the child when the latter was abandoned. Qualifying circumstances 1. When death of a minor results from the abandonment. 2. When the life of the minor shall have been in danger only Note: The article does not prevent the imposition of the penalty provided for the act committed when it shall constitute a more serious offense. Intent 1. When there is intent to kill this provision does not apply. The abandonment is to avoid the obligation of taking care of the minor. 2. If there is intent to kill and the child dies, the crime would be murder, parricide or infanticide, as the case may be. Rationale: (Art. 276, paragraph 3) 3. Intent to kill cannot be presumed if death is resulted since such presumption is only applicable to crimes against persons, and not to crimes against security. Abandonment 1. Abandonment must be permanent, conscious and deliberate is required. Ex. A mother leaves her child in the forest which is far from available assistance. 2. Law punishes: so long as there is an interruption of the care and protection he needs by reason of his tender age. 3. If the offender is the parent of the abandoned, he shall be deprived of parental authority. Art. 277: Abandonment of minor by person entrusted with his custody; indifference of parents. The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon 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. The same penalty shall be imposed upon the parents who shall neglect their children by not giving them the education which their station in life requires and financial conditions permit. BLOCK A 2011-­‐2012 Acts punishable: 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 that one, without the consent of the proper authorities; Elements: (RDN) a. Offender has charge of the rearing or education of a minor; b. He delivers said minor to a public institution or other persons; 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 his (offender’s) children by not giving them the education, which their station in life requires and financial condition permits. Elements: (PNS) a. Offender is a parent; b. He neglects his children by not giving them education; c. His station in life requires such education and his financial condition permits it. Qualifying circumstances: 1. When the death of the minor resulted from such abandonment; or 2. Life of the minor was in danger because of the abandonment. “Rearing or education” 1. Rear means, to bring to maturity by educating, nourishing, etc.: as to rear children. Abandonment of Minor under Art. 276 compared with Art. 277 Art. 276 Art. 277 Type of Custody Custody in general Custody is specific (rearing or education) Age of Minor Under 7 years of age Under 21 Act punished Abandoned in such a way Delivered to a public as to deprive him of the institution or other person care and protection that his tender years need 58
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 2. Failure to give education must be due to deliberate desire to evade such obligation Ex. (1) A Father or mother who deliberately fails to give their children education, despite having ample means to do so. (2) A dried fish vendor has a child who wants to study law school, in case he disapproves of the child’s act of studying law, will he be liable under this article? No, what the law protects is the basic education of children juxtaposed to the means of the family. Art. 278 – Exploitation of minors. The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon: 1. Any person who shall cause any boy or girl under sixteen years of age to perform any dangerous feat of balancing, physical strength, or contortion. 2. Any person who, being an acrobat, gymnast, rope-­‐walker, diver, wild-­‐animal tamer or circus manager or engaged in a similar calling, shall employ in exhibitions of these kinds children under sixteen years of age who are not his children or descendants. 3. Any person engaged in any of the callings enumerated in the next paragraph preceding who shall employ any descendant of his under twelve 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 sixteen years of age, who shall deliver such child gratuitously to any person following any of the callings enumerated in paragraph 2 hereof, or to any habitual vagrant or beggar. If the delivery shall have been made in consideration of any price, compensation, or promise, the penalty shall in every case be imposed in its maximum period. In either case, the guardian or curator convicted shall also be removed from office as guardian or curator; and in the case of the parents of the child, they may be deprived, temporarily or perpetually, in the discretion of the court, of their parental authority. 5. Any person who shall induce any child under sixteen years of age to abandon the home of its ascendants, guardians, curators, or teachers to follow any person BLOCK A 2011-­‐2012 engaged in any of the callings mentioned in paragraph 2 hereof, or to accompany any habitual vagrant or beggar. Acts punishable: (DEEDI) 1. By causing any boy or girl under 16 years of age to perform any dangerous feat of balancing, physical strength or contortion, the offender being any person. 2. By employing children under 16 years of age who are not the children or descendants of the offender in exhibitions of acrobat, gymnast, rope walker, diver, or wild animal tamer, the offender being an acrobat, etc., or circus manager or person engaged in a similar calling. 3. By employing any descendant under 12 years of age in dangerous exhibitions enumerated in the next preceding paragraph, the offender being engaged in any of the said callings 4. By delivering a child under 16 years of age gratuitously to any person following any of the callings enumerated in paragraph 2, or to any habitual vagrant or beggar, the offender being an ascendant, guardian, teacher, or people entrusted in any capacity with the care of such child. 5. By inducing any child under 16 years of age to abandon the home of its ascendants, guardian, curators or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 or to accompany any habitual vagrant or beggar, the offender being any person. Art. 279: Additional penalties for other offenses. The imposition of the penalties prescribed in the preceding articles, shall not prevent the imposition upon the same person of the penalty provided for any other felonies defined and punished by this Code. Imposition of penalties prescribed in the preceding articles shall not prevent the imposition of other penalties provided for any other felonies defined and punished in the RPC. Section 2 – Trespass to Dwelling Art. 280 – Qualified trespass to dwelling. Any private person who shall enter the dwelling of another against the latter's will shall be punished by arresto mayor and a fine not exceeding 1,000 pesos. 59
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO If the offense be committed by means of violence or intimidation, the penalty shall be prision correccional in its medium and maximum periods and a fine not exceeding 1,000 pesos. The provisions of this article shall not be applicable to any person who shall enter another's dwelling for the purpose of preventing some serious harm to himself, the occupants of the dwelling or a third person, nor shall it be applicable to any person who shall enter a dwelling for the purpose of rendering some service to humanity or justice, nor to anyone who shall enter cafes, taverns, inn and other public houses, while the same are open. Elements: (PEA) 1. That the offender is a private person. 2. That he enters the dwelling of another. 3. That such entrance is against the latter’s will. Qualifying circumstance: If the offense is committed by means of violence or intimidation, the penalty is higher 1. Cuello Calon opines that violence may be committed not only against persons but also against things. So, breaking the door or glass of a window or door constitutes acts of violence. 2. The Supreme Court followed this view in People v. Tayag. Violence or intimidation must, however, be anterior or coetaneous with the entrance and must not be posterior. But if the violence is employed immediately after the entrance without the consent of the owner of the house, trespass is committed. If there is also violence or intimidation, proof of prohibition to enter is no longer necessary. Not applicable if: a. Entrance is for the purpose of preventing harm to himself, the occupants or a third person b. Purpose is to render some service to humanity or justice c. Place is a café, tavern etc. while open d. Hot pursuit of a person who has committed a crime. Offender 1. Private person BLOCK A 2011-­‐2012 2. Public person not acting in such capacity – otherwise he will be violating Art. 128 (Violation of domicile) Dwelling 1. Dwelling – any building or structure exclusively devoted for rest and comfort. Whether a building is a dwelling depends upon the use to which it is put. Ex.  Store of cheap goods which is also the dwelling of the owner  Room when occupied by another person (Boarding rooms) Prohibition Against the will of the owner – Prohibition is either: (1) Implied, i.e. late hours and the room is occupied by a woman or entrance through the window. (2) Expressed, i.e. doors are locked. Art. 281 – Other forms of trespass. The penalty of arresto menor or a fine not exceeding 200 pesos, or both, shall be imposed upon any person who shall enter the closed premises or the fenced estate of another, while either or 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: (EUPP) 1. That the offender enters the closed premises or the fenced estate of another. 2. That the entrance is made while either of them is uninhabited. 3. That the prohibition to enter be manifest. 4. That the trespasser has not secured the permission of the owner or the caretaker thereof. Premises Premise – signifies distinct and definite locality. i.e. room, shop, building or definite area, but in either case, locality is fixed. Ex. Entering a warehouse, or a fenced property. Art. 280 compared with Art. 281 Art. 280 Art. 281 Offender Private person Any person Area Dwelling house Closed premises or fenced estate Nature Inhabited Uninhabited 60
CRIMINAL LAW II FINALS REVIEWER Permission Prohibition Entering the dwelling against the will of the owner Express or Implied ATTY. JOSE ARTURO DE CASTRO Without securing the permission of the owner or caretaker thereof Manifest 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, shall suffer: 1. The penalty next lower in degree than that prescribed by law for the crime be threatened to commit, if the offender shall have made the threat demanding money or imposing any other condition, even though not unlawful, and said offender shall have attained his purpose. If the offender shall not have attained his purpose, the penalty lower by two degrees shall be imposed. If the threat be made in writing or through a middleman, the penalty shall be imposed in its maximum period. 2. The penalty of arresto mayor and a fine not exceeding 500 pesos, if the threat shall not have been made subject to a condition. Acts punishable: 1. By threatening another with the infliction upon his person, honor or property that of his family of any wrong amounting to a crime and demanding money or imposing any other condition, even though not unlawful and the offender (Note: threat is with condition) Elements: a. That the offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong. b. That such wrong amounts to a crime. c. That there is a demand for money or that any other condition is imposed, even though not unlawful. d. That the offender attains his purpose. 2. By making such threat without the offender attaining his purpose 3.
BLOCK A 2011-­‐2012 By threatening another with the infliction upon his person, honor or property or that of his family of any wrong amounting to a crime, the threat not being subject to a condition (Note: threat is without condition) Elements: (TWN) a. That 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. That such wrong amounts to a crime. c. That the threat is not subject to a condition Qualifying/Mitigating circumstance: 1. If the person attained his purpose the penalty is one degree lower. 2. If he did not attain his purpose the penalty is two degrees lower. 3. If threat be made in writing or through a middleman the penalty is imposed in its maximum Threat 1. Intimidation – there is a promise of some future harm or injury, either to the person, honor or property of the offended party or of his family. *Intimidation is the essence of the crime 2. Threat -­‐ is a declaration of an intention or determination to injure another by the commission upon his person, honor or property or upon that of his family of some wrong which may or may not amount to a crime Ex. Persons – A will kill B unless he gives him money Property-­‐If A will not give B money, B will burn his house Honor – A must give B money or else, B will publish a libelous material 3. Generally the wrong threatened to be inflicted must amount to crimes against persons, honor or property, except any wrong amounting to a crime against the family of the person threatened. When is it consummated 1. Crime of grave threat is consummated as soon as the threats come to the knowledge of the person threatened. (People v. Villanueva) 2. Indirect challenge to a gun fight amounted to intimidation, especially when backed by two warning shots. (People v. Sayon) 3. If there is another crime actually committed and the threat is only a means to commit that crime, it will be absorbed. 61
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 4. When that act is consist of materially taking possession of a personal property on the spot accompanied by threat or intimidation, the crime becomes robbery. Rule by exclusion point: Threat of a future harm Art. 283 – Light threats. Any threat to commit a wrong not constituting a crime, made in the manner expressed in subdivision 1 of the next preceding article, shall be punished by arresto mayor. Elements: (TCDP) 1. That the offender makes a threat to commit a wrong. 2. That the wrong does not constitute a crime. 3. That there is a demand for money or that other condition is imposed, even though not unlawful 4. That the offender has attained his purpose or, that he has not attained his purpose Threat 1. Threat does not include a threat to commit a wrong constituting a crime. For instance, blackmailing. Distinction between threat and coercion:
1. The essence of coercion is violence or intimidation. There is no condition involved; hence, there is no futurity in the harm or wrong done. 2. In threat, the wrong or harm done is future and conditional. In coercion, it is direct and personal. Distinction between threat and robbery:
1. As to intimidation – In robbery, the intimidation is actual and immediate; in threat, the intimidation is future and conditional. 2. As to nature of intimidation – In robbery, the intimidation is personal; in threats, it may be through an intermediary. 3. As to subject matter – Robbery refers to personal property; threat may refer to the person, honor or property. 4. As to intent to gain – In robbery, there is intent to gain; in threats, intent to gain is not an essential element. 5. In robbery, the robber makes the danger involved in his threats directly imminent to the victim and the obtainment of his gain immediate, thereby also taking rights to his person by the opposition or resistance which the BLOCK A 2011-­‐2012 victim might offer; in threat, the danger to the victim is not instantly imminent nor the gain of the culprit immediate. Art. 284 – Bond for good behavior. In all cases falling within the two next preceding articles, the person making the threats may also be required to give bail not to molest the person threatened, or if he shall fail to give such bail, he shall be sentenced to destierro. Bond for good behavior may be imposed (only in these offenses, Article 282 and Article 283) Cases where a person may be required to give bail not to molest another: 1. When he threatens another under the circumstances mentioned in Article 282 2. When he threatens another under the circumstances mentioned in Article 283. Compared with Article 35: ARTICLE 35 ARTICLE 284 “bond to keep the peace” “bond for good behavior” Not made applicable to any Applicable only to cases of grave particular case threats and light threats Failure to give bond – detention for 6 Failure to give bail -­‐ destierro months (for grave or less grave felony) or not exceeding 30 days (for light felony) Distinct penalty -­‐ Art. 285 – Other light threats. The penalty of arresto menor in its minimum period or a fine not exceeding 200 pesos shall be imposed upon: 1. Any person who, without being included in the provisions of the next preceding article, shall threaten another with a weapon or draw such weapon in a quarrel, unless it be in lawful self-­‐defense. 2. Any person who, in the heat of anger, shall orally threaten another with some harm not constituting a crime, and who by subsequent acts show that he did not 62
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO persist in the idea involved in his threat, provided that the circumstances of the offense shall not bring it within the provisions of Article 282 of this Code. 3. Any person who shall orally threaten to do another any harm not constituting a felony. Acts Punishable: 1. Person shall threaten another with a weapon, or draw weapon in a quarrel unless in self-­‐defense. 2. In the heat of anger, person orally threatens another with some harm constituting a crime, without persisting in the idea involved in the threat. Subsequent acts did not persist. 3. Person orally threatens another with harm not constituting a felony. Difference with 282 and 283 • There is no demand for money • No condition imposed when the offender threatens another with a weapon; and • The case should not fall in subdivision No. 2 of Article 282. 1. Orally threatening another, in the heat of anger, with some harm constituting a crime is punished in paragraph 2. 2. Threats, which ordinarily are grave threats, if made in the heat of anger, may be other light threats. 3. Other light threats may be committed even if the person to whom it is directed is absent. Art. 286 – Grave coercions. The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any person who, without authority of law, shall, by means of violence, prevent another from doing something not prohibited by law, or compel him to do something against his will, whether it be right or wrong. If the coercion be committed for the purpose of compelling another to perform any religious act or to prevent him from so doing, the penalty next higher in degree shall be imposed. BLOCK A 2011-­‐2012 Acts punished: 1. Preventing another, by means of violence, threats or intimidation, from doing something not prohibited by law; Ex. Preventing someone from harvesting his crops 2. Compelling another, by means of violence, threats or intimidation, to do something against his will, whether it be right or wrong. Ex. Pushing the bridge keeper to pass the bridge Elements: (PVA) 1. That a person prevented another from doing something not prohibited by law, or that he compelled him to do something against his will, be it right or wrong; 2. That the prevention or compulsion be effected by violence, threats or intimidation; 3. That the person that restrained the will and liberty by another had not the authority of law or the right to do so, or, in other words, that the restraint shall not be made under authority of law or in the exercise of any lawful right. Act of preventing 1. When must the act of preventing? • When the offended party is about to do the act to be prevented • Otherwise if the act was already done, the crime is unjust vexation 2. Act of preventing is another crime • Public officer who prevents ceremonies or manifestation of any religion (Art. 132) • Any person who prevents the meeting of a legislative body (Art. 143) • Any person who shall prevent a member of congress from attending the meetings thereof (Art. 145) 3. Actual Possession • When the complainant is in the actual possession of a thing, even if he has no right to that possession, compelling him by means of violence to give up the possession even by the owner himself is grave coercion Ex. A’s carabao damaged the paddies of B, A used violence to reacquire the said carabao, A is guilty of grave coercion. If the carabao returns to A and B tried to get the carabao from him, rendering A to use violence, is not grave coercion. Right to use force may be reasonably necessary to prevent B from dispossessing him of his property. 4. Purpose of the law in penalizing coercion – to enforce the principle that no person may take the law into his hands, and that our government is one of law, not of men. 63
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Compelling 1. “Violence threat or intimidation” • Intimidation is sufficient, without necessity of actually laying hands on the person coerced (U.S. v. Tupular) Ex. Taxi driver who threatened to bump his car to kill himself, if the passenger will not go out with him • Surrounding complainant in a notoriously threatening attitude is sufficient. (People v. Irlanda) • Threat must be immediate, actual or imminent (People v. Romero) Ex. A was told that he would be killed if he does not deliver the money to the house of B. Threat is not immediate, actual or imminent. • The crime is not grave coercion when the violence is employed to seize anything belonging to the debtor of the offender. 2. “Without authority of law” • The person who restrains the will and liberty of another has not the right to do so as a private person or does not act in the exercise of a duty. Ex. When A, a local farmer, prevented B from buying soap in a store with the use of violence. 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, shall suffer the penalty of arresto mayor in its minimum period and a fine equivalent to the value of the thing, but in no case less than 75 pesos. Any other coercions or unjust vexations shall be punished by arresto menor or a fine ranging from 5 pesos to 200 pesos, or both. Elements: (CD-­‐VP) 1. That the offender must be a creditor. 2. That he seizes anything belonging to his debtor. 3. That the seizure of the thing be accomplished by means of violence or a display of material force producing intimidation; 4. That the purpose of the offender is to apply the same to the payment of the debt. Seizure BLOCK A 2011-­‐2012 1. There must be taking for the payment of the debt. If the seized thing was a mere security for the payment this article will not apply. 2. Offender must be a creditor of the offended party Unjust vexation 1. Unjust Vexation -­‐ any act committed without violence, but which unjustifiably annoys or vexes an innocent person amounts to light coercion. 2. Taking possession of the thing belonging to the debtor, through deceit and misrepresentation, for the purpose of applying the same to the payment of the debt, nd
is unjust vexation under the 2 paragraph of Article 287. 3. Actual physical violence need not be employed. Ex. Kissing a girl, without performing acts of lasciviousness, is unjust vexation. Art. 288 – Other similar coercions; (Compulsory purchase of merchandise and payment of wages by means of tokens.) The penalty of arresto mayor or a fine ranging from 200 to 500 pesos, or both, shall be imposed upon 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. The same penalties shall be imposed upon 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 laborer or employee. Acts Punishable: 1. Compulsory purchase of materials Elements: (PEF) a. Offender is any person, agent or officer of any association or corporation; b. He or such firm or corporation has employed laborers or employees; c. 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. 64
CRIMINAL LAW II FINALS REVIEWER 2.
ATTY. JOSE ARTURO DE CASTRO Payments of wages by means of tokens Elements: (POD) a. Offender pays the wages due a laborer or employee employed by him by means of tokens or objects; b. Those tokens or objects are other than the legal tender currency of the Philippines; c. Such employee or laborer does not expressly request that he be paid by means of tokens or objects. Art. 289 – Formation, maintenance and prohibition of combination of capital or labor through violence or threats. The penalty of arresto mayor and a fine not exceeding 300 pesos shall be imposed upon any person who, for the purpose of organizing, maintaining or preventing coalitions or capital or labor, strike of laborers or lock-­‐out of employees, shall employ 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, if the act shall not constitute a more serious offense in accordance with the provisions of this Code. Elements: (VP) 1. 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. The purpose is to organize, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employers. Notes: 1. The act should not be a more serious offense. 2. Peaceful picketing not prohibited. 3. Employing violence or making threat by picketers may make them liable for coercion. 4. Preventing employee from joining any registered labor organization is punished under the Labor Code, not under the RPC. Art. 290 – Discovering secrets through seizure of correspondence. The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon any private individual who in order to discover the secrets of another, shall seize his papers or letters and reveal the contents thereof. BLOCK A 2011-­‐2012 If the offender shall not reveal such secrets, the penalty shall be arresto mayor and a fine not exceeding 500 pesos. The provision shall not be applicable to parents, guardians, or persons entrusted with the custody of minors with respect to the papers or letters of the children or minors placed under their care or study, nor to spouses with respect to the papers or letters of either of them. Elements: (PS-­‐DI) 1. Offender is a private individual or even a public officer not in the exercise of his official function; 2. He seizes the papers or letters of another; 3. The purpose is to discover the secrets of such another person; 4. Offender is informed of the contents of the papers or letters seized. Seize 1. “Seize” – to place in the control of someone a thing or to give him the possession thereof. Ex. Taking possession of papers or letters of another even for a short time only. Purpose is to discover the secrets of another 1. Purpose of the offender must be to discover the secrets of another. Before opening the accused must be dictated by the desire to discover secrets. 2. Offender must be informed of contents of papers or letter. 3. Prejudice is not an element of the offense. 4. Exception: Article 290 is not applicable to letters of minors or spouses. 5. If mail matter is opened by public officers, Sec. 2756 of the Administrative Code punishes the unlawful opening of mail matter. Notes from Atty. De Castro *Revelation is not an element of this crime. It is only qualifying. – Atty. De Castro *Also contemplates a ward who seizes a guardian’s letters. – Atty. De Castro Art. 291 – Revealing secrets with abuse of office. The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any manager, employee, or servant who, in such capacity, shall learn the secrets of his principal or master and shall reveal such secrets. 65
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO BLOCK A 2011-­‐2012 Elements: (MLR) 1. Offenders is a manager, employee or servant; 2. He learns the secrets of his principal or master in such capacity; 3. He reveals such secrets. Secrets 1. Secrets must be learned by reason of their employment. Ex. A bank teller who knows the bank safe combination 2. The secrets must be revealed by the offender 3. Damage is not necessary. *Secrets not necessarily contained in papers/letters. – Atty. De Castro Art. 292 – Revelation of industrial secrets. The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon the 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: (ES-­‐RP) 1. The offender is a person in charge, employee or workman of a manufacturing or industrial establishment; 2. The manufacturing or industrial establishment has a secret of the industry which the offender has learned; 3. Offender reveals such secrets; 4. Prejudice is caused to the owner. Secrets 1. Secrets must relate to manufacturing processes invented by or for a manufacturer and used only in his factory or in a limited number of them. Ex. “Good burger” secret recipe and preparation. (Welcome to good burger, home of the good burgers movie) 2. The act constituting the crime is revealing the secret of the industry of employer. 3. The revelation of the secret might be made after the employee or workman had ceased to be connected with the establishment. 4. Prejudice is an element of the offense. 66
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO TITLE X – CRIMES AGAINST PROPERTY 
Chapter 1: Robbery in General 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 shall be guilty of robbery. Elements of Robbery in general: (PUVI) a. That there be (1) personal property (2) belonging to another; b. That there is (3) unlawful taking of that property; c. That the taking must be (4) with intent to gain; and d. That there is (5) violence against or intimidation of any person, or force upon anything  2 classifications of robbery: 1. Robbery with violence and intimidation of persons (Article 294, 297, 298) 2. Robbery by use of force upon things. (Article 299, 302)  “Personal Property” – must be a movable property, if it is real property occupied and is usurped by means of violence or intimidation the crime is usurpation. *Prohibited articles may be the subject matter of robbery (i.e. opium)  “Belonging to another” – property taken does not belong to the offender. The person from whom the personal property was taken need not be the owner, possession is sufficient (i.e. Robbery may be committed from a person who himself has stolen it.)  Naming of the Owner – Generally not necessary, but it is necessary if the crime charged is robbery with homicide because of the capital punishment attached to the crime. 
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BLOCK A 2011-­‐2012 “Taking” must be unlawful – this is an essential part of robbery. If the taking was lawful but misappropriated after the taking, the crime is Estafa or malversation. Ex. Police lawfully seized opium from Chinese individuals, after having possession they misappropriated it, the crime would be Estafa When is unlawful taking complete? a. As to robbery with violence and intimidation – from the moment the offender gains possession of the thing even if offender has had no opportunity to dispose of the same, the unlawful taking is complete. b. As to robbery with force upon things – thing must be taken out of the building. “Taking” – means depriving the offended party of ownership of the thing taken with character of permanency. “Intent to gain” – is presumed from the unlawful taking. Being an internal act, it cannot be established by direct evidence. It must therefore be deduced from the circumstances. *Absence of intent to gain will make the taking of personal property grave coercion. Intent to gain and personal property belonging to another must concur. If the accused with intent to gain, took from another, personal property which turned out to be his own property, there is no robbery. Also, if the accused took personal property from another, believing that it was his own property, there being no intent to gain, there is no robbery. Intimidation – Need not be threat of bodily harm. For instance, closing down the store and paying a fine constitutes enough intimidation. (People v. Palabao) Violence or intimidation must be present before the taking of the personal property. However, it is not necessary that violence be present from the very beginning. Exceptions: When violence results in: (1) homicide, (2) rape, (3) intentional mutilation, or (4) any serious physical injuries punished in paragraphs 1 and 2 of Article 263. The robbery is complexed with any of those cries under 67
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Article 294, even if the taking was already complete when the violence was used by the offender. (“by reason” or “accompanied by”) Employment of violence and intimidation Force upon things against persons Violence or intimidation against persons Force is used either to enter the building or to break doors, wardrobes, chests, or any kind of locked sealed furniture or receptacle inside the building or to force them open outside after taking the same from the building Value of personal property is immaterial, If committed in an inhabited house, public the penalty depends on: building, or edifice devoted for religious (a) result of the violence used worship, the penalty is based on (b) existence of intimidation only (a)value of the property taken (b) WON the offenders carry arms (if committed in an inhabited building only previous condition is applicable) Comparison between Robbery and Theft: Similarities Distinctions Involve taking of transportation Robbery is done with violence or intimidation or with force upon things Taking of personal property Theft is done without the knowledge or consent of the owner. Also, it is without violence, intimidation or force upon things With intent to gain BLOCK A 2011-­‐2012 Section 1 – Robbery with Violence Against or Intimidation of Persons ARTICLE 294: ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS – PENALTIES Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed; or when the robbery shall have been accompanied by rape or intentional mutilation or arson; 2. The penalty of reclusion temporal in its medium period to reclusion perpetua when by reason or on occasion of such robbery, any of the physical injuries penalized in subdivision 1 of Article 263 shall have been inflicted; 3. The penalty of reclusion temporal, when by reason or on occasion of the robbery, any of the physical injuries penalized in subdivision 2 of the article mentioned in the next preceding paragraph, shall have been inflicted. 4. The penalty of prision mayor in its maximum period to reclusion temporal in its medium period, if the violence or intimidation employed in the commission of the robbery shall have been carried to a degree clearly unnecessary for the commission of the crime, or when the course of its execution, the offender shall have inflicted upon any person not responsible for its commission any of the physical injuries covered by sub-­‐divisions 3 and 4 of said Article 263. 5. The penalty of prision correccional in its maximum period to prision mayor in its medium period in other cases. (As amended by R. A. 7659). Acts Punishable: 1. When by reason or on occasion of the robbery, the crime of homicide shall have been committed; 2. When robbery is accompanied by rape or intentional mutilation or arson; 3. When by reason or on occasion of such robbery, any of the physical injuries resulting in insanity, imbecility, impotency, or blindness is inflicted; 68
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ATTY. JOSE ARTURO DE CASTRO When by reason or on occasion of the robbery, any of the 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, a hand, a foot, an arm, or a leg, or the loss of the use of any such member or incapacity for the work in which the injured person is theretofore habitually engaged is inflicted; If the violence or intimidation employed in the commission of the robbery is carried to a degree clearly unnecessary for the commission of the crime; When in the course of its execution, the offender shall have inflicted upon any person not responsible for the commission of the robbery any of the physical injuries in consequence of which the person injured becomes deformed or loses any other member of his body or loses the use thereof or becomes ill or incapacitated for the performance of the work in which he is habitually engaged for more than 90 days or the person injured becomes ill or incapacitated for labor for more than 30 days; If the violence employed by the offender does not cause any of the serious physical injuries defined in Art. 263, or if the offender employs intimidation only. Article 48 does not apply to Art. 294. The crimes defined in this article are special complex crimes. Art. 294 already provides a specific penalty for each. “On the occasion” or “by reason” of the robbery mean that the homicide or serious physical injuries defined must be committed in the course or because of the robbery. A conviction for robbery with homicide requires certitude that the robbery was the main purpose and objective of the criminals and that the killing was merely incidental. Paragraph 1: Robbery with Homicide  “Homicide” is to be understood in its generic sense as to include parricide and murder.  All the homicides or murders are merged in the composite, integrated whole that is robbery with homicide so long as all the killing were perpetrated by reason or on the occasion of the robbery.  If robbery with homicide is committed by a band, the offense would still be robbery with homicide. The circumstance of band is not an element of the 
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BLOCK A 2011-­‐2012 crime and is merely a generic aggravating circumstance which may be offset by mitigating circumstances. No such crime as robbery with murder. Treachery must be considered as a generic aggravating circumstance and not qualifying. Is it necessary that a robbery has actually taken place first, and the homicide is committed on the occasion or by reason thereof? No, it is not required; however, the intent to take personal property belonging to another with intent to gain must precede the killing. Homicide may precede the robbery. Killing the first victim and then afterwards taking the money is robbery with homicide. But the offender must have the intent to take personal property before the killing. “By reason” covers homicide committed before or after the taking of personal property as long as the motive of the offender in killing a person is to deprive the victim of his personal property. Homicide to eliminate an obstacle to the commission of robbery and homicide committed to remove opposition or to suppress evidence are all robbery with homicide. Also, killing a person to escape after the commission of robbery is robbery with homicide – even if the person killed was an innocent bystander or a robber himself. Is it robbery with homicide even if the death of a person supervened by mere accident? It is enough that a homicide resulted by reason or on the occasion of the robbery. When homicide is not proved, the crime is only robbery. When robbery is not proved, the crime is only homicide. All those who took part as principals in the robbery would also be held liable as principals of robbery with homicide although they did not actually take part in the killing, unless it clearly appears that they endeavored to prevent the same (nothing short of a clear showing that they prevented the killing themselves). 69
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Paragraph 2: Robbery with Rape 
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The offender must have the intent to take personal property belonging to another with intent to gain, and such intent must precede the rape. It is not necessary the rape be prior to or simultaneous with the robbery. So the law says, in the definition of the crime, that when the robbery is accompanied by rape or mutilation, etc. But if the rape is committed against a woman in a house other than that where the robbery is committed, the rape should be considered a separate offense. Even if the rape was committed before the taking of property, the accused were guilty of robbery with rape. Rape was not their primary objective. No such crime as robbery with rape. Both crimes cannot be the result of a single act contemplated in Art. 48. Additional rapes will not increase the penalty. Also, there is no law providing that the additional rape/s or homicide/s should be considered as aggravating circumstances. If rape was the primary objective of the accused, and his taking of the jewels of the victim was not with intent to gain but just to have some tokens of her supposed consent to the coition, the accused committed two distinct crimes of rape and unjust vexation. When rape and homicide co-­‐exist in the commission of robbery, the rape is to be considered as an aggravating circumstance. The crime is still designated as robbery with homicide. 
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Example: Tying the victim after wounding him and leaving him tied to the trunk of a tree. The violence need not result in serious physical injuries. All that par. 4 of Art. 294 requires is that the violence be unnecessary for the commission of the robbery. When the violence or intimidation is necessary, par. 4 of Art. 294 is not applicable. Ex: It appears that the beating was for the purpose of compelling him to show the place where he kept his money. What if in the course of the execution of the crime of robbery, one of the offenders inflicted upon another robber, physical injuries which resulted in the latter’s deformity, is the crime robbery with serious physical injuries? The wording of the law as regards this question is “upon any person not responsible for its commission.” It would seem that the penalty in paragraph 4 of Art. 294 should not be applied. The offender would be liable for two crimes, namely: (1) robbery, and (2) serious physical injuries under 263, paragraph 3. The serious physical injuries defined in subdivisions 3 and 4 of Art. 263 must be inflicted “in the course of its execution.” If they were inflicted after the taking of the personal property had been complete, the serious physical injuries mentioned should be considered as separate offense. Requisites of Robbery under the second case of par. 4 of 294 1. That any of the physical injuries defined in paragraphs 3 and 4 of Art. 263 was inflicted in the course of the robbery. 2. That any of them was inflicted upon any person not responsible for the commission of the robbery. Robbery with the use of Violence Against or Intimidation of any person under paragraph 5 of Art. 294 
Paragraph 4: Robbery with Unnecessary Violence and Intimidation (Art. 294 paragraph 4) 
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The robbery under this paragraph is known as simple robbery because the use of violence against any person does not result in homicide, rape, intentional mutilation, or any of the serious physical injuries defined in Art. 263, which may give rise to a special complex crime. When the injury inflicted upon the offended party on the occasion of robbery can be qualified only as less serious physical injuries or slight physical injuries, the crime is that defined and penalized in par. 5 of Art. 294. 70
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ATTY. JOSE ARTURO DE CASTRO Violence or intimidation may enter at any time before the owner is finally deprived of his property. Robbery with Violence or Intimidation “in other cases” referred to in par. 5 is committed by: 1. Snatching money from the hands of the victim and pushing her to prevent her from recovering the seized property. (U.S. v. Samonte) 2. Grabbing pawn ticket from the hands of another and intimidating him. (U.S. v. Blanco)  In Robbery with intimidation, there must be acts done by the accused, which, either, by their own nature or by reason of the circumstances under which they are executed, inspire fear in the person against whom they are directed. The intimidation consists in causing or creating a fear in the mind of a person or in bringing in a sense of mental distress in view of a rise or evil that may be impending really or in imagination. Comparison: Robbery w/ violence Grave threats Grave coercion Intent to gain No intent to gain None Immediate harm Intimidation; promises some future harm or injury Intimidation (effect) is immediate and offended party is compelled to do something against his will (w/n right or wrong) Robbery Bribery The victim did not commit a crime and he is intimidated with arrest and/or prosecution to deprive him The victim has committed a crime and gives money or gift to avoid BLOCK A 2011-­‐2012 of his personal property arrest or prosecution The victim is deprived of his money or property by force or intimidation. He parts with his money or property in a sense voluntarily. ARTICLE 295: ROBBERY WITH PHYSICAL INJURIES, COMMITTED IN AN UNINHABITED PLACE AND BY A BAND, OR WITH THE USE OF FIREARM ONA STREET, ROAD OR ALLEY If the offenses mentioned in subdivisions three, four, and five of the next preceding article shall have been committed in an uninhabited place or by a band, or by attacking a moving train, street car, motor vehicle or airship, or by entering the passenger's compartments in a train or, in any manner, taking the passengers thereof by surprise in the respective conveyances, or on a street, road, highway, or alley, and the intimidation is made with the use of a firearm, the offender shall be punished by the maximum period of the proper penalties. If any of the offense defined in subdivision 3, 4 and 5 of Article 294 is committed: 1. in an uninhabited place 2. by a band 3. attacking a moving train, street car, motor vehicle, or airship or 4. by entering the passengers’ compartment in a train or in any manner taking the passengers thereof by surprise in the respective conveyances 5. on a street, road, highway or alley and the intimidation is made with the use of firearms. The offender shall be punished by the maximum period of the proper penalties in Art. 294.  These five qualifying circumstances must be alleged in the information and proved during trial. 71
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ATTY. JOSE ARTURO DE CASTRO Being qualifying, it cannot be offset by a generic mitigating circumstance. Ex: If robbery by a band is committed in an uninhabited place, “by a band” is qualifying and “uninhabited place” would be generic aggravating circumstance only. This article does not apply: a. When by reason or on occasion of the robbery, the crime of homicide is committed (subdivision 1, Art. 294) b. When the robbery is accompanied by rape or intentional mutilation, or arson (subdivision 2, Art. 294) c. If by reason or on occasion of robbery, any of the serious physical injuries in insanity, imbecility, impotency or blindness is inflicted (subdivision 2, Art. 294) The reason is that this article mentions subdivision 3, 4, and 5 of Art. 294, omitting subdivision 1 and 2. ARTICLE 296: DEFINITION OF A BAND AND PENALTY INCURRED BY THE 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. When any of the arms used in the commission of the offense be an unlicensed firearm, the penalty to be imposed upon all the malefactors shall be the maximum of the corresponding penalty provided by law, without prejudice of the criminal liability for illegal possession of such unlicensed firearms. Any member of a band who is present at the commission of a robbery by the band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the same. Outline of the provisions: 1. When at least four armed malefactors take part in the commission of a robbery, it is deemed committed by a band. 2. When any of the arms used in the commission of the robbery is not licensed, the penalty upon all malefactors shall be the maximum of the 3.
BLOCK A 2011-­‐2012 corresponding penalty provided by law, without prejudice to the criminal liability for illegal possession of such firearms. Any member of the band who was present at the commission of a robbery by a band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the same. Requisites for liability for the acts of the other members of the band: A member of the band is liable for any of the assaults committed by the other members thereof, when the following requisites concur: a. He was a member of the band b. He was present at the commission of a robbery by that band c. The other members committed an assault d. He did not attempt to prevent the assault.  There must be proof that he made an endeavor to prevent the assault committed by another member of the band, in order that he may not be held liable for such assault.  When is the robbery deemed committed by a band? At least four armed persons must take part in the commission of robbery.  When the robbery was not by a band and homicide was not determined by the accused when they plotted the crime, the one who did not participate in the killing is liable for robbery only.  But when there is conspiracy to commit homicide and robbery, all the conspirators, even if less than four armed men, are liable for the special complex crime of robbery with homicide.  Art. 296 is not applicable to principal by induction, who was not present at the commission of the robbery, if the agreement was only to commit robbery. But the principal by induction would be liable for the homicide or other crimes that might have resulted, if he also ordered the killing of a particular person or any one who would resist the robbery, or the commission of other crimes. 72
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ATTY. JOSE ARTURO DE CASTRO Conspiracy was for robbery only but homicide was also committed on the occasion thereof – all members of the band are liable for robbery with homicide unless they can show that they endeavored to prevent the homicide. Proof of conspiracy is not necessary when four or more armed persons committed robbery. Where in the course of the robbery by a band. The offended woman was taken by one of the accused to a place away from the house, where the robbery was committed, and there he raped her without the knowledge of his companions, he alone is guilty of robbery with rape. The use of unlicensed firearm is not a special aggravating circumstance In robbery with rape or intentional mutilation, and in robbery with physical injuries defined in subdivision 1 of Article 263. In robbery defined in any of the paragraphs 3, 4, and 5 of Art. 294, perpetrated by a band using unlicensed firearms, the penalty is the maximum of the maximum period of the proper penalty. It is not an aggravating circumstance. 
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BLOCK A 2011-­‐2012 As long as homicide is committed by reason or on occasion of an attempted or frustrated robbery, the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed. If in an attempted or frustrated robbery, the killing of the victim is qualified by treachery or relationship, the proper penalty for murder or parricide shall be imposed because it is more severe. Attempted or Frustrated Robbery with homicide are special complex crimes not governed by Art. 48, but by the special provisions of Arts. 294 and 297, respectively. When is Art. 48 applicable in robbery? If attempted or frustrated robbery with serious physical injuries, Art. 48 is applicable, since the felony would fall neither under Art. 294 which covers consummated robbery with homicide nor under Art. 297 which covers attempted or frustrated robbery with homicide. There is only one crime of attempted robbery with homicide even if slight physical injuries were inflicted on other persons on the occasion or by reason of the robbery. ARTICLE 298: EXECUTION OF DEEDS BY MEANS OF VIOLENCE OR INTIMIDATION. ARTICLE 297: ATTEMPTED AND FRUSTRATED ROBBERY COMMITED UNDER CERTAIN CIRCUMSTANCES 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 documents, shall be held guilty of robbery and punished by the penalties respectively prescribed in this Chapter. When by reason or on occasion of an attempted or frustrated robbery a homicide is committed, the person guilty of such offenses shall be punished by reclusion temporal in its maximum period to reclusion perpetua, unless the homicide committed shall deserve a higher penalty under the provisions of this Code. 
The term “homicide” in Art. 297 is used in a generic sense. Hencem it includes multiple homicides, murder, parricide, or even infanticide. Elements: a. That the offender has intent to defraud another. b. That the offender compels him to sign, execute, or deliver any public instrument or document. c. That the compulsion is by means of violence or intimidation. 73
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ATTY. JOSE ARTURO DE CASTRO If the violence used resulted in the death of the person to be defrauded, the crime is robbery with homicide and the penalty as prescribed in par. 1 of Art. 294 shall be imposed. If the execution of deeds by means of violence is only in the attempted or frustrated stage and the violence resulted in the death of the person to be defrauded, the penalty prescribed in Art. 297 shall be imposed. Must the document be public? The adjective “public” describes the word “instrument” only. Hence, this article applies even if the document signed, executed or delivered is a private or commercial document. Art. 298 is not applicable if the document is void. When the offended party is under obligation to sign, execute, or deliver the document under the law, there is no robbery. Section 2 – Robbery by use of force upon things Robbery by the use of force upon things is committed only when either: 1. The offender entered a house or building by any of the means specified in Art. 299 or Art. 302, or 2. Even if there was no entrance by any of those means, he 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. Two kinds of robbery with force upon things: 1. Robbery in an inhabited house or public building or edifice devoted to religious worship. (Art.299) 2. Robbery in an uninhabited place or in a private building (Art. 302) BLOCK A 2011-­‐2012 One essential requisite of robbery with force upon things under Art. 299 and 302 is that the malefactor should enter the building or dependency where the object to be taken is found. ARTICLE 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, shall be punished by reclusion temporal, if the value of the property taken shall exceed 250 pesos, and if: (a) The malefactors shall enter the house or building in which the robbery was committed, by any of the following means: 1. Through a opening not intended for entrance or egress. 2. By breaking any wall, roof, or floor or breaking any door or window. 3. By using false keys, picklocks or similar tools. 4. By using any fictitious name or pretending the exercise of public authority. Or if — (b) The robbery be committed under any of the following circumstances: 1. By the breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle; 2. By taking such furniture or objects to be broken or forced open outside the place of the robbery. When the offenders do not carry arms, and the value of the property taken exceeds 250 pesos, the penalty next lower in degree shall be imposed. The same rule shall be applied when the offenders are armed, but the value of the property taken does not exceed 250 pesos. When said offenders do not carry arms and the value of the property taken does not exceed 250 pesos, they shall suffer the penalty prescribed in the two next preceding paragraphs, in its minimum period. If the robbery be committed in one of the dependencies of an inhabited house, public building, or building dedicated to religious worship, the penalties next lower in degree than those prescribed in this article shall be imposed. 74
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Robbery with force upon things under Subdivision A: Elements: 1. That the offender entered (a) an inhabited place, 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 d. By using any fictitious name or pretending the exercise of public authority 3. That once inside the building, the offender took personal property belonging to another with intent to gain.  The offender must “enter the house or building”. If the offender merely inserted his hand through an opening in the wall or used a pole to get the clothes inside the room, the crime is theft, not robbery.  The facts must show that the accused entered the dwelling house or building by any of the means enumerated in Subdivision A of Art. 299. The reason for this ruling is that one of the elements of robbery under art. 299 states that the entrance is effected by any of the means described in Subdivision A.  Where the manner of entrance was not proven, the crime is theft and not robbery. This ruling applies where both the outside door and window are open, so that it is possible that the accused might have passed through the door.  In entering the building, the offender must have an intention to take personal property. If there is no evidence to show that the intention of the accused was to commit robbery, the crime committed is attempted trespass to dwelling. 
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BLOCK A 2011-­‐2012 The place entered must be a house or building. An automobile is not a house or a building. Inhabited house is any shelter, ship, or vessel constituting the dwelling of one or more persons even though the inhabitants thereof are temporarily absent when the robbery is committed. 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. What makes a building public is not its inauguration but the fact the State or any of its agencies having title thereto. Any of the four means described in Subdivision A of Art. 299 must be resorted to by the offender to enter a house or building, not to get out. Through an opening not intended for entrance or egress a. The window or a hole through the wall already in existence is not intended for entrance or egress. If the culprit enters through such opening and once inside he takes personal property belonging to the occupants therein, the crime is robbery. b. The whole body of the culprit must be inside the building to constitute entering. When only his hand is introduced, there is no robbery. By breaking any wall, roof, or floor, or breaking any door or window a. The force used must be actual. b. The wall must be an outside wall and not a wall between rooms because the breaking must be for the purpose of entering the house or building. c. The outside door must be broken. Where the door itself was intact, and entered by removing the hinges or hooks, the crime was simple theft. Where the entrance is effected through a means intended for entrance or egress, there must be an actual breaking or smashing. 75
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By using false keys, picklocks, or similar tools a. 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. Picklocks are those specially adopted to the commission of the crime of robbery. b. The genuine key must be stolen, not taken by force or with intimidation. Where the offenders intimidated the inmates, the crime was robbery with intimidation of persons. c. The false key or picklock must be used to enter the building and not open a trunk or open the drawer of a cabinet. d. It is only theft when the false key is used to open wardrobe or locked receptacle or drawer or inside door. The use of fictitious name or the act of pretending to exercise authority must be to enter the building a. Ex: When robbers represented themselves as detectives by displaying metal badges and once inside, took the money of the offended party. Using fictitious names must be the efficient cause of the opening by the offended party of the door of his house to the accused. Robbery with force upon things under Subdivison 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. 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. BLOCK A 2011-­‐2012 
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Each subdivision is independent of the other. Hence, it is not necessary that the offender entered the building by any of the means mention in Subdivision A. Thus, a guest in the house of the offended party may be guilty of this kind of robbery if he breaks open a locked wardrobe or chest inside that house or if he takes it outside to be broken and once broken, takes the personal property. Breaking or destroying the keyhole of the door of an aparador is virtually destroying a “locked furniture”. A person who carries away a sealed box for the purpose of breaking the same and taking out its contents outside the place of robbery is guilty of consummated robbery even though he does not success in opening the box. A person who opens by force a certain locked receptable which has been confided into his custody and takes the money therein, is guilty of Estafa and not robbery, because the accused does not commit the act in the house of the offended party or does not take the receptacle out from the house of its owner. The penalty for robbery with force upon things in inhabited house, public building, or edifice devoted to religious worship depends on the value of property taken and on whether or not offender carries arm. a. The arm carried must not be used to intimidate. b. The liability for carrying arms while robbing an inhabited house is extended to each of the offenders who take part in the robbery, even if some of them do not carry arms. c. The reason why a heavier penalty is imposed for robbery in a dwelling house is that the inhabitants might suffer bodily harm during the commission of the robbery. 76
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO ARTICLE 300. ROBBERY IN AN UNINHABITED PLACE AND BY A BAND. The robbery mentioned in the next preceding article, if committed in an uninhabited place and by a band, shall be punished by the maximum period of the penalty provided therefor. The term "public building" includes every building owned by the Government or belonging to a private person not included used or rented by the Government, although temporarily unoccupied by the same. 
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Robbery in an inhabited house, public building or edifice devoted to religious worship is qualified when committed by a band and in an uninhabited place. The inhabited house, public building, or edifice devoted to religious worship must be located in an uninhabited place. Robbery with force upon things (Art. 299), in order to be qualified, must be committed in an uninhabited place and by a band (Art. 300); while robbery with violence against or intimidation of persons must be committed in an uninhabited place or by a band. (Art. 295). 
If the information alleges that the robbery was committed in a garage, that allegation is not equivalent to a charge that the robbery was committed in a dependency of an inhabited house for a garage may or may not be a dependency of the house. It will only be a dependency if the three requisites mentioned are present. ARTICLE 301. WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING OR BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES. All interior courts, corrals, waterhouses, granaries, barns, coach-­‐houses, stables or other departments or inclosed places contiguous to the building or edifice, having an interior entrance connected therewith, and which form part of the whole, shall be deemed dependencies of an inhabited house, public building or building dedicated to religious worship. Orchards and other lands used for cultivation or production are not included in the terms of the next preceding paragraph, even if closed, contiguous to the building and having direct connection therewith. Notwithstanding the fact that for a period of almost a month, the house was actually uninhabited, it is still robbery in an inhabited house because the building in question was ordinarily inhabited and intended as a dwelling. “Dependencies” are all interior courts, corrals, warehouses, granaries or inclosed places contiguous to the building or edifice, having an interior entrance connected therewith, and which form part of the whole. (Art. 301 par. 2). Three requisites: a. Must be contiguous to the building; b. Must have an interior entrance connected therewith c. Must form part of the whole Inhabited house means any shelter, ship or vessel constituting the dwelling of one or more persons, even though the inhabitants thereof shall temporarily be absent therefrom when the robbery is committed. BLOCK A 2011-­‐2012 
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Ex: A small store located on the ground floor of the house, belonging to the owner of the store Orchards and lands used for cultivation, not dependencies ARTICLE 302. ROBBERY IS AN UNINHABITED PLACE OR IN A PRIVATE BUILDING. Any robbery committed in an uninhabited place or in a building other than those mentioned in the first paragraph of Article 299, if the value of the property taken exceeds 250 pesos, shall be punished by prision correccional if any of the following circumstances is present: 77
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 1. If the entrance has been effected through any opening not intended for entrance or egress; 2. If any wall, roof, flour or outside door or window has been broken; 3. If the entrance has been effected through the use of false keys, picklocks or other similar tools; 4. If any dorm, wardrobe, chest or by sealed or closed furniture or receptacle has been broken; 5. If any closed or sealed receptacle, as mentioned in the preceding paragraph, has been removed even if the same to broken open elsewhere; When the value of the property takes does not exceed 250 pesos, the penalty next lower in degree shall be imposed. In the cases specified in Articles 294, 295, 297, 299, 300, and 302 of this Code, when the property taken is mail matter or large cattle, the offender shall suffer the penalties next higher in degree than those provided in said articles. Elements: 1. That the offender entered an uninhabited place or a building which was not a dwelling house, not a public building, or not an edifice devoted to religious worship. 2. That any of the following circumstances was present: a. The 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; e. A closed or sealed receptacle was removed, even if the same be broken open elsewhere. 3. That with intent to gain, the offender took therefrom personal property belonging to another. BLOCK A 2011-­‐2012 
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The “uninhabited place” mentioned in Art. 302 is a building. A warehouse is considered an uninhabited place. “Building other than those mentioned in the first paragraph of Art.299” means that the place where the robbery is committed is not an inhabited house or public building or edifice devoted to religious worship. “Building” includes any kind of structure used for storage or safekeeping of personal property, such as (a) freight car and (b) warehouse. Paragraphs Nos. 4 and 5 of Art. 302 do not require that the offender must have entered the uninhabited building through an opening not intended for entrance or egress, or after breaking a wall, roof, floor, door, or window, or through the use of false keys, picklocks, or other similar tools. Receptacle must be “closed” or “sealed”. Is the mere removal of closed or sealed receptacle sufficient under par. 5 of Art. 302? No. This kind of robbery requires at least an intention to open it by force. The penalty is based only on value of property taken. The offender being armed is not important under this article for the reason that there is no person who can be injured or killed. ARTICLE 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, the culprit shall suffer the penalty next lower in degree than that prescribed in said articles. 
When the robbery described in Art. 299 and 302 consists in the 78
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO taking of cereals, fruits or firewood, the penalty next lower in degree than that prescribed in the articles shall be imposed. 
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Next lower in degree only when the robbery is committed by the use of force upon things, without violence against or intimidation of any person, in an inhabited house, public building, or edifice devoted to religious worship (Art. 299) or in an uninhabited place or private building. Even if the offender took from the camarin about 15 sacks of palay, since the robbery committed with force upon things was accompanied with violence against or intimdation of persons, Art. 303 is not applicable. The offender should be punished under Art. 294. The term "false keys" shall be deemed to include: 1. The tools mentioned in the next preceding articles. 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. 
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ARTICLE 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, shall be punished by arresto mayor in its maximum period to prision correccional in its minimum period. BLOCK A 2011-­‐2012 Possession of false keys in paragraphs 2 and 3 are not punishable. Ex: A proposed to B, a porter of a warehouse, to get some cases if whisky from the warehouse, offering to pay P16 a case. A suggested to B that he should take an impression of the key of the warehouse in soap paste and have another made by a locksmith. With the key made from the impression B was able to open the warehouse from which he took the cases of whisky. The same penalty shall be imposed upon any person who shall make such tools. If the offender be a locksmith, he shall suffer the penalty of prision correccional in its medium and maximum periods. Elements of illegal possession of picklocks or similar tools: 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. 3. That the offender does not have lawful cause for such possession.  Actual use of picklocks or similar tools, not necessary in illegal possession thereof.  If the person who makes such tools is a locksmith, the penalty is higher. ARTICLE 305. FALSE KEYS. 79
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Chapter 2: Brigandage ARTICLE 306. WHO ARE BRIGANDS; PENALTY. 
When more than three armed persons form a band of robbers for the purpose of committing robbery in the highway, or kidnapping persons for the purpose of extortion or to obtain ransom or for any other purpose to be attained by means of force and violence, they shall be deemed highway robbers or brigands. 
Persons found guilty of this offense shall be punished by prision mayor in its medium period to reclusion temporal in its minimum period if the act or acts committed by them are not punishable by higher penalties, in which case, they shall suffer such high penalties. 
If any of the arms carried by any of said persons be an unlicensed firearms, it shall be presumed that said persons are highway robbers or brigands, and in case of convictions the penalty shall be imposed in the maximum period. 
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Brigandage is commited by more than three armed persons who form a band of robbers for the purpose of committing robbery in the highway or kidnapping persons for the purpose of extortion or to obtain ransom, or for any other purpose to be attained by means of force or violence. 
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There is brigandage when a. There be at least four armed persons b. They formed a band of robbers 
The purpose is any of the following: a. To commit robbery in the highway; or b. To kidnap persons for the purpose of extortion or to obtain ransom; or c. To attain by means of force and violence any other purpose. BLOCK A 2011-­‐2012 Must be a band of robbers. A band of dissidents whose purpose is to attain by means of force and violence, the destruction of army installations, cannot be convicted of brigandage. It would not be necessary to show that the band actually committed highway robbery in order to convict them. If the accused were members of a lawless band and that the firearms possessed by them were unlicensed, it is to be presumed that they were highway robbers or brigands. All are presumed highway robbers or brigands, if any of them carries unlicensed firearm. Brigandage may be committed without the use of firearms. The term “armed” covers arms and weapons in general, not necessarily firearms. The main objective in enacting this law is to prevent the formation of such band. The only things to prove are: a. That there is an organization of more than three armed persons forming a band of robbers. b. That the purpose of the band is any of those enumerated in Art. 306 c. That they went upon the highway or roamed upon the country for that purpose. d. That the accused is a member of such band. 
When the armed band, previous to kidnapping and taking personal property of the offended party, had kidnapped and looted other persons on two other occasions, the band was held to be that of brigands. The previous activities of the armed band were considered, because they proved the purpose of the band. 80
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ATTY. JOSE ARTURO DE CASTRO “Highway” includes streets within as well as roads outside the cities. If the brigands only committed robbery with homicide or kidnapping with a demand for ransom, which is penalized with higher penalty, they shall be prosecuted for robbery with homicide or kidnapping. Brigandage Robbery in Band The purpose is any of the ff: The purpose of the offenders is only to 1) To commit robbery in the commit robbery, not necessarily in the highway highway. 2) to kidnap persons for the purpose of extortion or to If the agreement was to commit only a obtain ransom particular robbery, the offense is not 3) for any other purpose to be brigandage attained by means of force and violence Mere formation of a band for any of the It is necessary to prove that the band purposes mentioned in the law is actually committed robbery sufficient, as it would not be necessary to show that the band actually committed robbery in the highway. BLOCK A 2011-­‐2012 Elements: 1. That there is a band of brigands. 2. That the offender knows the band to be of brigands. 3. That the offender does any of the following acts: a. He in any manner aids, abets or protects such band of brigands; or b. He gives them information of the movements of the police or other peace officers of the Government; or c. He acquires or receives the property taken by such brigands.  It shall be presumed that the person performing any of the acts provided in this article has performed them knowingly, unless the contrary is proven.  Any person who aids or protects highway robbers or abets the commission of highway robbery or brigandage shall be considered as an accomplice. Chapter 3: Theft ARTICLE 308. WHO ARE LIABLE FOR THEFT. Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter's consent. ARTICLE 307. AIDING AND ABETTING A BAND OF BRIGANDS. Theft is likewise committed by: Any person knowingly and in any manner aiding, abetting or protecting a band of brigands as described in the next preceding article, or giving them information of the movements of the police or other peace officers of the Government (or of the forces of the United States Army), when the latter are acting in aid of the Government, or acquiring or receiving the property taken by such brigands shall be punished by prision correccional in its medium period to prision mayor in its minimum period. 1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner; It shall be presumed that the person performing any of the acts provided in this article has performed them knowingly, unless the contrary is proven. 2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; and 3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products. 81
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ATTY. JOSE ARTURO DE CASTRO Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter’s consent. The following are liable for theft: a. Those who, (a) with intent to gain, (b) but without violence against or intimidation of persons nor force upon things, (c) take, (d) personal property, (e) of another, (f) without the latter’s consent. b. Those who, (a) having found lost property, (b) fail to deliver the same to the local authorities or to its owner. c. Those who, (a) after having maliciously damaged the propert of another, (b) remove or make use of the fruits or object of the damage caused by them. d. Those who (a) enter an inclosed estate or a field where (b) trespass is forbidden or which belongs to another and, without the consent of its owner, (c) hunt or fish upon the same or gather fruits, cereals or other forest or farm products. a.
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Elements of theft: a. That there be taking of personal property b. That said property belongs to another c. That the taking be done with intent to gain d. That the taking be done without the consent of the owner e. That the taking be accomplished without the use of violence against or intimidation of persons or use of force upon things. 
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What distinguishes theft from robbery is that in theft, the offender does not use violence or intimidation or does not enter a house or building through any of the means in Art. 299 or Art. 302 in taking personal property of another with intent to gain. It is not an indispensable element of theft that the thief carry, more or less far away, the thing taken by him from its owner. The theft is consummated when the offender is able to: Place the thing taken under his control and in such a situation as he could dispose of it at once; or From the moment the offender had full possession of the things, even if he did not have an opportunity to dispose of the same. 
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“Taking” in theft must have the character of permanency. By gain is meant not only the acquisition of a thing useful to the purposes of life but also the benefit which in any other sense may be derived or expected from the act which is performed (People v. Fernandez). The element of “taking” means the act of depriving another of the possession and dominion of a movable thing coupled with the intention, at the time of the “taking”, of withholding it with the character of permanency (People v. Galang) The offender must have the intention of placing the property taken under his control and of making himself the owner thereof If there is no taking of personal property, the crime of theft is not committed. Personal Property includes electricity and gas because electricity is valuable merchandise bought and sold like other personal property and is capable of appropriation by another. Intent to gain is presumed from the unlawful taking of personal property belonging to another. But if a person takes personal property from another believing it to be his own, presumption of intent to gain is rebutted and, therefore, he is not guilty of theft. It is not necessary that there was real or actual gain. It is enough that the accused, on taking them, was actuated by the desire or intent to gain. There is no theft when the taking of personal property is with the consent of its owner. 82
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ATTY. JOSE ARTURO DE CASTRO For robbery to exist, it is necessary that there should be a taking against the will of the owner; and for theft, it sufficed that consent on the part of the owner is lacking. The taking must be accomplished without violence against or intimidation of persons. Unless the force upon things is employed to enter a building, the taking of the personal property belonging to another with intent ti gain is theft and not robbery. When a person has in possession, part of the recently stolen property, he is presumed to be the thief of all, in the absence of satisfactory explanation of his possession. But this rule applies only when all the goods were lost at the same time, in the same place, and on the same occasion. Paragraph No.1, Art. 308: Finder of lost property a. “Lost property” embraces loss by stealing b. How to prove this kind of theft: i. The time of the seizure of the thing; ii. That it was a lost property belonging to another; iii. That the accused having had the opportunity to return or deliver the lost property to its owner or to local authorities, refrained from doing so. c. This is not limited to actual finder. Ex: A found a purse containing money and jewelry left by a passenger. A delivered it to B, a policeman, with a request to give it to C, the owner thereof. B did not give it to C and appropriated it. B is liable for theft, because although B is not a finder in fact, he is a finder in law. d. The law does not require knowledge of the owner of the lost property. e. Intent to gain is inferred from deliberate failure to deliver the lost property to the proper person. BLOCK A 2011-­‐2012 
Paragraph No.2, Art. 308: Removing or making use of fruits or object of property maliciously damaged a. Ex: A defendant who shot, killed and slaughtered the cattle of another, which had destroyed defendant’s plantation, and distributed the meat among himself and his neighbors 
Paragraph No.3, Art. 308: Hunting, fishing, or gathering fruits, etc., in enclosed estate Elements: a. There is an enclosed estate or a field where trespass is forbidden or which belongs to another; b. The offender enters the same c. The offender hunts or fishes upon the same or gathers fruits, cereals, or other forest or farm products in the estate or field; and d. The hunting or fishing or gathering of products is without the consent of the owner. If the fish is taken from the fishpond or fishery, it is qualified theft. ARTICLE 309. PENALTIES. Any person guilty of theft shall be punished by: 1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the thing stolen exceeds the latter amount the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. 2. The penalty of prision correccional in its medium and maximum periods, if the value of the thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos. 83
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 3. The penalty of prision correccional in its minimum and medium periods, if the value of the property stolen is more than 200 pesos but does not exceed 6,000 pesos. 4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value of the property stolen is over 50 pesos but does not exceed 200 pesos. 5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos. 6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos. 7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provision of any of the five preceding subdivisions shall be made applicable. 8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family. Basis of penalty in theft: 1. The value of the thing stolen and in some cases 2. The value and also the nature of the property taken, or 3. The circumstances or causes that impelled the culprit to commit the crime. ARTICLE 310. QUALIFIED THEFT. The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of the plantation or fish taken from a fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic erruption, or any BLOCK A 2011-­‐2012 other calamity, vehicular accident or civil disturbance. (As amended by R.A. 120 and B.P. Blg. 71. May 1, 1980). Theft is qualified – 1. If committed by a domestic servant 2. If committed with grave abuse of confidence 3. If the property stolen is a (a) motor vehicle, (b) mail matter, or (c) large cattle 4. If the property stolen consists of coconuts taken from the premises of a plantation 5. If the property stolen is fish taken from a fishpond or fishery 6. If property is taken on the occasion of fire, earthquake, typhoon volcanic eruption, or any other calamity, vehicular accident or civil disturbance.  When the offender is a domestic servant, it is not necessary to show that he committed the crime with grave abuse of confidence.  In the second kind of qualified theft, there must be allegation in the information and 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, which the accused abused.  Theft by housemate is not always qualified. The abuse of confidence here is not necessarily grave.  The confidence gravely abused must be that existing between the offended party and the offender.  The term “motor vehicle” includes all vehicles propelled by power, other than muscular power.  When the purpose of taking the car is to destroy by burning it, the crime is arson. 84
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ATTY. JOSE ARTURO DE CASTRO Theft of motor vehicle is punished under Rep. Act No.6539 or the Anti-­‐
Carnapping Act of 1992. This law now covers the unlawful taking of motor vehicles. What makes the theft of mail matter qualified is the fact that the subject thereof is mail matter, regardless of whether the offender is a postal employee or a private individual. The word “cattle” is defined as including horses, asses, mules, sheep, goats and swine. ARTICLE 311. THEFT OF THE PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM. If the property stolen be any property of the National Library or the National Museum, the penalty shall be arresto mayor or a fine ranging from 200 to 500 pesos, or both, unless a higher penalty should be provided under other provisions of this Code, in which case, the offender shall be punished by such higher penalty. 
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Under this article, the penalty is fix without regard to the value of the property of the National Library or National Museum But if the crime is committed with grave abuse of confidence, the penalty for qualified theft shall be imposed. Chapter 4: Usurpation ARTICLE 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, in addition to the penalty incurred for the acts of violence BLOCK A 2011-­‐2012 executed by him, shall be punished by a fine from 50 to 100 per centum of the gain which he shall have obtained, but not less than 75 pesos. If the value of the gain cannot be ascertained, a fine of from 200 to 500 pesos shall be imposed. Acts punishable: 1. By taking possession of any real property belonging to another by means of violence against or intimidation of persons. 2. By usurping any real rights in property belonging to another by means of violence against or intimidation of persons. Elements: 1. That the offender takes possession of any real property or usurps any real rights in property. 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 usurping real rights in property. 4. That there is intent to gain.  The real property or real rights must belong to another.  Ex. of Art. 312: The accused, who had lost the case in a cadastral proceeding, took possession of the land adjudicated in favor of the offended party and harvested the palay, by means of threat and intimidation.  There is only civil liability if there is no violence or intimidation in taking possession of real property.  Violence or intimidation must be the means used in occupying real property or usurping real right belonging to another. Art. 312 does not apply when the violence or intimidation took place subsequent to the entry into the property.  Stubborn refusal of the accused to vacate the land in open 85
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO defiance of the write of execution issued, does not constitute usurpation in Art. 312 because the accused did not secure possession of the land by means of violence or intimidation. Usurpation Theft/Robbery There is occupation or There is taking or asportation. usurpation. Real property or real right is involved Personal property is taken In both, there is intent to gain. ARTICLE 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, shall be punished by arresto menor or a fine not exceeding 100 pesos, or both. Elements: 1. That there be boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same. 2. That the offender alters said boundary marks.  Intent to gain and fraudulent intent are not necessary  The word “alter” has a general and indefinite meaning. Any alteration of boundary marks is enough to constitute the material element of the crime. Chapter 5: Culpable Insolvency BLOCK A 2011-­‐2012 Any person who shall abscond with his property to the prejudice of his creditors, shall suffer the penalty of prision mayor, if he be a merchant and the penalty of prision correccional in its maximum period to prision mayor in its medium period, if he be not a merchant. Elements: 1. That the offender is a debtor; that is, he has obligation due and payable 2. That he absconds with his property. 3. That there be prejudice to his creditors.  Actual prejudice is required. Fraudulent insolvency requires malice.  If the accused is a merchant, a higher penalty shall be imposed.  The person prejudiced must be the creditor.  Distinguished from the Insolvency Law: The Insolvency Law requires for its application that the criminal act should have been committed after the institution of insolvency proceedings. Under Art. 314, there is no such requirement. Chapter 6: Swindling and Other Deceits ARTICLE 315. SWINDLING (ESTAFA). Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by: 1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed under the provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. ARTICLE 314: FRAUDULENT INSOLVENCY 86
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos; 3rd. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period if such amount is over 200 pesos but does not exceed 6,000 pesos; and 4th. By arresto mayor in its maximum period, if such amount does not exceed 200 pesos, provided that in the four cases mentioned, the fraud be committed by any of the following means: 1. With unfaithfulness or abuse of confidence, namely: (a) By altering the substance, quantity, or quality or anything of value which the offender shall deliver by virtue of an obligation to do so, even though such obligation be based on an immoral or illegal consideration. (b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property 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, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.chan robles virtual law library BLOCK A 2011-­‐2012 (c) 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. In this case, the offender shall be punished by the maximum period of the penalty. (d) [By post-­‐dating a check, or issuing a check in payment of an obligation when the offender therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack of insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act. (As amended by R.A. 4885, approved June 17, 1967.)] (e) By obtaining any food, refreshment or accommodation at a hotel, inn, restaurant, boarding house, lodging house, or apartment house and the like without paying therefor, with intent to defraud the proprietor or manager thereof, or by obtaining credit at hotel, inn, restaurant, boarding house, lodging house, or apartment house by the use of any false pretense, or by abandoning or surreptitiously removing any part of his baggage from a hotel, inn, restaurant, boarding house, lodging house or apartment house after obtaining credit, food, refreshment or accommodation therein without paying for his food, refreshment or accommodation. 3. Through any of the following fraudulent means: (c) By taking undue advantage of the signature of the offended party in blank, and by writing any document above such signature in blank, to the prejudice of the offended party or of any third person. (a) By inducing another, by means of deceit, to sign any document. 2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud: (c) By removing, concealing or destroying, in whole or in part, any court record, office files, document or any other papers. (a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits. (b) By altering the quality, fineness or weight of anything pertaining to his art or business. (b) By resorting to some fraudulent practice to insure success in a gambling game. Elements of Estafa in general: a. That the accused defrauded another (a) by abuse of confidence, or (b) by means of deceit b. That damage or prejudice capable of pecuniary estimation is caused to the offended party or third person 87
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ATTY. JOSE ARTURO DE CASTRO First element covers three ways of committing Estafa:  With unfaithfulness or abuse of confidence  By means of false pretenses or fraudulent acts  Through fraudulent means 
Deceit – not an essential requisite of Estafa with abuse of confidence 
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Second element – basis of the penalty a. It is necessary that the damage or prejudice be capable of pecuniary estimation – basis of the penalty If there is no deceit, no abuse of confidence – no Estafa, just civil liability Element of damage may consist in a. The offended party being deprived of his money or property, as result of the defraudation b. Disturbance in property rights c. Temporary prejudice The crime of Estafa is not obliterated by acceptance of the offended property of a promissory note The accused cannot be convicted of Estafa with abuse of confidence under an information alleging Estafa by means of deceit FIRST TYPE: WITH UNFAITFULNESS OR ABUSE OF CONFIDENCE A. ESTAFA WITH UNFAITHFULNESS Elements: (OAD) a. That the offender has an onerous obligation to deliver something of value b. That he alters its substance, quantity, or quality c. That damage or prejudice is caused to another  “By virtue of an onerous obligation” – the delivery of anything of value must be by virtue of an onerous obligation to do so  Thus, if the thing delivered had not been fully or partially paid, there is no Estafa since no damage is caused 
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BLOCK A 2011-­‐2012 Altering the substance, quality, or quantity (examples) a. Substance o Delivering molasses instead of the opium promised b. Quantity o Delivering 98 instead of 100 shirts promised c. Quality o Delivering poor class instead of the first class rice promised When there is no agreement as to the quality – the delivery of the thing not acceptable to the complainant is not Estafa Even though such obligation be based on an immoral or illegal consideration – the crime of Estafa may arise even if the thing to be delivered is not a subject of lawful commerce, such as opium B. ESTAFA WITH ABUSE OF CONFIDENCE Elements: a. That money, goods, or other personal property be received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same b. That there be misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt c. That such misappropriation or conversion or denial is to the prejudice of another d. That there is a demand made by the offended party th
Note: 4 element is not necessary when there is evidence of misappropriation of the goods by the defendant  Check is included in the word “money”  Money, goods, or other personal property must be received by the offender (if taken without consent of the owner, the crime maybe theft, not Estafa) 88
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO BLOCK A 2011-­‐2012 
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Must be received under certain kinds of transaction transferring judicial possession to him – acquisition of both physical and juridical possession of the thing received a. In trust b. On commission c. For administration “Juridical possession” – possession which gives the transferee a right over the thing which the transferee may set up against the owner  When the delivery of a chattel has not the effect of transferring the juridical possession, or title, it is presumed that the possession of, and title to, the thing so delivered remain in the owner Illustration a. In trust – instead of returning something left in trust with them, they appropriated it to their own use (e.g. failure to turn over to the bank the proceeds of the sale of goods covered by trust receipts) b. On commission – c. For administration – when appointed to the court to administer the property of the deceased, offender misappropriated the money for his personal benefit The phrase “or under any other obligation involving the duty to make delivery of, or to return the same” includes quasi-­‐contracts and certain contracts of bailment  In quasi contracts and contracts of bailment, juridical possession is passed (they also require the return of the same thing received) Obligation to return or deliver the thing – must be CONTRACTUAL without transferring to the accused the ownership of the thing received When ownership of the thing is transferred to the person who has received it, his failure to return it will give rise to civil liability only 
When transaction of purchase and sale fails – no Estafa if the accused refused to return the advance payment 
When the money or other personal property received by the accused is not to be used for a particular purporse or to be returned – not Estafa When the thing is received under a contract of sale on credit – no Estafa 
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Criminal liability for Estafa is not affected by novation of contract  However, novation of contract from one of agency to one of sale, or to one of loan, relieves defendant from incipient criminal liability under the first contract nd
2 element of Estafa with abuse of confidence (three ways of committing) a. Misappropriating the thing received b. Converting the thing received c. Denying that the thing was received  Estafa by misappropriation, conversion  Estafa by misappropriation does not make any distinction between temporary and permanent misappropriation – as long as there was misappropriation, there is Estafa  Conversion – presupposes that the thing has been devoted to a purpose or use different from that agreed upon  Example of Estafa by conversion – attempts to dispose of the property of another without right  Withholding application by agent of money received – must be judged on a case-­‐to-­‐case basis (e.g. cannot be indicted for Estafa if there was good faith to retain the money for the purpose of necessary protection)  Right of agent to deduct commission from amounts collected o If authorized – no Estafa o Otherwise – Estafa  Estafa by denying having received the thing 89
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ATTY. JOSE ARTURO DE CASTRO Some principles in Estafa  NO Estafa through negligence  Gravity of the crime – determined on the basis of the amount not returned before the institution of the criminal action Theft vs. Estafa with Abuse of Confidence Example: A borrowed a ring from B. When B asked A to return it, the latter denied having received it -­‐-­‐-­‐ Estafa rd
3 element of Estafa with abuse of confidence – prejudice caused  Gain for the offender is not necessary – Estafa may still be charged even if there was no benefit  “To the prejudice of another” – not necessarily of the owner of the property; it is immaterial whether the loss was suffered by the owner or by a third person  Partnership – liability of partners for Estafa • Partners are not liable for Estafa of money or property received for the partnership when the business commenced and profits accrued • Failure of a partner to account for partnership funds may give rise to only a civil obligation o Exception: if a partner misappropriates the share of another in the profits – Estafa through misappropriation o Exception: when the money or property had been received for a specific purpose and but was misappropriated -­‐ Estafa • A co-­‐owner is not liable for Estafa o Exception: he is liable if, after the termination of the co-­‐
ownership, he misappropriates the things which has become the exclusive property of the other 4th element of Estafa with abuse of confidence – demand o This is the only kind of Estafa wherein demand may be required  Demand is not required by law – but it is NECESSARY because failure to account, upon demand, is circumstantial evidence of misappropriation  Presumption of misappropriation -­‐ arises when explanation of the accused is absolutely devoid of merit BLOCK A 2011-­‐2012 Theft Material possession Offender takes the thing The owner expects an immediate return Estafa Juridical possession Offender receives the thing The owner does not expect an immediate return – subject to agreement *Exception – servant, domestic, or employee who misappropriates the thing he received from his master or employer is not guilty of Estafa (juridical possession remains in the owner) *Selling the thing received to be pledged for the owner is theft, when the intent to appropriate existed at the time when it was received Estafa with Abuse of Confidence vs. Malversation Estafa Malversation Offenders are entrusted with funds or property Continuing offenses Always private funds or property Usually public funds or property Offender is a private individual or a Offender is a public officer public officer not accountable for accountable for public funds or public funds or property property Committed by misappropriating, Committed by appropriating, taking converting, or denying or misappropriating or consenting, negligence 90
CRIMINAL LAW II FINALS REVIEWER C.
ATTY. JOSE ARTURO DE CASTRO ESTAFA BY TAKING UNDUE ADVANTAGE OF THE SIGNATURE OF THE OFFENDED PARTY IN BLANK Elements: 1. That the paper with the signature of the offended party be in blank 2. That the offended party should have delivered it to the offender 3. That above the signature of the offended party a document is written by the offender without authority to do so 4. That the document so written creates a liability of, or causes damage to, the offended party or any third person Note: the paper with the signature in blank must be delivered by the offended party to the offended party (if stolen, crime is falsification) ESTAFA BY MEANS OF DECEIT (Art. 315, Subdivisions 2 and 3) Elements: 1. That there must be a false pretense, fraudulent act or fraudulent means 2. That such false pretense, fraudulent act or fraudulent means must be made or executed prior or simultaneously with the commission of the fraud 3. That the offended party must have relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act, or fraudulent means 4. That as a result thereof, the offended party suffered damage Note: there is no deceit if the complainant was aware of the fictitious nature of the pretense  Fraud must be proved with clear and positive evidence SECOND TYPE: BY MEANS OF ANY OF THE FOLLOWING FALSE PRETENSES OR FRAUDULENT ACTS EXECUTED PRIOR TO OR SIMULTANEOUSLY WITH THE COMMISSION OF THE FRAUD BLOCK A 2011-­‐2012 Three ways of committing: 1. By using fictitious name 2. By falsely pretending to possess (a) power, (b) influence, (c) qualifications, (d) property, (e) credit, (f) agency, (g) business or imaginary transactions 3. By means of other similar deceits Guiding Principles • Indispensible requirement – the element of deceit, consisting in the false statement or fraudulent representation be made prior to, or, at least simultaneously with, the delivery of the thing by the complainant, it being essential that such acts constitute the very cause or the only motive which induces the complainant to part with the thing • Pretense must be false • The offended party must be deprived of his property  Fictitious name – person uses a name other than his real name  Possessing power – e.g. falsely pretending that a worthless piece of paper possessed power; pretending to be a magician with powers to discover hidden treasure  Possessing influence – e.g. falsely representing that one had influence in Malacañang  Possessing property (money) – e.g. pretending the presence of sufficient funds  Possessing credit – e.g. falsely presenting oneself as having credits to pay for a service  Possessing agency – e.g. pretending to be the depositary of goods  Possessing business – e.g. pretending to have a business 91
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO By means of other similar deceits – e.g. pretending that a deed was validly made 
Estafa through falsification – any person who falsifies, counterfeits or imitates the signatures of others may by liable for Estafa thru falsification • Estafa through false pretense made in writing is only a simple crime of Estafa, not Estafa through falsification Estafa by altering the quality, fineness or weight of anything pertaining to his art or busines – may be illustrated wherein a jeweler defrauded a person who asked for a gold ring but was given a ring created from a stone with lower value Estafa by pretending to have given bribe – committed by any person who would ask money from another for the alleged purpose of bribing a government employee, when in truth and in fact the offender intended to convert the money to his own personal use and benefit ESTAFA BY MEANS OF FRAUDULENT ACTS The acts must be fraudulent – acts characterized by, or founded on, deceit, trick or cheat Estafa by postdating a check or issuing a check in payment of an obligation Elements: 1. That the offender postdated a check, or issued a check in payment of an obligation 2. That such postdating or issuing a check was done when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check  The check issued must be genuine, not falsified (if falsified, the crime is Estafa through falsification of a commercial document)  The check must be postdated or issued in payment of an obligation contracted at the time of the issuance and delivery of the check – check should not be issued in payment of a pre-­‐existing obligation 
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BLOCK A 2011-­‐2012 When a check is issued in lieu of a promissory note, it is in payment of a pre-­‐existing obligation The accused MUST be able to obtain something from the offended party by means of the check he issues and delivers • Exception: when the check is issued not “in payment of an obligation” When postdated checks are issued by the parties only as promissory notes – no Estafa even if there are no sufficient funds When the check is issued by a guarantor – no Estafa Prima facie evidence of deceit – the drawer is given three days to make good the said check by depositing the necessary funds to cover the amount thereof; otherwise, a prima facie presumption will arise as to existence of fraud, which is an element in the crime of Estafa GOOD FAITH – defense in a charge of Estafa by postdating or issuing a check (belief that one may by able to deposit sufficient funds in the bank) One who uses the check may also be liable – there must be knowledge that the drawer had no sufficient funds The payee must be defrauded Estafa by issuing a bad check – continuing crime Batas Pambansa Blg. 22 Elements of the offense under the first paragraph under Section 1 1. That a person makes or draws and issues any check 2. That the check is made or drawn and issued to apply on account or for value 3. That the person who makes or draws and issues the check knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment 4. That the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment Elements of the offense under the second paragraph under Section 1 92
CRIMINAL LAW II FINALS REVIEWER 1.
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ATTY. JOSE ARTURO DE CASTRO That a person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check That he fails to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon That the check is dishonored by the drawee ban 
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Gravamen of BP 22 – issuance of a check BP 22, unlike the RPC, punishes the issuance of a subsequently dishonored check in payment of a pre-­‐existing obligation If the offender issues a check in payment (of) or contemporaneously with incurring an obligation – he may be punished by both the RPC and BP 22 BP 22 requires that the person who made or drew and issued the check knew at the time of the issue that – he does not have sufficient funds The act of the offender when he “orders” the bank to stop payment of the check, it is not a valid defense if he had no sufficient funds that would have made the check dishonored anyway Lack of written notice of dishonor is fatal – a mere oral notice or demand to pay would appear to be insufficient for conviction under the law Notice of dishonor to corporation is NOT notice to officer who issued the check Presumption – Drawer had knowledge of the insufficiency of funds o Exceptions:  Check is presented after 90 days from the date of the check  Drawer pays the holder of the check the amount due thereon within 5 banking days after receiving notice that such check has not been paid by the drawee  Drawer makes arrangements for payment in full by the drawee of such check within 5 banking days after notice of non-­‐payment BLOCK A 2011-­‐2012 Estafa by obtaining food or accommodation at a hotel, etc. Acts punishable: 1. By obtaining food, refreshment or accommodation at a hotel, inn, restaurant, boarding house, lodging house or apartment house without paying therefor, with intent to defraud the proprietor or manager thereof 2. By obtaining credit at any of said establishments by the use of any false pretense 3. By abandoning or surreptitiously removing any part of his baggage from any of said establishments after obtaining credit, food, refreshment or accommodation therein, without paying therefor THIRD TYPE: THROUGH ANY OF THE FOLLOWING FRAUDULENT MEANS Estafa by inducing another to sign any document Elements: 1. That the offender induced the offended party to sign a document 2. That deceit be employed to make him sign the document 3. That the offended party personally signed the document 4. That prejudice be caused  There must be an inducement – to sign the document  Deceit must be employed – there can be no conviction in the absence of proof that defendant made statements tending to mislead complainant Estafa by resorting to some fraudulent practice to insure success Estafa by removing, concealing, or destroying documents Elements: 1. That there be court record, office files, documents or any other papers 2. That the offender removed, concealed, or destroyed any of them 3. That the offender had intent to defraud another  If there was no intent to defraud – malicious mischief  Destroying a promissory note intended to pay for something – prima facie evidence for Estafa 93
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Article 316. Other forms of swindling. The penalty of arresto mayor in its minimum and medium period and a fine of not less than the value of the damage caused and not more than three times such value, shall be imposed upon: 6. Any person who, while being a surety in a bond given in a criminal or civil action, without express authority from the court or before the cancellation of his bond or before being relieved from the obligation contracted by him, shall sell, mortgage, or, in any other manner, encumber the real property or properties with which he guaranteed the fulfillment of such obligation. Par. 1 – By conveying, selling, encumbering, or mortgaging any real property, pretending to be the owner of the same Elements: 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 the said property should represent that he is the owner thereof. 3. That the offender should have executed an act of ownership (selling, leasing, encumbering or mortgaging the real property). 
Ex: A sold a parcel of land to B. Later, A sold the same parcel of land to C, representing to the latter that he (A) was the owner thereof. At the time he sold the land to C, A was no longer the owner of the property. The thing disposed of must be real property. If the property is a chattel, the act is punishable as Estafa under Art. 315, that is, by falsely pretending to possess property or by means of other similar deceits. There must be existing real property. Where the accused sold non-­‐existent land, he is guilty of Estafa by means of false pretenses. Article 316, Par. 1 penalizes only a person who pretends to be the owner and not one who claims to be the owner. Since the penalty is based on the “value of the damage caused”, mere intent to cause damage is not sufficient. There must be actual damage caused. 
3. The owner of any personal property who shall wrongfully take it from its lawful possessor, to the prejudice of the latter or any third person. 5. Any person who shall accept any compensation given him under the belief that it was in payment of services rendered or labor performed by him, when in fact he did not actually perform such services or labor. That the act be made to the prejudice of the owner or a third person. 
2. Any person, who, knowing that real property is encumbered, shall dispose of the same, although such encumbrance be not recorded. 4. Any person who, to the prejudice of another, shall execute any fictitious contract. 4.
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1. Any person who, pretending to be owner of any real property, shall convey, sell, encumber or mortgage the same. BLOCK A 2011-­‐2012 
Art. 316, Par. 1 Covers a specific situation where the offender exercises or executes, some act of dominion or ownership over the property to the damage and prejudice of the real owner of the thing. Art. 315, Par. 2 (a) This circumstance need not be present under this article. Par. 2 – By disposing of real property as free from encumbrance, although such encumbrance be not recorded Elements: 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 4. That the act of disposing of the real property be made to the damage of another. 94
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ATTY. JOSE ARTURO DE CASTRO A mortgaged his property to B. Later, A, misrepresenting that said property is free from encumbrance, mortgaged it again, this time to C. But if C knew that the property had already been mortgaged to B, C cannot complain, as there is neither deceit nor fraud. The act constituting the offense is disposing of the real property falsely representing that it is free from encumbrance. “Encumbrance” includes every right or interest in the land which exists in favor of third persons. Ex: mortgage, ordinary lease, attachment, lien of a judgment, execution sale subject to redemption. The offended party would not have granted the loan had he known that the property was already encumbered. When the loan had already been granted when defendant offered the property as security for the payment of the loan, art. 316, par. 2 is not applicable. There are several types of encumbrances. Some require registration to be valid. Under this article, although such encumbrance be not recorded, it must be valid. The thing disposed of must be real property. If personal property, Art. 319 applies. The offender must know that the real property is encumbered. It is necessary to prove fraud or deceit. The mere fact that the encumbered real property is disposed of again by the owner does not in itself constitute swindling. When the third element is not established, there is no crime. Passive attitude is insufficient to constitute fraud. The fraud contemplated in the law must be the result of some overt acts. There must be damage caused. If no damage, no crime of estafa. Intention to cause damage is not sufficient because the basis of the fine is the “value of the damage caused” BLOCK A 2011-­‐2012 Par. 3 – By wrongfully taking by the owner his personal property from its lawful possessor Elements: 1. That the offender is the owner of personal property 2. That said property is in the lawful possession of another. 3. That the offender wrongfully takes it from its lawful possessor. 4. That prejudice is thereby cause to the possessor or third person.  The accused pawned his watch to the complainant. Later, pretending to have the money for redeeming the watch, the accused asked the offended party to give him the watch. Once in possession of it, he carried it away without paying the loan  The offender must be the owner of the personal property.  The personal property must be in the lawful possession of another.  The taking is wrongful when it is without the consent of the possessor, or when deceit is employed by the owner of the personal property in inducing the possessor to give it to him.  Damage is essential. Par. 4 – By executing any fictitious contract to the prejudice of another Par. 5 – By accepting any compensation for services not rendered or for labor not performed.  This kind of estafa requires fraud as an important element. If there is no fraud, it becomes payment not owing, known as solution indebiti. It would seem that what constitutes estafa under this paragraph is the malicious failure to return the compensation wrongfully received. Para. 6 – By selling, mortgaging or encumbering real property or properties with which the offender guaranteed the fulfillment of his obligation as surety. Elements: 95
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ATTY. JOSE ARTURO DE CASTRO That the offender is a surety in a bond given in a criminal or civil action. That he guaranteed the fulfillment of such obligation with his real property or properties. That he sells, mortgages, or in any other manner encumbers said real property. 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) before being relieved from the obligation contracted by him. There must be damage caused. The damage should not be merely potential or speculative. ARTICLE 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 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, shall suffer the penalty of arresto mayor and a fine of a sum ranging from 10 to 50 per cent of the value of the obligation contracted by the minor. Elements: 1. That the offender takes advantage of the inexperience or emotions or feeling of a minor. 2. That he induces such minor (1) to assume an obligation, or (2) to give release, or (3) to execute a transfer of any property right. 3. That the consideration is (1) some loan of money, (2) credit, or (3) other personal property 4. That the transaction is to the detriment of such minor.  The act of causing a minor to sign a receipt for P480 when as a matter of fact the minor received P400 only, coupled with the circumstance that the minor was a fugitive from the house of his parents and was very badly in need of money.  Actual proof of deceit or misrepresentation is not essential as it is sufficient that the offender takes advantage of the inexperience or emotions of the minor. 
BLOCK A 2011-­‐2012 Real property not included since a minor cannot convey real property without judicial authority. ARTICLE 318. OTHER DECEITS. The penalty of arresto mayor and a fine of not less than the amount of the damage caused and not more than twice such amount shall be imposed upon 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, shall suffer the penalty of arresto mayor or a fine not exceeding 200 pesos. Other deceits are: 1. By defrauding or damaging another by any other deceit not mentioned in the preceding articles. 2. By interpreting dreams, by making forecasts, by telling fortunes, or by taking advantage of the credulity of the public in any other similar manner, for profit or gain.  Damage is required.  Ex: The accused hired and used a vehicle and then failed to pay the fare, because he had no money. Chapter 7: Chattel Mortgage ARTICLE 319. REMOVAL, SALE OR PLEDGE OF MORTGAGED PROPERTY. The penalty or arresto mayor or a fine amounting to twice the value of the property shall be imposed upon: 1. Any person who shall knowingly remove any personal property mortgaged under the Chattel Mortgage Law to any province or city other than the one in which it was located at the time of the execution of the mortgage, without the written consent of the mortgagee, or his executors, administrators or assigns. 96
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO 2. Any mortgagor who shall sell or pledge personal property already pledged, or any part thereof, under the terms of the Chattel Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record hereof in the office of the Register of Deeds of the province where such property is located. BLOCK A 2011-­‐2012 Object of Art. 319: So that mortgage creditors may be protected against loss or inconvenience resulting from the wrongful removal or sale of the mortgaged property. Purpose of Par. 1, Art. 319 The protection of the mortgagee who should be able to have a ready access to, and easy reach of the property subject of the mortgage. Acts punishable under Art. 319 1. By knowingly removing any personal property mortgaged under the Chattel Mortgage Law to any province or city other than the one in which it was located at the time of execution of the mortgage, without the written consent of the mortgagee or his executors, administrators, or assigns. 2. By selling or pledging personal property already pledged, or any part thereof, under the terms of the Chattel Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds of the province where such property is located. Elements: 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. 5. That there Is no written consent of the mortgagee or his executors, administrators, or assigns to such removal. 
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The third person who removed the property is liable under this article because of the phrase “the offender is any person” No felonious intent when transfer of personal property is due to change of residence. 97
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO The removal must be coupled with intent to defraud.  Filing a civil for collection, not for foreclosure of chattel mortgage, relieves the accused of criminal responsibility. Elements of selling or pledging personal property already pledged: 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 3. That there is no consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds.  Second chattel mortgage is, aside from sale or pledge, contemplated by the law  Consent of the mortgage must be (1) in writing, (2) on the back of the mortgage, and (3) noted on the record thereof in the office of the register of deeds.  Damage is not necessary. Art. 316 Art. 319 In par. 2 of Art. 316, the property The property involved is involved is real property personal property. Purpose: to protect the purchaser Purpose: to protect the mortgagee 
Chapter 8: Arson and Other Crimes Involving Destructions ARTICLE 320. DESTRUCTIVE ARSON. The penalty of reclusion temporal in its maximum period to death shall be imposed upon any person who shall burn: .chan robles virtual law library BLOCK A 2011-­‐2012 1. One (1) or more buildings or edifices, consequent to one single act of burning, or as result of simultaneous burnings, or committed on several or different occasions. 2. Any building of public or private ownership, devoted to the use of the public in general, or where people usually gather or congregated for a definite purpose such as but not limited to official governmental function or business, private transaction, commerce, trade, worship, meetings and conferences, or merely incidental to a definite purpose such as but not limited to hotels, motels, transient dwellings, public conveyance or stops or terminals, regardless of whether the offender had knowledge that there are persons in said building or edifice at the time it is set on fire, and regardless also of whether the building is actually inhabited or not. 3. Any train or locomotive, ship or vessel, airship or airplane, devoted to transportation or convenience, or public use, entertainment or leisure. 4. Any building, factory, warehouse installation and any appurtenances thereto, which are devoted to the service of public utilities. 5. Any building, the burning of which is for the purpose of concealing or destroying evidence of another violation of law, or for the purpose of concealing bankruptcy or defrauding creditors or to collect from insurance. Irrespective of the application of the above enumerated qualifying circumstances, the penalty of death shall likewise be imposed when the arson is perpetrated or committed by two (2) or more persons or by a group of persons, regardless of whether their purpose is merely to burn or destroy the building or the edifice, or the burning merely constitutes an overt act in the commission or another violation of law. The penalty of reclusion temporal in its maximum period to death shall also be imposed upon any person who shall burn: 1. Any arsenal, shipyard, storehouse or military powder or fireworks factory, ordinance storehouse, archives or general museum of the government. 2. In an inhabited place, any storehouse or factory of inflammable or explosive materials. 98
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO BLOCK A 2011-­‐2012 If as a consequence of the commission of any of the acts penalized under this Article, death or injury results, or any valuable documents, equipment, machineries, apparatus, or other valuable properties were burned or destroyed, the mandatory penalty of death shall be imposed." 1. Any building used as offices of the government or any of its agencies; 2. Any inhabited house or dwelling; 4. Any plantation, farm, pastureland, growing crop, grain field, orchard, bamboo grove or forest; PRESIDENTIAL DECREE NO. 1613: AMENDING THE LAW ON ARSON Section 1. Arson. Any person who burns or sets fire to the property of another shall be punished by Prision Mayor. The same penalty shall be imposed when a person sets fire to his own property under circumstances which expose to danger the life or property of another. Section 2. Destructive Arson. The penalty of Reclusion Temporal in its maximum period to Reclusion Perpetua shall be imposed if the property burned is any of the following: 1. Any ammunition factory and other establishment where explosives, inflammable or combustible materials are stored. 2. Any archive, museum, whether public or private, or any edifice devoted to culture, education or social services. 3. Any church or place of worship or other building where people usually assemble. 4. Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of persons or property 4. Any building where evidence is kept for use in any legislative, judicial, administrative or other official proceedings. 5. Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or private market, theater or movie house or any similar place or building. 6. Any building, whether used as a dwelling or not, situated in a populated or congested area. Section 3. Other Cases of Arson. The penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if the property burned is any of the following: 3. Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel; 4. Any rice mill, sugar mill, cane mill or mill central; and 5. Any railway or bus station, airport, wharf or warehouse. Section 4. Special Aggravating Circumstances in Arson. The penalty in any case of arson shall be imposed in its maximum period; 1. If committed with intent to gain; 2. If committed for the benefit of another; 3. If the offender is motivated by spite or hatred towards the owner or occupant of the property burned; 4. If committed by a syndicate. The offense is committed by a syndicate if it is planned or carried out by a group of three (3) or more persons. Section 5. Where Death Results from Arson. If by reason of or on the occasion of the arson death results, the penalty of Reclusion Perpetua to death shall be imposed. Section 6. Prima Facie evidence of Arson. Any of the following circumstances shall constitute prima facie evidence of arson: 1. If the fire started simultaneously in more than one part of the building or establishment. 2. If substantial amount of flammable substances or materials are stored within the building note necessary in the business of the offender nor for household us. 3. If gasoline, kerosene, petroleum or other flammable or combustible substances or materials soaked therewith or containers thereof, or any mechanical, electrical, chemical, or electronic contrivance designed to start a fire, or ashes or traces of 99
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO any of the foregoing are found in the ruins or premises of the burned building or property. 4. If the building or property is insured for substantially more than its actual value at the time of the issuance of the policy. 5. If during the lifetime of the corresponding fire insurance policy more than two fires have occurred in the same or other premises owned or under the control of the offender and/or insured. 6. If shortly before the fire, a substantial portion of the effects insured and stored in a building or property had been withdrawn from the premises except in the ordinary course of business. BLOCK A 2011-­‐2012 Arson is defined as the malicious destruction of property by fire. There is no frustrated arson. P.D. 1613 remains the governing law for Simple Arson. Destructive Arson is still governed by Art. 320. Homicide is absorbed. There is no complex crime of arson with homicide. Chapter 9: Malicious Mischief 7. If a demand for money or other valuable consideration was made before the fire in exchange for the desistance of the offender or for the safety of the person or property of the victim. Section 7. Conspiracy to commit Arson. Conspiracy to commit arson shall be punished by Prision Mayor in its minimum period. Any person who shall deliberately cause the property of another any damage not falling within the terms of the next preceding chapter shall be guilty of malicious mischief. Section 8. Confiscation of Object of Arson. The building which is the object of arson including the land on which it is situated shall be confiscated and escheated to the State, unless the owner thereof can prove that he has no participation in nor knowledge of such arson despite the exercise of due diligence on his part. Section 9. Repealing Clause. The provisions of Articles 320 to 326-­‐B of the Revised Penal Code and all laws, executive orders, rules and regulations, or parts thereof, inconsistent with the provisions of this Decree are hereby repealed or amended accordingly. Section 10. Effectivity. This Decree shall take effect immediately upon publication thereof at least once in a newspaper of general circulation. The penalty of reclusion temporal in its maximum period to death shall be imposed upon any person who shall burn: ARTICLE 327. WHO ARE LIABLE FOR MALICIOUS MISCHIEF. Elements: 1. That the offender deliberately caused damage to the property of another. 2. That such act does not constitute arson or other crimes involving destruction. 3. That the act of damaging another’s property be committed merely for the sake of damaging it. Note: This third element presupposed that the offender acted due to hate, revenge, or other evil motive.  The offender should act under this impulse of a specific desire to inflict injury to another.  Malicious mischief cannot be committed through negligence, since culpa and malice are essentially incompatible.  Malicious mischief embraces sometimes the mere pleasure of destroying.  If no malice, only civil liability. 100
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ATTY. JOSE ARTURO DE CASTRO The crime of malicious mischief is not determined solely by the mere act of inflicting injury upon the property of a third person, but it must be shown that the act had for its object, the injury of the property merely for the sake of damaging it. Damage means not only loss but also diminution of what is a man’s own. Article 328. Special cases of malicious mischief. 1. By arresto mayor in its medium and maximum periods, if the value of the damage caused exceeds 1,000 pesos; 2. By arresto mayor in its minimum and medium periods, if such value is over 200 pesos but does not exceed 1,000 pesos; and 3. By arresto menor or fine of not less than the value of the damage caused and not more than 200 pesos, if the amount involved does not exceed 200 pesos or cannot be estimated. Any person who shall cause damage to obstruct the performance of public functions, or using any poisonous or corrosive substance; or spreading any infection or contagion among cattle; or who cause 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, shall be punished: 1. By prision correccional in its minimum and medium periods, if the value of the damage caused exceeds 1,000 pesos; 2. By arresto mayor, if such value does not exceed the abovementioned amount but it is over 200 pesos; and 3. By arresto menor, in such value does not exceed 200 pesos. These special cases of malicious mischief are: 1. Causing damage to obstruct the performance of public functions 2. Using any poisonous or corrosive substance 3. Spreading any infection or contagion among cattle 4. Causing 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. Note; These cases of malicious mischief are the so called qualified malicious mischief. ARTICLE 329. OTHER MISCHIEFS. BLOCK A 2011-­‐2012 
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Mischiefs not included in Art. 328 are punished according to the value of damage caused. If the amount involved cannot be estimated, the penalty of arresto menor or fine not exceeding P200 is fixed by law. ARTICLE 330. DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION. The penalty of prision correccional in its medium and maximum periods shall be imposed upon any person who shall damage any railway, telegraph or telephone lines. If the damage shall result in any derailment of cars, collision or other accident, the penalty of prision mayor shall be imposed, without prejudice to the criminal liability of the offender for the other consequences of his criminal act. For the purpose of the provisions of the article, the electric wires, traction cables, signal system and other things pertaining to railways, shall be deemed to constitute an integral part of a railway system. 
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Damage and obstruction to means of communication is committed by damaging any railway, telegraph or telephone lines. Qualifying circumstance: If the damage shall result in any derailment of cars, collision, or other accident. The mischiefs not included in the next preceding article shall be punished: 101
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ATTY. JOSE ARTURO DE CASTRO The derailment or the collision of cars should not have been purposely sought for by the offender. It must have resulted from damage to railway, telegraph, or telephone lines. ARTICLE 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 shall suffer the penalty of arresto mayor in its medium period to prision correccional in its minimum period. Any person who shall destroy or damage any useful or ornamental painting of a public nature shall suffer the penalty of arresto menor or a fine not exceeding 200 pesos, or both such fine and imprisonment, in the discretion of the court. Chapter 10: Exemption from Criminal Liability in Crimes Against Property ARTICLE 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; and3. 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. Crimes involved in the exemption: 1. Theft BLOCK A 2011-­‐2012 2. Swindling (estafa) 3. Malicious Mischief Note: If the crime is robbery or estafa through falsification, this article does not apply. Persons exempted from criminal liability: 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 passed into the possession of another. 3. Brothers and sisters and brothers-­‐in-­‐law and sisters-­‐in-­‐law, if living together.  No criminal liability but only civil liability.  The reason for exemption from criminal liability is the recognition by the law of the presumed co-­‐ownership of the property between the offender and the offended party.  This article does not apply to stranger who participates in the commission of the crime  Stepfather, adoptive father, natural children, concubine, paramour, included  Art. 332 applies to common-­‐law spouses.  The widowed spouse who commits theft, estafa, or malicious mischief with respect to property of deceased to be exempt from criminal liability, it is required that: a. The property belongs to the deceased spouse; and b. It has not passed into the possession of a third person. 102
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ATTY. JOSE ARTURO DE CASTRO Brothers and sisters and brothers-­‐in-­‐law and sisters-­‐in-­‐law must be living together at the time of the commission of any of the crimes of theft, estafa or malicious mischief. TITLE XI – CRIMES AGAINST CHASTITY Chapter 1: Adultery and Concubinage Art. 333 – Who are guilty of adultery
Adultery is committed by any married woman 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. Adultery shall be punished by prision correccional in its medium and maximum periods. If the person guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed. Elements: (M-­‐S-­‐K) 1. That the woman is married; 2. That she has sexual intercourse with the man not her husband; 3. That as regards the man with whom she has sexual intercourse, he must know her to be married. Essence: • The violation of marital vows • Gist of crime -­‐ The danger of introducing spurious heirs into the family. Rights of real heirs may be impaired and man may be charged with maintenance of a family not his own. • Offenders: The married woman and man who knows her to be married. • There must be a legal marriage between the offended party and the defendant, at the time of the filing of the complaint. •
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BLOCK A 2011-­‐2012 Carnal knowledge may be proved by circumstantial evidence. The legal tenet, therefore has been and still is that circumstantial and corroborative evidence will suffice to bring about the conviction for that crime. The man, single or married, must have knowledge of the married status of the woman before carnal union to be guilty of adultery. Note: This kind of evidence is not sufficient for the application of Art: 247 (Death or physical injuries inflicted under exceptional circumstances), which require that a married person should surprise his spouse in the act of sexual intercourse with another person. Consummation:  The crime of adultery is an instantaneous crime, consummated and completed at the moment of carnal union.  Each sexual intercourse constitutes a separate crime of adultery. Adultery therefore is not a continuing offense. Mitigating Circumstances in Adultery:  Abandonment without justification -­‐ one degree lower U.S. v Serrano, et al., 28 Phil. 230  Sheer necessity -­‐ two degrees lower People v Alberto, et al., 47 O.G. 2438  Abandonment as mitigating circumstance should be applied for both offenders.  Effect of the acquittal of one of the defendants does not operate as a cause for acquittal of the other. Nor does the death of the offended party. But if offended party dies before a complaint could be filed, the case cannot go on, because no once can sign and file the complaint. Pardon: For pardon to apply, it must:  Come before the institution of the criminal prosecution; and  Both offenders must be pardoned by the offended party as required in Art. 344.  The act of having intercourse of the offended party with the offending spouse subsequent to the adulterous conduct is at best an implied pardon of said adulterous act. People v Muguerza, et al., 13 C.A. Rep. 1079  When husband does nothing to interfere with the relations of his wife with her co-­‐accused, he may be considered as having consented to the infidelity of his wife, which bars him from instituting criminal complaint. People v Guinucud, et al., 58 Phil. 621 103
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Note: Under the law, there is no accomplice in adultery. 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,
shall be punished by prision correccional in its minimum and medium
periods.
The concubine shall suffer the penalty of destierro.
Elements: (M-­‐K-­‐U-­‐C-­‐K) 1. That the man must be married. 2. That he committed any of the following acts: a. Keeping a mistress in the conjugal dwelling, b. Having sexual intercourse under scandalous circumstances with a woman who is not his wife; c. Cohabiting with her in any other place. 3. That as regards the woman, she must know him to be married. Offenders: • The married man and the woman who knows him to be married. • A married man is not liable for concubinage for mere sexual relations with a woman not his wife. The sexual relations must fall under the three circumstances mentioned for him to be criminally liable. • For the circumstance of concubinage by keeping a mistress in the conjugal dwelling to apply, the husband must take into the conjugal house his concubine and they lived there together conjugally. • Conjugal dwelling -­‐ is meant the home of the husband and wife even if the wife happens to be temporarily absent on any account. For the second circumstance: • It is only when the mistress is kept elsewhere (outside of the conjugal dwelling) that "scandalous circumstances" becomes an element of the crime. U.S. V Macabagbag, et al., 31 Phil. 257 • Scandalous -­‐ means any imprudent and wanton conduct offensive to the public that redounds to the detriment of the feelings of honest persons. •
BLOCK A 2011-­‐2012 When spies are employed, there is no evidence of scandalous circumstances appearing that none of the people living in the vicinity has observed any suspicious conduct. For the third circumstance: • Mere cohabitation in any other place is sufficient. Proof of scandalous circumstances is not necessary even disregarding proofs of actual sexual intercourse. • Cohabits -­‐ 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. • That the accused is really the father of the child, alone and by itself, is not sufficient to prove the offense charged. What must be proved is the presence of the three stated circumstances. People v Benlot, et al., 16 C.A. Rep. 539 Note: Adultery is more severely punished than concubinage because adultery makes possible the introduction of another man's blood into the family so that the offended husband may have another man's son bearing his name and receiving support from him. Chapter 2: Rape and acts of Lasciviousness Art. 335 - When and how rape is committed
Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. 104
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. •
When rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be likewise death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. •
Note: Repealed, check Art. 266 for the revised version •
Art. 336 – Acts of lasciviousness
Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional. Elements: (A-­‐E-­‐F-­‐D-­‐F-­‐U) 1. That the offender commits any act of lasciviousness of lewdness; 2. That the act of Lasciviousness is committed against a person of either sex; 3. That it is done under any of the following circumstances; a. By using force or intimidation; or b. When the offended party is deprived of reason or otherwise unconscious; c. By means of fraudulent machinations or grave abuse of authority; d. When the offended party is under 12 years of age or is demented. Lasciviousness: • Lewd – obscene, lustful, indecent, lecherous. It signifies the form of immorality which has relation to moral impurity; or that which is carried on a wanton manner. • Compelling a girl to dance naked before men is an act of lasciviousness, even if the dominant motive is revenge, for her failure to pay a debt, for it cannot be believed that there was no admixture of lasciviousness in the •
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BLOCK A 2011-­‐2012 thought and purposes of the defendant who could devise such method. U.S. v. Bailoses, 2 Phil. 49 In U.S. v Bailoses and People v Fernando, Acts of lasciviousness is distinguished from Grave Coercion. In Bailoses, the compulsion by beating the girl is included in the constructive element of force in the crime of acts of lasciviousness. In Fernando (where a 60 year old woman was slapped, stripped off, and tied by the accused to compel her to admmit that she stole the shoes of a certain person) the compulsion is the very act constituting the offense of grave coercion. Motive of lascivious acts is not important because the essence of lewdness is in the very act itself. The presence or absence of lewd designs is inferred from the nature of the acts themselves and the environmental circumstances. Being a purely mental process discernible only by overt acts, no inflexible rule can be laid down as an accurate measure. What constitutes lewd or lascivious conduct must be determined from the circumstances of each case. Placing a man's private parts over a girl's organ is an act of lasciviousness. U.S. v Tan Teng, 23 Phil. 145 The acts of lasciviousness must be committed under any of the circumstances mentioned in the definition of the crime of rape. The intimidation or physical force need not necessarily be irresistible. •
AOL Distinguished from Attempted Rape: ACTS OF LASCIVIOUSNESS ATTEMPTED RAPE Either Sex Performance of acts of lasciviousness Lewd intent Lie with offended party Lascivious acts are the final objective Lascivious acts merely preparatory acts to the commission Their differences are: a. If the acts performed by the offender clearly indicate that his purpose was to lie the offended woman, it is attempted or frustrated rape. b. The lascivious acts are but the preparatory acts to the commission of rape whereas in AOL, The lascivious acts are themselves the final objective sought by the offender. 105
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ATTY. JOSE ARTURO DE CASTRO Desistance of the offender in the commission of attempted rape may constitute acts of lasciviousness. There is no attempted or frustrated crime of lasciviousness. •
AOL Distinguished from unjust vexation ACTS OF LASCIVIOUSNESS UNJUST VEXATION With Lewd Designs Out of Passion or other motives Committed under the 4 circumstances in rape Not committed under the 4 circumstances in rape Chapter 3: Seduction, Corruption of Minors, and White Slave Trade Art. 337 – Qualified seduction
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, shall be punished by prision correccional in its minimum and medium periods. The penalty next higher in degree shall be imposed upon any person who shall seduce his sister or descendant, whether or not she be a virgin or over eighteen years of age. Under the provisions of this Chapter, seduction is committed when the offender has carnal knowledge of any of the persons and under the circumstances described herein. Elements: (V-­‐12/18-­‐S-­‐A) 1. That the offended party is a virgin 2. That she must be over 12 and under 18 years of age 3. That the offender has sexual intercourse with her 4. That there is abuse of authority, confidence or relationship on the part of the offender. Classes: BLOCK A 2011-­‐2012 1. Seduction of a virgin over 12 years old and under 18 years of age by certain persons, such as, a person in authority, priest, teacher, etc. ; 2. Seduction of a sister by her brother or descendant by her ascendant, regardless of their age or reputation Seduction: • Seduction – means enticing a woman to unlawful sexual intercourse by promise of marriage or other means of persuasion without the use of force. • A virgin does not necessarily mean material virginity in law. It also includes a virtuous woman of good reputation. • There must be sexual intercourse, otherwise the crime is AOL under Art. 339. Note: If the victim is less than 12 years of age, the crime is rape. Offenders in Qualified Seduction: 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 2. Those who abused confidence reposed in them: a. Priest b. House Servant c. Domestic 3. Those who abused their relationship: a. Brother who seduced sister b. Ascendant who seduced his descendant Nature of the crime: • What makes the crime of qualified seduction is the character of the person committing the same on account of the excess of power or abuse of confidence of which the offender availed himself. • Deceit is not an element of qualified seduction. It is replaced by abuse of confidence. • Consent is not an element of the offense. • Actual ascendancy is not necessary as moral ascendancy used for immoral purposes is more than ample justification for punishing the act, i.e. brother-­‐in-­‐law. People v Alvarez 106
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ATTY. JOSE ARTURO DE CASTRO Domestic -­‐ is a person usually living under the same roof, pertaining to the same house. It includes all those persons residing with the family and who are members of the same household, regardless of the fact that their residence may only be temporary or that they may be paying for their board and lodging. U.S. v Santiago But if a man is merely stopping at a public inn or tavern when he seduced the landlord's daughter, the man is not a domestic because no such confidential manifestations of intimacy is tendered or expected from such. (Dec. Sup. Ct. Spain) Qualified Seduction distinguished from Rape: QUALIFIED SEDUCTION RAPE 4 circumstances of Rape absent 4 circumstances of Rape present Note: When the victim is the sister or descendant, also known as incest, virginity is not required and she may be over 18 years old. What is required is that the relationship be by consanguinity although it need not be legitimate. 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, shall be punished by arresto mayor. Elements: (V-­‐12/18-­‐S-­‐D) 1. That she must be of good reputation, single or widow (virgin) 2. That the offended party is over 12 and under 18 years of age 3. That the offender has sexual intercourse with her 4. That it is committed by means of deceit Purpose: • To punish the seducer who by means of a promise of marriage, destroys the chastity of an unmarried female of previous chaste character, and who thus draws her aside from the path of virtue and rectitude and then fails to fulfill his promise. BLOCK A 2011-­‐2012 Nature of the crime: • The virginity contemplated is the same in qualified seduction. Thus a woman who was raped before may be the victim of simple seduction, provided she is a woman of good reputation. • Deceit generally takes the form of unfulfilled promise of marriage. This need not immediately precede the carnal act. People v Iman • The promise of marriage must be the inducement and the woman must yield to that inducement, not merely from carnal lust. U.S. v Sarmiento • A man who is willing and ready to marry the girl seduced by him may be held liable for simple seduction when the man knows that the girl cannot legally consent to the marriage, yet he makes a promise to marry her. Promises not considered deceit: 1. Promise of marriage of a married man; 2. Promise of material things; 3. Promise of marriage after sexual intercourse. Note: There is no continuing offense of seduction. Art. 339 – Acts of lasciviousness with the consent of the offended party
The penalty of arresto mayor shall be imposed to punish any other acts of lasciviousness committed by the same persons and the same circumstances as those provided in Articles 337 and 338. Elements: (A-­‐12/18-­‐S/D-­‐A/D) 1. That the offender commits acts of lasciviousness or lewdness 2. That the acts are committed upon a woman who is virgin or single or widow of good reputation, under 18 years of age but over 12 years, or a sister or descendant regardless of her reputation or age 3. That the offender accomplishes the acts by abuse of authority, confidence, relationship, or deceit Nature of the crime: • Male cannot be the offended party in this crime • It is necessary that this crime is committed under the circumstances which nd
would make it qualified or simple seduction (thus the 2 element) had there been sexual intercourse, instead of acts of lewdness only. • The consent contemplated here is obtained by abuse of authority, confidence or relationship or by means of deceit. 107
CRIMINAL LAW II FINALS REVIEWER Art. 336 and Art. 339 compared: ATTY. JOSE ARTURO DE CASTRO NO SEXUAL INTERCOURSE SEXUAL INTERCOURSE Art. 336 Acts of Lasciviousness Rape Art. 339 AOL with consent of the offended party Qualified (through abuse of confidence, authority, relationship) or Simple (through deceit) Seduction Note: Both treat acts of lasciviousness; • In 336 (without consent), had there been carnal knowledge, would amount to rape; • In 339 (with consent), would amount to either qualified seduction or simple seduction. 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, shall be punished by prision mayor, and if the culprit is a pubic officer or employee, including those in government-­‐owned or controlled corporations, he shall also suffer the penalty of temporary absolute disqualification. Nature of the crime: • As amended by Batas Pambansa Blg. 92, habitually or abuse of authority or confidence, not necessary in promoting or facilitating the prostitution or corruption of a minor. • It must be to satisfy the lust of another. Therefore, one who casts for his own ends does not incur the sanction of the law. • Single act without abuse of authority or confidence is now a crime • It is not necessary that the unchaste acts shall have been done. A mere proposal will consummate the offense. • The offended minor can be from either sex. She or he must be of good reputation, not a prostitute or corrupted person. • The penalty shall be one degree higher than that imposed by law when the victim is under 12 years of age. BLOCK A 2011-­‐2012 Child Prostitution under Rep. Act No. 7610 The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: 1. Those who engage in or promote, facilitate or induce child prostitution 2. Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse 3. Those who derive profit or advantage therefrom • There is attempt to commit child prostitution when any person who, not being a relative of a child, is found alone with the said child inside a place under circumstances which lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse. • There is also attempt to commit this crime when any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments under paragraph b section 5 of this Act. Art. 341 – White slave trade
The penalty of prision mayor in its medium and maximum period shall be imposed upon any person who, in any manner, or under any pretext, shall engage in the business or shall profit by prostitution or shall enlist the services of any other for the purpose of prostitution. Acts penalized: 1. Engaging in the business of prostitution 2. Profiting by prostitution 3. Enlisting the services of women for the purpose of prostitution Nature of the crime: • Habituality is not a necessary element of white slave trade • A person engaged in the business of prostitution need not be the owner of the house. • One who is engaged the services of a woman ostensibly as a maid but in reality for purposes of prostitution and who in fact dedicated her to such immoral purposes for profit, is guilty of white slave trade as contemplated in "under any pretext" stated in the provision People v Isidro Penalty: 108
CRIMINAL LAW II FINALS REVIEWER •
ATTY. JOSE ARTURO DE CASTRO Penalty shall be one degree higher than imposed by law when the victims under 12 years old. Chapter 4: Abduction Art. 342 – Forcible abduction
The abduction of any woman against her will and with lewd designs shall be punished by reclusion temporal. The same penalty shall be imposed in every case, if the female abducted be under twelve years of age. Elements: (W-­‐A-­‐L) 1. That the person abducted is any woman, regardless of her age, civil status, or reputation 2. That the abduction is against her will 3. That the abduction is with lewd designs Nature: • Abduction is meant the taking away of a woman from her house or the place where she may be for the purpose of carrying her to another place with intent to marry or to corrupt her. • The act is violative of the individual liberty of the abducted, her honor and reputation, and of public order. • The taking away of the woman must be against her will, when force or intimidation is used by the offender • The taking of the woman may be accomplished by means of deceit first then by means of violence and intimidation. U.S. v De Vivar • If the female abducted is under 12 years of age, it need not be necessary that the abduction is against her will because she has no will of her own or her free will is wanting therefore is incapable of giving consent. • Sexual intercourse is not necessary in forcible abduction. The intent to seduce the girl is sufficient. • When there are several defendants, it is enough that one of them had lewd designs • A husband cannot be found liable for abduction of his wife, as the element of lewd design is wanting. People v. Omar •
BLOCK A 2011-­‐2012 When there is deprivation of liberty and no lewd designs, it is kidnapping and serious illegal detention under Art. 267. Abduction is one of the ways in which illegal detention can be committed Forcible abduction distinguished from corruption of minors in terms of purpose: • Forcible abduction -­‐ lewd designs • Corruption of minors -­‐ lending her to illicit intercourse with others Forcible abduction with rape distinguished from kidnapping: • It is forcible abduction with rape when the violent taking of a woman is motivated by lewd designs. When it is not so motivated, such taking constitutes kidnapping Complex crime rules: • There could only be one complex crime of forcible abduction with rape. Subsequent acts of rape should be detached and considered independently of the forcible abduction with rape. • There is no complex crime of forcible abduction with attempted rape as the attempt to rape is absorbed by the abduction, being the element of lewd design of the latter. • If there was an abduction but the resistance of the woman to the alleged rape was not tenacious, the accused would be guilty of only of abduction. People v Lopez • Rape may absorb forcible abduction if the main objective was to rape the victim • Conviction of acts of lasciviousness is not a bar to conviction of forcible abduction. One of these two crimes involves some important act which is not an element of the other. Therefore, there would be no double jeopardy. People v Franco Where age or reputation is not material: 1. AOL against will 2. Qualified Seduction of sister or descendant 3. Forcible Abduction Art. 343 – Consented abduction
The abduction of a virgin over twelve years and under eighteen years of age, carried out with her consent and with lewd designs, shall be punished by the penalty of prision correccional in its minimum and medium periods. 109
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Elements: (V-­‐O-­‐L-­‐C) 1. That the offended party must be a virgin 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 4. That the taking away of the offended party must be with lewd designs Purpose: • To prescribe punishment for the disgrace to her family and the alarm caused therein by the disappearance of the one who is, by her age and sex, susceptible to cajolery and deceit. • The meaning of virgin is the same as contemplated in the preceding sections. Nature of the crime: • If the offended party is under 12 years of age, the crime committed is forcible abduction, even if the girl agrees to the elopement. • The taking of the virgin need not have the character of permanency. No matter how short is the taking away the crime exists. People v Ingayo • Offered party need not be taken actually and personally from her house or induced to abandon it. It is sufficient that he was instrumental in her escape. People v Moreno • Consent of the minor being taken away may be due to honeyed promises of marriage by the offender. • When there was no solicitation or cajolery and no deceit and the girl voluntarily went with the man, there is no crime committed even if they had sexual intercourse. • The taking must be with owed designs. Actual sex is not necessary. • Where the victim is later forcibly violated by the accused, he is guilty of consented abduction with rape Chapter 5: Provisions relative to the preceding Chapters of Title XI Art. 344 – Prosecution of the crimes of adultery, concubinage,
seduction, abduction, rape and acts of lasciviousness
The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. BLOCK A 2011-­‐2012 The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders. The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above named persons, as the case may be. 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 above-­‐mentioned crimes. Reason: • Out of consideration for the offended woman and her family who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial Prosecution: 1. Adultery and concubinage must be prosecuted upon complaint signed by the offended spouse 2. Seduction, abduction or acts of lasciviousness must be prosecuted upon complaint signed by: a. Offended party b. Her parents c. Grandparents, or d. Guardian in the order in which they are named above • Pursuant to R.A. No. 8535, the Anti-­‐Rape Law of 1997, rape is now a crime against persons which may be prosecuted de oficio or by the public. Prosecution of the crime of prostitution also can be prosecuted de oficio. • Only the offended spouse can file a complaint in the crimes of adultery or concubinage. The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor in any case, if he shall have consented or pardoned the offenders. If because of disease the offended spouse becomes incapacitated to file the complaint, nobody can file it for him or her. 110
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Seduction abduction or acts of lasciviousness: • For the prosecution of seduction, abduction or acts of lasciviousness, the exclusive order should be followed. There must be no refusal or contradiction form the person preceding in the list • Guardian mean legal, not natural guardian whom is one legally appointed by the court. • The complaint which must be signed by the offended party, must be filed in court, not with the fiscal Pardon: • Pardon of the offenders by the offended party is a bar to prosecution for adultery or concubinage. The pardon may be express or implied. It must come before the institution of the criminal action and both offenders must be pardoned for it to be effective. • Only the offended spouse can validly pardon the offenders. • Express agreement to live separately is an evidence of consent. Matubis v. Praxedes • Condonation is not pardon in concubinage or adultery. As condonation is forgiveness based upon the presumption and belief that the guilty party has repented, any subsequent acts of the offender showing that there was no repentance will not bar the prosecution of the offense. Any act of infidelity to the vows of marriage subsequent to in the condonation constitutes a new offense that is subject to criminal prosecution. Seduction, abduction or acts of lasciviousness: • In seduction, abduction or acts of lasciviousness, the pardon must be expressly given by the offended girl. It is only when she is dead or otherwise incapacitated to grant it that her parents, grandparents or guardian may do so for her. • Pardon by the offended party who is a minor must have the concurrence of parents for due to her tender age and lack of sufficient knowledge, would hardly know the impact and consequences of her acts. People v Lacson (The exception to this rule is when the offended minor has no parents who could concur in the pardon) • Marriage of the offender with the offended party in seduction, abduction and acts of lasciviousness extinguishes criminal action or remits the penalty already imposed. This rule applies not only to principals but also the accomplices accessories. •
BLOCK A 2011-­‐2012 But the marriage entered must be enter into in good faith and with the intent of fulfilling the marital duties and obligations. Art. 345 – Civil liability of persons guilty of crimes against chastity
Person guilty of rape, seduction or abduction, shall also be sentenced: 1. To indemnify the offended woman. 2. To acknowledge the offspring, unless the law should prevent him from so doing. 3. In every case to support the offspring. The adulterer and the 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. Civil liability: 1. To indemnify the offended woman 2. To acknowledge the offspring, unless the law should prevent him from doing so 3. In every case to support the offspring • Civil liability of the adulterer and the concubine is only for indemnity for damages caused to the offended party. This does not apply to the guilty wife in adultery nor to guilty husband in concubinage. • Sentence is only limited to indemnity because acknowledgement of the offspring is not legally possible, because only children born of parents who could marry at the time of conception may be acknowledged. • Moral damages may also be recovered in crime against chastity both by the offended party and by her parents. • All the offenders in multiple rape must support the offspring as any one of them may be the father and is directly responsible that an unwilling mother may give birth to an undesired offspring. People v. Velo • Prohibition against acknowledgement of offspring when offender is married, not applicable under the Family Code. At present, children are classified as only either legitimate or illegitimate, with no further positive act required of the parent as the law itself provides the child's status. • When more than person, one after another, raped a woman, not one may be required to recognize the offspring of the offended woman, it being impossible to determine the paternity thereof. People v. Pedro • Civil liability in rape of married woman is only indemnity. People v. Sanico 111
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO BLOCK A 2011-­‐2012 Art. 346 – Liability of ascendants, guardians, teachers, or other persons
entrusted with the custody of the offended party
The ascendants, guardians, curators, teachers and any person who, by abuse of authority or confidential relationships, shall cooperate as accomplices in the perpetration of the crimes embraced in chapters, second, third and fourth, of this title, shall be punished as principals. Teachers or other persons in any other capacity entrusted with the education and guidance of youth, shall also suffer the penalty of temporary special disqualification in its maximum period to perpetual special disqualification. Any person falling within the terms of this article, and any other person guilty of corruption of minors for the benefit of another, shall be punished by special disqualification from filling the office of guardian. Accomplices: • Persons mentioned in the provision who cooperate as accomplices are punished as principals in crimes against chastity. 112
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO TITLE XII – CRIMES AGAINST CIVIL STATUS OF PERSONS Chapter 1: Simulation of Births and Usurpation of Civil Status Art. 347 – Simulation of births, substitution of one child for another, and concealment of abandonment of a legitimate child. The simulation of births and the substitution of one child for another shall be punished by prision mayor and a fine of not exceeding 1,000 pesos. The same penalties shall be imposed upon any person who shall 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 crimes mentioned in the two next preceding paragraphs, shall suffer the penalties therein prescribed and also the penalty of temporary special disqualification. Acts punished: (SSC) 1. Simulation of births. 2. Substitution of one child for another. 3. Concealing or abandoning any legitimate child with intent to cause such child to lose its civil status. • Object of the crime – creation of false, or the causing of the loss of, civil status. • Simulation of Birth – takes place when the woman pretends to be pregnant when in fact she is not, and on the day of the supposed delivery, takes the child of another as her own. • Woman introduces a stranger in the family and defrauds the legitimate heirs. • Those responsible as principals: 1. Woman who simulates the birth 2. One who furnishes the child • A woman, who pretends to be pregnant and simulates a birth with the sole purpose of belying the reputation that she is sterile but introduces no stranger in the family, is not criminally liable. BLOCK A 2011-­‐2012 o
The fact that the child will be benefited by the simulation is not a defense. Requisites – Concealing or abandoning any legitimate child: (LCI) 1. Child must be legitimate 2. Offender conceals or abandons such child; and 3. Offender has intent to cause such child to lose its civil status. • Unlawful sale of a child by its father is not a crime under this article. • “Abandon” as used in Art. 347 – historical basis is the well-­‐known practice in Spain where new-­‐born infants and very young children are abandoned at the door of hospitals, churches and other religious institutions. • Abandonment as crime against security (Art. 276) or as a crime against the civil status of a person (Art. 374): Article 276 Article 374 Must be one with Any person Offender custody of the child To avoid the obligation of To cause the child to Purpose rearing and caring for the lose its civil status child Art. 348 – Usurpation of civil status The penalty of prision mayor shall be imposed upon 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; otherwise, the penalty of prision correccional in its medium and maximum periods shall be imposed. •
•
•
Usurping the civil status of another – how committed: o By assuming the filiation of another o By assuming the parental or conjugal rights of another Usurpation of profession may be punished under this article “Civil Status” – includes one’s public station, or the rights, duties, capacities and incapacities that determine a person to a given class. o There must be intent to enjoy the rights arising from the civil status of another. o Purpose of defrauding the offended party qualifies the crime. 113
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Chapter 2: Illegal Marriages Judgment of annulment of 2nd marriage precludes verdict of guilt in a bigamy charge. De la Cruz v. Ejercito Who else may be liable for bigamy? nd
1. 2 spouse – NOT necessarily liable for bigamy nd
st
2. 2 husband/wife who knew of the 1 marriage – ACCOMPLICE 3. Witness who falsely vouched for the capacity of either of the contracting parties – ACCOMPLICE o But if the witness merely attested to the marriage ceremony and did not vouch not assert anything as to the personal condition of the contracting parties – NOT liable. Bigamy – is not a private crime but a public offense.. Person convicted of bigamy may still be prosecuted for concubinage. o
Art. 349 – Bigamy •
The penalty of prision mayor shall be imposed upon 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; otherwise, the penalty of prision correccional in its medium and maximum periods shall be imposed. Elements: (LNSV) 1. That the offender has been legally married. 2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code. 3. That he contracts a second or subsequent marriage. 4. That the second or subsequent marriage has all the essential requisites for validity. st
• Nullity of 1 marriage – not a defense in bigamy cases o Causes which may produce the legal dissolution of the first marriage: 1. Death of one of the contracting parties; 2. Judicial declaration annulling a void marriage; and 3. Judicial decree annulling a voidable marriage. st
• The death of the 1 spouse during the pendency of the bigamy case does not extinguish the crime. • Divorce – sought from a foreign court by a person domiciled in the Philippines is not valid. o Effect of divorce obtained abroad by alien spouse: Filipino spouse shall have capacity to remarry under Philippine law. (Art. 26, par. 2, Family Code) • Divorce by a Moro Datu – even though with their customs and usages is not recognized. st
• Defense has the burden of proof of dissolution of 1 marriage. • “Before the absent spouse has been declared presumptively dead” –
Contracting subsequent marriage before the declaration of presumptive death of the absent spouse is bigamous. nd
• The 2 marriage must have all the essential requisites for validity. o Validity of second marriage is a prejudicial question to liability for bigamy. BLOCK A 2011-­‐2012 •
•
Art. 350 – Marriage contracted against provisions of laws. The penalty of prision correccional in its medium and maximum periods shall be imposed upon 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. If either of the contracting parties shall obtain the consent of the other by means of violence, intimidation or fraud, he shall be punished by the maximum period of the penalty provided in the next preceding paragraph. Elements: (MK) 1. That the offender contracted marriage; 2. That he knew at the time that – a. The requirements of the law were not complied with; or b. The marriage was in disregard of a legal impediment. • “Without being included in the provisions of the next preceding article” – The offender must not be guilty of bigamy. • Marriage contracted by minors who had legal capacity is valid. • Conviction of a violation of Art. 350 involves moral turpitude. 114
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO BLOCK A 2011-­‐2012 Penalty – imprisonment for not less than 1 month nor more than 2 years, or a fine not less than P200 not more than P2,000 (Sec. 39, Act No. 3613, Marriage Law) Clergyman who performed marriage ceremony, NOT knowing the minority of one of the contracting parties – NOT LIABLE. 
Art. 351 – Premature marriages Any widow who shall marry within three hundred and one day from the date of the death of her husband, or before having delivered if she shall have been pregnant at the time of his death, shall be punished by arresto mayor and a fine not exceeding 500 pesos. The same penalties shall be imposed upon any woman whose marriage shall have been annulled or dissolved, if she shall marry before her delivery or before the expiration of the period of three hundred and one day after the legal separation. •
•
•
•
Persons liable for premature marriages: a. Widow – marries 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. st
b. Woman – 1 marriage having been annulled or dissolved, marries before her delivery or before the expiration of the 301-­‐day period after the date of the legal separation. 301 days – ordinary duration of pregnancy is nine months and some days. o Intent – to prevent confusion as regards filiation and paternity of a child in case a widow might have conceived and become pregnant by her late husband. st
o 301-­‐day rule may be disregarded if the 1 husband was impotent or sterile. o 301-­‐day rule – important only for cases where the woman is NOT pregnant (or was not known to be pregnant; thus, the rule admits the possibility of pregnancy) Purpose of the law in punishing premature marriages is to prevent doubtful paternity. 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 shall be punished in accordance with the provisions of the Marriage Law. •
Offender under Art. 352 must be authorized to solemnize marriages. o Offender is punished under the Marriage Law. 115
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO TITLE XIII – CRIMES AGAINST HONOR Chapter 1: Libel Section 1 – Definition, forms, and punishment of the crime Art. 353 – Definition of libel
A libel is a public and malicious imputation of a crime, or of 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.
Elements: (PMIND) 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 circumstances. 2. That the imputation must be made publicly. 3. That it must be malicious. 4. That the imputation must be directed at a natural or juridical person, or one who is dead. 5. That the imputation must tend to cause the dishonor, discredit or contempt of the person defamed. Defamation: • Libel – Defamation committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, or theatrical or cinematographic exhibition, or any similar means. Oral defamation is called slander. • Is there a distinction between calumny, insult and libel? No, the RPC punishes all kinds of attack against honor and reputation. • Seditious libel – punished in Ar. 142. Difference is the nature of the imputation. In seditious libel, one is punished if: 1. Incites others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems, etc. 2. Uttering seditious words or speeches which tend to disturb the public peace 3. Writing, publishing, or circulating scurrilous libels against the Government or any of the duly constituted authorities thereof, which tend to disturb public peace. •
BLOCK A 2011-­‐2012 Reason for punishment – The enjoyment of a private reputation is as much as a constitutional right as the possession of life, liberty or property. Types of Imputation: 1. Imputation of a Criminal Act • Writing an Art. which portrays the offended party as a swindler, who prior to his election to office, collected money through fraud and deceit, after which constructed a house, imputes the commission of estafa. People v. Bailo • Branding somebody as having murdered his brother-­‐in-­‐law and enriching himself, vote-­‐buying because of the influence of brother-­‐in-­‐law can also be prosecuted under this article.. People v. Dianalan • It can also apply if the imputation is implied. A confronted the complainant B that she was the only one who approached her table and as soon as B left, the money disappeared. Such statements were made in a loud voice in the presence of many persons subjecting the offended party to embarrassment. De Guzman v. People • When is it not libelous?  Imputation of criminal intention is not libelous. A will rape B, is not libelous, it is a mere assertion/ expression of opinion. People v. Baja  An expression of opinion by one affected by the act of another based on actual fact is not libelous. A expressed his opinion that the partition is not fair since his wife had been deprived of her share is not libelous. People v. Baja  When the communication was made in the performance of a “legal, moral, or social duty”. A, an employee, writes a letter to the Director of printing that the resources of the Bureau of Printing is misappropriated because they printed cards and other papers for college students not part of the Bureau’s function. Defendant had no “legal, moral, or social duty”. Orfanel v. People o Note: He was not able to prove such claims other than his statement. 2. Imputation of a Vice or Act • An article which imputes upon the person mentioned as having lascivious and immoral habits, which tends to discredit a person. People v. Suarez 116
CRIMINAL LAW II FINALS REVIEWER 3.
4.
ATTY. JOSE ARTURO DE CASTRO Imputation of an Act or Omission • An Art. published in the Philippine Herald which says that the offended party to borrow money without intention to pay; and ordered to have his teeth fixed without paying the fees, is defamatory. People v. Tolentino Imputation of Condition, Status or Circumstance • Calling a person a bastard or leper • Publishing an Art. which contains, “coward, vile soul, dirtysucker, savage, hog who always looks toward the ground”. U.S. v. Ortiz Test of defamatory character of the words used: 1. If the words are calculated to induce the hearers to suppose and understand that the person against whom they were uttered was guilty of certain offenses, or are sufficient to impeach his honesty, virtue or reputation, or to hold him up to public ridicule. U.S. v. O’Connell 2. Generally, it must be defamatory, malicious, made with publicity and the victim is identifiable. 3. Meaning of the writer is immaterial, what is being tested is if the mean of the words in fact conveyed on the minds of the persons of reasonable understanding, discretion and candor, taking into consideration the surrounding circumstances which were known to the hearer or reader. People v. Encarnacion 4. Whether or not it is libelous depends upon the scope, spirit and motive of the publication taken in its entirety. Imperial, et al. v. The Manila Publishing Co. 5. A defamation is alleged to have been directed at a group or class, it is essential that the statement must be so sweeping or all-­‐embracing as to apply to every individual in that group or class, or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be. Otherwise the claim cannot prosper. MVRS Publications v. Islamic Da’wah Council; see also Newsweek, Inc. v. Intermediate Appellate Court • Innuendo – A clause in the indictment or other pleading containing an averment which is explanatory of some preceding word or statement. Ex. The innuendo of the statement, “A burned down his house”, can be shown by pleading that the statement was understood to mean that David was defrauding his insurance company. •
BLOCK A 2011-­‐2012 Criminal and civil action for damages in cases of written defamations shall be filed simultaneously or separately with the RTC to the exclusion of all other courts; The grant to the Sandiganbayan of jurisdiction over offenses committed in relation to (public) office did not divest the RTC of its exclusive and original jurisdiction to try written defamation cases regardless of whether the offense is committed in relation to office. An express repeal or modification of the provision in the RPC vesting in the RTC original jurisdiction is necessary. People v. Benipayo(De Castro) Publication: • Publication – is the communication of the defamatory matter to some third person or third persons Ex.  Delivering the Art. to the typesetter is sufficient publication. U.S. v. Crame  Writing a letter to another person other than the person defamed is sufficient to constitute publication. Orfanel v. People  Sending a sealed envelope through a messenger is not publication Lopez v. Delgado. However, if the letter is not shown to be sealed, it equates to be a publication. U.S. v. Grino • Person libeled must be identified. o The publication need not refer by name to the libeled party. If not named it must be shown that the description of the person referred to in the defamatory publication was sufficiently clear so that at least a 3rd person would have identified the plaintiff. o Libel in different parts may be taken together to establish the identification of the offended party. For instance, the first publication contains words and phrases which are defamatory, and the second publication are caricatures by name and attached are defamatory words and phrases. U.S. v. Sotto o When a libel is addressed to several persons, unless they are identified in the same libel, even if there are several persons offended by the libelous utterance or statement, there will only be one count of libel. For instance, “You, Merra lawyers, are stealers xxx shameless xxx impolite”, there can only be one offense. People v. Aquino  If the offended parties in the libel were distinctly identified, even though the libel was committed at one and the same time, there will be as many 117
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO libels as there are persons dishonored. For instance, the slanderous utterances were committed on the same date and at the same place but against two different and identifiable persons, there are as many offenses as there were persons defamed. People v. Del Rosario; see also People v. Gil, et al.  One is liable for publication of defamatory words against another although he is only repeating what he heard and names the source of his information. A person who repeats a slander or libelous publication heard or read from another is presumed to indorse it. People vs. Salumbides and Reanzares 3. Editor or manager of a newspaper, who has active charge and control of its management, conduct, and policy, generally is held to be equally liable with the owner for the publication therein of a libelous article. Tulfo v. People (De Castro) Malice: • Malice – term used to indicate that the offender is prompted by personal ill-­‐will or spite and speaks not in response to duty, but merely to injure the reputation of the person defamed. • Kinds of Malice: 1. Malice in Fact – This refers to malice as a fact (Acts). The presence and existence of personal ill-­‐will or spite may still appear even if the statement is not defamatory. So, where the defamatory acts may be presumed from the publication of the defamatory acts imputed refer to the private life of the individual, malice may be presumed from the publication of the defamatory statement because no one has a right to invade another’s privacy. Ex. Republication of a defamatory matter subsequent to the commencement of an action (U.S. v. Montalvo) o “Proving malice of fact”  That the defendant bore a grudge against the offended party;  That there was a rivalry or ill-­‐feeling between them which existed at the date of the publication;  Intention to injure the reputation of the offended party. 2. Malice in Law – assumed and is inferred from the defamatory character of an imputation. The presumption of malice attaches to the defamatory statement especially if it appears to be insulting per se. The law presumes that the defamer made the imputation without good intention or justifiable motive. •
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BLOCK A 2011-­‐2012 How to overcome the presumption of malice. The presumption of malice is rebutted by showing: 1. That the accused published the defamatory imputation with good intention; 2. That there is justifiable motive for making it; 3. That the communication made is privileged; and 4. Accused must prove the truth of the defamatory imputation in those cases wherein truth is a defense. Defense on presumption o The fact that a communication is privileged is not a proper ground for the dismissal of a complaint for libel. In the first place, it is a matter of defense. Secondly, the fact that a communication is privileged does not mean that it is not actionable. The privileged character simply does away with the presumption of malice which the prosecution has to prove in such a case. Lu Chu Sing, et al., vs. Lu Tiong Gui o Libel in answer to another libel is not a defense. Pellicena vs. Gonzales o If the defamatory imputation is in the nature of self-­‐defense under Art. 11 of the Revised Penal Code such that the publication was done in good faith, without malice and just adequate enough to protect his good name, the statement may be considered privileged. People vs. Baja; see also People v. Mendoza  However retaliation or vindictiveness cannot be self-­‐
defense. People v. Rayo; see also People v. Pelay  RULE: The statement made must be a fair answer to the libel made and must be related to the imputation made, it must not be unnecessarily libelous. o For libel filed by public officers, truth is a defense. Purpose: • The intention of the offender in publishing was to discredit, dishonor or contempt the person allegedly libeled. o Dishonor – disgrace, shame, or ignominy. o Discredit – loss of credit or reputation; disesteem. o Contempt – state of being despised Rule on Public Officer: • Under our libel law, defamatory remarks against government employees with respect to facts related to the discharge of their official duties will not 118
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ATTY. JOSE ARTURO DE CASTRO constitute libel, if defendant is able to prove the truth of the imputations. But any attack on the private character of the officer on matters which are not related to the discharge of his official functions may constitute libel since under our laws, the right of the press to criticize public officers does not authorize defamation. U.S. vs. Bustos, supra; Sazon vs. Court of Appeals Where malice cannot be inferred from false defamatory statements, the ruling appears to be the true only if the offended party is a government employee, with respect to facts related to the discharge of his official duties. With this jurisprudence, it should now be emphasized that ‘actual malice” is now required to be proven. It is enough to rely on presumed malice in libel cases involving a public official or public figure. N.Y. Times v. Sullivan Burden of proof is on the plaintiff to prove libel, but must also prove that there was malice by clear and convincing evidence. o Be mindful of burden of proof and burden of evidence. “Criticism compared with defamation” o Criticism – Deals only with such things as shall invite public attention or call for public comment. The attack is on the fabric of his statesmanship not his person or the man himself. o Defamation – Delves into his private life which has no connection with the performance of his public duties and falsely charges him with evil motives, clearly designed to destroy his reputation or besmirch his name. Conduct or acts of public officers which are related to the discharge of their official duties are matters of public interest. Being of public interest is a common property; hence anybody may express an opinion about it. Art. 354 – Requirement for publicity Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown except in the following cases: 1. A private communication made by any person to another in the performance of any legal, moral, or social duty. 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceeding which are not of confidential nature, or of any statement, report, or speech delivered in said BLOCK A 2011-­‐2012 proceedings, or og any other act performed by public officers in the exercise of their functions. Exception to the presumption of malice in law: 1. Private communications made by any person to another in the performance of any legal, moral or social duty. 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. *These are called privileged communications Kinds of Privileged Communication: 1. Absolute – not actionable, even if its author has acted in bad faith. • Official communications made by members of congress in the discharge of their functions as such. • Answers of the witnesses in reply to the questions propounded to them, during the hearing of judicial proceedings, provided that said allegations or statements are relevant to the questions asked. • Limited to the legislative, judicial and other acts of state, including communications made in the discharge of a duty under express authority of law, heads of executive departments, foreign relations and military affairs. • It does not cover those engaged in public service, enactment or administration of law, as well as to jurors, and lawyers. 2. Conditional or Qualified – although containing defamatory imputations, would not be actionable unless made with malice or bad faith. • If the case is not covered by absolute privilege, it may be tested in light of the qualified privilege extended to a private communication made by any person to another in the performance of any legal, moral or social duty. • The reason for privileged communication is on the ground of public policy, the welfare of society and orderly administration of the government which demanded protection from public opinion. Paragraph 1 of Art. 354 – Legal, Moral or Social Duty: • Requisites: (LOG) 1. That the person who made the communication had a legal, moral or social duty to make the communication, or, at least, he had an interest to be upheld; 119
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That the communication is addressed to an officer or a board, or superior, having some interest or duty in the matter; 3. That the statements in the communication are made in good faith without malice (in fact). “Private communication” – the law recognizes the right of an individual to enjoy immunity from publication of untruthful charges derogatory to his character is not absolute and must at times yield to the superior necessity of subjecting to investigation the conduct of persons charged with wrongdoing. o When  In the performance of any legal, moral or social duty.  It is the duty and right of a citizen to make a complaint of any misconduct on the part of public charged with the supervision over them, unless it appears that the charges made were made maliciously and without any reasonable ground for believing them to be true. U.S. v. Galeza  An accusation made in a public meeting is not a private communication People v. Jaring o Form  Not necessarily a private document, it may also be in a public document, like an affidavit. People v. Cantos  The privilege communication covers also complaints against individuals who are not public officers, like the priests. U.S. v. Canete o Addressed to whom  Must be addressed to an officer or superior having some interest or duty in the matter. Sending a letter to a co-­‐
counselor therefore is not permissible, since he may have brought such claims in open session. People v. Pelayo  If a party apllies to a wrong person through an honest mistake, such intentional error will not take the case out of privilege. U.S. v. Bustos  Unnecessary publicity destroys good faith. When a copy of the privileged communication is sent to a newspaper publication. People v. Cruz Executing an affidavit alleging that the judge did not give her the benefit check because she did not give him a share, and showing it to other people is not privileged. U.S. v. Sotto o Privilege as a defense BLOCK A 2011-­‐2012 General Rule -­‐ it is incumbent upon the accused, as a matter of defense, to establish such privilege.  Exceptions: 1. Except when such publication is made to show the abuse of power that a judge made. The material stated that the judge of the case boards in the house of the defendant and uses one of the cars of the defendant’s son at his convenience. Lu Chu Sing, et al. v. Lu Tiong Gui 2. When in the information itself it appears that the communication alleged to be libelous is contained in an appropriate pleading in a court proceeding, the privilege becomes at one apparent and defendant need not wait until the trial and produce evidence before he can raise the question of privilege. However the imputations must be really pertinent and relevant to the plea for reconsideration. Smith, Bell & Co. v. Ellis  Note: Pleadings are presumed to contain allegations and assertions lawful and legal in nature, which is presumed to be in good faith, but it will be under the scrutiny of courts. Cuenco v. Cuenco 3. If the matter is of irrelevant and impropriety then it cannot be considered as absolute privileged. People v. Andres 4. If statements are false but there is probable cause for belief in their truthfulness and the charge is made in good faith, but it must be made under an honest sense of duty, then it may fall under the privilege. U.S. v. Bustos Ex. 34 citizens sent a petition to the Executive Secretary for the removal of a judge with malfeasance in office. The judge was acquitted and filed charges. The court held that these are not simple accusations published in the press, but of charges predicated on affidavits made to a proper official. “In the performance of any legal, moral or social duty” 
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CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO a. Legal – it presupposes a provision of law conferring upon the accused the duty to communicate. Absent such provision, privilege would not apply. (People v. Hogan)  A communication sent by an official to his immediate superior, using somewhat harsh and uncalled for language, discussing an indorsement sent to him by his superior is considered a privileged communication. (Deano v. Godinez)  An administratrix of the estate of a deceased filed an objection with the commissioners, wherein the defendant made statements which reflected upon the virtue, honor and reputation of the plaintiff, is also privileged. (Zurbito v. Bayot) b. Moral duty – depends upon the relationship between the giver and receiver of the communication; and whether said communication is voluntarily given out.  Complaint in good faith made against a priest to his superior allegedly for drunkenness, taking indecent liberties of women, illicit relationship with a woman, is considered as privilege. Members of a religious organization have a moral duty to bring to the attention of church authorities misbehavior of their spiritual leader. (People v. Canete)  The key point here is the relationship. A wrote a letter to Caltex using libelous language, he admitted that he is neither connected with the company nor was answering to a query, the privilege cannot be awarded. (People v. Hogan) c. Social duty – It is dependent upon the relationship; however, the character must be social. There must be a social duty to perform.  Complaint against a teacher was addressed to the principal is privileged communication. (People v. Fabia) Paragraph 2 of Art. 354 – Fair and True Report • Requisites: FGW 1. That it is a fair and true report of a judicial, legislative, or other official proceedings which are not of confidential nature, or of a statement, report or speech delivered in said proceedings, or of any other act performed by a public officer in the exercise of his functions; 2. That it is made in good faith; and 3. That it is without any comments or remarks. •
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BLOCK A 2011-­‐2012 If all these requirements are present, the person who makes the report is not guilty of libel. “Fair and true” o Fair and true when it is only a narration of what had taken place, even if it is libelous and even if some errors had been committed in the process of publication. (People v. Roble) o Not fair and true when the report of the complaint is contrary to the report made. (Macleod v. Phil. Pub. Co.) “Comments or remarks” o The accused published the following statement, “The people will know because to his dying day Ganzon will not live down this incident where while the nation mourned the death of Magsaysay, he, Ganzon rejoiced in the same way that buzzards and coyotes rejoice over the same thing”. The accused should have stopped at reciting the facts only. (People v. Rico) “Proceedings” a. Judicial  True report of judicial proceedings is privileged. (U.S. v. Perfecto)  Allegations and averments in pleadings are absolutely privileged only insofar as they are relevant or pertinent to the issue. In an affidavit to support by a widow, containing libelous charge that the widow had been sustaining illicit relations with one of her material witnesses is privilege since it is relevant. (Tupas v. Parreno). However in a collection for professional fees and it alleged that the offended party evaded his obligations and disgusted by his creditors were held to be impertinent and unnecessary. (Montenegro v. Medina).  An action for libel on a defamatory matter uttered in the course of a judicial proceeding might be instituted even if the defamatory matter had not yet been stricken out of record. An action for libel accrues from the date of the publication.  Parties, counsels, and witnesses are exempted from liability in libel or slander for words otherwise defamatory published in the course of judicial proceedings, provided that the statement are pertinent or relevant to the case. (Santiago v. Calvo). However defamation by a client against his lawyer (a third person, since there is no principal – agent relationship) prior to the judicial proceeding, such privilege is not applicable. (People v. Fernandez) b. Legislative  Congressional proceedings 121
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO A reporter ca publish records of the proceedings, provided that he does not give any comment or remark thereon and such is not of confidential nature. c. Other official proceedings  Official proceedings by other public officers in the exercise of their function. Ex. Mayor, City/Provincial councils. “Not of confidential nature” o When not forbidden by the court for publication in the interest of morality or decency (Sec. 2, Rule 135, Rules of Court) o Proceedings for disbarment of attorneys are private and confidential, except the final order of the court which may be made in public. (Sec. 10, Rule 139, Rules of Court) o Limited to cases in which the right of access is secured by law, and in which the purpose and object of the law is to give publicity to the contents of the record or document in the interest, or for the protection, of the public generally. (U.S. v. Santos) 
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Art. 355 – Requirement for publicity A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party. Libel may be committed by means of: 1. Writing 2. Printing 3. Lithography 4. Engraving 5. Radio 6. Photograph 7. Painting 8. Theatrical exhibition 9. Cinematographic exhibition 10. Any similar means Case law on the matter: 1. In the enumeration above, television is not included, probably because at the time the Revised Penal Code was conceived, television had not yet been invented. BLOCK A 2011-­‐2012 However, the law provides, “or any similar means” which easily qualifies television is such species or category. (People vs. Casten, C.A.) 2. Defamation through amplifier is not libel but oral defamation. The character of the enumerations have their permanent nature as a means of publication, an amplifier does not have such characteristic. (People v. Santiago) 3. When coupled with threats Mainly case to case basis, but if the offense committed is clearly and principally that of threats and that the statements derogatory to a person named do not constitute an independent crime of libel. It is considered as part of the more important offense of threats. (People v. Yebra) Art. 356 – Threatening to publish and offer to present such publication for a compensation The penalty of arresto mayor or a fine from 200 to 2,000 pesos, or both, shall be imposed upon any person who threatens another to publish a libel concerning him or the parents, spouse, child, or other members of the family of the latter or upon anyone who shall offer to prevent the publication of such libel for a compensation or money consideration. Acts punished: 1. Threatening another to publish a libel concerning him, or his parents, spouse, child, or other members of his family 2. Offering to prevent the publication of such libel for compensation or money consideration Blackmail: • Blackmail – in its metaphorical sense, blackmail may be defined as any unlawful extortion of money by threats of accusation or exposure. Two words are expressive of the crime – hush money. (US v. Eguia) o It involves the unlawful extortion of money by appealing to the fear of the victim, through threats of accusation or exposure. It contemplates of two offenses: a threat to establish a libel and an offer to prevent such publication. The gravamen of the crime is the intent to extort money or other things of value. Ex. A threatened to publish in a weekly periodical, certain letters, amorous in nation, written by a married woman and addressed by her to a man, not her husband, unless she pays 4k to them 122
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ATTY. JOSE ARTURO DE CASTRO Blackmail is possible in (1) light threats under Art. 283; and (2) threatening to publish, or offering to prevent the publication of, a libel for compensation, under Art. 356. •
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Art. 357 – Prohibited publication of acts referred to in the course of official proceedings The penalty of arresto mayor or a fine of from 20 to 2,000 pesos, or both, shall be imposed upon any reporter, editor or manager or 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: (ROP) 1. That the offender is a reporter, editor or manager of a newspaper, daily or magazine. 2. That he publishes facts connected with the private life of another. 3. That such facts are offensive to the honor, virtue and reputation of said person. *Applicable even if the facts involved are in official proceedings. •
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“Gag Law” – absence of one of the requisites, no violation of 357 The article requires two things to constitute a violation of the prohibition: 1. Art. published contains facts connected with the private life of an individual; and 2. That such facts are offensive to the honor, virtue and reputation of the said person. Newspaper reports on cases pertaining to adultery, divorce, issues about legitimacy of children, etc.. will be barred. Ex. Conjugal troubles and quarrels, adultery or divorce based on infidelity of the husband or the wife and attempts against the honor and virtue of woman. Suit for alimony (support) is not offensive to the honor of such person. News item containing the testimony of a prosecuting witness against the complainant is offensive to his honor but is not connected with his private life. BLOCK A 2011-­‐2012 Calling a priest savage, a carabao and alleging that he had a concubine; then subsequently published in the papers is an example of this violation. (People v. Dino) Under Republic Act No. 1477, amending Rep. Act. No. 58, the publisher, editor, columnist or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news report information appearing in the said publication which was related to him in confidence unless the court or a house or committee of Congress finds that such revelation is demanded by the security of the State. Art. 358 – Slander Oral defamation shall be punished by arresto mayor in its maximum period to prision correccional in its minimum period if it is of a serious and insulting nature; otherwise the penalty shall be arresto menor or a fine not exceeding 200 pesos. Oral Defamation: • Kinds of oral defamation: a. Action of a serious and insulting nature (Grave slander)  A woman who hurled at the complainant with offensive and scurrilous epithets, including words imputing unchastity to the mother and tending to injure the character of the daughters. (U.S. v. Tolosa)  Reciting scurrilous words to impute the victim in a crime of estafa, by using words such as, “he bribed money”, “has sold the union”, “he is engaged in racketeering”. (Balite v. People) b. Light insult or defamation – not serious in nature (Simple slander)  With a purpose to correct an improper conduct, the offender accuses the victim of living successively with several men. (People v. Clarin; compare with Tolosa. Diff is purpose and character of the party)  Calling a person a ganster. (Arcand v. People) P.S. baka white boy nag file ng case  Uttering defamatory words in the heat of anger. (People v. De Modesto)  Defamation uttered in a political meeting. (People v. Laroga) Note: the word “puta” does not impute that the complainant is a prostitute. (People v. Atienza); “Putang ina mo” is an expression of anger and displeasure. (Reyes v. People); It is not necessary that the person must 123
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ATTY. JOSE ARTURO DE CASTRO hear the slanderous words because a man’s reputation is the estimate in which others hold him. (People v. Clarin) 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 4. Social standing and position of the offended party are also taken into account 2.
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Art. 359 – Slander by deed The penalty of arresto mayor in its maximum period to prision correccional in its minimum period or a fine ranging from 200 to 1,000 pesos shall be imposed upon any person who shall perform any act not included and punished in this title, which shall cast dishonor, discredit or contempt upon another person. If said act is not of a serious nature, the penalty shall be arresto menor or a fine not exceeding 200 pesos. Elements: (NPD) 1. That the offender performs any act not included in any other crime against honor. 2. That such act is performed in the presence of other person or persons. 3. That such act casts dishonor, discredit or contempt upon the offended party. Slander by deed: • Slander by deed – a defamation committed by the offender against the complainant through the performance of any act which casts dishonor, discredit or contempt upon another person. Slander by deed refers to performance of an act, not use of words. Ex. •
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Slapping someone to ridicule and shame her in public. (People v. Delfin) Slapping a priest while officiating a religious ceremony. (People v. Nosce) Slapping a teacher during a dance. (People v. Roque) Two kinds of slander by deed: a. Simple slander by deed b. Grave slander by deed – of a serious nature. Determining if serious or not: 1. on the social standing of the offended party; BLOCK A 2011-­‐2012 the circumstances under which the act was committed; the occasion, etc. Note: The courts have discretion on determining the degree of the slander. (People v. Motita) Distinctions: a. Deed compared with maltreatment: The nature and effects determine the crime. If there is shame or humiliation it becomes slander by deed. Ex. Holding a teacher by the hair and shaking him in the presence of a lot of people is slander by deed. b. Unjust Vexation-­‐irritation or annoyance/anything that annoys or irritates without justification. c. Slander by Deed-­‐irritation or annoyance + attendant publicity and dishonor or contempt. d. Acts of lasciviousness-­‐irritation or annoyance + any of 3 circumstance provided in Art 335 of RPC on rape: 1. use of force or intimidation 2. deprivation of reason or rendering the offended unconscious 3. offended party under 12 yrs of age+lewd designs Section 2 – General provisions Art. 360 – Persons responsible Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same. The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof. The criminal and civil action for damages in cases of written defamations as provided for in this chapter, shall be filed simultaneously or separately with the court of first instance of the province or city where the libelous Art. is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense: Provided, however, That where one of the offended parties is a public officer whose office is in the City of Manila at the time of the commission of the offense, the action shall be filed in the Court of First Instance of the City of Manila, or of the city or province where the libelous Art. is 124
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO printed and first published, and in case such public officer does not hold office in the City of Manila, the action shall be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense or where the libelous Art. is printed and first published and in case one of the offended parties is a private individual, the action shall be filed in the Court of First Instance of the province or city where he actually resides at the time of the commission of the offense or where the libelous matter is printed and first published: Provided, further, That the civil action shall be filed in the same court where the criminal action is filed and vice versa: Provided, furthermore, That the court where the criminal action or civil action for damages is first filed, shall acquire jurisdiction to the exclusion of other courts: And, provided, finally, That this amendment shall not apply to cases of written defamations, the civil and/or criminal actions which have been filed in court at the time of the effectivity of this law. Preliminary investigation of criminal action for written defamations as provided for in the chapter shall be conducted by the provincial or city fiscal of the province or city, or by the municipal court of the city or capital of the province where such action may be instituted in accordance with the provisions of this Art.. No criminal action for defamation which consists in the imputation of a crime which cannot be prosecuted de oficio shall be brought except at the instance of and upon complaint expressly filed by the offended party. Who are liable: 1. person who publishes, exhibits or causes the publication or exhibition of any defamation in writing or similar means(par.1) 2. author or editor of a book or pamphlet 3. editor or business manager of a daily newspaper magazine or serial publication(par.2) 4. 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 (US v Ortiz) Person liable: 1. The prime requisite of the crime of libel is not necessarily the composing of the article, but the publishing of it.  A sent a letter to B containing very intimate expressions, after breaking up, B published the letter, thus he liable for libel. 2. Author or editor 
BLOCK A 2011-­‐2012 Editor is liable for the defamations contained therein to the same extent as if he were the author. (People v. Bailo) Venue: • For criminal and civil action for damages in cases of written defamation it shall be filed simultaneously or separately with the court of first instance of the province or city: o where the libelous article is printed and 1st published or o where any of the offended parties actually resides at the time of the commission of the offense • Libel cases are within the original and exclusive jurisdiction of the Regional Trial Courts. Inferior courts have no jurisdiction to try written defamation. (People vs. Hechanova) • Where one of the offended parties is a public officer: a. If his office is in the City of Manila  RTC of Manila OR  City/province where the article is printed and 1st published b. Otherwise:  RTC of the city/province where he held office at the time of offense; or  Where the article is 1st published o In order to prevent controversies as to the venue of criminal actions for written defamation, the information or complaint must contain averments as to whether the offended party is a private or public officer at the time of the commission of the offense and whenever possible, the place where the written defamation was printed and first published. (Agbayani, et al., vs. Hon. Sayo, et al)  The Philippines follows the multiple publication rule which means that every time the same written matter is communicated, such communication is considered a distinct and separate publication of libel. (Soriano v. IAC) • Damage  Where the publication is libelous per se, actual damages need not be established. This is so because libel, by its very nature, causes dishonor, disrepute and discredit and injury to the reputation of the offended party. It is something inherent and natural in the crime of libel. (Lu Chu Sing vs. Lu Tiong Gui)  An axtion for exemplary damage in libel may be awarded if the action is based on quasi-­‐delict. (Lopez v. CA, under Art. 2231 of the Civil Code) 125
CRIMINAL LAW II FINALS REVIEWER ATTY. JOSE ARTURO DE CASTRO Art. 361 – Proof of the truth 1.
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 good motives and for justifiable ends, the defendants shall be acquitted. 2.
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. 3.
In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted. 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; 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. Last paragraph: • Proof of truth may be admitted: 1. If the act or omission imputed constitutes a crime; 2. If the imputation not constituting a crime is made against government employees with respect to facts related to the discharge of their duties. o Proof of his good motives and justifiable ends is not necessary. Proof of truth: • It cannot be made to rely upon mere hearsay, rumors or suspicion. • It must rest upon positive, direct evidence upon which a definite finding may be made by the court. U.S. v. Sotto But probable cause in the truth of the statement is sufficient. When not admissible: BLOCK A 2011-­‐2012 When it refers to condition. • A imputed B to be a drunkard and suffering from a contagious disease, he will not be allowed to prove the truth. When it refers to acts not constituting a crime • Where the offended party imputed some commission of a crime and some not constituting a crime, the court allowed him to prove the truth as to the imputation of the commission of a crime but not to the latter. Tumang v. People For Public officers, truth is a good defense • B imputed M (mayor) to have been sleeping on his duties. Requisite of defense I defamation 1. “If it appears that the matter charged as libelous is true” • Act or omission constituting a crime and Act or omission of a public officer not a crime related of his duties. 2. “It was published with good motives” • Determined by the court taking into consideration the intention of the author and other circumstances 3. “And for justifiable ends” • Goodness of intention is not always sufficient. U.S. v. Prautch. Publishing must be justified. • Imputation of a contagious disease. People v. Chavez Good motives and justifiable ends negate malice. Retraction: Retraction may mitigate the damage. o A periodical which gives currency issued a false statement and subsequently issuing a statement of retraction. o Requirement is admission of falsity and evinced by a desire to repair the wrong done. Matti v. Bulleting Publishing Co. o Publication due to an honest mistake may only mitigate the damage and not extinguish it. Phee v. La Vanguardia Art. 362 – Libelous remarks Libelous remarks or comments connected with the matter privileged under the provisions of Art. 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability. Reason: 126
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ATTY. JOSE ARTURO DE CASTRO BLOCK A 2011-­‐2012 The main thrust of the law is to punish libelous remarks or comments on matters which are privileged, if made with malice in fact. So, a newspaper reporter who distorts facts connected with official proceedings or who adds comments thereon as to cast aspersion on the character of the parties involved, is guilty of libel even through the defamatory matter is published in connection with a privileged communication. Dorr vs. U. S. 127