REVISED
ORTEGA NOTES
Book II
Crimes and
Penalties
Title I.
Crimes against National Security and the Law of Nations
Crimes
against national security
1. Treason (Art. 114);
2. Conspiracy
and proposal to commit treason (Art. 115);
3. Misprision
of treason (Art. 116); and
4. Espionage
(Art. 117).
Crimes
against the law of nations
1. Inciting
to war or giving motives for reprisals (Art. 118);
2. Violation
of neutrality (Art. 119);
3. Corresponding
with hostile country (Art. 120);
4. Flight
to enemy's country (Art. 121);
5. Piracy in general and mutiny on the high seas
(Art. 122).
The crimes under this title can be prosecuted even if the criminal act or
acts were committed outside the Philippine territorial jurisdiction. However,
prosecution can proceed only if the offender is within Philippine territory or
brought to the Philippines
Almost all of
these are crimes committed in times of war, except the following, which can be
committed in times of peace:
(1) Espionage, under
Article 114 – This is also covered by Commonwealth Act No. 616 which
punishes conspiracy to commit espionage.
This may be committed both in times of war and in times of peace.
(2) Inciting to War or
Giving Motives for Reprisals, under Article 118 – This can be committed
even if the Philippines
(3) Violation of
Neutrality, under Article 119 – The Philippines is not a party to a war but
there is a war going on. This may be
committed in the light of the Middle East war.
Article 114.
Treason
Elements
1. Offender is a Filipino or resident alien;
2. There is a war in which the Philippines
3. Offender
either –
a. levies war against the government; or
b. adheres to the enemies,
giving them aid or comfort within the Philippines
Requirements of
levying war
1. Actual assembling of men;
2. To execute a treasonable design by force;
3. Intent is to deliver the country in whole or in part to the enemy; and
4. Collaboration with foreign enemy or some foreign sovereign
Two ways of
proving treason
1. Testimony
of at least two witnesses to the same overt act; or
2. Confession
of accused in open court.
Article 115.
Conspiracy and Proposal to Commit Treason
Elements of
conspiracy to commit treason
1. There is
a war in which the Philippines
2. At least
two persons come to an agreement to –
a. levy war against the government;
or
b. adhere to the enemies,
giving them aid or comfort;
3. They decide to commit it.
Elements of
proposal to commit treason
1. There is
a war in which the Philippines
2. At least
one person decides to –
a. levy war against the government; or
b. adhere to the enemies,
giving them aid or comfort;
3. He proposes its execution to some other
persons.
Article 116.
Misprision of Treason
Elements
1. Offender owes allegiance to the government, and not a foreigner;
2. He has knowledge of conspiracy to commit treason against the
government;
3. He conceals or does not disclose and make known the same as soon as
possible to the governor or fiscal of the province in which he resides, or the
mayor or fiscal of the city in which he resides.
While in
treason, even aliens can commit said crime because of the amendment to the
article, no such amendment was made in misprision of treason. Misprision of treason is a
crime that may be committed only by citizens of the Philippines
The essence of
the crime is that there are persons who conspire to commit treason and the
offender knew this and failed to make the necessary report to the government
within the earliest possible time. What is required is to report it as soon
as possible. The criminal liability
arises if the treasonous activity was still at the conspiratorial stage.
Because if the treason already erupted into an overt act, the implication is
that the government is already aware of it. There is no need to report the
same. This is a felony by omission
although committed with dolo, not with culpa.
The persons
mentioned in Article 116 are not limited to mayor, fiscal or governor. Any person in authority having equivalent
jurisdiction, like a provincial commander, will already negate criminal liability.
Whether the
conspirators are parents or children, and the ones who learn the conspiracy is
a parent or child, they are required to report the same. The reason is that
although blood is thicker than water so to speak, when it comes to security of
the state, blood relationship is always subservient to national security. Article 20 does not apply here because the
persons found liable for this crime are not considered accessories; they are
treated as principals.
In the 1994 bar
examination, a problem was given with respect to misprision of treason. The text of the provision simply refers to a
conspiracy to overthrow the government.
The examiner failed to note that this crime can only be committed in
times of war. The conspiracy adverted to
must be treasonous in character. In the
problem given, it was rebellion. A conspiracy to overthrow the government is a
crime of rebellion because there is no war.
Under the Revised Penal Code, there is no crime of misprision of
rebellion.
Article 117.
Espionage
Acts punished
1. By entering, without authority therefore, a
warship, fort or naval or military establishment or reservation to obtain any
information, plans, photograph or other data of a confidential nature relative
to the defense of the Philippines
Elements
a. Offender enters any of the
places mentioned;
b. He has no authority
therefore;
c. His purpose is to obtain
information, plans, photographs or other data of a confidential nature relative
to the defense of the Philippines
2. By disclosing to the representative of a
foreign nation the contents of the articles, data or information referred to in
paragraph 1 of Article 117, which he had in his possession by reason of the
public office he holds.
Elements
a. Offender is a public officer;
b. He has in his possession the
articles, data or information referred to in paragraph 1 of Article 117, by
reason of the public office he holds;
c. He discloses their contents
to a representative of a foreign nation.
Commonwealth Act No. 616 – An Act to Punish
Espionage and Other Offenses against National Security
Acts punished
1. Unlawfully
obtaining or permitting to be obtained information affecting national defense;
2. Unlawful
disclosing of information affecting national defense;
3. Disloyal
acts or words in times of peace;
4. Disloyal
acts or words in times of war;
5. Conspiracy
to violate preceding sections; and
6. Harboring
or concealing violators of law.
Article 118.
Inciting to War or Giving Motives for Reprisals
Elements
1. Offender performs unlawful or unauthorized acts;
2. The acts provoke or give occasion for –
a. a war involving or liable to
involve the Philippines
b. exposure of Filipino citizens
to reprisals on their persons or property.
Article 119.
Violation of Neutrality
Elements
1. There is a war in which the Philippines
2. There is a regulation issued by a competent authority to enforce
neutrality;
3. Offender violates the regulation.
When we say
national security, it should be interpreted as including rebellion, sedition
and subversion. The Revised Penal Code
does not treat rebellion, sedition and subversion as crimes against national
security, but more of crimes against public order because during the time that
the Penal Code was enacted, rebellion was carried out only with bolos and
spears; hence, national security was not really threatened. Now, the threat of rebellion or internal wars
is serious as a national threat.
Article 120.
Correspondence with Hostile Country
Elements
1. It is in
time of war in which the Philippines
2. Offender
makes correspondence with an enemy country or territory occupied by enemy
troops;
3. The
correspondence is either –
a. prohibited by the government;
b. carried on in ciphers or
conventional signs; or
c. containing notice or
information which might be useful to the enemy.
Article 121. Flight
to Enemy's Country
Elements
1. There is
a war in which the Philippines
2. Offender
must be owing allegiance to the government;
3. Offender
attempts to flee or go to enemy country;
4. Going to the enemy country is prohibited by
competent authority.
In crimes
against the law of nations, the offenders can be prosecuted anywhere in the
world because these crimes are considered as against humanity in general, like
piracy and mutiny. Crimes against
national security can be tried only in the Philippines
Article 122.
Piracy in general and Mutiny on the High Seas or in Philippine Waters
Acts punished
as piracy
1. Attacking
or seizing a vessel on the high seas or in Philippine waters;
2. Seizing in the vessel while on the high seas
or in Philippine waters the whole or part of its cargo, its equipment or
personal belongings of its complement or passengers.
Elements of
piracy
1. The vessel is on the high seas or Philippine waters;
2. Offenders are neither members of its complement nor passengers of the
vessel;
3. Offenders either –
a. attack or seize a vessel on
the high seas or in Philippine waters; or
b. seize in the vessel while on
the high seas or in Philippine waters the whole or part of its cargo, its
equipment or personal belongings of its complement or passengers;
4. There is intent to gain.
Originally,
the crimes of piracy and mutiny can only be committed in the high seas, that
is, outside Philippine territorial waters.
But in August 1974, Presidential Decree No. 532 (The Anti-Piracy
and Anti-Highway Robbery Law of 1974) was issued, punishing piracy, but not
mutiny, in Philippine territorial waters.
Thus came about two kinds of piracy: (1) that which is punished under
the Revised Penal Code if committed in the high seas; and (2) that which is
punished under Presidential Decree No. 532 if committed in Philippine
territorial waters.
Amending
Article 122, Republic Act No. 7659 included therein piracy in Philippine
waters, thus, pro tanto superseding Presidential Decree No. 532.
As amended, the article now punishes piracy, as well as mutiny, whether
committed in the high seas or in Philippine territorial waters, and the penalty
has been increased to reclusion perpetua from reclusion temporal.
But
while under Presidential Decree No. 532, piracy in Philippine waters could be
committed by any person, including a passenger or member of the complement of a
vessel, under the amended article, piracy can only be committed by a person who
is not a passenger nor member of the complement of the vessel irrespective of
venue. So if a passenger or complement
of the vessel commits acts of robbery in the high seas, the crime is robbery,
not piracy.
Note,
however, that in Section 4 of Presidential Decree No. 532, the act of aiding
pirates or abetting piracy is penalized as a crime distinct from piracy. Said section penalizes any person who
knowingly and in any manner aids or protects pirates, such as giving them
information about the movement of the police or other peace officers of the
government, or acquires or receives property taken by such pirates, or in any
manner derives any benefit therefrom; or who directly or indirectly abets the
commission of piracy. Also, it is
expressly provided in the same section that the offender shall be considered as
an accomplice of the principal offenders and punished in accordance with the
Revised Penal Code. This provision of
Presidential Decree No. 532 with respect to piracy in Philippine water has not
been incorporated in the Revised Penal Code. Neither may it be considered
repealed by Republic Act No. 7659 since there is nothing in the amendatory law
is inconsistent with said section. Apparently, there is still the crime of
abetting piracy in Philippine waters under Presidential Decree No. 532.
Considering
that the essence of piracy is one of robbery, any taking in a vessel with force
upon things or with violence or intimidation against person is employed will
always be piracy. It cannot co-exist
with the crime of robbery. Robbery,
therefore, cannot be committed on board a vessel. But if the taking is without violence or
intimidation on persons of force upon things, the crime of piracy cannot be
committed, but only theft.
PIRACY is a
crime against humanity (hostes humanes generis)
Questions & Answers
Could theft be
committed on board a vessel?
Ø Yes. The essence of piracy is one of robbery.
Mutiny is the unlawful resistance to a superior officer, or the raising
of commotions and disturbances aboard a ship against the authority of its
commander.
Elements of
mutiny
1. The vessel is on the high seas or Philippine waters;
2. Offenders are either members of its complement, or passengers of the
vessel;
3.
Offenders
either –
a. attack or seize the vessel; or
b. seize the whole or part of
the cargo, its equipment, or personal belongings of the crew or passengers.
Distinction
between mutiny and piracy
(1) As to offenders
Mutiny is committed by members of the complement or the passengers of
the vessel.
Piracy is committed by persons who are not members of the complement or
the passengers of the vessel.
(2) As to criminal intent
In mutiny, there is no criminal intent.
In piracy, the criminal intent is for gain.
Article 123. Qualified Piracy
Elements
1. The vessel is on the high seas or Philippine waters;
2. Offenders may or may not be members of its complement, or passengers of
the vessel;
3. Offenders either –
a. attack
or seize the vessel; or
b. seize
the whole or part of the cargo, its equipment., or personal belongings of the
crew or passengers;
4.
The
preceding were committed under any of the following circumstances:
a. whenever
they have seized a vessel by boarding or firing upon the same;
b. whenever the pirates have
abandoned their victims without means of saving themselves; or
c. whenever the crime is
accompanied by murder, homicide, physical injuries or rape.
If any of the
circumstances in Article 123 is present, piracy is qualified. Take note of the specific crimes involve in
number 4 c (murder, homicide, physical injuries or rape). When any of these crimes accompany piracy,
there is no complex crime. Instead,
there is only one crime committed – qualified piracy. Murder, rape, homicide, physical injuries are
mere circumstances qualifying piracy and cannot be punished as separate crimes,
nor can they be complexed with piracy.
Although in
Article 123 merely refers to qualified piracy, there is also the crime of
qualified mutiny. Mutiny is qualified
under the following circumstances:
(1) When the offenders
abandoned the victims without means of saving themselves; or
(2) When the mutiny is
accompanied by rape, murder, homicide, or physical injuries.
Note that the
first circumstance which qualifies piracy does not apply to mutiny.
Republic Act No. 6235 (The Anti Hi-Jacking Law)
Anti hi-jacking
is another kind of piracy which is committed in an aircraft. In other
countries, this crime is known as aircraft piracy.
Four situations
governed by anti hi-jacking law:
(1) usurping or seizing
control of an aircraft of Philippine registry while it is in flight, compelling
the pilots thereof to change the course or destination of the aircraft;
(2) usurping or seizing
control of an aircraft of foreign registry while within Philippine territory,
compelling the pilots thereof to land in any part of Philippine territory;
(3) carrying or loading on
board an aircraft operating as a public utility passenger aircraft in the
Philippines, any flammable, corrosive, explosive, or poisonous substance; and
(4) loading, shipping, or
transporting on board a cargo aircraft operating as a public utility in the Philippines
Between numbers
1 and 2, the point of distinction is whether the aircraft is of Philippine
registry or foreign registry. The common
bar question on this law usually involves number 1. The important thing is that before the anti
hi-jacking law can apply, the aircraft must be in flight. If not in flight, whatever crimes committed
shall be governed by the Revised Penal Code.
The law makes a distinction between aircraft of a foreign registry and
of Philippine registry. If the aircraft
subject of the hi-jack is of Philippine registry, it should be in flight at the
time of the hi-jacking. Otherwise, the anti hi-jacking law will not apply and
the crime is still punished under the Revised Penal Code. The correlative crime may be one of grave
coercion or grave threat. If somebody is
killed, the crime is homicide or murder, as the case may be. If there are some
explosives carried there, the crime is destructive arson. Explosives are by nature
pyro-techniques. Destruction of property
with the use of pyro-technique is destructive arson. If there is illegally possessed or carried
firearm, other special laws will apply.
On the other
hand, if the aircraft is of foreign registry, the law does not require that it
be in flight before the anti hi-jacking law can apply. This is because aircrafts of foreign registry
are considered in transit while they are in foreign countries. Although they may have been in a foreign
country, technically they are still in flight, because they have to move out of
that foreign country. So even if any of
the acts mentioned were committed while the exterior doors of the foreign
aircraft were still open, the anti hi-jacking law will already govern.
Note that under
this law, an aircraft is considered in flight from the moment all exterior
doors are closed following embarkation until such time when the same doors are
again opened for disembarkation. This
means that there are passengers that boarded. So if the doors are closed to
bring the aircraft to the hangar, the aircraft is not considered as in
flight. The aircraft shall be deemed to
be already in flight even if its engine has not yet been started.
Questions & Answers
1. The pilots of the Pan Am aircraft were accosted by some armed men and
were told to proceed to the aircraft to fly it to a foreign destination. The armed men walked with the pilots and went
on board the aircraft. But before they
could do anything on the aircraft, alert marshals arrested them. What crime was committed?
The criminal intent definitely is to take control of the aircraft,
which is hi-jacking. It is a question
now of whether the anti-hi-jacking law shall govern.
The anti hi-jacking law is applicable in this case. Even if the aircraft is not yet about to fly,
the requirement that it be in flight does not hold true when in comes to
aircraft of foreign registry. Even if
the problem does not say that all exterior doors are closed, the crime is
hi-jacking. Since the aircraft is of
foreign registry, under the law, simply usurping or seizing control is enough
as long as the aircraft is within Philippine territory, without the requirement
that it be in flight.
Note, however, that there is no hi-jacking in the attempted stage. This is a special law where the attempted stage
is not punishable.
2. A Philippine Air Lines aircraft is bound for Davao
No. The passengers have yet to
board the aircraft. If at that time, the
offenders are apprehended, the law will not apply because the aircraft is not
yet in flight. Note that the aircraft is
of Philippine registry.
3. While the stewardess of a Philippine Air Lines plane bound for Cebu was waiting for the passenger manifest, two of its
passengers seated near the pilot surreptitiously entered the pilot cockpit. At
gunpoint, they directed the pilot to fly the aircraft to the Middle
East . However, before the
pilot could fly the aircraft towards the Middle East ,
the offenders were subdued and the aircraft landed. What crime was committed?
The aircraft was not yet in flight.
Considering that the stewardess was still waiting for the passenger
manifest, the doors were still open.
Hence, the anti hi-jacking law is not applicable. Instead, the Revised
Penal Code shall govern. The crime
committed was grave coercion or grave threat, depending upon whether or not any
serious offense violence was inflicted upon the pilot.
However, if the aircraft were of foreign registry, the act would
already be subject to the anti hi-jacking law because there is no requirement
for foreign aircraft to be in flight before such law would apply. The reason for the distinction is that as
long as such aircraft has not returned to its home base, technically, it is
still considered in transit or in flight.
As to numbers 3
and 4 of Republic Act No. 6235, the distinction is whether the aircraft is a
passenger aircraft or a cargo aircraft.
In both cases, however, the law applies only to public utility aircraft
in the Philippines
If the aircraft
is a passenger aircraft, the prohibition is absolute. Carrying of any prohibited, flammable, corrosive,
or explosive substance is a crime under Republic Act No. 6235. But if the aircraft is only a cargo aircraft,
the law is violated only when the transporting of the prohibited substance was
not done in accordance with the rules and regulations prescribed by the Air
Transportation Office in the matter of shipment of such things. The Board of Transportation provides the
manner of packing of such kind of articles, the quantity in which they may be
loaded at any time, etc. Otherwise, the
anti hi-jacking law does not apply.
However, under
Section 7, any physical injury or damage to property which would result from
the carrying or loading of the flammable, corrosive, explosive, or poisonous
substance in an aircraft, the offender shall be prosecuted not only for
violation of Republic Act No. 6235, but also for the crime of physical injuries
or damage to property, as the case may be, under the Revised Penal Code. There will be two prosecutions here. Other than this situation, the crime of
physical injuries will be absorbed. If
the explosives were planted in the aircraft to blow up the aircraft, the
circumstance will qualify the penalty and that is not punishable as a separate
crime for murder. The penalty is
increased under the anti hi-jacking law.
All other acts
outside of the four are merely qualifying circumstances and would bring about
higher penalty. Such acts would not
constitute another crime. So the killing
or explosion will only qualify the penalty to a higher one.
Questions & Answers
1. In the course of the hi-jack, a passenger or complement was shot and
killed. What crime or crimes were
committed?
The crime remains to be a violation of the anti hi-jacking law, but the
penalty thereof shall be higher because a passenger or complement of the aircraft
had been killed. The crime of homicide or murder is not committed.
2. The hi-jackers threatened to detonate a bomb in the course of the
hi-jack. What crime or crimes were
committed?
Again, the crime is violation of the anti hi-jacking law. The separate crime of grave threat is not
committed. This is considered as a
qualifying circumstance that shall serve to increase the penalty.
TITLE II. CRIMES AGAINST THE
FUNDAMENTAL LAWS OF THE STATE
Crimes
against the fundamental laws of the State
1. Arbitrary
detention (Art. 124);
2. Delay in
the delivery of detained persons to the proper judicial authorities (Art. 125);
3. Delaying
release (Art. 126);
4. Expulsion
(Art. 127);
5. Violation
of domicile (Art. 128);
6. Search
warrants maliciously obtained and abuse in the service of those legally
obtained (Art. 129);
7. Searching
domicile without witnesses (Art. 130);
8. Prohibition,
interruption, and dissolution of peaceful meetings (Art. 131);
9. Interruption
of religious worship (Art. 132);
10. Offending
the religious feelings (Art. 133);
Crimes under
this title are those which violate the Bill of Rights accorded to the citizens
under the Constitution. Under this
title, the offenders are public officers, except as to the last crime –
offending the religious feelings under Article 133, which refers to any
person. The public officers who may be
held liable are only those acting under supposed exercise of official
functions, albeit illegally.
In its
counterpart in Title IX (Crimes Against Personal Liberty and Security), the
offenders are private persons. But
private persons may also be liable under this title as when a private person
conspires with a public officer. What is
required is that the principal offender must be a public officer. Thus, if a private person conspires with a
public officer, or becomes an accessory or accomplice, the private person also
becomes liable for the same crime. But a private person acting alone cannot
commit the crimes under Article 124 to 132 of this title.
Article 124.
Arbitrary Detention
Elements
1. Offender
is a public officer or employee;
2. He
detains a person;
3. The
detention is without legal grounds.
Meaning of absence of legal grounds
1. No crime
was committed by the detained;
2. There is
no violent insanity of the detained person; and
3. The
person detained has no ailment which requires compulsory confinement in a
hospital.
The crime
of arbitrary detention assumes several forms:
(1) Detaining
a person without legal grounds under;
(2) Having arrested the
offended party for legal grounds but without warrant of arrest, and the public
officer does not deliver the arrested person to the proper judicial authority
within the period of 12, 18, or 36 hours, as the case may be; or
(3) Delaying release by competent
authority with the same period mentioned in number 2.
Distinction
between arbitrary detention and illegal detention
1. In
arbitrary detention --
The principal offender must be a public officer. Civilians can commit the crime of arbitrary
detention except when they conspire with a public officer committing this
crime, or become an accomplice or accessory to the crime committed by the
public officer; and
The offender who is a public officer has a duty which carries with it
the authority to detain a person.
2. In
illegal detention --
The principal offender is a private person. But a public officer can commit the crime of
illegal detention when he is acting in a private capacity or beyond the scope
of his official duty, or when he becomes an accomplice or accessory to the
crime committed by a private person.
The offender, even if he is a public officer, does not include as his
function the power to arrest and detain a person, unless he conspires with a
public officer committing arbitrary detention.
Note that in
the crime of arbitrary detention, although the offender is a public officer,
not any public officer can commit this crime. Only those public officers whose
official duties carry with it the authority to make an arrest and detain
persons can be guilty of this crime. So,
if the offender does not possess such authority, the crime committed by him is
illegal detention. A public officer who
is acting outside the scope of his official duties is no better than a private
citizen.
Questions & Answers
1. A janitor at the Quezon
City Hall
No. Even if he is a public
officer, he is not permitted by his official function to arrest and detain
persons. Therefore, he is guilty only of
illegal detention. While the offender is
a public officer, his duty does not include the authority to make arrest;
hence, the crime committed is illegal detention.
2. A municipal treasurer has been courting his secretary. However, the latter always turned him
down. Thereafter, she tried to avoid
him. One afternoon, the municipal
treasurer locked the secretary inside their office until she started crying. The treasurer opened the door and allowed her
to go home. What crime was committed?
Illegal detention. This is
because the municipal treasurer has no authority to detain a person although he
is a public officer.
In a case
decided by the Supreme Court a Barangay Chairman who unlawfully detains another
was held to be guilty of the crime of arbitrary detention. This is because he is a person in authority
vested with the jurisdiction to maintain peace and order within his
barangay. In the maintenance of such
peace and order, he may cause the arrest and detention of troublemakers or
those who disturb the peace and order within his barangay. But if the legal basis for the apprehension
and detention does not exist, then the detention becomes arbitrary.
Whether the
crime is arbitrary detention or illegal detention, it is necessary that there
must be an actual restraint of liberty of the offended party. If there is no actual restraint, as the
offended party may still go to the place where he wants to go, even though
there have been warnings, the crime of arbitrary detention or illegal detention
is not committed. There is either grave
or light threat.
However, if the
victim is under guard in his movement such that there is still restraint of
liberty, then the crime of either arbitrary or illegal detention is still
committed.
Question & Answer
The offended
party was brought to a place which he could not leave because he does not know
where he is, although free to move about.
Was arbitrary or illegal detention committed?
Either
arbitrary detention or illegal detention was committed. If a person is brought to a safe house,
blindfolded, even if he is free to move as he pleases, but if he cannot leave
the place, arbitrary detention or illegal detention is committed.
Distinction
between arbitrary detention and unlawful arrest
(1) As to offender
In arbitrary detention, the offender is a public officer possessed with
authority to make arrests.
In unlawful arrest, the offender may be any person.
(2) As to criminal intent
In arbitrary detention, the main reason for detaining the offended
party is to deny him of his liberty.
In unlawful arrest, the purpose is to accuse the offended party of a
crime he did not commit, to deliver the person to the proper authority, and to
file the necessary charges in a way trying to incriminate him.
When a person
is unlawfully arrested, his subsequent detention is without legal grounds.
Question & Answer
A had been
collecting tong from drivers. B, a
driver, did not want to contribute to the tong.
One day, B was apprehended by A, telling him that he was driving
carelessly. Reckless driving carries
with it a penalty of immediate detention and arrest. B was brought to the Traffic Bureau and was
detained there until the evening. When A returned, he opened the cell and told
B to go home. Was there a crime of
arbitrary detention or unlawful arrest?
Arbitrary
detention. The
arrest of B was only incidental to the criminal intent of the offender to
detain him. But if after putting B
inside the cell, he was turned over to the investigating officer who booked him
and filed a charge of reckless imprudence against him, then the crime would be
unlawful arrest. The detention of the
driver is incidental to the supposed crime he did not commit. But if there is no supposed crime at all
because the driver was not charged at all, he was not given place under booking
sheet or report arrest, then that means that the only purpose of the offender
is to stop him from driving his jeepney because he refused to contribute to the
tong.
Article 125.
Delay in the Delivery of Detained Persons to the Proper Judicial
Authorities
Elements
1. Offender is a public officer or employee;
2. He detains a person for some legal ground;
3. He fails to deliver such person to the proper judicial authorities
within –
a. 12 hour for light penalties;
b. 18 hours for correctional penalties; and
c. 36 hours for afflictive or capital penalties
This is a form
of arbitrary detention. At the
beginning, the detention is legal since it is in the pursuance of a lawful
arrest. However, the detention becomes
arbitrary when the period thereof exceeds 12, 18 or 36 hours, as the case may
be, depending on whether the crime is punished by light, correctional or
afflictive penalty or their equivalent.
The period of
detention is 12 hours for light offenses, 18 hours for correctional offences
and 36 hours for afflictive offences, where the accused may be detained without
formal charge. But he must cause a
formal charge or application to be filed with the proper court before 12, 18 or
36 hours lapse. Otherwise he has to
release the person arrested.
Note that the
period stated herein does not include the nighttime. It is to be counted only when the
prosecutor’s office is ready to receive the complaint or information.
This article
does not apply if the arrest is with a warrant.
The situation contemplated here is an arrest without a warrant.
Question & Answer
Within what
period should a police officer who has arrested a person under a warrant of
arrest turn over the arrested person to the judicial authority?
There is no
time limit specified except that the return must be made within a reasonable
time. The period fixed by law under
Article 125 does not apply because the arrest was made by virtue of a warrant
of arrest.
When a person
is arrested without a warrant, it means that there is no case filed in court
yet. If the arresting officer would hold
the arrested person there, he is actually depriving the arrested of his right to
bail. As long as there is no charge in
the court yet, the arrested person cannot obtain bail because bail may only be
granted by the court. The spirit of the
law is to have the arrested person delivered to the jurisdiction of the court.
If the arrest is
by virtue of a warrant, it means that there is already a case filed in
court. When an information is filed in
court, the amount of bail recommended is stated. The accused person is not really denied his
right to bail. Even if he is
interrogated in the police precinct, he can already file bail.
Note that
delivery of the arrested person to the proper authorities does not mean
physical delivery or turn over of arrested person to the court. It simply means putting the arrested person
under the jurisdiction of the court.
This is done by filing the necessary complaint or information against
the person arrested in court within the period specified in Article 125. The purpose of this is for the court to
determine whether the offense is bailable or not and if bailable, to allow him
the right to bail.
Under the Rule
114 of the Revised Rules of Court, the arrested person can demand from the
arresting officer to bring him to any judge in the place where he was arrested
and post the bail here. Thereupon, the arresting
officer may release him. The judge who
granted the bail will just forward the litimus of the case to the court trying
his case. The purpose is in order to
deprive the arrested person of his right to post the bail.
Under the
Revised Rules of Court, when the person arrested is arrested for a crime which
gives him the right to preliminary investigation and he wants to avail his
right to a preliminary investigation, he would have to waive in writing his
rights under Article 125 so that the arresting officer will not immediately
file the case with the court that will exercise jurisdiction over the
case. If he does not want to waive this
in writing, the arresting officer will have to comply with Article 125 and file
the case immediately in court without preliminary investigation. In such case, the arrested person, within
five days after learning that the case has been filed in court without preliminary investigation, may ask for
preliminary investigation. In this case,
the public officer who made the arrest will no longer be liable for violation
of Article 125.
Question & Answer
The arrest of
the suspect was done in Baguio
City Manila ,
where the crime was committed, there was a typhoon so the suspect could not be
brought to Manila
There was a
violation of Article 125. The crime
committed was arbitrary detention in the form of delay in the delivery of
arrested person to the proper judicial authority. The typhoon or flood is a matter of defense
to be proved by the accused, the arresting officer, as to whether he is
liable. In this situation, he may be
exempt under Article 12(7).
Before Article
125 may be applied, it is necessary that initially, the detention of the arrested
person must be lawful because the arrest is based on legal grounds. If the arrest is made without a warrant, this
constitutes an unlawful arrest. Article
269, not Article 125, will apply. If the
arrest is not based on legal grounds, the arrest is pure and simple arbitrary
detention. Article 125 contemplates a
situation where the arrest was made without warrant but based on legal
grounds. This is known as citizen’s arrest.
Article 126.
Delaying Release
Acts punished
1. Delaying
the performance of a judicial or executive order for the release of a prisoner;
2. Unduly
delaying the service of the notice of such order to said prisoner;
3. Unduly
delaying the proceedings upon any petition for the liberation of such person.
Elements
1. Offender
is a public officer or employee;
2. There is
a judicial or executive order for the release of a prisoner or detention
prisoner, or that there is a proceeding upon a petition for the liberation of
such person;
3. Offender
without good reason delays –
a. the service of the notice of such order to the prisoner;
b. the performance of such
judicial or executive order for the release of the prisoner; or
c. the proceedings upon a
petition for the release of such person.
Article 127.
Expulsion
Acts punished
1. Expelling
a person from the Philippines
2. Compelling a person to change his residence.
Elements
1. Offender is a public officer or employee;
2. He either –
a. expels any person from the Philippines
b. compels a person to change
residence;
3.
Offender
is not authorized to do so by law.
The essence of
this crime is coercion but the specific crime is “expulsion” when committed by
a public officer. If committed by a
private person, the crime is grave coercion.
In Villavicencio v. Lukban, 39 Phil 778, the mayor of
the City of Manila Davao
Questions & Answers
1. Certain aliens were arrested and they were just put on the first
aircraft which brought them to the country so
that they may be out without due process of law. Was there a crime committed?
Yes. Expulsion.
2. If a Filipino citizen is sent out of the country, what crime is
committed?
Grave coercion, not expulsion, because a Filipino cannot be
deported. This crime refers only to
aliens.
Article 128.
Violation of Domicile
Acts punished
1. Entering
any dwelling against the will of the owner thereof;
2. Searching
papers or other effects found therein without the previous consent of such
owner; or
3. Refusing to leave the premises, after having
surreptitiously entered said dwelling and after having been required to leave
the same
Common elements
1. Offender
is a public officer or employee;
2. He is
not authorized by judicial order to enter the dwelling or to make a search
therein for papers or other effects.
Circumstances qualifying the offense
1. If
committed at nighttime; or
2. If any
papers or effects not constituting evidence of a crime are not returned
immediately after the search made by offender.
Under
Title IX (Crimes against Personal Liberty and Security), the corresponding
article is qualified trespass to dwelling under Article 280. Article 128 is limited to public
officers. The public officers who may be
liable for crimes against the fundamental laws are those who are possessed of
the authority to execute search warrants and warrants of arrests.
Under Rule 113
of the Revised Rules of Court, when a person to be arrested enters a premise
and closes it thereafter, the public officer, after giving notice of an arrest,
can break into the premise. He shall not
be liable for violation of domicile.
According to People
vs. Doria and People vs. Elamparo, the following are the accepted exceptions to the warrant
requirement: (1) search incidental to an arrest; (2) search of moving vehicles;
(3) evidence in plain view; (4) customs searches; and (5) consented warrantless
search. Stop and frisk is no longer included.
There are three
ways of committing the violation of Article 128:
(1) By
simply entering the dwelling of another if such entering is done against the
will of the occupant. In the plain view doctrine, public officer should be
legally entitled to be in the place where the effects were found. If he entered the place illegally and he saw
the effects, doctrine inapplicable; thus, he is liable for violation of
domicile.
(2) Public officer who
enters with consent searches for paper and effects without the consent of the
owner. Even if he is welcome in the
dwelling, it does not mean he has permission to search.
(3) Refusing to leave
premises after surreptitious entry and being told to leave the same. The act punished is not the entry but the
refusal to leave. If the offender upon
being directed to eave, followed and left, there is no crime of violation of
domicile. Entry must be done surreptitiously; without this, crime may be unjust
vexation. But if entering was done
against the will of the occupant of the house, meaning there was express or
implied prohibition from entering the same, even if the occupant does not
direct him to leave, the crime of is already committed because it would fall in
number 1.
Questions & Answers
1. It was raining heavily. A
policeman took shelter in one person’s house.
The owner obliged and had his daughter serve the police some
coffee. The policeman made a pass at the
daughter. The owner of the house asked
him to leave. Does this fall under
Article 128?
No. It was the owner of the
house who let the policeman in. The
entering is not surreptitious.
2. A person surreptitiously enters the dwelling of another. What crime or crimes were possibly committed?
The crimes committed are (1) qualified trespass to dwelling under
Article 280, if there was an express or implied prohibition against
entering. This is tantamount to entering
against the will of the owner; and (2) violation of domicile in the third form
if he refuses to leave after being told to.
Article 129.
Search Warrants Maliciously Obtained, and Abuse in the Service of Those
Legally Obtained
Acts punished
1. Procuring a search warrant without just
cause;
Elements
a. Offender is a public officer
or employee;
b. He procures a search warrant;
c. There is no just cause.
2. Exceeding his authority or by using
unnecessary severity in executing a search warrant legally procured.
Elements
a. Offender is a public officer
or employee;
b. He has legally procured a
search warrant;
c. He exceeds his authority or
uses unnecessary severity in executing the same.
Article 130.
Searching Domicile without Witnesses
Elements
1. Offender is a public officer or employee;
2. He is
armed with search warrant legally procured;
3. He
searches the domicile, papers or other belongings of any person;
4. The
owner, or any members of his family, or two witnesses residing in the same
locality are not present.
Crimes under
Articles 129 and 130 are referred to as violation of domicile. In these articles, the search is made by
virtue of a valid warrant, but the warrant notwithstanding, the liability for
the crime is still incurred through the following situations:
(1) Search warrant was
irregularly obtained – This means there was no probable cause determined in
obtaining the search warrant. Although
void, the search warrant is entitled to respect because of presumption of
regularity. One remedy is a motion to
quash the search warrant, not refusal to abide by it. The public officer may also be prosecuted for
perjury, because for him to succeed in obtaining a search warrant without a
probable cause, he must have perjured himself or induced someone to commit
perjury to convince the court.
(2) The officer exceeded
his authority under the warrant – To illustrate, let us say that there was a
pusher in a condo unit. The PNP
Narcotics Group obtained a search warrant but the name of person in the search
warrant did not tally with the address stated.
Eventually, the person with the same name was found but in a different
address. The occupant resisted but the
public officer insisted on the search.
Drugs were found and seized and occupant was prosecuted and convicted by
the trial court. The Supreme Court
acquitted him because the public officers are required to follow the search
warrant to the letter. They have no
discretion on the matter. Plain view
doctrine is inapplicable since it presupposes that the officer was legally entitled
to be in the place where the effects where found. Since the entry was illegal, plain view
doctrine does not apply.
(3) When the public officer
employs unnecessary or excessive severity in the implementation of the search
warrant. The search warrant is not a license to commit destruction.
(4) Owner of dwelling or
any member of the family was absent, or two witnesses residing within the same
locality were not present during the search.
Article 131.
Prohibition, Interruption, and Dissolution of Peaceful Meetings
Elements
1. Offender is a public officer or employee;
2. He performs any of the following acts:
a. prohibiting or by
interrupting, without legal ground, the holding of a peaceful meeting, or by
dissolving the same;
b. hindering any person from
joining any lawful association, or attending any of its meetings;
c. prohibiting or hindering any
person from addressing, either alone or together with others, any petition to
the authorities for the correction of abuses or redress of grievances.
The government
has a right to require a permit before any gathering could be made. Any meeting without a permit is a proceeding
in violation of the law. That being
true, a meeting may be prohibited, interrupted, or dissolved without violating
Article 131 of the Revised Penal Code.
But the
requiring of the permit shall be in exercise only of the government’s
regulatory powers and not really to prevent peaceful assemblies as the public
may desire. Permit is only necessary to
regulate the peace so as not to inconvenience the public. The permit should state the day, time and the
place where the gathering may be held.
This requirement is, therefore, legal as long as it is not being
exercised in as a prohibitory power.
If the permit
is denied arbitrarily, Article 131 is violated.
If the officer would not give the permit unless the meeting is held in a
particular place which he dictates defeats the exercise of the right to
peaceably assemble, Article 131 is violated.
At the
beginning, it may happen that the assembly is lawful and peaceful. If in the course of the assembly the
participants commit illegal acts like oral defamation or inciting to sedition,
a public officer or law enforcer can stop or dissolve the meeting. The permit given is not a license to commit a
crime.
There are two
criteria to determine whether Article 131 would be violated:
(1) Dangerous tendency rule
– applicable in times of national unrest such as to prevent coup d’etat.
(2) Clear and present
danger rule – applied in times of peace.
Stricter rule.
Distinctions between prohibition, interruption, or
dissolution of peaceful meetings under Article 131, and tumults and other disturbances, under
Article 153
(1) As to the participation
of the public officer
In Article 131, the public officer is not a participant. As far as the gathering is concerned, the
public officer is a third party.
If the public officer is a participant of the assembly and he
prohibits, interrupts, or dissolves the same, Article 153 is violated if the
same is conducted in a public place.
(2) As to the essence of
the crime
In Article 131, the offender must be a public officer and, without any
legal ground, he prohibits, interrupts, or dissolves a peaceful meeting or
assembly to prevent the offended party from exercising his freedom of speech
and that of the assembly to petition a grievance against the government.
In Article 153, the offender need not be a public officer. The essence of the crime is that of creating
a serious disturbance of any sort in a public office, public building or even a
private place where a public function is being held.
Article 132.
Interruption of Religious Worship
Elements
1. Offender
is a public officer or employee;
2. Religious
ceremonies or manifestations of any religious are about to take place or are
going on;
3. Offender
prevents or disturbs the same.
Qualified if
committed by violence or threat.
Article 133.
Offending the Religious Feelings
Elements
1. Acts complained of were performed in a place
devoted to religious worship, or during the celebration of any religious
ceremony;
2. The acts must be notoriously offensive to the
feelings of the faithful.
There must be
deliberate intent to hurt the feelings of the faithful.
Title III. Crimes Against Public Order
Crimes
against public order
1. Rebellion
or insurrection (Art. 134);
2. Conspiracy
and proposal to commit rebellion (Art. 136);
3. Disloyalty
to public officers or employees (Art. 137);
4. Inciting
to rebellion (Art. 138);
5. Sedition
(Art. 139);
6. Conspiracy
to commit sedition (Art. 141);
7. Inciting
to sedition (Art. 142);
8. Acts
tending to prevent the meeting of Congress and similar bodies (Art. 143);
9. Disturbance
of proceedings of Congress or similar bodies (Art. 144);
10. Violation
of parliamentary immunity (Art. 145);
11. Illegal
assemblies (Art. 146);
12. Illegal
associations (Art. 147);
13. Direct
assaults (Art. 148);
14. Indirect
assaults (Art. 149);
15. Disobedience to summons issued by Congress,
its committees, etc., by the constitutional commissions, its committees, etc.
(Art. 150);
16. Resistance
and disobedience to a person in authority or the agents of such person (Art.
151);
17. Tumults
and other disturbances of public order (Art. 153);
18. Unlawful
use of means of publication and unlawful utterances (Art. 154);
19. Alarms
and scandals (Art. 155);
20. Delivering
prisoners from jails (Art. 156);
21. Evasion
of service of sentence (Art. 157);
22. Evasion
on occasion of disorders (Art. 158);
23. Violation
of conditional pardon (Art. 159);
24. Commission
of another crime during service of penalty imposed for another previous offense
(Art. 160).
Article 134.
Rebellion or Insurrection
Elements
1. There is
a public uprising and taking arms against the government;
2. The
purpose of the uprising or movement is –
a. to remove from the allegiance
to the government or its laws Philippine territory or any part thereof, or any
body of land, naval, or other armed forces; or
b. to deprive the Chief
Executive or Congress, wholly or partially, of any of their powers or
prerogatives.
The essence of
this crime is a public uprising with the taking up of arms. It requires a multitude of
people. It aims to overthrow the duly
constituted government. It does not
require the participation of any member of the military or national police
organization or public officers and generally carried out by civilians. Lastly, the crime can only be committed
through force and violence.
Rebellion and
insurrection are not synonymous. Rebellion is more frequently used where
the object of the movement is completely to overthrow and supersede the
existing government; while insurrection is more commonly employed in
reference to a movement which seeks merely to effect some change of minor
importance, or to prevent the exercise of governmental authority with respect
to particular matters of subjects (Reyes, citing 30 Am. Jr. 1).
Rebellion can now be complexed with common crimes. Not long ago, the Supreme Court, in Enrile v. Salazar,
186 SCRA 217, reiterated and affirmed the
rule laid down in People
v. Hernandez, 99 Phil 515, that rebellion may not be
complexed with common crimes which are committed in furtherance thereof because
they are absorbed in rebellion. In view
of said reaffirmation, some believe that it has been a settled doctrine that
rebellion cannot be complexed with common crimes, such as killing and
destruction of property, committed on the occasion and in furtherance
thereof.
This thinking
is no longer correct; there is no legal basis for such rule now.
The statement
in People v. Hernandez that common crimes committed in furtherance of
rebellion are absorbed by the crime of rebellion, was dictated by the provision
of Article 135 of the Revised Penal Code prior to its amendment by the Republic
Act No. 6968 (An Act Punishing the Crime of Coup D’etat), which became
effective on October 1990. Prior to its
amendment by Republic Act No. 6968, Article 135 punished those “who while
holding any public office or employment, take part therein” by any of these
acts: engaging in war against the forces of Government; destroying property;
committing serious violence; exacting contributions, diverting funds for the
lawful purpose for which they have been appropriated.
Since
a higher penalty is prescribed for the crime of rebellion when any of the
specified acts are committed in furtherance thereof, said acts are punished as
components of rebellion and, therefore, are not to be treated as distinct
crimes. The same acts constitute
distinct crimes when committed on a different occasion and not in furtherance
of rebellion. In short, it was because
Article 135 then punished said acts as components of the crime of rebellion
that precludes the application of Article 48 of the Revised Penal Code
thereto. In the eyes of the law then,
said acts constitute only one crime and that is rebellion. The Hernandez doctrine was reaffirmed in
Enrile v. Salazar because the text of Article 135 has remained the same as it
was when the Supreme Court resolved the same issue in the People v.
Hernandez. So the Supreme Court invited
attention to this fact and thus stated:
“There is a an
apparent need to restructure the law on rebellion, either to raise the penalty
therefore or to clearly define and delimit the other offenses to be considered
absorbed thereby, so that it cannot be conveniently utilized as the umbrella for
every sort of illegal activity undertaken in its name. The court has no power to effect such change,
for it can only interpret the law as it stands at any given time, and what is
needed lies beyond interpretation.
Hopefully, Congress will perceive the need for promptly seizing the
initiative in this matter, which is purely within its province.”
Obviously,
Congress took notice of this pronouncement and, thus, in enacting Republic Act
No. 6968, it did not only provide for
the crime of coup d’etat in the Revised Penal Code but moreover, deleted from
the provision of Article 135 that portion referring to those –
“…who, while
holding any public office or employment takes part therein [rebellion or
insurrection], engaging in war against the forces of government, destroying
property or committing serious violence, exacting contributions or diverting
public funds from the lawful purpose for which they have been appropriated …”
Hence, overt
acts which used to be punished as components of the crime of rebellion have
been severed therefrom by Republic Act No. 6968. The legal impediment to the application of
Article 48 to rebellion has been removed.
After the amendment, common crimes involving killings, and/or
destructions of property, even though committed by rebels in furtherance of
rebellion, shall bring about complex crimes of rebellion with murder/homicide,
or rebellion with robbery, or rebellion with arson as the case may be.
To reiterate,
before Article 135 was amended, a higher penalty is imposed when the offender
engages in war against the government.
"War" connotes anything which may be carried out in pursuance
of war. This implies that all acts of
war or hostilities like serious violence and destruction of property committed
on occasion and in pursuance of rebellion are component crimes of rebellion
which is why Article 48 on complex crimes is inapplicable. In amending Article135, the acts which used
to be component crimes of rebellion, like serious acts of violence, have been
deleted. These are now distinct
crimes. The legal obstacle for the
application of Article 48, therefore, has been removed. Ortega says legislators want to punish these
common crimes independently of rebellion.
Ortega cites no case overturning Enrile v. Salazar.
In People v. Rodriguez, 107 Phil. 569, it
was held that an accused already convicted of rebellion may not be prosecuted
further for illegal possession of firearm and ammunition, a violation of
Presidential Decree No. 1866, because this is a necessary element or ingredient
of the crime of rebellion with which the accused was already convicted.
However, in People v. Tiozon, 198 SCRA 368, it was
held that charging one of illegal possession of firearms in furtherance of
rebellion is proper because this is not a charge of a complex crime. A crime under the Revised Penal Code cannot
be absorbed by a statutory offense.
In People v.
de Gracia, it was ruled that
illegal possession of firearm in furtherance of rebellion under Presidential
Decree No. 1866 is distinct from the crime of rebellion under the Revised Penal
Code and, therefore, Article 135 (2) of the Revised Penal Code should not
apply. The offense of illegal possession
of firearm is a malum prohibitum, in which case, good faith and absence of
criminal intent are not valid defenses.
In People v. Lovedioro, an NPA cadre
killed a policeman and was convicted for murder. He appealed invoking rebellion. The Supreme Court found that there was no
evidence shown to further the end of the NPA movement. It held that there must be evidence shown
that the act furthered the cause of the NPA; it is not enough to say it.
Rebellion may
be committed even without a single shot being fired. No encounter needed. Mere public uprising with arms enough.
Article 135, as
amended, has two penalties: a higher
penalty for the promoters, heads and maintainers of the rebellion; and a lower
penalty for those who are only followers of the rebellion.
Distinctions between rebellion
and sedition
(1) As to nature
In rebellion, there must be taking up or arms against the
government.
In sedition, it is sufficient that the public uprising be tumultuous.
(2) As to purpose
In rebellion, the purpose is always political.
In sedition, the purpose may be political or social. Example:
the uprising of squatters against Forbes park residents. The purpose in
sedition is to go against established government, not to overthrow it.
When any of the
objectives of rebellion is pursued but there is no public uprising in the legal
sense, the crime is direct assault of the first form. But if there is rebellion, with public
uprising, direct assault cannot be committed.
Article 134-A.
Coup d' etat
Elements
1. Offender
is a person or persons belonging to the military or police or holding any
public office or employment;
2. It is committed by means of a swift attack
accompanied by violence, intimidation, threat, strategy or stealth;
3. The attack is directed against the duly
constituted authorities of the Republic of the Philippines, or any military camp
or installation, communication networks, public utilities or other facilities
needed for the exercise and continued possession of power;
4. The purpose of the attack is to seize or
diminish state power.
The essence of
the crime is a swift attack upon the facilities of the Philippine government,
military camps and installations, communication networks, public utilities and
facilities essential to the continued possession of governmental powers. It may be committed singly or collectively
and does not require a multitude of people.
The objective may not be to overthrow the government but only to
destabilize or paralyze the government through the seizure of facilities and
utilities essential to the continued possession and exercise of governmental
powers. It requires as principal
offender a member of the AFP or of the PNP organization or a public officer
with or without civilian support.
Finally, it may be carried out not only by force or violence but also
through stealth, threat or strategy.
Q: Can there be a
complex crime of coup d’etat with rebellion?
A: Yes, if there was
conspiracy between the offender/s committing the coup d’etat and the offenders
committing the rebellion. By conspiracy, the crime of one would be the crime of
the other and vice versa. This is possible because the offender in coup d’etat
may be person or persons belonging to the military, national police or a public
officer, whereas rebellion does not so require. Moreover, the crime of coup
d’etat may be committed singly, whereas rebellion requires a public uprising
and taking up arms to overthrow the duly constituted government. Since the two
crimes are essentially different and punished with distinct penalties, there is
no legal impediment to the application of RPC Art. 48.
Persons liable
for rebellion, insurrection or coup d' etat under Article 135
1. The leaders –
a. Any person who promotes,
maintains or heads a rebellion or insurrection; or
b. Any person who leads, directs
or commands others to undertake a coup d' etat;
2. The participants –
a. Any person who participates
or executes the commands of others in rebellion, insurrection or coup d' etat;
b. Any person not in the
government service who participates, supports, finances, abets or aids in
undertaking a coup d' etat.
Article 136.
Conspiracy and Proposal to Commit Coup d' etat, Rebellion or
Insurrection
Conspiracy
and proposal to commit rebellion are two different crimes, namely:
1. Conspiracy to commit rebellion; and
2. Proposal to commit rebellion.
There is conspiracy
to commit rebellion when two or more persons come to an agreement to rise
publicly and take arms against government for any of the purposes of rebellion
and decide to commit it.
There is
proposal to commit rebellion when the person who has decided to rise publicly
and take arms against the government for any of the purposes of rebellion
proposes its execution to some other person or persons.
Article 137.
Disloyalty of Public Officers or Employees
Acts punished
1. By
failing to resist a rebellion by all the means in their power;
2. By
continuing to discharge the duties of their offices under the control of the
rebels; or
3. By accepting appointment to office under
them.
Offender must
be a public officer or employee.
Article 138.
Inciting to Rebellion or Insurrection
Elements
1. Offender does not take arms or is not in open
hostility against the government;
2. He
incites others to the execution of any of the acts of rebellion;
3. The inciting is done by means of speeches,
proclamations, writings, emblems, banners or other representations tending to
the same end.
Distinction between inciting to rebellion and
proposal to commit rebellion
1. In both
crimes, offender induces another to commit rebellion.
2. In
proposal, the person who proposes has decided to commit rebellion; in inciting
to rebellion, it is not required that the offender has decided to commit
rebellion.
3. In proposal, the person who proposes the
execution of the crime uses secret means; in inciting to rebellion, the act of
inciting is done publicly.
Article 139.
Sedition
Elements
1. Offenders rise publicly and tumultuously;
2. Offenders employ force, intimidation, or other means outside of legal
methods;
3. Purpose is to attain any of the following objects:
a. To prevent the promulgation or execution of any law or the holding of
any popular election;
b. To prevent the national government or any provincial or municipal
government, or any public officer from exercising its or his functions or
prevent the execution of an administrative order;
c. To inflict any act of hate or revenge upon the person or property of
any public officer or employee;
d. To commit, for any political or social end, any act of hate or revenge
against private persons or any social classes;
e. To despoil for any political or social end, any person, municipality or
province, or the national government of all its property or any part thereof.
The crime of
sedition does not contemplate the taking up of arms against the government
because the purpose of this crime is not the overthrow of the government. Notice from the purpose of the
crime of sedition that the offenders rise publicly and create commotion and
disturbance by way of protest to express their dissent and obedience to the
government or to the authorities concerned.
This is like the so-called civil disobedience except that the
means employed, which is violence, is illegal.
Persons liable
for sedition under Article 140
1. The
leader of the sedition; and
2. Other
person participating in the sedition.
Q: Can coup d’etat be
complexed with sedition?
A(Suggested): Yes. Coup d’etat and sedition are essentially different and
distinctly punished under the RPC. Sedition may not be directed against the Government for it
can be non-political in objective but coup d’etat is political in objective for
it is directed against the Government and led by persons/public officers
belonging to the military/national police. Art. 48 may be applied.
A(Alternative): No,
coup d’etat may not be complexed with sedition. While their principal offenders
may be different, both crimes are political in purpose and directed against the
Government. The essence is the same and thus constitute only one crime. When
the two crimes are not distinct, Art. 48 does not properly apply.
Article 141.
Conspiracy to Commit Sedition
In this crime,
there must be an agreement and a decision to rise publicly and tumultuously to
attain any of the objects of sedition.
There is no
proposal to commit sedition.
Article 142. Inciting to Sedition
Acts punished
1. Inciting
others to the accomplishment of any of the acts which constitute sedition by
means of speeches, proclamations, writings, emblems, etc.;
2. Uttering
seditious words or speeches which tend to disturb the public peace;
3. Writing,
publishing, or circulating scurrilous libels against the government or any of
the duly constituted authorities thereof, which tend to disturb the public
peace.
Elements
1. Offender does not take direct part in the crime of sedition;
2.
He
incites others to the accomplishment of any of the acts which constitute
sedition;
3. Inciting is done by means of speeches, proclamations, writings,
emblems, cartoons, banners, or other representations tending towards the same
end.
Only
non-participant in sedition may be liable.
Considering
that the objective of sedition is to express protest against the government and
in the process creating hate against public officers, any act that will
generate hatred against the government or a public officer concerned or a
social class may amount to Inciting to sedition. Article 142 is, therefore, quite broad.
The mere
meeting for the purpose of discussing hatred against the government is inciting
to sedition. Lambasting government
officials to discredit the government is Inciting to sedition. But if the objective of such preparatory
actions is the overthrow of the government, the crime is inciting to rebellion.
Article 143.
Acts Tending to Prevent the Meeting of the Congress of the Philippines
Elements
1. There is
a projected or actual meeting of Congress or any of its committees or
subcommittees, constitutional committees or divisions thereof, or of any
provincial board or city or municipal council or board;
2. Offender,
who may be any person, prevents such meetings by force or fraud.
Article 144.
Disturbance of Proceedings
Elements
1. There is
a meeting of Congress or any of its committees or subcommittees, constitutional
commissions or committees or divisions thereof, or of any provincial board or
city or municipal council or board;
2. Offender
does any of the following acts:
a. He disturbs any of such
meetings;
b. He behaves while in the
presence of any such bodies in such a manner as to interrupt its proceedings or
to impair the respect due it.
Article 145.
Violation of Parliamentary Immunity
Acts punished
1. Using force, intimidation, threats, or frauds
to prevent any member of Congress from attending the meetings of Congress or of
any of its committees or subcommittees, constitutional commissions or
committees or divisions thereof, or from expressing his opinion or casting his
vote;
Elements
a. Offender uses force,
intimidation, threats or fraud;
b. The purpose of the offender
is to prevent any member of Congress from:
i. attending
the meetings of the Congress or of any of its committees or constitutional
commissions, etc.;
ii. expressing
his opinion; or
iii. casting
his vote.
2. Arresting or searching any member thereof
while Congress is in regular or special session, except in case such member has
committed a crime punishable under the Code by a penalty higher than prision
mayor.
Elements
a. Offender is a public officer
of employee;
b. He arrests or searches any
member of Congress;
c. Congress, at the time of
arrest or search, is in regular or special session;
d. The member arrested or
searched has not committed a crime punishable under the Code by a penalty
higher than prision mayor.
Under Section
11, Article VI of the Constitution, a public officer who arrests a member of
Congress who has committed a crime punishable by prision mayor (six years and
one day, to 12 years) is not liable Article 145.
According to
Reyes, to be consistent with the Constitution, the phrase "by a penalty
higher than prision mayor" in Article 145 should be amended to read: "by the penalty of prision mayor or
higher."
Article 146.
Illegal Assemblies
Acts punished
1. Any
meeting attended by armed persons for the purpose of committing any of the
crimes punishable under the Code;
Elements
a. There is a meeting, a
gathering or group of persons, whether in fixed place or moving;
b. The meeting is attended by
armed persons;
c. The purpose of the meeting
is to commit any of the crimes punishable under the Code.
2. Any meeting in which the audience, whether
armed or not, is incited to the commission of the crime of treason, rebellion
or insurrection, sedition, or assault upon person in authority or his agents.
Elements
a. There is a meeting, a
gathering or group of persons, whether in a fixed place or moving;
b. The audience, whether armed or
not, is incited to the commission of the crime of treason, rebellion or
insurrection, sedition or direct assault.
Persons liable
for illegal assembly
1. The
organizer or leaders of the meeting;
2. Persons
merely present at the meeting, who must have a common intent to commit the
felony of illegal assembly.
If any person
present at the meeting carries an unlicensed firearm, it is presumed that the
purpose of the meeting insofar as he is concerned is to commit acts punishable
under the Revised Penal Code, and he is considered a leader or organizer of the
meeting.
The
gravamen of the offense is mere assembly of or gathering of people for illegal
purpose punishable by the Revised Penal Code.
Without gathering, there is no illegal assembly. If unlawful purpose is a crime under a
special law, there is no illegal assembly.
For example, the gathering of drug pushers to facilitate drug
trafficking is not illegal assembly because the purpose is not violative of the
Revised Penal Code but of The Dangerous Drugs Act of 1972, as amended, which is
a special law.
Two forms
of illegal assembly
(1) No attendance of armed
men, but persons in the meeting are incited to commit treason, rebellion or
insurrection, sedition or assault upon a person in authority. When the illegal purpose of the gathering is
to incite people to commit the crimes mentioned above, the presence of armed
men is unnecessary. The mere gathering
for the purpose is sufficient to bring about the crime already.
(2) Armed men attending the
gathering – If the illegal purpose is other than those mentioned above, the
presence of armed men during the gathering brings about the crime of illegal
assembly.
Example: Persons conspiring to
rob a bank were arrested. Some were with
firearms. Liable for illegal assembly,
not for conspiracy, but for gathering with armed men.
Distinction
between illegal assembly and illegal association
In illegal
assembly, the basis of liability is the gathering for an illegal purpose which
constitutes a crime under the Revised Penal Code.
In illegal
association, the basis is the formation of or organization of an association to
engage in an unlawful purpose which is not limited to a violation of the
Revised Penal Code. It includes a
violation of a special law or those against public morals. Meaning of public morals: inimical to public welfare; it has nothing to
do with decency., not acts of obscenity.
Article 147.
Illegal Associations
Illegal associations
1. Associations totally or partially organized
for the purpose of committing any of the crimes punishable under the Code;
2. Associations totally or partially organized
for some purpose contrary to public morals.
Persons
liable
1. Founders, directors
and president of the association;
2. Mere members of the association.
Distinction
between illegal association and illegal assembly
1. In illegal association, it is not necessary
that there be an actual meeting.
In illegal assembly,
it is necessary that there is an actual meeting or assembly or armed persons
for the purpose of committing any of the crimes punishable under the Code, or
of individuals who, although not armed, are incited to the commission of
treason, rebellion, sedition, or assault upon a person in authority or his
agent.
2. In illegal association, it is the act of
forming or organizing and membership in the association that are punished.
In illegal assembly, it is the meeting and
attendance at such meeting that are punished.
3. In illegal association, the persons liable
are (1) the founders, directors and president; and (2) the members.
In illegal assembly, the persons liable
are (1) the organizers or leaders of the meeting and (2) the persons present at
meeting.
Article
148. Direct Assault
Acts
punished
1. Without public uprising, by employing force
or intimidation for the attainment of any of the purposes enumerated in
defining the crimes of rebellion and sedition;
Elements
a. Offender employs force or intimidation;
b. The aim of the offender is to attain any of
the purposes of the crime of rebellion or any of the objects of the crime of
sedition;
c. There is no public uprising.
2. Without public uprising, by attacking, by
employing force or by seriously intimidating or by seriously resisting any
person in authority or any of his agents, while engaged in the performance of
official duties, or on occasion of such performance.
Elements
a. Offender makes an attack, employs force,
makes a serious intimidation, or makes a serious resistance;
b. The person assaulted is a person in authority
or his agent;
c. At the time of the assault, the person in
authority or his agent is engaged in the actual performance of official duties,
or that he is assaulted by reason of the past performance of official duties;
d. Offender knows that the one he is assaulting
is a person in authority or his agent in the exercise of his duties.
e. There is no public uprising.
The crime is
not based on the material consequence of the unlawful act. The crime of direct assault punishes the
spirit of lawlessness and the contempt or hatred for the authority or the rule
of law.
To be specific,
if a judge was killed while he was holding a session, the killing is not the
direct assault, but murder. There could
be direct assault if the offender killed the judge simply because the judge is
so strict in the fulfillment of his duty.
It is the spirit of hate which is the essence of direct assault.
So, where the
spirit is present, it is always complexed with the material consequence of the
unlawful act. If the unlawful act was
murder or homicide committed under circumstance of lawlessness or contempt of
authority, the crime would be direct assault with murder or homicide, as the
case may be. In the example of the
judge who was killed, the crime is direct assault with murder or homicide.
The only time
when it is not complexed is when material consequence is a light felony, that
is, slight physical injury. Direct assault absorbs the lighter felony;
the crime of direct assault can not be separated from the material result of
the act. So, if an offender who is
charged with direct assault and in another court for the slight physical Injury
which is part of the act, acquittal or conviction in one is a bar to the
prosecution in the other.
Example of the
first form of direct assault:
Three men broke
into a National Food Authority warehouse and lamented sufferings of the
people. They called on people to help
themselves to all the rice. They did not
even help themselves to a single grain.
The crime
committed was direct assault. There was
no robbery for there was no intent to gain.
The crime is direct assault by committing acts of sedition under Article
139 (5), that is, spoiling of the property, for any political or social end, of
any person municipality or province or the national government of all or any
its property, but there is no public uprising.
Person in authority is any person directly vested with
jurisdiction, whether as an individual or as a member of some court or
government corporation, board, or commission.
A barangay chairman is deemed a person in authority.
Agent of a person in authority is any person who
by direct provision of law or by election or by appointment by competent
authority, is charged with the maintenance of public order and the protection
and security of life and property, such as a barangay councilman, barrio
policeman, barangay leader and any person who comes to the aid of a person in
authority.
In applying the provisions of Articles 148 and 151, teachers, professors,
and persons charged with the supervision of public or duly recognized private
schools, colleges and universities and lawyers in the actual performance of
their duties or on the occasion of such performance, shall be deemed a person
in authority.
In
direct assault of the first form, the stature of the offended person is
immaterial. The crime is manifested by
the spirit of lawlessness.
In the second
form, you have to distinguish a situation where a person in authority or his
agent was attacked while performing official functions, from a situation when
he is not performing such functions. If
attack was done during the exercise of official functions, the crime is always
direct assault. It is enough that the
offender knew that the person in authority was performing an official function
whatever may be the reason for the attack, although what may have happened was
a purely private affair.
On the other
hand, if the person in authority or the agent was killed when no longer
performing official functions, the crime may simply be the material consequence
of he unlawful act: murder or homicide.
For the crime to be direct assault, the attack must be by reason of his
official function in the past. Motive
becomes important in this respect.
Example, if a judge was killed while resisting the taking of his watch,
there is no direct assault.
In the second
form of direct assault, it is also important that the offended party knew that
the person he is attacking is a person in authority or an agent of a person in
authority, performing his official functions.
No knowledge, no lawlessness or contempt.
For example, if two persons were quarreling and a policeman in civilian
clothes comes and stops them, but one of the protagonists stabs the policeman,
there would be no direct assault unless the offender knew that he is a policeman.
In this respect it is enough that the
offender should know that the offended party was exercising some form of
authority. It is not necessary that the
offender knows what is meant by person in authority or an agent of one because ignorantia
legis neminem excusat.
Article
149. Indirect Assault
Elements
1. A person in
authority or his agent is the victim of any of the forms of direct assault
defined in Article 148;
2. A person comes to
the aid of such authority or his agent;
3. Offender makes use
of force or intimidation upon such person coming to the aid of the authority or
his agent.
The victim in
indirect assault should be a private person who comes in aid of an agent of a
person in authority. The assault is upon a person who comes in aid of the person
in authority. The victim cannot be the
person in authority or his agent.
There is no
indirect assault when there is no direct assault.
Take note that
under Article 152, as amended, when any person comes in aid of a person in
authority, said person at that moment is no longer a civilian – he is
constituted as an agent of the person in authority. If such person were the one attacked, the
crime would be direct assault.
Due to the
amendment of Article 152, without the corresponding amendment in Article 150,
the crime of indirect assault can only be committed when assault is upon a
civilian giving aid to an agent of the person in authority. He does not become another agent of the
person in authority.
Article
150. Disobedience to Summons Issued by Congress,
Its Committees or Subcommittees, by the Constitutional Commissions, Its
Committees, Subcommittees or Divisions
Acts punished
1. By refusing, without legal excuse, to obey
summons of Congress, its special or standing committees and subcommittees, the
Constitutional Commissions and its committees, subcommittees or divisions, or
by any commission or committee chairman or member authorized to summon
witnesses;
2. By
refusing to be sworn or placed under affirmation while being before such
legislative or constitutional body or official;
3. By
refusing to answer any legal inquiry or to produce any books, papers,
documents, or records in his possession, when required by them to do so in the
exercise of their functions;
4. By
restraining another from attending as a witness in such legislative or
constitutional body;
5. By inducing disobedience to a summons or
refusal to be sworn by any such body or official.
Article
151. Resistance and Disobedience to A
Person in Authority or the Agents of Such Person
Elements of resistance and serious disobedience
under the first paragraph
1. A person
in authority or his agent is engaged in the performance of official duty or
gives a lawful order to the offender;
2. Offender resists or seriously disobeys such
person in authority or his agent;
3. The act
of the offender is not included in the provision of Articles 148, 149 and 150.
Elements of
simple disobedience under the second paragraph
1. An agent of a person in authority is engaged
in the performance of official duty or gives a lawful order to the offender;
2. Offender disobeys such agent of a person in
authority;
3. Such disobedience is not of a serious nature.
Distinction
between resistance or serious disobedience and direct assault
1. In resistance, the person
in authority or his agent must be in actual performance of his duties.
In direct assault, the person in authority or his agent must be engaged
in the performance of official duties or that he is assaulted by reason
thereof.
2. Resistance or serious
disobedience is committed only by resisting or seriously disobeying a person in
authority or his agent.
Direct assault (the second form) is committed in four ways, that is,
(1) by attacking, (2) by employing force, (3) by seriously intimidating, and
(4) by seriously resisting a persons in authority or his agent.
3. In both resistance
against an agent of a person in authority and direct assault by resisting an
agent of a person in authority, there is force employed, but the use of force
in resistance is not so serious, as there is no manifest intention to defy the
law and the officers enforcing it.
The attack or employment of force which gives rise to the crime of
direct assault must be serious and deliberate; otherwise, even a case of simple
resistance to an arrest, which always requires the use of force of some kind,
would constitute direct assault and the lesser offense of resistance or
disobedience in Article 151 would entirely disappear.
But when the one resisted is a person I authority, the use of any kind
or degree of force will give rise to direct assault.
If no force is employed by the offender in resisting or disobeying a
person in authority, the crime committed is resistance or serious disobedience
under the first paragraph of Article 151.
Who are deemed
persons in authority and agents of persons in authority under Article 152
A person in
authority is one directly vested with jurisdiction, that is, the power and
authority to govern and execute the laws.
An agent of a
person in authority is one charged with (1) the maintenance of public order and
(2) the protection and security of life and property.
Examples of
persons in authority
1.
Municipal mayor;
2.
Division superintendent of schools;
3.
Public and private school teachers;
4.
Teacher-nurse;
5.
President of sanitary division;
6.
Provincial fiscal;
7.
Justice of the Peace;
8.
Municipal councilor;
9.
Barrio captain and barangay chairman.
Article
153. Tumults and Other Disturbances of
Public Order
Acts
Punished
1. Causing any serious
disturbance in a public place, office or establishment;
2. Interrupting or
disturbing performances, functions or gatherings, or peaceful meetings, if the
act is not included in Articles 131 and 132;
3. Making any outcry
tending to incite rebellion or sedition in any meeting, association or public place;
4. Displaying placards or emblems which provoke
a disturbance of public order in such place;
5. Burying with pomp the body of a person who
has been legally executed.
The essence is creating public disorder.
This crime is brought about by creating serious disturbances in public
places, public buildings, and even in private places where public functions or
performances are being held.
For a crime to be under this article, it must not fall under Articles 131
(prohibition, interruption, and dissolution of peaceful meetings) and 132
(interruption of religious worship).
In
the act of making outcry during speech tending to incite rebellion or sedition,
the situation must be distinguished from inciting to sedition or rebellion. If
the speaker, even before he delivered his speech, already had the criminal
intent to incite the listeners to rise to sedition, the crime would be inciting
to sedition. However, if the offender
had no such criminal intent, but in the course of his speech, tempers went high
and so the speaker started inciting the audience to rise in sedition against
the government, the crime is disturbance of the public order.
The disturbance
of the pubic order is tumultuous and the penalty is increased if it is brought
about by armed men. The term “armed”
does not refer to firearms but includes even big stones capable of causing
grave injury.
It is also
disturbance of the public order if a convict legally put to death is buried
with pomp. He should not be made out as
a martyr; it might incite others to hatred.
Article 154. Unlawful Use of Means of Publication and
Unlawful Utterances
Acts punished
1. Publishing or causing to be published, by
means of printing, lithography or any other means of publication, as news any
false news which may endanger the public order; or cause damage to the interest
or credit of the State;
2. Encouraging
disobedience to the law or to the constituted authorities or praising,
justifying or extolling any act punished by law, by the same means or by words,
utterances or speeches;
3. Maliciously publishing or causing to be published any official
resolution or document without proper authority, or before they have been
published officially;
4. Printing,
publishing or distributing (or causing the same) books, pamphlets, periodicals,
or leaflets which do not bear the real printer’s name, or which are classified
as anonymous.
Actual public
disorder or actual damage to the credit of the State is not necessary.
Republic Act No. 248 prohibits the reprinting, reproduction or republication of government
publications and official documents without previous authority.
Article 155.
Alarms and Scandals
Acts Punished
1. Discharging any firearm, rocket, firecracker,
or other explosive within any town or public place, calculated to cause (which
produces) alarm of danger;
2. Instigating
or taking an active part in any charivari or other disorderly meeting offensive
to another or prejudicial to public tranquility;
3. Disturbing the public peace while wandering
about at night or while engaged in any other nocturnal amusements;
4. Causing
any disturbance or scandal in public places while intoxicated or otherwise,
provided Article 153 in not applicable.
When a person discharges a firearm in
public, the act may constitute any of the possible crimes under the Revised
Penal Code:
(1)
Alarms and scandals if the firearm when discharged
was not directed to any particular person;
(2)
Illegal discharge of firearm under Article 254 if
the firearm is directed or pointed to a particular person when discharged but
intent to kill is absent;
(3) Attempted homicide,
murder, or parricide if the firearm when discharged is directed against a
person and intent to kill is present.
In this
connection, understand that it is not necessary that the offended party be
wounded or hit. Mere discharge of
firearm towards another with intent to kill already amounts to attempted
homicide or attempted murder or attempted parricide. It can not be frustrated because the offended
party is not mortally wounded.
In Araneta v.
Court of Appeals, it was held that if
a person is shot at and is wounded, the crime is automatically attempted
homicide. Intent to kill is inherent in
the use of the deadly weapon.
The crime
alarms and scandal is only one crime. Do
not think that alarms and scandals are two crimes.
Scandal here
does not refer to moral scandal; that one is
grave scandal in Article 200. The
essence of the crime is disturbance of public tranquility and public
peace. So, any kind of disturbance of
public order where the circumstance at the time renders the act offensive to
the tranquility prevailing, the crime is committed.
Charivari
is a mock serenade wherein the supposed serenaders use broken cans, broken
pots, bottles or other utensils thereby creating discordant notes. Actually,
it is producing noise, not music and so it also disturbs public
tranquility. Understand the nature of
the crime of alarms and scandals as one that disturbs public tranquility or
public peace. If the annoyance is
intended for a particular person, the crime is unjust vexation.
Even if the
persons involved are engaged in nocturnal activity like those playing patintero
at night, or selling balut, if they conduct their activity in such a way that
disturbs public peace, they may commit the crime of alarms and scandals.
Article
156. Delivering Prisoners from Jail
Elements
1. There is a person confined in a jail or penal
establishment;
2. Offender removes therefrom such person, or
helps the escape of such person.
Penalty of arresto mayor in its maximum
period to prision correccional in its minimum period is imposed if violence,
intimidation or bribery is used.
Penalty of arresto mayor if other means are
used.
Penalty decreased to the minimum period if
the escape of the prisoner shall take place outside of said establishments by
taking the guards by surprise.
In relation to infidelity in the custody of prisoners,
correlate the crime of delivering person from jail with infidelity in the
custody of prisoners punished under Articles 223, 224 and 225 of the Revised
Penal Code. In both acts, the offender
may be a public officer or a private citizen.
Do not think that infidelity in the custody of prisoners can only be
committed by a public officer and delivering persons from jail can only be
committed by private person. Both crimes
may be committed by public officers as well as private persons.
In both crimes,
the person involved may be a convict or a mere detention prisoner.
The only
point of distinction between the two crimes lies on whether the offender is the
custodian of the prisoner or not at the time the prisoner was made to escape. If the offender is the
custodian at that time, the crime is infidelity in the custody of
prisoners. But if the offender is not
the custodian of the prisoner at that time, even though he is a public officer,
the crime he committed is delivering prisoners from jail.
Liability
of the prisoner or detainee who escaped – When these crimes are committed,
whether infidelity in the custody of prisoners or delivering prisoners from
jail, the prisoner so escaping may also have criminal liability and this is so
if the prisoner is a convict serving sentence by final judgment. The crime of evasion of service of sentence
is committed by the prisoner who escapes if such prisoner is a convict serving
sentence by final judgment.
If the prisoner
who escapes is only a detention prisoner, he does not incur liability from
escaping if he does not know of the plan to remove him from jail. But if such prisoner knows of the plot to
remove him from jail and cooperates therein by escaping, he himself becomes
liable for delivering prisoners from jail as a principal by indispensable
cooperation.
If three
persons are involved – a stranger, the custodian and the prisoner – three
crimes are committed:
(1) Infidelity in the
custody of prisoners;
(2) Delivery of the
prisoner from jail; and
(3) Evasion of service of
sentence.
Article
157. Evasion of Service of Sentence
Elements
1. Offender is a convict by final judgment;
2. He is serving sentence which consists in the deprivation of liberty;
3. He evades service of his sentence by escaping during the term of his
imprisonment.
Qualifying circumstances as to penalty imposed
If such evasion or escape takes place –
1. By means
of unlawful entry (this should be “by scaling” - Reyes);
2. By
breaking doors, windows, gates, walls, roofs or floors;
3. By using
picklock, false keys, disguise, deceit, violence or intimidation; or
4. Through
connivance with other convicts or employees of the penal institution.
Evasion of
service of sentence has three forms:
(1) By simply leaving or
escaping from the penal establishment under Article 157;
(2) Failure to return within 48 hours after having left the penal
establishment because of a calamity, conflagration or mutiny and such calamity,
conflagration or mutiny has been announced as already passed under Article 158;
(3) Violating the condition
of conditional pardon under Article 159.
In leaving
or escaping from jail or prison, that the prisoner immediately returned is
immaterial. It is enough that he left
the penal establishment by escaping therefrom.
His voluntary return may only be mitigating, being analogous to voluntary
surrender. But the same will not absolve
his criminal liability.
Article
158. Evasion of Service of Sentence on
the Occasion of Disorders, Conflagrations, Earthquakes, or Other Calamities
Elements
1. Offender
is a convict by final judgment, who is confined in a penal institution;
2. There is
disorder, resulting from –
a. conflagration;
b. earthquake;
c. explosion;
or
d. similar catastrophe; or
e. mutiny in which he has not
participated;
3. He
evades the service of his sentence by leaving the penal institution where he is
confined, on the occasion of such disorder or during the mutiny;
4. He fails
to give himself up to the authorities within 48 hours following the issuance of
a proclamation by the Chief Executive announcing the passing away of such
calamity.
The
leaving from the penal establishment is not the basis of criminal
liability. It is the failure to return
within 48 hours after the passing of the calamity, conflagration or mutiny had
been announced. Under Article 158, those
who return within 48 hours are given credit or deduction from the remaining
period of their sentence equivalent to 1/5 of the original term of the
sentence. But if the prisoner fails to
return within said 48 hours, an added penalty, also 1/5, shall be imposed but
the 1/5 penalty is based on the remaining period of the sentence, not on the
original sentence. In no case shall that
penalty exceed six months.
Those who did
not leave the penal establishment are not entitled to the 1/5 credit. Only those who left and returned within the
48-hour period.
The mutiny
referred to in the second form of evasion of service of sentence does not
include riot. The mutiny referred to
here involves subordinate personnel rising against the supervisor within the
penal establishment. One who escapes
during a riot will be subject to Article 157, that is, simply leaving or
escaping the penal establishment.
Mutiny is one
of the causes which may authorize a convict serving sentence in the
penitentiary to leave the jail provided he has not taken part in the mutiny.
The crime
of evasion of service of sentence may be committed even if the sentence is
destierro, and this is committed if the convict sentenced to destierro will
enter the prohibited places or come within the prohibited radius of 25
kilometers to such places as stated in the judgment.
If the sentence
violated is destierro, the penalty upon the convict is to be served by way of
destierro also, not imprisonment. This
is so because the penalty for the evasion can not be more severe than the
penalty evaded.
Article 159. Other Cases of
Evasion of Service of Sentence
Elements of
violation of conditional pardon
1. Offender
was a convict;
2. He was
granted pardon by the Chief Executive;
3. He
violated any of the conditions of such pardon.
In
violation of conditional pardon, as a rule, the violation will amount to this
crime only if the condition is violated during the remaining period of the
sentence. As a rule, if the condition
of the pardon is violated when the remaining unserved portion of the sentence
has already lapsed, there will be no more criminal liability for the
violation. However, the convict maybe
required to serve the unserved portion of the sentence, that is, continue
serving original penalty.
The
administrative liability of the convict under the conditional pardon is
different and has nothing to do with his criminal liability for the evasion of
service of sentence in the event that the condition of the pardon has been
violated. Exception: where the violation
of the condition of the pardon will constitute evasion of service of sentence,
even though committed beyond the remaining period of the sentence. This is when the conditional pardon expressly
so provides or the language of the conditional pardon clearly shows the
intention to make the condition perpetual even beyond the unserved portion of
the sentence. In such case, the convict
may be required to serve the unserved portion of the sentence even though the
violation has taken place when the sentence has already lapsed.
In order that
the conditional pardon may be violated, it is conditional that the pardonee
received the conditional pardon. If he
is released without conformity to the conditional pardon, he will not be liable
for the crime of evasion of service of sentence.
Question & Answer
Is the
violation of conditional pardon a substantive offense?
Under Article
159, there are two situations provided:
(1) There is a penalty of
prision correccional minimum for the violation of the conditional pardon;
(2) There
is no new penalty imposed for the violation of the conditional pardon. Instead, the convict will be required to
serve the unserved portion of the sentence.
If the remitted
portion of the sentence is less than six years or up to six years, there is an
added penalty of prision correccional minimum for the violation of the
conditional pardon; hence, the violation is a substantive offense if the
remitted portion of the sentence does not exceed six years because in this case
a new penalty is imposed for the violation of the conditional pardon.
But if the
remitted portion of the sentence exceeds six years, the violation of the
conditional pardon is not a substantive offense because no new penalty is
imposed for the violation.
In other words,
you have to qualify your answer.
The Supreme
Court, however, has ruled in the case of Angeles v. Jose that this is
not a substantive offense. This has been
highly criticized.
Article
160. Commission of Another Crime During
Service of Penalty Imposed for Another Previous Offense
Elements
1. Offender
was already convicted by final judgment of one offense;
2. He
committed a new felony before beginning to serve such sentence or while serving
the same.
TITLE IV. CRIMES AGAINST PUBLIC INTEREST
Crimes against public interest
1. Counterfeiting
the great seal of the Government of the Philippines
2. Using
forged signature or counterfeiting seal or stamp (Art. 162);
3. Making and importing and uttering false coins
(Art. 163);
4. Mutilation
of coins, importation and uttering of mutilated coins (Art. 164);
5. Selling
of false or mutilated coins, without connivance (Art. 165);
6. Forging
treasury or bank notes or other documents payable to bearer, importing and
uttering of such false or forged notes and documents (Art. 166);
7. Counterfeiting,
importing and uttering instruments not payable to bearer (Art. 167);
8. Illegal possession and use of forged treasury or bank notes and
other instruments of credit (Art. 168);
9. Falsification
of legislative documents (Art. 170);
10. Falsification
by public officer, employee or notary (Art. 171);
11. Falsification
by private individuals and use of falsified documents (Art. 172);
12. Falsification
of wireless, cable, telegraph and telephone messages and use of said falsified
messages (Art. 173);
13. False
medical certificates, false certificates of merit or service (Art. 174);
14. Using
false certificates (Art. 175);
15. Manufacturing
and possession of instruments or implements for falsification (Art. 176);
16. Usurpation
of authority or official functions (Art. 177);
17. Using fictitious name and concealing true name
(Art. 178);
18. Illegal
use of uniforms or insignia (Art. 179);
19. False
testimony against a defendant (Art. 180);
20. False
testimony favorable to the defendant (Art. 181);
21. False
testimony in civil cases (Art. 182);
22. False
testimony in other cases and perjury (Art. 183);
23. Offering
false testimony in evidence (Art. 184);
24. Machinations
in public auction (Art. 185);
25. Monopolies
and combinations in restraint of trade (Art. 186);
26. Importation
and disposition of falsely marked articles or merchandise made of gold, silver,
or other precious metals or their alloys (Art. 187);
27. Substituting
and altering trademarks and trade names or service marks (Art. 188);
28. Unfair
competition and fraudulent registration of trademark or trade name, or service
mark; fraudulent designation of origin, and false description (Art. 189).
The crimes in
this title are in the nature of fraud or falsity to the public. The essence of the crime under this title is that
which defraud the public in general.
There is deceit perpetrated upon the public. This is the act that is being punished under
this title.
Article
161. Counterfeiting the Great Seal of
the Government of the Philippine Islands ,
Forging the Signature or Stamp of the Chief Executive
Acts punished
1. Forging
the great seal of the Government of the Philippines
2. Forging
the signature of the President;
3. Forging
the stamp of the President.
Article
162. Using Forged Signature or
Counterfeit Seal or Stamp
Elements
1. The
great seal of the Republic was counterfeited or the signature or stamp of the
Chief Executive was forged by another person;
2. Offender
knew of the counterfeiting or forgery;
3. He used the counterfeit seal or forged
signature or stamp.
Offender under
this article should not be the forger.
Article
163. Making and Importing and Uttering
False Coins
Elements
1. There be
false or counterfeited coins;
2. Offender either made, imported or uttered
such coins;
3. In case
of uttering such false or counterfeited coins, he connived with the
counterfeiters or importers.
Kinds of coins
the counterfeiting of which is punished
1. Silver coins of the Philippines or coins of the Central Bank of the Philippines
2. Coins of
the minor coinage of the Philippines
or of the Central Bank of the Philippines
3. Coin of
the currency of a foreign country.
Article
164. Mutilation of Coins
Acts punished
1. Mutilating coins of the legal currency, with the further
requirements that there be intent to damage or to defraud another;
2. Importing
or uttering such mutilated coins, with the further requirement that there must
be connivances with the mutilator or importer in case of uttering.
The first acts
of falsification or falsity are –
(1) Counterfeiting – refers
to money or currency;
(2) Forgery – refers to
instruments of credit and obligations and securities issued by the Philippine
government or any banking institution authorized by the Philippine government
to issue the same;
(3) Falsification – can
only be committed in respect of documents.
In so far as
coins in circulation are concerned, there are two crimes that may be committed:
(1) Counterfeiting coins --
This is the crime of remaking or manufacturing without any authority to do so.
In the crime of
counterfeiting, the law is not concerned with the fraud upon the public such
that even though the coin is no longer legal tender, the act of imitating or
manufacturing the coin of the government is penalized. In punishing the crime of counterfeiting, the
law wants to prevent people from trying their ingenuity in their imitation of
the manufacture of money.
It is not
necessary that the coin counterfeited be legal tender. So that even if the coin counterfeited is of
vintage, the crime of counterfeiting is committed. The reason is to bar the counterfeiter from
perfecting his craft of counterfeiting.
The law punishes the act in order to discourage people from ever attempting
to gain expertise in gaining money. This
is because if people could counterfeit money with impunity just because it is
no longer legal tender, people would try to counterfeit non-legal tender
coins. Soon, if they develop the
expertise to make the counterfeiting more or less no longer discernible or no
longer noticeable, they could make use of their ingenuity to counterfeit coins
of legal tender. From that time on, the
government shall have difficulty determining which coins are counterfeited and
those which are not. It may happen that
the counterfeited coins may look better than the real ones. So, counterfeiting is penalized right at the
very start whether the coin is legal tender or otherwise.
Question & Answer
X has in his
possession a coin which was legal tender at the time of Magellan and is
considered a collector’s item. He
manufactured several pieces of that coin.
Is the crime committed?
Yes. It is not necessary that the coin be of legal
tender. The provision punishing
counterfeiting does not require that the money be of legal tender and the law
punishes this even if the coin concerned is not of legal tender in order to
discourage people from practicing their ingenuity of imitating money. If it were otherwise, people may at the
beginning try their ingenuity in imitating money not of legal tender and once
they acquire expertise, they may then counterfeit money of legal tender.
(2) Mutilation of coins --
This refers to the deliberate act of diminishing the proper metal contents of
the coin either by scraping, scratching or filling the edges of the coin and
the offender gathers the metal dust that has been scraped from the coin.
Requisites
of mutilation under the Revised Penal Code
(1) (1) Coin mutilated is of legal tender;
(2) Offender gains from the
precious metal dust abstracted from the coin; and
(3) It has to be a coin.
Mutilation is
being regarded as a crime because the coin, being of legal tender, it is still
in circulation and which would necessarily prejudice other people who may come
across the coin. For example, X
mutilated a P 2.00 coin, the octagonal one, by converting it into a round one
and extracting 1/10 of the precious metal dust from it. The coin here is no longer P2.00 but only P
1.80, therefore, prejudice to the public has resulted.
There is no
expertise involved here. In mutilation
of coins under the Revised Penal Code, the offender does nothing but to scrape,
pile or cut the coin and collect the dust and, thus, diminishing the intrinsic
value of the coin.
Mutilation of
coins is a crime only if the coin mutilated is legal tender. If the coin whose metal content has been
depreciated through scraping, scratching, or filing the coin and the offender
collecting the precious metal dust, even if he would use the coin after its
intrinsic value had been reduced, nobody will accept the same. If it is not legal tender anymore, no one
will accept it, so nobody will be defrauded.
But if the coin is of legal tender, and the offender minimizes or
decreases the precious metal dust content of the coin, the crime of mutilation
is committed.
In the example,
if the offender has collected 1/10 of the P 2.00 coin, the coin is actually
worth only P 1.80. He is paying only
P1.80 in effect defrauding the seller of P .20.
Punishment for mutilation is brought about by the fact that the
intrinsic value of the coin is reduced.
The offender
must deliberately reduce the precious metal in the coin. Deliberate intent arises only when the
offender collects the precious metal dust from the mutilated coin. If the offender does not collect such dust,
intent to mutilate is absent, but Presidential Decree No. 247 will apply.
Presidential
Decree No. 247 (Defacement, Mutilation, Tearing, Burning or Destroying Central
Bank Notes and Coins)
It shall be
unlawful for any person to willfully deface, mutilate, tear, burn, or destroy
in any manner whatsoever, currency notes and coins issued by the Central Bank.
Mutilation
under the Revised Penal Code is true only to coins. It cannot be a crime under the Revised Penal
Code to mutilate paper bills because the idea of mutilation under the code is
collecting the precious metal dust.
However, under Presidential Decree No. 247, mutilation is not limited to
coins.
Questions & Answers
1. The people playing cara y cruz, before they throw the coin in the air
would rub the money to the sidewalk thereby diminishing the intrinsic value of
the coin. Is the crime of mutilation
committed?
Mutilation, under the Revised Penal Code, is not committed because they
do not collect the precious metal content that is being scraped from the coin. However, this will amount to violation of
Presidential Decree No. 247.
2. When the image of Jose Rizal on a five-peso bill is transformed into
that of Randy Santiago, is there a violation of Presidential Decree No. 247?
Yes. Presidential Decree No. 247
is violated by such act.
3. Sometime before martial law was imposed, the people lost confidence in
banks that they preferred hoarding their money than depositing it in
banks. Former President Ferdinand Marcos
declared upon declaration of martial law that all bills without the Bagong
Lipunan sign on them will no longer be recognized. Because of this, the people had no choice but
to surrender their money to banks and exchange them with those with the Bagong
Lipunan sign on them. However, people
who came up with a lot of money were also being charged with hoarding for which
reason certain printing presses did the stamping of the Bagong Lipunan sign
themselves to avoid prosecution. Was
there a violation of Presidential Decree No. 247?
Yes. This act of the printing
presses is a violation of Presidential Decree No. 247.
4. An old woman who was a cigarette vendor in Quiapo refused to accept
one-centavo coins for payment of the vendee of cigarettes he purchased. Then came the police who advised her that she
has no right to refuse since the coins are of legal tender. On this, the old woman accepted in her hands
the one-centavo coins and then threw it to the face of the vendee and the
police. Was the old woman guilty of
violating Presidential Decree No. 247?
She was guilty of violating Presidential Decree No. 247 because if no
one ever picks up the coins, her act would result in the diminution of the coin
in circulation.
5. A certain customer in a restaurant wanted to show off and used a P
20.00 bill to light his cigarette. Was
he guilty of violating Presidential Decree No. 247?
He was guilty of arrested for violating of Presidential Decree No.
247. Anyone who is in possession of
defaced money is the one who is the violator of Presidential Decree No.
247. The intention of Presidential
Decree No. 247 is not to punish the act of defrauding the public but what is
being punished is the act of destruction of money issued by the Central Bank of
the Philippines
Note that
persons making bracelets out of some coins violate Presidential Decree No. 247.
The primary
purpose of Presidential Decree No. 247 at the time it was ordained was to stop
the practice of people writing at the back or on the edges of the paper bills,
such as "wanted: pen pal".
So, if the act
of mutilating coins does not involve gathering dust like playing cara y cruz,
that is not mutilation under the Revised Penal Code because the offender does
not collect the metal dust. But by
rubbing the coins on the sidewalk, he also defaces and destroys the coin and
that is punishable under Presidential Decree No. 247.
Article
165. Selling of False or Mutilated Coin,
without Connivance
Acts punished
1. Possession of coin, counterfeited or
mutilated by another person, with intent to utter the same, knowing that it is
false or mutilated;
Elements
a. Possession;
b. With intent to utter; and
c. Knowledge.
2. Actually uttering such false or mutilated
coin, knowing the same to be false or mutilated.
Elements
a. Actually uttering; and
b. Knowledge.
Article
166. Forging Treasury or Bank Notes or
Other Documents Payable to Bearer; Importing and Uttering Such False or Forged
Notes and Documents
Acts punished
1. Forging
or falsification of treasury or bank notes or other documents payable to
bearer;
2. Importation
of such false or forged obligations or notes;
3. Uttering
of such false or forged obligations or notes in connivance with the forgers or
importers.
Article
167. Counterfeiting, Importing, and
Uttering Instruments Not Payable to Bearer
Elements
1. There is an instrument payable to order or other documents of credit
not payable to bearer;
2. Offender either forged, imported or uttered such instrument;
3. In case of uttering, he connived with the forger or importer.
Article
168. Illegal Possession and Use of False
Treasury or Bank Notes and Other Instruments of Credit
Elements
1. Any
treasury or bank note or certificate or other obligation and security payable
to bearer, or any instrument payable to order or other document of credit not
payable to bearer is forged or falsified by another person;
2. Offender
knows that any of those instruments is forged or falsified;
3. He
either –
a. uses any of such forged or
falsified instruments; or
b. possesses with intent to use
any of such forged or falsified instruments
How forgery is
committed under Article 169
1.
By giving to a treasury or bank note or any
instrument payable to bearer or to order mentioned therein, the appearance of a
true and genuine document;
2. By erasing,
substituting, counterfeiting, or altering by any means the figures, letters,
words, or sign contained therein.
Forgery under
the Revised Penal Code applies to papers, which are in the form of obligations
and securities issued by the Philippine government as its own obligations,
which is given the same status as legal tender. Generally, the word
“counterfeiting” is not used when it comes to notes; what is used is
“forgery.” Counterfeiting refers to
money, whether coins or bills.
The Revised
Penal Code defines forgery under Article 169.
Notice that mere change on a document does not amount to this
crime. The essence of forgery is giving
a document the appearance of a true and genuine document. Not any alteration of a letter, number,
figure or design would amount to forgery.
At most, it would only be frustrated forgery.
When what is
being counterfeited is obligation or securities, which under the Revised Penal
Code is given a status of money or legal tender, the crime committed is
forgery.
Questions & Answers
1. Instead of the peso sign (P),
somebody replaced it with a dollar sign ($).
Was the crime of forgery committed?
No. Forgery was not
committed. The forged instrument and
currency note must be given the appearance of a true and genuine document. The crime committed is a violation of
Presidential Decree No. 247. Where the
currency note, obligation or security has been changed to make it appear as one
which it purports to be as genuine, the crime is forgery. In checks or commercial documents, this crime
is committed when the figures or words are changed which materially alters the
document.
2. An old man, in his desire to earn something, scraped a digit in a
losing sweepstakes ticket, cut out a digit from another ticket and pasted it
there to match the series of digits corresponding to the winning sweepstakes
ticket. He presented this ticket to the
Philippine Charity Sweepstakes Office.
But the alteration is so crude that even a child can notice that the
supposed digit is merely superimposed on the digit that was scraped. Was the old man guilty of forgery?
Because of the impossibility of deceiving whoever would be the person
to whom that ticket is presented, the Supreme Court ruled that what was
committed was an impossible crime. Note,
however, that the decision has been criticized.
In a case like this, the Supreme Court of Spain ruled that the crime is
frustrated. Where the alteration is such
that nobody would be deceived, one could easily see that it is a forgery, the
crime is frustrated because he has done all the acts of execution which would
bring about the felonious consequence but nevertheless did not result in a
consummation for reasons independent of his will.
3. A person has a twenty-peso bill.
He applied toothache drops on one side of the bill. He has a mimeograph paper similar in texture
to that of the currency note and placed it on top of the twenty-peso bill and
put some weight on top of the paper.
After sometime, he removed it and the printing on the twenty-peso bill
was reproduced on the mimeo paper. He
took the reverse side of the P20 bill, applied toothache drops and reversed the
mimeo paper and pressed it to the paper.
After sometime, he removed it and it was reproduced. He cut it out, scraped it a little and went
to a sari-sari store trying to buy a cigarette with that bill. What he
overlooked was that, when he placed the bill, the printing was inverted. He was apprehended and was prosecuted and
convicted of forgery. Was the crime of
forgery committed?
The Supreme Court ruled that it was only frustrated forgery because although
the offender has performed all the acts of execution, it is not possible
because by simply looking at the forged document, it could be seen that it is
not genuine. It can only be a
consummated forgery if the document which purports to be genuine is given the
appearance of a true and genuine document.
Otherwise, it is at most frustrated.
Article
170. Falsification of Legislative
Documents
Elements
1. There is
a bill, resolution or ordinance enacted or approved or pending approval by
either House of the Legislature or any provincial board or municipal council;
2. Offender
alters the same;
3. He has
no proper authority therefor;
4. The
alteration has changed the meaning of the documents.
The words
"municipal council" should include the city council or municipal
board – Reyes.
The crime of
falsification must involve a writing that is a document in the legal
sense. The writing must be complete in
itself and capable of extinguishing an obligation or creating rights or capable
of becoming evidence of the facts stated therein. Until and unless the writing has attained
this quality, it will not be considered as document in the legal sense and,
therefore, the crime of falsification cannot be committed in respect thereto.
Five classes of
falsification:
(1) Falsification of
legislative documents;
(2) Falsification of a
document by a public officer, employee or notary public;
(3) Falsification of a
public or official, or commercial documents by a private individual;
(4) Falsification of a
private document by any person;
(5) Falsification of
wireless, telegraph and telephone messages.
Distinction between falsification and forgery:
Falsification
is the commission of any of the eight acts mentioned in Article 171 on
legislative (only the act of making alteration), public or official,
commercial, or private documents, or wireless, or telegraph messages.
The term
forgery as used in Article 169 refers to the falsification and counterfeiting
of treasury or bank notes or any instruments payable to bearer or to
order.
Note that
forging and falsification are crimes under Forgeries.
Article 171.
Falsification by Public Officer, Employee or Notary or Ecclesiastical Minister
Elements
1. Offender
is a public officer, employee, or notary public;
2. He takes
advantage of his official position;
3. He
falsifies a document by committing any of the following acts:
a. Counterfeiting or imitating
any handwriting, signature or rubric;
b. Causing it to appear that
persons have participated in any act or proceeding when they did not in fact so
participate;
c. Attributing to persons who
have participated in an act or proceeding statements other than those in fact
made by them;
d. Making untruthful statements
in a narration of facts;
e. Altering true dates;
f. Making any alteration or
intercalation in a genuine document which changes its meaning;
g. Issuing in an authenticated
form a document purporting to be a
copy of an original document when no such original exists, or including in such
a copy a statement contrary to, or different from, that of the genuine
original; or
h. Intercalating any instrument
or note relative to the issuance thereof in a protocol, registry, or official
book.
4. In case the offender is an ecclesiastical
minister who shall commit any of the offenses enumerated, with respect to any
record or document of such character that its falsification may affect the
civil status of persons.
For example, a
customer in a hotel did not write his name on the registry book, which was
intended to be a memorial of those who got in and out of that hotel. There is
no complete document to speak of. The
document may not extinguish or create rights but it can be an evidence of the
facts stated therein.
Note that a
check is not yet a document when it is not completed yet. If somebody writes on it, he makes a document
out of it.
The document
where a crime was committed or the document subject of the prosecution may be
totally false in the sense that it is entirely spurious. This notwithstanding, the crime of
falsification is committed.
It does not
require that the writing be genuine.
Even if the writing was through and through false, if it appears to be
genuine, the crime of falsification is nevertheless committed.
Questions & Answers
1. A is one of those selling residence certificates in Quiapo. He was brought to the police precincts on
suspicion that the certificates he was selling to the public proceed from
spurious sources and not from the Bureau of Treasury. Upon verification, it was found out that the
certificates were indeed printed with a booklet of supposed residence
certificates. What crime was committed?
Crime committed is violation of Article 176 (manufacturing and
possession of instruments or implements for falsification). A cannot be charged of falsification because
the booklet of residence certificates found in his possession is not in the
nature of “document” in the legal sense.
They are mere forms which are not to be completed to be a document in
the legal sense. This is illegal possession
with intent to use materials or apparatus which may be used in
counterfeiting/forgery or falsification.
2. Public officers found a traffic violation receipts from a certain
person. The receipts were not issued by
the Motor Vehicle Office. For what crime
should he be prosecuted for?
It cannot be a crime of usurpation of official functions. It may be the intention but no overt act was
yet performed by him. He was not
arrested while performing such overt act.
He was apprehended only while he was standing on the street
suspiciously. Neither can he be
prosecuted for falsification because the document is not completed yet, there
being no name of any erring driver. The
document remains to be a mere form. It
not being completed yet, the document does not qualify as a document in the
legal sense.
3. Can the writing on the wall be considered a document?
Yes. It is capable of speaking
of the facts stated therein. Writing may
be on anything as long as it is a product of the handwriting, it is considered a
document.
4. In a case where a lawyer tried to extract money from a spinster by
typing on a bond paper a subpoena for estafa.
The spinster agreed to pay. The
spinster went to the prosecutor’s office to verify the exact amount and found
out that there was no charge against her. The lawyer was prosecuted for
falsification. He contended that only a
genuine document could be falsified.
Rule.
As long as any of the acts of falsification is committed, whether the
document is genuine or not, the crime of falsification may be committed. Even totally false documents may be
falsified.
There are
four kinds of documents:
(1) Public document in the
execution of which, a person in authority or notary public has taken part;
(2) Official document in
the execution of which a public official takes part;
(3) Commercial document or
any document recognized by the Code of Commerce or any commercial law; and
(4) Private document in the
execution of which only private individuals take part.
Public document
is broader than the term official document.
Before a document may be considered official, it must first be a public
document. But not all public documents
are official documents. To become an
official document, there must be a law which requires a public officer to issue
or to render such document.
Example: A cashier is required
to issue an official receipt for the amount he receives. The official receipt is a public document
which is an official document.
Article 172. Falsification by Private
Individual and Use of Falsified Documents
Acts punished
1. Falsification of public, official or
commercial document by a private individual;
2. Falsification of private document by any
person;
3. Use of falsified document.
Elements under paragraph 1
1.
Offender is a
private individual or public officer or employee who did not take advantage of
his official position;
2.
He committed
any act of falsification;
3.
The
falsification was committed in a public, official, or commercial document or
letter of exchange.
Elements under paragraph 2
1.
Offender
committed any of the acts of falsification except Article 171(7), that is,
issuing in an authenticated form a document purporting to be a copy of an
original document when no such original exists, or including in such a copy a
statement contrary to, or different from, that of the genuine original;
2.
Falsification
was committed in any private document;
3.
Falsification
causes damage to a third party or at least the falsification was committed with
intent to cause such damage.
Elements under the last paragraph
In introducing in a judicial proceeding –
1. Offender knew that
the document was falsified by another person;
2. The false document
is in Articles 171 or 172 (1 or 2);
3. He introduced said
document in evidence in any judicial proceeding.
In use
in any other transaction –
1. Offender knew that a
document was falsified by another person;
2. The false document
is embraced in Articles 171 or 172 (1 or 2);
3. He used such
document;
4. The use caused
damage to another or at least used with intent to cause damage.
Article 173. Falsification of Wireless,
Cable, Telegraph and Telephone Messages, and Use of Said Falsified
Messages
Acts punished
1. Uttering fictitious wireless, telegraph or
telephone message;
Elements
a. Offender is an officer or employee of the government
or an officer or employee of a private corporation, engaged in the service of
sending or receiving wireless, cable or telephone message;
b. He utters fictitious wireless, cable,
telegraph or telephone message.
2. Falsifying wireless, telegraph or telephone
message;
Elements
a. Offender is an officer or employee of the
government or an officer or employee of a private corporation, engaged in the
service of sending or receiving wireless, cable or telephone message;
b. He falsifies wireless, cable, telegraph or
telephone message.
3. Using such falsified message.
Elements
a. Offender knew that wireless, cable,
telegraph, or telephone message was falsified by an officer or employee of the
government or an officer or employee of a private corporation, engaged in the
service of sending or receiving wireless, cable or telephone message;
b. He used such falsified dispatch;
c. The use resulted in the prejudice of a third
party or at least there was intent to cause such prejudice.
Article 174. False Medical Certificates, False Certificates of Merits or
Service, Etc.
Persons liable
1.
Physician or
surgeon who, in connection with the practice of his profession, issues a false
certificate (it must refer to the illness or injury of a person);
[The crime here is false medical certificate by a
physician.]
2.
Public officer
who issues a false certificate of merit of service, good conduct or similar
circumstances;
[The crime here is false certificate of merit or
service by a public officer.]
3.
Private person
who falsifies a certificate falling within the classes mentioned in the two
preceding subdivisions.
Article 175. Using False Certificates
Elements
1. The
following issues a false certificate:
a. Physician or surgeon, in connection with the practice of his profession,
issues a false certificate;
b. Public officer issues a false certificate of merit of service, good
conduct or similar circumstances;
c. Private person falsifies a certificate falling within the classes
mentioned in the two preceding subdivisions.
2. Offender knows that
the certificate was false;
3. He uses the same.
Article 176. Manufacturing and Possession
of Instruments or Implements for Falsification
Acts punished
1. Making or introducing into the Philippines
2. Possession with intent to use the instruments
or implements for counterfeiting or falsification made in or introduced into
the Philippines
Article 177. Usurpation of Authority or Official Functions
Acts punished
1. Usurpation of authority;
Elements
a. Offender knowingly and
falsely represents himself;
b. As an officer, agent or
representative of any department or agency of the Philippine government or of
any foreign government.
2. Usurpation of official functions.
Elements
a. Offender performs any act;
b. Pertaining to any person in
authority or public officer of the Philippine government or any foreign
government, or any agency thereof;
c. Under pretense of official
position;
d. Without being lawfully
entitled to do so.
Article 178.
Using Fictitious Name and Concealing True Name
Acts punished
1. Using fictitious name
Elements
a. Offender uses a name other
than his real name;
b. He uses the fictitious name
publicly;
c. Purpose of use is to conceal
a crime, to evade the execution of a judgment or to cause damage [to public
interest – Reyes].
2. Concealing true name
Elements
a. Offender conceals his true name and other
personal circumstances;
b. Purpose is only to conceal his identity.
Commonwealth Act No. 142 (Regulating the
Use of Aliases)
No person shall use any name different from
the one with which he was registered at birth in the office of the local civil
registry, or with which he was registered in the bureau of immigration upon entry;
or such substitute name as may have been authorized by a competent court.
Exception: Pseudonym solely for literary,
cinema, television, radio, or other entertainment and in athletic events where
the use of pseudonym is a normally accepted practice.
Article 179. Illegal Use of Uniforms or Insignia
Elements
1. Offender makes use
of insignia, uniforms or dress;
2. The insignia,
uniforms or dress pertains to an office not held by such person or a class of
persons of which he is not a member;
3. Said insignia,
uniform or dress is used publicly and improperly.
Wearing the
uniform of an imaginary office is not punishable.
So also, an
exact imitation of a uniform or dress is unnecessary; a colorable resemblance
calculated to deceive the common run of people is sufficient.
Article
180. False Testimony against A Defendant
Elements
1. There is
a criminal proceeding;
2. Offender
testifies falsely under oath against the defendant therein;
3. Offender
who gives false testimony knows that it is false.
4. Defendant
against whom the false testimony is given is either acquitted or convicted in a
final judgment.
Three forms of
false testimony
1. False testimony in
criminal cases under Article 180 and 181;
2. False testimony in
civil case under Article 182;
3. False testimony in
other cases under Article 183.
Article
181. False Testimony Favorable to the
Defendant
Elements
1. A person
gives false testimony;
2. In favor
of the defendant;
3. In a
criminal case.
Article 182.
False Testimony in Civil Cases
Elements
1. Testimony given in a civil case;
2. Testimony relates to the issues presented in said case;
3. Testimony is false;
4. Offender knows that testimony is false;
5. Testimony is malicious and given with an intent to affect the issues
presented in said case.
Article 183.
False Testimony in Other Cases and Perjury in Solemn Affirmation
Acts punished
1. By falsely testifying under oath;
2. By making a false affidavit.
Elements of perjury
1. Offender makes a statement under oath or executes an affidavit upon a
material matter;
2. The statement or affidavit is made before a competent officer,
authorized to receive and administer oaths;
3. Offender makes a willful and deliberate assertion of a falsehood in the
statement or affidavit;
4. The sworn statement or affidavit containing the falsity is required by
law, that is, it is made for a legal purpose.
Article 184. Offering False Testimony in
Evidence
Elements
1. Offender offers in evidence a false witness or
testimony;
2. He knows that the witness or the testimony was
false;
3. The offer is made in any judicial or official
proceeding.
Article
185. Machinations in Public Auctions
Acts punished
1. Soliciting any gift or promise as a
consideration for refraining from taking part in any public auction;
Elements
a. There is a public auction;
b. Offender solicits any gift or
a promise from any of the bidders;
c. Such gift or promise is the
consideration for his refraining from taking part in that public auction;
d. Offender has the intent to
cause the reduction of the price of the thing auctioned.
2. Attempting to cause bidders to stay away from
an auction by threats, gifts, promises or any other artifice.
Elements
a. There is a public auction;
b. Offender attempts to cause
the bidders to stay away from that public auction;
c. It is done by threats,
gifts, promises or any other artifice;
d. Offender has the intent to
cause the reduction of the price of the thing auctioned.
Article
186. Monopolies and Combinations in
Restraint of Trade
Acts punished
1. Combination to prevent free competition in
the market;
Elements
a. Entering into any contract or
agreement or taking part in any conspiracy or combination in the form of a
trust or otherwise;
b. In restraint of trade or
commerce or to prevent by artificial means free competition in the market.
2. Monopoly to restrain free competition in the
market;
Elements
a. By monopolizing any
merchandise or object of trade or commerce, or by combining with any other
person or persons to monopolize said merchandise or object;
b. In order to alter the prices
thereof by spreading false rumors or making use of any other artifice;
c. To restrain free competition
in the market
3. Manufacturer,
producer, or processor or importer combining, conspiring or agreeing with any
person to make transactions prejudicial to lawful commerce or to increase the
market price of merchandise.
Elements
a. Manufacturer, producer, processor or importer of any merchandise
or object of commerce;
b. Combines, conspires or agrees
with any person;
c. Purpose is to make
transactions prejudicial to lawful commerce or to increase the market price of
any merchandize or object of commerce manufactured, produced, processed,
assembled or imported into the Philippines
Article
187. Importation and Disposition of Falsely
Marked Articles or Merchandise Made of Gold, Silver, or Other Precious Metals
of Their Alloys
Elements
1. Offender
imports, sells or disposes articles made of gold, silver, or other precious
metals or their alloys;
2. The
stamps, brands, or marks of those articles of merchandise fail to indicate the
actual fineness or quality of said metals or alloys;
3. Offender
knows that the stamps, brands, or marks fail to indicate the actual fineness or
quality of the metals or alloys.
Article
188. Substituting and Altering
Trademarks, Trade names, or Service Marks
Acts punished
1. Substituting
the trade name or trademark of some other manufacturer or dealer, or a
colorable imitation thereof for the trade name or trademark of the real
manufacturer or dealer upon any article of commerce and selling the same;
2. Selling
or offering for sale such articles of commerce knowing that the trade name or
trademark has been fraudulently used;
3. Using or
substituting the service mark of some other person, or a colorable imitation of
such mark n the sale or advertising of his services;
4. Printing, lithographing or reproducing trade
name, trademark, or service mark of one person or a colorable imitation thereof
to enable another person to fraudulently use the same knowing the fraudulent
purpose for which it is to be used.
Article
189. Unfair Competition, Fraudulent
Registration of Trade Name, Trademark, or Service Mark, Fraudulent Designation
of Origin, and False Description
Acts punished
1. Unfair competition;
Elements
a. By selling his goods;
b. Giving them the general
appearance of the goods of another manufacturer or dealer;
c. The general appearance is
shown in the goods themselves, or in the wrapping of their packages, or in the
device or words therein, or in any feature of their appearance;
d. There is actual intent to
deceive the public or defraud a competitor.
2. Fraudulent designation of origin; false
description:
Elements
a. By affixing to his goods or
using in connection with his services a false designation of origin, or any
false description or representation; and
b. Selling such goods or
services.
3. Fraudulent
registration
Elements
a. By procuring fraudulently
from the patent office;
b. The registration of trade
name, trademark or service mark
Republic Act
No. 8293 (An Act Prescribing the Intellectual Property Code and Establishing
the Intellectual Property Office, Providing for Its Power and Functions, and
for Other Purposes)
Section
170. Penalties.
– Independent of the civil and administrative sanctions imposed by law, a
criminal penalty of imprisonment from two (2) years to five (5) years and a
fine ranging from Fifty thousand pesos (P 50,000.00) to Two hundred thousand
pesos (P 200,000.00), shall be imposed on any person who is found guilty of
committing any of the acts mentioned in Section 155, Section 168 and Subsection
169.1.
Section
155. Remedies;
Infringement. – Any person who shall, without the consent of the owner of the
registered mark:
155.1. Use in commerce any
reproduction, counterfeit, copy, or colorable imitation of a registered mark or
the same container or a dominant feature thereof in connection with the sale,
offering for sale, distribution, advertising of any goods or services including
other preparatory steps necessary to carry out the sale of any goods or
services on or in connection with which such use is likely to course confusion,
or to cause mistake, or to deceive; or
155.2. Reproduce, counterfeit,
copy or colorably imitate a registered mark or a dominant feature thereof and
apply such reproduction, counterfeit, copy or colorable imitation to labels,
signs, prints, packages, wrappers, receptacles or advertisement intended to be
used in commerce upon or in connection with the sale, offering for sale,
distribution, or advertising of goods or services on or in connection with
which such use is likely to cause confusion, or to cause mistake, or to deceive
shall be liable in a civil action for infringement by the registrant for the
remedies hereinafter set forth: Provided, that the infringement takes place at
the moment any of the acts stated in Subsection 155.1 or this subsection are
committed regardless of whether there is actual sale of goods or services using
the infringing material.
Section
168. Unfair
Competition, Rights, Regulation and Remedies.
168.1. Any person who has identified in the mind of
the public the goods he manufactures or deals in, his business or services from
those of others, whether or not a registered mark is employed, has a property
right in the goodwill of the said goods, business or service so identified,
which will be protected in the same manner as other property rights.
168.2. Any person who shall employ deception or any
other means contrary to good faith by which he shall pass off the goods
manufactured by him or in which he deals, or his business, or services for
those of the one having established such goodwill, or who shall commit any acts
calculated to produce said result, shall be guilty of unfair competition, and
shall be subject to an action therefor.
168.3. In particular, and without in any way
limiting the scope of protection against unfair competition, the following
shall be deemed guilty of unfair competition:
(a) Any
person, who is selling his goods and gives them the general appearance of goods
of another manufacturer or dealer, either as to the goods themselves or in the
wrapping of the packages in which they are contained, or the devices or words
thereon, on in any other feature or their appearance, which would be likely to
influence purchasers to believe that the goods offered are those of a
manufacturer or dealer, other than the actual manufacturer or dealer, or who
otherwise clothes the goods with such appearance as shall deceive the public
and defraud another of his legitimate trade, or any subsequent vendor of such
goods or any agent of any vendor engaged in selling such goods with a like
purpose; or
(b) Any
person who by any artifice, or device, or who employs any other means
calculated to induce the false belief that such person is offering the services
of another who ahs identified such services in the mind of the public; or
(c) Any
person who shall make any false statement in the course of trade or who shall
commit any other act contrary to good faith of a nature calculated to discredit
the goods, business or services of another.
168.4. The remedies provided by Section 156, 157 and
161 shall apply mutatis mutandis.
Section
169. False
Designation or Origin; False Description or Representation.
169.1. Any person who, on or in connection with any
goods or services, or any container for goods, uses in commerce any word, term,
name, symbol, or device, or any combination thereof, or any false designation
of origin, false or misleading description of fact, or false or misleading
representation of fact, which:
(a) Is
likely to cause confusion, or to cause mistake, or to deceive as to the
affiliation, connection, or association of such person with another person, or
as to the origin, sponsorship, or approval of his or her goods, services, or
commercial activities by another person; or
(b) In
commercial advertising or promotion, misrepresents the nature, characteristics,
qualities, or geographic origin of his or her or another person's goods,
services or commercial activities, shall be liable to a civil action for
damages and injunction provided in Section 156 and 157 of this Act by any
person who believes that he or she is or likely to be damaged by such act.
TITLE V. CRIMES RELATIVE TO OPIUM AND OTHER PROHIBITED
DRUGS
Articles 190,
191, 192, 193 and194 of the Revised Penal Code have been repealed by Republic
Act No. 6425 (The Dangerous Drugs Act of 1972), as amended by Presidential
Decree No. 1683 and further amended by Republic Act No. 7659. Republic Act No.
6425, as amended has now recently been repealed by Republic Act No. 9165
(The Dangerous Drugs Act of 2002)
Acts
punished by the Republic Act No. 9165 (new additions are in italics)
1. Importation of Dangerous drugs and/or Controlled Precursors and Essential
Chemicals;
2. Sale
3. Maintenance of a den, dive or resort for prohibited drug users;
4. Being employees and visitors of prohibited drug den;
5. Manufacture of prohibited drugs and/or Controlled Precursors and
Essential Chemicals;
6. Illegal Chemical Diversion of Controlled Precursors and Essential
Chemicals
7. Manufacture or Delivery of Equipment, Instrument, Apparatus and Other Paraphernalia
for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals
8. Possession or use of prohibited drugs; (includes Ecstasy and its
derivatives)
9. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia
for Dangerous Drugs;
-
Except when possessed in the practice of a
profession
-
Possession prima facie evidence of drug use.
10. Possession of Dangerous Drugs During Parties, Social Gatherings or
Meetings;
-
At least in the proximate company of at least two
(2) persons
11. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia
for Dangerous Drugs During Parties, Social Gatherings and Meetings;
12. Use of Dangerous Drugs;
13. Cultivation or Culture of Plants Classified as Dangerous Drugs or are
Sources Thereof;
14. Maintenance and Keeping of Original Records of Transactions on
Dangerous Drugs and/or Controlled Precursors and Essential Chemicals;
15. Unnecessary Prescription of Dangerous Drugs;
16. Unlawful Prescription of Dangerous Drugs;
·
No more distinction between Dangerous and
Prohibited Drugs.
TITLE VI. CRIMES AGAINST PUBLIC MORALS
Crimes
against public morals
1. Gambling (Art. 195);
2. Importation, sale and possession of lottery tickets or advertisements
(Art. 196);
3. Betting in sport contests (Art. 197);
4. Illegal betting on horse races (Art. 198);
5. Illegal cockfighting (Art. 199);
6. Grave scandal (Art. 200);
7. Immoral doctrines, obscene publications and exhibitions (Art. 201); and
8. Vagrancy and prostitution (Art. 202)
Article 195. What Acts Are Punishable in
Gambling
Acts punished
1. Taking part directly or indirectly in –
a. any game of monte, jueteng, or any other form
of lottery, policy, banking, or percentage game, dog races, or any other game
or scheme the results of which depend wholly or chiefly upon chance or hazard;
or wherein wagers consisting of money, articles of value, or representative of
value are made; or
b. the exploitation or use of any other
mechanical invention or contrivance to determine by chance the loser or winner
of money or any object or representative of value;
2. Knowingly permitting any form of gambling to
be carried on in any place owned or controlled by the offender;
3. Being maintainer, conductor, or banker in a
game of jueteng or similar game;
4. Knowingly and without lawful purpose
possessing lottery list, paper, or other matter containing letters, figures,
signs or symbol which pertain to or are in any manner used in the game of
jueteng or any similar game.
Article 196. Importation, Sale
Acts punished
1.
Importing into
the Philippines
2.
Selling or
distributing the same in connivance with the importer;
3.
Possessing,
knowingly and with intent to use them, lottery tickets or advertisements; or
4.
Selling or
distributing the same without connivance with the importer of the same.
Note that possession of any lottery ticket or
advertisement is prima facie evidence of an intent to sell, distribute or use
the same in the Philippines
Article 197.
Betting in Sport Contests
This article has been repealed by Presidential
Decree No. 483 (Betting, Game-fixing or Point-shaving and Machinations in Sport
Contests):
Section 2. Betting, game-fixing, point-shaving or game
machination unlawful. – Game-fixing, point-shaving, game machination, as
defined in the preceding section, in connection with the games of basketball,
volleyball, softball, baseball; chess, boxing bouts, jai-alia, sipa, pelota and
all other sports contests, games or races; as well as betting therein except as
may be authorized by law, is hereby declared unlawful.
Article
198. Illegal Betting on Horse Race
Acts punished
1. Betting on horse races during periods not allowed by law;
2. Maintaining or employing a totalizer or other device or scheme for
betting on races or realizing profit therefrom during the periods not allowed
by law.
When horse races not allowed
1. July 4 (Republic Act No. 137);
2. December 30 (Republic Act No. 229);
3. Any registration or voting days (Republic Act No. 180, Revised Election
Code); and
4. Holy Thursday and Good Friday (Republic Act No. 946).
Article
199. Illegal Cockfighting
This article
has been modified or repealed by Presidential Decree No. 449 (The
Cockfighting Law of 1974):
·
Only allows one cockpit per municipality, unless
the population exceeds 100,000 in which case two cockpits may be established;
·
Cockfights can only be held in licensed cockpits
on Sundays and legal holidays and local fiestas for not more than three days;
·
Also allowed during provincial, municipal, city,
industrial, agricultural fairs, carnivals, or exposition not more than three
days;
·
Cockfighting not allowed on December 30, June 12,
November 30, Holy Thursday, Good Friday, Election or Referendum Day, and
registration days for referendums and elections;
·
Only municipal and city mayors are allowed to
issue licenses for such.
Presidential
Decree No. 1602 (Simplifying and Providing Stiffer Penalties for Violations of
Philippine Gambling Laws)
Section 1. Violations and Penalties. -- The penalty of
prision mayor in its medium degree or a fine ranging from Five Hundred Pesos to
Two Thousand Pesos and in case of recidivism the penalty of prision
correccional in its medium degree or a fine of ranging from One Thousand Pesos
to Six Thousand Pesos shall be imposed upon:
(a) Any person other than those referred to
in the succeeding subsection who in any manner, shall directly or indirectly
take part in any game of cockfighting, jueteng, bookies (jai- alai or horse
racing to include game fixing) and other lotteries, cara y cruz or pompiang and
the like, black jack, lucky nine, “pusoy” or Russian Poker, monte, baccarat and
other card games, palk que, domino, mahjong, high and low, slot machines,
roulette, pinball and other mechanical inventories or devices, dog racing, boat
racing, car raising and other races, basketball, volleyball, boxing,
seven-eleven dice games and the like and other contests to include game fixing,
point shaving and other machinations banking or percentage game, or any other
game or scheme, whether upon chance or skill, which do not have a franchise
from the national government, wherein wagers consisting of money, articles of
value of representative of value are made;
(b) Any person who shall knowingly permit
any form of gambling referred to in the preceding subdivision to be carried on
in inhabited or uninhabited places or any building, vessel or other means of
transportation owned or controlled by him. If the place where gambling is
carried on has a reputation of a gambling place or that prohibited gambling is
frequently carried on therein or the place is a public or government building
or barangay hall, the culprit shall be punished by the penalty provided for in
its maximum period and a fine of Six Thousand Pesos.
The penalty of prision correccional in its maximum degree
and a fine of Six Thousand Pesos shall be imposed upon the maintainer,
conductor of the above gambling schemes.
The penalty of prision mayor in its medium degree and
temporary absolute disqualification and a fine of Six Thousand Pesos shall be
imposed if the maintainer, conductor or banker is a government official, or if
a player, promoter, referee, umpire, judge or coach in cases of game-fixing,
point-shaving and other game machination.
The penalty of prision correccional in its medium degree and
a fine ranging from Five Hundred pesos to Two Thousand Pesos shall be imposed
upon any person who shall knowingly and without lawful purpose in any hour of
any day shall have in his possession any lottery list, paper, or other matter
containing letter, figures, signs or symbols which pertain to or in any manner
used in the game of jueteng, jai-alai or horse racing bookies and similar game
or lottery which has taken place or about to take place.
Section 2. Barangay Official. – Any
barangay official in whose jurisdiction such gambling house is found and which
house has the reputation of a gambling place shall suffer the penalty of
prision correccional in its medium period and a fine ranging from Five Hundred
to Two Thousand Pesos and temporary absolute disqualifications.
While the acts
under the Revised Penal Code are still punished under the new law, yet the
concept of gambling under it has been changed by the new gambling law.
Before, the
Revised Penal Code considered the skill of the player in classifying whether a
game is gambling or not. But under the
new gambling law, the skill of the players is immaterial.
Any game is
considered gambling where there are bets or wagers placed with the hope to win
a prize therefrom.
Under
this law, even sports contents like boxing, would be gambling insofar as those
who are betting therein are concerned.
Under the old penal code, if the skill of the player outweighs the
chance or hazard involved in winning the game, the game is not considered
gambling but a sport. It was because of
this that betting in boxing and basketball games proliferated.
“Unless
authorized by a franchise, any form of gambling is illegal.” So said the court in the recent resolution of
the case against the operation of jai-alai.
There are
so-called parlor games which have been exempted from the operation of the
decree like when the games are played during a wake to keep the mourners awake
at night. Pursuant to a memorandum
circular issued by the Executive Branch, the offshoot of the exemption is the
intentional prolonging of the wake of the dead by gambling lords.
As a general
rule, betting or wagering determines whether a game is gambling or not. Exceptions:
These are games which are expressly prohibited even without bets. Monte, jueteng or any form of lottery; dog
races; slot machines; these are habit-forming and addictive to players,
bringing about the pernicious effects to the family and economic life of the
players.
Mere possession
of lottery tickets or lottery lists is a crime punished also as part of
gambling. However, it is necessary to
make a distinction whether a ticket or list refers to a past date or to a
future date.
Illustration:
X was accused
one night and found in his possession was a list of jueteng. If the date therein refers to the past, X
cannot be convicted of gambling or illegal possession of lottery list without
proving that such game was indeed played on the date stated. Mere possession is not enough. If the date refers to the future, X can be
convicted by the mere possession with intent to use. This will already bring about criminal
liability and there is no need to prove that the game was played on the date
stated. If the possessor was caught,
chances are he will not go on with it anymore.
There are
two criteria as to when the lottery is in fact becomes a gambling game:
1. If the public is made to pay not only for the merchandise that
he is buying, but also for the chance to win a prize out of the lottery, lottery
becomes a gambling game. Public is made
to pay a higher price.
2. If the merchandise is not saleable because of
its inferior quality, so that the public actually does not buy them, but with
the lottery the public starts patronizing such merchandise. In effect, the public is paying for the
lottery and not for the merchandise, and therefore the lottery is a gambling
game. Public is not made to pay a higher price.
Illustrations:
(1) A certain supermarket
wanted to increase its sales and sponsored a lottery where valuable prices are
offered at stake. To defray the cost of
the prices offered in the lottery, the management increased their prices of the
merchandise by 10 cents each. Whenever
someone buys from that supermarket, he pays 10 cents more for each merchandise
and for his purchase, he gets a coupon which is to be dropped at designated
drop boxes to be raffled on a certain period.
The increase of the price is to answer for the cost of the valuable
prices that will be covered at stake.
The increase in the price is the consideration for the chance to win in
the lottery and that makes the lottery a gambling game.
But if the increase in prices of the articles or commodities was not
general, but only on certain items and the increase in prices is not the same,
the fact that a lottery is sponsored does not appear to be tied up with the
increase in prices, therefore not illegal.
Also, in case of manufacturers, you have to determine whether the
increase in the price was due to the lottery or brought about by the normal
price increase. If the increase in price
is brought about by the normal price increase [economic factor] that even
without the lottery the price would be like that, there is no consideration in
favor of the lottery and the lottery would not amount to a gambling game.
If the increase in the price is due particularly to the lottery, then
the lottery is a gambling game. And the
sponsors thereof may be prosecuted for illegal gambling under Presidential
Decree No. 1602.
(2) The merchandise is not really saleable because of its inferior
quality. A certain manufacturer, Bhey
Company, manufacture cigarettes which is not saleable because the same is
irritating to the throat, sponsored a lottery and a coupon is inserted in every
pack of cigarette so that one who buys it shall have a chance to
participate. Due to the coupons, the
public started buying the cigarette.
Although there was no price increase in the cigarettes, the lottery can
be considered a gambling game because the buyers were really after the coupons
not the low quality cigarettes.
If without the lottery or raffle, the public does not patronize the
product and starts to patronize them only after the lottery or raffle, in
effect the public is paying for the price not the product.
Under this
decree, a barangay captain who is responsible for the existence of gambling
dens in their own locality will be held liable and disqualified from office if
he fails to prosecute these gamblers.
But this is not being implemented.
Gambling, of
course, is legal when authorized by law.
Fund-raising
campaigns are not gambling. They are for
charitable purposes but they have to obtain a permit from Department of Social
Welfare and Development. This includes
concerts for causes, Christmas caroling, and the like.
Article
200. Grave Scandal
Elements
1. Offender performs an act or acts;
2. Such act or acts be highly scandalous as offending against decency or
good customs;
3. The highly scandalous conduct is not expressly falling within any other
article of this Code; and
4. The act or acts complained of be committed in a public place or within
the public knowledge or view.
In grave
scandal, the scandal involved refers to moral scandal offensive to decency,
although it does not disturb public peace. But such conduct or act must be open
to the public view.
In alarms and
scandals, the scandal involved refers to disturbances of the public tranquility
and not to acts offensive to decency.
Any act which
is notoriously offensive to decency may bring about criminal liability for the
crime of grave scandal provided such act does not constitute some other crime
under the Revised Penal Code. Grave
scandal is a crime of last resort.
Distinction
should be made as to the place where the offensive act was committed, whether
in the public place or in a private place:
(1) In public place, the
criminal liability arises irrespective of whether the immoral act is open to
the public view. In short public view is
not required.
(2) When act offensive to
decency is done in a private place, public view or public knowledge is
required.
Public view
does not require numerous persons. Even
if there was only one person who witnessed the offensive act for as long as the
third person was not an intruder, grave scandal is committed provided the act
does not fall under any other crime in the Revised Penal Code.
Illustrations:
(1) A man and a woman enters a movie house which is a public place
and then goes to the darkest part of the balcony and while there the man
started performing acts of lasciviousness on the woman.
If it is against the will of the woman, the crime would be acts of
lasciviousness. But if there is
mutuality, this constitutes grave scandal.
Public view is not necessary so long as it is performed in a public place.
(2) A man and a woman went to Luneta and slept
there. They covered themselves their
blanket and made the grass their conjugal bed.
This is grave scandal.
(3) In a certain apartment, a lady tenant had the habit of
undressing in her room without shutting the blinds. She does this every night at about eight in
the evening. So that at this hour of the night, you can expect people outside
gathered in front of her window looking at her silhouette. She was charged of grave scandal. Her defense was that she was doing it in her
own house.
It is no defense that she is doing it in her private home. It is still open to the public view.
(4) In a particular building in Makati which stands right next to
the house of a young lady who goes sunbathing in her poolside. Every morning several men in the upper floors
would stick their heads out to get a full view of said lady while in her
two-piece swimsuit. The lady was then charged
with grave scandal. Her defense was that
it is her own private pool and it is those men looking down at her who are
malicious.
This is an act which even though done in a private place is nonetheless
open to public view.
Article 201.
Immoral Doctrines, Obscene Publications and Exhibitions and Indecent Shows
Acts punished
1. Those
who shall publicly expound or proclaim doctrines openly contrary to public
morals;
2. a. The authors of obscene literature, published
with their knowledge in any form, the editors publishing such literature; and
the owners/operators of the establishment selling the same;
b. Those who, in theaters, fairs,
cinematographs, or any other place, exhibit indecent or immoral plays, scenes,
acts, or shows, it being understood that the obscene literature or indecent or
immoral plays, scenes, acts or shows, whether live or in film, which are
proscribed by virtue hereof, shall include those which: (1) glorify criminals or condone crimes; (2)
serve no other purpose but to satisfy the market for violence, lust or pornography;
(3) offend any race, or religion; (4)
tend to abet traffic in and use of prohibited drugs; and (5) are contrary to
law, public order, morals, good customs, established policies, lawful orders,
decrees and edicts; and
3. Those
who shall sell, give away, or exhibit films, prints, engravings, sculptures, or
literature which are offensive to morals.
Article 202.
Vagrants and Prostitutes; Penalty
Vagrants
1. Any person having no
apparent means of subsistence, who has the physical ability to work and who
neglects to apply himself or herself to some lawful calling;
2. Any person found
loitering about public or semi-public buildings or places or trampling or
wandering about the country or the streets without visible means of support;
3. Any idle or
dissolute person who ledges in houses of ill fame;
4. Ruffians or pimps
and those who habitually associate with prostitutes;
5. Any person who, not
being included in the provisions of other articles of this Code, shall be found
loitering in any inhabited or uninhabited place belonging to another without
any lawful or justifiable purpose;
Prostitutes, who are wo(men) who, for money or profit, habitually
indulge in sexual intercourse or lascivious conduct.
Test of
Obscenity: Whether
or not the material charged as obscene has the tendency to deprave and corrupt
the minds of those open to the influence thereof, or into whose hands such
material may come to (Kottinger Rule).
The test is
objective. It
is more on the effect upon the viewer and not alone on the conduct of the
performer.
If the material
has the tendency to deprave and corrupt the mind of the viewer then the same is
obscene and where such obscenity is made publicly, criminal liability arises.
Because there
is a government body which deliberates whether a certain exhibition, movies and
plays is pornographic or not, if such body approves the work the same should
not be charged under this title. Because
of this, the test of obscenity may be obsolete already. If allowed by the Movies and Television
Review and Classification Board (MTRCB), the question is moot and academic.
The law is not
concerned with the moral of one person.
As long as the pornographic matter or exhibition is made privately,
there is no crime committed under the Revised Penal Code because what is
protected is the morality of the public in general. Third party is there. Performance of one to another is not.
Illustration:
A sexy dancing
performed for a 90 year old is not obscene anymore even if the dancer strips
naked. But if performed for a 15 year
old kid, then it will corrupt the kid’s mind.
(Apply Kottinger Rule here.)
In some
instances though, the Supreme Court did not stick to this test. It also considered the intention of the
performer.
In People v. Aparici, the accused was a performer in the defunct Pacific
Theatre, a movie house which opens only at midnight. She was arrested because she was dancing in a
“different kind of way.” She was not
really nude. She was wearing some sort
of an abbreviated bikini with a flimsy cloth over it. However, on her waist hung a string with a
ball reaching down to her private part so that every time she gyrates, it
arouses the audience when the ball would actually touch her private part. The defense set up by Aparici was that she
should not be criminally liable for as a matter of fact, she is better dressed
than the other dancers. The Supreme
Court ruled that it is not only the display of the body that gives it a
depraved meaning but rather the movement of the body coupled with the “tom-tom
drums” as background. Nudity alone is
not the real scale. (Reaction Test)
Illustration:
A sidewalk
vendor was arrested and prosecuted for violation of Article 201. It appears that the fellow was selling a
ballpen where one who buys the ballpen can peep into the top of the pen and see
a girl dancing in it. He put up the
defense that he is not the manufacturer and that he was merely selling it to
earn a living. The fact of selling the
ballpen was being done at the expense of public morals. One does not have to be the manufacturer to
be criminally liable. This holds true
for those printing or selling Playboy Magazines.
The common
concept of a vagrant is a person who loiters n public places without any
visible means of livelihood and without any lawful purpose.
While this may
be the most common form of vagrancy, yet even millionaires or one who has more
that enough for his livelihood can commit vagrancy by habitually associating
with prostitutes, pimps, ruffians, or by habitually lodging in houses of
ill-repute.
Vagrancy is not
only a crime of the privileged or the poor.
The law punishes the act involved here as a stepping stone to the
commission of other crimes. Without this
article, law enforcers would have no way of checking a person loitering in the
wrong place in the wrong time. The
purpose of the law is not simply to punish a person because he has no means of
livelihood; it is to prevent further criminality. Use this when someone loiters in front of
your house every night.
Any person
found wandering in an estate belonging to another whether public or private
without any lawful purpose also commits vagrancy, unless his acts constitutes
some other crime in the Revised Penal Code.
Question & Answer
If a person is
found wandering in an estate belonging to another, whether public or private, without
any lawful purpose, what other crimes may be committed?
When a person
is apprehended loitering inside an estate belonging to another, the following
crimes may be committed:
(1) Trespass to property
under Article 281 if the estate is fenced and there is a clear prohibition
against entering, but the offender entered without the consent of the owner or
overseer thereof. What is referred to
here is estate, not dwelling.
(2) Attempted theft under
Article 308, paragraph 3, if the estate is fenced and the offender entered the
same to hunt therein or fish from any waters therein or to gather any farm
products therein without the consent of the owner or overseer thereof;
(3) Vagrancy under Article
202 if the estate is not fenced or there is no clear prohibition against
entering.
Prostitution
and vagrancy are both punished by the same article, but prostitution can only
be committed by a woman.
The term
prostitution is applicable to a woman who for profit or money habitually
engages in sexual or lascivious conduct.
A man if he engages in the same conduct – sex for money – is not a
prostitute, but a vagrant.
In law the mere
indulging in lascivious conduct habitually because of money or gain would
amount to prostitution, even if there is no sexual intercourse. Virginity is not a defense. Habituality is the controlling factor; is has
to be more than one time.
There cannot be
prostitution by conspiracy. One who
conspires with a woman in the prostitution business like pimps, taxi drivers or
solicitors of clients are guilty of the crime under Article 341 for white
slavery.
TITLE VII. CRIMES COMMITTED BY PUBLIC OFFICERS
Crimes
committed by public officers
1. Knowingly
rendering unjust judgment (Art. 204);
2. Judgment
rendered through negligence (Art. 205);
3. Unjust
interlocutory order (Art. 206);
4. Malicious
delay in the administration of justice (Art. 207);
5. Prosecution
of offenses; negligence and tolerance (Art. 208);
6. Betrayal
of trust by an attorney or solicitor – Revelation of secrets (Art. 209);
7. Direct
bribery (Art. 210);
8. Indirect
bribery (Art. 211);
9. Qualified
bribery (Art. 211-A);
10. Corruption
of public officials (Art. 212);
11. Frauds against the
public treasury and similar offenses (Art. 213);
12. Other
frauds (Art. 214);
13. Prohibited
transactions (Art. 215);
14. Possession
of prohibited interest by a public officer (Art. 216);
15. Malversation
of public funds or property – Presumption of malversation (Art. 217)
16. Failure
of accountable officer to render accounts (Art. 218);
17. Failure
of a responsible public officer to render accounts before leaving the country
(Art. 219);
18. Illegal
use of public funds or property (Art. 220);
19. Failure
to make delivery of public funds or property (Art. 221);
20. Conniving
with or consenting to evasion (Art. 223);
21. Evasion
through negligence (Art. 224);
22. Escape
of prisoner under the custody of a person not a public officer (Art. 225);
23. Removal,
concealment or destruction of documents (Art. 226);
24. Officer
breaking seal (Art. 227);
25. Opening
of closed documents (Art. 228);
26. Revelation
of secrets by an officer (Art. 229);
27. Public
officer revealing secrets of private individual (Art. 230);
28. Open
disobedience (Art. 231);
29. Disobedience
to order of superior officer when said order was suspended by inferior officer
(Art. 232);
30. Refusal
of assistance (Art. 233);
31. Refusal
to discharge elective office (Art. 234);
32. Maltreatment
of prisoners (Art. 235);
33. Anticipation
of duties of a public office (Art. 236);
34. Prolonging
performance of duties and powers (Art. 237);
35. Abandonment
of office or position (Art. 238);
36. Usurpation
of legislative powers (Art. 239);
37. Usurpation
of executive functions (Art. 240);
38. Usurpation
of judicial functions (Art. 241);
39. Disobeying
request for disqualification (Art. 242);
40. Orders
or requests by executive officers to any judicial authority (Art. 243);
41. Unlawful
appointments (Art. 244); and
42. Abuses
against chastity (Art. 245).
The designation
of the title is misleading. Crimes under
this title can be committed by public officers or a non-public officer, when
the latter become a conspirator with a public officer, or an accomplice, or
accessory to the crime. The public
officer has to be the principal.
In some cases,
it can even be committed by a private citizen alone such as in Article 275
(infidelity in the custody of a prisoner where the offender is not a public
officer) or in Article 222 (malversation).
Requsites to be a
public officer under Article 203
1. Taking part in the
performance of public functions in the government;
or
Performing in said government or in any of
its branches public duties as an employee, agent or subordinate official, or
any rank or class;
2. His authority to take part in the performance
of public functions or to perform public duties must be –
a. By direct provision of the
law;
b. By popular election; or
c. By appointment by competent authority.
Originally,
Title VII used the phrase “public officer or employee” but the latter word has
been held meaningless and useless because in criminal law, “public officer”
covers all public servants, whether an official or an employee, from the
highest to the lowest position regardless of rank or class; whether appointed
by competent authority or by popular election or by direct provision of law.
Under Republic
Act No. 3019 (The Anti-Graft and Corrupt Practices Act), the term public
officer is broader and more comprehensive because it includes all persons
whether an official or an employee, temporary or not, classified or not,
contractual or otherwise. Any person who
receives compensation for services rendered is a public officer.
Breach of oath of office partakes of three forms:
(1) Malfeasance - when a public officer performs in his public
office an act prohibited by law.
Example: bribery.
(2) Misfeasance - when a public officer performs official acts in
the manner not in accordance with what the law prescribes.
(3) Nonfeasance - when a public officer willfully refrains or
refuses to perform an official duty which his office requires him to perform.
Article
204. Knowingly Rendering Unjust Judgment
Elements
1. Offender is a judge;
2. He renders a judgment in a case submitted to him for decision;
3. Judgment is unjust;
4. The judge knows that his judgment is unjust.
Article
205. Judgment Rendered through
Negligence
Elements
1. Offender is a judge;
2. He renders a judgment in a case submitted to him for decision;
3. The judgment is manifestly unjust;
4. It is due to his inexcusable negligence or ignorance.
Article
206. Unjust Interlocutory Order
Elements
1. Offender is a judge;
2. He performs any of the following acts:
a. Knowingly rendering an unjust
interlocutory order or decree; or
b. Rendering a manifestly unjust
interlocutory order or decree through inexcusable negligence or ignorance.
The crime of
knowingly rendering an unjust judgment, or knowingly issuing an unjust
interlocutory order, may be committed only by a judge of a trial court and
never of an appellate court. The reason
for this is that in appellate court, not only one magistrate renders or issues
the interlocutory order. An appellate
court functions as a division and the resolutions thereof are handed down only
after deliberations among the members of a division so that it cannot be said
that there is malice or inexcusable negligence or ignorance in the rendering of
a judgment or order that is supposedly unjust as held by the Supreme Court in
one administrative case.
There is more
injustice done in cases of judgment than mere interlocutory order that is why
the penalty is higher in the first case.
Article
207. Malicious Delay in the
Administration of Justice
Elements
1. Offender is a judge;
2. There is a proceeding in his court;
3. He delays in the administration of justice;
4. The delay is malicious, that is, with deliberate intent to inflict
damage on either party in the case.
Malice must be
proven. Malice is present where the
delay is sought to favor one party to the prejudice of the other.
These have been
interpreted by the Supreme Court to refer only to judges of the trial court.
Article
208. Prosecution of Offenses; Negligence
and Tolerance
Acts Punished
1. Maliciously
refraining from instituting prosecution against violators of the law;
2. Maliciously
tolerating the commission of offenses.
Elements of
dereliction of duty in the prosecution of offenses
1. Offender is a public officer or officer of the law who has a duty to
cause the prosecution of, or to prosecute, offenses;
2. There is a dereliction of the duties of his office, that is, knowing
the commission of the crime, he does not cause the prosecution of the criminal,
or knowing that a crime is about to be committed, he tolerates its commission;
3. Offender acts with malice and deliberate intent to favor the violator
of the law.
A public
officer engaged in the prosecution of offenders shall maliciously tolerate the
commission of crimes or refrain from prosecuting offenders or violators of the
law.
- - NB: The law vests with the Fiscal and
other concerned officers the discretion as to whether or not s/he should
prosecute (basis - - probable cause – see Rule 110-112 of ROC).
This crime can
only be committed by a public officer whose official duty is to prosecute
offenders, that is, state prosecutors.
Hence, those officers who are not duty bound to perform these
obligations cannot commit this crime in the strict sense.
When a
policeman tolerates the commission of a crime or otherwise refrains from
apprehending the offender, such peace officer cannot be prosecuted for this
crime but they can be prosecuted as:
(1) An accessory to the
crime committed by the principal in accordance with Article 19, paragraph 3; or
(2) He may become a fence
if the crime committed is robbery or theft, in which case he violates the
Anti-Fencing Law; or
(3) He may be held liable
for violating the Anti-Graft and Corrupt Practices Act.
However, in
distant provinces or municipalities where there are no municipal attorneys, the
local chief of police is the prosecuting officer. If he is the one who tolerates the violations
of laws or otherwise allows offenders to escape, he can be prosecuted under
this article.
This is also
true in the case of a barangay chairman. They are supposed to prosecute
violators of laws within their jurisdiction.
If they do not do so, they can be prosecuted for this crime.
Prevaricacion
This used to be
a crime under the Spanish Codigo Penal, wherein a public officer regardless
of his duty violates the oath of his office by not carrying out the duties of
his office for which he was sworn to office, thus, amounting to dereliction of
duty.
But the term
prevaricacion is not limited to dereliction of duty in the prosecution of
offenders. It covers any dereliction of duty whereby the public officer
involved violates his oath of office.
The thrust of prevaricacion is the breach of the oath of office by the
public officer who does an act in relation to his official duties.
While in
Article 208, dereliction of duty refers only to prosecuting officers, the term
prevaricacion applies to public officers in general who is remiss or who is
maliciously refraining from exercising the duties of his office.
Illustration:
The offender
was caught for white slavery. The
policeman allowed the offender to go free for some consideration. The policeman does not violate Article 208
but he becomes an accessory to the crime of white slavery.
But in the
crime of theft or robbery, where the policeman shared in the loot and allowed
the offender to go free, he becomes a fence.
Therefore, he is considered an offender under the Anti-Fencing Law.
Relative to
this crime under Article 208, consider the crime of qualified bribery. Among the amendments made by Republic Act No.
7659 on the Revised Penal Code is a new provision which reads as follows:
Article. 211-A. Qualified Bribery – If any public officer is entrusted
with law enforcement and he refrains from arresting or prosecuting an offender
who has committed a crime punishable by Reclusion Perpetua and/or death in
consideration of any offer, promise, gift, or present, he shall suffer the
penalty for the offense which was not prosecuted.
If it is the public officer who asks or
demands such gift or present, he shall suffer the penalty of death.
Actually the
crime is a kind of direct bribery where the bribe, offer, promise, gift or
present has a consideration on the part of the public officer, that is
refraining from arresting or prosecuting the offender in consideration for such
offer, promise, gift or present. In a
way, this new provision modifies Article 210 of the Revised Penal Code on
direct bribery.
However, the
crime of qualified bribery may be committed only by public officers “entrusted
with enforcement” whose official duties authorize then to arrest or prosecute
offenders. Apparently, they are peace
officers and public prosecutors since the nonfeasance refers to “arresting or
prosecuting.” But this crime arises only
when the offender whom such public officer refrains from arresting or
prosecuting, has committed a crime punishable by reclusion perpetua and/or
death. If the crime were punishable by a
lower penalty, then such nonfeasance by the public officer would amount to
direct bribery, not qualified bribery.
If the crime
was qualified bribery, the dereliction of the duty punished under Article 208
of the Revised Penal Code should be absorbed because said article punishes the
public officer who “maliciously refrains from instituting prosecution for the
punishment of violators of the law or shall tolerate the commission of
offenses”. The dereliction of duty
referred to is necessarily included in the crime of qualified bribery.
On the other
hand, if the crime was direct bribery under Article 210 of the Revised Penal
Code, the public officer involved should be prosecuted also for the dereliction
of duty, which is a crime under Article 208 of the Revised Penal Code, because
the latter is not absorbed by the crime of direct bribery. This is because in direct bribery, where the
public officer agreed to perform an act constituting a crime in connection with
the performance of his official duties, Article 210 expressly provides that the
liabilty thereunder shall be “in addition to the penalty corresponding to the
crime agreed upon, if the crime shall have been committed.
Illustration:
A fiscal, for a
sum of money, refrains from prosecuting a person charged before him. If the penalty for the crime involved is
reclusion perpetua, the fiscal commits qualified bribery. If the crime is punishable by a penalty lower
than reclusion perpetua, the crime is direct bribery.
In the latter
situation, three crimes are committed: direct bribery and dereliction of duty
on the part of the fiscal; and corruption of a public officer by the giver.
Article
209. Betrayal of Trust by An Attorney or
Solicitor – Revelation of Secrets
Acts punished
1. Causing damage to his client, either—
a. By any malicious breach of
professional duty;
b. By inexcusable negligence or
ignorance.
Note: When the attorney acts
with malicious abuse of his employment or inexcusable negligence or ignorance,
there must be damage to his client.
2. Revealing
any of the secrets of his client learned by him in his professional capacity;
3. Undertaking
the defense of the opposing party in the same case, without the consent of his
first client, after having undertaken the defense of said first client of after
having received confidential information from said client.
Under the rules
on evidence, communications made with prospective clients to a lawyer with a
view to engaging his professional services are already privileged even though
the client-lawyer relationship did not eventually materialize because the
client cannot afford the fee being asked by the lawyer. The lawyer and his secretary or clerk cannot
be examined thereon.
That this
communication with a prospective client is considered privileged, implies that
the same is confidential. Therefore, if
the lawyer would reveal the same or otherwise accept a case from the adverse
party, he would already be violating Article 209. Mere malicious breach without damage is not
violative of Article 209; at most he will be liable administratively as a
lawyer, e.g., suspension or disbarment under the Code of Professional
Responsibility.
Illustration:
B, who is
involved in the crime of seduction wanted A, an attorney at law, to handle his
case. A received confidential
information from B. However, B cannot
pay the professional fee of A. C, the
offended party, came to A also and the same was accepted.
A did not
commit the crime under Article 209, although the lawyer’s act may be considered
unethical. The client-lawyer
relationship between A and B was not yet established. Therefore, there is no trust to violate
because B has not yet actually engaged the services of the lawyer A. A is not bound to B. However, if A would reveal the confidential
matter learned by him from B, then Article 209 is violated because it is enough
that such confidential matters were communicated to him in his professional
capacity, or it was made to him with a view to engaging his professional
services.
Here, matters
that are considered confidential must have been said to the lawyer with the
view of engaging his services. Otherwise, the communication shall not be
considered privileged and no trust is violated.
Illustration:
A went to B, a
lawyer/notary public, to have a document notarized. A narrated to B the detail of the criminal
case. If B will disclose what was
narrated to him there is no betrayal of trust since B is acting as a notary
public and not as a counsel. The lawyer
must have learned the confidential matter in his professional capacity.
Several acts
which would make a lawyer criminally liable:
(1) Maliciously causing
damage to his client through a breach of his professional duty. The breach of professional duty must be
malicious. If it is just incidental, it
would not give rise to criminal liability, although it may be the subject of
administrative discipline;
(2) Through gross
ignorance, causing damage to the client;
(3) Inexcusable negligence;
(4) Revelation of secrets
learned in his professional capacity;
(5) Undertaking the defense
of the opposite party in a case without the consent of the first client whose
defense has already been undertaken.
Note that only
numbers 1, 2 and 3 must approximate malice.
A lawyer who
had already undertaken the case of a client cannot later on shift to the
opposing party. This cannot be
done.
Under the
circumstances, it is necessary that the confidential matters or information was
confided to the lawyer in the latter’s professional capacity.
It is not the
duty of the lawyer to give advice on the commission of a future crime. It is, therefore, not privileged in
character. The lawyer is not bound by
the mandate of privilege if he reports such commission of a future crime. It is only confidential information relating
to crimes already committed that are covered by the crime of betrayal of trust
if the lawyer should undertake the case of opposing party or otherwise divulge
confidential information of a client.
Under the law
on evidence on privileged communication, it is not only the lawyer who is
protected by the matter of privilege but also the office staff like the
secretary.
The nominal
liability under this article may be constituted either from breach of
professional duties in the handling of the case or it may arise out of the
confidential relation between the lawyer and the client.
Breach of
professional duty
Tardiness in
the prosecution of the case for which reason the case was dismissed for being
non-prosecuted; or tardiness on the part of the defense counsel leading to
declaration of default and adverse judgment.
Professional
duties – Lawyer must appear on time. But
the client must have suffered damage due to the breach of professional
duty. Otherwise, the lawyer cannot be
held liable.
If the
prosecutor was tardy and the case was dismissed as non-prosecuted, but he filed
a motion for consideration which was granted, and the case was continued, the
lawyer is not liable, because the client did not suffer damage.
If lawyer was
neglectful in filing an answer, and his client declared in default, and there
was an adverse judgment, the client suffered damages. The lawyer is liable.
Breach of
confidential relation
Revealing
information obtained or taking advantage thereof by accepting the engagement
with the adverse party. There is no need
to prove that the client suffered damages.
The mere breach of confidential relation is punishable.
In a conjugal
case, if the lawyer disclosed the confidential information to other people, he
would be criminally liable even though the client did not suffer any damage.
The client who
was suing his wife disclosed that he also committed acts of
unfaithfulness. The lawyer talked about
this to a friend. He is, thus, liable.
Article
210. Direct Bribery
Acts punished
1. Agreeing
to perform, or performing, in consideration of any offer, promise, gift or
present – an act constituting a crime, in connection with the performance of
his official duties;
2. Accepting
a gift in consideration of the execution of an act which does not constitute a
crime, in connection with the performance of his official duty;
3. Agreeing
to refrain, or by refraining, from doing something which it is his official
duty to do, in consideration of gift or promise.
Elements
1. Offender
is a public officer within the scope of Article 203;
2. Offender
accepts an offer or a promise or receives a gift or present by himself or
through another;
3. Such
offer or promise be accepted, or gift or present received by the public officer
–
a. With a view to committing some crime; or
b. In consideration of the execution of an act which does not constitute a
crime, but the act must be unjust; or
c. To refrain from doing something which it is his official duty to do.
4. The
act which offender agrees to perform or which he executes be connected with the
performance of his official duties.
It is a common
notion that when you talk of bribery, you refer to the one corrupting the
public officer. Invariably, the act
refers to the giver, but this is wrong.
Bribery refers to the act of the receiver and the act of the giver is
corruption of public official.
Distinction between direct bribery and indirect
bribery
Bribery is direct when a public officer is called upon to perform or
refrain from performing an official act in exchange for the gift, present or
consideration given to him.
If he simply
accepts a gift or present given to him by reason of his public position, the
crime is indirect bribery. Bear in mind
that the gift is given "by reason of his office", not "in
consideration" thereof. So never
use the term “consideration.” The public
officer in Indirect bribery is not to perform any official act.
Note however
that what may begin as an indirect bribery may actually ripen into direct
bribery.
Illustration:
Without any
understanding with the public officer, a taxi operator gave an expensive
suiting material to a BLT registrar.
Upon receipt by the BLT registrar of his valuable suiting material, he asked
who the giver was. He found out that he
is a taxi operator. As far as the giver
is concerned, he is giving this by reason of the office or position of the
public officer involved. It is just
indirect bribery
.
If the BLT
registrar calls up his subordinates and said to take care of the taxis of the
taxi operator so much so that the registration of the taxis is facilitated
ahead of the others, what originally would have been indirect bribery becomes
direct bribery.
In direct
bribery, consider whether the official act, which the public officer agreed to
do, is a crime or not.
If it will
amount to a crime, it is not necessary that the corruptor should deliver the
consideration or the doing of the act.
The moment there is a meeting of the minds, even without the delivery of
the consideration, even without the public officer performing the act amounting
to a crime, bribery is already committed on the part of the public
officer. Corruption is already committed
on the part of the supposed giver. The
reason is that the agreement is a conspiracy involving the duty of a public
officer. The mere agreement is a felony
already.
If the public
officer commits the act which constitutes the crime, he, as well as the
corruptor shall be liable also for that other crime.
Illustrations:
(1) If the corruptor offers
a consideration to a custodian of a public record to remove certain files, the
mere agreement, without delivery of the consideration, brings about the crime
of direct bribery and corruption of public official.
If the records were actually removed, both the public officer and the
corruptor will in addition to the two felonies above, will also be liable for
the crime committed, which is infidelity in the custody of the public records
for which they shall be liable as principals; one as principal by inducement,
the other as principal by direct participation.
(2) A party litigant
approached the court’s stenographer and proposed the idea of altering the
transcript of stenographic notes. The
court stenographer agreed and he demanded P 2,000.00.
Unknown to them, there were law enforcers who already had a tip that
the court stenographer had been doing this before. So they were waiting for the chance to entrap
him. They were apprehended and they said they have not done anything yet.
Under Article 210, the mere agreement to commit the act, which amounts
to a crime, is already bribery. That
stenographer becomes liable already for consummated crime of bribery and the
party who agreed to give that money is already liable for consummated
corruption, even though not a single centavo is delivered yet and even though
the stenographer had not yet made the alterations.
If he changed the transcript, another crime is committed:
falsification.
The same
criterion will apply with respect to a public officer who agrees to refrain
from performing his official duties. If
the refraining would give rise to a crime, such as refraining to prosecute an
offender, the mere agreement to do so will consummate the bribery and the corruption,
even if no money was delivered to him.
If the refraining is not a crime, it would only amount to bribery if the
consideration be delivered to him.
If it is not a
crime, the consideration must be delivered by the corruptor before a public
officer can be prosecuted for bribery.
Mere agreement, is not enough to constitute the crime because the act to
be done in the first place is legitimate or in the performance of the official
duties of the public official.
Unless the
public officer receives the consideration for doing his official duty, there is
no bribery. It is necessary that there
must be delivery of monetary consideration.
This is so because in the second situation, the public officer actually
performed what he is supposed to perform.
It is just that he would not perform what he is required by law to
perform without an added consideration from the public which gives rise to the
crime.
The idea of the
law is that he is being paid salary for being there. He is not supposed to demand additional
compensation from the public before performing his public service. The prohibition will apply only when the
money is delivered to him, or if he performs what he is supposed to perform in
anticipation of being paid the money.
Here, the
bribery will only arise when there is already the acceptance of the
consideration because the act to be done is not a crime. So, without the acceptance, the crime is not
committed.
Direct bribery
may be committed only in the attempted and consummated stages because, in frustrated felony, the offender must have performed all
the acts of execution which would produce the felony as a consequence. In direct bribery, it is possible only if the
corruptor concurs with the offender.
Once there is concurrence, the direct bribery is already
consummated. In short, the offender
could not have performed all the acts of execution to produce the felony
without consummating the same.
Actually, you
cannot have a giver unless there is one who is willing to receive and there
cannot be a receiver unless there is one willing to give. So this crime requires two to commit. It cannot be said, therefore, that one has
performed all the acts of execution which would produce the felony as a
consequence but for reasons independent of the will, the crime was not
committed.
It is now
settled, therefore, that the crime of bribery and corruption of public
officials cannot be committed in the frustrated stage because this requires two
to commit and that means a meeting of the minds.
Illustrations:
(1) If the public official accepted the corrupt consideration and
turned it over to his superior as evidence of the corruption, the offense is
attempted corruption only and not frustrated.
The official did not agree to be corrupted.
If the public officer did not report the same to his superior and
actually accepted it, he allowed himself to be corrupted. The corruptor becomes liable for consummated
corruption of public official. The
public officer also becomes equally liable for consummated bribery.
(2) If a public official demanded something from a taxpayer who
pretended to agree and use marked money with the knowledge of the police, the
crime of the public official is attempted bribery. The reason is that because the giver has no
intention to corrupt her and therefore, he could not perform all the acts of
execution.
Be sure that what is involved is a crime of bribery, not
extortion. If it were extortion, the
crime is not bribery, but robbery. The
one who yielded to the demand does not commit corruption of a public officer
because it was involuntary.
Article
211. Indirect Bribery
Elements
1. Offender is a public officer;
2. He accepts gifts;
3. The gifts are offered to him by reason of his office.
The public
official does not undertake to perform an act or abstain from doing an official
duty from what he received. Instead, the
official simply receives or accepts gifts or presents delivered to him with no
other reason except his office or public position. This is always in the
consummated stage. There is no attempted
much less frustrated stage in indirect bribery.
The Supreme
Court has laid down the rule that for indirect bribery to be committed, the
public officer must have performed an act of appropriating of the gift for
himself, his family or employees. It is
the act of appropriating that signifies acceptance. Merely delivering the gift to the public
officer does not bring about the crime.
Otherwise it would be very easy to remove a public officer: just deliver
a gift to him.
Article 211-A. Qualified Bribery
Elements
1. Offender is a public officer entrusted with law enforcement;
2. He refrains from arresting or prosecuting an offender who has committed
a crime;
3. Offender has committed a crime punishable by reclusion perpetua and/or
death;
4. Offender refrains from arresting or prosecuting in consideration of any
offer, promise, gift, or present.
Note that the
penalty is qualified if the public officer is the one who asks or demands such
present.
Presidential Decree No. 46
Presidential
Decree No. 46 prohibits giving and acceptance of gifts by a public
officer or to a public officer, even during anniversary, or when there is an
occasion like Christmas, New Year, or any gift-giving anniversary. The Presidential Decree
punishes both receiver and giver.
The
prohibition giving and receiving gifts given by reason of official position,
regardless of whether or not the same is for past or future favors.
The giving of
parties by reason of the promotion of a public official is considered a crime
even though it may call for a celebration.
The giving of a party is not limited to the public officer only but also
to any member of his family.
Presidential
Decree No. 749
The decree
grants immunity from prosecution to a private person or public officer who
shall voluntarily give information and testify in a case of bribery or in a
case involving a violation of the Anti-graft and Corrupt Practices Act.
It provides
immunity to the bribe-giver provided he does two things:
(1) He
voluntarily discloses the transaction he had with the public officer
constituting direct or indirect bribery, or any other corrupt transaction;
(2) He must
willingly testify against the public officer involved in the case to be filed
against the latter.
Before
the bribe-giver may be dropped from the information, he has to be charged first
with the receiver. Before trial,
prosecutor may move for dropping bribe-giver from information and be granted
immunity. But first, five conditions
have to be met:
(1) Information must refer
to consummated bribery;
(2) Information is
necessary for the proper conviction of the public officer involved;
(3) That the information or
testimony to be given is not yet in the possession of the government or known
to the government;
(4) That the information
can be corroborated in its material points;
(5) That the information
has not been convicted previously for any crime involving moral turpitude.
These
conditions are analogous to the conditions under the State Witness Rule under
Criminal Procedure.
The immunity
granted the bribe-giver is limited only to the illegal transaction where the
informant gave voluntarily the testimony.
If there were other transactions where the informant also participated,
he is not immune from prosecution. The
immunity in one transaction does not extend to other transactions.
The immunity
attaches only if the information given turns out to be true and correct. If the same is false, the public officer may
even file criminal and civil actions against the informant for perjury and the
immunity under the decree will not protect him.
Republic
Act No. 7080 (Plunder)
Plunder is a
crime defined and penalized under Republic Act No. 7080, which became effective
in 1991. This crime somehow modified
certain crimes in the Revised Penal Code insofar as the overt acts by which a
public officer amasses, acquires, or accumulates ill-gotten wealth are felonies
under the Revised Penal Code like bribery (Articles 210, 211, 211-A), fraud
against the public treasury [Article 213], other frauds (Article 214),
malversation (Article 217), when the ill-gotten wealth amounts to a total value
of P50,000,000.00. The amount was
reduced from P75,000,000.00 by Republic Act No. 7659 and the penalty was changed
from life imprisonment to reclusion perpetua to death.
Short of the
amount, plunder does not arise. Any
amount less than P50,000,000.00 is a violation of the Revised Penal Code or the
Anti-Graft and Corrupt Practices Act.
Under the law
on plunder, the prescriptive period is 20 years commencing from the time of the
last overt act.
Plunder is
committed through a combination or series of overt acts:
(1) Through
misappropriation, conversion, misuse, or malversation of public funds or raids
on the public treasury;
(2) By receiving, directly or indirectly,
any commission, gift, share, percentage, kickbacks or any other form of
pecuniary benefit from any person and/or entity in connection with any
government contract or project by reason of the office or position of the
public officer;
(3) By illegal or
fraudulent conveyance or disposition of asset belonging to the national
government or any of its subdivisions, agencies or instrumentalities or
government-owned or controlled corporations and their subsidiaries;
(4) By obtaining,
receiving, or accepting directly or indirectly any shares of stock, equity or
any other form of interest or participation including the promise of future
employment in any business or undertaking;
(5) By establishing
agricultural, industrial, or commercial monopolies or other combinations and/or
implementations of decrees and orders intended to benefit particular persons or
special interests; or
(6) By taking undue
advantage of official position, authority, relationship, connection or
influence to unjustly enrich himself or themselves at the expense and to the
damage and prejudice of the Filipino people, and the Republic of the Philippines
While the crime
appears to be malum prohibitum, Republic Act No. 7080 provides that “in the
imposition of penalties, the degree of participation and the attendance of
mitigating and aggravating circumstances shall be considered by the court”.
Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act)
Prohibited acts
under Sec. 3:
(a) Persuading, inducing or influencing
another public officer to perform an act constituting a violation of rules and
regulations duly promulgated by competent authority or an offense in connection
with the official duties of the latter, or allowing himself to be persuaded,
induced, or influenced to commit such violation or offense.
(b) Directly or indirectly requesting or
receiving any gift, present, share, percentage, or benefit, for himself or for
any other person, in connection with any contract or transaction between the
Government and any other part, wherein the public officer in his official
capacity has to intervene under the law.
(c) Directly or indirectly requesting or
receiving any gift, present or other pecuniary or material benefit, for himself
or for another, from any person for whom the public officer, in any manner or
capacity, has secured or obtained, or will secure or obtain, any Government
permit or license, in consideration for the help given or to be given, without
prejudice to Section thirteen of this Act.
(d) Accepting or having any member of his
family accept employment in a private enterprise which has pending official
business with him during the pendency thereof or within one year after its
termination.
(e) Causing any undue injury to any party,
including the Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official administrative or
judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and employees of
offices or government corporations charged with the grant of licenses or
permits or other concessions.
( f ) Neglecting or refusing, after due demand
or request, without sufficient justification, to act within a reasonable time
on any matter pending before him for the purpose of obtaining, directly or
indirectly, from any person interested in the matter some pecuniary or material
benefit or advantage, or for the purpose of favoring his own interest or giving
undue advantage in favor of or discriminating against any other interested
party.
(g) Entering, on behalf of the Government,
into any contract or transaction manifestly and grossly disadvantageous to the
same, whether or not the public officer profited or will profit thereby.
(h) Director or indirectly having financing
or pecuniary interest in any business, contract or transaction in connection
with which he intervenes or takes part in his official capacity, or in which he
is prohibited by the Constitution or by any law from having any interest.
(i) Directly or indirectly becoming
interested, for personal gain, or having a material interest in any transaction
or act requiring the approval of a board, panel or group of which he is a
member, and which exercises discretion in such approval, even if he votes
against the same or does not participate in the action of the board, committee,
panel or group.
Interest for
personal gain shall be presumed against those public officers responsible for
the approval of manifestly unlawful, inequitable, or irregular transaction or
acts by the board, panel or group to which they belong.
( j) Knowingly approving or granting any
license, permit, privilege or benefit in favor of any person not qualified for
or not legally entitled to such license, permit, privilege or advantage, or of
a mere representative or dummy of one who is not so qualified or entitled.
(k) Divulging valuable information of a
confidential character, acquired by his office or by him on account of his
official position to unauthorized persons, or releasing such information in
advance of its authorized release date.
Republic
Act No. 3019 (Anti-Graft and Corrupt Practices Act)
Acts Punished
(Sec. 3):
1. Persuading,
inducing, or influencing another public officer to perform an act constituting
a violation of rules and regulations duly promulgated by a competent authority
or an offense in connection with the official duties of the latter, or allowing
himself to be persuaded, induced, or influenced to commit such violation or
offense;
2. Directly or
Indirectly requesting or receiving and gift, present, share, percentage or
benefit, for himself or for any other person in connection with any other
contract or transaction between the Government and any other party, wherein the
public officer in his official capacity has to intervene under the law;
3. Directly or
indirectly requesting or receiving any gift, present or other pecuniary or
material benefit, for himself or for another, from any person for whom the
public officer, in any manner or capacity, has secured or obtained, or will
secure or obtain, any Government permit or license, in consideration for the
help given or to be given, without prejudice to Section Thirteen of this Act;
4. Accepting or having
any member of his family accept employment in a private enterprise which has
pending business with him during the pendency thereof or within one year after
his termination;
5. Causing any undue
injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official
administrative or judicial functions through manifest partiality, evident bad
faith or gross inexcusable negligence. This provision shall apply to officers
and employees of offices or government corporations charged with the grant of
licenses or permits or other concessions;
6. Neglecting or
refusing, after due demand or request, without sufficient justification, to act
within a reasonable time on any matter pending before him for the purpose of
obtaining, directly or indirectly, from any person interested in the matter
some pecuniary or material benefit or advantage, or for the purpose of favoring
his own interest or giving undue advantage in favor of or discriminating
against any other interested party;
7. Entering, on behalf
of the government, into a contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or will
profit thereby;
8. Directly or
indirectly having financial or pecuniary interest in any business, contract, or
transaction in connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the Constitution or by any
law from having any interest;
9. Directly or
indirectly becoming interested, for personal gain, or having material interest
in any transaction or act requiring the approval of a board, panel or group of
which he is a member, and which exercises discretion in such approval, even if
he votes against the same or does not participate in the action of the board,
committee, panel or group. Interest for personal gain shall be presumed against
those public officers responsible for the approval of manifestly unlawful,
inequitable, or irregular transactions or acts by the board, panel or group to
which they belong;
10. Knowingly approving
or granting any license, permit, privilege or benefit in favor of any person
not qualified for or not legally entitled to such license, permit, privilege,
or advantage, or of a mere representative or dummy of one who is not so
qualified or entitled;
11. Divulging valuable
information of a confidential character, acquired by his office or by him on
account of his official position to unauthorized persons, or releasing such
information in advance of its authorized date.
The mere act of
a public officer demanding an amount from a taxpayer to whom he is to render
public service does not amount to bribery, but will amount to a violation of
the Anti-graft and Corrupt Practices Act.
Illustration:
A court secretary
received P500 .00 from a litigant to set a motion for an early hearing. This is direct bribery even if the act to be
performed is within his official duty so long as he received a consideration
therefor.
If the
secretary persuaded the judge to make a favorable resolution, even if the judge
did not do so, this constitutes a violation of Anti-Graft and Corrupt Practices
Act, Sub-Section A.
Under the
Anti-Graft and Corrupt Practices Act, particularly Section 3, there are several
acts defined as corrupt practices. Some
of them are mere repetitions of the act already penalized under the Revised
Penal Code, like prohibited transactions under Article 215 and 216. In such a case, the act or omission remains
to be mala in se.
But there are
acts penalized under the Anti-Graft and Corrupt Practices Act which are not
penalized under the Revised Penal Code.
Those acts may be considered as mala prohibita. Therefore, good faith is not a defense.
Illustration:
Section 3 (e)
of the Anti-Graft and Corrupt Practices Act – causing undue injury to the
government or a private party by giving unwarranted benefit to the party whom
does not deserve the same.
In this case,
good faith is not a defense because it is in the nature of a malum
prohibitum. Criminal intent on the part
of the offender is not required. It is
enough that he performed the prohibited act voluntarily. Even though the prohibited act may have
benefited the government. The crime is
still committed because the law is not after the effect of the act as long as
the act is prohibited.
Section 3 (g)
of the Anti-Graft and Corrupt Practices Act – where a public officer entered
into a contract for the government which is manifestly disadvantageous to the
government even if he did not profit from the transaction, a violation of the
Anti-Graft and Corrupt Practices Act is committed.
If a public
officer, with his office and a private enterprise had a transaction and he
allows a relative or member of his family to accept employment in that
enterprise, good faith is not a defense because it is a malum prohibitum. It is enough that that the act was performed.
Where the
public officer is a member of the board, panel or group who is to act on an
application of a contract and the act involved one of discretion, any public
officer who is a member of that board, panel or group, even though he voted
against the approval of the application, as long as he has an interest in that
business enterprise whose application is pending before that board, panel or
group, the public officer concerned shall be liable for violation of the
Anti-Graft and Corrupt Practices Act. His only course of action to avoid
prosecution under the Anti-graft and Corrupt Practices Act is to sell his
interest in the enterprise which has filed an application before that board,
panel or group where he is a member. Or otherwise, he should resign from his
public position.
Illustration:
Sen. Dominador
Aytono had an interest in the Iligan Steel Mills, which at that time was being
subject of an investigation by the Senate Committee of which he was a chairman.
He was threatened with prosecution under Republic Act No. 3019 so he was
compelled to sell all his interest in that steel mill; there is no defense.
Because the law says so, even if he voted against it, he commits a violation
thereof.
These cases are
filed with the Ombudsman and not with the regular prosecutor’s office.
Jurisdiction is exclusively with the Sandiganbayan. The accused public officer
must be suspended when the case is already filed with the Sandiganbayan.
Under the
Anti-Graft and Corrupt Practices Act, the public officer who is accused should
not be automatically suspended upon the filing of the information in court. It
is the court which will order the suspension of the public officer and not the
superior of that public officer. As long as the court has not ordered the
suspension of the public officer involved, the superior of that public officer
is not authorized to order the suspension simply because of the violation of
the Anti-Graft and Corrupt Practices Act.
The court will not order the suspension of the public officer without
first passing upon the validity of the information filed in court. Without a
hearing, the suspension would be null and void for being violative of due
process.
Illustration:
A public
officer was assigned to direct traffic in a very busy corner. While there, he
caught a thief in the act of lifting the wallet of a pedestrian. As he could
not leave his post, he summoned a civilian to deliver the thief to the precinct.
The civilian agreed so he left with the thief. When they were beyond the view
of the policeman, the civilian allowed the thief to go home. What would be the liability of the public
officer?
The liability
of the traffic policeman would be merely administrative. The civilian has no
liability at all.
Firstly, the
offender is not yet a prisoner so there is no accountability yet. The term
“prisoner” refers to one who is already booked and incarcerated no matter how
short the time may be.
The policeman
could not be said as having assisted the escape of the offender because as the
problem says, he is assigned to direct traffic in a busy corner street. So he
cannot be considered as falling under the third 3rd paragraph of Article 19
that would constitute his as an accessory.
The same is
true with the civilian because the crime committed by the offender, which is
snatching or a kind of robbery or theft as the case may be, is not one of those
crimes mentioned under the third paragraph of Article 19 of the Revised Penal
Code.
Where the
public officer is still incumbent, the prosecution shall be with the Ombudsman.
Where the
respondent is separated from service and the period has not yet prescribed, the
information shall be filed in any prosecution’s office in the city where the
respondent resides. The prosecution
shall file the case in the Regional Trial Court unless the violation carries a
penalty higher than prision correccional, in which case the Sandiganbayan has jurisdiction.
The fact that the government benefited out of the prohibited act is no
defense at all, the violation being mala prohibita.
Section 3 (f)
of the Anti-Graft and Corrupt Practices Act – where the public officer neglects
or refuses to act on a matter pending before him for the purpose of obtaining
any pecuniary or material benefit or advantage in favor of or discriminating
against another interested party.
The law itself
additionally requires that the accused’s dereliction, besides being without
justification, must be for the purpose of obtaining from any person interested
in the matter some pecuniary or material benefit or for the purpose of favoring
any interested party, or discriminating against another interested party. This element is indispensable.
In other words,
the neglect or refusal to act must motivated by gain or benefit, or purposely
to favor the other interested party as held in Coronado v. SB, decided
on August 18, 1993.
Republic
Act No. 1379 (Forfeiture of Ill-gotten Wealth)
Correlate with
RA 1379 -- properly under Remedial Law. This provides the procedure for
forfeiture of the ill-gotten wealth in violation of the Anti-Graft and Corrupt
Practices Act. The proceedings are civil and not criminal in nature.
Any taxpayer
having knowledge that a public officer has amassed wealth out of proportion to
this legitimate income may file a complaint with the prosecutor’s office of the
place where the public officer resides or holds office. The prosecutor conducts
a preliminary investigation just like in a criminal case and he will forward
his findings to the office of the Solicitor General. The Solicitor General will
determine whether there is reasonable ground to believe that the respondent has
accumulated an unexplained wealth.
If the
Solicitor General finds probable cause, he would file a petition requesting the
court to issue a writ commanding the respondent to show cause why the
ill-gotten wealth described in the petition should not be forfeited in favor of
the government. This is covered by the Rules on Civil Procedure. The respondent
is given 15 days to answer the petition. Thereafter trial would proceed.
Judgment is rendered and appeal is just like in a civil case. Remember that
this is not a criminal proceeding. The basic difference is that the preliminary
investigation is conducted by the prosecutor.
Q: The Central
Bank, by resolution of the Monetary Board, hires Theof Sto. Tomas, a retired
manager of a leading bank as a consultant. Theof later receives a valuable gift
from a bank under investigation by the Central Bank. May Theof be prosecuted
under RA 3019 for accepting the gift? Explain.
A: No, Theof
may not be prosecuted under RA 3019 but he can be prosecuted for violation of
PD 46, under which such act of receiving a valuable gift is punished. Although
Theof is a “public officer” within the application of RA 3019, his act of
receiving the gift does not appear to be included among the acts punished by
said law since he did not intervene in his official capacity in the
investigation of the bank that gave the gift. Penal laws must be construed
against the state and Theof is also administratively liable.
Article 212. Corruption of Public Officials
Elements
2.
Offender makes offers or
promises or gives gifts or presents to a public officer;
3.
The offers or promises
are made or the gifts or presents given to a public officer, under
circumstances that will make the public officer liable for direct bribery or
indirect bribery.
Article 213.
Frauds Against the Public Treasury and Similar Offenses
Acts Punished
1.
Entering into an agreement with any interested
party or speculator or making use of any other scheme, to defraud the
government, in dealing with any person with regard to furnishing supplies, the
making of contracts, or the adjustment or settlement of accounts relating to
public property or funds;
2.
Demanding, directly or indirectly, the payment
of sums different from or larger than those authorized by law, in collection of
taxes, licenses, fees, and other imposts;
3.
Failing voluntarily to issue a receipt, as
provided by law, for any sum of money collected by him officially, in the
collection of taxes, licenses, fees and other imposts;
4.
Collecting or receiving,
directly or indirectly, by way of payment or otherwise, things or objects of a
nature different from that provided by law, in the collection of taxes,
licenses, fees and other imposts.
Elements of frauds against public treasury under paragraph 1
1.
Offender is a public officer;
2.
He has taken advantage of his office, that is, he intervened in the
transaction in his official capacity;
3. He entered into an agreement with any interested party or
speculator or made use of any other scheme with regard to furnishing supplies,
the making of contracts, or the adjustment or settlement of accounts relating
to public property or funds;
4. He had intent to defraud the government.
The essence of
this crime is making the government pay for something not received or making it
pay more than what is due. It is also committed by refunding more than
the amount which should properly be refunded.
This occurs usually in cases where a public officer whose official duty
is to procure supplies for the government or enter into contract for government
transactions, connives with the said supplier with the intention to defraud the
government. Also when certain supplies
for the government are purchased for the high price but its quantity or quality
is low.
Illustrations:
(1) A public official who is in charge of procuring supplies for
the government obtained funds for the first class materials and buys inferior
quality products and pockets the excess of the funds. This is usually committed by the officials of
the Department of Public Works and Highways.
(2) Poorest quality of ink paid as if it were of superior quality.
(3) One thousand pieces of blanket for certain unit of the Armed
Forces of the Philippines
(4) The Quezon City
Not all frauds
will constitute this crime. There must be no fixed allocation or amount on the
matter acted upon by the public officer.
The allocation
or outlay was made the basis of fraudulent quotations made by the public
officer involved.
For example,
there was a need to put some additional lighting along the a street and no one
knows how much it will cost. An officer
was asked to canvass the cost but he connived with the seller of light bulbs,
pricing each light bulb at P550.00 instead of the actual price of P500.00. This is a case of fraud against public
treasury.
If there is a
fixed outlay of P20,000.00 for the lighting apparatus needed and the public officer
connived with the seller so that although allocation was made a lesser number
was asked to be delivered, or of an inferior quality, or secondhand. In this case there is no fraud against the
public treasury because there is a fixed allocation. The fraud is in the implementation of
procurement. That would constitute the
crime of “other fraud” in Article 214, which is in the nature of swindling or
estafa.
Be sure to
determine whether fraud is against public treasury or one under Article 214.
Government
Procurement Reform Act of 2003 (RA 9184)
Sec. 65 imposes
penal sanctions on government officials and employees, without prejudice to
prosecution under RA 3019, who:
1. Opening sealed bids for government contracts;
2. Unjustly delaying screening, opening and evaluation of bids as well as
awarding of contracts;
3. Unduly using influence or pressure on any member of the BAC or the
government procuring entity to favor a particular bidder;
4. Splitting contracts which exceed procedural purchase limits and
competitive bidding as to an agency head, gravely abusing discretion to favor a
bidder closely related to him/her.
Elements of
illegal exactions under par. 2
1. Offender is a public officer entrusted with the collection of
taxes, licenses, fees and other imposts;
2. He is
guilty of any of the following acts or omissions:
a. Demanding, directly or
indirectly, the payment of sums different from or larger than those authorized
by law; or
b. Failing voluntarily to issue
a receipt, as provided by law, for any sum of money collected by him
officially; or
c. Collecting or receiving,
directly or indirectly, by way of payment or otherwise, things or objects of a
nature different from that provided by law.
This can only
be committed principally by a public officer whose official duty is to collect
taxes, license fees, import duties and other dues payable to the government.
Not any public
officer can commit this crime.
Otherwise, it is estafa. Fixers
cannot commit this crime unless he conspires with the public officer authorized
to make the collection.
Also, public
officers with such functions but are in the service of the Bureau of Internal
Revenue and the Bureau of Customs are not to be prosecuted under the Revised
Penal Code but under the Revised Administrative Code. These officers are authorized to make
impositions and to enter into compromises.
Because of this discretion, their demanding or collecting different from
what is necessary is legal.
This provision
of the Revised Penal Code was provided before the Bureau of Internal Revenue
and the Tariff and Customs Code. Now, we
have specific Code which will apply to them.
In the absence of any provision applicable, the Revised Administrative
Code will apply.
The essence of
the crime is not misappropriation of any of the amounts but the improper making
of the collection which would prejudice the accounting of collected amounts by
the government.
On the first form of illegal exaction
In this form,
mere demand will consummate the crime, even if the taxpayer shall refuse to
come across with the amount being demanded.
That will not affect the consummation of the crime.
In the demand,
it is not necessary that the amount being demanded is bigger than what is
payable to the government. The amount
being demanded maybe less than the amount due the government.
Note that this
is often committed with malversation or estafa because when a public officer
shall demand an amount different from what the law provides, it can be expected
that such public officer will not turn over his collection to the government.
Illustrations:
(1) A taxpayer goes to the local municipal treasurer to pay real
estate taxes on his land. Actually, what
is due the government is P400.00 only but the municipal treasurer demanded
P500.00. By that demand alone, the crime
of illegal exaction is already committed even though the taxpayer does not pay
the P500.00.
(2) Suppose the taxpayer came across with P500.00. But the municipal treasurer, thinking that he
would abstract the P100.00, issued a receipt for only P400.00. The taxpayer would naturally ask the
municipal treasurer why the receipt was only for P400.00. The treasurer answered that the P100.00 is
supposed to be for documentary stamps.
The taxpayer left.
He has a receipt for P400.00.
The municipal treasurer turned over to the government coffers P400.00
because that is due the government and pocketed the P100.00.
The mere fact that there was a demand for an amount different from what
is due the government, the public officer already committed the crime of
illegal exaction.
On the P100.00 which the public officer pocketed, will it be
malversation or estafa?
In the example given, the public officer did not include in the
official receipt the P100.00 and, therefore, it did not become part of the
public funds. It remained to be
private. It is the taxpayer who has been
defrauded of his P100.00 because he can never claim a refund from the
government for excess payment since the receipt issued to him was only P400.00
which is due the government. As far as
the P100.00 is concerned, the crime committed is estafa.
(3) A taxpayer pays his
taxes. What is due the government is
P400.00 and the public officer issues a receipt for P500.00 upon payment of the
taxpayer of said amount demanded by the public officer involved. But he altered the duplicate to reflect only
P400.00 and he extracted the difference of P100.00.
In
this case, the entire P500.00 was covered by an official receipt. That act of covering the whole amount
received from the taxpayer in an official receipt will have the characteristics
of becoming a part of the public funds.
The crimes committed, therefore, are the following:
(a) Illegal
exaction – for collecting more than he is authorized to collect. The mere act of demanding is enough to
constitute this crime.
(b) Falsification
– because there was an alteration of official document which is the duplicate of the official
receipt to show an amount less than the actual amount collected.
(c) Malversation
– because of his act of misappropriating the P100.00 excess which was covered
by an official receipt already, even though not payable to the government. The entire P500.00 was covered by the
receipt, therefore, the whole amount became public funds. So when he appropriated the P100 for his own
benefit, he was not extracting private funds anymore but public funds.
Should the falsification be complexed with the malversation?
As far as the crime of illegal exaction is concerned, it will be the
subject of separate accusation because there, the mere demand regardless of
whether the taxpayer will pay or not, will already consummate the crime of
illegal exaction. It is the breach of
trust by a public officer entrusted to make the collection which is penalized
under such article. The falsification or
alteration made on the duplicate can not be said as a means to commit
malversation. At most, the duplicate was
altered in order to conceal the malversation.
So it cannot be complexed with the malversation.
It cannot also be said that the falsification is a necessary means to
commit the malversation because the public officer can misappropriate the
P100.00 without any falsification. All
that he has to do is to get the excess of P100.00 and misappropriate it. So the falsification is a separate
accusation.
However, illegal exaction may be complexed with malversation because
illegal exaction is a necessary means to be able to collect the P100.00 excess
which was malversed.
In this crime, pay attention to whether the offender is the one charged
with the collection of the tax, license or impost subject of the
misappropriation. If he is not the one
authorized by disposition to do the collection, the crime of illegal exaction
is not committed.
If it did not give rise to the crime of illegal exaction, the funds
collected may not have become part of the public funds. If it had not become part of the public
funds, or had not become impressed with being part of the public funds, it
cannot be the subject of malversation.
It will give rise to estafa or theft as the case may be.
(3) The Municipal Treasurer
demanded P500.00 when only P400.00 was due.
He issued the receipt at P400.00 and explained to taxpayer that the P100
was for documentary stamps. The Municipal
Treasurer placed the entire P500.00 in the vault of the office. When he needed money, he took the P100.00 and
spent it.
The following crimes were committed:
(a) Illegal
exaction – for demanding a different amount;
(b) Estafa
– for deceiving the taxpayer; and
(c) Malversation
– for getting the P100.00 from the vault.
Although the excess P100.00 was not covered by the Official Receipt, it
was commingled with the other public funds in the vault; hence, it became part
of public funds and subsequent extraction thereof constitutes malversation.
Note that
numbers 1 and 2 are complexed as illegal exaction with estafa, while in number
3, malversation is a distinct offense.
The issuance of
the Official Receipt is the operative fact to convert the payment into public
funds. The payor may demand a refund by
virtue of the Official Receipt.
In cases where
the payor decides to let the official to “keep the change”, if the latter
should pocket the excess, he shall be liable for malversation. The official has no right but the government,
under the principle of accretion, as the owner of the bigger amount becomes the
owner of the whole.
On the second
form of illegal exaction
The act of
receiving payment due the government without issuing a receipt will give rise
to illegal exaction even though a provisional receipt has been issued. What the law requires is a receipt in the
form prescribed by law, which means official receipt.
Illustration:
If a government
cashier or officer to whom payment is made issued a receipt in his own private
form, which he calls provisional, even though he has no intention of
misappropriating the amount received by him, the mere fact that he issued a
receipt not in the form prescribed by law, the crime of illegal exaction is
committed. There must be voluntary
failure to issue the Official Receipt.
On the third form of illegal exaction
Under the rules
and regulations of the government, payment of checks not belonging to the
taxpayer, but that of checks of other persons, should not be accepted to settle
the obligation of that person.
Illustration:
A taxpayer pays
his obligation with a check not his own but pertaining to another. Because of that, the check bounced later on.
The crime
committed is illegal exaction because the payment by check is not allowed if
the check does not pertain to the taxpayer himself, unless the check is a
manager’s check or a certified check, amended already as of 1990. (See the case of Roman Catholic.)
Under Article
213, if any of these acts penalized as illegal exaction is committed by those
employed in the Bureau of Customs or Bureau of Internal Revenue, the law that
will apply to them will be the Revised Administrative Code or the Tariff and
Customs Code or National Revenue Code.
This crime does
not require damage to the government.
Article
214. Other Frauds
Elements
1. Offender
is a public officer;
2. He takes
advantage of his official position;
3. He
commits any of the frauds or deceits enumerated in Article 315 to 318.
Article
215. Prohibited Transactions
Elements
1. Offender
is an appointive public officer;
2. He
becomes interested, directly or indirectly, in any transaction of exchange or
speculation;
3. The
transaction takes place within the territory subject to his jurisdiction;
4. He
becomes interested in the transaction during his incumbency.
Article
216. Possession of Prohibited Interest
By A Public Officer
Persons liable
1. Public
officer who, directly or indirectly, became interested in any contracts or
business in which it was his official duty to intervene;
2. Experts,
arbitrators, and private accountants who, in like manner, took part in any
contract or transaction connected with the estate or property in the appraisal,
distribution or adjudication of which they had acted;
3. Guardians
and executors with respect to the property belonging to their wards or the
estate.
Section 14,
Article VI of the Constitution
No Senator or
Member of the House of Representatives may personally appear as counsel before
any court of justice or before the Electoral Tribunals, or quasi-judicial and
other administrative bodies. Neither
shall he, directly or indirectly, be interested financially in any contract
with, or in any franchise or special privilege granted by the Government or any
subdivision, agency or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary, during his term of office. He shall not intervene in any matter before
any office of the government for his pecuniary benefit or where he may be
called upon to act on account of his office.
Section 13,
Article VII of the Constitution
The
President, Vice-President, the Members of the Cabinet and their deputies or
assistant shall not, unless otherwise provided in this Constitution, hold any
other office or employment during their tenure.
They shall not, during said tenure, directly or indirectly, practice any
other profession, participate in any business, or be financially interested in
any contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
Section 2,
Article IX-A of the Constitution
No member of a
Constitutional Commission shall, during his tenure, hold any office or
employment. Neither shall he engage in
the practice of any profession or in the active management or control of any
business which in any way may be affected by the functions of his office, nor
shall he be financially interested, directly or indirectly, in any contract
with, or in any franchise or privilege granted by the government, or any of its
subdivisions, agencies, or instrumentalities, including government-owned or controlled
corporations or their subsidiaries.
Article
217. Malversation of Public Funds or
Property – Presumption of Malversation
Acts punished
1. Appropriating
public funds or property;
2. Taking
or misappropriating the same;
3. Consenting,
or through abandonment or negligence, permitting any other person to take such
public funds or property; and
4. Being
otherwise guilty of the misappropriation or malversation of such funds or
property.
Elements common
to all acts of malversation under Article 217
1. Offender
is a public officer;
2. He had
the custody or control of funds or property by reason of the duties of his
office;
3. Those
funds or property were public funds or property for which he was accountable;
4. He
appropriated, took, misappropriated or consented or, through abandonment or
negligence, permitted another person to take them.
This crime is
predicated on the relationship of the offender to the property or funds
involved. The offender must be
accountable for the property misappropriated.
If the fund or property, though public in character is the
responsibility of another officer, malversation is not committed unless there
is conspiracy.
It is not
necessary that the offender profited because somebody else may have
misappropriated the funds in question for as long as the accountable officer
was remiss in his duty of safekeeping public funds or property. He is liable for malversation if such funds
were lost or otherwise misappropriated by another.
There is no
malversation through simple negligence or reckless imprudence, whether
deliberately or negligently. This is one
crime in the Revised Penal Code where the penalty is the same whether committed
with dolo or culpa.
Question & Answer
What crime
under the Revised Penal Code carries the same penalty whether committed
intentionally or through negligence?
Malversation
under Article 217. There is no crime of
malversation through negligence. The
crime is malversation, plain and simple, whether committed through dolo or
culpa. There is no crime of malversation
under Article 365 – on criminal negligence – because in malversation under
Article 217, the same penalty is imposed
whether the malversation results from negligence or was the product of deliberate
act.
The crime of
malversation can be committed only by an officer accountable for the funds or
property which is appropriated. This
crime, therefore, bears a relation between the offender and the funds or
property involved.
The offender,
to commit malversation, must be accountable for the funds or property
misappropriated by him. If he is not the
one accountable but somebody else, the crime committed is theft. It will be qualified theft if there is abuse
of confidence.
Accountable
officer does not refer only to cashier, disbursing officers or property
custodian. Any public officer having
custody of public funds or property for which he is accountable can commit the
crime of malversation if he would misappropriate such fund or property or allow
others to do so.
Questions & Answers
1. An unlicensed firearm was confiscated by a policeman. Instead of turning over the firearm to the
property custodian for the prosecution of the offender, the policeman sold the
firearm. What crime was committed?
The crime committed is malversation because that firearm is subject to
his accountability. Having taken custody
of the firearm, he is supposed to account for it as evidence for the
prosecution of the offender.
2. Can the buyer be liable under the Anti-fencing law?
No. The crime is neither theft nor robbery, but malversation.
3. A member of the Philippine National Police went on absence without
leave. He was charged with malversation
of the firearm issued to him. After two
years, he came out of hiding and surrendered the firearm. What crime was committed?
The crime committed was malversation.
Payment of the amount misappropriated or restitution of property
misappropriated does not erase criminal liability but only civil liability.
When private
property is attached or seized by public authority and the public officer
accountable therefor misappropriates the same, malversation is committed also.
Illustration:
If a sheriff
levied the property of the defendants and absconded with it, he is not liable
of qualified theft but of malversation even though the property belonged to a
private person. The seizure of the
property or fund impressed it with the character of being part of the public
funds it being in custodia legis. For as
long as the public officer is the one accountable for the fund or property that
was misappropriated, he can be liable for the crime of malversation. Absent such relation, the crime could be
theft, simple or qualified.
Question & Answer
There was a
long line of payors on the last day of payment for residence certificates. Employee A of the municipality placed all his
collections inside his table and requested his employee B to watch over his
table while he goes to the restroom. B
took advantage of A’s absence and took P50.00 out of the collections. A returned and found his money short. What crimes have been committed?
A is guilty of
malversation through negligence because he did not exercise due diligence in
the safekeeping of the funds when he did not lock the drawer of his table. Insofar as B is concerned, the crime is
qualified theft.
Under
jurisprudence, when the public officer leaves his post without locking his
drawer, there is negligence. Thus, he is
liable for the loss.
Illustration:
A government
cashier did not bother to put the public fund in the public safe/vault but just
left it in the drawer of his table which has no lock. The next morning when he came back, the money
was already gone. He was held liable for
malversation through negligence because in effect, he has abandoned the fund or
property without any safety.
A private person may also commit malversation under the following
situations:
(1) Conspiracy with a
public officer in committing malversation;
(2) When he has become an
accomplice or accessory to a public officer who commits malversation;
(3) When the private person
is made the custodian in whatever capacity of public funds or property, whether
belonging to national or local government, and he misappropriates the same;
(4) When he is constituted
as the depositary or administrator of funds or property seized or attached by
public authority even though said funds or property belong to a private
individual.
Illustration:
Municipal
treasurer connives with outsiders to make it appear that the office of the
treasurer was robbed. He worked overtime
and the co-conspirators barged in, hog-tied the treasurer and made it appear
that there was a robbery. Crime
committed is malversation because the municipal treasurer was an accountable
officer.
Note that
damage on the part of the government is not considered an essential
element. It is enough that the
proprietary rights of the government over the funds have been disturbed through
breach of trust.
It is not
necessary that the accountable public officer should actually misappropriate
the fund or property involved. It is
enough that he has violated the trust reposed on him in connection with the
property.
Illustration:
(1) It is a common practice
of government cashiers to change the checks of their friends with cash in their
custody, sometimes at a discount. The
public officer knows that the check is good because the issuer thereof is a man
of name. So he changed the same with
cash. The check turned out to be good.
With that act of changing the cash of the government with the check of
a private person, even though the check is good, malversation is
committed. The reason is that a check is
cleared only after three days. During
that period of three days, the government is being denied the use of the public
fund. With more reason if that check
bounce because the government suffers.
(2) An accountable public
officer, out of laziness, declares that the payment was made to him after he
had cleaned his table and locked his safe for the collection of the day. A taxpayer came and he insisted that he pay
the amount so that he will not return the next day. So he accepted the payment but is too lazy to
open the combination of the public safe.
He just pocketed the money. When
he came home, the money was still in his pocket. The next day, when he went back to the
office, he changed clothes and he claims that he forgot to put the money in the
new funds that he would collect the next day.
Government auditors came and subjected
him to inspection. He was found
short of that amount. He claimed that it
is in his house -- with that alone, he
was charged with malversation and was convicted.
Any overage or
excess in the collection of an accountable public officer should not be
extracted by him once it is commingled with the public funds.
Illustration:
When taxpayers
pay their accountabilities to the government by way of taxes or licenses like
registration of motor vehicles, the taxpayer does not bother to collect loose
change. So the government cashier
accumulates the loose change until this amounts to a sizable sum. In order to avoid malversation, the cashier
did not separate what is due the government which was left to her by way of
loose change. Instead, he gets all of these
and keeps it in the public vault/safe.
After the payment of the taxes and licenses is through, he gets all the
official receipts and takes the sum total of the payment. He then opens the public vault and counts the
cash. Whatever will be the excess or the
overage, he gets. In this case,
malversation is committed.
Note that the
moment any money is commingled with the public fund even if not due the
government, it becomes impressed with the characteristic of being part of
public funds. Once they are commingled,
you do not know anymore which belong to the government and which belong to the
private persons. So that a public vault
or safe should not be used to hold any fund other that what is due to the
government.
When does
presumption of misappropriation arise?
When a demand
is made upon an accountable officer and he cannot produce the fund or property
involved, there is a prima facie presumption that he had converted the same to
his own use. There must be indubitable
proof that thing unaccounted for exists.
Audit should be made to determine if there was shortage. Audit must be complete and trustworthy. If there is doubt, presumption does not
arise.
Presumption
arises only if at the time the demand to produce the public funds was made, the
accountability of the accused is already determined and liquidated. A demand upon the accused to produce the
funds in his possession and a failure on his part to produce the same will not
bring about this presumption unless and until the amount of his accountability
is already known.
In Dumagat v. Sandiganbayan, 160 SCRA
483, it was held that the prima facie
presumption under the Revised Penal Code arises only if there is no issue as to
the accuracy, correctness and regularity of the audit findings and if the fact
that public funds are missing is indubitably established. The audit must be thorough and complete down
to the last detail, establishing with absolute certainty the fact that the
funds are indeed missing.
In De Guzman v. People, 119 SCRA 337, it was held that in malversation, all that is necessary
to prove is that the defendant received in his possession the public funds and
that he could not account for them and that he could not give a reasonable
excuse for their disappearance. An
accountable public officer may be convicted of malversation even if there is no
direct evidence of misappropriation and the only evidence is the shortage in
the accounts which he has not been able to explain satisfactorily.
In Cabello v. Sandiganbaya, 197 SCRA
94, it was held it was held that
malversation may be committed intentionally or by negligence. The dolo or culpa bringing about the offences
is only a modality in the perpetration of the offense. The same offense of malversation is involved,
whether the mode charged differs from the mode established in the commission of
the crime. An accused charged with
willful malversation may be convicted of Malversation through her negligee.
In Quizo v. Sandiganbayan, the accused incurred shortage (P1.74) mainly because
the auditor disallowed certain cash advances the accused granted to
employees. But on the same date that the
audit was made, he partly reimbursed the amount and paid it in full three days
later. The Supreme Court considered the
circumstances as negative of criminal intent.
The cash advances were made in good faith and out of good will to
co-employees which was a practice tolerated in the office. The actual cash shortage was only P1.74 and together with the disallowed advances
were fully reimbursed within a reasonable time.
There was no negligence, malice, nor intent to defraud.
In Ciamfranca Jr. v. Sandiganbayan, where the
accused in malversation could not give reasonable and satisfactory explanation
or excuse for the missing funds or property accountable by him, it was held
that the return of the funds or property is not a defense and does not
extinguish criminal liability.
In Parungao v. Sandiganbayan, 197 SCRA
173, it was held that a public officer
charged with malversation cannot be convicted of technical malversation
(illegal use of public funds under Article 220). To do so would violate accused’s right to be
informed of nature of accusation against him.
Technical
malversation is not included in the crime of malversation. In malversation, the offender misappropriates
public funds or property for his own personal use, or allows any other person
to take such funds or property for the latter’s own personal use. In technical malversation, the public officer
applies the public funds or property under his administration to another public
use different from that for which the public fund was appropriated by law or
ordinance. Recourse: File the proper
information.
Article 218.
Failure of Accountable Officer to Render Accounts
Elements
1. Offender is public officer, whether in the service or separated
therefrom by resignation or any other cause;
2. He is an accountable officer for public funds or property;
3. He is required by law or regulation to render account to the Commission
on Audit, or to a provincial auditor;
4. He fails
to do so for a period of two months after such accounts should be rendered.
Article 219.
Failure of A Responsible Public Officer to Render Accounts before Leaving the
Country
Elements
1. Offender is a public officer;
2. He is an accountable officer for public funds or property;
3. He unlawfully leaves or attempts to leave the Philippine Islands
without securing a certificate from the Commission on Audit showing that his
accounts have been finally settled.
When
an accountable officer leaves the country without first settling his
accountability or otherwise securing a clearance from the Commission on Audit
regarding such accountability, the implication is that he left the country
because he has misappropriated the funds under his accountability.
Who can commit
this crime? A responsible public
officer, not necessarily an accountable one, who leaves the country without
first securing clearance from the Commission on Audit.
The purpose of
the law is to discourage responsible or accountable officers from leaving
without first liquidating their accountability.
Mere leaving without
securing clearance constitutes violation of the Revised Penal Code. It is not necessary that they really
misappropriated public funds.
Article
220. Illegal use of public funds or
property
Elements
1. Offender is a public officer;
2. There are public funds or property under his administration;
3. Such fund or property were appropriated by law or ordinance;
4. He applies such public fund or property to any public use other than
for which it was appropriated for.
Illegal use of
public funds or property is also known as technical malversation. The term technical malversation is used
because in this crime, the fund or property involved is already appropriated or
earmarked for a certain public purpose.
The offender is
entrusted with such fund or property only to administer or apply the same to
the public purpose for which it was appropriated by law or ordinance. Instead of applying it to the public purpose
to which the fund or property was already appropriated by law, the public
officer applied it to another purpose.
Since damage is
not an element of malversation, even though the application made proved to be
more beneficial to public interest than the original purpose for which the
amount or property was appropriated by law, the public officer involved is still
liable for technical malversation.
If public funds
were not yet appropriated by law or ordinance, and this was applied to a public
purpose by the custodian thereof, the crime is plain and simple malversation,
not technical malversation. If the funds
had been appropriated for a particular public purpose, but the same was applied
to private purpose, the crime committed is simple malversation only.
Illustration:
The office
lacked bond papers. What the government
cashier did was to send the janitor, get some money from his collection, told
the janitor to buy bond paper so that the office will have something to
use. The amount involved maybe
immaterial but the cashier commits malversation pure and simple.
This crime can
also be committed by a private person.
Illustration:
A certain road
is to be cemented. Bags of cement were
already being unloaded at the side. But
then, rain began to fall so the supervisor of the road building went to a
certain house with a garage, asked the owner if he could possibly deposit the
bags of cement in his garage to prevent the same from being wet. The owner of the house, Olive, agreed. So the bags of cement were transferred to the
garage of the private person. After the
public officer had left, and the workers had left because it is not possible to
do the cementing, the owner of the garage started using some of the cement in
paving his own garage. The crime of
technical malversation is also committed.
Note that when
a private person is constituted as the custodian in whatever capacity, of
public funds or property, and he misappropriates the same, the crime of
malversation is also committed. See
Article 222.
Illustration:
The payroll
money for a government infrastructure project on the way to the site of the
project, the officers bringing the money were ambushed. They were all wounded. One of them, however, was able to get away
from the scene of the ambush until he reached a certain house. He told the occupant of the house to
safeguard the amount because it is the payroll money of the government laborers
of a particular project. The occupant of
the house accepted the money for his own use.
The crime is not theft but malversation as long as he knew that what was
entrusted in his custody is public fund or property.
Question & Answer
The sheriff,
after having levied on the property subject of a judgment, conducted a public
auction sale. He received the proceeds
of the public auction. Actually, the
proceeds are to be delivered to the plaintiff.
The sheriff, after deducting the sheriff’s fees due to the office, spent
part of that amount. He gave the balance
to the plaintiff and executed a promissory note to pay the plaintiff the amount
spent by him. Is there a crime
committed?
The Supreme
Court ruled that the sheriff committed the crime of malversation because the
proceeds of the auction sale was turned over to the plaintiff, such proceeds is
impressed with the characteristic of being part of public funds. The sheriff is accountable therefore because
he is not supposed to use any part of such proceeds.
Article
221. Failure to Make Delivery of Public
Funds of Property
Acts punished
1. Failing
to make payment by a public officer who is under obligation to make such
payment from government funds in his possession;
2. Refusing
to make delivery by a public officer who has been ordered by competent
authority to deliver any property in his custody or under his administration.
Elements of
failure to make payment
1. Public
officer has government funds in his possession;
2. He is
under obligation to make payment from such funds;
3. He fails
to make the payment maliciously.
Article
223. Conniving with or Consenting to
Evasion
Elements
1. Offender is a public officer;
2. He had in his custody or charge a prisoner, either detention prisoner
or prisoner by final judgment;
3. Such prisoner escaped from his custody;
4. He was in connivance with the prisoner in the latter’s escape.
Classes of
prisoners involved
1. If the
fugitive has been sentenced by final judgment to any penalty;
2. If the
fugitive is held only as detention prisoner for any crime or violation of law
or municipal ordinance.
Article 224.
Evasion through Negligence
Elements
1. Offender is a public officer;
2. He is charged with the conveyance or custody of a prisoner or prisoner
by final judgment;
3. Such prisoner escapes through negligence.
Article 225.
Escape of Prisoner under the Custody of a Person not a Public Officer
Elements
1. Offender is a private person;
2. The conveyance or custody of a prisoner or person under arrest is
confided to him;
3. The prisoner or person under arrest escapes;
4. Offender consents to the escape, or that the escape takes place through
his negligence.
The crime is
infidelity in the custody of prisoners if the offender involved is the
custodian of the prisoner.
If the offender
who aided or consented to the prisoner’s escaping from confinement, whether the
prisoner is a convict or a detention prisoner, is not the custodian, the crime
is delivering prisoners from jail under Article 156.
The crime of infidelity
in the custody of prisoners can be committed only by the custodian of a
prisoner.
If the jail
guard who allowed the prisoner to escape is already off-duty at that time and
he is no longer the custodian of the prisoner, the crime committed by him is
delivering prisoners from jail.
Note that you
do not apply here the principle of conspiracy that the act of one is the act of
all. The party who is not the custodian
who conspired with the custodian in allowing the prisoner to escape does not
commit infidelity in the custody of the prisoner. He commits the crime of delivering prisoners
from jail.
Question & Answer
If a private
person approached the custodian of the prisoner and for a certain
consideration, told the custodian to leave the door of the cell unlocked for
the prisoner to escape. What crime had
been committed?
It is not
infidelity in the custody of prisoners because as far as the private person is
concerned, this crime is delivering prisoners from jail. The infidelity is only committed by the
custodian.
This crime can
be committed also by a private person if the custody of the prisoner has been
confided to a private person.
Illustration:
A policeman
escorted a prisoner to court. After the
court hearing, this policeman was shot at with a view to liberate the prisoner
from his custody. The policeman fought
the attacker but he was fatally wounded.
When he could no longer control the prisoner, he went to a nearby house,
talked to the head of the family of that house and asked him if he could give
the custody of the prisoner to him. He
said yes. After the prisoner was
handcuffed in his hands, the policeman expired.
Thereafter, the head of the family of that private house asked the
prisoner if he could afford to give something so that he would allow him to
go. The prisoner said, “Yes, if you
would allow me to leave, you can come with me and I will give the money to
you.” This private persons went with the
prisoner and when the money was given, he allowed him to go. What crime/s had been committed?
Under Article
225, the crime can be committed by a private person to whom the custody of a
prisoner has been confided.
Where such
private person, while performing a private function by virtue of a provision of
law, shall accept any consideration or gift for the non-performance of a duty
confided to him, Bribery is also committed.
So the crime committed by him is infidelity in the custody of prisoners
and bribery.
If the crime is
delivering prisoners from jail, bribery is just a means, under Article 156,
that would call for the imposition of a heavier penalty, but not a separate
charge of bribery under Article 156.
But under
Article 225 in infidelity, what is basically punished is the breach of trust
because the offender is the custodian.
For that, the crime is infidelity.
If he violates the trust because of some consideration, bribery is also
committed.
A higher degree
of vigilance is required. Failure to do
so will render the custodian liable. The prevailing ruling is against laxity in
the handling of prisoners.
Illustration:
A prison guard
accompanied the prisoner in the toilet.
While answering the call of nature, police officer waiting there, until
the prisoner escaped. Police officer was
accused of infidelity.
There is no
criminal liability because it does not constitute negligence. Negligence contemplated here refers to
deliberate abandonment of duty.
Note, however,
that according to a recent Supreme Court ruling, failure to accompany lady
prisoner in the comfort room is a case of negligence and therefore the
custodian is liable for infidelity in the custody of prisoner.
Prison guard
should not go to any other place not officially called for. This is a case of infidelity in the custody
of prisoner through negligence under Article 224.
Article
226. Removal, Concealment, or
Destruction of Documents
Elements
1. Offender
is a public officer;
2. He
abstracts, destroys or conceals a document or papers;
3. Said
document or papers should have been entrusted to such public officer by reason
of his office;
4. Damage,
whether serious or not, to a third party or to the public interest has been
caused.
Crimes falling
under the section on infidelity in the custody of public documents can only be
committed by the public officer who is made the custodian of the document in
his official capacity. If the officer
was placed in possession of the document but it is not his duty to be the
custodian thereof, this crime is not committed.
Illustration:
A letter is
entrusted to a postmaster for transmission of a registered letter to
another. The postmaster opened the
letter and finding the money, extracted the same. The crime committed is infidelity in the
custody of the public document because under Article 226, the law refers also
to papers entrusted to public officer involved and currency note is considered
to be within the term paper although it is not a document.
With respect to
official documents, infidelity is committed by destroying the document, or
removing the document or concealing the document.
Damage to
public interest is necessary. However,
material damage is not necessary.
Illustration:
If any citizen
goes to a public office, desiring to go over public records and the custodian
of the records had concealed the same so that this citizen is required to go
back for the record to be taken out, the crime of infidelity is already
committed by the custodian who removed the records and kept it in a place where
it is not supposed to be kept. Here, it
is again the breach of public trust which is punished.
Although there
is no material damage caused, mere delay in rendering public service is
considered damage.
Removal of
public records by the custodian does not require that the record be brought out
of the premises where it is kept. It is
enough that the record be removed from the place where it should be and
transferred to another place where it is not supposed to be kept. If damage is caused to the public service,
the public officer is criminally liable for infidelity in the custody of
official documents.
Distinction
between infidelity in the custody of public document, estafa and malicious
mischief
·
In infidelity in the custody of public document,
the offender is the custodian of the official document removed or concealed.
·
In estafa, the offender is not the custodian of
the document removed or concealed.
·
In malicious mischief, the offender purposely
destroyed and damaged the property/document.
Where in case
for bribery or corruption, the monetary considerations was marked as exhibits,
such considerations acquires the nature of a document such that if the same
would be spent by the custodian the crime is not malversation but Infidelity in
the custody of public records, because the money adduced as exhibits partake the
nature of a document and not as money.
Although such monetary consideration acquires the nature of a document,
the best evidence rule does not apply here.
Example, photocopies may be presented in evidence.
Article
227. Officer Breaking Seal
Elements
1. Offender
is a public officer;
2. He is
charged with the custody of papers or property;
3. These
papers or property are sealed by proper authority;
4. He
breaks the seal or permits them to be broken.
If the official
document is sealed or otherwise placed in an official envelope, the element of
damage is not required. The mere
breaking of the seal or the mere opening of the document would already bring
about infidelity even though no damage has been suffered by anyone or by the
public at large. The offender does not
have to misappropriate the same. Just
trying to discover or look what is inside is infidelity already.
The act is
punished because if a document is entrusted to the custody of a public officer
in a sealed or closed envelope, such public officer is supposed not to know
what is inside the same. If he would
break the seal or open the closed envelop, indications would be that he tried
to find out the contents of the document.
For that act, he violates the confidence or trust reposed on him.
A crime is
already committed regardless of whether the contents of the document are secret
or private. It is enough that it is
entrusted to him in a sealed form or in a closed envelope and he broke the seal
or opened the envelop. Public trust is
already violated if he managed to look into the contents of the document.
Distinction between infidelity and theft
·
There is infidelity if the offender opened the
letter but did not take the same.
·
There is theft if there is intent to gain when the
offender took the money.
Note that he
document must be complete in legal sense.
If the writings are mere form, there is no crime.
Illustration:
As regard the
payroll, which has not been signed by the Mayor, no infidelity is committed
because the document is not yet a payroll in the legal sense since the document
has not been signed yet.
In
"breaking of seal", the word "breaking" should not be given
a literal meaning. Even if actually, the
seal was not broken, because the custodian managed to open the parcel without
breaking the seal.
Article
228. Opening of Closed Documents
Elements
1. Offender
is a public officer;
2. Any
closed papers, documents, or object are entrusted to his custody;
3. He opens
or permits to be opened said closed papers, documents or objects;
4. He does
not have proper authority.
Article
229. Revelation of Secrets by An Officer
Acts punished
1. Revealing
any secrets known to the offending public officer by reason of his official
capacity;
Elements
a. Offender is a public officer;
b. He knows of a secret by
reason of his official capacity;
c. He reveals such secret
without authority or justifiable reasons;
d. Damage, great or small, is
caused to the public interest.
2. Delivering wrongfully papers or copies of
papers of which he may have charge and which should not be published.
Elements
a. Offender is a public officer;
b. He has charge of papers;
c. Those papers should not be
published;
d. He delivers those papers or
copies thereof to a third person;
e. The delivery is wrongful;
f. Damage is caused to public
interest.
Article
230. Public Officer Revealing Secrets of
Private individual
Elements
1. Offender
is a public officer;
2. He knows
of the secrets of a private individual by reason of his office;
3. He
reveals such secrets without authority or justifiable reason.
Article 231. Open Disobedience
Elements
1. Officer
is a judicial or executive officer;
2. There is
a judgment, decision or order of a superior authority;
3. Such
judgment, decision or order was made within the scope of the jurisdiction of
the superior authority and issued with all the legal formalities;
4. He,
without any legal justification, openly refuses to execute the said judgment,
decision or order, which he is duty bound to obey.
Article
232. Disobedience to Order of Superior Officer When Said Order Was Suspended by
Inferior Officer
Elements
1. Offender
is a public officer;
2. An order
is issued by his superior for execution;
3. He has
for any reason suspended the execution of such order;
4. His
superior disapproves the suspension of the execution of the order;
5. Offender
disobeys his superior despite the disapproval of the suspension.
Article
233. Refusal of Assistance
Elements
1. Offender is a public officer;
2. A competent authority demands from the offender that he lend his
cooperation towards the administration of justice or other public service;
3. Offender
fails to do so maliciously.
Any public
officer who, upon being requested to render public assistance within his
official duty to render and he refuses to render the same when it is necessary
in the administration of justice or for public service, may be prosecuted for
refusal of assistance.
This is a
crime, which a policeman may commit when, being subpoenaed to appear in court
in connection with a crime investigated by him but because of some arrangement
with the offenders, the policeman does not appear in court anymore to testify
against the offenders. He tried to
assail the subpoena so that ultimately the case would be dismissed. It was already held that the policeman could
be prosecuted under this crime of refusal of assistance and not that of
dereliction of duty.
Illustration:
A government
physician, who had been subpoenaed to appear in court to testify in connection
with physical injury cases or cases involving human lives, does not want to
appear in court to testify. He may be
charged for refusal of assistance. As
long as they have been properly notified by subpoena and they disobeyed the
subpoena, they can be charged always if it can be shown that they are
deliberately refusing to appear in court.
It is not
always a case or in connection with the appearance in court that this crime may
be committed. Any refusal by the public
officer to render assistance when demanded by competent public authority, as
long as the assistance requested from them is within their duty to render and
that assistance is needed for public service, the public officers who are
refusing deliberately may be charged with refusal of assistance.
Note that the
request must come from one public officer to another.
Illustration:
A fireman was
asked by a private person for services but was refused by the former for lack
of “consideration”.
It was held
that the crime is not refusal of assistance because the request did not come
from a public authority. But if the
fireman was ordered by the authority to put out the fire and he refused, the
crime is refusal of assistance.
If he receives
consideration therefore, bribery is committed.
But mere demand will fall under the prohibition under the provision of
Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act).
Article
234. Refusal to Discharge Elective
Office
Elements
1. Offender
is elected by popular election to a public office;
2. He
refuses to be sworn in or to discharge the duties of said office;
3. There is
no legal motive for such refusal to be sworn in or to discharge the duties of
said office.
Article
235. Maltreatment of Prisoners
Elements
1. Offender
is a public officer or employee;
2. He has
under his charge a prisoner or detention prisoner;
3. He
maltreats such prisoner in either of the following manners:
a. By overdoing himself in the
correction or handling of a prisoner or detention prisoner under his charge
either –
(1) By the
imposition of punishment not authorized by the regulations;
(2) By
inflicting such punishments (those authorized) in a cruel and humiliating
manner; or
b. By maltreating such prisoners
to extort a confession or to obtain some information from the prisoner.
This is
committed only by such public officer charged with direct custody of the
prisoner. Not all public officer can
commit this offense.
If the public
officer is not the custodian of the prisoner, and he manhandles the latter, the
crime is physical injuries.
The maltreatment
does not really require physical injuries.
Any kind of punishment not authorized or though authorized if executed
in excess of the prescribed degree.
Illustration:
Make him drink
dirty water, sit on ice, eat on a can, make him strip, hang a sign on his neck
saying “snatcher”.
But if as a
result of the maltreatment, physical injuries were caused to the prisoner, a
separate crime for the physical injuries shall be filed. You do not complex the crime of physical
injuries with the maltreatment because the way Article 235 is worded, it
prohibits the complexing of the crime.
If the
maltreatment was done in order to extort confession, therefore, the
constitutional right of the prisoner is further violated. The penalty is qualified to the next higher degree.
The offended
party here must be a prisoner in the legal sense. The mere fact that a private citizen had been
apprehended or arrested by a law enforcer does not constitute him a prisoner. To be a prisoner, he must have been booked
and incarcerated no matter how short it is.
Illustration:
A certain
snatcher was arrested by a law enforcer, brought to the police precinct, turned
over to the custodian of that police precinct.
Every time a policeman entered the police precinct, he would ask, “What is
this fellow doing here? What crime has he committed?”. The other policeman would then tell, “This
fellow is a snatcher.” So every time a
policeman would come in, he would inflict injury to him. This is not maltreatment of prisoner because
the offender is not the custodian. The
crime is only physical injuries.
But if the
custodian is present there and he allowed it, then he will be liable also for
the physical injuries inflicted, but not for maltreatment because it was not
the custodian who inflicted the injury.
But if it is
the custodian who effected the maltreatment, the crime will be maltreatment of
prisoners plus a separate charge for physical injuries.
If a prisoner
who had already been booked was make to strip his clothes before he was put in the
detention cell so that when he was placed inside the detention cell, he was
already naked and he used both of his hands to cover his private part, the
crime of maltreatment of prisoner had already been committed.
After having
been booked, the prisoner was made to show any sign on his arm, hand or his
neck; “Do not follow my footsteps, I am a thief.” That is maltreatment of prisoner if the
offended party had already been booked and incarcerated no matter how short, as
a prisoner.
Before this
point in time, when he is not yet a prisoner, the act of hanging a sign on his
neck will only amount to slander because the idea is to cast dishonor. Any injury inflicted upon him will only give
rise to the crime of physical injuries.
Article
236. Anticipation of Duties of A Public
Office
Elements
1. Offender
is entitled to hold a public office or employment, either by election or
appointment;
2. The law
requires that he should first be sworn in and/or should first give a bond;
3. He
assumes the performance of the duties and powers of such office;
4. He has
not taken his oath of office and/or given the bond required by law.
Article
237. Prolonging Performance of Duties
and Powers
Elements
1. Offender
is holding a public office;
2. The
period provided by law, regulations or special provision for holding such
office, has already expired;
3. He
continues to exercise the duties and powers of such office.
Article
238. Abandonment of Office or Position
Elements
1. Offender
is a public officer;
2. He
formally resigns from his position;
3. His resignation has not yet been accepted;
4. He
abandons his office to the detriment of the public service.
Article
239. Usurpation of Legislative Powers
Elements
1. Offender
is an executive or judicial officer;
2. He (a)
makes general rules or regulations beyond the scope of his authority or (b)
attempts to repeal a law or (c) suspends the execution thereof.
Article
240. Usurpation of Executive Functions
Elements
1. Offender
is a judge;
2. He (a)
assumes a power pertaining to the executive authorities, or (b) obstructs the
executive authorities in the lawful exercise of their powers.
Article
241. Usurpation of Judicial Functions
Elements
1. Offender
is an officer of the executive branch of the government;
2. He (a) assumes
judicial powers, or (b) obstructs the execution of any order or decision
rendered by any judge within his jurisdiction.
Article
242. Disobeying Request for
Disqualification
Elements
1. Offender
is a public officer;
2. A
proceeding is pending before such public officer;
3. There is
a question brought before the proper authority regarding his jurisdiction,
which is not yet decided;
4. He has been lawfully required to refrain form continuing the
proceeding;
5. He continues the proceeding.
Article 243. Orders or Request by Executive Officers to Any
Judicial Authority
Elements
1. Offender
is an executive officer;
2. He
addresses any order or suggestion to any judicial authority;
3. The
order or suggestion relates to any case or business coming within the exclusive
jurisdiction of the courts of justice.
Article
244. Unlawful Appointments
Elements
1. Offender
is a public officer;
2. He
nominates or appoints a person to a public office;
3. Such
person lacks the legal qualifications therefore;
4. Offender
knows that his nominee or appointee lacks the qualification at the time he made
the nomination or appointment.
Article
245. Abuses against Chastity
Acts punished
1. Soliciting
or making immoral or indecent advances to a woman interested in matters pending
before the offending officer for decision, or with respect to which he is
required to submit a report to or consult with a superior officer;
2. Soliciting
or making immoral or indecent advances to a woman under the offender’s custody;
3. Soliciting
or making immoral or indecent advances to the wife, daughter, sister or
relative within the same degree by affinity of any person in the custody of the
offending warden or officer.
Elements:
1. Offender
is a public officer;
2. He
solicits or makes immoral or indecent advances to a woman;
3. Such
woman is –
a. interested in matters pending
before the offender for decision, or with respect to which he is required to
submit a report to or consult with a superior officer; or
b. under the custody of the
offender who is a warden or other public officer directly charged with the care
and custody of prisoners or persons under arrest; or
c. the wife, daughter, sister
or relative within the same degree by affinity of the person in the custody of
the offender.
The name of the
crime is misleading. It implies that the
chastity of the offended party is abused but this is not really the essence of
the crime because the essence of the crime is mere making of immoral or
indecent solicitation or advances.
Illustration:
Mere indecent
solicitation or advances of a woman over whom the public officer exercises a
certain influence because the woman is involved in a case where the offender is
to make a report of result with superiors or otherwise a case which the
offender was investigating.
This crime is
also committed if the woman is a prisoner and the offender is her jail warden
or custodian, or even if the prisoner may be a man if the jail warden would
make the immoral solicitations upon the wife, sister, daughter, or relative by
affinity within the same degree of the prisoner involved.
Three instances when this crime may arise:
(1) The woman, who is the
offended party, is the party in interest in a case where the offended is the
investigator or he is required to render a report or he is required to consult
with a superior officer.
This does not include any casual or incidental interest. This refers to interest in the subject of the
case under investigation.
If the public officer charged with the investigation or with the
rendering of the report or with the giving of advice by way of consultation
with a superior, made some immoral or indecent solicitation upon such woman, he
is taking advantage of his position over the case. For that immoral or indecent solicitation, a
crime is already committed even if the woman did not accede to the
solicitation.
Even if the woman may have lied with the hearing officer or to the
public officer and acceded to him, that does not change the crime because the
crime seeks to penalize the taking advantage of official duties.
It is immaterial whether the woman did not agree or agreed to the
solicitation. If the woman did not agree
and the public officer involved pushed through with the advances, attempted
rape may have been committed.
(2) The woman who is the
offended party in the crime is a prisoner under the custody of a warden or the
jailer who is the offender.
If the warden or jailer of the woman should make immoral or indecent
advances to such prisoner, this crime is committed.
This crime cannot be committed if the warden is a woman and the
prisoner is a man. Men have no chastity.
If the warden is also a woman but is a lesbian, it is submitted that
this crime could be committed, as the law does not require that the custodian
be a man but requires that the offended be a woman.
Immoral or indecent advances contemplated here must be persistent. It must be determined. A mere joke would not suffice.
Illustrations:
(1) An
investigating prosecutor where the woman is charged with estafa as the
respondent, made a remark to the woman, thus:
“You know, the way of deciding this case depends on me. I can just say this is civil in character. I want to see a movie tonight and I want a
companion.” Such a remark, which is not
discerned if not persistent will not give rise to this crime. However, if the prosecutor kept on calling
the woman and inviting her, that makes the act determined and the crime is
committed.
(2) A
jailer was prosecuted for abuse against chastity. The jailer said, “It was mutual on their
part. I did not really force my way upon
the woman. The woman fell in love with
me, I fell in love with the woman.” The
woman became pregnant. The woman
admitted that she was not forced. Just
the same, the jailer was convicted of abuse against chastity.
Legally, a prisoner is an accountability of the government. So the custodian is not supposed to
interfere. Even if the prisoner may like
it, he is not supposed to do that.
Otherwise, abuse against chastity is committed.
Being responsible for the pregnancy is itself taking advantage the
prisoner.
If he forced himself against the will of the woman, another crime is
committed, that is, rape aside from abuse against chastity.
You cannot consider the abuse against chastity as absorbed in the rape
because the basis of penalizing the acts is different from each other.
(3) The crime is committed
upon a female relative of a prisoner under the custody of the offender, where
the woman is the daughter, sister or relative by affinity in the same line as
of the prisoner under the custody of the offender who made the indecent or
immoral solicitation.
The mother is not included so that any immoral or indecent solicitation
upon the mother of the prisoner does not give rise to this crime, but the offender
may be prosecuted under the Section 28 of Republic Act No. 3019 (Anti-graft and
Corrupt Practices Act).
Why is the mother left out?
Because it is the mother who easily succumbs to protect her child.
If the offender were not the custodian, then crime would fall under
Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act).
Republic Act
No. 7877 (Anti-Sexual Harassment Act)
Committed by any person having authority,
influence or moral ascendancy over another in a work, training or education
environment when he or she demands, requests, or otherwise requires any sexual
favor from the other regardless of whether the demand, request or requirement
for submission is accepted by the object of the said act (for a passing grade,
or granting of scholarship or honors, or payment of a stipend, allowances,
benefits, considerations; favorable compensation terms, conditions, promotions
or when the refusal to do so results in a detrimental consequence for the
victim).
Also holds liable any person who directs or
induces another to commit any act of sexual harassment, or who cooperates in
the commission, the head of the office, educational or training institution
solidarily.
Complaints to be handled by a committee on
decorum, which shall be determined by rules and regulations on such.
Administrative sanctions shall not be a bar
to prosecution in the proper courts for unlawful acts of sexual harassment.
TITLE
VIII. CRIMES AGAINST PERSONS
Crimes
against persons
1.
Parricide (Art. 246);
2. Murder
(Art. 248);
3. Homicide
(Art. 249);
4. Death
caused in a tumultuous affray (Art. 251);
5. Physical
injuries inflicted in a tumultuous affray (Art. 252);
6. Giving
assistance to suicide (Art. 253);
7. Discharge
of firearms (Art. 254);
8. Infanticide
(Art. 255);
9. Intentional
abortion (Art. 256);
10. Unintentional
abortion (Art. 257);
11. Abortion
practiced by the woman herself or by her parents (Art. 258);
12. Abortion
practiced by a physician or midwife and dispensing of abortives (Art. 259);
13. Duel
(Art. 260);
14. Challenging
to a duel (Art. 261);
15. Mutilation
(Art. 262);
16. Serious
physical injuries (Art. 263);
17. Administering
injurious substances or beverages (Art. 264);
18. Less
serious physical injuries (Art. 265);
19. Slight physical
injuries and maltreatment (Art. 266); and
20. Rape
(Art. 266-A).
The essence of
crime here involves the taking of human life, destruction of the fetus or
inflicting injuries.
As to the
taking of human life, you have:
(1) Parricide;
(2) Murder;
(3) Homicide;
(4) Infanticide; and
(5) Giving assistance to
suicide.
Note that
parricide is premised on the relationship between the offender and the
offended. The victim is three days old or older. A stranger who conspires with the parent is guilty
of murder.
In infanticide,
the victim is younger than three days or 72 hours old; can be committed by a
stranger. If a stranger who conspires
with parent, both commit the crime of infanticide.
Article
246. Parricide
Elements
1. A person
is killed;
2. The
deceased is killed by the accused;
3. The
deceased is the father, mother, or child, whether legitimate or illegitimate,
or a legitimate other ascendant or other descendant, or the legitimate spouse,
of the accused.
This is a crime
committed between people who are related by blood. Between spouses, even though they are not
related by blood, it is also parricide.
The
relationship must be in the direct line and not in the collateral line.
The
relationship between the offender and the offended party must be legitimate,
except when the offender and the offended party are related as parent and
child.
If the offender
and the offended party, although related by blood and in the direct line, are
separated by an intervening illegitimate relationship, parricide can no longer
be committed. The illegitimate
relationship between the child and the parent renders all relatives after the
child in the direct line to be illegitimate too.
The only
illegitimate relationship that can bring about parricide is that between
parents and illegitimate children as the offender and the offended parties.
Illustration:
A is the parent
of B, the illegitimate daughter. B
married C and they begot a legitimate child D.
If D, daughter of B and C, would kill A, the grandmother, the crime
cannot be parricide anymore because of the intervening illegitimacy. The relationship between A and D is no longer
legitimate. Hence, the crime committed
is homicide or murder.
Since parricide
is a crime of relationship, if a stranger conspired in the commission of the
crime, he cannot be held liable for parricide.
His participation would make him liable for murder or for homicide, as
the case may be. The rule of conspiracy
that the act of one is the act of all does not apply here because of the
personal relationship of the offender to the offended party.
Illustration:
A spouse of B
conspires with C to kill B. C is the
stranger in the relationship. C killed B
with treachery. The means employed is made known to A and A agreed that the killing
will be done by poisoning.
As far as A is
concerned, the crime is based on his relationship with B. It is therefore
parricide. The treachery that was
employed in killing Bong will only be generic aggravating circumstance in the
crime of parricide because this is not one crime that requires a qualifying
circumstance.
But that same
treachery, insofar as C is concerned, as a stranger who cooperated in the
killing, makes the crime murder; treachery becomes a qualifying circumstance.
In killing a
spouse, there must be a valid subsisting marriage at the time of the killing.
Also, the information should allege the fact of such valid marriage between the
accused and the victim.
In a ruling by
the Supreme Court, it was held that if the information did not allege that the
accused was legally married to the victim, he could not be convicted of
parricide even if the marriage was established during the trial. In such cases,
relationship shall be appreciated as generic aggravating circumstance.
The Supreme Court
has also ruled that Muslim husbands with several wives can be convicted of
parricide only in case the first wife is killed. There is no parricide if the other wives are
killed although their marriage is recognized as valid. This is so because a Catholic man can commit
the crime only once. If a Muslim husband
could commit this crime more than once, in effect, he is being punished for the
marriage which the law itself authorized him to contract.
That the mother
killed her child in order to conceal her dishonor is not mitigating. This is immaterial to the crime of parricide,
unlike in the case of infanticide. If
the child is less than three days old when killed, the crime is infanticide and
intent to conceal her dishonor is considered mitigating.
Article
247. Death or Physical Injuries
Inflicted under Exceptional Circumstances
Elements
1. A
legally married person, or a parent, surprises his spouse or his daughter, the
latter under 18 years of age and living with him, in the act of committing
sexual intercourse with another person;
2. He or
she kills any or both of them, or inflicts upon any or both of them any serious
physical injury in the act or immediately thereafter;
3. He has
not promoted or facilitated the prostitution of his wife or daughter, or that
he or she has not consented to the infidelity of the other spouse.
Two stages contemplated before the article will apply:
(1) When the offender
surprised the other spouse with a paramour or mistress. The attack must take place while the sexual
intercourse is going on. If the surprise
was before or after the intercourse, no matter how immediate it may be, Article
247 does not apply. The offender in this
situation only gets the benefit of a mitigating circumstance, that is,
sufficient provocation immediately preceding the act.
(2) When the offender kills
or inflicts serious physical injury upon the other spouse and/or paramour while
in the act of intercourse, or immediately thereafter, that is, after
surprising.
You have to
divide the stages because as far as the first stage is concerned, it does not
admit of any situation less than sexual intercourse.
So if the
surprising took place before any actual sexual intercourse could be done
because the parties are only in their preliminaries, the article cannot be
invoked anymore.
If the
surprising took place after the actual sexual intercourse was finished, even if
the act being performed indicates no other conclusion but that sexual
intercourse was had, the article does not apply.
As long as the
surprising took place while the sexual intercourse was going on, the second
stage becomes immaterial.
It is either
killing or inflicting physical injuries while in that act or immediately
thereafter. If the killing was done
while in that act, no problem. If the
killing was done when sexual intercourse is finished, a problem arises. First, were they surprised in actual sexual
intercourse? Second, were they killed
immediately thereafter?
The phrase “immediately thereafter” has been
interpreted to mean that between the surprising and the killing of the
inflicting of the physical injury, there should be no break of time. In other
words, it must be a continuous process.
The article
presumes that a legally married person who surprises his or her better half in
actual sexual intercourse would be overcome by the obfuscation he felt when he
saw them in the act that he lost his head.
The law, thus, affords protection to a spouse who is considered to have
acted in a justified outburst of passion or a state of mental
disequilibrium. The offended spouse has
no time to regain his self-control.
If there was
already a break of time between the sexual act and the killing or inflicting of
the injury, the law presupposes that the offender regained his reason and therefore,
the article will not apply anymore.
As long as the
act is continuous, the article still applies.
Where the accused
surprised his wife and his paramour in the act of illicit intercourse, as a
result of which he went out to kill the paramour in a fit of passionate
outburst. Although about one hour had
passed between the time the accused discovered his wife having sexual
intercourse with the victim and the time the latter was actually killed, it was
held in People
v. Abarca, 153 SCRA 735, that Article 247
was applicable, as the shooting was a continuation of the pursuit of the victim
by the accused. Here, the accused, after
the discovery of the act of infidelity of his wife, looked for a firearm in Tacloban City
Article 247
does not provide that the victim is to be killed instantly by the accused after
surprising his spouse in the act of intercourse. What is required is that the killing is the
proximate result of the outrage overwhelming the accused upon the discovery of
the infidelity of his spouse. The
killing should have been actually motivated by the same blind impulse.
Illustration:
A upon coming
home, surprised his wife, B, together with C.
The paramour was fast enough to jump out of the window. A got the bolo and chased C but he disappeared
among the neighborhood. So A started
looking around for about an hour but he could not find the paramour. A gave up and was on his way home.
Unfortunately, the paramour, thinking that A was no longer around, came out of
hiding and at that moment, A saw him and hacked him to death. There was a break of time and Article 247
does not apply anymore because when he gave up the search, it is a circumstance
showing that his anger had already died down.
Article 247,
far from defining a felony merely grants a privilege or benefit, more of an
exempting circumstance as the penalty is intended more for the protection of
the accused than a punishment. Death
under exceptional character can not be qualified by either aggravating or
mitigating circumstances.
In the case of People
v. Abarca, 153 SCRA 735, two persons suffered physical injuries as they
were caught in the crossfire when the accused shot the victim. A complex crime of double frustrated murder
was not committed as the accused did not have the intent to kill the two
victims. Here, the accused did not
commit murder when he fired at the paramour of his wife. Inflicting death under exceptional
circumstances is not murder. The accused
was held liable for negligence under the first part, second paragraph of
Article 365, that is, less serious physical injuries through simple
negligence. No aberratio ictus because
he was acting lawfully.
A person who
acts under Article 247 is not committing a crime. Since this is merely an exempting
circumstance, the accused must first be charged with:
(1) Parricide – if the spouse is killed;
(2) Murder or homicide –
depending on how the killing was done insofar as the paramour or the mistress
is concerned;
(3) Homicide – through
simple negligence, if a third party is killed;
(4) Physical injuries –
through reckless imprudence, if a third party is injured.
If death
results or the physical injuries are serious, there is criminal liability
although the penalty is only destierro.
The banishment is intended more for the protection of the offender
rather than a penalty.
If the crime
committed is less serious physical injuries or slight physical injuries, there
is no criminal liability.
The article
does not apply where the wife was not surprised in flagrant adultery but was being
abused by a man as in this case there will be defense of relation.
If the offender
surprised a couple in sexual intercourse, and believing the woman to be his
wife, killed them, this article may be applied if the mistake of facts is
proved.
The benefits of
this article do not apply to the person who consented to the infidelity of his
spouse or who facilitated the prostitution of his wife.
The article is
also made available to parents who shall surprise their daughter below 18 years
of age in actual sexual intercourse while “living with them.” The act should have been committed by the
daughter with a seducer. The two stages
also apply. The parents cannot invoke
this provision if, in a way, they have encouraged the prostitution of the
daughter.
The phrase “living with them” is understood to be in
their own dwelling, because of the embarrassment and humiliation done not only
to the parent but also to the parental abode.
If it was done
in a motel, the article does not apply.
Illustration:
A abandoned his
wife B for two years. To support their
children, A had to accept a relationship with another man. A learned of this, and surprised them in the
act of sexual intercourse and killed B.
A is not entitled to Article 248. Having abandoned his family for two
years, it was natural for her to feel some affection for others, more so of a
man who could help her.
Homicide
committed under exceptional circumstances, although punished with destierro, is
within the jurisdiction of the Regional Trial Court and not the MTC because the
crime charged is homicide or murder. The exceptional circumstances, not being
elements of the crime but a matter of defense, are not pleaded. It practically grants a privilege amounting
to an exemption for adequate punishment.
Article
248. Murder
Elements
1. A
person was killed;
2. Accused
killed him;
3. The
killing was attended by any of the following qualifying circumstances –
a. With
treachery, taking advantage of superior strength, with the aid or armed men, or
employing means to waken the defense, or of means or persons to insure or
afford impunity;
b. In consideration of a price, reward or promise;
c. By means of inundation, fire, poison, explosion, shipwreck,
stranding of a vessel, derailment or assault upon a railroad, fall of an airship,
by means of motor vehicles, or with the use of any other means involving great
waste and ruin;
d. On occasion of any of the calamities enumerated in the preceding
paragraph, or of an earthquake, eruption of a volcano, destructive cyclone,
epidemic, or any other public calamity;
e. With evident premeditation;
f. With cruelty, by deliberately and inhumanly augmenting the
suffering of the victim, or outraging or scoffing at his person or corpse.
4. The killing is not parricide or infanticide.
Homicide is
qualified to murder if any of the qualifying circumstances under Article 248 is
present. It is the unlawful killing of a
person not constituting murder, parricide or infanticide.
In murder, any
of the following qualifying circumstances is present:
(1) Treachery, taking advantage of superior strength, aid or
armed men, or employing means to waken the defense, or of means or persons to
insure or afford impunity;
There is treachery when the offender commits any of the crimes against
the person employing means, methods or forms in the execution thereof that tend
directly and especially to insure its execution without risk to himself arising
from the defense which the offended party might make.
This circumstance involves means, methods, form in the execution of the
killing which may actually be an aggravating circumstance also, in which case,
the treachery absorbs the same.
Illustration:
A person who is determined to kill resorted to the cover of darkness at
nighttime to insure the killing.
Nocturnity becomes a means that constitutes treachery and the killing
would be murder. But if the aggravating
circumstance of nocturnity is considered by itself, it is not one of those
which qualify a homicide to murder. One
might think the killing is homicide unless nocturnity is considered as
constituting treachery, in which case the crime is murder.
The essence of treachery is that the
offended party was denied the chance to defend himself because of the means,
methods, form in executing the crime deliberately adopted by the offender. It is a matter of whether or not the offended
party was denied the chance of defending himself.
If the offended was denied the chance to defend himself, treachery
qualifies the killing to murder. If
despite the means resorted to by the offender, the offended was able to put up
a defense, although unsuccessful, treachery is not available. Instead, some other circumstance may be
present. Consider now whether such other
circumstance qualifies the killing or not.
Illustration:
If the offender used superior strength and the victim was denied the
chance to defend himself, there is treachery.
The treachery must be alleged in the information. But if the victim was able to put up an
unsuccessful resistance, there is no more treachery but the use of superior
strength can be alleged and it also qualifies the killing to murder.
One attendant qualifying circumstance is enough. If there are more than one qualifying
circumstance alleged in the information for murder, only one circumstance will
qualify the killing to murder and the other circumstances will be taken as
generic.
To be considered qualifying, the particular circumstance must be
alleged in the information. If what was
alleged was not proven and instead another circumstance, not alleged, was
established during the trial, even if the latter constitutes a qualifying
circumstance under Article 248, the same can not qualify the killing to
murder. The accused can only be
convicted of homicide.
Generally, murder cannot be committed if at the beginning, the offended
had no intent to kill because the qualifying circumstances must be resorted to
with a view of killing the offended party.
So if the killing were at the “spur of the moment”, even though the
victim was denied the chance to defend himself because of the suddenness of the
attack, the crime would only be homicide.
Treachery contemplates that the means, methods and form in the execution
were consciously adopted and deliberately resorted to by the offender, and were
not merely incidental to the killing.
If the offender may have not intended to kill the victim but he only
wanted to commit a crime against him in the beginning, he will still be liable
for murder if in the manner of committing the felony there was treachery and as
a consequence thereof the victim died.
This is based on the rule that a person committing a felony shall be
liable for the consequences thereof although different from that which he
intended.
Illustration:
The accused, three young men, resented the fact that the victim
continued to visit a girl in their neighborhood despite the warning they gave
him. So one evening, after the victim
had visited the girl, they seized and tied him to a tree, with both arms and
legs around the tree. They thought they
would give him a lesson by whipping him with branches of gumamela until the
victim fell unconscious. The accused
left not knowing that the victim died.
The crime committed was murder.
The accused deprived the victim of the chance to defend himself when the
latter was tied to a tree. Treachery is
a circumstance referring to the manner of committing the crime. There was no risk to the accused arising from
the defense by the victim.
Although what was initially intended was physical injury, the manner
adopted by the accused was treacherous and since the victim died as a
consequence thereof, the crime is murder -- although originally, there was no
intent to kill.
When the victim is already dead, intent to kill becomes
irrelevant. It is important only if the
victim did not die to determine if the felony is physical injury or attempted
or frustrated homicide.
So long as the means, methods and form in the execution is deliberately
adopted, even if there was no intent to kill, there is treachery.
(2) In consideration of
price, reward or promises;
(3) Inundation, fire,
poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon
a street car or locomotive, fall of an airship, by means of a motor vehicle, or
with the use of other means involving great waste and ruin;
The only problem insofar as the killing by fire is concerned is whether
it would be arson with homicide, or murder.
When a person is killed by fire, the primordial criminal intent of the
offender is considered. If the
primordial criminal intent of the offender is to kill and fire was only used as
a means to do so, the crime is only murder.
If the primordial criminal intent of the offender is to destroy property
with the use of pyrotechnics and incidentally, somebody within the premises is
killed, the crime is arson with homicide.
But this is not a complex crime under Article 48. This is single
indivisible crime penalized under Article 326, which is death as a consequence
of arson. That somebody died during such
fire would not bring about murder because there is no intent to kill in the
mind of the offender. He intended only
to destroy property. However, a higher
penalty will be applied.
In People v. Pugay and Samson, 167 SCRA 439, there was a town
fiesta and the two accused were at the town plaza with their companions. All were uproariously happy, apparently
drenched with drink. Then, the group saw
the victim, a 25 year old retard walking nearby and they made him dance by
tickling his sides with a piece of wood.
The victim and the accused Pugay were friends and, at times, slept in
the same place together. Having gotten
bored with their form of entertainment, accused Pugay went and got a can of
gasoline and poured it all over the retard.
Then, the accused Samson lit him up, making him a frenzied, shrieking
human torch. The retard died.
It was held that Pugay was guilty of homicide through reckless
imprudence. Samson only guilty of
homicide, with the mitigating circumstance of no intention to commit so grave a
wrong. There was no animosity between
the two accused and the victim such that it cannot be said that they resort to
fire to kill him. It was merely a part
of their fun making but because their acts were felonious, they are criminally
liable.
(4) On occasion of any of
the calamities enumerated in the preceding paragraph c, or an earthquake,
eruption of volcano, destructive cyclone, epidemic or any other public
calamity;
(5) Evident premeditation; and
(6) Cruelty, by
deliberately and inhumanly augmenting the suffering of the victim, or outraging
or scoffing at his person or corpse.
Cruelty includes the situation where the victim is already dead and
yet, acts were committed which would decry or scoff the corpse of the
victim. The crime becomes murder.
Hence, this is not actually limited to cruelty. It goes beyond that because even if the
victim is already a corpse when the acts deliberately augmenting the wrong done
to him were committed, the killing is still qualified to murder although the
acts done no longer amount to cruelty.
Under Article 14, the generic aggravating circumstance of cruelty
requires that the victim be alive, when the cruel wounds were inflicted and,
therefore, must be evidence to that effect.
Yet, in murder, aside from cruelty, any act that would amount to
scoffing or decrying the corpse of the victim will qualify the killing to
murder.
Illustration:
Two people engaged in a quarrel and they hacked each other, one killing
the other. Up to that point, the crime
is homicide. However, if the killer tried
to dismember the different parts of the body of the victim, indicative of an
intention to scoff at or decry or humiliate the corpse of the victim, then what
would have murder because this circumstance is recognized under Article 248,
even though it was inflicted or was committed when the victim was already dead.
The following
are holdings of the Supreme Court with respect to the crime of murder:
(1) Killing of a child of
tender age is murder qualified by treachery because the weakness of the child due
to his tender age results in the absence of any danger to the aggressor.
(2) Evident premeditation
is absorbed in price, reward or promise, if without the premeditation the
inductor would not have induced the other to commit the act but not as regards
the one induced.
(3) Abuse of superior
strength is inherent in and comprehended by the circumstance of treachery or
forms part of treachery.
(4) Treachery is inherent
in poison.
(5) Where one of the
accused, who were charged with murder, was the wife of the deceased but here
relationship to the deceased was not alleged in the information, she also
should be convicted of murder but the relationship should be appreciated as
aggravating.
(6) Killing of the victims
hit by hand grenade thrown at them is murder qualified by explosion not by
treachery.
(7) Where the accused
housemaid gagged a three year old boy, son of her master, with stockings,
placed him in a box with head down and legs upward and covered the box with
some sacks and other boxes, and the child instantly died because of
suffocation, and then the accused demanded ransom from the parents, such did
not convert the offense into kidnapping with murder. The accused was well aware that the child
could be suffocated to death in a few minutes after she left. Ransom was only a part of the diabolical
scheme to murder the child, to conceal his body and then demand money before
discovery of the body.
The essence of
kidnapping or serious illegal detention is the actual confinement or restraint
of the victim or deprivation of his liberty.
If there is no showing that the accused intended to deprive their
victims of their liberty for some time and there being no appreciable interval
between their being taken and their being shot, murder and not kidnapping with
murder is committed.
Article
249. Homicide
Elements
1. A person was killed;
2. Offender killed him without any justifying circumstances;
3. Offender had the intention to kill, which is presumed;
4. The killing was not attended by any of the qualifying circumstances of
murder, or by that of parricide or infanticide
Homicide is the unlawful killing of a
person not constituting murder, parricide or infanticide.
Distinction between homicide and physical
injuries:
In attempted or
frustrated homicide, there is intent to kill.
In physical
injuries, there is none. However, if as
a result of the physical injuries inflicted, the victim died, the crime will be
homicide because the law punishes the result, and not the intent of the act.
The following
are holdings of the Supreme Court with respect to the crime of homicide:
(1) Physical injuries are
included as one of the essential elements of frustrated homicide.
(2) If the deceased
received two wounds from two persons acting independently of each other and the
wound inflicted by either could have caused death, both of them are liable for
the death of the victim and each of them is guilty of homicide.
(3) If the injuries were
mortal but were only due to negligence, the crime committed will be serious
physical injuries through reckless imprudence as the element of intent to kill
in frustrated homicide is incompatible with negligence or imprudence.
(4) Where the intent to
kill is not manifest, the crime committed has been generally considered as
physical injuries and not attempted or frustrated murder or homicide.
(5) When several assailants
not acting in conspiracy inflicted wounds on a victim but it cannot be
determined who inflicted which would which caused the death of the victim, all
are liable for the victim’s death.
Note that while
it is possible to have a crime of homicide through reckless imprudence, it is
not possible to have a crime of frustrated homicide through reckless
imprudence.
Article
251. Death Caused in A Tumultuous Affray
Elements
1. There
are several persons;
2. They do
not compose groups organized for the common purpose of assaulting and attacking
each other reciprocally;
3. These
several persons quarreled and assaulted one another in a confused and
tumultuous manner;
4. Someone
was killed in the course of the affray;
5. It can
not be ascertained who actually killed the deceased;
6. The
person or persons who inflicted serious physical injuries or who used violence
can be identified.
Tumultuous affray simply
means a commotion in a tumultuous and confused manner, to such an extent that
it would not be possible to identify who the killer is if death results, or who
inflicted the serious physical injury, but the person or persons who used
violence are known.
It is not a
tumultuous affray which brings about the crime; it is the inability to
ascertain actual perpetrator. It is
necessary that the very person who caused the death can not be known, not that
he can not be identified. Because if he
is known but only his identity is not known, then he will be charged for the
crime of homicide or murder under a fictitious name and not death in a
tumultuous affray. If there is a
conspiracy, this crime is not committed.
To be considered death in a tumultuous affray, there
must be:
(1) a quarrel, a free-for-all, which should not involve organized group; and
(2) someone who is injured
or killed because of the fight.
As long as it
cannot be determined who killed the victim, all of those persons who inflicted
serious physical injuries will be collectively answerable for the death of that
fellow.
The Revised
Penal Code sets priorities as to who may be liable for the death or physical
injury in tumultuous affray:
(1) The persons who
inflicted serious physical injury upon the victim;
(2) If they could not be
known, then anyone who may have employed violence on that person will answer
for his death.
(3) If nobody could still
be traced to have employed violence upon the victim, nobody will answer. The crimes committed might be disturbance of
public order, or if participants are armed, it could be tumultuous disturbance,
or if property was destroyed, it could be malicious mischief.
The fight must
be tumultuous. The participants must not
be members of an organized group. This
is different from a rumble which involves organized groups composed of persons
who are to attack others. If the fight
is between such groups, even if you cannot identify who, in particular,
committed the killing, the adverse party composing the organized group will be
collectively charged for the death of that person.
Illustration:
If a fight
ensued between 20 Sigue-Sigue Gang men and 20 Bahala-Na- Gang men, and in the
course thereof, one from each group was killed, the crime would be homicide or
murder; there will be collective responsibility on both sides. Note that the person killed need not be a
participant in the fight.
Article
252. Physical Injuries Inflicted in A
Tumultuous Affray
Elements
1. There is
a tumultuous affray;
2. A
participant or some participants thereof suffered serious physical injuries or
physical injuries of a less serious nature only;
3. The
person responsible thereof can not be identified;
4. All
those who appear to have used violence upon the person of the offended party
are known.
If in the course
of the tumultuous affray, only serious or less serious physical injuries are
inflicted upon a participant, those who used violence upon the person of the
offended party shall be held liable.
In physical
injuries caused in a tumultuous affray, the conditions are also the same. But you do not have a crime of physical
injuries resulting from a tumultuous affray if the physical injury is only
slight. The physical injury should be
serious or less serious and resulting from a tumultuous affray. So anyone who may have employed violence will
answer for such serious or less serious physical injury.
If the physical
injury sustained is only slight, this is considered as inherent in a tumultuous
affray. The offended party cannot
complain if he cannot identify who inflicted the slight physical injuries on
him.
Article
253. Giving Assistance to Suicide
Acts punished
1. Assisting
another to commit suicide, whether the suicide is consummated or not;
2. Lending
his assistance to another to commit suicide to the extent of doing the killing
himself.
Giving
assistance to suicide means giving means (arms, poison, etc.) or whatever
manner of positive and direct cooperation (intellectual aid, suggestions
regarding the mode of committing suicide, etc.).
In this crime,
the intention must be for the person who is asking the assistance of another to
commit suicide.
If the
intention is not to commit suicide, as when he just wanted to have a picture
taken of him to impress upon the world that he is committing suicide because he
is not satisfied with the government, the crime is held to be inciting to
sedition.
He becomes a
co-conspirator in the crime of inciting to sedition, but not of giving
assistance to suicide because the assistance must be given to one who is really
determined to commit suicide.
If the person
does the killing himself, the penalty is similar to that of homicide, which is
reclusion temporal. There can be no
qualifying circumstance because the determination to die must come from the
victim. This does not contemplate
euthanasia or mercy killing where the crime is homicide (if without consent;
with consent, covered by Article 253).
The following
are holdings of the Supreme Court with respect to this crime:
(1) The crime is frustrated
if the offender gives the assistance by doing the killing himself as firing
upon the head of the victim but who did not die due to medical assistance.
(2) The person attempting
to commit suicide is not liable if he survives.
The accused is liable if he kills the victim, his sweetheart, because of
a suicide pact.
In other penal
codes, if the person who wanted to die did not die, there is liability on his
part because there is public disturbance committed by him. Our Revised Penal Code is silent but there is
no bar against accusing the person of disturbance of public order if indeed
serious disturbance of public peace occurred due to his attempt to commit
suicide. If he is not prosecuted, this
is out of pity and not because he has not violated the Revised Penal Code.
In mercy
killing, the victim is not in a position to commit suicide. Whoever would heed his advice is not really
giving assistance to suicide but doing the killing himself. In giving assistance to suicide, the
principal actor is the person committing the suicide.
Both in
euthanasia and suicide, the intention to the end life comes from the victim
himself; otherwise the article does not apply.
The victim must persistently induce the offender to end his life. If there is only slight persuasion to end his
life, and the offender readily assented thereto.
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