Professional Documents
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Crimes against the law of nations (3) Violation of Neutrality, under Article
119 The Philippines is not a party
1. Inciting to war or giving motives for to a war but there is a war going on.
reprisals (Art. 118); This may be committed in the light
of the Middle East war.
2. Violation of neutrality (Art. 119);
Elements of proposal to commit treason The persons mentioned in Article 116 are
not limited to mayor, fiscal or governor. Any
1. There is a war in which the person in authority having equivalent
Philippines is involved; jurisdiction, like a provincial commander,
will already negate criminal liability.
2. At least one person decides to
Whether the conspirators are parents or
a. levy war against the children, and the ones who learn the
government; or conspiracy is a parent or child, they are
required to report the same. The reason is
b. adhere to the enemies, that although blood is thicker than water so
giving them aid or comfort; to speak, when it comes to security of the
3. He proposes its execution to some state, blood relationship is always
other persons. subservient to national security. Article 20
does not apply here because the persons
found liable for this crime are not
Article 116. Misprision of Treason considered accessories; they are treated as
principals.
Elements
In the 1994 bar examination, a problem was
1. Offender owes allegiance to the given with respect to misprision of treason.
government, and not a foreigner; The text of the provision simply refers to a
conspiracy to overthrow the government.
The examiner failed to note that this crime
2. He has knowledge of conspiracy to can only be committed in times of war. The
commit treason against the conspiracy adverted to must be treasonous
government; in character. In the problem given, it was
rebellion. A conspiracy to overthrow the
3. He conceals or does not disclose and government is a crime of rebellion because
make known the same as soon as there is no war. Under the Revised Penal
possible to the governor or fiscal of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 119
Elements
Article 119. Violation of Neutrality
1. Offender is a public officer;
Elements
2. He has in his possession the
articles, data or information 1. There is a war in which the Philippines
referred to in paragraph 1 of is not involved;
Article 117, by reason of the
public office he holds;
3. He discloses their contents to 2. There is a regulation issued by a
a representative of a foreign competent authority to enforce
nation. neutrality;
order because during the time that the acts against national security may be
Penal Code was enacted, rebellion was committed abroad and still be punishable
carried out only with bolos and spears; under our law, but it can not be tried under
hence, national security was not really foreign law.
threatened. Now, the threat of rebellion or
internal wars is serious as a national threat.
Article 122. Piracy in general and Mutiny
on the High Seas or in Philippine Waters
Article 120. Correspondence with
Hostile Country Acts punished as piracy
4. Going to the enemy country is Originally, the crimes of piracy and mutiny
prohibited by competent authority. can only be committed in the high seas, that
is, outside Philippine territorial waters. But
in August 1974, Presidential Decree No.
In crimes against the law of nations, the 532 (The Anti-Piracy and Anti-Highway
offenders can be prosecuted anywhere in Robbery Law of 1974) was issued,
the world because these crimes are punishing piracy, but not mutiny, in
considered as against humanity in general, Philippine territorial waters. Thus came
like piracy and mutiny. Crimes against about two kinds of piracy: (1) that which is
national security can be tried only in the punished under the Revised Penal Code if
Philippines, as there is a need to bring the committed in the high seas; and (2) that
offender here before he can be made to which is punished under Presidential
suffer the consequences of the law. The
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 121
But while under Presidential Decree No. Yes. The essence of piracy is one of
532, piracy in Philippine waters could be robbery.
committed by any person, including a
passenger or member of the complement of
a vessel, under the amended article, piracy Elements of mutiny
can only be committed by a person who is
not a passenger nor member of the 1. The vessel is on the high seas or
complement of the vessel irrespective of Philippine waters;
venue. So if a passenger or complement of
the vessel commits acts of robbery in the
2. Offenders are either members of its
high seas, the crime is robbery, not piracy.
complement, or passengers of the
Note, however, that in Section 4 of vessel;
Presidential Decree No. 532, the act of
aiding pirates or abetting piracy is penalized 3. Offenders either
as a crime distinct from piracy. Said section
penalizes any person who knowingly and in a. attack or seize the vessel; or
any manner aids or protects pirates, such
as giving them information about the b. seize the whole or part of the
movement of the police or other peace cargo, its equipment, or
officers of the government, or acquires or personal belongings of the
receives property taken by such pirates, or crew or passengers.
in any manner derives any benefit
therefrom; or who directly or indirectly abets
the commission of piracy. Also, it is Mutiny is the unlawful resistance to a
expressly provided in the same section that superior officer, or the raising of
the offender shall be considered as an commotions and disturbances aboard a
accomplice of the principal offenders and ship against the authority of its commander.
punished in accordance with the Revised
Penal Code. This provision of Presidential Distinction between mutiny and piracy
Decree No. 532 with respect to piracy in
Philippine water has not been incorporated (1) As to offenders
in the Revised Penal Code. Neither may it
be considered repealed by Republic Act No. Mutiny is committed by members of
7659 since there is nothing in the the complement or the passengers
amendatory law is inconsistent with said of the vessel.
section. Apparently, there is still the crime of
abetting piracy in Philippine waters under Piracy is committed by persons who
Presidential Decree No. 532. are not members of the complement
or the passengers of the vessel.
Considering that the essence of piracy is
one of robbery, any taking in a vessel with (2) As to criminal intent
force upon things or with violence or
intimidation against person is employed will In mutiny, there is no criminal intent.
always be piracy. It cannot co-exist with the
crime of robbery. Robbery, therefore,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 122
In piracy, the criminal intent is for qualified mutiny. Mutiny is qualified under
gain. the following circumstances:
3. Offenders either
Republic Act No. 6235 (The Anti Hi-
a. attack or seize the vessel; or Jacking Law)
b. seize the whole or part of the Anti hi-jacking is another kind of piracy
cargo, its equipment., or which is committed in an aircraft. In other
personal belongings of the countries, this crime is known as aircraft
crew or passengers; piracy.
common bar question on this law usually the aircraft. But before they could do
involves number 1. The important thing is anything on the aircraft, alert marshals
that before the anti hi-jacking law can apply, arrested them. What crime was committed?
the aircraft must be in flight. If not in flight,
whatever crimes committed shall be The criminal intent definitely is to
governed by the Revised Penal Code. The take control of the aircraft, which is hi-
law makes a distinction between aircraft of jacking. It is a question now of whether the
a foreign registry and of Philippine registry. anti-hi-jacking law shall govern.
If the aircraft subject of the hi-jack is of
Philippine registry, it should be in flight at The anti hi-jacking law is applicable
the time of the hi-jacking. Otherwise, the in this case. Even if the aircraft is not yet
anti hi-jacking law will not apply and the about to fly, the requirement that it be in
crime is still punished under the Revised flight does not hold true when in comes to
Penal Code. The correlative crime may be aircraft of foreign registry. Even if the
one of grave coercion or grave threat. If problem does not say that all exterior doors
somebody is killed, the crime is homicide or are closed, the crime is hi-jacking. Since
murder, as the case may be. If there are the aircraft is of foreign registry, under the
some explosives carried there, the crime is law, simply usurping or seizing control is
destructive arson. Explosives are by nature enough as long as the aircraft is within
pyro-techniques. Destruction of property Philippine territory, without the requirement
with the use of pyro-technique is destructive that it be in flight.
arson. If there is illegally possessed or
carried firearm, other special laws will apply. Note, however, that there is no hi-
jacking in the attempted stage. This is a
On the other hand, if the aircraft is of special law where the attempted stage is
foreign registry, the law does not require not punishable.
that it be in flight before the anti hi-jacking
law can apply. This is because aircrafts of 2. A Philippine Air Lines aircraft
foreign registry are considered in transit is bound for Davao. While the pilot and co-
while they are in foreign countries. pilot are taking their snacks at the airport
Although they may have been in a foreign lounge, some of the armed men were also
country, technically they are still in flight, there. The pilots were followed by these
because they have to move out of that men on their way to the aircraft. As soon as
foreign country. So even if any of the acts the pilots entered the cockpit, they pulled
mentioned were committed while the out their firearms and gave instructions
exterior doors of the foreign aircraft were where to fly the aircraft. Does the anti hi-
still open, the anti hi-jacking law will already jacking law apply?
govern.
No. The passengers have yet to
Note that under this law, an aircraft is board the aircraft. If at that time, the
considered in flight from the moment all offenders are apprehended, the law will not
exterior doors are closed following apply because the aircraft is not yet in flight.
embarkation until such time when the same Note that the aircraft is of Philippine
doors are again opened for disembarkation. registry.
This means that there are passengers that
boarded. So if the doors are closed to bring 3. While the stewardess of a
the aircraft to the hangar, the aircraft is not Philippine Air Lines plane bound for Cebu
considered as in flight. The aircraft shall be was waiting for the passenger manifest, two
deemed to be already in flight even if its of its passengers seated near the pilot
engine has not yet been started. surreptitiously entered the pilot cockpit. At
gunpoint, they directed the pilot to fly the
aircraft to the Middle East. However, before
the pilot could fly the aircraft towards the
Questions & Answers
Middle East, the offenders were subdued
and the aircraft landed. What crime was
1. The pilots of the Pan Am committed?
aircraft were accosted by some armed men
and were told to proceed to the aircraft to fly The aircraft was not yet in flight.
it to a foreign destination. The armed men Considering that the stewardess was still
walked with the pilots and went on board
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 124
waiting for the passenger manifest, the planted in the aircraft to blow up the aircraft,
doors were still open. Hence, the anti hi- the circumstance will qualify the penalty and
jacking law is not applicable. Instead, the that is not punishable as a separate crime
Revised Penal Code shall govern. The for murder. The penalty is increased under
crime committed was grave coercion or the anti hi-jacking law.
grave threat, depending upon whether or
not any serious offense violence was All other acts outside of the four are merely
inflicted upon the pilot. qualifying circumstances and would bring
about higher penalty. Such acts would not
However, if the aircraft were of constitute another crime. So the killing or
foreign registry, the act would already be explosion will only qualify the penalty to a
subject to the anti hi-jacking law because higher one.
there is no requirement for foreign aircraft to
be in flight before such law would apply.
The reason for the distinction is that as long Questions & Answers
as such aircraft has not returned to its home
base, technically, it is still considered in
transit or in flight. 1. In the course of the hi-jack, a
passenger or complement was shot and
killed. What crime or crimes were
As to numbers 3 and 4 of Republic Act No. committed?
6235, the distinction is whether the aircraft
is a passenger aircraft or a cargo aircraft. The crime remains to be a violation
In both cases, however, the law applies only of the anti hi-jacking law, but the penalty
to public utility aircraft in the Philippines. thereof shall be higher because a
Private aircrafts are not subject to the anti passenger or complement of the aircraft
hi-jacking law, in so far as transporting had been killed. The crime of
prohibited substances are concerned. homicide or murder is not committed.
10. Offending the religious feelings (Art. (1) Detaining a person without legal
133); grounds under;
under Article 125 does not apply because If he does not want to waive this in writing,
the arrest was made by virtue of a warrant the arresting officer will have to comply with
of arrest. Article 125 and file the case immediately in
court without preliminary investigation. In
such case, the arrested person, within five
When a person is arrested without a days after learning that the case has been
warrant, it means that there is no case filed filed in court without preliminary
in court yet. If the arresting officer would investigation, may ask for preliminary
hold the arrested person there, he is investigation. In this case, the public officer
actually depriving the arrested of his right to who made the arrest will no longer be liable
bail. As long as there is no charge in the for violation of Article 125.
court yet, the arrested person cannot obtain
bail because bail may only be granted by
the court. The spirit of the law is to have Question & Answer
the arrested person delivered to the
jurisdiction of the court.
The arrest of the suspect was done
If the arrest is by virtue of a warrant, it in Baguio City. On the way to Manila, where
means that there is already a case filed in the crime was committed, there was a
court. When an information is filed in court, typhoon so the suspect could not be
the amount of bail recommended is stated. brought to Manila until three days later.
The accused person is not really denied his Was there a violation of Article 125?
right to bail. Even if he is interrogated in the
police precinct, he can already file bail. There was a violation of Article 125.
The crime committed was arbitrary
Note that delivery of the arrested person to detention in the form of delay in the delivery
the proper authorities does not mean of arrested person to the proper judicial
physical delivery or turn over of arrested authority. The typhoon or flood is a matter
person to the court. It simply means putting of defense to be proved by the accused, the
the arrested person under the jurisdiction of arresting officer, as to whether he is liable.
the court. This is done by filing the In this situation, he may be exempt under
necessary complaint or information against paragraph 7 of Article 12.
the person arrested in court within the
period specified in Article 125. The purpose
of this is for the court to determine whether Before Article 125 may be applied, it is
the offense is bailable or not and if bailable, necessary that initially, the detention of the
to allow him the right to bail. arrested person must be lawful because the
arrest is based on legal grounds. If the
Under the Rule 114 of the Revised Rules of arrest is made without a warrant, this
Court, the arrested person can demand constitutes an unlawful arrest. Article 269,
from the arresting officer to bring him to any not Article 125, will apply. If the arrest is not
judge in the place where he was arrested based on legal grounds, the arrest is pure
and post the bail here. Thereupon, the and simple arbitrary detention. Article 125
arresting officer may release him. The contemplates a situation where the arrest
judge who granted the bail will just forward was made without warrant but based on
the litimus of the case to the court trying his legal grounds. This is known as citizens
case. The purpose is in order to deprive arrest.
the arrested person of his right to post the
bail.
Article 126. Delaying Release
Under the Revised Rules of Court, when
the person arrested is arrested for a crime Acts punished
which gives him the right to preliminary
investigation and he wants to avail his right 1. Delaying the performance of a
to a preliminary investigation, he would judicial or executive order for the
have to waive in writing his rights under release of a prisoner;
Article 125 so that the arresting officer will
not immediately file the case with the court 2. Unduly delaying the service of the
that will exercise jurisdiction over the case. notice of such order to said prisoner;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 129
search therein for papers or other the plain view doctrine, public officer
effects. should be legally entitled to be in the
place where the effects were found.
If he entered the place illegally and
Circumstances qualifying the offense he saw the effects, doctrine
inapplicable; thus, he is liable for
1. If committed at nighttime; or violation of domicile.
2. If any papers or effects not (2) Public officer who enters with
constituting evidence of a crime are consent searches for paper and
not returned immediately after the effects without the consent of the
search made by offender. owner. Even if he is welcome in the
dwelling, it does not mean he has
permission to search.
Under Title IX (Crimes against Personal
Liberty and Security), the corresponding (3) Refusing to leave premises after
article is qualified trespass to dwelling surreptitious entry and being told to
under Article 280. Article 128 is limited to leave the same. The act punished
public officers. The public officers who may is not the entry but the refusal to
be liable for crimes against the fundamental leave. If the offender upon being
laws are those who are possessed of the directed to eave, followed and left,
authority to execute search warrants and there is no crime of violation of
warrants of arrests. domicile. Entry must be done
surreptitiously; without this, crime
Under Rule 113 of the Revised Rules of may be unjust vexation. But if
Court, when a person to be arrested enters entering was done against the will of
a premise and closes it thereafter, the the occupant of the house, meaning
public officer, after giving notice of an there was express or implied
arrest, can break into the premise. He shall prohibition from entering the same,
not be liable for violation of domicile. even if the occupant does not direct
him to leave, the crime of is already
There are only three recognized instances committed because it would fall in
when search without a warrant is number 1.
considered valid, and, therefore, the seizure
of any evidence done is also valid. Outside
of these, search would be invalid and the Questions & Answers
objects seized would not be admissible in
evidence.
1. It was raining heavily. A
(1) Search made incidental to a valid policeman took shelter in one persons
arrest; house. The owner obliged and had his
daughter serve the police some coffee. The
(2) Where the search was made on a policeman made a pass at the daughter.
moving vehicle or vessel such that The owner of the house asked him to leave.
the exigency of he situation prevents Does this fall under Article 128?
the searching officer from securing a
search warrant; No. It was the owner of the house
who let the policeman in. The entering is
(3) When the article seized is within not surreptitious.
plain view of the officer making the
seizure without making a search 2. A person surreptitiously
therefore. enters the dwelling of another. What crime
or crimes were possibly committed?
There are three ways of committing the
violation of Article 128: The crimes committed are (1)
qualified trespass to dwelling under Article
(1) By simply entering the dwelling of 280, if there was an express or implied
another if such entering is done prohibition against entering. This is
against the will of the occupant. In tantamount to entering against the will of
the owner; and (2) violation of domicile in
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 131
3. He searches the domicile, papers or (3) When the public officer employs
other belongings of any person; unnecessary or excessive severity in
the implementation of the search
4. The owner, or any members of his warrant. The search warrant is not a
family, or two witnesses residing in license to commit destruction.
the same locality are not present.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 132
(4) Owner of dwelling or any member of particular place which he dictates defeats
the family was absent, or two the exercise of the right to peaceably
witnesses residing within the same assemble, Article 131 is violated.
locality were not present during the
search. At the beginning, it may happen that the
assembly is lawful and peaceful. If in the
course of the assembly the participants
Article 131. Prohibition, Interruption, commit illegal acts like oral defamation or
and Dissolution of Peaceful Meetings inciting to sedition, a public officer or law
enforcer can stop or dissolve the meeting.
Elements The permit given is not a license to commit
a crime.
1. Offender is a public officer or employee;
There are two criteria to determine whether
Article 131 would be violated:
2. He performs any of the following acts:
(1) Dangerous tendency rule
a. prohibiting or by interrupting, applicable in times of national unrest
without legal ground, the such as to prevent coup detat.
holding of a peaceful
meeting, or by dissolving the (2) Clear and present danger rule
same; applied in times of peace. Stricter
rule.
b. hindering any person from
joining any lawful Distinctions between prohibition,
association, or attending any interruption, or dissolution of peaceful
of its meetings; meetings under Article 131, and tumults and
other disturbances, under Article 153
c. prohibiting or hindering any
person from addressing, (1) As to the participation of the public
either alone or together with officer
others, any petition to the
authorities for the correction In Article 131, the public officer is
of abuses or redress of not a participant. As far as the
grievances. gathering is concerned, the public
officer is a third party.
But the requiring of the permit shall be in In Article 131, the offender must be
exercise only of the governments a public officer and, without any
regulatory powers and not really to prevent legal ground, he prohibits, interrupts,
peaceful assemblies as the public may or dissolves a peaceful meeting or
desire. Permit is only necessary to regulate assembly to prevent the offended
the peace so as not to inconvenience the party from exercising his freedom of
public. The permit should state the day, speech and that of the assembly to
time and the place where the gathering may petition a grievance against the
be held. This requirement is, therefore, government.
legal as long as it is not being exercised in
as a prohibitory power. In Article 153, the offender need not
be a public officer. The essence of
If the permit is denied arbitrarily, Article 131 the crime is that of creating a
is violated. If the officer would not give the serious disturbance of any sort in a
permit unless the meeting is held in a
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 133
TITLE III. CRIMES AGAINST PUBLIC 20. Delivering prisoners from jails (Art.
ORDER 156);
the People v. Hernandez. So the Supreme component crimes of rebellion which is why
Court invited attention to this fact and thus Article 48 on complex crimes is
stated: inapplicable. In amending Article135, the
acts which used to be component crimes of
There is a an apparent need to restructure rebellion, like serious acts of violence, have
the law on rebellion, either to raise the been deleted. These are now distinct
penalty therefore or to clearly define and crimes. The legal obstacle for the
delimit the other offenses to be considered application of Article 48, therefore, has been
absorbed thereby, so that it cannot be removed. Ortega says legislators want to
conveniently utilized as the umbrella for punish these common crimes independently
every sort of illegal activity undertaken in its of rebellion. Ortega cites no case
name. The court has no power to effect overturning Enrile v. Salazar.
such change, for it can only interpret the
law as it stands at any given time, and what In People v. Rodriguez, 107 Phil. 569, it
is needed lies beyond interpretation. was held that an accused already convicted
Hopefully, Congress will perceive the need of rebellion may not be prosecuted further
for promptly seizing the initiative in this for illegal possession of firearm and
matter, which is purely within its province. ammunition, a violation of Presidential
Decree No. 1866, because this is a
Obviously, Congress took notice of this necessary element or ingredient of the
pronouncement and, thus, in enacting crime of rebellion with which the accused
Republic Act No. 6968, it did not only was already convicted.
provide for the crime of coup detat in the
Revised Penal Code but moreover, deleted However, in People v. Tiozon, 198 SCRA
from the provision of Article 135 that portion 368, it was held that charging one of illegal
referring to those possession of firearms in furtherance of
rebellion is proper because this is not a
who, while holding any public office or charge of a complex crime. A crime under
employment takes part therein [rebellion or the Revised Penal Code cannot be
insurrection], engaging in war against the absorbed by a statutory offense.
forces of government, destroying property In People v. de Gracia, it was ruled that
or committing serious violence, exacting illegal possession of firearm in
contributions or diverting public funds from furtherance of rebellion under
the lawful purpose for which they have been Presidential Decree No. 1866 is
appropriated distinct from the crime of rebellion
under the Revised Penal Code and,
Hence, overt acts which used to be therefore, Article 135 (2) of the
punished as components of the crime of Revised Penal Code should not
rebellion have been severed therefrom by apply. The offense of illegal
Republic Act No. 6968. The legal possession of firearm is a malum
impediment to the application of Article 48 prohibitum, in which case, good faith
to rebellion has been removed. After the and absence of criminal intent are
amendment, common crimes involving not valid defenses.
killings, and/or destructions of property,
even though committed by rebels in In People v. Lobedioro, an NPA cadre
furtherance of rebellion, shall bring about killed a policeman and was convicted for
complex crimes of rebellion with murder. He appealed invoking rebellion.
murder/homicide, or rebellion with robbery, The Supreme Court found that there was no
or rebellion with arson as the case may be. evidence shown to further the end of the
NPA movement. It held that there must be
To reiterate, before Article 135 was evidence shown that the act furthered the
amended, a higher penalty is imposed cause of the NPA; it is not enough to say it.
when the offender engages in war against
the government. "War" connotes anything Rebellion may be committed even without a
which may be carried out in pursuance of single shot being fired. No encounter
war. This implies that all acts of war or needed. Mere public uprising with arms
hostilities like serious violence and enough.
destruction of property committed on
occasion and in pursuance of rebellion are
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 136
Article 135, as amended, has two penalties: 4. The purpose of the attack is to seize
a higher penalty for the promoters, heads or diminish state power.
and maintainers of the rebellion; and a
lower penalty for those who are only
followers of the rebellion. The essence of the crime is a swift attack
upon the facilities of the Philippine
Distinctions between rebellion and sedition government, military camps and
installations, communication networks,
(1) As to nature public utilities and facilities essential to the
continued possession of governmental
In rebellion, there must be taking up powers. It may be committed singly or
or arms against the government. collectively and does not require a multitude
of people. The objective may not be to
In sedition, it is sufficient that the overthrow the government but only to
public uprising be tumultuous. destabilize or paralyze the government
through the seizure of facilities and utilities
(2) As to purpose essential to the continued possession and
exercise of governmental powers. It
In rebellion, the purpose is always requires as principal offender a member of
political. the AFP or of the PNP organization or a
public officer with or without civilian support.
In sedition, the purpose may be Finally, it may be carried out not only by
political or social. Example: the force or violence but also through stealth,
uprising of squatters against Forbes threat or strategy.
park residents. The purpose in
sedition is to go against established
government, not to overthrow it. Persons liable for rebellion, insurrection or
coup d' etat under Article 135
When any of the objectives of rebellion is
pursued but there is no public uprising in 1. The leaders
the legal sense, the crime is direct assault
of the first form. But if there is rebellion, a. Any person who promotes,
with public uprising, direct assault cannot maintains or heads a
be committed. rebellion or insurrection; or
Persons liable for sedition under Article 140 Considering that the objective of sedition is
to express protest against the government
1. The leader of the sedition; and and in the process creating hate against
public officers, any act that will generate
2. Other person participating in the hatred against the government or a public
sedition. officer concerned or a social class may
amount to Inciting to sedition. Article 142 is,
therefore, quite broad.
Article 141. Conspiracy to Commit
Sedition The mere meeting for the purpose of
discussing hatred against the government is
In this crime, there must be an agreement inciting to sedition. Lambasting government
and a decision to rise publicly and officials to discredit the government is
tumultuously to attain any of the objects of Inciting to sedition. But if the objective of
sedition. such preparatory actions is the overthrow of
the government, the crime is inciting to
There is no proposal to commit sedition. rebellion.
Article 142. Inciting to Sedition Article 143. Acts Tending to Prevent the
Meeting of the Congress of the
Acts punished Philippines and Similar Bodies
Elements Elements
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 139
Elements
Article 146. Illegal Assemblies
1. Offender uses force,
intimidation, threats or fraud; Acts punished
Article 148. Direct Assault The crime is not based on the material
consequence of the unlawful act. The
Acts punished crime of direct assault punishes the spirit of
lawlessness and the contempt or hatred for
1. Without public uprising, by the authority or the rule of law.
employing force or intimidation for
the attainment of any of the To be specific, if a judge was killed while he
purposes enumerated in defining the was holding a session, the killing is not the
crimes of rebellion and sedition; direct assault, but murder. There could be
direct assault if the offender killed the judge
Elements simply because the judge is so strict in the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 142
fulfillment of his duty. It is the spirit of hate Agent of a person in authority is any person
which is the essence of direct assault. who by direct provision of law or
by election or by appointment by
So, where the spirit is present, it is always competent authority, is charged
complexed with the material consequence with the maintenance of public
of the unlawful act. If the unlawful act was order and the protection and
murder or homicide committed under security of life and property, such
circumstance of lawlessness or contempt of as a barangay councilman, barrio
authority, the crime would be direct assault policeman, barangay leader and
with murder or homicide, as the case may any person who comes to the aid
be. In the example of the judge who was of a person in authority.
killed, the crime is direct assault with
murder or homicide. In applying the provisions of Articles 148
and 151, teachers, professors, and persons
The only time when it is not complexed is charged with the supervision of public or
when material consequence is a light duly recognized private schools, colleges
felony, that is, slight physical injury. Direct and universities and lawyers in the actual
assault absorbs the lighter felony; the crime performance of their duties or on the
of direct assault can not be separated from occasion of such performance, shall be
the material result of the act. So, if an deemed a person in authority.
offender who is charged with direct assault
and in another court for the slight physical In direct assault of the first form, the stature
Injury which is part of the act, acquittal or of the offended person is immaterial. The
conviction in one is a bar to the prosecution crime is manifested by the spirit of
in the other. lawlessness.
Example of the first form of direct assault: In the second form, you have to distinguish
a situation where a person in authority or
Three men broke into a National Food his agent was attacked while performing
Authority warehouse and lamented official functions, from a situation when he
sufferings of the people. They called on is not performing such functions. If attack
people to help themselves to all the rice. was done during the exercise of official
They did not even help themselves to a functions, the crime is always direct assault.
single grain. It is enough that the offender knew that the
person in authority was performing an
The crime committed was direct assault. official function whatever may be the reason
There was no robbery for there was no for the attack, although what may have
intent to gain. The crime is direct assault by happened was a purely private affair.
committing acts of sedition under Article
139 (5), that is, spoiling of the property, for On the other hand, if the person in authority
any political or social end, of any person or the agent was killed when no longer
municipality or province or the national performing official functions, the crime may
government of all or any its property, but simply be the material consequence of he
there is no public uprising. unlawful act: murder or homicide. For the
crime to be direct assault, the attack must
Person in authority is any person directly be by reason of his official function in the
vested with jurisdiction, whether past. Motive becomes important in this
as an individual or as a member respect. Example, if a judge was killed
of some court or government while resisting the taking of his watch, there
corporation, board, or is no direct assault.
commission. A barangay
chairman is deemed a person in In the second form of direct assault, it is
authority. also important that the offended party knew
that the person he is attacking is a person
in authority or an agent of a person in
authority, performing his official functions.
No knowledge, no lawlessness or contempt.
For example, if two persons were quarreling
and a policeman in civilian clothes comes
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 143
and stops them, but one of the protagonists Subcommittees, by the Constitutional
stabs the policeman, there would be no Commissions, Its Committees,
direct assault unless the offender knew that Subcommittees or Divisions
he is a policeman.
Acts punished
In this respect it is enough that the offender
should know that the offended party was 1. By refusing, without legal excuse, to
exercising some form of authority. It is not obey summons of Congress, its
necessary that the offender knows what is special or standing committees and
meant by person in authority or an agent of subcommittees, the Constitutional
one because ignorantia legis non excusat. Commissions and its committees,
subcommittees or divisions, or by
any commission or committee
Article 149. Indirect Assault chairman or member authorized to
summon witnesses;
Elements
2. By refusing to be sworn or placed
1. A person in authority or his agent is under affirmation while being before
the victim of any of the forms of such legislative or constitutional
direct assault defined in Article 148; body or official;
Distinction between resistance or serious Who are deemed persons in authority and
disobedience and direct assault agents of persons in authority under Article
152
1. In resistance, the person in authority
or his agent must be in actual A person in authority is one directly vested
performance of his duties. with jurisdiction, that is, the power and
authority to govern and execute the laws.
In direct assault, the person in
authority or his agent must be An agent of a person in authority is one
engaged in the performance of charged with (1) the maintenance of public
official duties or that he is assaulted order and (2) the protection and security of
by reason thereof. life and property.
Article 153. Tumults and Other The disturbance of the pubic order is
Disturbances of Public Order tumultuous and the penalty is increased if it
is brought about by armed men. The term
Acts punished armed does not refer to firearms but
includes even big stones capable of
1. Causing any serious disturbance in causing grave injury.
a public place, office or
establishment; It is also disturbance of the public order if a
convict legally put to death is buried with
2. Interrupting or disturbing pomp. He should not be made out as a
performances, functions or martyr; it might incite others to hatred.
gatherings, or peaceful meetings, if
the act is not included in Articles 131
and 132; Article 154. Unlawful Use of Means of
Publication and Unlawful Utterances
3. Making any outcry tending to incite
rebellion or sedition in any meeting, Acts punished
association or public place;
1. Publishing or causing to be
4. Displaying placards or emblems published, by means of printing,
which provoke a disturbance of lithography or any other means of
public order in such place; publication, as news any false news
which may endanger the public
5. Burying with pomp the body of a order; or cause damage to the
person who has been legally interest or credit of the State;
executed.
2. Encouraging disobedience to the law
or to the constituted authorities or
The essence is creating public disorder. praising, justifying or extolling any
This crime is brought about by creating act punished by law, by the same
serious disturbances in public places, public means or by words, utterances or
buildings, and even in private places where speeches;
public functions or performances are being
held. 3. Maliciously publishing or causing to
be published any official resolution
For a crime to be under this article, it must or document without proper
not fall under Articles 131 (prohibition, authority, or before they have been
interruption, and dissolution of peaceful published officially;
meetings) and 132 (interruption of religious
worship). 4. Printing, publishing or distributing (or
causing the same) books,
In the act of making outcry during speech pamphlets, periodicals, or leaflets
tending to incite rebellion or which do not bear the real printers
sedition, the situation must be name, or which are classified as
distinguished from inciting to anonymous.
sedition or rebellion. If the speaker,
even before he delivered his Actual public disorder or actual damage to
speech, already had the criminal the credit of the State is not necessary.
intent to incite the listeners to rise
to sedition, the crime would be Republic Act No. 248 prohibits the
inciting to sedition. However, if the reprinting, reproduction or republication of
offender had no such criminal government publications and official
intent, but in the course of his documents without previous authority.
speech, tempers went high and so
the speaker started inciting the
audience to rise in sedition against Article 155. Alarms and Scandals
the government, the crime is
disturbance of the public order. Acts punished
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 146
1. Discharging any firearm, rocket, The crime alarms and scandal is only one
firecracker, or other explosive within crime. Do not think that alarms and
any town or public place, calculated scandals are two crimes.
to cause (which produces) alarm of
danger; Scandal here does not refer to moral
scandal; that one is grave scandal in Article
2. Instigating or taking an active part in 200. The essence of the crime is
any charivari or other disorderly disturbance of public tranquility and public
meeting offensive to another or peace. So, any kind of disturbance of
prejudicial to public tranquility; public order where the circumstance at the
time renders the act offensive to the
3. Disturbing the public peace while tranquility prevailing, the crime is
wandering about at night or while committed.
engaged in any other nocturnal
amusements; Charivari is a mock serenade wherein the
supposed serenaders use broken
4. Causing any disturbance or scandal cans, broken pots, bottles or other
in public places while intoxicated or utensils thereby creating discordant
otherwise, provided Article 153 in not notes. Actually, it is producing noise,
applicable. not music and so it also disturbs
public tranquility. Understand the
nature of the crime of alarms and
When a person discharges a firearm in scandals as one that disturbs public
public, the act may constitute any of the tranquility or public peace. If the
possible crimes under the Revised Penal annoyance is intended for a particular
Code: person, the crime is unjust vexation.
In Araneta v. Court of Appeals, it was held Penalty of arresto mayor if other means are
that if a person is shot at and is used.
wounded, the crime is automatically
attempted homicide. Intent to kill is Penalty decreased to the minimum period if
inherent in the use of the deadly the escape of the prisoner shall take place
weapon. outside of said establishments by taking the
guards by surprise.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 147
3. Making and importing and uttering 19. False testimony against a defendant
false coins (Art. 163); (Art. 180);
5. Selling of false or mutilated coins, 21. False testimony in civil cases (Art.
without connivance (Art. 165); 182);
6. Forging treasury or bank notes or 22. False testimony in other cases and
other documents payable to bearer, perjury (Art. 183);
importing and uttering of such false
or forged notes and documents (Art. 23. Offering false testimony in evidence
166); (Art. 184);
of the crime under this title is that which Kinds of coins the counterfeiting of which is
defraud the public in general. There is punished
deceit perpetrated upon the public. This is
the act that is being punished under this 1. Silver coins of the Philippines or
title. coins of the Central Bank of the
Philippines;
Article 161. Counterfeiting the Great 2. Coins of the minor coinage of the
Seal of the Government of the Philippine Philippines or of the Central Bank of
Islands, Forging the Signature or Stamp the Philippines;
of the Chief Executive
3. Coin of the currency of a foreign
Acts punished country.
Article 163. Making and Importing and (3) Falsification can only be
Uttering False Coins committed in respect of documents.
Elements
In so far as coins in circulation are
1. There be false or counterfeited concerned, there are two crimes that may
coins; be committed:
The offender must deliberately reduce the without the Bagong Lipunan sign on them
precious metal in the coin. Deliberate intent will no longer be recognized. Because of
arises only when the offender collects the this, the people had no choice but to
precious metal dust from the mutilated coin. surrender their money to banks and
If the offender does not collect such dust, exchange them with those with the Bagong
intent to mutilate is absent, but Presidential Lipunan sign on them. However, people
Decree No. 247 will apply. who came up with a lot of money were also
being charged with hoarding for which
reason certain printing presses did the
Presidential Decree No. 247 stamping of the Bagong Lipunan sign
(Defacement, Mutilation, Tearing, themselves to avoid prosecution. Was
Burning or Destroying Central Bank there a violation of Presidential Decree No.
Notes and Coins) 247?
It shall be unlawful for any person to willfully Yes. This act of the printing presses
deface, mutilate, tear, burn, or destroy in is a violation of Presidential Decree No.
any manner whatsoever, currency notes 247.
and coins issued by the Central Bank.
4. An old woman who was a
cigarette vendor in Quiapo refused to
Mutilation under the Revised Penal Code is accept one-centavo coins for payment of
true only to coins. It cannot be a crime the vendee of cigarettes he purchased.
under the Revised Penal Code to mutilate Then came the police who advised her that
paper bills because the idea of mutilation she has no right to refuse since the coins
under the code is collecting the precious are of legal tender. On this, the old woman
metal dust. However, under Presidential accepted in her hands the one-centavo
Decree No. 247, mutilation is not limited to coins and then threw it to the face of the
coins. vendee and the police. Was the old woman
guilty of violating Presidential Decree No.
247?
Questions & Answers
She was guilty of violating
Presidential Decree No. 247 because if no
1. The people playing cara y one ever picks up the coins, her act would
cruz, before they throw the coin in the air result in the diminution of the coin in
would rub the money to the sidewalk circulation.
thereby diminishing the intrinsic value of the
coin. Is the crime of mutilation committed? 5. A certain customer in a
restaurant wanted to show off and used a P
Mutilation, under the Revised Penal 20.00 bill to light his cigarette. Was he
Code, is not committed because they do not guilty of violating Presidential Decree No.
collect the precious metal content that is 247?
being scraped from the coin. However, this
will amount to violation of Presidential He was guilty of arrested for
Decree No. 247. violating of Presidential Decree No. 247.
Anyone who is in possession of defaced
2. When the image of Jose money is the one who is the violator of
Rizal on a five-peso bill is transformed into Presidential Decree No. 247. The intention
that of Randy Santiago, is there a violation of Presidential Decree No. 247 is not to
of Presidential Decree No. 247? punish the act of defrauding the public but
what is being punished is the act of
Yes. Presidential Decree No. 247 is destruction of money issued by the Central
violated by such act. Bank of the Philippines.
So, if the act of mutilating coins does not Article 167. Counterfeiting, Importing,
involve gathering dust like playing cara y and Uttering Instruments Not Payable to
cruz, that is not mutilation under the Bearer
Revised Penal Code because the offender
does not collect the metal dust. But by Elements
rubbing the coins on the sidewalk, he also
defaces and destroys the coin and that is 1. There is an instrument payable to order
punishable under Presidential Decree No. or other documents of credit not
247. payable to bearer;
Elements 3. He either
means the figures, letters, words, or Sweepstakes Office. But the alteration is so
sign contained therein. crude that even a child can notice that the
supposed digit is merely superimposed on
the digit that was scraped. Was the old
Forgery under the Revised Penal Code man guilty of forgery?
applies to papers, which are in the form of
obligations and securities issued by the Because of the impossibility of
Philippine government as its own deceiving whoever would be the person to
obligations, which is given the same status whom that ticket is presented, the Supreme
as legal tender. Generally, the word Court ruled that what was committed was
counterfeiting is not used when it comes an impossible crime. Note, however, that
to notes; what is used is forgery. the decision has been criticized. In a case
Counterfeiting refers to money, whether like this, the Supreme Court of Spain ruled
coins or bills. that the crime is frustrated. Where the
alteration is such that nobody would be
The Revised Penal Code defines forgery deceived, one could easily see that it is a
under Article 169. Notice that mere change forgery, the crime is frustrated because he
on a document does not amount to this has done all the acts of execution which
crime. The essence of forgery is giving a would bring about the felonious
document the appearance of a true and consequence but nevertheless did not
genuine document. Not any alteration of a result in a consummation for reasons
letter, number, figure or design would independent of his will.
amount to forgery. At most, it would only be
frustrated forgery. 3. A person has a twenty-peso
bill. He applied toothache drops on one
When what is being counterfeited is side of the bill. He has a mimeograph paper
obligation or securities, which under the similar in texture to that of the currency note
Revised Penal Code is given a status of and placed it on top of the twenty-peso bill
money or legal tender, the crime committed and put some weight on top of the paper.
is forgery. After sometime, he removed it and the
printing on the twenty-peso bill was
reproduced on the mimeo paper. He took
the reverse side of the P20 bill, applied
Questions & Answers
toothache drops and reversed the mimeo
paper and pressed it to the paper. After
1. Instead of the peso sign (P), sometime, he removed it and it was
somebody replaced it with a dollar sign ($). reproduced. He cut it out, scraped it a little
Was the crime of forgery committed? and went to a sari-sari store trying to buy a
cigarette with that bill. What he overlooked
No. Forgery was not committed. was that, when he placed the bill, the
The forged instrument and currency note printing was inverted. He was apprehended
must be given the appearance of a true and and was prosecuted and convicted of
genuine document. The crime committed is forgery. Was the crime of forgery
a violation of Presidential Decree No. 247. committed?
Where the currency note, obligation or
security has been changed to make it The Supreme Court ruled that it was
appear as one which it purports to be as only frustrated forgery because although
genuine, the crime is forgery. In checks or the offender has performed all the acts of
commercial documents, this crime is execution, it is not possible because by
committed when the figures or words are simply looking at the forged document, it
changed which materially alters the could be seen that it is not genuine. It can
document. only be a consummated forgery if the
document which purports to be genuine is
2. An old man, in his desire to given the appearance of a true and genuine
earn something, scraped a digit in a losing document. Otherwise, it is at most
sweepstakes ticket, cut out a digit from frustrated.
another ticket and pasted it there to match
the series of digits corresponding to the Article 170. Falsification of Legislative
winning sweepstakes ticket. He presented Documents
this ticket to the Philippine Charity
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 156
Elements
The words "municipal council" should
include the city council or municipal board 1. Offender is a public officer,
Reyes. employee, or notary public;
Acts punished
Article 174. False Medical Certificates,
1. Uttering fictitious wireless, telegraph False Certificates of Merits or Service,
or telephone message; Etc.
Acts punished
Article 176. Manufacturing and
Possession of Instruments or 1. Using fictitious name
Implements for Falsification
Elements
Acts punished
1. Offender uses a name other
1. Making or introducing into the than his real name;
Philippines any stamps, dies, marks,
or other instruments or implements 2. He uses the fictitious name
for counterfeiting or falsification; publicly;
Article 178. Using Fictitious Name and 2. The insignia, uniforms or dress pertains
Concealing True Name to an office not held by such person
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 161
2. False testimony in civil case under 3. Offender makes a willful and deliberate
Article 182; assertion of a falsehood in the
statement or affidavit;
3. False testimony in other cases under
Article 183. 4. The sworn statement or affidavit
containing the falsity is required by
law, that is, it is made for a legal
Article 181. False Testimony Favorable purpose.
to the Defendant
Republic Act No. 8293 (An Act 168.1. Any person who has
Prescribing the Intellectual Property identified in the mind of the public the goods
Code and Establishing the Intellectual he manufactures or deals in, his business or
Property Office, Providing for Its Power services from those of others, whether or
and Functions, and for Other Purposes) not a registered mark is employed, has a
property right in the goodwill of the said
Section 170. Penalties. goods, business or service so identified,
Independent of the civil and administrative which will be protected in the same manner
sanctions imposed by law, a criminal as other property rights.
penalty of imprisonment from two (2) years
to five (5) years and a fine ranging from Fifty 168.2. Any person who shall employ
thousand pesos (P 50,000.00) to Two deception or any other means contrary to
hundred thousand pesos (P 200,000.00), good faith by which he shall pass off the
shall be imposed on any person who is goods manufactured by him or in which he
found guilty of committing any of the acts deals, or his business, or services for those
mentioned in Section 155, Section 168 and of the one having established such goodwill,
Subsection 169.1. or who shall commit any acts calculated to
produce said result, shall be guilty of unfair
Section 155. Remedies; competition, and shall be subject to an
Infringement. Any person who shall, action therefor.
without the consent of the owner of the
registered mark: 168.3. In particular, and without in
any way limiting the scope of protection
155.1. Use in commerce any against unfair competition, the following
reproduction, counterfeit, copy, or colorable shall be deemed guilty of unfair competition:
imitation of a registered mark or the same
container or a dominant feature thereof in (a) Any person, who is selling
connection with the sale, offering for sale, his goods and gives them the general
distribution, advertising of any goods or appearance of goods of another
services including other preparatory steps manufacturer or dealer, either as to the
necessary to carry out the sale of any goods goods themselves or in the wrapping of the
or services on or in connection with which packages in which they are contained, or
such use is likely to course confusion, or to the devices or words thereon, on in any
cause mistake, or to deceive; or other feature or their appearance, which
would be likely to influence purchasers to
155.2. Reproduce, counterfeit, copy believe that the goods offered are those of a
or colorably imitate a registered mark or a manufacturer or dealer, other than the
dominant feature thereof and apply such actual manufacturer or dealer, or who
reproduction, counterfeit, copy or colorable otherwise clothes the goods with such
imitation to labels, signs, prints, packages, appearance as shall deceive the public and
wrappers, receptacles or advertisement defraud another of his legitimate trade, or
intended to be used in commerce upon or in any subsequent vendor of such goods or
connection with the sale, offering for sale, any agent of any vendor engaged in selling
distribution, or advertising of goods or such goods with a like purpose; or
services on or in connection with which
such use is likely to cause confusion, or to (b) Any person who by any
cause mistake, or to deceive shall be liable artifice, or device, or who employs any other
in a civil action for infringement by the means calculated to induce the false belief
registrant for the remedies hereinafter set that such person is offering the services of
forth: Provided, that the infringement takes another who ahs identified such services in
place at the moment any of the acts stated the mind of the public; or
in Subsection 155.1 or this subsection are
committed regardless of whether there is (c) Any person who shall make
actual sale of goods or services using the any false statement in the course of trade or
infringing material. who shall commit any other act contrary to
good faith of a nature calculated to discredit
Section 168. Unfair Competition, the goods, business or services of another.
Rights, Regulation and Remedies.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 165
Acts punished by the Republic Act No. 6425 1. Gambling (Art. 195);
3. Maintenance of a den, dive or resort for 4. Illegal betting on horse races (Art. 198);
prohibited drug users;
5. Illegal cockfighting (Art. 199);
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 166
a. any game of monte, jueteng, Note that possession of any lottery ticket or
or any other form of lottery, advertisement is prima facie evidence of an
policy, banking, or intent to sell, distribute or use the same in
percentage game, dog races, the Philippines.
or any other game or scheme
the results of which depend
wholly or chiefly upon chance Article 197. Betting in Sport Contests
or hazard; or wherein wagers
consisting of money, articles This article has been repealed by
of value, or representative of Presidential Decree No. 483 (Betting,
value are made; or Game-fixing or Point-shaving and
Machinations in Sport Contests):
b. the exploitation or use of any
other mechanical invention or Section 2. Betting, game-fixing,
contrivance to determine by point-shaving or game machination
chance the loser or winner of unlawful. Game-fixing, point-shaving,
money or any object or game machination, as defined in the
representative of value; preceding section, in connection with the
games of basketball, volleyball, softball,
2. Knowingly permitting any form of baseball; chess, boxing bouts, jai-alia, sipa,
gambling to be carried on in any pelota and all other sports contests, games
place owned or controlled by the or races; as well as betting therein except
offender; as may be authorized by law, is hereby
declared unlawful.
3. Being maintainer, conductor, or
banker in a game of jueteng or
similar game; Article 198. Illegal Betting on Horse
Race
4. Knowingly and without lawful
purpose possessing lottery list, Acts punished
paper, or other matter containing
letters, figures, signs or symbol 1. Betting on horse races during periods
which pertain to or are in any not allowed by law;
manner used in the game of jueteng
or any similar game. 2. Maintaining or employing a totalizer or
other device or scheme for betting
on races or realizing profit therefrom
Article 196. Importation, Sale and during the periods not allowed by
Possession of Lottery Tickets or law.
Advertisements
Pesos shall be imposed upon any person prolonging of the wake of the dead by
who shall knowingly and without lawful gambling lords.
purpose in any hour of any day shall have in
his possession any lottery list, paper, or As a general rule, betting or wagering
other matter containing letter, figures, signs determines whether a game is gambling or
or symbols which pertain to or in any not. Exceptions: These are games which
manner used in the game of jueteng, jai-alai are expressly prohibited even without bets.
or horse racing bookies and similar game or Monte, jueteng or any form of lottery; dog
lottery which has taken place or about to races; slot machines; these are habit-
take place. forming and addictive to players, bringing
about the pernicious effects to the family
Section 2. Barangay Official. and economic life of the players.
Any barangay official in whose jurisdiction
such gambling house is found and which Mere possession of lottery tickets or lottery
house has the reputation of a gambling lists is a crime punished also as part of
place shall suffer the penalty of prision gambling. However, it is necessary to make
correccional in its medium period and a fine a distinction whether a ticket or list refers to
ranging from Five Hundred to Two a past date or to a future date.
Thousand Pesos and temporary absolute
disqualifications. Illustration:
In grave scandal, the scandal involved (2) A man and a woman went to Luneta
refers to moral scandal offensive to and slept there. They covered
decency, although it does not disturb public themselves their blanket and made
peace. But such conduct or act must be the grass their conjugal bed.
open to the public view.
This is grave scandal.
In alarms and scandals, the scandal
involved refers to disturbances of the public (3) In a certain apartment, a lady tenant
tranquility and not to acts offensive to had the habit of undressing in her
decency. room without shutting the blinds.
She does this every night at about
Any act which is notoriously offensive to eight in the evening. So that at this
decency may bring about criminal liability hour of the night, you can expect
for the crime of grave scandal provided people outside gathered in front of
such act does not constitute some other her window looking at her silhouette.
crime under the Revised Penal Code. She was charged of grave scandal.
Grave scandal is a crime of last resort. Her defense was that she was doing
it in her own house.
Distinction should be made as to the place
where the offensive act was It is no defense that she is doing it in
committed, whether in the public her private home. It is still open to
place or in a private place: the public view.
(1) In public place, the criminal liability (4) In a particular building in Makati
arises irrespective of whether the which stands right next to the house
immoral act is open to the public of a young lady who goes
view. In short public view is not sunbathing in her poolside. Every
required. morning several men in the upper
floors would stick their heads out to
(2) When act offensive to decency is get a full view of said lady while in
done in a private place, public view her two-piece swimsuit. The lady
or public knowledge is required. was then charged with grave
scandal. Her defense was that it is
Public view does not require numerous her own private pool and it is those
persons. Even if there was only one person men looking down at her who are
who witnessed the offensive act for as long malicious.
as the third person was not an intruder,
grave scandal is committed provided the act This is an act which even though
does not fall under any other crime in the done in a private place is
Revised Penal Code. nonetheless open to public view.
Illustrations:
Article 201. Immoral Doctrines, Obscene
(1) A man and a woman enters a movie Publications and Exhibitions and
house which is a public place and Indecent Shows
then goes to the darkest part of the
balcony and while there the man Acts punished
started performing acts of
lasciviousness on the woman. 1. Those who shall publicly expound or
proclaim doctrines openly contrary to
If it is against the will of the woman, public morals;
the crime would be acts of
lasciviousness. But if there is 2. a. The authors of obscene
mutuality, this constitutes grave literature, published with their
scandal. Public view is not knowledge in any form, the editors
necessary so long as it is performed publishing such literature; and the
in a public place. owners/operators of the
establishment selling the same;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 171
4. Malicious delay in the administration 24. Officer breaking seal (Art. 227);
of justice (Art. 207);
25. Opening of closed documents (Art.
5. Prosecution of offenses; negligence 228);
and tolerance (Art. 208);
26. Revelation of secrets by an officer
6. Betrayal of trust by an attorney or (Art. 229);
solicitor Revelation of secrets (Art.
209); 27. Public officer revealing secrets of
private individual (Art. 230);
7. Direct bribery (Art. 210);
28. Open disobedience (Art. 231);
8. Indirect bribery (Art. 211);
29. Disobedience to order of superior
9. Qualified bribery (Art. 211-A); officer when said order was
suspended by inferior officer (Art.
10. Corruption of public officials (Art. 232);
212);
30. Refusal of assistance (Art. 233);
11. Frauds against the public treasury
and similar offenses (Art. 213); 31. Refusal to discharge elective office
(Art. 234);
12. Other frauds (Art. 214);
32. Maltreatment of prisoners (Art. 235);
13. Prohibited transactions (Art. 215);
33. Anticipation of duties of a public
14. Possession of prohibited interest by office (Art. 236);
a public officer (Art. 216);
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 174
There is more injustice done in cases of 3. Offender acts with malice and deliberate
judgment than mere interlocutory order that intent to favor the violator of the law.
is why the penalty is higher in the first case.
This crime can only be committed by a While in Article 208, dereliction of duty
public officer whose official duty is to refers only to prosecuting officers, the term
prosecute offenders, that is, state prevaricacion applies to public officers in
prosecutors. Hence, those officers who are general who is remiss or who is maliciously
not duty bound to perform these obligations refraining from exercising the duties of his
cannot commit this crime in the strict sense. office.
modifies Article 210 of the Revised Penal In the latter situation, three crimes are
Code on direct bribery. committed: direct bribery and dereliction of
duty on the part of the fiscal; and corruption
However, the crime of qualified bribery may of a public officer by the giver.
be committed only by public officers
entrusted with enforcement whose official
duties authorize then to arrest or prosecute Article 209. Betrayal of Trust by An
offenders. Apparently, they are peace Attorney or Solicitor Revelation of
officers and public prosecutors since the Secrets
nonfeasance refers to arresting or
prosecuting. But this crime arises only Acts punished
when the offender whom such public officer
refrains from arresting or prosecuting, has 1. Causing damage to his client, either
committed a crime punishable by reclusion
perpetua and/or death. If the crime were a. By any malicious breach of
punishable by a lower penalty, then such professional duty;
nonfeasance by the public officer would
amount to direct bribery, not qualified b. By inexcusable negligence or
bribery. ignorance.
If the crime was qualified bribery, the Note: When the attorney acts with
dereliction of the duty punished under malicious abuse of his employment
Article 208 of the Revised Penal Code or inexcusable negligence or
should be absorbed because said article ignorance, there must be damage to
punishes the public officer who maliciously his client.
refrains from instituting prosecution for the
punishment of violators of the law or shall 2. Revealing any of the secrets of his
tolerate the commission of offenses. The client learned by him in his
dereliction of duty referred to is necessarily professional capacity;
included in the crime of qualified bribery.
3. Undertaking the defense of the
On the other hand, if the crime was direct opposing party in the same case,
bribery under Article 210 of the Revised without the consent of his first client,
Penal Code, the public officer involved after having undertaken the defense
should be prosecuted also for the of said first client of after having
dereliction of duty, which is a crime under received confidential information
Article 208 of the Revised Penal Code, from said client.
because the latter is not absorbed by the
crime of direct bribery. This is because in
direct bribery, where the public officer Under the rules on evidence,
agreed to perform an act constituting a communications made with prospective
crime in connection with the performance of clients to a lawyer with a view to engaging
his official duties, Article 210 expressly his professional services are already
provides that the liabilty thereunder shall be privileged even though the client-lawyer
in addition to the penalty corresponding to relationship did not eventually materialize
the crime agreed upon, if the crime shall because the client cannot afford the fee
have been committed. being asked by the lawyer. The lawyer and
his secretary or clerk cannot be examined
Illustration: thereon.
A fiscal, for a sum of money, refrains from That this communication with a prospective
prosecuting a person charged before him. client is considered privileged, implies that
If the penalty for the crime involved is the same is confidential. Therefore, if the
reclusion perpetua, the fiscal commits lawyer would reveal the same or otherwise
qualified bribery. If the crime is punishable accept a case from the adverse party, he
by a penalty lower than reclusion perpetua, would already be violating Article 209.
the crime is direct bribery. Mere malicious breach without damage is
not violative of Article 209; at most he will
be liable administratively as a lawyer, e.g.,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 178
suspension or disbarment under the Code (2) Through gross ignorance, causing
of Professional Responsibility. damage to the client;
B, who is involved in the crime of seduction (4) Revelation of secrets learned in his
wanted A, an attorney at law, to handle his professional capacity;
case. A received confidential information
from B. However, B cannot pay the (5) Undertaking the defense of the
professional fee of A. C, the offended party, opposite party in a case without the
came to A also and the same was consent of the first client whose
accepted. defense has already been
undertaken.
A did not commit the crime under Article
209, although the lawyers act may be Note that only numbers 1, 2 and 3 must
considered unethical. The client-lawyer approximate malice.
relationship between A and B was not yet
established. Therefore, there is no trust to A lawyer who had already undertaken the
violate because B has not yet actually case of a client cannot later on shift to the
engaged the services of the lawyer A. A is opposing party. This cannot be done.
not bound to B. However, if A would reveal
the confidential matter learned by him from Under the circumstances, it is necessary
B, then Article 209 is violated because it is that the confidential matters or information
enough that such confidential matters were was confided to the lawyer in the latters
communicated to him in his professional professional capacity.
capacity, or it was made to him with a view
to engaging his professional services. It is not the duty of the lawyer to give advice
on the commission of a future crime. It is,
Here, matters that are considered therefore, not privileged in character. The
confidential must have been said to the lawyer is not bound by the mandate of
lawyer with the view of engaging his privilege if he reports such commission of a
services. Otherwise, the communication future crime. It is only confidential
shall not be considered privileged and no information relating to crimes already
trust is violated. committed that are covered by the crime of
betrayal of trust if the lawyer should
Illustration: undertake the case of opposing party or
otherwise divulge confidential information of
A went to B, a lawyer/notary public, to have a client.
a document notarized. A narrated to B the
detail of the criminal case. If B will disclose Under the law on evidence on privileged
what was narrated to him there is no communication, it is not only the lawyer who
betrayal of trust since B is acting as a is protected by the matter of privilege but
notary public and not as a counsel. The also the office staff like the secretary.
lawyer must have learned the confidential
matter in his professional capacity. The nominal liability under this article may
be constituted either from breach of
Several acts which would make a lawyer professional duties in the handling of the
criminally liable: case or it may arise out of the confidential
relation between the lawyer and the client.
(1) Maliciously causing damage to his
client through a breach of his Breach of professional duty
professional duty. The breach of
professional duty must be malicious. Tardiness in the prosecution of the case for
If it is just incidental, it would not which reason the case was dismissed for
give rise to criminal liability, although being non-prosecuted; or tardiness on the
it may be the subject of part of the defense counsel leading to
administrative discipline; declaration of default and adverse
judgment.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 179
Note however that what may begin as an If the records were actually
indirect bribery may actually ripen into direct removed, both the public officer and
bribery. the corruptor will in addition to the
two felonies above, will also be
Illustration: liable for the crime committed, which
is infidelity in the custody of the
Without any understanding with the public public records for which they shall
officer, a taxi operator gave an expensive be liable as principals; one as
suiting material to a BLT registrar. Upon principal by inducement, the other
receipt by the BLT registrar of his valuable as principal by direct participation.
suiting material, he asked who the giver
was. He found out that he is a taxi (2) A party litigant approached the
operator. As far as the giver is concerned, courts stenographer and proposed
he is giving this by reason of the office or the idea of altering the transcript of
position of the public officer involved. It is stenographic notes. The court
just indirect bribery stenographer agreed and he
. demanded P 2,000.00.
If the BLT registrar calls up his subordinates
and said to take care of the taxis of the taxi Unknown to them, there were law
operator so much so that the registration of enforcers who already had a tip that
the taxis is facilitated ahead of the others, the court stenographer had been
what originally would have been indirect doing this before. So they were
bribery becomes direct bribery. waiting for the chance to entrap him.
They were apprehended and they
In direct bribery, consider whether the said they have not done anything
official act, which the public officer yet.
agreed to do, is a crime or not.
Under Article 210, the mere
If it will amount to a crime, it is not agreement to commit the act, which
necessary that the corruptor should deliver amounts to a crime, is already
the consideration or the doing of the act. bribery. That stenographer
The moment there is a meeting of the becomes liable already for
minds, even without the delivery of the consummated crime of bribery and
consideration, even without the public the party who agreed to give that
officer performing the act amounting to a money is already liable for
crime, bribery is already committed on the consummated corruption, even
part of the public officer. Corruption is though not a single centavo is
already committed on the part of the delivered yet and even though the
supposed giver. The reason is that the stenographer had not yet made the
agreement is a conspiracy involving the alterations.
duty of a public officer. The mere
agreement is a felony already. If he changed the transcript, another
crime is committed: falsification.
If the public officer commits the act which
constitutes the crime, he, as well as the
corruptor shall be liable also for that other The same criterion will apply with respect to
crime. a public officer who agrees to refrain from
performing his official duties. If the
Illustrations: refraining would give rise to a crime, such
as refraining to prosecute an offender, the
(1) If the corruptor offers a mere agreement to do so will consummate
consideration to a custodian of a the bribery and the corruption, even if no
public record to remove certain files, money was delivered to him. If the
the mere agreement, without refraining is not a crime, it would only
delivery of the consideration, brings amount to bribery if the consideration be
about the crime of direct bribery and delivered to him.
corruption of public official.
If it is not a crime, the consideration must
be delivered by the corruptor before a
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 181
public officer can be prosecuted for bribery. It is now settled, therefore, that the crime of
Mere agreement, is not enough to bribery and corruption of public officials
constitute the crime because the act to be cannot be committed in the frustrated stage
done in the first place is legitimate or in the because this requires two to commit and
performance of the official duties of the that means a meeting of the minds.
public official.
Illustrations:
Unless the public officer receives the
consideration for doing his official duty, (1) If the public official accepted the
there is no bribery. It is necessary that corrupt consideration and turned it
there must be delivery of monetary over to his superior as evidence of
consideration. This is so because in the the corruption, the offense is
second situation, the public officer actually attempted corruption only and not
performed what he is supposed to perform. frustrated. The official did not agree
It is just that he would not perform what he to be corrupted.
is required by law to perform without an
added consideration from the public which If the public officer did not report the
gives rise to the crime. same to his superior and actually
accepted it, he allowed himself to be
The idea of the law is that he is being paid corrupted. The corruptor becomes
salary for being there. He is not supposed liable for consummated corruption of
to demand additional compensation from public official. The public officer
the public before performing his public also becomes equally liable for
service. The prohibition will apply only consummated bribery.
when the money is delivered to him, or if he
performs what he is supposed to perform in (2) If a public official demanded
anticipation of being paid the money. something from a taxpayer who
pretended to agree and use marked
Here, the bribery will only arise when there money with the knowledge of the
is already the acceptance of the police, the crime of the public official
consideration because the act to be done is is attempted bribery. The reason is
not a crime. So, without the acceptance, that because the giver has no
the crime is not committed. intention to corrupt her and
therefore, he could not perform all
Direct bribery may be committed only in the the acts of execution.
attempted and consummated stages
because, in frustrated felony, the offender Be sure that what is involved is a
must have performed all the acts of crime of bribery, not extortion. If it
execution which would produce the felony were extortion, the crime is not
as a consequence. In direct bribery, it is bribery, but robbery. The one who
possible only if the corruptor concurs with yielded to the demand does not
the offender. Once there is concurrence, commit corruption of a public officer
the direct bribery is already consummated. because it was involuntary.
In short, the offender could not have
performed all the acts of execution to
produce the felony without consummating Article 211. Indirect Bribery
the same.
Elements
Actually, you cannot have a giver unless
there is one who is willing to receive and 1. Offender is a public officer;
there cannot be a receiver unless there is
one willing to give. So this crime requires 2. He accepts gifts;
two to commit. It cannot be said, therefore,
that one has performed all the acts of 3. The gifts are offered to him by reason of
execution which would produce the felony his office.
as a consequence but for reasons
independent of the will, the crime was not
committed. The public official does not undertake to
perform an act or abstain from doing an
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 182
2. He refrains from arresting or prosecuting (2) He must willingly testify against the
an offender who has committed a public officer involved in the case to
crime; be filed against the latter.
3. Offender has committed a crime Before the bribe-giver may be dropped from
punishable by reclusion perpetua the information, he has to be charged first
and/or death; with the receiver. Before trial, prosecutor
may move for dropping bribe-giver from
4. Offender refrains from arresting or information and be granted immunity. But
prosecuting in consideration of any first, five conditions have to be met:
offer, promise, gift, or present.
(1) Information must refer to
consummated bribery;
Note that the penalty is qualified if the
public officer is the one who asks or (2) Information is necessary for the
demands such present. proper conviction of the public officer
involved;
Plunder is committed through a combination The mere act of a public officer demanding
or series of overt acts: an amount from a taxpayer to whom he is to
render public service does not amount to
(1) Through misappropriation, bribery, but will amount to a violation of the
conversion, misuse, or malversation Anti-graft and Corrupt Practices Act.
of public funds or raids on the public
treasury; Illustration:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 184
the validity of the information filed in court. The fact that the government benefited out
Without a hearing, the suspension would be of the prohibited act is no defense at all, the
null and void for being violative of due violation being mala prohibita.
process.
Section 3 (f) of the Anti-Graft and Corrupt
Illustration: Practices Act where the public officer
neglects or refuses to act on a matter
A public officer was assigned to direct traffic pending before him for the purpose of
in a very busy corner. While there, he obtaining any pecuniary or material benefit
caught a thief in the act of lifting the wallet or advantage in favor of or discriminating
of a pedestrian. As he could not leave his against another interested party.
post, he summoned a civilian to deliver the
thief to the precinct. The civilian agreed so The law itself additionally requires that the
he left with the thief. When they were accuseds dereliction, besides being without
beyond the view of the policeman, the justification, must be for the purpose of
civilian allowed the thief to go home. What obtaining from any person interested in the
would be the liability of the public officer? matter some pecuniary or material benefit
or for the purpose of favoring any interested
The liability of the traffic policeman would party, or discriminating against another
be merely administrative. The civilian has interested party. This element is
no liability at all. indispensable.
Firstly, the offender is not yet a prisoner so
there is no accountability yet. The term In other words, the neglect or refusal to act
prisoner refers to one who is already must motivated by gain or benefit, or
booked and incarcerated no matter how purposely to favor the other interested party
short the time may be. as held in Coronado v. SB, decided on
August 18, 1993.
The policeman could not be said as having
assisted the escape of the offender Republic Act No. 1379 (Forfeiture of Ill-
because as the problem says, he is gotten Wealth)
assigned to direct traffic in a busy corner
street. So he cannot be considered as Correlate with RA 1379 -- properly under
falling under the third 3rd paragraph of Remedial Law. This provides the procedure
Article 19 that would constitute his as an for forfeiture of the ill-gotten wealth in
accessory. violation of the Anti-Graft and Corrupt
Practices Act. The proceedings are civil and
The same is true with the civilian because not criminal in nature.
the crime committed by the offender, which
is snatching or a kind of robbery or theft as Any taxpayer having knowledge that a
the case may be, is not one of those crimes public officer has amassed wealth out of
mentioned under the third paragraph of proportion to this legitimate income may file
Article 19 of the Revised Penal Code. a complaint with the prosecutors office of
the place where the public officer resides or
Where the public officer is still incumbent, holds office. The prosecutor conducts a
the prosecution shall be with the preliminary investigation just like in a
Ombudsman. criminal case and he will forward his
findings to the office of the Solicitor General.
Where the respondent is separated from The Solicitor General will determine whether
service and the period has not yet there is reasonable ground to believe that
prescribed, the information shall be filed in the respondent has accumulated an
any prosecutions office in the city where unexplained wealth.
the respondent resides. The prosecution
shall file the case in the Regional Trial Court If the Solicitor General finds probable
unless the violation carries a penalty higher cause, he would file a petition requesting
than prision correccional, in which case the the court to issue a writ commanding the
Sandiganbayan has jurisdiction. respondent to show cause why the ill-gotten
wealth described in the petition should not
be forfeited in favor of the government. This
is covered by the Rules on Civil Procedure.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 186
Acts punished
3. He entered into an agreement with on the matter acted upon by the public
any interested party or speculator or officer.
made use of any other scheme with
regard to furnishing supplies, the The allocation or outlay was made the basis
making of contracts, or the of fraudulent quotations made by the public
adjustment or settlement of accounts officer involved.
relating to public property or funds;
For example, there was a need to put some
4. He had intent to defraud the additional lighting along the a street and no
government. one knows how much it will cost. An officer
was asked to canvass the cost but he
connived with the seller of light bulbs,
The essence of this crime is making the pricing each light bulb at P550.00 instead of
government pay for something not received the actual price of P500.00. This is a case
or making it pay more than what is due. It of fraud against public treasury.
is also committed by refunding more than
the amount which should properly be If there is a fixed outlay of P20,000.00 for
refunded. This occurs usually in cases the lighting apparatus needed and the
where a public officer whose official duty is public officer connived with the seller so
to procure supplies for the government or that although allocation was made a lesser
enter into contract for government number was asked to be delivered, or of an
transactions, connives with the said supplier inferior quality, or secondhand. In this case
with the intention to defraud the there is no fraud against the public treasury
government. Also when certain supplies for because there is a fixed allocation. The
the government are purchased for the high fraud is in the implementation of
price but its quantity or quality is low. procurement. That would constitute the
crime of other fraud in Article 214, which is
Illustrations: in the nature of swindling or estafa.
different from that provided be expected that such public officer will not
by law. turn over his collection to the government.
Illustrations:
This can only be committed principally by a
public officer whose official duty is to collect (1) A taxpayer goes to the local
taxes, license fees, import duties and other municipal treasurer to pay real
dues payable to the government. estate taxes on his land. Actually,
what is due the government is
Not any public officer can commit this P400.00 only but the municipal
crime. Otherwise, it is estafa. Fixers treasurer demanded P500.00. By
cannot commit this crime unless he that demand alone, the crime of
conspires with the public officer authorized illegal exaction is already committed
to make the collection. even though the taxpayer does not
pay the P500.00.
Also, public officers with such functions but
are in the service of the Bureau of Internal (2) Suppose the taxpayer came across
Revenue and the Bureau of Customs are with P500.00. But the municipal
not to be prosecuted under the Revised treasurer, thinking that he would
Penal Code but under the Revised abstract the P100.00, issued a
Administrative Code. These officers are receipt for only P400.00. The
authorized to make impositions and to enter taxpayer would naturally ask the
into compromises. Because of this municipal treasurer why the receipt
discretion, their demanding or collecting was only for P400.00. The treasurer
different from what is necessary is legal. answered that the P100.00 is
supposed to be for documentary
This provision of the Revised Penal Code stamps. The taxpayer left.
was provided before the Bureau of Internal
Revenue and the Tariff and Customs Code. He has a receipt for P400.00. The
Now, we have specific Code which will municipal treasurer turned over to
apply to them. In the absence of any the government coffers P400.00
provision applicable, the Revised because that is due the government
Administrative Code will apply. and pocketed the P100.00.
The essence of the crime is not The mere fact that there was a
misappropriation of any of the amounts but demand for an amount different from
the improper making of the collection which what is due the government, the
would prejudice the accounting of collected public officer already committed the
amounts by the government. crime of illegal exaction.
On the first form of illegal exaction On the P100.00 which the public
officer pocketed, will it be
In this form, mere demand will consummate malversation or estafa?
the crime, even if the taxpayer shall refuse
to come across with the amount being In the example given, the public
demanded. That will not affect the officer did not include in the official
consummation of the crime. receipt the P100.00 and, therefore, it
did not become part of the public
In the demand, it is not necessary that the funds. It remained to be private. It
amount being demanded is bigger than is the taxpayer who has been
what is payable to the government. The defrauded of his P100.00 because
amount being demanded maybe less than he can never claim a refund from
the amount due the government. the government for excess payment
since the receipt issued to him was
Note that this is often committed with only P400.00 which is due the
malversation or estafa because when a government. As far as the P100.00
public officer shall demand an amount is concerned, the crime committed is
different from what the law provides, it can estafa.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 189
(3) A taxpayer pays his taxes. What is will pay or not, will already
due the government is P400.00 and consummate the crime of illegal
the public officer issues a receipt for exaction. It is the breach of trust by
P500.00 upon payment of the a public officer entrusted to make
taxpayer of said amount demanded the collection which is penalized
by the public officer involved. But under such article. The falsification
he altered the duplicate to reflect or alteration made on the duplicate
only P400.00 and he extracted the can not be said as a means to
difference of P100.00. commit malversation. At most, the
duplicate was altered in order to
In this case, the entire P500.00 was conceal the malversation. So it
covered by an official receipt. That cannot be complexed with the
act of covering the whole amount malversation.
received from the taxpayer in an
official receipt will have the It cannot also be said that the
characteristics of becoming a part of falsification is a necessary means to
the public funds. The crimes commit the malversation because
committed, therefore, are the the public officer can misappropriate
following: the P100.00 without any falsification.
All that he has to do is to get the
(a) Illegal exaction for excess of P100.00 and
collecting more than he is misappropriate it. So the
authorized to collect. The falsification is a separate
mere act of demanding is accusation.
enough to constitute this
crime. However, illegal exaction may be
complexed with malversation
(b) Falsification because there because illegal exaction is a
was an alteration of official necessary means to be able to
document which is the collect the P100.00 excess which
duplicate of the official was malversed.
receipt to show an amount
less than the actual amount In this crime, pay attention to
collected. whether the offender is the one
charged with the collection of the
(c) Malversation because of tax, license or impost subject of the
his act of misappropriating misappropriation. If he is not the
the P100.00 excess which one authorized by disposition to do
was covered by an official the collection, the crime of illegal
receipt already, even though exaction is not committed.
not payable to the
government. The entire If it did not give rise to the crime of
P500.00 was covered by the illegal exaction, the funds collected
receipt, therefore, the whole may not have become part of the
amount became public public funds. If it had not become
funds. So when he part of the public funds, or had not
appropriated the P100 for his become impressed with being part
own benefit, he was not of the public funds, it cannot be the
extracting private funds subject of malversation. It will give
anymore but public funds. rise to estafa or theft as the case
may be.
Should the falsification be
complexed with the malversation? (3) The Municipal Treasurer demanded
P500.00 when only P400.00 was
As far as the crime of illegal due. He issued the receipt at
exaction is concerned, it will be the P400.00 and explained to taxpayer
subject of separate accusation that the P100 was for documentary
because there, the mere demand stamps. The Municipal Treasurer
regardless of whether the taxpayer placed the entire P500.00 in the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 190
Elements
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 196
Who can commit this crime? A responsible If public funds were not yet appropriated by
public officer, not necessarily an law or ordinance, and this was applied to a
accountable one, who leaves the country public purpose by the custodian thereof, the
without first securing clearance from the crime is plain and simple malversation, not
Commission on Audit. technical malversation. If the funds had
been appropriated for a particular public
The purpose of the law is to discourage purpose, but the same was applied to
responsible or accountable officers from private purpose, the crime committed is
leaving without first liquidating their simple malversation only.
accountability.
Illustration:
Mere leaving without securing clearance
constitutes violation of the Revised Penal
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 197
Classes of prisoners involved If the jail guard who allowed the prisoner to
escape is already off-duty at that time and
1. If the fugitive has been sentenced by he is no longer the custodian of the
final judgment to any penalty; prisoner, the crime committed by him is
delivering prisoners from jail.
2. If the fugitive is held only as
detention prisoner for any crime or Note that you do not apply here the
violation of law or municipal principle of conspiracy that the act of one is
ordinance. the act of all. The party who is not the
custodian who conspired with the custodian
in allowing the prisoner to escape does not
Article 224. Evasion through Negligence commit infidelity in the custody of the
prisoner. He commits the crime of
Elements delivering prisoners from jail.
handcuffed in his hands, the policeman of negligence and therefore the custodian is
expired. Thereafter, the head of the family liable for infidelity in the custody of prisoner.
of that private house asked the prisoner if
he could afford to give something so that he Prison guard should not go to any other
would allow him to go. The prisoner said, place not officially called for. This is a case
Yes, if you would allow me to leave, you of infidelity in the custody of prisoner
can come with me and I will give the money through negligence under Article 224.
to you. This private persons went with the
prisoner and when the money was given,
he allowed him to go. What crime/s had Article 226. Removal, Concealment, or
been committed? Destruction of Documents
Illustration:
If any citizen goes to a public office, Article 227. Officer Breaking Seal
desiring to go over public records and the
custodian of the records had concealed the Elements
same so that this citizen is required to go
back for the record to be taken out, the 1. Offender is a public officer;
crime of infidelity is already committed by
the custodian who removed the records and 2. He is charged with the custody of
kept it in a place where it is not supposed to papers or property;
be kept. Here, it is again the breach of
public trust which is punished. 3. These papers or property are sealed
by proper authority;
Although there is no material damage
caused, mere delay in rendering public 4. He breaks the seal or permits them
service is considered damage. to be broken.
Illustration:
Article 232. Disobedience to Order of
Superior Officer When Said Order Was A government physician, who had been
Suspended by Inferior Officer subpoenaed to appear in court to testify in
connection with physical injury cases or
Elements cases involving human lives, does not want
to appear in court to testify. He may be
1. Offender is a public officer; charged for refusal of assistance. As long
as they have been properly notified by
2. An order is issued by his superior for subpoena and they disobeyed the
execution; subpoena, they can be charged always if it
can be shown that they are deliberately
3. He has for any reason suspended refusing to appear in court.
the execution of such order;
It is not always a case or in connection with
4. His superior disapproves the the appearance in court that this crime may
suspension of the execution of the be committed. Any refusal by the public
order; officer to render assistance when
demanded by competent public authority,
5. Offender disobeys his superior as long as the assistance requested from
despite the disapproval of the them is within their duty to render and that
suspension. assistance is needed for public service, the
public officers who are refusing deliberately
may be charged with refusal of assistance.
Article 233. Refusal of Assistance
Note that the request must come from one
1. Offender is a public officer; public officer to another.
3. Offender fails to do so maliciously. It was held that the crime is not refusal of
assistance because the request did not
come from a public authority. But if the
Any public officer who, upon being fireman was ordered by the authority to put
requested to render public assistance within out the fire and he refused, the crime is
his official duty to render and he refuses to refusal of assistance.
render the same when it is necessary in the
administration of justice or for public If he receives consideration therefore,
service, may be prosecuted for refusal of bribery is committed. But mere demand will
assistance. fall under the prohibition under the provision
of Republic Act No. 3019 (Anti-Graft and
This is a crime, which a policeman may Corrupt Practices Act).
commit when, being subpoenaed to appear
in court in connection with a crime
investigated by him but because of some Article 234. Refusal to Discharge
arrangement with the offenders, the Elective Office
policeman does not appear in court
anymore to testify against the offenders. Elements
He tried to assail the subpoena so that
ultimately the case would be dismissed. It 1. Offender is elected by popular
was already held that the policeman could election to a public office;
be prosecuted under this crime of refusal of
assistance and not that of dereliction of 2. He refuses to be sworn in or to
duty. discharge the duties of said office;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 203
3. There is no legal motive for such Make him drink dirty water, sit on ice, eat on
refusal to be sworn in or to a can, make him strip, hang a sign on his
discharge the duties of said office. neck saying snatcher.
exercises a certain influence because the (2) The woman who is the offended
woman is involved in a case where the party in the crime is a prisoner under
offender is to make a report of result with the custody of a warden or the jailer
superiors or otherwise a case which the who is the offender.
offender was investigating.
If the warden or jailer of the woman
This crime is also committed if the woman should make immoral or indecent
is a prisoner and the offender is her jail advances to such prisoner, this
warden or custodian, or even if the prisoner crime is committed.
may be a man if the jail warden would make
the immoral solicitations upon the wife, This crime cannot be committed if
sister, daughter, or relative by affinity within the warden is a woman and the
the same degree of the prisoner involved. prisoner is a man. Men have no
chastity.
Three instances when this crime may arise:
If the warden is also a woman but is
(1) The woman, who is the offended a lesbian, it is submitted that this
party, is the party in interest in a crime could be committed, as the
case where the offended is the law does not require that the
investigator or he is required to custodian be a man but requires that
render a report or he is required to the offended be a woman.
consult with a superior officer.
Immoral or indecent advances
contemplated here must be
This does not include any casual or persistent. It must be determined.
incidental interest. This refers to A mere joke would not suffice.
interest in the subject of the case
under investigation. Illustrations:
she was not forced. Just the in a work, training or education environment
same, the jailer was when he or she demands, requests, or
convicted of abuse against otherwise requires any sexual favor from
chastity. the other regardless of whether the
demand, request or requirement for
Legally, a prisoner is an submission is accepted by the object of the
accountability of the government. said act (for a passing grade, or granting of
So the custodian is not supposed to scholarship or honors, or payment of a
interfere. Even if the prisoner may stipend, allowances, benefits,
like it, he is not supposed to do that. considerations; favorable compensation
Otherwise, abuse against chastity is terms, conditions, promotions or when the
committed. refusal to do so results in a detrimental
Being responsible for the pregnancy consequence for the victim).
is itself taking advantage the
prisoner. Also holds liable any person who directs or
induces another to commit any act of sexual
If he forced himself against the will harassment, or who cooperates in the
of the woman, another crime is commission, the head of the office,
committed, that is, rape aside from educational or training institution solidarily.
abuse against chastity.
Complaints to be handled by a committee
You cannot consider the abuse on decorum, which shall be determined by
against chastity as absorbed in the rules and regulations on such.
rape because the basis of penalizing
the acts is different from each other. Administrative sanctions shall not be a bar
to prosecution in the proper courts for
(3) The crime is committed upon a unlawful acts of sexual harassment.
female relative of a prisoner under
the custody of the offender, where
the woman is the daughter, sister or TITLE VIII. CRIMES AGAINST PERSONS
relative by affinity in the same line
as of the prisoner under the custody Crimes against persons
of the offender who made the
indecent or immoral solicitation. 1. Parricide (Art. 246);
Republic Act No. 7877 (Anti-Sexual 10. Unintentional abortion (Art. 257);
Harassment Act)
11. Abortion practiced by the woman
Committed by any person having authority, herself or by her parents (Art. 258);
influence or moral ascendancy over another
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 208
The essence of crime here involves the If the offender and the offended party,
taking of human life, destruction of the fetus although related by blood and in the direct
or inflicting injuries. line, are separated by an intervening
illegitimate relationship, parricide can no
As to the taking of human life, you have: longer be committed. The illegitimate
relationship between the child and the
(1) Parricide; parent renders all relatives after the child in
the direct line to be illegitimate too.
(2) Murder;
The only illegitimate relationship that can
(3) Homicide; bring about parricide is that between
parents and illegitimate children as the
(4) Infanticide; and offender and the offended parties.
If the surprising took place after the actual Where the accused surprised his wife and
sexual intercourse was finished, even if the his paramour in the act of illicit
act being performed indicates no other intercourse, as a result of which he
conclusion but that sexual intercourse was went out to kill the paramour in a fit
had, the article does not apply. of passionate outburst. Although
about one hour had passed between
As long as the surprising took place while the time the accused discovered his
the sexual intercourse was going on, the wife having sexual intercourse with
second stage becomes immaterial. the victim and the time the latter was
actually killed, it was held in People
It is either killing or inflicting physical injuries v. Abarca, 153 SCRA 735, that
while in that act or immediately thereafter. Article 247 was applicable, as the
If the killing was done while in that act, no shooting was a continuation of the
problem. If the killing was done when pursuit of the victim by the accused.
sexual intercourse is finished, a problem Here, the accused, after the
arises. First, were they surprised in actual discovery of the act of infidelity of
sexual intercourse? Second, were they his wife, looked for a firearm in
killed immediately thereafter? Tacloban City.
The phrase immediately thereafter has Article 247 does not provide that the victim
been interpreted to mean that is to be killed instantly by the accused after
between the surprising and the surprising his spouse in the act of
killing of the inflicting of the intercourse. What is required is that the
physical injury, there should be killing is the proximate result of the outrage
no break of time. In other words, overwhelming the accused upon the
it must be a continuous process. discovery of the infidelity of his spouse.
The killing should have been actually
The article presumes that a legally married motivated by the same blind impulse.
person who surprises his or her better half
in actual sexual intercourse would be Illustration:
overcome by the obfuscation he felt when
he saw them in the act that he lost his head. A upon coming home, surprised his wife, B,
The law, thus, affords protection to a together with C. The paramour was fast
spouse who is considered to have acted in enough to jump out of the window. A got
a justified outburst of passion or a state of the bolo and chased C but he disappeared
mental disequilibrium. The offended among the neighborhood. So A started
spouse has no time to regain his self- looking around for about an hour but he
control. could not find the paramour. A gave up and
was on his way home. Unfortunately, the
If there was already a break of time paramour, thinking that A was no longer
between the sexual act and the killing or around, came out of hiding and at that
inflicting of the injury, the law presupposes moment, A saw him and hacked him to
that the offender regained his reason and death. There was a break of time and
therefore, the article will not apply anymore. Article 247 does not apply anymore
because when he gave up the search, it is a
As long as the act is continuous, the article circumstance showing that his anger had
still applies. already died down.
Homicide is qualified to murder if any of the If the offended was denied the
qualifying circumstances under Article 248 chance to defend himself, treachery
is present. It is the unlawful killing of a qualifies the killing to murder. If
person not constituting murder, parricide or despite the means resorted to by the
infanticide. offender, the offended was able to
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 213
So long as the means, methods and Having gotten bored with their form
form in the execution is deliberately of entertainment, accused Pugay
adopted, even if there was no intent went and got a can of gasoline and
to kill, there is treachery. poured it all over the retard. Then,
the accused Samson lit him up,
(2) In consideration of price, reward or making him a frenzied, shrieking
promises; human torch. The retard died.
(3) Inundation, fire, poison, explosion, It was held that Pugay was guilty of
shipwreck, stranding of a vessel, homicide through reckless
derailment or assault upon a street imprudence. Samson only guilty of
car or locomotive, fall of an airship, homicide, with the mitigating
by means of a motor vehicle, or with circumstance of no intention to
the use of other means involving commit so grave a wrong. There
great waste and ruin; was no animosity between the two
accused and the victim such that it
The only problem insofar as the cannot be said that they resort to fire
killing by fire is concerned is to kill him. It was merely a part of
whether it would be arson with their fun making but because their
homicide, or murder. acts were felonious, they are
criminally liable.
When a person is killed by fire, the
primordial criminal intent of the (4) On occasion of any of the calamities
offender is considered. If the enumerated in the preceding
primordial criminal intent of the paragraph c, or an earthquake,
offender is to kill and fire was only eruption of volcano, destructive
used as a means to do so, the crime cyclone, epidemic or any other
is only murder. If the primordial public calamity;
criminal intent of the offender is to
destroy property with the use of (5) Evident premeditation; and
pyrotechnics and incidentally,
somebody within the premises is (6) Cruelty, by deliberately and
killed, the crime is arson with inhumanly augmenting the suffering
homicide. But this is not a complex of the victim, or outraging or scoffing
crime under Article 48. This is single at his person or corpse.
indivisible crime penalized under
Article 326, which is death as a Cruelty includes the situation where
consequence of arson. That the victim is already dead and yet,
somebody died during such fire acts were committed which would
would not bring about murder decry or scoff the corpse of the
because there is no intent to kill in victim. The crime becomes murder.
the mind of the offender. He
intended only to destroy property. Hence, this is not actually limited to
However, a higher penalty will be cruelty. It goes beyond that
applied. because even if the victim is already
a corpse when the acts deliberately
In People v. Pugay and Samson, augmenting the wrong done to him
167 SCRA 439, there was a town were committed, the killing is still
fiesta and the two accused were at qualified to murder although the acts
the town plaza with their done no longer amount to cruelty.
companions. All were uproariously
happy, apparently drenched with Under Article 14, the generic
drink. Then, the group saw the aggravating circumstance of cruelty
victim, a 25 year old retard walking requires that the victim be alive,
nearby and they made him dance by when the cruel wounds were
tickling his sides with a piece of inflicted and, therefore, must be
wood. The victim and the accused evidence to that effect. Yet, in
Pugay were friends and, at times, murder, aside from cruelty, any act
slept in the same place together. that would amount to scoffing or
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 215
decrying the corpse of the victim will (7) Where the accused housemaid
qualify the killing to murder. gagged a three year old boy, son of
her master, with stockings, placed
Illustration: him in a box with head down and
legs upward and covered the box
Two people engaged in a quarrel with some sacks and other boxes,
and they hacked each other, one and the child instantly died because
killing the other. Up to that point, the of suffocation, and then the accused
crime is homicide. However, if the demanded ransom from the parents,
killer tried to dismember the different such did not convert the offense into
parts of the body of the victim, kidnapping with murder. The
indicative of an intention to scoff at accused was well aware that the
or decry or humiliate the corpse of child could be suffocated to death in
the victim, then what would have a few minutes after she left.
murder because this circumstance is Ransom was only a part of the
recognized under Article 248, even diabolical scheme to murder the
though it was inflicted or was child, to conceal his body and then
committed when the victim was demand money before discovery of
already dead. the body.
The following are holdings of the Supreme The essence of kidnapping or serious illegal
Court with respect to the crime of murder: detention is the actual confinement or
restraint of the victim or deprivation of his
(1) Killing of a child of tender age is liberty. If there is no showing that the
murder qualified by treachery accused intended to deprive their victims of
because the weakness of the child their liberty for some time and there being
due to his tender age results in the no appreciable interval between their being
absence of any danger to the taken and their being shot, murder and not
aggressor. kidnapping with murder is committed.
(5) Where one of the accused, who 4. The killing was not attended by any
were charged with murder, was the of the qualifying circumstances of
wife of the deceased but here murder, or by that of parricide or
relationship to the deceased was not infanticide.
alleged in the information, she also
should be convicted of murder but
the relationship should be Homicide is the unlawful killing of a person
appreciated as aggravating. not constituting murder, parricide or
infanticide.
(6) Killing of the victims hit by hand
grenade thrown at them is murder Distinction between homicide and physical
qualified by explosion not by injuries:
treachery.
In attempted or frustrated homicide, there is
intent to kill.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 216
The following are holdings of the Supreme 4. Someone was killed in the course of
Court with respect to the crime of homicide: the affray;
(1) Physical injuries are included as one 5. It can not be ascertained who
of the essential elements of actually killed the deceased;
frustrated homicide.
6. The person or persons who inflicted
(2) If the deceased received two serious physical injuries or who used
wounds from two persons acting violence can be identified.
independently of each other and the
wound inflicted by either could have
caused death, both of them are Tumultuous affray simply means a
liable for the death of the victim and commotion in a tumultuous and
each of them is guilty of homicide. confused manner, to such an
extent that it would not be possible
(3) If the injuries were mortal but were to identify who the killer is if death
only due to negligence, the crime results, or who inflicted the serious
committed will be serious physical physical injury, but the person or
injuries through reckless persons who used violence are
imprudence as the element of intent known.
to kill in frustrated homicide is
incompatible with negligence or It is not a tumultuous affray which brings
imprudence. about the crime; it is the inability to
ascertain actual perpetrator. It is necessary
(4) Where the intent to kill is not that the very person who caused the death
manifest, the crime committed has can not be known, not that he can not be
been generally considered as identified. Because if he is known but only
physical injuries and not attempted his identity is not known, then he will be
or frustrated murder or homicide. charged for the crime of homicide or murder
under a fictitious name and not death in a
(5) When several assailants not acting tumultuous affray. If there is a conspiracy,
in conspiracy inflicted wounds on a this crime is not committed.
victim but it cannot be determined
who inflicted which would which To be considered death in a tumultuous
caused the death of the victim, all affray, there must be:
are liable for the victims death.
(1) a quarrel, a free-for-all, which
Note that while it is possible to have a crime should not involve organized group;
of homicide through reckless imprudence, it and
is not possible to have a crime of frustrated
homicide through reckless imprudence. (2) someone who is injured or killed
because of the fight.
1. There is a tumultuous affray; In this crime, the intention must be for the
person who is asking the assistance of
2. A participant or some participants another to commit suicide.
thereof suffered serious physical
injuries or physical injuries of a less If the intention is not to commit suicide, as
serious nature only; when he just wanted to have a picture taken
of him to impress upon the world that he is
3. The person responsible thereof can committing suicide because he is not
not be identified; satisfied with the government, the crime is
held to be inciting to sedition.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 218
He becomes a co-conspirator in the crime is only slight persuasion to end his life, and
of inciting to sedition, but not of giving the offender readily assented thereto.
assistance to suicide because the
assistance must be given to one who is
really determined to commit suicide. Article 254. Discharge of Firearms
If the person does the killing himself, the 1. Offender discharges a firearm against or
penalty is similar to that of homicide, which at another person;
is reclusion temporal. There can be no
qualifying circumstance because the 2. Offender had no intention to kill that
determination to die must come from the person.
victim. This does not contemplate
euthanasia or mercy killing where the crime
is homicide (if without consent; with This crime cannot be committed through
consent, covered by Article 253). imprudence because it requires that the
discharge must be directed at another.
The following are holdings of the Supreme If the firearm is directed at a person and the
Court with respect to this crime: trigger was pressed but did not fire, the
crime is frustrated discharge of firearm.
(1) The crime is frustrated if the
offender gives the assistance by If the discharge is not directed at a person,
doing the killing himself as firing the crime may constitute alarm and
upon the head of the victim but who scandal.
did not die due to medical
assistance. The following are holdings of the Supreme
Court with respect to this crime:
(2) The person attempting to commit
suicide is not liable if he survives. (1) If serious physical injuries resulted
The accused is liable if he kills the from discharge, the crime committed
victim, his sweetheart, because of a is the complex crime of serious
suicide pact. physical injury with illegal discharge
of firearm, or if less serious physical
In other penal codes, if the person who injury, the complex crime of less
wanted to die did not die, there is liability on serious physical injury with illegal
his part because there is public disturbance discharge of firearm will apply.
committed by him. Our Revised Penal
Code is silent but there is no bar against (2) Firing a gun at a person even if
accusing the person of disturbance of public merely to frighten him constitutes
order if indeed serious disturbance of public illegal discharge of firearm.
peace occurred due to his attempt to
commit suicide. If he is not prosecuted, this
is out of pity and not because he has not Article 255. Infanticide
violated the Revised Penal Code.
Elements
In mercy killing, the victim is not in a
position to commit suicide. Whoever would 1. A child was killed by the accused;
heed his advice is not really giving
assistance to suicide but doing the killing 2. The deceased child was less than
himself. In giving assistance to suicide, the 72 hours old.
principal actor is the person committing the
suicide.
This is a crime based on the age of the
Both in euthanasia and suicide, the victim. The victim should be less than three
intention to the end life comes from the days old.
victim himself; otherwise the article does
not apply. The victim must persistently The offender may actually be the parent of
induce the offender to end his life. If there the child. But you call the crime infanticide,
not parricide, if the age of the victim is less
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 219
than three days old. If the victim is three 2. Acting, but without using violence,
days old or above, the crime is parricide. without the consent of the woman.
(By administering drugs or
Illustration: beverages upon such pregnant
woman without her consent.)
An unmarried woman, A, gave birth to a
child, B. To conceal her dishonor, A 3. Acting (by administering drugs or
conspired with C to dispose of the child. C beverages), with the consent of the
agreed and killed the child B by burying the pregnant woman.
child somewhere.
But even though the umbilical cord has One who persuades her sister to abort is a
been cut, Article 41 of the Civil Code co-principal, and one who looks for a
provides that if the fetus had an intra- physician to make his sweetheart abort is
uterine life of less than seven months, it an accomplice. The physician will be
must survive at least 24 hours after the punished under Article 259 of the Revised
umbilical cord is cut for it to be considered Penal Code.
born.
But if those who performed the abortion are Unintentional abortion may be committed
the parents of the pregnant woman, or through negligence as it is enough that the
either of them, and the pregnant woman use of violence be voluntary.
consented for the purpose of concealing her
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 221
The act of pushing another causing her to c. Any of her parents, with her
fall is a felonious act and could result in consent for the purpose of
physical injuries. Correspondingly, if not concealing her dishonor.
only physical injuries were sustained but
abortion also resulted, the felonious act of
pushing is the proximate cause of the Article 259. Abortion Practiced by A
unintentional abortion. Physician or Midwife and Dispensing of
Abortives
Elements
Questions & Answers
1. There is a pregnant woman who has
1. A pregnant woman decided suffered an abortion;
to commit suicide. She jumped out of a
window of a building but she landed on a 2. The abortion is intended;
passerby. She did not die but an abortion
followed. Is she liable for unintentional 3. Offender, who must be a physician
abortion? or midwife, caused or assisted in
causing the abortion;
No. What is contemplated in
unintentional abortion is that the force or
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 222
Elements
In one case, the accused, while conversing
1. There be a castration, that is, with the offended party, drew the latters
mutilation of organs bolo from its scabbard. The offended party
necessary for generation, caught hold of the edge of the blade of his
such as the penis or ovarium; bolo and wounded himself. It was held that
since the accused did not wound, beat or
2. The mutilation is caused assault the offended party, he can not be
purposely and deliberately, guilty of serious physical injuries.
that is, to deprive the
offended party of some
essential organ for Serious physical injuries
reproduction
1. When the injured person becomes
2. Intentionally making other mutilation, insane, imbecile, impotent or blind in
that is, by lopping or clipping off any consequence of the physical injuries
part of the body of the offended inflicted;
party, other than the essential organ
for reproduction, to deprive him of 2. When the injured person
that part of his body.
a. Loses the use of speech or
the power to hear or to smell,
Mutilation is the lopping or clipping off of or loses an eye, a hand,
some part of the body. afoot, an arm, or a leg;
The intent to deliberately cut off the b. Loses the use of any such
particular part of the body that was removed member; or
from the offended party must be
established. If there is no intent to deprive c. Becomes incapacitated for
victim of particular part of body, the crime is the work in which he was
only serious physical injury. theretofore habitually
engaged, in consequence of
The common mistake is to associate this the physical injuries inflicted;
with the reproductive organs only.
Mutilation includes any part of the human 3. When the person injured
body that is not susceptible to grow again.
a. Becomes deformed; or
If what was cut off was a reproductive
organ, the penalty is much higher than that b. Loses any other member of
for homicide. his body; or
The offender threw acid on the face not include any physical, mental,
of the offended party. Were it not for timely psychological testing and training procedure
medical attention, a deformity would have and practice to determine and enhance the
been produced on the face of the victim. physical and psychological fitness of the
After the plastic surgery, the offended party prospective regular members of the below.
was more handsome than before the injury.
What crime was committed? In what stage Organizations include any club or AFP, PNP,
was it committed? PMA or officer or cadet corps of the CMT or
CAT.
The crime is serious physical
injuries because the problem itself states Section 2 requires a written notice to school
that the injury would have produced a authorities from the head of the organization
deformity. The fact that the plastic surgery seven days prior to the rites and should not
removed the deformity is immaterial exceed three days in duration.
because in law what is considered is not the
artificial treatment but the natural healing Section 3 requires supervision by head of
process. the school or the organization of the rites.
In a case decided by the Supreme Court, Section 4 qualifies the crime if rape, sodomy
accused was charged with serious physical or mutilation results therefrom, if the person
injuries because the injuries produced a becomes insane, an imbecile, or impotent or
scar. He was convicted under Article 263 blind because of such, if the person loses
(4). He appealed because, in the course of the use of speech or the power to hear or
the trial, the scar disappeared. It was held smell or an eye, a foot, an arm or a leg, or
that accused can not be convicted of the use of any such member or any of the
serious physical injuries. He is liable only serious physical injuries or the less serious
for slight physical injuries because the physical injuries. Also if the victim is below
victim was not incapacitated, and there was 12, or becomes incapacitated for the work
no evidence that the medical treatment he habitually engages in for 30, 10, 1-9
lasted for more than nine days. days.
Serious physical injuries is punished with It holds the parents, school authorities who
higher penalties in the following consented or who had actual knowledge if
cases: they did nothing to prevent it, officers and
members who planned, knowingly
(1) If it is committed against any of the cooperated or were present, present alumni
persons referred to in the crime of of the organization, owner of the place
parricide under Article 246; where such occurred liable.
Thus, a father who inflicts serious physical Article 264. Administering Injurious
injuries upon his son will be liable for Substances or Beverages
qualified serious physical injuries.
Elements
Republic Act No. 8049 (The Anti-Hazing 1. Offender inflicted upon another any
Law) serious physical injury;
Illustration:
If the physical injuries do not incapacitate
the offended party nor necessitate medical If Hillary slaps Monica and told her You
attendance, slight physical injuries is choose your seconds . Let us meet behind
committed. But if the physical injuries heal the Quirino Grandstand and see who is the
after 30 days, serious physical injuries is better and more beautiful between the two
committed under Article 263, paragraph 4. of us, the crime is not ill-treatment, slight
physical injuries or slander by deed; it is a
Article 265 is an exception to Article 48 in form of challenging to a duel. The criminal
relation to complex crimes as the latter only intent is to challenge a person to a duel.
takes place in cases where the Revised
Penal Code has no specific provision The crime is slight physical injury if there is
penalizing the same with a definite, specific no proof as to the period of the offended
penalty. Hence, there is no complex crime partys incapacity for labor or of the required
of slander by deed with less serious medical attendance.
physical injuries but only less serious
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 227
For purposes of this Act, the penalty for the b. When the woman is deprived
commission of acts punishable under of reason or otherwise
Articles 248, 249, 262 (2) and 263 (1) of Act unconscious;
No 3815, as amended of the Revised Penal
Code for the crimes of murder, homicide, c. By means of fraudulent
other intentional mutilation, and serious machination or grave abuse
physical injuries, respectively, shall be of authority; or
reclusion perpetua when the victim is under
twelve years of age. d. When the woman is under 12
years of age or demented.
The provisions of Republic Act No. 7160
modified the provisions of the Revised
Penal Code in so far as the victim of the Elements under paragraph 2
felonies referred to is under 12 years of age.
The clear intention is to punish the said 1. Offender commits an act of sexual
crimes with a higher penalty when the victim assault;
is a child of tender age. Incidentally, the
reference to Article 249 of the Code which 2. The act of sexual assault is
defines and penalizes the crime of homicide committed by any of the following
were the victim is under 12 years old is an means:
error. Killing a child under 12 is murder, not
homicide, because the victim is under no a. By inserting his penis into
position to defend himself as held in the another person's mouth or
case of People v. Ganohon, 196 SCRA anal orifice; or
431.
b. By inserting any instrument
For murder, the penalty provided by the or object into the genital or
Code, as amended by Republic Act No. anal orifice of another
7659, is reclusion perpetua to death person;
higher than what Republic Act no. 7610
provides. Accordingly, insofar as the crime 3. The act of sexual assault is
is murder, Article 248 of the Code, as accomplished under any of the
amended, shall govern even if the victim following circumstances:
was under 12 years of age. It is only in
respect of the crimes of intentional a. By using force or
mutilation in paragraph 2 of Article 262 and intimidation; or
of serious physical injuries in paragraph 1 of
Article 263 of the Code that the quoted b. When the woman is deprived
provision of Republic Act No. 7160 may be of reason or otherwise
applied for the higher penalty when the unconscious; or
victim is under 12 years old.
c. By means of fraudulent
machination or grave abuse
Article 266-A. Rape, When and How of authority; or
Committed
d. When the woman is under 12
Elements under paragraph 1 years of age or demented.
1. Offender is a man;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 228
party to the sexual intercourse, will not be The main distinction between the crime of
enough to bring about the crime of rape. attempted rape and acts of lasciviousness is
the intent to lie with the offended woman.
Note that it has been held that in the crime
of rape, conviction does not require medico- In a case where the accused jumped upon
legal finding of any penetration on the part a woman and threw her to the ground,
of the woman. A medico-legal certificate is although the accused raised her skirts, the
not necessary or indispensable to convict accused did not make any effort to remove
the accused of the crime of rape. her underwear. Instead, he removed his
own underwear and placed himself on top
It has also been held that although the of the woman and started performing sexual
offended woman who is the victim of the movements. Thereafter, when he was
rape failed to adduce evidence regarding finished, he stood up and left. The crime
the damages to her by reason of the rape, committed is only acts of lasciviousness
the court may take judicial notice that there and not attempted rape. The fact that he
is such damage in crimes against chastity. did not remove the underwear of the victim
The standard amount given now is P indicates that he does not have a real
30,000.00, with or without evidence of any intention to effect a penetration. It was only
moral damage. But there are some cases to satisfy a lewd design.
where the court awarded only P 20,000.00.
Is there a complex crime under Article 48 of
An accused may be convicted of rape on kidnapping with rape? Read kidnapping.
the sole testimony of the offended woman.
It does not require that testimony be
corroborated before a conviction may stand. TITLE IX. CRIMES AGAINST PERSONAL
This is particularly true if the commission of LIBERTY AND SECURITY
the rape is such that the narration of the
offended woman would lead to no other Crimes against liberty
conclusion except that the rape was
committed. 1. Kidnapping and serious illegal
detention (Art. 267);
Illustration:
2. Slight illegal detention (Art. 268);
Daughter accuses her own father of having
raped her. 3. Unlawful arrest (Art. 269);
It has also been ruled that rape can be 7. Exploitation of child labor (Art. 273);
committed in a standing position because
complete penetration is not necessary. The 8. Services rendered under compulsion
slightest penetration contact with the labia in payment of debts (Art. 274).
will consummate the rape.
9. Other light threats (Art. 285); If there is any crime under Title IX which
has no corresponding provision with crimes
10. Grave coercions (Art. 286); under Title II, then, the offender may be a
public officer or a private person. If there is
11. Light coercions (Art. 287); a corresponding crime under Title II, the
offender under Title IX for such similar
12. Other similar coercions (Art. 288); crime is a private person.
15. Revealing secrets with abus of office If a private person commits the crime of
(Art. 291); kidnapping or serious illegal detention, even
though a public officer conspires therein,
16. Revealing of industrial secrets (Art. the crime cannot be arbitrary detention. As
292). far as that public officer is concerned, the
crime is also illegal detention.
Article 267. Kidnapping and Serious In the actual essence of the crime, when
Illegal Detention one says kidnapping, this connotes the idea
of transporting the offended party from one
Elements place to another. When you think illegal
detention, it connotes the idea that one is
1. Offender is a private individual; restrained of his liberty without necessarily
transporting him from one place to another.
2. He kidnaps or detains another, or in
any other manner deprives the latter The crime of kidnapping is committed if the
of his liberty; purpose of the offender is to extort ransom
either from the victim or from any other
3. The act of detention or kidnapping person. But if a person is transported not
must be illegal; for ransom, the crime can be illegal
detention. Usually, the offended party is
4. In the commission of the offense, brought to a place other than his own, to
any of the following circumstances is detain him there.
present:
When one thinks of kidnapping, it is not only
a. The kidnapping lasts for that of transporting one person from one
more than 3 days; place to another. One also has to think of
the criminal intent.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 232
and the offender was anyone of the penalty. In a way, the amendment
parents, the latter has been depreciated the seriousness of the rape
expressly excluded from the because no matter how many times the
provision. The liability of the parent victim was raped, there will only be one
is provided for in the last paragraph kidnapping with rape. This would not be the
of Article 271; consequence if rape were a separate crime
from kidnapping because each act of rape
(3) A paragraph was added to Article would be a distinct count.
267, which states:
However for the crime to be kidnapping with
When the victim is rape, the offender should not have taken
killed or dies as a the victim with lewd designs as otherwise
consequence of the the crime would be forcible abduction; and if
detention or is raped, the victim was raped, the complex crime of
or is subjected to forcible abduction with rape would be
torture, or committed. If the taking was forcible
dehumanizing acts, abduction, and the woman was raped
the maximum penalty several times, there would only be one
shall be imposed. crime of forcible abduction with rape, and
each of the other rapes would constitute
This amendment brings about a distinct counts of rape. This was the ruling
composite crime of kidnapping with in the case of People v. Bacalso.
homicide when it is the victim of the
kidnapping who was killed, or dies In People v. Lactao, decided on October
as a consequence of the detention 29, 1993, the Supreme Court stressed that
and, thus, only one penalty is the crime is serious illegal detention if the
imposed which is death. purpose was to deprive the offended party
of her liberty. And if in the course of the
illegal detention, the offended party was
Article 48, on complex crimes, does not raped, a separate crime of rape would be
govern in this case. But Article 48 will committed. This is so because there is no
govern if any other person is killed aside, complex crime of serious illegal detention
because the provision specifically refers to with rape since the illegal detention was not
victim. Accordingly, the rulings in cases of a necessary means to the commission of
People v. Parulan, People v. Ging Sam, rape.
and other similar cases where the accused
were convicted for the complex crimes of In People v. Bernal, 131 SCRA 1, the
kidnapping with murder have become appellants were held guilty of separate
academic. crimes of serious illegal detention and of
multiple rapes. With the amendment by
In the composite crime of kidnapping with Republic Act No. 7659 making rape a
homicide, the term homicide is used in the qualifying circumstance in the crime of
generic sense and, thus, covers all forms of kidnapping and serious illegal detention, the
killing whether in the nature of murder or jurisprudence is superseded to the effect
otherwise. It does not matter whether the that the rape should be a distinct crime.
purpose of the kidnapping was to kill the Article 48 on complex crimes may not apply
victim or not, as long as the victim was when serious illegal detention and rape are
killed, or died as a consequence of the committed by the same offender. The
kidnapping or detention. There is no more offender will be charged for the composite
separate crime of kidnapping and murder if crime of serious illegal detention with rape
the victim was kidnapped not for the as a single indivisible offense, regardless of
purpose of killing her. the number of times that the victim was
raped.
If the victim was raped, this brings about the
composite crime of kidnapping with rape. Also, when the victim of the kidnapping and
Being a composite crime, not a complex serious illegal detention was subjected to
crime, the same is regarded as a single torture and sustained physical injuries, a
indivisible offense as in fact the law composite crime of kidnapping with physical
punishes such acts with only a single injuries is committed.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 234
This felony is committed if any of the five The prevailing rule now is Asistio v. Judge,
circumstances in the commission of which provides that voluntary release will
kidnapping or detention enumerated in only mitigate criminal liability if crime was
Article 267 is not present. slight illegal detention. If serious, it has no
effect.
The penalty is lowered if
In kidnapping for ransom, voluntary release
(1) The offended party is voluntarily will not mitigate the crime. This is because,
released within three days from the with the reimposition of the death penalty,
start of illegal detention; this crime is penalized with the extreme
penalty of death.
(2) Without attaining the purpose;
What is ransom? It is the money, price or
(3) Before the institution of the criminal consideration paid or demanded
action. for redemption of a captured
person or persons, a payment
One should know the nature of the illegal that releases a person from
detention to know whether the voluntary captivity.
release of the offended party will affect the
criminal liability of the offender. The definition of ransom under the Lindberg
law of the U.S. has been adopted in our
When the offender voluntarily releases the jurisprudence in People v. Akiran, 18
offended party from detention within three SCRA 239, 242, such that when a creditor
days from the time the restraint of liberty detains a debtor and releases the latter only
began, as long as the offender has not upon the payment of the debt, such
accomplished his purposes, and the release payment of the debt, which was made a
was made before the criminal prosecution condition for the release is ransom, under
was commenced, this would serve to this article.
mitigate the criminal liability of the offender,
provided that the kidnapping or illegal In the case of People v. Roluna, decided
detention is not serious. March 29, 1994, witnesses saw a person
being taken away with hands tied behind
If the illegal detention is serious, however, his back and was not heard from for six
even if the offender voluntarily released the years. Supreme Court reversed the trial
offended party, and such release was within court ruling that the men accused were
three days from the time the detention guilty of kidnapping with murder. The crime
began, even if the offender has not is only slight illegal detention under Article
accomplished his purpose in detaining the 268, aggravated by a band, since none of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 235
the circumstances in Article 267 has been If the detention or arrest is for a legal
proved beyond a reasonable doubt. The ground, but the public officer delays delivery
fact that the victim has been missing for six of the person arrested to the proper judicial
years raises a presumption of death, but authorities, then Article 125 will apply.
from this disputable presumption of death, it
should not be further presumed that the Note that this felony may also be committed
persons who were last seen with the by public officers.
absentee is responsible for his
disappearance.
Article 270. Kidnapping and Failure to
Return A Minor
Article 269. Unlawful Arrest
Elements
Elements
1. Offender is entrusted with the
1. Offender arrests or detains another custody of a minor person (whether
person; over or under seven years but less
than 21 years of age);
2. The purpose of the offender is to
deliver him to the proper authorities; 2. He deliberately fails to restore the
said minor to his parents or
3. The arrest or detention is not guardians.
authorized by law or there is no
reasonable ground therefor.
If any of the foregoing elements is absent,
the kidnapping of the minor will then fall
This felony consists in making an arrest or under Article 267.
detention without legal or reasonable
ground for the purpose of delivering the If the accused is any of the parents, Article
offended party to the proper authorities. 267 does not apply; Articles 270 and 271
apply.
The offended party may also be detained
but the crime is not illegal detention If the taking is with the consent of the
because the purpose is to prosecute the parents, the crime in Article 270 is
person arrested. The detention is only committed.
incidental; the primary criminal intention of
the offender is to charge the offended party In People v. Generosa, it was held that
for a crime he did not actually commit. deliberate failure to return a minor under
ones custody constitutes deprivation of
Generally, this crime is committed by liberty. Kidnapping and failure to return a
incriminating innocent persons by the minor is necessarily included in kidnapping
offenders planting evidence to justify the and serious illegal detention of a minor
arrest a complex crime results, that is, under Article 267(4).
unlawful arrest through incriminatory
machinations under Article 363. In People v. Mendoza, where a minor child
was taken by the accused without the
If the arrest is made without a warrant and knowledge and consent of his parents, it
under circumstances not allowing a was held that the crime is kidnapping and
warrantless arrest, the crime would be serious illegal detention under Article 267,
unlawful arrest. not kidnapping and failure to return a minor
under Article 270.
If the person arrested is not delivered to the
authorities, the private individual making the
arrest incurs criminal liability for illegal Article 271. Inducing A Minor to
detention under Article 267 or 268. Abandon His Home
wounded and already in danger of dying, entrusted such minor to the care of
there is an obligation to render assistance the offender or, in the absence of
only if he is found in an uninhabited place. that one, without the consent of the
If the mortally wounded, dying person is proper authorities;
found in a place not uninhabited in legal
contemplation, abandonment will not bring Elements
about this crime. An uninhabited place is
determined by possibility of person 1. Offender has charge of the
receiving assistance from another. Even if rearing or education of a
there are many houses around, the place minor;
may still be uninhabited if possibility of
receiving assistance is remote. 2. He delivers said minor to a
public institution or other
If what happened was an accident at first, persons;
there would be no liability pursuant to Article
12 (4) of the Civil Code damnum absque 3. The one who entrusted such
injuria. But if you abandon your victim, you child to the offender has not
will be liable under Article 275. Here, the consented to such act; or if
character of the place is immaterial. As the one who entrusted such
long as the victim was injured because of child to the offender is
the accident caused by the offender, the absent, the proper authorities
offender would be liable for abandonment if have not consented to it.
he would not render assistance to the
victim. 2. Neglecting his (offenders) children
by not giving them the education
which their station in life requires
Article 276. Abandoning A Minor and financial condition permits.
Elements Elements:
5. Inducing any child under 16 years of The owner of a circus employed a child
age to abandon the home of its under 16 years of age to do a balancing act
ascendants, guardians, curators or on the tightrope. The crime committed is
teachers to follow any person exploitation of minors (unless the employer
engaged in any of the callings is the ascendant of the minor who is not
mentioned in paragraph 2 or to below 12 years of age). If the child fell and
accompany any habitual vagrant or suffered physical injuries while working, the
beggar, the offender being any employer shall be liable for said physical
person. injuries in addition to his liability for
exploitation of minors.
If the purpose in entering the dwelling is not Distinction between qualified trespass to
shown, trespass is committed. If the dwelling and violation of domicile
purpose is shown, it may be absorbed in
the crime as in robbery with force upon Unlike qualified trespass to dwelling,
things, the trespass yielding to the more violation of domicile may be committed only
serious crime. But if the purpose is not by a public officer or employee and the
shown and while inside the dwelling he was violation may consist of any of the three
found by the occupants, one of whom was acts mentioned in Article 128 (1) entering
injured by him, the crime committed will be the dwelling against the will of the owner
trespass to dwelling and frustrated without judicial order; (2) searching papers
homicide, physical injuries, or if there was or other effects found in such dwelling
no injury, unjust vexation. without the previous consent of the owner
thereof; and (3) refusing to leave the
If the entry is made by a way not intended dwelling when so requested by the owner
for entry, that is presumed to be against the thereof, after having surreptitiously entered
will of the occupant (example, entry through such dwelling.
a window). It is not necessary that there be
a breaking. Cases when Article 280 does not apply:
Against the will -- This means that the (1) When the purpose of the entrance is
entrance is, either expressly or impliedly, to prevent serious harm to himself,
prohibited or the prohibition is presumed. the occupant or third persons;
Fraudulent entrance may constitute
trespass. The prohibition to enter may be (2) When the purpose of the offender in
made at any time and not necessarily at the entering is to render some service to
time of the entrance. humanity or justice;
To prove that an entry is against the will of (3) Anyone who shall enter cafes,
the occupant, it is not necessary that the taverns, inns and other public
entry should be preceded by an express houses while they are open .
prohibition, provided that the opposition of
the occupant is clearly established by the Pursuant to Section 6, Rule 113 of the
circumstances under which the entry is Rules of Court, a person who believes that
made, such as the existence of enmity or a crime has been committed against him
strained relations between the accused and has every right to go after the culprit and
the occupant. arrest him without any warrant even if in the
process he enters the house of another
against the latters will.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 240
Article 281. Other forms of trespass issuer of the threat did not pursue the act,
the crime is only other light threats under
Elements Article 285.
1. Offender enters the closed premises To constitute grave threats, the threats must
or the fenced estate of another; refer to a future wrong and is committed by
acts or through words of such efficiency to
2. The entrance is made while either of inspire terror or fear upon another. It is,
them is uninhabited; therefore, characterized by moral pressure
that produces disquietude or alarm.
3. The prohibition to enter is manifest;
The greater perversity of the offender is
4. The trespasser has not secured the manifested when the threats are made
permission of the owner or the demanding money or imposing any
caretaker thereof. condition, whether lawful or not, and the
offender shall have attained his purpose.
Article 282. Grave Threats So the law imposes upon him the penalty
next lower in degree than that prescribed
Acts punished: for the crime threatened to be committed.
But if the purpose is not attained, the
1. Threatening another with the penalty lower by two degrees is imposed.
infliction upon his person, honor or The maximum period of the penalty is
property or that of this family of any imposed if the threats are made in writing or
wrong amounting to a crime and through a middleman as they manifest
demanding money or imposing any evident premeditation.
other condition, even though not
unlawful, and the offender attained Distinction between threat and coercion:
his purpose;
The essence of coercion is violence or
2. Making such threat without the intimidation. There is no condition involved;
offender attaining his purpose; hence, there is no futurity in the harm or
wrong done.
3. Threatening another with the
infliction upon his person, honor or In threat, the wrong or harm done is future
property or that of his family of any and conditional. In coercion, it is direct and
wrong amounting to a crime, the personal.
threat not being subject to a
condition. Distinction between threat and robbery:
(5) In robbery, the robber makes the destierro to prevent him from carrying out
danger involved in his threats his threat.
directly imminent to the victim and
the obtainment of his gain
immediate, thereby also taking Article 285. Other Light Threats
rights to his person by the
opposition or resistance which the Acts punished
victim might offer; in threat, the
danger to the victim is not instantly 1. Threatening another with a weapon,
imminent nor the gain of the culprit or by drawing such weapon in a
immediate. quarrel, unless it be in lawful self-
defense;
Grave coercion arises only if the act which In Lee v. CA, 201 SCAR 405, it was held
the offender prevented another to do is not that neither the crime of threats nor
prohibited by law or ordinance. If the act coercion is committed although the
prohibited was illegal, he is not liable for accused, a branch manager of a
grave coercion. bank made the complainant sign a
withdrawal slip for the amount
If a person prohibits another to do an act needed to pay the spurious dollar
because the act is a crime, even though check she had encashed, and also
some sort of violence or intimidation is made her execute an affidavit
employed, it would not give rise to grave regarding the return of the amount
coercion. It may only give rise to threat or against her better sense and
physical injuries, if some injuries are judgment. According to the court,
inflicted. However, in case of grave the complainant may have acted
coercion where the offended party is being reluctantly and with hesitation, but
compelled to do something against his will, still, it was voluntary. It is different
whether it be wrong or not, the crime of when a complainant refuses
grave coercion is committed if violence or absolutely to act such an extent that
intimidation is employed in order to compel she becomes a mere automaton
him to do the act. No person shall take the and acts mechanically only, not of
law into his own hands. her own will. In this situation, the
complainant ceases to exits as an
Illustration: independent personality and the
person who employs force or
Compelling the debtor to deliver some of his intimidation is, in the eyes of the law,
properties to pay a creditor will amount to the one acting; while the hand of the
coercion although the creditor may have a complainant sign, the will that
right to collect payment from the debtor, moves it is the hand of the offender.
even if the obligation is long over due.
In unjust vexation, any act committed of any kind from him or from
without violence, but which unjustifiably said firm or corporation.
annoys or vexes an innocent person
amounts to light coercion. 2. Paying the wages due his laborer or
employee by means of tokens or
As a punishable act, unjust vexation should object other than the legal tender
include any human conduct which, although currency of the Philippines, unless
not productive of some physical or material expressly requested by such laborer
harm would, however, unjustifiably annoy or or employee.
vex an innocent person.
Elements:
It is distinguished from grave coercion
under the first paragraph by the absence of 1. Offender pays the wages due
violence. a laborer or employee
employed by him by means
Illustration: of tokens or object;
According to Ortega, it is not necessary that 2. He learns the secrets of his principal
the offender should actually discover the or master in such capacity;
contents of the letter. Reyes, citing People
v. Singh, CA, 40 OG, Suppl. 5, 35, 3. He reveals such secrets.
believes otherwise.
A business secret must not be known to 16. Other forms of swindling (Art. 316);
other business entities or persons. It is a
matter to be discovered, known and used 17. Swindling a minor (Art. 317);
by and must belong to one person or entity
exclusively. One who merely copies their 18. Other deceits (Art. 318);
machines from those already existing and
functioning cannot claim to have a business 19. Removal, sale or pledge of
secret, much less, a discovery within the mortgaged property (Art. 319);
contemplation of Article 292.
20. Destructive arson (Art. 320);
TITLE X. CRIMES AGAINST PROPERTY 21. Other forms of arson (Art. 321);
Illustration: Illustration:
one killed. Even though the placing of the In People v. Domingo, 184 SCRA 409, on
firearm on the table where there is no safety the occasion of the robbery, the
precaution taken may be considered as one storeowner, a septuagenarian,
of negligence or imprudence, you do not suffered a stroke due to the extreme
separate the homicide as one of the product fear which directly caused his death
of criminal negligence. It will still be robbery when the robbers pointed their guns
with homicide, whether the person killed is at him. It was held that the crime
connected with the robbery or not. He need committed was robbery with
not also be in the place of the robbery. homicide. It is immaterial that death
supervened as a mere accident as
In one case, in the course of the struggle in long as the homicide was produced
a house where the robbery was being by reason or on the occasion of the
committed, the owner of the place tried to robbery, because it is only the result
wrest the arm of the robber. A person which matters, without reference to
several meters away was the one who got the circumstances or causes or
killed. The crime was held to be robbery persons intervening in the
with homicide. commission of the crime which must
be considered.
Note that the person killed need not be one
who is identified with the owner of the place Remember also that intent to rob must be
where the robbery is committed or one who proved. But there must be an allegation as
is a stranger to the robbers. It is enough to the robbery not only as to the intention to
that the homicide was committed by reason rob.
of the robbery or on the occasion thereof.
If the motive is to kill and the taking is
Illustration: committed thereafter, the crimes committed
are homicide and theft. If the primordial
There are two robbers who broke into a intent of the offender is to kill and not to rob
house and carried away some valuables. but after the killing of the victims a robbery
After they left such house these two robbers was committed, then there are will be two
decided to cut or divide the loot already so separate crimes.
that they can go of them. So while they are
dividing the loot the other robber noticed Illustration:
that the one doing the division is trying to
cheat him and so he immediately boxed If a person had an enemy and killed him
him. Now this robber who was boxed then and after killing him, saw that he had a
pulled out his gun and fired at the other one beautiful ring and took this, the crime would
killing the latter. Would that bring about the be not robbery with homicide because the
crime of robbery with homicide? Yes. Even primary criminal intent is to kill. So, there
if the robbery was already consummated, will be two crimes: one for the killing and
the killing was still by reason of the robbery one for the taking of the property after the
because they quarreled in dividing the loot victim was killed. Now this would bring
that is the subject of the robbery. about the crime of theft and it could not be
robbery anymore because the person is
already dead.
Where the victims were killed, not for the crime is against property which is a single
purpose of committing robbery, and indivisible offense.
the idea of taking the money and
other personal property of the If the woman, who was raped on the
victims was conceived by the occasion of the robbery, pardoned the rapist
culprits only after the killing, it was who is one of the robbers, that would not
held in People v. Domingo, 184 erase the crime of rape. The offender
SCRA 409, that the culprits would still be prosecuted for the crime of
committed two separate crimes of robbery with rape, as long as the rape is
homicide or murder (qualified by consummated.
abuse of superior strength) and
theft. If the rape is attempted, since it will be a
separate charge and the offended woman
The victims were killed first then their pardoned the offender, that would bring
money was taken the money from about a bar to the prosecution of the
their dead bodies. This is robbery attempted rape. If the offender married the
with homicide. It is important here offended woman, that would extinguish the
that the intent to commit robbery criminal liability because the rape is the
must precede the taking of human subject of a separate prosecution.
life in robbery with homicide. The
offender must have the intent to take The intention must be to commit robbery
personal property before the killing. and even if the rape is committed before the
robbery, robbery with rape is committed.
It must be conclusively shown that the But if the accused tried to rape the offended
homicide was committed for the party and because of resistance, he failed
purpose of robbing the victim. In to consummate the act, and then he
People v. Hernandez, appellants snatched the vanity case from her hands
had not thought of robbery prior to when she ran away, two crimes are
the killing. The thought of taking the committed: attempted rape and theft.
victims wristwatch was conceived
only after the killing and throwing of There is no complex crime under Article 48
the victim in the canal. Appellants because a single act is not committed and
were convicted of two separate attempted rape is not a means necessary to
crimes of homicide and theft as commit theft and vice-versa.
there is absent direct relation and
intimate connection between the The Revised Penal Code does not
robbery and the killing. differentiate whether rape was committed
before, during or after the robbery. It is
enough that the robbery accompanied the
On robbery with rape rape. Robbery must not be a mere accident
or afterthought.
This is another form of violence or
intimidation upon person. The rape In People v. Flores, 195 SCRA 295,
accompanies the robbery. In this case although the offenders plan was to get the
where rape and not homicide is committed, victims money, rape her and kill her, but in
there is only a crime of robbery with rape if the actual execution of the crime, the
both the robbery and the rape are thoughts of depriving the victim of her
consummated. If during the robbery, valuables was relegated to the background
attempted rape were committed, the crimes and the offenders prurient desires
would be separate, that is, one for robbery surfaced. They persisted in satisfying their
and one for the attempted rape. lust. They would have forgotten about their
intent to rob if not for the accidental
The rape committed on the occasion of the touching of the victims ring and wristwatch.
robbery is not considered a private crime The taking of the victims valuables turned
because the crime is robbery, which is a out to be an afterthought. It was held that
crime against property. So, even though two distinct crimes were committed: rape
the robber may have married the woman with homicide and theft.
raped, the crime remains robbery with rape.
The rape is not erased. This is because the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 250
In People v. Dinola, 183 SCRA 493, it was for more than 30 days that the law requires
held that if the original criminal design of the such physical injuries to have been inflicted
accused was to commit rape and after in the course of the execution of the
committing the rape, the accused robbery, and only upon persons who are not
committed robbery because the opportunity responsible in the commission of the
presented itself, two distinct crimes rape robbery.
and robbery were committed not robbery
with rape. In the latter, the criminal intent to But if the physical injuries inflicted are those
gain must precede the intent to rape. falling under subdivision 1 and 2 of Article
263, even though the physical injuries were
inflicted upon one of the robbers
On robbery with physical injuries themselves, and even though it had been
inflicted after the robbery was already
To be considered as such, the physical consummated, the crime will still be robbery
injuries must always be serious. If the with serious physical injuries. There will
physical injuries are only less serious or only be one count of accusation.
slight, they are absorbed in the robbery.
The crime becomes merely robbery. But if Illustration:
the less serious physical injuries were
committed after the robbery was already After the robbers fled from the place where
consummated, there would be a separate the robbery was committed, they decided to
charge for the less serious physical injuries. divide the spoils and in the course of the
It will only be absorbed in the robbery if it division of the spoils or the loot, they
was inflicted in the course of the execution quarreled. They shot it out and one of the
of the robbery. The same is true in the case robbers was killed. The crime is still
of slight physical injuries. robbery with homicide even though one of
the robbers was the one killed by one of
Illustration: them. If they quarreled and serious
physical injuries rendered one of the
After the robbery had been committed and robbers impotent, blind in both eyes, or got
the robbers were already fleeing from the insane, or he lost the use of any of his
house where the robbery was committed, senses, lost the use of any part of his body,
the owner of the house chased them and the crime will still be robbery with serious
the robbers fought back. If only less physical injuries.
serious physical injuries were inflicted, there
will be separate crimes: one for robbery If the robbers quarreled over the loot and
and one for less serious physical injuries. one of the robbers hacked the other robber
causing a deformity in his face, the crime
But if after the robbery was committed and will only be robbery and a separate charge
the robbers were already fleeing from the for the serious physical injuries because
house where the robbery was committed, when it is a deformity that is caused, the
the owner or members of the family of the law requires that the deformity must have
owner chased them, and they fought back been inflicted upon one who is not a
and somebody was killed, the crime would participant in the robbery. Moreover, the
still be robbery with homicide. But if serious physical injuries which gave rise to the
physical injuries were inflicted and the deformity or which incapacitated the
serious physical injuries rendered the victim offended party from labor for more than 30
impotent or insane or the victim lost the use days, must have been inflicted in the course
of any of his senses or lost a part of his of the execution of the robbery or while the
body, the crime would still be robbery with robbery was taking place.
serious physical injuries. The physical
injuries (serious) should not be separated If it was inflicted when the thieves/robbers
regardless of whether they retorted in the are already dividing the spoils, it cannot be
course of the commission of the robbery or considered as inflicted in the course of
even after the robbery was consummated. execution of the robbery and hence, it will
not give rise to the crime of robbery with
In Article 299, it is only when the physical serious physical injuries. You only have
injuries resulted in the deformity or one count of robbery and another count for
incapacitated the offended party from labor the serious physical injuries inflicted.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 251
1. In an uninhabited place;
2. By a band;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 252
where the robbery was committed. If no because that is not an opening intended for
entry was effected, even though force may the purpose.
have been employed actually in the taking
of the property from within the premises, the Even of there is a breaking of wall, roof,
crime will only be theft. floor or window, but the offender did not
enter, it would not give rise to robbery with
Two predicates that will give rise to the force upon things.
crime as robbery:
Breaking of the door under Article299 (b)
1. By mere entering alone, a robbery Originally, the interpretation was that
will be committed if any personal in order that there be a breaking of
property is taken from within; the door in contemplation of law, there
must be some damage to the door.
2. The entering will not give rise to
robbery even if something is taken Before, if the door was not damaged but
inside. It is the breaking of the only the lock attached to the door was
receptacle or closet or cabinet broken, the taking from within is only theft.
where the personal property is kept But the ruling is now abandoned because
that will give rise to robbery, or the the door is considered useless without the
taking of a sealed, locked receptacle lock. Even if it is not the door that was
to be broken outside the premises. broken but only the lock, the breaking of the
lock renders the door useless and it is
If by the mere entering, that would already therefore tantamount to the breaking of the
qualify the taking of any personal property door. Hence, the taking inside is
inside as robbery, it is immaterial whether considered robbery with force upon things.
the offender stays inside the premises. The
breaking of things inside the premises will If the entering does not characterize the
only be important to consider if the entering taking inside as one of robbery with force
by itself will not characterize the crime as upon things, it is the conduct inside that
robbery with force upon things. would give rise to the robbery if there would
be a breaking of sealed, locked or closed
Modes of entering that would give rise to receptacles or cabinet in order to get the
the crime of robbery with force upon things personal belongings from within such
if something is taken inside the premises: receptacles, cabinet or place where it is
entering into an opening not intended for kept.
entrance or egress, under Article 299 (a).
If in the course of committing the robbery
Illustration: within the premises some interior doors are
broken, the taking from inside the room
The entry was made through a fire escape. where the door leads to will only give rise to
The fire escape was intended for egress. theft. The breaking of doors contemplated
The entry will not characterize the taking as in the law refers to the main door of the
one of robbery because it is an opening house and not the interior door.
intended for egress, although it may not be
intended for entrance. If the entering were But if it is the door of a cabinet that is
done through the window, even if the broken and the valuable inside the cabinet
window was not broken, that would was taken, the breaking of the cabinet door
characterize the taking of personal property would characterize the taking as robbery.
inside as robbery because the window is Although that particular door is not included
not an opening intended for entrance. as part of the house, the cabinet keeps the
contents thereof safe.
Illustration:
Use of picklocks or false keys refers to the It is only theft because the premises
entering into the premises If the where the simulation of public authority was
picklock or false key was used committed is not an inhabited house, not a
not to enter the premises public building, and not a place devoted to
because the offender had already religious worship. Where the house is a
entered but was used to unlock private building or is uninhabited, even
an interior door or even a though there is simulation of public authority
receptacle where the valuable or in committing the taking or even if he used
personal belonging was taken, a fictitious name, the crime is only theft.
the use of false key or picklock
will not give rise to the robbery Note that in the crime of robbery with force
with force upon things because upon things, what should be considered is
these are considered by law as the means of entrance and means of taking
only a means to gain entrance, the personal property from within. If those
and not to extract personal means do not come within the definition
belongings from the place where under the Revised Penal Code, the taking
it is being kept. will only give rise to theft.
The law classifies robbery with force upon Those means must be employed in
things as those committed in: entering. If the offender had already
entered when these means were employed,
(1) an inhabited place; anything taken inside, without breaking of
any sealed or closed receptacle, will not
(2) public buildings; give rise to robbery.
The law also considers robbery committed A found B inside his (As) house. He asked
not in an inhabited house or in a private B what the latter was doping there. B
building. claimed he is an inspector from the local
city government to look after the electrical
Note that the manner of committing the installations. At the time B was chanced
robbery with force upon things is not the upon by A, he has already entered. So
same. anything he took inside without breaking of
any sealed or closed receptacle will not give
When the robbery is committed in a house rise to robbery because the simulation of
which is inhabited, or in a public building or public authority was made not in order to
in a place devoted to religious worship, the enter but when he has already entered.
use of fictitious name or pretension to
possess authority in order to gain entrance Article 301 defines an inhabited house,
will characterize the taking inside as public building, or building dedicated to
robbery with force upon things. religious worship and their dependencies,
thus:
1. Offender entered an uninhabited Article 305 defines false keys to include the
place or a building which was not a following:
dwelling house, not a public building,
or not an edifice devoted to religious 1. Tools mentioned in Article 304;
worship;
2. Genuine keys stolen from the owner;
2. Any of the following circumstances
was present: 3. Any key other than those intended
by the owner for use in the lock
a. The entrance was effected forcibly opened by the offender.
through an opening not
intended for entrance or
egress; Brigandage This is a crime committed by
more than three armed persons who form a
b. A wall, roof, floor, or outside band of robbers for the purpose of
door or window was broken; committing robbery in the highway or
kidnapping persons for the purpose of
c. The entrance was effected extortion or to obtain ransom, or for any
through the use of false keys, other purpose to be attained by means of
picklocks or other similar force and violence.
tools;
Article 306. Who Are Brigands
d. A door, wardrobe, chest, or
any sealed or closed Elements of brigandage
furniture or receptacle was
broken; or 1. There are least four armed persons;
Article 307. Aiding and Abetting A Band Brigandage under Presidential Decree No.
of Brigands 532 refers to the actual commission of the
robbery on the highway and can be
Elements committed by one person alone. It is this
brigandage which deserves some attention
1. There is a band of brigands; because not any robbery in a highway is
brigandage or highway robbery. A
2. Offender knows the band to be of distinction should be made between
brigands; highway robbery/brigandage under the
decree and ordinary robbery committed on
3. Offender does any of the following a highway under the Revised Penal Code.
acts:
In People v. Puno, decided February 17,
a. He in any manner aids, abets 1993, the trial court convicted the
or protects such band of accused of highway robbery/
brigands; brigandage under Presidential
Decree No. 532 and sentenced
b. He gives them information of them to reclusion perpetua. On
the movements of the police appeal, the Supreme Court set
or other peace officers of the aside the judgment and found the
government; or accused guilty of simple robbery as
punished in Article 294 (5), in
c. He acquires or receives the relation to Article 295, and
property taken by such sentenced them accordingly. The
brigands. Supreme Court pointed out that the
purpose of brigandage is, inter alia,
indiscriminate highway robbery. And
Distinction between brigandage under the that PD 532 punishes as highway
Revised Penal Code and highway robbery or Brigandage only acts of
robbery/brigandage under robbery perpetrated by outlaws
Presidential Decree No. 532: indiscriminately against any person
or persons on a Philippine highway
(1) Brigandage as a crime under the as defined therein, not acts
Revised Penal Code refers to the committed against a predetermined
formation of a band of robbers by or particular victim. A single act of
more than three armed persons for robbery against a particular person
the purpose of committing robbery in chosen by the offender as his
the highway, kidnapping for specific victim, even if committed on
purposes of extortion or ransom, or a highway, is not highway robbery or
for any other purpose to be attained brigandage.
by force and violence. The mere
forming of a band, which requires at In US v. Feliciano, 3 Phil. 422, it was
least four armed persons, if for any pointed out that highway robbery or
of the criminal purposes stated in brigandage is more than ordinary robbery
Article 306, gives rise to brigandage. committed on a highway. The purpose of
brigandage is indiscriminate robbery in
(2) Highway robbery/brigandage under highways. If the purpose is only a particular
Presidential Decree No. 532 is the robbery, the crime is only robbery or
seizure of any person for ransom, robbery in band, if there are at least four
extortion or for any other lawful armed participants.
purposes, or the taking away of the
property of another by means of Presidential Decree No. 532 introduced
violence against or intimidation of amendments to Article 306 and 307 by
persons or force upon things or increasing the penalties. It does not require
other unlawful means committed by at least four armed persons forming a band
any person on any Philippine of robbers. It does not create a
highway. presumption that the offender is a brigand
when he an unlicensed firearm is used
unlike the Revised Penal Code. But the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 257
Article 308. Who Are Liable for Theft In People v. Judge de Guzman, it was
held that fencing is not a continuing offense.
Persons liable Jurisdiction is with the court of the place
where the personal property subject of the
1. Those who with intent to gain, but robbery or theft was possessed, bought,
without violence against or kept, or dealt with. The place where the
intimidation of persons nor force theft or robbery was committed was
upon things, take personal property inconsequential.
of another without the latters
consent; Since Section 5 of Presidential Decree No.
1612 expressly provides that mere
2. Those who having found lost possession of anything of value
property, fails to deliver the same to which has been subject of theft or
the local authorities or to its owner; robbery shall be prima facie
evidence of fencing, it follows that a
3. Those who, after having maliciously possessor of stolen goods is
damaged the property of another, presumed to have knowledge that
remove or make use of the fruits or the goods found in his possession
objects of the damage caused by after the fact of theft or robbery has
them; been established. The presumption
does not offend the presumption of
4. Those who enter an enclosed estate innocence in the fundamental law.
or a field where trespass is forbidden This was the ruling in Pamintuan v.
or which belongs to another and, People, decided on July 11, 1994.
without the consent of its owner,
hunt or fish upon the same or gather Burden of proof is upon fence to overcome
fruits, cereals or other forest or farm presumption; if explanation insufficient or
products. unsatisfactory, court will convict. This is a
malum prohibitum so intent is not material.
But if prosecution is under the Revised
Elements Penal Code, as an accessory, the criminal
intent is controlling.
1. There is taking of personal property;
When there is notice to person buying,
2. The property taken belongs to there may be fencing such as when the
another; price is way below ordinary prices; this may
serve as notice. He may be liable for
3. The taking was done with intent to fencing even if he paid the price because of
gain; the presumption.
4. The taking was done without the Cattle Rustling and Qualified Theft of Large
consent of the owner; Cattle The crime of cattle-rustling is
defined and punished under Presidential
5. The taking is accomplished without Decree No. 533, the Anti-Cattle Rustling
the use of violence against or law of 1974, as the taking by any means,
intimidation of persons of force upon method or scheme, of any large cattle, with
things. or without intent to gain and whether
committed with or without violence against
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 258
or intimidation of person or force upon Presidential Decree No. 533 is not a special
things, so long as the taking is without the law in the context of Article 10 of the
consent of the owner/breed thereof. The Revised Penal Code. It merely
crime includes the killing or taking the meat modified the penalties provided for
or hide of large cattle without the consent of theft of large cattle under the
the owner. Revised Penal Code and amended
Article 309 and 310. This is explicit
Since the intent to gain is not essential, the from Section 10 of the Presidential
killing or destruction of large cattle, even Decree. Consequently, the trial
without taking any part thereof, is not a court should not have convicted the
crime of malicious mischief but cattle- accused of frustrated murder
rustling. separately from cattle-rustling, since
the former should have been
The Presidential Decree, however, does not absorbed by cattle-rustling as killing
supersede the crime of qualified theft of was a result of or on the occasion of
large cattle under Article 310 of the Revised cattle-rustling. It should only be an
Penal Code, but merely modified the aggravating circumstance. But
penalties provided for theft of large cattle because the information did not
and, to that extent, amended Articles 309 allege the injury, the same can no
and 310. Note that the overt act that gives longer be appreciated; the crime
rise to the crime of cattle-rustling is the should, therefore be only, simple
taking or killing of large cattle. Where the cattle-rustling. (People v.
large cattle was not taken, but received by Martinada, February 13, 1991)
the offender from the owner/overseer
thereof, the crime is not cattle-rustling; it is
qualified theft of large cattle. Article 310. Qualified Theft
This covers the three different ways (The fourth element is not necessary
of committing estafa under Article when there is evidence of
315; thus, estafa is committed misappropriation of the goods by the
defendant. [Tubb v. People, et al.,
a. With unfaithfulness or abuse 101 Phil. 114] ).
of confidence;
2. Offended party delivered it to the (2) The check is drawn to enter into an
offender; obligation;
3. Above the signature of the offended (Remember that it is the check that
party, a document is written by the is supposed to be the sole
offender without authority to do so; consideration for the other party to
have entered into the obligation.
4. The document so written creates a For example, Rose wants to
liability of, or causes damage to, the purchase a bracelet and draws a
offended party or any third person. check without sufficient funds. The
jeweler sells her the bracelet solely
because of the consideration in the
Elements of estafa by means of false check.)
pretenses or fraudulent acts under Article
315 (2) (3) It does not cover checks where the
purpose of drawing the check is to
Acts punished under paragraph (a) guarantee a loan as this is not an
obligation contemplated in this
1. Using fictitious name; paragraph
3. By means of other similar deceits. The general rule is that the accused must
be able to obtain something from the
offended party by means of the check he
Under paragraph (b) issued and delivered. Exception: when the
check is issued not in payment of an
Altering the quality, fineness, or weight of obligation.
anything pertaining to his art or business.
It must not be promissory notes, or
guaranties.
Under paragraph (c)
Good faith is a defense.
Pretending to have bribed any government
employee, without prejudice to the action for If the checks were issued by the defendant
calumny which the offended party may and he received money for them, then
deem proper to bring against the offender. stopped payment and did not return the
money, and he had an intention to stop
payment when he issued the check, there is
Under paragraph (d) estafa.
3. The person who makes or (3) In the estafa under Article 315 (2)
draws and issued the check (d), deceit and damage are material,
knows at the time of issue while in Batas Pambansa Blg. 22,
that he does not have they are immaterial.
sufficient funds in or credit
with the drawee bank for the (4) In estafa under Article 315 (2) (d),
payment of such check in full knowledge by the drawer of
upon its presentment; insufficient funds is not required,
while in Batas Pambansa Blg. 22,
3. The check is subsequently knowledge by the drawer of
dishonored by the drawee insufficient funds is reqired.
bank for insufficiency of
funds or credit, or would
have been dishonored for the When is there prima facie evidence of
same reason had not the knowledge of insufficient funds?
drawer, without any valid
reason, ordered the bank to There is a prima facie evidence of
stop payment. knowledge of insufficient funds when the
check was presented within 90 days from
the date appearing on the check and was
B. 1. A person has sufficient funds dishonored.
in or credit with the drawee
bank when he makes or Exceptions
draws and issues a check;
1. When the check was presented after
2. He fails to keep sufficient 90 days from date;
funds or to maintain a credit
to cover the full amount of 2. When the maker or drawer --
the check if presented within
90 days from the date a. Pays the holder of the check
appearing; the amount due within five
banking days after receiving
3. The check is dishonored by notice that such check has
the drawee bank. not been paid by the drawee;
If the check is drawn for a pre- If the drawee bank received an order of
existing obligation, there is criminal stop-payment from the drawer with no
liability only under Batas Pambansa reason, it must be stated that the funds are
Blg. 22. insufficient to be prosecuted here.
(2) Estafa under Article 315 (2) (d) is a The unpaid or dishonored check with the
crime against property while Batas stamped information re: refusal to pay is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 263
Elements
Under paragraph 2 by disposing of real
property as free from encumbrance, 1. Offender is a surety in a bond given
although such encumbrance be not in a criminal or civil action;
recorded
2. He guaranteed the fulfillment of such
Elements obligation with his real property or
properties;
1. The thing disposed is a real
property:
1. Personal property is
Article 317. Swindling A Minor mortgaged under the Chattel
Mortgage Law;
Elements
2. Offender knows that such
1. Offender takes advantage of the property is so mortgaged;
inexperience or emotions or feelings
of a minor; 3. Offender removes such
mortgaged personal property
2. He induces such minor to assume to any province or city other
an obligation or to give release or to than the one in which it was
execute a transfer of any property located at the time of the
right; execution of the mortgage;
Article 327. Who Are Liable for Malicious Article 329. Other Mischiefs
Mischief
All other mischiefs not included in the next
Elements preceding article
1. Theft;
2. Estafa; and
3. Malicious mischief.
2. Widowed spouse with respect to the the disturbance to the order of society. For
property which belonged to the the law gives the offended party the
deceased spouse before the same preference whether to sue or not to sue.
passed into the possession of But the moment the offended party has
another initiated the criminal complaint, the public
prosecutor will take over and continue with
3. Brothers and sisters and brothers-in- prosecution of the offender. That is why
law and sisters-in-law, if living under Article 344, if the offended party
together. pardons the offender, that pardon will only
be valid if it comes before the prosecution
starts. The moment the prosecution starts,
Only the relatives enumerated incur no the crime has already become public and it
liability if the crime relates to theft (not is beyond the offended party to pardon the
robbery), swindling, and malicious mischief. offender.
Third parties who participate are not
exempt. The relationship between the Article 333. Who Are Guilty of Adultery
spouses is not limited to legally married
couples; the provision applies to live-in Elements
partners.
1. The woman is married;
Estafa should not be complexed with any
other crime in order for exemption to 2. She has sexual intercourse with a
operate. man not her husband;
Under this article, the offended party Article 337. Qualified Seduction
may be a man or a woman. The
crime committed, when the act Acts punished
performed with lewd design was
perpetrated under circumstances 1. Seduction of a virgin over 12 years
which would have brought about the and under 18 years of age by certain
crime of rape if sexual intercourse persons, such as a person in
was effected, is acts of authority, priest, teacher; and
lasciviousness under this article.
This means that the offended party Elements
is either
1. Offended party is a virgin,
(1) under 12 years of age; or which is presumed if she is
unmarried and of good
(2) being over 12 years of age, reputation;
the lascivious acts were
committed on him or her 2. She is over 12 and under 18
through violence or years of age;
intimidation, or while the
offender party was deprived 3. Offender has sexual
of reason, or otherwise intercourse with her;
unconscious.
4. There is abuse of authority,
2. Article 339. Acts of Lasciviousness confidence or relationship on
with the Consent of the Offended the part of the offender.
Party:
2. Seduction of a sister by her brother,
Under this article, the victim is or descendant by her ascendant,
limited only to a woman. The regardless of her age or reputation.
circumstances under which the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 271
Illustration:
Person liable
If a person goes to a sauna parlor and finds
1. Those who abused their authority there a descendant and despite that, had
sexual intercourse with her, regardless of
a. Person in public authority; her reputation or age, the crime of qualified
seduction is committed.
b. Guardian;
In the case of a teacher, it is not necessary
c. Teacher; that the offended woman be his student. It
is enough that she is enrolled in the same
d. Person who, in any capacity, school.
is entrusted with the
education or custody of the Deceit is not necessary in qualified
woman seduced; seduction. Qualified seduction is committed
even though no deceit intervened or even
2. Those who abused confidence when such carnal knowledge was voluntary
reposed in them on the part of the virgin. This is because in
such a case, the law takes for granted the
a. Priest; existence of the deceit as an integral
element of the crime and punishes it with
b. House servant; greater severity than it does the simple
seduction, taking into account the abuse of
c. Domestic; confidence on the part of the agent. Abuse
of confidence here implies fraud.
3. Those who abused their relationship
Article 338. Simple Seduction
a. Brother who seduced his
sister; Elements
The failure to comply with the promise of 1. The person abducted is any woman,
marriage constitutes the deceit mentioned regardless or her age, civil status, or
in the law. reputation;
Elements
A woman is carried against her will or
1. Offender commits acts of brought from one place to another against
lasciviousness or lewdness; her will with lewd design.
2. The acts are committed upon a If the element of lewd design is present, the
woman who is a virgin or single or carrying of the woman would qualify as
widow of good reputation, under 18 abduction; otherwise, it would amount to
years of age but over 12 years, or a kidnapping. If the woman was only brought
sister or descendant, regardless of to a certain place in order to break her will
her reputation or age; and make her agree to marry the offender,
the crime is only grave coercion because
3. Offender accomplishes the acts by the criminal intent of the offender is to force
abuse of authority, confidence, his will upon the woman and not really to
relationship, or deceit. restrain the woman of her liberty.
committed and a complex crime of forcible there would be one count of forcible
abduction with rape is committed. abduction with rape and then each of them
will answer for his own rape and the rape of
The taking away of the woman may be the others minus the first rape which was
accomplished by means of deceit at the complexed with the forcible abduction. This
beginning and then by means of violence ruling is no longer the prevailing rule. The
and intimidation later. view adopted in cases of similar nature is to
the effect that where more than one person
The virginity of the complaining witness is has effected the forcible abduction with
not a determining factor in forcible rape, all the rapes are just the
abduction. consummation of the lewd design which
characterizes the forcible abduction and,
In order to demonstrate the presence of the therefore, there should only be one forcible
lewd design, illicit criminal relations with the abduction with rape.
person abducted need not be shown. The
intent to seduce a girl is sufficient. In the crimes involving rape, abduction,
seduction, and acts of lasciviousness, the
If there is a separation in fact, the taking by marriage by the offender with the offended
the husband of his wife against her will woman generally extinguishes criminal
constitutes grave coercion. liability, not only of the principal but also of
the accomplice and accessory. However,
Distinction between forcible abduction and the mere fact of marriage is not enough
illegal detention: because it is already decided that if the
offender marries the offended woman
When a woman is kidnapped with lewd or without any intention to perform the duties
unchaste designs, the crime committed is of a husband as shown by the fact that after
forcible abduction. the marriage, he already left her, the
marriage would appear as having been
When the kidnapping is without lewd contracted only to avoid the punishment.
designs, the crime committed is illegal Even with that marriage, the offended
detention. woman could still prosecute the offender
and that marriage will not have the effect of
But where the offended party was forcibly extinguishing the criminal liability.
taken to the house of the defendant to
coerce her to marry him, it was held that Pardon by the offended woman of the
only grave coercion was committed and not offender is not a manner of extinguishing
illegal detention. criminal liability but only a bar to the
prosecution of the offender. Therefore, that
pardon must come before the prosecution is
Article 343. Consented Abduction commenced. While the prosecution is
already commenced or initiated, pardon by
Elements the offended woman will no longer be
effective because pardon may preclude
1. Offended party is a virgin; prosecution but not prevent the same.
2. She is over 12 and under 18 years All these private crimes except rape
of age; cannot be prosecuted de officio. If any
slander or written defamation is made out of
3. Offender takes her away with her any of these crimes, the complaint of the
consent, after solicitation or cajolery; offended party is till necessary before such
case for libel or oral defamation may
4. The taking away is with lewd proceed. It will not prosper because the
designs. court cannot acquire jurisdiction over these
crimes unless there is a complaint from the
offended party. The paramount decision of
Where several persons participated in the whether he or she wanted the crime
forcible abduction and these persons also committed on him or her to be made public
raped the offended woman, the original is his or hers alone, because the indignity or
ruling in the case of People v. Jose is that dishonor brought about by these crimes
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 274
TITLE XII. CRIMES AGAINST THE CIVIL 1. A woman who has given birth
STATUS OF PERSONS to a child abandons the child in a certain
place to free herself of the obligation and
Crimes against the civil status of persons duty of rearing and caring for the child.
What crime is committed by the woman?
1. Simulation of births, substitution of
one child for another and The crime committed is abandoning
concealment or abandonment of a a minor under Article 276.
legitimate child (art. 347);
2. Suppose that the purpose of
2. Usurpation of civil status (Art. 348); the woman is abandoning the child is to
preserve the inheritance of her child by a
3. Bigamy (Art. 349); former marriage, what then is the crime
committed?
4. Marriage contracted against
provisions of law (Art. 350); The crime would fall under the
second paragraph of Article 347. The
5. Premature marriages (Art. 351); purpose of the woman is to cause the child
to lose its civil status so that it may not be
6. Performance of illegal marriage able to share in the inheritance.
ceremony (Art. 352).
3. Suppose a child, one day
after his birth, was taken to and left in the
Article 347. Simulation of Births, midst of a lonely forest, and he was found
Substitution of One Child for Another, by a hunter who took him home. What
and Concealment of Abandonment of A crime was committed by the person who left
Legitimate Child it in the forest?
This crime is committed when a person One convicted of bigamy may also be
represents himself to be another and prosecuted for concubinage as both are
assumes the filiation or the parental or distinct offenses. The first is an offense
conjugal rights of such another person. against civil status, which may be
prosecuted at the instance of the state; the
second is an offense against chastity, and
Thus, where a person impersonates may be prosecuted only at the instance of
another and assumes the latter's right as the offended party. The test is not whether
the son of wealthy parents, the former the defendant has already been tried for the
commits a violation of this article. same act, but whether he has been put in
jeopardy for the same offense.
The term "civil status" includes one's public
station, or the rights, duties, capacities and One who, although not yet married before,
incapacities which determine a person to a knowingly consents to be married to one
given class. It seems that the term "civil who is already married is guilty of bigamy
status" includes one's profession. knowing that the latters marriage is still
valid and subsisting.
The second marriage must have all the b. The marriage was in
essential requisites for validity were it not disregard of a legal
for the existence of the first marriage. impediment.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 276
1. The marriage does not constitute TITLE XIII. CRIMES AGAINST HONOR
bigamy.
Crimes against honor
2. The marriage is contracted knowing that
the requirements of the law have not 1. Libel by means of writings or similar
been complied with or in disregard of means (Art. 355);
legal impediments.
2. Threatening to publish and offer to
3. One where the consent of the other was prevent such publication for a
obtained by means of violence, compensation (Art. 356);
intimidation or fraud.
3. Prohibited publication of acts
4. If the second marriage is void because referred to in the course of official
the accused knowingly contracted it proceedings (Art. 357);
without complying with legal
requirements as the marriage 4. Slander (Art. 358);
license, although he was previously
married. 5. Slander by deed (Art. 359);
The Supreme Court has already taken into 2. The imputation must be made
account the reason why such marriage publicly;
within 301 days is made criminal, that is,
because of the probability that there might 3. It must be malicious;
be a confusion regarding the paternity of
the child who would be born. If this reason 4. The imputation must be directed at a
does not exist because the former husband natural or juridical person, or one
is impotent, or was shown to be sterile such who is dead;
that the woman has had no child with him,
that belief of the woman that after all there 5. The imputation must tend to cause
could be no confusion even if she would the dishonor, discredit or contempt
marry within 301 days may be taken as of the person defamed.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 277
Distinction between malice in fact and to prove that the accused was actuated with
malice in law malice (malice in fact) in making the
statement.
Malice in fact is the malice which the law
presumes from every statement whose When a libel is addressed to several
tenor is defamatory. It does not need proof. persons, unless they are identified in the
The mere fact that the utterance or same libel, even if there are several
statement is defamatory negates a legal persons offended by the libelous utterance
presumption of malice. or statement, there will only be one count of
libel.
In the crime of libel, which includes oral
defamation, there is no need for the If the offended parties in the libel were
prosecution to present evidence of malice. distinctly identified, even though the libel
It is enough that the alleged defamatory or was committed at one and the same time,
libelous statement be presented to the court there will be as many libels as there are
verbatim. It is the court which will prove persons dishonored.
whether it is defamatory or not. If the tenor
of the utterance or statement is defamatory, Illustration:
the legal presumption of malice arises even
without proof. If a person uttered that All the Marcoses
are thieves," there will only be one libel
Malice in fact becomes necessary only if because these particular Marcoses
the malice in law has been rebutted. regarded as thieves are not specifically
Otherwise, there is no need to adduce identified.
evidence of malice in fact. So, while malice
in law does not require evidence, malice in If the offender said, All the Marcoses the
fact requires evidence. father, mother and daughter are thieves.
There will be three counts of libel because
Malice in law can be negated by evidence each person libeled is distinctly dishonored.
that, in fact, the alleged libelous or
defamatory utterance was made with good If you do not know the particular persons
motives and justifiable ends or by the fact libeled, you cannot consider one libel as
that the utterance was privileged in giving rise to several counts of libel. In
character. order that one defamatory utterance or
imputation may be considered as having
In law, however, the privileged character of dishonored more than one person, those
a defamatory statement may be absolute or persons dishonored must be identified.
qualified. Otherwise, there will only be one count of
libel.
When the privileged character is said to be
absolute, the statement will not be Note that in libel, the person defamed need
actionable whether criminal or civil because not be expressly identified. It is enough that
that means the law does not allow he could possibly be identified because
prosecution on an action based thereon. innuendos may also be a basis for
prosecution for libel. As a matter of fact,
Illustration: even a compliment which is undeserved,
has been held to be libelous.
As regards the statements made by
Congressmen while they are deliberating or The crime is libel is the defamation is in
discussing in Congress, when the privileged writing or printed media.
character is qualified, proof of malice in fact
will be admitted to take the place of malice The crime is slander or oral defamation if it
in law. When the defamatory statement or is not printed.
utterance is qualifiedly privileged, the
malice in law is negated. The utterance or Even if what was imputed is true, the crime
statement would not be actionable because of libel is committed unless one acted with
malice in law does not exist. Therefore, for good motives or justifiable end. Poof of
the complainant to prosecute the accused truth of a defamatory imputation is not even
for libel, oral defamation or slander, he has admissible in evidence, unless what was
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 278
Elements
Article 355. Libel by Means of Writings
or Similar Means 1. Offender is a reporter, editor or
manager of a newspaper, daily or
A libel may be committed by means of magazine;
This crime cannot be committed through Distinction between intriguing against honor
verbal incriminatory statements. It is and incriminating an innocent person:
defined as an act and, therefore, to commit
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 280
Article 365. Imprudence and Negligence If the criminal negligence resulted, for
example, in homicide, serious physical
Quasi-offenses punished injuries and slight physical injuries, do not
join only the homicide and serious physical
1. Committing through reckless injuries in one information for the slight
imprudence any act which, had it physical injuries. You are not complexing
been intentional, would constitute a slight when you join it in the same
grave or less grave felony or light information. It is just that you are not
felony; splitting the criminal negligence because
the real basis of the criminal liability is the
2. Committing through simple negligence.
imprudence or negligence an act
which would otherwise constitute a If you split the criminal negligence, that is
grave or a less serious felony; where double jeopardy would arise.