Criminal Law UPRevised Ortega Lecture Notes II
Criminal Law UPRevised Ortega Lecture Notes II
Criminal Law UPRevised Ortega Lecture Notes II
TITLE I. CRIMES AGAINST NATIONAL Almost all of these are crimes committed in
SECURITY AND THE LAW OF NATIONS times of war, except the following, which
can be committed in times of peace:
Crimes against national security (1) Espionage, under Article 114 – This
is also covered by Commonwealth
1. Treason (Art. 114); Act No. 616 which punishes
conspiracy to commit espionage.
2. Conspiracy and proposal to commit This may be committed both in times
treason (Art. 115); of war and in times of peace.
3. Misprision of treason (Art. 116); and (2) Inciting to War or Giving Motives for
Reprisals, under Article 118 – This
4. Espionage (Art. 117). can be committed even if the
Philippines is not a participant.
Exposing the Filipinos or their
Crimes against the law of nations properties because the offender
performed an unauthorized act, like
1. Inciting to war or giving motives for those who recruit Filipinos to
reprisals (Art. 118); participate in the gulf war. If they
involve themselves to the war, this
2. Violation of neutrality (Art. 119); crime is committed. Relevant in the
cases of Flor Contemplacion or
3. Corresponding with hostile country Abner Afuang, the police officer who
(Art. 120); stepped on a Singaporean flag.
4. Flight to enemy's country (Art. 121); (3) Violation of Neutrality, under Article
and 119 – The Philippines is not a party
to a war but there is a war going on.
5. Piracy in general and mutiny on the This may be committed in the light of
high seas (Art. 122). the Middle East war.
Elements of conspiracy to commit treason While in treason, even aliens can commit
said crime because of the amendment to
1. There is a war in which the the article, no such amendment was made
Philippines is involved; in misprision of treason. Misprision of
treason is a crime that may be committed
2. At least two persons come to an only by citizens of the Philippines.
agreement to –
The essence of the crime is that there are
a. levy war against the persons who conspire to commit treason
government; or and the offender knew this and failed to
make the necessary report to the
b. adhere to the enemies, government within the earliest possible
giving them aid or comfort; time. What is required is to report it as soon
as possible. The criminal liability arises if
3. They decide to commit it. the treasonous activity was still at the
conspiratorial stage. Because if the treason
already erupted into an overt act, the
Elements of proposal to commit treason implication is that the government is already
aware of it. There is no need to report the
1. There is a war in which the same. This is a felony by omission
Philippines is involved;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
although committed with dolo, not with 1. Offender enters any of the
culpa. places mentioned;
4. Disloyal acts or words in times of hence, national security was not really
war; threatened. Now, the threat of rebellion or
internal wars is serious as a national threat.
5. Conspiracy to violate preceding
sections; and
Article 120. Correspondence with
6. Harboring or concealing violators of Hostile Country
law.
Elements
like piracy and mutiny. Crimes against Originally, the crimes of piracy and mutiny
national security can be tried only in the can only be committed in the high seas, that
Philippines, as there is a need to bring the is, outside Philippine territorial waters. But
offender here before he can be made to in August 1974, Presidential Decree No.
suffer the consequences of the law. The 532 (The Anti-Piracy and Anti-Highway
acts against national security may be Robbery Law of 1974) was issued,
committed abroad and still be punishable punishing piracy, but not mutiny, in
under our law, but it can not be tried under Philippine territorial waters. Thus came
foreign law. about two kinds of piracy: (1) that which is
punished under the Revised Penal Code if
committed in the high seas; and (2) that
Article 122. Piracy in general and Mutiny which is punished under Presidential
on the High Seas or in Philippine Waters Decree No. 532 if committed in Philippine
territorial waters.
Acts punished as piracy
Amending Article 122, Republic Act No.
1. Attacking or seizing a vessel on the 7659 included therein piracy in Philippine
high seas or in Philippine waters; waters, thus, pro tanto superseding
Presidential Decree No. 532. As amended,
2. Seizing in the vessel while on the the article now punishes piracy, as well as
high seas or in Philippine waters the mutiny, whether committed in the high seas
whole or part of its cargo, its or in Philippine territorial waters, and the
equipment or personal belongings of penalty has been increased to reclusion
its complement or passengers. perpetua from reclusion temporal.
4. The preceding were committed under Republic Act No. 6235 (The Anti Hi-
any of the following circumstances: Jacking Law)
Philippine registry, it should be in flight at the aircraft. But before they could do
the time of the hi-jacking. Otherwise, the anything on the aircraft, alert marshals
anti hi-jacking law will not apply and the arrested them. What crime was committed?
crime is still punished under the Revised
Penal Code. The correlative crime may be The criminal intent definitely is to
one of grave coercion or grave threat. If take control of the aircraft, which is hi-
somebody is killed, the crime is homicide or jacking. It is a question now of whether the
murder, as the case may be. If there are anti-hi-jacking law shall govern.
some explosives carried there, the crime is
destructive arson. Explosives are by nature The anti hi-jacking law is applicable
pyro-techniques. Destruction of property in this case. Even if the aircraft is not yet
with the use of pyro-technique is destructive about to fly, the requirement that it be in
arson. If there is illegally possessed or flight does not hold true when in comes to
carried firearm, other special laws will apply. aircraft of foreign registry. Even if the
problem does not say that all exterior doors
On the other hand, if the aircraft is of are closed, the crime is hi-jacking. Since
foreign registry, the law does not require the aircraft is of foreign registry, under the
that it be in flight before the anti hi-jacking law, simply usurping or seizing control is
law can apply. This is because aircrafts of enough as long as the aircraft is within
foreign registry are considered in transit Philippine territory, without the requirement
while they are in foreign countries. that it be in flight.
Although they may have been in a foreign
country, technically they are still in flight, Note, however, that there is no hi-
because they have to move out of that jacking in the attempted stage. This is a
foreign country. So even if any of the acts special law where the attempted stage is
mentioned were committed while the not punishable.
exterior doors of the foreign aircraft were
still open, the anti hi-jacking law will already 2. A Philippine Air Lines aircraft
govern. is bound for Davao. While the pilot and co-
pilot are taking their snacks at the airport
Note that under this law, an aircraft is lounge, some of the armed men were also
considered in flight from the moment all there. The pilots were followed by these
exterior doors are closed following men on their way to the aircraft. As soon as
embarkation until such time when the same the pilots entered the cockpit, they pulled
doors are again opened for disembarkation. out their firearms and gave instructions
This means that there are passengers that where to fly the aircraft. Does the anti hi-
boarded. So if the doors are closed to bring jacking law apply?
the aircraft to the hangar, the aircraft is not
considered as in flight. The aircraft shall be No. The passengers have yet to
deemed to be already in flight even if its board the aircraft. If at that time, the
engine has not yet been started. offenders are apprehended, the law will not
apply because the aircraft is not yet in flight.
Note that the aircraft is of Philippine registry.
Questions & Answers
3. While the stewardess of a
Philippine Air Lines plane bound for Cebu
1. The pilots of the Pan Am was waiting for the passenger manifest, two
aircraft were accosted by some armed men of its passengers seated near the pilot
and were told to proceed to the aircraft to fly surreptitiously entered the pilot cockpit. At
it to a foreign destination. The armed men gunpoint, they directed the pilot to fly the
walked with the pilots and went on board aircraft to the Middle East. However, before
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
the pilot could fly the aircraft towards the etc. Otherwise, the anti hi-jacking law does
Middle East, the offenders were subdued not apply.
and the aircraft landed. What crime was
committed? However, under Section 7, any physical
injury or damage to property which would
The aircraft was not yet in flight. result from the carrying or loading of the
Considering that the stewardess was still flammable, corrosive, explosive, or
waiting for the passenger manifest, the poisonous substance in an aircraft, the
doors were still open. Hence, the anti hi- offender shall be prosecuted not only for
jacking law is not applicable. Instead, the violation of Republic Act No. 6235, but also
Revised Penal Code shall govern. The for the crime of physical injuries or damage
crime committed was grave coercion or to property, as the case may be, under the
grave threat, depending upon whether or Revised Penal Code. There will be two
not any serious offense violence was prosecutions here. Other than this
inflicted upon the pilot. situation, the crime of physical injuries will
be absorbed. If the explosives were
However, if the aircraft were of planted in the aircraft to blow up the aircraft,
foreign registry, the act would already be the circumstance will qualify the penalty and
subject to the anti hi-jacking law because that is not punishable as a separate crime
there is no requirement for foreign aircraft to for murder. The penalty is increased under
be in flight before such law would apply. the anti hi-jacking law.
The reason for the distinction is that as long
as such aircraft has not returned to its home All other acts outside of the four are merely
base, technically, it is still considered in qualifying circumstances and would bring
transit or in flight. about higher penalty. Such acts would not
constitute another crime. So the killing or
explosion will only qualify the penalty to a
As to numbers 3 and 4 of Republic Act No. higher one.
6235, the distinction is whether the aircraft
is a passenger aircraft or a cargo aircraft.
In both cases, however, the law applies only
Questions & Answers
to public utility aircraft in the Philippines.
Private aircrafts are not subject to the anti
hi-jacking law, in so far as transporting 1. In the course of the hi-jack, a
prohibited substances are concerned. passenger or complement was shot and
killed. What crime or crimes were
If the aircraft is a passenger aircraft, the committed?
prohibition is absolute. Carrying of any
prohibited, flammable, corrosive, or The crime remains to be a violation
explosive substance is a crime under of the anti hi-jacking law, but the penalty
Republic Act No. 6235. But if the aircraft is thereof shall be higher because a
only a cargo aircraft, the law is violated only passenger or complement of the aircraft
when the transporting of the prohibited had been killed. The crime of
substance was not done in accordance with homicide or murder is not committed.
the rules and regulations prescribed by the
Air Transportation Office in the matter of 2. The hi-jackers threatened to
shipment of such things. The Board of detonate a bomb in the course of the hi-
Transportation provides the manner of jack. What crime or crimes were
packing of such kind of articles, the quantity committed?
in which they may be loaded at any time,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Again, the crime is violation of the be held liable are only those acting under
anti hi-jacking law. The separate crime of supposed exercise of official functions,
grave threat is not committed. This is albeit illegally.
considered as a qualifying circumstance In its counterpart in Title IX (Crimes Against
that shall serve to increase the penalty. Personal Liberty and Security), the
offenders are private persons. But private
persons may also be liable under this title
TITLE II. CRIMES AGAINST THE as when a private person conspires with a
FUNDAMENTAL LAWS OF THE STATE public officer. What is required is that the
principal offender must be a public officer.
Thus, if a private person conspires with a
Crimes against the fundamental laws of the public officer, or becomes an accessory or
State accomplice, the private person also
becomes liable for the same crime. But a
1. Arbitrary detention (Art. 124); private person acting alone cannot commit
the crimes under Article 124 to 132 of this
2. Delay in the delivery of detained title.
persons to the proper judicial
authorities (Art. 125);
Article 124. Arbitrary Detention
3. Delaying release (Art. 126);
Elements
4. Expulsion (Art. 127);
1. Offender is a public officer or
5. Violation of domicile (Art. 128); employee;
10. Offending the religious feelings (Art. 3. The person detained has no ailment
133); which requires compulsory
confinement in a hospital.
(2) Having arrested the offended party any public officer can commit this crime.
for legal grounds but without warrant Only those public officers whose official
of arrest, and the public officer does duties carry with it the authority to make an
not deliver the arrested person to arrest and detain persons can be guilty of
the proper judicial authority within this crime. So, if the offender does not
the period of 12, 18, or 36 hours, as possess such authority, the crime
the case may be; or committed by him is illegal detention. A
public officer who is acting outside the
(3) Delaying release by competent scope of his official duties is no better than
authority with the same period a private citizen.
mentioned in number 2.
against him, then the crime would be proper court before 12, 18 or 36 hours
unlawful arrest. The detention of the driver lapse. Otherwise he has to release the
is incidental to the supposed crime he did person arrested.
not commit. But if there is no supposed
crime at all because the driver was not Note that the period stated herein does not
charged at all, he was not given place include the nighttime. It is to be counted
under booking sheet or report arrest, then only when the prosecutor’s office is ready to
that means that the only purpose of the receive the complaint or information.
offender is to stop him from driving his
jeepney because he refused to contribute to This article does not apply if the arrest is
the tong. with a warrant. The situation contemplated
here is an arrest without a warrant.
Note that delivery of the arrested person to the crime was committed, there was a
the proper authorities does not mean typhoon so the suspect could not be
physical delivery or turn over of arrested brought to Manila until three days later.
person to the court. It simply means putting Was there a violation of Article 125?
the arrested person under the jurisdiction of
the court. This is done by filing the There was a violation of Article 125.
necessary complaint or information against The crime committed was arbitrary
the person arrested in court within the detention in the form of delay in the delivery
period specified in Article 125. The purpose of arrested person to the proper judicial
of this is for the court to determine whether authority. The typhoon or flood is a matter
the offense is bailable or not and if bailable, of defense to be proved by the accused, the
to allow him the right to bail. arresting officer, as to whether he is liable.
In this situation, he may be exempt under
Under the Rule 114 of the Revised Rules of paragraph 7 of Article 12.
Court, the arrested person can demand
from the arresting officer to bring him to any
judge in the place where he was arrested Before Article 125 may be applied, it is
and post the bail here. Thereupon, the necessary that initially, the detention of the
arresting officer may release him. The arrested person must be lawful because the
judge who granted the bail will just forward arrest is based on legal grounds. If the
the litimus of the case to the court trying his arrest is made without a warrant, this
case. The purpose is in order to deprive the constitutes an unlawful arrest. Article 269,
arrested person of his right to post the bail. not Article 125, will apply. If the arrest is not
based on legal grounds, the arrest is pure
Under the Revised Rules of Court, when the and simple arbitrary detention. Article 125
person arrested is arrested for a crime contemplates a situation where the arrest
which gives him the right to preliminary was made without warrant but based on
investigation and he wants to avail his right legal grounds. This is known as citizen’s
to a preliminary investigation, he would arrest.
have to waive in writing his rights under
Article 125 so that the arresting officer will
not immediately file the case with the court Article 126. Delaying Release
that will exercise jurisdiction over the case.
If he does not want to waive this in writing, Acts punished
the arresting officer will have to comply with
Article 125 and file the case immediately in 1. Delaying the performance of a
court without preliminary investigation. In judicial or executive order for the
such case, the arrested person, within five release of a prisoner;
days after learning that the case has been
filed in court without preliminary 2. Unduly delaying the service of the
investigation, may ask for preliminary notice of such order to said prisoner;
investigation. In this case, the public officer
who made the arrest will no longer be liable 3. Unduly delaying the proceedings
for violation of Article 125. upon any petition for the liberation of
such person.
2. He is not authorized by judicial order (3) When the article seized is within
to enter the dwelling or to make a plain view of the officer making the
search therein for papers or other seizure without making a search
effects. therefore.
Under Rule 113 of the Revised Rules of (3) Refusing to leave premises after
Court, when a person to be arrested enters surreptitious entry and being told to
a premise and closes it thereafter, the leave the same. The act punished is
public officer, after giving notice of an arrest, not the entry but the refusal to leave.
can break into the premise. He shall not be If the offender upon being directed
liable for violation of domicile. to eave, followed and left, there is no
crime of violation of domicile. Entry
There are only three recognized instances must be done surreptitiously; without
when search without a warrant is this, crime may be unjust vexation.
considered valid, and, therefore, the seizure But if entering was done against the
of any evidence done is also valid. Outside will of the occupant of the house,
of these, search would be invalid and the meaning there was express or
objects seized would not be admissible in implied prohibition from entering the
evidence. same, even if the occupant does not
direct him to leave, the crime of is
(1) Search made incidental to a valid already committed because it would
arrest; fall in number 1.
Article 129. Search Warrants Maliciously 4. The owner, or any members of his
Obtained, and Abuse in the Service of family, or two witnesses residing in
Those Legally Obtained the same locality are not present.
Acts punished
Crimes under Articles 129 and 130 are
1. Procuring a search warrant without referred to as violation of domicile. In these
just cause; articles, the search is made by virtue of a
valid warrant, but the warrant
Elements notwithstanding, the liability for the crime is
still incurred through the following situations:
1. Offender is a public officer or
employee; (1) Search warrant was irregularly
obtained – This means there was no
2. He procures a search probable cause determined in
warrant; obtaining the search warrant.
Although void, the search warrant is
3. There is no just cause. entitled to respect because of
presumption of regularity. One
remedy is a motion to quash the
2. Exceeding his authority or by using search warrant, not refusal to abide
unnecessary severity in executing a by it. The public officer may also be
search warrant legally procured. prosecuted for perjury, because for
him to succeed in obtaining a search
Elements warrant without a probable cause,
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1. Offender is a public officer or employee; At the beginning, it may happen that the
assembly is lawful and peaceful. If in the
2. He performs any of the following acts: course of the assembly the participants
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
commit illegal acts like oral defamation or serious disturbance of any sort in a
inciting to sedition, a public officer or law public office, public building or even
enforcer can stop or dissolve the meeting. a private place where a public
The permit given is not a license to commit function is being held.
a crime.
There are two criteria to determine whether Article 132. Interruption of Religious
Article 131 would be violated: Worship
In Article 131, the offender must be There must be deliberate intent to hurt the
a public officer and, without any feelings of the faithful.
legal ground, he prohibits, interrupts,
or dissolves a peaceful meeting or
assembly to prevent the offended TITLE III. CRIMES AGAINST PUBLIC
party from exercising his freedom of ORDER
speech and that of the assembly to
petition a grievance against the
government. Crimes against public order
In Article 153, the offender need not 1. Rebellion or insurrection (Art. 134);
be a public officer. The essence of
the crime is that of creating a
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
2. Conspiracy and proposal to commit 20. Delivering prisoners from jails (Art.
rebellion (Art. 136); 156);
can only be committed through force and contributions, diverting funds for the lawful
violence. purpose for which they have been
appropriated.
Rebellion and insurrection are not Since a higher penalty is prescribed for the
synonymous. Rebellion is more frequently crime of rebellion when any of the specified
used where the object of the movement is acts are committed in furtherance thereof,
completely to overthrow and supersede the said acts are punished as components of
existing government; while insurrection is rebellion and, therefore, are not to be
more commonly employed in reference to a treated as distinct crimes. The same acts
movement which seeks merely to effect constitute distinct crimes when committed
some change of minor importance, or to on a different occasion and not in
prevent the exercise of governmental furtherance of rebellion. In short, it was
authority with respect to particular matters because Article 135 then punished said acts
of subjects (Reyes, citing 30 Am. Jr. 1). as components of the crime of rebellion that
precludes the application of Article 48 of the
Revised Penal Code thereto. In the eyes of
Rebellion can now be complexed with the law then, said acts constitute only one
common crimes. Not long ago, the crime and that is rebellion. The Hernandez
Supreme Court, in Enrile v. Salazar, 186 doctrine was reaffirmed in Enrile v. Salazar
SCRA 217, reiterated and affirmed the rule because the text of Article 135 has
laid down in People v. Hernandez, 99 Phil remained the same as it was when the
515, that rebellion may not be complexed Supreme Court resolved the same issue in
with common crimes which are committed the People v. Hernandez. So the Supreme
in furtherance thereof because they are Court invited attention to this fact and thus
absorbed in rebellion. In view of said stated:
reaffirmation, some believe that it has been
a settled doctrine that rebellion cannot be “There is a an apparent need to restructure
complexed with common crimes, such as the law on rebellion, either to raise the
killing and destruction of property, penalty therefore or to clearly define and
committed on the occasion and in delimit the other offenses to be considered
furtherance thereof. absorbed thereby, so that it cannot be
conveniently utilized as the umbrella for
This thinking is no longer correct; there is every sort of illegal activity undertaken in its
no legal basis for such rule now. name. The court has no power to effect
such change, for it can only interpret the
The statement in People v. Hernandez that law as it stands at any given time, and what
common crimes committed in furtherance of is needed lies beyond interpretation.
rebellion are absorbed by the crime of Hopefully, Congress will perceive the need
rebellion, was dictated by the provision of for promptly seizing the initiative in this
Article 135 of the Revised Penal Code prior matter, which is purely within its province.”
to its amendment by the Republic Act No.
6968 (An Act Punishing the Crime of Coup Obviously, Congress took notice of this
D’etat), which became effective on October pronouncement and, thus, in enacting
1990. Prior to its amendment by Republic Republic Act No. 6968, it did not only
Act No. 6968, Article 135 punished those provide for the crime of coup d’etat in the
“who while holding any public office or Revised Penal Code but moreover, deleted
employment, take part therein” by any of from the provision of Article 135 that portion
these acts: engaging in war against the referring to those –
forces of Government; destroying property;
committing serious violence; exacting
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
“…who, while holding any public office or necessary element or ingredient of the
employment takes part therein [rebellion or crime of rebellion with which the accused
insurrection], engaging in war against the was already convicted.
forces of government, destroying property
or committing serious violence, exacting However, in People v. Tiozon, 198 SCRA
contributions or diverting public funds from 368, it was held that charging one of illegal
the lawful purpose for which they have been possession of firearms in furtherance of
appropriated …” rebellion is proper because this is not a
charge of a complex crime. A crime under
Hence, overt acts which used to be the Revised Penal Code cannot be
punished as components of the crime of absorbed by a statutory offense.
rebellion have been severed therefrom by In People v. de Gracia, it was ruled that
Republic Act No. 6968. The legal illegal possession of firearm in furtherance
impediment to the application of Article 48 of rebellion under Presidential Decree No.
to rebellion has been removed. After the 1866 is distinct from the crime of rebellion
amendment, common crimes involving under the Revised Penal Code and,
killings, and/or destructions of property, therefore, Article 135 (2) of the Revised
even though committed by rebels in Penal Code should not apply. The offense
furtherance of rebellion, shall bring about of illegal possession of firearm is a malum
complex crimes of rebellion with prohibitum, in which case, good faith and
murder/homicide, or rebellion with robbery, absence of criminal intent are not valid
or rebellion with arson as the case may be. defenses.
In sedition, it is sufficient that the The essence of the crime is a swift attack
public uprising be tumultuous. upon the facilities of the Philippine
government, military camps and
(2) As to purpose installations, communication networks,
public utilities and facilities essential to the
In rebellion, the purpose is always continued possession of governmental
political. powers. It may be committed singly or
collectively and does not require a multitude
In sedition, the purpose may be of people. The objective may not be to
political or social. Example: the overthrow the government but only to
uprising of squatters against Forbes destabilize or paralyze the government
park residents. The purpose in through the seizure of facilities and utilities
sedition is to go against established essential to the continued possession and
government, not to overthrow it. exercise of governmental powers. It
requires as principal offender a member of
When any of the objectives of rebellion is the AFP or of the PNP organization or a
pursued but there is no public uprising in public officer with or without civilian support.
the legal sense, the crime is direct assault Finally, it may be carried out not only by
of the first form. But if there is rebellion, force or violence but also through stealth,
with public uprising, direct assault cannot be threat or strategy.
committed.
There is no proposal to commit sedition. The mere meeting for the purpose of
discussing hatred against the government is
inciting to sedition. Lambasting government
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 143. Acts Tending to Prevent the 1. Using force, intimidation, threats, or
Meeting of the Congress of the frauds to prevent any member of
Philippines and Similar Bodies Congress from attending the
meetings of Congress or of any of its
Elements committees or subcommittees,
constitutional commissions or
1. There is a projected or actual committees or divisions thereof, or
meeting of Congress or any of its from expressing his opinion or
committees or subcommittees, casting his vote;
constitutional committees or
divisions thereof, or of any provincial Elements
board or city or municipal council or
board; 1. Offender uses force,
intimidation, threats or fraud;
2. Offender, who may be any person,
prevents such meetings by force or 2. The purpose of the offender
fraud. is to prevent any member of
Congress from –
1. There is a meeting, a
gathering or group of
persons, whether in fixed
place or moving;
(2) Armed men attending the gathering 2. Mere members of the association.
– If the illegal purpose is other than
those mentioned above, the
presence of armed men during the Distinction between illegal association and
gathering brings about the crime of illegal assembly
illegal assembly.
1. In illegal association, it is not
Example: Persons conspiring to rob necessary that there be an actual
a bank were arrested. Some were meeting.
with firearms. Liable for illegal
assembly, not for conspiracy, but for In illegal assembly, it is necessary
gathering with armed men. that there is an actual meeting or
assembly or armed persons for the
Distinction between illegal assembly and purpose of committing any of the
illegal association crimes punishable under the Code,
or of individuals who, although not
In illegal assembly, the basis of liability is armed, are incited to the commission
the gathering for an illegal purpose which of treason, rebellion, sedition, or
constitutes a crime under the Revised Penal assault upon a person in authority or
Code. his agent.
The only time when it is not complexed is duly recognized private schools, colleges
when material consequence is a light felony, and universities and lawyers in the actual
that is, slight physical injury. Direct assault performance of their duties or on the
absorbs the lighter felony; the crime of occasion of such performance, shall be
direct assault can not be separated from the deemed a person in authority.
material result of the act. So, if an offender
who is charged with direct assault and in In direct assault of the first form, the stature
another court for the slight physical Injury of the offended person is immaterial. The
which is part of the act, acquittal or crime is manifested by the spirit of
conviction in one is a bar to the prosecution lawlessness.
in the other.
In the second form, you have to distinguish
Example of the first form of direct assault: a situation where a person in authority or
his agent was attacked while performing
Three men broke into a National Food official functions, from a situation when he
Authority warehouse and lamented is not performing such functions. If attack
sufferings of the people. They called on was done during the exercise of official
people to help themselves to all the rice. functions, the crime is always direct assault.
They did not even help themselves to a It is enough that the offender knew that the
single grain. person in authority was performing an
official function whatever may be the reason
The crime committed was direct assault. for the attack, although what may have
There was no robbery for there was no happened was a purely private affair.
intent to gain. The crime is direct assault by
committing acts of sedition under Article On the other hand, if the person in authority
139 (5), that is, spoiling of the property, for or the agent was killed when no longer
any political or social end, of any person performing official functions, the crime may
municipality or province or the national simply be the material consequence of he
government of all or any its property, but unlawful act: murder or homicide. For the
there is no public uprising. crime to be direct assault, the attack must
be by reason of his official function in the
Person in authority is any person directly past. Motive becomes important in this
vested with jurisdiction, whether as an respect. Example, if a judge was killed
individual or as a member of some court or while resisting the taking of his watch, there
government corporation, board, or is no direct assault.
commission. A barangay chairman is
deemed a person in authority. In the second form of direct assault, it is
also important that the offended party knew
Agent of a person in authority is any person that the person he is attacking is a person
who by direct provision of law or by election in authority or an agent of a person in
or by appointment by competent authority, authority, performing his official functions.
is charged with the maintenance of public No knowledge, no lawlessness or contempt.
order and the protection and security of life For example, if two persons were quarreling
and property, such as a barangay and a policeman in civilian clothes comes
councilman, barrio policeman, barangay and stops them, but one of the protagonists
leader and any person who comes to the stabs the policeman, there would be no
aid of a person in authority. direct assault unless the offender knew that
he is a policeman.
In applying the provisions of Articles 148
and 151, teachers, professors, and persons In this respect it is enough that the offender
charged with the supervision of public or should know that the offended party was
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
3. Public and private school teachers; For a crime to be under this article, it must
not fall under Articles 131 (prohibition,
4. Teacher-nurse; interruption, and dissolution of peaceful
meetings) and 132 (interruption of religious
5. President of sanitary division; worship).
4. Printing, publishing or distributing (or (2) Illegal discharge of firearm under Article
causing the same) books, 254 if the firearm is directed or pointed
pamphlets, periodicals, or leaflets to a particular person when discharged
which do not bear the real printer’s but intent to kill is absent;
name, or which are classified as
anonymous. (3) Attempted homicide, murder, or
parricide if the firearm when
Actual public disorder or actual damage to discharged is directed against a
the credit of the State is not necessary. person and intent to kill is present.
Republic Act No. 248 prohibits the In this connection, understand that it is not
reprinting, reproduction or republication of necessary that the offended party be
government publications and official wounded or hit. Mere discharge of firearm
documents without previous authority. towards another with intent to kill already
amounts to attempted homicide or
attempted murder or attempted parricide. It
Article 155. Alarms and Scandals can not be frustrated because the offended
party is not mortally wounded.
Acts punished
In Araneta v. Court of Appeals, it was held
1. Discharging any firearm, rocket, that if a person is shot at and is wounded,
firecracker, or other explosive within the crime is automatically attempted
any town or public place, calculated homicide. Intent to kill is inherent in the use
to cause (which produces) alarm of of the deadly weapon.
danger;
The crime alarms and scandal is only one
2. Instigating or taking an active part in crime. Do not think that alarms and
any charivari or other disorderly scandals are two crimes.
meeting offensive to another or
prejudicial to public tranquility; Scandal here does not refer to moral
scandal; that one is grave scandal in Article
3. Disturbing the public peace while 200. The essence of the crime is
wandering about at night or while disturbance of public tranquility and public
engaged in any other nocturnal peace. So, any kind of disturbance of
amusements; public order where the circumstance at the
time renders the act offensive to the
4. Causing any disturbance or scandal tranquility prevailing, the crime is
in public places while intoxicated or committed.
otherwise, provided Article 153 in not
applicable.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Penalty decreased to the minimum period if If the prisoner who escapes is only a
the escape of the prisoner shall take place detention prisoner, he does not incur liability
outside of said establishments by taking the from escaping if he does not know of the
guards by surprise. plan to remove him from jail. But if such
prisoner knows of the plot to remove him
from jail and cooperates therein by
escaping, he himself becomes liable for
delivering prisoners from jail as a principal
by indispensable cooperation.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If three persons are involved – a stranger, (1) By simply leaving or escaping from
the custodian and the prisoner – three the penal establishment under
crimes are committed: Article 157;
(1) Infidelity in the custody of prisoners; (2) Failure to return within 48 hours
after having left the penal
(2) Delivery of the prisoner from jail; and establishment because of a
calamity, conflagration or mutiny and
(3) Evasion of service of sentence. such calamity, conflagration or
mutiny has been announced as
already passed under Article 158;
Article 157. Evasion of Service of
Sentence (3) Violating the condition of conditional
pardon under Article 159.
Elements
In leaving or escaping from jail or prison,
1. Offender is a convict by final judgment; that the prisoner immediately returned is
immaterial. It is enough that he left the
2. He is serving sentence which consists in penal establishment by escaping therefrom.
the deprivation of liberty; His voluntary return may only be mitigating,
being analogous to voluntary surrender.
3. He evades service of his sentence by But the same will not absolve his criminal
escaping during the term of his liability.
imprisonment.
Article 158. Evasion of Service of
Qualifying circumstances as to penalty Sentence on the Occasion of Disorders,
imposed Conflagrations, Earthquakes, or Other
Calamities
If such evasion or escape takes place –
Elements
1. By means of unlawful entry (this
should be “by scaling” - Reyes); 1. Offender is a convict by final
judgment, who is confined in a penal
2. By breaking doors, windows, gates, institution;
walls, roofs or floors;
2. There is disorder, resulting from –
3. By using picklock, false keys,
disguise, deceit, violence or a. conflagration;
intimidation; or
b. earthquake;
4. Through connivance with other
convicts or employees of the penal c. explosion; or
institution.
d. similar catastrophe; or
Those who did not leave the penal 3. He violated any of the conditions of
establishment are not entitled to the 1/5 such pardon.
credit. Only those who left and returned
within the 48-hour period.
In violation of conditional pardon, as a rule,
The mutiny referred to in the second form of the violation will amount to this crime only if
evasion of service of sentence does not the condition is violated during the
include riot. The mutiny referred to here remaining period of the sentence. As a
involves subordinate personnel rising rule, if the condition of the pardon is
against the supervisor within the penal violated when the remaining unserved
establishment. One who escapes during a portion of the sentence has already lapsed,
riot will be subject to Article 157, that is, there will be no more criminal liability for the
simply leaving or escaping the penal violation. However, the convict maybe
establishment. required to serve the unserved portion of
the sentence, that is, continue serving
Mutiny is one of the causes which may original penalty.
authorize a convict serving sentence
in the penitentiary to leave the jail The administrative liability of the convict
provided he has not taken part in the under the conditional pardon is different and
mutiny. has nothing to do with his criminal liability
for the evasion of service of sentence in the
event that the condition of the pardon has
been violated. Exception: where the
violation of the condition of the pardon will
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
constitute evasion of service of sentence, years because in this case a new penalty is
even though committed beyond the imposed for the violation of the conditional
remaining period of the sentence. This is pardon.
when the conditional pardon expressly so
provides or the language of the conditional But if the remitted portion of the
pardon clearly shows the intention to make sentence exceeds six years, the violation of
the condition perpetual even beyond the the conditional pardon is not a substantive
unserved portion of the sentence. In such offense because no new penalty is imposed
case, the convict may be required to serve for the violation.
the unserved portion of the sentence even
though the violation has taken place when In other words, you have to qualify
the sentence has already lapsed. your answer.
In order that the conditional pardon may be The Supreme Court, however, has
violated, it is conditional that the pardonee ruled in the case of Angeles v. Jose that
received the conditional pardon. If he is this is not a substantive offense. This has
released without conformity to the been highly criticized.
conditional pardon, he will not be liable for
the crime of evasion of service of sentence.
Article 160. Commission of Another
Crime During Service of Penalty Imposed
for Another Previous Offense
Elements
12. Falsification of wireless, cable, 27. Substituting and altering trade marks
telegraph and telephone messages and trade names or service marks
and use of said falsified messages (Art. 188);
(Art. 173);
28. Unfair competition and fraudulent
13. False medical certificates, false registration of trade mark or trade
certificates of merit or service (Art. name, or service mark; fraudulent
174); designation of origin, and false
description (Art. 189).
14. Using false certificates (Art. 175);
15. Manufacturing and possession of The crimes in this title are in the nature of
instruments or implements for fraud or falsity to the public. The essence
falsification (Art. 176); of the crime under this title is that which
defraud the public in general. There is
16. Usurpation of authority or official deceit perpetrated upon the public. This is
functions (Art. 177); the act that is being punished under this
title.
17. Using fictitious name and concealing
true name (Art. 178);
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Offender under this article should not be the The first acts of falsification or falsity are –
forger.
(1) Counterfeiting – refers to money or
currency;
Article 163. Making and Importing and
Uttering False Coins (2) Forgery – refers to instruments of
credit and obligations and securities
Elements issued by the Philippine government
or any banking institution authorized
1. There be false or counterfeited by the Philippine government to
coins; issue the same;
It is not necessary that the coin (2) Mutilation of coins -- This refers to
counterfeited be legal tender. So that even the deliberate act of diminishing the
if the coin counterfeited is of vintage, the proper metal contents of the coin
crime of counterfeiting is committed. The either by scraping, scratching or
reason is to bar the counterfeiter from filling the edges of the coin and the
perfecting his craft of counterfeiting. The offender gathers the metal dust that
law punishes the act in order to discourage has been scraped from the coin.
people from ever attempting to gain
expertise in gaining money. This is Requisites of mutilation under the Revised
because if people could counterfeit money Penal Code
with impunity just because it is no longer
legal tender, people would try to counterfeit (1) (1) Coin mutilated is of legal tender;
non-legal tender coins. Soon, if they
develop the expertise to make the (2) Offender gains from the precious
counterfeiting more or less no longer metal dust abstracted from the coin;
discernible or no longer noticeable, they and
could make use of their ingenuity to
counterfeit coins of legal tender. From that (3) It has to be a coin.
time on, the government shall have difficulty
determining which coins are counterfeited Mutilation is being regarded as a crime
and those which are not. It may happen because the coin, being of legal tender, it is
that the counterfeited coins may look better still in circulation and which would
than the real ones. So, counterfeiting is necessarily prejudice other people who may
penalized right at the very start whether the come across the coin. For example, X
coin is legal tender or otherwise. mutilated a P 2.00 coin, the octagonal one,
by converting it into a round one and
extracting 1/10 of the precious metal dust
from it. The coin here is no longer P2.00
Question & Answer
but only P 1.80, therefore, prejudice to the
public has resulted.
X has in his possession a coin which
was legal tender at the time of Magellan and There is no expertise involved here. In
is considered a collector’s item. He mutilation of coins under the Revised Penal
manufactured several pieces of that coin. Is Code, the offender does nothing but to
the crime committed? scrape, pile or cut the coin and collect the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
dust and, thus, diminishing the intrinsic metal dust. However, under Presidential
value of the coin. Decree No. 247, mutilation is not limited to
coins.
Mutilation of coins is a crime only if the coin
mutilated is legal tender. If the coin whose
metal content has been depreciated
Questions & Answers
through scraping, scratching, or filing the
coin and the offender collecting the
precious metal dust, even if he would use 1. The people playing cara y
the coin after its intrinsic value had been cruz, before they throw the coin in the air
reduced, nobody will accept the same. If it would rub the money to the sidewalk
is not legal tender anymore, no one will thereby diminishing the intrinsic value of the
accept it, so nobody will be defrauded. But coin. Is the crime of mutilation committed?
if the coin is of legal tender, and the
offender minimizes or decreases the Mutilation, under the Revised Penal
precious metal dust content of the coin, the Code, is not committed because they do not
crime of mutilation is committed. collect the precious metal content that is
being scraped from the coin. However, this
In the example, if the offender has collected will amount to violation of Presidential
1/10 of the P 2.00 coin, the coin is actually Decree No. 247.
worth only P 1.80. He is paying only P1.80
in effect defrauding the seller of P .20. 2. When the image of Jose
Punishment for mutilation is brought about Rizal on a five-peso bill is transformed into
by the fact that the intrinsic value of the coin that of Randy Santiago, is there a violation
is reduced. of Presidential Decree No. 247?
The offender must deliberately reduce the Yes. Presidential Decree No. 247 is
precious metal in the coin. Deliberate intent violated by such act.
arises only when the offender collects the
precious metal dust from the mutilated coin. 3. Sometime before martial law
If the offender does not collect such dust, was imposed, the people lost confidence in
intent to mutilate is absent, but Presidential banks that they preferred hoarding their
Decree No. 247 will apply. money than depositing it in banks. Former
President Ferdinand Marcos declared upon
declaration of martial law that all bills
Presidential Decree No. 247 without the Bagong Lipunan sign on them
(Defacement, Mutilation, Tearing, will no longer be recognized. Because of
Burning or Destroying Central Bank this, the people had no choice but to
Notes and Coins) surrender their money to banks and
exchange them with those with the Bagong
It shall be unlawful for any person to willfully Lipunan sign on them. However, people
deface, mutilate, tear, burn, or destroy in who came up with a lot of money were also
any manner whatsoever, currency notes being charged with hoarding for which
and coins issued by the Central Bank. reason certain printing presses did the
stamping of the Bagong Lipunan sign
themselves to avoid prosecution. Was there
Mutilation under the Revised Penal Code is a violation of Presidential Decree No. 247?
true only to coins. It cannot be a crime
under the Revised Penal Code to mutilate Yes. This act of the printing presses
paper bills because the idea of mutilation is a violation of Presidential Decree No.
under the code is collecting the precious 247.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
a violation of Presidential Decree No. 247. paper and pressed it to the paper. After
Where the currency note, obligation or sometime, he removed it and it was
security has been changed to make it reproduced. He cut it out, scraped it a little
appear as one which it purports to be as and went to a sari-sari store trying to buy a
genuine, the crime is forgery. In checks or cigarette with that bill. What he overlooked
commercial documents, this crime is was that, when he placed the bill, the
committed when the figures or words are printing was inverted. He was apprehended
changed which materially alters the and was prosecuted and convicted of
document. forgery. Was the crime of forgery
committed?
2. An old man, in his desire to
earn something, scraped a digit in a losing The Supreme Court ruled that it was
sweepstakes ticket, cut out a digit from only frustrated forgery because although
another ticket and pasted it there to match the offender has performed all the acts of
the series of digits corresponding to the execution, it is not possible because by
winning sweepstakes ticket. He presented simply looking at the forged document, it
this ticket to the Philippine Charity could be seen that it is not genuine. It can
Sweepstakes Office. But the alteration is so only be a consummated forgery if the
crude that even a child can notice that the document which purports to be genuine is
supposed digit is merely superimposed on given the appearance of a true and genuine
the digit that was scraped. Was the old man document. Otherwise, it is at most
guilty of forgery? frustrated.
(4) Private document in the execution of 1. Offender committed any of the acts of
which only private individuals take falsification except Article 171(7), that is,
part. issuing in an authenticated form a
document purporting to be a copy of an
Public document is broader than the term original document when no such original
official document. Before a document may exists, or including in such a copy a
be considered official, it must first be a statement contrary to, or different from,
public document. But not all public that of the genuine original;
documents are official documents. To
become an official document, there must be 2. Falsification was committed in any
a law which requires a public officer to issue private document;
or to render such document. Example: A
cashier is required to issue an official 3. Falsification causes damage to a third
receipt for the amount he receives. The party or at least the falsification was
official receipt is a public document which is committed with intent to cause such
an official document. damage.
[The crime here is false certificate of 2. Possession with intent to use the
merit or service by a public officer.] instruments or implements for
counterfeiting or falsification made in
3. Private person who falsifies a certificate or introduced into the Philippines by
falling within the classes mentioned in another person.
the two preceding subdivisions.
Acts punished
Article 178. Using Fictitious Name and
1. Making or introducing into the Concealing True Name
Philippines any stamps, dies, marks,
or other instruments or implements Acts punished
for counterfeiting or falsification;
1. Using fictitious name
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Elements
2. The insignia, uniforms or dress pertains
1. Offender uses a name other to an office not held by such person or a
than his real name; class of persons of which he is not a
member;
2. He uses the fictitious name
publicly; 3. Said insignia, uniform or dress is
used publicly and improperly.
3. Purpose of use is to conceal
a crime, to evade the
execution of a judgment or to Wearing the uniform of an imaginary office
cause damage [to public is not punishable.
interest – Reyes].
So also, an exact imitation of a uniform or
2. Concealing true name dress is unnecessary; a colorable
resemblance calculated to deceive the
Elements common run of people is sufficient.
Article 179. Illegal Use of Uniforms or 3. False testimony in other cases under
Insignia Article 183.
Elements
Article 181. False Testimony Favorable
1. Offender makes use of insignia, to the Defendant
uniforms or dress;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Elements
4. The sworn statement or affidavit
1. A person gives false testimony; containing the falsity is required by law,
that is, it is made for a legal purpose.
2. In favor of the defendant;
Elements
Article 186. Monopolies and
Combinations in Restraint of Trade 1. Manufacturer, producer,
processor or importer of any
Acts punished merchandise or object of
commerce;
1. Combination to prevent free
competition in the market; 2. Combines, conspires or
agrees with any person;
Elements
3. Purpose is to make
1. Entering into any contract or transactions prejudicial to
agreement or taking part in lawful commerce or to
any conspiracy or increase the market price of
combination in the form of a any merchandise or object of
trust or otherwise; commerce manufactured,
produced, processed,
2. In restraint of trade or assembled or imported into
commerce or to prevent by the Philippines.
artificial means free
competition in the market.
Article 187. Importation and Disposition
2. Monopoly to restrain free of Falsely Marked Articles or
competition in the market; Merchandise Made of Gold, Silver, or
Other Precious Metals of Their Alloys
Elements
Elements
1. By monopolizing any
merchandise or object of 1. Offender imports, sells or disposes
trade or commerce, or by articles made of gold, silver, or other
combining with any other precious metals or their alloys;
person or persons to
monopolize said 2. The stamps, brands, or marks of
merchandise or object; those articles of merchandise fail to
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
1. By procuring fraudulently
Article 189. Unfair Competition, from the patent office;
Fraudulent Registration of Trade Name,
Trademark, or Service Mark, Fraudulent 2. The registration of trade
Designation of Origin, and False name, trademark or service
Description mark
Acts punished
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Republic Act No. 8293 (An Act in Subsection 155.1 or this subsection are
Prescribing the Intellectual Property committed regardless of whether there is
Code and Establishing the Intellectual actual sale of goods or services using the
Property Office, Providing for Its Power infringing material.
and Functions, and for Other Purposes)
Section 168. Unfair Competition,
Section 170. Penalties. – Rights, Regulation and Remedies.
Independent of the civil and administrative
sanctions imposed by law, a criminal 168.1. Any person who has
penalty of imprisonment from two (2) years identified in the mind of the public the goods
to five (5) years and a fine ranging from Fifty he manufactures or deals in, his business or
thousand pesos (P 50,000.00) to Two services from those of others, whether or
hundred thousand pesos (P 200,000.00), not a registered mark is employed, has a
shall be imposed on any person who is property right in the goodwill of the said
found guilty of committing any of the acts goods, business or service so identified,
mentioned in Section 155, Section 168 and which will be protected in the same manner
Subsection 169.1. as other property rights.
4. Selling or distributing the same without 3. Any registration or voting days (Republic
connivance with the importer of the Act No. 180, Revised Election Code);
same. and
prision correccional in its medium degree or The penalty of prision mayor in its
a fine of ranging from One Thousand Pesos medium degree and temporary absolute
to Six Thousand Pesos shall be imposed disqualification and a fine of Six Thousand
upon: Pesos shall be imposed if the maintainer,
conductor or banker is a government official,
(a) Any person other than those or if a player, promoter, referee, umpire,
referred to in the succeeding subsection judge or coach in cases of game-fixing,
who in any manner, shall directly or point-shaving and other game machination.
indirectly take part in any game of
cockfighting, jueteng, bookies (jai- alai or The penalty of prision correccional
horse racing to include game fixing) and in its medium degree and a fine ranging
other lotteries, cara y cruz or pompiang and from Five Hundred pesos to Two Thousand
the like, black jack, lucky nine, “pusoy” or Pesos shall be imposed upon any person
Russian Poker, monte, baccarat and other who shall knowingly and without lawful
card games, palk que, domino, mahjong, purpose in any hour of any day shall have in
high and low, slot machines, roulette, pinball his possession any lottery list, paper, or
and other mechanical inventories or other matter containing letter, figures, signs
devices, dog racing, boat racing, car raising or symbols which pertain to or in any
and other races, basketball, volleyball, manner used in the game of jueteng, jai-alai
boxing, seven-eleven dice games and the or horse racing bookies and similar game or
like and other contests to include game lottery which has taken place or about to
fixing, point shaving and other machinations take place.
banking or percentage game, or any other
game or scheme, whether upon chance or Section 2. Barangay Official. –
skill, which do not have a franchise from the Any barangay official in whose jurisdiction
national government, wherein wagers such gambling house is found and which
consisting of money, articles of value of house has the reputation of a gambling
representative of value are made; place shall suffer the penalty of prision
correccional in its medium period and a fine
(b) Any person who shall ranging from Five Hundred to Two
knowingly permit any form of gambling Thousand Pesos and temporary absolute
referred to in the preceding subdivision to disqualifications.
be carried on in inhabited or uninhabited
places or any building, vessel or other
means of transportation owned or controlled While the acts under the Revised Penal
by him. If the place where gambling is Code are still punished under the new law,
carried on has a reputation of a gambling yet the concept of gambling under it has
place or that prohibited gambling is been changed by the new gambling law.
frequently carried on therein or the place is
a public or government building or barangay Before, the Revised Penal Code considered
hall, the culprit shall be punished by the the skill of the player in classifying whether
penalty provided for in its maximum period a game is gambling or not. But under the
and a fine of Six Thousand Pesos. new gambling law, the skill of the players is
immaterial.
The penalty of prision correccional
in its maximum degree and a fine of Six Any game is considered gambling where
Thousand Pesos shall be imposed upon the there are bets or wagers placed with the
maintainer, conductor of the above hope to win a prize therefrom.
gambling schemes.
Under this law, even sports contents like
boxing, would be gambling insofar as those
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
who are betting therein are concerned. and there is no need to prove that the game
Under the old penal code, if the skill of the was played on the date stated. If the
player outweighs the chance or hazard possessor was caught, chances are he will
involved in winning the game, the game is not go on with it anymore.
not considered gambling but a sport. It was
because of this that betting in boxing and There are two criteria as to when the lottery
basketball games proliferated. is in fact becomes a gambling game:
“Unless authorized by a franchise, any form 1. If the public is made to pay not only
of gambling is illegal.” So said the court in for the merchandise that he is
the recent resolution of the case against the buying, but also for the chance to
operation of jai-alai. win a prize out of the lottery, lottery
becomes a gambling game. Public
There are so-called parlor games which is made to pay a higher price.
have been exempted from the operation of
the decree like when the games are played 2. If the merchandise is not saleable
during a wake to keep the mourners awake because of its inferior quality, so that
at night. Pursuant to a memorandum the public actually does not buy
circular issued by the Executive Branch, the them, but with the lottery the public
offshoot of the exemption is the intentional starts patronizing such merchandise.
prolonging of the wake of the dead by In effect, the public is paying for the
gambling lords. lottery and not for the merchandise,
and therefore the lottery is a
As a general rule, betting or wagering gambling game. Public is not made
determines whether a game is gambling or to pay a higher price.
not. Exceptions: These are games which
are expressly prohibited even without bets. Illustrations:
Monte, jueteng or any form of lottery; dog
races; slot machines; these are habit- (1) A certain supermarket wanted to
forming and addictive to players, bringing increase its sales and sponsored a
about the pernicious effects to the family lottery where valuable prices are
and economic life of the players. offered at stake. To defray the cost
of the prices offered in the lottery,
Mere possession of lottery tickets or lottery the management increased their
lists is a crime punished also as part of prices of the merchandise by 10
gambling. However, it is necessary to make cents each. Whenever someone
a distinction whether a ticket or list refers to buys from that supermarket, he pays
a past date or to a future date. 10 cents more for each merchandise
and for his purchase, he gets a
Illustration: coupon which is to be dropped at
designated drop boxes to be raffled
X was accused one night and found in his on a certain period.
possession was a list of jueteng. If the date
therein refers to the past, X cannot be The increase of the price is to
convicted of gambling or illegal possession answer for the cost of the valuable
of lottery list without proving that such game prices that will be covered at stake.
was indeed played on the date stated. The increase in the price is the
Mere possession is not enough. If the date consideration for the chance to win
refers to the future, X can be convicted by in the lottery and that makes the
the mere possession with intent to use. lottery a gambling game.
This will already bring about criminal liability
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
But if the increase in prices of the only after the lottery or raffle, in
articles or commodities was not effect the public is paying for the
general, but only on certain items price not the product.
and the increase in prices is not the
same, the fact that a lottery is
sponsored does not appear to be Under this decree, a barangay captain who
tied up with the increase in prices, is responsible for the existence of gambling
therefore not illegal. dens in their own locality will be held liable
and disqualified from office if he fails to
Also, in case of manufacturers, you prosecute these gamblers. But this is not
have to determine whether the being implemented.
increase in the price was due to the
lottery or brought about by the Gambling, of course, is legal when
normal price increase. If the authorized by law.
increase in price is brought about by
the normal price increase [economic Fund-raising campaigns are not gambling.
factor] that even without the lottery They are for charitable purposes but they
the price would be like that, there is have to obtain a permit from Department of
no consideration in favor of the Social Welfare and Development. This
lottery and the lottery would not includes concerts for causes, Christmas
amount to a gambling game. caroling, and the like.
(2) The merchandise is not really 2. Such act or acts be highly scandalous
saleable because of its inferior as offending against decency or good
quality. A certain manufacturer, customs;
Bhey Company, manufacture
cigarettes which is not saleable 3. The highly scandalous conduct is not
because the same is irritating to the expressly falling within any other article
throat, sponsored a lottery and a of this Code; and
coupon is inserted in every pack of
cigarette so that one who buys it 4. The act or acts complained of be
shall have a chance to participate. committed in a public place or within the
Due to the coupons, the public public knowledge or view.
started buying the cigarette.
Although there was no price
increase in the cigarettes, the lottery In grave scandal, the scandal involved
can be considered a gambling game refers to moral scandal offensive to
because the buyers were really after decency, although it does not disturb public
the coupons not the low quality peace. But such conduct or act must be
cigarettes. open to the public view.
If without the lottery or raffle, the In alarms and scandals, the scandal
public does not patronize the involved refers to disturbances of the public
product and starts to patronize them
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
tranquility and not to acts offensive to (2) A man and a woman went to Luneta
decency. and slept there. They covered
themselves their blanket and made
Any act which is notoriously offensive to the grass their conjugal bed.
decency may bring about criminal liability
for the crime of grave scandal provided This is grave scandal.
such act does not constitute some other
crime under the Revised Penal Code. (3) In a certain apartment, a lady tenant
Grave scandal is a crime of last resort. had the habit of undressing in her
room without shutting the blinds.
Distinction should be made as to the place She does this every night at about
where the offensive act was committed, eight in the evening. So that at this
whether in the public place or in a private hour of the night, you can expect
place: people outside gathered in front of
her window looking at her silhouette.
(1) In public place, the criminal liability She was charged of grave scandal.
arises irrespective of whether the Her defense was that she was doing
immoral act is open to the public it in her own house.
view. In short public view is not
required. It is no defense that she is doing it in
her private home. It is still open to
(2) When act offensive to decency is the public view.
done in a private place, public view
or public knowledge is required. (4) In a particular building in Makati
which stands right next to the house
Public view does not require numerous of a young lady who goes
persons. Even if there was only one person sunbathing in her poolside. Every
who witnessed the offensive act for as long morning several men in the upper
as the third person was not an intruder, floors would stick their heads out to
grave scandal is committed provided the act get a full view of said lady while in
does not fall under any other crime in the her two-piece swimsuit. The lady
Revised Penal Code. was then charged with grave
scandal. Her defense was that it is
Illustrations: her own private pool and it is those
men looking down at her who are
(1) A man and a woman enters a movie malicious.
house which is a public place and
then goes to the darkest part of the This is an act which even though
balcony and while there the man done in a private place is
started performing acts of nonetheless open to public view.
lasciviousness on the woman.
If it is against the will of the woman, Article 201. Immoral Doctrines, Obscene
the crime would be acts of Publications and Exhibitions and
lasciviousness. But if there is Indecent Shows
mutuality, this constitutes grave
scandal. Public view is not Acts punished
necessary so long as it is performed
in a public place. 1. Those who shall publicly expound or
proclaim doctrines openly contrary to
public morals;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 202. Vagrants and Prostitutes; If the material has the tendency to deprave
Penalty and corrupt the mind of the viewer then the
same is obscene and where such obscenity
Vagrants is made publicly, criminal liability arises.
1. Any person having no apparent means Because there is a government body which
of subsistence, who has the physical deliberates whether a certain exhibition,
ability to work and who neglects to apply movies and plays is pornographic or not, if
himself or herself to some lawful calling; such body approves the work the same
should not be charged under this title.
2. Any person found loitering about public Because of this, the test of obscenity may
or semi-public buildings or places or be obsolete already. If allowed by the
trampling or wandering about the Movies and Television Review and
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Classification Board (MTRCB), the question appears that the fellow was selling a
is moot and academic. ballpen where one who buys the ballpen
can peep into the top of the pen and see a
The law is not concerned with the moral of girl dancing in it. He put up the defense
one person. As long as the pornographic that he is not the manufacturer and that he
matter or exhibition is made privately, there was merely selling it to earn a living. The
is no crime committed under the Revised fact of selling the ballpen was being done at
Penal Code because what is protected is the expense of public morals. One does
the morality of the public in general. Third not have to be the manufacturer to be
party is there. Performance of one to criminally liable. This holds true for those
another is not. printing or selling Playboy Magazines.
In People v. Aparici, the accused was a Vagrancy is not only a crime of the
performer in the defunct Pacific Theatre, a privileged or the poor. The law punishes
movie house which opens only at midnight. the act involved here as a stepping stone to
She was arrested because she was the commission of other crimes. Without
dancing in a “different kind of way.” She this article, law enforcers would have no
was not really nude. She was wearing way of checking a person loitering in the
some sort of an abbreviated bikini with a wrong place in the wrong time. The
flimsy cloth over it. However, on her waist purpose of the law is not simply to punish a
hung a string with a ball reaching down to person because he has no means of
her private part so that every time she livelihood; it is to prevent further criminality.
gyrates, it arouses the audience when the Use this when someone loiters in front of
ball would actually touch her private part. your house every night.
The defense set up by Aparici was that she
should not be criminally liable for as a Any person found wandering in an estate
matter of fact, she is better dressed than belonging to another whether public or
the other dancers. The Supreme Court private without any lawful purpose also
ruled that it is not only the display of the commits vagrancy, unless his acts
body that gives it a depraved meaning but constitutes some other crime in the Revised
rather the movement of the body coupled Penal Code.
with the “tom-tom drums” as background.
Nudity alone is not the real scale. (Reaction
Test)
Question & Answer
Illustration:
If a person is found wandering in an
A sidewalk vendor was arrested and estate belonging to another, whether public
prosecuted for violation of Article 201. It
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
or private, without any lawful purpose, what or solicitors of clients are guilty of the crime
other crimes may be committed? under Article 341 for white slavery.
In law the mere indulging in lascivious 13. Prohibited transactions (Art. 215);
conduct habitually because of money or
gain would amount to prostitution, even if 14. Possession of prohibited interest by
there is no sexual intercourse. Virginity is a public officer (Art. 216);
not a defense. Habituality is the controlling
factor; is has to be more than one time. 15. Malversation of public funds or
property – Presumption of
There cannot be prostitution by conspiracy. malversation (Art. 217)
One who conspires with a woman in the
prostitution business like pimps, taxi drivers
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
25. Opening of closed documents (Art. 42. Abuses against chastity (Art. 245).
228);
b. Rendering a manifestly
unjust interlocutory order or Article 208. Prosecution of Offenses;
decree through inexcusable Negligence and Tolerance
negligence or ignorance.
Acts Punished
(3) He may be held liable for violating But in the crime of theft or robbery, where
the Anti-Graft and Corrupt Practices the policeman shared in the loot and
Act. allowed the offender to go free, he becomes
a fence. Therefore, he is considered an
However, in distant provinces or offender under the Anti-Fencing Law.
municipalities where there are no municipal
attorneys, the local chief of police is the Relative to this crime under Article 208,
prosecuting officer. If he is the one who consider the crime of qualified bribery.
tolerates the violations of laws or otherwise Among the amendments made by Republic
allows offenders to escape, he can be Act No. 7659 on the Revised Penal Code is
prosecuted under this article. a new provision which reads as follows:
modifies Article 210 of the Revised Penal A fiscal, for a sum of money, refrains from
Code on direct bribery. prosecuting a person charged before him.
If the penalty for the crime involved is
However, the crime of qualified bribery may reclusion perpetua, the fiscal commits
be committed only by public officers qualified bribery. If the crime is punishable
“entrusted with enforcement” whose official by a penalty lower than reclusion perpetua,
duties authorize then to arrest or prosecute the crime is direct bribery.
offenders. Apparently, they are peace
officers and public prosecutors since the In the latter situation, three crimes are
nonfeasance refers to “arresting or committed: direct bribery and dereliction of
prosecuting.” But this crime arises only duty on the part of the fiscal; and corruption
when the offender whom such public officer of a public officer by the giver.
refrains from arresting or prosecuting, has
committed a crime punishable by reclusion
perpetua and/or death. If the crime were Article 209. Betrayal of Trust by An
punishable by a lower penalty, then such Attorney or Solicitor – Revelation of
nonfeasance by the public officer would Secrets
amount to direct bribery, not qualified
bribery. Acts punished
If the crime was qualified bribery, the 1. Causing damage to his client, either—
dereliction of the duty punished under
Article 208 of the Revised Penal Code a. By any malicious breach of
should be absorbed because said article professional duty;
punishes the public officer who “maliciously
refrains from instituting prosecution for the b. By inexcusable negligence or
punishment of violators of the law or shall ignorance.
tolerate the commission of offenses”. The
dereliction of duty referred to is necessarily Note: When the attorney acts with
included in the crime of qualified bribery. malicious abuse of his employment
or inexcusable negligence or
On the other hand, if the crime was direct ignorance, there must be damage to
bribery under Article 210 of the Revised his client.
Penal Code, the public officer involved
should be prosecuted also for the 2. Revealing any of the secrets of his
dereliction of duty, which is a crime under client learned by him in his
Article 208 of the Revised Penal Code, professional capacity;
because the latter is not absorbed by the
crime of direct bribery. This is because in 3. Undertaking the defense of the
direct bribery, where the public officer opposing party in the same case,
agreed to perform an act constituting a without the consent of his first client,
crime in connection with the performance of after having undertaken the defense
his official duties, Article 210 expressly of said first client of after having
provides that the liabilty thereunder shall be received confidential information
“in addition to the penalty corresponding to from said client.
the crime agreed upon, if the crime shall
have been committed.
Under the rules on evidence,
Illustration: communications made with prospective
clients to a lawyer with a view to engaging
his professional services are already
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If lawyer was neglectful in filing an answer, 1. Offender is a public officer within the
and his client declared in default, and there scope of Article 203;
was an adverse judgment, the client
suffered damages. The lawyer is liable. 2. Offender accepts an offer or a
promise or receives a gift or present
Breach of confidential relation by himself or through another;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
about the crime of direct bribery and refraining would give rise to a crime, such
corruption of public official. as refraining to prosecute an offender, the
mere agreement to do so will consummate
If the records were actually the bribery and the corruption, even if no
removed, both the public officer and money was delivered to him. If the
the corruptor will in addition to the refraining is not a crime, it would only
two felonies above, will also be amount to bribery if the consideration be
liable for the crime committed, which delivered to him.
is infidelity in the custody of the
public records for which they shall If it is not a crime, the consideration must
be liable as principals; one as be delivered by the corruptor before a
principal by inducement, the other public officer can be prosecuted for bribery.
as principal by direct participation. Mere agreement, is not enough to
constitute the crime because the act to be
(2) A party litigant approached the done in the first place is legitimate or in the
court’s stenographer and proposed performance of the official duties of the
the idea of altering the transcript of public official.
stenographic notes. The court
stenographer agreed and he Unless the public officer receives the
demanded P 2,000.00. consideration for doing his official duty,
there is no bribery. It is necessary that
Unknown to them, there were law there must be delivery of monetary
enforcers who already had a tip that consideration. This is so because in the
the court stenographer had been second situation, the public officer actually
doing this before. So they were performed what he is supposed to perform.
waiting for the chance to entrap him. It is just that he would not perform what he
They were apprehended and they is required by law to perform without an
said they have not done anything added consideration from the public which
yet. gives rise to the crime.
Under Article 210, the mere The idea of the law is that he is being paid
agreement to commit the act, which salary for being there. He is not supposed
amounts to a crime, is already to demand additional compensation from
bribery. That stenographer the public before performing his public
becomes liable already for service. The prohibition will apply only
consummated crime of bribery and when the money is delivered to him, or if he
the party who agreed to give that performs what he is supposed to perform in
money is already liable for anticipation of being paid the money.
consummated corruption, even
though not a single centavo is Here, the bribery will only arise when there
delivered yet and even though the is already the acceptance of the
stenographer had not yet made the consideration because the act to be done is
alterations. not a crime. So, without the acceptance,
the crime is not committed.
If he changed the transcript, another
crime is committed: falsification. Direct bribery may be committed only in the
attempted and consummated stages
because, in frustrated felony, the offender
The same criterion will apply with respect to must have performed all the acts of
a public officer who agrees to refrain from execution which would produce the felony
performing his official duties. If the as a consequence. In direct bribery, it is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
possible only if the corruptor concurs with intention to corrupt her and
the offender. Once there is concurrence, therefore, he could not perform all
the direct bribery is already consummated. the acts of execution.
In short, the offender could not have
performed all the acts of execution to Be sure that what is involved is a
produce the felony without consummating crime of bribery, not extortion. If it
the same. were extortion, the crime is not
bribery, but robbery. The one who
Actually, you cannot have a giver unless yielded to the demand does not
there is one who is willing to receive and commit corruption of a public officer
there cannot be a receiver unless there is because it was involuntary.
one willing to give. So this crime requires
two to commit. It cannot be said, therefore,
that one has performed all the acts of Article 211. Indirect Bribery
execution which would produce the felony
as a consequence but for reasons Elements
independent of the will, the crime was not
committed. 1. Offender is a public officer;
4. Offender refrains from arresting or (2) He must willingly testify against the
prosecuting in consideration of any offer, public officer involved in the case to
promise, gift, or present. be filed against the latter.
one transaction does not extend to other (2) By receiving, directly or indirectly,
transactions. any commission, gift, share,
percentage, kickbacks or any other
The immunity attaches only if the form of pecuniary benefit from any
information given turns out to be true and person and/or entity in connection
correct. If the same is false, the public with any government contract or
officer may even file criminal and civil project by reason of the office or
actions against the informant for perjury and position of the public officer;
the immunity under the decree will not
protect him. (3) By illegal or fraudulent conveyance
or disposition of asset belonging to
the national government or any of its
Republic Act No. 7080 (Plunder) subdivisions, agencies or
instrumentalities or government-
Plunder is a crime defined and penalized owned or controlled corporations
under Republic Act No. 7080, which and their subsidiaries;
became effective in 1991. This crime
somehow modified certain crimes in the (4) By obtaining, receiving, or accepting
Revised Penal Code insofar as the overt directly or indirectly any shares of
acts by which a public officer amasses, stock, equity or any other form of
acquires, or accumulates ill-gotten wealth interest or participation including the
are felonies under the Revised Penal Code promise of future employment in any
like bribery (Articles 210, 211, 211-A), fraud business or undertaking;
against the public treasury [Article 213],
other frauds (Article 214), malversation (5) By establishing agricultural,
(Article 217), when the ill-gotten wealth industrial, or commercial monopolies
amounts to a total value of P50,000,000.00. or other combinations and/or
The amount was reduced from implementations of decrees and
P75,000,000.00 by Republic Act No. 7659 orders intended to benefit particular
and the penalty was changed from life persons or special interests; or
imprisonment to reclusion perpetua to
death. (6) By taking undue advantage of official
position, authority, relationship,
Short of the amount, plunder does not arise. connection or influence to unjustly
Any amount less than P50,000,000.00 is a enrich himself or themselves at the
violation of the Revised Penal Code or the expense and to the damage and
Anti-Graft and Corrupt Practices Act. prejudice of the Filipino people, and
the Republic of the Philippines.
Under the law on plunder, the prescriptive
period is 20 years commencing from the
time of the last overt act. While the crime appears to be malum
prohibitum, Republic Act No. 7080 provides
Plunder is committed through a combination that “in the imposition of penalties, the
or series of overt acts: degree of participation and the attendance
of mitigating and aggravating circumstances
(1) Through misappropriation, shall be considered by the court”.
conversion, misuse, or malversation
of public funds or raids on the public
treasury;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Republic Act No. 3019 (Anti-Graft and that he performed the prohibited act
Corrupt Practices Act) voluntarily. Even though the prohibited act
may have benefited the government. The
The mere act of a public officer demanding crime is still committed because the law is
an amount from a taxpayer to whom he is to not after the effect of the act as long as the
render public service does not amount to act is prohibited.
bribery, but will amount to a violation of the
Anti-graft and Corrupt Practices Act. Section 3 (g) of the Anti-Graft and Corrupt
Practices Act – where a public officer
Illustration: entered into a contract for the government
which is manifestly disadvantageous to the
A court secretary received P500 .00 from a government even if he did not profit from
litigant to set a motion for an early hearing. the transaction, a violation of the Anti-Graft
This is direct bribery even if the act to be and Corrupt Practices Act is committed.
performed is within his official duty so long
as he received a consideration therefor. If a public officer, with his office and a
private enterprise had a transaction and he
If the secretary persuaded the judge to allows a relative or member of his family to
make a favorable resolution, even if the accept employment in that enterprise, good
judge did not do so, this constitutes a faith is not a defense because it is a malum
violation of Anti-Graft and Corrupt Practices prohibitum. It is enough that that the act
Act, Sub-Section A. was performed.
Under the Anti-Graft and Corrupt Practices Where the public officer is a member of the
Act, particularly Section 3, there are several board, panel or group who is to act on an
acts defined as corrupt practices. Some of application of a contract and the act
them are mere repetitions of the act already involved one of discretion, any public officer
penalized under the Revised Penal Code, who is a member of that board, panel or
like prohibited transactions under Article group, even though he voted against the
215 and 216. In such a case, the act or approval of the application, as long as he
omission remains to be mala in se. has an interest in that business enterprise
whose application is pending before that
But there are acts penalized under the Anti- board, panel or group, the public officer
Graft and Corrupt Practices Act which are concerned shall be liable for violation of the
not penalized under the Revised Penal Anti-Graft and Corrupt Practices Act. His
Code. Those acts may be considered as only course of action to avoid prosecution
mala prohibita. Therefore, good faith is not under the Anti-graft and Corrupt Practices
a defense. Act is to sell his interest in the enterprise
which has filed an application before that
Illustration: board, panel or group where he is a
member. Or otherwise, he should resign
Section 3 (e) of the Anti-Graft and Corrupt from his public position.
Practices Act – causing undue injury to the
government or a private party by giving Illustration:
unwarranted benefit to the party whom does
not deserve the same. Sen. Dominador Aytono had an interest in
the Iligan Steel Mills, which at that time was
In this case, good faith is not a defense being subject of an investigation by the
because it is in the nature of a malum Senate Committee of which he was a
prohibitum. Criminal intent on the part of chairman. He was threatened with
the offender is not required. It is enough prosecution under Republic Act No. 3019 so
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
he was compelled to sell all his interest in booked and incarcerated no matter how
that steel mill; there is no defense. Because short the time may be.
the law says so, even if he voted against it,
he commits a violation thereof. The policeman could not be said as having
assisted the escape of the offender
These cases are filed with the Ombudsman because as the problem says, he is
and not with the regular prosecutor’s office. assigned to direct traffic in a busy corner
Jurisdiction is exclusively with the street. So he cannot be considered as
Sandiganbayan. The accused public officer falling under the third 3rd paragraph of
must be suspended when the case is Article 19 that would constitute his as an
already filed with the Sandiganbayan. accessory.
Under the Anti-Graft and Corrupt Practices The same is true with the civilian because
Act, the public officer who is accused the crime committed by the offender, which
should not be automatically suspended is snatching or a kind of robbery or theft as
upon the filing of the information in court. It the case may be, is not one of those crimes
is the court which will order the suspension mentioned under the third paragraph of
of the public officer and not the superior of Article 19 of the Revised Penal Code.
that public officer. As long as the court has
not ordered the suspension of the public Where the public officer is still incumbent,
officer involved, the superior of that public the prosecution shall be with the
officer is not authorized to order the Ombudsman.
suspension simply because of the violation
of the Anti-Graft and Corrupt Practices Act. Where the respondent is separated from
The court will not order the suspension of service and the period has not yet
the public officer without first passing upon prescribed, the information shall be filed in
the validity of the information filed in court. any prosecution’s office in the city where
Without a hearing, the suspension would be the respondent resides. The prosecution
null and void for being violative of due shall file the case in the Regional Trial Court
process. unless the violation carries a penalty higher
than prision correccional, in which case the
Illustration: Sandiganbayan has jurisdiction.
A public officer was assigned to direct traffic The fact that the government benefited out
in a very busy corner. While there, he of the prohibited act is no defense at all, the
caught a thief in the act of lifting the wallet violation being mala prohibita.
of a pedestrian. As he could not leave his
post, he summoned a civilian to deliver the Section 3 (f) of the Anti-Graft and Corrupt
thief to the precinct. The civilian agreed so Practices Act – where the public officer
he left with the thief. When they were neglects or refuses to act on a matter
beyond the view of the policeman, the pending before him for the purpose of
civilian allowed the thief to go home. What obtaining any pecuniary or material benefit
would be the liability of the public officer? or advantage in favor of or discriminating
against another interested party.
The liability of the traffic policeman would
be merely administrative. The civilian has The law itself additionally requires that the
no liability at all. accused’s dereliction, besides being without
Firstly, the offender is not yet a prisoner so justification, must be for the purpose of
there is no accountability yet. The term obtaining from any person interested in the
“prisoner” refers to one who is already matter some pecuniary or material benefit
or for the purpose of favoring any interested
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
1. Entering into an agreement with any The essence of this crime is making the
interested party or speculator or government pay for something not received
making use of any other scheme, to or making it pay more than what is due. It
defraud the government, in dealing is also committed by refunding more than
with any person with regard to the amount which should properly be
furnishing supplies, the making of refunded. This occurs usually in cases
contracts, or the adjustment or where a public officer whose official duty is
settlement of accounts relating to to procure supplies for the government or
public property or funds; enter into contract for government
transactions, connives with the said supplier
2. Demanding, directly or indirectly, the with the intention to defraud the
payment of sums different from or government. Also when certain supplies for
larger than those authorized by law, the government are purchased for the high
in collection of taxes, licenses, fees, price but its quantity or quality is low.
and other imposts;
Illustrations:
3. Failing voluntarily to issue a receipt,
as provided by law, for any sum of (1) A public official who is in charge of
money collected by him officially, in procuring supplies for the
the collection of taxes, licenses, government obtained funds for the
fees, and other imposts; first class materials and buys inferior
quality products and pockets the
4. Collecting or receiving, directly or excess of the funds. This is usually
indirectly, by way of payment or committed by the officials of the
otherwise, things or objects of a Department of Public Works and
nature different from that provided by Highways.
law, in the collection of taxes,
licenses, fees, and other imposts. (2) Poorest quality of ink paid as if it
were of superior quality.
Elements of frauds against public treasury (3) One thousand pieces of blanket for
under paragraph 1 certain unit of the Armed Forces of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
the Philippines were paid for but Elements of illegal exactions under
actually, only 100 pieces were paragraph 2
bought.
1. Offender is a public officer entrusted
(4) The Quezon City government with the collection of taxes, licenses,
ordered 10,000 but what was fees and other imposts;
delivered was only 1,000 T-shirts,
the public treasury is defrauded 2. He is guilty of any of the following
because the government is made to acts or omissions:
pay that which is not due or for a
higher price. a. Demanding, directly or
indirectly, the payment of
Not all frauds will constitute this crime. sums different from or larger
There must be no fixed allocation or amount than those authorized by law;
on the matter acted upon by the public or
officer.
b. Failing voluntarily to issue a
The allocation or outlay was made the basis receipt, as provided by law,
of fraudulent quotations made by the public for any sum of money
officer involved. collected by him officially; or
This provision of the Revised Penal Code abstract the P100.00, issued a
was provided before the Bureau of Internal receipt for only P400.00. The
Revenue and the Tariff and Customs Code. taxpayer would naturally ask the
Now, we have specific Code which will municipal treasurer why the receipt
apply to them. In the absence of any was only for P400.00. The treasurer
provision applicable, the Revised answered that the P100.00 is
Administrative Code will apply. supposed to be for documentary
stamps. The taxpayer left.
The essence of the crime is not
misappropriation of any of the amounts but He has a receipt for P400.00. The
the improper making of the collection which municipal treasurer turned over to
would prejudice the accounting of collected the government coffers P400.00
amounts by the government. because that is due the government
and pocketed the P100.00.
On the first form of illegal exaction
The mere fact that there was a
In this form, mere demand will consummate demand for an amount different from
the crime, even if the taxpayer shall refuse what is due the government, the
to come across with the amount being public officer already committed the
demanded. That will not affect the crime of illegal exaction.
consummation of the crime.
On the P100.00 which the public
In the demand, it is not necessary that the officer pocketed, will it be
amount being demanded is bigger than malversation or estafa?
what is payable to the government. The
amount being demanded maybe less than In the example given, the public
the amount due the government. officer did not include in the official
receipt the P100.00 and, therefore, it
Note that this is often committed with did not become part of the public
malversation or estafa because when a funds. It remained to be private. It
public officer shall demand an amount is the taxpayer who has been
different from what the law provides, it can defrauded of his P100.00 because
be expected that such public officer will not he can never claim a refund from the
turn over his collection to the government. government for excess payment
since the receipt issued to him was
Illustrations: only P400.00 which is due the
government. As far as the P100.00
(1) A taxpayer goes to the local is concerned, the crime committed is
municipal treasurer to pay real estafa.
estate taxes on his land. Actually,
what is due the government is (3) A taxpayer pays his taxes. What is
P400.00 only but the municipal due the government is P400.00 and
treasurer demanded P500.00. By the public officer issues a receipt for
that demand alone, the crime of P500.00 upon payment of the
illegal exaction is already committed taxpayer of said amount demanded
even though the taxpayer does not by the public officer involved. But he
pay the P500.00. altered the duplicate to reflect only
P400.00 and he extracted the
(2) Suppose the taxpayer came across difference of P100.00.
with P500.00. But the municipal
treasurer, thinking that he would
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
In this case, the entire P500.00 was trust by a public officer entrusted to
covered by an official receipt. That make the collection which is
act of covering the whole amount penalized under such article. The
received from the taxpayer in an falsification or alteration made on
official receipt will have the the duplicate can not be said as a
characteristics of becoming a part of means to commit malversation. At
the public funds. The crimes most, the duplicate was altered in
committed, therefore, are the order to conceal the malversation.
following: So it cannot be complexed with the
malversation.
(a) Illegal exaction – for
collecting more than he is It cannot also be said that the
authorized to collect. The falsification is a necessary means to
mere act of demanding is commit the malversation because
enough to constitute this the public officer can misappropriate
crime. the P100.00 without any falsification.
All that he has to do is to get the
(b) Falsification – because there excess of P100.00 and
was an alteration of official misappropriate it. So the
document which is the falsification is a separate accusation.
duplicate of the official
receipt to show an amount However, illegal exaction may be
less than the actual amount complexed with malversation
collected. because illegal exaction is a
necessary means to be able to
(c) Malversation – because of collect the P100.00 excess which
his act of misappropriating was malversed.
the P100.00 excess which
was covered by an official In this crime, pay attention to
receipt already, even though whether the offender is the one
not payable to the charged with the collection of the
government. The entire tax, license or impost subject of the
P500.00 was covered by the misappropriation. If he is not the
receipt, therefore, the whole one authorized by disposition to do
amount became public the collection, the crime of illegal
funds. So when he exaction is not committed.
appropriated the P100 for his
own benefit, he was not If it did not give rise to the crime of
extracting private funds illegal exaction, the funds collected
anymore but public funds. may not have become part of the
public funds. If it had not become
Should the falsification be part of the public funds, or had not
complexed with the malversation? become impressed with being part
of the public funds, it cannot be the
As far as the crime of illegal exaction subject of malversation. It will give
is concerned, it will be the subject of rise to estafa or theft as the case
separate accusation because there, may be.
the mere demand regardless of
whether the taxpayer will pay or not, (3) The Municipal Treasurer demanded
will already consummate the crime P500.00 when only P400.00 was
of illegal exaction. It is the breach of due. He issued the receipt at
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
P400.00 and explained to taxpayer give rise to illegal exaction even though a
that the P100 was for documentary provisional receipt has been issued. What
stamps. The Municipal Treasurer the law requires is a receipt in the form
placed the entire P500.00 in the prescribed by law, which means official
vault of the office. When he needed receipt.
money, he took the P100.00 and
spent it. Illustration:
Although the excess P100.00 was Under the rules and regulations of the
not covered by the Official Receipt, it government, payment of checks not
was commingled with the other belonging to the taxpayer, but that of
public funds in the vault; hence, it checks of other persons, should not be
became part of public funds and accepted to settle the obligation of that
subsequent extraction thereof person.
constitutes malversation.
Illustration:
Note that numbers 1 and 2 are complexed A taxpayer pays his obligation with a check
as illegal exaction with estafa, while in not his own but pertaining to another.
number 3, malversation is a distinct offense. Because of that, the check bounced later
on.
The issuance of the Official Receipt is the
operative fact to convert the payment into The crime committed is illegal exaction
public funds. The payor may demand a because the payment by check is not
refund by virtue of the Official Receipt. allowed if the check does not pertain to the
taxpayer himself, unless the check is a
In cases where the payor decides to let the manager’s check or a certified check,
official to “keep the change”, if the latter amended already as of 1990. (See the
should pocket the excess, he shall be liable case of Roman Catholic.)
for malversation. The official has no right
but the government, under the principle of Under Article 213, if any of these acts
accretion, as the owner of the bigger penalized as illegal exaction is committed
amount becomes the owner of the whole. by those employed in the Bureau of
Customs or Bureau of Internal Revenue,
On the second form of illegal exaction the law that will apply to them will be the
Revised Administrative Code or the Tariff
The act of receiving payment due the and Customs Code or National Revenue
government without issuing a receipt will Code.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Section 2, Article IX-A of the Constitution 3. Those funds or property were public
funds or property for which he was
No member of a Constitutional accountable;
Commission shall, during his tenure, hold
any office or employment. Neither shall he 4. He appropriated, took,
engage in the practice of any profession or misappropriated or consented or,
in the active management or control of any through abandonment or negligence,
business which in any way may be affected permitted another person to take
by the functions of his office, nor shall he be them.
financially interested, directly or indirectly, in
any contract with, or in any franchise or
privilege granted by the government, or any This crime is predicated on the relationship
of its subdivisions, agencies, or of the offender to the property or funds
instrumentalities, including government- involved. The offender must be
owned or controlled corporations or their accountable for the property
subsidiaries. misappropriated. If the fund or property,
though public in character is the
responsibility of another officer,
Article 217. Malversation of Public malversation is not committed unless there
Funds or Property – Presumption of is conspiracy.
Malversation
It is not necessary that the offender profited
Acts punished because somebody else may have
misappropriated the funds in question for as
1. Appropriating public funds or long as the accountable officer was remiss
property; in his duty of safekeeping public funds or
property. He is liable for malversation if
2. Taking or misappropriating the such funds were lost or otherwise
same; misappropriated by another.
(2) An accountable public officer, out of Note that the moment any money is
laziness, declares that the payment commingled with the public fund even if not
was made to him after he had due the government, it becomes impressed
cleaned his table and locked his with the characteristic of being part of public
safe for the collection of the day. A funds. Once they are commingled, you do
taxpayer came and he insisted that not know anymore which belong to the
he pay the amount so that he will not government and which belong to the private
return the next day. So he accepted persons. So that a public vault or safe
the payment but is too lazy to open should not be used to hold any fund other
the combination of the public safe. that what is due to the government.
He just pocketed the money. When
he came home, the money was still When does presumption of
in his pocket. The next day, when misappropriation arise?
he went back to the office, he
changed clothes and he claims that When a demand is made upon an
he forgot to put the money in the accountable officer and he cannot produce
new funds that he would collect the the fund or property involved, there is a
next day. Government auditors prima facie presumption that he had
came and subjected him to converted the same to his own use. There
inspection. He was found short of must be indubitable proof that thing
that amount. He claimed that it is in unaccounted for exists. Audit should be
his house -- with that alone, he was made to determine if there was shortage.
charged with malversation and was Audit must be complete and trustworthy. If
convicted. there is doubt, presumption does not arise.
Any overage or excess in the collection of Presumption arises only if at the time the
an accountable public officer should not be demand to produce the public funds was
extracted by him once it is commingled with made, the accountability of the accused is
the public funds. already determined and liquidated. A
demand upon the accused to produce the
Illustration: funds in his possession and a failure on his
part to produce the same will not bring
When taxpayers pay their accountabilities to about this presumption unless and until the
the government by way of taxes or licenses amount of his accountability is already
like registration of motor vehicles, the known.
taxpayer does not bother to collect loose
change. So the government cashier In Dumagat v. Sandiganbayan, 160 SCRA
accumulates the loose change until this 483, it was held that the prima facie
amounts to a sizable sum. In order to avoid presumption under the Revised Penal Code
malversation, the cashier did not separate arises only if there is no issue as to the
what is due the government which was left accuracy, correctness and regularity of the
to her by way of loose change. Instead, he audit findings and if the fact that public
gets all of these and keeps it in the public funds are missing is indubitably established.
vault/safe. After the payment of the taxes The audit must be thorough and complete
and licenses is through, he gets all the down to the last detail, establishing with
official receipts and takes the sum total of absolute certainty the fact that the funds are
the payment. He then opens the public indeed missing.
vault and counts the cash. Whatever will be
the excess or the overage, he gets. In this
case, malversation is committed.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 219. Failure of A Responsible 2. There are public funds or property under
Public Officer to Render Accounts before his administration;
Leaving the Country
3. Such fund or property were appropriated
Elements by law or ordinance;
When an accountable officer leaves the The offender is entrusted with such fund or
country without first settling his property only to administer or apply the
accountability or otherwise securing a same to the public purpose for which it was
clearance from the Commission on Audit appropriated by law or ordinance. Instead
regarding such accountability, the of applying it to the public purpose to which
implication is that he left the country the fund or property was already
because he has misappropriated the funds appropriated by law, the public officer
under his accountability. applied it to another purpose.
Who can commit this crime? A responsible Since damage is not an element of
public officer, not necessarily an malversation, even though the application
accountable one, who leaves the country made proved to be more beneficial to public
without first securing clearance from the interest than the original purpose for which
Commission on Audit. the amount or property was appropriated by
law, the public officer involved is still liable
The purpose of the law is to discourage for technical malversation.
responsible or accountable officers from
leaving without first liquidating their If public funds were not yet appropriated by
accountability. law or ordinance, and this was applied to a
public purpose by the custodian thereof, the
Mere leaving without securing clearance crime is plain and simple malversation, not
constitutes violation of the Revised Penal technical malversation. If the funds had
Code. It is not necessary that they really been appropriated for a particular public
misappropriated public funds. purpose, but the same was applied to
private purpose, the crime committed is
simple malversation only.
Article 220. Illegal use of public funds or
property Illustration:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
1. Public officer has government funds Article 225. Escape of Prisoner under the
in his possession; Custody of a Person not a Public Officer
3. Such prisoner escaped from his The crime is infidelity in the custody of
custody; prisoners if the offender involved is the
custodian of the prisoner.
4. He was in connivance with the prisoner
in the latter’s escape. If the offender who aided or consented to
the prisoner’s escaping from confinement,
whether the prisoner is a convict or a
Classes of prisoners involved detention prisoner, is not the custodian, the
crime is delivering prisoners from jail under
1. If the fugitive has been sentenced by Article156.
final judgment to any penalty;
The crime of infidelity in the custody of
2. If the fugitive is held only as prisoners can be committed only by the
detention prisoner for any crime or custodian of a prisoner.
violation of law or municipal
ordinance. If the jail guard who allowed the prisoner to
escape is already off-duty at that time and
he is no longer the custodian of the
Article 224. Evasion through Negligence prisoner, the crime committed by him is
delivering prisoners from jail.
Elements
Note that you do not apply here the
1. Offender is a public officer; principle of conspiracy that the act of one is
the act of all. The party who is not the
2. He is charged with the conveyance or custodian who conspired with the custodian
custody of a prisoner or prisoner by final in allowing the prisoner to escape does not
judgment; commit infidelity in the custody of the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Illustration:
Article 226. Removal, Concealment, or
Destruction of Documents If any citizen goes to a public office, desiring
to go over public records and the custodian
Elements of the records had concealed the same so
that this citizen is required to go back for the
1. Offender is a public officer; record to be taken out, the crime of infidelity
is already committed by the custodian who
2. He abstracts, destroys or conceals a removed the records and kept it in a place
document or papers; where it is not supposed to be kept. Here, it
is again the breach of public trust which is
3. Said document or papers should punished.
have been entrusted to such public
officer by reason of his office; Although there is no material damage
caused, mere delay in rendering public
4. Damage, whether serious or not, to service is considered damage.
a third party or to the public interest
has been caused. Removal of public records by the custodian
does not require that the record be brought
Crimes falling under the section on infidelity out of the premises where it is kept. It is
in the custody of public documents can only enough that the record be removed from
be committed by the public officer who is the place where it should be and transferred
made the custodian of the document in his to another place where it is not supposed to
official capacity. If the officer was placed in be kept. If damage is caused to the public
possession of the document but it is not his service, the public officer is criminally liable
duty to be the custodian thereof, this crime for infidelity in the custody of official
is not committed. documents.
4. He does not have proper authority. Article 230. Public Officer Revealing
Secrets of Private individual
Illustration:
Any public officer who, upon being
requested to render public assistance within A fireman was asked by a private person for
his official duty to render and he refuses to services but was refused by the former for
render the same when it is necessary in the lack of “consideration”.
administration of justice or for public
service, may be prosecuted for refusal of It was held that the crime is not refusal of
assistance. assistance because the request did not
come from a public authority. But if the
This is a crime, which a policeman may fireman was ordered by the authority to put
commit when, being subpoenaed to appear out the fire and he refused, the crime is
in court in connection with a crime refusal of assistance.
investigated by him but because of some
arrangement with the offenders, the If he receives consideration therefore,
policeman does not appear in court bribery is committed. But mere demand will
anymore to testify against the offenders. fall under the prohibition under the provision
He tried to assail the subpoena so that of Republic Act No. 3019 (Anti-Graft and
ultimately the case would be dismissed. It Corrupt Practices Act).
was already held that the policeman could
be prosecuted under this crime of refusal of
assistance and not that of dereliction of Article 234. Refusal to Discharge
duty. Elective Office
Illustration: Elements
Illustration:
Article 235. Maltreatment of Prisoners
Make him drink dirty water, sit on ice, eat on
Elements a can, make him strip, hang a sign on his
neck saying “snatcher”.
1. Offender is a public officer or
employee; But if as a result of the maltreatment,
physical injuries were caused to the
2. He has under his charge a prisoner prisoner, a separate crime for the physical
or detention prisoner; injuries shall be filed. You do not complex
the crime of physical injuries with the
3. He maltreats such prisoner in either maltreatment because the way Article 235
of the following manners: is worded, it prohibits the complexing of the
crime.
a. By overdoing himself in the
correction or handling of a If the maltreatment was done in order to
prisoner or detention prisoner extort confession, therefore, the
under his charge either – constitutional right of the prisoner is further
violated. The penalty is qualified to the next
(1) By the imposition of higher degree.
punishment not
authorized by the The offended party here must be a prisoner
regulations; or in the legal sense. The mere fact that a
private citizen had been apprehended or
(2) By inflicting such arrested by a law enforcer does not
punishments (those constitute him a prisoner. To be a prisoner,
authorized) in a cruel he must have been booked and
and humiliating incarcerated no matter how short it is.
manner; or
Illustration:
b. By maltreating such
prisoners to extort a A certain snatcher was arrested by a law
confession or to obtain some enforcer, brought to the police precinct,
information from the prisoner. turned over to the custodian of that police
precinct. Every time a policeman entered
the police precinct, he would ask, “What is
This is committed only by such public officer this fellow doing here? What crime has he
charged with direct custody of the prisoner. committed?”. The other policeman would
Not all public officer can commit this then tell, “This fellow is a snatcher.” So
offense. every time a policeman would come in, he
would inflict injury to him. This is not
If the public officer is not the custodian of maltreatment of prisoner because the
the prisoner, and he manhandles the latter, offender is not the custodian. The crime is
the crime is physical injuries. only physical injuries.
The maltreatment does not really require But if the custodian is present there and he
physical injuries. Any kind of punishment allowed it, then he will be liable also for the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
physical injuries inflicted, but not for 4. He has not taken his oath of office
maltreatment because it was not the and/or given the bond required by
custodian who inflicted the injury. law.
Before this point in time, when he is not yet 1. Offender is a public officer;
a prisoner, the act of hanging a sign on his
neck will only amount to slander because 2. He formally resigns from his
the idea is to cast dishonor. Any injury position;
inflicted upon him will only give rise to the
crime of physical injuries. 3. His resignation has not yet been
accepted;
Elements
Article 239. Usurpation of Legislative
1. Offender is entitled to hold a public Powers
office or employment, either by
election or appointment; Elements
Article 242. Disobeying Request for 4. Offender knows that his nominee or
Disqualification appointee lacks the qualification at
the time he made the nomination or
Elements appointment.
2. He solicits or makes immoral or Three instances when this crime may arise:
indecent advances to a woman;
(1) The woman, who is the offended
3. Such woman is – party, is the party in interest in a
case where the offended is the
a. interested in matters pending investigator or he is required to
before the offender for render a report or he is required to
decision, or with respect to consult with a superior officer.
which he is required to
submit a report to or consult
with a superior officer; or This does not include any casual or
incidental interest. This refers to
b. under the custody of the interest in the subject of the case
offender who is a warden or under investigation.
other public officer directly
charged with the care and If the public officer charged with the
custody of prisoners or investigation or with the rendering of
persons under arrest; or the report or with the giving of
advice by way of consultation with a
c. the wife, daughter, sister or superior, made some immoral or
relative within the same indecent solicitation upon such
degree by affinity of the woman, he is taking advantage of
person in the custody of the his position over the case. For that
offender. immoral or indecent solicitation, a
crime is already committed even if
the woman did not accede to the
The name of the crime is misleading. It solicitation.
implies that the chastity of the offended
party is abused but this is not really the Even if the woman may have lied
essence of the crime because the essence with the hearing officer or to the
of the crime is mere making of immoral or public officer and acceded to him,
indecent solicitation or advances. that does not change the crime
because the crime seeks to penalize
Illustration: the taking advantage of official
duties.
Mere indecent solicitation or advances of a
woman over whom the public officer It is immaterial whether the woman
exercises a certain influence because the did not agree or agreed to the
woman is involved in a case where the solicitation. If the woman did not
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
agree and the public officer involved determined and the crime is
pushed through with the advances, committed.
attempted rape may have been
committed. (2) A jailer was prosecuted for
abuse against chastity. The
(2) The woman who is the offended jailer said, “It was mutual on
party in the crime is a prisoner under their part. I did not really
the custody of a warden or the jailer force my way upon the
who is the offender. woman. The woman fell in
love with me, I fell in love
If the warden or jailer of the woman with the woman.” The
should make immoral or indecent woman became pregnant.
advances to such prisoner, this The woman admitted that
crime is committed. she was not forced. Just the
same, the jailer was
This crime cannot be committed if convicted of abuse against
the warden is a woman and the chastity.
prisoner is a man. Men have no
chastity. Legally, a prisoner is an
accountability of the government.
If the warden is also a woman but is So the custodian is not supposed to
a lesbian, it is submitted that this interfere. Even if the prisoner may
crime could be committed, as the like it, he is not supposed to do that.
law does not require that the Otherwise, abuse against chastity is
custodian be a man but requires that committed.
the offended be a woman. Being responsible for the pregnancy
is itself taking advantage the
Immoral or indecent advances prisoner.
contemplated here must be
persistent. It must be determined. A If he forced himself against the will
mere joke would not suffice. of the woman, another crime is
committed, that is, rape aside from
Illustrations: abuse against chastity.
Also holds liable any person who directs or 14. Challenging to a duel (Art. 261);
induces another to commit any act of sexual
harassment, or who cooperates in the 15. Mutilation (Art. 262);
commission, the head of the office,
educational or training institution solidarily. 16. Serious physical injuries (Art. 263);
As to the taking of human life, you have: The relationship between the offender and
the offended party must be legitimate,
(1) Parricide; except when the offender and the offended
party are related as parent and child.
(2) Murder;
If the offender and the offended party,
(3) Homicide; although related by blood and in the direct
line, are separated by an intervening
(4) Infanticide; and illegitimate relationship, parricide can no
longer be committed. The illegitimate
(5) Giving assistance to suicide. relationship between the child and the
parent renders all relatives after the child in
Note that parricide is premised on the the direct line to be illegitimate too.
relationship between the offender and the
offended. The victim is three days old or The only illegitimate relationship that can
older. A stranger who conspires with the bring about parricide is that between
parent is guilty of murder. parents and illegitimate children as the
offender and the offended parties.
In infanticide, the victim is younger than
three days or 72 hours old; can be Illustration:
committed by a stranger. If a stranger who
conspires with parent, both commit the A is the parent of B, the illegitimate
crime of infanticide. daughter. B married C and they begot a
legitimate child D. If D, daughter of B and
C, would kill A, the grandmother, the crime
Article 246. Parricide cannot be parricide anymore because of the
intervening illegitimacy. The relationship
Elements between A and D is no longer legitimate.
Hence, the crime committed is homicide or
1. A person is killed; murder.
Illustration:
This is a crime committed between people
who are related by blood. Between A spouse of B conspires with C to kill B. C
is the stranger in the relationship. C killed B
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
with treachery. The means employed is infanticide and intent to conceal her
made known to A and A agreed that the dishonor is considered mitigating.
killing will be done by poisoning.
As far as A is concerned, the crime is based Article 247. Death or Physical Injuries
on his relationship with B. It is therefore Inflicted under Exceptional
parricide. The treachery that was employed Circumstances
in killing Bong will only be generic
aggravating circumstance in the crime of Elements
parricide because this is not one crime that
requires a qualifying circumstance. 1. A legally married person, or a
parent, surprises his spouse or his
But that same treachery, insofar as C is daughter, the latter under 18 years
concerned, as a stranger who cooperated in of age and living with him, in the act
the killing, makes the crime murder; of committing sexual intercourse
treachery becomes a qualifying with another person;
circumstance.
2. He or she kills any or both of them,
In killing a spouse, there must be a valid or inflicts upon any or both of them
subsisting marriage at the time of the killing. any serious physical injury in the act
Also, the information should allege the fact or immediately thereafter;
of such valid marriage between the accused
and the victim. 3. He has not promoted or facilitated
the prostitution of his wife or
In a ruling by the Supreme Court, it was daughter, or that he or she has not
held that if the information did not allege consented to the infidelity of the
that the accused was legally married to the other spouse.
victim, he could not be convicted of
parricide even if the marriage was
established during the trial. In such cases, Two stages contemplated before the article
relationship shall be appreciated as generic will apply:
aggravating circumstance.
(1) When the offender surprised the
The Supreme Court has also ruled that other spouse with a paramour or
Muslim husbands with several wives can be mistress. The attack must take
convicted of parricide only in case the first place while the sexual intercourse is
wife is killed. There is no parricide if the going on. If the surprise was before
other wives are killed although their or after the intercourse, no matter
marriage is recognized as valid. This is so how immediate it may be, Article
because a Catholic man can commit the 247 does not apply. The offender in
crime only once. If a Muslim husband could this situation only gets the benefit of
commit this crime more than once, in effect, a mitigating circumstance, that is,
he is being punished for the marriage which sufficient provocation immediately
the law itself authorized him to contract. preceding the act.
That the mother killed her child in order to (2) When the offender kills or inflicts
conceal her dishonor is not mitigating. This serious physical injury upon the
is immaterial to the crime of parricide, unlike other spouse and/or paramour while
in the case of infanticide. If the child is less in the act of intercourse, or
than three days old when killed, the crime is immediately thereafter, that is, after
surprising.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
So if the surprising took place before any As long as the act is continuous, the article
actual sexual intercourse could be done still applies.
because the parties are only in their
preliminaries, the article cannot be invoked Where the accused surprised his wife and
anymore. his paramour in the act of illicit intercourse,
as a result of which he went out to kill the
If the surprising took place after the actual paramour in a fit of passionate outburst.
sexual intercourse was finished, even if the Although about one hour had passed
act being performed indicates no other between the time the accused discovered
conclusion but that sexual intercourse was his wife having sexual intercourse with the
had, the article does not apply. victim and the time the latter was actually
killed, it was held in People v. Abarca, 153
As long as the surprising took place while SCRA 735, that Article 247 was applicable,
the sexual intercourse was going on, the as the shooting was a continuation of the
second stage becomes immaterial. pursuit of the victim by the accused. Here,
the accused, after the discovery of the act
It is either killing or inflicting physical injuries of infidelity of his wife, looked for a firearm
while in that act or immediately thereafter. in Tacloban City.
If the killing was done while in that act, no
problem. If the killing was done when Article 247 does not provide that the victim
sexual intercourse is finished, a problem is to be killed instantly by the accused after
arises. First, were they surprised in actual surprising his spouse in the act of
sexual intercourse? Second, were they intercourse. What is required is that the
killed immediately thereafter? killing is the proximate result of the outrage
overwhelming the accused upon the
The phrase “immediately thereafter” has discovery of the infidelity of his spouse.
been interpreted to mean that between the The killing should have been actually
surprising and the killing of the inflicting of motivated by the same blind impulse.
the physical injury, there should be no break
of time. In other words, it must be a Illustration:
continuous process.
A upon coming home, surprised his wife, B,
The article presumes that a legally married together with C. The paramour was fast
person who surprises his or her better half enough to jump out of the window. A got
in actual sexual intercourse would be the bolo and chased C but he disappeared
overcome by the obfuscation he felt when among the neighborhood. So A started
he saw them in the act that he lost his head. looking around for about an hour but he
The law, thus, affords protection to a could not find the paramour. A gave up and
spouse who is considered to have acted in was on his way home. Unfortunately, the
a justified outburst of passion or a state of paramour, thinking that A was no longer
mental disequilibrium. The offended around, came out of hiding and at that
spouse has no time to regain his self- moment, A saw him and hacked him to
control. death. There was a break of time and
Article 247 does not apply anymore
because when he gave up the search, it is a
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
circumstance showing that his anger had banishment is intended more for the
already died down. protection of the offender rather than a
penalty.
Article 247, far from defining a felony
merely grants a privilege or benefit, more of If the crime committed is less serious
an exempting circumstance as the penalty physical injuries or slight physical injuries,
is intended more for the protection of the there is no criminal liability.
accused than a punishment. Death under
exceptional character can not be qualified The article does not apply where the wife
by either aggravating or mitigating was not surprised in flagrant adultery but
circumstances. was being abused by a man as in this case
there will be defense of relation.
In the case of People v. Abarca, 153 SCRA
735, two persons suffered physical injuries If the offender surprised a couple in sexual
as they were caught in the crossfire when intercourse, and believing the woman to be
the accused shot the victim. A complex his wife, killed them, this article may be
crime of double frustrated murder was not applied if the mistake of facts is proved.
committed as the accused did not have the
intent to kill the two victims. Here, the The benefits of this article do not apply to
accused did not commit murder when he the person who consented to the infidelity of
fired at the paramour of his wife. Inflicting his spouse or who facilitated the prostitution
death under exceptional circumstances is of his wife.
not murder. The accused was held liable
for negligence under the first part, second The article is also made available to parents
paragraph of Article 365, that is, less who shall surprise their daughter below 18
serious physical injuries through simple years of age in actual sexual intercourse
negligence. No aberratio ictus because he while “living with them.” The act should
was acting lawfully. have been committed by the daughter with
a seducer. The two stages also apply. The
A person who acts under Article 247 is not parents cannot invoke this provision if, in a
committing a crime. Since this is merely an way, they have encouraged the prostitution
exempting circumstance, the accused must of the daughter.
first be charged with:
The phrase “living with them” is understood
(1) Parricide – if the spouse is killed; to be in their own dwelling, because of the
embarrassment and humiliation done not
(2) Murder or homicide – depending on only to the parent but also to the parental
how the killing was done insofar as abode.
the paramour or the mistress is
concerned; If it was done in a motel, the article does not
apply.
(3) Homicide – through simple
negligence, if a third party is killed; Illustration:
(4) Physical injuries – through reckless A abandoned his wife B for two years. To
imprudence, if a third party is support their children, A had to accept a
injured. relationship with another man. A learned of
this, and surprised them in the act of sexual
If death results or the physical injuries are intercourse and killed B. A is not entitled to
serious, there is criminal liability although Article 248. Having abandoned his family for
the penalty is only destierro. The two years, it was natural for her to feel
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
b. In consideration of a price,
reward or promise;
was alleged was not proven and with both arms and legs around the
instead another circumstance, not tree. They thought they would give
alleged, was established during the him a lesson by whipping him with
trial, even if the latter constitutes a branches of gumamela until the
qualifying circumstance under Article victim fell unconscious. The
248, the same can not qualify the accused left not knowing that the
killing to murder. The accused can victim died.
only be convicted of homicide.
The crime committed was murder.
Generally, murder cannot be The accused deprived the victim of
committed if at the beginning, the the chance to defend himself when
offended had no intent to kill the latter was tied to a tree.
because the qualifying Treachery is a circumstance
circumstances must be resorted to referring to the manner of
with a view of killing the offended committing the crime. There was no
party. So if the killing were at the risk to the accused arising from the
“spur of the moment”, even though defense by the victim.
the victim was denied the chance to
defend himself because of the Although what was initially intended
suddenness of the attack, the crime was physical injury, the manner
would only be homicide. Treachery adopted by the accused was
contemplates that the means, treacherous and since the victim
methods and form in the execution died as a consequence thereof, the
were consciously adopted and crime is murder -- although
deliberately resorted to by the originally, there was no intent to kill.
offender, and were not merely
incidental to the killing. When the victim is already dead,
intent to kill becomes irrelevant. It is
If the offender may have not important only if the victim did not
intended to kill the victim but he only die to determine if the felony is
wanted to commit a crime against physical injury or attempted or
him in the beginning, he will still be frustrated homicide.
liable for murder if in the manner of
committing the felony there was So long as the means, methods and
treachery and as a consequence form in the execution is deliberately
thereof the victim died. This is adopted, even if there was no intent
based on the rule that a person to kill, there is treachery.
committing a felony shall be liable
for the consequences thereof (2) In consideration of price, reward or
although different from that which he promises;
intended.
(3) Inundation, fire, poison, explosion,
Illustration: shipwreck, stranding of a vessel,
derailment or assault upon a street
The accused, three young men, car or locomotive, fall of an airship,
resented the fact that the victim by means of a motor vehicle, or with
continued to visit a girl in their the use of other means involving
neighborhood despite the warning great waste and ruin;
they gave him. So one evening,
after the victim had visited the girl, The only problem insofar as the
they seized and tied him to a tree, killing by fire is concerned is whether
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
2. Offender killed him without any (4) Where the intent to kill is not
justifying circumstances; manifest, the crime committed has
been generally considered as
3. Offender had the intention to kill, physical injuries and not attempted
which is presumed; or frustrated murder or homicide.
4. The killing was not attended by any (5) When several assailants not acting
of the qualifying circumstances of in conspiracy inflicted wounds on a
murder, or by that of parricide or victim but it cannot be determined
infanticide. who inflicted which would which
caused the death of the victim, all
are liable for the victim’s death.
Homicide is the unlawful killing of a person
not constituting murder, parricide or Note that while it is possible to have a crime
infanticide. of homicide through reckless imprudence, it
is not possible to have a crime of frustrated
Distinction between homicide and physical homicide through reckless imprudence.
injuries:
(1) Physical injuries are included as one 3. These several persons quarreled
of the essential elements of and assaulted one another in a
frustrated homicide. confused and tumultuous manner;
(2) If the deceased received two 4. Someone was killed in the course of
wounds from two persons acting the affray;
independently of each other and the
wound inflicted by either could have 5. It can not be ascertained who
caused death, both of them are actually killed the deceased;
liable for the death of the victim and
each of them is guilty of homicide. 6. The person or persons who inflicted
serious physical injuries or who used
(3) If the injuries were mortal but were violence can be identified.
only due to negligence, the crime
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
It is not a tumultuous affray which brings The fight must be tumultuous. The
about the crime; it is the inability to participants must not be members of an
ascertain actual perpetrator. It is necessary organized group. This is different from a
that the very person who caused the death rumble which involves organized groups
can not be known, not that he can not be composed of persons who are to attack
identified. Because if he is known but only others. If the fight is between such groups,
his identity is not known, then he will be even if you cannot identify who, in
charged for the crime of homicide or murder particular, committed the killing, the adverse
under a fictitious name and not death in a party composing the organized group will
tumultuous affray. If there is a conspiracy, be collectively charged for the death of that
this crime is not committed. person.
is out of pity and not because he has not serious physical injury with illegal
violated the Revised Penal Code. discharge of firearm will apply.
In mercy killing, the victim is not in a (2) Firing a gun at a person even if
position to commit suicide. Whoever would merely to frighten him constitutes
heed his advice is not really giving illegal discharge of firearm.
assistance to suicide but doing the killing
himself. In giving assistance to suicide, the
principal actor is the person committing the Article 255. Infanticide
suicide.
Elements
Both in euthanasia and suicide, the
intention to the end life comes from the 1. A child was killed by the accused;
victim himself; otherwise the article does
not apply. The victim must persistently 2. The deceased child was less than
induce the offender to end his life. If there 72 hours old.
is only slight persuasion to end his life, and
the offender readily assented thereto.
This is a crime based on the age of the
victim. The victim should be less than three
Article 254. Discharge of Firearms days old.
1. Offender discharges a firearm against or The offender may actually be the parent of
at another person; the child. But you call the crime infanticide,
not parricide, if the age of the victim is less
2. Offender had no intention to kill that than three days old. If the victim is three
person. days old or above, the crime is parricide.
Illustration:
This crime cannot be committed through
imprudence because it requires that the An unmarried woman, A, gave birth to a
discharge must be directed at another. child, B. To conceal her dishonor, A
conspired with C to dispose of the child. C
If the firearm is directed at a person and the agreed and killed the child B by burying the
trigger was pressed but did not fire, the child somewhere.
crime is frustrated discharge of firearm.
If the child was killed when the age of the
If the discharge is not directed at a person, child was three days old and above already,
the crime may constitute alarm and the crime of A is parricide. The fact that the
scandal. killing was done to conceal her dishonor will
not mitigate the criminal liability anymore
The following are holdings of the Supreme because concealment of dishonor in killing
Court with respect to this crime: the child is not mitigating in parricide.
If the child is less than three days old when accused otherwise acts upon such
killed, both the mother and the stranger pregnant woman;
commits infanticide because infanticide is
not predicated on the relation of the 3. As a result of the use of violence or
offender to the offended party but on the drugs or beverages upon her, or any
age of the child. In such a case, other act of the accused, the fetus dies,
concealment of dishonor as a motive for the either in the womb or after having been
mother to have the child killed is mitigating. expelled therefrom;
Acts punished
Abortion is not a crime against the woman
1. Using any violence upon the person but against the fetus. If mother as a
of the pregnant woman; consequence of abortion suffers death or
physical injuries, you have a complex crime
2. Acting, but without using violence, of murder or physical injuries and abortion.
without the consent of the woman.
(By administering drugs or In intentional abortion, the offender must
beverages upon such pregnant know of the pregnancy because the
woman without her consent.) particular criminal intention is to cause an
abortion. Therefore, the offender must
3. Acting (by administering drugs or have known of the pregnancy for otherwise,
beverages), with the consent of the he would not try an abortion.
pregnant woman.
If the woman turns out not to be pregnant
and someone performs an abortion upon
Elements her, he is liable for an impossible crime if
the woman suffers no physical injury. If she
1. There is a pregnant woman; does, the crime will be homicide, serious
physical injuries, etc.
2. Violence is exerted, or drugs or
beverages administered, or that the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Under the Article 40 of the Civil Code, birth imposed upon the woman who practiced
determines personality. A person is the abortion upon herself .
considered born at the time when the
umbilical cord is cut. He then acquires a Frustrated abortion is committed if the fetus
personality separate from the mother. that is expelled is viable and, therefore, not
dead as abortion did not result despite the
But even though the umbilical cord has employment of adequate and sufficient
been cut, Article 41 of the Civil Code means to make the pregnant woman abort.
provides that if the fetus had an intra- If the means are not sufficient or adequate,
uterine life of less than seven months, it the crime would be an impossible crime of
must survive at least 24 hours after the abortion. In consummated abortion, the
umbilical cord is cut for it to be considered fetus must be dead.
born.
One who persuades her sister to abort is a
Illustration: co-principal, and one who looks for a
physician to make his sweetheart abort is
A mother delivered an offspring which had an accomplice. The physician will be
an intra-uterine life of seven months. Before punished under Article 259 of the Revised
the umbilical cord is cut, the child was killed. Penal Code.
committed is the complex crime of parricide pushing is the proximate cause of the
with unlawful abortion. unintentional abortion.
Elements
Article 260. Responsibility of
1. There is a pregnant woman who has Participants in A Duel
suffered an abortion;
Acts punished
2. The abortion is intended;
1. Killing one’s adversary in a duel;
3. Offender, who must be a physician
or midwife, caused or assisted in 2. Inflicting upon such adversary
causing the abortion; physical injuries;
Persons liable
If the abortion is produced by a physician to
save the life of the mother, there is no 1. The person who killed or inflicted
liability. This is known as a therapeutic physical injuries upon his adversary,
abortion. But abortion without medical or both combatants in any other
necessity to warrant it is punishable even case, as principals.
with the consent of the woman or her
husband. 2. The seconds, as accomplices.
Illustration:
There is no such crime nowadays because
A woman who is pregnant got sick. The people hit each other even without entering
doctor administered a medicine which into any pre-conceived agreement. This is
resulted in Abortion. The crime committed an obsolete provision.
was unintentional abortion through
negligence or imprudence. A duel may be defined as a formal or
regular combat previously consented to by
two parties in the presence of two or more
seconds of lawful age on each side, who
Question & Answer
make the selection of arms and fix all the
other conditions of the fight to settle some
antecedent quarrel.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If these are not the conditions of the fight, it necessary for generation,
is not a duel in the sense contemplated in such as the penis or ovarium;
the Revised Penal Code. It will be a quarrel
and anyone who killed the other will be 2. The mutilation is caused
liable for homicide or murder, as the case purposely and deliberately,
may be. that is, to deprive the
offended party of some
The concept of duel under the Revised essential organ for
Penal Code is a classical one. reproduction
no evidence that the medical treatment blind because of such, if the person loses
lasted for more than nine days. the use of speech or the power to hear or
smell or an eye, a foot, an arm or a leg, or
Serious physical injuries is punished with the use of any such member or any of the
higher penalties in the following cases: serious physical injuries or the less serious
physical injuries. Also if the victim is below
(1) If it is committed against any of the 12, or becomes incapacitated for the work
persons referred to in the crime of he habitually engages in for 30, 10, 1-9
parricide under Article 246; days.
(2) If any of the circumstances It holds the parents, school authorities who
qualifying murder attended its consented or who had actual knowledge if
commission. they did nothing to prevent it, officers and
members who planned, knowingly
Thus, a father who inflicts serious physical cooperated or were present, present alumni
injuries upon his son will be liable for of the organization, owner of the place
qualified serious physical injuries. where such occurred liable.
Hazing -- This is any initiation rite or practice Article 264. Administering Injurious
which is a prerequisite for admission into Substances or Beverages
membership in a fraternity or sorority or any
organization which places the neophyte or Elements
applicant in some embarrassing or
humiliating situations or otherwise 1. Offender inflicted upon another any
subjecting him to physical or psychological serious physical injury;
suffering of injury. These do not include any
physical, mental, psychological testing and 2. It was done by knowingly
training procedure and practice to determine administering to him any injurious
and enhance the physical and psychological substance or beverages or by taking
fitness of the prospective regular members advantage of his weakness of mind
of the below. or credulity;
The crime is slight physical injury if there is of serious physical injuries in paragraph 1 of
no proof as to the period of the offended Article 263 of the Code that the quoted
party’s incapacity for labor or of the required provision of Republic Act No. 7160 may be
medical attendance. applied for the higher penalty when the
victim is under 12 years old.
(d) Where the victim is a Since rape is not a private crime anymore, it
religious, that is, a member can be prosecuted even if the woman does
of a legitimate religious not file a complaint.
vocation and the offender
knows the victim as such If carnal knowledge was made possible
before or at the time of the because of fraudulent machinations and
commission of the offense; grave abuse of authority, the crime is rape.
This absorbs the crime of qualified and
(e) Where the victim is a child simple seduction when no force or violence
under 7 yrs of age; was used, but the offender abused his
authority to rape the victim.
(f) Where the offender is a
member of the AFP, its Under Article 266-C, the offended woman
paramilitary arm, the PNP, or may pardon the offender through a
any law enforcement agency subsequent valid marriage, the effect of
which would be the extinction of the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
offender’s liability. Similarly, the legal offended party should exert all her efforts to
husband may be pardoned by forgiveness prevent the carnal intercourse. It is enough
of the wife provided that the marriage is not that from her resistance, it would appear
void ab initio. Obviously, under the new that the carnal intercourse is against her
law, the husband may be liable for rape if will.
his wife does not want to have sex with him.
It is enough that there is indication of any Mere initial resistance, which does not
amount of resistance as to make it rape. indicate refusal on the part of the offended
party to the sexual intercourse, will not be
Incestuous rape was coined in Supreme enough to bring about the crime of rape.
Court decisions. It refers to rape committed
by an ascendant of the offended woman. In Note that it has been held that in the crime
such cases, the force and intimidation need of rape, conviction does not require medico-
not be of such nature as would be required legal finding of any penetration on the part
in rape cases had the accused been a of the woman. A medico-legal certificate is
stranger. Conversely, the Supreme Court not necessary or indispensable to convict
expected that if the offender is not known to the accused of the crime of rape.
woman, it is necessary that there be
evidence of affirmative resistance put up by It has also been held that although the
the offended woman. Mere “no, no” is not offended woman who is the victim of the
enough if the offender is a stranger, rape failed to adduce evidence regarding
although if the rape is incestuous, this is the damages to her by reason of the rape,
enough. the court may take judicial notice that there
is such damage in crimes against chastity.
The new rape law also requires that there The standard amount given now is P
be a physical overt act manifesting 30,000.00, with or without evidence of any
resistance, if the offended party was in a moral damage. But there are some cases
situation where he or she is incapable of where the court awarded only P 20,000.00.
giving valid consent, this is admissible in
evidence to show that carnal knowledge An accused may be convicted of rape on
was against his or her will. the sole testimony of the offended woman.
It does not require that testimony be
When the victim is below 12 years old, corroborated before a conviction may stand.
mere sexual intercourse with her is already This is particularly true if the commission of
rape. Even if it was she who wanted the the rape is such that the narration of the
sexual intercourse, the crime will be rape. offended woman would lead to no other
This is referred to as statutory rape. conclusion except that the rape was
committed.
In other cases, there must be force,
intimidation, or violence proven to have Illustration:
been exerted to bring about carnal
knowledge or the woman must have been Daughter accuses her own father of having
deprived of reason or otherwise raped her.
unconscious.
Allegation of several accused that the
Where the victim is over 12 years old, it woman consented to their sexual
must be shown that the carnal knowledge intercourse with her is a proposition which is
with her was obtained against her will. It is revolting to reason that a woman would
necessary that there be evidence of some allow more than one man to have sexual
resistance put up by the offended woman. intercourse with her in the presence of the
It is not, however, necessary that the others.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
TITLE IX. CRIMES AGAINST PERSONAL 10. Grave coercions (Art. 286);
LIBERTY AND SECURITY
11. Light coercions (Art. 287);
Crimes against liberty
12. Other similar coercions (Art. 288);
1. Kidnapping and serious illegal
detention (Art. 267); 13. Formation, maintenance and
prohibition of combination of capital
2. Slight illegal detention (Art. 268); or labor through violence or threats
(Art. 289);
3. Unlawful arrest (Art. 269);
14. Discovering secrets through seizure
of correspondence (Art. 290);
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 267. Kidnapping and Serious If a private person commits the crime of
Illegal Detention kidnapping or serious illegal detention, even
though a public officer conspires therein,
Elements the crime cannot be arbitrary detention. As
far as that public officer is concerned, the
1. Offender is a private individual; crime is also illegal detention.
c. Any serious physical injuries When one thinks of kidnapping, it is not only
are inflicted upon the person that of transporting one person from one
kidnapped or detained or place to another. One also has to think of
threats to kill him are made; the criminal intent.
or
Forcible abduction -- If a woman is
d. The person kidnapped or transported from one place to another by
detained is a minor, female, virtue of restraining her of her liberty, and
or a public officer. that act is coupled with lewd designs.
In a decided case, a suitor, who cannot get Circumstances which make illegal detention
a favorable reply from a woman, invited the serious
woman to ride with him, purportedly to take
home the woman from class. But while the (1) When the illegal detention lasted for
woman is in his car, he drove the woman to three days, regardless of who the
a far place and told the woman to marry offended party is;
him. On the way, the offender had
repeatedly touched the private parts of the (2) When the offended party is a female,
woman. It was held that the act of the even if the detention lasted only for
offender of touching the private parts of the minutes;
woman could not be considered as lewd
designs because he was willing to marry (3) If the offended party is a minor or a
the offended party. The Supreme Court public officer, no matter how long or
ruled that when it is a suitor who could how short the detention is;
possibly marry the woman, merely kissing
the woman or touching her private parts to (4) When threats to kill are made or
“compel” her to agree to the marriage, such serious physical injuries have been
cannot be characterized as lewd design. It inflicted; and
is considered merely as the “passion of a
lover”. But if the man is already married, (5) If it shall have been committed
you cannot consider that as legitimate but simulating public authority.
immoral and definitely amounts to lewd
design. Distinction between illegal detention and
arbitrary detention
If a woman is carried against her will but
without lewd design on the part of the Illegal detention is committed by a private
offender, the crime is grave coercion. person who kidnaps, detains, or otherwise
deprives another of his liberty.
If the victim is a woman or a public officer, Article 267 has been modified by Republic
the detention is always serious – no matter Act No. 7659 in the following respects:
how short the period of detention is.
(1) Illegal detention becomes serious
when it shall have lasted for more
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
than three days, instead of five days victim or not, as long as the victim was
as originally provided; killed, or died as a consequence of the
kidnapping or detention. There is no more
(2) In paragraph 4, if the person separate crime of kidnapping and murder if
kidnapped or detained was a minor the victim was kidnapped not for the
and the offender was anyone of the purpose of killing her.
parents, the latter has been
expressly excluded from the If the victim was raped, this brings about the
provision. The liability of the parent composite crime of kidnapping with rape.
is provided for in the last paragraph Being a composite crime, not a complex
of Article 271; crime, the same is regarded as a single
indivisible offense as in fact the law
(3) A paragraph was added to Article punishes such acts with only a single
267, which states: penalty. In a way, the amendment
depreciated the seriousness of the rape
When the victim is because no matter how many times the
killed or dies as a victim was raped, there will only be one
consequence of the kidnapping with rape. This would not be the
detention or is raped, consequence if rape were a separate crime
or is subjected to from kidnapping because each act of rape
torture, or would be a distinct count.
dehumanizing acts,
the maximum penalty However for the crime to be kidnapping with
shall be imposed. rape, the offender should not have taken
the victim with lewd designs as otherwise
This amendment brings about a the crime would be forcible abduction; and if
composite crime of kidnapping with the victim was raped, the complex crime of
homicide when it is the victim of the forcible abduction with rape would be
kidnapping who was killed, or dies committed. If the taking was forcible
as a consequence of the detention abduction, and the woman was raped
and, thus, only one penalty is several times, there would only be one
imposed which is death. crime of forcible abduction with rape, and
each of the other rapes would constitute
distinct counts of rape. This was the ruling
Article 48, on complex crimes, does not in the case of People v. Bacalso.
govern in this case. But Article 48 will
govern if any other person is killed aside, In People v. Lactao, decided on October
because the provision specifically refers to 29, 1993, the Supreme Court stressed that
“victim”. Accordingly, the rulings in cases of the crime is serious illegal detention if the
People v. Parulan, People v. Ging Sam, purpose was to deprive the offended party
and other similar cases where the accused of her liberty. And if in the course of the
were convicted for the complex crimes of illegal detention, the offended party was
kidnapping with murder have become raped, a separate crime of rape would be
academic. committed. This is so because there is no
complex crime of serious illegal detention
In the composite crime of kidnapping with with rape since the illegal detention was not
homicide, the term “homicide” is used in the a necessary means to the commission of
generic sense and, thus, covers all forms of rape.
killing whether in the nature of murder or
otherwise. It does not matter whether the In People v. Bernal, 131 SCRA 1, the
purpose of the kidnapping was to kill the appellants were held guilty of separate
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
crimes of serious illegal detention and of (1) The offended party is voluntarily
multiple rapes. With the amendment by released within three days from the
Republic Act No. 7659 making rape a start of illegal detention;
qualifying circumstance in the crime of
kidnapping and serious illegal detention, the (2) Without attaining the purpose;
jurisprudence is superseded to the effect
that the rape should be a distinct crime. (3) Before the institution of the criminal
Article 48 on complex crimes may not apply action.
when serious illegal detention and rape are
committed by the same offender. The One should know the nature of the illegal
offender will be charged for the composite detention to know whether the voluntary
crime of serious illegal detention with rape release of the offended party will affect the
as a single indivisible offense, regardless of criminal liability of the offender.
the number of times that the victim was
raped. When the offender voluntarily releases the
offended party from detention within three
Also, when the victim of the kidnapping and days from the time the restraint of liberty
serious illegal detention was subjected to began, as long as the offender has not
torture and sustained physical injuries, a accomplished his purposes, and the release
composite crime of kidnapping with physical was made before the criminal prosecution
injuries is committed. was commenced, this would serve to
mitigate the criminal liability of the offender,
provided that the kidnapping or illegal
Article 268. Slight Illegal Detention detention is not serious.
4. The crime is committed without the One who furnishes the place where the
attendance of any of the offended party is being held generally acts
circumstances enumerated in Article as an accomplice. But the criminal liability
267. in connection with the kidnapping and
serious illegal detention, as well as the
slight illegal detention, is that of the principal
This felony is committed if any of the five and not of the accomplice.
circumstances in the commission of
kidnapping or detention enumerated in Before, in People v. Saliente, if the
Article 267 is not present. offended party subjected to serious illegal
detention was voluntarily released by the
The penalty is lowered if – accused in accordance with the provisions
of Article 268 (3), the crime, which would
have been serious illegal detention, became
slight illegal detention only.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Elements
The prevailing rule now is Asistio v. Judge,
which provides that voluntary release will 1. Offender arrests or detains another
only mitigate criminal liability if crime was person;
slight illegal detention. If serious, it has no
effect. 2. The purpose of the offender is to
deliver him to the proper authorities;
In kidnapping for ransom, voluntary release
will not mitigate the crime. This is because, 3. The arrest or detention is not
with the reimposition of the death penalty, authorized by law or there is no
this crime is penalized with the extreme reasonable ground therefor.
penalty of death.
What is ransom? It is the money, price or This felony consists in making an arrest or
consideration paid or demanded for detention without legal or reasonable
redemption of a captured person or ground for the purpose of delivering the
persons, a payment that releases a person offended party to the proper authorities.
from captivity.
The offended party may also be detained
The definition of ransom under the Lindberg but the crime is not illegal detention
law of the U.S. has been adopted in our because the purpose is to prosecute the
jurisprudence in People v. Akiran, 18 person arrested. The detention is only
SCRA 239, 242, such that when a creditor incidental; the primary criminal intention of
detains a debtor and releases the latter only the offender is to charge the offended party
upon the payment of the debt, such for a crime he did not actually commit.
payment of the debt, which was made a
condition for the release is ransom, under Generally, this crime is committed by
this article. incriminating innocent persons by the
offender’s planting evidence to justify the
In the case of People v. Roluna, decided arrest – a complex crime results, that is,
March 29, 1994, witnesses saw a person unlawful arrest through incriminatory
being taken away with hands tied behind machinations under Article 363.
his back and was not heard from for six
years. Supreme Court reversed the trial If the arrest is made without a warrant and
court ruling that the men accused were under circumstances not allowing a
guilty of kidnapping with murder. The crime warrantless arrest, the crime would be
is only slight illegal detention under Article unlawful arrest.
268, aggravated by a band, since none of
the circumstances in Article 267 has been If the person arrested is not delivered to the
proved beyond a reasonable doubt. The authorities, the private individual making the
fact that the victim has been missing for six arrest incurs criminal liability for illegal
years raises a presumption of death, but detention under Article 267 or 268.
from this disputable presumption of death, it
should not be further presumed that the If the offender is a public officer, the crime is
persons who were last seen with the arbitrary detention under Article 124.
absentee is responsible for his
disappearance. If the detention or arrest is for a legal
ground, but the public officer delays delivery
of the person arrested to the proper judicial
Article 269. Unlawful Arrest authorities, then Article 125 will apply.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If the accused is any of the parents, Article This is committed if anyone shall purchase,
267 does not apply; Articles 270 and 271 kidnap, or detain a human being for the
apply. purpose of enslaving him. The penalty is
increased if the purpose of the offender is to
If the taking is with the consent of the assign the offended party to some immoral
parents, the crime in Article 270 is traffic.
committed.
This is distinguished from illegal detention
In People v. Generosa, it was held that by the purpose. If the purpose of the
deliberate failure to return a minor under kidnapping or detention is to enslave the
one’s custody constitutes deprivation of offended party, slavery is committed.
liberty. Kidnapping and failure to return a
minor is necessarily included in kidnapping The crime is slavery if the offender is not
and serious illegal detention of a minor engaged in the business of prostitution. If
under Article 267(4). he is, the crime is white slave trade under
Article 341.
In People v. Mendoza, where a minor child
was taken by the accused without the
knowledge and consent of his parents, it Article 273. Exploitation of Child Labor
was held that the crime is kidnapping and
serious illegal detention under Article 267, Elements
not kidnapping and failure to return a minor
under Article 270. 1. Offender retains a minor in his
services;
entrusted in any capacity with the Article 278 has no application if minor is 16
care of such child; and years old and above. But the exploitation
will be dealt with by Republic Act No. 7610.
5. Inducing any child under 16 years of
age to abandon the home of its If the minor so employed would suffer some
ascendants, guardians, curators or injuries as a result of a violation of Article
teachers to follow any person 278, Article 279 provides that there would
engaged in any of the callings be additional criminal liability for the
mentioned in paragraph 2 or to resulting felony.
accompany any habitual vagrant or
beggar, the offender being any Illustration:
person.
The owner of a circus employed a child
under 16 years of age to do a balancing act
The offender is engaged in a kind of on the tightrope. The crime committed is
business that would place the life or limb of exploitation of minors (unless the employer
the minor in danger, even though working is the ascendant of the minor who is not
for him is not against the will of the minor. below 12 years of age). If the child fell and
suffered physical injuries while working, the
Nature of the Business – This involves employer shall be liable for said physical
circuses which generally attract children so injuries in addition to his liability for
they themselves may enjoy working there exploitation of minors.
unaware of the danger to their own lives
and limbs.
Article 280. Qualified Trespass to
Age – Must be below 16 years. At this age, Dwelling
the minor is still growing.
Elements
If the employer is an ascendant, the crime
is not committed, unless the minor is less 1. Offender is a private person;
than 12 years old. Because if the employer
is an ascendant, the law regards that he 2. He enters the dwelling of another;
would look after the welfare and protection
of the child; hence, the age is lowered to 12 3. Such entrance is against the latter’s
years. Below that age, the crime is will.
committed.
fenced estate of another; such close To prove that an entry is against the will of
premises or fenced estate is the occupant, it is not necessary that the
uninhabited; there is a manifest entry should be preceded by an express
prohibition against entering such prohibition, provided that the opposition of
closed premises or fenced estate; the occupant is clearly established by the
and offender has not secured the circumstances under which the entry is
permission of the owner or caretaker made, such as the existence of enmity or
thereof (Article 281). strained relations between the accused and
the occupant.
(See also Presidential Decree No. 1227
regarding unlawful entry into any military On violence, Cuello Calon opines that
base in the Philippines.) violence may be committed not only against
persons but also against things. So,
breaking the door or glass of a window or
Dwelling – This is the place that a person door constitutes acts of violence. Our
inhabits. It includes the dependencies Supreme Court followed this view in People
which have interior communication with the v. Tayag. Violence or intimidation must,
house. It is not necessary that it be the however, be anterior or coetaneous with the
permanent dwelling of the person. So, a entrance and must not be posterior. But if
person’s room in a hotel may be considered the violence is employed immediately after
a dwelling. It also includes a room where the entrance without the consent of the
one resides as a boarder. owner of the house, trespass is committed.
If there is also violence or intimidation, proof
If the purpose in entering the dwelling is not of prohibition to enter is no longer
shown, trespass is committed. If the necessary.
purpose is shown, it may be absorbed in
the crime as in robbery with force upon Distinction between qualified trespass to
things, the trespass yielding to the more dwelling and violation of domicile
serious crime. But if the purpose is not
shown and while inside the dwelling he was Unlike qualified trespass to dwelling,
found by the occupants, one of whom was violation of domicile may be committed only
injured by him, the crime committed will be by a public officer or employee and the
trespass to dwelling and frustrated violation may consist of any of the three
homicide, physical injuries, or if there was acts mentioned in Article 128 – (1) entering
no injury, unjust vexation. the dwelling against the will of the owner
without judicial order; (2) searching papers
If the entry is made by a way not intended or other effects found in such dwelling
for entry, that is presumed to be against the without the previous consent of the owner
will of the occupant (example, entry through thereof; and (3) refusing to leave the
a window). It is not necessary that there be dwelling when so requested by the owner
a breaking. thereof, after having surreptitiously entered
such dwelling.
“Against the will” -- This means that the
entrance is, either expressly or impliedly, Cases when Article 280 does not apply:
prohibited or the prohibition is presumed.
Fraudulent entrance may constitute (1) When the purpose of the entrance is
trespass. The prohibition to enter may be to prevent serious harm to himself,
made at any time and not necessarily at the the occupant or third persons;
time of the entrance.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(2) When the purpose of the offender in wrong amounting to a crime, the
entering is to render some service to threat not being subject to a
humanity or justice; condition.
4. The trespasser has not secured the To constitute grave threats, the threats must
permission of the owner or the refer to a future wrong and is committed by
caretaker thereof. acts or through words of such efficiency to
inspire terror or fear upon another. It is,
Article 282. Grave Threats therefore, characterized by moral pressure
that produces disquietude or alarm.
Acts punished:
The greater perversity of the offender is
1. Threatening another with the manifested when the threats are made
infliction upon his person, honor or demanding money or imposing any
property or that of this family of any condition, whether lawful or not, and the
wrong amounting to a crime and offender shall have attained his purpose.
demanding money or imposing any So the law imposes upon him the penalty
other condition, even though not next lower in degree than that prescribed
unlawful, and the offender attained for the crime threatened to be committed.
his purpose; But if the purpose is not attained, the
penalty lower by two degrees is imposed.
2. Making such threat without the The maximum period of the penalty is
offender attaining his purpose; imposed if the threats are made in writing or
through a middleman as they manifest
3. Threatening another with the evident premeditation.
infliction upon his person, honor or
property or that of his family of any
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
quarrel, unless it be in lawful self- prohibited was illegal, he is not liable for
defense; grave coercion.
Exception to the rule that physical violence the offender who is a creditor in seizing
must be exerted: where intimidation is so anything belonging to his debtor for the
serious that it is not a threat anymore – it purpose of applying the same to the
approximates violence. payment of the debt.
In Lee v. CA, 201 SCAR 405, it was held In the other light coercions or unjust
that neither the crime of threats nor vexation embraced in the second
coercion is committed although the paragraph, violence is absent.
accused, a branch manager of a bank
made the complainant sign a withdrawal In unjust vexation, any act committed
slip for the amount needed to pay the without violence, but which unjustifiably
spurious dollar check she had encashed, annoys or vexes an innocent person
and also made her execute an affidavit amounts to light coercion.
regarding the return of the amount against
her better sense and judgment. According As a punishable act, unjust vexation should
to the court, the complainant may have include any human conduct which, although
acted reluctantly and with hesitation, but not productive of some physical or material
still, it was voluntary. It is different when a harm would, however, unjustifiably annoy or
complainant refuses absolutely to act such vex an innocent person.
an extent that she becomes a mere
automaton and acts mechanically only, not It is distinguished from grave coercion
of her own will. In this situation, the under the first paragraph by the absence of
complainant ceases to exits as an violence.
independent personality and the person
who employs force or intimidation is, in the Illustration:
eyes of the law, the one acting; while the
hand of the complainant sign, the will that Persons stoning someone else’s house. So
moves it is the hand of the offender. long as stoning is not serious and it is
intended to annoy, it is unjust vexation. It
disturbs the peace of mind.
Article 287. Light Coercions
The main purpose of the statute penalizing
Elements coercion and unjust vexation is precisely to
enforce the principle that no person may
1. Offender must be a creditor; take the law into his hands and that our
government is one of laws, not of men. The
2. He seizes anything belonging to his essence of the crimes is the attack on
debtor: individual liberty.
Article 289. Formation, Maintenance, The last paragraph of Article 290 expressly
and Prohibition of Combination of makes the provision of the first and second
Capital or Labor through Violence or paragraph thereof inapplicable to parents,
Threats guardians, or persons entrusted with the
custody of minors placed under their care or
Elements custody, and to the spouses with respect to
the papers or letters of either of them. The
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
16. Other forms of swindling (Art. 316); 2. There is unlawful taking of that
property;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Illustration:
On robbery with homicide
Robbers decided to commit robbery in a
The term “homicide” is used in the generic house, which turned out to be a boarding
sense, and the complex crime therein house. Thus, there were different boarders
contemplated comprehends not only who were offended parties in the robbery.
robbery with homicide in its restricted There is only one count of robbery. If there
sense, but also with robbery with murder. were killings done to different boarders
So, any kind of killing by reason of or on the during the robbery being committed in a
occasion of a robbery will bring about the boarder’s quarter, do not consider that as
crime of robbery with homicide even if the separate counts of robbery with homicide
person killed is less than three days old, or because when robbers decide to commit
even if the person killed is the mother or robbery in a certain house, they are only
father of the killer, or even if on such impelled by one criminal intent to rob and
robbery the person killed was done by there will only be one case of robbery. If
treachery or any of the qualifying there were homicide or death committed,
circumstances. In short, there is no crime that would only be part of a single robbery.
of robbery with parricide, robbery with That there were several killings done would
murder, robbery with infanticide – any and only aggravate the commission of the crime
all forms of killing is referred to as homicide. of robbery with homicide.
Illustration:
In People v. Quiñones, 183 SCRA 747, it connected with the robbery or not. He need
was held that there is no crime of robbery not also be in the place of the robbery.
with multiple homicides. The charge should
be for robbery with homicide only because In one case, in the course of the struggle in
the number of persons killed is immaterial a house where the robbery was being
and does not increase the penalty committed, the owner of the place tried to
prescribed in Article 294. All the killings are wrest the arm of the robber. A person
merged in the composite integrated whole several meters away was the one who got
that is robbery with homicide so long as the killed. The crime was held to be robbery
killings were by reason or on occasion of with homicide.
the robbery.
Note that the person killed need not be one
In another case, a band of robbers entered who is identified with the owner of the place
a compound, which is actually a sugar mill. where the robbery is committed or one who
Within the compound, there were quarters is a stranger to the robbers. It is enough
of the laborers. They robbed each of the that the homicide was committed by reason
quarters. The Supreme Court held that of the robbery or on the occasion thereof.
there was only one count of robbery
because when they decided and Illustration:
determined to rob the compound, they were
only impelled by one criminal intent to rob. There are two robbers who broke into a
house and carried away some valuables.
With more reason, therefore, if in a robbery, After they left such house these two robbers
the offender took away property belonging decided to cut or divide the loot already so
to different owners, as long as the taking that they can go of them. So while they are
was done at one time, and in one place, dividing the loot the other robber noticed
impelled by the same criminal intent to gain, that the one doing the division is trying to
there would only be one count of robbery. cheat him and so he immediately boxed
him. Now this robber who was boxed then
In robbery with homicide as a single pulled out his gun and fired at the other one
indivisible offense, it is immaterial who gets killing the latter. Would that bring about the
killed. Even though the killing may have crime of robbery with homicide? Yes. Even
resulted from negligence, you will still if the robbery was already consummated,
designate the crime as robbery with the killing was still by reason of the robbery
homicide. because they quarreled in dividing the loot
that is the subject of the robbery.
Illustration:
the robber may have married the woman and the offender’s prurient desires
raped, the crime remains robbery with rape. surfaced. They persisted in satisfying their
The rape is not erased. This is because the lust. They would have forgotten about their
crime is against property which is a single intent to rob if not for the accidental
indivisible offense. touching of the victim’s ring and wristwatch.
The taking of the victim’s valuables turned
If the woman, who was raped on the out to be an afterthought. It was held that
occasion of the robbery, pardoned the rapist two distinct crimes were committed: rape
who is one of the robbers, that would not with homicide and theft.
erase the crime of rape. The offender
would still be prosecuted for the crime of In People v. Dinola, 183 SCRA 493, it was
robbery with rape, as long as the rape is held that if the original criminal design of the
consummated. accused was to commit rape and after
committing the rape, the accused
If the rape is attempted, since it will be a committed robbery because the opportunity
separate charge and the offended woman presented itself, two distinct crimes – rape
pardoned the offender, that would bring and robbery were committed – not robbery
about a bar to the prosecution of the with rape. In the latter, the criminal intent to
attempted rape. If the offender married the gain must precede the intent to rape.
offended woman, that would extinguish the
criminal liability because the rape is the
subject of a separate prosecution. On robbery with physical injuries
the owner or members of the family of the the crime will still be robbery with serious
owner chased them, and they fought back physical injuries.
and somebody was killed, the crime would
still be robbery with homicide. But if serious If the robbers quarreled over the loot and
physical injuries were inflicted and the one of the robbers hacked the other robber
serious physical injuries rendered the victim causing a deformity in his face, the crime
impotent or insane or the victim lost the use will only be robbery and a separate charge
of any of his senses or lost a part of his for the serious physical injuries because
body, the crime would still be robbery with when it is a deformity that is caused, the
serious physical injuries. The physical law requires that the deformity must have
injuries (serious) should not be separated been inflicted upon one who is not a
regardless of whether they retorted in the participant in the robbery. Moreover, the
course of the commission of the robbery or physical injuries which gave rise to the
even after the robbery was consummated. deformity or which incapacitated the
offended party from labor for more than 30
In Article 299, it is only when the physical days, must have been inflicted in the course
injuries resulted in the deformity or of the execution of the robbery or while the
incapacitated the offended party from labor robbery was taking place.
for more than 30 days that the law requires
such physical injuries to have been inflicted If it was inflicted when the thieves/robbers
in the course of the execution of the are already dividing the spoils, it cannot be
robbery, and only upon persons who are not considered as inflicted in the course of
responsible in the commission of the execution of the robbery and hence, it will
robbery. not give rise to the crime of robbery with
serious physical injuries. You only have
But if the physical injuries inflicted are those one count of robbery and another count for
falling under subdivision 1 and 2 of Article the serious physical injuries inflicted.
263, even though the physical injuries were
inflicted upon one of the robbers If, during or on the occasion or by reason of
themselves, and even though it had been the robbery, a killing, rape or serious
inflicted after the robbery was already physical injuries took place, there will only
consummated, the crime will still be robbery be one crime of robbery with homicide
with serious physical injuries. There will because all of these – killing, rape, serious
only be one count of accusation. physical injuries -- are contemplated by law
as the violence or intimidation which
Illustration: characterizes the taking as on of robbery.
You charge the offenders of robbery with
After the robbers fled from the place where homicide. The rape or physical injuries will
the robbery was committed, they decided to only be appreciated as aggravating
divide the spoils and in the course of the circumstance and is not the subject of a
division of the spoils or the loot, they separate prosecution. They will only call for
quarreled. They shot it out and one of the the imposition of the penalty in the
robbers was killed. The crime is still maximum period.
robbery with homicide even though one of
the robbers was the one killed by one of If on the occasion of the robbery with
them. If they quarreled and serious homicide, robbery with force upon things
physical injuries rendered one of the was also committed, you will not have only
robbers impotent, blind in both eyes, or got one robbery but you will have a complex
insane, or he lost the use of any of his crime of robbery with homicide and robbery
senses, lost the use of any part of his body, with force upon things (see Napolis v. CA).
This is because robbery with violence or
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Requisites for liability for the acts of the c. By using false keys,
other members of the band picklocks or similar tools; or
of the property from within the premises, the On a sari-sari store, a vehicle bumped the
crime will only be theft. wall. The wall collapsed. There was a
small opening there. At night, a man
Two predicates that will give rise to the entered through that opening without
crime as robbery: breaking the same. The crime will already
be robbery if he takes property from within
1. By mere entering alone, a robbery because that is not an opening intended for
will be committed if any personal the purpose.
property is taken from within;
Even of there is a breaking of wall, roof,
2. The entering will not give rise to floor or window, but the offender did not
robbery even if something is taken enter, it would not give rise to robbery with
inside. It is the breaking of the force upon things.
receptacle or closet or cabinet
where the personal property is kept Breaking of the door under Article299 (b) –
that will give rise to robbery, or the Originally, the interpretation was that in
taking of a sealed, locked receptacle order that there be a breaking of the door in
to be broken outside the premises. contemplation of law, there must be some
damage to the door.
If by the mere entering, that would already
qualify the taking of any personal property Before, if the door was not damaged but
inside as robbery, it is immaterial whether only the lock attached to the door was
the offender stays inside the premises. The broken, the taking from within is only theft.
breaking of things inside the premises will But the ruling is now abandoned because
only be important to consider if the entering the door is considered useless without the
by itself will not characterize the crime as lock. Even if it is not the door that was
robbery with force upon things. broken but only the lock, the breaking of the
lock renders the door useless and it is
Modes of entering that would give rise to therefore tantamount to the breaking of the
the crime of robbery with force upon things door. Hence, the taking inside is
if something is taken inside the premises: considered robbery with force upon things.
entering into an opening not intended for
entrance or egress, under Article 299 (a). If the entering does not characterize the
taking inside as one of robbery with force
Illustration: upon things, it is the conduct inside that
would give rise to the robbery if there would
The entry was made through a fire escape. be a breaking of sealed, locked or closed
The fire escape was intended for egress. receptacles or cabinet in order to get the
The entry will not characterize the taking as personal belongings from within such
one of robbery because it is an opening receptacles, cabinet or place where it is
intended for egress, although it may not be kept.
intended for entrance. If the entering were
done through the window, even if the If in the course of committing the robbery
window was not broken, that would within the premises some interior doors are
characterize the taking of personal property broken, the taking from inside the room
inside as robbery because the window is where the door leads to will only give rise to
not an opening intended for entrance. theft. The breaking of doors contemplated
in the law refers to the main door of the
Illustration: house and not the interior door.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
The law classifies robbery with force upon Note that in the crime of robbery with force
things as those committed in: upon things, what should be considered is
the means of entrance and means of taking
(1) an inhabited place; the personal property from within. If those
means do not come within the definition
(2) public buildings; under the Revised Penal Code, the taking
will only give rise to theft.
(3) a place devoted to religious worship.
Those means must be employed in
The law also considers robbery committed entering. If the offender had already
not in an inhabited house or in a private entered when these means were employed,
building. anything taken inside, without breaking of
any sealed or closed receptacle, will not
Note that the manner of committing the give rise to robbery.
robbery with force upon things is not the
same. Illustration:
When the robbery is committed in a house A found B inside his (A’s) house. He asked
which is inhabited, or in a public building or B what the latter was doping there. B
in a place devoted to religious worship, the claimed he is an inspector from the local
use of fictitious name or pretension to city government to look after the electrical
possess authority in order to gain entrance installations. At the time B was chanced
will characterize the taking inside as upon by A, he has already entered. So
robbery with force upon things. anything he took inside without breaking of
any sealed or closed receptacle will not give
rise to robbery because the simulation of
public authority was made not in order to
Question & Answer
enter but when he has already entered.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
a. The entrance was effected Article 305 defines false keys to include the
through an opening not following:
intended for entrance or
egress; 1. Tools mentioned in Article 304;
1. There are least four armed persons; (1) Brigandage as a crime under the
Revised Penal Code refers to the
2. They formed a band of robbers; formation of a band of robbers by
more than three armed persons for
2. The purpose is any of the following: the purpose of committing robbery in
the highway, kidnapping for
a. To commit robbery in the purposes of extortion or ransom, or
highway; for any other purpose to be attained
by force and violence. The mere
b. To kidnap persons for the forming of a band, which requires at
purpose of extortion or to least four armed persons, if for any
obtain ransom; or of the criminal purposes stated in
Article 306, gives rise to brigandage.
c. To attain by means of force
and violence any other (2) Highway robbery/brigandage under
purpose. Presidential Decree No. 532 is the
seizure of any person for ransom,
extortion or for any other lawful
Article 307. Aiding and Abetting A Band purposes, or the taking away of the
of Brigands property of another by means of
violence against or intimidation of
Elements persons or force upon things or
other unlawful means committed by
1. There is a band of brigands; any person on any Philippine
highway.
2. Offender knows the band to be of
brigands; Brigandage under Presidential Decree No.
532 refers to the actual commission of the
3. Offender does any of the following robbery on the highway and can be
acts: committed by one person alone. It is this
brigandage which deserves some attention
because not any robbery in a highway is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
5. The taking is accomplished without fencing even if he paid the price because of
the use of violence against or the presumption.
intimidation of persons of force upon
things. Cattle Rustling and Qualified Theft of Large
Cattle – The crime of cattle-rustling is
defined and punished under Presidential
Fencing under Presidential Decree No. Decree No. 533, the Anti-Cattle Rustling
1612 is a distinct crime from theft and law of 1974, as the taking by any means,
robbery. If the participant who profited is method or scheme, of any large cattle, with
being prosecuted with person who robbed, or without intent to gain and whether
the person is prosecuted as an accessory. committed with or without violence against
If he is being prosecuted separately, the or intimidation of person or force upon
person who partook of the proceeds is things, so long as the taking is without the
liable for fencing. consent of the owner/breed thereof. The
crime includes the killing or taking the meat
In People v. Judge de Guzman, it was or hide of large cattle without the consent of
held that fencing is not a continuing offense. the owner.
Jurisdiction is with the court of the place
where the personal property subject of the Since the intent to gain is not essential, the
robbery or theft was possessed, bought, killing or destruction of large cattle, even
kept, or dealt with. The place where the without taking any part thereof, is not a
theft or robbery was committed was crime of malicious mischief but cattle-
inconsequential. rustling.
Since Section 5 of Presidential Decree No. The Presidential Decree, however, does not
1612 expressly provides that mere supersede the crime of qualified theft of
possession of anything of value which has large cattle under Article 310 of the Revised
been subject of theft or robbery shall be Penal Code, but merely modified the
prima facie evidence of fencing, it follows penalties provided for theft of large cattle
that a possessor of stolen goods is and, to that extent, amended Articles 309
presumed to have knowledge that the and 310. Note that the overt act that gives
goods found in his possession after the fact rise to the crime of cattle-rustling is the
of theft or robbery has been established. taking or killing of large cattle. Where the
The presumption does not offend the large cattle was not taken, but received by
presumption of innocence in the the offender from the owner/overseer
fundamental law. This was the ruling in thereof, the crime is not cattle-rustling; it is
Pamintuan v. People, decided on July 11, qualified theft of large cattle.
1994.
Where the large cattle was received by the
Burden of proof is upon fence to overcome offender who thereafter misappropriated it,
presumption; if explanation insufficient or the crime is qualified theft under Article 310
unsatisfactory, court will convict. This is a if only physical or material possession
malum prohibitum so intent is not material. thereof was yielded to him. If both material
But if prosecution is under the Revised and juridical possession thereof was yielded
Penal Code, as an accessory, the criminal to him who misappropriated the large cattle,
intent is controlling. the crime would be estafa under Article 315
(1b).
When there is notice to person buying,
there may be fencing such as when the
price is way below ordinary prices; this may
serve as notice. He may be liable for
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Presidential Decree No. 533 is not a special If the property stolen is any property of the
law in the context of Article 10 of the National Library or of the National Museum
Revised Penal Code. It merely modified the
penalties provided for theft of large cattle Article 312. Occupation of Real Property
under the Revised Penal Code and or Usurpation of Real Rights in Property
amended Article 309 and 310. This is
explicit from Section 10 of the Presidential Acts punished:
Decree. Consequently, the trial court
should not have convicted the accused of 1. Taking possession of any real
frustrated murder separately from cattle- property belonging to another by
rustling, since the former should have been means of violence against or
absorbed by cattle-rustling as killing was a intimidation of persons;
result of or on the occasion of cattle-
rustling. It should only be an aggravating 2. Usurping any real rights in property
circumstance. But because the information belonging to another by means of
did not allege the injury, the same can no violence against or intimidation of
longer be appreciated; the crime should, persons.
therefore be only, simple cattle-rustling.
(People v. Martinada, February 13, 1991)
Elements
Acts punished under paragraph (a) bracelet and draws a check without
insufficient funds. The jeweler sells
1. Using fictitious name; her the bracelet solely because of
the consideration in the check.)
2. Falsely pretending to possess
power, influence, qualifications, (3) It does not cover checks where the
property, credit, agency, business or purpose of drawing the check is to
imaginary transactions; or guarantee a loan as this is not an
obligation contemplated in this
3. By means of other similar deceits. paragraph
But overdraft or credit arrangement may be 4. The act is made to the prejudice to
allowed by banks as to their preferred the owner or a third person.
clients and Batas Pambansa Blg. 22 does
not apply. If check bounces, it is because
bank has been remiss in honoring Under paragraph 2 – by disposing of real
agreement. property as free from encumbrance,
although such encumbrance be not
The check must be presented for payment recorded
within a 90-day period. If presented for
payment beyond the 90 day period and the Elements
drawer’s funds are insufficient to cover it,
there is no Batas Pambansa Blg. 22 1. The thing disposed is a real
violation. property:
Where check was issued prior to August 8, 2. Offender knew that the real property
1984, when Circular No. 12 of the was encumbered, whether the
Department of the Justice took effect, and encumbrance is recorded or not;
the drawer relied on the then prevailing
Circular No. 4 of the Ministry of Justice to 3. There must be express
the effect that checks issued as part of an representation by offender that the
arrangement/agreement of the parties to real property is free from
guarantee or secure fulfillment of an encumbrance;
obligation are not covered by Batas
Pambansa Blg. 22, no criminal liability 4. The act of disposing of the real
should be incurred by the drawer. Circular property is made to the damage of
should not be given retroactive effect. another.
(Lazaro v. CA, November 11, 1993, citing
People v. Alberto, October 28, 1993)
Under paragraph 3 – by wrongfully taking by
the owner of his personal property from its
Article 316. Other Forms of Swindling lawful possessor
Acts punished
Elements:
Arson
1. Personal property is
mortgaged under the Chattel Kinds of arson
Mortgage Law;
1. Arson, under Section 1 of
2. Offender knows that such Presidential Decree No. 1613;
property is so mortgaged;
2. Destructive arson, under Article 320
3. Offender removes such of the Revised Penal Code, as
mortgaged personal property amended by Republic Act No. 7659;
to any province or city other
than the one in which it was 3. Other cases of arson, under Section
located at the time of the 3 of Presidential Decree No. 1613.
execution of the mortgage;
4. The removal is permanent; Article 327. Who Are Liable for Malicious
Mischief
5. There is no written consent of
the mortgagee or his Elements
executors, administrators or
assigns to such removal. 1. Offender deliberately caused
damage to the property of another;
2. Selling or pledging personal property
already pledged, or any part thereof, 2. Such act does not constitute arson
under the terms of the Chattel or other crimes involving destruction;
Mortgage Law, without the consent
of the mortgagee written on the back 3. The act of damaging another’s
of the mortgage and noted on the property was committed merely for
record thereof in the office of the the sake of damaging it;
register of deeds of the province
where such property is located.
There is destruction of the property of
Elements: another but there is no misappropriation.
Otherwise, it would be theft if he gathers the
1. Personal property is already effects of destruction.
pledged under the terms of
the Chattel Mortgage Law;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 328. Special Case of Malicious Persons exempted from criminal liability
Mischief
1. Spouse, ascendants and
Acts punished descendants, or relatives by affinity
in the same line;
1. Causing damage to obstruct the
performance of public functions; 2. Widowed spouse with respect to the
property which belonged to the
2. Using any poisonous or corrosive deceased spouse before the same
substance; passed into the possession of
another
3. Spreading any infection or contagion
among cattle; 3. Brothers and sisters and brothers-in-
law and sisters-in-law, if living
4. Causing damage to the property of together.
the National Museum or National
Library, or to any archive or registry,
waterworks, road, promenade, or Only the relatives enumerated incur no
any other thing used is common by liability if the crime relates to theft (not
the pubic. robbery), swindling, and malicious mischief.
Third parties who participate are not
exempt. The relationship between the
Article 329. Other Mischiefs spouses is not limited to legally married
couples; the provision applies to live-in
All other mischiefs not included in the next partners.
preceding article
Estafa should not be complexed with any
other crime in order for exemption to
Article 330. Damage and Obstruction to operate.
Means of Communication
This is committed by damaging any railway, TITLE XI. CRIMES AGAINST CHASTITY
telegraph or telephone lines.
Crimes against chastity
Note that there are two kinds of acts of Always remember that there can be no
lasciviousness under the Revised Penal frustration of acts of lasciviousness, rape or
Code: (1) under Article 336, and (2) under adultery because no matter how far the
Article 339. offender may have gone towards the
realization of his purpose, if his participation
1. Article 336. Acts of Lasciviousness amounts to performing all the acts of
execution, the felony is necessarily
Under this article, the offended party produced as a consequence thereof.
may be a man or a woman. The
crime committed, when the act Intent to rape is not a necessary element of
performed with lewd design was the crime of acts of lasciviousness.
perpetrated under circumstances Otherwise, there would be no crime of
which would have brought about the attempted rape.
crime of rape if sexual intercourse
was effected, is acts of
lasciviousness under this article. Article 337. Qualified Seduction
This means that the offended party
is either – Acts punished
This crime also involves sexual intercourse. Article 338. Simple Seduction
The offended woman must be over 12 but
below 18 years. Elements
The distinction between qualified seduction 1. Offender party is over 12 and under
and simple seduction lies in the fact, among 18 years of age;
others, that the woman is a virgin in
qualified seduction, while in simple 2. She is of good reputation, single or
seduction, it is not necessary that the widow;
woman be a virgin. It is enough that she is
of good repute.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
This crime is committed if the offended It is not required that the offender be the
woman is single or a widow of good guardian or custodian of the minor.
reputation, over 12 and under 18 years of
age, the offender has carnal knowledge of It is not necessary that the minor be
her, and the offender resorted to deceit to prostituted or corrupted as the law merely
be able to consummate the sexual punishes the act of promoting or facilitating
intercourse with her. the prostitution or corruption of said minor
and that he acted in order to satisfy the lust
The offended woman must be under 18 but of another.
not less than 12 years old; otherwise, the
crime is statutory rape.
Article 341. White Slave Trade
Unlike in qualified seduction, virginity is not
essential in this crime. What is required is Acts punished
that the woman be unmarried and of good
reputation. Simple seduction is not 1. Engaging in the business of
synonymous with loss of virginity. If the prostitution;
woman is married, the crime will be
adultery. 2. Profiting by prostitution;
The failure to comply with the promise of 3. Enlisting the services of women for
marriage constitutes the deceit mentioned the purpose of prostitution.
in the law.
to a certain place in order to break her will In order to demonstrate the presence of the
and make her agree to marry the offender, lewd design, illicit criminal relations with the
the crime is only grave coercion because person abducted need not be shown. The
the criminal intent of the offender is to force intent to seduce a girl is sufficient.
his will upon the woman and not really to
restrain the woman of her liberty. If there is a separation in fact, the taking by
the husband of his wife against her will
If the offended woman is under 12 years constitutes grave coercion.
old, even if she consented to the abduction,
the crime is forcible abduction and not Distinction between forcible abduction and
consented abduction. illegal detention:
Where the offended woman is below the When a woman is kidnapped with lewd or
age of consent, even though she had gone unchaste designs, the crime committed is
with the offender through some deceitful forcible abduction.
promises revealed upon her to go with him
and they live together as husband and wife When the kidnapping is without lewd
without the benefit of marriage, the ruling is designs, the crime committed is illegal
that forcible abduction is committed by the detention.
mere carrying of the woman as long as that
intent is already shown. In other words, But where the offended party was forcibly
where the man cannot possibly give the taken to the house of the defendant to
woman the benefit of an honorable life, all coerce her to marry him, it was held that
that man promised are just machinations of only grave coercion was committed and not
a lewd design and, therefore, the carrying illegal detention.
of the woman is characterized with lewd
design and would bring about the crime of
abduction and not kidnapping. This is also Article 343. Consented Abduction
true if the woman is deprived of reason and
if the woman is mentally retardate. Forcible Elements
abduction is committed and not consented
abduction. 1. Offended party is a virgin;
Lewd designs may be demonstrated by the 2. She is over 12 and under 18 years
lascivious acts performed by the offender of age;
on her. Since this crime does not involve
sexual intercourse, if the victim is subjected 3. Offender takes her away with her
to this, then a crime of rape is further consent, after solicitation or cajolery;
committed and a complex crime of forcible
abduction with rape is committed. 4. The taking away is with lewd
designs.
The taking away of the woman may be
accomplished by means of deceit at the
beginning and then by means of violence Where several persons participated in the
and intimidation later. forcible abduction and these persons also
raped the offended woman, the original
The virginity of the complaining witness is ruling in the case of People v. Jose is that
not a determining factor in forcible there would be one count of forcible
abduction. abduction with rape and then each of them
will answer for his own rape and the rape of
the others minus the first rape which was
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
complexed with the forcible abduction. This whether he or she wanted the crime
ruling is no longer the prevailing rule. The committed on him or her to be made public
view adopted in cases of similar nature is to is his or hers alone, because the indignity or
the effect that where more than one person dishonor brought about by these crimes
has effected the forcible abduction with affects more the offended party than social
rape, all the rapes are just the order. The offended party may prefer to
consummation of the lewd design which suffer the outrage in silence rather than to
characterizes the forcible abduction and, vindicate his honor in public.
therefore, there should only be one forcible
abduction with rape. In the crimes of rape, abduction and
seduction, if the offended woman had given
In the crimes involving rape, abduction, birth to the child, among the liabilities of the
seduction, and acts of lasciviousness, the offender is to support the child. This
marriage by the offender with the offended obligation to support the child may be true
woman generally extinguishes criminal even if there are several offenders. As to
liability, not only of the principal but also of whether all of them will acknowledge the
the accomplice and accessory. However, child, that is a different question because
the mere fact of marriage is not enough the obligation to support here is not founded
because it is already decided that if the on civil law but is the result of a criminal act
offender marries the offended woman or a form of punishment.
without any intention to perform the duties
of a husband as shown by the fact that after It has been held that where the woman was
the marriage, he already left her, the the victim of the said crime could not
marriage would appear as having been possibly conceive anymore, the trial court
contracted only to avoid the punishment. should not provide in its sentence that the
Even with that marriage, the offended accused, in case a child is born, should
woman could still prosecute the offender support the child. This should only be
and that marriage will not have the effect of proper when there is a probability that the
extinguishing the criminal liability. offended woman could give birth to an
offspring.
Pardon by the offended woman of the
offender is not a manner of extinguishing
criminal liability but only a bar to the TITLE XII. CRIMES AGAINST THE CIVIL
prosecution of the offender. Therefore, that STATUS OF PERSONS
pardon must come before the prosecution is
commenced. While the prosecution is Crimes against the civil status of persons
already commenced or initiated, pardon by
the offended woman will no longer be 1. Simulation of births, substitution of
effective because pardon may preclude one child for another and
prosecution but not prevent the same. concealment or abandonment of a
legitimate child (art. 347);
All these private crimes – except rape –
cannot be prosecuted de officio. If any 2. Usurpation of civil status (Art. 348);
slander or written defamation is made out of
any of these crimes, the complaint of the 3. Bigamy (Art. 349);
offended party is till necessary before such
case for libel or oral defamation may 4. Marriage contracted against
proceed. It will not prosper because the provisions of law (Art. 350);
court cannot acquire jurisdiction over these
crimes unless there is a complaint from the 5. Premature marriages (Art. 351);
offended party. The paramount decision of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 347. Simulation of Births, The crime would fall under the
Substitution of One Child for Another, second paragraph of Article 347. The
and Concealment of Abandonment of A purpose of the woman is to cause the child
Legitimate Child to lose its civil status so that it may not be
able to share in the inheritance.
Acts punished
3. Suppose a child, one day
1. Simulation of births; after his birth, was taken to and left in the
midst of a lonely forest, and he was found
2. Substitution of one child for another; by a hunter who took him home. What
crime was committed by the person who left
3. Concealing or abandoning any it in the forest?
legitimate child with intent to cause
such child to lose its civil status. It is attempted infanticide, as the act
of the offender is an attempt against the life
of the child. See US v. Capillo, et al., 30
Illustration: Phil. 349.
2. Suppose that the purpose of 2. The marriage has not been legally
the woman is abandoning the child is to dissolved or, in case his or her
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
spouse is absent, the absent spouse Distinction between bigamy and illegal
could not yet be presumed dead marriage:
according to the Civil Code;
Bigamy is a form of illegal marriage. The
3. He contracts a second or offender must have a valid and subsisting
subsequent marriage; marriage. Despite the fact that the
marriage is still subsisting, he contracts a
4. The second or subsequent marriage subsequent marriage.
has all the essential requisites for
validity. Illegal marriage includes also such other
marriages which are performed without
complying with the requirements of law, or
The crime of bigamy does not fall within the such premature marriages, or such
category of private crimes that can be marriage which was solemnized by one
prosecuted only at the instance of the who is not authorized to solemnize the
offended party. The offense is committed same.
not only against the first and second wife
but also against the state. For bigamy to be committed, the second
marriage must have all the attributes of a
Good faith is a defense in bigamy. valid marriage.
1. A widow who is married within 301 7. Intriguing against honor (Art. 364).
days from the date of the death of
her husband, or before having
delivered if she is pregnant at the Article 353. Definition of Libel
time of his death;
A libel is a public and malicious imputation
2. A woman who, her marriage having of a crime, or of a vice or defect, real or
been annulled or dissolved, married imaginary, or any act, omission, condition,
before her delivery or before the status, or circumstances tending to cause
expiration of the period of 301 days the dishonor, discredit, or contempt of a
after the date of the legal separation. natural or juridical person, or to blacken the
memory of one who is dead.
TITLE XIII. CRIMES AGAINST HONOR 5. The imputation must tend to cause
the dishonor, discredit or contempt
Crimes against honor of the person defamed.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
8. Theatrical exhibition;
When proof of truth is admissible
9. Cinematographic exhibition; or
1. When the act or omission imputed
constitutes a crime regardless of 10. Any similar means.
whether the offended party is a
private individual or a public officer;
Article 356. Threatening to Publish and
2. When the offended party is a Offer to Prevent Such Publication for A
government employee, even if the Compensation
act or omission imputed does not
constitute a crime, provided if its Acts punished
related to the discharged of his
official duties. 1. Threatening another to publish a
libel concerning him, or his parents,
spouse, child, or other members of
Requisites of defense in defamation his family;
the crime – hush money. (US v. Eguia, et 2. Such act is performed in the
al., 38 Phil. 857) Blackmail is possible in presence of other person or
(1) light threats under Article 283; and (2) persons;
threatening to publish, or offering to prevent
the publication of, a libel for compensation, 3. Such act casts dishonor, discredit or
under Article 356. contempt upon the offended party.