Title 1: Crimes Against National Security and the Law of Nations Chapter 1: Crimes Against National Security Section1: Treason and Espionage 114. Any Filipino citizen who levies war against the Philiipines or adheres to her enemies, giving them aid or comfort within the Philippines or elsewhere, shall be punished by reclusion perpetua to death and shall pay a fine not to exceed 100,000 pesos. No person shall be convicted of treason unless on the testimony of two witnesses at least to the same overt act or on confession of the accused in open court. Likewise, an alien, residing in the Philippines, who commits acts of treason as defined in paragraph 1 of this Article shall be punished by reclusion temporal to death and shall pay a fine not to exceed 100,000 pesos. Cannot be proven by circumstantial evidence or by extrajudicial confession of the accused Ways of proving treason: 1. Testimony of two witnesses, at least, to the same overt act o Required to prove the overt act of giving aid or comfort and not necessary to adherence 2. Confession of the accused in open court o Confession means the confession of guilt Defendant should be acquitted if only one of the two witnesses is believed by the court The two-witness rule is not affected by discrepancies in minor details of the testimony Adherence may be proved: 1. By one witness 2. From the nature of the act itself 3. From the circumstances surrounding the act Elements of treason: 1. That the offender is a Filipino citizen or an alien residing in the Philippines 2. There is war in which the Philippines is involved 3. That the offender either a. Levies war against the Government b. Adheres to the enemies, giving them aid or comfort Treason o a breach of allegiance to a government, committed by a person who owes allegiance to it (definition) o a violation by a subject of his allegiance to his sovereign or to the supreme authority of the State (nature of the crime) Filipino citizenship may be proved by his A. prison record having been filled out with data supplied by the accused himself B. Testimony of witnesses who know him to have been born in the Philippines of Filipino parents Ro-An Salanga (I-A) Allegiance—the obligation of fidelity and obedience which the individuals owe to the government under which they live or to their sovereign, in return for the protection they receive A. Permanent Allegiance—obligation of fidelity and obedience which a citizen or subject owes to his government or sovereign B. Temporary Allegiance—obligation of fidelity and obedience which a resident alien owes to our government Treasonable acts may actually be perpetrated during peace, but there are no traitors until war has started Two modes of committing treason: A. By levying war against the Government which requires the concurrence of two things: 1. That there be actual assembling of men 2. For the purpose of executing a treasonable design by force o In this mode, it is not necessary that there be a formal declaration of the existence of a state of war o The levying of war must be a. with the intent to overthrow the government as such, not merely to resist a particular statute or to repel a particular officer b. in collaboration with a foreign enemy B. By adhering to the enemies of the Philippines, giving them aid or comfort o Adherence and giving aid or comfort to the enemy must concur together o Adherence to the enemy—intent to betray; there is adherence when a citizen intellectually or emotionally favors the enemy and harbors sympathies or convictions disloyal to his country’s policy or interest o Aid or comfort— a. an act which strengthens or tends to strengthen the enemy in the conduct of war against the traitor’s country b. an act which weakens or tends to weaken the power of the traitor’s country to resist or to attack the enemy The aid and comfort must be given to the enemy by some kind of action. It must be a deed or physical activity. The expression includes such acts as furnishing the enemy with arms, troops, supplies, information, or means of transportation The aid and comfort which constitute treason must depend upon their nature, degree and purpose The aid or comfort given to the enemies must be after the declaration of war where the enemies are the subject of a foreign power The overt act of aid and comfort must be intentional which provides that there could be no treason thru negligence Page 1 of 75 Crim 2 Notes (AY 2010-2011) The acceptance of public office and discharge of official duties constitute treason if such is policydetermining and is used to propagate the creed of the invader When killings and other common crimes are charged as overt acts of treason, they cannot be regarded: (1) as separate crimes, or (2) as complexed with treason Treason is such of a nature that it may be committed by one single act, by a series of acts, or by several series thereof, not only in a single time, but in different times, it being a continues crime. All overt acts the accused has done constitute but a single offense Aggravating circumstances in treason: a. Cruelty or ignominy b. Rape, wanton robbery for personal gain, and brutality are regarded as cruelty and ignominy The gravity or seriousness of the acts of treason are considered and not merely the aggravating circumstances present Good defense in treason: a. Defense of obedience to de facto government b. Defense of duress or uncontrollable fear Defense of suspended allegiance and change of sovereignty is not accepted 2. That he has knowledge of any conspiracy (to commit treason) against the Government 3. That he conceals or does not disclose and make know the same as soon as possible to the governor or fiscal of the province or the mayor or fiscal of the city in which he resides Art. 116 does not apply when the crime of treason is already committed by someone and the accused does not report its commission to the proper authority Although the offender in misprision of treason is punished as an accessory to treason, he is, however, a principal in the crime of misprision of treason Art. 116 is an exception to the rule that mere silence does not make a person criminally liable which is under Art. 19. 117. The penalty of prision correccional shall be inflicted upon any person who: 1. Without authority therefor, enters a warship, fort, or naval or military establishment or reservation to obtain any information, plans, photographs, or other data of a confidential nature relative to the defense of the Philippine Archipelago; or 2. Being in possession, by reason of the public office he holds, of the articles, data, or information referred to in the preceding paragraph, discloses their contents to a representative of a foreign nation. The penalty next higher in degree shall be imposed if the offender be a public officer or employee. Espionage—the offense of gathering, transmitting, or losing information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the Republic of the Philippines or to the advantage of any foreign nation. Two ways of committing espionage: 1. By entering, without authority therefor, a warship, fort, or naval or military establishment or reservation to obtain any information, plans, photographs, or other data of a confidential nature relative to the defense of the Philippines o Elements: a. That the offender enters any of the places mentioned therein b. That he has no authority therefor c. That his purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines o It is not necessary that the offender should have obtained any information, etc., but it is sufficient that he has the purpose to obtain any of them when he entered the mentioned places 2. By disclosing to the representative of a foreign nation the contents of the articles, data or information referred to in par. No. 1 of Art. 117, which he had in his possession by reason of the public office he holds Page 2 of 75 115. The conspiracy or proposal to commit the crime of treason shall be punished respectively, by prision mayor and a fine not exceeding 10,000 pesos, and prision correccional and a fine not exceeding 5,000 pesos. Conspiracy to commit treason is committed when in time of war, 2 or more persons come to an agreement to levy war against the Government or to adhere to the enemies and to give them aid or comfort, and decide to commit it (Art. 8 and 114) Proposal to commit treason is committed when in time of war, a person who has decided to levy war against the Government or to adhere to the enemies and give air or comfort, proposes its execution to some other person or persons (Art. 8 and 114) The two-witness rule does not apply to conspiracy or proposal to commit treason. 116. Every person owing allegiance to (the United States or) the Government of the Philippine Islands, without being a foreigner, and having knowledge of any conspiracy against them, who conceals or does not disclose and make known the same, as soon as possible, to the governor or fiscal of the province, or the mayor or fiscal of the city in which he resides, as the case may be, shall be punished as an accessory to the crime of treason. Elements: 1. That the offender must be owing allegiance to the Government, and not a foreigner Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) Elements: a. That the offender is a public officer b. That he has in his possession the articles, data or information referred to in par. 1, by reason of the public office he holds c. That he discloses their contents to a representative of a foreign nation To be liable, the offender must have the intention to obtain information relative to the defense of the Philippines Persons liable in committing espionage: o Under paragraph 1: a. A citizen or a foreigner b. A private individual or a public officer If the offender is a public officer or employee, the penalty next lower in degree shall be imposed o Under paragraph 2: Public officer who has in his possession the article, data, or information by reason of the public office he holds o Espionage Treason A crime not conditioned by the citizenship of the offender May be committed both in Committed only in time of time of peace and in war war May be committed in many Limited in 2 ways of ways committing the crime: 1. Levying war 2. Adhering to the enemy giving him aid or comfort Commonwealth Act No. 616 An Act to Punish Espionage and other Offenses against National Security Acts Punishable: 1. Unlawfully obtaining or permitting to be obtained information affecting national defense; 2. Unlawful disclosing of information affecting national defense; 3. Disloyal acts or words in time of peace (i.e. causing in any manner insubordination, disloyalty, mutiny or refusal of duty of any member of the military, naval, or air forces of the Philippines); 4. Disloyal acts in time of war; 5. Conspiracy to commit the foregoing acts; 6. Harboring or concealing violators of the law (i.e. the offender harbors a person whom he knows as someone who committed or is about to commit a violation of this Act); and 7. Photographing from aircraft of vital military information. Sec. 2: Provoking war and disloyalty in case of war Crimes classified as provoking war and disloyalty in case of war: a. Inciting war or giving motives for reprisals b. Violation of neutrality c. Correspondence with hostile country d. Flight to enemy’s country 118. The penalty of reclusion temporal shall be imposed upon any public officer or employee, and that of prision mayor upon any private individual, who, by unlawful or unauthorized acts provokes or gives occasion for a war involving or liable to involve the Philippine Islands or exposes Filipino citizens to reprisals on their persons or property. Elements: 1. That the offender performs unlawful or unauthorized acts 2. That such acts provoke or give occasion for a war involving or liable to involve the Philippines or expose Filipino citizens to reprisals on their persons or property The intention of the offender is immaterial so long as the action gave rise to an occasion of war or exposed Filipino citizens to reprisals even if it is a mere imprudence The crime of inciting to war or giving motives for reprisals is committed in time of peace 119. The penalty of prision correccional shall be inflicted upon anyone who, on the occasion of a war in which the Government is not involved, violates any regulation issued by competent authority for the purpose of enforcing neutrality. Elements: 1. That there is a war in which the Philippines is not involved 2. That there is a regulation issued by competent authority for the purpose of enforcing neutrality 3. That the offender violates such regulation Neutrality—a nation or power which takes no part in a contest of arms going on between others 120. Any person, who in time of war, shall have correspondence with an enemy country or territory occupied by enemy troops shall be punished: 1. By prision correccional, if the correspondence has been prohibited by the Government; 2. By prision mayor, if such correspondence be carried on in ciphers or conventional signs; 3. By reclusion temporal, if notice or information be given thereby which might be useful to the enemy. If the offender intended to aid the enemy Page 3 of 75 Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) by giving such notice or information, he shall suffer the penalty of reclusion temporal to death. Elements: 1. That it is in time of war in which the Philippines is involved 2. That the offender makes correspondence with an enemy country or territory occupied by enemy troops 3. That the correspondence is either: a. Prohibited by the Government b. Carried on in ciphers or conventional signs c. Containing notice or information which might be useful to the enemy Correspondence—communication by means of letters; or it may refer to the letters which pass between those who have friendly or business relations Even when the correspondence contains innocent matters, as long as the Government prohibits its, it is punishable Prohibition by the Government is not essential in pars. 2 and 3 Circumstances qualifying the offense—the ff. must concur together: a. That the notice or information might be useful to the enemy b. That the offender intended to aid the enemy 121. The penalty of arresto mayor shall be inflicted upon any person who, owing allegiance to the Government, attempts to flee or go to an enemy country when prohibited by competent authority Elements: 1. That there is a war in which the Philippines is involved 2. That the offender must be owing allegiance to the Government 3. That the offender attempts to flee or go to enemy country 4. That going to enemy country is prohibited by competent authority An alien resident may be guilty of flight to enemy country because the law does not say ―not being a foreigner‖ Section 3: Piracy and mutiny on the high seas 122. The penalty of reclusion temporal shall be inflicted upon any person who, on the high seas or in Philippine waters, shall attack or seize any vessel or, not being a member of its complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or personal belongings of its complement or passengers. The same penalty shall be inflicted in case of mutiny on the high seas or in Philippine waters. Ro-An Salanga (I-A) Two ways of committing piracy: 1. By attacking or seizing a vessel on the high seas or in Philippine waters 2. By seizing in the vessel while on the high seas or in Philippine waters the whole or part of its cargo, its equipment or personal belongings of its complement or passengers Elements of piracy: 1. That a vessel is on the high seas or in Philippine waters 2. That the offenders are not members of its complement or passengers 3. That the offenders (a) attack or seize that vessel, or (b) seize the whole or part of the cargo of said vessel, its equipment or personal belongings of its complement or passengers High seas—any water on the sea coast which are without the boundaries of low-water mark, although such waters may be in the jurisdictional limits of a foreign government Piracy—robbery or forcible depredation on the high seas, without lawful authority and done with animo furandi and in the spirit and intention of universal hostility Mutiny— o The unlawful resistance to a superior officer, or the raising of commotions and disturbances on board a ship against the authority of its commander o usually committed by the other members of the complement and may be committed by the passengers of the vessel Mutiny Persons who attack or seize are members of the crew or passengers Intent to ignore the ship’s officers or they may be prompted by a desire to commit plunder Piracy Persons who attack the vessel or seize its cargo are strangers Intent to gain is essential 123. The penalty of reclusion perpetua to death shall be imposed upon those who commit any of the crimes referred to in the preceding article, under any of the following circumstances: 1. Whenever they have seized a vessel by boarding or firing upon the same; 2. Whenever the pirates have abandoned their victims without means of saving themselves; 3. Whenever the crime is accompanied by murder, homicide, physical injuries or rape Qualified piracy—a special complex crime punishable by reclusion perpetua to death, regardless of the number of victims Vessel–any vessel or watercraft used for (a) transport of passengers and cargo, or (b) for fishing. Page 4 of 75 Crim 2 Notes (AY 2010-2011) Any person who aids or protects pirates or abets the commission of piracy shall be considered as an accomplice Presidential Decree No. 532: Anti-Piracy and AntiHighway Robbery Law of 1974 Aiding or abetting piracy requisites: 1. Knowingly aids or protects pirates; 2. Acquires or receives property taken by such pirates, or in any manner derives any benefit; 3. Directly or indirectly abets the commission of piracy. Under PD 532, piracy may be committed even by a passenger or member of the complement of the vessel Title 2: Crimes Against the Fundamental Laws of the State Chapter 1: Arbitrary Detention or Expulsion, Violation of Dwelling, Prohibition, Interruption, and Dissolution of Peaceful Meetings and Crimes Against Religious Worship Crimes against the fundamental laws of the State: 1. Arbitrary detention (Art. 124) 2. Delay in the delivery of detained persons to the proper judicial authorities (Art. 125) 3. Delaying release (Art. 126) 4. Expulsion (Art. 127) 5. Violation of domicile (Art. 128) 6. Search warrants maliciously obtained and abuse in the service of those legally obtained (Art 129) 7. Searching domicile without witnesses (Art. 130) 8. Prohibition, interruption, and dissolution of peaceful meetings (Art. 131) 9. Interruption of religious worship (Art. 132) 10. Offending the religious worship (Art. 133) Crimes against the Fundamental laws of State—violate certain provisions of the Bill of Rights, Art. III, Secs. 1, 2, 4, 5, 6 Section 1: Arbitrary Detention and Expulsion Classes of arbitrary detention: 1. Arbitrary detention by detaining a person without legal ground 2. Delay in the delivery of detained persons to the proper judicial authorities 3. Delaying release 124. Any public officer or employee who, without legal grounds, detains a person, shall suffer; 1. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if the detention has not exceeded 3 days 2. The penalty of prision correccional in its medium and maximum periods, if the detention has continued more than 3 but not more than 15 days 3. The penalty of prision mayor, if the detention has continued for more than 15 days but not more than 6 months 4. That of reclusion temporal, if the detention shall have exceeded 6 months The commission of a crime, or violent insanity or any other ailment requiring the compulsory confinement of the patient in a hospital, shall be considered legal grounds for the detention of any person. Summary: (detention for/between) 1. Less than 3 days—arresto mayor in its max—prision correccional in its min 2. More than 3 but less than 15 days—prision correccional in its med and max 3. More than 15 days but less than 6 months—prision mayor 4. More than 6 months—reclusion temporal Elements: 1. That the offender is a public officer or employee 2. That he detains a person 3. That the detention is without legal grounds The public officer must be vested with authority to detain or order the detention of persons accused of a crime a. Policemen and other agents of the law b. Judges or mayors c. Barangay captain d. Municipal councilor If detention is perpetrated by other public officers or by private individual (Arts. 267 or 268)—the crime is illegal detention because they are acting in their private capacity But private individuals who conspired with public officers in detaining certain policemen are guilty of arbitrary detention Detention—the actual confinement of a person in an enclosure, or in any manner detaining and depriving him of his liberty. Without legal grounds: a. When he has not committed any crime or, at least, there is no reasonable ground for suspicion that he has committed a crime b. When he is not suffering from violent insanity or any other ailment requiring compulsory confinement in a hospital Legal grounds for the detention of any person: a. The commission of the crime b. Violent insanity or any other ailment requiring compulsory confinement of the patient in a hospital Warrantless arrest is the usual cause of arbitrary detention Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) Page 5 of 75 Warrantless arrest that is lawful: (a peace officer or a private person) 1. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense 2. When an offense has in fact been committed, and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it o Personal knowledge of facts—be based upon probable cause, which means an actual belief or reasonable grounds of suspicion o Probable cause—such facts and circumstances which could lead a reasonable discreet and prudent man to believe than an offense has been committed and that the object sought in connection with the offense are in the place sought to be searched 3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another o Pars. (1) and (2) refer to cases when a suspect is caught in flagrante delicto or immediately thereafter, while par. (3) refers to escaping prisoners Under Sec. 5, Rule 113 of the RRCP—actual commission of a crime by the person detained is not necessary to justify his detention The crime of arbitrary detention can be committed thru imprudence. 125. The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of: A. 12 hours—for crimes or offenses punishable by light penalties, or their equivalent B. 18 hours—for crimes or offenses punishable by correctional penalties, or their equivalent C. 36 hours—for crimes or offenses punishable by afflictive or capital penalties, or their equivalent In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel. Elements: 1. That the offender is a public officer or employee 2. That he has detained a person for some legal ground 3. The he fails to deliver such person to the proper judicial authorities within: a. 12 hours—punishable by light penalties, or its equivalent Ro-An Salanga (I-A) 18 hours—punishable by correctional penalties, or its equivalent c. 36 hours—punishable by afflictive or capital penalties, or its equivalent If the offender is a private person, the crime is illegal detention and should have the same requirements The detention is legal in the beginning, and it only becomes illegal after a certain period of time, because the offended party is not delivered to the proper judicial authority, within the period specified Art. 125 applies only when the arrest is made without warrant of arrest but the arrest must be lawful If the arrest is made with a warrant of arrest, the person arrested can be detained indefinitely until his case is decided by the court or he posts a bail for his temporary release What constitutes a violation of Art. 125 is the failure to deliver the person arrested to the proper judicial authority within the period specified therein o It does not consist in a physical delivery, but in making an accusation or charge or filing of an information against the person arrested with the corresponding court or judge, whereby the latter acquires jurisdiction to issue an order of release or of commitment of the prisoner o Judicial authorities—the courts of justice or judges of said courts vested with judicial power to order the temporary detention or confinement of a person charged with having committed a public offense— Supreme Court and such inferior courts o Where a judge is not available, the arresting officer is duty-bound to release a detailed person, if the maximum hours for detention had already expired. Failure to cause the release may result in an offense under Art. 125 o Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Art. 125 of the RPC in the presence of his counsel Circumstances considered in determining liability of officer detaining a person beyond legal period 1. The means of communication as well as 2. The hour of arrest and 3. Other circumstances such as the time of surrender and the material possibility for the fiscal to make the investigation and file in time the necessary information The failure of the arresting officer to deliver the person arrested to the judicial authority within the time specified does not affect the legality of the confinement of the petitioner who is detained because of the warrant subsequently issued by a competent court when an information was filed therein o A violation of Art. 125 is not considered as one of the grounds on which one can predicate a motion to quash the information Page 6 of 75 b. Crim 2 Notes (AY 2010-2011) The illegality of detention is not cured by the filing of the information in court If the city fiscal does not file the information within the period prescribed and the arrest officer continues holding the prisoner beyond the period, the fiscal will not be responsible for violation of said Art. 125 Rights of the person detained: 1. He shall be informed of the cause of his detention 2. He shall be allowed, upon his request, to communicate and confer at anytime with his attorney or counsel Public officer or employee is liable for preventing the exercise of the right of attorney or counsel Art. 125 intended to prevent any abuse resulting from confining a person without informing him of his offense and without permitting him to go on bail o Article 125 Detention is legal in the beginning but illegality of the detention starts from the expiration of any of the periods of time specified without the detained prisoner detained having been delivered to the proper judicial authority The public officers who are most likely to commit the offense penalized in Art. 126 are the wardens and peace officers temporarily in charge of the custody of prisoners or detained persons Article 124 Detention is illegal from the beginning 127. The penalty of prision correccional shall be imposed upon any public officer or employee who, not being thereunto authorized by law, shall expel any person from the Philippine Islands or shall compel such person to change his residence. 2 acts punishable under Art. 127: 1. By expelling a person from the Phils. 2. By compelling a person to change his residence Elements: 1. The offender is a public officer or employee 2. He expels any person from the Phils., or compels a person to change his residence 3. The offender is not authorized to do so by law Only the court by final judgment can order a person to change his residence—ejectment proceedings, expropriation proceedings, and in the penalty of destierro Section 2: Violation of domicile 128. The penalty of prision correccional in its minimum period shall be imposed upon any public officer or employee who, not being authorized by judicial order, shall enter any dwelling against the will of the owner thereof, search papers or other effects found therein without the previous consent of such owner, or having surreptitiously entered said dwelling, and being required to leave the premises, shall refuse to do so. If the offense be committed in the night-time, or if any papers or effects not constituting evidence of a crime be not returned immediately after the search made by the offender, the penalty shall be prision correccional in its medium and maximum periods. Acts punishable under Art. 128: 1. By entering any dwelling against the will of the owner thereof 2. By searching papers or other effects found therein without the previous consent of such owner 3. By refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave Elements common to 3 acts: 1. The offender is a public officer or employee 2. He is not authorized by judicial order to enter the dwelling and/or to make a search therein for papers or other effects If the offender is a private individual—trespass to dwelling 126. The penalties provided for in Art. 124 shall be imposed upon any public officer or employee who delays for the period of time specified therein the performance of any judicial or executive order for the release of a prisoner or detention prisoner, or unduly delays the service of the notice of such order to said prisoner or the proceedings upon any petition for the liberation of such person. 3 acts punishable under Art. 126 1. By delaying the performance of a judicial or executive order for the release of a prisoner 2. By unduly delaying the service of the notice of such order to said prisoner 3. By unduly delaying the proceedings upon any petition for the liberation of such person Elements: 1. The offender is a public officer or employee 2. There is judicial or executive order for the release of a prisoner or detention prisoner, or that there is a proceeding upon a petition for the liberation of such person 3. The offender without god reason delays: a. The service of the notice of such order to the prisoner b. The performance of such judicial or executive order for the release of the prisoner c. The proceedings upon a petition for the release of such person Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) Page 7 of 75 A public officer or employee is authorized by judicial order when he is armed with a search warrant duly issued by the court o No amount of incriminating evidence, whatever its source, will supply the place of search warrant The entrance by the public officer must be against the will of the owner of the dwelling, which presupposes opposition or prohibition by said owner, whether express or implied o If the entrance by the public officer is only without the consent of the owner of the dwelling, the crime is not committed An officer, in order to make an arrest either by virtue of a warrant or without as provided in Sec. 5, may break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he is refused admittance thereto after announcing his authority and purpose When detective secured the previous consent of the owner of the house to search without warrant, they are not liable o When one voluntarily submits to a search or consents to have it made upon his person or premises, he is precluded from later complaining thereof o Silence of the owner of the dwelling before and during the search, without search warrant by a public officer, may show implied waiver If it is limited to looking only, it cannot be strictly considered as the search of papers and other effects punished by Art. 128 o If it is inspecting without search warrant, it is a violation of domicile Papers or other effects mentioned must be found in the dwelling Circumstances qualifying the offense: 1. The offense is committed at nighttime 2. If any papers or effects not constituting evidence of a crime are not returned immediately after the search made by the offender 129. In addition to the liability attaching to the offender for the commission of any other offense, the penalty of arresto mayor in its maximum period to prision correccional in its minimum period and a fine not exceeding 1,000 pesos shall be imposed upon any public officer or employee who shall procure a search warrant without just cause, or, having legally procured the same, shall exceed his authority or use unnecessary severity in executing the same. Acts punishable in connection with search warrants: 1. By procuring a search warrant without just cause 2. By exceeding his authority or by using unnecessary severity in executing a search warrant legally procured Ro-An Salanga (I-A) Elements of procuring a search warrant without just cause: 1. The offender is a public officer or employee 2. He procures a search warrant 3. There is no just cause Search warrant—an order in writing issued in the name of the People of the Phils., signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court A search warrant may be issued for the search and seizure of the following personal property: 1. Subject of the offense 2. Stolen or embezzled and other proceeds or fruits of the offense 3. Used or intended to be used as the means of committing an offense Requisites for issuing a search warrant: o It shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Phils. The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein No search of a house, room or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of 2 witnesses of sufficient age and discretion residing in the same locality A search warrant shall be valid for 10 days from its date The officer seizing property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises and leave a receipt in the place in which he found the seized property Probable cause—such facts and circumstances which would lead a reasonably discreet and prudent man to believe than an offense has been committed and that the object sought in connection with the offense are in the place sought to be searched A search warrant is said to have been procured without just cause when it appears on the face of the affidavits filed in support of the application therefor, or through other evidence, that the applicant had every reason to believe that the search warrant sought for was unjustified Page 8 of 75 Crim 2 Notes (AY 2010-2011) The true test of lack of just cause is whether the affidavit filed in support of the application for search warrant has been drawn in such a manner the perjury could be charged thereon and affiant be held liable for damages caused o The oath required must refer to the truth of the facts within the personal knowledge of the applicant for search warrant or his witnesses, not of the facts reported to me by a person whom I consider to be reliable When papers or effects are obtained during reasonable searches and seizure, or under a search warrant issued without probable cause and not in accordance with the procedure prescribed, or in violation of the privacy of communication and correspondence, the papers or effects thus obtained are not admissible if presented as evidence A person lawfully arrested may be searched for dangerous weapons or anything which may be used as a proof of the commission of an offense without a search warrant Peace officers may enter the house of an offender who committed an offense in their presence Search and seizure without search warrant of vessels and aircraft for violation of the customs laws have been the traditional exception to the constitutional requirement of a search warrant Elements of exceeding authority or using unnecessary severity in executing a search warrant legally procured: 1. The offender is a public officer or employee 2. He has legally procured a search warrant 3. He exceeds his authority or uses unnecessary severity in executing the same o Search without warrant under the Tariff and Customs Code does not include a dwelling house Section 3: Prohibition, interruption and dissolution of peaceful meetings 131. The penalty of prision correccional in its minimum period shall be imposed upon any public officer or employee who, without legal ground, shall prohibit or interrupt the holding of a peaceful meeting, or shall dissolve the same. The same penalty shall be imposed upon a public officer or employee who shall hinder any person from joining any lawful association or from attending any of its meetings. The same penalty shall be imposed upon any public officer or employee who shall prohibit or hinder any person from addressing, either alone or together with others, any petition to the authorities for the correction of abuses or redress of grievances. Acts punished in connection with peaceful meetings, associations, and petitions: 1. By prohibiting or interrupting, without legal ground, the holding of a peaceful meeting, or by dissolving the same 2. By hindering any person from joining any lawful association or from attending any of its meetings 3. By prohibiting or hindering any person from addressing, either alone or together with others, any petition to the authorities for the correction of abuses or redress of grievances Elements common to the 3 acts punishable: 1. That the offender is a public officer or employee 2. He performs any of the acts mentioned above If the offender is a private individual—disturbance of public order (Art. 153) To constitute a violation of the1st par.: 1. The meeting must be peaceful 2. There is no legal ground for prohibiting or interrupting or dissolving that meeting The right to freedom of speech and to peacefully assemble is not absolute, for it may be regulated in order that it may not be ―injurious to the equal enjoyment of others nor injurious to the right of the community or society The denial of the petition of this Art. Is not a violation To justify suppression of free speech, there must be reasonable ground to believe that the danger apprehended is imminent and that the evil to be prevented is a serious one The offender must be a stranger and not a participant in the peaceful meeting 130. The penalty of arresto mayor in its medium and maximum periods shall be imposed upon a public officer or employee who, in cases where a search is proper, shall search the domicile, papers or other belongings of any person, in the absence of the latter, any member of his family, or in their default, without the presence of two witnesses residing in the same locality. Elements: 1. The offender is a public officer or employee 2. He is armed with search warrant legally procured 3. He searches the domicile, papers or other belongings of any person 4. The owner, or any member of his family, or 2 witnesses residing in the same locality are not present Search—to go over or look through for the purpose of finding something; to examine Art. 130 does not apply to searches of vehicles or other means of transportation because the searches are not made in the dwelling Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) Page 9 of 75 Section 4: Crimes against religious worship Crimes against religious worship: 1. Interruption of religious worship 2. Offending the religious feelings There must be deliberate intent to hurt the feelings of the faithful Whether or not an act offends the feelings of the faithful should be viewed or judged from the latter’s point of view, and not from that of the offender Chapter 1: REBELLION, COUP D’ETAT, SEDITION AND DISLOYALTY 132. The penalty of prision correccional in its minimum period shall be imposed upon any public officer or employee who shall prevent or disturb the ceremonies or manifestations of any religion. If the crime shall have been committed with violence or threats, the penalty shall be prision correccional in its medium and maximum periods. Elements: 1. The offender is a public officer or employee 2. The religious ceremonies or manifestations of any religion are about to take place or are going on 3. The offender prevents or disturbs the same Circumstance qualifying the offense—crime committed with violence or threats There is no provision of law which requires religious service to be conducted in approved orthodox style in order to merit its protection against interference and disturbance o ―persons who meet for the purpose of religious worship, by any method which is not indecent and unlawful, have a right to do so without being molested or disturbed‖ 133. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony shall perform acts notoriously offensive to the feelings of the faithful. Elements: 1. The acts complained of were performed a. In a place devoted to religious worship, or b. During the celebration of any religious ceremony 2. The acts must be notoriously offensive to the feelings of the faithful ―in a place devoted to religious worship—not necessary that there is a religious ceremony going on when the offender performs acts notoriously offensive to the feelings of the faithful ―during the celebration‖—the religious ceremony need not be celebrated in a place of worship Religious ceremonies—those religious acts performed outside of a church, such as processions and special prayers for burying dead persons Acts must be directed against religious practice or dogma or ritual for the purpose of ridicule, as mocking or scoffing at or attempting to damage an object of religious veneration 134. The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, or any body of land, naval, or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives. Elements: 1. That there be a. Public uprising; and b. Taking arms against the Government 2. The purpose of the uprising or movement is either a. To remove from the allegiance to said Government or its laws i. The territory of the Philippines or any part thereof ii. Any body of land, naval or other armed forces b. To deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives Rebellion—the object of the movement is completely to overthrow and supersede the existing government o It evokes, not merely a challenge to the constituted authorities, but also civil war on a bigger or lesser scale o A crime of masses of a multitude o A vast movement of men and a complex net of intrigues and plots Insurrection—a movement which seeks merely to effect some change of minor importance, or to prevent the exercise of governmental authority with respect to particular matters or subjects An actual clash of arms with the forces of the Government is not absolutely necessary o The crime of rebellion is complete the very moment a group of rebels rise publicly and take arms against the Government, for the purpose of overthrowing the same by force Rebellion Crime against public order Rebellion Levying of war against the Government during peace time for purposes Subversion Crime against national security Treason Levying of war against the Government coupled with the performance of aiding Page 10 of 75 Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) mentioned in Art. 134 Always involves taking up arms against the Government the enemy May be committed by mere adherence to the enemy giving him aid or comfort RA 9372: Human Security Act of 2007 Crime of Terrorism o A person who commits an act punishable as rebellion or insurrection, thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand Acts punishable as Terrorism 1. Piracy in general and Mutiny in the High Seas or in the Philippine Waters 2. Rebellion or Insurrection 3. Coup d’etat, including acts committed by private persons 4. Murder 5. Kidnapping and serious illegal detention 6. Crimes involving destruction or under a. The Law of Arson b. Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990 c. Atomic Energy Regulatory and Liability Act of 1968 d. Anti-Hijacking Law e. Anti-Piracy and Anti-Highway Robbery Law of 1974 f. Decree Codifying the Laws on Illegal and Unlawful Possession, manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives Terrorism is punished by the penalty of 40 years of imprisonment without the benefit of parole Persons who conspire to commit the crime of terrorism shall suffer the penalty of 40 years of imprisonment Accomplice in Terrorism o Any person who, not being a principal under Art. 17 of the RPC or a conspirator, cooperates in the execution of either the crime of terrorism or conspiracy to commit terrorism by previous or simultaneous acts shall suffer the penalty of from 17 years, 4 months, 1 day to 20 years of imprisonment Accessory in Terrorism o Any person who, having knowledge of the commission of terrorism or conspiracy to commit terrorism, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners: a. By profiting themselves or assisting the offender to profit by the effects of the crime b. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery c. By harboring, concealing, or assisting in the escape of the principals of the crime o Shall suffer the penalty of 10 years and 1 day to 12 years of imprisonment Prosecution under this Act shall be a bar to another prosecution under the RPC or any Special Penal Laws 134-A. The crime of coup d’etat is a swift attack, accompanied by violence, intimidation, threat, strategy or stealth, directed against duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communications networks, public utilities or other facilities needed for the exercise and continued possession of power, singly or simultaneously carried out anywhere in the Phils. by any person or persons, belonging to the military or police or holding any public office or employment, with or without civilian support or participation, for the purpose of seizing or diminishing state power. Elements: 1. The offender is a person or persons belonging to the military or police or holding any public office or employment 2. It is committed by means of a swift attack accompanied by violence, intimidation, threat, strategy or stealth 3. The attack is directed against duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communication networks, public utilities or other facilities need for the exercise and continued possession of power 4. The purpose of the attack is to seize or diminish state power The crime of coup d’etat may be committed with or without civilian participation 135. Any person who promotes, maintains, or head a rebellion or insurrection shall suffer the penalty of reclusion perpetua. Any person merely participating or executing the commands of others in rebellion or insurrection shall suffer the penalty of reclusion temporal. Any person who leads or in any manner directs or commands others to undertake a coup d’etat shall suffer the penalty of reclusion perpetua. Any person in the government service who participates, or executes directions or commands of others in undertaking a coup d’etat shall suffer the penalty of reclusion temporal in it maximum period. Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) Page 11 of 75 Any person not in the government service who participates, or in any manner supports, finances, abets or aids in undertaking a coup d’etat shall suffer the penalty of prision mayor in its maximum period When the rebellion, insurrection or coup d’etat shall be under the command of unknown leaders, any person who in fact directed the others, spoke for them, signed receipts and other documentation issued in their name, or performed similar acts, on behalf of the rebels, shall be deemed a leader of such rebellion, insurrection or coup d’etat. The following are liable for rebellion, insurrection and/or coup d’etat: 1. The leaders A. Any person who (a) promotes, (b) maintains, or (c) heads a rebellion or insurrection; or B. Any person who (a) leads, (b) directs, or (c) commands others to undertake a coup d’etat 2. The participants A. Any person who (a) participates, or (b) executes the commands of others in rebellion, or insurrection B. Any person in the government service who (a) participates, or (b) executes directions or commands of others in undertaking a coup d’etat C. Any person not in the government service who (a) participates, (b) supports, (c) finances, (d) abets, or (e) aids in undertaking a coup d’etat It is not a defense that the accused never took the oath of allegiance to, or that they never recognized the Government Thos who killed person in pursuance of the movement to overthrow the government are liable for rebellion only o There is no complex crime of rebellion o Any or all of the acts described in Art. 135, when committed as means to or furtherance of the subversive ends described in Art. 134, become absorbed in the crime of rebellion and cannot be regarded or penalized as distinct crimes in themselves o Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means to its commission or as an unintended effect of an activity that constitutes rebellion Membership in a rebel organization does not automatically qualify criminal acts as absorbed in rebellion Political crimes—those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. o The decisive factor is the intent or motive 136. The conspiracy and proposal to commit coup d’etat shall be punished by prision mayor in its minimum period and a fine which shall not exceed 8 thousand pesos. The conspiracy and proposal to commit rebellion or insurrection shall be punished, respectively, by prision correccional in its maximum period and a fine which shall not exceed 5 thousand pesos, and by prision correccional in its medium period, and a fine not exceeding 2 thousand pesos. Two crimes defined and penalized in this Art.: 1. Conspiracy to commit rebellion—when 2 or more persons come to an agreement to rise publicly and take arms against the Government for any of the purposes of rebellion and decide to commit it 2. Proposal to commit rebellion—when the person who has decided to rise publicly and take arms against the Government for any of the purposes of rebellion proposes its execution to some other person or persons 137. The penalty of prision correccional in its minimum period shall be imposed upon public officers or employees who have failed to resist a rebellion by all the means in their power, or shall continue to discharge the duties of their offices under the control of the rebels or shall accept appointment to office under them. Acts of disloyalty that are punished: 1. By failing to resist a rebellion by all the means in their power 2. By continuing to discharge the duties of their offices under the control of the rebels 3. By accepting appointment to office under them The crime of disloyalty of public officers presupposes the existence of rebellion by other persons The public officer or employee who performs any of the acts of disloyalty should mo be in conspiracy with the rebels 138. The penalty of prision mayor in its minimum period shall be imposed upon any person who, without taking arms or being in open hostility against the Government, shall incite others to the execution of any of the acts specified in Art. 124 of this Code, by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end. Elements: 1. The offender does not take arms or is not in open hostility against the Government 2. He incites others to the execution of any of the acts of rebellion Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) Page 12 of 75 3. The inciting is done by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end Proposal to commit rebellion Offender induces another to commit rebellion The crime of rebellion should not be actually committed by the persons to whom it is proposed or incited Not required that the The person who proposes offender has decided to has decided to commit commit rebellion rebellion The act of inciting is done The person who proposes publicly the execution of the crime uses secret means 139. The crime of sedition is committed by persons who rise publicly and tumultuously in order to attain by force, intimidation, or by other means outside of legal methods, any of the following objects: 1. To prevent the promulgation or execution of any law or the holding of any popular election 2. To prevent the National Government, or any provincial or municipal government, or any public officer thereof from freely exercising its or his functions, or prevent the execution of any administrative order 3. To inflict any act of hate or revenge upon the person or property of any public officer or employee 4. To commit, for any political or social end, any act of hate or revenge against private persons or any social class; and 5. To despoil, for any political or social end, any person, municipality or province, or the National Government (or the Government of the United States) of all its property or any part thereof. Elements: 1. The offender rise (a) publicly, and (b) tumultuously 2. They employ force, intimidation, or other means outside of legal methods 3. The offenders employ any of those means to attain any of the following objects: a. To prevent the promulgation or execution of any law or the holding of any popular election b. To prevent the National Government, or any provincial or municipal government, or any public officer thereof from freely exercising its or his functions, or prevent the execution of any administrative order c. To inflict any act of hate or revenge upon the person or property of any public officer or employee d. To commit, for any political or social end, any act of hate or revenge against private persons or any social class; and Ro-An Salanga (I-A) Inciting to rebellion e. To despoil, for any political or social end, any person, municipality or province, or the National Government of all its property or any part thereof. Sedition—the raising of commotion or disturbances in the State o The ultimate object of sedition is a violation of the public peace or at least such a course of measures as evidently engenders it Rebellion Sedition There must be public uprising There must be taking up of It is sufficient that the arms against the public uprising is Government tumultuous The purpose is always The purpose of the political offenders may be political or social Treason Sedition The ―violation by a subject The ―raising of of his allegiance to his commotions or sovereign or liege, lord, or disturbances in the State‖ to the supreme authority of the State‖ The disturbance shall be deemed to be tumultuous if caused by more than 3 persons who are armed or provided with means of violence 140. The leader of a sedition shall suffer the penalty of prision mayor in its minimum period and a fine not exceeding 10,000 pesos. Other persons participating therein shall suffer the penalty of prision correccional in its maximum period and a fine not exceeding 5,000 pesos. 141. Persons conspiring to commit the crime of sedition shall be punished by prision correccional in its medium period and a fine not exceeding 2 thousand pesos. There is no proposal to commit sedition; hence, it is not punishable. 142. The penalty of prision correccional in its maximum period and a fine not exceeding 2 thousand pesos shall be imposed upon any person who, without taking any direct part in the crime of sedition, should incite others to the accomplishment of any of the acts which constitute sedition, should incite others to the accomplishment of any of the acts which constitute sedition, by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending to the same end, or upon any person or persons who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government (of the United States or the Page 13 of 75 Crim 2 Notes (AY 2010-2011) Government of the Commonwealth) of the Philippines, or any of the duly constituted authorities thereof, or which tend to disturb or obstruct any lawful officer in executing the functions of his office, or which tend to instigate others to cabal and meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices. Different acts of inciting to sedition: 1. Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems, etc. 2. Uttering seditious words or speeches which tend to disturb the public place 3. Writing, publishing, or circulating scurrilous libels against the Government or any of the duly constituted authorities thereof, which tend to disturb the public peace Elements: (inciting to sedition to accomplish any of its object) 1. The offender does not take direct part in the crime of sedition 2. He incites others to the accomplishment of any of the acts which constitute sedition 3. The inciting is done by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending to the same end Scurrilous—low, vulgar, mean or foul Writings which tend to overthrow or undermine the security of the government or to weaken the confidence of the people in the government are against the public peace, and are criminal not only because they tend to incite to a breach of the peace but because they are conducive to the destruction of the government itself Uttering seditious words or speeches and writing, publishing or circulating scurrilous libels are punishable, when— 1. They tend to disturb or obstruct any lawful officer in executing the functions of his office 2. They tend to instigate others to cabal and meet together for unlawful purposes 3. They suggest to incite rebellious conspiracies or riots 4. They lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government ―knowingly concealing such evil practices‖—ordinarily an act of the accessory after the fact, but under this provision, the act is treated and punished as that of the principal It is not necessary, in order to be seditious, that the words used should in fact result in a rising of the people against the constituted authorities Two rules relative to seditious words: 1. The clear and present danger rule o The words must be of such a nature that by uttering them there is a danger of a public uprising and that such danger should be both clear and imminent o There must be reasonable ground to believe that the danger apprehended is imminent and that the evil to be prevented is a serious one where there must be the probability of serious injury to the State 2. The dangerous tendency rule o If the words used tend to create a danger of public uprising or easily produce disaffection among the people and a state of feeling in them incompatible with a disposition to remain loyal to the Government and obedient to the laws Unlawful rumor-mongering and spreading false information— o Committed by any person who shall offer, publish, distribute, circulate and spread rumors, false news and information and gossip, or cause the publication, distribution, circulation or spreading of the same, which cause or tend to cause panic, divisive effects among the people, discredit of or distrust for the duly constituted authorities, undermine the stability of the Government and the objectives of the New Society, endanger the public order, or cause damage to the interest or credit of the State o The penalty is prision correccional or 6 months and 1 day to 6 years imprisonment o If the offender is a government official or employee, the accessory penalty of absolute perpetual disqualification from holding any public office shall be imposed Chapter 2: CRIMES AGAINST POPULAR REPRESENTATION What are the crimes against popular representation? 1. Acts tending to prevent the meeting of the National Assembly and similar bodies (Art. 143) 2. Disturbance of proceedings (Art. 144) 3. Violation on parliamentary immunity (Art. 145) Section 1: Crimes against legislative bodies and similar bodies 143. The penalty of prision correctional or a fine ranging from 200 to 2000 pesos, or both, shall be imposed upon any person who, by force or fraud, prevents the meeting of the National Assembly (Congress of the Philippines) or of any of its committee or subcommittees, constitutional commissions or committees Page 14 of 75 Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) or divisions thereof, or of any provincial board or city or municipal council or board. Elements: 1. That there be a projected or actual meeting of the National Assembly or any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board. 2. That the offender who may be any person prevents such meeting by force or fraud Chief of police and mayor who prevented the meeting of the municipal council are liable under Art. 143, when the defect of the meeting is not manifest and requires an investigation before its existence can be determined 144. The penalty of arresto mayor or a fine from 200 to 1000 pesos shall be imposed upon any person who disturbs the meetings of the National Assembly (Congress of the Philippines) or of any of its committees or sub-committees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board, or in the presence of any such bodies should behave in such manner as to interrupt its proceedings or to impair the respect due it. Elements: 1. That there be a meeting of the National Assembly or any of its committees or sub-committees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board. 2. That the offender does any of the following acts: a. He disturbs any of such meetings b. He behaves while in the presence of any such bodies in such a manner as to interrupt its proceedings or to impair the respect due it The complaint for disturbance of proceedings may be commenced upon the written complaint of a member of the Municipal Board where the proceedings of which were disturbed or interrupted although such member was not authorized by the rules or a resolution of the Board The implied power to punish for contempt of the National Assembly is coercive in nature. The power to punish crimes is punitive in character. Thus, the same act could be made the basis for contempt proceedings and for criminal prosecution Section 2: Violation of parliamentary immunity 145. The penalty of prision mayor shall be imposed upon any person who shall use force, intimidation, threats or fraud to prevent any member of the National Assembly (Congress of the Philippines) from attending the meetings of the Assembly (Congress) or of any of its Ro-An Salanga (I-A) committees or sub-committees, constitutional commissions or committees or divisions thereof, from expressing his opinions or casting his vote; and the penalty of prision correccional shall be imposed upon any public officer or employee who shall, while the Assembly (Congress) is in regular or special session, arrest or search any member thereof, except in case such member has committed a crime punishable under this Code by a penalty higher than prision mayor. Acts punishable: 1. By using force, intimidation, threats, or frauds to prevent any member of the National assembly from a. Attending the meetings of the Assembly or of any of its committees or sub-committees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board. or subcommittees, constitutional commissions or committees or divisions thereof, or from b. Expressing his opinions, or c. Casting his vote o Elements: 1) The offender uses force, intimidation, threats or fraud 2) That the purpose of the offender is to prevent any member of the National Assembly from— a. Attending the meetings of the National Assembly or any of its committees or constitutional commissions, etc.; or b. Expressing his opinions; or c. Casting his vote 2. By arresting or searching any member thereof while the National Assembly is in regular or special session, except in case such member has committed a crime punishable under the Code by a penalty higher than prision mayor. o Elements: 1) The offender is a public officer or employee 2) He arrests or searches any member of the National Assembly 3) That the Assembly, at the time of arrest or search, is in regular or special session 4) That the member arrested or searched has not committed a crime punishable under the Code by a penalty higher than prision mayor ―to prevent any member xxx from attending‖—not necessary that a member of the Assembly is actually prevented. It is sufficient that the offender has the purpose to prevent a member of the National Assembly from exercising any of his such prerogatives Parliamentary immunity—guarantees the legislator complete freedom of expression without fear of being made responsible in criminal or civil actions before the courts or any other forum outside of the Congressional Hall. But it does not protect him from responsibility before the legislative body itself Page 15 of 75 Crim 2 Notes (AY 2010-2011) whenever his words and conduct are considered by the latter disorderly or unbecoming of a member thereof Sec. 11 Art. 6 of the Constitution: ―A Senator or Member of the House of Representatives shall, in all offense punishable by not more than 6 years imprisonment, be privileged from arrest while the Congress is in session. No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof‖ To be consistent with the 1987 Constitution, the phrase ―by a penalty higher than prision mayor‖ in Art. 145 should be amended to read: ―by the penalty of prision mayor or highr‖ Chapter 3: ILLEGAL ASSEMBLIES AND ASSOCIATIONS 146. The penalty of prision correccional in its maximum period to prision mayor in its medium period shall be imposed upon the organizers or leaders of any meeting attended by armed persons for the purpose of committing any of the crimes punishable under this Code, or of any meeting in which the audience is incited to the commission of the crime of treason, rebellion or insurrection, sedition or assault upon a person in authority or his agents. Persons merely present at such meeting shall suffer the penalty of arresto mayor, unless they are armed, in which case the penalty shall be prision correccional. If any person present at the meeting carries an unlicensed firearm, it shall be presumed that the purpose of said meeting, insofar as he is concerned, is to commit acts punishable under this Code, and he shall be considered a leader or organizer of the meeting within the purview of the preceding paragraph. As used in this article, the word “meeting” shall be understood to include a gathering or group, whether in a fixed place or moving. Illegal Assemblies: 1. Any meeting attended by armed persons for the purpose of committing any of the crimes punishable under the Code. a. That there is a meeting, a gathering or group of persons, whether in a fixed place or moving b. That the meeting is attended by armed persons c. That the purpose of the meeting is to commit any of the crimes punishable under the Code 2. Any meeting in which the audience, whether armed or not, is incited to the commission of the crime of treason, rebellion, or insurrection, sedition, or assault upon a person in authority or his agents a. That there is a meeting, a gathering or group of persons, whether in a fixed place or moving b. That the audience, whether armed or not, is incited to the commission of the crime of treason, rebellion, or insurrection, sedition or direct assault The persons present at the meeting must be armed to constitute the first form of illegal assembly but not all the persons present at the meeting must be armed o Those unarmed persons present at the meeting is still liable where the penalty of arresto mayor is imposed ―any meeting in which the audience is incited to the commission of the crime of‖—the audience is actually incited to the commission of the crimes If in a meeting, the audience is incited to the commission of rebellion or sedition, the crimes committed are 1. Illegal assembly as regards: a. The organizers or leaders; and b. Persons merely present; and 2. Inciting to rebellion or sedition insofar as the one inciting them is concerned Persons liable for illegal assembly: 1. The organizers or leaders of the meeting 2. Persons merely present at the meeting—they must have a common intent to commit the felony of illegal assembly; the absence of such intent may exempt the person present from criminal liability Responsibility of persons merely present at the meeting: 1. If they are not armed, the penalty is arresto mayor 2. If they carry arms, like bolos or knives, or licensed firearms, the penalty is prision correccional If any person present at the meeting carries an unlicensed firearm: 1. It is presumed that the purpose of the meeting insofar as he is concerned, is to commit acts punishable under the Code; and 2. He is considered a leader or organizer of the meeting 147. The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 1000 pesos shall be imposed upon the founders, directors, and president of associations totally or partially organized for the purpose of committing any of the crimes punishable under this Code or for some purpose contrary to public morals. Mere members of said associations shall suffer the penalty of arresto mayor. Illegal associations: 1. Associations totally or partially organized for the purpose of committing any of the crimes punishable under the Code 2. Associations totally or partially organized for some purpose contrary to public morals. Persons liable for illegal association: 1. Founders, directors and president of the association 2. Mere members of the association Page 16 of 75 Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) Illegal Assembly Necessary that there is an actual meeting or assembly of armed persons It is the meeting and attendance at such meeting that are punished Illegal Association Not necessary that there be an actual meeting It is the act of forming or organizing and membership in the association that are punished The persons liable are: 1. The founders, directors and president; and 2. The members Chapter 4: ASSAULT UPON, AND RESISTANCE AND DISOBEDIENCE TO, PERSONS IN AUTHORITY AND THEIR AGENTS Crimes punished: 1. Direct Assaults (Art. 148) 2. Indirect Assaults (Art. 149) 3. Disobedience to the National Assembly (Art. 150) 4. Resistance and Disobedience (Art. 151) 5. Persons in Authority and Agents of Persons in Authority (Art. 152) 148. Any person or persons who, without a public uprising, shall employ force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition, or shall attack, employ force, or seriously intimidate or resist any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance, shall suffer the penalty of prision correccional in its medium and maximum periods and a fine not exceeding 1000 pesos, when the assault is committed with a weapon or when the offender is a public officer or employee, or when the offender lays hands upon a person in authority. If none of these circumstances be present, the penalty of prision correccional in its minimum period and a fine not exceeding 500 pesos shall be imposed. Additional penalty for attacking ambassadors or ministers: o Any person who assaults, strikes, wounds or in any other manner offers violence to the person of an ambassador or a public minister, in violation of the law of nations, shall be imprisoned not more than 3 years and fined not exceeding 200 pesos, in the discretion of the court, in addition to the penalties that may be imposed under the RPC. Direct Assault Crime against public order Ordinary Assault Crime against persons under Arts. 236 to 266 The persons liable are: 1. The organizers or leaders of the meeting 2. The persons present at the meeting There is currently no law which punishes subversion Acts punished under the Anti-Subversion Act: 1. Knowingly, willfully and by overt acts a. Affiliating oneself with b. Becoming, or c. Remaining a member of the Communist Party of the Philippines and/or its successors or of any subversive association as define in Sec. 2 of this Act 2. Conspiring with any other person to overthrow the Government of the Republic of the Philippines or the government of any of its political subdivisions by force, violence, deceit, subversion or other illegal means, for the purpose of placing such government or political subdivision under the control and domination of any alien power; and 3. Taking up arms against the Government, the offender being a member of the Communist Party or of any subversive association as defined in Sec. 2 of this Act Subversive associations and organizations—any association, organization, political party, or group of persons organized for the purpose of overthrowing the Government of the Republic of the Philippines or for the purpose of removing from the allegiance to said government or its laws, the territory of the Philippines or any part thereof, with the open or covert assistance or support of a foreign power by force, violence, deceit or other illegal means Subversion Punishes affiliation or membership in a subversive organization Mere membership in a subversive association is sufficient, and the taking up arms is but a circumstance which raises the penalty to be imposed upon the offender Rebellion Committed by rising publicly and taking up arms against the Government for any purposes defined in Art. 134 of the RPC There must be a public uprising and taking of arms against the Government Triable by the CFI (now the RTC) 2 ways of committing the crime of direct assaults: 1. Without public uprising, by employing force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition 2. Without public uprising, by attacking, by employing force, or by seriously intimidating or seriously resisting any person in authority or any of his agents, while engaged in the performance of official duties, or on the occasion of such performance Elements of the 1st form of direct assault: 1. The offender employs force or intimidation Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) Page 17 of 75 2. The aim of the offender is to attain any of the purposes of the crime of rebellion or any of the objects in the crime of sedition 3. That there is no public uprising Under the 1st form, the offended party may be a private individual or person belonging to a social class and preventing by force the holding of a popular election, without public uprising, is direct assault Elements of the 2nd form of direct assault: 1. The offender (a) makes an attack, (b) employs force, (c) makes a serious intimidation, or (d) makes a serious resistance 2. The person assaulted in a person in authority or his agent 3. That at the time of the assault, the person in authority or his agent a. Is engaged in the actual performance of official duties, or that he is assaulted b. By reason of the past performance of official duties 4. The offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties 5. That there is no public uprising "attack‖—includes any offensive or antagonistic movement or action of any kind ―employ force‖—the force employed must be a serious character as to indicate determination to defy the law and its representative at all hazards (this is if the offended party is only an agent of a person in authority) o The force employed need not be serious when the offended party is a person in authority o The penalty is even higher when ―the offender lays hands upon a person in authority‖ ―seriously‖—describes the words ―intimidate‖ and ―resist‖ The law, with regard to intimidation or resistance as other constitutive element of assault, expressly require that the be serious Resistance: 1. Passive—when the one who is placed under arrest throws himself on the ground and the resistance makes it necessary to raise him up or drag him along to jail 2. Active—resistance needed in direct assault because of the need of its gravity When the constitutive element of direct assault is intimidation, it must be serious whether the offended party is an agent only or he is a person in authority The intimidation must produce its effect immediately, for if the threats be of some future evil, the act would not be an assault Person in authority—any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board or commission o A barangay captain and a barangay chairman o Division superintendent of schools o President of Sanitary Division o Teachers, professors, and persons charged with the supervision of public or duly recognized private schools, colleges and universities The spirit and purpose behind Comm. Act. 578 is to give teachers protection, dignity and respect while in the performance of their official duties ―directly vested with jurisdiction‖—meant ―the power or authority to govern and execute the laws‖ where such powers and duties vested in him by law should be determined An agent of a person in authority—one who, by direct supervision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property; where their functions must be clearly shown in the information o Barrio councilman, barrio policemen, and barangay leader o Any person who comes to the aid of persons in authority o Policemen o Municipal treasurer—an deputy ex oficio of the provincial treasurer o Postmaster—an agent of the Director of Posts o Rural policemen—duly appointed by the Mayor o Sheriff o Agents of the Bureau of Internal Revenue o Malacanang confidential agent o Barangay Chief Tanod Not in the performance of official duties: a. A person in authority or his agent who exceeds his power or acts without authority b. When the agent of authority makes unnecessary use of force or violence to make him respected, he goes beyond the limits of his powers and from that moment, he acts as a private person c. When the offender and the offended party, who are both persons in authority or their agents, descend to matters which are private in nature An assault upon a person in authority may be committed by another person in authority as Art. 148 makes it an aggravating circumstance when the offender is a ―public officer or employee‖ The knowledge of the accused that the victim is a person in authority or his agent is essential because the accused must have the intention to offend, injure, or assault the offended party as such o The information must allege such knowledge o Defendant must have the intention to defy the authorities ―on occasion of such performance‖—impelling motive of the attack is the performance of official duty Page 18 of 75 Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) Hence, it is not necessary that the person in authority who was assaulted was actually performing official duties o If the motives that induced the guilty parties to commit the assaults are the acts performed by such person in authority or by his agents, whether such acts immediately preceded the assault or took place some time prior thereto, the crime is committed on the occasion of the performance of public official duties and, consequently, the characteristic elements of assault exist The evidence of motive is important in direct assault when the person in authority or his agent who is attacked or seriously intimidated is not in the actual performance of his official duty o But when a person in authority or his agent is in the actual performance of his official duty, the motive of the offender is immaterial 2 kinds of direct assault of the 2nd form: 1. Simple assault 2. Qualified assault a. When the assault is committed with a weapon b. When the offender is a public officer or employee c. When the offender lays hands upon a person in authority ―weapons‖—includes not only firearms and sharp or cutting instruments but also stones, clubs, and any other object with which some physical injury may be inflicted The crime of slight physical injuries is absorbed in direct assault o 149. The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon any person who shall make use of force or intimidation upon any person coming to the aid of the authorities or their agents on occasion of the commission of any of the crimes defined in the next preceding article Elements: 1. That a person in authority or his agent is the victim of any of the forms of direct assault defined in Art. 148 2. That a person comes to the aid of such authority or his agent 3. That the offender makes use of force or intimidation upon such person coming to the aid of the authority or his agent Indirect assault can be committed only when direct assault is also committed A private person who comes to the rescue of an authority or his agent enjoys the privileges of the latter, and any person who uses force or intimidation upon such person under the circumstances is guilty of indirect assault Ro-An Salanga (I-A) 150. The penalty of arresto mayor or a fine ranging from 200 to 1000 pesos, or both such fine and imprisonment, shall be imposed upon any person who, having been duly summoned to attend as a witness before the National Assembly, its special or standing committees and subcommittees, the Constitutional Commission and its committees, subcommittees, or divisions, or before any commission or committee chairman or member authorized to summon witnesses, refuses, without legal excuse to obey such summons, or being present before any such legislative or constitutional body or official, refuses to be sworn or placed under affirmation or to answer any legal inquiry or to produce any books, papers, documents, or records in his possession, when required by them to do so in the exercise of their functions. The same penalty shall be imposed upon any person who shall restrain another from attending as a witness, or who shall induce disobedience to a summons or refusal to be sworn by any such body or official. Acts punished as disobedience to the National Assembly or its committee or Constitutional commission 1. By refusing, without legal excuse, to obey summons of the National Assembly, its special or standing committees and subcommittees, the Constitutional commissions and its committees, subcommittees or divisions, or by any commission or committee chairman or member authorized to summon witnesses 2. By refusing to be sworn or placed under affirmation while being before such legislative or constitutional body or official 3. By refusing to answer any legal inquiry or to produce any books, papers, documents, or records in his possession, when required by them to do so in the exercise of their functions 4. By restraining another from attending as a witness in such legislative or constitutional body 5. By inducing disobedience to a summons or refusal to be sworn by any such body or official Any of the acts punished by Art. 150 may also constitute contempt of the National Assembly The power of inquiry—with proves to enforce it—is an essential and appropriate auxiliary to the legislative functions 151. The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any person who not being included in the provisions of the preceding articles shall resist or seriously disobey any person in authority, or the agents of such person, while engaged in the performance of official duties. Crim 2 Notes (AY 2010-2011) Page 19 of 75 When the disobedience to an agent of a person in authority is not of a serious nature, the penalty of arresto menor or a fine ranging from 10 to 10 pesos shall be imposed upon the offender. Elements of resistance and serious disobedience: (par. 1) 1. That a person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender 2. The offender resists or seriously disobeys such person in authority or his agent 3. The act of the offender is not included in the provisions of Arts. 148, 149 and 150 ―crime of resistance and disobedience‖—consists in a failure to comply with orders directly issued by the authorities in the exercise of their official duties The person in authority or the agent of such person must be in the actual performance of his official duties The disobedience contemplated consists in the failure or refusal to obey a direct order The accused must have knowledge that the person arresting him is a peace officer Elements of simple disobedience: (par. 2) 1. That an agent of a person in authority is engaged in the performance of official duty or gives a lawful order to the offender 2. That the offender disobeys such agent of a person in authority 3. Such disobedience is not of a serious nature In simple disobedience, the offended party must be only an agent of a person in authority The order must be lawful; otherwise, the resistance is justified The disobedience should not be of a serious nature because if it is, the offender should be punished under par. 1 of Art. 151 and not of simple disobedience When the attack or employment of force is not deliberate, the crime is only resistance or disobedience because the offender has no intent to ignore, disregard or defy the authority or his agents RA 3600—Picketing is a legitimate means of economic coercion if it is confined to persuasion, if it is free from molestation or threat or physical injury or annoyance and if there exists some lawful justification for its existence. o Picketing may be considered a nuisance if it constitutes an obstruction to the free use of property so as substantially to interfere with the comfortable enjoyment of life or property, or if it constitutes an unlawful obstruction to the free passage or use, in the customary manner, of a street Direct Assault The person in authority or his agent must be engaged in the performance of official duties or that he is assaulted by reason thereof (2nd form) is committed in Committed only by 4 ways: resisting or seriously 1. By attacking disobeying a person in 2. By employing force authority or his agent 3. By seriously intimidating 4. By seriously resisting a person in authority or his agent There is force employed, but the use of force in resistance is not so serious, as there is no manifest intention to defy the law and the officers enforcing it; but when the one resisted is a person in authority, the use of any kind or degree of force will give rise to direct assault 152. In applying the provisions of the preceding and other articles of this Code, any person directly vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board, or commission, shall be deemed a person in authority. A barangay captain and a barangay chairman shall also be deemed a person in authority. Any person who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property, such as a barrio councilman, barrio policeman and barangay leader, and any person who comes to the aid of persons in authority, shall be deemed an agent of a person in authority. In applying the provisions of Arts. 148 and 151 of this Code, teachers, professors, and persons charged with the supervision of public or duly recognized private schools, colleges and universities, and lawyers in the actual performance of their professional duties or on the occasion of such performance shall be deemed persons in authority. ―directly vested with jurisdiction‖—the power and authority to govern and execute the laws Persons in authority: a. Municipal mayor b. Division superintendent of schools c. Public and private school teachers d. Teacher-nurse e. President of Sanitary Division f. Provincial fiscal g. Justice of the Peace h. Municipal Councilor Page 20 of 75 Resistance or Serious Disobedience The person in authority or his agent must be in actual performance of his duties Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) i. Barrio captain and barangay chairman To be an agent of a person in authority, one must be charged with 1. The maintenance of public order; and 2. The protection and security of life and property Chapter 5: PUBLIC DISORDERS Crimes classified under public disorders: 1. Tumults and other disturbances of public order (Art. 153) 2. Unlawful use of means of publication and unlawful utterances (Art. 154) 3. Alarms and scandals (Art. 155) 4. Delivering prisoners from jail (Art. 156) 153. The penalty of arresto mayor in its medium period to prision correccional in its minimum period and a fine not exceeding 1000 pesos shall be imposed upon any person who shall cause any serious disturbance in a public place, office or establishment, or shall interrupt or disturb public performances, functions or gatherings, or peaceful meetings, if the act is not included in the provisions of Art. 131 and 132. The penalty next higher in degree shall be imposed upon persons causing any disturbance or interruption of a tumultuous character. The disturbance or interruption shall be deemed to be tumultuous if caused by more than 3 persons who are armed or provided with means of violence. The penalty of arresto mayor shall be imposed upon any person who in any meeting, association, or public place, shall make any outcry tending to incite rebellion or sedition or in such place shall display placards or emblems which provoke a disturbance of the public order. The penalty of arresto menor and a fine not to exceed 200 pesos shall be imposed upon those persons who in violation of the provisions contained in the last clause of Art. 85, shall bury with pomp the body of a person who has been legally executed. What are tumults and other disturbances of public order? 1. Causing any serious disturbance in a public place, office or establishment 2. Interrupting or disturbing performances, functions or gatherings or peaceful meetings, if the act is not included in Arts. 131 and 132 3. Making any outcry tending to incite rebellion or sedition in any meeting, association or public order 4. Displaying placards or emblems which provoke a disturbance of public order in such place 5. Burying with pomp the body of a person who has been legally executed Ro-An Salanga (I-A) Serious disturbance must be planned or intended If the act of disturbing or interrupting a meeting or religious worship is committed by a private individual, or even by a public officer but he is a participant therein, Art. 153 is applicable ―outcry‖—means to shout subversive or provocative words tending to stir up the people to obtain by means of force or violence any of the objects of rebellion or sedition For an outcry or the displaying of emblems or placards to constitute inciting to commit rebellion or sedition, it is necessary that the offender should have done the act with the idea aforethought of inducing his hearers or readers to commit the crime of rebellion or sedition o If the outcry is more or less unconscious outburst which, although rebellious or seditious in nature, is not intentionally calculated to induce others to commit rebellion or sedition, it is only public disorder The penalty next higher in degree shall be imposed upon persons causing any disturbance or interruption of a tumultuous character One who fired a submachine gun to cause disturbance, but inflicted serious physical injuries on another, may be prosecuted for 2 crimes 154. The penalty of arresto mayor and a fine ranging from 200 to 1000 pesos shall be imposed upon: 1. Any person who by means of printing, lithography, or any other means of publication shall publish or cause to be published as news any false news which may endanger the public order, or cause damage to the interest or credit of the State 2. Any person who by the same means, or by words, utterances or speeches, shall encourage disobedience to the law or to the constituted authorities to praise, justify, or extol any act punished by law 3. Any person who shall maliciously publish or cause to be published any official resolution or document without proper authority, or before they have been published officially 4. Any person who shall print, publish, or distribute or cause to be printed, published, or distributed books, pamphlets, periodicals, or leaflets which do not bear the real printer’s name, or which are classified as anonymous It is not necessary that the publication of the false news actually caused public disorder or caused damage to the interest or credit of the State o The mere possibility of causing such danger or damage is sufficient The offender must know that the news is false Page 21 of 75 Crim 2 Notes (AY 2010-2011) ―which may endanger the public order‖—if there is no possibility of danger to the public order or causing damage to the interest or credit of the State by the publication of the false news, Art. 154 is not applicable RA 248 prohibits the reprinting, reproduction or republication of government publications and official documents without previous authority 155. The penalty of arresto menor or a fine not exceeding 200 pesos shall be imposed upon: 1. Any person who within any town or public place, shall discharge any firearm, rocket, firecracker, or other explosive calculated to cause alarm or danger 2. Any person who shall instigate or take an active part in any charivari or other disorderly meeting offensive to another or prejudicial to public tranquility 3. Any person who, while wandering about at night or while engaged in any other nocturnal amusements, shall disturb the public peace 4. Any person who, while intoxicated or otherwise, shall cause any disturbance or scandal in public places, provided that the circumstances of the case shall not make the provisions of Art. 153 applicable ―shall discharge any firearm‖—the discharge of the firearm should not be aimed at a person; otherwise, the offense would fall under Art. 254, punishing discharge of firearm ―calculated to cause alarm or danger‖—it is the result, not the intent, that counts. The act must produce alarm or danger as a consequence Art. 155 does not make any distinction as to the particular place in the town or public place where the discharge of firearm, rocket, etc. is effected Charivari—includes a medley of discordant voices, a mock serenade of discordant noises made on kettles, tins, horns, etc., designed to annoy and insult o If the disturbance is of a serious nature, the case will fall under Art. 153 156. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who shall remove from any jail or penal establishment any person confined therein or shall help the escape of such person, by means of violence, intimidation or bribery. If other means are used, the penalty of arresto mayor shall be imposed. If the escape of the prisoner shall take place outside of said establishments by taking the guards by surprise, the same penalties shall be imposed in their minimum period. Ro-An Salanga (I-A) Elements: 1. There is a person confined in a jail or penal establishment 2. The offender removes therefrom such person, or helps the escape of such person This article applies even if the prisoner is in the hospital or asylum because it is considered as an extension of the penal institution The offense under this article is usually committed by an outsider but it may also apply to a prisoner who helps another to escape or to an employee of the penal establishment provided that he does not have the custody or charge of such person o However, if the offender is a public officer who had the prisoner in his custody or charge, he is liable for infidelity in the custody of a prisoner (Art. 223) The use of violence, intimidation or bribery is not an element and is imposed by a penalty higher The employment of deceit is not an essential or integral element of the crime of delivery of prisoners from jail such that when the same is not alleged in the information and duly proved in evidence, the accused cannot be convicted of said crime Is the person, who substituted for a prisoner by taking his place in jail, liable under Art. 156? Yes, because this is removal by ―other means‖, that is, deceit But if the crime committed by the prisoner for which he is confined or serving sentence is treason, murder, or parricide, the act of taking the place of the prisoner in the prison is that of an accessory and he may be held liable as such, because he assists in the escape of the principal If the prisoner removed or whose escape is made possible by the commission of the crime of delivering prisoner from jail is a detention prisoner, such prisoner is not criminally liable o A prisoner who is criminally liable for leaving the penal institution only when there is evasion of the service of his sentence, which can be committed only by a convict by final judgment Chapter 6: EVASION OF SERVICE OF SENTENCE 3 kinds of evasion of the service of the sentence: 1. Evasion of service of sentence by escaping during the term of his sentence (Art. 157) 2. Evasion of service of sentence on the occasion of disorders (Art. 158) 3. Other cases of evasion of service of sentence, by violating the conditions of conditional pardon (Art. 159) 157. The penalty of prision correccional in its medium and maximum periods shall be imposed upon any convict who shall evade service of his sentence by escaping during the term of his imprisonment by reason of final judgment. However, if such evasion or escape Page 22 of 75 Crim 2 Notes (AY 2010-2011) shall have taken place by means of unlawful entry, by breaking doors, windows, gates, walls, roofs, or floors, or by using picklocks, false keys, disguise, deceit, violence or intimidation, or through connivance with other convicts or employees of the penal institution, the penalty shall be prision correccional in its maximum period. Elements: 1. The offender is a convict by final judgment 2. That he is serving his sentence which consists in deprivation of liberty 3. That he evades the service of his sentence by escaping during the term of his sentence The crime of evasion of service of sentence can be committed only by a convict by final judgment o Hence, if the convict escapes within 15 days from the promulgation or notice of the judgment, without commencing to serve the sentence or without expressly waiving in writing his right to appeal, he is not liable under this Detention prisoners and minor delinquents who escape from confinement are not liable for evasion of service of sentence. o Detention prisoners are not convicts by final judgment o Minor delinquents confined in the reformatory institution are not convicts, because the sentence is suspended ―imprisonment‖—―by escaping during the term of his sentence which consists in deprivation of liberty‖ o Hence, it also applies to sentence of destierro ―escape‖—to ―flee from; to avoid; to get out of the way, as to flee to avoid arrest‖ Circumstances qualifying the offense: (if such evasion or escape takes place—) 1. By means of unlawful entry (scaling) 2. By breaking doors, windows, gates, walls, roofs or floors 3. By using picklocks, false keys, disguise, deceit, violence or intimidation 4. Through connivance with other convicts or employees of the penal institution ―unlawful entry‖—qualified if committed by climbing or scaling the wall 158. A convict, who shall evade the service of his sentence, by leaving the penal institution where he shall have been confined, on the occasion of disorder resulting from a conflagration, earthquake, explosion, or similar catastrophe, or during a mutiny in which he has not participated, shall suffer an increase of 1/5 of the time still remaining to be served under the original sentence, which in no case shall exceed 6 months, if he shall fail to give himself up to the authorities within 48 hours following the issuance of a proclamation by the Ro-An Salanga (I-A) Chief Executive announcing the passing away of such calamity. Convicts who, under the circumstances mentioned in the preceding paragraph, shall give themselves up to the authorities within the above mentioned period of 48 hours, shall be entitled to the deduction provided in Art. 98. Elements: 1. The offender is a convict by final judgment, who is confined in a penal institution 2. That there is disorder, resulting from— a. Conflagration b. Earthquake c. Explosion d. Similar catastrophe, or e. Mutiny in which he has not participated 3. That the offender evades the service of his sentence by leaving the penal institution where he is confined, on the occasion of such disorder or during the mutiny 4. That the offender fails to give himself up to the authorities within 48 hours following the issuance of a proclamation by the Chief Executive announcing the passing away of such calamity The offender must be a convict by final judgment The prisoner who did not escape from his place of confinement during the war is not entitled to a special allowance of 1/5 deduction of the period of his sentence (original sentence); this is why it is needed that the convict must leave the penal institution What is punished is not the leaving of the penal institution, but the failure of the convict to give himself up to the authorities in the specified time The penalty—increase of 1/5 of the time still remaining to be served under the original sentence, not to exceed 6 months The award—deduction of 1/5 of the period of his sentence (original sentence) Mutiny—implies an organized unlawful resistance to a superior officer; a sedition; a revolt 159. The penalty of prision correccionail in its minimum period shall be imposed upon the convict, who, having been granted conditional pardon by the Chief Executive, shall violate any of the conditions of such pardon. However, if the penalty remitted by the granting of such pardon be higher than 6 years, the convict shall then suffer the unexpired portion of his original sentence. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardon and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all members of Congress. Page 23 of 75 Crim 2 Notes (AY 2010-2011) Conditional pardon—a contract between the President, who grants the pardon, and the convict, who accepts it. o The pardoned convict is bound to fulfill its conditions and accept all the consequences, not as he chooses, but according to its strict form Elements of the offense of violation of conditional pardon: 1. The offender was a convict 2. He was granted a conditional pardon by the President 3. He violated any of the conditions of such pardon 2 penalties provided for in this article: 1. Prision correccional in its minimum period—if the penalty remitted does not exceed 6 years 2. The unexpired portion of his original sentence—if the penalty remitted is higher than 6 years The violation of conditional pardon is a distinct crime. The violation of conditional pardon is committed in the place where the subsequent offense is perpetrated, because by committing the subsequent offense, he thereby violates the condition that ―he shall not again be found guilty of any crime punishable by the laws of the Philippines‖ Violation of conditional pardon is not a substantive offense, because the penalty imposed for such violation is the unexpired portion of the punishment in the original sentence o Dissenting: it is a substantive offense because the penalty therefor is no longer necessarily the remitted portion of the sentence, for when the unexpired portion is less than 6 years, the convict who violates the conditions of the pardon shall suffer the penalty of prision correccional in its minimum period Condition of the pardon extends to special laws The parolee or convict who is regarded as having violated the provisions thereof must be charged, prosecuted and convicted by final judgment before he can be made to suffer the penalty described in Art. 159 Since destierro has a duration of 6 months and 1 day to 6 years, under no circumstances may the penalty for violation of the conditional pardon be destierro The President has the specific power to authorize the arrest and reincarceration of any convict person granted pardon or parole who, in his judgment, shall fail to comply with the condition or conditions of his pardon or parole The time during which the convict was out of prison cannot be deducted from the unexecuted portion of his sentence The duration of the conditions subsequent, annexed to a pardon, would be limited to the remaining period of the prisoner’s sentence, unless an intention to extend it beyond that time was manifest from the nature of the condition or the language in which it was imposed Violation of conditional pardon Does not cause harm or injury to the right of other person nor does it disturb the public order Merely an infringement of the terms stipulated in the contract between the President and the criminal Evasion of the service of the sentence An attempt at least to evade the penalty inflicted by the courts upon criminals Defeat the purpose of the law of either reforming or punishing them for having disturbed the public order Chapter 7: COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE 160. Besides the provisions of Rule 5 of Art. 63, any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony. Any convict of the class referred to in this article, who is not a habitual criminal, shall be pardoned at the age of 70 years if he shall have already served out his original sentence, or when he shall complete it after reaching said age, unless by reason of his conduct or other circumstances he shall not be worthy of such clemency. Quasi-recidivism—a special aggravating circumstance where a person, after having been convicted by final judgment, shall commit a new felony before beginning to serve such sentence, or while serving the same. He shall be punished by the maximum period of the penalty prescribed by law for the new felony Elements: 1. The offender was already convicted by final judgment of one offense 2. The he committed a new felony before beginning to serve such sentence or while serving the same Ordinary recidivist (Art. 14 par. 9)—If the offender committed a new felony after serving the sentence for the first offense, and both offenses are embraced in the same title of the Code The second crime must be a felony; hence, punishable under RPC o But the first crime for which the offender is serving sentence need not be a felony The new offense need not be of different character from that of the former offense Quasi-recidivism does not require that the 2 offenses are embraced in the same title of the Code Reiteracion—requires that the offender against whom it is considered shall have served out his sentences for the prior offense Page 24 of 75 Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) The special aggravating circumstance of quasirecidivism cannot be offset by any ordinary mitigating circumstance, because Art. 160 specifically provides that the offender ―shall be punished by the maximum period of the penalty prescribed by law for the new felony‖ o But if the convict serving the sentence is a minor under 16 years old, the penalty can be lowered by at least one degree since Minority is a privileged mitigating circumstance When the convict is a habitual criminal, a quasirecidivist may not be pardoned even if he has reached the age of 70 years and already served out his original sentence Title Four: Crimes against Public Interest Chapter 1: Forgeries What are the crimes called forgeries? 1. Forging the seal of the Government, signature or stamp of the Chief Executive (Art. 161) 2. Counterfeiting coins (Art. 163) 3. Mutilation of coins (Art. 164) 4. Forging treasury or bank notes or other documents payable to bearer (Art. 166) 5. Counterfeiting instruments not payable to bearer (Art. 167) 6. Falsification of legislative documents (Art. 170) 7. Falsification by public officer, employee or notary or ecclesiastical minister (Art. 171) 8. Falsification by private individuals (Art. 172) 9. Falsification of wireless, cable, telegraph, and telephone messages (Art. 173) 10. Falsification of medical certificates, certificates of merit or service (Art. 174) Section 1: Forging the seal of the Government of the Philippine Islands, the signature or stamp of the Chief Executive Acts punishable: 1. Counterfeiting the great seal of the Government of the Philippine Islands, forging the signature or stamp of the Chief Executive 2. Using forged signature or counterfeit seal or stamp 161. The penalty of reclusion temporal shall be imposed upon any person who shall forge the Great Seal of the Government of the Philippine Islands or the signature or stamp of the Chief Executive Acts punished: 1. Forging the Great Seal of the Government of the Philippines 2. Forging the signature of the President 3. Forging the stamp of the President Great Seal—circular in form, with arms consisting of paleways of 2 pieces, azure and gules; a chief argent Ro-An Salanga (I-A) studded with 3 golden stars equidistant from each other; in point of honor, ovoid argent over the sun rayonnant with 8 minor and lesser rays; in sinister base gules, the Lion Rampant of Spain; in dexter base azure, the American Eagle displayed proper; and surrounding the whole is a double marginal circle within which are the words ―Republic of the Philippines‖ The Great Seal shall be and remain in the custody of the President of the Phils., and shall be affixed to or placed upon all commissions signed by him, and upon such other official documents and papers of the Republic of the Philippines as may by law be provided, or as may be required by custom and usage in the discretion of the President of the Philippines. The act punishable is counterfeiting or making an imitation of the signature of the President; hence, if the President left with his secretary a signature in blank, and a document is written above it, the crime committed is not covered by Art. 161 but by Art. 171 or 172. 162. The penalty of prision mayor shall be imposed upon any person who shall knowingly make use of the counterfeit seal or forged or stamp mentioned in the preceding article. Elements: 1. That the Great Seal of the Republic was counterfeited or the signature or stamp of the Chief Executive was forged by another person 2. That the offender knew of the counterfeiting or forgery 3. That he used the counterfeit seal or forged signature or stamp The offender should not be the one who forged the great seal or signature of the President. Otherwise, he will be penalized under Art. 161 The act is that of an accessory but the penalty is only one degree lower Section 2: Counterfeiting Coins Acts punishable: 1. Making and importing and uttering false coins 2. Mutilation of coins—importation and utterance of mutilated coins 3. Selling of false or mutilated coin, without connivance 163. Any person who makes, imports, or utters false coins, in connivance with counterfeiters or importers, shall suffer: 1. Prision mayor in its minimum and medium periods and a fine not to exceed 10,000pesos, if the counterfeited coin be silver coin of the Philippines or coin of the Central Bank of the Philippines of tencentavo denomination or above Page 25 of 75 Crim 2 Notes (AY 2010-2011) 2. Prision correccional in its minimum and medium periods and a fine not to exceed 2,000pesos if the counterfeited coins be any of the minor coinage of the Philippines or of the Central Bank of the Philippines below ten-centavo denomination 3. Prision correccional in its minimum period and a fine not to exceed 1,000pesos, if the counterfeited coin be currency of a foreign country Elements: 1. That there be false or counterfeited coins 2. That the offender either made, imported or uttered such coins 3. That in case of uttering such false or counterfeited coins, he connived with the counterfeiters or importers Coin—a piece of metal stamped with certain marks and made current at a certain value A coin is false or counterfeited—if it is forged or if it not authorized by the Government as legal tender, regardless of its intrinsic value Counterfeiting—the imitation of a legal or genuine coin. It may contain more silver than the ordinary coin o There is counterfeiting when a spurious coin is made. There must be an imitation of the peculiar design of a genuine coin To import fake coins—to bring them into port. o The importation is complete before entry at the Customs House To utter—to pass counterfeited coins o It includes their delivery or the act of giving them away o It is uttered when it is paid, when the offender is caught counting the counterfeited coins preparatory to the act of delivering them, even though the utterer may not obtain the gain he intended Kinds of coins the counterfeiting of which is punished: 1. Silver coin of the Philippines or coin of the Central Bank of the Philippines 2. Coin of the minor coinage of the Philippines or of the Central Bank of the Philippines 3. Coin of the currency of a foreign country Minor coins of the Philippines—coins below tencentavo denomination Former coins withdrawn from circulation which are counterfeited are punishable under Art. 163 o The reason for punishing is not alone the harm that may be caused to the public in case it goes into circulation again, but the possibility that the counterfeiter may later apply his trade to the making of coins in actual circulation Pars. 1 & 2 mention ―coin‖ without any qualifying word such as ―current‖ As regards par. 3, the use of the word ―currency‖ is not correct because the Spanish text uses the word Ro-An Salanga (I-A) ―moneda‖ which embraces not only those that are legal tender, but also those out of circulation 164. The penalty of prision correccional in its minimum period and a fine not to exceed 2,000pesos shall be imposed upon any person who shall mutilate coins of the legal currency of the (US or of the) Philippine Islands or import or utter mutilated current coins, in connivance with the mutilator or importer. Acts punished: 1. Mutilating coins of the legal currency, with the further requirement that there be intent to damage or to defraud another 2. Importing or uttering such mutilated coins, with the further requirement that there must be connivance with the mutilator or importer in case of uttering Mutilation—to take off part of the metal either by filing it or substituting it for another metal of inferior quality o To diminish by ingenuous means the metal in the coin o One who mutilates a coin does not do so for the sake of mutilating, but to take advantage of the metal abstracted o One who utters said mutilated coin receives its legal value, much more than its intrinsic value It is indispensable that the mutilated coin be of legal tender The coin must be of the legal currency or current coins of the Philippines o If the coin mutilated is legal tender of a foreign country, it is not a crime of mutilation under the RPC 165. Any person who knowingly, although without the connivance mentioned in the preceding articles, shall possess false or mutilated coin with intent to utter the same, or shall actually utter such coin, shall suffer a penalty lower by one degree than that prescribed in said articles. Acts punished: 1. Possession of coin, counterfeited or mutilated by another person, with intent to utter the same, knowing that it is false or mutilated o Elements: a. Possession b. With intent to utter, and c. Knowledge 2. Actually uttering such false or mutilated coin, knowing the same to be false or mutilated o Elements: a. Actually uttering, and b. Knowledge This does not require that the coin be of legal tender The possession prohibited is possession in general, that is, not only actual, physical possession, but also Page 26 of 75 Crim 2 Notes (AY 2010-2011) constructive possession or the subjection of the thing to one’s control If the false or mutilated coins are found in the possession of the counterfeiters, or mutilators, or importers, such possession does not constitute a separate offense, but is identified with the counterfeiting or mutilation or importation The offense punished under this article is the mere holding of the false or mutilated coin with intent to utter Section 4: Falsification of legislative, public, commercial, and private documents, and wireless telegraph and telephone messages RA 248 prohibits the reprinting, reproduction or republication of government publications and official documents without previous authority Five classes of falsification: 1. Falsification of legislative documents (Art. 170) 2. Falsification of a document by a public officer, employee or notary public (Art. 171) 3. Falsification of a public or official, or commercial document by a private individual (Art. 172, par. 1) 4. Falsification of a private document by any person 5. Falsification of wireless telegraph and telephone messages Forgery (as used in Art. 169)—falsification and counterfeiting of treasury or bank notes or any instruments payable to bearer or to order Falsification—commission of any of the 8 acts mentioned in Art. 171 on legislative (only the act of making alteration), public or official, commercial, or private documents, or wireless, or telegraph messages 170. Falsification of legislative documents—: The penalty of prision correccional in its maximum period and a fine not exceeding 6000 pesos shall be imposed upon any person who, without proper authority therefor, alters any bill, resolution, or ordinance enacted or approved or pending approval by either House of the Legislature or any provincial board or municipal council. Elements: 1. That there be a bill, resolution or ordinance enacted or approved or pending approval by either House of the Legislature or any provincial board or municipal council 2. That the offender alters the same 3. That he has no proper authority therefor 4. That the alteration has changed the meaning of the document ―Municipal council‖—includes city council or municipal board The bill, resolution or ordinance must be genuine The offender is any person The act of falsification in legislative document is limited to altering it which changes its meaning Ro-An Salanga (I-A) 171. Falsification by public officer, employee or notary or ecclesiastical minister—: The penalty of prision mayor and a fine not to exceed 5000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts: 1. Counterfeiting or imitating any handwriting, signature or rubric 2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate 3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them 4. Making untruthful statements in a narration of facts 5. Altering true dates 6. Making any alteration or intercalation in a genuine document which changes its meaning] 7. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement to contrary to, or different from, that of the genuine original 8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book The same penalty shall be imposed upon any ecclesiastical minister who shall commit any of the offenses enumerated in the preceding paragraphs of this article, with respect to any record or document of such character that its falsification may affect the civil status of persons. Elements: 1. That the offender is a public officer, employee, or notary public 2. That he takes advantage of his official position 3. That he falsifies a document by committing any of the following acts: (enumerated above) 4. In case the offender is an ecclesiastical minister, the act of falsification is committed with respect to any record or document of such character that its falsification may affect the civil status of persons FIRST ELEMENT—: Persons liable o Public officer, employee or notary public or ecclesiastical minister SECOND ELEMENT—: The offender takes advantage of his official position when Page 27 of 75 Crim 2 Notes (AY 2010-2011) 1. He has the duty to make or to prepare or otherwise to intervene in the preparation of the document 2. He has the official custody of the document which he falsifies o Even if the offender was a public officer but if he did not take advantage of his official position, he would be guilty of falsification of a document by a private person under Art. 172 THIRD ELEMENT—: The offender falsifies a document o Document—any written statement by which a right is established; a writing or instrument by which a fact may be proved and affirmed o The document must be complete or at least it must have the appearance of a true and genuine document o The document must be of apparent legal efficacy o Thus, if the payroll is merely a draft, because it has not been approved by the proper authority, it can prove nothing and affirm nothing o In falsification by (1) making alteration or intercalation, or (2) including in a copy a different statement, there must be a genuine document that is falsified o In falsification of a public document, the falsification need not be made on an official form. It is sufficient that the document is given the appearance of, or made to appear similar to, the official form. o ―shall falsify a document‖—does not mention whether it is public, official, private or commercial document because when the document is executed with the intervention of a public officer, employee or notary public, such document must necessarily be a public or official document PAR. NO. 1—: Counterfeiting or imitating (feigning) any handwriting, signature or rubric o 2 ways of committing falsification under this paragraph: 1. Counterfeiting—imitating any handwriting, signature or rubric There is an original signature or handwriting which is imitated An imitation is necessary, but it need not be perfect 2. Feigning—simulating a signature, handwriting or rubric out of one which does not in fact exist to represent by a false appearance to give existence to; to imagine there is no original signature or handwriting or rubric, but a forgery of a signature, handwriting or rubric that does not exist making it appear that a person who does not know how to write has signed the document, may be considered feigning of signature o Under this, the mere drawing up of a false document is not sufficient, the signature, Ro-An Salanga (I-A) handwriting or mark of another person must be signed or made by the offender, without authority to do so o Requisites of Counterfeiting: 1. That there be an intent to imitate, or an attempt to imitate, and Shown by a comparison of the handwriting or signature on the document alleged to have been falsified with the genuine handwriting or signature supposed to have been counterfeited If there is sufficient resemblance, the presumption of intent arises 2. That the 2 signatures or handwritings, the genuine and the forged, bear some resemblance to each other The resemblance must be such that it is likely to deceive an ordinary person receiving or dealing with the document o If any of the requisites of counterfeiting is not present, the accused may be found guilty in par. 2 PAR. NO. 2—: Causing it to appear that persons have participated in an act or a proceeding o Requisites: 1. That the offender caused it to appear in a document that a person or persons participated in an act or a proceeding, and 2. That such person or persons did not in fact so participate in the act or proceeding o When this is committed by private individual, Art. 172 should be applied PAR. NO. 3—: Attributing to persons who have participated in any act or proceeding statements other than those in fact made by them o Requisites: 1. That a person or persons participated in an act or a proceeding 2. That such person or persons made statements in that act or proceeding, and 3. That the offender, in making a document, attributed to such person or persons statements other than those in fact made by such person or persons PAR. NO. 4—: Making untruthful statements in a narration of facts o Requisites: 1. That the offender makes in a document statements in a narration of facts 2. That he has a legal obligation to disclose the truth of the facts narrated by him 3. That the facts narrated by the offender are absolutely false, and 4. That the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person o There must be narration of facts, and not conclusion of law Page 28 of 75 Crim 2 Notes (AY 2010-2011) ―Legal obligation‖—there is a law requiring the disclosure of the truth of the facts narrated o The person making the narration of facts must be aware of the falsity of the facts narrated by him o The rule is that if the statements are not altogether false, there being some colorable truth in such statements, the crime of falsification is not deemed to have been committed o The obligation on the part of the accused to disclose the truth as to the facts that should appear in a residence certificate to be issued to him, is inherent in the very nature and purpose of said document o The wrongful intent on the part of the accused to injure a third person is not an essential element of the crime of falsification of public document o There is no falsification by one who acted in good faith o The fact that one’s consent to the contract was obtained by means of violence or intimidation does not make it a false contract in the sense that no consent had ever been given and the entire document had been simulated, since the signatures of the parties are genuine o There is falsification by omission PAR. NO. 5—: Altering true dates o There is falsification under this only when the date mentioned in the document is essential, it must affect wither the veracity of the document or the effects thereof o Dates of birth, marriage and death are essential because without them, the documents ―cannot produce any legal effect‖ o Altering dates in official receipts to prevent the discovery of malversation is falsification PAR. NO. 6—: Making alteration or intercalation in a genuine document which changes its meaning o Requisites: 1. That there be an alteration (change) or intercalation (insertion) on a document 2. That it was made on a genuine document 3. That the alteration or intercalation has changed the meaning of the document, and 4. That the change made the document speak something false o Alteration—has inherent in it the idea of deception—of making the instrument speak something which the parties did not intend it to speak o On the composition of a bar candidate, altering the grades involves the following acts of falsification, (a) making alterations on a genuine document, (b) making it appear that the correctors had participated in blotting out the grades and writing new and increased grades opposite their initials, and (c) attributing to the correctors statements other than those in fact made by them o PAR. NO. 7—: Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement to contrary to, or different from, that of the genuine original o Cannot be committed by a. private individual b. notary public or a public officer who does not take advantage of his official position o Committed only by a public officer or notary public who takes advantage of his official position, since the authentication of a document can be made only by the custodian or the one who prepared and retained a copy of the original document 1. Purporting to be a copy of an original when no such original exists that a notary public made a supposed copy of a deed of sale which was never executed and of which he had no copy 2. Including in a copy a statement contrary to, or different from, that of the genuine original that a civil registrar stated in a certified copy of a record of birth that the person mentioned therein was legitimate when there was no such statement in the original o A private person who cooperates with a public officer in the falsification of a public document is guilty of this crime and incurs the same liability and penalty as the public officer 172. Falsification by private individuals and use of falsified documents—: The penalty of prision correccional in its medium and maximum periods and a fine of not more than 5000 pesos shall be imposed upon: 1. Any private individual who shall commit any of the falsification enumerated in the next preceding article in any public or official document or letter of exchange or any other kind of commercial document, and 2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article Any person who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with the intent to cause such damage, shall use any of the false documents embraced in the next preceding article or in any of the foregoing subdivisions of this article, shall be punished by the penalty next lower in degree. Acts punished under Art. 172: 1. Falsification of public, official or commercial document by a private individual (Par. No. 1) Page 29 of 75 Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) 2. Falsification of private document by any person (Par. No. 2) 3. Use of falsified document (Last Par.) PAR. NO. 1—: o Elements: 1. That the offender is a private individual or a public officer or employee who did not take advantage of his official position 2. That he committed any of the acts of falsification enumerated in Art. 171 3. That the falsification was committed in a public or official or commercial document o The acts under this are the same as those in Art. 171 except for Par. 7 which cannot be committed by a private individual o 4 kinds of document: 1. Public document—a document created, executed or issued by a public official in response to the exigencies of the public service, or in the execution of which a public official intervened Any instrument authorized by a notary public or a competent public official, with the solemnities required by law 2. Official document—a document which is issued by a public official in the exercise of the functions of his office This is also a public document Examples of official document: a. A document required by a bureau to be filled by its officer for purposes of its records b. A receipt issued by the department of assessments and collections of the City of manila for taxes collected c. A burial permit issued by the Board of Public Health of the City of Manila d. Official receipt prescribed by the Government to be issued upon the receipt of money for public purposes e. An official cashbook kept by the disbursing officer of the Coast Guard and Transportation Department f. Cashbook of a public official, in which entries are made of accounts of public moneys received g. An official receipt, for the reason that it was invested with the character of an official document by reason of the fact that it was printed in accordance with the standard forms required by the Government h. All pleadings filed with the court 3. Private document—a deed or instrument executed by a private person without the intervention of a notary public or other person legally authorized, by which document some disposition or agreement is proved, evidenced or set forth A theater ticket is a private document, because it evidences an agreement for the rent of a place in Ro-An Salanga (I-A) the theater to enable a possessor to witness a theatrical performance 4. Commercial document—any document defined and regulated by the Code of Commerce or any other commercial law Documents or instruments used by merchants or businessman to promote or facilitate trade Examples: a. Letters of exchange, letters of credit, drafts, trade acceptances, checks, notes or pagares issued in the course of a business transaction, quedans, bonds, books of accounts, and in general, any negotiable instrument b. Quedans or warehouse receipts c. Cash files, deposit slips and bank statements d. Surety account, journal books, ledgers e. Air way bills. These are in the nature of bills of lading Cash disbursement vouchers are not commercial documents o Public and private writings under the Rules of Court The following writings are public: a. The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country b. Documents acknowledged before a notary public except last wills and testaments c. Public records kept in the Philippines, of private documents required by law to be entered therein All other writings are private o A private document may acquire the character of a public document when it becomes part of an official record and is certified by a public officer duly authorized by law o if the document is intended by law to be part of the public or official record, the preparation of which being in accordance with the rules and regulations issued by the Government, the falsification is regarded as falsification of a public or official document o In order that a blank form might come within the purview of the crime of falsification, it is necessary that the blank spaces be filled and the signature of a party purported to be authorized to issue it be written by another in the counterfeited instrument o Presumption: the possessor of a falsified document is presumed to be the author of the falsification o Damage or intent to cause damage to another is not necessary under this paragraph o Lack of malice or criminal intent is a defense in falsification of public document PAR. NO. 2—: o Elements: Crim 2 Notes (AY 2010-2011) Page 30 of 75 1. That the offender committed any of the acts of falsification, except those in par. 7, enumerated in Art. 171 2. That the falsification was committed in any private document 3. That the falsification caused damage to a third party or at least the falsification was committed with the intent to cause such damage o Mere falsification of private documents is not enough, there are 2 things required: 1. He must have counterfeited the false document 2. He must have performed an independent act which operates to the prejudice of a third person o Damage need not be material o It is not necessary that the offender profited or hoped to profit by the falsification, as all the law requires is an intent to prejudice another person o Falsification of private document in Rizal and damage in Manila—the court of Rizal has jurisdiction to try the case Falsification as a necessary means to commit other crimes o This forms a complex crime under Art. 48, however, the document falsified must be public, official or commercial o Complex crimes: a. Estafa through falsification of a public document b. Theft through falsification of official document c. Estafa through falsification of commercial document by reckless imprudence d. Malverstation through falsification of public document e. Falsification through reckless imprudence o There is no complex crime of estafa through falsification of a private document o There is no falsification of private document through reckless imprudence, since there is at least intent to cause damage, that is, there must be malice o Falsification of private document—if a private document is falsified to obtain from the offended party the money or other personal property which the offender later misappropriated o Estafa with abuse of confidence—if a private document is falsified to conceal the misappropriation of the money or other personal property which has been in the possession of the offender Stages of falsification: a. Consummated—the moment the genuine document is altered or the moment the false document is executed. It is immaterial that the offender did not achieve his objectives b. Frustrated—if the falsification is imperfect LAST PAR.—: o Elements: a. Introducing in a judicial proceeding 1. That the offender knew that a document was falsified by another person 2. That the false document is embraced in Art. 171 or in any subdivisions nos. 1 or 2 of Art. 172 3. That he introduced said document in evidence in any judicial proceeding b. Use in any other transaction 1. That the offender knew that a document was falsified by another person 2. That the false document is embraced in Art. 171 or un any subdivision nos. 1 or 2 of Art. 172 3. That he used such document (not in judicial proceedings) 4. That the sue of the false document caused damage to another or at least it was used with intent to cause such damage o Damage to another is not indispensable in element A, but is in element B o The crime punished under this may be a lesser offense, but it certainly cannot be deemed necessarily included in the crime of falsification of a public document by a public officer or employee or by a private person o The user of the falsified document is deemed the author of the falsification if a. The use was so closely connected in time with the falsification, and b. The user had the capacity of falsifying the document 173. Falsification of wireless, cable, telegraph, and telephone messages, and use of said falsified messages—: The penalty of prision correccional in its medium and maximum periods shall be imposed upon any officer or employee of the Government or of any private corporation or concern engaged in the service of sending or receiving wireless, cable, telegraph, or telephone messages who utters a fictitious wireless, telegraph, or telephone message of any system or falsifies the same. Any person who shall use such falsified dispatch to the prejudice of a third party or with the intent to cause such prejudice, shall suffer the penalty next lower in degree. Acts punished: 1. Uttering fictitious wireless, telegraph, or telephone message (Par. 1) 2. Falsifying wireless, telegraph or telephone messages (Par. 1) 3. Using such falsified message (Par. 2) PAR. NO. 1—: o Elements: 1. That the offender is an officer or employee of the Government or an officer or employee of a private corporation, engaged in the service of Page 31 of 75 Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) sending or receiving wireless, cable or telephone message 2. That the offender commits any of the following acts: a. Uttering fictitious wireless, cable, telegraph or telephone message, or b. Falsifying wireless, cable, telegraph, or telephone message PAR. NO. 2—: o Elements: 1. That the accused knew that wireless, cable, telegraph, or telephone message was falsified by any of the persons specified in par. 1 2. That the accused used such falsified dispatch 3. That the use of the falsified dispatch resulted in the prejudice of a third party, or that the use thereof was with intent to cause such prejudice Private individual cannot be a principal by direct participation in falsification of telegraphic dispatches unless he is an employee of a corporation engaged in the business of sending or receiving wireless telegraph or telephone messages o But he can be held criminally liable as principal by inducement Act. No. 1851, Sec. 4, punishes private individuals who forge or alter telegram o Any person who willfully forges or substantially alters a telegram or who utters a telegram knowing the same to be forged, or who utters as a telegram any message or communication which he knows to be not a telegram, is punished by a fine not exceeding 100 pesos Section 5: Falsification of medical certificates, certificates of merit or service, and the like 174. False medical certificates, false certificates of merit or services, etc.—: The penalties of arresto mayor in its maximum period to prision correccional in its minimum period and a fine not to exceed 1000 pesos shall be imposed upon: 1. Any physician or surgeon who, in connection with the practice of his profession, shall issue a false certificate, and 2. Any public officer who shall issue a false certificate of merit or service, good conduct, or similar circumstances The penalty of arresto mayor shall be imposed upon any private person who shall falsify a certificate falling within the classes mentioned in the 2 preceding subdivisions. Certificate—any writing by which testimony is given that a fact has or has not taken place Persons liable: a. Physician or surgeon who, in connection with the practice of his profession, issued a false certificate Ro-An Salanga (I-A) It must refer to the illness or injury of a person The crime is False Medical Certificate by a physician b. Public officer who issued a false certificate of merit or service, good conduct or similar circumstances o The crime is False Certificate of Merit or Service by a public officer c. Private individual who falsified a certificate falling in the classes mentioned in nos. 1 and 2 o The crime is False Medical Certificate by a private individual or False Certificate of Merit or Service by a private individual Certificate of large cattle is a public document and its falsification is covered by Art. 171 or Art. 172, depending on whether the offender is a public officer or a private individual ―or similar circumstances‖—does not seem to cover property, because the circumstance contemplated must be similar to ―merit‖, ―service‖ or ―good conduct‖ But certificate of residence for voting purposes is certificate of ―similar circumstances‖ o o 175. Using false certificates—: The penalty of arresto menor shall be imposed upon any one who shall knowingly use any of the false certificates mentioned in the next preceding article. Elements: 1. That a physician or surgeon had issued a false medical certificate, or a public officer had issued a false certificate of merit or service, good conduct, or similar circumstances, or a private person had falsified any of said certificates 2. That the offender knew that the certificate was false 3. That he used the same Section 6: Manufacturing, importing, and possession of instruments or implements intended for the commission of falsification 176. Manufacturing and possession of instruments or implements for falsification—: The penalty of prision correccional in its medium and maximum periods and a fine not to exceed 10000 pesos shall be imposed upon any person who shall make or introduce into the Philippine Islands any stamps, dies, marks, or other instruments or implements intended to be used in the commission of the offenses of counterfeiting or falsification mentioned in the preceding sections of this chapter. Any person who, with the intention of using them, shall have in his possession any of the instruments or implements mentioned in the preceding paragraph, shall suffer the penalty next lower in degree than that provided therein. Page 32 of 75 Crim 2 Notes (AY 2010-2011) Acts punished: 1. Making or introducing into the Philippines any stamps, dies, marks, or other instruments or implements for counterfeiting or falsification 2. Possessing with intent to use the instruments or implements for counterfeiting or falsification made in or introduced into the Philippines by another person In order to secure a conviction under Par. 2, it is not necessary that the implements confiscated form a complete set for counterfeiting, it being enough that they may be employed by themselves or together with other implements to commit the crime of counterfeiting or falsification The possession prohibited in Arts. 165 and 176 is possession in general, that is, not only actual, physical possession, but also constructive possession or the subjection of the thing to one’s control Chapter 2: Other Falsities Section 1: Usurpation of authority, rank, title, and improper use of names, uniforms, and insignia 177. Usurpation of authority or official functions—: Any person who shall knowingly and falsely represent himself to be an officer, agent, or representative of any department or agency of the Philippine Government or of any foreign government, or who, under pretense of official position, shall perform any act pertaining to any person in authority or public officer of the Philippine Government or of any foreign government, or any agency thereof, without being lawfully entitled to do so, shall suffer the penalty of prision correccional in its minimum and medium periods. Offenses contemplated under this article: 1. Usurpation of authority (par. 1) 2. Usurpation of official functions (par. 2) Ways of committing the crime under this article: 1. By knowingly and falsely representing oneself to be an officer, agent or representative of any department or agency of the Philippine Government or any foreign government o The mere act of knowingly and falsely representing oneself to be an officer is sufficient o It is not necessary that he performs an act pertaining to a public officer 2. By performing any act pertaining to any person in authority or public officer of the Philippine Government or of a foreign government or any agency thereof, under pretense of official position and without being lawfully entitled to do so o It is essential that the offender should have performed an act pertaining to a person in authority or public officer, in addition to other requirements Ro-An Salanga (I-A) The act performed, without offender being lawfully entitled to do, must pertain (1) to the Government, (2) to any person in authority, or (3) to any public officer The law demands positive, express and explicit representation on the part of the offender before he can be convicted of usurpation of authority Even in the absence of evidence that the accused represented himself as a police officer, his acts in blowing his whistle, stopping buses and ordering drivers to step down their passenger vehicles and produce their driver’s licenses, sufficiently establish his culpability for the crime of usurpation of official functions under Art. 177 of the RPC This article punishes the usurper or one who acts under false pretenses and not the occupant under color of title Usurper—one who introduces himself into an office that is vacant, or who, without color of title, ousts the incumbent and assumes to act as an officer by exercising some of the functions of the office Additional penalty is imposed for usurping the authority of diplomatic or consular or any other official of a foreign government under RA 75 The offender must have the intent to defraud either government RA 10 is applicable only to members of seditious organization engaged in subversive activities but the subsequent enactment of RA 379 would constitute an amendment thereof by restoring the element of pretense of official position in the offense of usurpation of official functions o 178. Using fictitious name and concealing true name—: The penalty of arresto mayor and a fine not to exceed 500 pesos shall be imposed upon any person who shall publicly use a fictitious name for the purpose of concealing a crime, evading the execution of a judgment, or causing damage. Any person who conceals his true name and other personal circumstances shall be punished by arresto menor or a fine not to exceed 200 pesos. Elements of PAR. NO. 1—: Using fictitious name 1. That the offender uses a name other than his real name 2. That he uses that fictitious name publicly 3. That the purpose of the offender is— a. To conceal a crime b. To evade the execution of a judgment c. To cause damage to public interest o Fictitious name—any other name which a person publicly applies to himself without authority of law o If the damage, under 3, is to private interest, the crime will be estafa under Art. 315 (2a) Crim 2 Notes (AY 2010-2011) Page 33 of 75 Signing of fictitious name in an application for passport is publicly using such fictitious name o For (2), the real convict alone is guilty thereof Elements of PAR. NO. 2—: Concealing true name 1. That the offender conceals— a. His true name, and b. All other personal circumstances 2. That the purpose is only to conceal his identity Com. Act No. 142 regulates the use of aliases, as amended by RA 6085 Using fictitious name Concealing true name Element of publicity must Element of publicity is not be present necessary There are 3 purposes Purpose is only to conceal identity o 179. Illegal use of uniforms or insignia—: The penalty of arresto mayor shall be imposed upon any person who shall publicly and improperly make use of insignia, uniforms, or dress pertaining to an office not held by such person or to class of persons of which he is not a member. Elements: 1. That the offender makes use of insignia, uniform or dress 2. That the insignia, uniform or dress pertains to an office not held by the offender or to a class of persons of which he is not a member 3. That said insignia, uniform or dress is used publicly and improperly Wearing the uniform of an imaginary office is not punishable An exact imitation of a uniform or dress is unnecessary since a colorable resemblance calculated to deceive the common run of people is sufficient A layman who wears publicly the ecclesiastical habit of a Catholic priest is liable RA 75 punishes the unauthorized wearing of any naval, military, police or other official uniform, decoration or regalia of a foreign State, or one nearly resembling the same, with intent to deceive or mislead RA 493 punishes any person who uses or wears the insignia, badge or emblem of rank of members of the AFP or the Philippine Constabulary, or any colorable imitation thereof o This is not applicable to the using and wearing of such in playhouse or theater or in moving picture films EO 297 prohibits the unauthorized manufacture, sale and distribution of PNP uniforms, insignias and other accoutrements Section 2: False Testimony False testimony—committed by a person who, being under oath and required to testify as to the truth of a certain matter at a hearing before a competent authority, shall deny the truth or say something contrary to it 3 forms of false testimony: 1. False testimony in criminal cases (Arts. 180 and 181) 2. False testimony in civil cases (Art. 182) 3. False testimony in other cases (Art. 183) Nature of the crime of false testimony—constitutes an imposition upon court and seriously exposes it to a miscarriage of justice 180. False testimony against a defendant—: Any person who shall give false testimony against the defendant in any criminal case shall suffer: 1. The penalty of reclusion temporal, if the defendant in said case shall have been sentenced to death 2. The penalty of prision mayor, if the defendant shall have been sentenced to reclusion temporal or perpetua 3. The penalty of prision correccional, if the defendant shall have been sentenced to any other afflictive penalty 4. The penalty of arresto mayor, if the defendant shall have been sentenced to a correctional penalty or a fine, or shall have been acquitted In cases provided in subdivisions 3 and 4 of this article, the offender shall further suffer a fine not to exceed 1000 pesos. Elements: 1. That there be a criminal proceeding 2. That the offender testifies falsely under oath against the defendant 3. That the offender who gives false testimony knows that it is false 4. That the defendant against whom the false testimony is given is either acquitted or convicted in a final judgment Defendant must be sentenced at least to (a) a correctional penalty, (b) a fine, or (c) must be acquitted The witness who gave false testimony is liable even if his testimony was not considered by the court 181. False testimony favorable to the defendant—: Any person who shall give false testimony in favor of the defendant in a criminal case, shall suffer the penalties of arresto mayor in its maximum period to prision correccional in its minimum period and a fine not to exceed 1000 pesos, if the prosecution is for a felony punishable by an afflictive penalty, and the penalty of arresto mayor in any other case. Page 34 of 75 Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) False testimony favorable to the defendant is equally repugnant to the orderly administration of justice False testimony is punished not because of the effect it actually produces but because of its tendency to favor or prejudice the defendant It is not necessary that the testimony given by the witness should directly influence the decision of acquittal, it being sufficient that it was given with the intent to favor the accused A statement by a witness that he is an expert in handwriting is a statement of a mere opinion, the falsity of which is not sufficient Conviction or acquittal of defendant in principal case is not necessary The defendant who falsely testified in his own behalf in a criminal case is guilty of false testimony favorable to the defendant o This applies when the defendant voluntarily goes upon the witness stand and falsely imputes to some other person the commission of a grave offense Rectification made spontaneously after realizing the mistake is not false testimony a. Over 5000 pesos b. Not exceeding 5000 pesos c. If it cannot be estimated 183. False testimony in other cases and perjury in solemn affirmation—: The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, knowingly making untruthful statements and not being included in the provisions of the next preceding articles, shall testify under oath, or make an affidavit, upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires. Any person who, in case of solemn affirmation made in lieu of an oath, shall commit any of the falsehoods mentioned in this and the three preceding articles of this section, shall suffer the respective penalties provided therein. Ways of committing perjury: 1. By falsely testifying under oath 2. By making a false affidavit Elements of perjury: 1. That the accused made a statement under oath or executed an affidavit upon a material matter 2. That the statement or affidavit was made before a competent officer, authorized to receive and administer oath 3. That in that statement or affidavit, the accused made a willful and deliberate assertion of falsehood 4. That the sworn statement or affidavit containing the falsity is required by law Oath—any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully Affidavit—sworn statement in writing; a declaration in writing, made upon oath before an authorized magistrate or officer Example: o B made a testimony under oath in the preliminary investigation before the Justice of the Peace, a competent officer authorized to administer oath. B’s statement constitutes a material matter and is a deliberate falsehood, because O never borrowed the manuscript A false affidavit to a criminal complaint may give rise to perjury ―material matter‖—it is the main fact which is the subject of the inquiry or any circumstance which tends to prove that fact, or any fact or circumstance which tends to corroborate or strengthen the testimony relative to the subject of inquiry, or which legitimately affects the credit of any witness who testifies o The test of materiality: Page 35 of 75 182. False testimony in civil cases—: Any person found guilty of false testimony in civil case shall suffer the penalty of prision correccional in its minimum period and a fine not to exceed 6000 pesos, if the amount in controversy shall exceed 5000 pesos; and the penalty of arresto mayor in its maximum period to prision correccional in its minimum period and a fine not to exceed 1000 pesos, if the amount in controversy shall not exceed said amount or cannot be estimated. Elements: 1. That the testimony must be given in a civil case 2. That the testimony must relate to the issues presented in said case 3. That the testimony must be false 4. That the false testimony must be given by the defendant knowing the same to be false 5. That the testimony must be malicious and given with an intent to affect the issues presented in said case This does not apply to special proceedings such as summary settlement of estates of small value ―civil actions‖—ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the prevention or redress of a wrong Falsity of testimony must first be established o Whether or not the testimonies in the civil cases are false is prejudicial question o Hence, pending determination of the falsity of the testimonies in the civil case, the criminal action for false testimony must perforce be suspended Penalty depends on the amount of controversy: Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) whether a false statement can influence the tribunal, not whether it does, or could probably influence the result of the trial o There must be competent proof of the materiality of the false testimony ―material‖—it is directed to prove a fact in issue ―relevant‖—it tends in any reasonable degree to establish the probability or improbability of a fact in issue ―pertinent‖—it concerns collateral matters which make more or less probable the proposition at issue ―competent person authorized to administer an oath‖—a person who has a right to inquire into the questions presented to him upon matters under his jurisdiction ―knowingly making untruthful statements‖—suggests that the assertion of falsehood must be willful and deliberate Good faith or lack of malice is a defense in perjury Examples of cases where affidavits are required by law: a. Affidavit attached to the petition for receivership b. Affidavit attached to complaint for ejectment c. Affidavit for application for marriage license ―requires‖—in the phrase ―in cases in which the law so requires‖—means ―authorizes‖; hence, the 4th element is read as ―that the sworn statement containing the falsity is authorized by law‖ o Hence, even if there is no law, requiring the statement to be made under oath, as long as it is made for legal purpose, it is sufficient ―not being included in the provisions of the next preceding articles‖—perjury is a crime other than false testimony in criminal cases or civil cases False testimony during preliminary investigations is perjury because false testimony in judicial proceedings contemplates an actual trial where a judgment of conviction or acquittal is rendered 2 contradictory sworn statements are not sufficient to convict of perjury because the prosecution must prove which one is false Subordination of Perjury—committed by a person who knowingly and willfully procures another to swear falsely and the witness suborned does testify under circumstances rendering him guilty of perjury The specific provision under the old Penal Code penalizing subordination of perjury, was omitted in the RPC o The crime is now treated as plain perjury o The one inducing another is a principal by inducement while the latter is principal by direct participation punished as guilty of false testimony and shall suffer the respective penalties provided in this section. Elements: 1. Offender offered in evidence a false witness or false testimony 2. That he knew the witness or the testimony was false 3. That the offer was made in a judicial or official proceeding ―offer of evidence‖—begins the moment a witness is called to the witness stand and interrogated by counsel where the witness must have to testify The witness having desisted before he could testify on any material matter is not liable because desistance during attempted stage of execution is an absolutory cause which exempts him from criminal liability This article applies when the offender does not induce a witness to testify falsely If there is inducement, it is under Arts. 180-183, in relation to Art. 7 par. 2 Title 8: CRIMES AGAINST PERSONS Chapter 1: DESTRUCTION OF LIFE Section 1: Parricide, Murder, Homicide 246. Parricide. Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death. Elements: 1. That a person is killed 2. That the deceased is killed by the accused 3. That the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse, of the accused Essential Element:—Relationship of the offender with the victim Ascendants and descendants:—exclude parents and children Other ascendant or descendant:—must be legitimate o Hence, he who kills an illegitimate grandfather or grandson is not guilty of parricide o Illegitimate—all children born out of wedlock a. Adulterine b. Incestuous, and c. Sacrilegious children If the deceased is either the father, mother or the child, of the accused, proof of legitimacy is not required Only relatives by blood and in direct line, except spouse, are considered in parricide o An adopted father or adopted son, or father-in-law or son-in-law is not included in this provision for parricide Page 36 of 75 184. Offering false testimony in evidence—: Any person who shall knowingly offer in evidence a false witness or testimony in any judicial or official proceeding, shall be Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) The spouse must be legitimate The best proof of the relationship between the accused and the deceased is the marriage certificate o Oral evidence presented to prove the fact of marriage is not objected to, the said evidence may be considered by the court o The testimony of the accused that he was married to the deceased was an admission against his penal interest Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of a marriage license provided they are solemnized in accordance with their customs, rites or practices Relationship must be alleged o However, relationship must be considered aggravating even if not alleged in the information Parricide through reckless imprudence:—is punished by arresto mayor in its maximum period to prision correccional in its medium period. If committed through simple imprudence or negligence, the penalty is arresto mayor in its medium and maximum periods Parricide by mistake:—if a person killed another, not knowing that the latter was his son, will he be guilty of parricide? Yes, because the law does not require the knowledge of relationship between them Indemnity in parricide case:—a husband who killed his wife was ordered to indemnify his wife’s heirs P50,000 o A natural father killed his child, no indemnity was imposed, considering that the accused, as the father, is the presumptive heir of the deceased Liability of stranger cooperating in parricide:—such person is not guilty of parricide but only homicide or murder, as the case may be o 247. Death or physical injuries inflicted under exceptional circumstances. Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment. These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under 18 years of age, and their seducer, while the daughters are living with their parents. Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article. Requisites for the application of this article: Ro-An Salanga (I-A) 1. That a legally married person or a parent surprises his spouse or his daughter, the latter under 18 years of age and living with him, in the act of committing sexual intercourse with another person 2. That he or she kills any or both of them or inflicts upon any or both of them any serious physical injury in the act or immediately thereafter 3. That he has not promoted or facilitated the prostitution of his wife or daughter or that he or she has not consented to the infidelity of the other spouse This article does not define a felony:—the accused shall be sentenced to destierro, instead of the severe penalty for parricide, homicide, or serious physical injuries o The requisites of Art. 247 must be established by the evidence of the defense o Since this does not charge a distinct crime, the accused charged with killing his wife’s paramour, cannot enter into a conditional plea of guilty and be sentenced immediately to destierro The accused must be a legally married person o ―any legally married person‖ and ―spouse‖ include the wife Must the parent be legitimate? This article does not seem to require it. This article applies only when the daughter is single because while under 18 years old and single, she is under parental authority. o If she is married, her husband alone can claim the benefits of Art. 247 ―surprise‖—―to come upon suddenly and unexpectedly‖ o But in Peope v. Gabriel, the accused, peeping through a hole near the kitchen, saw his wife and her paramour kissing each other; and when they commenced the act of sexual intercourse, it was only then when the accused attacked them. The accused was not held liable for the injuries suffered by the paramour Surprising the spouse or young daughter in the act of sexual intercourse:—indispensable requisite o This article is not applicable when the accused did not see his spouse in the act of sexual intercourse with another person o ―in the act of committing sexual intercourse‖ does not include merely sleeping on the same bed neither does it include a situation where the accused surprised his wife after the act ―Sexual intercourse‖ does not include preparatory acts because majority of the Justices of the SC believed that there must be actual sexual intercourse. The killing or inflicting of serious physical injuries must be a. ―in the act of sexual intercourse‖; or b. ―immediately thereafter‖ Page 37 of 75 Crim 2 Notes (AY 2010-2011) The discover, the escape, the pursuit and the killing must all form part of one continuous act o The killing must be the direct by-product of the accused’s rage Justification for Art. 247: The law, when the circumstances provided by this article are present, considers the spouse or parent as acting in a justified burst of passion If the physical injuries inflicted are less serious or slight, there is no criminal liability. It is an absolutory cause Liability for physical injuries suffered by third persons: Where physical injuries were suffered by third persons as a result of being caught in the crossfire, the accused cannot be held liable for injuries sustained by third persons as a result thereof. Inflicting death under exceptional circumstances is not murder, hence, there is no felony. The penalty of destierro is not really intended as a penalty but to remove the killer spouse from the vicinity and to protect him or her from acts of reprisal principally by relatives of the deceased spouse. Persons who committed parricide not to be punished with reclusion perpetua to death: a. When parricide is committed through negligence b. When it is committed by mistake c. When it is committed under exceptional circumstances 248. Murder. Any person who, not falling within the provisions of Art. 246, shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua to death if committed with any of the following attendant circumstances: 1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense, or of means or persons to insure or afford impunity 2. In consideration of a price, reward, or promise 3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin 4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or other public calamity 5. With evident premeditation 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse Elements of Murder: 1. That a person was killed 2. That the accused killed him Ro-An Salanga (I-A) 3. That the killing was attended by any of the qualifying circumstances mentioned in Art. 246 4. The killing is not parricide or infanticide ―shall kill another‖—in murder, the victim must be killed to consummate the crime. If the victim is not killed, it is either attempted or frustrated murder Killing a person by means of fire is murder, only when there is actual design to kill on the part of the offender. o This ruling is applicable to all the other circumstances enumerated in par. 3 of Art. 248 except in case of treachery o Killing a person with treachery is murder even if there is no intent to kill Rules for the application of the circumstances which qualify the killing to murder: a. That murder will exist with only one of the circumstances described in Art. 248 o When more than one of said circumstances are present, the others must be considered as generic aggravating b. That when the other circumstances are absorbed or included in one qualifying circumstance, they cannot be considered as generic aggravating o i.e. the qualifying circumstances of murder is either treachery, abuse of superior strength, or with aid of armed men, if treachery is chosen to qualify the crime, the others are not generic aggravating circumstances, because they are included in the qualifying circumstance of treachery c. That any of the qualifying circumstances enumerated in Art. 248 must be alleged in the information o If not, it is only a generic aggravating circumstance Treachery:—whenever present and alleged in the information, qualifies the killing of the victim and raises it to the category of murder o The means, methods or forms of attack must be consciously adopted by the offender o Exists in killing of a child of tender years even when the manner of the attack was not shown With the aid or armed men:—when the accused had companions who were armed when he committed the crime o The armed men must take part in the commission of the crime directly or indirectly and the accused must avail himself of their aid or rely upon them when the crime is committed Treachery and evident premeditation are inherent in murder by means of poison, as such, they cannot be considered as aggravating o It becomes inherent only when the offender has the intent to kill the victim and he uses poison as a means to kill him With evident premeditation:—present when the prosecution proves Page 38 of 75 Crim 2 Notes (AY 2010-2011) a. The time when the offender determined to kill his victim b. An act of the offender manifestly indicating that he clung to his determination to kill his victim c. A sufficient lapse of time (at least 3 hours) between the determination and the execution of the killing With cruelty:—present when other injuries or wounds are inflicted deliberately by the offender, which are not necessary for the killing of the victim o The victim must be alive when the other injuries or wounds are inflicted Outraging or scoffing at the person or corpse of the vicitm:— o ―Outraging‖—to commit an extremely vicious or deeply insulting act o ―scoffing‖—to jeer, and implies a showing of irreverence 249. Homicide. Any person who, not falling within the provisions of Art. 246, shall kill another, without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal. Elements of Homicide: 1. That a person was killed 2. That the accused killed him without any justifying circumstance 3. That the accused had the intention to kill, which is presumed 4. That the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide Intent to kill is conclusively presumed when death resulted:—because the penal law looks particularly to the material results following the unlawful act and holds the aggressor responsible for all the consequences thereof Evidence of intent to kill is important only in attempted or frustrated homicide o Intent to kill is usually shown by the (a) kind of weapon used by the offender and the (b) parts of the victim’s body at which the weapon was aimed, as shown by the wounds inflicted o This must be proved beyond reasonable doubt There is no offense of frustrated homicide through negligence o The element of intent to kill in frustrated homicide is incompatible with negligence or imprudence. o Intent in felonies by means of dolo is replaced with lack of foresight or skill in felonies by culpa Where the wounds that caused death were inflicted by two different persons, even if they were not in conspiracy, each one of them is guilty of homicide The use of unlicensed firearm is an aggravating circumstance in homicide Ro-An Salanga (I-A) Accidental homicide:—death of a person brought about by a lawful act performed with proper care and skill, and without homicidal intent o But if the rules have been violated, and death resulted, the crime would be homicide through negligence Corpus delict—the actual commission of the crime charged o A crime was actually perpetrated, and does not refer to the body of the murdered person o There must be satisfactory evidence of (a) the fact of death and (b) the identity of the victim 250. Penalty for frustrated parricide, murder, or homicide. The courts, in view of the facts of the case, may impose upon the person guilty of the frustrated crime or parricide, murder, or homicide, defined and penalized in the preceding articles, a penalty lower by one degree than that which should be imposed under the provisions of Art. 50. The courts, considering the facts of the case, may likewise reduce by one degree the penalty which under Art. 51 should be imposed for an attempt to commit any of such crimes. Courts may impose a penalty 2 degrees lower for frustrated parricide, murder or homicide Courts may impose a penalty 2 degrees lower for attempted parricide, murder or homicide Any person who shall attempt on, or conspire against, the life of the President of the Republic of the Philippines, that of any member of his family, or against the life of any member of his cabinet or that of any member of the latter’s family, shall suffer the penalty of death 251. Death cause in a tumultuous affray. When, while several persons, not composing groups organized for the common purpose of assaulting and attacking each other reciprocally, quarrel and assault each other in a confused and tumultuous manner, and in the course of the affray someone is killed, and it cannot be ascertained who actually killed the deceased, but the person or persons who inflicted serious physical injuries can be identified, such person or persons shall be punished by prision mayor. If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty of prision correccional in its medium and maximum periods shall be imposed upon all those who shall have used violence upon the person of the victim. Elements: 1. That there be several persons Crim 2 Notes (AY 2010-2011) Page 39 of 75 2. That they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally 3. That these several persons quarreled and assaulted one another in a confused and tumultuous manner 4. That someone was killed in the course of the affray 5. That it cannot be ascertained who actually killed the deceased 6. That the person or persons who inflicted serious physical injuries or who used violence can be identified ―Several‖—more than 2 but not very many ―Tumultuous‖—the disturbance is caused by more than 3 persons who are armed or are provided with means of violence There is no crime of death in a tumultuous affray if the quarrel is between 2 well-known groups The person killed in the course of the affray need not be one of the participants in the affray If the one who inflicted the fatal wound is known, it is homicide in the case of the one who inflicted the fatal wound Persons liable for death in a tumultuous affray: 1. The person or persons who inflicted the serious physical injuries are liable 2. If it is not known who inflicted the serious physical injuries on the deceased, all the persons who used violence upon the person of the victim are liable, but with lesser liability The injured party in the crime under this article must be one or some of the participants in the affray Note that only those who used violence are punished, because if the one who caused the physical injuries is known, he will be liable for the physical injuries actually committed, and not under this article There is no clear provision for slight physical injuries in a tumultuous affray o The 2nd par. mentions physical injuries of a less serious nature intended to exclude slight physical injuries 253. Giving assistance to suicide. Any person who shall assist another to commit suicide shall suffer the penalty of prision mayor, if such person lends his assistance to another to the extent of doing the killing himself, he shall suffer the penalty of reclusion temporal. However, if the suicide is not consummated, the penalty of arresto mayor in its medium and maximum periods shall be imposed. Acts punishable: 1. By assisting another to commit suicide, whether the suicide is consummated or not 2. By lending his assistance to another to commit suicide to the extent of doing the killing himself ―if the suicide is not consummated‖—has reference to the first way of giving assistance to suicide and the penalty will be arresto mayor in its medium and maximum periods o If it is the second way of giving assistance to suicide, penalty of one or two degrees lower than that provided for consummated suicide shall be imposed, depending upon whether it is frustrated or it is attempted suicide Art. 253 does not distinguish and does not make any reference to the relation of the offender with the person committing suicide A person who attempts to commit suicide is not criminally liable because society has considered such person as an unfortunate being, a wretched person more deserving of pity rather than of penalty In order to incur criminal liability for the result not intended, one must be committing a felony o An attempt to commit a suicide is an act, but it is not punishable by law o Hence, an abortion that resulted from an attempted suicide is unintentional, as abortion was not intended by the mother, and unintentional abortion is punishable only when it is caused by violence, not by poison Euthanasia—commonly known as mercy killing—is the practice of painlessly putting to death a person suffering from some incurable disease o This is not lending assistance to suicide o The person killed does not want to die Page 40 of 75 252. Physical injuries inflicted in a tumultuous affray. When in a tumultuous affray as referred to in the preceding article, only serious physical injuries are inflicted upon the participants thereof and the person responsible therefor cannot be identified, all those who appear to have used violence upon the person of the offended party shall suffer the penalty next lower in degree than that provided for the physical injuries so inflicted. When the physical injuries inflicted are of a less serious nature and the person responsible therefor cannot be identified, all those who appear to have used any violence upon the person of the offended party shall be punished by arresto mayor from 5 to 15 days. Elements: 1. That there is tumultuous affray as referred to in the preceding article 2. That a participant or some participants thereof suffer serious physical injuries or physical injuries of a less serious nature only 3. That the person responsible therefor cannot be identified 4. That all those who appear to have used violence upon the person of the offended party are known Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) o A doctor who resorts to mercy-killing of his patient may be liable for murder 254. Discharge of firearms. Any person who shall shoot at another with any firearm shall suffer the penalty of prision correccional in its minimum and medium periods, unless the facts of the case are such that the act can be held to constitute frustrated or attempted parricide, murder, homicide, or any other crime for which a higher penalty is prescribed by any of the articles of this Code. Elements: 1. That the offender discharges a firearm against or at another person 2. That the offender has no intention to kill that person ―shall shoot at another‖—this is done without intent to kill o If the firearm is not discharged at a person, there is no crime of discharge of firearm o The purpose is only to intimidate or to frighten the offended party Discharge towards the house of victim is not illegal discharge of firearm o It is essential to prove in a positive way that the discharge of the firearm was directed precisely against the offended party Firing a gun against the house of the offended party at random, not knowing in what part of the house the people inside were, is only alarm under Art. 155 Intent to kill is negative by distance of 200 yards between offender and victim Complex crime of illegal discharge of firearm with serious or less serious physical injuries o But no complex crime if only slight physical injury is inflicted The crime is discharge of firearm, even if the gun was not pointed at the offended party when it fired, as long as it was initially aimed by the accused at or against the offended party Section 2: Infanticide and Abortion 255. Infanticide. The penalty provided for parricide in Art. 246 and for murder in Art. 248 shall be imposed upon any person who shall kill any child less than 3 days of age. If the crime penalized in this article be committed by the mother of the child for the purpose of concealing her dishonor, she shall suffer the penalty of prision mayor in its medium and maximum periods, and if said crime be committed for the same purpose by the maternal grandparents or either of them, the penalty shall be reclusion temporal. Ro-An Salanga (I-A) Infanticide—the killing of any child less than 3 days of age, whether the killer is the parent or grandparent, any other relative of the child, or a stranger Elements of infanticide: 1. That a child was killed 2. That the deceased child was less than 3 days (72 hours) of age 3. That the accused killed the said child If the father or the mother or legitimate grandparent commits infanticide, the penalty is that of parricide If the offender is not so related to the child, the penalty of murder shall be imposed Concealing dishonor is not an element of parricide but merely mitigates the liability of the mother or maternal grandparents who committed the crime Persons who can use the mitigating circumstance of concealing the dishonor: a. Mother b. Maternal grandparents Delinquent mother who claims concealing dishonor must be of good reputation and good morals, in order to avail the mitigating circumstance o If she is a prostitute, she is not entitled to a lesser penalty because she has no honor to conceal A stranger cooperating with the mother in killing a child less than 3 days old is guilty of parricide, but the penalty is that for murder No crime of infanticide where the child was born dead, or although alive, it could not sustain an independent life when it was killed o The child must be born alive and fully developed, that is, it can sustain an independent life o A foetus about 6 months old cannot sustain by itself, outside of maternal womb 256. Intentional abortion. Any person who shall intentionally cause an abortion shall suffer: 1. The penalty of reclusion temporal, if he shall use any violence upon the person of the pregnant woman 2. The penalty of prision mayor, if, without using violence, he shall act without the consent of the woman 3. The penalty of prision correccional in its medium and maximum periods, if the woman shall have consented Abortion—the willful killing of the foetus in the uterus, or the violent expulsion of the feotus from the maternal womb which results in the death of the foetus If abortion is intended and the foetus does not die, it is frustrated intentional abortion when all the acts of execution have been performed by the offender Crim 2 Notes (AY 2010-2011) Page 41 of 75 If abortion is not intended and the foetus does not die, in spite of violence intentionally exerted, the crime may be only physical injuries Regardless if the foetus is full term, as long as it dies as a result of violence used or the drugs administered, the crime of abortion exists Ways of committing intentional abortion: 1. By using any violence upon the person of the pregnant woman 2. By acting, but without using violence, without the consent of the woman (By administering drugs or beverages upon such pregnant woman without her consent) 3. By acting (by administering drugs or beverages) with the consent of the pregnant woman Elements of intentional abortion: 1. That there is a pregnant woman 2. That violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon such pregnant woman 3. That as a result of the use of violence or drugs or beverages upon her, or any other act of the accused, the foetus dies, either in the womb or after having been expelled therefrom 4. That the abortion is intended The crime is infanticide if: a. Foetus could sustain an independent life after its separation from the maternal womb b. Foetus is killed woman who shall practice an abortion upon herself or shall consent that any other person should do so. Any woman who shall commit this offense to conceal her dishonor shall suffer the penalty of prision correccional in its minimum and medium periods. If this crime be committed by the parents of the pregnant woman or either of them, and they act with the consent of said woman for the purpose of concealing her dishonor, the offenders shall suffer the penalty of prision correccional in its medium and maximum periods. Elements: 1. That there is pregnant woman who has suffered an abortion 2. That the abortion is intended 3. That the abortion is caused by— a. The pregnant woman herself b. Any other person, with her consent c. Any of her parents, with her consent for the purpose of concealing her dishonor Art. 258 covers 3 cases: 1. Abortion committed by the woman upon herself or by any other person with her consent 2. Abortion by the woman upon herself to conceal her dishonor 3. Abortion by any of the parents of the woman with the latter’s consent to conceal her dishonor Only the woman or any of her parents is liable under Art. 258, if the purpose of the latter is to conceal her dishonor o Any other persons will be liable under Art. 256 There is no mitigation for the parents of the pregnant woman even if the purpose is to conceal dishonor unlike in infanticide 259. Abortion practiced by a physician or midwife and dispensing of abortives. The penalties provided in Art. 256 shall be imposed in their maximum period, respectively, upon any physician or midwife who, taking advantage of their scientific knowledge or skill, shall cause an abortion or assist in causing the same. Any pharmacist who, without the proper prescription from a physician, shall dispense any abortive shall suffer arresto mayor and a fine not exceeding 1000 pesos. Elements: 1. That there is a pregnant woman who has suffered an abortion 2. That the abortion is intended 3. That the offender, who must be a physician or midwife, causes, or assists in causing, the abortion 4. That said physician or midwife takes advantage of his or her scientific knowledge or skill Reason for the maximum penalty imposed upon physician or midwife Page 42 of 75 257. Unintentional abortion. The penalty of prision correccional in its minimum and medium periods shall be imposed upon any person who shall cause an abortion by violence, but unintentionally. Elements of unintentional abortion: 1. That there is a pregnant woman 2. That violence is used upon such pregnant woman without intending an abortion 3. That the violence is intentionally exerted 4. That as a result of the violence the foetus dies, either in the womb or after having been expelled therefrom Unintentional abortion is committed only by violence ―violence‖—there is actual physical force For the crime of abortion, even unintentional, to be held committed, the accused must have known of the pregnancy There is a complex crime of homicide or parricide with unintentional abortion and complex crime of parricide with abortion 258. Abortion practiced by the woman herself or by her parents. The penalty of prision correccional in its medium and maximum periods shall be imposed upon a Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) They incur heavier guilt in making use of their knowledge for the destruction of human life where it should be used only for its preservation As to pharmacists, the elements are: 1. That the offender is a pharmacist 2. That there is no proper prescription from a physician 3. That the offender dispenses any abortive As to the pharmacist, it is not necessary that the abortive be actually used o The act constituting the offense is dispensing abortive without proper prescription from a physician o If the pharmacist knew that the abortive would be used to cause an abortion and abortion resulted from the use thereof, the pharmacist would be an accomplice in the crime of abortion RA 4729: o ―Contraceptive drug‖ is any medicine, drug, chemical or portion which is used exclusively for the purpose of preventing fertilization of the female ovum o ―Contraceptive device‖ is any instrument, device, material or agent introduced into the female reproductive system for the primary purpose of preventing conception o Section 3: Duel 260. Responsibility of participants in a duel. The penalty of reclusion temporal shall be imposed upon any person who shall kill his adversary in a duel. If he shall inflict upon the latter physical injuries only, he shall suffer the penalty provided therefor, according to their nature. In any other case, the combatants shall suffer the penalty of arresto mayor, although no physical injuries have been inflicted. The seconds shall in all events be punished as accomplices. Duel—a formal or regular combat previously concerted between the 2 parties in the presence of 2 or more seconds of lawful age on each side, who make the selection of arms and fix all the other conditions of the fight Acts punished in duel: 1. By killing one’s adversary in a duel 2. By inflicting upon such adversary physical injuries 3. By making a combat although no physical injuries have been inflicted Persons liable in a duel: 1. The person who killed or inflicted physical injuries upon his adversary or both combatants in any other case, as principals 2. The seconds, as accomplices Ro-An Salanga (I-A) If death results, penalty is the same as that for homicide. When the agreement is to fight to death, there is intent to kill on the part of the combatants. However, the Code disregards the intent to kill in considering the penalty for duel when only physical injuries are inflicted upon the adversary. If only slight physical injuries are inflicted, the penalty of arresto menor shall be imposed 261. Challenging to a duel. The penalty of prision correccional in its minimum period shall be imposed upon any person who shall challenge another, or incite another to give or accept a challenge to a duel, or shall scoff at or decry another publicly for having refused to accept a challenge to fight a duel. Acts punished: 1. By challenging another to a duel 2. By inciting another to give or accept a challenge to a duel 3. By scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel A challenge to fight, without contemplating a duel, is not challenging to a duel Persons liable: 1. Challenger 2. Instigators Chapter 2: PHYSICAL INJURIES Crimes of Physical Injuries: 1. Mutilation (Art. 262) 2. Serious physical injuries (Art. 263) 3. Administering injurious substance or beverages (Art. 264) 4. Less serious physical injuries (Art. 265) 5. Slight physical injuries (Art. 266) 262. Mutilation. The penalty of reclusion temporal to reclusion perpetua shall be imposed upon any person who shall intentionally mutilate another by depriving him, either totally or partially, of some essential organ for reproduction. Any other intentional mutilation shall be punished by prision mayor in its medium and maximum periods. ―mutilation‖—the lopping or the clipping off of some part of the body The putting out of an eye does not fall under this definition 2 kinds of mutilation: 1. By intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction 2. By intentionally making other mutilation, that is, by lopping or clipping off any part of the body of the Page 43 of 75 Crim 2 Notes (AY 2010-2011) offended party, other than the essential organ for reproduction, to deprive him of that part of his body Elements of mutilation of first kind: 1. That there be a castration, that is, mutilation of organs necessary for generation, such as the penis or ovarium 2. That the mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction ―castration‖—amputation of whatever organ necessary for generation ―any other intentional mutilation‖—―mayhem‖—if the mutilation involves a part of the body, other than an organ for reproduction, with a deliberate purpose of depriving him of that part of his body The penalty of reclusion perpetua shall be imposed under par. 2 if the victim is under 12 years of age If the mutilation is not caused purposely and deliberately, the case will be considered as physical injuries falling under par. 1 or 2 of Art. 263 263. Serious physical injuries. Any person who shall wound, beat, or assault another, shall be guilty of the crime of serious physical injuries and shall suffer: 1. The penalty of prision mayor if in consequence of the physical injuries inflicted, the injured person shall become insane, imbecile, impotent, or blind 2. The penalty of prision correccional in its medium and maximum periods if in consequence of the physical injuries inflicted, the person injured shall have lost the use of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm, or a leg, or shall have lost the use of any such member, or shall have become incapacitated for the work in which he was theretofore habitually engaged 3. The penalty of prision correccional in its minimum and medium periods if in consequence of the physical injuries inflicted, the person injured shall have become deformed, or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance of the work in which he was habitually engaged for a period of more than 90 days 4. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if the physical injuries inflicted shall have caused the illness or incapacity for labor of the injured person for more than 30 days. If the offense shall have been committed against any of the persons enumerated in Art. 246, or with attendance of any of the circumstances mentioned in Art. 248, the Ro-An Salanga (I-A) case covered by subdivision number 1 of this Article shall be punished by reclusion temporal in its medium and maximum periods; the case covered by subdivision number 2 by prision correccional in its maximum period to prision mayor in its minimum period; the case covered by subdivision number 3 by prision correccional in its medium and maximum periods; and the case covered by subdivision number 4 by prision correccional in its minimum and medium periods. The provisions of the preceding paragraph shall not be applicable to a parent who shall inflict physical injuries upon his child by excessive chastisement. How is the crime of serious physical injuries committed? 1. By wounding 2. By beating 3. By assaulting (Art. 263) 4. By administering injurious substance (Art. 264) A person may be guilty of lesions by reckless imprudence, or by simple imprudence or negligence under Art. 365 in relation to Art. 263, when due to lack of precaution he wounded another What are serious physical injuries? 1. When the injured person becomes insane, imbecile, impotent, or blind in consequence of the physical injuries inflicted 2. When the injured person, in consequence of the physical injuries inflicted, a. Loses the use of speech or the power to hear or to smell, or loses an eye, a hand, a foot, an arm, or a leg b. Loses the use of any such member, or c. Becomes incapacitated for the work in which he was theretofore habitually engaged 3. When the person injured, in consequence of the physical injuries inflicted, a. becomes deformed, or b. loses any other part of his body, or c. loses the use thereof, or d. becomes ill or incapacitated for the performance of the work in which he was habitually engaged for a period of more than 90 days 4. When the injured person becomes ill or incapacitated for labor for more than 30 days (but must not be more than 90 days), as a result of the physical injuries inflicted Classes of serious physical injuries: 1. The consequences of the injuries inflicted 2. The nature and character of the wound inflicted 3. The proper penalty There must be no intent to kill Crim 2 Notes (AY 2010-2011) Page 44 of 75 Attempted or frustrated homicide Offender inflicts physical injuries Attempted homicide may be committed even if no physical injuries are inflicted The offender has no The offender has an intent to kill intent to kill PARAGRAPH 1: o Impotence—inability to copulate and sterility o Penalty of reclusion perpetua shall be imposed when the victim is under 12 years of age o Blindness must be of 2 eyes The blindness must be complete Mere weakness of vision is not contemplated PARAGRAPH 2: o It must be loss of power to hear of both ears o Presupposes that the loss of the use of the hand or the incapacity for usual work is permanent Prosecution must prove by clear and conclusive evidence that the offended party actually cannot make use of his hand and that such impairment is permanent o All those body parts mentioned in par. 2 are principal members PARAGRAPH 3: o ―any other part of his body‖—―any other member‖—any member other than an eye, a hand, a foot, an arm, or a leg o If it is alleged in the information and proved that the loss of the use of the 3 fingers also resulted in the loss of the use of the hand itself, it is serious physical injuries under par. 2 o Deformity requires that it be: a. Physical ugliness b. Permanent and definite abnormality, and c. Conspicuous and visible o If the scar is usually covered by the dress or clothes, it would not be conspicuous and visible o The injury contemplated by the Code is an injury that cannot be repaired by the action of nature In case of loss of teeth, a child or an old man is an exception to this rule o A front tooth is a member of the body o If there is loss of power to hear of both ears as a result of the loss of both outer ears, the crime should be punished under par. 2 o Deformities: 1. The loss of 3 incisors is a visible deformity, while the loss of one incisor does not constitute deformity according to the SC of Spain But it later cases, loss of one toot which impaired appearance is deformity 2. Loss of both outer ears 3. Loss of the lobule of the ear 4. Loss of index and middle fingers Ro-An Salanga (I-A) Physical injuries Loss of power to hear of right ear only is loss of use of other part of body o There is illness for a certain period of time, when the wound inflicted did not heal within that period o Medical attendance is not important in serious physical injuries o In pars. 2 and 3, the offended party must have an avocation or work at the time of the injury ―work‖—includes studies or preparation for a profession PARAGRAPH 4: o The incapacity contemplated here is for any kind of labor o Hospitalization for more than 30 days may mean either illness or incapacity for labor for more than 30 days o When the category of the offense of serious physical injuries depends on the period of illness or incapacity for labor, there must be evidence of the length of that period otherwise, the offense is only slight physical injuries o There is no incapacity if the injured party could still engage in his work although less effectively than before Qualified serious physical injuries: a. If the offense is committed against any of the persons enumerated in the article defining the crime of parricide b. If the offense is attended by any of the circumstances mentioned in the article defining the crime of murder o 264. Administering injurious substances or beverages. The penalties established by the next preceding article shall be applicable in the respective case to any person who, without intent to kill, shall inflict upon another any serious, physical injury, by knowingly administering to him any injurious substance or beverages or by taking advantage of his weakness of mind or credulity. Elements: 1. That the offender inflicted upon another any serious physical injury 2. That it was done by knowingly administering to him any injurious substances or beverages or by taking advantage of his weakness of mind or credulity 3. That he had no intent to kill ―by knowingly administering to him any injurious substance‖—if the accused did not know of the injurious nature of the substances he administered, he is not liable under this article ―administering injurious substance‖—introducing into the body the substance Art. 264 does not apply when the physical injuries that result are less serious or slight Crim 2 Notes (AY 2010-2011) Page 45 of 75 ―by taking advantage of his weakness of mind or credulity‖—may take place in the case of witchcraft, philters, magnetism, etc. 265. Less serious physical injuries. Any person who shall inflict upon another physical injuries not described in the preceding articles, but which shall incapacitate the offended party for labor for ten days or more, or shall require medical assistance for the same period, shall be guilty of less serious physical injuries and shall suffer the penalty of arresto mayor. Whenever less serious physical injuries shall have been inflicted with the manifest intent to kill or offend the injured person, or under circumstances adding ignominy to the offense in addition to the penalty of arresto mayor, a fine not exceeding 500 pesos shall be imposed. Any less serious physical injuries inflicted upon the offender's parents, ascendants, guardians, curators, teachers, or persons of rank, or persons in authority, shall be punished by prision correccional in its minimum and medium periods, provided that, in the case of persons in authority, the deed does not constitute the crime of assault upon such person. Matters to be noted in the crime of less serious physical injuries: 1. That the offended party is incapacitated for labor for 10 days or more (but not more than 30 days), or needs medical attendance for the same period of time 2. That the physical injuries must not be those described in the preceding articles Qualified less serious physical injuries: 1. A fine not exceeding P500, in addition to arresto mayor, shall be imposed for less serious physical injuries when— a. There is a manifest intent to insult or offend the injured person b. There are circumstances adding ignominy to the offense 2. A higher penalty is imposed when the victim is either— a. The offender’s parents, ascendants, guardians, curators or teachers b. Persons of rank or persons in authority, provided the crime is not direct assault Medical attendance or incapacity is required If the wound required medical attendance for only 2 days but the injured party was prevented from attending to his ordinary labor for period of 29 days, the physical injuries are denominated less serious It is only slight physical injury when there is no medical attendance or incapacity for labor 266. Slight physical injuries and maltreatment. The crime of slight physical injuries shall be punished: 1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the offended party for labor from one to nine days, or shall require medical attendance during the same period. 2. By arresto menor or a fine not exceeding 20 pesos and censure when the offender has caused physical injuries which do not prevent the offended party from engaging in his habitual work nor require medical assistance. 3. By arresto menor in its minimum period or a fine not exceeding 50 pesos when the offender shall ill-treat another by deed without causing any injury. Some hours after 9 days do not amount to 10 days Examples of physical injuries under par. 2: o Contusion on the face or black eye produced by fistic blow When there is no evidence of actual injury, length of time where the offended party is incapacitated for labor or of the required medical attendance, it is only slight physical injury Example of slight physical injury by ill-treatment: o Any physical violence which does not produce injury, such as slapping the face, without causing dishonor Supervening event converting the crime into serious physical injuries after the filing of the information for slight physical injuries can still be subject of amendment or of a new charge without necessarily placing the accused in double jeopardy Chapter 3: Rape 266-A. Rape, when and how committed. Rape is committed— 1. By a man who shall have carnal knowledge of a woman under any of the following circumstances: a. Through force, threat or intimidation b. When the offended party is deprived of reason or is otherwise unconscious c. By means of fraudulent machination or grave abuse of authority d. When the offended party is under 12 years of age or is demented, even though none of the circumstances mentioned above be present 2. By any person who, under any of the circumstances mentioned in par. 1 hereof, shall commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person Page 46 of 75 Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) Elements of rape under par. 1: 1. That the offender is man 2. That the offender had carnal knowledge of a woman 3. That such act is accomplished under any of the following circumstances: a. By using force, threat or intimidation b. When the woman is deprived of reason or is otherwise unconscious c. By means of fraudulent machination or grave abuse of authority d. When the woman is under 12 years of age or is demented Elements of rape under par. 2: 1. That the offender commits an act sexual assault 2. That the act of sexual assault is committed by any of the following means: a. By inserting his penis into another person’s mouth or anal orifice b. By inserting any instrument or object into the genital or anal orifice of another person 3. That the act of sexual assault is accomplished under any of the following circumstances a. By using force, threat or intimidation b. When the woman is deprived of reason or is otherwise unconscious c. By means of fraudulent machination or grave abuse of authority d. When the woman is under 12 years of age or is demented Who can commit rape? Both male and female. PARAGRAPH 1: RAPE BY SEXUAL INTERCOURSE o ―rape by sexual intercourse‖—the contact of the male penis with the woman’s vagina o There must be sexual intercourse Penetration, even partial, is necessary Proof of emission is not necessary o There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked to the external surface thereof, for an accused to be convicted of consummated rape o ―pudendum or vulva‖—collective term for the female genital organs that are visible in the perineal area ―mons pubis‖—the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface ―labia mojora‖—outer lips of the female organ composed of the outer convex surface and the inner surface Directly beneath labia majora is the labia minora o Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ Ro-An Salanga (I-A) If there is no sexual intercourse and only acts of lewdness are performed, the crime may be rape through sexual assault under par. 2 or acts of lasciviousness only under Art. 336 PARAGRAPH 2: RAPE THROUGH SEXUAL ASSAULT o A violation of the body orifices by the fingers is within the expanded definition of rape under RA 8353 o By using force and intimidation: Degree of force is necessary to constitute rape The force need not be irresistible It is enough that the force used is sufficient to consummate the culprit’s purpose of copulating with the offended woman When the victim stated that she defended herself against the accused as long as she could, but he overpowered her and held her till her strength gave out, and then accomplished his vicious purpose, there is evidence of sufficient force The force or violence necessary in rape is naturally a relative term, depending on the a. Age, size and strength of the parties; and b. Their relation to each other Resistance when futile, does not amount to consent Test is whether the force or intimidation produces a reasonable fear in the mind of the victim that if she resists or does not yield to the desires of the accuse, the threat would be carried out Intimidation is enough if it produces fear This must be viewed in light of the victim’s perception and judgment at the time of rape and not by any hard and fast rule o Moral ascendancy or influence, held to substitute for the element of physical force or intimidation Under this, it is not necessary that the victim put up a determined resistance Rapes committed by: a. Fathers against their daughters b. Stepfathers against their stepdaughters c. A godfather against his goddaughter d. Uncles against their nieces e. First cousin of the victim’s mother Rape may be proved by the uncorroborated testimony of the offended woman o The testimony, however, must be conclusive, logical and probable Principles in guiding the appellate court in reviewing the evidence adduced in a prosecution for the crime of rape: 1. An accusation for rape can be made with facility, is difficult to prove, but more difficult for the person accused, though innocent, to disprove 2. In view of the intrinsic nature of the crime of rape, where only 2 persons are usually involved, the o Page 47 of 75 Crim 2 Notes (AY 2010-2011) testimony of the complainant must be scrutinized with extreme caution 3. The evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense When the woman is deprived of reason or otherwise unconscious—the victim has no will o Sexual intercourse with an insane woman is rape o Cohabitation with feebleminded, idiotic woman is rape Deprivation of reason contemplated by law does not need to be complete Mental abnormality or deficiency is sufficient o Intercourse with a deaf-mute is not rape, in the absence of proof that she is imbecile o Rape while the woman is unconscious: a. Carnal act while the woman is asleep or before a young wife awoke b. When the woman is in lethargy produced by sickness c. After the woman was knocked unconscious d. When narcotic was administered to the woman e. When a potion is given to the woman Consummated rape o Enough that the labia of the female organ was penetrated o It is not essential that there be a rupture of the hymen o It is not also essential that there be a complete penetration o Absence of spermatozoa does not disprove consummation of rape There is NO frustrated rape STATUTORY RAPE o When the girl is under 12 years of age despite of her consent or her being a prostitute The character of the offended woman is immaterial Multiple rape by 2 or more offenders o Each will suffer N number of crimes of rape depending on how many persons committed the crime When by reason or on the occasion of the rape, homicide is committed, the penalty shall be death. The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: 1. When the victim is under 18 years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the 3rd civil degree, or the common law spouse of the parent of the victim 2. When the victim is under the custody of the police or military authorities or any law enforcement or penal institution 3. When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the 3rd civil degree of consanguinity 4. When the victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime 5. When the victim is a child below 7 years old 6. When the offender knows that he is afflicted with HIV AIDS or any other sexually transmissible disease and the virus or disease is transmitted to the victim 7. When committed by any member of the AFP or para-military units thereof or the PNP or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime 8. When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability 9. When the offender knew of the pregnancy of the offended party at the time of the commission of the crime 10. When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime Rape under par. 2 of the next preceding article shall be punished by prision mayor. Whenever the rape is committed with the use of a deadly weapon or by 2 or more persons, the penalty shall be prision mayor to reclusion temporal. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be reclusion perpetua. When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the Page 48 of 75 266-B. Penalties. Rape under par. 1 of the next preceding article shall be punished by reclusion perpetua. Whenever the rape is committed with the use of a deadly weapon or by 2 or more persons, the penalty shall be reclusion perpetua to death. When by reason or on occasion of the rape, the victim has become insane, the penalty shall be reclusion perpetua to death. When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) penalty shall be reclusion temporal to reclusion perpetua. When by reason or on the occasion of the rape, homicide is committed, the penalty shall be reclusion perpetua. Reclusion temporal shall also be imposed if the rape is committed with any of the ten aggravating/qualifying circumstances mentioned in this article. When the homicide is committed not by reason or on the occasion of rape o The victim was already at the threshold of death when she was ravished The bestiality may be regarded either as a form of ignominy causing disgrace or as a form of cruelty which aggravated the murder, it being unnecessary to the commission thereof Another illustration of rape with homicide o When the rapist, who was suffering from gonorrhea, infected the victim who died as a result Penalties for rape under pars. 1 and 2 Paragraph 1 Paragraph 2 Committed under any of Reclusion Prision the 4 circumstances perpetua mayor Committed with the use Reclusion Prision of a deadly weapon or by perpetua to mayor to 2 or more persons Death Reclusion temporal Rape where the victim Reclusion Reclusion becomes insane perpetua to temporal Death Committed with Reclusion Reclusion attempted rape and perpetua to temporal to homicide Death Reclusion perpetua Rape with homicide Death Reclusion perpetua Rape with Death Reclusion aggravating/qualifying temporal circumstances Indemnity in Rape o The award of P50,000 as indemnity ex delicto is mandatory o Increased to, but not less than, P75,000 if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the present amended law Indemnity in Rape with Homicide o Award of P100,000 is mandatory P50,000 in case of death P50,000 upon the finding of the fact of rape Damages in Rape o Moral damages of P50,000 is to be automatically awarded in rape cases without need of proof o Exemplary damages may be awarded in criminal cases as part of the civil liability if the crime was Ro-An Salanga (I-A) committed with one or more aggravating circumstances 266-C. Effect of pardon. The subsequent valid marriage between the offender and the offended party shall extinguish the criminal action or the penalty imposed. In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, that the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab inito. This benefits only the principals and not the accomplices and accessories This principle does not apply where multiple rape is committed o Because while marriage with one defendant extinguishes the criminal liability, its benefits cannot be extended to the acts committed by the others 266-D. Presumptions. Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution of the acts punished under Art. 266-A. Title 9: CRIMES AGAINST PERSONLA LIBERTY AND SECURITY Chapter 1: Crimes against Liberty Section 1: Illegal Detention Crimes classified as illegal detention 1. Kidnapping and serious illegal detention (Art. 267) 2. Slight illegal detention (Art. 266) 3. Unlawful arrest (Art. 269) 267. Kidnapping and serious illegal detention—: Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than 3 days 2. If it shall have been committed simulating public authority 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made 4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting Page 49 of 75 Crim 2 Notes (AY 2010-2011) ransom from the victim or any other person, even if none of the circumstances above mentioned were present in the commission of the offense. When the victim is killed or dies as a consequence of detention, or is raped or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. Elements: 1. That the offender is a private individual 2. That he kidnaps or detains another, or in any other manner deprives the latter of his liberty 3. That the act of detention or kidnapping must be illegal 4. That in the commission of the offense, any of the following circumstances is present: a. That the kidnapping or detention lasts for more than 3 days b. That is committed simulating public authority c. That any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made d. That the person kidnapped or detained is a minor, female or a public officer If the offender is a public officer, the crime is arbitrary detention o But the public officer must have a duty under the law to detain a person o If not, he will be held liable under this article When the victim is a minor and the accused is one of the parents, they will be liable under Art. 271 Intention to deprive the victim of his liberty for purposes of extorting ransom on the part of the accused is essential in the crime of kidnapping o Actual demand for ransom is not necessary as long as the kidnapping was committed ―for the purpose of extorting ransom‖ It is essential in the crime of illegal detention that there be actual confinement or restriction of the person of the offended party o But it is not necessary that he be confined in an inclosure o Depriving him of his liberty is sufficient o Restraint need not be permanent Detention must be illegal o It is illegal when not ordered by competent authority or not permitted by law When the kidnapping or detention was committed for the purpose of extorting ransom, it is not necessary that one or any of such circumstances enumerated be present Detention for more than 3 days is not necessary when any of the other circumstances is present Kidnapping of a public officer o A barrio captain is a public officer Restraint by robbers is not illegal detention Ro-An Salanga (I-A) Kidnapping with murder or homicide Where the person kidnapped is killed in the course of the detention, regardless of whether the killing was purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no longer be complexed under Art. 48, nor be treated as separate crimes, but shall be punished as a special complex crime under the last par. of Art. 267 o The specific intent is determinative of whether the crime committed is murder or kidnapping Specific intent—may be proved by direct or by circumstantial evidence. o It may be inferred from the circumstances of the actions of the accused as established by the evidence on record o Specific intent is not synonymous with motive where motive is not an essential element of a crime Circumstances qualifying the offense o When maximum penalty of death be imposed— a. If the purpose of kidnapping or detention is to extort ransom b. When the victim is killed or dies as a consequence of the detention c. When the victim is raped d. When the victim is subjected to torture or dehumanizing acts o Death is imposed as a single penalty o Imposed regardless of the presence and number of ordinary mitigating circumstances o The only privileged mitigating circumstance that can lower the penalty by one degree is when the offender is over 15 but under 16 years of age Ransom—money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity Conspiracy to extort ransom makes all the conspirators liable under the 2nd par. of Art. 267, including those who did not take any part of the money There is no complex crime of illegal detention with rape but only kidnapping with rape Illegal detention Arbitrary detention Committed by private Committed by a public individual officer or employee who detains a person without legal ground Crime against personal Crime against the liberty and security fundamental law of the State o 268. Slight illegal detention—: The penalty of reclusion temporal shall be imposed upon any private individual who shall commit the crimes described in the next preceding article without the attendance of any of the circumstances enumerated therein. Crim 2 Notes (AY 2010-2011) Page 50 of 75 The same penalty shall be incurred by anyone who shall furnish the place for the perpetration of the crime. If the offender shall voluntarily release the person so kidnapped or detained within 3 days from the commencement of the detention, without having attained the purpose intended, and before the institution of criminal proceedings against him, the penalty shall be prision mayor in its minimum and medium periods and a fine not exceeding 700 pesos. Elements: 1. That the offender is a private individual 2. That he kidnaps or detains another, or in any other manner deprives him of his liberty 3. That the act of kidnapping or detention is illegal 4. That the crime is committed without the attendance of any of the circumstances enumerated in Art. 267 The same penalty is incurred by anyone who furnished the place for the perpetration of the crime. His participation is raised to that of a real co-principal. o But if the cooperation of the accomplice is by an act other than furnishing the place for the perpetration of the crime, the penalty shall be one degree lower than that provided for the crime of slight illegal detention Privileged mitigating circumstances: (all 3 requisites must concur) a. Voluntary releasing the person so kidnapped or detained within 3 days from the commencement of the detention b. Without having attained the purpose intended c. Before the institution of criminal proceedings against him When the victim is a female, the detention is punished under Art. 267 and voluntary release is not mitigating under that article 269. Unlawful arrest—: The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any person who, in any case other than those authorized by law, or without reasonable ground therefor, shall arrest or detain another for the purpose of delivering him to the proper authorities. Elements: 1. That the offender arrests or detains another person 2. That the purpose of the offender is to deliver him to the proper authorities 3. That the arrest or detention is not authorized by law or there is no reasonable ground therefor The offender is any person o But if the offender is a public officer who has authority to arrest and detain a person but did so without legal ground, he is liable for arbitrary detention No period of detention is fixed by law, but the motive of the offender is controlling Ro-An Salanga (I-A) Under Sec. 6 Rule 113 of the Revised Rules of Criminal Procedure, a private person may arrest an individual without warrant under the circumstances when public officers can make arrest Unlawful arrest Delay in the delivery of detained persons to the proper judicial authority Detention is for some legal ground Committed by failing to deliver such person to the proper judicial authority within a certain period of time Detention is not authorized by law Committed by making an arrest not authorized by law Section 2: Kidnapping of Minors Crimes called kidnapping of minors: 1. Kidnapping and failure to return a minor 2. Inducing a minor to abandon his home 270. Kidnapping and failure to return a minor—: The penalty of reclusion perpetua shall be imposed upon any person who, being entrusted with the custody of a minor person, shall deliberately fail to restore the latter to his parents or guardians. Elements: 1. That the offender is entrusted with the custody of a minor person, whether over or under 7 years but less than 21 years of age 2. The he deliberately fails to restore the said minor to his parents or guardians What is punished is the deliberate failure of the custodian of the minor to restore the latter to his parents or guardian Art. 267 Art. 270 Kidnapping of a minor is punished Offender is not entrusted Offender is entrusted with with the custody of the the custody of the victim victim 271. Inducing a minor to abandon his home—: The penalty of prision correctional and a fine not exceeding 700 pesos shall be imposed upon anyone who shall induce a minor to abandon the home of his parents or guardians or the persons entrusted with his custody. If the person committing any of the crimes covered by the two preceding articles shall be the father or the mother of the minor, the penalty shall be arresto mayor or a fine not exceeding 300 pesos, or both. Elements: 1. That a minor, whether over or under 7 years of age but less than 21, is living in the home of his parents or guardian or the person entrusted with his custody Page 51 of 75 Crim 2 Notes (AY 2010-2011) 2. That the offender induces said minor to abandon such home The inducement must be actual, committed with criminal intent, and determined by a will to cause damage ―to induce‖—to influence, to prevail on, to move by persuasion, to incite by motives ―shall induce the minor to abandon the home‖—what constitutes the crime is the act of inducing a minor to abandon his home or the home of his guardian o It is not necessary that the minor actually abandons the home If the minor should leave his home of his own free will and would go and live with another person, the latter is not criminally liable Section3: Slavery and servitude Elements: 1. That the offender retains a minor in his service 2. That it is against the will of the minor 3. That it is under pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of such minor The existence of an indebtedness constitutes no legal justification for holding a person and depriving him of his freedom to live where he wills 274. Services rendered under compulsion in payment of debt—: The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, in order to require or enforce the payment of a debt, shall compel the debtor to work for him, against his will, as household servant or farm laborer. Elements: 1. That the offender compels a debtor to work for him, either as household servant or farm laborer 2. That it is against the debtor’s will 3. That the purpose is to require or enforce the payment of a debt This article does not distinguish whether the victim is a minor or not Chapter 2: Crimes against Security Section 1: Abandonment of helpless persons and exploitation of minors Crimes called abandonment of helpless persons and exploitation of minors: 1. Abandonment of persons in danger and abandonment of one’s victim 2. Abandoning a minor 3. Abandonment of minor by person entrusted with his custody; indifference of parents 4. Exploitation of minors 275. Abandonment of persons in danger and abandonment of one’s own victim—: The penalty of arresto mayor shall be imposed upon: 1. Anyone who shall fail to render assistance to any person whom he shall find in an uninhabited place wounded or in danger of dying, when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense 2. Anyone who shall fail to help or render assistance to another whom he has accidentally wounded or injured 3. Anyone who, having found an abandoned child under 7 years of age, shall fail to deliver said child to the authorities or to his family, or shall fail to take him to a safe place Page 52 of 75 Crimes called slavery and servitude: 1. Slavery 2. Exploitation of child labor 3. Services rendered under compulsion in payment of debt 272. Slavery—: The penalty of prision mayor and a fine not exceeding 10 000pesos shall be imposed upon anyone who shall purchase, sell, kidnap or detain a human being for the purpose of enslaving him. If the crime be committed for the purpose of assigning the offended party to some immoral traffic, the penalty shall be imposed in its maximum period. Elements: 1. That the offender purchases, sells, kidnaps or detains a human being 2. That the purchase of the offender is to enslave such human being To distinguish from kidnapping or illegal detention, the purpose must be determine and it should be for the purpose of enslaving the victim ―for purpose of enslaving him‖—when it is proven that the victim was obliged to render service as a servant without remuneration and to remain there so long as she has not paid her debt is slavery o the employment or custody of a minor with the consent of the parent or guardian although against the child’s own will cannot be considered involuntary servitude 273. Exploitation of child labor—: The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon anyone who, under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian, or person entrusted with the custody of a minor, shall, against the latter’s will, retain him in his service. Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) Acts punished: 1. By failing to render assistance to any person whom the offender shall find in an uninhabited place wounded or in danger of dying, when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense o Elements: a. The place is not inhabited b. The accused found there a person wounded or in danger of dying c. The accused can render assistance without detriment to himself d. The accused fails to render assistance 2. By failing to help or render assistance to another whom the offender has accidentally wounded or injured 3. By failing to deliver a child, under 7 years of age, whom the offender has found abandoned, to the authorities or to his family, or by failing to take him to a safe place if a person intentionally wounded another in an uninhabited place, par. 1 is not applicable, because he did not find him wounded or in danger of dying in that place Par. 2 applies only when someone is accidentally injured by the accused Under the 3rd way of committing the crime, it is immaterial that the offender did not know that the child is under 7 years old o This par. also applied to one who found a lost child ―shall fail to take him to a safe place‖—the child must be found by the accused in an unsafe place If there is intent to kill, this article does not apply If there is intent to kill and the child dies, the crime would either be murder, parricide or infanticide o If there is intent to kill but child does not die, it is attempted murder, parricide or infanticide Intent to kill cannot be presumed from the death of the child or for crimes against security, particularly under Art. 276 A permanent, conscious and deliberate abandonment is required Circumstances qualifying the offense: 1. When the death of the minor from such abandonment 2. If the life of the minor was in danger because of the abandonment Parents guilty of abandoning their children shall be deprived of parental authority o 277. Abandonment of minor by person entrusted with his custody; indifference of parents—: The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon anyone who, having charge of the rearing or education of a minor, shall deliver said minor to a public institution or other persons, without the consent of the one who entrusted such child to his care or, in the absence of the latter, without the consent of the proper authorities. The same penalty shall be imposed upon the parents who shall neglect their children by not giving them the education which their station in life requires and financial condition permits. Acts punished: 1. By delivering a minor to a public institution or other persons without the consent of the one who entrusted such minor to the care of the offender or, in the absence of that one, without the consent of the proper authorities 2. By neglecting his (offender’s) children by not giving them the education which their station in life requires and financial condition permits Elements of abandonment of minor by one charged with the rearing or education of said minor: 1. That the offender has charge of the rearing or education of a minor 2. That he delivers said minor to a public institution or other persons 3. That the one who entrusted such child to the offender has not consented to such act; or if the one who entrusted such child to the offender is absent, the proper authorities have not consented to it Person liable: o Only the person charged with ―the rearing or education‖ of the minor ―rear‖—to bring to maturity by educating, nourishing, etc. Page 53 of 75 276. Abandoning a minor—: The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any one who shall abandon a child under seven years of age, the custody of which is incumbent upon him. When the death of the minor shall result from such abandonment, the culprit shall be punished by prision correccional in its medium and maximum periods; but if the life of the minor shall have been in danger only, the penalty shall be prision correccional in its minimum and medium periods. The provisions contained in the two preceding paragraphs shall not prevent the imposition of the penalty provided for the act committed, when the same shall constitute a more serious offense. Elements: 1. That the offender has the custody of a child 2. That the child is under 7 years of age 3. That he abandons such child 4. That he has no intent to kill the child when the latter is abandoned Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) Abandonment of minor by person entrusted with custody (Art. 277) The custody is for the rearing or education of the minor Minor is under 21 years of age Minor is delivered to a public institution or other person Abandonment of a minor (Art. 276) The custody of the offender is stated in general Minor is 7 years of age Minor is abandoned as to deprive him of the care and protection that his tender years need Elements of indifference of parents: 1. That the offender is a parent 2. That he neglects his children by not giving them education 3. That his station in life requires such education and his financial condition permits it The obligation to educate his children terminates, if the mother and the children refuse without good reasons to live with the accused; hence, he cannot be said to have abandoned them and neglected his children The failure to give education must be due to deliberate desire to evade such obligation 278. Exploitation of minors—: The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon: 1. Any person who shall cause any boy or girl under 16 years of age to perform any dangerous feat of balancing, physical strength, or contortion. 2. Any person who, being an acrobat, gymnast, ropewalker, diver, wild-animal tamer or circus manager, or engaged in a similar calling, shall employ in exhibitions of these kinds children under 16 years of age who are not his children or descendants. 3. Any person engaged in any of the callings enumerated in the next preceding paragraph who shall employ any descendant of his under 12 years of age in such dangerous exhibitions. 4. Any ascendant, guardian, teacher or person entrusted in any capacity with the care of a child under 16 years of age, who shall deliver such child gratuitously to any person following any of the callings enumerated in paragraph 2 hereof, or to any habitual vagrant or beggar. If the delivery shall have been made in consideration of any price, compensation, or promise, the penalty shall in every case be imposed in its maximum period. In either case, the guardian or curator convicted shall also be removed from office as guardian or curator; and in the case of the parents of the child, they may be deprived, temporarily or perpetually, in the discretion of the court, of their parental authority. 5. Any person who shall induce any child under 16 years of age to abandon the home of its ascendants, guardians, curators, or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 hereof, or to accompany any habitual vagrant or beggar. Par. 4(b) qualifies the offense The offender shall be deprived of parental authority or guardianship The exploitation of minor must refer to act endangering the life or safety of the minor Exploitation of minors Inducing a minor to (Art. 278, par. 5) abandon his home (Art. 271) The purpose is under The purpose is not any of those mentioned in such those mentioned in Art. par. 5 278 par. 5 Victim is under 16 years of Victim is a minor under 21 age years of age 279. Additional penalties for other offenses—: The imposition of the penalties prescribed in the preceding articles, shall not prevent the imposition upon the same person of the penalty provided for any other felonies defined and punished by this Code. Section 2: Trespass to dwelling 280. Qualified trespass to dwelling—: Any private person who shall enter the dwelling of another against the latter's will shall be punished by arresto mayor and a fine not exceeding 1,000 pesos. If the offense be committed by means of violence or intimidation, the penalty shall be prision correccional in its medium and maximum periods and a fine not exceeding 1,000 pesos. The provisions of this article shall not be applicable to any person who shall enter another's dwelling for the purpose of preventing some serious harm to himself, the occupants of the dwelling or a third person, nor shall it be applicable to any person who shall enter a dwelling for the purpose of rendering some service to humanity or justice, nor to anyone who shall enter cafes, taverns, inn and other public houses, while the same are open. Elements: 1. That the offender is a private person 2. The he enters the dwelling of another Page 54 of 75 Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) 3. That such entrance is against the latter’s will What is intended to be protected is the privacy of one’s dwelling If the offense is committed by means of violence or intimidation, it qualifies the crime o It may take place immediately after the entrance o Prohibition is not necessary under these circumstances If the offender is a public officer, the crime is violation of domicile (Art. 128) Dwelling—any building or structure exclusively devoted for rest and comfort o Includes a room when occupied by another person Entrance into dwelling must be ―against‖ the will of the owner or occupant and not only mere absence of his consent o There should be presume or express prohibition by the occupant o Lack of permission does not amount to prohibition Generally, all members of a household must be presumed to have authority to extend an invitation to enter the house Implied prohibition—it is a well-settled rule that whoever enters the dwelling of another at late hour of the night after the inmates have retired and closed their doors does so against their will o It is also implied in entrance through the window Prohibition must be in existence prior to or at the time of the entrance Trespass by means of violence is inflicted on the person or upon things Trespass by means of intimidation is directed toward the person Trespass to dwelling may be committed by the owner of the dwelling when he did not invoke the aid of the court for the exercise of his proprietary rights Cases to which the provisions of this article are not applicable: 1. If the entrance to another’s dwelling is made for the purpose of preventing some serious harm to himself, the occupants of the dwelling or a third person 2. If the purpose is to render some service to humanity or justice 3. If the place where entrance is made is a café, tavern, inn and other public houses, while the same are open Elements: 1. That the offender enters the closed premises or the fenced estate of another 2. That the entrance is made while either of them is uninhabited 3. That the prohibition to enter be manifest 4. That the trespasser has not secured the permission of the owner or the caretaker thereof ―premises‖—signifies distinct and definite locality o May mean a room, shop, building or definite area, but in either case, locality is fixed Trespass to dwelling Other forms of dwelling Offender is private person Offender is any person Enters a dwelling house Enters closed premises or fenced estate inhabited Uninhabited Entering the dwelling Entering closed premises against the will of the or fenced estate without owner securing the permission of the owner or caretaker Prohibition to enter is Prohibition to enter must express or implied be manifest Section Three. — Threats and coercion 282. Grave threats—: Any person who shall threaten another with the infliction upon the person, honor or property of the latter or of his family of any wrong amounting to a crime, shall suffer: 1. The penalty next lower in degree than that prescribed by law for the crime be threatened to commit, if the offender shall have made the threat demanding money or imposing any other condition, even though not unlawful, and said offender shall have attained his purpose. If the offender shall not have attained his purpose, the penalty lower by two degrees shall be imposed. If the threat be made in writing or through a middleman, the penalty shall be imposed in its maximum period. 2. The penalty of arresto mayor and a fine not exceeding 500 pesos, if the threat shall not have been made subject to a condition. The threat must be to inflict a wrong amounting to a crime upon the person, honor, or property of the offended party or that of his family Essence of the crime of threats is intimidation Intimidation—there is a promise of some future harm or injury, either to the person, honor or property of the offended party or of his family Elements of grave threats where offender attained his purpose: 1. That the offender threatens another person with the infliction upon the latter’s person, honor or Page 55 of 75 281. Other forms of trespass—: The penalty of arresto menor or a fine not exceeding 200 pesos, or both, shall be imposed upon any person who shall enter the closed premises or the fenced estate of another, while either of them are uninhabited, if the prohibition to enter be manifest and the trespasser has not secured the permission of the owner or the caretaker thereof. Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) property, or upon that of the latter’s family, of any wrong 2. That such wrong amounts to a crime 3. That there is demand for money or that any other condition is imposed, even though not unlawful 4. That the offender attains his purpose Threatening to publish a libel and offering to prevent such publication for money is punished under Art. 356 Penalties: a. Offender attained his purpose—one degree lower for the crime threatened to be committed b. Offender does not attain his purpose—two degrees lower than that provided by law for the crime threatened to be committed c. If threat is not subject to a condition—penalty is arresto mayor and a fine not exceeding 500 pesos Circumstance qualifying the offense o The threat is made in writing or through a middleman Elements of grave threats not subject to a condition: 1. That the offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong 2. That such wrong amounts to a crime 3. That the threat is not subject to a condition Under grave threats not subject to a condition, the grave threats must be serious and deliberate o There is no condition or no demand of money If the threat is made in the heat of anger, such threat is punished under Art. 285, par. 2 If the condition is not proved, it is grave threats under par. 2 ―threaten another with the infliction of any wrong‖‖—the act threatened to be committed must be wrong Grave threats may be committed by indirect challenge to a gun fight even if the complainant was absent when the challenge was made It is not necessary that the offended party was present at the time the threats were made o It is sufficient that the threats, after they have been made in his absence, came to the knowledge of the offended party (this is the stage of consummation of the crime) Threats made in connection with the commission of other crimes are absorbed by the latter o If there is another crime actually committed or the objective of the offender is another crime, and the threat is only a means to commit it or a mere incident in its commission, the threat is absorbed by the other crime If the offender in grave threats demand the delivery on the spot of the money or other personal property asked by him, it is the crime of robbery with intimidation 283. Light threats—: Any threat to commit a wrong not constituting a crime, made in the manner expressed in subdivision 1 of the next preceding article, shall be punished by arresto mayor. Elements: 1. That the offender makes a threat to commit a wrong 2. That the wrong does not constitute a crime 3. That there is demand for money or that other condition is imposed, even though not unlawful 4. That the offender has attained his purpose or that he has not attained his purpose Light threats may amount to blackmailing o The unlawful extortion of money by an appeal to the fear of the victim or by threats of accusation or exposure 284. Bond for good behavior—: In all cases falling within the two next preceding articles, the person making the threats may also be required to give bail not to molest the person threatened, or if he shall fail to give such bail, he shall be sentenced to destierro. Cases where a person may be required to give bail not to molest another: 1. When he threatens another under the circumstances mentioned in Art. 282 2. When he threatens another under the circumstances mentioned in Art. 283 The giving of bail is an additional penalty Bond to keep the peace Bond for good behavior (Art. 35) (Art. 284) Not made applicable to Applicable only to cases of any particular case grave threats and light threats If the offender fails to give If he shall fail to give bail, bond, he shall be detained he shall be sentenced to for a period not exceeding destierro 6 months (prosecuted for grave or less grave felony) or not exceeding 30 days (prosecuted for light felony) 285. Other light threats—: The penalty of arresto menor in its minimum period or a fine not exceeding 200 pesos shall be imposed upon: 1. Any person who, without being included in the provisions of the next preceding article, shall threaten another with a weapon or draw such weapon in a quarrel, unless it be in lawful selfdefense. 2. Any person who, in the heat of anger, shall orally threaten another with some harm not constituting a crime, and who by subsequent acts show that he did not persist in the idea involved in his threat, provided that the circumstances of the offense Page 56 of 75 Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) shall not bring it within the provisions of Art. 282 of this Code. 3. Any person who shall orally threaten to do another any harm not constituting a felony. The word ―not‖ in the second act punished is enclosed in parenthesis because the inclusion of that word is a mistake 2 acts punished in par. 1: 1. Threatening another with a weapon, even if there is no quarrel 2. Drawing a weapon in a quarrel, which is not in lawful self-defense Threats which ordinarily are grave threats, if made in the heat of anger, may be other light threats Where the threats are directed to a person who is absent and uttered in a temporary fit of anger, the offense is only light threats 286. Grave coercions—: The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any person who, without authority of law, shall, by means of violence, prevent another from doing something not prohibited by law, or compel him to do something against his will, whether it be right or wrong. If the coercion be committed for the purpose of compelling another to perform any religious act or to prevent him from so doing, the penalty next higher in degree shall be imposed. 2 ways of committing grave coercions: 1. By preventing another, by means of violence, threats or intimidation, from doing something not prohibited by law 2. By compelling another, by means of violence, threats or intimidation, to do something against his will, whether it be right or wrong Elements of grave coercions: 1. That a person prevented another from doing something not prohibited by law, or that he compelled him to do something against his will, be it right or wrong 2. That the prevention or compulsion be effected by violence, threats or intimidation; and 3. That the person that restrained the will and liberty of another had not the authority of law or the right to do so, or, in other words, that the restraint shall not be made under authority of law or in the exercise of any lawful right The purpose of the law in penalizing coercion is to enforce the principle that no person may take the law into his hands, and that our government is one of law, not of men The act of preventing by force must be made at the time the offended party was doing or about to do the act to be prevented o Otherwise, it will be unjust vexation Ro-An Salanga (I-A) Compelling another to do something includes the offender’s act of doing it himself while subjecting another to his will When the complainant is in the actual possession of a thing, even if he has no right to that possession, compelling him by means of violence to give up the possession, even by the owner himself, is grave coercion Violence, threats or intimidation may be used to prevent or to compel the offended party The crime is not grave coercion when the violence is employed to seize anything belonging to the debtor of the offender Display of force, if arms are not used, is not intimidation o But surrounding complainant in a notoriously threatening attitude is sufficient The force or violence must be immediate, actual or imminent ―without authority of law‖—the person who restraints the will and liberty of another has not the right to do so as a private person or does not act in the exercise of a duty in the case of a person with a duty to perform or with authority as a public functionary There is no grave coercion when the accused acts in good faith in the performance of his duty A person who takes the law into his hands with violence is guilty of grave coercion Coercion is consummated even if the offended party did not accede to the purpose of the coercion When the purpose is to prevent the inmates from leaving the premises, it is grave coercion Grave coercion Maltreatment of prisoners Offended party is not a Offended party is a prisoner prisoner When there is prevention of the meeting of a legislative body or provincial board or city or municipal council or board, the offenders are not liable for grave coercion through arbitrary detention, even if there is compulsion and detention When prision mayor shall be imposed: 1. If the coercion is committed in violation of the exercise of the right of suffrage 2. If the coercion is committed to compel another to perform any religious act 3. If the coercion is committed to prevent another from performing any religious act 287. Light coercions—: Any person who, by means of violence, shall seize anything belonging to his debtor for the purpose of applying the same to the payment of the debt, shall suffer the penalty of arresto mayor in its minimum period and a fine equivalent to the value of the thing, but in no case less than 75 pesos. Crim 2 Notes (AY 2010-2011) Page 57 of 75 Any other coercions or unjust vexations shall be punished by arresto menor or a fine ranging from 5 pesos to 200 pesos, or both. Elements: 1. That the offender must be a creditor 2. That he seizes anything belonging to his debtor 3. That the seizure of the thing be accomplished by means of violence or a display of material force producing intimidation 4. That the purpose of the offender is to apply the same to the payment of the debt Par. 1 is limited to a case where the offender seized anything belonging to his debtor by means of violence to apply the same to the payment of the debt Par. 2 is unjust vexation o Includes any human conduct which, although not productive of some physical or material harm would, unjustly annoy or vex an innocent person o Paramount question in determining whether the crime is unjust vexation is whether the offender’s act caused annoyance, irritation, vexation, torment, distress or disturbance to the mind of the person to whom it is directed Taking possession of the thing belonging to the debtor, through deceit and misrepresentation, for the purpose of applying the same to the payment of the debt, is unjust vexation under Art. 287 par. 2 Actual physical violence need not be employed Kissing a girl, without performing acts of lasciviousness, is unjust vexation If there is no violence of intimidation light coercion under par. 1, it is only unjust vexation When the act of the accused has no connection with his previous acts of violence, it is only unjust vexation The difference between grave coercion and unjust vexation is that the latter is committed without the use of violence 288. Other similar coercions; (Compulsory purchase of merchandise and payment of wages by means of tokens)—: The penalty of arresto mayor or a fine ranging from 200 to 500 pesos, or both, shall be imposed upon any person, agent or officer, of any association or corporation who shall force or compel, directly or indirectly, or shall knowingly permit any laborer or employee employed by him or by such firm or corporation to be forced or compelled, to purchase merchandise or commodities of any kind. The same penalties shall be imposed upon any person who shall pay the wages due a laborer or employee employed by him, by means of tokens or objects other than the legal tender currency of the laborer or employee. Acts punished: Ro-An Salanga (I-A) 1. By forcing or compelling, directly or indirectly, or knowingly permitting the forcing or compelling of the laborer or employee of the offender to purchase merchandise or commodities of any kind from him 2. By paying the wages due his laborer or employee by means of tokens or objects other than the legal tender currency of the Philippines, unless expressly requested by such laborer or employee Elements under No. 1: 1. That the offender is any person, agent or officer of any association or corporation 2. That he or such firm or corporation has employed laborers or employees 3. That he forces or compels, directly or indirectly, or knowingly permits to be forced or compelled, any of his laborers or employees to purchase merchandise or commodities of any kind from him or from said firm or corporation Elements of No. 2: 1. That the offender pays the wages due a laborer or employee employed by him by means of tokens or objects 2. That those tokens or objects are other than the legal tender currency of the Philippines 3. That such employee or laborer does not expressly request that he be paid by means of tokens or objects Inducing an employee to give up any part of his wages by force, stealth, intimidation, threat or by any other means is unlawful under Art. 116 of the Labor Code, not under the RPC 289. Formation, maintenance and prohibition of combination of capital or labor through violence or threats—: The penalty of arresto mayor and a fine not exceeding 300 pesos shall be imposed upon any person who, for the purpose of organizing, maintaining or preventing coalitions or capital or labor, strike of laborers or lock-out of employees, shall employ violence or threats in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work, if the act shall not constitute a more serious offense in accordance with the provisions of this Code. Elements: 1. That the offender employs violence or threats, in such a degree as to compel or force the laborers or employers in the free legal exercise of their industry or work 2. That the purpose is to organize, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employers The act should not be a more serious offense o If death or some serious physical injuries are caused, the act should be punished in accordance with the other provisions of this Code Page 58 of 75 Crim 2 Notes (AY 2010-2011) Peaceful picketing is not prohibited It is part of freedom of speech Employing violence or making threat by picketers may make them liable for coercion Preventing employee from joining any registered labor organization is punished under the Labor code, not under the RPC o It shall be unlawful for an employer to commit any of the following unfair labor practices: a. To interfere with, restrain or coerce employees in the exercise of their right to self-organization b. To require as a condition of employment that a person or any employee shall not join a labor organization or shall withdraw from one to which he belongs o Chapter 3: Discovery and Revelation of Secrets Kinds of discovery and revelation of secrets: 1. Discovering secrets through seizure of correspondence 2. Revealing secrets with abuse of office 3. Revealing of industrial secrets 290. Discovering secrets through seizure of correspondence—: The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon any private individual who in order to discover the secrets of another, shall seize his papers or letters and reveal the contents thereof. If the offender shall not reveal such secrets, the penalty shall be arresto mayor and a fine not exceeding 500 pesos. The provision shall not be applicable to parents, guardians, or persons entrusted with the custody of minors with respect to the papers or letters of the children or minors placed under their care or study, nor to spouses with respect to the papers or letters of either of them. Elements: 1. That the offender is a private individual or even a public officer not in the exercise of his official function 2. That he seizes the papers or letters of another 3. That the purpose is to discover the secrets of such another person 4. That the offender is informed of the contents of the papers or letters seized ―seize‖—to place in the control of someone a thing or to give him the possession thereof o It is not necessary that there is force or violence Not an element of the offense: a. Prejudice b. Revealing the secret Ro-An Salanga (I-A) Circumstance which qualifies the offense, when the offender reveals the contents of such paper or letters of another to a third person This article is not applicable to parents, guardians, or persons entrusted with the custody of minors with respect to papers or letters of the children or minors placed under their care or custody, or to spouses with respect to the papers or letters of either of them Sec. 2756 of the Administrative Code punishes the unlawful opening of mail matter Art. 230 Art. 231 Public officer comes to Offender is a private know the secrets of any individual who seizes the private individual by papers or letters of another reason of his office to discover the secrets of the latter Not necessary that the Not necessary that there secrets are contained in be a secret papers or letters Reveals it without If there is a secret justifiable reason discovered, not necessary that it be revealed 291. Revealing secrets with abuse of office—: The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any manager, employee, or servant who, in such capacity, shall learn the secrets of his principal or master and shall reveal such secrets. Elements: 1. That the offender is a manger, employee or servant 2. That he learns the secrets of his principal or master in such capacity 3. That he reveals such secrets Secrets must be learned by reason of their employment The secrets must be revealed Damage is not necessary 292. Revelation of industrial secrets—: The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon the person in charge, employee or workman of any manufacturing or industrial establishment who, to the prejudice of the owner thereof, shall reveal the secrets of the industry of the latter. Elements: 1. That the offender is a person in charge, employee or workman of a manufacturing or industrial establishment 2. That the manufacturing or industrial establishment has a secret of the industry which the offender has learned 3. That the offender reveals such secrets 4. That prejudice is caused to the owner Crim 2 Notes (AY 2010-2011) Page 59 of 75 Secrets must relate to the manufacturing processes invented by or for a manufacturer and used only in his factory or in a limited number of them o When they are generally used, they will not be a secret The act constituting the crime is revealing the secret of the industry of the employer The revelation of the secret might be made after the employee or workman had ceased to be connected with the establishment Prejudice is an essential element of the offense Chapter 1: Robbery in General 293. Who are guilty of robbery. Any person who, with intent to gain, shall take any personal property belonging to another, by means of violence against or intimidation of any person, or using force upon anything, shall be guilty of robbery. Robbery—taking of personal property belonging to another, with intent to gain, by means of violence against, or intimidation of any person or using force upon anything Classification of Robbery: 1. Robbery with violence against, or intimidation of persons 2. Robbery by the use of force upon things Elements of robbery in general: 1. That there be a. Personal property b. Belonging to another 2. That there is unlawful taking 3. That the taking must be with intent to gain, and 4. That there is violence against or intimidation of any person or force upon anything The property taken must be personal property o If real property is occupied or real right is usurped by means of violence against or intimidation of person—the crime is usurpation (Art. 312) Prohibitive articles may be the subject matter of robbery, e.g. opium ―belonging to another‖—the property taken does not belong to the offender o The person from whom the personal property is taken need not be the owner Possession of the property is sufficient Ownership is not necessary o A co-owner or a partner cannot commit robbery or theft with regard to the co-ownership or partnership property The naming of the owner is a matter of essential description of the crime if the crime charged is robbery with homicide in view of the capital punishment attached to the crime o But if the accused is prosecuted only for robbery with intimidation or violence resulting only in Ro-An Salanga (I-A) physical injuries, or robbery by the use of force upon things, the name of the real owner is not essential The taking of the personal property must be unlawful o The unlawful taking of personal property is an essential part of the crime of robbery o Where the taking was lawful and the unlawful misappropriation was subsequent to such taking— the crime is estafa or malversation o The fact that the agents of the authorities, apparently acting in compliance with the law, but really with intent to obtain unlawful gain, did, with intimidation, seize a forbidden article, constitutes robbery As long as the authorities or their agents have not legally taken charge of the forbidden article, it continues to be private property, and they have acted, not as agents of the authorities in the fulfillment of their duties, but merely as private parties Ownership of the forbidden article passes to the government only after legal seizure thereof Unlawful taking, when complete: a. As to robbery with violence against or intimidation of persons—from the moment the offender gains possession of the thing, even if the culprit has had no opportunity to dispose of the same b. As to robbery with force upon things—the thing must be taken out of the building because if not, it is only frustrated robbery ―taking‖—depriving the offended party of ownership of the thing taken with the character of permanency o The taking of personal property belonging to another should not be under claim of ownership Intent to gain is presumed from the unlawful taking of personal property o Cannot be established by direct evidence except in case of confession by the accused o Must be deduced from the circumstances surrounding the commission of the offense o Absence of intent to gain will make the taking of personal property grave coercion if there is violence used The element of ―personal property belonging to another‖ and that of ―intent to gain‖ must concur Violence must be against the person of the offended party, not upon the thing taken Intimidation exists when it causes the fear of fright of the victim o Forms of intimidation: threat of arrest and prosecution, or pointing a gun or a knife to the victim o The taking of personal property need not be immediately after the intimidation It is not necessary that violence or intimidation be present from the very beginning Page 60 of 75 Crim 2 Notes (AY 2010-2011) If there is violence or intimidation at any time before asportation is complete, the taking of personal property is qualified to robbery Exception: but when the violence results in a. Homicide b. Rape c. Intentional mutilation, or d. Any of the serious physical injuries penalized in paragraphs 1 and 2 of Art. 263 The taking of personal property is robbery complexed with any of those crimes under Art. 294, even if the taking was already complete when the violence was used by the offender o In defining the special complex crimes penalized in pars. 1, 2 & 3 of Art. 294, the phrase ―by reason‖ or ―accompanied by‖ is used, which indicates that even if the violence resulting in homicide, rape, intentional mutilation, or serious physical injuries is used by the offender after the taking of personal property belonging to another, the crime is still robbery complexed with any of those crimes ―using force upon anything‖—to enter a house or building o The use of force upon things will not make the taking of personal property robbery, if the culprit never entered a house or building o Entrance into the building must be effected by any of the means described in Arts. 299 and 302 Violence against or Use of force upon things intimidation of person If present, there is always There is robbery only if it is robbery used either to enter the building or to break doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle inside the building or to force them open outside after taking the same from the building The value of the personal property taken is immaterial The penalty depends If committed in an a. On the result of the inhabited house, public violence used, as when building or edifice devoted homicide, rape, to religious worship, the intentional mutilation penalty depends on or any of the serious a. The value of the physical injuries property taken, and resulted, or when less b. Whether or not the serious or slight offenders carry arms physical injuries were If committed in an inflicted uninhabited building, the b. Existence of penalty is based on the intimidation only value of the property taken Where robbery, though committed in an inhabited place, etc., is characterized by intimidation, this factor o Ro-An Salanga (I-A) ―supplies the controlling qualification,‖ so the law to apply is Art. 294 (robbery with violence against or intimidation of persons) RA 6539 ―Carnapping‖ o The taking, with the intent to gain, of motor vehicle belonging to another without the latter’s consent, or by means of violence against or intimidation of persons, or by using force upon things Section 1: Robbery with violence or intimidation of persons 294. Robbery with violence against or intimidation of persons—Penalties. Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed; or when robbery shall have been accompanied by rape or intentional mutilation or arson 2. The penalty of reclusion temporal in its medium period to reclusion perpetua, when by reason or on occasion of such robbery, any of the physical injuries penalized in subdivision 1 of Art. 263 shall have been inflicted 3. The penalty of reclusion temporal, when by reason or on occasion of the robbery, any of the physical injuries penalized in subdivision 2 of the Art. 263, shall have been inflicted 4. The penalty of prision mayor in its maximum period to reclusion temporal in its medium period, if the violence or intimidation employed in the commission of the robbery shall have been carried to a degree clearly unnecessary for the commission of the crime, or when in the course of its execution, the offender shall have inflicted upon any person not responsible for its commission any of the physical injuries covered by subdivision 3 and 4 of said Art. 263 5. The penalty of prision correccional in its maximum period to prision mayor in its medium period in other cases. Acts punished as robbery with violence against or intimidation of persons: 1. when by reason or on occasion of the robbery, the crime of homicide is committed; 2. when robbery is accompanied by rape or intentional mutilation or arson 3. when by reason or on occasion of such robbery, any of the physical injuries resulting in insanity, imbecility, impotency or blindness is inflicted 4. when by reason or on occasion of such robbery, any of the physical injuries resulting in the loss of the use of speech or the power to hear or to smell, or Page 61 of 75 Crim 2 Notes (AY 2010-2011) the loss of an eye, a hand, a foot, an arm, or a leg or the loss of the use of any such member or incapacity for the work in which the injured person is theretofore habitually engaged is inflicted 5. if the violence or intimidation employed in the commission of the robbery is carried to a degree clearly unnecessary for the commission of the crime 6. when in the course of its execution, the offender shall have inflicted upon any person not responsible for the commission of the robbery any of the physical injuries in consequence of which the person injured becomes deformed or loses any other member of his body or loses the use thereof or becomes ill or incapacitated for the performance of the work in which he is habitually engaged for more than 90 days or the person injured becomes ill or incapacitated for labor for more than 30 days 7. if the violence employed by the offender does not cause any of the serious physical injuries defined in Art. 263, or if the offender employs intimidation only The crime defined in this article is a special complex crime o Art. 48 does not apply to the crimes covered by Art. 294 because it only applies when a complex crime is not punished with a specific penalty ―on the occasion‖—in the course of robbery ―by reason‖—because of the robbery A conviction for robbery with homicide requires certitude that the robbery was the main purpose and objective of the criminals and that the killing was merely incidental, resulting merely by reason or on the occasion of the robbery o Where the original design comprehends robbery, even though homicide precedes robbery by an appreciable time, the offense is the crime of robbery with homicide Robbery with homicide arises only when there is a direct relation, an intimate connection, between the robbery and the killing, even if the killing is prior to, concurrent with, or subsequent to the robbery PARAGRAPH 1: ROBBERY WITH HOMICIDE o Homicide—understood in its generic sense as to include parricide and murder o The juridical concept of robbery with homicide does not limit the taking of life to one single victim or to ordinary homicide All homicides or murders are merged in the composite crime of robbery with homicide o All other aggravating circumstances present will be considered as generic aggravating circumstances except for physical injuries where it is absorbed o There is no special complex crime of: a. Robbery in band with double homicide and/or serious, less serious or slight physical injuries b. Robbery with murder o This need not be committed inside a building An intent to take personal property belonging to another with intent to gain must precede the killing o Homicide may precede robbery or may occur after robbery when there is an intent to take personal property before the killing o It is still robbery with homicide a. when homicide is committed to eliminate an obstacle to the commission of robbery b. when homicide is committed to remove opposition or to suppress evidence c. when homicide is necessary to defend possession of stolen goods d. when homicide is committed to escape after the commission of robbery e. when another robber is killed by his companion f. when an innocent bystander and not the person robbed is killed g. if the death of the person supervened by mere accident o The Spanish text provides that it is enough that a homicide resulted, and not actually committed, by reason or on the occasion of the robbery o When homicide is not proved, the crime is only robbery o When robbery is not proved, the crime is homicide only o All who participated in the robbery as principals are principals in robbery with homicide o Conviction for highway robbery requires proof that several accused were organized for the purpose of committing it indiscriminately PARAGRAPH 2: ROBBERY WITH RAPE o The intent to gain and to take the personal property belonging to another must precede the rape o It is not necessary that the rape be committed prior to or simultaneously with the robbery but if rape is committed against a woman in a house other than that where the robbery is committed, the rape should be considered a separate offense o Even when rape is committed in another place, it is still robbery o There is no crime of robbery with attempted rape o Additional rapes committed on the same occasion of robbery will not increase the penalty o When the taking of property after the rape is not with intent to gain, there is neither theft nor robbery committed, but 2 distinct crimes of rape and unjust vexation o In robbery with rape, the accused should pay the offended party the value of stolen property and indemnify the offended woman for damages The civil liability is set at P50 000 o When rape and homicide co-exist in the commission of robbery, rape will only be considered as an aggravating circumstance making the crime committed as robbery with homicide o Page 62 of 75 Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) When physical injuries, defined in Art. 263, 3 and 4, are inflicted after the taking of the personal property had been complete, the serious physical injuries should be considered as separate offense for it should be committed ―in the course of its execution‖ Requisites of robbery under the 2nd case of par. 4 of Art. 294 a. That any of the physical injuries defined in par. 3 and 4 of Art. 263 was inflicted in the course of the robbery, and b. That any of them was inflicted upon any person not responsible for the commission of the robbery Robbery with the use of violence against or intimidation of any person under par. 5 of Art. 294 is known as simple as robbery o This is also committed when the injury inflicted upon the offended party on the occasion of robbery can be qualified only as less serious physical injuries or slight physical injuries Violation or intimidation need not be present before or at the exact moment when the object is taken o Because asportation is a complex fact, a whole divisible into parts, a series of acts, in the course of which personal violence or intimidation may be injected Robbery with violence or intimidation ―in other cases‖ referred to in par. 5 is committed by: 1. Snatching money from the hands of the victim and pushing her to prevent her from recovering the seized property Absent of one element will not result in robbery but only simple theft 2. Grabbing pawn ticket from the hands of another and intimidating him Intimidation exists when the acts executed or words uttered by the offender are capable of producing fear in the person threatened Robbery thru Threats to extort money intimidation There is intimidation by the offender There is intent to gain Intimidation is actual and Intimidation is conditional immediate or future that is not immediate Intimidation is personal It may be through intermediary Intimidation is directed to Intimidation may refer to the person of the victim the person, honor or property of the offended party or that if his family Gain of the culprit is Gain is not immediate immediate Robbery with violence Grave coercion There is violence used by the offender There is intent to gain Intent to gain is not present Purpose is to compel another to do something against his will, without authority of law, but believing himself to be the owner or creditor of such property Robbery Transaction is neither voluntary or mutual but is consummated by the use of force or intimidation Victim did not commit a crime Victim is deprived of his money or property by force or intimidation Bribery Transaction is mutual and voluntary Victim has committed a crime and gives money or gift to avoid arrest or prosecution Victim parts with his money or property voluntarily 295. Robbery with physical injuries, committed in an uninhabited place and by a band, or with the use of firearm on a street, road or alley. If the offenses mentioned in subdivisions 3, 4, and 5 of the next preceding article shall have been committed in an uninhabited place or by a band or by attacking a moving train, street car, motor vehicle or airship, or by entering the passengers’ compartments in a train or, in any manner, taking the passengers thereof by surprise in the respective conveyances, or on a street, road, highway, or alley, and the intimidation is made with the use of a firearm, the offender shall be punished by the maximum period of the proper penalties. Robbery with violence or intimidation when qualified: o If any of the offenses defined in subdivisions 3, 4 and 5 of Art. 294 is committed— a. In an uninhabited place b. By a band c. By attacking a moving train, street car, motor vehicle or airship d. By entering the passengers’ compartments in a train or, in any manner, taking the passengers thereof by surprise in the respective conveyances e. on a street, road, highway, or alley, and the intimidation is made with the use of a firearm, the offender shall be punished by the maximum period of the proper penalties prescribed in Art. 294 Any of these qualifying circumstances must be alleged in the information and proved during the trial It cannot be offset by a generic mitigating circumstance Page 63 of 75 Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) The intimidation with the use of firearm qualifies only robbery on a street, road, highway or alley Art. 295 does not apply to: a. Robbery with homicide b. Robbery with rape c. Robbery with serious physical injuries under par. 1 of Art. 263 296. Definition of a band and penalty incurred by the members thereof. When more than 3 armed malefactors take part in the commission of a robbery, it shall be deemed to have been committed by a band. When any of the arms used in the commission of the offense be an unlicensed firearm, the penalty to be imposed upon all the malefactors shall be the maximum period of the corresponding penalty provided by law, without prejudice to the criminal liability for illegal possession of such unlicensed firearm. Any member of a band who is present at the commission of a robbery by the band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the same. Outline of the provision: 1. When at least 4 armed malefactors take part in the commission of a robbery, it is deemed committed by a band 2. When any of the arms used in the commission of robbery is not licensed, the penalty upon all malefactors shall be the maximum of the corresponding penalty provided by law, without prejudice to the criminal liability for illegal possession of such firearms 3. Any member of a band who was present at the commission of a robbery by the band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the same Requisites for liability for the acts of the other members of the band: (when the following concur) 1. That he was a member of the band 2. That he was present at the commission of a robbery by that band 3. That the other members of the band committed an assault 4. That he did not attempt to prevent the assault o There must be proof that he made an endeavor to prevent the assault committed by another member of the band, in order that he may not be held liable for such assault ―clubs‖—are arms which, in the hands of the members of a band may be as dangerous to the life of one who would resist the depredations of the band as are revolvers or bolos. When the robbery was not committed by a band, the robber who did not take part in the assault (or any other crime) by another is not liable for that assault (or other crime) but only for the robbery committed o ―by a band‖—at least 4 armed malefactors taking part in the commission of robbery When there is conspiracy to commit homicide and robbery, all the conspirators, even if less than 4 armed men, are liable for the special complex crime of robbery with homicide o Proof of conspiracy is not necessary when 4 or more armed persons committed robbery ―any member of a band who is present at the commission of a robbery by a band‖ o A principal by inducement, who did not go with the band at the place of the commission of robbery, is not liable for robbery with homicide, but only for robbery in band, there being no evidence that he gave instructions to kill the victim or intended that this should be done There is no complex crime of: o Robbery with homicide in band o Robbery in band with multiple rape Rape is not considered ―any of the assaults committed by the band‖ to make liable all the members of the band, when only one member raped a woman without the knowledge of his other companions RA 8294 considers the use of an unlicensed firearm in murder or homicide merely as special aggravating circumstance, and not a separate crime o The special aggravating circumstance of use of unlicensed firearm is not applicable to robbery with homicide committed by a band robbery with rape or intentional mutilation robbery with physical injuries defined in subdivision 1 of Art. 253 297. Attempted and frustrated robbery committed under certain circumstances. When by reason or on occasion of an attempted or frustrated robbery a homicide is committed, the person guilty of such offense shall be punished by reclusion temporal in its maximum period to reclusion perpetua, unless the homicide committed shall deserve a higher penalty under the provisions of this Code. The term ―homicide‖ is used in a generic sense o Hence, it includes multiple homicides, murder, parricide or infanticide The penalty is the same whether the robbery is attempted or frustrated as long as homicide is committed by reason or on occasion of such ―unless the homicide committed shall deserve a higher penalty‖—if the killing, on the occasion of or by reason of robbery, is qualified by treachery or relationship Page 64 of 75 Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) For attempted robbery with homicide, there should be an overt act which would lead to the commission of robbery, but robbery was not committed, despite the consummation of homicide o But if there is no overt act of robbery and homicide is committed, the crime is only homicide This article is also applicable to attempted robbery with homicide by a band General Rule: robbery with homicide and attempted or frustrated robbery with homicide are not covered by Art. 48 because they are special complex crime having their own penalties o Exception: when the offense committed is attempted or frustrated robbery with serious physical injuries or when the offense is robbery with frustrated homicide where the penalty for frustrated homicide will be imposed There is only one crime of attempted robbery with homicide even if slight physical injuries were inflicted on other persons on the occasion or by reason of the robbery 298. Execution of deeds by means of violence or intimidation. Any person who, with intent to defraud another, by means of violence or intimidation, shall compel him to sign, execute, or deliver any public instrument or document, shall be held guilty of robbery and punished by the penalties respectively prescribed in this Chapter. Elements: 1. That the offender has intent to defraud another 2. That the offender compels him to sign, execute, or deliver any public instrument or document 3. That the compulsion is by means of violence or intimidation The adjective ―public‖ must only describe the word instrument, hence, this article applies even if the document signed, executed or delivered is a private or commercial document This article is not applicable if the document is void The difference between this article and that of grave coercion is that there is not intent to gain in the latter Section 2: Robbery by the use of force upon things Robbery by the use of force upon things is committed only when either 1. The offender entered a house or building by any of the means specified in Art. 299 or Art. 302 2. Even if there is no entrance by any of those means, he broke a wardrobe, chest, or any other kind of locked or sealed furniture or receptacle inside the building, or he took it away to be broken or forced open outside 2 kinds of robbery with force upon things: Ro-An Salanga (I-A) 1. Robbery in an inhabited house or public building or edifice devoted to religious worship (Art. 299) 2. Robbery in an uninhabited place or in a private building (Art. 302) Essential requisite: the malefactor should enter the building or dependency where the object to be taken is found 299. Robbery in an inhabited house or public building or edifice devoted to worship. Any armed person who shall commit robbery in an inhabited house or public building or edifice devoted to religious worship, shall be punished by reclusion temporal, if the value of the property taken shall exceed 250 pesos, and if— A. The malefactors shall enter the house or building in which the robbery is committed, by any of the following means: 1. Through an opening not intended for entrance or egress 2. By breaking any wall, roof, or floor or breaking any door or window 3. By using false keys, picklocks or similar tools 4. By using any fictitious name or pretending the exercise of public authority Or if— B. The robbery be committed under any of the following circumstances: 1. By breaking of doors, wardrobes, chests or any other kind of locked or sealed furniture or receptacle 2. By taking such furniture or objects away to be broken or forced open outside the place of the robbery When the offenders do not carry arms and the value of the property taken exceeds 250 pesos, the penalty next lower in degree shall be imposed. The same rule shall be applied when the offenders are armed, but the value of the property taken does not exceed 250 pesos. When said offenders do not carry arms and the value taken does not exceed 250 pesos, they shall suffer the penalty prescribed in the two next preceding paragraphs, in its minimum period. If the robbery be committed in one of the dependencies of an inhabited house, public building, or building dedicated to religious worship, the penalties next lower in degree than those prescribed in this article shall be imposed. Elements: (subsection A) 1. That the offender entered a. An inhabited place, or b. Public building, or c. Edifice devoted to religious worship Page 65 of 75 Crim 2 Notes (AY 2010-2011) 2. That the entrance was effected by any of the following means: a. Through an opening not intended for entrance or egress b. By breaking any wall, roof, or floor or breaking any door or window c. By using false keys, picklocks or similar tools d. By using any fictitious name or pretending the exercise of public authority 3. That once inside the building, the offender took personal property belonging to another with intent to gain The offender must ―enter the house or building in which the robbery is committed‖ o The whole body of culprit must be inside the building to constitute entering o There must be evidence or the facts must show that the accused entered the dwelling house or building by any of the means enumerated in subdivision (a) o Thus, where the manner of entrance into the house was not proven, the crime is theft and not robbery Inhabited house—any shelter, ship or vessel, constituting the dwelling of one or more persons even though the inhabitants thereof are temporarily absent therefrom when the robbery is committed Public building—every building owned by the Government or belonging to a private person but used or rented by the Government, although temporarily unoccupied by the same o What makes a building public is not its inauguration for the purpose intended, but the fact of the State or any of its agencies having the title thereto ―breaking‖—means of entering the building o The force used in this means must be actual, as distinguished from that in the other means which is only constructive force The wall broken must be an outside wall, not a wall between rooms in a house or building, because the breaking of the wall must be for the purpose of entering the house or building where the robbery is committed o But if a room is occupied by a person as his separate dwelling, the breaking of its inside wall may give rise to robbery ―door‖—refers to an outside door; it can be no other than the main or back door which must first be opened to effect entrance by that means There must be an actual breaking or smashing in opening the door o Where the door itself is intact, and the accused entered the store by removing the hinges or hooks to which the padlocks were attached, as well as the lock of the door knob, the crime committed was simple theft False keys—genuine keys stolen from the owner or any keys other than those intended by the owner for use in the lock forcibly opened by the offender The genuine key must be stolen, not taken by force or with intimidation, from the owner o The use of false key or picklock refers to the mode of entering the house or building and not to the method of opening a trunk in the house or to the method of opening the drawer of the cabinet Picklocks or similar tools—specially adopted to the commission of the crime of robbery The use of a fictitious name or the act pretending to exercise authority must be to enter the building Elements: (subdivision B) 1. That the offender is inside a dwelling house, public building, or edifice devoted to religious worship, regardless of the circumstances under which he entered it 2. That the offender takes personal property belonging to another, with intent to gain, under any of the following circumstances: a. By the breaking of doors, wardrobes, chests or any other kind of locked or sealed furniture or receptacle b. By taking such furniture or objects away to be broken or forced open outside the place of the robbery To commit the robbery defined in subdivision B, it is not necessary that the offender should have entered the building by any of the means mentioned in subdivision A The term ―door‖ here in subdivision B refers only to ―doors, lids or opening sheets‖ of furniture or other portable receptacles Breaking the keyhole of the door of a wardrobe, which is locked, is breaking a locked furniture ―to be broken or forced open outside‖—only indicates the objective element of the offense o When sealed box or receptacle is taken out of the house or building for the purpose of breaking it outside, it is not necessary that it is actually opened It is estafa or theft, if the locked or sealed receptacle is not forced open in the building where it is kept or taken therefrom to be broken outside A bolo is not an arm when used by a servant to open a trunk in his master’s house Arm carried must not be used to intimidate for the reason that once the circumstance of intimidation enters in the commission of the crime, it will place the offense under Art. 294 The liability for carrying arms while robbing an inhabited house is extended to each of the offenders who take part in the robbery, even if some of them do not carry arms o 300. Robbery in an uninhabited place and by a band. The robbery mentioned in the next preceding article, if committed in an uninhabited place and by a band, shall Page 66 of 75 Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) be punished by the maximum period of the penalty provided therefor. The 2 qualifications, uninhabited place and by a band, must concur to qualify the offense of robbery The inhabited house, public building, or edifice devoted to religious worship must be located in an uninhabited place To be qualified, Robbery with force upon Robbery with violence things (Art. 299) against or intimidation of persons (Art. 295) Committed in an Committed in an uninhabited place and by a uninhabited place or by a band band 301. What is an inhabited house, public building, or building dedicated to religious worship and their dependencies. Inhabited house means any shelter, ship or vessel constituting the dwelling of one or more persons, even though the inhabitants thereof shall temporarily be absent therefrom when the robbery is committed. All interior courts, corrals, warehouses, granaries, barns, coachhouses, stables, or other departments, or enclosed places contiguous to the building or edifice, having an interior entrance connected therewith and which form part of the whole, shall be deemed dependencies of an inhabited house, public building, or building dedicated to religious worship. Orchards and other lands used for cultivation or production are not included in the terms of the next preceding paragraph, even if closed, contiguous to the building, and having direct connection therewith. The term “public building” includes every building owned by the Government or belonging to a private person but used or rented by the Government, although temporarily unoccupied by the same. A sunken ship is included in the term ―ship‖ The place is still inhabited house even if the occupant was absent 3 requisites that must concur to be considered as dependency: 1. Must be contiguous to the building 2. Must have an interior entrance connected therewith 3. Must form part of the whole 302. Robbery in an uninhabited place or in a private building. Any robbery committed in an uninhabited place or in a building other than those mentioned in the 1st par. of Art. 299, if the value of the property taken exceeds P250.00 shall be punished by prision correccional in its medium and maximum periods, Ro-An Salanga (I-A) provided that any of the following circumstances is present: 1. If the entrance has been effected through any opening not intended for entrance or egress 2. If any wall, roof, floor, or outside door or window has been broken 3. If the entrance has been effected through the use of false keys, picklocks, or other similar tools 4. If any door, wardrobe, chest, or any sealed or closed furniture or receptacle has been broken 5. If any closed or sealed receptacle, as mentioned in the preceding paragraph, has been removed, even if the same be broken open elsewhere When the value of the property taken does not exceed P250.00, the penalty next lower in degree shall be imposed. In the cases specified in Arts. 294, 295, 297, 299, 300 and 302 of this Code, when the property taken is mail matter or large cattle, the offender shall suffer the penalties next higher in degree that those provided in said articles. Elements: 1. That the offender entered an uninhabited place or a building which was not a dwelling house, not a public building, or not an edifice devoted to religious worship 2. That any of the following circumstances (enumerated above) was present: 3. That with intent to gain, the offender took therefrom personal property belonging to another ―building‖—any kind of structure used for storage or safekeeping of personal property such as freight car and warehouse Pars. Nos. 4 & 5 do not require that the offender must have entered the uninhabited building through Pars. Nos. 1, 2 & 3 The un-nailing of a piece of cloth which was nailed over the door so as to seal it, the customary manner of sealing a freight car, is held to be breaking by force Breaking of padlock is use of force upon things Receptacle—a container Motor vehicle, coconuts in the plantation, and fish in the fishpond are not included in Art. 302 Penalty is based only on value of property taken Robbery committed under Robbery committed under Art. 299 Art. 302 If the store is used as a If the store was not actually dwelling of one or more occupied at the time of the persons robbery and was not used as a dwelling If the store is a dependency of an inhabited place Crim 2 Notes (AY 2010-2011) Page 67 of 75 303. Robbery of cereals, fruits, or firewood in an uninhabited place or private building. In the cases enumerated in Arts. 299 and 302, when the robbery consists in the taking of cereals, fruits, or firewood, the culprit shall suffer the penalty next lower in degree than that prescribed in said articles. ―cereals‖—seedlings which are the immediate product of the soil Palay is cereal and is included in the term ―semilla alimenticia‖ used in the Spanish text o The palay must be kept by the owner as seedling or taken for that purpose by the robber 304. Possession of picklocks or similar tools. Any person who shall, without lawful cause, have in his possession picklocks or similar tools especially adopted to the commission of the crime of robbery, shall be punished by arresto mayor in its maximum period to prision correccional in its minimum period. The same penalty shall be imposed upon any person who shall make such tools. If the offender be a locksmith, he shall suffer the penalty of prision correccional in its medium and maximum periods. Elements of illegal possession of picklocks or similar tools: 1. That the offender has in his possession picklocks or similar tools 2. That such picklocks or similar tools are specially adopted to the commission of robbery 3. That the offender does not have lawful cause for such possession Actual use of picklocks or similar tools is not necessary 305. False keys. The term “false keys” shall be deemed to include: 1. The tools mentioned in the next preceding articles 2. Genuine keys stolen from the owner 3. Any keys other than those intended by the owner for use in the lock forcibly opened by the offender Possession of false keys in pars. 2 and 3 are not punishable Chapter 9: MALICIOUS MISCHIEF Malicious mischief—the willful damaging of another’s property for the sake of causing damage due to hate, revenge or other evil motive Crimes classified as malicious mischief: 1. Special cases of malicious mischief (Art. 328) 2. Other mischiefs (Art. 329) 3. Damage and obstruction to means of communication (Art. 330) Ro-An Salanga (I-A) 4. Destroying or damaging statues, public monuments or paintings (Art. 331) 327. Who are liable for malicious mischief—: Any person who shall deliberately cause to the property of another any damage not falling within the terms of the next preceding chapter, shall be guilty of malicious mischief. Elements: 1. That the offender deliberately caused damage to the property of another 2. That such act does not constitute arson or other crimes involving destruction 3. That the act of damaging another’s property be committed merely for the sake of damaging it The 3rd element presupposes that the offender acted due to hate, revenge or other evil motive ―shall deliberately cause to the property of another any damage‖—offender should act under impulse of a specific desire to inflict injury to another o Malicious mischief cannot be committed through negligence, since culpa and malice are essentially incompatible Malicious mischief embraces not only those which are inspired by hatred or revenge but also by mere pleasure of destroying If there is no malice in causing the damage, there is only civil liability Damage—not only loss but also diminution of what is a man’s own If intent to gain is present, the crime committed is theft and not malicious mischief The damaging of property must not result from crime such as when a robber breaks a window A person charged with malicious mischief may be found guilty of damage to property through reckless imprudence since reckless imprudence is not a crime in itself but only a way of committing it 328. Special cases of malicious mischief—: Any person who shall cause damage to obstruct the performance of public functions, or using any poisonous or corrosive substance; or spreading any infection or contagion among cattle; or who causes damage to the property of the National Museum or National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used in common by the public shall be punished: 1. By prision correccional in its minimum and medium periods, if the value of the damage caused exceeds 1000pesos 2. By arresto mayor if such value does not exceed the above-mentioned amount but is over 200pesos; and Page 68 of 75 Crim 2 Notes (AY 2010-2011) 3. By arresto menor if such value does not exceed 200 pesos Special cases of malicious mischief: (also called as Qualified Malicious Mischief) 1. Causing damage to obstruct the performance of public functions 2. Using any poisonous or corrosive substance 3. Spreading any infection or contagion among cattle 4. Causing damage to the property of the National Museum or National library, or to any archive or registry, waterworks, road, promenade, or any other thing used in common by the public Causing damage to obstruct Sedition the performance of public functions Public and tumultuous Public and tumultuous uprising is not present uprising is present There is intent to obstruct the performance of public functions 329. Other mischiefs—: The mischiefs not included in the next preceding article shall be punished: 1. By arrestor mayor in its medium and maximum periods, if the value of the damage caused exceeds 1000pesos 2. By arresto mayor in its minimum and medium periods if such value is over 200pesos but does not exceed 1000pesos 3. By arresto menor or fine of not less than the value of the damage caused and not more than 200pesos, if the amount involved does not exceed 200pesos or cannot be estimated Mischiefs not included in Art. 328 are punished according to the value of the damage caused Examples of other mischiefs: o A servant who released a bird from the cage as an act of hate against its owner o Scattering human excrement in public building 330. Damage and obstruction to means of communication—: The penalty of prision correccional in its medium and maximum periods shall be imposed upon any person who shall damage any railway, telegraph or telephone lines. If the damage shall result in any derailment of cars, collision, or other accident, the penalty of prision mayor shall be imposed, without prejudice to the criminal liability of the offender for the other consequences of his criminal act. For the purpose of the provisions of this article, the electric wires, traction cables, signal system, and other things pertaining to railways, shall be deemed to constitute an integral part of a railway system. Ro-An Salanga (I-A) ―if the damage shall result in any derailment of cars, collision, or other accident‖—such should not have been purposely sought for by the offender The rails should not be removed from a railway track to cause destruction, if so, the act is punishable under Art. 324 ―telegraph or telephone lines‖—it must pertain to a railway system, if it doesn’t, it is not punishable under this Act When person or persons are killed o If there is no intent to kill—damages to means of communication with homicide o If there is intent to kill—murder where damages to means of communication is a means to accomplish the criminal purpose 331. Destroying or damaging statutes, public monuments, or paintings—: Any person who shall destroy or damage statues or any other useful or ornamental public monuments, shall suffer the penalty of arresto mayor in its medium period to prision correccional in its minimum period. Any person who shall destroy or damage any useful or ornamental painting of a public nature shall suffer the penalty of arresto menor or a fine not exceeding 200pesos, or both such fine and imprisonement, in the discretion of the court. Chapter 10: EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY 332. Persons exempt from criminal liability—: No criminal, but only civil liability shall result from the commission of the crime of theft, swindling, or malicious mischief committed or caused mutually by the following persons: 1. Spouses, ascendants and descendants, or relatives by affinity in the same line 2. The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another, and 3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together The exemption established by this article shall not be applicable to strangers participating in the commission of the crime. Crimes involved in the exemption: (in their general sense and not when complexed) 1. Theft 2. Swindling (estafa) 3. Malicious mischief Crim 2 Notes (AY 2010-2011) Page 69 of 75 This article is only applicable when the offender and the offended party are relatives and where their relationship is any of those mentioned Reason: the law recognizes the presumed coownership of the property between the offender and the offended party ―Ascendants by affinity‖—stepfather and stepmother are included ―Descendants‖—adopted or natural child are also included ―Spouses‖—concubine or paramour is included For the widowed spouse who commits theft, estafa or malicious mischief with respect to property of deceased, to be exempt, it is required that: 1. The property belongs to the deceased spouse, and 2. It has not passed into the possession of a third person Title 11: CRIMES AGAINST CHASTITY Crimes against Chastity: 1. Adultery (Art. 333) 2. Concubinage (Art. 334) 3. Acts of lasciviousness (Art. 336) 4. Qualified seduction (Art. 337) 5. Simple seduction (Art. 338) 6. Acts of lasciviousness with the consent of the offended party (Art. 339) 7. Corruption of minors (Art. 340) 8. White slave trade (Art. 341) 9. Forcible abduction (Art. 342) 10. Consented abduction (Art. 343) Chapter 1: ADULTERY AND CONCUBINAGE 333. Who are guilty of adultery—: Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void. Adultery shall be punished by prision correccional in its medium and maximum periods. If the person guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed. Elements: 1. That the woman is married 2. That she has sexual intercourse with a man not her husband 3. That as regards the man with whom she has sexual intercourse, he must know her to be married Presumption of marriage: Ro-An Salanga (I-A) A man and a woman lived as husband and wife and none of them denied or contradicted it o Declaration of the husband o Testimony of a witness who was present at the time of the marriage between the parties The offended party, who initiates the adultery case, must be legally married to the offender at the time of the criminal case or before the adultery proceedings are commenced Adultery can still be committed even if the marriage be subsequently declared void Carnal knowledge may be proved by circumstantial and corroborative evidence o Direct proof of carnal knowledge is not necessary o But this kind of evidence is not sufficient for the application of Art. 247 which requires surprising the spouse in the act of sexual intercourse with another person Each sexual intercourse constitutes a crime of adultery o The crime of adultery is an instantaneous crime which is consummated and completed at the moment of the carnal union o Adultery, therefore, is not a continuing offense Essence of the crime: violation of marital vow Gist of the crime: the danger of introducing spurious heirs into the family, where the rights of the real heirs may be impaired and a man may be charged with the maintenance of a family not his own Mitigating circumstances: (both defendants are entitled to this) o If the person guilty of adultery committed the offense while being abandoned without justification by the offended spouse o A woman’s responsibility arising from her act of giving herself up to the man who had lent her a helping hand during such time of want and need should be considered mitigated two-fold by sheer necessity Acquittal of one of the defendants does not operate as a cause for acquittal of the other o Reasons: a. There may not be a joint criminal intent, although there is joint physical act b. One of the parties may be insane and the other sane c. A man may not know that the woman is married d. Death of the woman during pendency of the action cannot defeat the trial and conviction of the man e. Even if the man had left the country and could not be apprehended, the woman can be tried and convicted Effects of Death o Death of paramour will not bar prosecution against the unfaithful wife o Death of the offended party—proceedings will continue o Page 70 of 75 Crim 2 Notes (AY 2010-2011) But if he died before a complaint could be filed, the case cannot go on Effect of pardon: Art. 344 requires that— 1. Pardon must come before the institution of the criminal prosecution, and 2. Both the offenders must be pardoned by the offended party Act of intercourse, between the offending spouse and the offended spouse, subsequent to adulterous conduct is an implied pardon Effect of consent—a charge of adultery must be dismissed o Agreement to separate may bar the offended spouse from instituting criminal complaint Under the law, there is no accomplice in adultery 334. Concubinage—: Any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods. The concubine shall suffer the penalty of destierro. 3 ways of committing the crime of concubinage: 1. By keeping a mistress in the conjugal dwelling 2. By having sexual intercourse, under scandalous circumstances, with a woman who is not his wife 3. By cohabiting with her in any other place Elements: 1. That the man must be married 2. That he committed any of the following acts: a. Keeping a mistress in the conjugal dwelling b. Having sexual intercourse under scandalous circumstances with a woman who is not his wife c. Cohabiting with her in any other place 3. That as regards the woman, she must know him to be married A married man is not liable for concubinage for mere sexual relations with a woman, not his wife, which is not under the mentioned circumstances First way—: o No positive proof of actual intercourse or under a scandalous circumstance is necessary when the man keeps his mistress in the conjugal dwelling o Mistress—a woman taken by the accused into the conjugal dwelling as a concubine o Conjugal dwelling—the home of the husband and wife even if the wife happens to be temporarily absent on any account Second way—: o Scandal—consists in any reprehensible word or deed that offends public conscience, redounds to the detriment of the feelings of honest persons, and gives occasion to the neighbors’ spiritual damage or ruin Ro-An Salanga (I-A) Scandal produced may be in the form of: a. He and his mistress living in the same room of a house b. They appear in public c. Performs acts in sight of the community which give rise to criticism and general protest among the neighbors o ―under scandalous circumstances‖—refers to the act of sexual intercourse which may be proved by circumstantial evidence o The people in the vicinity are the best witnesses to prove scandalous circumstances o When spies are employed and it appearing that none of the people living in the vicinity has observed any suspicious conduct on his part in relation with his co-accused, there is no evidence of scandalous circumstances Third way—: o Mere cohabitation is sufficient o Proof of scandalous circumstances is not necessary o ―Cohabit‖—to dwell together, in the manner of husband and wife, for some period of time o A person who keeps a mistress in an apartment furnished by him is not guilty of concubinage if he does not live or sleep with her in said apartment Reason why adultery is more severely punished than concubinage o Because adultery makes possible the introduction of another man’s blood into the family so that the offended husband may have another man’s son bearing his name and receiving support from him o Chapter 2: RAPE AND ACTS OF LASCIVIOUSNESS 335. When and how rape is committed. [repealed by RA 8353, “Anti-Rape Law of 1997] 336. Acts of lasciviousness—: Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional. Elements: 1. That the offender commits any act of lasciviousness of lewdness 2. That the act of lasciviousness is committed against a person of either sex 3. That it is done under any of the following circumstances: a. By using force or intimidation b. When the offended party is deprived of reason or otherwise unconscious c. By means of fraudulent machination or grave abuse of authority d. When the offended party is under 12 years of age or is demented Lewd—obscene, lustful, indecent, lecherous Page 71 of 75 Crim 2 Notes (AY 2010-2011) What constitutes lewd or lascivious conduct must be determined from the circumstance s of each case The motive of lascivious acts is not important because the essence of lewdness is in the very act itself Examples of acts of lasciviousness: o Compelling a girl to dance naked before men even if the dominant motive is revenge for her failure to pay a debt o Embracing, kissing and holding girl’s breast against her will when prompted by lust or lewd designs If there is absence of lewd designs, it is only unjust vexation Lover’s embraces and kisses are not acts of lasciviousness o Placing a man’s private parts over a girl’s genital organ is an act of lasciviousness Moral compulsion amounting to intimidation is sufficient Abuses against chastity Offenses against chastity (Art. 246) Committed by a public Committed by, in majority officer of cases, private individual A mere immoral or Not necessary that some indecent proposal made actual act of lasciviousness earnestly and persistently is should have been executed sufficient by the offender o Attempted rape Acts of Lasciviousness The lascivious acts are The lascivious acts are the preparatory acts to the final objective sought by the commission of rape offender There is clear indication that the purpose was to lie with the offended woman While committing an act amounting to attempted rape, the offender desisted but acts of lasciviousness were already committed, the offender will be liable under Art. 336 There are no frustrated and attempted acts of lasciviousness Acts of lasciviousness Lewd design must be present Committed by any of the 4 circumstances Unjust vexation Lewd design is not present Usually not accompanied by force or intimidation 337. Qualified seduction—: The seduction of a virgin over 12 years and under 18 years of age, committed by any person in public authority, priest, house servant, domestic, guardian, teacher, or any person who, in any capacity, shall be entrusted with the education or custody of the woman seduced, shall be punished by prision correccional in its minimum and medium periods. The penalty next higher in degree shall be imposed upon any person who shall seduce his sister or descendant, whether or not she be a virgin or over 18 years of age. Under the provisions of this Chapter, seduction is committed when the offender has carnal knowledge of any of the persons and under the circumstances described herein. 2 classes of qualified seduction: 1. Seduction of a virgin over 12 years and under 18 years of age by certain persons, such as, a person in authority, priest, teacher, etc. 2. Seduction of a sister by her brother, or descendant by her ascendant, regardless of her age or reputation Elements of qualified seduction of a virgin: 1. That the offended party is a virgin, which is presumed if she is unmarried and of a good reputation 2. That she must be over 12 and under 18 years of age 3. That the offender has sexual intercourse with her 4. That there is abuse of authority, confidence or relationship on the part of the offender If the woman is married and the offender knows it, having sexual intercourse with her is adultery If the victim is less than 12 years of age, the crime is rape If the victim is over 18 years of age, qualified seduction is not committed o If there was no force or intimidation, or the woman is not unconscious or otherwise deprived of reason, there is no crime at all ―virginity‖—must not be understood in so material a sense as to exclude the idea of abduction of a virtuous woman of good reputation Offenders in qualified seduction: 1. Those who abused their authority a. Person in public authority b. Guardian c. Teacher d. Person who, in any capacity, is entrusted with the education or custody of the woman seduced 2. Those who abused confidence reposed in them a. Priest b. House servant c. Domestic 3. Those who abused their relationship a. Brother who seduced his sister Page 72 of 75 Chapter 3: SEDUCTION, CORRUPTION OF MINORS, AND WHITE SLAVE TRADE Seduction—enticing a woman to unlawful sexual intercourse by promise of marriage or other means of persuasion without the use of force Kinds of seduction: 1. Qualified seduction (Art. 337) 2. Simple seduction (Art. 338) Ro-An Salanga (I-A) Crim 2 Notes (AY 2010-2011) b. Ascendant who seduced his descendant Not an element of qualified seduction: o Deceit o Consent of the girl Examples of qualified seduction: o Qualified seduction by a teacher even when the teacher is not in charge of the education and instruction of the offended party so long as he is a teacher in the same school o Qualified seduction by the master against a servant o Qualified seduction by head of the family against the cousin of his wife who is living with them o Qualified seduction by a servant against his master’s daughter o Qualified seduction by seducing a sister or descendant Considered as incest Relationship must be by consanguinity but need not be legitimate ―domestic‖—a person usually living under the same roof, pertaining to the same house o All persons residing with the family and who are members of the same household, regardless of the fact that their residence may only be temporary or that they may be paying for their board and lodging If any of the circumstances in the crime of rape is present, then the crime is punished under Rape The accused charged with rape cannot be convicted of qualified seduction under the same information Purpose: to punish the seducer, who by means of promise of marriage, destroys the chastity of an unmarried female of previous chaste character 338. Simple seduction—: The seduction of a woman who is single or a widow of good reputation, over 12 but under 18 years of age, committed by means of deceit, shall be punished by arresto mayor. Elements: 1. That the offended party is over 12 and under 18 years of age 2. That she must be of good reputation, single or widow 3. That the offender has sexual intercourse with her 4. That it is committed by means of deceit Virginity of the offended party is not required because all that is necessary is she be of good reputation Deceit—generally takes the form of unfulfilled promise of marriage and this promise need not immediately precede the carnal act o Also present in unfulfilled promise of material things o Promise of marriage by a married man is deceit o Promise of marriage after sexual intercourse does not constitute deceit Because the promise of marriage must be the inducement and the woman yield because of such promise Simple seduction is not a continuing offense because one cannot lose her virginity twice Ro-An Salanga (I-A) 339. Acts of lasciviousness with the consent of the offended party—: The penalty of arresto mayor shall be imposed to punish any other acts of lasciviousness committed by the same persons and under the same circumstances as those provided in Arts. 337 and 338. Elements: 1. That the offender commits acts of lasciviousness or lewdness 2. That the acts are committed upon a woman who is virgin or single or widow of good reputation, under 18 years of age but over 12 years, or a sister or descendant regardless of her reputation or age 3. That the offender accomplishes the acts by abuse of authority, confidence, relationship or deceit Males cannot be the offended party in this crime since there is no mention of ―persons of either sex‖ as the offended party ―with the consent of the offended party‖—consent is obtained by abuse of authority, confidence or relationship or by means of deceit Article 336 Article 339 Acts are committed under Acts are committed under circumstances which, had circumstances which, had there been carnal there been carnal knowledge, would amount knowledge, would amount to rape to either qualified or simple seduction 340. Corruption of Minors—: Any person who shall promote or facilitate the prostitution or corruption of persons under age to satisfy the lust of another, shall be punished by prision mayor and if he culprit is a public officer or employee, including those in governmentowned or controlled corporations, he shall also suffer the penalty of temporary absolute disqualification. Habituality or abuse of authority or confidence is not necessary The single act of facilitating the corruption of a minor by, even without abuse of authority or confidence, placing her at another’s disposal for immoral purposes is now a crime It is not necessary that the unchaste acts hall have been done o A mere proposal will consummate the offense o What the law punishes is the act of a pimp who facilitates the corruption of the minor The offended party must be of good reputation 341. White slave trade—: The penalty of prision correccional in its medium and maximum periods shall be imposed upon any person who, in any manner, or Page 73 of 75 Crim 2 Notes (AY 2010-2011) under any pretext, shall engage in the business or shall profit by prostitution or shall enlist the services of women for the purpose of prostitution. Acts penalized as white slave trade: 1. Engaging in the business of prostitution 2. Profiting by prostitution 3. Enlisting the services of women for the purpose of prostitution One of those above-mentioned acts is sufficient to constitute the offense Habituality is not a necessary element of white slave trade The offender is any person who maintains or engages in the business of prostitution, hence, he need not be the owner of the house Maintainer or manager of house of ill-repute need not be present therein at the time of raid or arrest o His presence at the time of the raid it not a condition to a criminal prosecution against him Chapter 4: ABDUCTION Abduction—taking away of a woman from her house or the place where she may be for the purpose of carrying her to another place with intent to marry or to corrupt her Kinds of abduction: 1. Forcible abduction (Art. 342) 2. Consented abduction (Art. 343) 342. Forcible abduction—: The abduction of any woman against her will and with lewd designs shall be punished by reclusion temporal. The same penalty shall be imposed in very case, if the female abducted be under 12 years of age. Elements: 1. That the person abducted is any woman, regardless of her age, civil status, or reputation 2. That the abduction is against her will 3. That the abduction is with lewd designs In forcible abduction, the act of the offender is violative of the individual liberty of the abducted, her honor and reputation, and of public order The virginity of the offended woman is not an essential elemet Crimes against chastity where age and reputation of victim are immaterial: 1. Rape 2. Acts of lasciviousness against the will or without the consent of the offended party 3. Qualified seduction of sister or descendant 4. Forcible abduction The taking away of the woman may be accomplished by means of deceit first and then by means of violence and intimidation Ro-An Salanga (I-A) If the female abducted is under 12 years of age, the crime is forcible abduction, even if she voluntarily goes with her abductor o Not necessary that she be abducted against her will Sexual intercourse is not necessary in forcible abduction o Intent to seduce is sufficient o If there is sexual intercourse after the forcible abduction and the offender used any of the ways of committing rape, the offender is liable for the complex crime of forcible abduction with rape Lewd designs: o May be shown by the conduct of the accused o Present in hurried ceremony of marriage by force especially when the woman cannot give consent legally Intention to marry does not constitute unchaste designs when both defendant and the woman have the required age for consenting to marriage When there are several defendants, it is enough that one of them had lewd designs to convict them of crime of abduction The husband cannot be found guilty of the crime of forcible abduction of his wife, the element of unchaste or lewd design being wanting Forcible abduction Grave coercion There is violence or intimidation used by the offender The offended party is compelled to do something against her will Lewd design is present There is no lewd design Forcible abduction There is lewd design Corruption of minors There is no lewd design Purpose is to lend the offended party to illicit intercourse with others Kidnapping and serious illegal detention There is no lewd design Kidnapping with rape The violent taking is not motivated by lewd designs Offense against personal liberty Forcible abduction There is lewd design There is deprivation of liberty Forcible abduction with rape The violent taking is motivated by lewd designs Offense against chastity o o Complex crimes: Forcible abduction with rape One count of forcible abduction with rape and 3 separate acts of rape There is no complex crime of forcible abduction with attempted rape being that the attempt to rape is absorbed by the abduction as considered as the lewd design of forcible abduction Page 74 of 75 Crim 2 Notes (AY 2010-2011) Forcible abduction Rape There was an abduction but Absorbs forcible abduction the resistance of the woman if the main objective was to to the alleged rape was not rape the victim tenacious There is an attempted forcible abduction Conviction of acts of lasciviousness is not a bar to conviction of forcible abduction because one of these two crimes involves some important act which is not an essential element of the other Forcible abduction Acts of lasciviousness Actual illicit relations with Lecherous acts must have the woman abducted need actually been committed not be shown The person abducted must The lustful acts may be be a woman committed upon persons of either sex 343. Consented abduction—: The abduction of a virgin over 12 and under 18 years of age, carried out with her consent and with lewd designs, shall be punished by the penalty of prision correccional in its minimum and medium periods. Elements: 1. That the offended party must be a virgin 2. That she must be over 12 and under 18 years of age 3. That the taking away of the offended party must be with her consent, after solicitation or cajolery from the offender 4. That the taking away of the offended party must be with lewd designs If the offended party is under 12 years of age, the crime committed is forcible abduction, even if the girl agrees to the elopement Purpose of the law: to prescribe punishment for the disgrace to her family and the alarm caused therein by the disappearance of the one who is, be her age and sex, susceptible to cajolery and deceit The taking away need not be with some character of permanence but always with lewd design The offended party need not be taken from her house Consent f the minor to being taken away may be due to honeyed promises of marriage by the offender When there was no solicitation or cajolery and no deceit and the girl voluntarily went with the man, there is no crime committed even if they had sexual intercourse There is a complex crime of consented abduction with rape Chapter 5: PROVISIONS RELATIVE TO THE PRECEDING CHAPTERS OF TITLE 11 344. Prosecution of the crimes of adultery, concubinage, abduction, rape, and acts of lasciviousness—: The crimes of adultery and concubinage shall not be Ro-An Salanga (I-A) prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including both the guilty parties if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders. The offenders of seduction, abduction, rape, or acts f lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, not, in any case, if the offender has been expressly pardoned by the abovenamed persons, as the case may be. In cases of seduction, abduction, acts of lasciviousness, and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices, and accessories after the fact of the above-mentioned crimes. 345. Civil liability of persons guilty of crimes against chastity—: Persons guilty of rape, seduction, or abduction, shall also be sentenced: 1. To indemnify the offended woman 2. To acknowledge the offspring, unless the law should prevent him from doing so 3. In every case, to support the offspring The adulterer and the concubine, in the case provided in Articles 333 and 334, may also be sentenced, in the same proceeding or in a separate civil proceeding, to indemnify for damages caused to the offended spouse. 346. Liability of ascendants, guardians, teachers, or other persons entrusted with the custody of the offended party—: The ascendants, guardians, curators, teachers, and any person who, by abuse of authority or confidential relationship, shall cooperate as accomplices in the perpetration of the crimes embraced in chapters 2nd, 3rd and 4th of this title, shall be punished as principals. Teachers or other persons in any other capacity entrusted with the education and guidance of youth, shall also suffer the penalty of temporary special disqualification in its maximum period to perpetual special disqualification. Any person falling within the terms of this article, and any other person guilty of corruption of minors for the benefit of another, shall be punished by special disqualification from filling the office of guardian. Crim 2 Notes (AY 2010-2011) Page 75 of 75