BOOK TWO
CRIMES AND PENALTIES
and
SPECIAL CRIMINAL LAWS
TITLE ONE
CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
CHAPTER ONE
CRIMES AGAINST NATIONAL SECURITY
Section One — Treason and Espionage
The crimes against national security are as follows:
1,
Treason (Art. 114)
Conspiracy and Proposal to Commit Treason (Art. 115)
Misprision of Treason (Art. 116)
U
Espionage (Art. 117), and
Terrorism and Conspiracy to Commit Terrorism (RA
9372, The Human Security Act of 2007, “An Act to Secure
the State and Protect our People from Terrorism”)
The crimes against the law of nations are as follows:
s
Inciting to War or Giving Motives for Reprisals (Art. 118)
2.
Violation of Neutrality (Art. 119)
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3.
Correspondence with Hostile Country (Art. 120)
4.
Flight to Enemy’s Country (Art. 121), and
5.
Piracy in General and Mutiny on the High Seas (Art. 122)
The crimes against national security have extra-territorial
application. Even if the crimes are committed outside of Philippine territory, the offenders can be charged and prosecuted before
Philippine courts. This is an exception to the territorial application
of criminal law under Article 2, paragraph (5) of the Revised Penal
Code.
If the offender is within Philippine territory, prosecution can
proceed as a matter of course. However, if he is within the territorial jurisdiction of another country he may be brought to the country
by means of extradition if the country has an existing extradition
treaty with that country.
The crimes against the law of nations are considered crimes
against humanity or crimes against mankind. Thus, the accused can
be prosecuted wherever and whenever he may be found.
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 overt 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. (As amended by Sec. 2,
RA No. 7659)
Elements:
1.
2.
3.
The offender is a Filipino or a resident alien;
There is war in which the Philippines is involved;
The offender either:
a)
b)
Levies war against the government; or
Adheres to the enemies, giving them aid or comfort.
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
Chapter One — Crimes Against National Security
Treason
3
is betrayal of allegiance to one’s country in time of
war.
Treason is a war time offense. It can be committed only in
time of war. It cannot be committed in time of peace because during
peace time there are no traitors.
Persons liable:
L,
Filipino citizens — those who owe permanent allegiance to the
Philippine government.
Resident aliens — those who owe temporary allegiance to the
government.
Is there a need for a formal declaration of war before Treason can
be committed?
Answer:
No, a formal declaration of war is not needed before treason can be committed. It is not an element of the offense. When
armed hostilities have begun there is no need that the existence of war be declared. Example: During World War 11, while
the Emperor of Japan was talking with the President of the
United States of America, Japan treacherously bombed Pearl
Harbor. The bombing of Pearl Harbor signaled the beginning
of war between Japan and the United States. There was no
need that the existence of war between Japan and the United
States be declared by either of them. When a Filipino citizen or
a resident alien commits any of the acts of committing treason
in the course of such armed hostilities, he is liable for treason.
Two ways of committing Treason:
1.
Levying war —
Philippines.
waging
war
against
the
government
of the
Adhering to the enemies, giving them aid or comfort.
Illustrations:
Levying war against the government:
Japan and the Philippines are at war. Japan invaded
the Philippines. X a Filipino citizen became sympathetic with
the military imperialism of Japan. X collaborated with the
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Japanese soldiers in waging war against the Filipino troops.
He fought along with the Japanese imperial army and killed a
few Filipino soldiers and civilians. X is a traitor. He is liable for
Treason.
Adherence to the enemies, giving them aid or comfort
Adherence to the enemies can be manifested by oral or emotional declaration or avowal of favor, sympathy or compassion to the
enemies in waging war against the Philippines.
China and the Philippines are at war. China invaded the Philippines and subdued resistance in Lingayen, Pangasinan. Chinese
armed forces occupied Lingayen, Pangasinan. X, a Filipino citizen,
publicly declared that he is supporting the reign of China. He gave
financial and material support to the Chinese soldiers to the extent of giving them information about the movements of Philippine
troops. X is a traitor. He adhered to the enemies giving them aid or
comfort. He is liable for Treason.
Adherence alone without giving aid or comfort is not Treason
On the other hand, giving aid or comfort without adherence is also not Treason. Both adherence and giving of aid or
comfort must go hand in hand.
Problems:
1.
Malaysia invaded the Philippines. X is a Filipino cit-
izen who has became sick and tired of the Philippine Government. He publicly manifested that he is in favor of the military
aggression of Malaysia and he is supporting it. X is not liable
for Treason. Mere adherence to the enemies without giving
aid or comfort does not amount to Treason.
2.
In the same problem, Malaysian troops went to the
house of X. They compelled X under pain of death if he does
not give them food, shelter and clothing. X was constrained to
serve them. In this case, although X gave the enemies aid or
comfort, he did not adhere to the enemies. Giving aid or comfort to the enemies without adherence is not punishable. X is
not liable for Treason.
Adherence and giving aid or comfort must always be together to make one liable for Treason. “As unto the bow the
cord
is, as
unto
a man
is woman
useless
each
without
the
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
5
Chapter One — Crimes Against National Security
other.” The same thing obtains in adherence and giving aid or comfort. Both must always go together. Absent one element and there is
no treason.
However, if a Filipino citizen sides with the enemies and en-
gages the armed
forces of the Philippines in combat, there is no
doubt that by his act, he has shown adherence to the enemies and is
liable for Treason.
Two ways of proving Treason:
1.
Testimony of two witnesses to the same overt act; or
2.
Confession of accused in open court.
What is the quantum of evidence needed to prove Treason?
Answer:
The SEVERELY
RESTRICTIVE
RULE
or the TWO
WITNESS RULE provides that to attain conviction in Treason, two witnesses must testify on the act of Treason committed by the accused and if the act is separable, two witnesses
must testify on each separate act. (People v. Adriano, G.R. No.
1-477, June 1947)
Adherence
nesses. Criminal
the testimony of
itself, or from the
need not be proved by the
intent and knowledge may
one witness or from the
circumstances surrounding
oaths of two witbe gathered from
nature of the act
the act.
However, the act of giving aid or comfort must be established by the deposition of two witnesses. Each of the witnesses must testify to the whole overt act, or if separable, there
must be two witnesses to each part of the overt act.
Illustration:
North Korea invaded the Philippines. X is a Filipino citizen. X publicly declared that he is embracing the cause of North
Korea and is supporting it. He gave material and financial support to the North Koreans. After the war, X was prosecuted for
Treason. One witness was presented to prove his public declaration showing his adherence to the enemies. Two witnesses
were presented to prove his act of giving aid or comfort to the
enemies. If you were the judge trying the case, will you convict
or acquit X? Why?
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BOOK II OF THE REVISED PENAL CODE
Answer:
If T were the judge, I will convict X. The act of adherence
need not be proved by the testimony of two witnesses. One witness will suffice. The act of giving aid or comfort must always
be proven by the testimony of two witnesses. This obtains in
the instant case. The prosecution presented two witnesses who
testified on the act of giving aid or comfort.
Problems:
1.
Sin Tong is a Chinese citizen who had resided in
Sta. Maria, Pangasinan for 30 years. When China declared
war against the Philippines, Sin Tong and his many Chinese
friends attacked a military detachment manned by the Philippine Army and killed 15 soldiers. Did Sin Tong commit Trea-
son? Why?
Answer:
Yes, Sin Tong committed Treason because he is a resident
alien. Being a resident alien, he owes temporary allegiance to
the Philippine government. Considering that the Philippines
is at war with China, by levying war against Filipino soldiers
he breached the temporary allegiance he owes. This is treason.
That is the law.
2.
Sin Tong argues that he is not liable for Treason because he is a Chinese citizen fighting for his country and naturally, he became an enemy of the Philippines. Will your answer
be the same? Why?
Answer:
Yes, my answer will be the same. By becoming an enemy
of the Philippines, he did not lose his temporary allegiance to
the country because just the same, he continues to reside in the
Philippines. The fact remains that all the elements of the crime
are present. Hence, Treason is committed.
3.
After the war, X was charged with Treason. Witness
A testified that on June 5, 1944 he saw X in the company of
Japanese soldiers execute 20 Filipino soldiers. Another witness, B, testified that he saw X in the company of the same
Japanese soldiers execute 40 Filipino soldiers on July 4, 1944.
If you were the judge, will you acquit or convict? Why?
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
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Chapter One — Crimes Against National Security
Answer:
If I were the judge, I will acquit. There are two acts of
treason committed by the accused. One was committed on June
5, 1944 and the other on July 4, 1944. The prosecution pre-
sented only one witness in each separate act of Treason. The
law provides that if the acts of Treason are separable, two witnesses must testify to prove each separate act. The Severely
Restrictive Rule was not complied with.
Note:
Treason is a continuing
crime.
Even
if the offender
commits several acts of Treason he can only be charged with
one count of Treason. All such acts constitute a single offense.
Query:
Can treason be complexed with common crimes?
Example: Can there be Treason with Homicide or Treason with Arson?
Answer:
Treason cannot be complexed with common crimes. Treason is an umbrella crime or a component crime under which
common crimes committed on the occasion or in furtherance
thereof are deemed absorbed.
The offender can be charged with Treason only. (People
v. Hernandez, 99 Phil. 515; Enrile v. Judge Salazar, et al., 168
SCRA 217) This was the ruling of the Supreme Court when it
said that common crimes committed on the occasion or in furtherance of rebellion are only component elements of the crime
of rebellion. Thus, there is no complex crime of Rebellion with
Homicide and the like. Along the same vein, this ruling can be
applied to treason.
Confession of guilt in open court
Extrajudicial confession of a person is not the confession of guilt
that is contemplated by law. Thus, if a person accused of treason
previously executed a written confession before an investigating
officer that he had committed treason but during the arraignment
he interposed a plea of not guilty, he cannot be convicted on the basis
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of that written confession. An extrajudicial confession is admissible
in evidence but standing alone, it cannot support a judgment of
conviction for treason. The confession referred to is the voluntary
plea of guilt entered into by the accused during the arraignment.
(People. v. Chavez, September 25, 1965)
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 10,000 pesos, and prision correccional and a
fine not exceeding 5,000 pesos.
Proposal to commit felony exists when a person who has
decided to commit a felony proposes its execution to some other
person or persons. (Art. 8, RPC)
Conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to
commit it. (Art. 8, RPC)
As a rule, conspiracy is not a felony. It becomes a felony
only if there is a law punishing it. If there is no law punishing it
then there is no crime committed. It is only a manner of incurring
criminal liability.
There is no crime as Conspiracy
when there is no law punishing it.
to Commit
a Felony
Example:
A, B. and C agreed and decided to kill a town mayor in-
side a restaurant. X, a waiter, overheard their conversation. X
slipped through the back door of the restaurant and proceeded
to the police station where he reported the plan to kill the town
mayor. A team of policemen went to the restaurant and arrested A, B, and C who were about to leave the establishment.
A, B, and C were charged with Conspiracy to Commit Murder.
Will the charge prosper?
Answer:
No, the charge will not prosper. There is no such crime
as Conspiracy to Commit Murder under the Revised Penal
Code. There is no law punishing that conspiracy.
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AND THE LAW OF NATIONS
Chapter One — Crimes Against National Security
What are the punishable conspiracies?
5
Conspiracy to Commit Treason. — Penalty. — xxx Prision
Mayor and a fine not exceeding 10,000 pesos xxx (Art. 115,
RPC)
Conspiracy to Commit Coup d’ etat. — Penalty. — Prision
Mayor in its minimum period and a fine which shall not exceed
8,000 pesos xxx. (Art. 136, RPC)
Conspiracy to Commit Rebellion. — Penalty. — xxx Prision
Correccional in its maximum period and a fine which shall not
exceed 5,000 pesos xxx. (Art. 136, RPC)
Conspiracy to commit Insurrection. — Penalty. — xxx Prision Correccional in its maximum period and a fine which shall
not exceed 5,000 pesos xxx (Art. 136, RPC).
Conspiracy to Commit Sedition. — xxx Penalty. — Prision
Correccional in its medium period and a fine not exceed 2,000
pesos. (restored by E.O. No. 187)
Conspiracy to Commit Arson. — Penalty. — Prision Mayor
in its minimum period. xxx (PD 1613 amending the law on Arson, Articles 320-326 B, RPC)
Conspiracy to Commit Terrorism. — xxx Penalty. — xxx 40
years imprisonment (Sec. 4, RA 9372)
Conspiracy to violate RA 9165. (Sec. 26) —
pends on the act committed.
xxx Penalty de-
Is proposal to commit a felony punishable?
Proposal to commit a felony is punishable only when the law
specially provides a penalty therefore. (Art. 8, 1st paragraph, RPC)
If not, it is not a felony.
PROPOSAL TO COMMIT TREASON — there is proposal to
commit treason when a person who has decided to commit treason proposes its execution to some other person or persons.
Elements:
1
There is war in which the Philippines is involved;
2.
The accused has decided to levy war against the government or
to adhere to the enemies giving them aid or comfort;
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3.
He proposes its execution to some other person or
persons.
Illustration of Proposal to Commit
Treason:
North Korea and the Philippines are at war. X is a Fili-
pino citizen who is sympathetic to the cause of North Korea. He
had decided to go to war against the Philippine government.
He made publications promoting and espousing the military
aggression of North Korea. He proposed to a group of Filipinos
to collaborate with the North Koreans and fight the Filipino
troops. Is Guerrero liable for Proposal to Commit Treason?
Answer:
Yes, Guerrero is liable for Proposal to Commit Treason.
By his acts and pronouncements it is very clear that Guerrero
had decided to commit treason. He is liable for Proposal to
Commit Treason because in time of war in which the Philippines is involved, he had decided to wage war against the government of the Philippines and proposed its execution to some
other persons.
Problem:
Japan
invaded
the
Philippines.
Armed
hostilities have
begun. Guerrero is a Filipino citizen. He wanted to adhere to
the Japanese soldiers and give them aid or comfort but he was
afraid to do so. He went to A, B, C, D and E, all Filipino citizens
and proposed to them to adhere to the enemies by providing
them with food and other provisions and to give them information about the movement of Philippine troops. Is Guerrero
liable for proposal to commit treason?
Answer:
No, Guerrero
is not liable for Proposal
to Commit
Treason. From the facts of the case, it appears that Guerrero
was not decided to commit treason because he was afraid to
adhere to the Japanese soldiers by giving them aid or comfort.
There is proposal to commit a felony when the person who proposes its execution is decided to commit it. Such is not present in the case at bar.
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
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Chapter One — Crimes Against National Security
Query:
May a person be held liable for proposal to commit treason if the proposal is rejected by the person to whom the pro-
posal is made?
Answer:
Yes, because what the law punishes is the mere proposal
to commit treason by one who is decided to commit it. The acceptance of the proposal is not necessary.
Proposal to commit felony which is punishable by law:
i
Proposal to commit Treason (Art. 115, RPC)
2
Proposal to commit Rebellion (Art. 136, RPC)
3.
Proposal to commit Coup d’ etat (Art. 136, RPC)
4
Proposal to commit Insurrection
5
Proposal to commit Terrorism (RA 9372)
Note:
Sedition.
There
is no
such
crime
(Art. 136, RPC)
as
Proposal
to Commit
CONSPIRACY TO COMMIT TREASON — there is conspiracy to commit treason when two or more persons come to an agreement concerning the commission of treason and decide to commit it.
Elements of Conspiracy to commit treason:
1;
There is war in which the Philippines is involved.
2.
Two or more persons come to an agreement to:
a)
b)
3.
Levy war against the government; or
Adhere to the enemies giving them aid or comfort.
They decide to commit it.
Persons liable for Conspiracy to commit Treason
The
persons
liable are the co-conspirators
or those
in-
volved in the agreement.
Only the conspiratorial stage is punishable as conspiracy to
commit treason.
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12
The moment any of such co-conspirators has committed treasonous acts then the crime committed is already treason and not
merely conspiracy to commit treason.
But mere agreement without a decision to commit the crime is
not conspiracy to commit treason.
Conspiracy to overthrow
commit Treason when:
1.
the
government
is
not
proposal
to
The person who proposes to commit treason is not decided to
commit the felony;
There is no decided concrete proposal;
It is not the execution of treason that is proposed.
Illustration of Conspiracy to Commit Treason:
A, B, and C are Filipino citizens. China is at war with the
Philippines. A, B and C agreed and decided to adhere to the
Chinese soldiers and give them aid or comfort. A, B and C are
liable for Conspiracy to Commit Treason because in time
of war in which the Philippines is involved, they agreed and
decided to adhere to the enemies by giving aid or comfort.
If anyone of them has committed a treasonous act even
though unknown to the others, all of them are liable for Treason and not merely conspiracy to commit Treason. But the oth-
ers may invoke the defense that they were not aware of the
material execution of the eriminal act.
Notes:
1.
In Proposal to Commit Treason or Conspiracy to
Commit Treason, any person may commit the crime. The offender need not be a person who owes allegiance to the Philippine government or a resident alien. Article 115 of the Revised
Penal Code does not so require.
2.
The “severely restrictive rule” or the “two witness
rule” does not apply in Proposal to Commit Treason or Conspiracy to Commit Treason. It only applies to Treason.
ART. 116. Misprision of Treason. — Every person owing
allegiance to (the United States or) the government of the
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
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Chapter One — Crimes Against National Security
Philippine islands, without being a foreigner, and having
knowledge of any conspiracy against them, who 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:
1.
Offender must owe allegiance to the Government of the Philippines;
2.
Offender is not a foreigner;
He has knowledge of a conspiracy to commit treason against
the said government; and
4.
He conceals or fails to disclose the same to the governor or fiscal of the province or to the mayor or fiscal of the city in which
he resides as soon as possible.
Misprision of treason is a felony by omission. It is committed by the failure to do an act required by law. However, it is
committed by means of dolo or intent. Note the words “he conceals
or does not disclose and make known his knowledge” xxx as
soon as possible.
Illustration of Misprision of Treason:
North Korea and the Philippines are at war. X is a Filipino citizen. X has knowledge that A, B, C, D, and E who are
also Filipino citizens, have agreed and decided to adhere to
the North Koreans and give them aid or material support. The
meeting of the group was done in X’s house and so the latter
heard every detail of the conspiracy. X concealed such knowledge and did not report the conspiracy to commit treason to the
authorities. X is liable for Misprision of Treason.
Notes:
When there is conspiracy to overthrow the government, the crime committed is conspiracy to commit rebellion. This is so because there is no war.
If a person who knows the conspiracy to commit rebellion does not report it to the authorities he is not liable for
misprision of rebellion because there is no such crime. (Bar
question)
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Essence of the crime
Misprision of treason is committed when a person who has
knowledge of a conspiracy to commit treason does not report it
to the authorities as soon as possible. The report must be made
before the conspirators could commit treason. In this case, a prompt
report could lead to the arrest of the conspirators before they could
commit treason. If Treason had been committed and the person hav-
ing knowledge of such commission concealed and did not disclose
such knowledge to the authorities, this crime is not committed. In
other words, failure to report knowledge of Treason already committed is not a crime.
Illustration:
Vietnam invaded the Philippines. War has begun. A, B, C,
and D are all Filipino citizens. They adhered to the Vietnamese soldiers and gave them aid or comfort. X, another Filipino
citizen knows the acts committed by A, B, C and D. Despite his
knowledge of the acts committed by A, B, C and D, X concealed
and did not disclose such knowledge to the governor or fiscal
of the province or mayor or fiscal of the municipality where he
resides. Is X liable for Misprision of Treason?
Answer:
No, X is not liable for Misprision of Treason. In the case
at bar, A, B, C and D have already committed Treason because
they adhered to the enemies and gave them aid or comfort. Under the law, what constitutes Misprision of Treason is concealment or failure to disclose and make known to the authorities
concerned knowledge of a Conspiracy to commit Treason and
not Treason already committed.
Penalty imposable in Misprision of Treason
The offender shall be punished as an accessory to the crime of
treason.
Who may commit the crime?
In treason, even aliens can commit said crime.
However, misprision
of treason can be committed only by
citizens of the Philippines. The obligation to report does not
include aliens even if they permanently reside in the Philippines.
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
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Chapter One — Crimes Against National Security
Relationship is not exempting
Even
if the conspirators
in treason
are parents, children
or
relatives, the one who comes to know about the conspiracy is still
mandated by law to report it. Love of country is superior
relationship. This exempting circumstance under Art. 20 of
does not apply to Misprision of Treason because this law
only to accessories. The accused in Misprision of Treason
sidered principals not accessories.
to blood
the RPC
applies
are con-
Query:
To whom should the report be made?
Answer:
The report need not be made solely to the governor or fiscal of the province or the mayor or fiscal of the city or munieci-
pality where the person who should make the report resides.
The report can be made to any person in authority having
equivalent jurisdiction a public authority is a person in authority. (Art. 152, RPC) Thus, a report to the provincial commander
or chief of police is substantial compliance with the law. It shall
shield a person from criminal liability.
ART. 117. Espionage. — The penalty of prision correccional shall be inflicted upon any person who:
1.
Without
authority thereof, enters
a warship,
fort,
or naval or military establishment or reservation to obtain
any information, plans, photographs, or other data of a con-
fidential 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
the offender be a public officer or employee.
if
Two modes of committing Espionage under the RPC:
1.
Without authority thereof, enters a warship, fort, or naval
or military establishment or reservation to obtain any information,
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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.
Elements of the first mode:
1.
Offender, without authority enters a warship,
tary establishment or reservation; and
naval or mili-
His purpose is to obtain information, plans, photographs or
other data of confidential nature relative to the defense of the
Philippines.
Hlustration of the first mode:
Gustavo surreptitiously entered the security room of Fort
Bonifacio without the knowledge of the guard on duty. He obtained plans, photographs, maps and other data of a confidential nature relative to the defense of the Philippines. Gustavo
is liable for Espionage. This is true whether or not he obtains the said material or not.
Intent
to
obtain
information,
plans,
photographs
or
other data of confidential nature relative to the defense of the
Philippines is enough. The offender doesn’t have to obtain such
materials.
Notes:
Espionage in the first mode is consummated by entering
any of the enumerated establishment as long as the purpose of
the offender is to obtain any of those materials which are vital
to the defense of the Philippines. The offender does not have to
actually obtain any such materials. What is required is that he
enters any of the establishments mentioned without authority
for the purpose of getting hold of any such materials. Mere entering will bring about a consummated espionage.
There is no such crime
frustrated espionage.
as attempted espionage or
The purpose in entering the establishment should be to
get any of the data or information adverted to above. If the
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Chapter One — Crimes Against National Security
purpose is not to obtain any of such materials, the crime committed is trespass to government property.
Elements of the second mode:
1.
Offender is a public officer;
2.
He has in his possession articles, data, or information referred
to in the first paragraph;
3.
He discloses their contents to a representative of a foreign na-
tion.
The offender here must be public officers who have custody of
the articles, data or information. Not all public officers or employees
can commit the crime.
If the offender is not the custodian of the said documents, he
is not liable for Espionage but for Violation of Commonwealth
Act No. 616 if he discloses information relative to the defense of the
Philippines.
If the information disclosed to a representative of a foreign nation does not relate to the defense of the Philippines and the offender
is the custodian thereof, he is liable for Infidelity in the Custody
of Public Records.
Illustration of the second mode:
Col. Artemio De las Alas is a ranking official of the
military at Camp Crame. He was sent on a study grant in
Nursia, Italy. By virtue of the position that he holds, he was in
possession of data of confidential nature affecting the defense
of the Philippines. While he was in Italy, he passed on the said
vital information to the Bolsheviks of Russia. Col. De las Alas
is liable for Espionage.
COMMONWEALTH ACT NO. 616 — An Act to punish Espionage and other offenses against National Security.
Acts punished:
1.
Unlawfully obtaining or permitting to be obtained information
affecting national defense;
Unlawful disclosing of information affecting national defense;
Disloyal acts or words in time of peace;
CRIMINAL LAW
BOOK IT OF THE REVISED PENAL CODE
18
Disloyal acts or words in time of war;
Conspiracy to violate the preceding sections; and
Harboring or concealing violators of the law.
Section Two — 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 war involving or
liable to involve the Philippine Islands or exposes Filipino
citizens to reprisals on their persons or property.
Elements:
8
The offender is a public officer or employee;
2.
He performs acts which provoke or give occasion for:
a)
b)
A war involving or liable to involve the Philippines; or
Exposure of Filipino citizens to reprisals on their persons
or property.
Notes:
There was a time when the Philippine government hotly
pursued its claim over Sabah. The government anchored its
claim on the ground that the Sultan of Borneo ceded Sabah in
favor of the Philippines. This was the reason why under the
National Territory provision of the 1973 Constitution there
was a phrase “and all the other territories belonging to the
Philippines by historic right or legal title” — x x x in delineating the national territory of the Philippines. The rationale was
that if the Philippines shall have finally annexed Sabah as part
of its territory there was no more need to amend the constitution because Sabah is deemed included in the national territory of the Philippines by virtue of the said phrase.
A covert military operation was hatched. A special com-
mando was trained to infiltrate and attack Sabah for the purpose of annexing it as part of Philippine territory. However
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
Chapter One — Crimes Against National Security
19
before the commando could launch its attack, a young congressman from Tarlac by the name of Benigno Aquino Jr. delivered a privilege speech in the House of Congress and exposed
the said covert military operation. Malaysia almost declared
war against the Philippines. It considered the act as inciting to
war. To appease Malaysia, the Philippine government ordered
an investigation to uncover the public officials or military officers who were behind the plan. Before the investigation could
progress though, the members of the special commando were
annihilated under mysterious circumstances including their
commander,
Major Abdul Latiff Martelino.
In the annals of Philippine history this is known
infamous JABIDAH MASSACRE.
as the
Had the public officials who were behind the aborted military operation been identified they could have been charged
with the crime of Inciting to War or Giving Motives for
Reprisal.
ART.
119.
Violation
of neutrality. —
The
penalty of pri-
sion 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 authorities for
the purpose of enforcing neutrality.
Elements:
1.
There is war in which the Philippines is not involved;
2.
Competent authorities have issued regulations enforcing neutrality; and
3.
The offender violates any of said regulations.
Notes:
The offender could be any person. It is committed during
a war in which the Philippines is not involved. To commit the
crime, there must be a regulation for the observance of neutrality. The motivating rationale here is that the Philippines does
not have any intention to side with or be against any of the
warring countries. It does not want to incur the ire of any of
them by the act of any person under its jurisdiction. The regulations imposed by the authorities are meant to be followed
or observed. It is the violation of such regulation that brings
about the crime.
20
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
Illustration:
Japan and China are at war. China invaded Japan. The
Philippine government did not want to embroil itself in the
war. The President of the Philippines upon due consultation
with the House of Senate and House of Representatives adopted a policy of neutrality and disseminated the regulations for
its enforcement. X, a Filipino businessman, violated the regulations enforcing neutrality by giving financial and material
aid to China. X is liable for Violation of 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;
2.
By prision major, if such correspondence
ried on in ciphers or conventional signs; and
be car-
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:
1.
There is a war in which the Philippines is involved;
2.
The offender makes correspondence with an enemy country or
territory occupied by enemy troops;
3.
The correspondence is either:
prohibited by the government;
carried on in ciphers or conventional signs; or
c.
containing notice or information which might be useful to
the enemy.
Illustrations:
1.
Japan and the Philippines are at war. The Philippine government prohibited all forms of communications with
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
21
Chapter One — Crimes Against National Security
Japan. X, a Filipino citizen, writes to another in Japan. What
crime did commit? Why?
Answer:
X committed the crime of Correspondence with a Hostile Country. He communicated with the enemy country despite the prohibition imposed by the government.
2.
Suppose in the same problem, X sent a text message
to a text mate in Japan, is he liable?
Answer:
Yes, X is still liable. Correspondence in any form is prohibited by the Philippine government.
3.
Japan invaded the Philippines. Bataan had fallen in
the hands of the Japanese soldiers. The Philippine government
prohibited communication or correspondence with any person
in Bataan. X writes to Y who is in Bataan. Is X liable for Correspondence with a hostile country? Why?
Answer:
Yes, X is liable for Correspondence with a Hostile
Country because he had correspondence with Bataan, a territory occupied by enemy troops in time of war. The implication
is that when a person communicates with another in an enemy
country or territory occupied by the enemy, information useful
to the enemy might be passed or transmitted.
ART. 121. Flight to enemy’s 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.
Elements:
L
Existence of war in which the Philippines is involved;
2
Offender owes allegiance to the Philippines;
3.
He attempts to flee or go to an enemy country; and
4
The flight is prohibited by a competent authority.
22
BOOK
CRIMINAL LAW
II OF THE REVISED PENAL CODE
Notes:
This
crime
can
be committed
in time
of war
in
which the Philippines is involved.
The offender in this case is a person who owes allegiance
to the Philippines. A tourist cannot commit this crime. It is
committed when a citizen of the Philippines or a person owing
allegiance to the Philippine government attempts to go to an
enemy country. This is aimed at preventing the flight to an enemy country of a person who owes allegiance to the Philippines
because of the possibility that he might furnish the enemy vital
information that may be useful to the said enemy to the detriment of the Philippines.
There is no ATTEMPTED FLIGHT TO
COUNTRY or FRUSTRATED FLIGHT TO
COUNTRY.
ENEMY'S
ENEMY'S
This crime is consummated by mere attempt. Therefore,
there is no such crime as attempted flight to enemy’s country
or frustrated flight to enemy’s country.
Illustration:
Singapore declared war against the Philippines. War
raged on. X, a Filipino citizen, boarded a plane bound for Singapore. Before the plane could take off, X was arrested by the
authorities. Is X liable for Flight to enemy’s country?
Answer:
Yes. X is liable for Flight to Enemy’s Country. He attempted to flee or go to the enemy country. This crime is consummated by mere attempt.
Section Three — Piracy and Mutiny on the High Seas or
in Philippine Waters
ART. 122. Piracy in general and mutiny on the
or in Philippine waters. — The penalty of reclusion
shall be inflicted upon any person, who on the high
Philippine waters, shall attack or seize a vessel or,
a member of its complement nor a passenger, shall
high seas
temporal
seas or in
not being
seize the
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
23
AND THE LAW OF NATIONS
Chapter One — Crimes Against National Security
whole or part of the cargo of said vessel, its equivalent, or
personal belongings of its complement or passengers.
The same penalty shall be inflicted in case of mutiny on
the high seas or in Philippine waters. (As amended by Sec. 3,
RA No. 7659)
What is Piracy?
Piracy is robbery or forcible depredation on the high seas
without lawful authority and done with animo furandi and in the
spirit and intention of universal hostility. (People v. Lol-lo, et al.,
supra)
Robbery is the taking of a personal property belonging to an-
other with intent to gain by:
1.
Intimidation against persons;
2.
Violence against persons;
3.
Force upon things.
Piracy is considered as a crime against the whole world. It is
a crime against mankind. Along this line, pirates can be prosecuted
wherever they may go and wherever they are arrested.
The pirates violate not the law of a particular country but the
law of nations.
Three kinds of piracy:
1.
Piracy in the high or open seas (RPC);
2.
Piracy in Philippine waters (PD 532 as amended by RA 7659,
the Heinous Crime Law);
3.
Air piracy (RA 6235).
Piracy in the high or open seas can be committed by the
following:
1.
By attacking a vessel in the high or open seas;
2.
By seizing the whole or part of the cargo of said vessel, its
equivalent, or personal belongings of its complement or its pas-
sengers.
“High seas” — refers to the body of water
territorial waters of the Philippines, even if such
territorial waters of another country.
outside of the
is within the
24
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
“Complement” — the full number of officers and crew needed
to man a ship.
Who may commit piracy in the high or open seas?
—
—
Only outsiders
It cannot be committed by passengers or members
crew or complement of the vessel.
of the
Who are pirates in the high or open seas?
Pirates in the high or open seas are outsiders to the vessel.
They should not be passengers or members of the crew or comple-
ment of the vessel. In other words, they should not be insiders.
If a person is lawfully admitted to the vessel other than a crew
or a complement of the vessel, then he is a passenger. If he gets a
personal property belonging to another passenger while the vessel
is in the high or open seas by means of force or intimidation, he is
liable for ROBBERY and not PIRACY. (Bar question 2008)
But if he boards the vessel without being lawfully admitted
thereto, and divests a passenger of his personal property by means
of violence or intimidation or force upon things, he is liable for PI-
RACY on the high or open seas. He is still considered as outsider
not being a passenger in the contemplation of law.
PIRACY IN PHILIPPINE WATERS
(PD 532
as superseded by RA 7659)
Who may commit Piracy in Philippine waters (Internal waters)?
—
outsiders
—
insiders (passengers or members of the crew or complement of
the vessel)
Notes:
Originally, piracy and mutiny can only be committed on
the high seas (outside of Philippine waters).
In 1974, PD 532 (The Anti-Piracy and Anti-Highway Robbery Law of 1974) was enacted punishing Piracy committed in internal waters or Philippine waters, but not Mutiny.
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
Chapter One — Crimes Against National Security
25
Thus, we now have two kinds of Piracy:
1.
2.
Piracy under the Revised Penal Code committed on the
high seas;
Piracy in Philippine waters or internal waters.
PD 532 was superseded by RA 7659,
Law
The Anti-Heinous Crime
RA 7659 (The Anti-Heinous
Crime Law) pro tanto
superseded PD 532 by punishing Piracy as well as Mutiny,
whether committed on the high seas or in Philippine waters
and the penalty was increased from reclusion temporal to reclusion
perpetua.
Thus,
Piracy
can
now
be
committed
on
the
high
or
open seas or in Philippine waters. And Mutiny can now be
committed on the high or open seas and also in Philippine
waters.
Vessel is any watercraft used for transport of passengers or
cargo from one place to another in Philippine waters. It includes all
types and kinds of vessel or boats used in fishing. Examples:
banca, motorboat, ship.
raft,
Problems:
1.
While X was on board his boat at the Agno River,
Y attacked him and with the use of a gun seized his personal
belongings. What crime did Y commit? Why?
Answer:
Y committed Piracy. Under PD 532 as amended, Piracy
can now be committed in Philippine waters by outsiders to
the vessel or who are not passengers or members of the crew.
Pirates are outsiders of the vessel.
2.
X and Y are passengers of MV Princess, an interis-
land vessel. While the vessel was in the waters of Cebu, X took
the watch of B by means of threats and intimidation.
crime did X commit? Why?
What
Answer:
X committed
Piracy.
Under PD
532 as amended,
Piracy
can now be committed by a passenger of a vessel, member of
the crew or complement of a vessel.
CRIMINAL LAW
BOOK IT OF THE REVISED PENAL CODE
26
3.
MV Bato is an interisland vessel. While on its way
to Tacloban, Leyte, X a passenger, took the wallet of Y, another passenger without the latter’'s knowledge or consent. What
crime did X commit? Why?
Answer:
X committed Theft. The taking of the personal property
of Y was without violence or intimidation or force upon
things. It cannot be Piracy because the essence of piracy is
robbery. If robbery is committed on board a vessel by an outsider or insider, the crime is not robbery but piracy.
4.
MV
Orient, a Panamian vessel was forced to seek
refuge near an island of Taiwan to avoid the wrath of a thun-
derstorm. While it was in the territorial waters of Taiwan, a
fast motorboat manned
by A, B, and C attacked the Panamian
vessel by firing at it. What crime did A, B, and C commit? Why?
Answer:
A, B, and C are liable for Piracy in the high or open
seas. They attacked the vessel in the high or open seas.
5.
While a Holland merchant vessel was at the Indian ocean, it was seized by a group of persons on board a fast
moving vessel. The group was led by the notorious Turko who
earned the cognomen “the terror of the seventh sea.” The cargo
of the vessel was also seized. What crime did Turko and his
men commit? Why?
Answer:
Turko and his men committed Piracy in the High or
Open Seas. They seized the vessel and its cargo while the
vessel was at the high or open seas.
ABETTING
any person who:
L
PIRACY
(PD 532) — is the crime committed by
Gives pirates information about the movement of peace officers
of the government;
Acquires or receives property taken by the pirates or devices
any benefit from it;
Directly or indirectly abets the commission thereof.
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
27
Chapter One — Crimes Against National Security
Illustrations:
1.
X is a friend of the pirate Captain John Long. The
pirate is being sought by the Philippine Coast Guard. There
was information that Captain Long and his men sought refuge
in the island of Romblon. X communicated with Captain Long
and advised him to leave in a jiffy as the Philippine Coast
Guard was on its way to apprehend him. What
commit?
crime did X
Answer:
X committed Abetting Piracy. He gave the Pirate Captain John Long information about the movement of the Philippine Coast Guard. He alerted him in time to afford him time to
escape.
2.
X received expensive jewelries from Graciano, the
“Pirate of the Caribbean.” X knew all along that the said jewelries were the proceeds of piracy. Yet, he willingly accepted
them. What crime did X commit?
Answer:
X committed Abetting Piracy. He accepted or received
items from the pirates which he knew to be proceeds of piracy.
Note: Lack of knowledge that the item came from piracy
is a defense.
MUTINY is the unlawful resistance to a superior officer or the
raising of commotions and disturbances aboard a ship against the
authority of its commander.
Elements of Mutiny:
L
The vessel is on the high seas or Philippine waters;
2.
Offenders are members of the complement of the vessel or passengers of the vessel;
The offenders:
a.
Attack or seize the vessel;
b.
Seize the whole or part of the cargo, its equipment or personal belongings of the crew or passengers.
28
CRIMINAL LAW
BOOK 11 OF THE REVISED PENAL CODE
Two kinds of Mutiny
1.
Mutiny in the high or open seas; and
2.
Mutiny within Philippine waters.
Illustrations:
Mutiny in the High or Open Seas
1.
MV Panama is owned and registered under the laws
of Panama.
While the vessel was in the Pacific Ocean,
the
members of the crew rebelled against internal management
of the vessel. They defied the ship captain and controlled the
vessel. The members of the crew are liable for Mutiny on the
High or Open Seas.
Mutiny within Philippine Waters
%
MV
PRINCESS
OF THE
STARS,
a merchant
ship
registered in Holland docked at Pier 14 Manila Bay. The members of the crew or passengers attacked the ship captain and’
seized control of the vessel. What crime was committed? They
committed the crime of Mutiny within Philippine waters.
Under RA 7659, Mutiny can now be committed in Philippine waters.
ART.
temporal
any of the
any of the
123. Qualified piracy. — The penalty of reclusion
to death shall be imposed upon those who commit
crimes referred to in the preceding article, under
following circumstances:
1.
Whenever they have seized a vessel by boarding or
firing upon the same;
2.
Whenever
tims without
means
the
pirates have
abandoned
their vic-
of saving themselves; or
3.
Whenever the crime is accompanied by murder, homicide, physical injuries, or rape. (As amended by Sec. 3, RA
No. 7959)
When is Piracy qualified?
1.
When the pirates seize a vessel by boarding or firing upon
the same;
2.
When the pirates abandon their victims without means of
saving themselves;
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
29
AND THE LAW OF NATIONS
Chapter One — Crimes Against National Security
3.
When the crime is accompanied by murder,
physical injuries or rape.
homicide,
Qualified Piracy
If any of the circumstances in Article 123 is present, piracy is
qualified. The crime is called Qualified Piracy.
There is no complex crime of Piracy with Murder,
racy with Homicide, Piracy with Rape, etc.
Pi-
When any of the crimes of murder, homicide, rape, physical injuries accompany piracy, there is no complex crime. Instead, there is
only one crime committed — qualified piracy. Murder, rape, homicide, physical injuries are mere circumstances qualifying piracy and
cannot be punished as separate crimes, nor can they be complexed
with piracy.
Problems:
1.
A passenger of an interisland vessel robbed and
killed another passenger by stabbing him at the back for several times. The Prosecutor’s Office filed a complex crime of Piracy
with Murder. Is the charge correct? Why?
Answer:
The charge is not correct. Murder, rape, homicide, or
physical injuries are mere circumstances qualifying piracy.
Any of these crimes cannot be complexed with piracy. A special
law cannot be complexed with a felony under the Revised Penal Code. Only felonies can be complexed with one another.
2.
What if the Prosecutor’s Office filed two separate
crimes of Piracy and Murder, will your answer be the same?
Explain.
Answer:
Yes, my answer will be the same. The crime committed is
still Qualified Piracy. Any of such crimes of Murder, homicide, rape or physical injuries committed in the course of piracy
shall qualify the crime. They cannot be punished as separate
crimes.
Qualified Mutiny
Article 123 merely refers to qualified piracy. There is now a
crime of qualified mutiny.
30
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
Mutiny is qualified under the following circumstances:
(1)
When the offenders abandoned the victims without means of
saving themselves;
(2)
When the mutiny is accompanied by rape, murder, homicide,
or physical injuries.
Note:
The first circumstance that qualifies Piracy does not apply to Mutiny.
Illustrations of Qualified Mutiny:
1.
While a merchant vessel registered in the country
Alaska was at the Mediterranean seas, the crew of the vessel
rebelled against the ship captain. They defied his orders and
controlled the management of the vessel. They threw the captain into the turbulent waters. They left him despite his pleas
to take him back on board. What crime did the crew commit?
Why?
Answer:
They
committed
Qualified
Mutiny.
They
resisted
the
ship captain and took control of the ship. It is qualified because
they threw the ship captain into the water and abandoned him
without means of saving himself.
2.
A group of passengers violently took control of the
ship while it was in the Indian ocean. They hogtied the ship
captain and the complement of the ship. They raped five female
passengers of the ship. What crime did they commit? Why?
Answer:
They committed Qualified
Mutiny. The crime is quali-
fied because rape was committed in the course of the Mutiny.
Note:
Common crimes committed in the course of Mutiny cannot be complexed with Mutiny. Article 48 of the Revised Penal
Code is not applicable. There is no such crime as Mutiny
with Homicide, Mutiny with Murder, Mutiny with Rape
or Mutiny with Physical injuries. The proper denomination of the crime is still Qualified Mutiny.
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
Chapter One — Crimes Against National Security
REPUBLIC
31
ACT NO. 6235 (The Anti-Hijacking Law)
Anti-Hijacking 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 the anti-hijacking 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;
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;
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
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.
Problems:
1.
The pilots of the Saudia Airlines who were at the
lounge of NAIA were approached by armed men. They were
told to proceed to the aircraft and fly it to San Francisco, California. The armed men walked with the pilots and boarded the
aircraft. But before they could do anything on the airplane, the
AVSECOM arrested them. What crime was committed?
Answer:
The armed men committed Hijacking. The requirement
that the aircraft be in flight does not apply when it comes to
aircraft of foreign registry. Even if all the external doors
have not been closed it is still hijacking. Under the law, mere
usurping or seizing control of an aircraft of foreign registry is
enough as long as the said aircraft is within Philippine territory.
There is no such crime as Attempted or Frustrated
Hijacking. The crime of Hijacking is punished by a special
CRIMINAL LAW
BOOK IT OF THE REVISED PENAL CODE
32
law. Settled is the rule that the stages of execution under Art.
6 of the Revised Penal Code are not applicable.
2.
A Philippine Air Lines aircraft is bound for General
Santos City. While the pilot and co-pilot were on their way to
the aircraft X, Y, and Z followed them. As soon as the pilots
entered the cockpit, X, Y, and Z with drawn guns and hand
grenade instructed them to fly the plane. The passengers were
still boarding at this time. Are X, Y, and Z liable for Hijacking?
Why? If not, what crime is committed?
Answer:
No. X, Y, and Z are not liable for Hijacking. Under the
law, in case of an aircraft of Philippine registry, hijacking
can be committed if the aircraft is in flight. In the case at bar,
the aircraft was not yet in flight.
At most, the crime committed is Grave Threats.
When is an aircraft considered in flight?
An aircraft is considered in flight the moment all its
external doors are closed following embarkation until any of
such doors is opened for disembarkation.
3.
During a random inspection inside a China Airlines
at the NATA and before takeoff, Aldong “Phogie” Ymana, a passenger from Istanbul was found in possession of an explosive
substance. The passengers panicked. Aldong Ymana was arrested. What crime did Aldong “Phogie” Ymana commit? Why?
Answer:
Aldong “Phogie” Ymana committed Violation of the Anti-Hijacking Law. The law punishes carrying or loading on
board a public utility passenger aircraft operating in the
Philippines any flammable, corrosive or poisonous substance.
If it is a cargo plane, it is not covered by RA 6235.
4.
What if in the course of a hijacking a passenger or a
flight attendant was shot and killed. What crime or crimes is/
are committed?
Answer:
The crime committed is Violation of the Anti-Hijack-
ing Law. Under the law, if a passenger or complement of an
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
Chapter One — Crimes Against National Security
33
aircraft is killed, the crime is still Violation of the Anti-Hijacking Law but the penalty thereof is higher. There is no
separate crime of Homicide or Murder as the case maybe.
What if a passenger of a commercial plane threatens to
blow the plane by detonating a hand grenade that he surreptitiously carried inside the plane, what crime is committed?
Answer:
The crime committed is still Violation of the Anti-Hijacking Law. This is considered as a qualifying circumstance
which shall increase the penalty imposable.
REPUBLIC ACT NO. 9372
HUMAN
SECURITY ACT OF 2007
AN ACT TO SECURE THE STATE AND
PROTECT OUR PEOPLE FROM TERRORISM
What is Terrorism?
A 1998 study by the US Army counted 109 definitions of terrorism that covered a total of 22 different definitional elements.
Terrorism expert Walter
definitions and concluded that:
Laquer
in 1999 counted over
100
“The only general characteristic generally agreed upon is
that terrorism involves violence and the threat of violence.”
The United Nations General Assembly Resolution 49/60 adopted on December 9, 1994 contains a provision describing terrorism:
“Criminal acts intended or calculated to provoke a state
of terror in the general public, a group of persons or particular
persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical,
ideological, racial, ethnic, religious, or any other nature that
may be invoked to justify them.”
On March
ism as:
17, 2005, a United Nations panel described terror-
34
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
“Any act intended to cause death or serious bodily harm
to civilians or non-combatants with the purpose of:
1.
Intimidating a population of serious bodily harm;
2.
Compelling a government or an international organization ‘to
do or abstain doing any act.”
Acts of terrorism under United Nations
conventions and protocols:
«
Unlawful seizure of aireraft (1970)
<«
Unlawful acts against safety of civil aviation (1971)
»
Crimes against internationally protected persons including diplomatic agents (1973)
*
Taking hostages (1979)
*
Nuclear material (1980)
*
Acts of violence airports (1988)
«
Acts against safety of maritime navigation (1988)
+
Terrorist bombings (1977)
«
Acts against safety of fixed flatforms located on continental shelf
(1988)
Declaration of policy of RA 9372:
1.
2.
To protect life, liberty and property from acts of terrorism;
To condemn
terrorism
as inimical and dangerous
to the na-
tional security of the country and to the welfare of the people;
3.
To make terrorism a crime against the Filipino people, against
humanity and against the law of nations.
What is terrorism under RA 93727
The crime of Terrorism is committed by any person who engages in any of the following acts punishable under the Revised Penal
Code and other special laws:
REVISED PENAL CODE:
1.
Art. 122 — (Piracy in general and Mutiny in the high or open
seas or in Philippine Waters);
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
35
Chapter One — Crimes Against National Security
2.
Art. 134 — (Rebellion or Insurrection);
3.
Art. 134-1 — (Coup d’etat);
4.
Art. 248 — (Murder);
5.
Art. 267 — (Kidnapping and Serious Illegal Detention);
6.
Art. 324 — (Crimes involving destruction).
Keyword: PRIC-MKC
or under
Special Laws:
1.
Presidential Decree No. 1613 (The Law on Arson);
2.
Republic Act No. 6969 (Toxic Substances
Nuclear Waste Control Act of 1990);
3.
Republic Act No. 5207 (Atomic Energy Regulatory and Liabil-
and Hazardous
and
ity Act of 1968);
4.
Republic Act No. 6235 (Anti-Hijacking Law);
5.
Presidential
Decree
No.
532
(Anti-Piracy
and Anti-Highway
Robbery Law of 1974); and
6.
Presidential Decree No. 1866 as amended by RA 8294 (Illegal
Possession of Firearms).
Provided the following requisites are present:
%k
The act committed sows and creates a condition of widespread and extraordinary fear and panic among the populace;
In order to coerce the government to give in to an unlawful
demand.
Manner of commission of Terrorism:
All the crimes under the Revised Penal Code or Special Laws
enumerated above which:
a.
resultin sowing and creating a condition of widespread
and extraordinary fear and panic among the populace;
b.
in order to coerce
lawful demand.
the government
to give in to an un-
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
Motive of Terrorism:
To coerce the government to give in to an unlawful demand.
Penalty for Terrorism:
Forty years imprisonment without the benefit of parole as provided under Act No. 4103 otherwise known as the Indeterminate
Sentence Law as amended. (Sec. 3, RA 9372)
Queries:
1.
Have the enumerated felonies under the Revised
Penal Code and the crimes under the specified special laws
been entirely repealed by RA 93727
2.
Are there no more crimes of Piracy, Rebellion, Coup
d’ etat, Murder, Kidnapping and Serious Illegal Detention,
Illegal Possession of Firearms, Hijacking, Piracy and the like?
Answers:
No. The said felonies under the Revised Penal Code and
the crimes under the aforementioned special laws still exist.
Thus, when a person kills another with the qualifying aggravating circumstance of treachery, the felony committed is
still Murder.
The killing becomes Terrorism only if Murder has
reached that magnitude as to sow and create a condition of
widespread and extraordinary fear and panic among the
populace in order to coerce the government to give in to an
unlawful demand.
Terrorism is a Crime of Result
A careful scrutiny of the definition of terrorism would show
that the crime can be committed only if any of the crimes listed under RA 9372 is committed and it sows and creates a condition of widespread and extraordinary fear and panic among the
populace in order to coerce the government to give in to an unlawful demand.
Problems:
1.
X killed Y with the qualifying aggravating circum-
stance of evident premeditation. The crime committed is Murder. Is A now liable for the crime of Terrorism? Why?
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
37
Chapter One — Crimes Against National Security
Answer:
No, X is not liable for Terrorism. There is nothing in
the problem that indicates that the commission of Murder by
X sowed and created a condition of widespread and extraordinary fear and panic among the populace. The killing of one
person does not have the magnitude to sow and create a condition of widespread and extraordinary fear and panic among the
populace.
2.
X has an ax to grind against A, B, C, D, and E. X
killed all of them by shooting them from behind. X thus committed four counts of Murder because of the qualifying aggra-
vating circumstance of treachery. Is X liable for the crime of
Terrorism? Why?
Answer:
No. The killing of the five persons by X may be alarming
but it did not sow and create a condition of widespread
and
extraordinary fear and panic among the populace in order to
coerce the government to give in to an unlawful demand.
3.
X committed Murder in San Juan, Caloocan, Mandaluyong, Cainta, and Las Pifas. Did he commit the crime of
Terrorism? Why?
Answer:
No. Nothing in the problem would show that the perpetration of Murder in the said places sowed and created a condition of widespread and extraordinary fear and panic among the
populace.
4.
X is a serial rapist. He committed rape in Manila,
Quezon City, San Juan, Cainta, Cavite, Tarlac, Pangasinan,
La Union, and Pampanga. The commission of the crime in the
said places has instilled widespread fear and panic among the
populace. Is X liable for Terrorism? Why?
Answer:
No, X is not liable for Terrorism. Although the com-
mission of rape sowed and created a condition of widespread
and extraordinary fear and panic among the populace, rape is
not among the crimes covered by the law on terrorism.
5.
engaged
A, B, C, and D organized themselves into a group
in big time robbery, kidnapping and Murder. They
38
CRIMINAL LAW
BOOK IT OF THE REVISED PENAL CODE
robbed banks and mercilessly killed people. The crimes committed by them have reached gargantuan proportions. They
have sowed and created a condition of widespread and extraordinary fear and panic among the populace. They earned the
name dreaded name, “The Alvin Flores Gang.” Are they liable for Terrorism? Why?
Answer:
No, they are not liable for Terrorism. The fact that
the criminal activities of the group sowed and created a condition of widespread and extraordinary fear and panic among the
populace does not make them liable for the said crime.
According to the law, the crime must be committed in or-
der to coerce the government to give in to an unlawful demand.
This element of the crime is absent in the case at bar.
6.
A, B, C, and D hijacked a Boeing 747. On board the
aircraft were the Vice-President of the Philippines, ten Senators, thirty-five Congressmen and 500 other passengers. They
threatened to blow the plane off unless the government releases from captivity Abu Sado, a terrorist detained under heavy
security at Camp Crame. Their act sowed and created a condition of widespread and extraordinary fear and panic among the
populace. Are they liable for Terrorism? Why?
Answer:
Yes, they are liable for Terrorism. The crime of hijack-
ing is included in the definition of terrorism. Their commission
of hijacking sowed and created a condition of widespread and
extraordinary fear and panic among the populace and their
purpose was to compel or coerce the government to give in to
an unlawful demand. It does not matter if the terrorist obtain
their demand or not.
7.
The Maguindanao massacre sowed and created a
widespread and extraordinary fear and panic among the popu-
lace. It instilled fear and terror in the very interstices of society. The gruesome and diabolical murder of 57 innocent people
warranted
a worldwide
condemnation.
The Philippines was
even dubbed as the most dangerous place in the world for journalists. A legal luminary who was a former judge opined that
those behind the crime should be charged with the crime of
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
39
AND THE LAW OF NATIONS
Chapter One — Crimes Against National Security
Terrorism?
For purposes of academic
discussion, is the legal
luminary correct? Why?
Answer:
With due respect, the legal luminary is not correct.
While concededly, the gruesome murder sowed and created
a condition of widespread and extraordinary fear and panic
among the populace, there is no showing that it was
committed to coerce the government to give in to an
unlawful demand. Settled is the rule in this jurisdiction that
when an element of a crime is not present that crime is not
committed.
Notes:
1.
The Anti-Terrorism law is a toothless tiger. It
is not as fearsome as it was perceived at its inception. It is very
difficult for the prosecution to prove that all the elements of the
crime are present. It is axiomatic for the prosecution to prove
all the elements of a crime. If one element is not present then
the crime is not committed;
2.
The Anti-Terrorism law does not
spread and extraordinary fear and panic;
3.
define
wide-
What is “unlawful demand?” The element of un-
lawful demand is what differentiates terrorism from other
crimes. Without unlawful demand there can be no terrorism.
Can unlawful demand relate to any demand whether criminal
or not?
4.
What is meant by “sow and create a condition
of widespread and extraordinary fear and panic among
the populace?” Is it confined to the populace constitutive only
of civilians to the exclusion of the government?
5.
What is fear and panic? How does one know that he
or she had sown or created fear and panic?
6.
What is meant to coerce? What coerces one may not
coerce another and RA 9372 does not define it.
What is Conspiracy to Commit Terrorism?
There is Conspiracy to commit Terrorism when two or more
persons come to an agreement concerning the commission of the
crime of terrorism and decide to commit it.
40
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
Penalty
40 years of imprisonment. (Sec. 4, RA 9372)
Mere Conspiracy to commit Terrorism is punishable. The moment the conspirators commit any act of terrorism however, they
are no longer liable for Conspiracy to Commit Terrorism. They are
already liable for the crime of Terrorism.
Who
are
the
persons
liable
for
Terrorism
and
Conspiracy
to
Commit Terrorism?
1.
Principals by direct participation
2.
Accomplices
3.
Accessories
ACCOMPLICE
TO THE
CRIME
OF TERRORISM
is any
person who, not being a principal under Art. 17 of the RPC or a conspirator as defined in Sec. 4 of RA 9372, cooperates in the execution of the crime of terrorism or conspiracy to commit terrorism by previous or simultaneous acts. (Sec. 5, RA 9372)
Who can be an Accomplice to the crime of Terrorism?
1.
One who cooperates in the execution
rorism;
of the crime of Ter-
2.
One who cooperates in the execution of the crime of Conspiracy to Commit Terrorism by previous or simultaneous
acts.
Illustrations:
1.
A B, C, D, and E compose a group of terrorists that
had committed Arson to sow and create a condition of widespread and extraordinary fear and panic among the populace
to coerce the government to give in to the demand to declare
the independence of Patikul, Sulu. X, despite his knowledge of
the crime committed by the group, acted as their driver and
transported them to one of their destinations. X is liable as
an accomplice in the crime of Terrorism. He concurred
with the criminal acts of the group and cooperated in
the execution thereof.
2.
A, B, and C agreed and decided to commit the crime
of Terrorism when they met in the house of X. The latter knew
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
41
Chapter One — Crimes Against National Security
of the criminal design of the former. X supplied them with materials like computers, tapes recorders and funds. A, B, and C
are liable for Conspiracy to Commit Terrorism. X is liable as
Accomplice to the crime of Terrorism. He cooperated in
the execution of the crime.
ACCESSORY
TO THE
CRIME
OF
TERRORISM
is any
person who having knowledge and without having participated
therein, either as principal or accomplice under Articles 17 and 18
of the RPC, takes part subsequent to its omission in any of the following manner:
a.
by profiting himself or assisting the offender to profit by
the effects of the crime;
b.
by concealing or destroying the body of the crime, or the
effects, or instruments thereof, in order to prevents its
discovery;
c.
by harboring, concealing or assisting in the escape of the
principal or conspirator of the crime.
Penalty
Ten (10) years and one (1) day to twelve (12) years of imprisonment.
Accessory to the Crime of Terrorism
Illustrations:
1.
Renz Jan committed the crime of Terrorism by kidnapping scions of well to do families. He amassed millions of
pesos in the process. Renz Jan gave Prince, his best friend the
amount of Php500,000.00. Despite knowing that the money
came from the terroristic activities of Renz Jan, Prince accept-
ed the money. What is the criminal liability of Prince if any?
Why?
Answer:
Prince is liable as accessory to the crime of Terrorism.
He profited by the effects of the crime by accepting the money
despite knowing that it came from Terrorism.
2.
Abu Gado and company committed the crime of Ter-
rorism. Despite his knowledge of the crime committed by the
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
group,
X
harbored,
concealed,
and
assisted
in their
escape.
What is the liability ofX if any? Why?
Answer:
X is an accessory to the crime of Terrorism because he
harbored, concealed and assisted in the escape of the principals
in the crime of Terrorism.
3.
A, B, and C agreed and decided to commit the crime
of Terrorism. By this, they committed the crime of Conspiracy
to Commit Terrorism. X knows that A, B, and C conspired to
commit Terrorism. X concealed the documents, tape recordings
and other instruments drawn up by the group to prevent the
discovery of the conspiracy. What is the liability of X if any?
Why?
Answer:
X is liable as Accessory to crime of Terrorism because he
concealed the body of the crime or the instruments thereof.
4.
A, B, and C are wanted for the crime of Conspira-
cy to commit Terrorism. X knows the crime committed by the
group. X harbored, concealed and assisted in the escape of the
conspirators. What is the liability of X if any? Why?
Answer:
X is liable as Accessory to the crime of Terrorism because
he assisted in the escape of the conspirators of the crime of Terrorism.
Accessories to the
Criminal Liability
Crime
of Terrorism
Who
are
Exempt
from
No penalties shall be imposed upon the following:
“Spouses, ascendants, descendants, legitimate, natural and adopted brothers and sisters or relatives by affinity within the same degrees in paragraphs (b) and (c).”
Notes:
The relatives mentioned above are the same as those list-
ed in mitigating circumstances of vindication of a grave offense
[Art. 13(5)] and in the alternative circumstances (Art. 15) and
Art. 20 of the Revised Penal Code.
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
43
AND THE LAW OF NATIONS
Chapter One — Crimes Against National Security
Where there are several principals, the exemption from criminal liability inures in favor of an accessory that is related within the
prescribed degrees to any of the principals and not necessarily to
all of them.
The exemption provided herein can be claimed by all accessories within the prescribed degrees of relationship except those accessories who profit or assist the principal to profit by the effects of the crime. This is the only instance wherein the accessory,
although related to the principal within the degrees of relationship
provided in Art. 20 is nevertheless not exempt from liability. (Sec.
6, RA 9372)
OUTLINE:
Accessory
—
Knows the commission of terrorist acts or conspiracy to commit terrorism.
—
Did not participate either as principal or accomplice
—
But participates subsequently by:
a)
Profiting himself or assisting the offender to profit by
the effects of the crime;
b)
Concealing or destroying the body of the crime, effects
or instruments thereof, to prevent discovery;
¢)
Harboring, concealing, assisting
principal or conspirator.
in
the
escape
of
What are the Acts Authorized By RA 93727
Republic Act 9372 authorized the following acts:
1.
Tracking down, tapping, listening to, inlerception and recording of messages,
communications,
conversations,
discussions,
spoken or written words of any person suspected of the crime of
terrorism or the crime of conspiracy to commit terrorism;
2.
Apprehension and detention without warrant of a person suspected of terrorism or conspiracy to commit terrorism;
3.
Judicial authorization to examine bank deposits, accounts and
records.
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
44
Declaration (Proscription) of Terrorist and Outlawed
Organizations, Associations, or Group of Persons
Query:
May an organization, association, or group of persons be
declared as a terrorist and outlawed organization, association
or group of persons organized for the purpose actually uses the
acts to terrorize or sow and create a condition of widespread
and extraordinary fear and panic among the populace in order
to coerce the government to give in to an unlawful demand?
Answer:
Yes. Upon application of the Department of Justice,
the Regional Trial Court, with due notice and opportunity to be heard given to the organization, association
or group of persons, may declare that such is a terrorist and
outlawed organization, association, or group of person. (Sec:
17, RA 9372)
It is the Regional Trial Court that has the jurisdiction to act
on motions or applications for proscription.
1.
If a person charged
INNOCENT,
or suspected of Terrorism
ACQUITTED,
is found
or his case DISMISSED
before arraignment, he shall be paid Php500,000.00 per
day by the government.
2.
The seizure, sequestration and freezing of his bank depots
shall be deemed lifted.
3.
In
addition
to
the
release
of
his
funds,
the
person
accused or charged shall be paid the amount of Php
500,000.00 a day for the period in which his properties,
assets or funds were seized in the concept of liquidated
damages by the investigating body as the court and said
items are deemed
released from such seizure, sequestra-
tion and freezing.
The filing of appeal or motion
not state the release of said funds.
for reconsideration
shall
TITLE ONE — CRIMES AGAINST NATIONAL SECURITY
45
AND THE LAW OF NATIONS
Chapter One — Crimes Against National Security
Queries:
1.
Can the person found innocent file a collection suit
against the government?
2.
Does Sec. 41 of RA 9372 constitute a waiver of immunity from suit of the government?
Answer:
RA 9372 is silent on the matter.
TITLE TWO
CRIMES AGAINST THE FUNDAMENTAL
LAW OF THE STATE
CHAPTER ONE
ARBITRARY DETENTION OR EXPULSION,
VIOLATION OF DWELLING, PROHIBITION,
INTERRUPTION, AND DISSOLUTION
OF PEACEFUL MEETING AND
CRIMES AGAINST RELIGIOUS WORSHIP
What are the crimes against the fundamental laws of the State?
Arbitrary detention (Art. 124)
N
1}
Delay in the delivery of detained persons to the proper judicial
authorities (Art. 125)
Delaying release (Art. 126)
Expulsion (Art. 127)
Violation of domicile (Art. 128)
Search warrants maliciously obtained and abuse in the service
of those legally obtained (Art. 129)
.
Searching domicile without witnesses (Art. 130)
Prohibition, interruption, and dissolution of peaceful meetings
(Art. 131)
Interruption of religious worship (Art. 132), and
10.
Offending religious feelings (Art. 133).
Who are
State?
liable for crimes
against the fundamental
The offenders are public officers except
crime of offending religious feelings.
46
laws of the
as to the last
TITLE TWO — CRIMES AGAINST THE FUNDAMENTAL
LAW OF THE STATE
47
Chapter One — Arbitrary Detention or Expulsion
Section One — Arbitrary Detention or Expulsion
ART. 124. Arbitrary detention. — Any public officer or
employee who, without legal grounds, detains a person, shall
suffer:
1.
The
penalty
of arresto mayor
riod to prision correccional
in its maximum
in its minimum
pe-
period, if the de-
tention has not exceeded three days;
2.
The penalty of prision coreccional 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
4.
That of reclusion
have exceeded six months.
temporal,
if the detention
shall
The commission of a crime, or violent insanity or any
other ailment requiring the compulsory confinement of the
patient in a hospital, shall be considered legal grounds for
the detention of any person.
Who may commit the crime of Arbitrary Detention?
Arbitrary detention is committed by a public
who detains a person without legal grounds.
officer
Elements:
1.
2.
3.
Offender is a public officer or employee;
He detains a person;
The detention is without legal grounds.
Arbitrary Detention is committed when
and detained without warrant of arrest.
a person is arrested
What are the crimes known as Arbitrary Detention?
1.
Detaining a person without legal grounds (Art. 124);
2.
Failure to deliver the arrested person for legal grounds to the
proper judicial authority within 12, 18 or 36 hours, as the case
may be (Art. 125); or
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
48
3.
Delaying release (Art. 126).
Legal grounds for detention of a person:
1.
Commission of a crime;
2.
Violent insanity or other ailment requiring compulsory
finement of a patient in a hospital.
con-
Absence of legal grounds:
I
No crime was committed by the detained person;
2.
No violent insanity of the detained person;
3.
The person detained has no ailment that will require confinement in a hospital.
Distinctions between arbitrary detention and illegal detention:
L
In arbitrary detention, the offender is a public officer. In illegal
detention, the offender is a private person or a public officer
whose function does not include the power to arrest and detain
a person;
In arbitrary
and detain a
even if he is
and detain a
Three
instances
detention, the public officer has a duty to arrest
person. In illegal detention, the private person or
a public officer does not have the power to arrest
person.
when
a public
officer
can
make
arrest
even
without warrant of arrest:
19
When a person is attempting to commit, is committing, or has
committed a crime in the presence of the arresting officer:
When a crime has in fact just been committed and the arresting officer has personal knowledge based on probable cause
that the person to be arrested has committed it;
When the person to be arrested is a prisoner who has escaped
from detention or confinement.
Note:
A civilian can also make a warrantless arrest under
the three instances.
TITLE TWO — CRIMES AGAINST THE FUNDAMENTAL
19
LAW OF THE STATE
Chapter One — Arbitrary Detention or Expulsion
Illustrations:
1.
WHEN THE PERSON TO BE ARRESTED WITHOUT WARRANT IS ATTEMPTING TO COMMIT A CRIME
IN THE PRESENCE OF THE ARRESTING OFFICER:
While walking at Session Road, SPO1 Santos saw X about
to pick the wallet of a woman. SPO1 Santos may right then
and there arrest X even if he has no warrant for the arrest
of X. This is one instance when a peace officer or even a civilian can arrest a person who is about to commit a crime in his
presence without a warrant of arrest. Thereafter, he can detain
him within the prescribed period of time set forth in Art. 125.
2.
WHEN THE PERSON IS ARRESTED WHILE
COMMITTING A CRIME IN THE PRESENCE OF THE ARRESTING OFFICER:
A policeman was summoned to pacify a rumble that was
going on. When the policeman arrived at the scene, he saw X
stabbing Y. The
policeman
can
arrest X even without
a war-
rant of arrest because X was committing a crime in his pres-
ence.
3.
WHEN THE PERSON TO BE ARRESTED COMMITTED A CRIME IN THE PRESENCE OF THE ARRESTING OFFICER
Hilario who was under the influence of liquor fired his
unlicensed gun while he was at the Malcolm square disturbing
the peace and order at the public place. A policeman who was
manning traffic nearby saw him. The policeman can arrest Hilario even without a warrant of arrest because the latter committed a crime in his presence.
4.
WHEN A CRIME HAS IN FACT JUST BEEN COMMITTED AND THE ARRESTING OFFICER HAS PERSONAL KNOWLEDGE BASED ON PROBABLE CAUSE THAT
THE PERSON TO BE ARRESTED HAS COMMITTED IT.
In this case, a crime has just been committed. It connotes
immediacy. If several days have passed there is no more legal
basis for making arrest and detention without warrant of arrest.
A policeman heard shouts to the effect that a person
stabbed another. As he was quite near, he hurriedly ran to-
50
BOOK
CRIMINAL LAW
11 OF THE REVISED PENAL CODE
wards the direction of the place where the shouts came from.
On his way, he met a man holding a bloodied knife with a blood
stained shirt. Not far from them, he saw a man lying on the
ground with blood oozing from his abdomen. The policeman
can arrest the person fleeing from the crime scene. He has personal knowledge based on probable cause that the person who
was running away from the place could have committed it. He
heard shouts that somebody stabbed another. He saw the person running away from the crime scene. He saw him holding a
bloodied knife with a blood stained shirt. He saw a person lying
on the ground bleeding. These and all, justify the arrest and
detention of the said person without warrant of arrest.
Arrest of a Prisoner who has Escaped
from Detention or Confinement
Law enforcers do not need a warrant of arrest to apprehend
prisoners who have escaped from detention or confinement. Time is
of the essence.
Arbitrary detention is committed by officers
public
who have the
power to make arrest and detention.
Problems:
1.
While on foot patrol, PO2 Alcisto met Tiburcio whose
face is dubious and does not inspire confidence. PO2 Alcisto
arrested Tibor and detained him. PO2 Alcisto is liable for Arbitrary detention because he arrested and detained Tiburcio
without legal grounds. Tiburcio was not committing a crime.
2.
X an informant went to the office of the CIDG. He
reported that Rosa Aruta is engaged in the illegal sale of drugs.
He informed further that she is about to deliver a large quantity of marijuana to a buyer. The officer-in-charge of the office
immediately dispatched a team to apprehend Rosa. On their
way to the house of Rosa, X pointed to a woman who was then
crossing the pedestrian lane and who was carrying a big bag.
X identified her as Rosa Aruta. Then and there, the operatives
arrested Rosa Aruta. After arresting her, they searched her
bag and found a large quantity of marijuana. The elements of
the CIDG detained Rosa Aruta. She was charged for violation
of the drugs law. If you were the judge are you going to acquit
or convict the accused?
TITLE TWO — CRIMES AGAINST THE FUNDAMENTAL
LAW OF THE STATE
Chapter One
51
-— Arbitrary Detention or Expulsion
Answer:
If T were the judge, I will acquit Rosa Aruta. She was
just crossing the street when she was arrested. She was not
about to commit a crime. She was not committing a crime nor
had just committed a crime in the presence of the arresting officers. The CIDG operatives would not have apprehended her
were it not for the furtive finger of the informant. There was no
legal basis for the CIDG to effect a warrantless search of her
bag there being no probable cause and Rosa Aruta not having
been lawfully arrested. Crossing a street is not a crime. There
was no legal ground for the arrest of Rosa Aruta.
Stated otherwise, “the arrest being incipiently illegal, it logically follows that the subsequent search was
similarly illegal.” As such, the marijuana seized could not be
used as evidence against Aruta for it is a “fruit of the poisonous
tree.”
(People
v. Rosa Aruta,
G.R.
No.
120915,
April
3,
1998)
Note:
The operatives
Arbitrary detention.
could
have
been
charged
with
3.
At 2:00 in the afternoon of December 14, 2009, Debra went to the office of the NBI Baguio City and complained
to NBI agent Wasmir that she was raped the night before by
Dalton in his house at No. 48 Torres Bugallon Avenue, Baguio
City. She showed to agent Wasmir contusions and hematoma
in her arms and legs. She was referred to the bureau’s medicolegal officer. Upon examination, it was found out that Debra
has fresh vaginal lacerations at 3:00 o'clock position and was
found positive of spermatozoa. Then and there agent Wasmir
and other agents went to the house of Dalton. They found Dalton sleeping in his bed. They woke him up and arrested him.
Agent Wasmir detained Dalton. Are the NBT agents liable for
arbitrary detention?
Answer:
No, the NBI agents are not liable for arbitrary de-
tention. Under the 2000 Rules of Criminal Procedure, a warrantless
arrest can be made
been committed
“if a crime
has
in fact just
and the arresting officer has personal
knowledge based on probable cause that the person to
be arrested has committed it.” In the instant case, the inju-
52
CRIMINAL LAW
BOOK IT OF THE REVISED PENAL CODE
ries sustained by the victim and the presence of fresh vaginal
lacerations and spermatozoa in her vagina has given the arresting officers personal knowledge based on probable cause
that a crime has in fact just been committed by the offender.
4.
Freddie who was under the influence of liquor went
to a public comfort room being maintained by Rolly, a city hall
employee. Rolly posted a notice at the entrance that anybody
who shall use the comfort room shall pay 10 pesos before entering as a donation for the maintenance of the cleanliness of the
comfort room. Freddie refused to pay despite the polite request
of Rolly and entered the comfort room. Rolly resented this and
locked the men’s room. Freddie was not able to get out of the
men’s room. He was able to get out only after 3 hours when
passersby heard his shouts for help and forced open the men’s
room. What crime did Rolly commit if any? Why?
Answer:
Rolly committed Illegal detention. Although he is a
public employee he does not have the power to arrest
and detain a person. Only public officers or employees who
have the power to arrest and detain a person may commit the
crime of arbitrary detention by detaining another without legal
ground.
ART. 125. Delay in the delivery of detained persons to the
proper judicial authorities. — The penalties provided in the
next preceding 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 crime 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 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. (As amended by EO No. 272, prom. July 25, 1987.)
This EO No. 272 shall take effect thirty (30) days following its
publication in the Official Gazette.
TITLE TWO — CRIMES AGAINST THE FUNDAMENTAL
53
LAW OF THE STATE
Chapter One — Arbitrary Detention or Expulsion
Elements:
1.
The offender is a public officer or employee;
2.
He has detained a person for some legal grounds;
3.
He fails to deliver such person to the proper judicial authority
within —
a.
12 hours if detained for crimes or offenses punishable by
light penalties, or their equivalent;
b.
18 hours for crimes or offenses punishable by correctional penalties, or their equivalent;
c.
36 hours for crimes or offenses punishable by capital
punishment or afflictive penalties, or their equivalent.
(Executive Order No. 272)
Notes:
This is a felony by omission. It is committed by the
failure to perform a duty required by law.
The detention here must be for legal grounds.
The term legally arrested does not mean that a person
was arrested by virtue of a warrant of arrest. A person is arrested without warrant but the arrest was lawful. Example: A
person was arrested without warrant of arrest while committing a crime, about to commit a crime or committed a crime in
the presence of the arresting officer.
What is the meaning of the term “delivering the person legally arrested to the judicial authorities?”
The statement should not be interpreted literally. It does not
mean the physical act of bringing the person legally arrested to the
judge. It means the filing of the case before the court that has jurisdiction over the crime committed by the person arrested.
If the case is filed in the fiscal’s office, this provision of law is
not complied with. However, it is submitted that filing of the case at
the fiscal’s office is a sufficient compliance with the law. It is not the
duty of the arresting officer to file the case in court. That duty belongs to the fiscal’s office. The moment the arresting officer endorses
the case to the fiscal’s office it is now the duty of the fiscal to issue
a partial resolution and order the continued detention of the person
arrested or shall order his release pending preliminary investiga-
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tion. If the fiscal does not make a resolution either for the continued
detention of the person arrested or his release, the arresting officer
should release the person arrested so that he will not run afoul with
the law. Thus, he could preclude being charged with arbitrary detention.
What if a person was arrested for violation of a special law and
not for violation of the Revised Penal Code within what period of
time should the arresting officer file the case in court?
Answer:
The law provides “or their equivalent.”
classified according to gravity, to wit:
with light
Felonies are
1.
Felonies that are punishable
considered light felonies;
penalties
2.
Felonies that are punishable with correctional penalties are considered less grave felonies; and
3.
Felonies that are punishable with afflictive penalties or
with the death penalty are considered grave felonies.
Afflictive penalties:
Reclusion perpetua
Reclusion temporal
Perpetual or temporary absolute disqualification
Perpetual or temporary special disqualification
Prision mayor
Correctional penalties:
Prision correccional
Arresto mayor
Suspension
Destierro
Light penalties:
Arresto menor
Public censure
Fine Bond to keep the peace
are
TITLE TWO — CRIMES AGAINST THE FUNDAMENTAL
LAW OF THE STATE
Chapter One — Arbitrary Detention or Expulsion
55
Thus, in case the law violated is a special law, check the penalty imposable by the special law and determine if it is grave, less
grave or light felony. That is the basis for determining the period
of time during which an arresting officer can legally hold on to the
person arrested with legal ground and without a warrant of arrest.
Duties of an arresting officer who legally arrested a person without warrant of arrest.
Have the person arrested charged in court within the proper
period provided for under Art. 125 so that he will not be liable for Arbitrary detention. Filing of the appropriate case at the fiscal’s office
is a sufficient compliance of the law. If he cannot file the case for
whatever reason, valid or not, he should release the person
arrested from detention.
Illustration:
A police officer arrested a person without warrant of
arrest with legal ground in a far flung place for the crime of
Attempted Homicide. In bringing the person arrested to the
municipality, they have to cross seven mountains, seven hills
and seven seas. Under the law, Attempted Homicide is punishable with Prision correccional which has a legal duration of 6
months and one day to 6 years. Since the penalty is a correctional penalty, the arresting officer should file the case within
18 hours from the time that he arrested the person.
What if for the reason given above, the arresting officer
fails to cause the filing of the case within the time provided for
by law, was there violation of Art. 1257
Answer:
Yes, there was a violation of Art.
125 and the arresting
officer maybe charged criminally.
Query:
If you were the counsel for the arresting officer what is
your defense?
Answer:
If I were the counsel for the arresting officer, I will invoke as defense the exempting circumstance of insuperable
cause under paragraph 7 of Art. 12 of the Revised Penal Code.
The arresting officer was prevented from performing an act
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CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
required by law by the physical impossibility of bringing the
person arrested to the fold of law.
Important things to remember
The period within which to charge the person legally arrested
without warrant of arrest does not include nighttime. It is to
be counted only when the prosecutor’s office is ready to receive the
complaint or information. A holiday or no office day should not
be included in the computation of the period prescribed by
law for the filing of the information in court in cases of warrantless arrest. (Soria v. Desierto, et al., 125 Phil. 313)
If a police officer arrested a person by virtue of a warrant
of arrest issued by a court, the period prescribed under Art.
125 does not apply. This means that a case had been filed in court.
The duty of the arresting officer is to turn over or deliver the person
arrested by virtue of a warrant to the court that issued the said warrant of arrest.
Within what period should a police officer who arrested
a person by virtue of a warrant of arrest deliver the said person in court? (Bar question)
Answer:
There is no period. The arresting officer is not bound
by the period fixed under Art. 125 of the Revised Penal Code
because the law does not apply. The arresting officer will just
accomplish a return of the warrant of arrest found at the back
thereof and indicate that he had arrested the person named
therein and state where the person is being detained.
ART. 126. Delaying release. — The penalties provided
for 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 per-
son.
TITLE TWO — CRIMES AGAINST THE
FUNDAMENTAL
57
LAW OF THE STATE
Chapter One — Arbitrary Detention or Expulsion
Elements:
(5
The offender is a public officer or employee;
2.
There is a judicial or executive order for the release of a prisoner or that there is a proceeding upon a petition for the liberation of such person;
3.
The offender, without good reason, delays:
a.
The service of the notice of such order to the prisoner, or
b.
The performance of such judicial or executive order for
the release of the prisoner, or
¢.
The proceedings upon a petition for the release of such
persons.
Acts punished:
1y
Delaying the performance of a judicial or executive order for
the release of a prisoner;
[
Unduly delaying the service of such order to the said prisoner;
Unduly delaying the proceedings for the liberation of such person.
Who may commit the crime?
Public officers or employees like court personnel, wardens, jail
guards and peace officers.
Illustration:
X was arrested and detained at the city jail on one Friday. At 4:30 p.m., the wife of X came and posted bail for X’s
temporary liberty. Accordingly, the judge issued an order directing the jail warden to release the accused X unless he is
being held for some valid causes. The clerk of court ordered the
court sheriff to deliver the court order to the jail warden. As the
sheriff was in a hurry as he was going somewhere else, he did
not deliver the release order. Came Monday, the sheriff still
forgot to serve the order of release. It was only on the following
day, Tuesday, when he remembered to serve the order. Thus,
X stayed in jail unnecessarily for 3 days more. X is liable for
arbitrary detention for unduly delaying to serve the re-
lease order.
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THE REVISED PENAL CODE
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 per-
son to change his residence.
Elements:
1.
The offender is a public officer or employee;
2.
He expels any person from the Philippines or compels a person
to change his residence; and
3.
He is not authorized to do so by law.
A person has the right
provided it is not against the
on top of a hill or on top of
is his right. The government
dence.
to establish his home where
law. He has the right to have
a mountain or on a precipice
cannot compel him to change
he wants
his home
and that
his resi.
In the case of Villavicencio v. Lukban, 39 Phil. 778, the police
chief of Manila upon order of the city mayor to get rid of Manila of
prostitution hauled the prostitutes from their places of residence
and deported them to Davao. No due process was observed. They
were found guilty of Expulsion.
Expulsion from the Philippines can only be done through deportation proceedings. Only aliens can be deported.
If expulsion is done by a public officer, the crime is Expulsion. If committed by a private person by threats or intimidation,
the crime is Grave Coercion.
ART. 128. Violation of domicile. — The penalty of prision
correccional in its 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, or if any
papers or effects not constituting evidence of a crime be not
returned immediately after the search made by the offender,
TITLE TWO — CRIMES AGAINST THE FUNDAMENTAL
59
LAW OF THE STATE
Chapter One — Arbitrary Detention or Expulsion
the penalty shall be prision correccional in its medium
maximum periods.
and
Elements:
1.
2.
The offender is a public officer or employee;
Heis not authorized by judicial order (search warrant) to enter
a dwelling and/or make a search therein for papers or other effects.
Three acts of committing Violation of Domicile under Art. 128:
1.
Entering a dwelling against the will of the owner thereof;
2.
Searching
papers or other effects without the previous con-
sent of the owner;
3.
Refusing to leave the premises after having surreptitiously
entered said dwelling and after having been required to leave.
Notes:
The public officer or employee does not have a judicially is sued search warrant. If he enters a dwelling against
the will of the owner, searches papers or other effects found
therein or having surreptitiously entered the dwelling refuses
to leave when required by the owner, he is liable for the crime
of Violation of Domicile.
Even if the acts above mentioned are committed if the
police officer has a search warrant, this crime is not committed.
Instances where search and seizure may be made without a
warrant and the evidence obtained therefrom may be admissible
are:
1.
search incident to a lawful arrest;
N
search of a moving motor vehicle;
search in violation of customs laws;
;o
seizure of evidence in plain view;
6.
the accused himself waives
searches and seizures; and
his right
against
unreasonable
stop and frisk situations. (People v. Molina, 352 SCRA 174)
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Under the first exception, the law requires that there be first a
lawful arrest before a search can be made — the process cannot be
reversed. (People v. Molina, 352 SCRA 174)
Where the gun tucked in a person’s waist is plainly visible to
the police, no search is necessary, in the absence of any license of
said firearm, he may be arrested at once as he is in effect committing a crime in the presence of the police officers. (People v. Go, 354
SCRA 338)
As a consequence of a person’s valid warrantless arrest, he
may be used as a proof of the commission of an offense, without a
search warrant. (People v. Conde, 356 SCRA
415)
Warrantless searches of bags of visitors of detainees, a part
of police standard operation procedure, and recognized as part of
precautionary measures by the police to safeguard the safety of the
detainees as well as the over-all security of the jail premises, may be
validly done. (People v. Conde, 365 SCRA 415)
The warrantless search and seizure, as an incident to a suspect’s lawful arrest, may extend beyond the person of the one arrested to include the premises or surrounding under his immediate
control. (People v. Hindoy, 357 SCRA 692)
The right against unreasonable searches and seizures is a personal right which may be waived expressly or impliedly. Waiver by
implication cannot be presumed. (People v. Cucubin, Jr., 360 SCRA
690)
Peace officers who conduct a warrantless search cannot invoke
regularity in performance of official functions and shift to the accused the burden of proving that the search was unconsented. (Peo-
ple v. Cucubin, Jr., 360 SCRA 690)
Problem:
X, a police officer, surreptitiously entered the house of
Maxie. When Maxie arrived, he saw X sitting in comfort sipping iced tea in his kitchen. Maxie directed X to leave his home.
X followed the order and left. Is X liable for Violation of Domicile?
Answer:
No, X is not liable for Violation of Domicile because he
left the house of Maxie upon being directed to do so. In this
TITLE TWO — CRIMES AGAINST THE FUNDAMENTAL
LAW OF THE STATE
61
Chapter One — Arbitrary Detention or Expulsion
instance, the act punishable is not the entry but the refusal to
leave upon being required by the owner of the house.
What are the three ways of committing Violation of Domicile?
1.
Entering a dwelling against the will of the owner, searching
documents, papers and effects without the previous consent of
the owner or refusing to leave having surreptitiously entered a
dwelling when required by the owner (Art. 128);
2.
Search warrants maliciously obtained and abuse in the service
of search warrant (Art. 129);
3.
Searching domicile without witnesses (Art. 130).
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 public officer or employee who shall procure a search
warrant without just cause, or having legally procured the
same, shall exceed his authority or use unnecessary severity
in executing the same.
Two acts punished:
1.
2.
Procuring a search warrant without just cause;
Abuse in the service of search warrant legally obtained.
Elements of procuring a search warrant without just cause:
1.
Offender is a public officer;
2.
He procures a search warrant;
3.
There is no just cause.
Illustration of procuring a search warrant without just
cause:
Herman, an NBI agent applied for the issuance of a
search warrant. He executed an affidavit that Jaka was keeping in his house at 145 Pinewood Street, Woodsgate, Baguio
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City, 5 Kalasnikov rifles, 5 browning automatic rifles and 2
baby armalites. The truth of the matter is that he has no personal knowledge as to the truth thereof. He was going into a
fishing expedition. The judge relied on his sworn statement
and testimony and issued the search warrant. When the search
was implemented, no such items were searched in the house of
Jaka. What crime or crimes can Herman be charged with?
Answer:
Herman can be charged with Violation of Domicile by
procuring a search warrant without cause. In addition, he can
be charged with Perjury for making a false statement in writing and under oath under Art. 183 of the Revised Penal Code.
Illustration of abuse in the service of search warrant:
SPO2 Martinez led a team of policemen that implement-
ed a search warrant in the house of Mary Ann. While they were
conducting the search, Martinez destroyed the dividing walls
and employed violence upon Mary Ann and the members of her
household inflicting physical injuries upon them. What crime
or crimes can SPO2 Martinez be charged with?
Answer:
SPO2 Martinez can be charged with Violation of Domicile and separate crimes of Physical Injuries. There is no
complex crime. The two felonies have different elements.
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 in 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.
Elements:
I
The offender is a public officer or employee;
2.
He is armed with a search warrant legally procured;
3.
He searches the domicile for papers or belongings of any per-
son;
TITLE TWO — CRIMES AGAINST THE FUNDAMENTAL
LAW OF THE STATE
63
Chapter One — Arbitrary Detention or Expulsion
4.
The owner or any member of his family or 2 witnesses residing
in the same locality are not present.
Who must
domicile?
be present
when
a valid
search
is conducted
on
a
1.
The house owner;
2.
In his absence, any member of his family;
3.
In the absence of the two, at least 2 witnesses residing in the
same community.
The obvious reason behind this requirement is to avoid incriminatory machination or planting of evidence.
Section Three — Prohibition, Interruption and Dissolution of Peaceful Meetings
ART. 131. Prohibition, interruption and dissolution of
peaceful meetings. — The penalty of prision correctional 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 a public officer
or employee who shall hinder any person from joining any
lawful association or from attending any of its meetings.
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 authorities for the correction of abuses or redress of grievances.
Elements:
1.
2.
The offender is a public officer or employee;
He performs any of the following acts:
a.
Prohibiting, interrupting or dissolving any peaceful meeting without legal ground;
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BOOK IT OF THE REVISED PENAL CODE
b.
Hindering any person from joining any unlawful organization or from attending any of its meetings; or
c.
Prohibiting or hindering any person from addressing any
petition to the authorities for correction of abuses or redress of grievances.
The right of the people to peaceably assemble and petition the
government for redress of grievances are enshrined and guaranteed
under the Constitution. This is the essence of democracy.
This article presupposes a lawful meeting. The government
has the right to require a permit before any meeting can be held. If
the meeting proceeds without a permit then that meeting is in violation of the law. As a consequence, the meeting may be prohibited,
interrupted or dissolved.
Problem:
A meeting was duly given a permit. In the beginning, the
meeting was peaceful and orderly. In the course thereof, the
participants became unruly. They started shouting defamatory
words and began inciting the people to violate the law. Peace
officers stopped the meeting and dissolved it. Are the peace officers liable for Interruption and dissolution of a peaceful meeting?
Answer:
No, the peace officers are not liable for Interruption and
Dissolution of Peaceful Meeting. The permit given is not a license for the participants to commit a crime.
Note:
The public officer should not be a participant in the
ing. If he is a participant and he prohibits, interrupts
solves the meeting he does not violate this article. The
can be committed by a public officer who is a stranger
meeting. But he may be liable for Unjust Vexation
paragraph 2 of Article 287 of the Revised Penal Code.
meetor discrime
to the
under
Two criteria can be used by peace officers in lawfully prohibiting,
interrupting or dissolving a meeting:
1
The dangerous tendency rule
2.
The clear and present danger rule
TITLE TWO — CRIMES AGAINST THE FUNDAMENTAL
65
LAW OF THE STATE
Chapter One — Arbitrary Detention or Expulsion
Section Four — Crimes against Religious Worship
ART. 132. Interruption of religious worship. — The penalty of prision correctional 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.
If the crime shall have been committed with violence or
threats, the penalty shall be prision correccional in its medium and maximum periods.
Elements:
1.
The offender is a public officer or employee;
2.
Religious ceremonies or manifestations
about to take place or are going on;
3.
Offender prevents or disturbs the same.
of any
religion
are
Who may commit the crime?
Only public officers or employees can commit this crime. Hence,
a private person cannot commit this crime.
When is Interruption of religious worship qualified?
It is qualified if it is committed by threats or violence.
Manner of commission
When a public officer or employee prevents or disturbs the ceremonies or the manifestations of any religion.
ART. 133. Offending religious feelings. — The penalty of
arresto mayor in its minimum period to prision correccional
in its minimum period shall be imposed upon anyone who, in
a place devoted religious worship or during the celebration
of any religious ceremony shall perform acts notoriously offensive to the feelings of the faithful.
Elements:
1.
2.
Offender is either a public officer or a private person;
He committed acts notoriously offensive to the feelings of the
faithful;
66
3.
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BOOK II OF THE REVISED PENAL CODE
These acts are committed in a place dedicated to religious worship or during the celebration of a religious ceremony.
Who may commit this crime?
Public officer or a private person may commit this crime.
Whether it be a public officer or a private person who commits the
crime, the effect would be the same.
The act notoriously offensive to religious feelings must be directed against a religious ritual, practice and the like for the purpose of mockery and ridicule.
Illustration:
While a priest was delivering his homily inside the church,
X a devotee belonging to another sect threw rotten tomatoes at
the priest. The act is notoriously offensive to feelings of the
followers of the religion. X is liable for Offending religious
feelings. In addition, the priest can charge him with Slander
by Deed under Art. 359 of the Revised Penal Code.
But assaulting a priest or a preacher during a blessing of
a new house is not tantamount to violation of this law. Blessing
a house is not a religious worship or ceremony and the house is
not a place dedicated or devoted to a religious worship.
— 000—
TITLE THREE
CRIMES AGAINST PUBLIC ORDER
CHAPTER ONE
REBELLION, COUP D’ETAT, SEDITION, AND
DISLOYALTY CRIMES
Crimes against public order:
1.
Rebellion or insurrection (Art. 134)
2.
Conspiracy and proposal to commit rebellion (Art. 136)
3.
Disloyalty to public proposal to commit rebellion (Art. 137)
4.
Inciting to rebellion (Art. 138)
5.
Sedition (Art. 139)
6.
Conspiracy to commit sedition (Art. 141)
7.
Inciting to sedition (Art. 142)
8
Acts tending to prevent the meeting of Congress and similar
bodies (Art. 143)
9.
Disturbance
of proceedings
of Congress
and
similar
bodies
(Art. 144)
10.
Violation of parliamentary immunity (Art. 145)
11.
Illegal assemblies (Art. 146)
12.
Illegal associations (Art. 147)
13.
Direct assaults (Art. 148)
14.
Indirect assaults (Art. 149)
15.
Disobedience to summons issued by Congress, its committees,
etc., by the constitutional commissions, its committees, etc.
(Art. 150)
67
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16.
Resistance and disobedience to a person in authority or the
agents of such person (Art. 151)
17.
Tumults and other disturbances of public order (Art. 153)
18.
Unlawful use of means of publication and unlawful utterances
(Art. 154)
19.
Alarms and scandals (Art. 155)
20.
Delivering prisoners from jail (Art. 156)
21.
Evasion of service of sentence (Art. 157)
22.
Evasion on occasion of disorders (Art. 158)
23.
Violation of conditional pardon (Art. 159)
24.
Commission of another crime during service
posed for another previous offense (Art. 160)
ART.
of penalty
im-
134. Rebellion or insurrection — How committed.
— The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the
purpose of removing from the allegiance to said Government
or its laws, the territory of the Republic of the Philippines or
any part thereof, or any body of land, naval or other armed
forces, or depriving the Chief Executive or the Legislature,
wholly or partially, of any of their powers or prerogatives.
(As amended by RA No. 6968, 86 OG 52, p. 9364.)
Elements:
1.
That there be public uprising and taking arms against the government;
2.
That the purposes of the uprising or movement is either:
a.
To remove from the allegiance to said government or its
laws the territory of the Philippines or any part thereof,
or any body of land, naval or other armed forces;
b.
To deprive the Chief Executive or the Congress wholly or
partially of their privileges.
Manner of commission of Rebellion
The essence of Rebellion is public uprising and taking arms
against the government. Rebellion is a mass movement. It must
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
Chapter One — Rebellion, Coup d’etat Sedition, and Disloyalty Crimes
69
be committed by a multitude. Therefore, it cannot be committed by
a handful of men.
Purpose of Rebellion:
1.
Tooverthrow the government or to remove from the allegiance to the government or from its laws Philippine territory
or any part thereof, or any body of land, naval or the armed
forces; or
2.
Todeprive the Chief Executive or Congress wholly or partially of any of their powers or prerogatives.
Who are liable for Rebellion or Insurrection?
They are the following:
1.
Any
person who commits,
maintains or heads a rebellion or
insurrection;
2.
Any person who participates or who executes the commands of
others in a rebellion or insurrection.
Rebellion does not require the participation of the military or
the national police.
Rebellion may be committed even without a single shot being fired. No armed confrontations or clashes are necessary. Mere
armed public unricino is enough.
Distinctions between Rebellion and Insurrection:
Both are committed in the same manner.
Rebellion is larger in scope. Insurrection has a limited scope.
The object of Rebellion is to overthrow the existing government
while Insurrection seeks to effect some political and social changes.
Illustrations of Rebellion:
1.
A group of a thousand armed men attacked the provincial capitol of Cagayan de Oro. They disarmed the guards,
took over the reign of the provincial government and established a new government independent of the Republic of the
Philippines. What crime was committed by the armed men?
Why?
Answer:
They committed Rebellion. They rose publicly and took
arms against the government for the purpose of removing from
CRIMINAL LAW
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70
the allegiance of the government a part of its territory. It was
committed by a thousand men and so it complies with the requirement that the crime be committed by a multitude.
2.
Thousands of armed men attacked the city hall of
Vigan, Ilocos Sur. They occupied the place and declared the
independence of the Republic of Tlocos Sur. They started to run
the city government independent of the national government.
What crime did the armed men commit? Why?
Answer:
They committed Rebellion. They rose publicly and took
arms against the government for the purpose of declaring the
independence of a part of the territory of the Philippines.
3.
Col. Dimaguiba led a thousand soldiers in attacking
Camp Crame. They subdued the military establishment and
began issuing military orders. They established a new command of the armed forces. What crime did they commit?
"
Answer:
Col. Dimaguiba and his men committed Rebellion. They
rose publicly and took arms against the government for the
purpose of removing from the allegiance of the government a
part of the armed forces.
4.
A disgruntled military captain led two battalions
of armed soldiers in attacking the House of Congress. They
occupied the legislature and prevented the law makers from
discharging their duties and functions. What crime did the soldiers commit? Why?
Answer:
The soldiers committed Rebellion. They rose publicly and
took arms against the government for the purpose of depriving
the legislature of its power to legislate or enact laws.
Problems:
1.
Captain Billones led a group of 45 soldiers from the
Philippine Army and attacked Sherwood Hotel in Makati. By
means of force or violence and against the will of the manager
of the Food and Beverage Section they occupied the Mahar-
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
Chapter One — Rebellion, Coup d'etat Sedition, and Disloyalty Crimes
71
lika Room. They compelled the manager to serve them food
and drinks. From there, they were interviewed by the media
and they expressed their sentiments against the leadership of
the military and demanded for reforms in the armed forces. In
time they were subdued and arrested. They were charged with
Rebellion. Is the charge correct? Why? If not, for what crime?
Why?
Answer:
No, the charge is not correct. The reasons are as follows:
1.
The
participants
are
composed
of just
45
armed
men. This does not constitute a multitude. A few armed men
who rise publicly do not commit Rebellion; their purpose was
not to declare the independence of a part of the territory of the
Philippines or deprive the President or the legislature of any of
their powers or prerogatives.
At most, they are liable for Grave Coercion. They compelled the section manager of the hotel to serve them with food
and drinks. Grave Coercion under Art. 286 of the Revised Penal Code can be committed by compulsion.
2.
Gen. Magdangal de Mesa and 40 soldiers who are
under detention at Camp Crame are facing trial before a Makati Regional Trial Court. They perceived the presiding judge to
be antagonistic to their cause. To dramatize their sentiments,
they walked out of the court room and went to the nearby Renaissance Hotel. Their act caught the attention of the media.
Soon enough, the media followed them and conducted a live
interview with General de Mesa and his men. They complained
that the presiding judge of the court is biased against them and
so they could not expect a fair and impartial trial before him.
They demanded that the case be reraffied to another sala. After
10 hours, the military arrested them. They were charged with
Rebellion. Is the charge plausible?
Answer:
No, the charge is not plausible. The elements of Rebellion
are not present. There is no public uprising because there are
just 40 men involved. This number does not constitute a multitude. They are not armed. Take note that they are under detention, hence, they are unarmed. The purpose of the walk out was
not to remove from the allegiance of the government any part
72
CRIMINAL LAW
BOOK IT OF THE REVISED PENAL CODE
of its territory or to deprive the President or the legislature any
of their powers or prerogative. In this jurisdiction, if any element of a crime is not present, the crime is not committed.
Query:
The Maguindanao massacre is too gruesome too
forget. It had been condemned worldwide because of its un-
paralleled atrocity. Fifty seven innocent persons were killed
mercilessly. The alleged perpetrators were charged
counts of Murder and subsequently with Rebellion.
Students of law
sion only without any
ing future decision by
timely, let me give my
with
57
we all are. For academic discusintention whatsoever of preemptthe courts, and because it is very
opinion on the matter.
Is the subsequent filing of rebellion tenable?
The subsequent filing of Rebellion after the 57 counts of
Murder were filed is untenable. Rebellion is committed by rising
publicly and taking arms against the government for the purpose of
removing from the allegiance to the government or from its laws the
territory of the Philippines or any part thereof or any body of land,
naval or the armed forces or depriving the President or the legislature of any of their powers or prerogatives.
In the Maguindanao massacre, the perpetrators did
not take arms against the government for the purpose of
declaring the independence of any part of the territory of
the Philippines. They did not deprive the Chief Executive
(President) or Congress of any of their powers or prerogatives. These elements of Rebellion are not present. The killing of
the victims was election related and not on the occasion of Rebellion
or in furtherance thereof. It is a well buttressed rule in this jurisdiction that if any element of the crime is not present, the crime is not
committed.
It is submitted that the perpetrators are liable for as
many criminal counts of Murder as there are number of persons killed.
It is not a single offense of Multiple Murder in the contempla-
tion of a complex crime under Art. 48 of the Revised Penal Code.
The use of automatic guns justifies the filing of separate
crimes of Murder. (People v. Mario Tabaco, 270 SCRA 32; People
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
Chapter One — Rebellion, Coup d'etat Sedition, and Disloyalty Crimes
73
v. Sanchez, G.R. No. 13116, August 29, 1999) The use of automatic
guns Is an exception to the Single Larceny Doctrine which provides
that there is only one crime committed when several erimes result
from a single criminal intent.
The presence of the qualifying circumstances of treachery and
evident premeditation catapult the killing to Murder. So if 57 people
were killed, the prosecution should file 57 counts of Murder.
Can rebellion be now complexed with common crimes?
Is there now a crime of Rebellion with Homicide, Rebellion
with Robbery, Rebellion with Rape, Rebellion with Arson or
Rebellion with Serious Physical Injuries?
PEOPLE V. HERNANDEZ
99 Phil. 515
Hernandez and others were charged with the crime of Rebel-
lion with Multiple Murder, Arson and Robbery. They were found
guilty and were
charges correct?
sentenced
to suffer life imprisonment.
Were
the
Held:
No. “Murder, arson and robbery are mere ingredients of the crime of rebellion, as a means necessary for
the perpetration of the offense. Such common offenses
are absorbed or inherent in the crime of rebellion. Inasmuch as the acts specified in Art. 135 constitute one
single crime, it follows that said acts offer no occasion
for the application of Art. 48, which requires therefore
the commission of at least two crimes.” (People v. Hernandez, 99 Phil. 515)
That both purpose and overt acts are essential components of one crime, and that without either of them the crime
of rebellion legally does not exist, is shown by the absence of
any penalty attached to Art. 134. It follows therefore that
any or all of the acts described in Art. 135, when committed as a means to or in furtherance of the subversive
ends become absorbed in the crimes in themselves. Not
every act of violence is to be deemed absorbed in the crime of
rebellion solely because it happens to be committed simultaneously with rebellion. But a rebel who for some independent or
74
CRIMINAL LAW
BOOK I1 OF THE REVISED PENAL CODE
personal motives, commits murder or other motives, is liable
for murder or other common offenses. (People v. Geronimo)
The case of Juan Ponce Enrile v. Judge Salazar, 186
SCRA 217
Then
Senator Juan
Ponce
Enrile, Spouses
Panlilio and
Gregorio Honasan were charged with the crime of rebellion
with murder and multiple frustrated murder allegedly committed during the failed coup attempt (read: on the occasion of,
not in furtherance of) from November 29 to December 10, 1990.
Ruling:
“The
Hernandez
ruling
remains
a binding
doctrine
to
prohibit rebellion being complexed with any other offense committed in the occasion thereof, either as a means or
as an intended effect. Information must be read as charging
simple rebellion only, hence petitioners are entitled to bail
before final conviction.”
Rebellion can now be complexed with Common
Crimes
Not so long ago, or on June 05, 1990, the Supreme Court, in
Ponce Enrile v. Salazar, et al., 186 SCRA 217, reiterated and re-
affirmed the rule laid down in People v. Hernandez, 99 Phil. 515,
(July 18, 1956) that rebellion may not be complexed with common
crimes which are committed in furtherance thereof because such
crimes are absorbed in the rebellion. In view of said reaffirmation
some believe that it has been a settled doctrine that rebellion cannot be complexed with common crimes such as killings, destruction
of property, etc., committed in the occasion and in the furtherance
thereof. The thinking is not anymore correct, more so that
there is no legal basis for such rule now.
The
pronouncement
in People
v. Hernandez
(supra)
that
common crimes committed in furtherance of rebellion are absorbed
by the crime of rebellion was dictated by provisions of Art. 135 of
the Revised Penal Code prior to the amendments by RA No. 6968
(An Act Punishing the Crime of Coup d’etat) by amending Articles
134, 135 and 136 of the Revised Penal Code, and for other purposes
commonly referred to as the Coup d’ etat law, which became effective on October 24, 1990. It may be recalled that although the crime
of rebellion is defined in Art. 134 of the Code, the penalty thereof is
prescribed in Art. 135 based on the participation or acts done by the
rebels who merely follow or execute the commands of others, while
TITLE THREE Chapter One
CRIMES AGAINST PUBLIC ORDER
75
— Rebellion, Coup d'etat Sedition, and Disloyalty Crimes
a higher penalty is prescribed for those who promote, maintain, or
head a rebellion or insurrection. Included in the higher penalty for
rebellion before said Art. 135 was amended by RA 6968 is any person who, while holding public office or employment takes
part therein by:
“Engaging in war against the forces of the government,
destroying property or committing serious violence, exacting contributions or diverting public funds from the lawful
purpose which they have been appropriated.”
Since higher penalty is prescribed for the crime of rebellion
when any of specified acts are committed in furtherance thereof, the
said acts are punished as components of the crime of rebellion
and, therefore, should not be treated as distinct crimes, although
the same acts constitute distinct crimes when committed on a differ-
ent occasion and not in furtherance of the rebellion.
In short, it was because of Art. 135 of the Code which then
punished said acts as components of the crime of rebellion that precludes the application thereto of Art. 48 on complex crimes. In the
eyes
of the
law
then,
said acts constitute
only
the
crime
—
and that is rebellion.
The Hernandez doctrine was reaffirmed in Ponce Enrile v.
Salazar, et al., because the text of Art. 135 has remained the same
as it was when the Supreme Court resolved the same issue in the
Hernandez case, until the Code was amended by the advent of RA
6968 which was approved on October 24, 1990.
The Supreme
Court, in Ponce Enrile v. Salazar,
et al., in-
vited attention to this fact and stated thus:
“There is an apparent need to restructure the law of rebellion, either to raise the penalty thereof or to clearly define
and delimit the other offenses to be considered as absorbed
thereby, so that it cannot be conveniently utilized as the umbrella for every sort of illegal activity undertaken in its name.
The court has no power to effect such change, for it can only
interpret the law as it stands at any given time and what is
needed lies beyond interpretation. Hopefully, Congress will
perceive the need for promptly seizing the initiative in this
manner which is purely within its province.”
Obviously, Congress took notice of this pronouncement and
thus, in enacting RA 6968, it did not only provide for the crime
76
CRIMINAL LAW
BOOK 11 OF THE REVISED PENAL CODE
of Coup d’etat in the Code but moreover, deleted from the provision of Art. 135 that portion referring to those:
“Who while holding any public office or employment
takes part therein (rebellion or insurrection), engaging in
war against the forces of the government, destroying property
or committing serious violence, exacting contributions or diverting public funds appropriated.”
Hence, the overt acts used to be punished as components of the
crime of rebellion have been severed therefrom by RA 6968. The
legal impediment to the application of Art. 48 of the Code to
the rebellion had been removed. After the amendment, common
crimes involving killings, serious violence, robberies and/or destruc-
tion of property, even though committed by rebels in furtherance
of a rebellion, shall bring about complex crime of Rebellion with
Homicide or Rebellion with Robbery, Rebellion with Arson
and Rebellion with Serious Physical Injuries as the case may
be.
Moreover, RA 6968 included conspiracy and proposal to commit coup d’etat as crimes punishable under Art. 136 of the Revised
Penal Code.
To this day, there is yet no case overturning Enrile v. Salazar.
Note:
How
should bar examinees answer the question?
Bar examinees may answer a question of this nature if asked
in the Bar Examination that rebellion cannot be complexed with
common crimes in line with the Hernandez ruling. In addition, they
can proceed discussing the new developments in criminal law and
answer that based on the Enrile v. Salazar case, “rebellion can
now be complexed with common crimes because there is
no more legal obstacle to complex rebellion with common
crimes.”
But they should not answer.... In
Supreme Court Rebellion can now
mon crimes because there is yet no
saying is that there is no more legal
bellion with common crimes.
one case decided by the
be complexed with comcase decided. What I am
obstacle to complex Re-
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
Chapter One — Rebellion, Coup d'etat Sedition, and Disloyalty Crimes
77
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 networks, public utilities or other facilities needed for the exercise and continued possession of power, singly or simultaneously carried out anywhere in the Philippines by any person
or persons, belonging to the military or police or holding any
public office or employment, with or without civilian sup-
port or participation, for the purpose of seizing or diminishing state power.
Manner of commission:
1.
Violence
2.
Intimidation
3.
Threat
4.
Strategy
5.
Stealth
Keyword: VITSS
Who may commit Coup d’etat?
1.
Only a person or persons who belong to the military or police or
holding public office or employment.
2.
Any person not in the government service who participates, or
in any manner supports, finances, abets or aids in the undertaking of coup d’etat.
Characteristics of Coup d’etat:
1.
There is a swift attack upon the facilities of the government;
2.
It may be committed singly or collectively;
3.
The objective may not be to overthrow the government but
to destabilize or paralyze the government through the seizure of facilities or utilities;
4.
The principal offenders are members
es or the Philippine National
Police;
of the armed fore-
CRIMINAL LAW
BOOK I OF THE REVISED PENAL CODE
78
May be carried out not only by force or violence but also through
stealth, threat or strategy.
Illustration:
At the break of dawn, two platoons of the marines attacked ABS-CBN Radio network and forcibly took over its
management. They controlled the broadcast media and aired
their grievance against the military and the government. What
crime did they commit?
Answer:
They committed Coup d’etat. They swiftly attacked a
communication network and the purpose was to destabilize the
government.
Distinctions between Rebellion, Coup D’etat and
1
Sedition
As to Rebellion:
Manner of commission
It is committed by rising publicly
against the government.
and
taking
arms
Purpose of commission
To remove from the allegiance to the government or from
its laws any part of the territory of the Philippines, or any body
of land, naval or the armed
forces, or depriving the Chief Ex-
ecutive or the legislature, wholly or partially, any of their pow-
ers or prerogatives.
Who may commit the crime?
It can be committed by a multitude. Therefore, it cannot
be committed by a handful of men.
As to coup d’etat:
Manner of commission
1.
The essence of the crime is a swift attack upon the facilities of the Philippine Government, military camps and installations, communication networks, public utilities and
facilities essential to the continued possession of governmental powers accompanied by violence, intimidation,
threat, strategy, and stealth; Keyword: VITSS
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
79
Chapter One — Rebellion, Coup d’etat Sedition, and Disloyalty Crimes
2.
Coup detat may be committed singly or collectively
and does not require a multitude of people.
Purpose of commission
The
objective
may
not be to overthrow
the government,
but to seize or diminish state power through the seizure of
facilities and utilities essential to the continued possession and
exercise of governmental powers.
Who may commit the crime?
The principal offender must be a member of the
AFP or of the PNP organization or a public with or without civilian support;
3.
As to Sedition:
Manner of commission
It is committed by rising publicly and tumultuously.
Purpose of commission
To effect some social or political changes or to prevent the
exercise of governmental authority with respect to particular
matters.
Manner of commission
There is also public uprising. It can be committed by a
multitude. A handful of men cannot commit Sedition.
ART. 135. Penalty for rebellion, insurrection or coup
d’etat. — Any person who promotes, maintains or heads a rebellion or insurrection shall suffer the penalty of Reclusion
perpetua.
Any person merely participating or executing the commands of others in a rebellion or insurrection shall suffer
the penalty of reclusion temporal.
Any person who leads or in any manner directs or commands others to undertake 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 reclusion temporal in its maximum period.
80
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
Any person not in the government service who participates, or in any manner suppoits, finances, abets or aids in
undertaking a coup d’etat shall su:ffer the penalty of prision
mayor in its maximum
When
period.
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, or performed similar
acts, on behalf of the rebels shall be deemed a leader of such
rebellion, insurrection, or coup d’etat. (As amended by RA
No. 6968)
Penalty imposable:
1.
Reclusion perpetua shall be imposed upon any person who promotes, maintains, or heads a rebellion or insurrection;
2.
Reclusion temporal shall be imposed upon any person who participates or executes the commands of others in rebellion or
insurrection (as amended by RA 6968, the Coup d’etat law );
3.
Reclusion perpetua shall be imposed upon any person who
leads or directs or commands others to undertake coup d’etat;
4.
Reclusion temporal shall be imposed upon any person in the
government service who participates or executes directions or
commands of others in undertaking coup d’etat; and
5.
Prision mayor in its maximum period shall be imposed upon
any person not in the government service who participates or
executes directions or commands of others in undertaking coup
d’etat.
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
its 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). (As amended by RA No. 6968)
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
81
Chapter One — Rebellion, Coup d’etat Sedition, and Disloyalty Crimes
Notes:
Conspiracy to commit Coup d’etat exists when two or more
persons come to an agreement concerning the commission of coup d’
etat and decide to commit it.
Conspiracy to commit rebellion exists when two or more
persons come to an agreement concerning the commission of rebel-
lion and decide to commit it.
Conspiracy to commit insurrection exists when two or
more persons come to an agreement concerning the commission of
insurrection and decide to commit it.
Proposal to commit coup d’etat exists when a person who
has decided to commit coup d’etat proposes its execution to
some other person or persons.
Proposal to commit rebellion exists when a person who has
decided to commit rebellion proposes its execution to some other
person or persons.
Proposal to commit insurrection exists when a person who
has decided to commit
insurrection
proposes
its execution to some
other person or persons.
Conspiracy to commit any of the above crimes can be committed only in the conspiracy or preparatory stage. The moment any of
the conspirators commits the crime, everybody will be liable for the
crime committed.
ART. 137. Disloyalty of public officers or employees. —
The penalty 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.
What is the crime
EMPLOYEES?
of DISLOYALTY
OF
PUBLIC
OFFICERS
OR
It is the crime committed by any public officer or employee
who during a rebellion:
1.
Failed to resist the rebellion by all means within his power;
82
CRIMINAL LAW
BOOK 11 OF THE REVISED PENAL CODE
Continued to discharge or perform his duties and functions under the control of the rebels;
Accepted a position or office under the rebels.
Illustration:
Members
of an armed
separatist
movement
numbering
thousands attacked and placed under their control and opera-
tion the provincial government of Pangasinan. They declared
the independence of the Republic of Pangasinan from the territory of the Philippines. The Governor of the province continued
to perform his duties under the control of the rebels. Is the
Governor liable? If so, what crime? Why?
Answer:
The Governor is liable for the crime of Disloyalty. He
continued to work or perform his duties as governor under the
control of the rebels. His act amounted to an act of disloyalty to
the republic.
ART. 138. Inciting to 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 Art. 134
of this Code, by means of speeches, proclamations, writings,
emblems,
banners
or
other
representations
tending
to
the
same end. (Restored EO No. 187)
Who may commit the crime?
Any person.
Manner of commission of Inciting to Rebellion or Insurrection
It is committed by inciting others to commit rebellion or insurrection by means of:
speeches,
proclamations,
O
writings,
emblems,
banners, or
other representations tending to the same end.
TITLE THREE — CRIMES AGAINST
PUBLIC ORDER
83
Chapter One — Rebellion, Coup d'etat Sedition, and Disloyalty Crimes
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
law or the holding of any popular election;
2.
To prevent the National Government,
of any
or any pro-
vincial 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 social or political 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 National Government of all
its property or any part thereof. (As amended by Com. Act No.
202)
Elements:
1.
2.
The offenders rise publicly and tumultuously;
They employ force, intimidation, or by other means outside of legal methods.
Illustrations:
1.
During a national election, a political group composed of thousands, rose publicly and prevented the holding
of the election contending that millions of voters were disenfranchised. They are liable for Sedition because they rose
publicly and prevented the holding of a national elec-
tion. (Paragraph 1, Art. 139)
2.
During
the administration
of President Joseph
Es-
trada, he issued Administrative Order No. 1 appointing Cong.
Felicito Payumo as Chairman of SBMA in lieu of Richard Gordon. The many supporters of Gordon
barricaded the offices of
CRIMINAL LAW
BOOK IT OF THE REVISED PENAL CODE
the SBMA and prevented the police from executing the administrative order by repulsing the policemen who were sent to
implement it by force or intimidation. What crime did the supporters of Gordon commit it any? They committed Sedition
because they rose publicly and tumultuously and prevented the execution of an administrative order. (Paragrap 2, Art. 139)
3.
A large group of people noisily and boisterously
marched through the public streets chanting words to express
disgust, frustrations, sentiments and hate against a city councilor. They proceeded to the city hall and attacked the person
of the city councilor. They committed Sedition. They rose
publicly and tumultuously and inflicted an act of hate
or revenge against the person of the city councilor.
(Paragraph 3, Art. 139)
Suppose instead of attacking the city councilor, the people vented their ire by attacking the car of the city councilor
parked in front of the city hall by pelting it with stones and objects, what erime did they commit? Still the ecrime committed is Sedition. The crime can be committed by rising
publicly and tumultuously and by means of hate or revenge inflict any act of hate or revenge upon the person
or property of a public officer or employee. (Paragraph
3, Art. 139)
4.
A
commotions.
vate person
committed
ously and
the person
large group of people took the streets and created
As an act of hate or revenge, they attacked a prior his property. What crime is committed? They
Sedition. They rose publicly and tumultuby means of hate or revenge, they attacked
or property of a private person. (Paragraph
4, Art. 139)
5.
Prompted by rice shortage, a lot of people went to the
NFA to get rice. The crowd grew bigger and bigger. They became unruly. They began protesting against the government.
Thereupon, they foreibly opened the granaries and distributed
rice to many people. They committed Sedition because
they rose publicly and tumultuously and despoiled for
political or social end, a property belonging to the gov-
ernment. (Paragraph 5, Art. 139)
TITLE THREE -~ CRIMES AGAINST PUBLIC ORDER
85
Chapter One — Rebellion, Coup d’etat Sedition, and Disloyalty Crimes
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 P10,000.
Other persons participating therein shall suffer the
penalty of prision correccional in its maximum period and a
fine not exceeding 5,000 pesos. (Restored by EO No. 187)
ART. 141. Conspiracy to commit sedition. — Persons conspiring to commit the crime sedition shall be punished by
prision correccional in its medium period and a fine not exceeding 2,000 pesos. (Restored by E.O. No. 187)
Conspiracy to commit sedition takes place when two or
more persons come to an agreement concerning the commission of
sedition and decide to commit it.
Proposal to commit sedition is not a crime. It is not punished by law.
The offender is not a participant of the sedition but incites others to commit the crime of Sedition.
ART. 142. Inciting Sedition. — The penalty of prision
correctional 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,
other
writings,
representations
emblems,
tending
to
cartoons,
the
same
any person or persons who shall utter
or speeches, write, publish, or circulate
against
the Government
constituted
authorities
which
end;
or
or
upon
seditious words
scurrilous libels
of the Philippines,
thereof,
banners,
tend
or any of duly
to
disturb
or
obstruct any unlawful 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 conspiracies or riots; or which lead or to tend to stir
up against the lawful authorities; or to disturb the peace
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.
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CRIMINAL LAW
BOOK 11 OF THE REVISED PENAL CODE
What are the ways of committing Inciting to Sedition? (Bar question 2008)
1.
Speeches;
2
Proclamations;
3.
Writings;
4.
Emblems;
5
Cartoons;
6.
T
Banners; or
Other representations.
Cabal — persons secretly united and who use devious and undercover means to undermine or cause the downfall of a person in
authority.
CHAPTER TWO
CRIMES AGAINST POPULAR
REPRESENTATION
Section One — Crimes Against Legislative Bodies
and Similar Bodies
ART. 143. Acts tending to prevent the meeting of the assembly and similar bodies. — 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 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. (As amended by Com. Acts No. 264.) (Restored by E.O.
No. 187)
How the crime is committed
Preventing the meeting of:
N
Congress
Sub-committees
Constitutional commissions
ok
Provincial board
City council
6.
Municipal council
By means of force or fraud
The offender doesn’t have to actually prevent the meeting. If
his act tends to prevent the meeting, the crime is consummated.
87
88
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ART. 144. Disturbance of proceedings. — The penalty
of arresto mayor or a fine from 200 to 1,000 pesos shall be
imposed upon any person who disturbs the meetings of the
National Assembly (Congress of the Philippines) or any of
its committees or subcommittees, constitutional committees
or divisions thereof, or of any provincial board or city or
municipal council or board, or in the presence of any such
bodies should behave in such manner as to interrupt its
proceedings or to impair the respect due to it. (As amended
by Com. Act No. 264.) (Restored by E.O. No. 187)
Elements:
1.
There is a meeting of Congress or any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or any provincial board or city or municipal
council;
2.
The offender performs any of the following acts:
a.
Disturbs any of such meetings;
b.
Behaves in such a manner as to interrupt its proceedings
or to impair the respect due to it.
Section Two — Violation of Parliamentary Immunity
ART. 145. Violation of parliamentary immunity. — The
penalty 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 sub-committees,
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 is
in regular or special session, arrest or search any member
thereof, except in case such member has committed a crime
punishable under this Code by a penalty higher than prision
mayor.
(As amended
by Com. Act No. 264)
How is the crime of Violation of Parliamentary Immunity committed?
1.
Preventing any member of Congress from attending the meet-
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
89
Chapter Two — Crimes Against Popular Representation
ings of Congress or any of its committees or divisions by force,
intimidation, threats or fraud;
Preventing any member of Congress from expressing his opinions or casting his vote;
Arresting any member of Congress while Congress is in regular or special session except when the penalty for the crime is
punishable by a penalty higher than prision mayor;
Searching any member of Congress while Congress is in regular or special session except when the penalty for the crime is
punishable by a penalty higher than prision mayor.
Problem:
On his way to attend a regular session of the House of
Congress, Congressman Mauricio figured in a vehicular accident. Both the Congressman and the driver of the other vehicle alighted. An altercation ensued. In the process, the Congressman shot the driver with his licensed firearm. The bullet
grazed the left arm of the driver. A policeman came and arrested Congressman Mauricio. Is the policeman liable for Violation
of Parliamentary immunity?
Answer:
Yes, the policeman is liable for Violation of Parliamentary Immunity. The Constitution provides that a
member of Congress is immune from search and arrest except
when the penalty for the offense committed by him is higher
than prision correccional. There is an apparent conflict between Art. 145 and the Constitution. Art. 145 provides that
a member of Congress is immune from search and arrest except when the penalty for the crime be higher than prision
mayor. The Constitution being the highest law of the land
prevails. The crime committed by Congressman Mauricio is
Attempted Homicide which is punishable by prision correccional. This penalty is not higher than prision correccional.
Therefore, Congressman Mauricio is entitled to the immunity
from arrest. Having thus arrested the congressman, the police-
man is criminally liable.
CHAPTER THREE
ILLEGAL ASSEMBLY AND ASSOCIATION
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 erime of treason, rebellion,
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.
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 by under this Code, and 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. (4s amended by RA No. 12, approved September 5, 1946) (Restored by E.O. No. 187)
This law punishes a gathering of people for illegal purpose. The
unlawful purpose must be punished under the Revised Penal Code.
If the unlawful purpose is punishable by special law, illegal assembly is not committed.
Two forms of illegal assembly:
1.
Meeting attended by armed persons for the purpose of committing any of the crimes under the Revised Penal Code:
2.
A meeting in which the audience is incited to commit the crime
of treason, rebellion or insurrection, sedition or assault upon a
person in authority or his agent.
90
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
91
Chapter Three — lllegal Assembly and Association
Acts punished:
)
Any meeting attended by armed persons for the purpose
of committing any of the crimes punishable by the Code.
Elements:
a.
b.
c¢.
There is a meeting, gathering or group of persons, whether in fixed place or moving;
The meeting is attended by armed persons;
The purpose of the meeting is to commit any of the crimes
punishable under the Revised Penal Code.
Note:
If a group of armed men gathered and conspired for the
purpose of committing kidnapping, illegal assembly is committed not because of the conspiracy but because of the gathering
of armed men. Kidnapping is punished under the Revised Penal Code.
Any meeting in which the audience, whether armed
not, is incited to the commission
or
of the crime of treason,
rebellion, or insurrection, sedition, or assault upon person in authority or his agents.
Elements:
a.
There
is a meeting,
a gathering
or group
of persons,
whether in a fixed place or moving;
b.
The audience, whether armed or not, is incited to the com-
mission of the crime of treason, rebellion or insurrection,
sedition or direct assault.
Persons liable for illegal assembly:
1
The organizer or leaders of the meeting;
2.
Persons merely present at the meeting.
“Meeting” could be in a fixed place or moving.
Presumption if a person present at the meeting carries an
unlicensed firearm
If any person present at the meeting carries an unlicensed firearm, it is presumed that the purpose of the meeting insofar as he
is concerned is to commit acts punishable under the Revised Penal
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Code, and he is considered a leader or organizer of the meeting. (Art. 146, par. 2)
Problems:
1.
A group
of drug
pushers
had
a meeting
in the
campus of a university. They agreed and decided to distribute
and sell shabu and other illegal drugs to the students of the
colleges and universities in the city. Are the members of the
group liable for Tllegal Assembly?
Answer:
No, they are not liable for illegal assembly. This
crime is committed by a gathering of people for illegal purpose
punishable by the Revised Penal Code. The gathering of
drug pushers to facilitate drug trafficking is not illegal assembly because the purpose is not violative of the Revised Penal
Code but of the drugs law which is a special law.
Suppose the purpose of the meeting is to incite the audience to commit rebellion, insurrection, sedition or assault upon
a person in authority, what is the crime committed if any?
Why?
Answer:
The crime committed is illegal assembly because the audience is incited to commit rebellion or insurrection, sedition or
an assault upon a person in authority.
Distinctions between illegal assembly and illegal association
In illegal assembly, the basis of liability is the gathering for an
illegal purpose which constitutes a felony under the Revised Penal
Code.
In illegal association, the basis is the formation of or organization of an association to engage in an unlawful purpose which is not
limited to a violation of Revised Penal Code. It includes a violation of
special law or those against public morals. It has nothing to do with
decency or acts of obscenity.
ART. 147. Illegal associations. — The penalty
correccional in its minimum and medium periods
not exceeding 1,000 pesos shall be imposed upon
ers, directors, and presidents of the associations
of prision
and a fine
the foundtotally or
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
93
Chapter Three — Illegal Assembly and Association
partially organized for the purpose of committing any of the
crimes punishable under the Code of for some purpose con-
trary to public morals. Mere
shall suffer
No. 187)
the
penalty
members
of arresto
of said associations
mayor.
(Restored
by EO
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.
Illustration:
An association was organized for the purpose of illegal
recruitment. Is there an illegal association? Yes, because the
purpose of the association is contrary to public morals.
Distinctions between illegal association and illegal assembly:
1.
Inillegal association, it is not necessary that there be an actual
meeting.
In illegal assembly, it is necessary that there is an actual meeting or assembly or armed persons for the purpose of
committing any of the crimes punishable under the Code, or of
individuals who, although not armed, are incited to the commission or treason, rebellion, sedition, or assault upon a person
in authority or his agent.
2.
Inillegal association, it is the act of forming or organizing and
membership on the association that are punished.
In illegal assembly, it is the meeting and attendance at
such meeting that are punished.
‘3.
Inillegal association, the persons liable are: (1) the founders,
directors and president; and (2) the members.
In illegal assembly, the persons liable are:
(1)
The organizers or leaders of the meeting; and
(2)
The persons present at the meeting.
CHAPTER FOUR
ASSAULT UPON, AND RESISTANCE AND
DISOBEDIENCE TO PERSONS IN AUTHORITY
AND THEIR AGENTS
ART. 148. Direct assaults. — Any person or persons who,
without a public uprising, shall employ force or intimidation
for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition, or shall attack,
employ force, or seriously intimidate or resist any person in
authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance,
shall suffer the penalty of prision correccional in its medium
and maximum periods and a fine not exceeding 1,000 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 500 pesos shall
be imposed.
Two forms of direct assault:
1.
Without public uprising, by employing force or intimidation
for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition;
2.
Attacking, employing force, or seriously intimidating or resisting any person in authority or any of his agents while engaged
in the performance of their duties or on the occasion of
such performance.
Elements of the First Form of Direct Assault:
1.
Offender employs force or intimidation;
2.
The aim of the offender is to attain any of the purposes of
the crime of rebellion or any of the objects of the crime of
sedition;
3.
There is no public uprising.
94
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
95
Chapter Four — Assault upon, and Resistance and
Disobedience to Persons in Authority and their Agents
Illustrations:
a.
X is a sugarcane
planter in Hacienda
Esperanza.
He nurtured a grudge and ill feeling against Don Gerardo, the
owner of the hacienda because the latter had not been giving
his workers their due share and benefits. X attacked Don Ge-
rardo with fist blows and kick blows. What crime did X commit? Why?
Answer:
X committed Direct Assault. Without a public uprising, he attacked and employed force against a private
person for a social end. This is an object of Sedition (Art.
139, par. 4). Had there been public uprising, the crime commit-
ted is Direct Assault of the first kind.
b.
X an election registrar insulted Y in front of many
people. The latter did not forget the incident. He wanted to get
even with X. One day, Y chanced upon X. Y boxed X repeatedly
to avenge the public humiliation that he earlier suffered in the
hands of X. What crime did Y commit? Why?
Answer:
Y committed Direct Assault. Without a public uprising, he attacked Y to inflict an act of hate or revenge upon the
person of a public officer. (Art. 139, par. 3)
What if instead of attacking X, Y smashed the windshield
of the car of X to inflict an act of hate or revenge, what crime
did Y commit? Why?
Answer:
Y still committed Direct Assault. He inflicted an act of
hate or revenge on the property of a public officer without a
public uprising. (Art. 139, par. 3)
c.
Martin engaged Noel, the city secretary in a fist
fight wherein Martin suffered a big lump on his forehead. One
day, the two met again. Martin exacted revenge on Noel by hitting him with a piece of stone. What crime did Martin commit?
Why?
Answer:
Martin committed Direct Assault. Although the act of
Martin was not by reason of the performance of duty of the vic-
CRIMINAL LAW
BOOK IT OF THE REVISED PENAL CODE
96
tim, the act falls within the coverage of direct assault of the
first form xxx without a public uprising by employing
force or intimidation
for the attainment of any of the
purposes enumerated
in defining the crime of sedition.
One of the objects of sedition is to inflict any act of hate or
revenge upon the person or property of any public employee. (Art. 139, par. 3)
Under
not
sion
It is
is to
Direct assault of the first form, the law does
require that the attack is by reason or on the occaof the performance by the victim of an official duty.
enough that the attack upon the public officer or employee
inflict an act of hate or revenge.
Elements of the Second Kind of Direct Assault:
Ee
Offender attacks, employs force, makes a serious intimidation,
or makes a serious resistance;
The person assaulted is a person in authority or his agent;
At the time of the assault, the person in authority or his agent
in engaged in the actual performance of official duties, or
that he is assaulted by reason of past performance of official duties;
Offender knows that the one he is assaulting is a person in
authority or his agent in the exercise of his duties.
There is no public uprising.
Illustrations:
Actual performance of duty of a person in authority
1.
Mayor Rodrigo was conducting a meeting with barangay officials regarding the dissemination and implementation of the law that prohibits the selling of liquor to minors. X,
a store owner
and defiant of the law, stabbed the mayor
who
died as a result. What crime or crimes did X commit? Why?
Answer:
X committed the complex crime of Homicide
with Di-
rect Assault upon a person in authority. He committed
Homicide for stabbing the mayor to death. He also committed
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
97
Chapter Four — Assault upon, and Resistance and
Disobedience to Persons in Authority and their Agents
Direct Assault upon a person in authority because he attacked
the mayor while he was engaged in the performance of his duties. Considering however that the two crimes were committed
by the performance of a single act, that of stabbing the mayor,
a complex crime under the contemplation of Art. 48 of the Revised Penal Code is brought about. A single act resulted to one
grave felony (Homicide) and another less grave felony (Direct
Assault). The two crimes cannot be separately filed.
2.
SPO2 Ginez was pacifying the protagonists A and B.
Instead of being pacified, A vented his ire upon the policeman
and boxed the latter. What crime did A commit? Why?
Answer:
A committed Direct Assault upon an agent of a person in authority. He attacked the policeman while the latter
was engaged in the performance of his duties.
By reason of past performance of duty
3.
Judge Lamar found X guilty of the crime of Robbery
and sentenced him to suffer imprisonment. After serving the
sentence imposed, X was released from prison. One day, he met
Judge Lamar. X remembered that the judge convicted him and
sent him to prison. X attacked the judge by boxing him on different parts of his body. What crime or crimes did X commit?
Why?
Answer:
X committed Direct Assault upon a person in authority. He attacked the judge by reason of past performance of his
duty.
4.
What if in the immediately preceding problem, the
judge already retired from the service when X attacked him,
what crime did X commit? Why?
Answer:
X committed Physical Injuries. It cannot be Assault
upon a person in authority because the victim was no longer a
judge at the time of the assault. Once he retired, he is no longer
considered a person in authority.
CRIMINAL LAW
BOOK 11 OF THE REVISED PENAL CODE
98
Note:
A private person who comes to the aid of a person
in authority automatically becomes an agent of a person in authority. If such person is also assaulted, the crime
committed is Direct Assault upon an agent of a person in authority.
Illustration:
X attacked the Vice Mayor while the latter was in the
process of making consultations with a group of people
regarding the enactment of needed ordinances. Y attacked the
Vice Mayor by slapping him. George, who was at the meeting,
went to help the Vice Mayor by pacifying X. Instead of being
pacified, X boxed George. What crime or crimes did X commit?
Why?
Answer:
With respect to the Vice Mayor, X committed Direct
Assault upon a person in authority. He attacked the Vice
Mayor while he was engaged in the performance of his duties.
With respect to
upon an agent of a
who comes to the aid
becomes an agent of a
George, X committed Direct Assault
person in authority. A private person
of a person in authority automatically
person in authority.
Problems:
1.
X a motorist got mad at police officer Y for accosting
him when he parked at a no parking sign. Y demanded that X
gives him his driver’s license. Instead of complying with the
lawful order, X kicked the police officer. Y ran away but he was
pursued by X. Renz went to the aid of the policeman by pacify-
ing X but X threw him to the ground and kicked him. What
crime or crimes did X commit? Why?
Answer:
For attacking the policeman while he was engaged in the
performance of his duties, X committed Direct Assault upon
an agent of a person in authority.
A private person who comes to the aid of an agent
of a person in authority does not become an agent of an
agent of a person in authority. Thus, with respect to Renz,
the crime committed by X is Indirect Assault.
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
99
Chapter Four — Assault upon, and Resistance and
Disobedience to Persons in Authority and their Agents
2.
During a rainy season, Tibor was waiting for a taxi
cab. He was finally able to flag down a taxi. Before he could
enter the taxi though, a person opened the right back door and
immediately took his seat. Infuriated, Tibor entered the taxi
cab and forcibly pushed the man out of the taxi. That man suffered injuries. It turned out that the person is a judge. Is Tibor
liable for Direct Assault upon a person in authority? Why?
Answer:
No, he is not liable. Tibor did not know that the per-
son is a judge. Under the law, the offender must know that
the person assaulted is a person in authority or an agent of a
person in authority as the case may be. Besides, the judge
was not in the performance of his duties or was assaulted by reason of such performance.
When is there Qualified Direct Assault?
When the offender:
1.
Uses a weapon;
2.
Is a public officer or employee; or
3.
Lays hands upon a person in authority.
Illustration:
Rolando hates the Mayor for being strict in the implementation of a city ordinance. While the mayor was at the city market making rounds of inspection of newly built stalls, Rolando,
who is a stall holder and who feels aggrieved by the award of
the stalls, attacked the mayor by hitting him with a club. Rolando is liable for Qualified direct assault. He attacked the
mayor by using a weapon or he laid hands upon a person in
authority.
Problem:
Armando, a law student, was flunked in Roman Law by
his professor Atty. Reyes. Angered by this, Armando waited
for and hit him with a bottle of San Miguel beer. Atty. Reyes
suffered injuries and was medically attended for 3 days. Armando was charged with the complex crime of Direct Assault
with Slight Physical Injuries.
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BOOK II OF THE REVISED PENAL CODE
100
Is the charge correct? Why? If not, what crime? Why?
Will your answer be the same had Atty. Reyes been confined at the hospital for 12 days because of the injuries
that he sustained?
Answer:
a.
The charge of Direct Assault with Slight Physical Injuries is not correct. In the crime of Direct Assault,
physical injuries is absorbed. Besides, under Art. 48 of the
Revised Penal Code, a grave or less grave felony cannot be complexed with a light felony like slight physical injuries.
Armando committed Qualified Direct Assault upon a
person in authority. He laid hands upon a person in authority
by reason of the performance of his duties.
b.
However, the answer would be different if Atty.
Reyes was medically attended for 12 days because such injury
is no longer considered as slight but less serious physical injuries under Art. 265 of the Revised Penal Code. In which case,
the crime of less physical injuries is not absorbed but can be
complexed with direct assault. So the crime committed is Direct Assault with Less Serious Physical Injuries.
ART.
149. Indirect
assaults.
—
The
penalty
of prision
correccional in its minimum and medium periods and a fine
not exceeding 500 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 the occasion of commission of any of the crimes defined in the next
preceding article.
Elements:
1.
A person in authority or his agent is the victim of any of the
forms of direct assault defined in Article 148;
2.
A person comes to the aid of such authority or his agent;
3.
Offender makes use of force or intimidation upon such, person
coming to the aid of the authority or his agent.
The offended party here is a private person who comes to the
aid of an agent of a person in authority. The agent of a person in
authority is assaulted and the private person goes to his aid. There
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
Chapter Four
— Assault upon, and Resistance and
101
Disobedience to Persons in Authority and their Agents
is no indirect assault if there is no direct assault upon an agent of a
person in authority.
ART. 150. Disobedience to summons issued by the National Assembly, its committees or subcommittees, by the Constitutional Commissions,
its committees, subcommittees
or divi-
sions. — 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
and
subcommittees,
its committees,
the Constitutional
subcommittees
commissions
or divisions
any commission
or committee
chairman
rized to summon
witnesses, refuses, without
or before
or member
autho-
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 summons or
refusal to be sworn by any such body or official. (As amended
by Com. Act No. 52)
Acts punished:
1.
By refusing, without legal excuse, to obey summons
of Con-
gress, its special or standing committees and subcommittees,
the Constitutional commissions and its committees, subcom-
mittees or divisions, or by any commission or committee chairman or member authorized to summon
witnesses;
2.
By refusing to be sworn or place under affirmation while being
before such legislative or constitutional body or official;
3.
By refusing
books,
to answer
papers,
any
documents,
legal inquiry
or records
or to produce
in his possession,
any
when
required by them to do so in the exercise of their functions;
4.
By restraining another from attending as a witness
in such
legislative or constitutional body;
5.
By inducing disobedience to a summons or refusal to be sworn
by any such body or official.
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BOOK IT OF THE REVISED PENAL CODE
Illustrations:
1.
Angelica, an actress refused to appear before the
Committee on laws of the House of Congress investigating the
alleged rampant use of drugs among movie and television personalities despite receipt of summons. She did not bother to
give a legal or plausible explanation for her failure to appear.
Angelica is criminally liable for Disobedience to Summons.
2.
X prevented Y from appearing before the House of
Senate to shed light on the so called diversion of public funds
of the city government of Iloilo. Y is in possession of vital documents to prove technical malversation. Y was restrained and
he failed to appear during the investigation. X is liable for Dis-
obedience to Summons because he restrained another from
attending as a witness before the legislative body.
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.
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 100 pesos shall be imposed upon the
offender.
Elements of resistance and serious disobedience under the first
paragraph:
1.
A person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender;
2.
Offender resists or seriously disobeys such person in authority
or his agent;
3.
The act of the offender is not included
Articles 148, 149 and 150.
in the provisions
of
Elements of simple disobedience under the second paragraph:
1.
An
agent of a person
in authority
is engaged
in the perfor-
mance of official duty or gives a lawful order to the offender;
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
103
Chapter Four — Assault upon, and Resistance and
Disobedience to Persons in Authority and their Agents
2.
Offender disobeys such agent of a person in authority;
3.
Such disobedience is not of a serious nature.
Distinctions
between
resistance
or serious
disobedience
and
direct assault:
L
In resistance, the person in authority or his agent must be in
actual performance of his duties. In direct assault, the person
in authority or his agent must be engaged in the performance
of official duties or that he is assaulted by reason thereof.
Resistance or serious disobedience is committed only by
resisting or seriously disobeying a person in authority or his
agent.
In both resistance against an agent of a person in authority
and direct assault by resisting an agent of a person in authority, there is force employed, but use of force in resistance is not
s0 serious, as there is no manifest intention to defy the law and
the officers enforcing it.
Direct assault (the second form) is committed in four ways, that is:
(1)
By attacking;
(2
By employing force;
(3)
By seriously intimidating; and
4)
By seriously resisting a person in authority or his agent.
The attack or employment of force which gives rise to the crime
of direct assault must be serious and deliberate; otherwise, the
crime is simple resistance.
But when the one
who
resisted is a person
in authority,
the use of any kind or degree of force will give rise to direct
assault.
If no force is employed by the offender in resisting or disobey-
ing a person in authority, the crime committed is resistance or serious disobedience under the first paragraph of Article 151.
Illustration:
X was accosted by a policeman for creating public disturbance at the public plaza. X was holding a broken piece of
104
CRIMINAL LAW
BOOK TI OF THE REVISED PENAL CODE
bottle. The policeman demanded that X surrenders because he
was committing a crime. X resisted arrest. Eventually he was
subdued and arrested. X is liable for the crime of Resistance
to an Agent of a Person in Authority.
ART. 152. 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
corporation,
of some
court or governmental
board or commission, shall be deemed
in authority. A barangay
captain and a barangay
a person
chairman
shall also be deemed a person in authority.
Any person who, by direct provision of law or by election or by appointment by competent authority, is charged
with the maintenance of public order and the protection and
security of life and property, such as a barrio councilman,
barrio 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. (As
amended by BP Blg. 873, approved June 12, 1985)
Who is a person in authority?
A person in authority is one directly vested with jurisdiction
to govern and execute the law.
Examples of persons in authority:
1.
Municipal mayor;
2.
Division superintendent of schools;
3.
Public and private school teachers;
4
Teacher-nurse;
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
105
o
Chapter Four — Assault and Resistance and
Disobedience to Persons in Authority and their Agents
President of sanitary division;
®
Justice of peace;
Municipal councilor;
©
e
Provincial fiscal;
Barrio captain and barangay chairman;
10.
Members of Sangguniang Barangay; and
11.
Members of Lupng Tagapayapa
do.
and Pangkat Tagapagkasun-
Who is an agent of a person in authority?
An agent of a person in authority is one charged with the maintenance of peace and order and the protection of life and property
and private persons coming to the aid of a person in authority.
— 000—
CHAPTER FIVE
PUBLIC DISORDERS
ART. 153. Tumults and other disturbances of public
disorder — Tumultuous disturbance or interruption liable
to cause disturbance. — 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 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 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 outery tending to incite rebellion or sedition or in
such place shall display placards or emblems which provoke
a disturbance of public order.
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.
The acts punishable under this article are the following:
1.
Causing any serious disturbances in a public place, office or
establishment;
106
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
Chapter Five — Public Disorders
2.
107
Interrupting or disturbing public performance, functions or
gathering, or peaceful meetings, if the act is not included in
Arts. 131 and
132;
Making derogatory remarks leading to incite rebellion or sedition in any meeting, association or public place;
4.
Displaying placards or emblems which provoke a disturbance
of public order in such place;
o
3.
Burying with pomp the body of a person who has been legally
executed.
Note:
The crime of disturbance of public order may be committed by creating serious disturbance in public places or even in
private places where public functions are being held.
Illustrations:
1.
A public meeting was being held in the public plaza.
The Mayor and the members of the city council were in attendance. While the Mayor was delivering a speech, X went up
the stage and with using a public address system and shouted
at the people to change the sitting public officials and disobey
the law by not paying taxes. X committed Disturbance of the
Public Order.
2.
X was convicted of a heinous crime. He was imposed
the death penalty by lethal injection. After the execution of the
death sentence his relatives led by Y put his remains in an expensive casket and paraded it around the town complete with
a band playing music before the remains were buried in the
cemetery. The relatives committed Disturbance of the Public Order. They huried the body of the person who had been legally executed with pomp. The deceased should not be revered
as a hero or martyr. It would be giving a wrong example to the
public.
When is public disturbance or interruption tumultuous?
It is tumultuous when the disturbance of the public order is
committed by at least 4 armed men or provided with means of vio-
lence.
ART.
154. Unlawful use of means of publication and un-
lawful utterances. — The penalty of arresto mayor and a fine
ranging from 200 to 1,000 pesos shall be imposed upon:
CRIMINAL LAW
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108
1.
Any person 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;
2.
Any
utterances or
law or to the
extol any act
3.
person who by the same means, or by words,
speeches, shall encourage disobedience to the
constituted authorities or praise, justify, or to
punished by law;
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
offi-
cially; or
4.
Any person who shall print, publish, or distribute
or cause 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. (As
amended by Com. Act No. 202)
Acts punished:
1.
Publishing or causing to be published, by means of printing, lithography or any other means of publication, as news any false
news which may endanger the public order; or cause damage to
the interest or credit of the State;
2.
Encouraging disobedience to the law or to the constituted authorities or praising, justifying or extolling any act punishable
by law, by the same means or by words, utterances or speeches;
3.
Maliciously publishing or causing to be published any official
resolution or document without proper authority, or before
they have been published officially;
4.
Printing, publishing or distributing (or causing the same)
books, pamphlets, periodicals, or leaflets which do not bear the
real printer’s name or which are classified as anonymous.
Illustrations:
1.
Dominique printed a pamphlet containing acts of
corruption in the government. Instead of writing his true name
he wrote “aprilblossoms” as the writer. What crime did Dominique commit? Why?
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
109
Chapter Five — Public Disorders
Answer:
Dominique committed Unlawful Use of Means of Publication. Under the law, the crime can be comitted by any person who shall print, publish or distribute or cause to be
printed, published or distributed books, pamphlets, leaflets, or periodicals which do not bear the real printer’s name.
The use of a fictitious name does not excuse him from violating
the law.
2.
ACE
publications published the result of the 2010
Bar Examinations without clearance from the Supreme Court.
What crime was committed?
Answer:
The crime of Unlawful Use of Means of Publication
was committed. The result of the Bar Examinations was published without proper authority.
3.
X, a defeated mayoralty candidate, cannot accept
the verdict of a clean political judgment. He encouraged his
many supporters not to recognize the authority of the elected
mayor. He encouraged them not to pay their taxes. He praised
and justified the acts of those who have disobeyed the laws.
What crime did X commit? Why?
Answer:
X committed Unlawful Utterances. He encouraged disobedience to the law or to the constituted authorities. He also
praised and justified acts punished by law. This is in accordance with paragraph 2 of Art. 154 of the Revised Penal Code.
ART. 155. Alarms and scandals. — The penalty of arresto menor or a fine not exceeding 200 pesos shall be imposed
upon:
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;
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;
110
CRIMINAL LAW
BOOK IT OF THE REVISED PENAL CODE
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 places, provided that the circumstances of the case shall not make the
provisions of Article 153 applicable.
Acts punished:
1.
Discharging any firearm, rocket, firecracker, or other explosive
within a town or public place, calculated to cause alarm or dan-
ger;
2.
Instigating or taking an active part in any charivari or other
disorderly meeting offensive to another or prejudicial to public
tranquility;
3.
Disturbing the public peace while wandering about at night or
while engaged in any other nocturnal amusements;
4.
Causing any disturbance or scandal in public places while in-
toxicated or otherwise.
What is the crime committed if a person fires his gun?
Answer:
1.
Alarms and scandal if the firearm is fired in public
and is not directed to any person (Art. 155);
2.
Illegal discharge of firearm if the gun is fired at a
particular person without intent to kill (Art. 254);
3.
Attempted Homicide or Attempted Murder as the
case may be when the gun is fired at a person with intent to
kill. If the wound inflicted is not mortal or serious, the
crime is attempted. If the wound inflicted is mortal or
serious, the crime is frustrated in accordance with Art.
6 of the Revised Penal Code.
The crime of alarms and scandal constitutes only one crime.
Scandal here does not refer to moral scandal in the contemplation of
Art. 200 of the Revised Penal Code. Art. 155 deals with disturbance
of public peace and tranquility.
What is charivari? It is a mock serenade, a medley of discordant voices wherein the supposed serenades use broken tins, broken
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
111
Chapter Five — Public Disorders
pots, bottles or other utensils. It is noise offensive to the sense of
hearing and it disturbs public and tranquility.
ART. 156. Delivery of 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
means
posed.
are
of violence, intimidation,
used,
the
penalty
of arresto
or bribery.
mayor
shall
If other
be im-
If the escape of the prisoner shall take place outside
of said establishment by taking the guards by surprise, the
same penalties shall be imposed in their minimum period.
Elements:
1.
There is a person confined in jail or penal establishment;
2.
The offender removes the person confined from such jail or penal establishment or helps in the escape of such person.
The person confined could either be:
1.
A detention prisoner (Art. 29, RPC);
2.
Convict serving sentence.
Means of commission: violence, intimidation or bribery
Who may commit the crime?
1.
A private person
2.
Jail guard or warden
What is the crime committed
if a person
removes
a person from
jail?
It depends:
If the offender is the jail guard or jail warden who has custody
of the person, he commits Infidelity in the Custody of Prisoners.
If the person who removed the person confined in jail is not
the custodian, he commits the crime of Delivery of Prisoner from
Jail.
CRIMINAL LAW
BOOK 11 OF THE REVISED PENAL CODE
112
Problem:
Rodrigo is confined in jail. Patricio, a friend of Rodrigo approached Mauricio, the jail guard and offered him Php20,000.00
in exchange of the freedom of Rodrigo. Mauricio left the cell of
Rodrigo closed but unlocked. In the middle of the night, Rodrigo noticed that his cell was not locked. Rodrigo took advantage thereof and escaped. Determine the criminal liabilities of
Patricio, Mauricio and Rodrigo.
Answer:
Patricio is liable for two erimes. He is liable for Corruption of Public Officer (Art. 212) because he bribed the jail
guard Mauricio in allowing the escape of Rodrigo. He is also
liable for Delivery of Prisoner from Jail because he caused
or helped in the escape of Rodrigo.
Mauricio,
the jail guard
is also liable for two crimes.
He is liable for Direct Bribery (Art. 210) because he
ceived something in consideration of the performance of an
amounting to a crime. He is also liable for Infidelity in
Custody of Prisoner (Art. 223) because he consented in
escape of the prisoner under his custody or charge.
react
the
the
With respect to Rodrigo, his liability depends on the following:
If he is convict serving sentence, he is liable for Evasion of Service of Sentence (Art. 157). But if he is only a
detention prisoner, the answer is it depends. If he knew
the plan of Patricio and Mauricio to allow him to escape, he
is liable for Delivery of Prisoner from Jail as principal
by indispensable cooperation. If he was not aware of the
plan, he is not liable. There is no Jaw punishing that act.
—
000 —
CHAPTER SIX
EVASION OF SERVICE OF SENTENCE
ART. 157. Evasion of service of sentence. — The penalty
of prision correccional in its medium period and maximum
period 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, disguise, 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:
1.
The offender is serving sentence by final judgment;
2.
He evades service of sentence.
Three kinds of evasion of service of sentence:
1.
Evasion of service of sentence (Art. 157);
2.
Evasion of service of sentence on the occasion of a disorder or
other calamities (Art. 158);
3.
Violation of conditional pardon (Art. 159).
Qualifying circumstances that increase the penalty in evasion of
service of sentence:
If the evasion is:
1.
By means of unlawful entry;
3.
By using picklocks, false keys, disguise, deceit, violence or in-
timidation;
4.
Through connivance
penal institution.
with other convicts or employees
of the
CRIMINAL LAW
BOOK 11 OF THE REVISED PENAL CODE
114
Can this crime be committed by a detention prisoner?
Answer:
No, because there is yet no sentence to evade.
Problem:
Vanessa
was convicted of Concubinage by a Baguio City
court where the crime was committed. She was found guilty
by the court and was sentenced to suffer the penalty of destierro (six months and one day to 6 years). Accordingly, she was
banished to a distance of 250 kilometers radius from the place
where the crime was committed. After one year, she went back
to Baguio City and was arrested. What crime did she commit?
Why?
Answer:
She committed Evasion of Service of Sentence. Under Art. 87 of the Revised Penal Code, a person sentenced to
destierro is not permitted to enter the place designated in the
sentence, nor within the radius of not more than 250 and not
less than 25 kilometers from the place designated. She violated
the law.
Contrary to the belief of many law students, destierro is
a penalty which constitutes deprivation of liberty. Therefore,
if the person sentenced to suffer the said penalty shall evade
sentence, he is liable for Evasion of Service of Sentence. (People
v. Abiong, 82 Phil. 174)
Query:
What if the sentence evaded is destierro, what will be the
penalty to be imposed by you if you were a judge?
Answer:
The convict cannot be punished with a penalty higher
than destierro. He cannot be punished with the penalty of imprisonment because this penalty is heavier than destierro. 1
will sentence her to destierro. (People v. Ponce de Leon, 56 Phil.
386) The penalty for destierro cannot be more severe than the
penalty evaded.
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
Chapter Six —
115
Evasion of Service of Sentence
What if the prisoner serving sentence returned to jail not long after
he escaped?
He is still liable for evasion of service of sentence. His voluntary return does not exculpate him from criminal liability. It will
only be considered as a mitigating circumstance.
ART. 158. Evasion of service of sentence on the occasion
of disorders, conflagrations, earthquakes, or other calamities. — A convict who shall evade the service of his sentence,
by leaving the penal institution where he shall have been
confined, on the occasion of disorder resulting from a conflagration, earthquake, explosion, or similar catastrophe, or
during any 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:
1.
2.
Offender is a convict by final judgment
penal institution;
who is confined in a
There is a disorder resulting from;
a. conflagration;
b. earthquake;
c. explosion;
d. similar catastrophe; or
e. mutiny in which he has not participated;
3.
He evades service of sentence by leaving the penal institution
on the occasion of such disorder or during the mutiny;
4.
He fails to give himself up to the authorities within 48 hours
following the issuance of a proclamation by the Chief Executive
announcing the passing away of such calamity.
116
CRIMINAL LAW
BOOK IT OF THE REVISED PENAL CODE
What is the effect if the prisoner who escaped on the occasion of
a calamity returns within 48 hours following the announcement of
the passing away of the calamity?
Answer:
He will be rewarded. He will be given a penalty deduction equivalent to 1/5 of the original sentence. We
call this special time allowance for loyalty under Art. 98 of
the Revised Penal Code. If he fails to return, he will be penalized with additional 1/5 penalty based on the remaining sen-
tence.
Problem:
Typhoon Ondoy lashed its fury in northern Luzon. X, a
prisoner at the Baguio City Jail took advantage of the confusion and escaped. He was arrested after a few days. There was
no proclamation of the passing of the calamity. He was charged
with Evasion of Service of Sentence on the occasion of a calamity. Is the charge correct?
Answer:
No, the answer is not correct. He was arrested and did
not return. Besides, there was no announcement of the passing
of the calamity. He is liable for Evasion of Service of Sentence
under Art. 157.
ART. 159. Other cases of evasion of service of sentence. —
The penalty of prision correccional on 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 re-
mitted
by the granting of such pardon be higher than six
years, the convict shall then suffer the unexpired portion of
his original sentence.
Elements:
1. Offender is a convict;
2. He was granted pardon by the Chief Executive;
3. He violated any of the conditions of the pardon.
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
Chapter Six — Evasion of Service of Sentence
117
Violation of Conditional Pardon
Violation of Conditional Pardon constitutes Evasion of Service of Sentence. Conditional pardon is a covenant. It is a silent
contract between the convict and the Chief Executive. It is in writing and to be effective it must be accepted in writing by the convict.
If he does not, there is no contract. If he is released without his conformity to the conditional pardon, the pardonee shall not be liable
for evasion of service of sentence.
The convict shall be released from prison by virtue of the conditional pardon and in view of his commitment that he shall abide
by the terms of the pardon. If he violates any of the terms of the
pardon, he is deemed not to have a genuine interest to comply with
the conditions of the pardon upon him. Thus, if he violates any of
the conditions of the pardon, the crime he committed is still Evasion of Service of Sentence.
What is the effect of violation of the conditional pardon?
The pardonee shall suffer the penalty of prision correccional
in its minimum period if the penalty remitted by the pardon is less
than 6 years. This is an additional penalty aside from the unexpired portion of the sentence that was pardoned.
However, if the penalty remitted by the pardon is higher than
six years, there is no additional penalty because the convict shall
then suffer the unexpired portion of his original sentence.
Query:
Is violation of conditional pardon a substantive offense?
It depends
Under Article 159, there are two situations provided:
1.
There is a penalty of prision correccional minimum
for the violation of the conditional pardon;
2.
There is no new penalty imposed for the violation of
the conditional pardon. Instead, the convict will be required to
serve the unserved portion of the sentence.
If the remitted portion of the sentence is less than six years
or up to six years, there is an added
penalty of prision correc-
cional minimum. Hence, the violation is a substantive offense because in this case a new penalty is imposed for the violation of the
conditional pardon.
But if the remitted portion of the sentence exceeds six years,
the violation of the conditional pardon is not a substantive offense
because no new penalty is imposed for the violation.
CHAPTER SEVEN
COMMISSION OF ANOTHER CRIME
DURING SERVICE OF PENALTY IMPOSED
FOR ANOTHER PREVIOUS OFFENSE
ART. 160. Commission of another crime during service
of penalty imposed for another previous offense. — 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 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 he shall complete it after reaching said age, unless by reason of his conduct or other circumstances he shall
not be worthy of such clemency.
Who is a quasi recidivist?
A quasi recidivist is any person who shall commit a felony
while serving sentence or before serving sentence. The maximum
penalty for the new felony shall be imposed.
Elements:
1.
Offender is convicted by final judgment
fense;
of a felony or an of-
2.
He commits a felony before beginning to serve such sentence
or while serving the same.
Illustrations:
1.
X was convicted of Theft. The judgment became final. Before he could start serving sentence, X committed Attempted Homicide. [s X a quasi recidivist?
118
TITLE THREE — CRIMES AGAINST PUBLIC ORDER
Chapter Seven — Commission of Another Crime During Service
of Penalty Imposed for Another Previous Offense
119
Answer:
Yes,X is a quasi recidivist. Before serving sentence, he
committed Attempted Homicide, a felony.
2.
X
was
convicted
of Homicide.
While
serving
sen-
tence, he committed Robbery. Is he a quasi recidivist?
Answer:
Yes,X is a quasi recidivist. While serving sentence, he
committed Robbery, a felony.
3.
X was convicted of Falsification. While serving sentence, X committed Violation of the Drugs Law. Is X a quasi
recidivist?
Answer:
No, he is not a quasi recidivist. While serving sentence, he committed a crime, a violation of the drugs law.
What the law provides is that before serving sentence or while
serving sentence, the convict must commit a felony.
4.
X was convicted of Tllegal recruitment. Before serv-
ing sentence, he committed Murder. Is X a quasi recidivist?
Answer:
Yes, X is a quasi recidivist. Before serving sentence,
he committed Murder, a felony. The nature of the first offense
does not matter. Whether it is a felony or a crime is of no moment. What determines quasi recidivism is that before serving
sentence or while serving sentence, the convict must commit a
felony. If he commits a crime and not a felony before or while
serving sentence, he is not a quasi recidivist.
5.
X was convicted of Illegal Possession of firearm.
While serving sentence, X committed a Violation of BP 22, a
special law. Is X a quasi recidivist?
Answer:
No, X is not a quasi recidivist. While serving sentence,
X committed a erime and not a felony.
What is the legal consequence of quasi recidivism?
Quasi-recidivism is an aggravating circumstance. If the
accused is convicted of the new felony, the maximum period prescribed for the new felony shall be imposed.
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
120
Note:
If the convict reaches the age of 70, he shall be pardoned if
he shall have already served out his original sentence or when
he shall have completed it after reaching 70 years of age provided he is not a habitual criminal and provided further, that
he is not by reason of his conduct be worthy of such clemency.
— 000 —
TITLE FOUR
CRIMES AGAINST PUBLIC INTEREST
CHAPTER ONE
FORGERIES
Section One — Forging the Seal of the Government of the
Philippine Islands, the signature or stamp of the Chief Executive
The crimes against public interest are the following:
1.
Counterfeiting the great seal of the Government of the Philippines (Art. 161);
Using forged signature or counterfeiting seal or stamp
(Art.
162);
s
Making and importing and uttering false coins (Art. 163);
Mutilation of coins, importation and mutilated coins (Art. 163);
Selling of false mutilated coins, without connivance (Art. 165);
Forging treasury or bank notes or other documents payable
to bearer, importing such false or forged notes and documents
(Art. 166);
Counterfeiting, importing and uttering instruments
able to bearer (Art 167);
not pay-
Tllegal possession or use of forged treasury or bank notes and
other instruments of credit (Art. 168);
Falsification of legislative documents (Art. 170);
121
122
CRIMINAL LAW
BOOK 1T OF THE REVISED PENAL CODE
10.
Falsification by public officer employee or notary (Art. 171);
11.
Falsification by private individuals and use of falsified documents (Art. 172);
12.
Falsification of wireless, cable, telegraph and telephone messages and use of said falsified messages (Art. 173);
13.
False medical certificates, false certificates of merit or service
(Art. 174);
14.
Using false certificates (Art. 175);
15.
Manufacturing and possession of instruments
for falsification (Art. 176);
16.
Usurpation of authority or official functions (Art. 177);
17.
Using fictitious name and concealing true name (Art 178);
18.
Illegal use of uniforms or insignia (Art. 179);
19.
False testimony against a defendant (Art. 180);
20.
False testimony favorable to the defendant (Art. 181);
21.
False testimony in civil cases (Art. 182);
22.
False testimony in other cases and perjury (Art. 183);
23.
Offering false testimony in evidence (Art. 184);
24.
Machination in public auction (Art. 185);
25.
Monopolies and combinations in restraint of trade (Art. 186);
26.
Importation and disposition of falsely marked articles or merchandise made of gold, silver, or other precious metals or their
or implements
alloys (Art. 187);
27.
Substituting and altering trademarks and trade names or service marks (Art. 188)
28.
Unfair competition and fraudulent registration of trade mark
or trade name, or service mark; fraudulent designation of origin, and false description (Art. 189).
The crimes in this title are in the nature of fraud upon the
public in general. The essence of the crime under this title is against
public interest. There is deceit perpetrated upon the public. The
foregoing are the acts that are being punished under this title.
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
123
Chapter One — Forgeries
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 shall forge the Great
Seal of the Government of the Philippine Islands or the signature or stamp of the Chief Executive.
Acts punished:
1.
2.
Forging the great seal of the Government of the Philippines;
Forging the signature of the President.
The acts of falsification are the following:
1.
Counterfeiting — refers to money or currency;
2.
Forgery — refers to instruments of credit and obligations and
securities issued by the Philippine government or any banking
institution authorized by the Philippine government to issue
the same.
3.
Falsification — can only be committed on documents.
However, an unauthorized use of the genuine seal of the government or the genuine signature of the President to the prejudice
of another person is Estafa under Art. 315(2) of the Revised Penal
Code.
ART. 162. Using forged signature or counterfeit seal or
stamp. — The penalty of prision mayor shall be imposed upon
any person who shall knowingly make use of the counterfeit
seal or forged signature or stamp
ing article.
mentioned
in the preced-
Elements:
1.
The great seal of the Republic was counterfeited or forged
or the signature or stamp of the Chief Executive was forged by another person;
2.
The offender knows of the counterfeiting or forgery;
3.
He used the counterfeit seal or forged signature or stamp.
This felony is committed by the use of the forged signature
or counterfeit seal or stamp. The crime cannot be committed by
the forger.
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11 OF THE REVISED PENAL CODE
Section Two — Counterfeiting Coins
ART. 163. Making and importing and uttering false
coins. — Any person who makes, imports, or utters false
coins, in connivance with counterfeiters, or importers, shall
suffer:
1.
Prison mayor in its minimum
and medium
periods
and a fine not to exceed 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.
periods
Prision
and
correccional
in its minimum
a fine not to exceed
and
medium
2,000 pesos, if the counter-
feited coins be any of the minor coinage of the Philippines
of the Central Bank of the Philippines below ten-centavo denomination.
3.
fine not
Prision
to exceed
correccional in its minimum
1,000
pesos,
currency of a foreign country.
4202, approved June 19, 1965)
if the
period
counterfeited
(As amended
and
coin
a
be
by Rep. Act No.
Who are the persons liable?
The persons liable are persons who make, import, or utter false
coins, in connivance with counterfeiters, or importers.
What is counterfeiting of coins?
It is imitation of genuine coins, whether legal tender or not.
(US v. Basco, 6 Phil.
110)
Kinds of coins that can be counterfeited:
1.
Silver coins of the Philippines or coins of Central Bank;
2.
Coins of the minor coinage of the Philippines or of the Central
Bank of the Philippines;
3.
Coin of the currency of a foreign country.
Is mere possession of counterfeit money a crime?
Answer:
No. Mere possession of counterfeit money is not a crime.
To constitute a crime, the possession must be coupled with intent to use any of such counterfeit money.
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
125
Chapter One — Forgeries
Problems:
1.
Bosyong went to the SM grocery store and purchased
food stuff for the celebration of the birthday of Aldong. He paid
the groceries with 3 one thousand peso bills. When the cashier
looked at the bills she had doubts if they were genuine. She
compared them with the genuine money and she discovered
that the bills are counterfeit. Is Bosyong liable for possession
of counterfeit money?
Answer:
No, Bosyong is not liable for possession of counterfeit
money. Two elements must be present: (1) intent to use the
counterfeit money, and (2) knowledge that the money in his
possession is a counterfeit money. These elements are not attendant in the instant case.
2.
Jomar in connivance with a politician distributed
counterfeit money to voters knowing full well that the money
is counterfeit. Is he liable? Why?
Answer:
Yes, he is liable. It having been established that Jomar
acted in connivance with the counterfeiting, it is not necessary
anymore to prove that he knew the money to be counterfeited.
The connivance amply shows that he has knowledge thereof
and he actually used it.
Counterfeiting of Coins: legal tender or not
In the crime of counterfeiting, the object of the law is
fraud to be perpetrated on the public. Even if the coin is
ger a legal tender, the act of imitating or manufacturing the
the government is illegal and is penalized. The law prohibits
from trying to imitate the manufacture of money.
not the
no loncoin of
people
Hence, it is not necessary the coin counterfeited is still a legal
tender. If the coin is old, antique or vintage, the crime of counterfeiting is committed. The motivating rationale is that if people would be
allowed to imitate money just because it is no longer a legal tender
then they would be emboldened to counterfeit coins of legal tender.
This would result to confusion to the public and to the government
was well. The act of counterfeiting coins must be nipped from the
very bud. Counterfeiting should be penalized from the very
start whether the coin is a legal tender or not.
126
CRIMINAL LAW
BOOK IT OF THE REVISED PENAL CODE
Problem:
Anselmo manufactured a legal tender at the time of Lapulapu. He was found in possession of a hundred pieces of that
coin. Is he liable for counterfeiting of coins?
Answer:
Yes, he is liable. Under the law, it is not necessary
that
the coin counterfeited is a legal tender. The purpose of the law
is to discourage people from imitating money whether it be legal tender or not.
ART.
164. Mutilation
of coins — Importation
and utter-
ance of mutilated coins.— The penalty of prision correccional
in its minimum
period
and
a fine not to exceed
2,000 pesos
shall be imposed upon any person who shall mutilate coins
of the legal currency of the (United States or of the) Philippine Islands or import or utter mutilated current coins, in
connivance with mutilators or importers.
What is the meaning of Mutilation of Coins?
It refers to the deliberate act of diminishing the proper metal
contents of the coin either by scraping, scratching, or filling the edg-
es of the coin and the offender gathers the metal dust that has been
scraped from the coin.
Elements of Mutilation of Coins under the Revised Penal Code:
1.
The coin mutilated is legal tender;
2.
Offender
gains
from
the
precious
metal
extracted
from
the
coin;
3.
It has to be a coin, not a bill.
Mutilation of coin is punished because the coin being a legal
tender is still in circulation. Thus, if you deface a coin by extracting
or deforming it, you are diminishing the intrinsic worth of a coin.
After the mutilation the coin is no longer worth as it was before the
mutilation. If you cut or remove a part of a 5 peso coin and collect
gold dust from it, the worth of the coin is reduced for instance to 3
peso worth.
Problem:
Geronimo scraped a 10 peso coin bearing Bagong Lipunan, a legal tender during the Marcos era but which is no lon-
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
Chapter One — Forgeries
127
ger a legal tender today, and obtained its gold contents. Is he
liable for Mutilation of coins?
Answer:
No, Geronimo
is not liable for Mutilation of coins. Under
the law, mutilation of coins is a crime only if the coin mutilated
is a legal tender.
In Mutilation of coins, the offender must deliberately
remove or extract the precious metal in the coin. He does so if
he collects the metal dust or basic component of the coin. If he does
not, he does not commit
the crime.
However,
he may
be liable for
Violation of PD 247.
Is mere possession of a counterfeited or mutilated coin a crime?
Answer:
Mere possession of a counterfeited or mutilated coin is
not a crime. There must be intent to utter or distribute it in
circulation to make it a crime.
PRESIDENTIAL DECREE NO. 247: DEFACEMENT,
MUTILATION, TEARING, BURNING OR DESTROYING
CENTRAL BANK NOTES AND COINS
x x x It shall be unlawful for any person to willfully deface, mutilate,
tear or destroy in any manner whatsoever, currency notes and coins
issued by the Central Bank...
Mutilation
under the Revised Penal Code is only applicable
to coins. It is not a crime under the Revised Penal Code to mutilate
bills because the purpose in mutilation is to collect the precious elements or metal dust from the coin. Bills have no metal components.
PD 247 is not limited to coins.
Problems:
1.
Clark wrote on a 100 peso bill “ I am Clark, male, 25
years old, good looking, text or call me at 09178128890.”
What crime did Clark commit?
Answer:
Clark is liable for Violation of PD 247. He defaced the100
peso bill.
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
128
2.
Jake tried to show off during a drinking spree. He
set fire a 500 peso bill and lighted his cigarette with it. What
crime did Jake commit?
Answer:
Jake committed Violation of PD 247. He burned a Philippine peso bill. The law punishes destruction of money issued by
the Central Bank of the Philippines.
3.
Roman made a ring out of a 5 peso coin and gave it to
his girlfriend. He did not gather the metal dust from the coin.
Is he liable for Violation of PD 247?
Answer:
Yes, Roman is liable for Violation of PD 247. Even if the
act of mutilating the coin does not involve the gathering of the
metal dust it still constitutes violation of the special law be-
cause he destroyed the coin.
4.
Junprats played cara y cruz with 4 other players
who put their bets on the bird side. Before he tossed the 2 coins
up in the air, Junprats rubbed the coins to the concrete pavement thereby diminishing the metal contents of the coins. Is
Junprats liable for Mutilation of coins?
Answer:
No, he is not liable for Mutilation of coins because he did
not gather the metal contents or dust of the coins. However,
Junprats is liable for Violation of PD 247. Under this law, it is
unlawful to willfully deface, mutilate, tear, burn, or destroy in
any manner whatsoever currency notes and coins issued by the
Central Bank.
ART. 165. Selling offalse or mutilated coin, without connivance. — The person who knowingly, although without the
connivance mentioned in the preceding articles, shall possess false or mutilated with intent to utter the same, or shall
actually utter such coin, shall suffer a penalty lower by one
degree than that prescribed in said articles.
Acts punished:
1.
Possession of false or mutilated coins with intent to utter; and
2.
Actually uttering such
maker or importer.
coins
without
connivance
with
the
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
Chapter One — Forgeries
Section
Three
—
Forging
Treasury
or
Bank
129
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 such false
or forged obligations or notes, shall be punished as follows:
1.
By reclusion temporal or in its minimum period and
a fine not to exceed 10,000 pesos, if the document which has
been falsified, counterfeited, or altered is an obligation or
security of the (United States or of the) Philippine Islands.
The
words
“obligation
or security of the United States
or of the Philippine Islands” shall be held to mean all bonds,
certificates of indebtedness,
(United States or) Philippine
fractional notes, certificates
drafts for money, drawn by
the. (United States or of the)
national bank notes, coupons,
Islands notes, treasury notes,
of deposit, bills, checks, or
or upon authorized officers of
Philippine Islands, and other
representatives of value, of whatever denomination, which
have been or may be issued under any act of the Congress of
the (United States or the) Philippine Legislature.
2.
By prision mayor
not to exceed 2,000 pesos,
ment is a circulating note
duly authorized by law to
in its maximum period and a fine
when the forged or altered docuissued by any banking institution
issue the same.
3.
By prision mayor in its medium period and a fine
not to exceed 5,000 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 2,000 pesos, when the forged or altered document is a circulating note or bill issued by a foreign bank
duly authorized thereof.
Acts of forgery that are punished:
1.
Forging or falsification of treasury or bank notes or other documents payable to bearer;
130
CRIMINAL LAW
BOOK 1T OF THE REVISED PENAL CODE
2.
Importation of such false or forged obligations or notes;
3.
Uttering of such false or forged obligations or notes in conniv-
ance with the forgers or importers.
The forgery contemplated by law here is that one perpetrated
to deceive the public. The treasury, bank note or other currency note
must have the appearance of a genuine document. If the alteration
is too obvious that a person cannot be deceived at all, there
is no forgery.
Problem:
Manuel counterfeited a 100 US dollar bill. The reproduction was almost perfect but anyhow it was detected. Manuel
was charged with forgery. The lawyer of Manuel argued that
his client is not liable because what was counterfeited is a foreign currency. Is the argument of Manuel’s lawyer tenable?
Answer:
No, the argument
of Manuel’s
lawyer is untenable. Un-
der the Revised Penal Code, forgery may also be committed on
bank notes, currency notes or foreign exchange
a currency in the Philippines.
accepted as
ART. 167. Counterfeiting, importing and uttering instruments payable to bearer. — Any person who shall forge, import, or utter, in connivance with the forgers or importers,
any instrument payable to bearer, shall suffer the penalties
of prision correccional in its medium and maximum periods
and a fine not exceeding 6,000 pesos.
Elements:
1.
There is an instrument payable to order or other documents of
credit not payable to bearer;
2.
The offender either forged, imported or uttered such instru-
ment;
3.
In case of uttering, he connived with the forger or importer.
ART.
bank notes
be one of
preceding
168. Illegal possession and use of false treasury or
and other instruments of credit. — Unless the acts
those coming under the provisions of any of the
articles, any person who shall knowingly use or
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
Chapter One — Forgeries
131
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.
Acts Punished:
1.
Possession with knowledge that the
There must be animus possidendi;
2.
Intent to use or utter the same.
checks
were
falsified.
Elements:
1.
A treasury or bank note 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;
2.
Offender knows that any of those instruments is forged or falsified.
ART. 169. How forgery is committed. — The forgery referred to in this section may be committed by any of the following means:
1.
By giving to a treasury or bank note or any instrument payable to bearer or order mentioned therein, the appearance of a true genuine document;
2.
By erasing, substituting, counterfeiting or altering
by any means the figures, letters, words or signature contained therein.
What can be the objects of forgery?
Forgery can be made on Central Bank notes, obligations and
securities of the government of the Philippines like sweepstakes
tickets or bank notes or documents of a foreign government.
How forgery is committed:
1.
Giving to a treasury or bank note or any instrument payable to
bearer or order, the appearance of a true genuine document;
2.
Erasing, substituting, counterfeiting or altering by any means
the figures, letters, words, or signs contained therein.
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
132
Counterfeiting refers to money whether coins or bills. You
counterfeit a 500 peso bill or a 5 peso coin. Thus, you don’t counterfeit a check or any instrument payable to bearer.
Forgery applies to papers in the form of obligations or securities issued by the Philippine government. You forge a check. You
don't forge a 5 peso coin or a 500 peso bill.
Note:
Not any alteration of a letter, number, figure or design
would amount to forgery. The essence of forgery is giving a
document the appearance of a true or genuine document. Thus,
when the discrepancy is very obvious to the naked eye, there
is no forgery. However, the offender may be charged with frustrated counterfeiting or frustrated forgery. Although he has
done all the acts of execution, the crime was nevertheless not
committed for reasons independent of the will of the perpetra-
tor. (Art. 6, RPC)
Illustration:
X replaced the amount of 10 dollars to 100 dollars. The
alteration is so imperfect that it is very visible that it is not
genuine. Is X liable for Counterfeiting? If no, what crime is
committed?
B
Answer:
No, X is not liable for Counterfeiting. Under the law, the
currency note must be counterfeited to make it appear that it
has the appearance of a genuine currency. In this case, nobody
would be deceived because one could easily notice that it is a
counterfeit. At most, he is liable for Frustrated Counterfeiting.
Section Four — Falsification of Legislative, Public, Commercial, and Private Documents, and Wireless, Telegraph and
Telephone Messages
Kinds of Falsification:
1.
Falsification of public documents (Art. 170);
2.
Falsification of a document by a public officer, employee, no-
tary public or ecclesiastical minister (Art. 171);
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
Chapter One — Forgeries
3.
133
Falsification of a public, official, or commercial documents by a
private individual and use of falsified documents (Art. 172);
Falsification of a private document by any person (Art. 172);
Falsification
of wireless,
telegraph
and
telephone
messages
(Art. 173).
ART.
170. Falsification of legislative documents.
penalty of prision correccional in its maximum
— The
period and
a fine not exceeding 6,000 pesos shall be imposed upon any
person who, without proper authority therefor alters any
bill, resolution, or ordinance enacted or approved or pending approval by either House of the Legislature or any provincial board or municipal council.
Elements:
1.
There is a bill, resolution, or ordinance enacted or approved or
pending approval by Congress or any provincial, city or municipal board;
The offender alters the same;
He does not have proper authority.
ART. 171. Falsification by public officer, employee, or notary or ecclesiastic minister. — The penalty of prision mayor
and a fine not to exceed 5,000 pesos shall be imposed upon
any officer, employee, or notary who, taking advantage of his
position, shall falsify a document
following acts:
1.
Counterfeiting
by committing
or imitating
any
any of the
handwriting,
sig-
nature or rubric;
2.
Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate;
3.
Attributing to persons who have participated in an
act or proceeding statements other than those in fact made
by them;
4.
Making
untruthful
5.
Altering true dates;
facts;
statements
in
a
narration
of
134
CRIMINAL LAW
BOOK I1 OF THE REVISED PENAL CODE
6.
Making any alteration or intercalation
ine document which changes its meaning;
in a genu-
7.
Issuing in an authenticated form a document purporting to be a copy of an original document when no such
original exists, or including in such copy a statement contrary to, or different from, that of the genuine original; or
8.
Intercalating any instrument or note relative to
the issuance therof in a protocol, registry, or official book.
The same penalty shall be imposed upon any ecclesiastical minister who shall commit any of the offenses enumerated in the preceding paragraphs of this Article, with respect
to any record or document of such character that its falsifi-
cation may affect the civil status of persons.
These
acts of falsification are true not only to public officers,
employees, or notaries public but to any kind of falsifications under
the RPC. These acts of falsification can be committed by private persons.
The four kinds of documents:
1.
Public document is a document executed with the participation of a person in authority or a notary public. Examples: City
council resolution, an appointment made by a mayor, criminal
information in court.
2.
Official document is a document issued by a public official in
the exercise of his official functions. Example: Official receipt.
3.
Commercial
document
is any document recognized by the
Code of Commerce or any mercantile law. Examples: Checks,
bills of lading, passenger manifest.
4.
Private document is a document executed by private persons
without the intervention of a notary public or any other authorized persons. Example: A written receipt prepared by a creditor or debtor.
Note:
A public document is broader than an official document. A
public document is not necessarily an official document. Before
a public document becomes an official document, there must be
a law which requires a public officer to issue such a document.
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
Chapter One — Forgeries
135
Example:
Torres went to the Treasurer’s office to pay his annual
realty taxes. The collector of realty taxes received his payment.
Under the law, the collector is mandated to issue official receipt for the payment real estate taxes. The official receipt is-
sued for that purpose is considered an official document.
Falsification by public officer, employee, notary public or
ecclesiastical minister
Elements:
1.
The offender is a public officer, employee or notary public;
2.
3.
He takes advantage of his official position;
He falsifies a document by any of the following acts:
a.
Counterfeiting or imitating any handwriting,
or rubric;
signature
b.
Causing it to appear that persons have participated in
any act or proceeding when they did not in fact participate;
c.
Attributing to persons who have participated in an act or
proceeding statements other than those in fact made by
them;
d.
Making untruthful statements in a narration of facts;
e.
Making any alteration or intercalation in a genuine document which changes its meaning;
f.
Issuing in an authenticated form a document purporting
to be a copy of an original document when no such original exists, or including in such copy a statement contrary
to or different from, that of the genuine original;
g.
Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.
Illustrations:
FIRST MODE:
a.
Counterfeiting or imitating any handwriting,
signature or rubric:
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
136
The offender imitates or feigns a handwriting or signature of another person.
Example:
A court employee imitated the signature of the judge in
the order of release of a detention prisoner who posted a bond
for his provisional liberty. The document is genuine. The crime
of Falsification is committed by imitating the genuine signature of the judge.
SECOND
MODE:
b.
Causing it to appear that a person participated in an act or proceeding when in fact he did not in fact
so participate.
Examples:
1.
X and Y are hushand and wife. They are both el-
ementary school teachers. The husband had long passed
board exam but the wife failed in three tries. One day, the
band suggested to his wife that inasmuch as she failed to
in as many tries, he better take the examination for her.
the
huspass
The
wife agreed. The husband took the examination in the name of
the wife. When the result of the teacher’s board examination
was released, the wife passed. It was discovered that it was
not the wife but the husband who took the examination in the
name of the wife. The husband
He made
it appear
is liable for falsification.
that the wife took the examination
when in fact and in truth she did not.
2.
It was 1:00 o’clock in the afternoon. Gina who was
at SM called up Jean, her co-employee at the Treasurer’s office
and requested the latter to punch in her time card in the bundy
clock. Jean punched as requested. Gina arrived at their office
at 2:00 o'clock. Jean is liable for falsification. She made
it appear that Gina was present at their office at 1:00
o’clock in the afternoon and that she (Gina) punched in
her time card.
THIRD MODE:
c.
Attributing to persons
those in fact made by them.
statements
other than
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
137
Chapter One — Forgeries
Example:
Fabian, a tricycle driver was in dire need of money. His
wife was in the hospital and was due for a caesarian operation.
Fabian went to Don Segundo and obtained a Php20,000 loan. He
gave his tricycle as collateral to the loan. Instead of preparing a
Chattel Mortgage which was the agreement, the notary public
prepared an absolute deed of sale which Fabian signed not
knowing the import of the document because of his meager
education. The notary public is liable for falsification.
Fabian really participated in the transaction. The
notary public attributed to Fabian statement other than
those in fact made by him.
FOURTH MODE:
d.
Making
untruthful
statements
in a narration
of facts.
Elements:
1.
The offender has a legal obligation
to disclose the
truth of the facts narrated;
2.
He has knowledge that the facts narrated by him are
false;
3.
The offender makes in a document untruthful statement in a narration of facts;
4.
There must be wrongful intent to injure a third
party.
Examples:
1.
Eugene is a bar candidate. He filled up an application form to take the bar examination. In the form, there is a
question...“have you ever been charged or convicted of a crime
involving moral turpitude?” Eugene answered “NO” when in
fact and in truth he was previously convicted of Robbery. Eugene is liable for falsification. He had the legal obligation to tell the truth of the facts narrated by him. He
made an untruthful statement in a narration of facts.
2.
Martin is an employee of the Social Security System.
He filed an application to take the Civil Service First Grade
Examination. He filled up the application form and filled up
CRIMINAL LAW
BOOK IT OF THE REVISED PENAL CODE
138
“college graduate” in the space provided for. The truth is, he
did not graduate because he lacked 1.5 units in military science
(ROTC). He passed the examination. It was found out though
that he did not graduate in college because of the deficiency. He
was charged of falsification. Is the charge correct?
Answe,.
Yes, the charge is correct. He had the legal obligation
to disclose the truth of the facts narrated by him. He did not do
so. He made an untruthful statement.
In the same problem, what if before Martin filled up
the application form, he asked an employee of the Civil Service Commission if he is considered college graduate because
he had finished all the academic requirements of the course
and he lacks only 1.5 units of military science. The employee
advised him that he is considered a college graduate because
military science is not an academic requirement of the course.
If you were the lawyer for Martin, what is your defense?
Answer:
If T were the lawyer for Martin, I will invoke good faith
and honest mistake of fact as a defense. Falsification is an intentional offense. He had no wrongful intent when he made the
entries in the application form. He inquired from an employee
of the Civil Service Commission about his status and he was
advised that he is considered a college graduate. He did not
maliciously pervert the truth. (Llamoso v. Sandiganbayan, August 7, 1985) There was honest mistake of fact on his part.
(US v. Ah Chong, 15 Phil. 488)
Note:
The existence of a wrongful
intent to injure third
persons is not necessary when the falsified document is
a public document. Well buttressed is the rule in this jurisdiction that in falsification of public documents whether committed by a public official or a private person, it is not necessary
that there is intent to injure a third person. The consideration
in falsification is violation of the public faith and the destruction of the truth as therein solemnly proclaimed. (Siquian v.
People, 171 SCRA
223)
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
139
Chapter One — Forgeries
FIFTH MODE:
e.
Altering true dates.
There is falsification if the date is material to the document. This means that the date must be essential to the document such that the integrity of the document is affected.
Example:
On March 21, 2010 SPO1 Bautista arrested and detained
Gilbong without a warrant because the latter inflicted physical
injuries on Pudol in his presence. Under Art. 125 of the Revised
Penal Code, SPO1
Bautista should file the case in court within
12 hours from the time of the warrantless arrest. He put in the
blotter the date March
21, 2010 as the date of arrest. For one
reason or another SPO1 Bautista failed to file the case within
the prescribed period. It was only on March 24, 2010 that he
realized that he detained Gilbong beyond the time allowed by
law. To avert a criminal prosecution for Arbitrary Detention,
SPO1 Bautista altered the date. He changed the date March
21, 2010 to March 23, 2010. SPO1 Bautista is liable for fal-
sification. Date is material to the document. He altered
the date and that changes the substance
‘document was made to state a falsity.
thereof.
The
Note:
But an honest alteration in order to make a document
speak for the truth is not falsification. The essence of falsification is to make a document speak a falsity. Thus if the alteration is made to rectify and make the document speak the truth
falsification is not committed.
SIXTH MODE:
f.
Intercalation or substitution in a genuine document which changes its meaning.
Elements:
1.
2.
3.
false.
There is a genuine document;
Anintercalation or substitution is made therein;
The
change
made
the
document
speak
something
CRIMINAL LAW
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140
Alteration is an act of making a change or changes in a
document
making the document speak for something the par-
ties did not intend to speak.
Example:
Rexor is married.
Despite his marital status, he fell in
love with Kristel. One day, Kristel commented that Rexor looks
married.
To erase
the doubt
of Kristel,
Rexor
erased
the en-
try “married” is his residence certificate and in lieu thereof,
he wrote “single.” Rexor is liable for falsification. He made an
intercalation on a genuine document. He made the document
speak something false.
SEVENTH
MODE:
g.1. Issuing in an authenticated form a document
purporting to be a copy of an original document when
no such document exists.
Example:
Raymundo is a clerk at the office of the Civil Registry of
Sta. Maria, Pangasinan. He issued a birth certificate of Policarpio Manzano attesting that it is a copy of an original on file
with their office when in fact and in truth no such original exists. Raymundo is liable for Falsification. He issued in an
authenticated form a document purporting to be a copy
of an original document when no such document exists.
g.2. Including in a document a statement contrary
to. or different from that of the genuine original.
Example:
In the same problem stated above, Raymundo issued a
birth certificate of Policarpio Manzano. However, he stated in
the document that Policarpio Manzano is “legitimate” when
in fact the records say that he is “illegitimate.” Raymundo
is liable
for falsification.
a statement different
genuine document.
from
He
issued
a document
or contrary
to that
with
of the
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
Chapter One — Forgeries
141
EIGHTH MODE:
h.
Intercalating any instrument or note relative
to the issuance thereof in a protocol, registry or official
book.
Example:
Rosenda is an employee of the post office. To accommodate a lawyer friend, she changed the date in the registry of
mails so that it would appear that the lawyer mailed a pleading within the reglementary period. Rosenda is liable for
Falsification. She made an intercalation in the registry
of mails.
Notes:
In falsification of public document, damage or intent
to cause damage to another party is not necessary. It is not
an element. What is violated is public faith.
In contrast, in falsification of private document, what
is punished is damage to a third party or at least intent to
cause damage.
'ART. 172. Falsification by private individuals and use
of falsified documents. — The penalty of prision correccional
in its medium and maximum periods and a fine of not more
than 5,000 pesos shall be imposed upon:
1.
Any private individual who shall commit any of the
falsification enumerated in the next preceding article in any
public or official documents or letter or exchange or any other kind of commercial documents; and
2.
Any person who, to the damage of a third party, or
with the intent to cause such damage, shall in any private
document commit any acts of falsification enumerated in the
next preceding article.
Any person who shall knowingly introduce in evidence
in any judicial proceeding or to the damage of another or
who, with the intent to cause such damage, shall use of the
false documents embraced in the next preceding article, or
in any of the foregoing subdivisions of this article, shall be
punished by the penalty next lower in degree.
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Acts punishable:
1.
2.
Falsification of public, official, or commercial
mitted by a private person;
Falsification of a private document
document com-
committed by a private
person;
3.
Use of falsified document.
Elements of falsification of public, official or commercial
ment by a private person:
1.
2.
3.
docu-
The offender is a private individual;
He committed any act of falsification under Art. 171;
The falsification is committed in a public, official, or commercial document or letter of exchange.
Illustration:
X found a lost check in the amount of Php50,000 payable
to Y. It is a complete but undelivered instrument. X counterfeited the signature of Y and presented the check with the
drawee bank. X is liable for falsification of a commercial
document by a private person.
Elements of falsification of private documents by a private person:
1.
The offender commits any of the acts of falsification except in
Art. 171(7) xxx Issuing in an authenticated form a document
purporting to be a copy of an original document when no such
original exists or including in such a copy a statement contrary
to or different from, that of the genuine original;
Falsification was committed in any private document;
There is damage sustained by another person or at least intent
to cause damage.
Damage or at least intent to cause damage is an essential element
of falsification of private document
Problems:
1.
Aisindebted to B in the amount of Php100,000.00.
One day, A prepared a written receipt purportedly signed by B
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
143
Chapter One — Forgeries
making it appear that A had paid in full his loan from B. Is A
liable for falsification of private document?
Answer:
No, A is not liable for falsification of private document. Mere falsification of a private document is not a crime.
There must be damage or at least intent to cause damage on
the part of the offender. In the instant case, B the creditor did
not sustain damage. There is also no intent to cause damage
that can be inferred from the mere act of falsification.
2.
In the same problem, suppose after the falsification B went to A and tried to collect from A. In the process, A
claimed that he had already paid his indebtedness in full and
showed the receipt that he falsified. Is A liable for falsification
of private document?
Answer:
Yes, A is liable for falsification of private document.
His act of claiming to B that he had paid in full his indebtedness and his showing
the receipt that he falsified more
than
indicate intent to cause damage on his part.
Reasons why it is important to know whether a document is public
or private
Ly
To determine whether the crime of falsification is committed or
not;
To determine whether the falsification may be complexed with
other crimes.
Mere falsification of a public, official, or commercial document constitutes a crime. Damage or intent to cause damage
is not necessary.
Mere falsification of a private document is not a crime.
Damage or at least intent to cause damage is an essential element.
Thus, it is necessary to determine what kind of document
is falsified.
When the document
or commercial document,
falsified is a public, official,
the falsification may be com-
CRIMINAL LAW
BOOK 11 OF THE REVISED PENAL CODE
144
plexed with the felony of estafa or some other felonies.
Thus, there can be estafa thru falsification of commercial document.
Illustration:
X found a check payable to Y. Thereafter, X went to the
drawee bank and affixed a signature purporting to be that of
Y. He was able to encash the check. The bank and Y similarly
incurred damage. The bank or Y may file a complex crime
of Estafa thru falsification of a commercial
document.
(Delito Complejo under Art. 48 of the RPC)
If the document falsified were a private document there
can be no complex crime of Estafa thru Falsification of
Private
Document.
In
estafa,
damage
is an
essential
ele-
ment. Damage is also an essential element of falsification of
private document. Therefore, damage is an essential element
of both estafa and falsification of private document. We cannot
use the same element of damage to prove estafa and at the
same time falsification of private document. We cannot use the
same element of a crime twice.
Use of falsified document
In a judicial proceeding:
Elements:
1.
Offender knows that the document is falsified by another per-
son;
The false document is covered by Art. 171 or Art. 172;
He introduced said document in evidence in any judicial proceeding.
Illustration:
Mike is an accused in a criminal case for carnapping.
Ronald caused the preparation of a falsified deed of sale of the
subject car purportedly by the complainant in favor of Mike to
prove that Mike has legal possession of the car. Mike knew of
the falsity of the deed of sale. Mike introduced the document
as one of his evidence during the hearing of the criminal case.
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
Chapter One — Forgeries
145
Mike is liable for Use of falsified document. He knew
that the document was falsified and he nevertheless introduced it as evidence in a judicial proceeding.
In any other transaction:
Illustration:
Romy executed a deed of sale of his house and lot in favor of Zernan. They agreed that the deed of sale will not be
recorded in the Registry of Deeds. Bartolo, a friend of Zernan
prepared a letter purportedly signed by Romy authorizing Zernan to cause the registration of the deed of sale and the transfer of ownership of the house and lot in favor of Zernan. This
fact was known to Zernan. As a result, the title of Romy to
the house and lot was cancelled and a new one in the name of
Zernan was issued. Bartolo and Zernan committed use of
falsified document in other transaction.
Note:
The crime of use of falsified document is committed if another person uses it knowing that it is falsified. If the person
made the falsification uses it to the damage of another person,
he cannot be charged with 2 crimes of falsification and use of
falsified document. He will be liable only for falsification. If the
offender is charged with falsification and was acquitted it is
submitted that he can be prosecuted for use of falsified documents. The two crimes have different elements. Double jeopardy cannot be invoked.
A person in possession of a falsified document and
who made use of the same is presumed to be the falsifier.
ART. 173. Falsification of wireless, cable, telegraph and
telephone messages, and use of said falsified messages.
—
The penalty of prision correccional in its medium and maximum periods shall be imposed upon any officer or employee
of the Government or of any private corporation or concern
engaged in the service of sending or receiving wireless, cable or telephone messages who utters a fictitious wireless,
telegraph or telephone message of any system or falsifies the
same.
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Any person who shall use such falsified dispatch to the
prejudice of a third party or with the intent to cause such
prejudice, shall suffer the penalty next lower in degree.
Persons liable:
1.
Officer or employee of the government engaged in the service of
sending or receiving wireless, cable or telephone message.
2.
Employee of a private corporation engaged in the service of
sending or receiving wireless, cable or telephone message.
Acts punishable:
1.
Uttering fictitious wireless, telegraph or telephone message.
Elements:
a.
The offender is any officer of the government or of
any private corporation engaged in the service of sending or
receiving wireless cable, or telephone messages;
b.
That he utters a fictitious wireless telegram or telephone message of any system.
Mere utterance of fictitious, telegraph or telephone
message is a felony. Damage is not an element.
Illustrations:
a.
X is an employee of PT&T Corporation. He sent to
several persons a telegraphic message that Martial Law has
been declared. The telegraphic message is fictitious. He is liable for Uttering Fictitious Telegraphic Message.
b.
Tirso is an employee of RCPI, a private company
engaged in the telegram and telephone business. Tirso sent a
telegram to Anton, an acquaintance to come to Baguio City because a high paying job is waiting for him. Anton came all the
way from Naga City where he is based only to find out that the
telegraphic message was a hoax. Tirso is liable for Falsification
of Telegraphic Message.
2.
Use of falsified messages.
Elements:
a.
Offender
knows
that
wireless,
cable,
telegraph,
or tele-
phone messages were falsified by an officer or employee
of the government or an officer or employee of a private
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
147
Chapter One — Forgeries
corporation engaged in the service of serving or receiving
wireless, cable or telephone message;
b.
He used the falsified document;
c.
The use resulted to the prejudice of a third person or at
least there was intent to cause such prejudice.
Section Five — Falsification of medical certificates, certificates of merit on services and the like.
ART. 174. False
merit or service, etc.
maximum period to
riod and a fine not
medical certificates, false certificates of
— The penalties of arresto mayor in its
prision correccional in its minimum peto exceed 1,000 pesos shall be imposed
upon:
1.
Any physician or surgeon who, in connection with
the practice of his profession, shall issue a false certificate;
and
2.
Any public officer who shall issue a false certificate
of merit of service, good conduct
or similar circumstances.
The penalty of arresto mayor shall be imposed upon any
private person who shall falsify a certificate falling within
the classes mentioned in the preceding subdivisions.
Persons liable:
1.
2.
Physician or surgeon who, in connection with the practice of
his profession, shall issue a false certificate.
Public officer who shall issue a false certificate of merit of service, good conduct or similar circumstances.
Illustrations:
1.
Xis an employee of ABC Company. X got sick in the
course of his employment. He applied for the award of disability benefits. X went to Dr. Luzon, his good friend, and convinced
the latter to issue a medical certificate that his illness is work
connected and permanent. Dr. Luzon issued the said medical
certificate. The truth of the matter is that X's illness is not
work
related
and
was caused
by his chronic
smoking
habits.
Dr. Luzon is liable for false medical certificate by a physi-
cian.
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2.
Reenan applied for work as waiter at Hilton Hotel,
Los Angeles branch. Inasmuch as the hotel wanted to hire preferably waiters with 5 years experience, he sought the help of
David,
the hotel manager
of Diamond
Hotel
in Roxas
Boule-
vard. He requested David to issue a certificate that he had work
as waiter in Diamond Hotel for the last 7 years. David issued
the certificate although Reenan did not work in any manner at
the hotel at any time. David is liable for False Certificate of
Service.
ART. 175. Using false certificates. — The penalty of arresto menor shall be imposed upon any one who shall knowingly use any of the false certificates mentioned in the next
preceding article.
Elements:
1.
There must be a false certificate as defined in Art. 174;
2.
Knowledge that the certificates is false;
3.
Offender uses the same.
Illustration:
Jonas procured a false medical certificate from a physician friend. He used the false medical certificate to justify his
absence from work. If the medical certificate is found to be
false, the doctor who issued it is liable for False Medical Cer-
tificate. On the other hand, Jonas is liable for Use of False
Medical Certificate.
Section Six — Manufacturing, importing, and possession
of instruments or implements intended for the Commission of
Falsification
ART. 176. Manufacturing and possession of instruments
or implements for falsification. — The penalty of prision correccional in its medium and maximum periods and a fine
not to exceed 10,000 pesos shall be imposed upon any person
who shall make or introduce into the Philippine Islands any
stamps, dies, marks, or other instruments or implements in-
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
Chapter Two — Other Falsities
149
tended to be used in the commission of the offenses of counterfeiting or falsification mentioned in the preceding sections of this chapter.
Any person who, with the intention of using them, shall
have in his possession any of the instruments or implements
mentioned in the preceding paragraph, shall suffer the penalty next lower in degree than that provided therein.
Acts punishable:
1.
Making or introducing into the Philippines any stamps, dies,
marks or other instruments or implements for counterfeiting
or falsification.
2.
Possession with intent of using the said instruments or implements for counterfeiting or falsification made in or introduced
in the Philippines.
Mere possession of instruments or implements for counterfeiting or falsification is not a crime. The possession must be
coupled with the intent of using them.
— 000—
CHAPTER TWO
OTHER FALSITIES
Section One —
Usurpation of authority, rank, title and
improper use of names, uniforms, and insignia
ART. 177. Usurpation of authority or official functions.
— Any person who shall knowingly and falsely represent
himself to be an officer, agent or representative of any department or agency of the Philippine Government or of any
foreign government, or who, under pretense of official position, shall perform any act pertaining to any person in authority or public officer of the Philippine Government or of
any foreign government, or agency thereof, without being
lawfully entitled to do so, shall suffer the penalty of prision correccional in its minimum and medium periods. (As
amended by Rep. Act No. 379, approved June 14, 1949.) (Restored by EO No. 187)
Acts punishable:
1.
USURPATION OF AUTHORITY
Elements:
The offender knowingly and falsely represents himself;
b.
To be an officer, agent or representative of any department
or agency
of the Philippine
government
or of any
foreign government.
Note:
In usurpation of authority, the mere act of knowingly
and falsely representing oneself to be an officer is sufficient. It
is not necessary that he performs an act pertaining to public
officers.
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
Chapter Two — Other Falsities
151
Illustration:
C was on his way home from his work. While he was walking along Session Road, Baguio City, A and B accosted him and
introduced themselves as NBI agents. A and B are taxi drivers.
A and B are liable for Usurpation of Authority.
2.
USURPATION OF OFFICIAL FUNCTIONS
Elements:
The offender performs an act;
The act pertains to any person in authority or public officer of the Philippine government or any foreign country
or agency thereof;
c.
Under pretense of official position and without being lawfully entitled to do so.
Note:
In usurpation of official functions, it is essential that
the offender should have performed an act pertaining to a
person in authority or public officer. But it is necessary that he
represents himself to be an officer, agent or representative of
any department or agency of the government. There must be
false pretense of official position.
Illustration:
X, a civilian, noticed a heavy traffic in Claro M. Recto
Road. To ease the traffic, he started blowing his whistle and
directed the traffic flow. A taxi driver ignored his stop sign
and continued to drive forward. X approached the taxi driver
and admonished him for not obeying a lawful authority. X confiscated the driver’s license of the taxi driver. X is liable for
Usurpation of Official Functions. He performed an act pertaining to a policeman under false pretense of official position.
ART. 178. Using fictitious and concealing true name. —
The penalty of arresto mayor and a fine not to exceed 500
pesos shall be imposed upon any person who shall publicly
use, a fictitious name for the purpose of concealing a crime,
evading the execution of a judgment or causing damage.
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
152
Any person who conceals his true name and other personal circumstances shall be punished by arresto menor or a
fine not to exceed 200 pesos. (Restored by EO No. 187)
Fictitious name
— any other name which a person publicly
uses without authority of law.
Acts punishable:
1.
USING FICTITIOUS NAME
Elements:
1.
Offender uses a name other than his real name;
2.
The fictitious name was used publicly;
3.
The purpose is to:
a.
Conceal a crime;
b.
Evade a judgment;
c¢.
Cause damage to public interest.
Illustrations:
1.
Menandro and Hipolito had a drinking spree inside
a bar in Magsaysay Avenue, Olongapo City. They were seen by
their common friends. At 10:00 o’clock in the evening they left
the bar together. On their way home they had a heated argument. In the course thereof, Menandro repeatedly hit Hipolito
with a stone resulting to the latter's death. Menandro hid the
cadaver of Hipolito in a grassy portion of a nearby lot. To conceal the crime, Menandro went to Davao City on the following
day and publicly assumed a new name Alejandro. Menandro
is liable for Using Fictitious Name. He publicly used a fictitious name for the purpose of concealing a crime.
2.
Cipriano was charged with the crime of Robbery in
Manila.
During the promulgation of the decision he did not
appear. He absconded. As a consequence, the court promulgated the decision of conviction in absentia and ordered that
the judgment be recorded in the criminal docket of the court.
The court also ordered the confiscation of his bond and a war-
rant for his arrest was issued. To evade the judgment, Cipriano
went to Cebu City and assumed and publicly used a fictitious
name. Cipriano is liable for Using Fictitious Name. He publicly used a fictitious name to avoid a judgment.
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
153
Chapter Two — Other Falsities
Note:
Evasion of judgment also applies in a civil case. Thus, ifa
defendant lost in a civil case and to avoid the execution of the
judgment he publicly uses a fictitious name, the crime is also
committed.
3.
Marvin Malvar applied for Philippine passport and
visa using the name Anwar Jamilaya. Marvin Malvar belongs
to a group of terrorists with the aim of sowing terror in the
Philippines. He is liable for Using Fictitious Name. He publicly used a fictitious name to cause damage to public interest.
Problem:
Tristan stole the jewelries and money of his employer. He
was charged with Qualified Theft. A warrant for his arrest was
issued. To prevent his arrest, he publicly used another name
other than his real name. He was arrested. He was charged
with using fictitious
what crime if any?
name.
Will the charge
prosper?
If not.
Answer:
No, the charge will not prosper. His purpose was to pre-
‘vent his arrest. This is not one of the purposes contemplated by
law.
However, Tristan is liable for Illegal Use of Alias in Vio-
lation of CA No. 142 which prohibits the use of alias as may
have been authorized by a competent court.
COMMONWEALTH
THE
USE OF ALIASES)
ACT
NO.
142
(REGULATING
provides among others:
No person shall use any name different from the one with
which he was registered at birth in the office of the local civil
registry or with which he was registered in the Bureau of Immigration upon entry or such substitute name as may have
been authorized by a competent court.
Except as a pseudonym for literary, cinema, television,
radio or other entertainment and in athletic events purposes,
no person shall use a name different from one with which he
was christened or by which he has been known since his childhood, or such substitute name as may have been authorized by
a competent court. (Sec. 1)
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BOOK II OF THE REVISED PENAL CODE
154
Any person desiring to use an alias or aliases shall apply
for authority thereof, in proceedings like those legally provided
to obtain judicial authority for a change of name. Judicial authorities for the use of aliases shall be recorded in the proper
register. (Sec. 2)
No person having obtained judicial authority to use an
alias or aliases shall sign or execute any document without
stating his real name and all aliases which he may have been
authorized to use. (Sec. 3)
CONCEALING
TRUE NAME
Elements:
1.
The offender conceals his true name
circumstances;
2.
The purpose is to conceal his identity.
and other personal
Illustration:
Romano de la Cruz was arrested for violation of the curfew hour.
He
gave his name
as Levi Castral,
18 years of age,
single and a resident of No. 5 Camilla Subdivision, Bacoor,
Cavite. Everything that he stated is false because aside from
his false name, he is 24 years old, married and a resident of
Fatima Street, UP Village, Quezon City. He is liable for Concealing true name because he concealed his true name and
other personal circumstances to conceal his identity.
Problem:
The NBI agents raided a sauna bath that employs minor
girls. Found inside one cubicle was Jonathan Siminiano, 34
vears old, single, seaman,
and
a resident of Sta. Maria,
Pan-
gasinan. Instead of giving his true name, Jonathan gave the
name Jordan Hermano
Castillo, the name of his cousin. He
correctly gave his other personal circumstances. Is he liable for
Concealing True Name?
Answer:
No, Jonathan Siminiano is not liable for Concealing
True Name. In the crime of concealing true name, it is necessary that not only the true name is concealed but also all
other personal circumstances. In the instant case, only the
name of Jonathan was concealed.
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
Chapter Two — Other Falsities
Distinctions
between
using
fictitious name
and
concealing
155
true
name
1.
In using fictitious name, public use is an element; in concealing
true name and other personal circumstances, this element is
not necessary;
2.
The purpose in using fictitious name is any of the following: 1.)
to conceal a crime; 2.) to evade judgment; and 3.) to cause damage to public interest; in concealing true name. the purpose is
only to conceal identity.
ART. 179. Illegal use of uniforms or insignia. — The penalty of arresto mayor shall be imposed upon any person who
shall publicly and improperly make use of insignia, uniforms
or dress pertaining to an office not held by such person or to
a class of persons
of which
he is not a member.
(Restored by
EO No. 187)
Elements:
1.
The offender makes use of insignia, uniforms or dress;
2.
The insignia, uniforms or dress pertains to an office not held by
such person or a class of persons of which he is not a member;
3.
The said insignia, uniform or dress is used publicly and improperly.
The uniform contemplated by law carries authority which the
public looks up to and respects. The uniform symbolizes authority.
Examples: Philippine Marines, Scout Rangers, Philippine Navy,
Philippine Air force. The offender has no right whatsoever to use
the uniform or insignia.
Wearing the uniform of an imaginary office is not punishable.
Example: Roger Padilla uses a uniform of a certain World Air Force
with the rank of Supreme Commander. He is not liable for Illegal
use of uniform. The uniform pertains to a pseudo or fictitious orga-
nization.
Why it is punishable?
The use of uniforms or insignia pertaining to an office may deceive the public to the extent that public interest will be prejudiced.
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BOOK II OF THE REVISED PENAL CODE
Problems:
1.
Laarni, a guest relations officer working at Classmates Club, Quezon City, uses the uniform of Hotel and Restaurant Management students of the University of Baguio to
entice customers. Is Laarni liable for Tllegal use of uniform?
Answer:
No, Laarni is not liable. She is not wearing a uniform
which pertains to a public officer which symbolizes authority.
2.
Gavino Madlang-awa used the military uniform of a
police officer. He introduced himself as Police Superintendent
to the public. What crime/crimes did he commit?
Answer:
He committed three crimes.
He committed Using Fictitious Name because he publicly used a fictitious name for the purpose of causing damage
to public interest.
He
committed
Usurpation
of Authority
because
he
knowingly and falsely represented himself to be an officer of
the police force.
He also committed Illegal Use of Uniform because he
publicly and improperly used a uniform pertaining to an office
not held by him.
He is liable for the three crimes because they have different elements. He cannot invoke double jeopardy.
Section Two — False Testimony
ART. 180. False testimony against a defendant. — Any
person who shall give false testimony against the defendant
in any criminal case shall suffer:
1.
The penalty or reclusion temporal, if the defendant
in said case shall have been sentenced to death;
2.
The penalty of prision mayor, if the defendant shall
have been sentenced to reclusion temporal or perpetua;
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
Chapter Two - Other Falsities
3.
The
penalty of prision
dant shall have
been sentenced
correccional,
157
if the defen-
to any other afflictive pen-
alty; and
4.
The penalty of arresto mayor, if the defendant shall
have been sentenced to a correctional penalty or a fine, or
shall have been acquitted.
In cases provided in subdivisions 3 and 4 of this Article
the offender shall further suffer a fine not to exceed 1,000
pesos.
Criminal cases are won or lost for several reasons. Some say
the evidence is overwhelming or weak. Others say the judge is bi-
ased or did not appreciate the evidence so well. Others say his/her
lawyer is not good. And some say the witnesses testified falsely.
Kinds of false testimony:
1.
False testimony in a criminal case
(a)
False testimony against the accused (Art. 180)
(b)
False testimony in favor of the accused (Art. 181)
False testimony in civil cases (Art. 182)
3.
False testimony in other cases and perjury in solemn affirma-
tion (Art. 183)
Elements of false testimony against an accused in a criminal case:
1.
There is a criminal proceeding;
2.
The offender testifies falsely under oath against the accused;
3.
The offender who gives false testimony knows that it is false;
4.
Defendant against whom the false testimony is given is either
acquitted or convicted in a final judgment.
How is the crime committed?
The crime is committed
by testifying falsely against the ac-
cused.
Tt is committed by a person who is under oath and who shall
testify in a criminal case by denying the truth or perverting the
truth. The witness who testified falsely against the accused is liable even if his testimony was not considered by the court. Under
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BOOK 11 OF THE REVISED PENAL CODE
paragraph 4 of Art. 180, a penalty shall still be imposed even if the
defendant (accused) is acquitted.
Penalty to be imposed:
The penalty to be imposed depends upon the sentence imposed
to the accused.
The crime of false testimony is committed whether the accused
is convicted or acquitted.
False testimony is not punishable however if the accused is
charged with a light felony. A light felony is an infraction of the
law for the commission of which the penalty of arresto menor or a
fine not exceeding 200 pesos or both is provided. (Art. 9, par. 3)
Who may commit the crime?
False testimony can be committed by the complainant or his/
her witnesses.
Illustrations:
1.
Susan filed a complaint for Rape against Johnny before a Regional Trial Court in Baguio City. During the trial,
Bruno testified that he saw Johnny commit the crime because
he was passing by the crime scene when the accused ravished
the victim. Johnny was found guilty by the court and was sentenced to suffer reclusion perpetua. Later on, it was proven
that Bruno could not have seen the commission of the crime
because he was in Manila working. His daily time record was
taken and it duly proved that indeed he was not in Baguio City
at the time the crime was committed. Bruno is liable for False
Testimony Against the Accused.
2.
Daniel and three others were charged with the crime
of Murder. During the presentation of evidence for the prosecution, Gregory was presented as the star witness. During his
testimony, Gregory testified that he saw the three accused beat
the deceased by hitting the back of his head with a hammer,
butt of a gun and a crowbar. When the skeletal remainsof the
alleged deceased were presented in court, it was exhibited that
the skull was intact and had no telltale sign of violence whatsoever. The court acquitted the three accused by holding that
the corpus delicti had not been proven because taking into account the testimony of the star witness, the skeletal remains
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
Chapter Two — Other Falsities
159
that were exhumed could not have been that of the deceased
because there was nothing to show that force or violence was
ever applied at the back of the skull. Gregory is liable for False
Testimony Against the Accused.
ART. 181. False testimony favorable to the defendant.
— Any person who shall give false testimony in favor of the
defendant in a criminal case, shall suffer the penalties of arresto mayor in its maximum period to prision correccional
in its minimum period and a fine not to exceed 1,000 pesos,
if the prosecution is for a felony punishable by an afflictive
penalty, and the penalty of arresto mayor in any other case.
How is the crime committed?
The crime is committed when a witness testifies falsely in fa-
vor of the accused in a criminal case.
Elements:
1.
There is a criminal case;
2.
A person gives false testimony;
3.
In favor of the defendant (accused).
Illustration:
Rexor is charged with Homicide. During the presentation
of evidence for the accused, Elmar was presented as a defense
witness. Elmar testified that Rexor is innocent of the crime
charged. Elmar testified that it was another person who killed
the victim. During the intense cross examination, Elmar broke
down and admitted that he did not actually see who killed the
victim. He admitted the he lied when he testified that the victim was killed by another person. Elmar is liable for False
Testimony in Favor of the Accused.
Penalty imposable
The penalty imposable to the false witness depends upon the
classification of the felony and the penalty imposable. If the prosecution is for a felony punishable by an afflictive penalty the penalty
imposable is arresto mayor in its maximum period to prision correccional in its minimum period and a fine not exceeding 1,000 pesos.
In any other case, the penalty imposable is arresto mayor.
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The afflictive penalties are the following:
1.
Reclusion perpetua
2.
Reclusion temporal
3.
Perpetual or temporary absolute disqualification
4.
Perpetual or temporary special disqualification
5.
Prision mayor (see Art. 25)
ART. 182. False testimony in civil cases. — Any person
found guilty of false testimony in a civil case shall suffer the
penalty of prision correccional in its minimum period and a
fine not to exceed 6,000 pesos, if the amount in controversy
shall exceed 5,000 pesos, and the penalty of arresto mayor in
its maximum period to prision correccional in its minimum
period and a fine not to exceed 1,000 pesos, if the amount in
controversy shall not exceed said amount or cannot be estimated.
Elements:
1.
That a testimony is given in a civil case;
The testimony relates to the issues presented in said case;
S
The offender knows that the testimony is false;
AN
The testimony is false;
"
Testimony is malicious and given with an intent to affect the
issues presented in said case.
Notes:
This
not apply
nal offense
any of the
article applies only to ordinary civil cases. It does
to special civil actions. The article makes crimigiving of false testimony in civil cases for or against
litigants.
The penalty imposable depends upon the amount involved
in the civil case.
ART. 183. False testimony in other cases and perjury in
solemn affirmation. — The penalty of arresto mayor in its
maximum period to prision correccional in its minimum
period shall be imposed upon any person who, knowingly
making untruthful statements and not being included in the
provisions of the next preceding articles, shall testify under
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
Chapter Two — Other Falsities
161
oath, to make an affidavit, upon any material matter before a
competent person authorized to administer an oath in cases
in which the law so requires.
Any person who, in case of a solemn affirmation made in
lieu of an oath, shall commit any of the falsehoods mentioned
in this and the three preceding articles of this section, shall
suffer the respective penalties provided therein.
Acts punishable:
1.
By falsely testifying under oath;
2.
By making a false affidavit.
Falsely testifying under oath in other cases:
False testimony in other cases applies to cases not covered by
Articles 180, 181, 182 and 183. It applies to cases like special proceedings and special civil actions.
PERJURY — is a willful and deliberate assertion of falsehood
in writing and under oath made upon a material matter before a
competent officer authorized to administer oaths.
Elements of perjury:
1.
Offender makes a statement under oath or executes an affidavit upon a material matter;
2.
The statement or affidavit is made before a competent officer,
authorized to receive and administer oaths;
3.
Offender makes a willful and deliberate assertion of a falsehood in the statement of affidavit;
4.
The sworn statement or affidavit containing the falsity is required by law.
MATERIAL MATTER
means the main fact which is the
subject of inquiry or any circumstance which tends to prove the fact
or any circumstance which tends to corroborate or strengthen the
testimony relative to the subject of the inquiry or which legitimately
affects the credit of any witness who testified. (US v. Estrana, 16
Phil. 520)
False affidavit or sworn statement is the basis of Perjury.
CRIMINAL LAW
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162
Illustrations:
1.
X executed an affidavit subscribed and sworn to
before a prosecutor. In the said affidavit, he stated that Y
carnapped his vehicle. Y submitted his counter affidavit and
produced a deed of conditicnal sale executed by X in his favor
wherein X stated among others that he is turning over his car
to Y. The statement of X is therefore a deliberate falsehood. He
is liable for Perjury.
2.
Xfilled up an application for a public office. He stat-
ed therein that he had never been charged or prosecuted for
violation of any law before any judicial or quasi judicial bodies.
The application was signed by him before a notary public. The
truth of the matter is that X had been convicted by a municipal
trial court of theft and physical injuries. X is liable for Perjury.
He made a willful and deliberate assertion of falsehood upon a
material matter under oath and in writing and made before a
competent officer.
Problem:
Russell executed an affidavit before a government prosecutor wherein he stated that he was present when the crime of
Murder was committed by the accused Redentor. He stated in
the affidavit that he saw the actual shooting of the victim. During an extensive cross examination, Russell found himself in a
quagmire of contradictions. At the end, he admitted that he did
not actually see the accused commit the crime and that he was
only told that the accused did it. He admitted that what he said
in his affidavit was false. What crime did Redentor commit?
Answer:
Redentor committed Perjury. He stated falsehood upon a
material matter under oath and in writing made before a competent officer authorized to administer oaths.
ART. 184. Offering false testimony in evidence. — Any
person who shall knowingly offer in evidence a false witness
or testimony in any judicial or official proceeding, shall be
punished as guilty of false testimony and shall suffer the respective penalties provided in this section.
Elements:
j 5
Offender offers in evidence a false witness or testimony;
2.
He knows that the witness or the testimony was false;
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
Chapter Two — Other Falsities
3.
163
The offer is made in any judicial or office proceeding.
When a person knowingly offers in evidence a false witness,
the crime committed is False Testimony. This presupposes that
the litigation had been terminated with finality, whether it be criminal or civil case and whoever party prevailed. This is so because
there is still an opportunity for the witness to correct himself if the
case is still undergoing trial.
What is Subornation of Perjury?
It is committed by a person who deliberately procures another
to testify falsely and the person procured actually testifies as told.
The procurer is called the suborner and the procured is called
the suborned.
Note:
There is no such crime as SUBORNATION
OF PER-
JURY.
Illustration:
Eric and Donna were charged by Romeo, the husband of
Donna with Concubinage. Romeo procured Manuel to testify in
court that he had seen Eric and Donna cohabiting as husband
and wife at No. 34 M. Roxas Road, Trancoville, Baguio City.
Manuel testified as procured. In the course of his testimony
though, it was found out that Manuel was not telling the truth.
It was found out upon his own admission that he was procured
by Manuel to testify the way he did. The court acquitted Eric
and Donna for gross insufficiency of evidence. What crime did
Romeo and Manuel commit if any? Why?
Answer:
There is no such crime as Subornation of Perjury. It is
not a felony under the Revised Penal Code. The crime is false
testimony. The suborner Romeo is liable as principal by in-
ducement and the suborned Manuel is liable as principal by
indispensable cooperation.
Mere inconsistencies or contradictions on material
points in a testimony or affidavit would not be enough
to convict an accused for false testimony or perjury. It is
incumbent upon the prosecution to prove the statement
is false by other evidence.
CHAPTER THREE
FRAUDS
Section One — Machinations, Monopolies,
and Combinations
ART. 185. Machinations in public auctions. — Any person who shall solicit any gift or a promise as a consideration
for restraining from taking part in any public auction, and
any person who shall attempt to cause bidders to stay away
from an auction by threats, gifts, promises, or any other artifice, with intent to cause the reduction of the price of the
thing auctioned, shall suffer the penalty of prision correccional in its minimum period and a fine ranging from 10 to 50
per centum of the value of the thing auctioned.
Two acts punishable:
1.
Soliciting any gift or promise as a consideration for restraining
from taking part in any public auction;
2.
Attempting to cause bidders to stay away from an auction by
threats, gifts, promises or any other artifice.
SOLICITING ANY GIFT OR PROMISE AS A CONSIDERATION FOR RESTRAINING FROM TAKING PART IN
ANY PUBLIC AUCTION
Elements:
1.
There is a public auction;
2.
The offender solicits any gift or promise from any of the bidders;
3.
The gift or promise solicited is the consideration for this refraining from taking part in the public auction;
4.
The purpose of the offender is to reduce the price.
164
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
Chapter Three — Frauds
165
Public auction
When one obtains a loan from another person or from lending
institution or any entity engaged for that purpose, more often than
not, the borrower is required to give collateral to secure the payment of the loan extended. If the borrower gives a personal property
as collateral or security to the payment of the loan, he executes a
Chattel Mortgage over his property. If he gives his real property
as collateral or security, he executes a Real Estate Mortgage over
his real property. When the loan becomes due and demandable and
the borrower fails to pay his loan, the creditor has the option to
foreclose the Chattel Mortgage or the Real Estate Mortgage as the
case may be. The creditor may resort to a notarial foreclosure if he
so desires. In any event, in a public auction the sheriff will take over
the property mortgaged and shall sell it at public auction to satisfy
the money claim.
Purpose of auction
To obtain the highest price of the thing auctioned.
Purpose in Machination of public auctions
' To lower the price of the thing auctioned.
Illustration:
Anton obtained a loan from a Rural Bank. He constituted
a Real Estate Mortgage on his lot. He failed to pay his loan
upon maturity. The sheriff scheduled his real property for public auction. Ricardo attended the auction. Two hours before the
auction, Ricardo confirmed that Florencio and two others who
were at the auction site were the prospective bidders. He approached
Florencio
and
informed
him
that he
(Ricardo)
will
participate in the bidding. Ricardo told Florencio that he (Ricardo) will not participate in the bidding and thus the price of
the lot auctioned will be reduced if Florencio promises to give
him a monetary reward. Ricardo is liable for Machination in
public auction. He solicited a promise from Florencio as
consideration for his refraining from taking part in the public
auction for the purpose of reducing the price of the lot auc-
tioned.
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ATTEMPTING TO CAUSE BIDDERS TO STAY AWAY
FROM AN AUCTION BY THREATS, GIFTS, PROMISES OR
ANY OTHER ARTIFICE.
Illustrations:
1.
Edgar went to the City Hall where a public auction
was being held. He saw that a car was offered for public auction. He wanted to buy the car during the auction. He noticed
however that there were four other bidders. He realized that
if he were to emerge as the highest bidder he should cause the
prospective bidders to stay away from the public auction so
he could reduce the price of the car being auctioned. He approached two bidders and threatened them with bodily harm if
they will not stay away from the auction site. Edgar is liable for
Machination in Public Auction. He caused bidders to stay
away from the public auction by means of threats for the purpose of reducing the price of the thing auctioned. Aside from
this, he may be charged with Threats by the bidders whom he
threatened with bodily harm.
2.
In the same problem, Edgar approached Hilarion,
another bidder. He told Hilarion that the date of the bidding
was reset to May 2010. His purpose of telling that was to cause
Hilarion to leave the auction site so that the price of the thing
auctioned will be
public auction.
public auction by
of the price of the
reduced. Edgar is liable for Machination in
He caused a bidder to stay away from the
means of an artifice to cause the reduction
thing auctioned.
Problem:
Turgano has his first owned Fortuner car. Due to financial constraints, Turgano mortgaged his car to secure the payment of a loan. When the loan matured, Turgano failed to pay
and settle his loan. His car was scheduled to be auctioned. Inasmuch as it is his first owned car, Turgano doesn’t want to
part away with his car. To prevent the auction of his car, Turgano caused bidders to stay away from the bidding. Is Turgano
liable for Machination in public auction?
Answer:
No. Turgano is not liable for Machination in public auc-
tion. The purpose in machination in public auction is to reduce
the price of the thing auctioned. That is not the purpose of
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
167
Chapter Three — Frauds
Turgano in causing the bidders to stay away from the public
bidding. His purpose was to prevent the public bidding. An
element of the crime of Machination in public auction is not
present.
Note:
If one element of a crime is not present, the crime
is not
committed. Thus, in the foregoing, one element of Machination
in public auction is not present. Consequently, the erime is not
committed.
No crime of Attempted or Frustrated Machination in
Public Auctions
Attempting to cause bidders to stay away from the public bidding consummates the crime of machination in public auction. This
crime is consummated in its attempted stage. This means that if
the bidders who was sought to stay away from the public auction
did not stay away and participated in the bidding, the crime is still
consummated. Therefore, there is no such crime as Attempted
Machination in public auction or Frustrated Machination in
Public Auction.
ART. 186. Monopolies and combinations in restraint of
trade. — The penalty of prision correccional in its minimum
period or a fine ranging from 200 to 6,000 pesos, or both, shall
be imposed upon:
1.
Any person who shall enter into any contract or
agreement or shall take part in any conspiracy or combination in the form of a trust or otherwise, in restraint of trade
or commerce to prevent by artificial means free competition
in the market;
2.
Any person who shall monopolize any merchandise
or object of trade or commerce, or shall combine with any
other person or persons to monopolize said merchandise or
object in order to alter the price thereof by spreading false
rumors or making use of any other article to restrain free
competition in the market;
3.
Any person who, being a manufacturer, producer,
or processor of any merchandise or object of commerce or
an importer of any merchandise or object of commerce from
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CRIMINAL LAW
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any foreign country, either as principal or agent, wholesaler
or retailer, shall combine, conspire or agree in any manner
with any person likewise engaged in the manufacture, production, processing, assembling or importation of such merchandise or object of commerce or with any other persons
not so similarly engaged for purpose of making transactions
prejudicial to lawful commerce, or of increasing the market
price in any part of the Philippines, or any such merchandise or object of commerce manufactured, produced, processed, assembled in or imported into the Philippines, or of
any article in the manufacture of which such manufactured,
produced, processed, or imported merchandise or object of
commerce
is used.
If the offense mentioned
in this article affects any food
substance, motor fuel or lubricants, or other articles of
prime necessity: the penalty shall be that of prision mayor
in its maximum and medium periods, it being sufficient for
the imposition thereof that the initial steps have been taken
toward carrying out the purposes of the combination.
Any property possessed under any contract or by any
combination mentioned in the preceding paragraphs, and
being the subject thereof, shall be forfeited to the combination.
Whenever any of the offenses described above is committed by a corporation or association, the president and
each one of the directors or managers of said corporation
or association or its agent or representative in the Philippines in case of a foreign corporation or association, who
shall have knowingly permitted or failed to prevent the commission of such offenses, shall be held liable as principals
thereof. (As amended by Rep. Act No. 1956, approved June 22,
1957.)
Acts punishable:
1.
Combination
to prevent
free trade or free competition
in the market;
Elements:
1.
Entering into any contract or agreement or taking part
in any conspiracy or combination in the form of a trust or
otherwise;
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
169
Chapter Three — Frauds
2.
In restraint of trade or commerce or to prevent by artificial means free competition in the market.
(Art. 186, par.
1)
Monopoly to restrain free competition in the market;
Elements:
1.
Monopolizing any merchandise or object of trade or commerce, or by combining with any other person or persons
to monopolize said merchandise or object;
2.
Altering the price thereof by spreading false rumors or
making use of any other artifice;
3.
Torestrain free competition in the market. (Art. 186, par.
2)
Manufacturer, producer, or processor or importer combining, conspiring or agreeing with any person to make
transactions prejudicial to lawful commerce or to increase the market price of merchandise.
Elements:
1.
Manufacturer, producer, processor or importer of any
merchandise or object of commerce combines, conspires
or agrees with any person;
2.
Purpose is to make transactions prejudicial to lawful
commerce or to increase the market price of any merchandise or object of commerce
manufactured,
produced,
processed, assembled in or imported into or used in the
Philippines. (Art. 186, par. 3)
Illustration:
Don Manolo called for a meeting with other copra producers and suppliers in the country. He proposed to the group
that they will hoard copra for 6 months to create an artificial
shortage for the purpose of increasing the price. The suppliers
agreed and decided to hoard copra. Don Manolo and the members of his group are liable for Monopoly and combination
in restraint of trade. The group agreed and decided to hoard
copra for the purpose of creating an artificial shortage for the
purpose of increasing the price. This is a crime that is committed in its conspiratorial stage.
Suppose
in the same
problem
with the proposal of Don Manolo?
the group
did not agree
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CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
The crime is not committed because there is no combination in restraint of trade.
ART. 187. Importation and disposition of falsely marked
articles or merchandise made of gold, silver, or other precious metals or their alloys. — The penalty of prision correccional or a fine ranging from 200 to 1,000 pesos, or both, shall
be imposed upon any person who shall knowingly import or
sell or dispose of any article or merchandise made of gold,
silver, or other precious metals, or their alloys, with stamps,
brands,
or marks,
which
fail to indicate
the actual
fineness
or quality of said metals or alloys.
Any stamp, brand, label, or mark shall be deemed to fail
to indicate the actual fineness of the article on which it is
engraved, printed, stamped, labeled or attached, when the
test of the article shows that the quality of fineness thereof is
less by more than one half karat, if made of gold, and less by
more
than
is shown
match
four one-thousandth,
if made
by said stamp, brand, label, or mark.
cases,
and
flatware
made
what
But in cse of
of gold, the actual fineness
of such gold shall not be less by more
sandth
of silver, than
than the fineness indicated
than three one-thou-
by said stamp,
brand, la-
bel or mark.
Acts punishable:
Knowingly importing, selling or disposing any article or
merchandise made of gold, silver, or other precious metals which fail
to indicate the actual fineness or quality of the said metals or alloys.
Elements:
1.
Offender imports, sells or disposes articles made of gold, silver,
or other precious metals or their alloys;
2.
The stamps, brands, or marks of those articles of merchandise
fail to indicate the actual fineness or quality of said metals or
alloys:
3.
Offender knows that the stamps, brands, or marks fail to indi-
cate the actual fineness or quality of the metals or alloys.
ART. 188. Substituting and altering trademarks, trade
names, or service marks. — The penalty of prision correccio-
TITLE FOUR — CRIMES AGAINST
Chapter Three —
nal in its minimum
PUBLIC INTEREST
171
Frauds
period or a fine ranging from 500 to 2,000
pesos, or both, shall be imposed
upon:
1.
Any person who shall substitute the trade name or
trademark of some other manufacturer or dealer or a colorable
imitation
thereof,
for the
trade
of the real manufacturer or dealer upon
merce and shall sell the same;
name
or trademark
any article of com-
2.
Any person who shall sell such articles of commerce
or offer the same for sale, knowing that the trade name or
trademark has been fraudulently used in such goods as described in the preceding subdivision;
3.
Any person who, in the sale or advertising of his
services, shall use or substitute the service mark of some
other person, or a colorable imitation of such marks; or
4.
Any person who, knowing the purposes for which
the trade name, or trademark, or service mark of a person
is to be used, prints, lithographs, or in any way reproduces
such trade name,
trademark, or service mark, or a colorable
imitation thereof, for another person, to enable that other
person to fraudulently use such trade name, trademark, or
service mark on his own goods or in connection with the sale
or advertising of his services.
A trade name or trademark as herein used is a word
or words, or any combination thereof used as an advertisement, sign, label, poster, or otherwise, for the purpose
of en-
abling the public to distinguish the business of the person
who owns and uses said trade name or trademark.
A service mark as herein used is a mark used in the sale
or advertising of services to identify the services of one person and distinguish them from the services of others and includes without limitation the marks, names, symbols, titles,
designations, slogans, character names, and distinctive features of radio or other advertising. (As amended by Rep. Act
No. 172)
Acts punishable:
1.
Substituting the trade name or trademark of some other manufacturer or dealer, or a colorable imitation thereof for the trade
name or trademark of the real manufacturer or dealer upon
any article of commerce and selling the same;
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CRIMINAL LAW
BOOK 1I OF THE REVISED PENAL CODE
2.
Selling or offering for sale such articles of commerce knowing
that the trade name or trademark has been fraudulently used;
3.
Using or substituting the service mark of some other person, or
a colorable imitation of such mark in the sale or advertising of
his services;
4.
Printing, lithographing or reproducing trade name, trademark,
or service mark of one person or a colorable imitation thereof to
enable another person to fraudulently use the same knowing
the fraudulent purpose for which it is to be used.
Mere substitution or alteration of trademark is not a
crime per se. It becomes a crime when the trade name or trademark is substituted or altered or offered for sale to the public.
Illustration:
X removed the labels of Levis jeans and attached them to
locally made jeans in the Philippines to make it appear that
the jeans are imported. X displayed them for sale in his stall:
at Skyworld, Baguio City. X is liable for the crime of Substituting trademarks or trade name.
But if the goods with
substituted
trademarks
or trade
name are sold, the buyers may file a case of Estafa thru deceit
under Art. 315, par. 2 of the RPC.
Liability of printers or lithographers
The printer, lithographer or any person
who shall
alteration or reproduction is liable if he knows
make
the
the fraudulent
purpose for which it is to be used. (Art. 188, par. 4) If not, he is not
liable.
ART. 189. Unfair competition, fraudulent registration of
trademark, trade name or service mark, fraudulent designation of origin, and false description. — The penalty provided
in the next preceding article shall be imposed upon:
1.
Any person who, in unfair competition and for the
purpose of deceiving or defrauding another of this legitimate trade or the public in general, shall sell his goods giving them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves, or in
the wrapping of the packages in which they are contained,
or the device or words thereon, or in any other feature of
their appearance which would be likely to induce the public
TITLE FOUR — CRIMES AGAINST PUBLIC INTEREST
173
Chapter Three — Frauds
to believe that the goods offered are those of a manufacturer
or dealer other than the actual manufacturer or dealer, or
shall give other persons a chance or opportunity to do the
same with a like purpose.
2.
Any person who shall affix, apply, annex, or use in
connection with any goods or services, or any container or
containers for goods, a false designation of origin, or any
false description or representation, and shall sell such goods
or services.
3.
Any person who, by means of false or fraudulent
representations or declarations, orally or in writing, or by
other fraudulent means shall procure from that patent office
or from any other office which may hereafter be established
by law for the purposes, the registration of a trade name,
trademarks, or service mark, or an entry respecting a trade
name, trademark or service mark. (As amended by Rep. Act
No. 172, approved June 20, 1947)
Acts punishable:
1.
Unfair competition
2.
False designation of origin or false description
3.
Fraudulent registration
Unfair Competition
Elements:
1.
Selling goods;
2.
Giving them the general appearance
manufacturer or dealer;
3.
The general appearance is shown in the goods themselves, or
in the wrapping of their packages, or in the device or words
therein, or in any feature of their appearance;
4.
There is actual intent to deceive the public or defraud a com-
of the goods of another
petitor.
Who may commit the crime of unfair competition?
The crime of unfair competition can be committed by a manufacturer or producer.
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
174
Illustration:
Lino is a manufacturer of Sunshine paints. He removed the
wrappings of his paints and wrapped them with the wrapper of Boysen paints, a duly established name in the business. Lino sells his
paints to the public as Boysen paints. He is liable for Unfair Competition. He sold his goods that he manufactured giving them the
appearance of the goods of another manufacturer.
Suppose Romy is the proprietor of MAVERICK CONSTRUCTION. He removed the wrappers of the paints he is selling to the
public and substituted them with the wrapper of Boysen paints,
what is the crime committed?
Answer:
He committed the crime of Alteration or Substitution of
Trademarks. Romy is not the manufacturer of the goods.
False designation of origin or false description
Elements:
1.
2.
By affixing, applying, annexing to his goods or services
a false designation of origin, or any false description or
representation; and
Selling such goods or services.
Fraudulent registration
Elements:
1.
Procuring by fraudulent means from the patent office or
from any other office;
2.
The
registration
of trade
name,
mark.
— 000 —
trademark
or
service
TITLE FIVE
CRIMES RELATIVE TO OPIUM AND OTHER
PROHIBITED DRUGS
Article
190,
191,
192,
193
and
194
of the
Revised
Penal
Code have been repealed by Republic Act. No. 6425 (the
Dangerous Drugs Act of 1972), as amended by Presidential
Decree No. 1683 and further amended by Republic Act. No.
7659. Republic Act 6425, as amended
has been repealed by
Republic Act 9165 (the Dangerous Drugs Act of 2002)
Acts punished by the Republic Act No. 6425
1.
Importation of Dangerous drugs and/or Controlled Precursors
and Essential Chemicals;
Sale, administration, delivery, distribution and transportation
of prohibited drugs;
Maintenance of a den, dive or resort for prohibited drug users;
Being employees and visitors of prohibited drug den;
Manufacture of prohibited drugs and/or Controlled Precursors
and Essential Chemical;
=
Illegal chemical Diversion of Controlled and/or Controlled Precursors and Essential Chemicals;
Manufacture or delivery of equipment, instrument, apparatus,
and other paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals;
Possession or use of prohibited drugs (includes ecstasy and its
derivatives);
Possession of equipment, instrument,
paraphernalia for Dangerous Drugs;
-
apparatus
and
other
Except when possessed in the practice of a profession
175
176
CRIMINAL LAW
BOOK 1T OF THE REVISED PENAL CODE
—
10.
11.
Possession prima facie evidence of drug use
Possession of Dangerous Drugs during parties, social gatherings or meetings, of at least five persons;
Possession
of equipment,
instrument,
apparatus
and
other
paraphernalia during parties, social gatherings or meetings;
12.
Use of Dangerous Drugs;
13.
Cultivation or culture of plants classified as Dangerous Drugs
or are sources thereof;
14.
Maintenance and keeping of original records of transactions
on dangerous drugs and or controlled precursors and essential
chemicals;
15.
Unnecessary prescriptions of dangerous drugs;
16.
Unlawful prescription of Dangerous Drugs.
REPUBLIC ACT 9165
THE DANGEROUS DRUGS ACT OF 2002
DEFINITION OF TERMS
(a) Administer. Any act of introducing any dangerous drug
into the body of any person, with or without his/her knowledge, by
injection, inhalation, ingestion or other means, or of committing
any act of indispensable assistance to a person in administering a
dangerous drug to himself/herself unless administered by a duly licensed practitioner for purposes of medication.
(b) Board. Refers to the Dangerous Drugs Board under Section 77, Article IX of this Act.
(c¢)
Centers. Any of the treatment and rehabilitation centers
for drug dependents referred to in Section 34, Article VIII of this
Act.
(d) Chemical Diversion. The sale, distribution, supply or
transport of legitimately imported, in-transit, manufactured or produced controlled precursors and essential chemicals, in diluted, mixtures or in concentrated form, to any person or entity engaged in the
manufacture of any dangerous drug, and shall include packaging,
TITLE FIVE — CRIMES RELATIVE TO OPTUM AND OTHER
PROHIBITED DRUGS
177
repackaging, labeling, relabeling or concealment of such transaction
through fraud, destruction of documents, fraudulent use of permits,
misdeclaration, use of front companies or mail fraud.
(e)
Clandestine Laboratory. Any facility used for the illegal manufacture of any dangerous drug and/or controlled precursors
and essential chemical.
(f)
Confirmation Test. An analytical test using a device,
tool or equipment with a different chemical or physical principle
that is more specific which will validate and confirm the result of
the screening test.
(g)
Controlled Delivery. The investigative technique of allowing an unlawful or suspect consignment of any dangerous drug
and/or controlled precursor and essential chemical, equipment or
paraphernalia, or property believed to be derived directly or indi-
rectly from any offense, to pass into, through or out of the country
under the supervision of an authorized officer, with a view to gathering evidence to identify any person involved in any dangerous drugs
related offense, or to facilitate prosecution of that offense.
(h) Controlled
Include those listed in
against Illicit Traffic in
es as enumerated in the
this Act.
Precursors and Essential Chemical.
Table I and II of the 1988 UN Convention
Narcotic Drugs and Psychotropic Substancattached annex, which is an integral part of
(i)
Cultivate or Culture. Any act of knowingly planting,
growing, raising, or permitting the planting, growing or raising of
any plant which is the source of a dangerous drug.
()
Dangerous Drugs. Include those listed in the schedules annexed to the 1961 Single Convention on Narcotic Drugs, as
amended by the 1972 protocol, and in the schedules annexed to the
1971 Single Convention on Psychotropic Substances as enumerated
in the attached annex which is an integral part of this Act.
(k)
Deliver. Any act of knowingly passing a dangerous drug
to another, personally or otherwise, and by any means, with or with-
out consideration.
(I)
Den, Dive or Resort. A place where any dangerous drug
and/or controlled precursor and essential chemical is administered,
delivered, stored for illegal purposes, distributed, sold or used in any
form.
178
CRIMINAL LAW
BOOK IT OF THE REVISED PENAL CODE
(m) Dispense. Any act of giving away, selling or distributing
medicine or any dangerous drug with or without the use of prescription.
(n) Drug Dependence. As based on the World Health Organization definition, it is a cluster of physiological, behavioral and
cognitive phenomena of variable intensity, in which the use of psychoactive drug takes on a high priority thereby involving, among
others,
a strong desire
or a sense of compulsion
to take
the
sub-
stance and the difficulties in controlling substance-taking behavior
in terms of its onset, termination, or levels of use.
(o)
Drug Syndicate. Any organized group of two (2) or more
persons forming or joining together with the intention of committing
any offense prescribed under this Act.
(p) Employee of Den, Dive or Resort. The caretaker,
helper, watchman, lookout, and other persons working in the den,
dive or resort, employed by the maintainer, owner and/or operator
where any dangerous drug and/or controlled precursor and essential
chemical is administered, delivered, distributed, sold or used, with
or without compensation, in connection with the operation thereof.
(@) Financier. Any person who pays for, raises or supplies
money for, or underwrites any of the illegal activities prescribed under this Act.
(r)
Illegal Trafficking. The illegal cultivation, culture, delivery, administration, dispensation, manufacture, sale, trading,
transportation, distribution, importation, exportation and possession of any dangerous drug and/or controlled precursor and essen-
tial chemical.
(s)
Instrument.
Anything
that is used
in or intended to be
used in any manner in the commission of illegal drug trafficking or
related offenses.
(t)
Laboratory Equipment. The paraphernalia, apparatus,
materials or appliances when used, intended for use or designed for
use in the manufacture of any dangerous drug and/or controlled precursor and essential chemical, such as reaction vessel, preparative/
purifying equipment, fermentors, separatory funnel, flask, heating
mantle, gas generator, or their substitute.
(u) Manufacture. The production, preparation, compounding or processing of any dangerous drug and/or controlled precursor
TITLE FIVE — CRIMES RELATIVE TO OPIUM AND OTHER
PROHIBITED DRUGS
179
and essential chemical, either directly or indirectly or by extraction
from substances of natural origin, or independently by means of
chemical synthesis or by a combination of extraction and chemical
synthesis, and shall include any packaging or repackaging of such
substances, design or configuration of its form, or labeling or relabeling of its container; except that such terms do not include the
preparation, compounding, packaging or labeling of a drug or other
substances by a duly authorized practitioner as an incident to his/
her administration or dispensation of such drug or substance in the
course of his/her professional practice including research, teaching
and chemical analysis of dangerous drugs or such substances that
are not intended for sale or for any other purpose.
(v)
Cannabis or commonly known as “Marijuana” or
“Indian Hemp” or by its any other name. Embraces every kind,
class, genus, or specie of the plant Cannabis sativa L. including, but
not limited to, Cannabis Americana, hashish, bhang, guaza, churrus
and ganjab, and embraces every kind, class and character of marijuana, whether dried or fresh and flowering, flowering or fruiting
tops, or any part or portion of the plant and seeds thereof, and all its
geographic varieties, whether as a reefer, resin, extract, tincture or
in any form whatsoever.
(w). Methylenedioxymethamphetamine (MDMA) or commonly known as “ecstasy,” or by its any other name. Refers to the drug
having such chemical composition, including any of its isomers or derivatives in any form.
(x)
Methamphetamine
Hydrochloride
or commonly
known as “Shabu,” “Ice,” “Meth,” or by its any other name
refers to the drug having such chemical composition, including any
of its isomers or derivatives in any form.
(y)
Opium. Refers to the coagulated juice of the opium poppy
(Papaver somniferum L.) and embraces every kind, class and character of opium, whether crude or prepared; the ashes or refuse of the
same; narcotic preparations in which opium, morphine or any alkaloid of opium enters as an ingredient; opium poppy; opium poppy
straw; and leaves or wrappings of opium leaves, whether prepared
for use or not.
(z)
Opium Poppy. Refers to any part of the plant of the species Papaver somniferum L., Papaver setigerum DC, Papaver orien-
tale, Papaver bracteatum
and Papaver rhoeas, which includes the
seeds, straws, branches, leaves or any part thereof, or substances
derived therefrom, even for floral, decorative and culinary purposes.
180
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
(aa) PDEA. Refers to the Philippine Drug Enforcement Agency under Section 82, Article IX of this Act.
(bb) Person. Any entity, natural or juridical, including among
others, a corporation, partnership, trust or estate, joint stock company, association, syndicate, joint venture or other unincorporated
organization or group capable of acquiring rights or entering into
obligation.
(cc) Planting of evidence. The willful act by any person of
maliciously and surreptitiously inserting, placing, adding or attaching directly or indirectly, through any overt or covert act, whatever
quantity of any dangerous drug and/or controlled precursor and essential chemical in the person, house, effects or in the immediate
vicinity of an innocent individual for the purpose of implicating, incriminating or imputing the commission of any violation of this Act.
(dd) Practitioner. Any person who is a licensed physician,
dentist, chemist, medical technologist, nurse, midwife, veterinarian
or pharmacist in the Philippines.
(ee)
Protector/Coddler. Any person who knowingly and
willfully consents to the unlawful acts provided for in this Act and
uses his/her influence, power or position in shielding, harboring,
screening or facilitating the escape of any person he/ she knows, or
has reasonable grounds to believe on or suspects, has violated the
provisions of this Act in order to prevent the arrest, prosecution and
conviction of the violator.
(ff) Pusher. Any person who sells, trades, administers, dispenses, delivers or gives away to another, on any terms whatsoever,
or distributes, dispatches in transit or transports dangerous drugs
or who acts as a broker in any of such transactions, in violation of
this Act.
(gg) School. Any educational institution, private or public,
undertaking educational operation for pupils/students pursuing certain studies at defined levels, receiving instructions from teachers,
usually located in a building or a group of buildings in a particular
physical or cyber site.
(hh) Screening Test. A rapid test performed to establish potential/presumptive positive result.
TITLE FIVE — CRIMES RELATIVE TO OPIUM AND OTHER
PROHIBITED DRUGS
181
(ii) Sell. Any act of giving away any dangerous drug and/or
controlled precursor and essential chemical whether for money or
any other consideration.
(j)
Trading. Transactions involving the illegal trafficking of
dangerous drugs and/or controlled precursors and essential chemicals using electronic devices such as, but not limited to, text messages, email, mobile or landlines, two-way radios, internet, instant
messengers and chat rooms or acting as a broker in any of such
transactions whether for money or any other consideration in violation of this Act.
(kk) Use. Any act of injecting, intravenously or intramuscularly, of consuming, either by chewing, smoking, sniffing, eating,
swallowing, drinking or otherwise introducing into the physiological
system of the body, and of the dangerous drugs.
ARTICLE Il
Unlawful Acts and Penalties
Section 4. Importation of Dangerous Drugs and/or Controlled
Precursors and Essential Chemicals.
Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or
Controlled Precursors and Essential Chemical.
Section 6. Maintenance of a Den, Dive or Resort.
Section 7. Employees and Visitors of a Den, Dive or Resort.
Section 8. Manufacture of Dangerous Drugs and/or Controlled
Precursors and Essential Chemicals.
Section 9. Tllegal Chemical Diversion of Controlled Precursors
and Essential Chemicals.
Section 10. Manufacture or Delivery of Equipment, Instrument, Apparatus, and Other Paraphernalia for Dangerous Drugs
and/or Controlled Precursors and Essential Chemical.
Section 11. Possession of Dangerous Drugs.
Section 12. Possession of Equipment, Instrument, Apparatus
and Other Paraphernalia for Dangerous Drugs.
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
182
Section 13. Possession of Dangerous Drugs
Social Gatherings or Meetings.
during Parties,
Section 14. Possession of Equipment, Instrument, Apparatus
and Other Paraphernalia for Dangerous Drugs during Parties, Social Gathering or Meetings.
Section
15. Use of Dangerous Drugs.
Section 16. Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources Thereof.
Section 17. Maintenance and Keeping of Original Records of
Transactions on Dangerous Drugs and/or Controlled Precursors and
Essential Chemicals.
Section18. Unnecessary Prescription of Dangerous Drugs.
Section 19. Unlawful Prescription of Dangerous Drugs.
Section 20. Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act, Including the Properties or Proceeds
Derived from the Illegal Trafficking of Dangerous Drugs and/or Pre-
cursors and Essential Chemicals.
* No more distinction
Prohibited Drugs.
between
Dangerous
Drugs
and
THE CHAIN OF CUSTODY OF EVIDENCE
In evidence, the one who offers real evidence, such as narcotics
in a trial of a drug case, must account for the custody of the evidence
from the moment it reaches his custody until the moment it is offered in evidence.
of
to
is
up
The “chain of custody” in a nutshell refers to the movement
the evidence from the time it is recovered from the crime scene up
the time it is offered in evidence in court. The primordial purpose
to see to it that the evidence has not been substituted or altered
to the time it is presented in court.
In a more technical term, “chain of custody” refers to the
chronological documentation of the seizure, custody, control, transfer, analysis and disposition of evidence from the time it was seized
up to the time it is offered in evidence in court.
Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series
of 202 defines chain of custody as follows:
TITLE FIVE — CRIMES RELATIVE TO OPIUM AND OTHER
PROHIBITED DRUGS
183
“Chain of Custody” means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs
or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory
to safekeeping to presentation in court for destruction.
Such record of movement and custody of seized item
shall include the identity and signature of the person
who held temporary custody of the seized item, the date
and time when such transfer of custody were made in the
course of safekeeping and use in court as evidence, and
the final disposition.
All evidence collected at the crime scene should be tagged. If
the item cannot be tagged then it should be labeled or marked.
The primary
purpose for the crime scene investigator or evi-
dence recovery officer in tagging and marking of evidence is so that
he will be able to easily identify those items at a later date. The
tagging, labeling and marking of the evidence adds credibility and
control in the ability of identifying them.
Who is a protector or coddler?
A Protector/Coddler refers to any person who uses his power
or position in, inter alia, facilitating the escape of any person whom
he knows or believes, has violated the Dangerous Drugs Law, in order to prevent the arrest, prosecution and conviction of the violator.
Where arrest is incipiently illegal, it logically follows that the
subsequent search is similarly illegal, it being not incident to a
lawful arrest.
PEOPLE V. ROSA ARUTA, G.R. NO. 120915, APRIL 3, 1998
An informant went to the office of the NARCOM
and reported
that one Rosa Aruta is engaged in illegal sale of drugs. The informant
stated further that Aruta is about to deliver marijuana to a buyer.
A team of NARCOM agents was dispatched to apprehend Aruta. On
their way, the informant pointed to Aruta who was crossing street
and identified her as the marijuana carrier. Then and there, the
agents arrested Aruta. They thereafter, searched her and found
marijuana inside her bag. Aruta was charged of illegal possession
of marijuana.
CRIMINAL LAW
BOOK IT OF THE REVISED PENAL CODE
184
Q.
If you were the judge, how will you decide the case?
A.
I will acquit the accused. The accused Aruta cannot
be said to be committing a crime. Neither was she about
to commit one nor had she just committed a crime. She
was merely crossing the street. The NARCOM agents
would not have apprehended her were it not for the furtive finger of the informant. Consequently, there was
no legal basis for the NARCOM to effect a warrantless search of accused’s bag there being no probable
cause and accused not having been lawfully arrested.
Stated otherwise, the arrest being incipiently illegal,
it logically follows that the subsequent search was
similarly illegal. As much, the marijuana seized could
not be used as evidence against Aruta for it is a “fruit of
the poisoned tree.”
What if a search was first undertaken and then an arrest was effected based on the evidence produced by the
search?
A.
I will still acquit Aruta. Emphasis is too be laid on the
fact that the law requires that the search be incidental
to a lawful arrest in order that the search itself may
likewise be considered legal.
A lawful arrest must precede the search of a
person and his belongings. Where the search is first
undertaken and an arrest is effected based on the evidence produced by the search, both such search and arrest are unlawful.
Sale of dangerous drugs and illegal possession, separate offenses
Tammy, a police officer posing as buyer, bought marijuana
from Irwin. The latter gave one (1) pack of marijuana dried leaves
to Tammy. When Irwin was being arrested, he ran to the back of
his house where another three (3) packs of marijuana leaves were
confiscated from him.
Q.
If you were the prosecutor, what charges would you file
against Irwin? Why?
A.
I would file two (2) cases
amended, namely:
of Violation
RA
6425
as
TITLE FIVE — CRIMES RELATIVE TO OPIUM AND OTHER
PROHIBITED DRUGS
1.
185
Sale or pushing of Dangerous Drugs; and
Illegal Possession of Dangerous Drug.
For selling one (1) pack of marijuana dried leaves to
Tammy who acted as poseur buyer, Irwin committed Sale
or Pushing of Dangerous Drugs.
He can also be charged with
Dangerous Drugs. As soon as he
he ran to the back of his house, he
in his possession were 3 packs of
three
(3) packs
of marijuana
Illegal Possession of
was apprehended after
was frisked and found
marijuana leaves. The
leaves were
not covered
or
included in the earlier sale. (People v. Angeles, 218 SCRA
352)
Sale of shabu and marijuana: whole specimen need not be tested
PEOPLE V. BARITA, G.R. NO. 123542, FEBRUARY 8, 2000
Q.
Should the entire contents
marijuana be examined?
A.
of the package
containing
No. the claim of the accused that in order for them to be
convicted of selling 2,800 grams of marijuana, the whole
specimen must be tested considering that RA 7659
imposes a penalty dependent on the amount or the
quantity of drugs seized or taken, is wrong. It has
been ruled that a sample taken from one of the packages is logically presumed to be representative of
the entire content of the package unless proven
otherwise by accused-appellant. (People v. Diolo Barita Y Sacpa, et al., G.R. No. 123542, February 8, 2000)
A sample taken from one (1) of the packages
is logically presumed to be representative of the
entire contents of the package unless proven otherwise by the accused. Therefore, a positive result for the
presence of drugs is indicative that there is 1.1 kilogram
of drugs in the plastic package from which the sample
is taken (People v. Chen Tiz and Chang Jung San a.k.a
Willy Tan, G.R. Nos. 181872-73, February 17, 2000, Panganiban, J.)
186
CRIMINAL LAW
BOOK 11 OF THE REVISED PENAL CODE
There is consummated sale of illegal drug even if the purchase
money is not presented
Q.
At about 9:00 O'clock in the morning, a Narcom group laid a
plan to entrap and apprehend Karla, a long suspected drug
dealer, through a “buy-bust” operation. At the appointed time,
the poseur-buyer approached Karla who was then with Rhea.
A marked P100,000 bill was handed over to Karla who in turn,
gave the poseur-buyer one (1) tea bag of marijuana leaves.
The members of the team, who were then positioned behind
the thick leaves, closed in but evidently were not swift enough
since Karla and Rhea were able to run away. Two days later,
Karla was arrested in connection with another incident. It appears that during the operations, the police officers were not
able to seize the marked money but were able to get possession
of the marijuana tea bag. Karla was subsequently prosecuted for violation of Section
4, Article IT of RA
6425, otherwise
known as the Dangerous Drugs Act. Can Karla be held liable?
Explain.
A.
Yes, Karla can be held liable. The absence of the
marked money will not create a hiatus in the prosecution’s evidence as long as the sale of the dangerous drugs
is adequately proven and the drug subject of the transaction is presented before the court. There was a perfected
contract of sale of the drugs. (People v. Ong, 245 SCRA
733; People v. Zervoukalos, 241 SCRA 625). (2002 Bar).
(People v. Yang, G.R. No. 148077, February 16, 2004)
The consummation of the crime charged herein
may be sufficiently established even in the absence of
an exchange of money. The offer to sell and then the
sale itself arose when the poseur buyer showed the money
to appellant, which prompted the latter to show the contents of the carton and hand it over to the poseur-buyer.
Mere showing of the laid regulated drugs does not negate
the existence of an offer to sell or an actual sell. The absence of actual or completed payments is irrelevant
for the law itself penalizes the very act of delivery of a
dangerous drug, regardless of any consideration. Payment of considerations is likewise immaterial in
the distribution of illicit drugs. (People v. Yang, G.R.
No.
148077, February
16, 2004)
TITLE FIVE — CRIMES RELATIVE TO OPIUM AND OTHER
PROHIBITED DRUGS
187
Attempted sale of shabu: No agreement on the price
Appellant is guilty of the crime of attempted sale of shabu.
As gleaned from the testimony of the poseur-buyer, the appellant
merely showed the bag containing the shabu and held on to
it before it was confiscated. There is no evidence that the poseurbuyer talked about and agreed with the appellant on the purchase price of the shabu. There is no evidence that the appellant handed over the shabu to the poseur buyer. (People v.
Adam,
G.R. No. 143842,
October 13, 2003)
The provision of Sec. 21 of the Dangerous Drugs Act of 2002 must
be faithfully complied with
Q.
What if the police officers after apprehending the accused
illegal sale of drugs and after taking custody of the drugs
ventoried the same in the presence of barangayv officials
while the suspect was taken to another room or delaved
turn over and laboratory test of the suspected drugs? Will
for
inand
the
you
acquit or convict?
A.
I will acquit. Sec. 21 of the Dangerous Drugs Act of
2002 spells out eight (8) rules on custody and disposal of
seized narcotics. Among them is that “the apprehending team having initial custody of the drugs shall,
immediately after the seizure, physically inventory
and photograph the same in the presence of the accused or his representative or counsel, a representa-
tive from the media and the Department of Justice,
and any elected public official who shall be required to
sign the inventory.”
Too, “that the haul be submitted within 24 hours
to the Philippines Drug Enforcement Agency for lab examination. And, that “within another 24 hours, the
forensic examiner shall issue a sworn certification on
the test results.”
Legislators
and
had
put
in the
deadlines to foil abuses
and
strict
procedures
mistakes
of the
past. Judges are mandated to assess not only the evidence
presented by the prosecution regarding the substantive
law involved, such as establishing the essential ingredients of the crime. They must also ensure compliance
with relevant procedural laws that cannot just be
188
CRIMINAL LAW
IT OF THE REVISED PENAL CODE
BOOK
dismissed
lowed.
as “technicalities” when
not strictly fol-
There must be faithful observance of the requirements of Sec. 21. Cops must not expect prosecutors to fill in the gaps from lapses or blunders in law enforcement. “More often than not, prosecution of drug
cases are doomed from the moment law enforcers
resort
to legal short
cuts or are simply
ignorant
of
the rules.”
Prohibitions under the new Drugs Law
1.
NO PLEA BARGAINING
Any person charged under any provision of RA 9165, regard-
less of the imposable penalty shall not be allowed to avail of
the provisions of the plea bargaining.
2.
NO PROBATION
Any person convicted for drug trafficking or pushing under RA 9165, regardless of the penalty imposed by the Court
cannot avail of the privilege granted by the Probation Law
(PD 968, as amended) (Sec. 24)
Qualifying
Aggravating Circumstance
Notwithstanding the provisions of the law to the contrary, a
positive finding for the use of dangerous drugs shall be qualifying
aggravating
circumstance
in the commission
of a crime
by an offender, and the applicable penalty provided for in the RPC
shall be applicable. (Sec. 25)
RECENT
Cases of acquittal:
custody
CASES ON SECTION 21 OF RA 9165
Based
on non-compliance
with the chain of
CACAO V. PEOPLE, G.R. NO. 180870, JANUARY 22, 2010
The patent inconsistency between the testimonies of Mangapit
and Pang-ag, on one hand, and the testimony of Ancheta on the other hand, necessarily leads to doubt that the plastic sachet of shabu
identified in court is the same item that was allegedly seized and
TITLE FIVE — CRIMES RELATIVE TO OPIUM
PROHIBITED DRUGS
AND OTHER
189
confiscated from petitioner. At any rate, the identification made by
the witnesses on the item allegedly seized from petitioner is rendered meaningless and bereft of probative value in view of the categorical denial of the evidence custodian that he received the same
from Mangapit. Hence, there can be no crime of illegal possession of a prohibited drug when nagging doubts persist on
whether the item confiscated was the same specimen examined and established to be the prohibited drug.
PEOPLE V. KAMAD, G.R. NO. 174198, JANUARY
19, 2010
The following links must be established in the certain of custody in a buy-bust situation: first, the seizure and marking, if prac-
ticable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the
apprehending officer to the investigating officer; third, the turnover
by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist
to the court. In this case, however, SPO2 Sanchez’ testimony lacks
specifics on how the seized shabu was handled immediately after
the accused-appellant’s arrest. SPO2 Sanchez’ testimony regarding
the post-arrest police investigation failed to provide particulars on
whether the shabu was turned over to the investigator. The pieces
of evidence notably fail to identify the person who personally brought the seized shabu to the PNP Crime Laboratory.
They also fail to clearly identify the person who received the
shabu at the forensic laboratory.
There was also non-compliance with the prescribed pro-
cedure under Sec. 21 of RA 9165. SPO2 Sanchez’ failed to provide
specific details on how the seized shabu was marked although the
evidence shows that the shabu was marked as “ES-1-161009” before
it was sent to a forensic laboratory. His testimony also failed to state
whether the marking of the shabu was done immediately after its
seizure (as Section 21 of RA 9165 requires) or during the investigation. His testimony likewise failed to disclose if a physical inventory
and photograph of the seized items had taken place or if they had,
whether these were undertaken in the presence of the accused or his
counsel, or a representative from the media and the Department of
Justice, and of an elective official.
190
CRIMINAL LAW
BOOK II OF THE REVISED PENAL CODE
PEOPLE V. FRONDOZO, G.R. NO. 177164, JUNE 30, 2009
To establish the identity of the shabu seized from Frondozo,
the
procedures
laid down
in RA
9165
should
be com-
plied with. Section 21 of the implementing Rules and Regulations
of RA 9165 clearly outlines the post-seizure procedure in taking
custody of seized drugs.
It states: (1) the apprehending
team
hav-
ing initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph
the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media
and the Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of the inventory and be given a copy thereof.
In this case, the arresting officers failed to strictly comply with
the procedures for the custody and disposition of confiscated dangerous drugs as prescribed by RA 9165. The arresting officers did not
mark the shabu immediately after they arrested Frondozo.
Further, while there was testimony regarding the marking of the
shabu after it was turned over to the police investigator, no evidence was presented to prove that the marking thereof was
done in the presence of Frondozo. Also, fatal in the prosecu-
tion’s case is the failure of the arresting officers to take a
photograph and make an inventory of the confiscated materials in the presence
of Frondozo.
Likewise, there was no men-
tion that any representative from the media, DOJ or any elected
public official had been present during the inventory or that any of
these persons had been required to sign the copies of the inventory.
PEOPLE V. PARTOZA, G.R. NO. 182418, MAY 8, 2009
PO3 Tougan testified that he marked the two plastic sachets
containing white crystalline substance in the police station. However, he did not mark the seized drugs immediately after he
arrested appellant in the latter’s presence. Neither did he
make an inventory and take a photograph of the confiscated
items in the presence of appellant. There was no representative
from the media and the Department of Justice, or any elected public
official who participated in the operation and who were supposed to
sign an inventory of seized items and be given copies thereof. None
of these statutory safeguards were observed.
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While non-compliance by the buy-bust team with Section 21
is not fatal as long as there is a justifiable ground thereof, and as
long as the integrity and the evidentiary value of the confiscated/
seized items are properly preserved by the apprehending team, yet,
these conditions were not met in the case at bar. No explanation
was offered by PO3 Tougan for this failure to observe the rule. Furthermore, while PO3 Tougan admitted to have in his possession the
shabu from the time appellant was apprehended at the crime scene
to the police station, records are bereft of proof on how the seized
items were handled from the crime they left the hands of PO3 Tougan. PO3 Tougan mentioned a certain Inspector Manahan.
PEOPLE V. ROBLES, G.R. NO. 177220, APRIL 24, 2009
The court finds that the prosecution failed to clearly establish
the chain of custody of the seized plastic sachet containing shabu
subject of the alleged sale. PO2 Besona and PO3 Malicse did not
adequately explain how the corpus delicti transferred hands from
the time it was supposedly confiscated from appellant to the time it
was presented in court as evidence. PO2 Besona did not mark the
substance immediately after the apprehension of appellant. While
PO2 Besona claimed that it was marked by an investigator in his
presence, he did not state at what precise point of the operation the
marking took place. Both the investigator who purportedly made
the marking and SPO3 Ocfemia were not presented in court to testify on what transpired before and after the substance was turned
over to them. Additionally, nothing on record shows compliance by
the buy-bust team with the procedural requirements of Section 21;
paragraph
1 of Article II of RA No. 9165 with respect to custody
and disposition of confiscated drugs. There was no physical inventory and photograph of the items allegedly confiscated from appellant. There was likewise no explanation offered for the failure to
observe the rule. The failure of the police to comply with the
procedure in the custody of seized drugs raises doubt as to
their origins, and negates the operation of the presumption
of regularity accorded to police officers.
SALES V. PEOPLE, G.R. NO. 182296, APRIL 7, 2009
Neither physical inventory nor paragraph of the sachet and
buy-bust money taken in the presence of petitioner, or her representative or counsel, a representative from the media and the De-
partment of Justice, as required by law, was taken. No justification
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whatsoever was proffered by the apprehending team for its failure
to observe the legal safeguards.
CARINO V. PEOPLE, G.R. NO. 178757, MARCH
13, 2009
The prosecution has not shown that they had extended reasonable efforts to comply with the statutory requirements in handling
the evidence. From the testimonies of the members of the arresting
team, it is clear that they immediately seized the plastic sachets,
took custody thereof and brought the same to the police station. It
was at the police station — and not at the place where the
item was seized from appellant — where the unnamed police investigator had placed the markings on the specimens.
Moreover the markings were placed not in the presence of
petitioners as required by law. These flaws in the conduct of
the post-seizure custody of the dangerous drug allegedly recovered
from petitioners, taken together with the failure of the key persons
who handled the same to testify on the whereabouts of the exhibits
before they were offered in evidence in court, militate against the
prosecution’s because they not only cast doubt on the identity of the corpus delicti but also tend to negate, if not totally
discredit, the claim of regularity in the conduct of official
police operation advanced by the OSG.
PEOPLE V. GARCIA, G.R. NO. 173480, FEBRUARY
25, 2009
Other than the markings made by PO1 Garcia and the
police investigator (whose identity was not disclosed), no
physical inventory was ever made, and no photograph of the
seized items was taken under the circumstances required by
RA 9165 and its implementing rules. While there was testimony
with respect to the marking of the seized items at the police station, no mention whatsoever was made on whether the marking had
been done in the presence of Ruiz or his representatives. There was
likewise no mention that any representative from the media and the
Department of Justice, or any clected official had been present during this testimony, or what any of these people had been required to
sign the copies of the inventory. In addition, while PO1 Garcia duly
testified on the identity of the buyer and seller, on the consideration
that supported the transaction, and on the manner the sale took
place, the prosecution’s evidence failed to establish the chain that
would have shown that the marijuana presented in court was the
very item seized from Ruiz at the time of his arrest.
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193
PEOPLE V. OBMIRANIS, G.R. NO. 181492,
DECEMBER 16, 2008
Board Regulation No. 1, series of 2002 defines chain of
custody as “the duly” recorded authorized movements and
custody
of seized
drugs
or controlled
chemicals
or plant
sources of dangerous drugs or laboratory equipment of each
stage, from the time of seizure/confiscation to receipt in the
forensic laboratory to safekeeping to presentation in court
for destruction. It must be established with unwavering exactitude that the dangerous drug presented in court as evidence against
the accused is the same as that seized from him in the first place.
The chain of custody requirement performs this function in what
it ensures that unnecessary doubts concerning the identity of the
evidence are removed.
The prosecution evidence in the case at bar, however, does not
suffice to afford such assurance.
Cinco, who, according to Velasco,
took initial custody of the plastic sachet at the time of arrest and who
allegedly marked the same with the initials “SOO” at the police station, was not even presented in court. The same is true with respect
to the laboratory personnel who failed to testify on the circumstances
under which he received the specimen at the laboratory for analysis
and testing. Aside from that, it was not reasonably explained why
these same witnesses were not able to testify in court. Furthermore,
Velasco, the leader of the raiding team, admitted that as soon as appellant was arrested, Cinco had taken custody of the plastic sachet
of shabu, placed it in his pocket and brought the same together with
appellant to the police station. It was at the police station — and
not at the place where the item was seized from appellant — where
according to him (Velasco), Cinco had placed the initials “SOO” on
the specimen. Velasco could not even remember whether or not the
specimen had been properly inventoried and photographed at least
in appellant’s presence. Even more telling is the fact that, as
elicited from Velasco himself during his cross-examination,
no evidence custodian had been designated by the raiding
team to safeguard the identity and integrity of the evidence
supposedly seized from appellant.
BONDAD V. PEOPLE, G.R. NO. 173804,
DECEMBER 10, 2008
Failure of the apprehending officers to comply with the
inventory and photographing requirements of Section 21 RA
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9165 compromised the identity of the items seized, which
the corpus delicti of the crimes charged.
is
PEOPLE V. MAGAT, G.R. NO. 179939,
SEPTEMBER 29, 2008
It is indisputable that the procedures for the custody
and disposition of confiscated dangerous drugs in Section
21 of RA 9165 were not complied with. PO1 Santos admitted
that he marked the two plastic sachets containing white crystalline substance in the police station. He did not mark the seized
items immediately after he arrested appellant in the latter’s
presence. He also did not make an inventory and take a photograph of the confiscated materials in the presence of appellant. Other than the three policemen, there were no other
people who participated in the alleged buy-bust operation.
There was no representative from the media and the Department of Justice, or any elected public official who participated in the operation and who were safeguards were observed.
Although PO1 Santos had written his initials on the two plastic
sachets submitted to the PNP Crime Laboratory Office for examination, it was not indubitably shown by the prosecution that PO1
Santos immediately marked
the seized drugs in the presence of ap-
pellant after their alleged confiscated. There is doubt as to whether
the substances seized from appellant were the same ones subjected
to laboratory examination and presented in court.
RA 9165 had placed upon the law enforcers the duty to
establish the certain of custody of the seized drugs to ensure
the integrity of the corpus delicti. Thru proper exhibit handling,
storage, labeling and recording, the identity of the seized drugs is
insulated from doubt from their confiscation up to their presentation
in court. While the seized drugs may
be admitted
in evidence,
it does not necessarily follow that the same should be given
evidentiary weight if the procedure in Section 21 of RA 9165
was not complied with. The Court stressed that the admissibility of the seized dangerous drugs in evidence should not be equated
with its probative value in proving the corpus delicti. The admissibility of evidence depends on its relevance and competence while
the weight of evidence pertains to evidence already admitted and its
tendency to convince and persuade. All told, the corpus delicti in
this case is not legally extant.
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195
PEOPLE V. ORTEZA, G.R. NO. 173051,
JULY 31, 2007
The records do not show that police officers complied with the
proper procedure in the custody of seized drugs as specified in People
v. Lim, any apprehending team having initial control of said drugs
and/or paraphernalia should, immediately after seizure or confiscation, have the same physically inventoried and photographed in the
presence of the accused, if there be any, and or his representative,
who shall be required to sign the copies of the inventory and be given a copy thereof. The failure of the agents to comply with the
requirement raises doubt whether what was submitted for
laboratory examination and presented in court was actually
recovered from appellant. It negates the presumption that
official duties have been regularly performed by the police
officers.
Cases of conviction even if there is no compliance with the chain
of custody rule
PEOPLE V. DE LEON, G.R. NO. 186471,
JANUARY 25, 2010
Sec. 21 of RA 9165 need not be followed as an exact science. Non-compliance with Sec. 21 does not render an accused’s arrest illegal or the items seized/confiscated from
him inadmissible. What is essential “the preservation of the
integrity and the evidentiary value of the seized items, as
the same would be utilized in the determination of the guilt
or innocence
of the accused.” In the instant case, there was
substantial compliance with the law and the integrity of the drugs
seized from appellant was preserved.
PEOPLE V. CRUZ, G.R. NO. 185381,
DECEMBER 16, 2009
Appellant argues that the police officers failed to photograph
or mark the shabu immediately after the alleged buy-bust operation
in his presence, or his counsel, a representative from the media a
representative from the Department of Justice, or any elected public
official. The Court, however, finds that there was substantial
compliance with the law and the integrity of the drugs seized
was preserved. PO3 Arago seized and confiscated the dangerous
drugs, as well as the marked money; appellant was immediately ar-
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rested; and in that spot there he was arrested, PO3 Arago marked
the sachets of shabu with the initials of appellant. PO2 Aguinaldo
also marked the two (2) sachets he found in appellant’s person with
appellant’s initials. Appellant was then brought to the police station for investigation. Immediately thereafter, the plastic sachets
were forwarded to the PNP Crime Laboratory with a request for
examination to determine the presence of any prohibited drug. As
per Physical Science Report No. D-747-03, the specimens submitted
contained methamphetamine hydrochloride or shabu.
PEOPLE V. VENTURA, G.R. NO. 184957,
OCTOBER 27, 2009
There purpose of the procedure outlined in the implementing
rules (Sec. 21 RA 9165) is centered on the preservation of the integ-
rity and evidentiary value of the seized items. All evidence, including the markings on the plastic sachet containing the shabu, prove
that the substance tested by the forensic chemist, whose laboratory tests were well-documented, was the same as that taken from
accused-appellant. Moreover, the integrity of the evidence is
presumed to be preserved, unless there is a showing of bad
faith, ill will, or proof that the evidence has been tampered
with.
PEOPLE V. LAZARO, G.R. NO. 186418,
OCTOBER 16, 2009
Appellant raised the buy-bust team's alleged non-compliance
with Section 21, Article II of Republic Act No. 9165 for the first
time on appeal. In People v. Sta. Maria, the Court held that the
law excuses non-compliance under justifiable grounds. However,
whatever justifiable grounds may excuse the police officers
involved in the buy-bust operation in this case from complying with Section 21 will remain unknown, because appellant
did not question during trial the safekeeping of the items
seized from him. Thorough review of the records, however, reveals
that the chain of custody of the seized substance was not broken and
that the prosecution did not fail to identify properly the drugs seized
in this case.
PEOPLE V. RESURRECCION, G.R. NO. 186380,
OCTOBER 12, 2009
Jurisprudence tells us that the failure to immediately
mark seized drugs will not automatically impair the integ-
TITLE FIVE — CRIMES RELATIVE TO OPIUM AND OTHER
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197
rity of chain of custody. People v. Sanchez explains that RA 9165
does not specify a time frame for “immediate marking,” or where
said marking should be done. To be able to create a first link in the
chain of custody, then, what is required is that the marking be made
in the presence of the accused and upon immediate confiscation.
“Immediate confiscation” has no exact definition. Thus, in People v.
Gu-Oyen, testimony that included the marking of the seized items at
the police station and in the presence of the accused was sufficient
in showing compliance with the rules in chain of custody. Marking upon immediate confiscation contemplates even marking at the
nearest police station or office of the apprehending team.
PEOPLE V. TEODORO, G.R. NO. 185164,
JUNE 22, 2009
The chain of custody of the seized prohibited drugs was shown
not to have been broken. After the seizure of the drugs from appellant’s possession, PO1 Climacosa and PO1 Antipasado marked the
two (2) plastic sachets. The plastic sachet that was sold to PO1 Climacosa was marked MC, while the plastic sachet that was recovered
by PO1 Antipasadc was marked MC-1. These plastic sachets containing a white crystalline substance were immediately forwarded
to the PNP Crime Laboratory in EPD for examination to determine
the presence of dangerous drugs. After a qualitative examination
conducted on the specimens, PST Cejes concluded that the white
crystalline substance was positive for methamphetamine hydrochloride (shabu), a dangerous drug. There can be no doubt that the
drugs seized from appellant were the same ones examined in the
crime laboratory. Plainly, the prosecution established the crucial
link in the chain of custody of the seized shabu from the time they
were first discovered until they were brought for examination.
Jurisprudence teems with pronouncements that noncompliance with Section 21 will not render an accused’s arrest illegal or the items seized or confiscated from him inadmissible. Aside from the presumption that the police operatives
regularly performed their duties, they gave consistent and straightforward narrations of what transpired on May 28, 2004 that they
apprehended the appellant in a buy-bust operation, and that upon
being frisked, appellant was also found to be in possession of another sachet containing a white crystalline substance later on found
to be methamphetamine hydrochloride, more popularly known as
shabu.
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PEOPLE V. GUM-OYEN, G.R. NO. 182231,
APRIL 16, 2009
The prosecution’s evidence sufficiently established the
unbroken chain of custody of the seized drugs beginning
from the entrapment
team,
to the investigating officer, to
the forensic chemist whose laboratory tests were offered in
evidence. The chain-of-custody rule requires that the admission of
an exhibit be preceded by evidence sufficient to support a finding
that the matter in question is what the proponent claims it to be.
The arresting officers also strictly complied with the guidelines prescribed by law regarding the custody and control of the seized drugs.
There was testimony regarding the marking of the seized items at
the police station and in the presence of appellant. Likewise there
was mention that an elected official was present during the inventory. In addition, it appears on record that the team photographed
the contraband in accordance with law. Absent any indication that
the police officers were ill-motivated in testifying against appellant,
full credence should be given to their testimonies. In sum, contrary
to appellant’s lone argument, the prosecution established the corpus delicti with moral certainty. Finally, it bears underscoring that
appellant himself admitted that he was carrying marijuana at the
time of his arrest and even though he knew it was against the law to
S0 possess it in any amount.
-
PEOPLE V. LIAMADO, G.R. NO. 185278,
MARCH 13, 2009
The failure on the part of the police officers to take pho-
tographs and make an inventory of the drugs seized from the
appellant was not fatal because the prosecution was able to
preserve the integrity and evidentiary value of the said illegal drugs. PO2 Brubio was able to put the necessary markings on
the sachet of shabu bought from appellant, for identification purposes, immediately after the consummation of the drug sale. He personally delivered the same specimen to the PNP Crime Laboratory for
chemical analysis on the same day the entrapment was conducted.
Lastly, PO2 Brubio was able to identify the said markings in court.
PEOPLE V. MACATINGAG, G.R. NO. 181037,
JANUARY 19, 2009
The seized sachet of shabu was immediately marked for proper
identification and forwarded to the Crime Laboratory for examina-
TITLE FIVE — CRIMES RELATIVE TO OPIUM AND OTHER
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199
tion. The chemistry Report stated that the specimen submitted by
the apprehending officers indeed bore the marking “Exh A MAG
171200-01-04” and that the same gave positive result to the presence of Methamphetamine Hydrochloride. Forensic Chemical Offi-
cer Tria confirmed that she examined the specimen submitted by
the PDEA and that she was the one who prepared the Chemistry
Report No. D-54-04. It is thus evident that the identity of the corpus
delicti has been properly preserved and established by the prosecution.
The integrity of the evidence is presumed to be preserved un-
less there is a showing of bad faith, ill will, or proof that the evidence
has been tampered with. Appellant in this case has the burden
to show that the evidence was tampered or meddled with
to overcome a presumption of regularity in the handling of
exhibits by public officers and a presumption that public officers properly discharge their duties. Appellant failed to
discharge such burden.
This court has held that non-compliance with Section 21, Article IT of RA 9165 will not render an accused’s arrest illegal or the
items seized/confiscated from him inadmissible. What is of utmost
importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be uti-
lized in the determination of the guilt or innocence of the
accused.
PEOPLE V. DEL MONTE, G.R. NO. 179940,
APRIL 23, 2008
Non-compliance with Section 21 will not render an accused’s arrest illegal or the items seized/confiscated from
him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items
as the same would be utilized in the determination of the guilt or
innocence of the accused.
In the case at bar, appellant never questioned the custody and
disposition of the drug that was taken from him. In fact, he stipulated that the drug subject matter of this case was forwarded to PNP
Regional Crime Laboratory Office 3, Malolos, Bulacan for Laboratory examination which examination gave positive result for methamphetamine hydrochloride, a dangerous drug. Thus, the integrity
and the evidentiary value of the drug seized from appellant not to
have been compromised. Similarly, non-compliance with Section 21
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of said law, particularly the making of the inventory and the photographing of the drugs confiscated and/or seized, will not render the
drugs inadmissible in evidence.
Under Section 3 of Rule 128 of the Rules of Court, evidence is
admissible when it is relevant to the issue and is not excluded by the
law or these rules. For evidence to be inadmissible there should be
a law or rule which forbids its reception. Nothing in the law, however, will bring about the non-admissibility of the confiscated and/
or seized drugs due to non-compliance with Section 21 of Republic
Act No. 9165.
The issue therefore, if there is non-compliance with said
section, is not of admissibility, but of weight — evidentiary merit or probative value — to be given the evidence. The
weight to be given by the courts on said evidence depends on the
circumstances obtaining in each case.
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