Ortega Specific Crimes 2

Article 254.  Discharge of Firearms

Elements

1.     Offender discharges a firearm against or at another person;

2.     Offender had no intention to kill that person.

This crime cannot be committed through imprudence because it requires that the discharge must be directed at another.

If the firearm is directed at a person and the trigger was pressed but did not fire, the crime is frustrated discharge of firearm.

If the discharge is not directed at a person, the crime may constitute alarm and scandal.

The following are holdings of the Supreme Court with respect to this crime:

(1)        If serious physical injuries resulted from discharge, the crime committed is the complex crime of serious physical injury with illegal discharge of firearm, or if less serious physical injury, the complex crime of less serious physical injury with illegal discharge of firearm will apply.

(2)        Firing a gun at a person even if merely to frighten him constitutes illegal discharge of firearm.

Article 255.  Infanticide

Elements

1.     A child was killed by the accused;

2.     The deceased child was less than 72 hours old.

This is a crime based on the age of the victim.  The victim should be less than three days old.

The offender may actually be the parent of the child.  But you call the crime infanticide, not parricide, if the age of the victim is less than three days old.  If the victim is three days old or above, the crime is parricide.

Illustration:

An unmarried woman, A, gave birth to a child, B.  To conceal her dishonor, A conspired with C to dispose of the child.  C agreed and killed the child B by burying the child somewhere.

If the child was killed when the age of the child was three days old and above already, the crime of A is parricide.  The fact that the killing was done to conceal her dishonor will not mitigate the criminal liability anymore because concealment of dishonor in killing the child is not mitigating in parricide.

If the crime committed by A is parricide because the age of the child is three days old or above, the crime of the co-conspirator C is murder.  It is not parricide because he is not related to the victim.

If the child is less than three days old when killed, both the mother and the stranger commits infanticide because infanticide is not predicated on the relation of the offender to the offended party but on the age of the child.  In such a case, concealment of dishonor as a motive for the mother to have the child killed is mitigating.

Concealment of dishonor is not an element of infanticide. It merely lowers the penalty.  If the child is abandoned without any intent to kill and death results as a consequence, the crime committed is not infanticide but abandonment under Article 276.

If the purpose of the mother is to conceal her dishonor, infanticide through imprudence is not committed because the purpose of concealing the dishonor is incompatible with the absence of malice in culpable felonies.

If the child is born dead, or if the child is already dead, infanticide is not committed.

Article 256.  Intentional Abortion

Acts punished

1.   Using any violence upon the person of the pregnant woman;

2.   Acting, but without using violence, without the consent of the woman.  (By administering drugs or beverages upon such pregnant woman without her consent.)

3.   Acting (by administering drugs or beverages), with the consent of the pregnant woman.

Elements

1.   There is a pregnant woman;

2.   Violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon such pregnant woman;

3.     As a result of the use of violence or drugs or beverages upon her, or any other act of the accused, the fetus dies, either in the womb or after having been expelled therefrom;

4.   The abortion is intended.

Abortion is the violent expulsion of a fetus from the maternal womb.  If the fetus has been delivered but it could not subsist by itself, it is still a fetus and not a person. Thus, if it is killed, the crime committed is abortion not infanticide.

 

Distinction between infanticide and abortion

It is infanticide if the victim is already a person less that three days old or 72 hours and is viable or capable of living separately from the mother’s womb. 

It is abortion if the victim is not viable but remains to be a fetus.

Abortion is not a crime against the woman but against the fetus.  If mother as a consequence of abortion suffers death or physical injuries, you have a complex crime of murder or physical injuries and abortion. 

In intentional abortion, the offender must know of the pregnancy because the particular criminal intention is to cause an abortion.  Therefore, the offender must have known of the pregnancy for otherwise, he would not try an abortion.

If the woman turns out not to be pregnant and someone performs an abortion upon her, he is liable for an impossible crime if the woman suffers no physical injury.  If she does, the crime will be homicide, serious physical injuries, etc.

Under the Article 40 of the Civil Code, birth determines personality.  A person is considered born at the time when the umbilical cord is cut.  He then acquires a personality separate from the mother. 

But even though the umbilical cord has been cut, Article 41 of the Civil Code provides that if the fetus had an intra-uterine life of less than seven months, it must survive at least 24 hours after the umbilical cord is cut for it to be considered born.

Illustration:

A mother delivered an offspring which had an

intra-uterine life of seven months. Before the umbilical cord is cut, the child was killed. 

If it could be shown that had the umbilical cord been cut, that child, if not killed, would have survived beyond 24 hours, the crime is infanticide because that conceived child is already considered born.

If it could be shown that the child, if not killed, would not have survived beyond 24 hours, the crime is abortion because what was killed was a fetus only.

In abortion, the concealment of dishonor as a motive of the mother to commit the abortion upon herself is mitigating.  It will also mitigate the liability of the maternal grandparent of the victim – the mother of the pregnant woman – if the abortion was done with the consent of the pregnant woman.

If the abortion was done by the mother of the pregnant woman without the consent of the woman herself, even if it was done to conceal dishonor, that circumstance will not mitigate her criminal liability.

But if those who performed the abortion are the parents of the pregnant woman, or either of them, and the pregnant woman consented for the purpose of concealing her dishonor, the penalty is the same as that imposed upon the woman who practiced the abortion upon herself.

Frustrated abortion is committed if the fetus that is expelled is viable and, therefore, not dead as abortion did not result despite the employment of adequate and sufficient means to make the pregnant woman abort.  If the means are not sufficient or adequate, the crime would be an impossible crime of abortion.  In consummated abortion, the fetus must be dead.

One who persuades her sister to abort is a co-principal, and one who looks for a physician to make his sweetheart abort is an accomplice.  The physician will be punished under Article 259 of the Revised Penal Code.

Article 257.  Unintentional Abortion

Elements

1.   There is a pregnant woman;

2.   Violence is used upon such pregnant woman without intending an abortion;

3.   The violence is intentionally exerted;

4.   As a result of the violence, the fetus dies, either in the womb or after having been expelled therefrom.

Unintentional abortion requires physical violence inflicted deliberately and voluntarily by a third person upon the person of the pregnant woman.  Mere intimidation is not enough unless the degree of intimidation already approximates violence.

If the pregnant woman aborted because of intimidation, the crime committed is not unintentional abortion because there is no violence; the crime committed is light threats.

If the pregnant woman was killed by violence by her husband, the crime committed is the complex crime of parricide with unlawful abortion.

Unintentional abortion may be committed through negligence as it is enough that the use of violence be voluntary.

Illustration: 

A quarrel ensued between A, husband, and B, wife.  A became so angry that he struck B, who was then pregnant, with a soft drink bottle on the hip.  Abortion resulted and B died.

In US v. Jeffry, 15 Phil. 391, the Supreme Court said that knowledge of pregnancy of the offended party is not necessary.  In People v. Carnaso, decided on April 7, 1964, however, the Supreme Court held that knowledge of pregnancy is required in unintentional abortion.

Criticism:

Under Article 4, paragraph 1 of the Revised Penal Code, any person committing a felony is criminally liable for all the direct, natural, and logical consequences of his felonious acts although it may be different from that which is intended.  The act of employing violence or physical force upon the woman is already a felony.  It is not material if offender knew about the woman being pregnant or not.

If the act of violence is not felonious, that is, act of self-defense, and there is no knowledge of the woman’s pregnancy, there is no liability. If the act of violence is not felonious, but there is knowledge of the woman’s pregnancy, the offender is liable for unintentional abortion.

Illustration:

The act of pushing another causing her to fall is a felonious act and could result in physical injuries.  Correspondingly, if not only physical injuries were sustained but abortion also resulted, the felonious act of pushing is the proximate cause of the unintentional abortion.

Questions & Answers

1.     A pregnant woman decided to commit suicide.  She jumped out of a window of a building but she landed on a passerby.  She did not die but an abortion followed.  Is she liable for unintentional abortion?

No.  What is contemplated in unintentional abortion is that the force or violence must come from another.  If it was the woman doing the violence upon herself, it must be to bring about an abortion, and therefore, the crime will be intentional abortion.  In this case, where the woman tried to commit suicide, the act of trying to commit suicide is not a felony under the Revised Penal Code.  The one penalized in suicide is the one giving assistance and not the person trying to commit suicide.

2.     If the abortive drug used in abortion is a prohibited drug or regulated drug under Presidential Decree No. 6425 (The Dangerous Drugs Act of 1972), as amended, what are the crimes committed?

The crimes committed are (1) intentional abortion; and (2) violation of the Dangerous Drugs Act of 1972.

 

 

 

 

Article 258.  Abortion Practiced by the Woman Herself or by Her Parents

Elements

1.   There is a pregnant woman who has suffered an abortion;

2.   The abortion is intended;

3.   Abortion is caused by –

a.   The pregnant woman herself;

b.   Any other person, with her consent; or

c.    Any of her parents, with her consent for the purpose of concealing her dishonor.

Article 259.  Abortion Practiced by A Physician or Midwife and Dispensing of Abortives

Elements

1.   There is a pregnant woman who has suffered an abortion;

2.   The abortion is intended;

3.   Offender, who must be a physician or midwife, caused or assisted in causing the abortion;

4.   Said physician or midwife took advantage of his or her scientific knowledge or skill.

If the abortion is produced by a physician to save the life of the mother, there is no liability.  This is known as a therapeutic abortion.  But abortion without medical necessity to warrant it is punishable even with the consent of the woman or her husband.

Illustration:

A woman who is pregnant got sick.  The doctor administered a medicine which resulted in Abortion.  The crime committed was unintentional abortion through negligence or imprudence.

Question & Answer

What is the liability of a physician who aborts the fetus to save the life of the mother?

None.  This is a case of therapeutic abortion which is done out of a state of necessity. Therefore, the requisites under Article 11, paragraph 4, of the Revised Penal Code must be present.  There must be no other practical or less harmful means of saving the life of the mother to make the killing justified.

Article 260.  Responsibility of Participants in A Duel

Acts punished

1.   Killing one’s adversary in a duel;

2.   Inflicting upon such adversary physical injuries;

3.   Making a combat although no physical injuries have been inflicted.

Persons liable

1.   The person who killed or inflicted physical injuries upon his adversary, or both combatants in any other case, as principals.

2.   The seconds, as accomplices.

There is no such crime nowadays because people hit each other even without entering into any pre-conceived agreement.  This is an obsolete provision.

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 make the selection of arms and fix all the other conditions of the fight to settle some antecedent quarrel.

If these are not the conditions of the fight, it is not a duel in the sense contemplated in the Revised Penal Code.  It will be a quarrel and anyone who killed the other will be liable for homicide or murder, as the case may be.

The concept of duel under the Revised Penal Code is a classical one.

Article 261.  Challenging to A Duel

Acts punished

1.   Challenging another to a duel;

2.   Inciting another to give or accept a challenge to a duel;

3.   Scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel.

Illustration:

If one challenges another to a duel by shouting “Come down, Olympia, let us measure your prowess. We will see whose intestines will come out. You are a coward if you do not come down”, the crime of challenging to a duel is not committed.  What is committed is the crime of light threats under Article 285, paragraph 1 of the Revised Penal Code.

Article 262.  Mutilation

Acts punished

1.   Intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction;

Elements

a.   There be a castration, that is, mutilation of organs necessary for generation, such as the penis or ovarium;

b.   The mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction

         

2.   Intentionally making other mutilation, that is, by lopping or clipping off any part of the body of the offended party, other than the essential organ for reproduction, to deprive him of that part of his body.

Mutilation is the lopping or clipping off of some part of the body.

The intent to deliberately cut off the particular part of the body that was removed from the offended party must be established.  If there is no intent to deprive victim of particular part of body, the crime is only serious physical injury.

The common mistake is to associate this with the reproductive organs only.  Mutilation includes any part of the human body that is not susceptible to grow again. 

If what was cut off was a reproductive organ, the penalty is much higher than that for homicide.

This cannot be committed through criminal negligence.

Article 263.  Serious Physical Injuries

How committed

1.   By wounding;

2.   By beating;

3.   By assaulting; or

4.   By administering injurious substance.

In one case, the accused, while conversing with the offended party, drew the latter’s bolo from its scabbard.  The offended party caught hold of the edge of the blade of his bolo and wounded himself.  It was held that since the accused did not wound, beat or assault the offended party, he can not be guilty of serious physical injuries. 

Serious physical injuries

1.   When the injured person becomes insane, imbecile, impotent or blind in consequence of the physical injuries inflicted;

2.   When the injured person –

a.   Loses the use of speech or the power to hear or to smell, or loses an eye, a hand, afoot, an arm, or a leg;

b.   Loses the use of any such member; or

c.    Becomes incapacitated for the work in which he was theretofore habitually engaged, in consequence of the physical injuries inflicted;

3.   When the person injured –

a.   Becomes deformed; or

b.   Loses any other member of his body;

c.    Loses the use thereof; or

d.   Becomes ill or incapacitated for the performance of the work in which he was habitually engaged for more than 90 days in consequence of the physical injuries inflicted;

4.   When the injured person becomes ill or incapacitated for labor for more than 30 days (but must not be more than 90 days), as a result of the physical injuries inflicted.

The crime of physical injuries is a crime of result because under our laws the crime of physical injuries is based on the gravity of the injury sustained.  So this crime is always consummated, notwithstanding the opinion of Spanish commentators like Cuello Calon, Viada, etc., that it can be committed in the attempted or frustrated stage.

If the act does not give rise to injuries, you will not be able to say whether it is attempted slight physical injuries, attempted less serious physical injuries, or attempted serious physical injuries unless the result is there.

The reason why there is no attempted or frustrated physical injuries is because the crime of physical injuries is determined on the gravity of the injury.  As long as the injury is not there, there can be no attempted or frustrated stage thereof.

Classification of physical injuries:

(1)        Between slight physical injuries and less serious physical injuries, you have a duration of one to nine days if slight physical injuries; or 10 days to 20 days if less serious physical injuries. Consider the duration of healing and treatment.

The significant part here is between slight physical injuries and less serious physical injuries.  You will consider not only the healing duration of the injury but also the medical attendance required to treat the injury.  So the healing duration may be one to nine days, but if the medical treatment continues beyond nine days, the physical injuries would already qualify as less serious physical injuries.  The medical treatment may have lasted for nine days, but if the offended party is still incapacitated for labor beyond nine days, the physical injuries are already considered less serious physical injuries.

(2)        Between less serious physical injuries and serious physical injuries, you do not consider the period of medical treatment.  You only consider the period when the offended party is rendered incapacitated for labor.

If the offended party is incapacitated to work for less than 30 days, even though the treatment continued beyond 30 days, the physical injuries are only considered less serious because for purposes of classifying the physical injuries as serious, you do not consider the period of medical treatment. You only consider the period of incapacity from work.

(3)        When the injury created a deformity upon the offended party, you disregard the healing duration or the period of medical treatment involved.  At once, it is considered serious physical injuries.

So even though the deformity may not have incapacitated the offended party from work, or even though the medical treatment did not go beyond nine days, that deformity will bring about the crime of serious physical injuries.

Deformity requires the concurrence of the following conditions:

(1)        The injury must produce ugliness;

(2)        It must be visible;

(3)        The ugliness will not disappear through natural healing process.

Illustration:

Loss of molar tooth – This is not deformity as it is not visible.

Loss of permanent front tooth – This is deformity as it is visible and permanent.

Loss of milk front tooth – This is not deformity as it is visible but will be naturally replaced.

Question & Answer

The offender threw acid on the face of the offended party.  Were it not for timely medical attention, a deformity would have been produced on the face of the victim.  After the plastic surgery, the offended party was more handsome than before the injury.  What crime was committed?  In what stage was it committed?

The crime is serious physical injuries because the problem itself states that the injury would have produced a deformity. The fact that the plastic surgery removed the deformity is immaterial because in law what is considered is not the artificial treatment but the natural healing process.

In a case decided by the Supreme Court, accused was charged with serious physical injuries because the injuries produced a scar. He was convicted under Article 263 (4). He appealed because, in the course of the trial, the scar disappeared.   It was held that accused can not be convicted of serious physical injuries.  He is liable only for slight physical injuries because the victim was not incapacitated, and there was no evidence that the medical treatment lasted for more than nine days.

Serious physical injuries is punished with higher penalties in the following cases:

 (1)       If it is committed against any of the persons referred to in the crime of parricide under Article 246;

(2)        If any of the circumstances qualifying murder attended its commission.

Thus, a father who inflicts serious physical injuries upon his son will be liable for qualified serious physical injuries.

Republic Act No. 8049 (The Anti-Hazing Law)

Hazing -- This is any initiation rite or practice which is a prerequisite for admission into membership in a fraternity or sorority or any organization which places the neophyte or applicant in some embarrassing or humiliating situations or otherwise subjecting him to physical or psychological suffering of injury.  These do not include any physical, mental, psychological testing and training procedure and practice to determine and enhance the physical and psychological fitness of the prospective regular members of the below.

Organizations include any club or AFP, PNP, PMA or officer or cadet corps of the CMT or CAT.

Section 2 requires a written notice to school authorities from the head of the organization seven days prior to the rites and should not exceed three days in duration.

Section 3 requires supervision by head of the school or the organization of the rites.

Section 4 qualifies the crime if rape, sodomy or mutilation results therefrom, if the person becomes insane, an imbecile, or impotent or blind because of such, if the person loses the use of speech or the power to hear or smell or an eye, a foot, an arm or a leg, or the use of any such member or any of the serious physical injuries or the less serious physical injuries.  Also if the victim is below 12, or becomes incapacitated for the work he habitually engages in for 30, 10, 1-9 days.

It holds the parents, school authorities who consented or who had actual knowledge if they did nothing to prevent it, officers and members who planned, knowingly cooperated or were present, present alumni of the organization, owner of the place where such occurred liable.

Makes presence a prima facie presumption of guilt for such.

Article 264.  Administering Injurious Substances or Beverages

Elements

1.   Offender inflicted upon another any serious physical injury;

2.   It was done by knowingly administering to him any injurious substance or beverages or by taking advantage of his weakness of mind or credulity;

3.   He had no intent to kill.

Article 265.  Less Serious Physical Injuries

Matters to be noted in this crime

1.   Offended party is incapacitated for labor for 10 days or more (but not more than 30 days), or needs medical attendance for the same period of time;

2.   The physical injuries must not be those described in the preceding articles.

Qualified as to penalty

1.   A fine not exceeding P 500.00, in addition to arresto mayor, shall be imposed for less serious physical injuries when –

a.   There is a manifest intent to insult or offend the injured person; or

b.   There are circumstances adding ignominy to the offense.

2.   A higher penalty is imposed when the victim is either –

a.   The offender’s parents, ascendants, guardians, curators or teachers; or

b.   Persons of rank or person in authority, provided the crime is not direct assault.

If the physical injuries do not incapacitate the offended party nor necessitate medical attendance, slight physical injuries is committed. But if the physical injuries heal after 30 days, serious physical injuries is committed under Article 263, paragraph 4.

Article 265 is an exception to Article 48 in relation to complex crimes as the latter only takes place in cases where the Revised Penal Code has no specific provision penalizing the same with a definite, specific penalty. Hence, there is no complex crime of slander by deed with less serious physical injuries but only less serious physical injuries if the act which was committed produced the less serious physical injuries with the manifest intent to insult or offend the offended party, or under circumstances adding ignominy to the offense.

Article 266.  Slight Physical Injuries and Maltreatment

Acts punished

1.   Physical injuries incapacitated the offended party for labor from one to nine days, or required medical attendance during the same period;

2.   Physical injuries which did not prevent the offended party from engaging in his habitual work or which did not require medical attendance;

3.   Ill-treatment of another by deed without causing any injury.

This involves even ill-treatment where there is no sign of injury requiring medical treatment.

Slapping the offended party is a form of ill-treatment which is a form of slight physical injuries.

But if the slapping is done to cast dishonor upon the person slapped, the crime is slander by deed.  If the slapping was done without the intention of casting dishonor, or to humiliate or embarrass the offended party out of a quarrel or anger, the crime is still ill-treatment or slight physical injuries.

Illustration:

If Hillary slaps Monica and told her “You choose your seconds . Let us meet behind the Quirino Grandstand and see who is the better and more beautiful between the two of us”, the crime is not ill-treatment, slight physical injuries or slander by deed; it is a form of challenging to a duel. The criminal intent is to challenge a person to a duel.

The crime is slight physical injury if there is no proof as to the period of the offended party’s incapacity for labor or of the required medical attendance.

 

Q: In a free-for-all brawl that ensued after some customers inside a night club became unruly, guns were fired by a group, among them A and B, that finally put the customers back to their senses. Unfortunately, one customer died. Subsequent investigation revealed that B’s gunshot had inflicted a fatal wound on the deceased and A’s gunshot never materially contributed to it. A contends his liability, if at all, is limited to slight physical injury. Do you agree?

A(Suggested): No. He should be liable for attempted homicide because he inflicted said injury with the use of a firearm that is a lethal weapon. Intent to kill is inherent in the use of a firearm (Araneta vs. CA).

A(Alternative): Yes, because he fired his gun only to pacify the unruly customers of the club and had no intent to kill. B’s gunshot that inflicted the fatal wound may not be imputed to A because conspiracy does not exist in a free-for-all brawl or tumultuous affray. A and B are liable only for their acts.

Republic Act No. 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act), in relation to murder, mutilation or injuries to a child

The last paragraph of Article VI of Republic Act No. 7610, provides:

“For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262 (2) and 263 (1) of Act No 3815, as amended of the Revised Penal Code for the crimes of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve years of age.”

The provisions of Republic Act No. 7160 modified the provisions of the Revised Penal Code in so far as the victim of the felonies referred to is under 12 years of age.  The clear intention is to punish the said crimes with a higher penalty when the victim is a child of tender age.  Incidentally, the reference to Article 249 of the Code which defines and penalizes the crime of homicide were the victim is under 12 years old is an error.  Killing a child under 12 is murder, not homicide, because the victim is under no position to defend himself as held in the case of People v. Ganohon, 196 SCRA 431.

For murder, the penalty provided by the Code, as amended by Republic Act No. 7659, is reclusion perpetua to death – higher than what Republic Act no. 7610 provides.  Accordingly, insofar as the crime is murder, Article 248 of the Code, as amended, shall govern even if the victim was under 12 years of age.  It is only in respect of the crimes of intentional mutilation in paragraph 2 of Article 262 and of serious physical injuries in paragraph 1 of Article 263 of the Code that the quoted provision of Republic Act No. 7160 may be applied for the higher penalty when the victim is under 12 years old.

Article 266-A.  Rape, When and How Committed

Elements under paragraph 1

1.   Offender is a man;

2.   Offender had carnal knowledge of a woman;

3.   Such act is accomplished under any of the following circumstances:

a.   By using force or intimidation;

b.   When the woman is deprived of reason or otherwise unconscious;

c.    By means of fraudulent machination or grave abuse of authority; or

d.   When the woman is under 12 years of age or demented.

Elements under paragraph 2

1.   Offender commits an act of sexual assault;

2.   The act of sexual assault is committed by any of the following means:

a.   By inserting his penis into another person's mouth or anal orifice; or

b.   By inserting any instrument or object into the genital or anal orifice of another person;

3.   The act of sexual assault is accomplished under any of the following circumstances:

a.   By using force or intimidation; or

b.   When the woman is deprived of reason or otherwise unconscious; or

c.    By means of fraudulent machination or grave abuse of authority; or

d.   When the woman is under 12 years of age or demented.

Republic Act No. 8353 (An Act Expanding the Definition of the Crime of Rape, Reclassifying the Same as A Crime against Persons, Amending for the Purpose the Revised Penal Code) repealed Article335 on rape and added a chapter on Rape under Title 8.

Classification of rape

(1)  Traditional concept under Article 335 – carnal knowledge with a woman against her will.  The offended party is always a woman and the offender is always a man.

(2)  Sexual assault - committed with an instrument or an object or use of the penis with penetration of mouth or anal orifice.  The offended party or the offender can either be man or woman, that is, if a woman or a man uses an instrument on anal orifice of male, she or he can be liable for rape.

Rape is committed when a man has carnal knowledge of a woman under the following circumstances:

(1)  Where intimidation or violence is employed with a view to have carnal knowledge of a woman;

(2)  Where the victim is deprived of reason or otherwise unconscious;

(3)  Where the rape was made possible because of fraudulent machination or abuse of authority; or

(4)  Where the victim is under 12 years of age, or demented, even though no intimidation nor violence is employed.

         

Sexual assault is committed under the following circumstances:

(1)  Where the penis is inserted into the anal or oral orifice; or

(2)  Where an instrument or object is inserted into the genital or oral orifice.

If the crime of rape / sexual assault is committed with the following circumstances, the following penalties are imposed:

(1)  Reclusion perpetua to death/ prision mayor to reclusion temporal --

 (a) Where rape is perpetrated by the accused with a deadly weapon; or  

(b)  Where it is committed by two or more persons.

(2)  Reclusion perpetua to death/ reclusion temporal --

(a)  Where the victim of the rape has become insane; or

(b)  Where the rape is attempted but a killing was committed by the offender on the occasion or by reason of the rape.

(3)  Death / reclusion perpetua --

Where homicide is committed by reason or on occasion of a consummated rape.

(4)  Death/reclusion temporal --

(a)  Where the victim is under 18 years of age and the offender is her ascendant, stepfather, guardian, or relative by affinity or consanguinity within the 3rd civil degree, or the common law husband of the victim’s mother; or

(b)  Where the victim was under the custody of the police or military authorities, or other law enforcement agency;

(c)  Where the rape is committed in full view of the victim’s husband, the parents, any of the children or relatives by consanguinity within the 3rd civil degree;

(d)  Where the victim is a religious, that is, a member of a legitimate religious vocation and the offender knows the victim as such before or at the time of the commission of the offense;

(e)  Where the victim is a child under 7 yrs of age;

(f)   Where the offender is a member of the AFP, its paramilitary arm, the PNP, or any law enforcement agency and the offender took advantage of his position;

(g)  Where the offender is afflicted with AIDS or other sexually transmissible diseases, and he is aware thereof when he committed the rape, and the disease was transmitted;

(h)  Where the victim has suffered permanent physical mutilation;

(i)   Where the pregnancy of the offended party is known to the rapist at the time of the rape; or

(j)   Where the rapist is aware of the victim’s mental disability, emotional disturbance or physical handicap.

Prior to the amendment of the law on rape, a complaint must be filed by the offended woman.  The persons who may file the same in behalf of the offended woman if she is a minor or if she was incapacitated to file, were as follows: a parent; in default of parents, a grandparent; in default or grandparent, the judicial guardian.

Since rape is not a private crime anymore, it can be prosecuted even if the woman does not file a complaint.

If carnal knowledge was made possible because of fraudulent machinations and grave abuse of authority, the crime is rape.  This absorbs the crime of qualified and simple seduction when no force or violence was used, but the offender abused his authority to rape the victim.

Under Article 266-C, the offended woman may pardon the offender through a subsequent valid marriage, the effect of which would be the extinction of the offender’s liability.  Similarly, the legal husband may be pardoned by forgiveness of the wife provided that the marriage is not void ab initio.  Obviously, under the new law, the husband may be liable for rape if his wife does not want to have sex with him.  It is enough that there is indication of any amount of resistance as to make it rape.

Incestuous rape was coined in Supreme Court decisions.  It refers to rape committed by an ascendant of the offended woman.  In such cases, the force and intimidation need not be of such nature as would be required in rape cases had the accused been a stranger.  Conversely, the Supreme Court expected that if the offender is not known to woman, it is necessary that there be evidence of affirmative resistance put up by the offended woman.  Mere “no, no” is not enough if the offender is a stranger, although if the rape is incestuous, this is enough.

The new rape law also requires that there be a physical overt act manifesting resistance, if the offended party was in a situation where he or she is incapable of giving valid consent, this is admissible in evidence to show that carnal knowledge was against his or her will.

When the victim is below 12 years old, mere sexual intercourse with her is already rape. Even if it was she who wanted the sexual intercourse, the crime will be rape.  This is referred to as statutory rape.

In other cases, there must be force, intimidation, or violence proven to have been exerted to bring about carnal knowledge or the woman must have been deprived of reason or otherwise unconscious.

Where the victim is over 12 years old, it must be shown that the carnal knowledge with her was obtained against her will.  It is necessary that there be evidence of some resistance put up by the offended woman.  It is not, however, necessary that the offended party should exert all her efforts to prevent the carnal intercourse.  It is enough that from her resistance, it would appear that the carnal intercourse is against her will.

Mere initial resistance, which does not indicate refusal on the part of the offended party to the sexual intercourse, will not be enough to bring about the crime of rape. In People vs. Sendong (2003), a rape victim does not have the burden of proving resistance.

In People vs. Luna (2003), it was held that it would be unrealistic to expect a uniform reaction from rape victims.

Note that it has been held that in the crime of rape, conviction does not require medico-legal finding of any penetration on the part of the woman.  A medico-legal certificate is not necessary or indispensable to convict the accused of the crime of rape.

It has also been held that although the offended woman who is the victim of the rape failed to adduce evidence regarding the damages to her by reason of the rape, the court may take judicial notice that there is such damage in crimes against chastity.  The standard amount given now is P 30,000.00, with or without evidence of any moral damage.  But there are some cases where the court awarded only P 20,000.00.

An accused may be convicted of rape on the sole testimony of the offended woman.  It does not require that testimony be corroborated before a conviction may stand.  This is particularly true if the commission of the rape is such that the narration of the offended woman would lead to no other conclusion except that the rape was committed.

Illustration:

Daughter accuses her own father of having raped her.

Allegation of several accused that the woman consented to their sexual intercourse with her is a proposition which is revolting to reason that a woman would allow more than one man to have sexual intercourse with her in the presence of the others.

It has also been ruled that rape can be committed in a standing position because complete penetration is not necessary.  The slightest penetration – contact with the labia – will consummate the rape.

On the other hand, as long as there is an intent to effect sexual cohesion, although unsuccessful, the crime becomes attempted rape.  However, if that intention is not proven, the offender can only be convicted of acts of lasciviousness.

The main distinction between the crime of attempted rape and acts of lasciviousness is the intent to lie with the offended woman.

In a case where the accused jumped upon a woman and threw her to the ground, although the accused raised her skirts, the accused did not make any effort to remove her underwear.  Instead, he removed his own underwear and placed himself on top of the woman and started performing sexual movements.  Thereafter, when he was finished, he stood up and left.  The crime committed is only acts of lasciviousness and not attempted rape.  The fact that he did not remove the underwear of the victim indicates that he does not have a real intention to effect a penetration.  It was only to satisfy a lewd design.

Is there a complex crime under Article 48 of kidnapping with rape?  Read kidnapping.

TITLE IX.  CRIMES AGAINST PERSONAL LIBERTY AND SECURITY

Crimes against liberty

1.   Kidnapping and serious illegal detention (Art. 267);

2.   Slight illegal detention (Art. 268);

3.   Unlawful arrest (Art. 269);

4.   Kidnapping and failure to return a minor (Art. 270);

5.   Inducing a minor to abandon his home (Art. 271);

6.   Slavery (Art. 272);

7.   Exploitation of child labor (Art. 273);

8.   Services rendered under compulsion in payment of debts (Art. 274).

Crimes against security

1.   Abandonment of persons in danger and abandonment of one's own victim (Art. 275);

2.   Abandoning a minor (Art. 276);

3.   Abandonment of minor by person entrusted with his custody; indifference of parents (Art. 277);

4.   Exploitation of minors (Art. 278);

5.   Trespass to dwelling (Art. 280);

6.   Other forms of trespass (Art. 281);

7.   Grave threats (Art. 282);

8.   Light threats (Art. 283);

9.   Other light threats (Art. 285);

10.  Grave coercions (Art. 286);

11.  Light coercions (Art. 287);

12.  Other similar coercions (Art. 288);

13.  Formation, maintenance and prohibition of combination of capital or labor through violence or threats (Art. 289);

14.  Discovering secrets through seizure of correspondence (Art. 290);

15.  Revealing secrets with abus of office (Art. 291);

16.  Revealing of industrial secrets (Art. 292).

Article 267.  Kidnapping and Serious Illegal Detention

Elements

1.   Offender is a private individual;

2.   He kidnaps or detains another, or in any other manner deprives the latter of his liberty;

3.   The act of detention or kidnapping must be illegal;

4.   In the commission of the offense, any of the following circumstances is present:

a.   The kidnapping lasts for more than 3 days;

b.   It is committed simulating public authority;

c.    Any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or

d.   The person kidnapped or detained is a minor, female, or a public officer.

If there is any crime under Title IX which has no corresponding provision with crimes under Title II, then, the offender may be a public officer or a private person. If there is a corresponding crime under Title II, the offender under Title IX for such similar crime is a private person.

When a public officer conspires with a private person in the commission of any of the crimes under Title IX, the crime is also one committed under this title and not under Title II.

Illustration:

If a private person commits the crime of kidnapping or serious illegal detention, even though a public officer conspires therein, the crime cannot be arbitrary detention. As far as that public officer is concerned, the crime is also illegal detention.

In the actual essence of the crime, when one says kidnapping, this connotes the idea of transporting the offended party from one place to another.  When you think illegal detention, it connotes the idea that one is restrained of his liberty without necessarily transporting him from one place to another.

The crime of kidnapping is committed if the purpose of the offender is to extort ransom either from the victim or from any other person.  But if a person is transported not for ransom, the crime can be illegal detention.  Usually, the offended party is brought to a place other than his own, to detain him there.

When one thinks of kidnapping, it is not only that of transporting one person from one place to another.  One also has to think of the criminal intent.

Forcible abduction -- If a woman is transported from one place to another by virtue of restraining her of her liberty, and that act is coupled with lewd designs.

Serious illegal detention – If a woman is transported just to restrain her of her liberty.  There is no lewd design or lewd intent.

Grave coercion – If a woman is carried away just to break her will, to compel her to agree to the demand or request by the offender.   

    

In a decided case, a suitor, who cannot get a favorable reply from a woman, invited the woman to ride with him, purportedly to take home the woman from class.  But while the woman is in his car, he drove the woman to a far place and told the woman to marry him.  On the way, the offender had repeatedly touched the private parts of the woman. It was held that the act of the offender of touching the private parts of the woman could not be considered as lewd designs because he was willing to marry the offended party.  The Supreme Court ruled that when it is a suitor who could possibly marry the woman, merely kissing the woman or touching her private parts to “compel” her to agree to the marriage, such cannot be characterized as lewd design. It is considered merely as the “passion of a lover”.  But if the man is already married, you cannot consider that as legitimate but immoral and definitely amounts to lewd design.

If a woman is carried against her will but without lewd design on the part of the offender, the crime is grave coercion.

Illustration:

Tom Cruz invited Nicole Chizmacks for a snack.  They drove along Roxas Boulevard, along the Coastal Road and to Cavite. The woman was already crying and wanted to be brought home. Tom imposed the condition that Nicole should first marry him.  Nicole found this as, simply, a mission impossible.  The crime committed in this case is grave coercion.  But if after they drove to Cavite, the suitor placed the woman in a house and would not let her out until she agrees to marry him, the crime would be serious illegal detention.

If the victim is a woman or a public officer, the detention is always serious – no matter how short the period of detention is.

 

Circumstances which make illegal detention serious

(1)        When the illegal detention lasted for three days, regardless of who the offended party is;

(2)        When the offended party is a female, even if the detention lasted only for minutes;

(3)        If the offended party is a minor or a public officer, no matter how long or how short     the detention is;

(4)        When threats to kill are made or serious physical injuries have been inflicted; and

(5)        If it shall have been committed simulating public authority.

 

Distinction between illegal detention and arbitrary detention

Illegal detention is committed by a private person who kidnaps, detains, or otherwise deprives another of his liberty.

Arbitrary detention is committed by a public officer who detains a person without legal grounds.

The penalty for kidnapping is higher than for forcible abduction.  This is wrong because if the offender knew about this, he would perform lascivious acts upon the woman and be charged only for forcible abduction instead of kidnapping or illegal detention.  He thereby benefits from this absurdity, which arose when Congress amended Article 267, increasing the penalty thereof, without amending Article 342 on forcible abduction.

Article 267 has been modified by Republic Act No. 7659 in the following respects:

(1)        Illegal detention becomes serious when it shall have lasted for more than three days, instead of five days as originally provided;

(2)        In paragraph 4, if the person kidnapped or detained was a minor and the offender was anyone of the parents, the latter has been expressly excluded from the provision.  The liability of the parent is provided for in the last paragraph of Article 271;

(3)        A paragraph was added to Article 267, which states:

When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture, or dehumanizing acts, the maximum penalty shall be imposed.

This amendment brings about a composite crime of kidnapping with homicide when it is the victim of the kidnapping who was killed, or dies as a consequence of the detention and, thus, only one penalty is imposed which is death.

Article 48, on complex crimes, does not govern in this case.  But Article 48 will govern if any other person is killed aside, because the provision specifically refers to “victim”.  Accordingly, the rulings in cases of People v. Parulan, People v. Ging Sam, and other similar cases where the accused were convicted for the complex crimes of kidnapping with murder have become academic.

In the composite crime of kidnapping with homicide, the term “homicide” is used in the generic sense and, thus, covers all forms of killing whether in the nature of murder or otherwise.  It does not matter whether the purpose of the kidnapping was to kill the victim or not, as long as the victim was killed, or died as a consequence of the kidnapping or detention.  There is no more separate crime of kidnapping and murder if the victim was kidnapped not for the purpose of killing her.

If the victim was raped, this brings about the composite crime of kidnapping with rape.  Being a composite crime, not a complex crime, the same is regarded as a single indivisible offense as in fact the law punishes such acts with only a single penalty.  In a way, the amendment depreciated the seriousness of the rape because no matter how many times the victim was raped, there will only be one kidnapping with rape.  This would not be the consequence if rape were a separate crime from kidnapping because each act of rape would be a distinct count.

However for the crime to be kidnapping with rape, the offender should not have taken the victim with lewd designs as otherwise the crime would be forcible abduction; and if the victim was raped, the complex crime of forcible abduction with rape would be committed.  If the taking was forcible abduction, and the woman was raped several times, there would only be one crime of forcible abduction with rape, and each of the other rapes would constitute distinct counts of rape. This was the ruling in the case of People v. Bacalso.

In People v. Lactao, decided on October 29, 1993, the Supreme Court stressed that the crime is serious illegal detention if the purpose was to deprive the offended party of her liberty.  And if in the course of the illegal detention, the offended party was raped, a separate crime of rape would be committed.  This is so because there is no complex crime of serious illegal detention with rape since the illegal detention was not a necessary means to the commission of rape.

In People v. Bernal, 131 SCRA 1, the appellants were held guilty of separate crimes of serious illegal detention and of multiple rapes.  With the amendment by Republic Act No. 7659 making rape a qualifying circumstance in the crime of kidnapping and serious illegal detention, the jurisprudence is superseded to the effect that the rape should be a distinct crime. Article 48 on complex crimes may not apply when serious illegal detention and rape are committed by the same offender.  The offender will be charged for the composite crime of serious illegal detention with rape as a single indivisible offense, regardless of the number of times that the victim was raped.

Also, when the victim of the kidnapping and serious illegal detention was subjected to torture and sustained physical injuries, a composite crime of kidnapping with physical injuries is committed.

Article 268.  Slight Illegal Detention

Elements

1.   Offender is a private individual;

2.   He kidnaps or detains another, or in any other manner deprives him of his liberty.

3.   The act of kidnapping or detention is illegal;

4.   The crime is committed without the attendance of any of the circumstances enumerated in Article 267.

This felony is committed if any of the five circumstances in the commission of kidnapping or detention enumerated in Article 267 is not present.

The penalty is lowered if –

(1)        The offended party is voluntarily released within three days from the start of illegal detention;

(2)        Without attaining the purpose;

(3)        Before the institution of the criminal action.

One should know the nature of the illegal detention to know whether the voluntary release of the offended party will affect the criminal liability of the offender.

When the offender voluntarily releases the offended party from detention within three days from the time the restraint of liberty began, as long as the offender has not accomplished his purposes, and the release was made before the criminal prosecution was commenced, this would serve to mitigate the criminal liability of the offender, provided that the kidnapping or illegal detention is not serious.

If the illegal detention is serious, however, even if the offender voluntarily released the offended party, and such release was within three days from the time the detention began, even if the offender has not accomplished his purpose in detaining the offended party, and even if there is no criminal prosecution yet, such voluntary release will not mitigate the criminal liability of the offender.

One who furnishes the place where the offended party is being held generally acts as an accomplice.  But the criminal liability in connection with the kidnapping and serious illegal detention, as well as the slight illegal detention, is that of the principal and not of the accomplice.

Before, in People v. Saliente, if the offended party subjected to serious illegal detention was voluntarily released by the accused in accordance with the provisions of Article 268 (3), the crime, which would have been serious illegal detention, became slight illegal detention only.

The prevailing rule now is Asistio v. Judge, which provides that voluntary release will only mitigate criminal liability if crime was slight illegal detention.  If serious, it has no effect.

In kidnapping for ransom, voluntary release will not mitigate the crime.  This is because, with the reimposition of the death penalty, this crime is penalized with the extreme penalty of death.

What is ransom? It is the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases a person from captivity.

The definition of ransom under the Lindberg law of the U.S. has been adopted in our jurisprudence in People v. Akiran, 18 SCRA 239, 242, such that when a creditor detains a debtor and releases the latter only upon the payment of the debt, such payment of the debt, which was made a condition for the release is ransom, under this article.

In the case of People v. Roluna, decided March 29, 1994, witnesses saw a person being taken away with hands tied behind his back and was not heard from for six years.  Supreme Court reversed the trial court ruling that the men accused were guilty of kidnapping with murder.  The crime is only slight illegal detention under Article 268, aggravated by a band, since none of the circumstances in Article 267 has been proved beyond a reasonable doubt.  The fact that the victim has been missing for six years raises a presumption of death, but from this disputable presumption of death, it should not be further presumed that the persons who were last seen with the absentee is responsible for his disappearance. 

Article 269.  Unlawful Arrest

Elements

1.   Offender arrests or detains another person;

2.   The purpose of the offender is to deliver him to the proper authorities;

3.   The arrest or detention is not authorized by law or there is no reasonable ground therefor.

This felony consists in making an arrest or detention without legal or reasonable ground for the purpose of delivering the offended party to the proper authorities.

The offended party may also be detained but the crime is not illegal detention because the purpose is to prosecute the person arrested.  The detention is only incidental; the primary criminal intention of the offender is to charge the offended party for a crime he did not actually commit.

Generally, this crime is committed by incriminating innocent persons by the offender’s planting evidence to justify the arrest – a complex crime results, that is, unlawful arrest through incriminatory machinations under   Article 363.

If the arrest is made without a warrant and under circumstances not allowing a warrantless arrest, the crime would be unlawful arrest.

If the person arrested is not delivered to the authorities, the private individual making the arrest incurs criminal liability for illegal detention under Article 267 or 268.

If the offender is a public officer, the crime is arbitrary detention under Article 124.

If the detention or arrest is for a legal ground, but the public officer delays delivery of the person arrested to the proper judicial authorities, then Article 125 will apply.

Note that this felony may also be committed by public officers.

Article 270.  Kidnapping and Failure to Return A Minor

Elements

1.   Offender is entrusted with the custody of a minor person (whether over or under seven years but less than 21 years of age);

2.   He deliberately fails to restore the said minor to his parents or guardians.

If any of the foregoing elements is absent, the kidnapping of the minor will then fall under Article 267.

If the accused is any of the parents, Article 267 does not apply; Articles 270 and 271 apply.

If the taking is with the consent of the parents, the crime in Article 270 is committed.

In People v. Generosa, it was held that deliberate failure to return a minor under one’s custody constitutes deprivation of liberty.  Kidnapping and failure to return a minor is necessarily included in kidnapping and serious illegal detention of a minor under Article 267(4). 

In People v. Mendoza, where a minor child was taken by the accused without the knowledge and consent of his parents, it was held that the crime is kidnapping and serious illegal detention under Article 267, not kidnapping and failure to return a minor under Article 270. 

Article 271.  Inducing A Minor to Abandon His Home

Elements

1.   A minor (whether over or under seven years of age) is living in the home of his parents or guardians or the person entrusted with his custody;

2.   Offender induces said minor to abandon such home.

Article 272.  Slavery

Elements

1.   Offender purchases, sells, kidnaps or detains a human being;

2.   The purpose of the offender is to enslave such human being.

This is committed if anyone shall purchase, kidnap, or detain a human being for the purpose of enslaving him.  The penalty is increased if the purpose of the offender is to assign the offended party to some immoral traffic.

This is distinguished from illegal detention by the purpose.  If the purpose of the kidnapping or detention is to enslave the offended party, slavery is committed.

The crime is slavery if the offender is not engaged in the business of prostitution.  If he is, the crime is white slave trade under Article 341. 

Anti-Trafficking of Persons Act of 2003 (RA 9208)

Sec. 4 enumerates the following as unlawful:

1.     recruiting, transporting, harboring, transferring, providing or receiving persons, even under the pretext of overseas employment, for purposes of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude and debt bondage;

2.     facilitating, for profit or consideration, introductions or mail-order bride schemes between Filipinas and foreigners for purposes of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude and debt bondage;

3.     offering and contracting marriages for purposes of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude and debt bondage;

4.     organizing “sex” tours and similar travel packages;

5.     hiring persons for purposes of prostitution or pornography;

6.     adopting children for purposes of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude and debt bondage;

7.     engaging in illegal trade of body organs, incl. Abducting and forcing persons to sell/donate organs/tissues.

8.     adopting/recruiting child soldiers for armed conflict

Sec. 5 also penalizes acts that promote, facilitate or otherwise assist in the commission of the acts enumerated in Sec. 4.

Under Sec. 6, trafficking is qualified when:

9.     the trafficked person is a child;

10.  the inter-country adoption is effected for purposes of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude and debt bondage;

11.  trafficking is committed by a syndicate (large-scale);

12.  offender is an ascendant, parent, sibling, guardian or otherwise exercises authority over the trafficked person or a public officer or employee;

13.  trafficking is made for purposes of engaging in prostitution with law enforcement/military agencies;

14.  offender is a member of law enforcement/military agencies;

15.  by reason of trafficking, the victim dies, becomes insane, suffers mutilation or is infected with HIV virus/ AIDS.

Article 273.  Exploitation of Child Labor

Elements

1.   Offender retains a minor in his services;

2.   It is against the will of the minor;

3.   It is under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of such minor.

Anti-Child Labor Act of 2003 (RA 9231)

RA 9231 amended RA 7160 by imposing heavier penalties on parents, guardians and employers of children 18 yrs. And below who commit any of the following acts:

1.     Making the child work beyond the maximum no. of working hours provided by said law;

2.     Misappropriating the earnings of the child and/or failure to set up a trust fund for the latter and render a semi-annual accounting of such;

3.     Using, procuring or offering the child for purposes of prostitution or pornographic activities;

4.     Using, procuring or offering the child for illicit activities, such as trafficking of drugs and other illegal substances;

5.     Making the child work in hazardous working conditions;

6.     Subjecting the child to various forms of slavery as defined in RA 9208, incl. Trafficking of children, recruitment of child soldiers, etc.

Article 274.  Services Rendered under Compulsion in Payment of Debt

Elements

1.   Offender compel a debtor to work for him, either as household servant or farm laborer;

2.   It is against the debtor’s will;

3.   The purpose is to require or enforce the payment of a debt.

Article 275.  Abandonment of Persons in Danger and Abandonment of One’s Own Victim

Acts punished

1.   Failing to render assistance to any person whom the offender finds in an uninhabited place wounded or in danger of dying when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense.

           

Elements

a.   The place is not inhabited;

b.   Accused found there a person wounded or in danger of dying;

c.    Accused can render assistance without detriment to himself;

d.   Accused fails to render assistance.

2.   Failing to help or render assistance to another whom the offender has accidentally wounded or injured;

3.   By failing to deliver a child, under seven years of age, whom the offender has found abandoned, to the authorities or to his family, or by failing to take him to a safe place.

Under the first act, the offender is liable only when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense.  Where the person is already wounded and already in danger of dying, there is an obligation to render assistance only if he is found in an uninhabited place.  If the mortally wounded, dying person is found in a place not uninhabited in legal contemplation, abandonment will not bring about this crime.  An uninhabited place is determined by possibility of person receiving assistance from another.  Even if there are many houses around, the place may still be uninhabited if possibility of receiving assistance is remote.

If what happened was an accident at first, there would be no liability pursuant to Article 12 (4) of the Civil Code – damnum absque injuria.  But if you abandon your victim, you will be liable under Article 275.  Here, the character of the place is immaterial.  As long as the victim was injured because of the accident caused by the offender, the offender would be liable for abandonment if he would not render assistance to the victim.

Article 276.  Abandoning A Minor

Elements

1.   Offender has the custody of a child;

2.   The child is under seven years of age;

3.   He abandons such child;

4.   He has no intent to kill the child when the latter is abandoned.

Circumstances qualifying the offense

1.   When the death of the minor resulted from such abandonment; or

2.   If the life of the minor was in danger because of the abandonment.

Article 277.  Abandonment of Minor by Person Entrusted with His Custody; Indifference of Parents

Acts punished

1.   Delivering a minor to a public institution or other persons without the consent of the one who entrusted such minor to the care of the offender or, in the absence of that one, without the consent of the proper authorities;

Elements

a.   Offender has charge of the rearing or education of a minor;

b.   He delivers said minor to a public institution or other persons;

c.    The one who entrusted such child to the offender has not consented to such act; or if the one who entrusted such child to the offender is absent, the proper authorities have not consented to it.

2.   Neglecting his (offender’s) children by not giving them the education which their station in life requires and financial condition permits.

Elements:

a.   Offender is a parent;

b.   He neglects his children by not giving them education;

c.    His station in life requires such education and his financial condition permits it.

Article 278.  Exploitation of Minors

Acts punished

1.   Causing any boy or girl under 16 years of age to perform any dangerous feat of balancing, physical strength or contortion, the offender being any person;

2.   Employing children under 16 years of age who are not the children or descendants of the offender in exhibitions of acrobat, gymnast, rope-walker, diver, or wild-animal tamer, the offender being an acrobat, etc., or circus manager or engaged in a similar calling;

3.   Employing any descendant under 12 years of age in dangerous exhibitions enumerated in the next preceding paragraph, the offender being engaged in any of the said callings;

4.   Delivering a child under 16 years of age gratuitously to any person following any of the callings enumerated in paragraph 2, or to any habitual vagrant or beggar, the offender being an ascendant, guardian, teacher or person entrusted in any capacity with the care of such child; and

4.     Inducing any child under 16 years of age to abandon the home of its ascendants, guardians, curators or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 or to accompany any habitual vagrant or beggar, the offender being any person.  

The offender is engaged in a kind of business that would place the life or limb of the minor in danger, even though working for him is not against the will of the minor.

Nature of the Business – This involves circuses which generally attract children so they themselves may enjoy working there unaware of the danger to their own lives and limbs.

Age – Must be below 16 years.  At this age, the minor is still growing.

If the employer is an ascendant, the crime is not committed, unless the minor is less than 12 years old.  Because if the employer is an ascendant, the law regards that he would look after the welfare and protection of the child; hence, the age is lowered to 12 years.  Below that age, the crime is committed. 

But remember Republic Act No. 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act).  It applies to minors below 18 years old, not 16 years old as in the Revised Penal Code.  As long as the employment is inimical – even though there is no physical risk – and detrimental to the child’s interest – against moral, intellectual, physical, and mental development of the minor – the establishment will be closed.

Article 278 has no application if minor is 16 years old and above.  But the exploitation will be dealt with by Republic Act No. 7610.

If the minor so employed would suffer some injuries as a result of a violation of Article 278, Article 279 provides that there would be additional criminal liability for the resulting felony.

Illustration:

The owner of a circus employed a child under 16 years of age to do a balancing act on the tightrope.  The crime committed is exploitation of minors (unless the employer is the ascendant of the minor who is not below 12 years of age).  If the child fell and suffered physical injuries while working, the employer shall be liable for said physical injuries in addition to his liability for exploitation of minors.

Article 280.  Qualified Trespass to Dwelling

Elements

1.   Offender is a private person;

2.   He enters the dwelling of another;

3.   Such entrance is against the latter’s will.

Two forms of trespass

1.   Qualified trespass to dwelling – This may be committed by any private person who shall enter the dwelling of another against the latter’s will.  The house must be inhabited at the time of the trespass although the occupants are out.  Or offender breaks in with force and violence (Article 280).

2.   Trespass to property -  Offender enters the closed premises or fenced estate of another;  such close premises or fenced estate is uninhabited;  there is a manifest prohibition against entering such closed premises or fenced estate; and offender has not secured the permission of the owner or caretaker thereof (Article 281). 

(See also Presidential Decree No. 1227 regarding unlawful entry into any military base in the Philippines.)

Dwelling – This is the place that a person inhabits.  It includes the dependencies which have interior communication with the house.  It is not necessary that it be the permanent dwelling of the person.  So, a person’s room in a hotel may be considered a dwelling.  It also includes a room where one resides as a boarder.

If the purpose in entering the dwelling is not shown, trespass is committed.  If the purpose is shown, it may be absorbed in the crime as in robbery with force upon things, the trespass yielding to the more serious crime.  But if the purpose is not shown and while inside the dwelling he was found by the occupants, one of whom was injured by him, the crime committed will be trespass to dwelling and frustrated homicide, physical injuries, or if there was no injury, unjust vexation.

If the entry is made by a way not intended for entry, that is presumed to be against the will of the occupant (example, entry through a window).  It is not necessary that there be a breaking.

 

“Against the will”  -- This means  that the entrance is, either expressly or impliedly, prohibited or the prohibition is presumed.  Fraudulent entrance may constitute trespass.  The prohibition to enter may be made at any time and not necessarily at the time of the entrance.

To prove that an entry is against the will of the occupant, it is not necessary that the entry should be preceded by an express prohibition, provided that the opposition of the occupant is clearly established by the circumstances under which the entry is made, such as the existence of enmity or strained relations between the accused and the occupant.

On violence, Cuello Calon opines that violence may be committed not only against persons but also against things.  So, breaking the door or glass of a window or door constitutes acts of violence.  Our Supreme Court followed this view in People v. Tayag.  Violence or intimidation must, however, be anterior or coetaneous with the entrance and must not be posterior.  But if the violence is employed immediately after the entrance without the consent of the owner of the house, trespass is committed.  If there is also violence or intimidation, proof of prohibition to enter is no longer necessary.

Distinction between qualified trespass to dwelling and violation of domicile

Unlike qualified trespass to dwelling, violation of domicile may be committed only by a public officer or employee and the violation may consist of any of the three acts mentioned in Article 128 – (1) entering the dwelling against the will of the owner without judicial order; (2) searching papers or other effects found in such dwelling without the previous consent of the owner thereof; and  (3) refusing to leave the dwelling when so requested by the owner thereof, after having surreptitiously entered such dwelling.

Cases when Article 280 does not apply:

(1)        When the purpose of the entrance is to prevent serious harm to himself, the occupant or third persons;

(2)        When the purpose of the offender in entering is to render some service to humanity or justice;

(3)        Anyone who shall enter cafes, taverns, inns and other public houses while they are open .

Pursuant to Section 6, Rule 113 of the Rules of Court, a person who believes that a crime has been committed against him has every right to go after the culprit and arrest him without any warrant even if in the process he enters the house of another against the latter’s will.

Article 281.  Other forms of trespass

Elements

1.   Offender enters the closed premises or the fenced estate of another;

2.   The entrance is made while either of them is uninhabited;

3.   The prohibition to enter is manifest;

4.   The trespasser has not secured the permission of the owner or the caretaker thereof.

Article 282.  Grave Threats

Acts punished:

1.   Threatening another with the infliction upon his person, honor or property or that of this family of any wrong amounting to a crime and demanding money or imposing any other condition, even though not unlawful, and the offender attained his purpose;

2.   Making such threat without the offender attaining his purpose;

3.   Threatening another with the infliction upon his person, honor or property or that of his family of any wrong amounting to a crime, the threat not being subject to a condition.

Threat is a declaration of an intention or determination to injure another by the commission upon his person, honor or property or upon that of his family of some wrong which may or may not amount to a crime:

(1)        Grave threats – when the wrong threatened to be inflicted amounts to a crime.  The case falls under Article 282.

(2)        Light threats – if it does not amount to a crime.  The case falls under Article 283.

But even if the harm intended is in the nature of a crime, if made orally and in the heat of anger and after the oral threat, the issuer of the threat did not pursue the act, the crime is only other light threats under Article 285.

To constitute grave threats, the threats must refer to a future wrong and is committed by acts or through words of such efficiency to inspire terror or fear upon another.  It is, therefore, characterized by moral pressure that produces disquietude or alarm.

The greater perversity of the offender is manifested when the threats are made demanding money or imposing any condition, whether lawful or not, and the offender shall have attained his purpose.  So the law imposes upon him the penalty next lower in degree than that prescribed for the crime threatened to be committed.  But if the purpose is not attained, the penalty lower by two degrees is imposed.  The maximum period of the penalty is imposed if the threats are made in writing or through a middleman as they manifest evident premeditation.

Distinction between threat and coercion:

The essence of coercion is violence or intimidation.  There is no condition involved; hence, there is no futurity in the harm or wrong done.

In threat, the wrong or harm done is future and conditional.  In coercion, it is direct and personal.

Distinction between threat and robbery:

(1)        As to intimidation – In robbery, the intimidation is actual and immediate; in threat, the intimidation is future and conditional.

 (2)       As to nature of intimidation – In robbery, the intimidation is personal; in threats, it may be through an intermediary.

(3)        As to subject matter – Robbery refers to personal property; threat may refer to the person, honor or property.

(4)        As to intent to gain – In robbery, there is intent to gain; in threats, intent to gain is not an essential element.

(5)        In robbery, the robber makes the danger involved in his threats directly imminent to the victim and the obtainment of his gain immediate, thereby also taking rights to his person by the opposition or resistance which the victim might offer; in threat, the danger to the victim is not instantly imminent nor the gain of the culprit immediate.

Article 283.  Light Threats

Elements

1.   Offender makes a threat to commit a wrong;

2.   The wrong does not constitute a crime;

3.   There is a demand for money or that other condition is imposed, even though not unlawful;

4.   Offender has attained his purpose or, that he has not attained his purpose.

In order to convict a person of the crime of light threats, the harm threatened must not be in the nature of crime and there is a demand for money or any other condition is imposed, even though lawful.

Question & Answer

 

Blackmailing constitutes what crime?

It is a crime of light threat under Article 283 if there is no threat to publish any libelous or slanderous matter against the offended party.  If there is such a threat to make a slanderous or libelous publication against the offended party, the crime will be one of libel, which is penalized under Article 356.  For example, a person threatens to expose the affairs of married man if the latter does not give him money.  There is intimidation done under a demand.

The law imposes the penalty of bond for good behavior only in case of grave and light threats.  If the offender can not post the bond, he will be banished by way of destierro to prevent him from carrying out his threat.

Article 285.  Other Light Threats

Acts punished

1.   Threatening another with a weapon, or by drawing such weapon in a quarrel, unless it be in lawful self-defense;

2.   Orally threatening another, in the heat of anger, with some harm constituting a crime, without persisting in the idea involved in his threat;

3.   Orally threatening to do another any harm not constituting a felony.

Article 286.  Grave Coercions

Acts punished

1.   Preventing another, by means of violence, threats or intimidation, from doing something not prohibited by law;

2.   Compelling another, by means of violence, threats or intimidation, to do something against his will, whether it be right or wrong.

Elements

1.   A person prevented another from doing something not prohibited by law, or that he compelled him to do something against his will; be it right or wrong;

2.   The prevention or compulsion be effected by violence, threats or intimidation; and

3.   The person that restrained the will and liberty of another had not the authority of law or the right to do so, or in other words, that the restraint shall not be made under authority of law or in the exercise of any lawful right.

Grave coercion arises only if the act which the offender prevented another to do is not prohibited by law or ordinance.  If the act prohibited was illegal, he is not liable for grave coercion.

If a person prohibits another to do an act because the act is a crime, even though some sort of violence or intimidation is employed, it would not give rise to grave coercion.  It may only give rise to threat or physical injuries, if some injuries are inflicted.  However, in case of grave coercion where the offended party is being compelled to do something against his will, whether it be wrong or not, the crime of grave coercion is committed if violence or intimidation is employed in order to compel him to do the act.  No person shall take the law into his own hands.

Illustration:

Compelling the debtor to deliver some of his properties to pay a creditor will amount to coercion although the creditor may have a right to collect payment from the debtor, even if the obligation is long over due.

The violence employed in grave coercion must be immediate, actual, or imminent.  In the absence of actual or imminent force or violence, coercion is not committed.  The essence of coercion is an attack on individual liberty. 

The physical violence is exerted to  (1) prevent a person from doing something he wants to do; or (2) compel him to do something he does not want to do.

Illustration:

If a man compels another to show the contents of the latter’s pockets, and takes the wallet, this is robbery and not grave coercion.  The intimidation is a means of committing robbery with violence or intimidation of persons.  Violence is inherent in the crime of robbery with violence or intimidation upon persons and in usurpation of real properties because it is the means of committing the crime.

Exception to the rule that physical violence must be exerted: where intimidation is so serious that it is not a threat anymore – it approximates violence.

In Lee v. CA, 201 SCAR 405, it was held that neither the crime of threats nor coercion is committed although the accused, a branch manager of a bank made the complainant sign a withdrawal slip for the amount needed to pay the spurious dollar check she had encashed, and also made her execute an affidavit regarding the return of the amount against her better sense and judgment.  According to the court, the complainant may have acted reluctantly and with hesitation, but still, it was voluntary.  It is different when a complainant refuses absolutely to act such an extent that she becomes a mere automaton and acts mechanically only, not of her own will.  In this situation, the complainant ceases to exits as an independent personality and the person who employs force or intimidation is, in the eyes of the law, the one acting; while the hand of the complainant sign, the will that moves it is the hand of the offender.

Article 287.  Light Coercions

Elements

1.   Offender must be a creditor;

2.   He seizes anything belonging to his debtor:

3.   The seizure of the thing be accomplished by means of violence or a display of material force producing intimidation;

4.   The purpose of the offender is to apply the same to the payment of the debt.

The first paragraph deals with light coercions wherein violence is employed by the offender who is a creditor in seizing anything belonging to his debtor for the purpose of applying the same to the payment of the debt.

In the other light coercions or unjust vexation embraced in the second paragraph, violence is absent.

In unjust vexation, any act committed without violence, but which unjustifiably annoys or vexes an innocent person amounts to light coercion.

As a punishable act, unjust vexation should include any human conduct which, although not productive of some physical or material harm would, however, unjustifiably annoy or vex an innocent person.

It is distinguished from grave coercion under the first paragraph by the absence of violence.

Illustration:

Persons stoning someone else’s house.  So long as stoning is not serious and it is intended to annoy, it is unjust vexation.  It disturbs the peace of mind.

The main purpose of the statute penalizing coercion and unjust vexation is precisely to enforce the principle that no person may take the law into his hands and that our government is one of laws, not of men.  The essence of the crimes is the attack on individual liberty.

Article 288.  Other Similar Coercions

Acts punished:

1.   Forcing or compelling, directly or indirectly, or knowingly permitting the forcing or compelling of the laborer or employee of the offender to purchase merchandise of commodities of any kind from him;

Elements:

a.   Offender is any person, agent or officer of any association or corporation;

b.   He or such firm or corporation has employed laborers or employees;

c.    He forces or compels, directly or indirectly, or knowingly permits to be forced or compelled, any of his or its laborers or employees to purchase merchandise or commodities of any kind from him or from said firm or corporation.

2.   Paying the wages due his laborer or employee by means of tokens or object other than the legal tender currency of the Philippines, unless expressly requested by such laborer or employee.

Elements:

a.     Offender pays the wages due a laborer or employee employed by him by means of tokens or object;

b.     Those tokens or objects are other than the legal tender currency of the Philippines;

c.    Such employee or laborer does not expressly request that he be paid by means of tokens or objects.

Article 289.  Formation, Maintenance, and Prohibition of Combination of Capital or Labor through Violence or Threats

Elements

1.   Offender employs violence or threats, in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work;

2.   The purpose is to organize, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employers.

Article 290. Discovering Secrets through Seizure of Correspondence

Elements

1.   Offender is a private individual or even a public officer not in the exercise of his official function;

2.   He seizes the papers or letters of another;

3.   The purpose is to discover the secrets of such another person;

4.   Offender is informed of the contents of the papers or letters seized.

This is a crime against the security of one’s papers and effects.  The purpose must be to discover its effects.  The act violates the privacy of communication. 

According to Ortega, it is not necessary that the offender should actually discover the contents of the letter.  Reyes, citing People v. Singh, CA, 40 OG, Suppl. 5, 35, believes otherwise.

The last paragraph of Article 290 expressly makes the provision of the first and second paragraph thereof inapplicable to parents, guardians, or persons entrusted with the custody of minors placed under their care or custody, and to the spouses with respect to the papers or letters of either of them.  The teachers or other persons entrusted with the care and education of minors are included in the exceptions.

In a case decided by the Supreme Court, a spouse who rummaged and found love letters of husband to mistress does not commit this crime, but the letters are inadmissible in evidence because of unreasonable search and seizure.  The ruling held that the wife should have applied for a search warrant.

Distinction from estafa, damage to property, and unjust vexation:

If the act had been executed with intent of gain, it would be estafa;

If, on the other hand, the purpose was not to defraud, but only to cause damage to another’s, it would merit the qualification of damage to property;

If the intention was merely to cause vexation preventing another to do something which the law does not prohibit or compel him to execute what he does not want, the act should be considered as unjust vexation.

Revelation of secrets discovered not an element of the crime but only increases the penalty.

Article 291.  Revealing Secrets with Abuse of Office

Elements

1.   Offender is a manager, employee or servant;

2.   He learns the secrets of his principal or master in such capacity;

3.   He reveals such secrets.

An employee, manager, or servant who came to know of the secret of his master or principal in such capacity and reveals the same shall also be liable regardless of whether or not the principal or master suffered damages.

The essence of this crime is that the offender learned of the secret in the course of his employment.  He is enjoying a confidential relation with the employer or master so he should respect the privacy of matters personal to the latter.

If the matter pertains to the business of the employer or master, damage is necessary and the agent, employee or servant shall always be liable.  Reason: no one has a right to the personal privacy of another.

Article 292.  Revelation of Industrial Secrets

Elements

1.   Offender is a person in charge, employee or workman of a manufacturing or industrial establishment;

2.   The manufacturing or industrial establishment has a secret of the industry which the offender has learned;

3.   Offender reveals such secrets;

4.   Prejudice is caused to the owner.

A business secret must not be known to other business entities or persons.  It is a matter to be discovered, known and used by and must belong to one person or entity exclusively.  One who merely copies their machines from those already existing and functioning cannot claim to have a business secret, much less, a discovery within the contemplation of Article 292.

TITLE X.  CRIMES AGAINST PROPERTY

Crimes against property

1.   Robbery with violence against or intimidation of persons (Art. 294);

2.   Attempted and frustrated robbery committed under certain circumstances (Art. 297);

3.   Execution of deeds by means of violence or intimidation (Art. 298);

4.   Robbery in an inhabited house or public building or edifice devoted to worship (Art. 299);

5.   Robbery in an inhabited place or in a private building (Art. 302);

6.   Possession of picklocks or similar tools (Art. 304);

7.   Brigandage (Art. 306);

8.   Aiding and abetting a band of brigands (Art. 307);

9.   Theft (Art. 308);

10.  Qualified theft (Art. 310);

11.  Theft of the property of the National Library and National Museum (Art. 311);

12.  Occupation of real property or usurpation of real rights in property (Art. 312);

13.  Altering boundaries or landmarks (Art. 313);

14.  Fraudulent insolvency (Art. 314);

15.  Swindling (Art. 315);

16.  Other forms of swindling (Art. 316);

17.  Swindling a minor (Art. 317);

18.  Other deceits (Art. 318);

19.  Removal, sale or pledge of mortgaged property (Art. 319);

20.  Destructive arson (Art. 320);

21.  Other forms of arson (Art. 321);

22.  Arson of property of small value (Art. 323);

23.  Crimes involving destruction (Art. 324);

24.  Burning one’s own property as means to commit arson (Art. 325);

25.  Setting fire to property exclusively owned by the offender (Art. 326);

26.  Malicious mischief (Art. 327);

27.  Special case of malicious mischief (Art. 328);

28.  Damage and obstruction to means of communication (Art. 330);

29.  Destroying or damaging statues, public monuments or paintings (Art. 331).

Article 293.  Who Are Guilty of Robbery

Robbery – This is the taking or personal property belonging to another, with intent to gain, by means of violence against, or intimidation of any person, or using force upon anything.

Elements of robbery in general

1.   There is personal property belonging to another;

2.   There is unlawful taking of that property;

3.   The taking must be with intent to gain; and

4.   There is violence against or intimidation of any person, or force upon anything.

Article 294.  Robbery with Violence against or Intimidation of Persons

Acts punished

1.   When by reason or on occasion of the robbery (taking of personal property belonging to another with intent to gain), the crime of homicide is committed;

2.   When the robbery is accompanied by rape or intentional mutilation or arson;

3.   When by reason of on occasion of such robbery, any of the physical injuries resulting in insanity, imbecility, impotency or blindness is inflicted;

4.   When by reason or on occasion of robbery, any of the physical injuries resulting in the loss of the use of speech or the power to hear or to smell, or the loss of an eye, a hand, a foot, an arm, or a leg or the loss of the use of any such member or incapacity for the work in which the injured person is theretofore habitually engaged is inflicted;

5.   If the violence or intimidation employed in the commission of the robbery is carried to a degree unnecessary for the commission of the crime;

6.   When in the course of its execution, the offender shall have inflicted upon any person not responsible for the commission of the robbery any of the physical injuries in consequence of which the person injured becomes deformed or loses any other member of his body or loses the sue thereof or becomes ill or incapacitated for the performance of the work in which he is habitually engaged for more than 90 days or the person injured becomes ill or incapacitated for labor for more than 30 days;

7.   If the violence employed by the offender does not cause any of the serious physical injuries defined in Article 263, or if the offender employs intimidation only.

Violence or intimidation upon persons may result in death or mutilation or rape or serious physical injuries.

If death results or even accompanies a robbery, the crime will be robbery with homicide provided that the robbery is consummated.

This is a crime against property, and therefore, you contend not with the killing but with the robbery.

As long as there is only one (1) robbery, regardless of the persons killed, the crime will only be one (1) count of robbery with homicide.  The fact that there are multiple killings committed in the course of the robbery will be considered only as aggravating so as to call for the imposition of the maximum penalty prescribed by law. 

If, on the occasion or by reason of the robbery, somebody is killed, and there are also physical injuries inflicted by reason or on the occasion of the robbery, don’t think that those who sustained physical injuries may separately prosecute the offender for physical injuries.  Those physical injuries are only considered aggravating circumstances in the crime of robbery with homicide.

This is not a complex crime as understood under Article 48, but a single indivisible crime.  This is a special complex crime because the specific penalty is provided in the law.

In Napolis v. CA, it was held that when violence or intimidation and force upon things are both present in the robbery, the crime is complex under Article 48.

In robbery with violence of intimidation, the taking is complete when the offender has already the possession of the thing even if he has no opportunity to dispose of it.

In robbery with force upon things, the things must be brought outside the building for consummated robbery to be committed.

On robbery with homicide

The term “homicide” is used in the generic sense, and the complex crime therein contemplated comprehends not only robbery with homicide in its restricted sense, but also with robbery with murder.  So, any kind of killing by reason of or on the occasion of a robbery will bring about the crime of robbery with homicide even if the person killed is less than three days old, or even if the person killed is the mother or father of the killer, or even if on such robbery the person killed was done by treachery or any of the qualifying circumstances.  In short, there is no crime of robbery with parricide, robbery with murder, robbery with infanticide – any and all forms of killing is referred to as homicide.

Illustration:

The robbers enter the house.   In entering through the window, one of the robbers stepped on a child less than three days old.  The crime is not robbery with infanticide because there is no such crime.  The word homicide as used in defining robbery with homicide is used in the generic sense.  It refers to any kind of death.

Although it is a crime against property and treachery is an aggravating circumstance that applies only to crimes against persons, if the killing in a robbery is committed with treachery, the treachery will be considered a generic aggravating circumstance because of the homicide.

When two or more persons are killed during the robbery, such should be appreciated as an aggravating circumstance.

As long as there is only one robbery, regardless of the persons killed, you only have one crime of robbery with homicide.  Note, however, that “one robbery” does not mean there is only one taking.

Illustration:

Robbers decided to commit robbery in a house, which turned out to be a boarding house.  Thus, there were different boarders who were offended parties in the robbery.  There is only one count of robbery.  If there were killings done to different boarders during the robbery being committed in a boarder’s quarter, do not consider that as separate counts of robbery with homicide because when robbers decide to commit robbery in a certain house, they are only impelled by one criminal intent to rob and there will only be one case of robbery.  If there were homicide or death committed, that would only be part of a single robbery.  That there were several killings done would only aggravate the commission of the crime of robbery with homicide.

In People v. Quiñones, 183 SCRA 747, it was held that there is no crime of robbery with multiple homicides.  The charge should be for robbery with homicide only because the number of persons killed is immaterial and does not increase the penalty prescribed in Article 294.  All the killings are merged in the composite integrated whole that is robbery with homicide so long as the killings were by reason or on occasion of the robbery.

In another case, a band of robbers entered a compound, which is actually a sugar mill.  Within the compound, there were quarters of the laborers.  They robbed each of the quarters.  The Supreme Court held that there was only one count of robbery because when they decided and determined to rob the compound, they were only impelled by one criminal intent to rob. 

With more reason, therefore, if in a robbery, the offender took away property belonging to different owners, as long as the taking was done at one time, and in one place, impelled by the same criminal intent to gain, there would only be one count of robbery.

In robbery with homicide as a single indivisible offense, it is immaterial who gets killed.  Even though the killing may have resulted from negligence, you will still designate the crime as robbery with homicide.

Illustration:

On the occasion of a robbery, one of the offenders placed his firearm on the table.  While they were ransacking the place, one of the robbers bumped the table.  As a result, the firearm fell on the floor and discharged.  One of the robbers was the one killed.  Even though the placing of the firearm on the table where there is no safety precaution taken may be considered as one of negligence or imprudence, you do not separate the homicide as one of the product of criminal negligence.  It will still be robbery with homicide, whether the person killed is connected with the robbery or not.  He need not also be in the place of the robbery.

In one case, in the course of the struggle in a house where the robbery was being committed, the owner of the place tried to wrest the arm of the robber.  A person several meters away was the one who got killed.  The crime was held to be robbery with homicide.

Note that the person killed need not be one who is identified with the owner of the place where the robbery is committed or one who is a stranger to the robbers.  It is enough that the homicide was committed by reason of the robbery or on the occasion thereof.

Illustration:

There are two robbers who broke into a house and carried away some valuables.  After they left such house these two robbers decided to cut or divide the loot already so that they can go of them.  So while they are dividing the loot the other robber noticed that the one doing the division is trying to cheat him and so he immediately boxed him.  Now this robber who was boxed then pulled out his gun and fired at the other one killing the latter.  Would that bring about the crime of robbery with homicide?  Yes.  Even if the robbery was already consummated, the killing was still by reason of the robbery because they quarreled in dividing the loot that is the subject of the robbery.

In People v. Domingo, 184 SCRA 409, on the occasion of the robbery, the storeowner, a septuagenarian, suffered a stroke due to the extreme fear which directly caused his death when the robbers pointed their guns at him. It was held that the crime committed was robbery with homicide.  It is immaterial that death supervened as a mere accident as long as the homicide was produced by reason or on the occasion of the robbery, because it is only the result which matters, without reference to the circumstances or causes or persons intervening in the commission of the crime which must be considered. 

Remember also that intent to rob must be proved.  But there must be an allegation as to the robbery not only as to the intention to rob.

If the motive is to kill and the taking is committed thereafter, the crimes committed are homicide and theft.  If the primordial intent of the offender is to kill and not to rob but after the killing of the victims a robbery was committed, then there are will be two separate crimes.

Illustration:

If a person had an enemy and killed him and after killing him, saw that he had a beautiful ring and took this, the crime would be not robbery with homicide because the primary criminal intent is to kill.  So, there will be two crimes:  one for the killing and one for the taking of the property after the victim was killed.  Now this would bring about the crime of theft and it could not be robbery anymore because the person is already dead.

For robbery with homicide to exist, homicide must be committed by reason or on the occasion of the robbery, that is, the homicide must be committed “in the course or because of the robbery.”  Robbery and homicide are separate offenses when the homicide is not committed “on the occasion” or “by reason” of the robbery.

Where the victims were killed, not for the purpose of committing robbery, and the idea of taking the money and other personal property of the victims was conceived by the culprits only after the killing, it was held in People v. Domingo, 184 SCRA 409, that the culprits committed two separate crimes of homicide or murder (qualified by abuse of superior strength) and theft.

The victims were killed first then their money was taken the money from their dead bodies.  This is robbery with homicide.  It is important here that the intent to commit robbery must precede the taking of human life in robbery with homicide.  The offender must have the intent to take personal property before the killing.

It must be conclusively shown that the homicide was committed for the purpose of robbing the victim. In People v. Hernandez, appellants had not thought of robbery prior to the killing.  The thought of taking the victim’s wristwatch was conceived only after the killing and throwing of the victim in the canal.  Appellants were convicted of two separate crimes of homicide and theft as there is absent direct relation and intimate connection between the robbery and the killing. 

         

On robbery with rape

This is another form of violence or intimidation upon person.  The rape accompanies the robbery.  In this case where rape and not homicide is committed, there is only a crime of robbery with rape if both the robbery and the rape are consummated.  If during the robbery, attempted rape were committed, the crimes would be separate, that is, one for robbery and one for the attempted rape.

The rape committed on the occasion of the robbery is not considered a private crime because the crime is robbery, which is a crime against property.  So, even though the robber may have married the woman raped, the crime remains robbery with rape.  The rape is not erased.  This is because the crime is against property which is a single indivisible offense.

If the woman, who was raped on the occasion of the robbery, pardoned the rapist who is one of the robbers, that would not erase the crime of rape.  The offender would still be prosecuted for the crime of robbery with rape, as long as the rape is consummated.

If the rape is attempted, since it will be a separate charge and the offended woman pardoned the offender, that would bring about a bar to the prosecution of the attempted rape.  If the offender married the offended woman, that would extinguish the criminal liability because the rape is the subject of a separate prosecution.

The intention must be to commit robbery and even if the rape is committed before the robbery, robbery with rape is committed.  But if the accused tried to rape the offended party and because of resistance, he failed to consummate the act, and then he snatched the vanity case from her hands when she ran away, two crimes are committed:  attempted rape and theft.

There is no complex crime under Article 48 because a single act is not committed and attempted rape is not a means necessary to commit theft and vice-versa.

The Revised Penal Code does not differentiate whether rape was committed before, during or after the robbery.  It is enough that the robbery accompanied the rape.  Robbery must not be a mere accident or afterthought.

In People v. Flores, 195 SCRA 295, although the offenders plan was to get the victim’s money, rape her and kill her, but in the actual execution of the crime, the thoughts of depriving the victim of her valuables was relegated to the background and the offender’s prurient desires surfaced. They persisted in satisfying their lust.  They would have forgotten about their intent to rob if not for the accidental touching of the victim’s ring and wristwatch.  The taking of the victim’s valuables turned out to be an afterthought.  It was held that two distinct crimes were committed: rape with homicide and theft.  

In People v. Dinola, 183 SCRA 493, it was held that if the original criminal design of the accused was to commit rape and after committing the rape, the accused committed robbery because the opportunity presented itself, two distinct crimes – rape and robbery were committed – not robbery with rape.  In the latter, the criminal intent to gain must precede the intent to rape. 

On robbery with physical injuries

To be considered as such, the physical injuries must always be serious.  If the physical injuries are only less serious or slight, they are absorbed in the robbery.  The crime becomes merely robbery.  But if the less serious physical injuries were committed after the robbery was already consummated, there would be a separate charge for the less serious physical injuries.  It will only be absorbed in the robbery if it was inflicted in the course of the execution of the robbery.  The same is true in the case of slight physical injuries.

Illustration:

After the robbery had been committed and the robbers were already fleeing from the house where the robbery was committed, the owner of the house chased them and the robbers fought back.  If only less serious physical injuries were inflicted, there will be separate crimes:  one for robbery and one for less serious physical injuries.

But if after the robbery was committed and the robbers were already fleeing from the house where the robbery was committed, the owner or members of the family of the owner chased them, and they fought back and somebody was killed, the crime would still be robbery with homicide.  But if serious physical injuries were inflicted and the serious physical injuries rendered the victim impotent or insane or the victim lost the use of any of his senses or lost a part of his body, the crime would still be robbery with serious physical injuries.  The physical injuries (serious) should not be separated regardless of whether they retorted in the course of the commission of the robbery or even after the robbery was consummated.

In Article 299, it is only when the physical injuries resulted in the deformity or incapacitated the offended party from labor for more than 30 days that the law requires such physical injuries to have been inflicted in the course of the execution of the robbery, and only upon persons who are not responsible in the commission of the robbery. 

But if the physical injuries inflicted are those falling under subdivision 1 and 2 of Article 263, even though the physical injuries were inflicted upon one of the robbers themselves, and even though it had been inflicted after the robbery was already consummated, the crime will still be robbery with serious physical injuries.  There will only be one count of accusation.

Illustration:

After the robbers fled from the place where the robbery was committed, they decided to divide the spoils and in the course of the division of the spoils or the loot, they quarreled.  They shot it out and one of the robbers was killed.  The crime is still robbery with homicide even though one of the robbers was the one killed by one of them.  If they quarreled and serious physical injuries rendered one of the robbers impotent, blind in both eyes, or got insane, or he lost the use of any of his senses, lost the use of any part of his body, the crime will still be robbery with serious physical injuries.

If the robbers quarreled over the loot and one of the robbers hacked the other robber causing a deformity in his face, the crime will only be robbery and a separate charge for the serious physical injuries because when it is a deformity that is caused, the law requires that the deformity must have been inflicted upon one who is not a participant in the robbery.  Moreover, the physical injuries which gave rise to the deformity or which incapacitated the offended party from labor for more than 30 days, must have been inflicted in the course of the execution of the robbery or while the robbery was taking place.

If it was inflicted when the thieves/robbers are already dividing the spoils, it cannot be considered as inflicted in the course of execution of the robbery and hence, it will not give rise to the crime of robbery with serious physical injuries.  You only have one count of robbery and another count for the serious physical injuries inflicted.

If, during or on the occasion or by reason of the robbery, a killing, rape or serious physical injuries took place, there will only be one crime of robbery with homicide because all of these – killing, rape, serious physical injuries -- are contemplated by law as the violence or intimidation which characterizes the taking as on of robbery.  You charge the offenders of robbery with homicide.  The rape or physical injuries will only be appreciated as aggravating circumstance and is not the subject of a separate prosecution.  They will only call for the imposition of the penalty in the maximum period.

If on the occasion of the robbery with homicide, robbery with force upon things was also committed, you will not have only one robbery but you will have a complex crime of robbery with homicide and robbery with force upon things (see  Napolis v. CA).  This is because robbery with violence or intimidation upon persons is a separate crime from robbery with force upon things.

Robbery with homicide, robbery with intentional mutilation and robbery with rape are not qualified by band or uninhabited place.  These aggravating circumstances only qualify robbery with physical injuries under subdivision 2, 3, and 4 of Article 299.

When it is robbery with homicide, the band or uninhabited place is only a generic aggravating circumstance.  It will not qualify the crime to a higher degree of penalty.

In People v. Salvilla, it was held that if in a robbery with serious physical injuries, the offenders herded the women and children into an office and detained them to compel the offended party to come out with the money, the crime of serious illegal detention was a necessary means to facilitate the robbery; thus, the complex crimes of robbery with serious physical injuries and serious illegal detention. 

But if the victims were detained because of the timely arrival of the police, such that the offenders had no choice but to detain the victims as hostages in exchange for their safe passage, the detention is absorbed by the crime of robbery and is not a separate crime. This was the ruling in People v. Astor.

On robbery with arson

Another innovation of Republic Act No. 7659 is the composite crime of robbery with arson if arson is committed by reason of or on occasion of the robbery.  The composite crime would only be committed if the primordial intent of the offender is to commit robber and there is no killing, rape, or intentional mutilation committed by the offender during the robbery.  Otherwise, the crime would be robbery with homicide, or robbery with rape, or robbery with intentional mutilation, in that order, and the arson would only be an aggravating circumstance.  It is essential that robbery precedes the arson, as in the case of rape and intentional mutilation, because the amendment included arson among the rape and intentional mutilation which have accompanied the robbery.

Moreover, it should be noted that arson has been made a component only of robbery with violence against or intimidation of persons in said Article 294, but not of robbery by the use of force upon things in Articles 299 and 302.

So, if the robbery was by the use of force upon things and therewith arson was committed, two distinct crimes are committed.

Article 295.  Robbery with Physical Injuries, Committed in An Uninhabited Place and by A Band

Robbery with violence against or intimidation of person qualified is qualified if it is committed

1.   In an uninhabited place;

2.   By a band;

3.   By attacking a moving train, street car, motor vehicle, or airship;

4.   By entering the passengers’ compartments in a train, or in any manner taking the passengers thereof by surprise in the respective conveyances; or

5.   On a street, road, highway or alley, and the intimidation is made with the use of firearms, the offender shall be punished by the maximum periods of the proper penalties prescribed in Article 294.

Article 296 defines a robbery by a band as follows:  when at least four armed malefactors take part in the commission of a robbery.

Requisites for liability for the acts of the other members of the band

1.   He was a member of the band;

2.   He was present at the commission of a robbery by that band;

3.   The other members of the band committed an assault;

4.   He did not attempt to prevent the assault.

Article 298.  Execution of Deeds by Means of Violence or intimidation

Elements

1.   Offender has intent to defraud another;

2.   Offender compels him to sign, execute, or deliver any public instrument or document.

3.   The compulsion is by means of violence or intimidation.

Article 299.  Robbery in An Inhabited House or Public Building or Edifice Devoted to Worship

Elements under subdivision (a)

1.   Offender entered an inhabited house, public building

2.   The entrance was effected by any of the following means:

a.   Through an opening not intended for entrance or egress;

b.   By breaking any wall, roof or floor, or breaking any door or window;

c.    By using false keys, picklocks or similar tools; or

d.   By using any fictitious name or pretending the exercise of public authority.

3.   Once inside the building, offender took personal property belonging to another with intent to gain.

Elements under subdivision (b):

1.   Offender is inside a dwelling house, public building, or edifice devoted to religious worship, regardless of the circumstances under which he entered it;

2.   Offender takes personal property belonging to another, with intent to gain, under any of the following circumstances:

a.   By the breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle; or

b.   By taking such furniture or objects away to be broken or forced open outside the place of the robbery.

"Force upon things" has a technical meaning in law.   Not any kind of force upon things will characterize the taking as one of robbery.  The force upon things contemplated requires some element of trespass into the establishment where the robbery was committed.  In other words, the offender must have entered the premises where the robbery was committed.  If no entry was effected, even though force may have been employed actually in the taking of the property from within the premises, the crime will only be theft.

Two predicates that will give rise to the crime as robbery:

1.         By mere entering alone, a robbery will be committed if any personal property is taken from within;

2.         The entering will not give rise to robbery even if something is taken inside.  It is the breaking of the receptacle or closet or cabinet where the personal property is kept that will give rise to robbery, or the taking of a sealed, locked receptacle to be broken outside the premises.

If by the mere entering, that would already qualify the taking of any personal property inside as robbery, it is immaterial whether the offender stays inside the premises.  The breaking of things inside the premises will only be important to consider if the entering by itself will not characterize the crime as robbery with force upon things.

Modes of entering that would give rise to the crime of robbery with force upon things if something is taken inside the premises:  entering into an opening not intended for entrance or egress, under Article 299 (a).

Illustration:

The entry was made through a fire escape.  The fire escape was intended for egress.  The entry will not characterize the taking as one of robbery because it is an opening intended for egress, although it may not be intended for entrance.  If the entering were done through the window, even if the window was not broken, that would characterize the taking of personal property inside as robbery because the window is not an opening intended for entrance.

Illustration:

On a sari-sari store, a vehicle bumped the wall.  The wall collapsed.  There was a small opening there.  At night, a man entered through that opening without breaking the same.  The crime will already be robbery if he takes property from within because that is not an opening intended for the purpose.

Even of there is a breaking of wall, roof, floor or window, but the offender did not enter, it would not give rise to robbery with force upon things.

Breaking of the door under Article299 (b) – Originally, the interpretation was that in order that there be a breaking of the door in contemplation of law, there must be some damage to the door.

Before, if the door was not damaged but only the lock attached to the door was broken, the taking from within is only theft.  But the ruling is now abandoned because the door is considered useless without the lock.  Even if it is not the door that was broken but only the lock, the breaking of the lock renders the door useless and it is therefore tantamount to the breaking of the door.  Hence, the taking inside is considered robbery with force upon things.

If the entering does not characterize the taking inside as one of robbery with force upon things, it is the conduct inside that would give rise to the robbery if there would be a breaking of sealed, locked or closed receptacles or cabinet in order to get the personal belongings from within such receptacles, cabinet or place where it is kept.

If in the course of committing the robbery within the premises some interior doors are broken, the taking from inside the room where the door leads to will only give rise to theft. The breaking of doors contemplated in the law refers to the main door of the house and not the interior door.

But if it is the door of a cabinet that is broken and the valuable inside the cabinet was taken, the breaking of the cabinet door would characterize the taking as robbery.  Although that particular door is not included as part of the house, the cabinet keeps the contents thereof safe.

Use of picklocks or false keys refers to the entering into the premises – If the picklock or false key was used not to enter the premises because the offender had already entered but was used to unlock an interior door or even a receptacle where the valuable or personal belonging was taken, the use of false key or picklock will not give rise to the robbery with force upon things because these are considered by law as only a means to gain entrance, and not to extract personal belongings from the place where it is being kept.

The law classifies robbery with force upon things as those committed in:

(1)        an inhabited place;

(2)        public buildings;

(3)        a place devoted to religious worship.

The law also considers robbery committed not in an inhabited house or in a private building.

Note that the manner of committing the robbery with force upon things is not the same.

When the robbery is committed in a house which is inhabited, or in a public building or in a place devoted to religious worship, the use of fictitious name or pretension to possess authority in order to gain entrance will characterize the taking inside as robbery with force upon things.

Question & Answer

Certain men pretended to be from the Price Control Commission and went to a warehouse owned by a private person.  They told the guard to open the warehouse purportedly to see if the private person is hoarding essential commodities there.  The guard obliged.  They went inside and broke in .  They loaded some of the merchandise inside claiming that it is the product of hoarding and then drove away.  What crime was committed?

It is only theft because the premises where the simulation of public authority was committed is not an inhabited house, not a public building, and not a place devoted to religious worship.  Where the house is a private building or is uninhabited, even though there is simulation of public authority in committing the taking or even if he used a fictitious name, the crime is only theft.

Note that in the crime of robbery with force upon things, what should be considered is the means of entrance and means of taking the personal property from within.  If those means do not come within the definition under the Revised Penal Code, the taking will only give rise to theft.

Those means must be employed in entering.  If the offender had already entered when these means were employed, anything taken inside, without breaking of any sealed or closed receptacle, will not give rise to robbery.

Illustration:

A found B inside his (A’s) house.  He asked B what the latter was doping there.  B claimed he is an inspector from the local city government to look after the electrical installations.  At the time B was chanced upon by A, he has already entered.  So 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 enter but when he has already entered.

Article 301 defines an inhabited house, public building, or building dedicated to religious worship and their dependencies, thus:

Inhabited house – Any shelter, ship, or vessel constituting the dwelling of one or more persons, even though the inhabitants thereof shall temporarily be absent therefrom when the robbery is committed.

Public building – Includes every building owned by the government or belonging to a private person but used or rented by the government, although temporarily unoccupied by the same.

Dependencies of an inhabited house, public building, or building dedicated to religious worship – All interior courts, corrals, warehouses, granaries, barns, coachhouses, stables, or other departments, or enclosed interior entrance connected therewith and which form part of the whole.  Orchards and other lands used for cultivation or production are not included, even if closed, contiguous to the building, and having direct connection therewith.

Article 302.  Robbery in An Uninhabited Place or in A Private Building

Elements

1.   Offender entered an uninhabited place or a building which was not a dwelling house, not a public building, or not an edifice devoted to religious worship;

2.   Any of the following circumstances was present:

a.   The entrance was effected through an opening not intended for entrance or egress;

b.   A wall, roof, floor, or outside door or window was broken;

c.    The entrance was effected through the use of false keys, picklocks or other similar tools;

d.   A door, wardrobe, chest, or any sealed or closed furniture or receptacle was broken; or

e.   A closed or sealed receptacle was removed, even if the same be broken open elsewhere.

3.   Offender took therefrom personal property belonging to another with intent to gain.

Under Article 303, if the robbery under Article 299 and 302 consists in the taking of cereals, fruits, or firewood, the penalty imposable is lower.

Article 304.  Possession of Picklock or Similar Tools

Elements

1.   Offender has in his possession picklocks or similar tools;

2.   Such picklock or similar tools are especially adopted to the commission of robbery;

3.   Offender does not have lawful cause for such possession.

Article 305 defines false keys to include the following:

1.   Tools mentioned in Article 304;

2.   Genuine keys stolen from the owner;

3.   Any key other than those intended by the owner for use in the lock forcibly opened by the offender.

Brigandage – This is a crime committed by more than three armed persons who form a band of robbers for the purpose of committing robbery in the highway or kidnapping persons for the purpose of extortion or to obtain ransom, or for any other purpose to be attained by means of force and violence.

Article 306.   Who Are Brigands

Elements of brigandage

1.   There are least four armed persons;

2.   They formed a band of robbers;

3.     The purpose is any of the following:

a.   To commit robbery in the highway;

b.   To kidnap persons for the purpose of extortion or to obtain ransom; or

c.    To attain by means of force and violence any other purpose.

         

Article 307.  Aiding and Abetting A Band of Brigands

Elements

1.   There is a band of brigands;

2.   Offender knows the band to be of brigands;

3.   Offender does any of the following acts:

a.   He in any manner aids, abets or protects such band of brigands;

b.   He gives them information of the movements of the police or other peace officers of the government; or

c.    He acquires or receives the property taken by such brigands.

Distinction between brigandage under the Revised Penal Code and highway robbery/brigandage under Presidential Decree No. 532:

(1)        Brigandage as a crime under the Revised Penal Code refers to the formation of a band of robbers by more than three armed persons for the purpose of committing robbery in the highway, kidnapping for purposes of extortion or ransom, or for any other purpose to be attained by force and violence.  The mere forming of a band, which requires at least four armed persons, if for any of the criminal purposes stated in Article 306, gives rise to brigandage.

(2)        Highway robbery/brigandage under Presidential Decree No. 532 is the seizure of any person for ransom, extortion or for any other lawful purposes, or the taking away of the property of another by means of violence against or intimidation of persons or force upon things or other unlawful means committed by any person on any Philippine highway.

Brigandage under Presidential Decree No. 532 refers to the actual commission of the robbery on the highway and can be committed by one person alone.  It is this brigandage which deserves some attention because not any robbery in a highway is brigandage or highway robbery.  A distinction should be made between highway robbery/brigandage under the decree and ordinary robbery committed on a highway under the Revised Penal Code.

In People v. Puno, decided February 17, 1993, the trial court convicted the accused of highway robbery/ brigandage under Presidential Decree No. 532 and sentenced them to reclusion perpetua.  On appeal, the Supreme Court set aside the judgment and found the accused guilty of simple robbery as punished in Article 294 (5), in relation to Article 295, and sentenced them accordingly.  The Supreme Court pointed out that the purpose of brigandage “is, inter alia, indiscriminate highway robbery.  And that PD 532 punishes as highway robbery or Brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on a Philippine highway as defined therein, not acts committed against a predetermined or particular victim”.  A single act of robbery against a particular person chosen by the offender as his specific victim, even if committed on a highway, is not highway robbery or brigandage. 

In US v. Feliciano, 3 Phil. 422, it was pointed out that highway robbery or brigandage is more than ordinary robbery committed on a highway.  The purpose of brigandage is indiscriminate robbery in highways.  If the purpose is only a particular robbery, the crime is only robbery or robbery in band, if there are at least four armed participants.  

Presidential Decree No. 532 introduced amendments to Article 306 and 307 by increasing the penalties. It does not require at least four armed persons forming a band of robbers.  It does not create a presumption that the offender is a brigand when he an unlicensed firearm is used unlike the Revised Penal Code.  But the essence of brigandage under the Revised Penal Code is the same as that in the Presidential Decree, that is, crime of depredation wherein the unlawful acts are directed not only against specific, intended or preconceived victims, but against any and all prospective victims anywhere on the highway and whoever they may potentially be.

Article 308.  Who Are Liable for Theft

Persons liable

1.   Those who with intent to gain, but without violence against or intimidation of persons nor force upon things, take personal property of another without the latter’s consent;

2.   Those who having found lost property, fails to deliver the same to the local authorities or to its owner;

3.   Those who, after having maliciously damaged the property of another, remove or make use of the fruits or objects of the damage caused by them;

4.   Those who enter an enclosed estate or a field where trespass is forbidden or which belongs to another and, without the consent of its owner, hunt or fish upon the same or gather fruits, cereals or other forest or farm products.

Elements

1.   There is taking of personal property;

2.   The property taken belongs to another;

3.   The taking was done with intent to gain;

4.   The taking was done without the consent of the owner;

5.   The taking is accomplished without the use of violence against or intimidation of persons of force upon things.

Anti-Fencing Law (PD 1612)

Fencing under Presidential Decree No. 1612 is a distinct crime from theft and robbery.  If the participant who profited is being prosecuted with person who robbed, the person is prosecuted as an accessory.  If he is being prosecuted separately, the person who partook of the proceeds is liable for fencing.

In People v. Judge de Guzman, it was held that fencing is not a continuing offense.  Jurisdiction is with the court of the place where the personal property subject of the robbery or theft was possessed, bought, kept, or dealt with.  The place where the theft or robbery was committed was inconsequential.

Since Section 5 of Presidential Decree No. 1612 expressly provides that mere possession of anything of value which has been subject of theft or robbery shall be prima facie evidence of fencing, it follows that a possessor of stolen goods is presumed to have knowledge that the goods found in his possession after the fact of theft or robbery has been established.  The presumption does not offend the presumption of innocence in the fundamental law. This was the ruling in Pamintuan v. People, decided on July 11, 1994.

Burden of proof is upon fence to overcome presumption; if explanation insufficient or unsatisfactory, court will convict.  This is a malum prohibitum so intent is not material.  But if prosecution is under the Revised Penal Code, as an accessory, the criminal intent is controlling.

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 fencing even if he paid the price because of the presumption.

The Anti-Cattle Rustling law of 1974

The crime of cattle-rustling is defined and punished under Presidential Decree No. 533, as the taking by any means, method or scheme, of any large cattle, with or without intent to gain and whether committed with or without violence against or intimidation of person or force upon things, so long as the taking is without the consent of the owner/breed thereof.  The crime includes the killing or taking the meat or hide of large cattle without the consent of the owner.

Since the intent to gain is not essential, the killing or destruction of large cattle, even without taking any part thereof, is not a crime of malicious mischief but cattle-rustling.

The Presidential Decree, however, does not supersede the crime of qualified theft of large cattle under Article 310 of the Revised Penal Code, but merely modified the penalties provided for theft of large cattle and, to that extent, amended Articles 309 and 310.  Note that the overt act that gives rise to the crime of cattle-rustling is the taking or killing of large cattle.  Where the large cattle was not taken, but received by the offender from the owner/overseer thereof, the crime is not cattle-rustling; it is qualified theft of large cattle.

Where the large cattle was received by the offender who thereafter misappropriated it, the crime is qualified theft under Article 310 if only physical or material possession thereof was yielded to him.  If both material and juridical possession thereof was yielded to him who misappropriated the large cattle, the crime would be estafa under Article 315 (1b).

Presidential Decree No. 533 is not a special law in the context of Article 10 of the Revised Penal Code.  It merely modified the penalties provided for theft of large cattle under the Revised Penal Code and amended Article 309 and 310.  This is explicit from Section 10 of the Presidential Decree.  Consequently, the trial court should not have convicted the accused of frustrated murder separately from cattle-rustling, since the former should have been absorbed by cattle-rustling as killing was a result of or on the occasion of cattle-rustling.  It should only be an aggravating circumstance.  But because the information did not allege the injury, the same can no longer be appreciated; the crime should, therefore be only, simple cattle-rustling. (People v. Martinada, February 13, 1991)

Anti-Electricity Pilferage Act (RA 7832)

Under RA 7832, stiff penalties are imposed on those who engage in the following:

1.     illegal tapping of electric power lines;

2.     tampering with or damaging electric meters for purposes of stealing/wasting electricity;

3.     tampering, cutting, transporting or keeping in personal possession power transmission lines  / materials without authorization;

4.     obtaining benefits from the enumerated acts;

Article 310.  Qualified Theft

Theft is qualified if 

1.   Committed by a domestic servant;

2.   Committed with grave abuse of confidence;

3.   The property stolen is a motor vehicle, mail matter, or large cattle;

4.   The property stolen consists of coconuts taken from the premises of a plantation;

5.   The property stolen is fish taken from a fishpond or fishery; or

6.   If property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident, or civil disturbance.

Other forms of theft punished:

1.     Illegal fishing (PD 704)

2.     Timber Smuggling and Illegal Logging (PD 330)

3.     Unauthorized salvage of vessels and cargoes (PD 890)

4. Unauthorized Installations of public utility connections (PD 401)

Article 311.  Theft of the Property of the National Library or National Museum

If the property stolen is any property of the National Library or of the National Museum

Article 312.  Occupation of Real Property or Usurpation of Real Rights in Property

Acts punished:

1.   Taking possession of any real property belonging to another by means of violence against or intimidation of persons;

2.   Usurping any real rights in property belonging to another by means of violence against or intimidation of persons.

Elements

1.   Offender takes possession of any real property or usurps any real rights in property;

2.   The real property or real rights belong to another;

3.   Violence against or intimidation of persons is used by the offender in occupying real property or usurping real rights in property;

4.   There is intent to gain.

Use the degree of intimidation to determine the degree of the penalty to be applied for the usurpation.

Usurpation under Article 312 is committed in the same way as robbery with violence or intimidation of persons.  The main difference is that in robbery, personal property is involved; while in usurpation of real rights, it is real property.  (People v. Judge Alfeche, July 23, 1992)

 Usurpation of real rights and property should not be complexed using Article 48 when violence or intimidation is committed.  There is only a single crime, but a two-tiered penalty is prescribed to be determined on whether the acts of violence used is akin to that in robbery in Article 294, grave threats or grave coercion and an incremental penalty of fine based on the value of the gain obtained by the offender. 

Therefore, it is not correct to state that the threat employed in usurping real property is absorbed in the crime; otherwise, the additional penalty would be meaningless.

The complainant must be the person upon whom violence was employed.  If a tenant was occupying the property and he was threatened by the offender, but it was the owner who was not in possession of the property who was named as the offended party, the same may be quashed as it does not charge an offense.  The owner would, at most, be entitled to civil recourse only.

On carnapping and theft of motor vehicle

The taking with intent to gain of a motor vehicle belonging to another, without the latter’s consent, or by means of violence or intimidation of persons, or by using force upon things is penalized as carnapping under Republic Act No. 6539 (An Act Preventing and Penalizing Carnapping), as amended.  The overt act which is being punished under this law as carnapping is also the taking of a motor vehicle under circumstances of theft or robbery.  If the motor vehicle was not taken by the offender but was delivered by the owner or the possessor to the offender, who thereafter misappropriated the same, the crime is either qualified theft under Article 310 of the Revised Penal Code or estafa under Article 315 (b) of the Revised Penal Code.  Qualified theft of a motor vehicle is the crime if only the material or physical possession was yielded to the offender; otherwise, if juridical possession was also yielded, the crime is estafa.

On squatting

According to the Urban Development and Housing Act, the following are squatters:

·          Those who have the capacity or means to pay rent or for legitimate housing but are squatting anyway;

·          Also the persons who were awarded lots but sold or lease them out;

·          Intruders of lands reserved for socialized housing, pre-empting possession by occupying the same.

Article 313.  Altering Boundaries or Landmarks

Elements

1.   There are boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same;

2.   Offender alters said boundary marks.

Article 314.  Fraudulent Insolvency

Elements

1.   Offender is a debtor, that is, he has obligations due and payable;

2.   He absconds with his property;

3.   There is prejudice to his creditors.

Article 315.  Swindling (Estafa)

Elements in general

1.   Accused defrauded another by abuse of confidence or by means of deceit; and

This covers the three different ways of committing estafa under Article 315; thus, estafa is committed –

a.   With unfaithfulness or abuse of confidence;

b.   By means of false pretenses or fraudulents acts; or

c.    Through fraudulent means.

(The first form under subdivision 1 is known as estafa with abuse of confidence; and the second  and third forms under subdivisions 2 and 3 cover cover estafa by means of deceit.)

2.   Damage or prejudice capable of pecuniary estimation is caused to the offended party or third person.

Elements of estafa with unfaithfulness of abuse of confidence under Article 315 (1)

Under paragraph (a)

1.     Offender has an onerous obligation to deliver      something of value;

2.     He alters its substance, quantity, or quality;

3.     Damage or prejudice is caused to another.

Under paragraph (b)

1.   Money, goods, or other personal property is received by the offender is trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same;

2.   There is misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt;

3.   Such misappropriation or conversion or denial is to the prejudice of another; and

      There is a demand made by the offended party to the offender.

(The fourth element is not necessary when there is evidence of misappropriation of the goods by the defendant.  [Tubb v. People, et al., 101 Phil. 114] ).

Under Presidential Decree No. 115 (Trust Receipts Law), the failure of the entrustee to turn over the proceeds of the sale of the goods, documents, or instruments covered by a trust receipt, to the extent of the amount owing to the entruster, or as appearing in the trust receipt; or the failure to return said goods, documents, or instruments if they were not sold or disposed of in accordance with the terms of the trust receipt constitute estafa.

Under paragraph (c)

1.     The paper with the signature of the offended party is in blank;

2.     Offended party delivered it to the offender;

3.     Above the signature of the offended party, a document is written by the offender without authority to do so;

4.     The document so written creates a liability of, or causes damage to, the offended party or any third person.

Elements of estafa by means of false pretenses or fraudulent acts under Article 315 (2)

Acts punished under paragraph (a)

1.   Using fictitious name;

2.   Falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or

3.   By means of other similar deceits.

Under paragraph (b)

Altering the quality, fineness, or weight of anything pertaining to his art or business.

Under paragraph (c)

Pretending to have bribed any government employee, without prejudice to the action for calumny which the offended party may deem proper to bring against the offender.

Under paragraph (d)

1.   Offender postdated a check, or issued a check in payment of an obligation;

2.   Such postdating or issuing a check was done when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check.

Note that this only applies if –

(1)        The obligation is not pre-existing;

(2)        The check is drawn to enter into an obligation;

(Remember that it is the check that is supposed to be the sole consideration for the other party to have entered into the obligation.  For example, Rose wants to purchase a bracelet and draws a check without insufficient funds. The jeweler sells her the bracelet solely because of the consideration in the check.)

(3)        It does not cover checks where the purpose of drawing the check is to guarantee a loan as this is not an obligation contemplated in this paragraph

The check must be genuine.  If the check is falsified and is cashed with the bank or exchanged for cash, the crime is estafa thru falsification of a commercial document.

The general rule is that the accused must be able to obtain something from the offended party by means of the check he issued and delivered.  Exception:  when the check is issued not in payment of an obligation.

It must not be promissory notes, or guaranties.

Good faith is a defense.

If the checks were issued by the defendant and he received money for them, then stopped payment and did not return the money, and   he had an intention to stop payment when he issued the check, there is estafa.

Deceit is presumed if the drawer fails to deposit the amount necessary to cover the check within three days from receipt of notice of dishonor or insufficiency of funds in the bank

Anti-Bouncing Checks Law (Batas Pambansa Blg. 22)

How violated

A.        1.    A person makes or draws and issues any check;

2.   The check is made or drawn and issued to apply on account or for value;

Thus, it can apply to pre-existing obligations, too.

3.   The person who makes or draws and issued the check knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment;

4.     The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.

B.       1.     A person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check;

2.   He fails to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within 90 days from the date appearing;

3.   The check is dishonored by the drawee bank.

Distinction between estafa under Article 315 (2) (d) of the Revised Penal Code and violation of Batas Pambansa Blg. 22:

(1)        Under both Article 315 (2) (d) and Batas Pambansa Blg. 22, there is criminal liability if the check is drawn for non-pre-existing obligation.

If the check is drawn for a pre-existing obligation, there is criminal liability only under Batas Pambansa Blg. 22.

(2)        Estafa under Article 315 (2) (d) is a crime against property while Batas Pambansa Blg. 22 is a crime against public interest.  The gravamen for the former is the deceit employed, while in the latter, it is the issuance of the check.  Hence, there is no double jeopardy.

(3)        In the estafa under Article 315 (2) (d), deceit and damage are material, while in Batas Pambansa Blg. 22, they are immaterial.

(4)        In estafa under Article 315 (2) (d), knowledge by the drawer of insufficient funds is not required, while in Batas Pambansa Blg. 22, knowledge by the drawer of insufficient funds  is reqired.

 

Q: A & B agreed to meet at the latter’s house to discuss B’s financial problems. On his way, one of A’s car tires blew up. Before A left the following meeting, he asked B to lend him money so he could buy a new spare tire. B temporarily exhausted his bank deposits, leaving a zero balance. Anticipating, however, a replenishment of his account soon, B issued A a post-dated check that the latter negotiated for a new tire. When presented, the check bounced for lack of funds. The tire company filed criminal charges against A and B. What would be the criminal liability, if any, of each of the two accused?

A(Suggested): A who negotiated the unfounded check of B may only be prosecuted  for estafa if he was aware that there were insufficient funds at the time of the negotiation. Otherwise, he is not criminally liable. B who accommodated A with his check may be prosecuted under BP 22 for having issued the check, knowing that he had no sufficient funds at that time and that A will negotiate it to buy a new tire, i.e. for value. B is not liable for estafa because facts indicate he had no intent to defraud anyone in issuing the check. Dolo is absent since B issued the check only to help A.

When is there prima facie evidence of knowledge of insufficient funds?

There is a prima facie evidence of knowledge of insufficient funds when the check was presented within 90 days from the date appearing on the check and was dishonored.

Exceptions

1.         When the check was presented after 90 days from date;

2.         When the maker or drawer --

a.         Pays the holder of the check the amount due within five banking days after receiving notice that such check has not been paid by the drawee;

b.         Makes arrangements for payment in full by the drawee of such check within five banking days after notice of non-payment

The drawee must cause to be written or stamped in plain language the reason for the dishonor.

If the drawee bank received an order of stop-payment from the drawer with no reason, it must be stated that the funds are insufficient to be prosecuted here.

The unpaid or dishonored check with the stamped information re: refusal to pay is prima facie evidence of (1) the making or issuance of the check; (2) the due presentment to the drawee for payment & the dishonor thereof; and (3) the fact that the check was properly dishonored for the reason stamped on the check.

In Kim v. People, 193 SCRA 344, it was held that if an employee receives cash advance from his employer to defray his travel expenses, his failure to return unspent amount is not estafa through misappropriation or conversion because ownership of the money was transferred to employee and no fiduciary relation was created in respect to such advance.  The money is a loan.  The employee has no legal obligation to return the same money, that is, the same bills and coins received.

In Saddul Jr. v. CA, 192 SCRA 277, it was held that the act of using or disposing of another’s property as if it were one’s own, or of devoting it to a purpose or use different from that agreed upon, is a misappropriation and conversion to the prejudice of the owner.  Conversion is unauthorized assumption an exercise of the right of ownership over goods and chattels belonging to another, resulting in the alteration of their condition or exclusion of the owner’s rights. 

In Allied Bank Corporation v. Secretary Ordonez, 192 SCRA 246, it was held that under Section 13 of Presidential Decree No. 115, the failure of an entrustee to turn over the proceeds of sale of the goods covered by the Trust Receipt, or to return said goods if they are not sold, is punishable as estafa Article 315 (1) (b).

On issuance of a bouncing check

The issuance of check with insufficient funds may be held liable for estafa and Batas Pambansa Blg. 22.  Batas Pambansa Blg. 22 expressly provides that prosecution under said law is without prejudice to any liability for violation of any provision in the Revised Penal Code.  Double Jeopardy may not be invoked because a violation of Batas Pambansa Blg. 22 is a malum prohibitum and is being punished as a crime against the public interest for undermining the banking system of the country, while under the RevisedPenal Code, the crime is malum in se which requires criminal intent and damage to the payee and is a crime against property.

In estafa, the check must have been issued as a reciprocal consideration for parting of goods (kaliwaan).  There must be concomitance.  The deceit must be prior to or simultaneous with damage done, that is, seller relied on check to part with goods.  If it is issued after parting with goods as in credit accommodation only, there is no estafa.  If the check is issued for a pre-existing obligation, there is no estafa as damage had already been done.  The drawer is liable under Batas Pambansa Blg. 22.

For criminal liability to attach under Batas Pambansa Blg. 22, it is enough that the check was issued to "apply on account or for value" and upon its presentment it was dishonored by the drawee bank for insufficiency of funds, provided that the drawer had been notified of the dishonor and inspite of such notice fails to pay the holder of the check the full amount due thereon within five days from notice. 

Under Batas Pambansa Blg. 22, a drawer must be given notice of dishonor and given five banking days from notice within which to deposit or pay the amount stated in the check to negate the presumtion that drawer knew of the insufficiency.  After this period, it is conclusive that drawer knew of the insufficiency, thus there is no more defense to the prosecution under Batas Pambansa Blg. 22.

The mere issuance of any kind of check regardless of the intent of the parties, whether the check is intended to serve merely as a guarantee or as a deposit, makes the drawer liable under Batas Pambansa Blg. 22 if the check bounces.  As a matter of public policy, the issuance of a worthless check is a public nuisance and must be abated (Recuerdo vs. People, 2003).

         

In De Villa v. CA, decided April 18, 1991, it was held that under Batas Pambansa Blg. 22, there is no distinction as to the kind of check issued. As long as it is delivered within Philippine territory, the Philippine courts have jurisdiction.  Even if the check is only presented to and dishonored in a Philippine bank, Batas Pambansa Blg. 22 applies.  This is true in the case of dollar or foreign currency checks. Where the law makes no distinction, none should be made.

In People v. Nitafan, it was held that as long as instrument is a check under the negotiable instrument law, it is covered by Batas Pambansa Blg. 22.  A memorandum check is not a promissory note, it is a check which have the word “memo,” “mem”, “memorandum” written across the face of the check which signifies that if the holder upon maturity of the check presents the same to the drawer, it will be paid absolutely.  But there is no prohibition against drawer from depositing memorandum check in a bank.  Whatever be the agreement of the parties in respect of the issuance of a check is inconsequential to a violation to Batas Pambansa Blg. 22 where the check bounces.

But overdraft or credit arrangement may be allowed by banks as to their preferred clients and Batas Pambansa Blg. 22 does not apply.  If check bounces, it is because bank has been remiss in honoring agreement. 

The check must be presented for payment within a 90-day period.  If presented for payment beyond the 90 day period and the drawer’s funds are insufficient to cover it, there is no Batas Pambansa Blg. 22 violation.

Where check was issued prior to August 8, 1984, when Circular No. 12 of the Department of the Justice took effect, and the drawer relied on the then prevailing Circular No. 4 of the Ministry of Justice to the effect that checks issued as part of an arrangement/agreement of the parties to guarantee or secure fulfillment of an obligation are not covered by Batas Pambansa Blg. 22, no criminal liability should be incurred by the drawer.  Circular should not be given retroactive effect. (Lazaro v. CA, November 11, 1993, citing People v. Alberto, October 28, 1993)

Acts punished under paragraph (e)

1.   a.   Obtaining food, refreshment, or accommodation at a hotel, inn, restaurant, boarding house, lodging house, or apartment house;

b.   Without paying therefor;

c.    With intent to defraud the proprietor or manager.

2.   a.    Obtaining  credit at any of the establishments;

b.   Using false pretense;

3.   a.    Abandoning or surreptitiously removing any part of his baggage in the establishment;

b.   After obtaining credit, food, refreshment, accommodation;

c.    Without paying.

Estafa through any of the following fraudulent means under Article 315 (3)

Under paragraph (a)

1.   Offender induced the offended party to sign a document;

2.   Deceit was employed to make him sign the document;

3.   Offended party personally signed the document;

4.   Prejudice was caused.

Under paragraph (b)

Resorting to some fraudulent practice to insure success in a gambling game;

Under paragraph (c)

1.   Offender removed, concealed or destroyed;

2.   Any court record, office files, documents or any other papers;

3.   With intent to defraud another.

Article 316.  Other Forms of Swindling

Under paragraph 1 – By conveying, selling, encumbering, or mortgaging any real property, pretending to be the owner of the same

Elements

1.   There is an immovable, such as a parcel of land or a building;

2.   Offender who is not the owner represents himself as the owner thereof;

3.   Offender executes an act of ownership such as selling, leasing, encumbering or mortgaging the real property;

4.   The act is made to the prejudice to the owner or a third person.

Under paragraph 2 – by disposing of real property as free from encumbrance, although such encumbrance be not recorded

Elements

1.   The thing disposed is a real property:

2.   Offender knew that the real property was encumbered, whether the encumbrance is recorded or not;

3.   There must be express representation by offender that the real property is free from encumbrance;

4.   The act of disposing of the real property is made to the damage of another.

Under paragraph 3 – by wrongfully taking by the owner of his personal property from its lawful possessor

Elements

1.   Offender is the owner of personal property;

2.   Said personal property is in the lawful possession of another;

3.   Offender wrongfully takes it from its lawful possessor;

4.   Prejudice is thereby caused to the possessor or third person.

Under paragraph 4 – by executing any fictitious contract to the prejudice of another

Under paragraph 5 – by accepting any compensation for services not rendered or for labor not performed

Under paragraph 6 – by selling, mortgaging or encumbering real property or properties with which the offender guaranteed the fulfillment of his obligation as surety

Elements

1.  Offender is a surety in a bond given in a criminal or civil action;

2. He guaranteed the fulfillment of such obligation with his real property or properties;

3.     He sells, mortgages, or in any manner encumbers said real property;

4.     Such sale, mortgage or encumbrance is without express authority from the court, or made before the cancellation of his bond, or before being relieved from the obligation contracted by him.

Article 317.  Swindling A Minor

Elements

1.   Offender takes advantage of the inexperience or emotions or feelings of a minor;

2.     He induces such minor to assume an obligation or to give release or to execute a transfer of any property right;

3.     The consideration is some loan of money, credit or other personal property;

4.     The transaction is to the detriment of such minor.

Article 318.  Other Deceits

Acts punished

1.   Defrauding or damaging another by any other deceit not mentioned in the preceding articles;

2.     Interpreting dreams, by making forecasts, by telling fortunes, or by taking advantage of the credulity of the public in any other similar manner, for profit or gain.

Article 319.  Removal, Sale or Pledge of Mortgaged Property

Acts Punished

1.     Knowingly removing any personal property mortgaged under the Chattel Mortgage law to any province or city other than the one in which it was located at the time of execution of the mortgage, without the written consent of the mortgagee or his executors, administrators or assigns;

Elements

a.  Personal property is mortgaged under the Chattel Mortgage Law;

b.   Offender knows that such property is so mortgaged;

c.    Offender removes such mortgaged personal property to any province or city other than the one in which it was located at the time of the execution of the mortgage;

d.   The removal is permanent;

e.   There is no written consent of the mortgagee or his executors, administrators or assigns to such removal.

2.     Selling or pledging personal property already pledged, or any part thereof, under the terms of the Chattel Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds of the province where such property is located.

Elements

a. Personal property is already pledged under the terms of the Chattel Mortgage Law;

b.   Offender, who is the mortgagor of such property, sells or pledges the same or any part thereof;

c.    There is no consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds.

Arson

Kinds of Arson

1.     Arson, under Section 1 of Presidential Decree No. 1613

2.     Destructive Arson, under Article 320 of the Revised Penal Code, as amended by Republic Act No. 7659;

3.     Other cases of arson, under Section 3 of Presidential Decree No. 1613.

Article 327.  Who Are Liable for Malicious Mischief

Elements

1.     Offender deliberately caused damage to the property of another;

2.     Such act does not constitute arson or other crimes involving destruction;

3.     The act of damaging another’s property was committed merely for the sake of damaging it;

There is destruction of the property of another but there is no misappropriation.  Otherwise, it would be theft if he gathers the effects of destruction.

Article 328.  Special Case of Malicious Mischief

Acts punished

1.   Causing damage to obstruct the performance of public functions;

2.   Using any poisonous or corrosive substance;

3.   Spreading any infection or contagion among cattle;

4.   Causing damage to the property of the National Museum or National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used is common by the pubic.

Article 329.  Other Mischiefs

All other mischiefs not included in the next preceding article

Article 330. Damage and Obstruction to Means of Communication

This is committed by damaging any railway, telegraph or telephone lines. 

Article 331.  Destroying or Damaging Statues, Public Monuments, or Paintings

The penalty is lower if the thing destroyed or damaged is a public painting, rather than a public monument.

Article 332.  Persons Exempt from Criminal Liability

Crimes involved in the exemption

1.         Theft;

2.         Estafa; and

3.         Malicious mischief.

Persons exempted from criminal liability

1.         Spouse, ascendants and descendants, or relatives by affinity in the same line;

2.         Widowed spouse with respect to the property which belonged to the deceased spouse before the same passed into the possession of another 

3.         Brothers and sisters and brothers-in-law and sisters-in-law, if living together.

Only the relatives enumerated incur no liability if the crime relates to theft (not robbery), swindling, and malicious mischief.  Third parties who participate are not exempt.  The relationship between the spouses is not limited to legally married couples; the provision applies to live-in partners. 

Estafa should not be complexed with any other crime in order for exemption to operate. 

TITLE XI. CRIMES AGAINST CHASTITY

Crimes against chastity

1.   Adultery (Art. 333);

2.   Concubinage (Art. 334);

3.   Acts of lasciviousness (Art. 336);

4.   Qualified seduction (Art. 337);

5.   Simple seduction (Art. 338);

6.   Acts of lasciviousness with the consent of the offended party (Art. 339);

7.   Corruption of minors (Art. 340);

8.   White slave trade (Art. 34);

9.   Forcible abduction (Art. 342);

10.  Consented abduction (Art. 343).

The crimes of adultery, concubinage, seduction, abduction and acts of lasciviousness are the so-called private crimes.  They cannot be prosecuted except upon the complaint initiated by the offended party.  The law regards the privacy of the offended party here as more important than the disturbance to the order of society.  For the law gives the offended party the preference whether to sue or not to sue.  But the moment the offended party has initiated the criminal complaint, the public prosecutor will take over and continue with prosecution of the offender.  That is why under Article 344, if the offended party pardons the offender, that pardon will only be valid if it comes before the prosecution starts.  The moment the prosecution starts, the crime has already become public and it is beyond the offended party to pardon the offender.

Article 333.  Who Are Guilty of Adultery

Elements

1.   The woman is married;

2.   She has sexual intercourse with a man not her husband;

3.   As regards the man with whom she has sexual intercourse, he must know her to be married.

Adultery is a crime not only of the married woman but also of the man who had intercourse with a married woman knowing her to be married.  Even if the man proves later on that he does not know the woman to be married, at the beginning, he must still be included in the complaint or information.  This is so because whether he knows the woman to be married or not is a matter of defense and its up to him to ventilate that in formal investigations or a formal trial.

If after preliminary investigation, the public prosecutor is convinced that the man did not know that the woman is married, then he could simply file the case against the woman.

The acquittal of the woman does not necessarily result in the acquittal of her co-accused.

In order to constitute adultery, there must be a joint physical act.  Joint criminal intent is not necessary.  Although the criminal intent may exist in the mind of one of the parties to the physical act, there may be no such intent in the mind of the other party.  One may be guilty of the criminal intent, the other innocent, and yet the joint physical act necessary to constitute the adultery may be complete.  So, if the man had no knowledge that the woman was married, he would be innocent insofar as the crime of adultery is concerned but the woman would still be guilty; the former would have to be acquitted and the latter found guilty, although they were tried together.

A husband committing concubinage may be required to support his wife committing adultery under the rule in pari delicto.

There is no frustrated adultery because of the nature of the offense.

For adultery to exist, there must be a marriage although it be subsequently annulled.  There is no adultery, if the marriage is void from the beginning.

Adultery is an instantaneous crime which is consummated and completed at the moment of the carnal union.  Each sexual intercourse constitutes a crime of adultery.  Adultery is not a continuing crime unlike concubinage.

Illustration:

Madamme X is a married woman residing in Pasay City.  He met a man, Y, at Roxas Boulevard.  She agreed to go with to Baguio City, supposedly to come back the next day.  When they were in Bulacan, they stayed in a motel, having sexual intercourse there.  After that, they proceeded again and stopped at Dagupan City, where they went to a motel and had sexual intercourse.

There are two counts of adultery committed in this instance:  one adultery in Bulacan, and another adultery in Dagupan City.  Even if it involves the same man, each intercourse is a separate crime of adultery. 

Article 334.  Concubinage

Acts punished

1.   Keeping a mistress in the conjugal dwelling;

2.   Having sexual intercourse, under scandalous circumstances;

3.   Cohabiting with her in any other place.

Elements

1.   The man is married;

2.   He is either –

a.   Keeping a mistress in the conjugal dwelling;

b.   Having sexual intercourse under scandalous circumstances with a woman who is not his wife; or

c.    Cohabiting with a woman who is not his wife in any other place;

3.   As regards the woman, she knows that the man is married.

With respect to concubinage the same principle applies: only the offended spouse can bring the prosecution.  This is a crime committed by the married man, the husband.  Similarly, it includes the woman who had a relationship with the married man.

It has been asked why the penalty for adultery is higher than concubinage when both crimes are infidelities to the marital vows.  The reason given for this is that when the wife commits adultery, there is a probability that she will bring a stranger into the family.  If the husband commits concubinage, this probability does not arise because the mother of the child will always carry the child with her.  So even if the husband brings with him the child, it is clearly known that the child is a stranger.   Not in the case of a married woman who may bring a child to the family under the guise of a legitimate child.  This is the reason why in the former crime the penalty is higher than the latter.

Unlike adultery, concubinage is a continuing crime.

Article 335.  Rape

This has been repealed by Republic Act No. 8353 or the Anti-Rape Law of 1997.  See Article 266-A.

Article 336.  Acts of Lasciviousness

Elements

1.   Offender commits any act of lasciviousness or lewdness;

2.   It is done under any of the following circumstances:

a.   By using force or intimidation;

b.   When the offended party is deprived or reason of otherwise unconscious; or

c.    When the offended party is another person of either sex.

Note that there are two kinds of acts of lasciviousness under the Revised Penal Code:  (1) under Article 336, and (2) under Article 339.

1.         Article 336.  Acts of Lasciviousness

Under this article, the offended party may be a man or a woman.  The crime committed, when the act performed with lewd design was perpetrated under circumstances which would have brought about the crime of rape if sexual intercourse was effected, is acts of lasciviousness under this article.  This means that the offended party is either –

(1)        under 12 years of age; or

(2)        being over 12 years of age, the lascivious acts were committed on him or her through violence or intimidation,  or while the offender party was deprived of reason, or otherwise unconscious.

2.         Article 339.  Acts of Lasciviousness with the Consent of the Offended Party:

Under this article, the victim is limited only to a woman.  The circumstances under which the lascivious acts were committed must be that of qualified seduction or simple seduction, that is, the offender took advantage of his position of ascendancy over the offender woman either because he is a person in authority, a domestic, a househelp, a priest, a teacher or a guardian, or there was a deceitful promise of marriage which never would really be fulfilled.

See Article 339.

Always remember that there can be no frustration of acts of lasciviousness, rape or adultery because no matter how far the offender may have gone towards the realization of his purpose, if his participation amounts to performing all the acts of execution, the felony is necessarily produced as a consequence thereof.

Intent to rape is not a necessary element of the crime of acts of lasciviousness.  Otherwise, there would be no crime of attempted rape.

Article 337.  Qualified Seduction

Acts punished

1.   Seduction of a virgin over 12 years and under 18 years of age by certain persons, such as a person in authority, priest, teacher; and

Elements

a.   Offended party is a virgin, which is presumed if she is unmarried and of good reputation;

b.   She is over 12 and under 18 years of age;

c.    Offender has sexual intercourse with her;

d.   There is abuse of authority, confidence or relationship on the part of the offender.

2.   Seduction of a sister by her brother, or descendant by her ascendant, regardless of her age or reputation.

Person liable

1.   Those who abused their authority –

a.   Person in public authority;

b.   Guardian;

c.    Teacher;

d.   Person who, in any capacity, is entrusted with the education or custody of the woman seduced;

2.   Those who abused confidence reposed in them –

      a.   Priest;

b.   House servant;

c.    Domestic;

3.   Those who abused their relationship –

a.   Brother who seduced his sister;

b.   Ascendant who seduced his descendant.

This crime also involves sexual intercourse.  The offended woman must be over 12 but below 18 years.

The distinction between qualified seduction and simple seduction lies in the fact, among others, that the woman is a virgin in qualified seduction, while in simple seduction, it is not necessary that the woman be a virgin.  It is enough that she is of good repute.

For purposes of qualified seduction, virginity does not mean physical virginity.  It means that the offended party has not had any experience before.

Although in qualified seduction, the age of the offended woman is considered, if the offended party is a descendant or a sister of the offender – no matter how old she is or whether she is a prostitute – the crime of qualified seduction is committed.

Illustration:

If a person goes to a sauna parlor and finds there a descendant and despite that, had sexual intercourse with her, regardless of her reputation or age, the crime of qualified seduction is committed.

In the case of a teacher, it is not necessary that the offended woman be his student.  It is enough that she is enrolled in the same school.

Deceit is not necessary in qualified seduction.  Qualified seduction is committed even though no deceit intervened or even when such carnal knowledge was voluntary on the part of the virgin.  This is because in such a case, the law takes for granted the existence of the deceit as an integral element of the crime and punishes it with greater severity than it does the simple seduction, taking into account the abuse of confidence on the part of the agent.  Abuse of confidence here implies fraud.

Article 338.      Simple Seduction

Elements

1.   Offender party is over 12 and under 18 years of age;

2.   She is of good reputation, single or widow;

3.   Offender has sexual intercourse with her;

4.   It is committed by means of deceit.

This crime is committed if the offended woman is single or a widow of good reputation, over 12 and under 18 years of age, the offender has carnal knowledge of her, and the offender resorted to deceit to be able to consummate the sexual intercourse with her.

The offended woman must be under 18 but not less than 12 years old; otherwise, the crime is statutory rape.

Unlike in qualified seduction, virginity is not essential in this crime.   What is required is that the woman be unmarried and of good reputation.  Simple seduction is not synonymous with loss of virginity.  If the woman is married, the crime will be adultery.

The failure to comply with the promise of marriage constitutes the deceit mentioned in the law.

Article 339.  Acts of Lasciviousness with the Consent of the Offender Party

Elements

1.   Offender commits acts of lasciviousness or lewdness;

2.   The acts are committed upon a woman who is a virgin or single or widow of good reputation, under 18 years of age but over 12 years, or a sister or descendant, regardless of her reputation or age;

3.   Offender accomplishes the acts by abuse of authority, confidence, relationship, or deceit.

Article 340.  Corruption of Minors

This punishes any person who shall promote or facilitate the prostitution or corruption of persons under age to satisfy the lust of another.

It is not required that the offender be the guardian or custodian of the minor.

It is not necessary that the minor be prostituted or corrupted as the law merely punishes the act of promoting or facilitating the prostitution or corruption of said minor and that he acted in order to satisfy the lust of another.

Article 341.  White Slave Trade

Acts punished

1.   Engaging in the business of prostitution;

2.   Profiting by prostitution;

3.   Enlisting the services of women for the purpose of prostitution.

Article 342.  Forcible Abduction

Elements

1.   The person abducted is any woman, regardless or her age, civil status, or reputation;

2.   The abduction is against her will;

3.   The abduction is with lewd designs.

A woman is carried against her will or brought from one place to another against her will with lewd design.

If the element of lewd design is present, the carrying of the woman would qualify as abduction; otherwise, it would amount to kidnapping.  If the woman was only brought to a certain place in order to break her will and make her agree to marry the offender, the crime is only grave coercion because the criminal intent of the offender is to force his will upon the woman and not really to restrain the woman of her liberty.

If the offended woman is under 12 years old, even if she consented to the abduction, the crime is forcible abduction and not consented abduction.

Where the offended woman is below the age of consent, even though she had gone with the offender through some deceitful promises revealed upon her to go with him and they live together as husband and wife without the benefit of marriage, the ruling is that forcible abduction is committed by the mere carrying of the woman as long as that intent is already shown.  In other words, where the man cannot possibly give the woman the benefit of an honorable life, all that man promised are just machinations of a lewd design and, therefore,  the carrying of the woman is characterized  with lewd design and would bring about the crime of abduction and not kidnapping.  This is also true if the woman is deprived of reason and if the woman is mentally retardate.  Forcible abduction is committed and not consented abduction.

Lewd designs may be demonstrated by the lascivious acts performed by the offender on her.  Since this crime does not involve sexual intercourse, if the victim is subjected to this,  then a crime of rape is further committed  and a complex crime of forcible abduction with rape is committed.

The taking away of the woman may be accomplished by means of deceit at the beginning and then by means of violence and intimidation later. 

The virginity of the complaining witness is not a determining factor in forcible abduction.

In order to demonstrate the presence of the lewd design, illicit criminal relations with the person abducted need not be shown.  The intent to seduce a girl is sufficient.

If there is a separation in fact, the taking by the husband of his wife against her will constitutes grave coercion.

Distinction between forcible abduction and illegal detention:

When a woman is kidnapped with lewd or unchaste designs, the crime committed is forcible abduction. 

When the kidnapping is without lewd designs, the crime committed is illegal detention.

But where the offended party was forcibly taken to the house of the defendant to coerce her to marry him, it was held that only grave coercion was committed and not illegal detention.

Article 343.  Consented Abduction

Elements

1.   Offended party is a virgin;

2.   She is over 12 and under 18 years of age;

3.   Offender takes her away with her consent, after solicitation or cajolery;

4.   The taking away is with lewd designs.

Where several persons participated in the forcible abduction and these persons also raped the offended woman, the original ruling in the case of People v. Jose is that there would be one count of forcible 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 complexed with the forcible abduction.  This ruling is no longer the prevailing rule.  The view adopted in cases of similar nature is to the effect that where more than one person has effected the forcible abduction with rape, all the rapes are just the consummation of the lewd design which characterizes the forcible abduction and, therefore, there should only be one forcible abduction with rape.

In the crimes involving rape, abduction, seduction, and acts of lasciviousness, the marriage by the offender with the offended woman generally extinguishes criminal liability, not only of the principal but also of the accomplice and accessory.  However, the mere fact of marriage is not enough because it is already decided that if the offender marries the offended woman without any intention to perform the duties of a husband as shown by the fact that after the marriage, he already left her, the marriage would appear as having been contracted only to avoid the punishment.  Even with that marriage, the offended woman could still prosecute the offender and that marriage will not have the effect of extinguishing the criminal liability.

Pardon by the offended woman of the offender is not a manner of extinguishing criminal liability but only a bar to the prosecution of the offender.  Therefore, that pardon must come before the prosecution is commenced.  While the prosecution is already commenced or initiated, pardon by the offended woman will no longer be effective because pardon may preclude prosecution but not prevent the same.

All these private crimes – except rape – cannot be prosecuted de officio.  If any slander or written defamation is made out of any of these crimes, the complaint of the offended party is till necessary before such case for libel or oral defamation may proceed.  It will not prosper because the court cannot acquire jurisdiction over these crimes unless there is a complaint from the offended party.  The paramount decision of whether he or she wanted the crime committed on him or her to be made public is his or hers alone, because the indignity or dishonor brought about by these crimes affects more the offended party than social order.  The offended party may prefer to suffer the outrage in silence rather than to vindicate his honor in public.

In the crimes of rape, abduction and seduction, if the offended woman had given birth to the child, among the liabilities of the offender is to support the child.  This obligation to support the child may be true even if there are several offenders.  As to whether all of them will acknowledge the child, that is a different question because the obligation to support here is not founded on civil law but is the result of a criminal act or a form of punishment.

It has been held that where the woman was the victim of the said crime could not possibly conceive anymore, the trial court should not provide in its sentence that the accused, in case a child is born, should support the child.  This should only be proper when there is a probability that the offended woman could give birth to an offspring.

TITLE XII.  CRIMES AGAINST THE CIVIL STATUS OF PERSONS

Crimes against the civil status of persons

1.   Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate child (art. 347);

2.   Usurpation of civil status (Art. 348);

3.   Bigamy (Art. 349);

4.   Marriage contracted against provisions of law (Art. 350);

5.   Premature marriages (Art. 351);

6.   Performance of illegal marriage ceremony (Art. 352).

Article 347.  Simulation of Births, Substitution of One Child for Another, and Concealment of Abandonment of A Legitimate Child

Acts punished

1.   Simulation of births;

2.   Substitution of one child for another;

3.   Concealing or abandoning any legitimate child with intent to cause such child to lose its civil status.

Illustration:

People who have no child and who buy and adopt the child without going through legal adoption. 

If the child is being kidnapped and they knew that the kidnappers are not the real parents of their child, then simulation of birth is committed.  If the parents are parties to the simulation by making it appear in the birth certificate that the parents who bought the child are the real parents, the crime is not falsification on the part of the parents and the real parents but simulation of birth. 

Questions & Answers

1.     A woman who has given birth to a child abandons the child in a certain place to free herself of the obligation and duty of rearing and caring for the child.  What crime is committed by the woman?

The crime committed is abandoning a minor under Article 276.

2.     Suppose that the purpose of the woman is abandoning the child is to preserve the inheritance of her child by a former marriage, what then is the crime committed?

The crime would fall under the second paragraph of Article 347.  The purpose of the woman is to cause the child to lose its civil status so that it may not be able to share in the inheritance.

3.     Suppose a child, one day after his birth, was taken to and left in the midst of a lonely forest, and he was found by a hunter who took him home.  What crime was committed by the person who left it in the forest?

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 Phil. 349.

Article 348.  Usurpation of Civil Status

This crime is committed when a person represents himself to be another and assumes the filiation or the parental or conjugal rights of such another person. 

Thus, where a person impersonates another and assumes the latter's right as the son of wealthy parents, the former commits a violation of this article.

The term "civil status" includes one's public station, or the rights, duties, capacities and incapacities which determine a person to a given class.  It seems that the term "civil status" includes one's profession.

Article 349.  Bigamy

Elements

1.   Offender has been legally married;

2.   The marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code;

3.   He contracts a second or subsequent marriage;

4.   The second or subsequent marriage has all the essential requisites for validity.

The crime of bigamy does not fall within the category of private crimes that can be prosecuted only at the instance of the offended party.  The offense is committed not only against the first and second wife but also against the state.

Good faith is a defense in bigamy.

Failure to exercise due diligence to ascertain the whereabouts of the first wife is bigamy through reckless imprudence.

The second marriage must have all the essential requisites for validity were it not for the existence of the first marriage.

A judicial declaration of the nullity of a marriage, that is, that the marriage was void ab initio, is now required.

One convicted of bigamy may also be prosecuted for concubinage as both are distinct offenses.  The first is an offense against civil status, which may be prosecuted at the instance of the state; the second is an offense against chastity, and may be prosecuted only at the instance of the offended party.  The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense.

One who, although not yet married before, knowingly consents to be married to one who is already married is guilty of bigamy knowing that the latter’s marriage is still valid and subsisting.

Distinction between bigamy and illegal marriage:

Bigamy is a form of illegal marriage.  The offender must have a valid and subsisting marriage.  Despite the fact that the marriage is still subsisting, he contracts a subsequent marriage.

Illegal marriage includes also such other marriages which are performed without complying with the requirements of law, or such premature marriages, or such marriage which was solemnized by one who is not authorized to solemnize the same.

For bigamy to be committed, the second marriage must have all the attributes of a valid marriage.

Article 350.  Illegal Marriage

Elements

1.   Offender contracted marriage;

2.   He knew at the time that –

a.   The requirements of the law were not complied with; or

      b.         The marriage was in disregard of a legal impediment.

Marriages contracted against the provisions of laws

1.     The marriage does not constitute bigamy.

2.     The marriage is contracted knowing that the requirements of the law have not been complied with or in disregard of legal impediments.

3.     One where the consent of the other was obtained by means of violence, intimidation or fraud.

4.     If the second marriage is void because the accused knowingly contracted it without complying with legal requirements as the marriage license, although he was previously married.

5.     Marriage solemnized by a minister or priest who does not have the required authority to solemnize marriages.

Article 351.  Premature Marriage

Persons liable

1.   A widow who is married within 301 days from the date of the death of her husband, or before having delivered if she is pregnant at the time of his death;

2.   A woman who, her marriage having been annulled or dissolved, married before her delivery or before the expiration of the period of 301 days after the date of the legal separation.

The Supreme Court has already taken into account the reason why such marriage within 301 days is made criminal, that is, because of the probability that there might be a confusion regarding the paternity of the child who would be born.  If this reason does not exist because the former husband is impotent, or was shown to be sterile such that the woman has had no child with him, that belief of the woman that after all there could be no confusion even if she would marry within 301 days may be taken as evidence of good faith and that would negate criminal intent.

TITLE XIII.  CRIMES AGAINST HONOR

Crimes against honor

1.   Libel by means of writings or similar means (Art. 355);

2.   Threatening to publish and offer to prevent such publication for compensation (Art. 356);

3.   Prohibited publication of acts referred to in the course of official proceedings (Art. 357);

4.   Slander (Art. 358);

5.   Slander by deed (Art. 359);

6.   Incriminating innocent person (Art. 363);

7.   Intriguing against honor (Art. 364)

Article 353.  Definition of Libel

A libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstances tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Elements:

1.   There must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance;

2.   The imputation must be made publicly;

3.   It must be malicious;

4.   The imputation must be directed at a natural or juridical person, or one who is dead;

5.   The imputation must tend to cause the dishonor, discredit or contempt of the person defamed.

 

Q: During a seminar workshop attended by government employees from the Bureau of Customs and BIR, A, the speaker, in the course of his lecture, lamented the fact that a great majority of those serving in the said agencies were utterly dishonest and corrupt. The next morning, the whole group of employees in the two agencies who attended the seminar filed a criminal complaint against A for uttering what they claimed to be defamatory statements of the lecturer. In court, A filed a Motion to Quash the information, claiming the facts alleged do not constitute an offense. If you were the judge, how would you resolve the motion?

A(Suggested): I would grant the motion to quash on the ground that the facts alleged do not constitute an offense since there is no definite person/s dishonored. The crime of libel or slander is a crime against honor such that the person/s dishonored must be identifiable even by innuendoes: otherwise the crime against honor is not committed (Newsweek vs. IAC). Moreover, A is not making a malicious imputation but merely stating an opinion. He was, without malice, delivering a lecture during the seminar workshop. Malice being inherently absent in the utterance, the statement is not actionable as defamatory.

Distinction between malice in fact and malice in law

Malice in fact is the malice which the law presumes from every statement whose tenor is defamatory.  It does not need proof.  The mere fact that the utterance or statement is defamatory negates a legal presumption of malice.

In the crime of libel, which includes oral defamation, there is no need for the prosecution to  present evidence of malice.  It is enough that the alleged defamatory or libelous statement be presented to the court verbatim.  It is the court which will prove whether it is defamatory or not.  If the tenor of the utterance or statement is defamatory, the  legal presumption of malice arises even without proof.

Malice in fact becomes necessary only if the malice in law has been rebutted.  Otherwise, there is no need to adduce evidence of malice in fact.  So, while malice in law does not require evidence, malice in fact requires evidence.

Malice in law can be negated by evidence that, in fact, the alleged libelous or defamatory utterance was made with good motives and justifiable ends or by the fact that the utterance was privileged in character.

In law, however, the privileged character of a defamatory statement may be absolute or qualified.

When the privileged character is said to be absolute, the statement will not be actionable whether criminal or civil because that means the law does not allow prosecution on an action based thereon.

Illustration:

As regards the statements made by Congressmen while they are deliberating or discussing in Congress, when the privileged character is qualified, proof of malice in fact will be admitted to take the place of malice in law.  When the defamatory statement or utterance is qualifiedly privileged, the malice in law is negated.  The utterance or statement would not be actionable because malice in law does not exist.  Therefore, for the complainant to prosecute the accused for libel, oral defamation or slander, he has to prove that the accused was actuated with malice (malice in fact) in making the statement.

When a libel is addressed to several persons, unless they are identified in the same libel, even if there are several persons offended by the libelous utterance or statement, there will only be one count of libel.

If the offended parties in the libel were distinctly identified, even though the libel was committed at one and the same time, there will be as many libels as there are persons dishonored.

Illustration:

If a person uttered that “All the Marcoses are thieves," there will only be one libel because these particular Marcoses regarded as thieves are not specifically identified.

If the offender said,  “All the Marcoses – the father, mother and daughter are thieves.”  There will be three counts of libel because each person libeled is distinctly dishonored.

If you do not know the particular persons libeled, you cannot consider one libel as giving rise to several counts of libel.  In order that one defamatory utterance or imputation may be considered as having dishonored more than one person, those persons dishonored must be identified.  Otherwise, there will only be one count of libel.

Note that in libel, the person defamed need not be expressly identified.  It is enough that he could possibly be identified because “innuendos may also be a basis for prosecution for libel.  As a matter of fact, even a compliment which is undeserved, has been held to be libelous.

The crime is libel is the defamation is in writing or printed media.

The crime is slander or oral defamation if it is not printed.

Even if what was imputed is true, the crime of libel is committed unless one acted with good motives or justifiable end.  Poof of truth of a defamatory imputation is not even admissible in evidence, unless what was imputed pertains to an act which constitutes a crime and when the person to whom the imputation was made is a public officer and the imputation pertains to the performance of official duty.  Other than these, the imputation is not admissible.

When proof of truth is admissible

1.   When the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer;

2.   When the offended party is a government employee, even if the act or omission imputed does not constitute a crime, provided if its related to the discharged of his official duties.

Requisites of defense in defamation

1.   If it appears that the matter charged as libelous is true;

2.   It was published with good motives;

3.   It was for justifiable ends.

If a crime is a private crime, it cannot be prosecuted de officio.  A complaint from the offended party is necessary.

Article 355.  Libel by Means of Writings or Similar Means

A libel may be committed by means of –

1.   Writing;

2.   Printing;

3.   Lithography;

4.   Engraving;

5.   Radio;

6.   Photograph;

7.   Painting;

8.   Theatrical exhibition;

9.   Cinematographic exhibition; or

10.  Any similar means.

Article 356.  Threatening to Publish and Offer to Prevent Such Publication for A Compensation

Acts punished

1.   Threatening another to publish a libel concerning him, or his parents, spouse, child, or other members of his family;

2.   Offering to prevent the publication of such libel for compensation or money consideration.

Blackmail – In its metaphorical sense, blackmail may be defined as any unlawful extortion of money by threats of accusation or exposure.  Two words are expressive of the crime – hush money.  (US v. Eguia, et al., 38 Phil. 857)  Blackmail is possible in (1) light threats under Article 283; and (2) threatening to publish, or offering to prevent the publication of, a libel for compensation, under Article 356.

Article 357.  Prohibited Publication of Acts Referred to in the Course of Official Proceedings

Elements

1.   Offender is a reporter, editor or manager of a newspaper, daily or magazine;

2.   He publishes facts connected with the private life of another;

3.   Such facts are offensive to the honor, virtue and reputation of said person.

The provisions of Article 357 constitute the so-called "Gag Law."

Article 358.  Slander 

Slander is oral defamation.  There are two kinds of oral defamation:

(1)        Simple slander; and

(2)        Grave slander, when it is of a serious and insulting nature.

Article 359.  Slander by Deed

Elements

1.   Offender performs any act not included in any other crime against honor;

2.   Such act is performed in the presence of other person or persons;

3.   Such act casts dishonor, discredit or contempt upon the offended party.

Slander by deed refers to performance of an act, not use of words.

Two kinds of slander by deed

1.   Simple slander by deed; and

2.   Grave slander by deed, that is, which is of a serious nature.

Whether a certain slanderous act constitutes slander by deed of a serious nature or not, depends on the social standing of the offended party, the circumstances under which the act was committed, the occasion, etc.

Article 363.  Incriminating Innocent Persons

Elements

1.   Offender performs an act;

2.   By such an act, he incriminates or imputes to an innocent person the commission of a crime;

3.   Such act does not constitute perjury.

This crime cannot be committed through verbal incriminatory statements.  It is defined as an act and, therefore, to commit this crime, more than a mere utterance is required.

If the incriminating machination is made orally, the crime may be slander or oral defamation. 

If the incriminatory machination was made in writing and under oath, the crime may be perjury if there is a willful falsity of the statements made.

If the statement in writing is not under oath, the crime may be falsification if the crime is a material matter made in a written statement which is required by law to have been rendered.

As far as this crime is concerned, this has been interpreted to be possible only in the so-called planting of evidence.

Article 364.  Intriguing against Honor

This crime is committed by any person who shall make any intrigue which has for its principal purpose to blemish the honor or reputation of another person.

Intriguing against honor is referred to as gossiping.  The offender, without ascertaining the truth of a defamatory utterance, repeats the same and pass it on to another, to the damage of the offended party.  Who started the defamatory news is unknown.

Distinction between intriguing against honor and slander:

When the source of the defamatory utterance is unknown and the offender simply repeats or passes the same, the crime is intriguing against honor.

If the offender made the utterance, where the source of the defamatory nature of the utterance is known, and offender makes a republication thereof,  even though he repeats the libelous statement as coming from another,  as long as the source is identified,  the crime committed by that offender is slander. 

Distinction between intriguing against honor and incriminating an innocent person:

In intriguing against honor, the offender resorts to an intrigue for the purpose of blemishing the honor or reputation of another person.

In incriminating an innocent person, the offender performs an act by which he directly incriminates or imputes to an innocent person the commission of a crime.

TITLE XVI.  CRIMINAL NEGLIGENCE

Article 365.  Imprudence and Negligence

Quasi-offenses punished

1.   Committing through reckless imprudence any act which, had it been intentional, would constitute a grave or less grave felony or light felony;

2.   Committing through simple imprudence or negligence an act which would otherwise constitute a grave or a less serious felony;

3.   Causing damage to the property of another through reckless imprudence or simple imprudence or negligence;

4.   Causing through simple imprudence or negligence some wrong which, if done maliciously, would have constituted a light felony.

Distinction between reckless imprudence and negligence:

The two are distinguished only as to whether the danger that would be impending is easily perceivable or not.  If the danger that may result from the criminal negligence is clearly perceivable, the imprudence is reckless.  If it could hardly be perceived, the criminal negligence would only be simple.

There is no more issue on whether culpa is a crime in itself or only a mode of incurring criminal liability.  It is practically settled that criminal negligence is only a modality in incurring criminal liability.  This is so because under Article 3, a felony may result from dolo or culpa.

Since this is the mode of incurring criminal liability, if there is only one carelessness, even if there are several results, the accused may only be prosecuted under one count for the criminal negligence.  So there would only be one information to be filed, even if the negligence may bring about resulting injuries which are slight.

Do not separate the accusation from the slight physical injuries from the other material result of the negligence.

If the criminal negligence resulted, for example, in homicide, serious physical injuries and slight physical injuries, do not join only the homicide and serious physical injuries in one information for the slight physical injuries.  You are not complexing slight when you join it in the same information.  It is just that you are not splitting the criminal negligence because the real basis of the criminal liability is the negligence.

If you split the criminal negligence, that is where double jeopardy would arise.

RELEVANT SPECIAL LAWS:

ANTI-ILLEGAL POSSESSION OF FIREARMS, AMMUNITION OR EXPLOSIVES LAW (PD 1866/RA 8294)

- Prohibited acts under Sec. 2, 5-7:

4.     Unlawful manufacture, sale, acquisition, disposition or possession of firearms or ammunition or instruments used for the manufacture of such;

5.     Tampering with the firearms’ serial no.;

6.     Unlawful manufacture, sale, acquisition, disposition or possession of explosives;

7.     Repacking/altering the composition of lawfully manufactured explosives; and

8.     Unauthorized issuance of permit to carry firearms/explosives outside the residence;

- While illegal possession per se is punishable, it can be absorbed in or appreciated as an aggravating circumstance in the commission of an offense, depending on the circumstances surrounding the case.

ANTI-MONEY LAUNDERING ACT OF 2002, as amended (RA 9160/ RA 9194)

- Sec. 4 defines money laundering as “a crime wherein proceeds of an unlawful activity defined are transacted, thus making them appear to have originated from a legitimate source.”

- examples of “unlawful activity”, as defined by said laws:

·          Hijacking

·          Kidnapping for ransom

·          Estafa/ other forms of swindling

·          Piracy

·          Jueteng/ other forms of illegal gambling

·          Smuggling

·          Extortion

·          Violations of the 2002 Electronic Commerce Act

·          Violations of the 2000 Securities Regulation Code

- the following acts are penalized:

9.     transacting/ attempting to transact proceeds from an unlawful activity;

10.  knowingly engaging in acts to facilitate money laundering;

11.  failure to report any act of / instrument related to money laundering