Criminal Law Ii Notes And Cases Boado 37503e

FUNDAMENTAL PRINCIPLES What is criminal law? It is that branch of public law which defines criminal offenses and prescribes specific punishment for them. It is a branch of public l a w because it treats of acts or omissions of the citizens which are deemed primarily as wrongs against the State more than against the offended party. Penal laws are those acts of the legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature and provide for their punishment. (Lacson v. Exec. Secretary, G.R. No. 128096, January 1999) What are the constitutional limitations on penal laws? Article I I I (Bill of Rights) of the 1987 Constitution provides the following limitations on the inherent right of the State through the Legislature to enact penal laws: a.

" N o person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws." (Section 1) Thus, the law must be general in application so as not to violate the equal protection clause.

b.

" N o torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited." (Section 12[2]) No law, therefore, must be ed imposing cruel and unusual punishment or excessive fines.

c.

" N o ex post facto law or bill of attainder shall be enacted." (Section 22)

NOTES A N D CASES ON THE REVISED PENAL CODE

3.

Describe due process as applied to penal laws. Due process, whether substantive or procedural, can be described as nothing more and nothing less than compliance with the requirements of fair play, or the right of any person to be given notice and be heard before he is condemned for an act or omission defined and punished by law (twin requirements of notice and hearing). Ynot, 148 SCRA 659, struck down the executive order ( E O ) which prohibited the transport of carabao or carabao meat across provincial boundaries without government clearance for the purpose of preventing indiscriminate slaughter of carabaos. T h e rationale was that the EO defined the prohibition, convicted petitioner and immediately imposed punishment, which was carried out forthright. T h e measure struck at once and pounced upon the petitioner without giving him a chance to be heard, thus denying him "the centuries-old guaranty of elementary fair play."

4.

Who are entitled to the mantle of due process of law? T h e State, as well as the accused, is entitled to due process of law. For justice to prevail the scales must be balanced; justice is not to be dispensed for the accused alone. T h e interests of society and the offended parties which have been wronged must be equally considered. A verdict of conviction is not necessarily a denial of justice; and an acquittal is not necessarily a triumph of justice, for, to the society offended and the party wronged, it could also mean injustice. Justice then must be rendered even-handedly to both the accused, on one hand, and the State and offended party, on the other. (Dimatulac v. Vilon, G.R. No. 127107, October 12, 1998) In receiving ex-parte the Department of Foreign Affairs advice and in motu proprio dismissing the cases without notice to the prosecution, the latter's right to due process was violated. Due process is a right of the accused as much as it is of the prosecution. The needed inquiry in what capacity petitioner was acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to be presented at the proper time. (Liang v. People, G.R. No. 125865, January 28, 2000)

2

F U N D A M E N T A L PRINCIPLES

5.

What is the effect of violation of the due process clause? In Guevarra u. Sandiganbayan, G.R. No. 138792-804, March 31, 2005, the Sandiganbayan ordered the dismissal of 13 cases against petitioners over the objection of the Special Prosecutor. By such order, the court deprived the People of its right to due process. It acted in excess of its jurisdiction and committed grave abuse of its discretion in dismissing the criminal cases. Hence, the order was null and void; it may thus be rectified despite the lapse of 15 days from notice to the Special Prosecutor. A void order or judgment has no legal and binding effect, force or efficacy for any purpose. In contemplation of law, it is non-existent. Such judgment or order may be resisted in any action or proceeding whenever it is involved. It is not even necessary to take any steps to vacate or avoid a void judgment or final order; it may simply be ignored.

6.

5(r*^Ml

What makes a penalty cruel and unusual? Punishments are cruel when they involve torture or a lingering death. It implies something inhuman and barbarous (Harden v. Dir. of Prisons, 81 Phil. 741), or shocking to the conscience (People v. Dionisio, 22 SCRA 1299) such as cutting the fingers of thieves, burning at the stake incestuous rapists, or putting onto the stock and barrel illegal possessors of firearms. But mere severity of the penalty does not make the same cruel Y'<" ' and unusual punishment. "It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution." To come under the ban, the punishment must be 'flagrantly and plainly oppressive,' 'wholly disproportionate to the nature of the offense as to shock the moral sense of the community.' When the penalty is wholly disproportionate to the offense committed, e.g., life imprisonment for jaywalking, it not only is cruel and unusual but is likewise violative of the due process clause as that would amount to deprivation of liberty for an unreasonable length of time.

/ 7. What is an ex post facto law? An ex post facto law is a penal law which is given retroactive application to the prejudice of the accused. Hence, 3


even if the penal law is made to apply retroactively, if it is favorable to the accused the same is not ex post facto, and, thus, allowed under Article 22. A law is ex post facto when it makes an act or omission criminal which when committed was not yet so. In the Revised Penal Code ( R P C ) , there are provisions which complement the prohibition against ex post facto law. Article 21 states that "no felony shall be punishable by any penalty not prescribed by law prior to its commission." Thus, reclusion perpetua cannot be imposed for homicide instead of reclusion temporal no matter how many generic aggravating circumstances are present because that penalty is not prescribed by law for homicide. Also, Article 22 provides that penal laws shall have retroactive effect insofar as they favor the person who is not a habitual criminal. Therefore, a law which increases the penalty for an act or omission cannot be given retroactive effect. Consequently, the court cannot impose a penalty higher than that prescribed by law for a particular crime, no matter how perverse the offender may be. 8. Give examples of ex post facto law. a.

Makes an act punishable as a crime when such act was not an offense when committed.

b.

W h i l e not creating new seriousness of a crime.

c.

Prescribes greater committed.

d.

Alters the rules of evidence so as to make it substantially easier to convict a defendant.

e.

Alters, in relation to the offense or its consequences, the situation of a person to his disadvantage.

f.

Assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful.

g.

Deprives the accused of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. (Lacson v. Exec. Secretary)

offenses,

punishment

4

for

aggravates a

crime

the

already


9. Give examples of laws not covered by the ex post facto clause. Ex post facto law generally prohibits retrospectivity of penal laws. R . A . 8249 is not a penal law. It is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature and provide for their punishment. R . A . 7975 which amended P . D . 1606 as regards the Sandiganbayan's jurisdiction, its mode of appeal and other procedural matters, is not a penal law, but clearly a procedural statute, i.e., one which prescribes rules of procedure by which courts applying laws of all kinds can properly ister justice. N o t being a penal law, the retroactive application of R . A . 8249 cannot be challenged as unconstitutional, (id.) T h e prohibition applies only to criminal legislation which affects the substantial rights of the accused. This being so, there is absolutely no merit in the contention that sustaining the extradition treaty's retroactive application with respect to offenses committed prior to its coming into force and effect violates the constitutional prohibition. T h e Treaty is neither a piece of criminal legislation nor a criminal procedural statute. It merely provides for the extradition of persons wanted for prosecution of an offense or a crime which was already committed or consummated at the time the Treaty was ratified. (Wright v. CA, No. 113213, August 15, 1994) Bayot v. Sandiganbayan, G.R. No. L-54645-76, December 18, 1986 upheld the inclusion of public officers and employees earlier charged for suspension pendente lite under the law amending R . A . 3019. T h e amendment was not ex post facto even if applied retroactively because the suspension was not a form of penalty but merely preventive. It is not a penalty because it is not imposed after and as a consequence of hearing on the merits. y 10. What is a bill of attainder? Why is it constitutionally proscribed? A bill of attainder is a legislative act which inflicts punishment without judicial trial (People v. Ferrer, 48 SCRA 382). It offends against the due process clause and has the features of ex post facto law. Moreover, it is an encroachment of judicial function by the legislative. RA %t^K -

5


Ferrer said that the Anti-Subversion Act is not a bill of attainder because although the law named the Communist Party of the Philippines ( C P P ) , it did so only for definitional purposes and applies not only to that organization but also to any other organizations having the same purpose and its successors. Were the Act a bill of attainder, it would be totally unnecessary to charge communists in court, as the law alone, without more, would suffice to secure their punishment. But the fact is that, "The Government has yet to prove at the trial that the accused ed the Party knowingly, willfully and by overt acts, and that they ed the Party knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing Government by force, deceit, and other illegal means and place the country under the control and domination of a foreign power." [The Anti-Subversion A c t had been expressly repealed.] What are the characteristics of penal law? They are generality, territoriality, and prospectivity. Generality refers to the persons covered by penal laws; territoriality, the place where the law is applicable; and prospectivity, the time when the law should be applied. What is the generality characteristic of penal law? Penal laws are binding on all persons who reside or - sojourn in the Philippines whether citizens or not. This is based on Article 14 of the N e w Civil Code ( N C C ) and on the equal protection clause in Article I I I ( l ) of the 1987 Constitution, which provides, respectively, viz.: "Art. 14. Penal laws and those of public security and safety shall be obligatory upon all those who live or sojourn in Philippine territory." "Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws." Even aliens are covered by the generality principle because they are also protected by the laws of the Philippines during all the time that they sojourn within its territory and the word "person" in the Constitution does not refer only 6


to citizens. Excepted w i t h qualification are those covered by treaties and laws of preferential application such as ambassadors and heads of State under the principle of par in parent non habet imperium. , , , * • As distinguished from the territoriality principle, generality refers to the persons covered, whereas the former deals with the situs of the act or the place where the penal law is applicable. • 13. Describe the territoriality characteristic of penal law. T h e law is applicable to all crimes committed within the limits of Philippine territory. T h e basis of this characteristic is Article 2 of the R P C . T h e exceptions are preferential laws and treaties providing for exemption from the coverage of penal laws for certain classes of persons, on the one hand, and the expansion of the coverage of the Code outside its territory for certain acts or omissions listed in Article 2, on the other. Example of the first is the laws and treaties governing heads of States and their representatives. ^14.

What does prospectivity rule mean?

Prospectivity of penal laws means that laws have prospective application unless they are favorable to the offender who is not a habitual delinquent. Conversely, and to the same effect is irretrospectivity which prescribes that "laws shall have no retroactive application unless the contrary is provided." T h e bases of this characteristic are Articles 21 and yf 22 of the R P C , Article 111(22) of the Constitution on ex post facto laws and Article 4 of the N C C . To mete the death penalty reimposed by R . A . 7659 on December 31, 1993 for a crime committed inl987 would violate the rule that if the new law imposes a heavier penalty, the law in force at the time of the commission of the offense shall be applied. (People v. Bracamonte, G.R. No. 95939, June 17, 1996) / 15.

Does the prospectivity rule cover only laws? N o . The prospectivity rule applies also to penal circulars such as DO J Circular N o . 12 issued on August 8, 1984 which declared that all checks including guarantee checks are covered 7


by B.P. 22. This Circular cannot be applied retroactively because petitioners cannot be faulted for relying on the earlier official pronouncement of the DOJ Secretary that guarantee checks issued prior thereto are not covered by said Circular. The principle of prospectivity of statutes, original or amendatory has been applied to istrative rulings and circulars, and to judicial decisions which although in themselves are not laws, are evidence of what the laws mean, this being the reason why under Article 8 of the N C C , judicial decisions applying or interpreting the laws or the Constitution shall form part of our legal system. (Co v. CA, G.R. No. 100776, October 28, 1993) 16.

What effect does the court's interpretation upon a written law have? The interpretation placed upon a written law by a competent court has the force of law. W h e n a doctrine enunciated by the Supreme Court is overruled and a different view adopted, the new doctrine should be applied prospectively and should not apply to parties who had relied on the old doctrine and acted on the faith thereof. This is especially true in the construction and application of criminal laws, where it is necessary that the punishability of an act be reasonably foreseen for the guidance of society, (id.)

17.

What is the rationale against retroactivity of laws?

Lex prospicit, non respicit, the law looks forward not backward. T h e rationale against retroactivity is that a law „ •-/> It ^ usually derides rights which may have already become -> vested or impairs the obligations of contract and hence, is unconstitutional. There is the improvised necessity to take of the actual existence of a statute prior to its nullification as an operative fact negating acceptance of a "principle of absolute retroactive invalidity." Prior to such nullification, the statute must have been in force and had to be complied with. It will deprive the law of its quality of fairness and justice if there be no recognition of what had transpired prior to such adjudication, (id.) i/18.

Enumerate the different philosophies underlying the criminal law system.


There are four schools of thought: a) the classical or juristic; b) the positivist or realistic; c) the ecclectic; and d) the utilitarian.

j> £ u

19.

Distinguish the classical (juristic) from the positivist (realistic).

•^Classical or juristic. 1.

Basis of criminal liability — human free will. The subscribers to this theory believe that man has the capacity to choose between right and wrong, good and evil. Hence, when he does or omits to do an act, he does so willingly and voluntarily with full knowledge of the effects and consequences thereof.

2.

Purpose of the penalty — retribution — "an eye for an eye; a tooth for a tooth." In v i e w of the voluntariness of the act or omission of the offender, he should be given the penalty that he deserved. Justice is for the offended party also which requires that the offender be repaid with commensurate punishment.

3.

Determination of penalty — predetermined and rigid established by a specific and predetermined penalty for the offense committed. T h e penalty is mechanically determined in direct proportion to the crime committed. Thus, homicide is penalized with reclusion temporal; murder with reclusion perpetua; kidnapping and serious illegal detention with reclusion perpetua, and so on.

4.

Emphasis of the law — on the offense and not on the offender.

^ P o s i t i v i s t or realistic. t, 1.

2.

Basis of criminal liability — the proponents are of the v i e w that man is inherently good but the offender is socially sick. He is a product, not only of biological factors, but also of his environment. His thoughts and actions are influenced by his upbringing, social environment and associations. Purpose of the penalty — reformation. Since the offender is not inherently evil but only made so by his environment, then the penalty should be 9


corrective or curative to reform him or bring him back to his good nature. (Thus, jails are also called reformatories.) 3.

Determination of the penalty — case to case basis — arrived at after an individual examination of the offender. The penalty should be suited to the individual offender precisely because the purpose is to reform him.

4.

Emphasis of the law — on the offender and not on the offense. T h e basic principle in our criminal law is that a person is criminally liable for a felony committed by him. Under the classical theory on which the R P C is mainly based, the basis of criminal liability is human free will. M a n is essentially a moral creature with an absolutely free will to choose between good and evil. W h e n he commits a felonious or criminal act (delito doloso), the act is presumed to have been done voluntarily, i.e., with freedom, intelligence and intent. M a n therefore, should be adjudged or held able for wrongful acts so long as free will appears unimpaired. (People v. Genosa, G.R. 135981, September 29, 2000) T h e rigid penalty in Book II under the classical theory is tempered by factors approximating the positivist theory, e.g.:

/

1.

Indeterminate Sentence L a w ( I S L ) ;

2.

Modifying Circumstances;

3.

Extenuating/absolutory circumstances;

4.

Probation L a w ;

5.

Three-fold rule on multiple penalties;

6.

40-year maximum limit for penalty; and

7.

Executive clemency under Articles 5 and 70 and the Constitution.

10


/ 20.

What is meant by the ecclectic (or mixed) philosophy? This combines the good features of both the classical and the positivist theories. Ideally, the classical theory should be applied to grievous or heinous crimes, whereas, the positivist is made to apply on economic and social crimes.

/ 21.

What does the utilitarian theory believe on the function of punishment? T h e primary function of punishment in criminal law is v / t o protect society from potential and actual wrongdoers. The retributive aspect of penal laws should be directed against them. Thus, in applying the punishment imposed upon the accused, the objective of the retribution of a wronged society should be directed against the 'actual and potential wrongdoers.' M M ' s four checks w e r e used to collateralize an accommodation, and not cover the actual ' or credit for value' as this was absent, and therefore, petitioner should not be punished for the mere issuance of the checks in question. Following this theory, in M M ' s stead, the 'potential wrongdoer' whose operation could be a menace to society, should not be glorified by convicting M M . " (Magno v. CA, G.R. No. 96132, June 26, 1992) Since the machineries guaranteed by the check were already foreclosed, the payee had no more right over the checks and should not have deposited them in the first place. By doing so, he was the menace to society. , , ^ , . ,„ _ .

22.

When an act is perverse, but there is no law that punishes it, is there a crime committed? Nullum crimen nulla poena sine lege — there is no crime when there is no law that defines and punishes it. The Philippines is a civil law country (as against a common law country where laws are evolved.) Penal laws are enacted hence, no matter how heinous an act, it is not considered a crime unless there is a law that punishes it (Article 5). Since a penalty cannot be imposed if not previously prescribed for a specific crime, then, when there is no law yet defining that act as a crime and prescribing that penalty, it cannot be imposed. (Article 21) This is also covered by the rule on ex post facto law.

11


What is the rule in the interpretation of penal laws in relation to the accused's culpability? In dubio pro reo, all laws must be interpreted liberally in favor of the accused and strictly against the State. This is so because it is the State which drafted and prescribed the law, hence in case of ambiguity, the law must be read, interpreted and construed against the State. Thus, whenever a situation obtains where two interpretations are possible, one exculpatory and the other inculpatory, the former shall prevail, consistent with the rule on presumption of innocence. Stated otherwise, where a penal law is susceptible of two interpretations, one consistent with acquittal, and the other with conviction, the offender is entitled to acquittal as a matter of right. Or, where the evidence is equipoised, the balance of justice should be tilted in favor of the accused because the State should prove the guilt of the accused beyond reasonable doubt and should rely on the strength of its own evidence, not on the weakness of the evidence of the accused. C A . 142 being a penal statute should be construed strictly against the State and in favor of the accused. T h e reason for this principle is the tenderness of the law for the rights of the individuals and the object is to establish a certain rule by conformity by which mankind would be safe and the discretion of the court limited. "Our mind cannot rest easy on the proposition that the petitioner should be convicted on a law that does not clearly penalize the act done by him. T h e r e exists a valid presumption that undesirable consequences w e r e never intended by a legislative measure and that a construction for which will avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious consequences." (Ursua v. CA, G.R. No. 112170, April 10, 1996) What is the equipoise rule? T h e equipoise rule — that if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of ^rioral certainty, and does not suffice to produce a 12


conviction the same must be denied. (Abarquez v. People, G R No. 150762, January 20, 2006) W h e r e the evidence of the prosecution and of the defense are equally balanced, the scale should be tilted in favor of the accused in v i e w of the constitutional presumption of innocence. (Corpuz v. People, G.R. No. 74259, February 14, 1991) Where the State fails to meet the quantum of proof required to overcome such constitutional presumption, the accused is entitled to acquittal, regardless of the weakness or even the absence of his defense. For any conviction must rest on the strength of the prosecution's case and not on the weakness of the defense. In every criminal prosecution, if the State fails to discharge its burden of proving the guilt of the accused beyond reasonable doubt, it fails utterly. Accordingly, when the guilt of the accused has not been proven with moral certainty, it is the policy of long standing that the presumption of innocence of the accused must be favored and his exoneration granted as a matter of right. (Cosep v. People, G.R. No. 110353, May 21, 1998) Conviction must rest on hard evidence showing that the accused is guilty beyond reasonable doubt of the crime charged. In criminal cases, moral certainty — not mere possibility — determines the guilt or the innocence of the accused. Even when the evidence for the defense is weak, the accused must be acquitted when the prosecution has not proven guilt with the requisite quantum of proof required in all criminal cases. (Ladonga v. People, G.R. No. 141066, February 17, 2005) What is the relationship of presumption of law and prima facie evidence on the constitutional presumption of innocence? A " p r e s u m p t i o n of l a w " is sanctioned by a statute prescribing that "a certain inference must be made whenever facts appear which furnish the basis of the interference." This is to be set apart from a " p r e s u m p t i o n of fact" which is a "[conclusion] drawn from particular circumstances, the connection between them and the sought for fact having received such a sanction in experience as to have become recognized as justifying the assumption." When there is a presumption of law, the onus probandi (burden of proof), generally imposed upon the State, is now shifted to the party against whom the 13


interference is made to adduce satisfactory evidence to rebut the presumption and hence, to demolish the prima facie case. Article 217 no longer requires proof by the State that accused actually appropriated, took, or misappropriated public funds or property. Instead, a presumption, though disputable and rebuttable, was installed that upon demand by any duly authorized officer, the failure of a public officer to have duly forthcoming any public funds or property — with which said officer is able — should be prima facie evidence that he had put such missing funds or property to personal use. W h e n these circumstances are present, a "presumption of law" arises that there was malversation of public funds or property. Prima facie e v i d e n c e is evidence good and sufficient on its face; such evidence, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted will remain sufficient. Evidence which if unexplained or uncontradicted is sufficient to sustain a judgment in favor of the issue it s, but which may be contradicted by other evidence. The establishment of a prima facie case does not take away the presumption of innocence which may be such as to rebut and control it. Such prima facie evidence, if unexplained or uncontradicted can counterbalance the presumption of innocence to warrant a conviction. (Wa-acon v. People, G.R. No. 164575, December 6, 2006) 26.

Cite some provisions of the Revised Penal Code which apply the liberality of the law on the accused. This liberal disposition in favor of the accused is manifested in the three-fold rule, the rules on mitigation of crimes, the requirement that qualifying circumstance should be proved by the same quantum of evidence necessary to establish guilt, the analogous circumstances in Article 13 on mitigating circumstances without the corresponding analogous circumstances on aggravating circumstances, among others. What does actus non facit reum, nisi mens sit rea mean? T h e act cannot be criminal unless the mind is criminal. Since intent is an essential element of intentional felony 14


(dolo), when the accused acted in good faith, there is no crime committed. This maxim therefore applies to dolo and not to culpa. T h e error of the accused may be one of the heart and not of the mind that would render them criminally liable. (Llamoso v. Sandiganbayan, G.R. Nos. L-63408 & 64026, August 7, 1985; People v. Pepito, G.R. Nos. 112761-65, February 3, 1997) v/ 28.

How are crimes variously classified? A.

As to commission (Article 3) —

B.

1.

Dolo or felonies committed with deliberate intent; and

2.

Culpa or those committed by means of fault.

As to stage of execution (Article 6) —

^

1.

* O

2.

Frustrated; and

3.

Consummated.

C.

Attempted;

Related to this is the classification of felonies as to — Formal felonies or those which are always consummated because the offender cannot perform the acts necessary for their execution without consummating the offense. Examples are crimes punished on the basis of the result or gravity such as physical injuries. Physical injuries are punished as to whether they are serious, less serious, or slight. The degree of injury cannot be determined without first consummating the offense.

^ j.

i / /

2. 3.

Material felonies or those which can be committed in any of the three stages of execution. Felonies which cannot be committed in the frustrated stage, such as rape which can be either attempted or consummated because the essence of rape is carnal knowledge. Hence, even slight penetration of the female organ consummates the crime of rape because then there is already carnal knowledge; (People v. Clopino, G.R. No. 117322, May 21, 1998) or theft which cannot be frustrated because its 15


element of unlawful taking is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. (Valenzuela v. People, G.R. No. 160188, June 21, 2007) D.

E.

As to gravity (Article 9) — 1.

Grave felonies;

2.

Less grave felonies; and

3.

Light felonies.

As to count — compound, complex, composite or special complex crimes, continued, and continuing crimes. Usurpation of real property or real interest therein under Article 312 is the sixth classification for unlike the above which are deemed one crime composed of several distinct crimes with one penalty, usurpation is one crime with two penalties - fine for the usurpation plus the penalty for the means to commit the usurpation.

F.

As to nature — mala in se (singular — malum in se) and mala prohibita (singular — malum prohibitum.)

What are crimes mala in se? Crimes mala in se are acts or omissions which are inherently evil (mala — evil; in se — by itself.) Generally, crimes mala in se are felonies punished under the R P C . T h e r e are however crimes which although punished under special laws are deemed mala in se, such as those which are mere modification of the provisions of the Code like cattle rustling which modifies Articles 308, 309 and 310 on qualified theft. Thus, P . D . 533 is not a malum prohibitum but a modification of theft and malicious mischief. Therefore, the rules and system on penalties under the R P C apply. (People v. Macatanda, infra). (However, the anti-carnapping law which modifies the same Article was declared as malum prohibitum.) What are crimes mala prohibita? T h e y are acts which are made evil because there is a law prohibiting the same. These would not be wrong but for the fact 16


that positive law forbids them. In this case, the only question asked is, has the law been violated? W h e n the act is illegal, intent of the offender is immaterial. (Dunlao, Sr. v. CA, G.R No. 111342, August 22, 1996) W h e n a check is presented for payment, the bank will generally accept the same whether or not it was issued in payment of an obligation or merely to guarantee the said obligation. W h a t the law punishes is the issuance of a bouncing check not the purpose for which it was issued nor the term and conditions relating to its issuance. T h e mere act of issuing a worthless check is malum prohibitum. (Cruz v. CA, G.R. No. 108738, June 17, 1992) H o w e v e r , Magno following the utilitarian school of thought acquitted the accused as it considered the purpose for the issuance of the bouncing check in relation to the payee's conduct which manifested her ba,d faith. 31.

If a special law uses the nomenclatures of penalties in the Revised Penal Code, what is the effect on the nature of the crime covered by the special law? T h e fact alone that a special l a w uses the of penalties in the R P C will not make the act or omission malum in se. T h e law may only intend to make the R P C apply suppletorily thereto. For instance, R . A . 6425, as amended by R . A . 7659 employed the penalties used in the R P C but its violations were still deemed as malum prohibitum. Nevertheless, the system of penalties under the R P C was applied to violations involving dangerous drugs under that law. Likewise, the penalty imposable pursuant to the Indeterminate Sentence L a w ( I S L ) was also determined following the rules under the R P C . ( R . A . 9165 further amended R . A . 6425 and reverted back to the "non-RPC" penalties, e.g., life imprisonment thus, R.A. 9165 now is a purely special law.)

V( 32.

Which between malum in se and malum prohibitum involves moral turpitude? In determining whether a criminal act involves moral turpitude, the Court is guided by the general rule that crimes mala in se involve moral turpitude while crimes mala prohibita do not. T h e rationale was set forth in Zari vs. Flores, November 21, 1979: "It implies something immoral in itself, regardless

n

MIX

17


of the fact that it (moral turpitude) is punishable by law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statutes fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of themselves immoral but whose illegality lies in its positively being prohibited." (Dela Torre v. COMELEC, G.R. No. 121592, July 5, 1996) Compare mala in se and mala prohibita. In mala in se: 1.

The basis of criminal liability is the offender's moral trait, hence, good faith or lack of criminal intent is a defense.

2.

Modifying circumstances are taken into in imposing the penalty on the offender precisely because his moral trait is the basis of this crime. Thus, if the offender is perverse, Article 14 on aggravating circumstances shall apply, whereas, if the offender shows remorse or the like, his penalty shall be mitigated pursuant to Article 13.

3.

T h e degree of participation determines the penalty imposable so that it is computed on the basis of whether he is a principal offender, or merely an accomplice or accessory.

4.

T h e stage of accomplishment affects the penalty imposed thus the penalty depends on whether the crime is consummated, frustrated, or attempted.

5.

Generally, crimes mala in se involve moral turpitude.

6.

Generally, crimes mala in se are punishable under the R P C .

In 1.

mala prohibita: T h e basis of criminal liability is the offender's voluntariness, hence, good faith or lack of criminal intent is not accepted as a defense, unless this is an element of the crime such as in Section 3(e) of R . A . 3019, the Anti-Graft and Corrupt Practices A c t (evident bad faith). 18


2.

Modifying circumstances are not considered because the law intends to discourage the commission of the act specially prohibited. Moreover, the act prohibited is not inherently evil but made evil only by the prohibition of the statute, hence, does not involve perversity or lack of it by the offender which is the basis for the aggravation or mitigation of the penalty.

3.

T h e degree of participation of the offenders does not affect their liability, hence, the penalty on all of them are the same whether they are principals or merely accomplices or accessories.

4.

T h e stage of accomplishment considered is only when the crime is accomplished or consummated. T h e r e is no attempted or frustrated stage because it is the commission of the act itself that is prohibited and also since intent which is inherent in attempted/ frustrated stage is not an element. Thus, just like culpa, mala prohibita is always consummated.

5.

Generally, crimes mala prohibita do not involve moral turpitude.

6.

Generally, crimes mala prohibita cover violations of special penal laws.

Can a malum in se absorb or be complexed with a malum prohibitum? N o . A malum in se felony, such as reckless imprudence resulting in damage to property, cannot absorb malum prohibitum offense, such as violations of P.D. 1067, P . D . 984 and R . A . 7942. W h a t makes the former a felony is criminal intent (dolo) or negligence (culpa); what makes the latter crimes are the special laws enacting them. (Loney v. People, G.R. No. 152644, February 10, 2006) As to the relationship of rape and sexual abuse, Abay, G.R. N o . 177752, February 24, 2009 explains that per Section 5(b), Article I I I of R . A . 7610 in relation to R . A . 8353, if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape and penalized with reclusion perpetua. If the victim is 12 years or older, the offender should be charged with either sexual abuse 19


under Section 5(b) or rape under Article 266-A. However, offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with sexual abuse. Article 48 of the R P C does not allow a felony to be complexed with an offense penalized by a special law. 35.

Violation of what species of special laws is not deemed malum prohibitum? Laws that merely amend provisions of the R P C , such as P . D . 533 which amended Articles 308, 309, and 310 do not convert their violations into mala prohibita. Thus, cattlerustling is still malum in se. (Taer v. CA, infra)

i 36.

What is a heinous crime? It is a grievous, odious and hateful offense which by reason of its inherent or manifest wickedness, viciousness, atrocity and perversity, is regarded as seriously outrageous to the common standards or norms of decency and morality in a just, civilized and orderly society. (Whereas clause, R . A . N o . 7659.) T h e fact that R . A . 9346 killed the death penalty does not declassify heinous crimes as such. T h e y remain heinous for purposes of the award of civil liabilities. (People v. Bon, infra.)

37.

What is the effect of the repeal of penal law on the accused? T h e effect depends upon the nature of the repeal. Thus: a.

In absolute or total or express repeal, the act or omission is decriminalized so that if a case is pending, it shall be dismissed whether the accused is a habitual delinquent or not because there is no more crime for which he should be tried. If he w e r e already convicted and/or serving sentence, he shall be released if he is not a habitual delinquent or unless the law provides that detention is to continue.

b.

In partial or relative or implied repeal or repeal by reenactment, the first law will govern if the accused is a habitual delinquent or if the favorable second law

20


prohibits retroactivity. W h i l e the second law will govern if favorable to the offender who is not a habitual delinquent or the law is silent as to its retroactivity. T h e beneficent provisions of R . A . 7659 can be applied retroactively to judgments which have become final and executory prior to December 31, 1993 and even to those who are already serving sentences. (People v. Velasco, G.R. No. 135231-33, February 28, 2001) To impose upon the accused the death penalty reimposed by R . A . 7659 for a crime committed way back in 1987 would violate the basic rule that if the new law imposes a heavier penalty, the law in force at the time of the commission of the offense shall be applied. (People v. Bracamonte, G.R. No. 95939, June 17, 1996) In case of conflict between the Spanish text and the English version of the Revised Penal Code, which should prevail? T h e Spanish text is controlling as provided in Section 15 of the Revised istrative Code ( R A C ) since the R P C was originally approved and enacted in Spanish. Thus: "SEC. 15. Language that should prevail in the interpretations of laws. — In the interpretation of a law officially promulgated in English and Spanish, the English text shall govern, but in case of ambiguity, omission, or mistake, the Spanish may be consulted to explain the English text. The converse rule shall, however, be applied if so provided in the particular statute: Provided, however, That in the interpretation of laws enacted by the Philippine legislature after October sixteenth, nineteen hundred and sixteen, the language of the text used by the house that finally ed the same shall prevail, and in case of ambiguity, omission, or mistake, the official translation filed in the office of the Secretary of said House may be consulted." For instance, the Spanish version of Article 267 uses the term "lockup" (encerrar) rather than "kidnap" (secuestrar or raptar). Lockup is included in the broader term of "detention," which refers not only to the placing of a person in an enclosure which he cannot leave, but also to any other deprivation of liberty which does not necessarily involve locking up. (People v. Astorga, G.R. No. 110097, December 22. 1997)

21


The word "immediate" is an incorrect translation into English of the controlling Spanish text for the word "proximo." The Spanish text allows for a lapse of time between the grave offense and the actual vindication. However, the lapse of two weeks from the discovery of the wife's infidelity and the killing of the alleged paramour could no longer be considered proximate. There can be no immediate vindication of a grave offense when accused had sufficient time to recover his sanity. (People v. Ignas, G.R. No. 140514-15, September 30, 2003) What is the finality-of-acquittal rule? Give its rationale and legal basis. "The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into the 'humanity of the laws and in a jealous watchfulness over the rights of the citizen, when brought in unequal contest with the State.' Thus Green expressed the concern that the underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty." (People v. Velasco, 340 SCRA 207) It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying this rule establishing the absolute nature of acquittals is part of the paramount importance criminal justice system attaches to the protection of the innocent against wrongful conviction. T h e interest in the finality-ofacquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a need for 'repose,' a desire to know the exact extent of one's liability. W i t h this right of repose, the criminal justice system had built in a protection to insure that the innocent, even those whose innocence rests upon a jury's leniency, will not be found guilty in a subsequent proceeding. (People v. Sandiganbayan, February 2001)

22

BOOK ONE General Provisions Regarding the Date of Enforcement and Application of the Provisions of this Code, and Regarding the Offenses, the Persons Liable and the Penalties


24

Preliminary Title Date of Effectiveness and Application of the Provisions of this Code t/d& A r t i c l e 1. Time when Act takes effect. — T h i s C o d e shall take effect on the F i r s t d a y of J a n u a r y , 1932. T h e people w e r e given two years from its publication before the R P C was made to take effect for a fuller understanding thereof. Logically so for penal laws involve the life, liberty and property of a person, especially since the N C C excuses no one from compliance with the law due to ignorance. A r t . 2. Application of its provisions. — E x c e p t as p r o v i d e d in the treaties a n d l a w s of p r e f e r e n t i a l application, the p r o v i s i o n s of this C o d e shall be e n f o r c e d not only w i t h i n the P h i l i p p i n e A r c h i p e l a g o , i n c l u d i n g its a t m o s p h e r e , its interior w a t e r s a n d m a r i t i m e zone, b u t also outside of its j u r i s d i c t i o n , a g a i n s t those w h o : 1. S h o u l d commit an offense w h i l e on a P h i l i p p i n e ship o r a i r s h i p ; 2. S h o u l d f o r g e or counterfeit any coin or c u r r e n c y note of the P h i l i p p i n e I s l a n d s or obligations a n d securities issued by the G o v e r n m e n t of the P h i l i p p i n e Islands; 3. S h o u l d be l i a b l e for acts connected with the introduction into these islands of the obligations and securities mentioned in the p r e c e d i n g n u m b e r ; 4. W h i l e b e i n g p u b l i c officers or employees, should commit an offense in the exercise of their functions; or 5. S h o u l d commit any of the crimes against national security a n d the l a w of nations, defined in Title One of Book T w o of this C o d e .

25


•

How should the Government and the country be referred to today? The Philippine Government should be called Government of the Republic of the Philippines, not Government of the Philippine Islands pursuant to Section 2, Introductory Provisions, E.O. 292, the "istrative Code of 1987," which partly defines that term as the corporate governmental entity through which the functions of government are exercised throughout the Philippines. The country should be referred to as the Republic of the Philippines not Philippine Islands which impresses in the mind scattered islands implying the lack of oneness or singularity of this nation.

•

What are the two scopes of application of the Revised Penal Code? They are the intra-territorial and the extra-territorial applications. T h e intra-territorial application is found in the first paragraph of Article 2 - the R P C shall be enforced, except as provided in the treaties and laws of preferential application, within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone. Its extraterritorial application is enumerated in the second paragraph to be enforced outside of its jurisdiction against those who: 1.

Should commit an offense while on a Philippine ship or airship;

2.

Should forge or counterfeit any coin or currency note of the Republic of the Philippines or obligations and securities issued by the Government of the Republic of the Philippines;

3.

Should be liable for acts connected with the introduction into the Philippines of the obligations and securities mentioned in the preceding number;

4.

While being public officers or employees, should commit an offense in the exercise of their functions; or

26

DATE OF EFFECTIVENESS A N D APPLICATION OF THE P R O V I S I O N S OF THIS C O D E

5.

Should commit any of the crimes against national security and the law of nations, defined in Title One of Book T w o of the Code.

Outside of these five cases, Philippine courts cannot take jurisdiction over a crime committed outside the country. For instance, R . A . 8491, the "Flag and Heraldic Code of the Philippines" provides: "Sec. 37. T h e rendition of the National Anthem, whether played or sung, shall be in accordance with the musical arrangement and composition of Julian Felipe." A Filipino artist who sings the Philippine national anthem in L a s Vegas, U . S . A . during the fights of Filipino boxers in contravention of said provision cannot be prosecuted before Philippine courts because such offense is not among the exceptions in Article 2. What does the phrase, "except as provided in treaties and laws of preferential application," mean? That phrase means that the treaties and laws of preferential application shall be given preference over the provisions of the R P C . Thus, R . A . 75 which gives immunity to diplomatic representatives of foreign countries. Under international laws, sovereigns and heads of states and their official representatives enjoy immunity from suits. In the Constitution, of Congress enjoy parliamentary immunity in connection with any speech delivered in Congress. W h o comprises the different heads and staff of diplomatic missions? T h e Vienna Convention on Diplomatic Relations lists the classes of heads of diplomatic missions to include: (a)

ambassadors or nuncios accredited to the heads of State;

(b)

envoys, ministers or internuncios accredited to the heads of States; and

(c)

charges d' affairs accredited to the ministers of foreign affairs.

^

Comprising the staff of the (diplomatic) mission are the diplomatic staff, the istrative staff and the technical and service staff. Only the heads of missions, as well as 27


of the diplomatic staff, excluding the of the istrative, technical and service staff of the mission, are accorded diplomatic rank. (Minucher v. CA, G.R. No. 142396, February 11, 2003) Who among the heads and staff of diplomatic missions are entitled to immunity in the host sovereign and on what basis? Even while the Vienna Convention on Diplomatic Relations provides for immunity to the of diplomatic missions, it does so, nevertheless, with an understanding that the same be restrictively applied. Only "diplomatic agents," under the of the Convention, are vested with blanket diplomatic immunity from civil and criminal suits. The Convention defines "diplomatic agents" as the heads of missions or of the diplomatic staff, thus impliedly withholding the same privileges from all others. Even consuls, who represent their respective states in concerns of commerce and navigation and perform certain istrative and notarial duties, such as the issuance of ports and visas, authentication of documents, and istration of oaths, do not ordinarily enjoy the traditional diplomatic immunities and privileges accorded diplomats, mainly for the reason that they are not charged with the duty of representing their states in political matters. T h e main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the determination of whether or not he performs duties of diplomatic nature, (id.) Vesting a person with diplomatic immunity is a prerogative of the executive branch of the government. WHO v. Aquino, 48 SCRA 242 said that in such matters, the hands of the courts are virtually tied. A m i d s t apprehensions of indiscriminate and incautious grant of immunity, designed to gain exemption from the jurisdiction of courts, it should behoove the Philippine government, specifically its D F A , to be most circumspect, that should particularly be no less than compelling, in its post litem motam issuances. T h e privilege is not an immunity from the observance of the law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction, (id.)

28


•

What international principle forms the basis for granting immunity for diplomatic heads? T h e precept that a State cannot be sued in the courts of a foreign State is a long-standing rule of customary international law. Suing a representative of a State is suing the State itself. T h e proscription is not accorded for the benefit of an individual but for the State, in whose service he is, under the maxim —par in parem, non habet imperium — that all States are sovereign equals and cannot assert jurisdiction over one another. T h e implication, in broad , is that if the judgment against an official would require the State to perform an affirmative act to satisfy the award, such as the appropriation of the amount needed to pay the damages decreed against him, the suit must be regarded as being against the State itself, although it has not been formally impleaded, (id.) USA v. Guinto, 182 SCRA 644, involving officers of the US A i r Force and A i r Force Office of Special Investigators charged with preventing the distribution, possession and use of prohibited drugs, ruled that the doctrine of State immunity is also applicable to complaints filed against officials of the State for acts allegedly performed by them in the discharge of their duties. It follows that for discharging their duties as agents of the U S , they cannot be directly impleaded for acts imputable to their principal, which has not given its consent to be sued. As they have acted on behalf of the government, and within the scope of their authority, it is that government, and not the petitioners personally, who were responsible for their acts.

•

What are the limitations to the immunity principle? Director v. Aligaen, 33 SCRA 368, explains the limitations, thus: "Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in equity against a State officer or the director of a State department on the ground that, while claiming to act for the 29


State, he violates or invades the personal and property rights of the plaintiff, under an unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State within the constitutional provision that the State may not be sued without its consent. The rationale for this ruling is that the doctrine of State immunity cannot be used as an instrument for perpetrating an injustice." The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. T h e cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. A public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith or beyond the scope of his authority and jurisdiction. (Shaufv. CA, 191 SCRA 713) A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be established that he is acting within the directives of the sending State. T h e consent of the host State is an indispensable requirement of basic courtesy between the two sovereigns. Guinto and Shauf both involve officers and personnel of the U S , stationed within Philippine territory, under the R P US Military Bases A g r e e m e n t . W h i l e evidence is wanting to show any similar agreement between the governments of the Philippines and of the US (for the latter to send its agents and to conduct surveillance and related activities of suspected drug dealers in the Philippines), the consent or imprimatur of the Philippine government to the activities of the US Drug Enforcement Agency ( U S D E A ) , however, is evident. T h e official exchanges of communication between agencies of the government of the two countries, certifications from officials of both the Philippine D F A and the US Embassy, as well as the participation of of the Philippine Narcotics Command in the "buy-bust operation" conducted at the residence of MM at the behest of SS, may be inadequate to the "diplomatic status" of the latter but they give enough indication that the Philippine government has given its imprimatur, if not 30

.

DATE OF EFFECTIVENESS A N D APPLICATION OF THE P R O V I S I O N S OF THIS CODE

consent, to the activities of SS within Philippine territory. The job description of SS has tasked him to conduct surveillance on suspected drug suppliers and, after having ascertained the target, to inform local law enforcers who would then make the arrest. In conducting surveillance activities on M M , later acting as the poseur-buyer during the buy-bust operation, and then becoming a principal witness in the criminal case against M M , SS hardly can be said to have acted beyond the scope of his official function or duties. SS, as an agent of the U S D E A allowed by the Philippine government to conduct activities in the country to help contain the problem on the drug traffic, is entitled to the defense of State immunity from suit. (Minucher v. CA, February 11, 2003) Does immunity from suit of officers of international bodies include that for defamation? T h e immunity of officers of international bodies is not plenary. Liang discussed this principle hereunder. Petitioner is an economist working with the Asian Development Bank ( A D B ) . For allegedly uttering defamatory words against a fellow A D B worker, he was charged before the M T C with two counts of grave oral defamation. T h e judge received an "offer of protocol" from the D F A stating that LL is covered by immunity from legal processes under Section 45 of the A g r e e m e n t between A D B and the Philippines. Based on said protocol, the judge without notice to the prosecution dismissed the two cases. In rebuking the action of the court a quo the Supreme Court held that: First, courts cannot blindly adhere and take on its face the communication from the D F A that petitioner is covered by any immunity. T h e D F A ' s determination that a certain person is covered by immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the DFA's advice and in motu proprio dismissing the cases without notice to the prosecution, the latter's right to due process was violated. T h e needed inquiry in what capacity petitioner was acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to be presented at the proper time. At any rate, mere invocation of the immunity clause does not ipso facto result in the dropping of the charges. 31


Second, under Section 45 of the Agreement, the immunity therein is not absolute but subject to the exception that the act was done in "official capacity." It is therefore necessary to determine if petitioner's case falls within the ambit of Section 45(a). Thus, the prosecution should have been given the chance to rebut the D F A protocol and it must be accorded the opportunity to present its controverting evidence, should it so desire. Third, slandering a person could not possibly be covered by the immunity agreement because Philippine laws do not allow the commission of a crime, such as defamation, in the name of official duty. The imputation of theft is ultra vires and cannot be part of official functions. A public official may be liable in his personal capacity for whatever damage he may have caused by his act done with malice or in bad faith or beyond the scope of his authority or jurisdiction. Fourth, under the Vienna Convention, a diplomatic agent, assuming LL is such, enjoys immunity from criminal jurisdiction of the receiving State except in an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside of his official functions. T h e commission of a crime is not part of official duty. What comprises the Philippine Archipelago? T h e national territory comprises the Philippine Archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. T h e waters around, between, and connecting the islands of the archipelago regardless of their breadth and dimensions, form part of the internal waters of the Philippines (Archipelagic Doctrine; Article 1, 1987 Constitution). What is a Philippine ship or airship? How is jurisdiction over crimes committed therein determined? A Philippine ship or airship is one that is duly ed in the Philippines and under Philippine laws. When a ^ e r c h a n t ship of Philippine nationality is in the Philippines and a crime is committed therein, there is no 32


question as to the jurisdiction over the crime, it being within the Philippine territory. If it is in the high seas where no country has jurisdiction, the Philippines still has jurisdiction. But if it is within the territory of another country, the jurisdiction is generally with that foreign State because penal laws are primarily territorial in application. But if that foreign country w i l l not take cognizance the Philippines can assume jurisdiction. But Philippine warship and the official vessel of the President of the Philippines, wherever they are, are extensions of the Philippines and its sovereignty. What are the two recognized rules on jurisdiction oveprnerchant vessels? These are the French Rule ( F R ) and the English Rule ( E R ) . These rules refer to the jurisdiction of one country (flag) over its merchant vessels situated in another country (host). It does not apply to war vessels over which a country always has jurisdiction. Compare the English Rule and the French Rule on jurisdiction. Under the ER, the host country has jurisdiction over crimes committed in the vessel unless they involve the internal management of the vessel. T h e FR, on the other hand, recognizes the jurisdiction of the flag country over crimes committed within the vessel except if the crime disturbs the peace and order of the host country. T h e ER is strictly territorial, unlike the FR. But the effect on jurisdiction over the crime is about the same because the general rule of one is the exception on the other. For instance, if drug trafficking is committed in the vessel, under the FR, the ^ / l i o s t country will have jurisdiction because that act disturbs the peace of the host country. Same with the ER, because the crime does not relate to the internal management of the vessel. W h o are public officers and employees within the purview of Article 2, Revised Penal Code? They are the public officers and employees of the Philippine Government when the crime is related to the exercise of their office. Without this intimate relation between the office and 33


the crime committed, the officers are acting in their private capacity and hence, bound by the law of the host country. What are included in the crimes against national security and the law of nations? They include Treason, Espionage, Provoking W a r and Disloyalty in case of War, and Piracy and Mutiny. Rebellion is not included because it is a crime against Public Order. Hence, if rebellion is planned abroad and acts of rebellion were committed there, there is no criminal liability over which the Philippine courts can assume jurisdiction because rebellion is not one of those in Title I of Book I I .

TITLE ONE

FELONIES AND CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY Chapter One FELONIES A r t . 3. Definitions. — A c t s a n d omissions p u n i s h a b l e by l a w a r e felonies (delitos). F e l o n i e s a r e committed not only by m e a n s of deceit (dolo) b u t also by m e a n s of fault (culpa). T h e r e is deceit w h e n the act is p e r f o r m e d w i t h deliberate intent; a n d t h e r e is fault w h e n the w r o n g f u l act results from i m p r u d e n c e , n e g l i g e n c e , lack of foresight, or lack of skill. •

What are felonies? Felonies (delitos) are acts or omissions punishable under the R P C . Felonies are classified on the basis of how they are committed either as dolo or culpa which are the classifications of crimes thereunder. Crimes involving special laws are properly called offenses; violations of ordinances are infractions.

•

How are felonies committed? Felonies are committed either by means of deceit or fault. There is deceit when the act is performed with deliberate intent. There is fault when the wrongful act results from imprudence, negligence, lack of foresight or lack of skills. In both cases it is necessary that there is voluntariness which is presumed from the elements of freedom of action and intelligence.

35


•

What are the elements of intentional felonies and of culpable felonies? DOLO

CULPA

1.

Freedom of action;

1.

Freedom of action;

2.

Intelligence; and

2.

Intelligence; and

3.

Intent.

3.

Negligence, imprudence, lack of foresight, lack of skill.

Felonies in general have all the foregoing elements whereas specific felonies in Book II such as homicide have their own elements, which should be alleged in the Information. T h e elements under Article 3 appertain to the actor. T h e elements of specific felonies relate to the act or acts constituting the felony. •

To which kind of felony is the principle that "the act cannot be criminal unless the mind is criminal" relevant? Strictly to intentional felonies because in culpable felonies and in crimes mala prohibita, good faith and lack of intent are not material. This is why both culpa and mala prohibita are in the consummated stage only because intent is inherent in attempted and frustrated felonies. Under the maxim "actus non facit reum, nisi mens sit rea," a crime is not committed if the mind of the person performing the act complained of is innocent. Thus, to constitute a crime, except for culpa and crimes mala prohibita, the act must be accompanied by a criminal intent. Though criminal intent is presumed disputably, the act from which such presumption is grounded must be a criminal or unlawful act. (Abdulla v. People, G.R. No. 150129, April 6, 2005)

•

What is intent? Intent refers to the use of a particular means to bring about the desired result. T h e use of a lethal weapon shows the criminal intent to kill although death may not result therefrom. Intent is a mental state, the existence of which is demonstrated by the overt acts of a person. T h e only w a y to know what is in

36

-

FELONIES

the mind of a person is to look at the external manifestation thereof demonstrated by the overt acts or means employed. What is the rule on the existence of intent? As a general rule, criminal intent is presumed (general intent). But where intent is an element of the crime (specific criminal intent), the intent cannot be presumed but must be established. In attempted or frustrated homicide, intent to kill is a specific criminal intent because if not established only physical injuries will be charged. Inference of intent to kill should not be drawn in the absence of circumstances sufficient to prove the fact beyond reasonable doubt. When such intent is lacking but wounds were inflicted, the crime is physical injuries only. (People v. Paganor, G.R. Nos. 140006-10, April 20, 2001) Between acts of lasciviousness and attempted rape, intent to rape must be shown otherwise the felony is only acts of lasciviousness. W h e n the act is equivocal or capable of giving rise to different felonies, specific criminal intent must be proved. Abdulla stated that Section 5(b) of Rule 131 of the Revised Rules on Criminal Procedures ( R R C P ) presumes disputably that an unlawful act was done with an unlawful intent: "Indeed, clear it is from its v e r y language that the disputable presumption of the existence of unlawful or criminal intent presupposes the commission of an unlawful act." Therefore, the intent to kill is presumed when the victim dies because the act of killing clearly constitutes an unlawful act. Gemoya, G.R. No. 132633, October 4, 2000, held: "The intent to kill is likewise presumed from the fact of death, unless the accused proves by convincing evidence that any of the justifying circumstances in Article 12, xxx is present." Delim, G.R. No. 142773, January 28, 2003 was more emphatic when it categorically stated that: "If the victim dies because of a deliberate act of the malefactor, intent to kill is conclusively presumed." How is intent manifested? Intent is a mental state which cannot be seen and therefore its existence can only be demonstrated by the o v e r t / acts of a person. The choice of a particular means will show the true intent of the actor. 37


Animus furandi is presumed from the commission of an unlawful act in bringing out from the bodega of the petitioner the tires which were loaded on his pick-up. Dolo is not required in crimes punished by a special statute because it is the act alone, irrespective of the motive which constitutes the offense. When it was proved that petitioner committed the unlawful acts alleged in the information, it was properly presumed that they were committed with full knowledge and with criminal intent, and it was incumbent upon him to rebut such a presumption. Moreover, Section 5, P . D . 1612 provides for the presumption from the mere possession of anything of value which has been the subject of robbery or thievery as prima facie evidence of fencing. This presumption must be upheld in the light of petitioner's shallow demurrer premised on a denial and alibi, since a disputable presumption is sufficient until overcome by contrary evidence. (Lim v. CA, G.R. No. 100311, May 18, 1993) May a crime be committed without criminal intent? Yes, in two instances: in crimes mala prohibita and in culpable felonies. For instance, intent to gain need not be proved in crimes punishable by a special law such as the AntiFencing L a w . T h e law has long divided crimes into acts wrong in themselves called acts mala in se, and acts which would not be wrong but for the fact that positive l a w forbids them, called acts mala prohibita. This distinction is important with reference to the intent with which a wrongful act is done. T h e rule is that in acts mala in se, the intent governs, but in acts mala prohibita, the only inquiry is, has the law been violated? When an act is illegal, the intent of the offender is immaterial. (id.) What is motive? Is it determinative of criminal liability? Motive is the moving power or force which impels a person to commit acts toward a desired result. Generally, motive is immaterial in incurring criminal liability; it is intent which is material. M o t i v e may be illustrated in this manner: in homicide, the intent to kill is demonstrated by the use of a lethal weapon by the offender. M o t i v e , on the other hand, may be vengeance or the desire to vindicate a wrong committed against the accused which moved him to kill the victim.

38

FELONIES

When is motive material in determining the criminal agency? M o t i v e becomes material when: a.

T h e act brings about variant crimes (People v. Puno, February 1993);

b.

There is doubt whether the accused committed the crime, or the identity of the accused is doubtful (People v. Salamat, August 1993, 44 SCAD);

c.

T h e evidence on the commission of the crime is purely circumstantial; or

d.

T h e evidence of guilt of the accused is inconclusive.

M o t i v e alone w i l l not give rise to criminal liability because under the R P C , there must be an overt act or an omission. No matter how evil the internal thought is, as long as there are no overt acts, no crime is committed. T h e rule is that proof of motive is unnecessary to impute a crime on the accused if the evidence concerning his identification is convincing. A converso, if the evidence of identification is unclear, then the jurisprudential doctrine is that proof of motive is a paramount necessity. (People v. Bautista, G.R. Nos. 120898-99, May 14, 1998) W h e r e the identity of the assailant is in dispute, motive becomes relevant, and when it is ed with sufficient evidence for a conclusion of guilt, a conviction is sustainable. (People v. Macoy, G.R. Nos. 96649-50, July 1, 1997) M o t i v e becomes important when the evidence on the commission of the crime is purely circumstantial or inconclusive. (People v. Crisostomo) What factors affect intent and consequently the criminal liability of the actor or offender? a.

Mistake of fact — negatives criminal liability akin to justifying circumstance under Article 11;

b.

Aberratio ictus (mistake in the victim of the blow) — generally increases criminal liability;

c.

Error in personae (mistake in the identity) — may or may not lower criminal liability depending upon whether the 39


actual crime committed and the intended crime are of equal or different gravity (Article 49);

„/ •

d.

Praeter intentionem (so grave a wrong caused than that intended) — lowers criminal liability under Article 13;

e.

Proximate cause (the cause of the cause is the cause of the evil caused) — gives rise to criminal liability by analogy to Article 4, paragraph 1.

What is mistake of fact? That mistake which had the facts been true to the belief of the offender, can justify his act. It is such mistake that will negative criminal liability (ignorantia facti excusat) because of the absence of the element of intent. However, if the offender is negligent in ascertaining the true state of facts, he may be free from dolo but not from culpa. / This is the teaching in Ah Chong, G.R. No. 5272, March 19, 1910. Defendant was a cook and the deceased was a house boy, and both were employed in the same place and usually slept in the same room. One night, after the defendant had gone to bed, he was awakened by someone trying to open the door, and called out twice, "who is there?" He received no answer, and fearing that the intruder was a robber, leaped from the bed and again called out: " I f you enter the room I w i l l kill you." At that moment he was struck by a chair which had been placed against the door. Believing that he was being attacked, he seized a kitchen knife and struck and fatally wounded the intruder, who turned out to be his roommate. AC was charged with murder. While there can be no doubt of defendant's exemption from liability if the intruder had really been a robber, the question presented is whether one can be held criminally responsible when, by reason of a mistake of facts, he does an act for which he would be exempt if the facts w e r e as he supposed them to be, but would be murder if he had known the true state of facts at the time. There had been several robberies in the area not long prior to the date of the incident, one of which took place in a house in which the defendant was employed as cook; and because

FELONIES

of these repeated robberies he kept a knife under his pillow for his personal protection. There was no offer of reasonable explanation of the remarkable conduct of the deceased, unless it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frighten him by forcing his w a y into the room, refusing to give his name or say who he was, in order to make AC believe that he was being attacked by a robber. U n d e r such circumstances, there is no criminal liability, provided that the ignorance or mistake of fact was not due to negligence or bad faith. In other words, if such ignorance or mistake of fact is sufficient to negative a particular intent which, under the law, is a necessary ingredient of the offense charged it destroys the presumption of intent and works an acquittal; except in those cases where the circumstances demand a conviction under the penal provisions governing negligence, and in cases where, under the provisions of the then Penal Code, a person voluntarily committing an act incurs criminal liability even though the act be different from that which he intended to commit. No one, under such circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the thief having forced open the door notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a small room, with no means of escape, with the thief advancing upon him despite his warning, defendant would have been wholly justified in using any available weapon to defend himself from such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts and deliver the first blow. •

What is aberratio ictus? How does it affect criminal liability? In aberratio ictus or error in the victim of the blow, the offender intends the injury on one person but the harm fell on another. There are three persons present: the offender, the intended victim and the actual victim. Consequently, the act may result in a complex crime (Article 48) or in two or more separate felonies, but there is only one intent that characterized the crimes. Thus, aberratio ictus may result to a greater penalty to the offender.

41


May treachery be appreciated in aberratio ictus? Yes. When the offender fired at his adversary but missed, the victims were helpless to defend themselves. Their deaths were murders not simply homicide since the acts were qualified by treachery. (People v. Flora, G.R. No. 125909, June 23, 2000) Define error in personae. What is its effect on the liability of the offender? In error in personae or mistake in the identity, the offender committed a mistake in ascertaining the identity of the victim. The classical example is: " A " shot "B" who turned out to be his father whom he thought was "B." [The intended crime is homicide but the actual crime committed is parricide.] Unlike in aberratio ictus, there are only two persons present here: the actual but unintended victim and the offender. The fact that the victims were different from the one the appellants intended to injure cannot save them from conviction. Mistake in the identity of the victim carries the same gravity as when the accused zeroes in on his intended victim. T h e main reason is that the accused had acted with such a disregard for the life of the victims without checking carefully the latter's identity as to place himself on the same legal plain as one who kills another willfully, unlawfully and feloniously. Neither may the fact that the accused made a mistake in killing one man instead of another be considered a mitigating circumstance. (People v. Pinto, G.R. No. 39519, November 21, 1991) T h e same intent to kill is present whether offender killed one or the other. This is true if the intended and the actual crimes committed are of the same severity or classification e.g., both are homicide. If the crimes are different, as when the intended crime is homicide but the actual crime committed is parricide, or vice-versa the rule is different — Article 49 shall govern. Error in personae becomes extenuating or mitigating. Distinguish mistake of fact from mistake in identity. Mistake of fact refers to the situation itself, identity of the persons involved. If the offenders intention to commit a felonious act, but committed a in ascertaining the identity of the victim, the criminal 42

not the had the mistake liability

FELONIES

is not negatived, because intent is present. It is the mistake of fact, not merely of identity, that will negative criminal liability. (People v. Oanis, 74 Phil. 257) •

Compare aberratio ictus and error in personae. In error in personae, two persons are present, the offender and the actual victim. In aberratio ictus three persons are involved, the offender, the actual victim and the intended victim. Error in personae may or may not be mitigating but aberratio ictus generally aggravates the liability for a complex crime or two separate felonies may be committed because there could be two victims.

•

What is praeter intentionem? How does it affect the offender's liability? In praeter intentionem, the injury is on the intended victim but the resulting consequence is so grave a wrong than what was intended. T h e r e should be a great disparity between the intended felony and the actual felony committed. Praeter intentionem is a mitigating circumstance. (Article 13[3]) But if the means used to commit the desired crime would also logically and naturally bring about the actual felony committed, praeter intentionem w i l l not be appreciated. If the intended wrong is to injure but the means used is kicking the victim violently resulting to the death of the victim, it is not praeter intentionem because the means used would naturally and logically result to the actual killing caused. This is because intent is a mental state which is shown by overt acts. Praeter intentionem is not available in violations of the hazing l a w as expressly provided therein.

•

What is proximate cause? How does it affect the intent and consequently, the criminal liability of the offender? Proximate cause is that cause which, in its natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the result would not have occurred. That acting first and producing the injury, either immediately or setting other events in motion, all constituting a natural and continuous chain of events, each

43


having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom (Mckee v. IAC, 211 SCRA 517). Simply stated, the cause of the cause is the cause of the evil caused. •

Summarize the effect of the five factors on intent and criminal liability of the offenders. FACTOR

Effect on Intent

Effect on Criminal Liability

Mistake of fact

negative criminal intent

negative criminal liability

Aberratio Ictus

intended result falls on another person or may be in addition to the injury on the intended victim

increases criminal liability which generally result to complex crime (Article 48)

Error in Personae

intended result falls on another due to error in the identity of the victim

extenuating if the resulting crime is greater than intended e.g., parricide when what is intended is homicide (Art. 49); no effect if the resulting crime is the same as that intended, e.g., homicide and homicide

Praeter Intentionem

actual crime is greater than intended

mitigating under Article

Proximate cause

results in crime although not intended

results in criminal liability to the actor whether acting with intent or thru negligence

13

FELONIES

Compare Articles 3 and 365 on criminal negligence. Based on Article 3, culpa is a mode of committing a crime hence, for instance in homicide, killing is denominated "homicide through reckless imprudence." In Article 365 (quasioffenses), culpa itself is the crime punished; hence, the crime is denominated "reckless imprudence resulting to homicide." Relate reckless imprudence to malice. Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which material damage results by reason of an inexcusable lack of precaution on the part of the person performing or failing to perform such act. Malice is the antithesis of reckless imprudence. Once malice is proved recklessness disappears. Appellant's external acts prove malice or criminal intent. Resenting his son's meddling in his argument with his wife, appellant purposely took his gun and shot his son. A deliberate intent to do an unlawful act is inconsistent with reckless imprudence. (People v. Agliday, G.R. No. 140794, October 16, 2001) When the information charges intentional felony but what is proved is culpable felony, can accused be convicted? Y e s . "While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon v. Justice of the Peace of Bacolor, July 1995, but a distinct crime in our Penal Code, designated as a quasi-offense it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense upon the theory that the greater includes the lesser offense." (Cabello v. Sandiganbayan, 197 SCRA 94 [1991]) Can negligence and conspiracy co-exist? N o , because crimes committed through negligence presupposes lack of intent. On the other hand, conspiracy denotes a meeting of minds of the co-conspirator, precisely for the purpose or intention of committing a crime. (Crisostomo v. Sandiganbayan)

45


•

Define intelligence within the purview of felonies. Intelligence is the capacity to understand what is right and what is wrong. Discernment is relevant to intelligence, N O T to intent. It does not mean that when a person acted with discernment, he intended the crime or the wrong done. (People u. Cordova, July 1993). Discernment is an element of both dolo and culpa, thus, whether the resulting felony is intentional or culpable, discernment is an element. Without discernment, there is neither dolo nor culpa.

•

What is the effect when the intelligence is lacking or diminished? Intelligence may be diminished such as for minors over 15 but under 18 years old; or it may be completely lacking for minors 15 and below, or insane or imbecile. It is the law itself which presumes the lack of or the diminished intelligence of minors. For diminished intelligence, the effect is to mitigate criminal liability; where intelligence is lacking, there is exemption from criminal liability.

A r t . 4. Criminal liability. — C r i m i n a l liability shall be incurred: 1. By any p e r s o n committing a felony (delito) a l t h o u g h the w r o n g f u l act d o n e be different f r o m that w h i c h he intended. 2. B y a n y p e r s o n p e r f o r m i n g a n act w h i c h w o u l d b e an offense a g a i n s t p e r s o n s or p r o p e r t y , w e r e it not for the inherent impossibility of its a c c o m p l i s h m e n t or on a c c o u n t of the employment of i n a d e q u a t e or ineffectual m e a n s . •

Compare Articles 3 and 4. Article 3 defines how felonies are committed; Article 4 is about who commits a felony.

•

Who are liable for felonies? There are two classes of offenders under this article. First are those who commit a felony (delito), although the wrongful act done is different from that intended. Second, those who do not actually commit a felony but perform an act which would

FELONIES

be an offense against persons or property were it not for the inherent impossibility of its accomplishment or on of the employment of inadequate or ineffectual means. Liability under the second will result only if the act committed does not result in a felony under the first paragraph of Article 4. •

How many clauses are there in paragraph 1? T h e r e are t w o clauses in this paragraph: 1) "By any person committing a felony (delito)," and 2) "Although the wrongful act done be different from that which he intended."

•

Does the first clause refer only to intentional felony? N o , because the provision specified "delito" and under Article 3, delitos are committed either by dolo or by culpa. Therefore, by the process of substitution, the provision would be, "By any person committing a dolo or culpa." Thus, the first clause refers to both dolo and culpa and even if the wrongful act done was different from what should have been the result of the culpable or negligent act, a felony is still committed. For instance, Facundo tried to commit suicide by jumping to his conclusion from the fifth floor of the school building. He survived the suicide attempt but killed Chiquito who was sitting on the bench in the campus where he jumped. Was Facundo liable for the death of Chiquito? Y e s , Facundo was not committing a felony when he attempted to commit suicide because suicide is not a crime. But by jumping without ascertaining that there is somebody on his suicide path considering that a school is a populated place, Facundo was not careful in committing suicide. For his negligence, he is liable for the death of Chiquito by virtue of Article 3 and paragraph 1 of Article 4, and also Article 365. T h e elements here, then, are:

•

a)

A felony is committed; and

b)

T h e wrong done must be the direct, natural, and logical consequence of the felony committed.

What is the rule of proximate cause? Under Article 4, paragraph 1, a person committing a felony is liable for its consequences. For instance, Kevin 47


announced a hold-up at a jeepney while brandishing a knife. Because of fear, Cosme jumped out of the jeepney and was run over by a truck killing him instantly. K e v i n will be liable for the death of Cosme even though he had not touched the latter. When a person causes a belief in the mind of another making the latter to act in a manner fatal to him, the former will be liable for that act of engendering such a belief. Even if there is no intent to kill on the part of the offender, he may be liable for homicide because of the rule of proximate cause. Thus, anyone who inflicts injury voluntarily and with intent is liable for all the consequences of his criminal act, such as death, that supervenes as a consequence of the injuries. Here, accused is liable for the demise of the victim for such was caused by the violent kicks which he inflicted on the vital parts of the victim's body. (People v. Mores, 252 SCRA 31) The perceived delay in giving medical treatment to the victim does not break at all the causal connection between the wrongful act of the appellant and the injuries sustained by the victim. It does not constitute an efficient intervening cause. The proximate cause of the death of the deceased is the shooting by the appellant. A n y o n e inflicting injuries is responsible for all the consequences of his criminal act such as death that supervenes in consequence of the injuries. T h e fact that the injured did not receive proper medical attendance would not affect appellant's criminal responsibility. T h e rule is founded on the practical policy of closing to the wrongdoer a convenient avenue of escape from the just consequences of his wrongful act. If the rule w e r e otherwise, many criminals could avoid just ing for their acts by merely establishing a doubt as to the immediate cause of death. (People v. Acuram, G.R. No. 117954, April 27, 2000) There should, however, be no effective intervening cause between the first cause and the resulting injury. For instance, in a fight, Harrison injured Ford at the palm of his hands. Thereafter, Ford returned to his work of collecting pig feeds. One week later, he died of gangrene. T h e gangrene brought about by his unsanitary work condition is an effective intervening cause and the death of Ford should not be attributed to the injury caused by Harrison.

FELONIES

What is an impossible crime? An impossible crime is one where the acts performed would have been a crime against persons or property but which is not accomplished because of its inherent impossibility or because of the employment of inadequate or ineffectual means. There is intent (subjective) to commit a crime but actually no crime is committed (objective). T h e act performed by the offender cannot produce an offense against persons or property because: (1) the commission of the offense is inherently impossible of accomplishment; or (2) the means employed is either (a) inadequate or (b) ineffectual. (Intod v. CA, G.R. No. 103119, October 21, 1992) What are the two kinds of inherent impossibility? a.

L e g a l impossibility, where the intended acts, even if completed would not amount to a crime. It applies to those circumstances where: (1) the motive, desire and expectation is to perform an act in violation of the law; (2) there is intention to perform the physical act; (3) there is a performance of the intended physical act; and (4) the consequence resulting from the intended act does not amount to a crime, (id.). Example: killing a dead person or stealing property which turned out to belong to the stealer.

b.

Factual or physical impossibility of accomplishing the intended act. This occurs when extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime, (id.). Example is stealing from a vault which turned out to be empty.

Is impossible crime a crime? N o . T h e law states that the act "would be a crime" hence, it has not ripened to an actual crime because of the ineffectual means employed or due to its inherent impossibility. Thus, objectively, no crime has been committed. Second, this article is under Book II on specific felonies but is in Chapter One of Book I defining felonies in general.

49


•

If there is no crime committed, why is impossible crime punished? Impossible crime is resorted to only if the acts committed will not fall under paragraph 1 of Article 4. T h e purpose is to suppress lawlessness. Subjectively, the offender is a criminal although objectively no crime has been committed. There is no attempted or frustrated stage because there is no actual crime committed. The R P C inspired by the Positivists School, recognizes in the offender his formidability and penalizes an act which were it not aimed at something quite impossible or carried out with means which proved inadequate, would constitute a felony against person or property. T h e rationale is to punish such criminal tendencies, (id.)

•

Is there an impossible crime of rape? Y e s , because rape is now a crime against person since the Anti-Rape L a w reclassified it from Crimes against Chastity. Hence, if a person would rape one who unknown to him has just died, he commits the impossible crime of rape.

•

Should the offender know of the impossibility of the crime? N o , because subjectively he intends to commit an unlawful act. For instance, in homicide, the offender has the intent to kill. If he knew that the victim is already dead, he would not intend to kill the dead. Or, if he knew that the vault is empty, he would not go to the trouble of breaking into a building with all the attendant risks to himself to steal nothing.

M

A r t . 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of ^excessive penalties. — W h e n e v e r a c o u r t h a s k n o w l e d g e of a n y act w h i c h it m a y d e e m p r o p e r to r e p r e s s a n d w h i c h is not p u n i s h a b l e b y l a w , i t shall r e n d e r the p r o p e r decision a n d shall r e p o r t to the C h i e f E x e c u t i v e , t h r o u g h the D e p a r t m e n t of Justice, the r e a s o n s w h i c h i n d u c e the c o u r t to b e l i e v e that said act s h o u l d be m a d e the subject of p e n a l legislation. In the same w a y the c o u r t shall s u b m i t to the C h i e f Executive, t h r o u g h the D e p a r t m e n t of Justice, such state50

FELONIES

m e n t a s m a y b e d e e m e d p r o p e r , w i t h o u t s u s p e n d i n g the e x e c u t i o n of the sentence, w h e n a strict enforcement of the p r o v i s i o n s of this C o d e w o u l d result in the imposition of a c l e a r l y excessive p e n a l t y , t a k i n g into c o n s i d e r a t i o n the deg r e e o f m a l i c e a n d the i n j u r y c a u s e d b y the offense. •

What is the "proper decision" that the court should render if it tried a case for an act which is not yet punishable by law? T h e court should render a decision of acquittal or order the dismissal of the case because of Article 21 which prohibit the imposition of a penalty not prescribed by law prior to the commission of a felony; A r t i c l e 22 which prohibits retroactivity of penal laws; and the constitutional prohibition on ex post facto law. T h e present law prohibits and punishes only drunk driving. T h e r e is no law banning a drunk person from riding a public vehicle, or the latter's driver from allowing a person who appears to be drunk to board a public conveyance. A drunk enger or one under the influence of liquor or drug poses a veritable peril to the other engers. He is prone to react irrationally and violently, due to lack or diminution of self-control. Senseless loss of lives and physical harm can be avoided, and the riding public duly protected, if the potential danger posed by drunk engers can be addressed properly. It is the duty of the court, whenever it has knowledge of any act which it may deem proper to repress and which is not punishable by law, to report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of legislation. (People v. Glino, G.R. No. 173793, December 4, 2007)

•

What is the duty of the court when the penalty prescribed for a felony is excessive? The court should call the attention of the President on the matter. For instance, abduction with rape was committed by the son with the complicity of his mother. The penalty of reclusion perpetua imposed on the mother is the same as the sons which the Court felt to be excessive. She acquiesced to cooperate with the accused on of maternal concern. 51


She must have agonized with her son who did not know how to court the girl of his dreams, both of them being unschooled. (People v. Villorente, July 1992) May the court prevent the grant of pardon to a convict when it feels that the crime committed is so reprehensible? N o . The trial court, so revolted by the perversity of appellant's crime that it was moved to include this proposal in the dispositive portion of its decision: ". . . i n the event that upon automatic review by the Honorable Supreme Court, that the penalty of Death is not imposed but that of Reclusion Perpetua, this Court recommends that accused should not be granted pardon within the period of thirty (30) years." Incestuous rape is indeed reprehensible. It deserves full condemnation. However, the recommendation is improper. It is the President's prerogative whether or not to grant a pardon subject to the limitations imposed by the Constitution. (People v. Orilla, G.R. Nos. 148939-40, February 13, 2004) Considering that the accused: [i] was only 21 years old when she committed the crime of kidnapping penalized by reclusion perpetua; [ii] she did not maltreat the child victim; and [iii] she has been in preventive detention since 1991, she should be granted either commutation of sentence or executive clemency. (People v. Acbangin, G.R. No. 117216, August 9, 2000) Likewise, for the appellant who is already 72 years old, suffering from an acute heart ailment that requires a heartby operation and has served a term of imprisonment consistent with the ends of retributive justice. (People v. Del Rosario, G.R. No. 134581, October 26, 2000) The penalty normally imposed for kidnapping and similar offenses appears too harsh. T h e record does not indicate that HH has been injured emotionally or physically by her experience. T h e degree of malice exhibited by the appellant, an unlettered woman, in committing the offense does not warrant the penalty of reclusion perpetua, particularly because to date, she has already spent seven years in prison. Executive clemency was recommended as a means of mitigating the undue harshness of the criminal law in this particular case. (People v. Gutierrez, G.R. No. 81020, May 28, 1991)

52

FELONIES

A r t . 6. Consummated, frustrated, and attempted felonies. C o n s u m m a t e d felonies, a s w e l l a s those w h i c h a r e f r u s t r a t e d a n d attempted, a r e p u n i s h a b l e . A felony is c o n s u m m a t e d w h e n all the elements necess a r y f o r its e x e c u t i o n a n d a c c o m p l i s h m e n t a r e present; a n d it is f r u s t r a t e d w h e n the o f f e n d e r p e r f o r m s all the acts of execution w h i c h w o u l d p r o d u c e the felony as a consequence b u t w h i c h , n e v e r t h e l e s s , d o not p r o d u c e i t b y r e a s o n o f causes i n d e p e n d e n t o f the w i l l o f the p e r p e t r a t o r . T h e r e i s a n a t t e m p t w h e n the o f f e n d e r commences c o m m i s s i o n of a felony directly by o v e r t acts, a n d does p e r f o r m all the acts o f e x e c u t i o n w h i c h s h o u l d p r o d u c e felony b y r e a s o n o f some c a u s e o r accident other than o w n s p o n t a n e o u s desistance. •

the not the his

When is a felony consummated? A felony is consummated when all the acts necessary for its accomplishment and execution are present. T h e offender does not have to do anything else to consummate the offense. He has already reached the objective stage of the offense as he no longer has control of his acts having already performed all that is necessary to accomplish his purpose.

•

What are formal crimes? Formal crimes are always consummated because the offender cannot perform all the acts necessary to execute the offense without consummating it. Physical injuries are formal crimes since these are punished as to result and the gravity of the injury cannot be determined whether slight, less serious or serious unless and until consummated. Slander is a formal crime because the moment the defamatory words were uttered and heard by a third person, the crime is consummated.

•

When is a felony frustrated? A felony is frustrated when the offender performs all the acts which would produce the felony as a consequence, but the felony was not produced by reason of causes independent of the will of the perpetrator. T h e offender has reached the objective stage because no further action is required on his part. Unlike

53


in consummated felony, however, the offense was not produced because of some causes independent of the will of the offender. If the cause of frustration is due to the will of the offender, the felony is not frustrated, but could be another crime. •

What crimes cannot be committed in the frustrated stage? They are those which, by the definition of a frustrated felony, the offender cannot possibly perform all the acts of execution to bring the desired result without consummating the offense. Examples: 1.

Rape, since the gravamen of the offense is carnal knowledge, hence, no matter how slight is the penetration, the felony is consummated. If the male organ failed to touch the pudenda, by some causes or accident other than his own spontaneous desistance, the felony is merely attempted. If he desisted spontaneously, he is not liable for attempted rape, following Article 6, but he is liable for some other crime such as acts of lasciviousness.

2.

Arson, because this is defined as the burning of property, hence, the moment burning occurs, even if a small portion only, the offense is consummated. If overt acts have been commenced such as drenching the property with gasoline and fighting a match but before it can be hurled into the property, the offender was stopped by the owner, preventing the fire from touching the property, it is attempted.

3.

Corruption of public officers because the offense requires agreement or participation of two parties, such that when the offer is accepted, it is consummated; but when rejected, the offense is attempted because the offender was not able to perform all the acts of execution as he failed to persuade the public officer.

4.

Adultery because its essence is sexual congress, hence, the same principle as in rape applies.

5.

Theft and robbery because apoderamiento is complete from the moment offender gains possession of the thing. 54

FELONIES

•

When is a felony attempted? A felony is attempted when the offender commences the commission of an offense directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. T h e offender is still in the subjective phase because he has not performed all acts necessary for its accomplishment. T h e r e is something yet that he still has to do to produce the felony. Therefore, he still has control over his acts as he may or may not continue his overt acts. W h e n the cause of the non-performance of all the acts necessary for the commission of the offense is other than the offender's spontaneous desistance, the felony is attempted. (People v. Pareja, G.R. No. 88043, December 9,1996). Therefore, if the cause is his desistance, the act is not yet attempted felony.

•

What are overt acts? Preparatory acts? Overt acts are external acts which if continued will logically result in a felony. It is the start of criminal liability because the offender has commenced the commission of an offense with overt acts. Acts which still require another act so that a felony will result are called preparatory acts and are not as a rule punishable unless they are in themselves punished as independent crimes. Example: buying poison, because that act cannot be related to any crime as it cannot be determined whether the poison will be used against a person or against a pest. Proposal and conspiracy to commit a crime are preparatory acts; hence, they are not punishable unless the proposal and conspiracy relate to, for instance, treason or rebellion, because such "preparatory acts" are independently punished.

•

What is required for the "overt act" to be considered an attempt of a felony? T h e overt act must be directly related to the offense committed. T h e attempted felony is that directly linked to the overt act no matter what the intention is. Example: a person intending to rob a store made an opening on its wall but before he could enter he was apprehended. He cannot be charged with attempted robbery even if that was his intention because

55


the overt act of making an opening is not directly linked with robbery. The reason for this is that while inside he may commit robbery or murder or rape or any other crime. Since intent is a state of mind it can only be speculated what he would do inside. But he may be charged with attempted tres because that act is directly related to the purpose of entering the store or malicious mischief because of the destruction of property. What is desistance? It is the act of discontinuing the execution of the felony which will negative criminal liability of the offender when done during the attempted stage. It is an absolutory cause which negates criminal liability because the law encourages a person to desist from committing a crime. Desistance has legal effect only in the attempted stage. The attempted stage exists up to that time when the offender still has control of his acts. T h e moment he has lost control of the outcome of his acts the subjective phase is ed; the stage is now either frustrated or consummated (objective phase). At this stage, desistance is only factual but has no legal effect because the law recognizes desistance only in the attempted stage. Note that in Article 6, there is no desistance in either the frustrated or the consummated stage. For instance, Tolits aimed his gun at Bentong and fired but missed. He again aimed his gun but Bentong begged for his mercy. Tolits took mercy and desisted from firing his gun. Is there criminal liability? In the first instance, yes, because he has already discharged his firearm. His desistance pertains only to the second instance, hence, only then will his criminal liability be absolved. Compare attempted and frustrated felonies. 1.

As to acts of execution, in attempted, not all acts of execution had been done whereas in frustrated all acts of execution had been performed.

2.

As to causes of non-accomplishment, in attempted, the felony was not produced by reason of cause or accident other than the offender's own spontaneous desistance; in

56

FELONIES

frustrated, the reason for the frustration is some cause independent of the will of the perpetrator. 3.

In attempted stage, the offender is still in the subjective phase as he still has control of his acts; whereas in the frustrated stage, he is already in the objective phase because all the acts of execution are already there and the cause of its non-accomplishment is other than the offender's own will. Hence, if the felony was not produced due to the w i l l of the offender, such as his giving the antidote for the poison he istered on the victim, there is no frustrated murder, but some other crime, e.g., physical injuries.

4.

A t t e m p t e d is necessarily included in the frustrated stage, hence, if one is charged with frustrated felony but what w a s proved is merely attempted, the offender can be convicted in the same information.

5.

In both, intent is inherent for the offender has commenced the commission of the felony but was unsuccessful because of causes independent of the will of the perpetrator or other than his own spontaneous desistance. There is no attempted or frustrated culpa.

6.

Example: In attempted homicide, the wound is not mortal, hence, the offender should still need to deal another blow on the victim which he was not able to do because of some cause or accident like his being apprehended. In frustrated homicide, the wound is mortal, already sufficient to bring about death; hence, there is no more need of another blow from the offender. But death nevertheless did not supervene because of timely medical attendance.

A mere attempt to commit a felony is subsumed in the full execution thereof. To attempt is to commence the commission of a crime by overt acts. If one has been proved to have completely carried out all the acts necessary to commit the crime, he has certainly been proved to have executed the initial act required in an attempt. Thus, the accused could have suffered no prejudice, had they been tried under either one or the other section. (People v. Boco, G.R. No. 129676, June 23, 1999)

57


•

What separates attempted from frustrated homicide/murder? Where the wound inflicted on the victim is not life threatening, the accused not having performed all the acts of execution that would have brought about death, the crime is only attempted. There being no circumstance to qualify the assault upon FF to attempted murder, the crime is attempted homicide. (People v. Albacin, G.R. No. 133918, September 13, 2000) Where there is no evidence that without timely medical attention the wounds inflicted, though serious, would be fatal if not medically attended to, the character of the wound becomes doubtful and all doubts are to be construed in favor of the accused and of lesser penalty, hence the crime is only attempted. (People v. Costales, G.R. No. 141154-56, January 15, 2002)

•

Compare frustrated and consummated felonies. a.

As to acts of execution, in both, all acts of execution had been done and therefore, both are in the objective phase.

b.

However, in frustrated the desire was not accomplished, whereas in consummated, the purpose was accomplished.

c.

Frustrated is subsumed in consummated.

A r t . 7. When light felonies are punishable. — L i g h t felonies a r e p u n i s h a b l e only w h e n they h a v e b e e n c o n s u m m a t e d , with the exception of those committed a g a i n s t p e r s o n s or property. •

What are light felonies? When are they punishable? Light felonies are those infractions of law penalized with arresto menor or a fine not exceeding P200 pesos, or both, is provided. (Article 9) T h e y are punishable:

•

a.

In general, only when they are consummated;

b.

As an exception, in all stages when committed against persons or against property.

Who are punishable in light felonies? Under Article 16, only the principals and the accomplices are liable. Accessories are not punishable because light felony 58

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is penalized with arresto menor. Accessories are penalized two degrees lower than the principal or two degrees below arresto menor which is non existent. De minimis non curat lex. (The law does not deal with trifles.) A r t . 8. Conspiracy and proposal to commit felony. — C o n s p i r a c y a n d p r o p o s a l t o commit felony a r e p u n i s h a b l e only in the cases in w h i c h the l a w specially p r o v i d e s a penalty therefor. A c o n s p i r a c y exists w h e n t w o or m o r e p e r s o n s come to an a g r e e m e n t c o n c e r n i n g the commission of a felony a n d d e c i d e to c o m m i t it. T h e r e i s p r o p o s a l w h e n the p e r s o n w h o has d e c i d e d t o c o m m i t a felony p r o p o s e s its execution to some other p e r s o n or persons. •

What is conspiracy? How is its existence determined? T h e r e is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy may be deduced from the mode and manner in which the offense was perpetrated or inferred from the acts of the accused when such point to a t purpose and design, concerted action and community of interest.

•

What quantum of proof is required for conspiracy? T h e same degree of proof required for establishing the crime is required to a finding of conspiracy. It must be shown to exist as clearly and as convincingly as the commission of the offense itself in order to uphold the fundamental principle that no one shall be found guilty of a crime except upon proof beyond reasonable doubt. (Pecho v. People, G.R. No. 111399, September 27, 1996) Conspiracy must be proved. It cannot be surmised that conspiracy existed just because NN and LL were both seen raising their arms and aiming at the victim. Conspiracy as a basis for conviction should be proved in the same manner as the criminal act. Although direct proof is not essential, conspiracy must be shown to exist as clearly as the commission of the offense itself. It is fundamental that a charge of conspiracy must be 59


proved, just like any other criminal accusation, "independently and beyond reasonable doubt." M e r e simultaneous aiming by appellant and his co-accused at the victim with their firearms does not by itself demonstrate concurrence of will or unity of action or purpose that could be a basis for their collective responsibility. The evidence only proves with certainty that LL was present when the victim was killed. It does not prove beyond doubt who killed him. There is paucity of evidence that indicate that appellant and NN shared a common design and a unity of purpose in killing II so as to make both responsible by reason of a conspiracy. There is even doubt whether both did fire at the victim. For the victim was hit only once; he suffered only one bullet wound. Accordingly, acquittal of LL is in order. His responsibility for the death of II has not been proven beyond reasonable doubt. (People v. Loreno, June 6, 2002) "To be sure, conspiracy is not a harmless innuendo to be taken lightly or accepted at every turn. It is a legal concept that imputes culpability under specific circumstances; as such, it must be established as clearly as any element of the crime. Evidence to prove it must be positive and convincing, considering that it is a convenient and simplistic device by which the accused may be ensnared and kept within the penal fold." (People v. Mandao, G.R. No. 135048, December 3, 2002) Does the finding of conspiracy require direct proof? N o , for conspiracy may be inferred from the acts of the accused before, during and after the commission of the crime, all of which indubitably point to or indicate a t purpose, a concert of action and a community of interest. (People v. Boco) It is not necessary to show that two or more persons met together and entered into an explicit agreement setting out the details of an unlawful scheme or the details by which an illegal objective is to be carried out. Proof that accused acted in concert, each of them doing his part to fulfill the common design to kill the victim w i l l suffice to a conviction. (People v. Glinoa) Batin, G.R. N o . 177223, N o v e m b e r 28, 2007 explained that conspiracy may be deduced from the acts of the appellants 60

FELONIES

before, during, and after the commission of the crime which are indicative of a t purpose, concerted action, and concurrence of sentiments. Inducement may be by command, advice or through influence or agreement for consideration. The words of advice or the influence must have actually moved the hands of the principal by direct participation. Words of command of a father may induce his son to commit a crime. Tamayo (44 Phil. 38) held that the moral influence of the words of the father may determine the course of conduct of a son in cases in which the same words coming from a stranger would make no impression. To be liable for conspiracy, what is necessary to be done by a conspirator? It is essential for one to be a party to a conspiracy as to be liable for the acts of others that there is intentional participation in the transaction with a v i e w to the furtherance of the common design. Except when he is the mastermind in a conspiracy, it is necessary that a conspirator should have performed some overt act as a direct or indirect contribution in the execution of the crime planned to be committed. The overt act may consist of active participation in the actual commission of the crime itself or it may consist of moral assistance to his coconspirators by being present at the commission of the crime or by exerting moral ascendancy over the other co-conspirators. (id.) M e r e presence at the situs of the crime or sole relationship with the other accused does not make one a co-conspirator. Evidence of actual cooperation and not mere cognizance or approval of an illegal act is required to establish conspiracy. Appellant could not have been conspirator for allegedly acting as a lookout noting his eye defect (for which he was known as "bulag") and doubted his ability to perform the role of a supposed lookout. (People v. Tabuso, G.R. No. 113708, October 26, 1999) T h e prosecution failed to prove that petitioner performed any overt act in furtherance of the alleged conspiracy. Petitioner was merely present when her husband signed the check. T h e nature of her involvement in the commission of the crime was not specified either by a direct act of participation, a direct inducement of her co-conspirator, or cooperating in 61


the commission of the offense by another act without which it would not have been accomplished. The only semblance of overt act that may be attributed to petitioner is that she was present when the first check was issued. Conspiracy must be established, not by conjectures, but by positive and conclusive evidence. Conspiracy transcends mere companionship and mere presence at the scene of the crime does not in itself amount to conspiracy. Even knowledge, acquiescence in or agreement to cooperate, is not enough to constitute one as a party to a conspiracy, absent any active participation in the commission of the crime with a v i e w to the furtherance of the common design and purpose. •

Can conspiracy co-exist with culpa? No, for conspiracy presupposes the existence of malice since it involves a meeting of the minds of the co-conspirators on the manner and mode of committing a crime.

•

What are the two concepts of conspiracy? They are (1) conspiracy as a crime by itself; and (2) conspiracy as a means of committing a crime. As a means of committing a crime, it is either (a) by pre-agreement or planning; or (b) implied from the concerted acts of the offenders or implied conspiracy.

•

Compare conspiracy as a crime and as a means of incurring criminal liability. As a crime by itself. Under paragraph 1 of Article 8, conspiracy as a crime is one for which the l a w specially provides a penalty. As a crime by itself, the crime subject of conspiracy is not yet committed but the mere act of conspiring is defined and punished as a crime, for instance, conspiracy to commit rebellion or insurrection (Article 136) and conspiracy to commit treason (Article 115). As a means of committing a crime or incurring criminal liability. If in the above, the conspiracy to commit rebellion is actually carried out, the offenders will be liable not for the conspiracy but for the rebellion under Article 135. Conspiracy then will be a means of incurring criminal liability for the acts of others. Under this concept, distinction should be made 62

FELONIES

between ( a ) conspiracy where there is actual pre-agreement or planning stage; and (b) implied conspiracy. •

What are the kinds of conspiracy as a means of committing a crime? 1.

Conspiracy by prior agreement on how to commit the crime. In this case, a conspirator is liable as long as he appeared in the scene of the crime except when he is the mastermind who is liable whether or not he appears. This is because he is a principal by inducement and without his inducement the crime would not have been committed. H i s the mens rea.

2.

Implied conspiracy, or conspiracy that is deduced from the acts of the offenders. Here, the offenders acted in concert during the commission of the crime; the agreement to pursue a common design and united purpose was instantaneous. It is essential for liability to attach that the conspirator participated in the commission of the crime. His mere presence or approval of the crime without more w i l l not make the alleged conspirator liable because there would be no basis for deducing conspiracy as to him as there is absent criminis particeps. Since conspiracy is instantaneous or spur of the moment, if he did not participate, it shows that he had no intent to in the commission of the crime. (In this aspect, it may be commented that there is a similarity between conspiracy and culpa: both are either crimes per se or means of committing a crime.)

•

In conspiracy by pre-agreement who should be liable for a second unplanned crime committed by one or some of the perpetrators? T h e liability of the conspirators is only for the crime agreed upon except: a.

W h e n the other crime was committed in their presence and they did not prevent its commission indicating their approval thereof;

b.

When the other crime is the natural consequence of the crime planned, e.g., homicide resulting from physical injuries inflicted; and 63


c.

When the resulting crime was a composite crime because a composite crime or special complex crime is indivisible. It cannot be split into different parts, one part to be deemed covered by the conspiracy and the other outside of conspiracy, (infra)

In the foregoing three instances, although there was a crime committed which is not part of the plan or prior agreement, all the conspirators are liable therefor. In other cases, an unplanned crime committed will be the liability only of the one who committed it. Only the actual perpetrators are to be held liable for acts beyond the agreement of the conspirators. Conspirators may only be held able for the acts embraced in the criminal agreement; and as regards felonious acts not included, only the author thereof would be liable. (People v. Sinoc, G.R. No. 115211-12, July 11, 1997) The actual participation of the appellants in the killing of MM having been established by the prosecution, they are equally liable pursuant to the rule that the act of one is the act of all. Conspiracy was duly proven by the positive testimonies of the prosecution witnesses pointing to acts done in concert by the appellants to carry on their unlawful design but only with respect to the killing of MM and not the shooting of Sgt. B B . Thus, EE alone should be held liable for the crime of frustrated homicide. (People v. Porras, 255 SCRA 514) It was not established by the evidence that the other accused had agreed to kill if necessary to carry out successfully the plan to rob. In fact, one of the robbers berated the gunman for having shot the security guard. Therefore, appellants ed with merely the criminal design to rob, which makes them accomplices. Their complicity must accordingly be limited to the robbery, not to the killing of T P . W a i t i n g only at the parked jeep could not have given them the opportunity to prevent the killing, as is required of one seeking relief from liability for assaults committed during the robbery. In Adriano, the driver, who was unaware of the killing perpetrated inside the building as he stayed always near his jeep, could not be a co-conspirator in the killing of the guards, as the killing was not part of the

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FELONIES

original plan but arose only during the exigency of the moment. (People v. Corbes, G.R. No. 113470, March 26, 1997) •

What is implied conspiracy? Implied conspiracy is one that is deduced from the mode and manner in which the offense was committed. T h e concerted acts of the parties to achieve the same objective signify conspiracy. This doctrine was first enunciated in Guevarra, 179 S C R A 334, which held that "the act of the appellant in holding the victim from behind immediately before the latter was stabbed by Eduardo constitutes a positive and overt act towards the realization of a common criminal intent which may be classified as instantaneous. T h e act was impulsively done on the spur of the moment. It sprang from the turn of events, thereby uniting the criminal design of the slayer immediately before the commission of the offense. That is termed as implied conspiracy." (Subayco v. Sandiganbayan, G.R. No. 117267117310, August 22, 1996). In implied conspiracy, the co-conspirator must do an act which shows his unity of purpose and design with the other offenders. M e r e presence at the scene of the crime, without more, w i l l not make a person liable with the offenders, and this is true even if he approves of the acts of the offenders. M e r e knowledge, acquiescence to or approval of the act without cooperation or agreement to cooperate, is not enough to constitute one a party to a conspiracy absent the intentional participation in the act with a view to the furtherance of the common design and purpose. (People v. Bragaes, G.R. No. L-62359, November 14, 1991)

•

When conspiracy involves a pre-conceived plan, what is required of a co-conspirator to incur liability? To be liable as a co-conspirator, unless he is a mastermind, he should appear in the scene of the crime. It is essential for one to be a party to a conspiracy as to be liable for the acts of the others that there is intentional participation in the transaction with a view to the furtherance of the common design. Except when he is the mastermind, it is necessary that a conspirator should have performed some overt act as a direct

65


or indirect contribution in the execution of the crime planned to be committed. The overt act may consist of: (a)

active participation in the actual commission of the crime itself; or

(b)

moral assistance to his co-conspirators by being present at the commission of the crime; or

(c)

exerting moral ascendancy over the other conspirators. (People v. Pablom, January 2011)

Is it necessary for the co-conspirators to perform equally each and every part of the acts constituting the offense? N o . As long as the parts played by each of the principals in the conspiracy contribute to the realization of the common design, they are all liable equally. One who s a criminal conspiracy adopts in effect the criminal design of his co-conspirators and he can no longer repudiate the conspiracy after it has materialized. Conviction is proper upon proof that the accused acted in concert. T h e act of one then becomes the act of all and each them w i l l be deemed equally guilty as co-principals of the crime committed, (id.) When the defendants by their acts aimed at the same object, one performing one part and another performing another part so as to complete it, with a v i e w to the attainment of the same object, and their acts, though apparently independent, were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments, conspiracy is present. (Siton v. CA, G.R. No. 94065, December 2, 1991) T h e presence of a conspiracy was established. T h e appellants were animated by one and the same purpose: to kill RR and they were united in its execution. T h e question as to who dealt the fatal blow on their victim is of no consequence for when a conspiracy exists, the act of one is the act of all. (People v. Lao, G.R. No. 90627, November 29, 1991) Even if appellant never fired a gun, he would still be principally liable as a co-conspirator in the killing of the 66

FELONIES

victims, for while only BB might have inflicted the fatal blows or wounds, nevertheless, appellant must be held liable for the killings under the principle that the act of a conspirator is the act of all co-conspirators. T h e degree of actual participation in the commission of the crime is immaterial in a conspiracy. (People v. Maranion, G.R. No. 90672-73, July 18, 1991) T h e quantity or quality of the participation of a coconspirator is immaterial in the determination of the penalty for the act of one is the act of all. Thus, one who conspired in the crime of rape by just holding the hands of the victim while another was doing the act of raping her shall incur the same guilt and the same penalty as the actual rapist. M a y a co-conspirator be acquitted while others convicted? Y e s . Although conspiracy is a t act, there is nothing irregular if a supposed co-conspirator is acquitted and others convicted. Generally, conspiracy is only a means by which a crime is committed: the mere act of conspiring is not by itself punishable. Hence, it does not follow that one conspirator alone (an alleged inducer) cannot be convicted when there is a conspiracy. As long as the acquittal of a co-conspirator does not remove the basis of a charge of conspiracy, other conspirators may be found guilty of the offense. (People v. Tiguman, G.R. No. 130144, May 24, 2001) In an indictment based on conspiracy, the acquittal of a conspirator does not absolve the co-conspirator from criminal liability. If the prosecution fails to prove conspiracy, the alleged conspirators should be individually responsible for their respective acts. (People v. Figueroa, G.R. No. 134056, July 6, 2000) M e r e knowledge, acquiescence, or agreement to cooperate is not enough to constitute one as a conspirator, absent any active participation in the commission of the crime, pursuant to the common design and purpose. Conspiracy transcends companionship. (People v. Compo, G.R. No. 112990, May 28, 2001) M e r e presence at the scene of the incident, knowledge of the plan or acquiescence thereto is not sufficient to hold a person liable as a co-conspirator. The mere fact that the accused had prior knowledge of the criminal design of the 67


principal perpetrator of the crime does not ipso facto make him as co-conspirator. Participation in the criminal act is essential for he may yet be an accomplice. (People v. Samudio, March 2001) •

What are the two structures of multiple conspiracies? Estrada, G.R. N o . 148965, February 26, 2002, categorized two structures of multiple conspiracies:

»

(1)

the "wheel" or "circle" conspiracy, in which there is a single person or group (the "hub") dealing individually with two or more other persons or groups (the "spokes"); and

(2)

the "chain" conspiracy, usually involving the distribution of narcotics or other contraband, in which there is successive communication and cooperation in much the same w a y as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer.

Discuss the concept: "The act of one is the act of all." When conspiracy is established, all who participated therein, irrespective of the quantity and quality of his participation is liable equally, whether the conspiracy is preplanned or instantaneous. T h e criminal liability of one is the same as the criminal liability of the other, unless one or some of the conspirators committed another crime, which is not part of the intended crime.

»

In the absence of a conspiracy, what is the liability of the offenders? In the absence of previous conspiracy, unity of criminal purpose and intention immediately before the commission of the crime, or community of criminal design, the criminal responsibility arising from different acts directed against one and the same person is individual and not collective, and each of the participants is liable only for the act committed by him. (People v. Desoy, G.R. No. 127754, August 16, 1999)

FELONIES

At the very least, conspiracy presupposes a prior agreement or contemporaneous understanding on the part of the conspirators to commit a felony, in this case, to kill I N . However, the attack on the victim originated spontaneously from and was initiated unexpectedly by B B I I . B B , Sr., and his other son, BB I I I , immediately ed in the fray by attacking the victim with their knives, whereupon, the two female appellants, also assisted by hitting the victim with stools. T h e rapidity of the succession of such consecutive acts of the assailants, with the last four coming instinctively, as it were, to the aid of the original assailant, cannot but produce the conclusion that their actuations were activated without prior or apparent deliberation. It does not even appear that there was a call or a signal from one to the other to the attack on I N , much less is there even an intimation that they had a murderous intent or cabal at any time prior thereto. The spontaneity of their respective reactions, albeit resulting in an attack w h e r e they all participated, rules out the existence of a conspiracy. (People v. Lacao, G.R. No. 95320, September 4, 1991 [contra: Subayco v. Sandiganbayan]) To be held guilty as a co-principal by reason of conspiracy, the accused must be shown to have performed an overt act in pursuance or furtherance of the complicity. The overt act or acts of the accused may consist of active participation in the actual commission of the crime itself or may consist of moral assistance to his co-conspirators by moving them to execute or implement the criminal plan. (Ladonga v. People, G.R. No. 141066, February 17, 2005) •

Relate conspiracy and the aggravating circumstances of evident premeditation and price or reward. Evident premeditation does not automatically follow a finding of conspiracy or vice versa. Where conspiracy is merely implied from concerted actions at the time of the commission of the offense, evident premeditation cannot be appreciated, absent proof showing how and when the plan to kill the victim was hatched or the time that elapsed when it was carried out, in order to determine if the accused had sufficient time between its inception and its fulfillment to disionately consider and

69


accept all its consequences. (People v. Dulot, G.R. No. 137770, January 30, 2001) Where conspiracy is directly established, with proof of the attendant deliberation and selection of the method, time and means of executing crime, evident premeditation can be appreciated. (People v. Givera, G.R. No. 1132159, January 18, 2001) The hiring of TT to kill the victims for a price, providing the victims' picture and the meeting to carry out the killing provide more than sufficient evidence to appreciate the same. As to the circumstance of price or reward, it can only be appreciated against appellant TT since it was he who committed the felonious act for money. T h e same evidence on price established conspiracy between the appellants. Consequently the act of one is the act of all. (People v. Tiguman) •

Is the laxity of a public official in the performance of his duty ive of a finding of conspiracy? N o . T h e actions taken by MM involved the v e r y functions he had to discharge in the performance of his official duties. There has been no intimation at all that he had foreknowledge of any irregularity committed by both DD and E E . MM might have been indeed lax and istratively remiss in placing too much reliance on the official report submitted by his subordinate ( E E ) . But for conspiracy to exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is not the product of negligence but of intentionality on the part of cohorts. (Narciso v. Sandiganbayan, G.R. No. 9826263, January 10, 1994) Conspiracy is not presumed. L i k e the physical acts constituting the crime itself, the elements of conspiracy must be proved beyond reasonable doubt. W h i l e conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the commission of crime, all taken together, however, the evidence therefor must reasonably be strong enough to show a community of criminal design, (id.)

•

When may the head of office be held liable for the acts of his subordinates?

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T h e head of office may be found liable for the acts of his subordinates either due to conspiracy or by an act of reckless imprudence which allowed the commission of estafa thru falsification, or malversation through falsification, without such act of negligence the crime could not have been accomplished. Considering, however, that negligence cannot co-exist with conspiracy, his liability shall be thru culpa but that of his subordinates thru dolo, sans conspiracy. When, however, the infraction consists in the reliance in good faith, albeit misplaced by a head of office on a subordinate upon w h o m the primary responsibility rests, absent a clear case of conspiracy, the Arias doctrine must be held to prevail. (Arias v. Sandiganbayan, 180 SCRA 309) •

What is the Arias doctrine? A l l heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations. There has to be some added reason why he should examine each voucher in detail. A n y executive head of even small government agencies can attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers, and ing papers that routinely through his hands. The number in bigger offices or departments is even more appalling. (id.)

A r t . 9. Grave felonies, less grave felonies and light felonies. — G r a v e felonies a r e those to w h i c h the l a w attaches the capital p u n i s h m e n t or penalties w h i c h in any of their periods are afflictive, in a c c o r d a n c e w i t h Article 25 of this C o d e . L e s s g r a v e felonies a r e those w h i c h the l a w punishes with penalties w h i c h in their m a x i m u m p e r i o d a r e correctional, in a c c o r d a n c e w i t h the above-mentioned article. L i g h t felonies a r e those infractions of l a w for the commission of w h i c h the penalty of arresto menor or a fine not exceeding 200 pesos, or both, is p r o v i d e d .

71


How are felonies classified as to severity? 1.

Grave felonies — penalized by capital punishment or afflictive penalties in any of its period. This means that whenever the minimum, medium or maximum period of the penalty is an afflictive penalty, the felony is a grave felony. Afflictive penalties cover prision mayor, disqualification, reclusion temporal and reclusion perpetua.

2.

Less grave felonies — punished with penalties which in their maximum period are correctional, i.e., the maximum period of the penalty must be correctional, that is, destierro, suspension, arresto mayor, or prision correccional. For instance the penalty of arresto menor in its maximum period to arresto mayor in its minimum period is a less grave felony because the maximum period of that penalty is arresto mayor, a correctional penalty.

3.

Light felonies — punished with arresto menor or a fine not exceeding P200. (In Article 26, a P200 fine is a correctional penalty.)

What is the significance of classifying felonies into grave, less grave or light? To determine: a.

Whether a complex crime was committed (Article 48 which requires grave or less grave felonies);

b.

T h e duration of the subsidiary penalty to be imposed (Article 39, N o . 2) where the subsidiary penalty is based on the severity of the penalty;

c.

T h e duration of the detention in case of failure to post the bond to keep the peace (Article 35);

d.

Whether the crime has prescribed (Article 90);

e.

Whether or not there is delay in the delivery of detained persons to the judicial authority (Article 125 where the basis of the 12-18-36 hours is the severity of the offense alleged); and

f.

T h e proper penalty for quasi-offenses. (Article 365)

72

FELONIES

A r t . 10. Offenses not subject to the provisions of this Code. — Offenses w h i c h a r e o r i n the future m a y b e p u n i s h a b l e u n d e r special l a w s a r e not subject to the p r o v i s i o n s of this C o d e . T h i s C o d e shall be s u p p l e m e n t a r y to such l a w s , unless the latter s h o u l d specially p r o v i d e the c o n t r a r y . •

How are the first and second sentences of Article 10 reconciled? T h e first sentence provides that offenses punishable under special laws are not subject to the provisions of the R P C , while the second makes the Code supplementary to such laws. W h i l e it seems that the two are contradictory, a sensible interpretation w i l l show that they can perfectly be reconciled. T h e first sentence should be understood to mean that special penal laws are controlling with regard to offenses therein specifically punished following the rule that special legal provisions prevail over general ones. Lex specialis derogant generali. In fact, the clause can be considered as a superfluity and could have been eliminated altogether. The second clause contains the soul of the article. T h e main idea and purpose of the article is embodied in the provision that the "code shall be supplementary" to special laws, unless the latter should specifically provide the contrary. (Ladonga v. People)

•

What are special laws? T h e y are laws that define and penalize crimes not included in the R P C ; they are of a nature different from those defined and punished in the Code. T h e r e are special laws however which are mere amendments of the provisions of the R P C , such as P . D . 533 modifying Articles 308, 309 and 310, which is, thus, not a true special law. (Taer v. CA; Canta v. People)

•

What is the relationship between dolo and special laws? Dolo is not required in crimes punished by a special statute because it is the act alone, irrespective of the motives which constitute the offense. When it was proved that petitioner committed the unlawful acts alleged in the information, it was properly presumed that they were committed with full knowledge and with criminal intent, and it was incumbent 73


upon him to rebut such a presumption. (Lim v. CA, G.R. No. 100311, May 18, 1993) The concept of delito continuado, although an outcrop of the Spanish Penal Code, has been applied to crimes penalized under special laws, e.g., violations of R . A . 145 penalizing the charging of fees for following up claims for veteran's benefits. Under Article 10, it shall be supplementary to special laws, unless the latter provide the contrary. Hence, legal principles developed from Penal Code may be applied in supplementary capacity to crimes punished under special laws. (People v. Sabun, 10 SCRA 156) Article 24 enumerates measures of prevention or safety which are not considered as penalties, e.g., suspension pendente lite and preventive detention. Although a provision in the R P C , these are applicable to violations of special penal laws. It is demanded by the constitutional provision on presumption of innocence. However, Article 29 provides that the period of preventive imprisonment will be deducted from the term of imprisonment. (In Re: Petition for Habeas Corpus of Pete C. Lagran, August 2001) The rules governing civil/pecuniary liabilities are stated in the R P C and in the N C C . Under the former the costs of the proceedings and pecuniary liabilities are respectively found in Articles 37, 38 and 104 to 108. These pecuniary liabilities should be applicable to violators of special penal laws. When is the Revised Penal Code suppletory to special laws? Whenever the special law uses the nomenclature of penalties in the R P C , indicating the intent of Congress to make the Code apply suppletorily to such special laws (People v. Simon, July 1994), unless the special law, though using the Code's nomenclatures, specially provide that it shall not be supplementary to such laws (Last clause of sentence no. 2 ) . When the R P C supplements the special law, the rules under the former shall be followed including in the application of the I S L . But the mere fact that the special law uses the nomenclature of penalties of the Code does not make the offense malum in se.

74

FELONIES

When is the suppletory effect of the Code not available? T h e general rule is that special laws are not subject to the provisions of the R P C . For instance, the circumstances affecting criminal liability (Articles 11 to 15) are not applicable to crimes committed under special laws. T h e suppletory effect of the Code to special laws under this article cannot be invoked w h e r e there is legal or physical impossibility of or a prohibition in special law against such supplementary application. But, w h e r e the penalty is actually taken from the Code in its technical nomenclature, then it is necessarily w i t h its duration, correlation and legal effects under the system of penalties in the Code. (People v. Simon) W h e r e the special law expressly grants the court discretion in applying the penalty prescribed for the offense, there is no room for the application of the Code. Since the Dangerous Drugs L a w (prior to its amendment) contains no explicit grant of discretion to the court in the application of the penalty prescribed by the law, the court must be guided by the rules prescribed in the Code concerning the applications of penalties, (id.) But since R . A . 9165 further amending R . A . 6425 reverted back to "non-RPC" penalties, e.g., life imprisonment the Comprehensive Dangerous Drugs A c t as the law now stands is a purely special law. Hence, the R P C has no suppletory effect. What principles of the Revised Penal Code are applicable to special penal laws? Parel, 44 Phil. 437; Ponte, 20 Phil. 379; and Bruhez, 28 Phil. 305, involved the suppletory application of principles under the then Penal Code to special laws. Parel is concerned with the application of Article 22 to violations of Act 3030, the Election L a w , with reference to the retroactive effect of penal laws if they favor the accused. Ponte involved the application of Article 17 with reference to the participation of principals in the commission of the crime of misappropriation of public funds as defined and penalized by Act 1740. Bruhez covered Article 45 with reference to the confiscation of the instruments used in violation of Act 1461, the Opium Law.

75


The suppletory application of the principle of conspiracy is analogous to the application of the provision on principals under Article 17 in Ponte. For once conspiracy or action in concert to achieve a criminal design is shown, the act of one is the act of all the conspirators, and the precise extent or modality of participation of each of them becomes secondary, since all the conspirators are principals. (Ladonga v. People) B.P. 22 does not expressly proscribe the suppletory application of the provisions of the R P C . Thus, in the absence of contrary provision in B.P. 22, the general provisions of the Code which, by their nature, are necessarily applicable, may be applied suppletorily. Yu, G.R. No. 134172, September 20, 2004, applied suppletorily Article 39 to B.P. 22.

Chapter T w o

JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES W H I C H EXEMPT FROM CRIMINAL LIABILITY •

Why is there a need for modifying circumstances? E v e r y penalty under the R P C is understood to be prescribed for consummated felonies and against the principal offenders. L i k e w i s e , the R P C is primarily classical; the penalties are predetermined without regard to the moral state of the offender. Thus, the need for circumstances to modify criminal liability taking into consideration the moral, emotional, and mental state of the offender and the circumstances when the offense was committed. T h e R P C , therefore, provides for circumstances which modify the criminal liability of the offenders.

•

What are the different modifying circumstances? 1.

Justifying circumstances — Article 11;

2.

Exempting circumstances — Article 12;

3.

Mitigating circumstances — Article 13;

4.

A g g r a v a t i n g circumstances — Article 14; and

5.

Alternative circumstances, aggravating — Article 15.

either

mitigating

or

Offenders falling under either Article 11 or 12 are without criminal liability; those benefited by the circumstances in Article 13 have reduced criminal liability; those proved to be more perverse by committing the felony with any of the circumstances in Article 14 have increased criminal liability; and those who act while under the circumstances stated in Article 15 will have their liability either increased or reduced depending upon the situation obtaining in the commission of the felony. In addition, specific felonies in Book II provide their

77


own modifying circumstances, otherwise called absolutory and extenuating circumstances. Is there any distinction between Articles 14 and 15? Orilla differentiated Articles 14 and 15 in that the former enumerates aggravating circumstances per se whereas the latter are circumstances which are not aggravating per se but may be mitigating depending upon the circumstances of the case. When the term "aggravating circumstances" requires strict interpretation, it should be confined to Article 14. W h e n it calls for the award of indemnities, the term should be liberally construed to include the circumstances in Article 15. The term "aggravating circumstances" is strictly construed, not only because what is involved is a criminal statute, but also because its application could result in the imposition of the death penalty. T h e list of aggravating circumstances in Article 14 is thus exclusive for the purpose of raising a crime to its qualified form. Article 14 does not include relationship as an aggravating circumstance. Relationship is an alternative circumstance under Article 15. Otherwise stated, for purposes of death penalty, the aggravating circumstance must come exclusively from Article 14. Article 15 cannot supply the generic aggravating circumstance, which should accompany the qualifying circumstance to raise the penalty to death pursuant to paragraph 2 of Article 63. [With the abolition of the death penalty, the above disquisition has become a c a d e m i c ] What other factors affect criminal liability? 1.

Absolutory circumstances referring to exempting circumstances outside Article 12 such as certain relatives who acted as accessories to the offenders pursuant to Articles 19 and 20, and those covered by A r t i c l e 332 for crimes and relatives enumerated therein, among others.

2.

Extenuating circumstances which are mitigating but not found in Article 13, e.g., abandonment in paragraph 3, Article 333 and concealment of dishonor in Article 255.

78

JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL LIABILITY

•

•

Give examples of exempting/absolutory circumstances. 1.

Instigation by reason of public policy;

2.

Article 6(3) — spontaneous desistance in the attempted stage unless the overt act committed already constitutes a crime other than that intended;

3.

Article 7 — attempted/frustrated light felonies except those against persons or property;

4.

Article 16 — accessories in light felonies;

5.

Article 20 — certain relatives who are accessories subject to the requisites provided therein;

6.

Article 247 — death and physical injuries inflicted under exceptional circumstances;

7.

Article 332 — certain relatives in theft, estafa, and malicious mischief;

8.

Battered woman syndrome - Section 26, R . A . 9262

9.

Status offenses in Sections 57 and 58, R . A . 9344

10.

Somnambulism;

11.

Mistake of fact; and

12.

Repeal of a penal law, either absolute or modification of the penalty when favorable to the offender.

What is entrapment? Instigation? Entrapment is the employment of such ways and means for the purpose of trapping or capturing a lawbreaker. In entrapment, the idea to commit the crime originates from the accused. Nobody induces or prods him into committing the offenses. This act is distinguished from inducement or instigation wherein the criminal intent originates in the mind of the instigator and the accused is lured into the commission of the offense charged in order to prosecute him. The instigator practically induces another to commit the offense and himself becomes a co-principal. (People v. Ramos, Jr., G.R. No. 88301, October 28, 1991)

•

What is a buy-bust operation? It is a form of entrapment which has been accepted as a valid means of arresting violators of the drugs law. It is 19


commonly employed by police officers as an effective way of apprehending law offenders in the act of committing a crime. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense. Its opposite is instigation or inducement, wherein the police or its agent lures the accused into committing the offense in order to prosecute him. Instigation is deemed contrary to public policy and considered an absolutory cause. A "buy-bust operation" is a form of entrapment employed by peace officers to trap and catch a malefactor in flagrante delicto. Entrapment has received judicial sanction as long as it is carried out with constitutional and legal circumspection. This requirement was observed in the present case. T h a t there was no inducement on the part of the agents is bolstered by the fact that the test-buy operation conducted by the same Sgt. U U the day before yielded the same result, i.e., that the cigarettes the accused was selling w e r e marijuana sticks. In addition before Sgt. UU bought the 10 sticks of marijuana during the operation, two other persons w e r e earlier seen buying from the accused marijuana sticks, and for which they w e r e thereafter apprehended. It was proved that appellant is indeed guilty as charged. How should allegation of frame-up and extortion be viewed? An allegation of frame-up and extortion by police officers is a common and standard defense in most dangerous drug cases. It is viewed with disfavor, for it can be easily concocted. To substantiate such defense, including instigation, the evidence must be clear and convincing because of the presumption that public officers acted in the regular performance of their official duties, (id.) Can instigation and frame-up be both present in a case? No for they are incompatible. In instigation, the crime is actually performed by the accused except that the intent originates from the mind of the inducers. In frame-up, however, the offense is not committed by the accused. Precisely, the accused is only framed or set up in a situation leading to a false accusation against him. Instigation and frame-up therefore cannot be present concurrently, (id.) 80


Distinguish entrapment from instigation. ENTRAPMENT

6.

INSTIGATION

T h e mens rea originated from the accused who was merely trapped by the peace officer in flagrante delicto

Evil idea originated from the peace officer who induced the accused to commit the act

This is not absolutory as to the offender since he authored the evil idea

absolutory by reason of public policy

Consistent with public policy

contrary to public policy

T r a p for the unwary criminal (People v. Marcos, 185 SCRA 154)

trap for unwary innocent

T h e peace officer has no criminal liability for his acts are in accordance w i t h law

T h e peace officer is a principal by inducement

T h e crime has already been committed

T h e crime would not and could not have been committed were it not for the instigation

T h e underlying difference between entrapment and instigation is in the origin of the criminal intent. In entrapment, mens rea originates from the mind of the criminal. The idea and resolve to commit the crime comes for him. In instigation, the law enforcers conceive the commission of the crime and suggest it to the accused who adopts the idea and carries it into execution. Entrapment is sanctioned; instigation is tabooed. (People v. de la Peha, G.R. No. 92534, July 9, 1991) In entrapment, the entrapper resorts to ways and means to trap and capture a lawbreaker while executing his criminal plan; in instigation, the instigator practically induces the defendant into committing the offense, and himself becomes 81


a co-principal. Entrapment is no bar to prosecution and conviction; in instigation, the defendant will be acquitted. (People v. Polizon, September 1992) Entrapment is oftentimes, the only effective way of apprehending a criminal in the act of the commission of the offense. A criminal is caught committing the act by ways and means devised by peace officers. (People v. Juma, G.R. No. 90391, March 24, 1993) In entrapment, the crime had already been committed while in instigation, it was not and could not have been committed were it not for the instigation by the peace officer, (id.) Why is Article 247 on death inflicted during exceptional circumstances extenuating? Article 247, far from defining a felony, merely provides or grants a privilege or benefit — amounting practically to an exemption from an adequate punishment — to a legally married person or parent who shall surprise his spouse or daughter in the act of committing sexual intercourse with another, and shall kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. Thus, in case of death or serious physical injuries, considering the enormous provocation and his righteous indignation, the accused — who would otherwise be criminally liable for the crime of homicide, parricide, murder, or serious physical injury, as the case may be — is punished only with destierro. This penalty is mere banishment and is intended more for the protection of the accused than a punishment. (People v. Coricor, 79 Phil. 672). And where physical injuries other than serious are inflicted, the offender is exempted from punishment. To hold that it defines and penalizes a distinct crime would make the exceptional circumstances which practically exempt the accused from criminal liability integral elements of the offense, and thereby compel the prosecuting officer to plead and it them in the Information. Such an interpretation would be illogical if not absurd, since a mitigating and much less an exempting circumstance cannot be an integral element of the crime charged. Only "acts or omissions . . . constituting the offense" should be pleaded and a circumstance which

82

JUSTIFYING CIRCUMSTANCES AND CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL LIABILITY

mitigates criminal liability or exempts the accused, not being an essential element of the offense charged — but a matter of defense that must be proved — need not be pleaded. (People v. Abarca, G.R. No. 74433, September 14, 1987) A r t . 11. Justifying circumstances. — T h e f o l l o w i n g do not i n c u r c r i m i n a l liability: 1.

A n y o n e w h o acts in defense of his p e r s o n or rights, p r o v i d e d that the f o l l o w i n g circumstances concur: First. U n l a w f u l a g g r e s s i o n ; Second. R e a s o n a b l e necessity of the m e a n s e m p l o y e d to p r e v e n t or r e p e l it; Third. L a c k of sufficient p r o v o c a t i o n on the p a r t of the p e r s o n d e f e n d i n g himself.

2.

A n y o n e w h o acts in defense of the p e r s o n or rights of his s p o u s e , a s c e n d a n t s , d e s c e n d a n t s or legitimate, n a t u r a l or a d o p t e d b r o t h e r s or sisters, or of his relatives by affinity in the s a m e d e g r e e s , a n d those by c o n s a n g u i n i t y w i t h i n the fourth civil d e g r e e , p r o v i d e d , that the first a n d second requisites p r e s c r i b e d i n the next p r e c e d i n g circumstance a r e present, a n d the f u r t h e r requisite, in case the p r o v o c a t i o n w a s g i v e n b y the p e r s o n attacked, that the one m a k i n g the defense h a d n o p a r t therein.

3.

A n y o n e w h o acts in defense of the p e r s o n or rights of a s t r a n g e r , p r o v i d e d that the first a n d second requisites m e n t i o n e d in the first circumstance of this article a r e present a n d that the person d e f e n d i n g be not i n d u c e d by r e v e n g e , resentment or other evil motive.

4.

A n y p e r s o n w h o , in o r d e r to a v o i d an evil or injury, does an act w h i c h causes d a m a g e to another, p r o v i d e d that the f o l l o w i n g requisites a r e present: First. T h a t the evil sought to be avoided actually exists; Second. T h a t the injury feared be greater than that done to a v o i d it; 83


Third. T h a t there be no other practical a n d less harmful means of p r e v e n t i n g it.

•

5.

A n y person w h o acts in the fulfillment of a duty or in the l a w f u l exercise of a right or office.

6.

A n y person w h o acts in o b e d i e n c e to an o r d e r issued by a s u p e r i o r for some l a w f u l p u r p o s e .

What are justifying circumstances? Those wherein the acts of the actor are in accordance with law and hence, he incurs no criminal liability. Since there is no crime, there is no criminal, hence, he should not be called an "offender" but an "actor." A n d therefore, no civil liability either. That is why in Article 101, "in cases falling within subdivision 4 of Article 11, the persons for whose benefit the harm has been prevented shall be civilly liable in proportion to the benefit which they may have received." T h e civil liability is not on the actor. T h e following are justifying circumstances:

•

a.

Defense of self, of relatives and of strangers;

b.

State of necessity;

c.

Fulfillment of duty; and

d.

Obedience to superior order.

What are the requisites of self-defense? 1.

Unlawful aggression;

2.

Reasonable necessity of the means employed to prevent or repel it; and

3.

Lack of sufficient provocation on the part of the person defending himself.

Self-defense includes defense of life, of chastity, of property and of honor. T h e latter includes defense against defamation. Unlawful aggression is indispensable not only for self defense but for defense of relatives and strangers as well for without unlawful aggression, there is nothing to prevent or repel. There can be no self-defense unless it is proven that

84


there had been unlawful aggression on the part of the person injured or killed by the assailant. (People v. Bausing, G.R. No. L-64965, July 18,1991) What is unlawful aggression? To constitute unlawful aggression, it is necessary that an attack or material aggression, an offensive act positively determining the intent of the aggressor to cause injury, shall have been made. A mere threatening or intimidating attitude is not sufficient; there must be a real danger to life or personal safety. (People v. Nabayra, October 1991) Unlawful aggression Real aggression means an a weapon such as to cause safety. Imminent unlawful impending or at the point and positively strong.

must be real or at least imminent. attack with physical force or with injury or danger to life or personal aggression means an attack that is of happening. It must be offensive

For unlawful aggression to be appreciated there must be an actual, sudden, unexpected attack or imminent danger thereof, and not merely a threatening or intimidating attitude. T h e accused must present proof of positively strong act of real aggression. Unlawful aggression must be such as to put in real peril the life or personal safety of the person defending himself or of a relative sought to be defended and not an imagined threat, (id.) What is the importance of unlawful aggression for the existence of self-defense? Self-defense, by its very nature, requires the attendance of unlawful aggression initiated by the victim. (People v. Nell, G.R. No. 109660, July 1, 1997) If there is no unlawful aggression, there would be nothing to prevent or repel. In that event, there could be no defense, complete or incomplete. Where the unlawful aggression which has begun no longer exists, the one making the defense has no more right to kill or even wound the former aggressor. Just as the presence and severity of a large number of wounds on the part of the victim disprove self-defense, so do they belie

85


the claim of incomplete defense and indicate not the desire to defend but a determined effort to kill. (People v. Santos, 255 SCRA 309) When the accused invokes self-defense, what is the effect on the burden of proof? Although it is a cardinal principle that the prosecution has the burden of proving the guilt of the accused, the rule is reversed where the accused its committing the crime in self-defense. In such case, the burden is shifted to the accused who must prove clearly and convincingly the elements of selfdefense. (People v. Magallanes, G.R. No. 114265, July 8, 1997) By invoking self-defense, appellant its the fact that he did stab the deceased. Correspondingly, it is incumbent upon him to prove by clear and convincing evidence that he acted in self-defense. He must rely on the strength of his own evidence and not on the weakness of that of the prosecution for, even if the prosecution evidence is weak, it could not be disbelieved after the accused himself itted the killing. (People v. Arroyo, G.R. No. 99258, September 13, 1991). What is the rule when aggression ceased to exist? W h e n aggression has ceased to exist, there is no more necessity for self-defense. "Clearly, whatever act of aggression was initiated by Tapales against the appellant has already ceased as demonstrated by the fact that Tapales was running away from the appellant. T h e tables w e r e turned when the appellant chased Tapales with the obvious intent of stabbing him. At this juncture, the appellant had assumed the role of aggressor, thus, his claim of self-defense cannot obviously prosper." (id.) When the aggression no longer exists, such as when the aggressor ran away after the attack or when the defender was able to wrest the weapon from the aggressor, there is no need for self-defense. T h e alleged defender in turn becomes the aggressor if he would continue the attack. "Evidence to be believed must not only proceed from the mouth of a credible witness, but must be credible in itself such as the common experience and observation of mankind can 86


approve as probable under the circumstances. T h e manner of infliction and the number of physical injuries sustained by the victim during the incident negate the self-defense posture. If the intention of the accused was only to defend himself and he was already able to hack the victim on the left temple, which wound was fatal, he would not have inflicted further injuries on the victim who was his uncle. T h e accused continued to hack the victim on his back and even chased the victim when he ran away to escape from further torture." (People v. Nabayra, October 1991) •

What is the effect of presence of a large number of wounds on the victim on the claim of self-defense? T h e presence of a large number of wounds on the part of the victim negates self-defense and instead indicates a determined effort on the part of the offender to kill the victim. T h e claim of self-defense can be belied by physical evidence. Thus, the number, location and nature of the wounds would reveal whether it was self-defense or intent to kill.

•

When is there reasonable necessity of the means employed? T h e reasonableness of the means employed depends upon the circumstances surrounding the aggression, the state of mind of the aggressor and the available weapon at the defender's disposal. It cannot be measured by mathematical calculation. (People v. Gutual, G.R. No. 115233, February 22, 1996) In self defense, there should be necessity of the action taken as well as the means used. T h e latter requires a consideration of (1) whether the aggressor was armed; (2) the nature and quality of the weapon used; and (3) the physical conditions and sizes of both the aggressor and the person defending himself. (People v. Nell) Reasonable necessity of the means employed to prevent or repel the unlawful aggression cannot be present when the unlawful aggression on the part of the victim has ceased. •

What is "rational equivalence" in the reasonable necessity of the means employed? Reasonable necessity of the means employed does not imply material commensurability between the means of attack 87


and defense — what the law requires is rational equivalence. It would not be proper or reasonable to claim that accused should have fled or selected a less deadly weapon because in an emergency in which without any reason whatever he was placed, there was nothing more natural than to use the weapon he had to defend himself. In the natural order of things, following the instinct of self-preservation, he was compelled to resort to a proper defense. In the consideration of rational equivalence will enter the principal factors of the emergency, the imminent danger to which the person attacked is exposed, and the instinct, more than the reason, that moves or impels the defense, and the proportionateness thereof does not depend upon the harm done, but rests upon the imminent danger of such injury, (id.) What belies the reasonableness of the means employed? The means employed becomes unreasonable and unnecessary when after the aggression had ceased and the victim no longer posed any threat of further attack the accused continued inflicting injuries on the victim who fell on the ground helpless. (People v. Binondo, G.R. No. 97227, October 20, 1992) The presence of a large number of wounds inflicted on the victim clearly indicates a determined effort on the part of the accused to kill his prey and belies the reasonableness of the means adopted to prevent or repel an unlawful act of an aggressor. (People v. Arizala, G.R. No. 130708, October 22, 1999) What is the paramount consideration in determining the reasonableness of the means employed? In determining whether the defender has chosen a reasonable means to defend himself, self-preservation is of paramount consideration. A person trapped by circumstances of person, time and place will not examine the weapon of the aggressor and calculate the weapon that he should use, whether or not it is proportionate to that of the aggressor. T h e only thing on the mind of a trapped defender is how to preserve his life from imminent peril.


•

Discuss the concept of lack of sufficient provocation on the part of the defender. Lack of sufficient provocation on the part of the defender shows that there may have been provocation but it should not be sufficient and it must not immediately precede the act. The law requires that the provocation be sufficient or proportionate to the act committed and adequate to arouse one to its commission. It is not even enough that the provocative act be unreasonable or annoying. Sufficient provocation as a requisite of incomplete selfdefense is different from sufficient provocation as a mitigating circumstance. As an element of self-defense, it pertains to its absence on the part of the person defending, while as a mitigating circumstance, it refers to its presence on the part of offended party. (People v. CA, G.R. No. 103613, February 13, 2001)

»

What are the rules when a person is attacked? "Stand ground when in the right" applies when the aggressor is armed with a weapon and is especially more liberal if the person attacked is a peace officer in the performance of his duty. A peace officer is not supposed to retreat from a trouble maker but is expected to face the latter and pacify him or prevent him from committing disorderly acts. This rule has superseded the "retreat to the wall" principle which makes it a duty of a person assailed to retreat as far as he can before he meets the assault with force. (U.S. v. Domen, G.R. No. L-12963, October 25, 1917) As weapons have become more sophisticated and powerful, and men more harsh and unmerciful, self-preservation demands that a person must watch his back and eliminate the aggression as quickly as possible. Retreat to the wall has been rendered obsolete and dangerous.

•

What is the effect when not all of the requisites for defense are present? T h e accused should be entitled to either: a.

Ordinary mitigating circumstance of incomplete defense pursuant to Article 13(1) if only one requisite is present which should always be unlawful aggression, or 89


b.

Privileged mitigating circumstance under Article 69, if majority, that is, two requisites are present, which should always include unlawful aggression.

For the claim of incomplete defense to prosper, it is essential to prove the primordial element of unlawful aggression. If there is no unlawful aggression, there would be nothing to prevent or repel. In that event, there is no occasion to make any defense, complete or incomplete. Where the unlawful aggression, which has begun no longer exists, the one making the defense has no more right to kill or even wound the former aggressor. Just as the presence and severity of a large number of wounds on the part of the victim disprove self-defense, so do they belie the claim of incomplete defense and indicate not the desire to defend but a determined effort to kill. (People v. Santos) •

What does defense of honor encom? It encomes defense of one's chastity or reputation. But there must be imminent and immediate danger of rape to justify killing. If it were only acts of lasciviousness, killing is an unreasonable means. Thus, the acts of lasciviousness committed by a man on a lady beside him in the church provoked the lady to stab the irreverent man. T h e means employed by the prayerful lady was adjudged to be unreasonable. Slander may be a necessary means to repel slander. But it must only be to the extent necessary to redeem the honor of the defender against the defamatory remarks.

•

Can there be justifying circumstance of defense when what is involved is property? If the aggression is on property even if there was no attack on the defender or owner or possessor, defense is proper but not to the extent of taking life. K i l l i n g the aggressor w i l l not be justified because the means used to repel or prevent the aggression will then be not reasonable. T h e value of property can never equal the value of life, hence killing is not justified. The accused awoke to find his house being damaged and his accessibility to the highway being closed as well as of his rice mill bodega. This constituted unlawful aggression on the part of the victims. However, their killing was not a reasonable 90


means to prevent or repel the aggression. Nevertheless, he was credited with the privileged mitigating circumstance of incomplete self-defense and ordinary mitigating circumstance of ion and obfuscation. (People v. Narvaez, April 1983) Under the doctrine of "self-help" in Article 429 of the N C C , the law justifies the act of the owner or lawful possessor of a thing in using such force as is necessary to protect his proprietary or possessory rights at the very moment of unlawful deprivation. But not to the extent of taking the offender's life unless there is a like danger posed on the person of the defender. •

W h o should determine the existence of these justifying circumstances? It must be the court, not the police officers. If a person was killed, such as a thief, the police should file the case and not declare for themselves that there is complete self-defense. T h e y should allow the courts to decide the existence of all the requirements for self-defense. These are matters of defense that should be litigated.

•

What are the elements of defense of relatives? a.

Unlawful aggression;

b.


c.

In case the provocation was given by the person attacked, the person defending had no part therein.

T h e relatives to be defended must be defender's spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity in the same degrees, and those by consanguinity within the fourth civil degree. Defense of relatives from the fifth degree of consanguinity falls within defense of strangers and the third element in defense of relatives will be replaced by the element that the defender is not induced by revenge, resentment or other evil motives. •

What are the elements of defense of strangers? a.

Unlawful aggression; 91


b.


c.

The person defending is not induced by revenge, resentment or other evil motives.

The first and second requisites in the three kinds of defenses are the same. Only the third requisite varies. People v. Genosa, G.R. No. 135981, January 15,2004 •

Characterize a battered woman. A battered woman ( B W ) is one who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. BW include wives or women in any form of intimate relationship with men. To be classified as such, the couple must go through the battering cycle at least twice. A n y woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is a B W . A BW exhibits common personality traits, such as low self-esteem, traditional beliefs about the home, the family and the female sex role; emotional dependence upon the dominant male; the tendency to accept responsibility for the batterer's actions; and false hopes that the relationship w i l l improve.

•

Define battered woman syndrome. The battered women syndrome ( B W S ) is characterized by "cycle of violence," which has three phases: (a)

the tension-building phase;

(b)

the acute battering incident; and

(c)

tranquil, loving (or, at least nonviolent) phase.

At tension-building phase, minor battering occurs — verbal, physical abuse or other form of hostile behavior. T h e woman tries to pacify the batterer but this placatory/ive behavior only legitimizes the man's belief that he has the right to abuse her. At some point, the violence "spirals out of control" and leads to acute battering incident.

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T h e acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The BW deems this incident as unpredictable, yet also inevitable. At this stage, she has a sense of detachment from the attack and the terrible pain. Acute battering incidents are often so savage and out of control that bystanders or intervenors are likely to get hurt. T h e final phase of the cycle of violence begins when the acute battering incident ends. During this period, the couple experience profound relief. Indeed, the batterer may show tender, nurturing behavior toward his partner. »

What is the effect on the battered woman of this cycle of violence? Because of the recurring cycles of violence experienced the abused woman's state of mind metamorphoses. In determining her state of mind, expert evidence on psychological effect of battering on wives/common-law partners are relevant and necessary to clarify and refute myths and misconceptions about B W . T h e "overwhelming brutality/trauma" could result in posttraumatic stress disorder which is a form of "anxiety neurosis or neurologic anxcietism." After being repeatedly and severely abused, the battered persons may believe that they are essentially helpless, lacking power to change their situation. Acute battering incidents can have the effect of stimulating the development of coping responses to trauma at the expense of the victim's ability to muster an active response to try to escape further trauma. She ceases to believe that anything she can do will have a predictable positive effect. Just as the BW believes she is responsible for the violent behavior of her partner, she also believes that he is capable of killing her, that there is no escape. She feels unsafe, suffers from pervasive anxiety, and usually fails to leave relationship.

•

What should be proved by the battered woman who kills/ injures her batterer? T h e defense should prove all three phases of cycle of violence characterizing the relationship of the partners. The 93


defense fell short in this. There were acute battering incidents typical characteristics of this stage. However, that single incident does not prove the existence of syndrome. She failed to prove that in at least another battering episode in the past, she went thru a similar pattern. In criminal cases, all the elements of the modifying circumstance must be proved. The existence of B W S in a relationship does not in itself establish a legal right of the woman to kill her partner. Evidence must still be considered in the context of self-defense. Crucial to the battered-woman defense is her state of mind at time of offense — she must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life. One who resorts to self-defense must face a real threat on his life; the peril sought to be avoided must be imminent and actual, not merely imaginary. Unlawful aggression is the most essential element of selfdefense. It presupposes actual, sudden and unexpected attack or an imminent danger thereof on the life or safety of a person. According to M M , there was sufficient time interval between the unlawful aggression of BB and her fatal attack upon him. She had withdrawn from his violent behavior and escaped to their children's bedroom. He apparently ceased his attack and went to bed. T h e reality or imminence of danger had ended altogether. (But see Section 26 of the R . A . 9262) Is physical assault at the actual time of the killing indispensable for self-defense invocation to prosper? Where the brutalized person if already suffering from the syndrome, further evidence of actual physical assault at the time of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To require the battered person to await an obvious, deadly attack before she can defend her life would amount to sentencing her to 'murder by installment.' Still, impending danger prior to the defendant's use of deadly force must be shown. Threatening behavior or communication can satisfy the required imminence of danger. Considering such circumstances and the existence of the syndrome, self-defense may be appreciated.


In summary: First, each of the phases of cycle of violence must be proved to have characterized at least two battering episodes. Second, final acute battering episode preceding the killing of the batterer must have produced in the battered person's mind actual fear of an imminent harm from the batterer and honest belief that she needed to use force in order to save her life. Third, at the time of the killing, the batterer must have posed probable — not necessarily immediate and actual — grave harm to the accused based on the history of violence by the former against the latter. Taken altogether, these circumstances could satisfy the requisites of self-defense. •

In the absence of complete self-defense, what circumstances could be appreciated in favor of the battered woman? T h e r e was the resulting diminution of freedom of action, intelligence or intent analogous to illness that diminishes exercise of w i l l power without depriving her of consciousness of her acts. T h e r e is also the circumstance of having acted upon an impulse so powerful as to have naturally produced ion and obfuscation. This state of mind is present when a crime is the result of an uncontrollable burst of ion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome reason, as in acute battering incident. These two circumstances — psychological paralysis, and ion and obfuscation — did not arise from the same set of facts. T h e first circumstance arose from the cyclical nature and severity of battery. T h e second is from violent aggression he had inflicted on her prior to the killing. That the incident occurred when she was eight months pregnant was deemed by her as an attempt not only on her life, but likewise on that of the unborn child which naturally produced ion and obfuscation on her part. [Subsequent to Genosa, Congress ed R . A . 9262. Section 26 expressly states that the victim or any person acting pursuant to that law does not incur criminal or civil liability despite the absence of the requisites of self defense.]

•

What are the elements of state of necessity? a.

The evil sought to be avoided actually exists;

95


b.

The injury feared be greater than that done to avoid it; and

c.

There is no other practical and less harmful means of preventing it.

What is the civil liability of the person acting under a state of necessity? Article 101 provides that in cases falling within subdivision 4 of Article 11, the persons for whose benefit the harm has been prevented shall be civilly liable in proportion to the benefit which they may have received. This is because the act here is legal or justified, and therefore, the actor is not civilly liable. For instance, if to arrest a conflagration threatening to engulf a whole town, several houses had to be destroyed by the local authorities, such act is justified but the owners of the houses saved by such destruction of property should be made liable for the value of the property destroyed. [Although it may be argued that if their houses are not destroyed, these w i l l be eaten up by the fire, anyway.] Article 101 provides that in this case, when the respective shares cannot be equitably determined, even approximately, or when the liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all events, whenever the damage has been caused with the consent of the authorities or their agents, indemnification shall be made in the manner prescribed by special laws or regulations. There is no greater danger for a man than for his life and/or limb to be placed in peril. Thus, if for instance the only way to save his life is to shove another person in front of him or to duck behind another, such act should constitute the justifying circumstance of state of necessity. In this case, since he was the one benefited, he should be civilly liable. What are the elements of fulfillment of duty or exercise of right or office? a.

The offender acted in the performance of a duty or the lawful exercise of a right or office; and

b.

T h e injury caused or the offense committed is the necessary consequence of the due performance of such right or office.


In the absence of the second requisite, the justification becomes incomplete thereby converting it into a mitigating circumstance under Articles 13 and 69. (People v. Pinto Jr. G.R. No. 39519, November 21, 1991) Appellant was not in the performance of his duties at the time of the shooting for the girls he was attempting to arrest w e r e not committing any act of prostitution in his presence. T h e fatal injuries that appellant caused the victim were not a necessary consequence of his performance of duties as a police officer. His duty to arrest the suspects did not include any right to shoot them. (People v. Peralta, G.R. No. 128116, January 24, 2001) T h e officers must not be negligent in the fulfillment of their duties. In one case, the child taken hostage was killed by the bullets of the police officers and not by the stab wounds from the offender as shown by the medico legal findings. The negligence of the police officers was evident from the fact that the hostage taking was only several meters away from the police line; that the offender was tired of carrying the boy for hours and would even sit at times; that onlookers have massed in the place of the incident; and that they waited until the offender has stabbed the boy before taking action by indiscriminately shooting the offender and their bullets killed the boy. This negligence could not give rise to fulfillment of duty as justifying circumstance. When is obedience to superior order appreciated? W h e n the following elements concur: a.

An order has been issued by a superior;

b.

T h e order is for a legal purpose; and

c.

T h e means used to carry out such order is lawful.

Even if the order is illegal but it is apparently legal and the subordinate is not aware of its illegality, the subordinate is not liable. (Tabuena v. Sandiganbayan, February 1997) This justifying circumstance was appreciated in favor of TT where it was shown that: (1) the subordinate-superior relationship between TT and then President Marcos was clear; (2) the lawfulness of the order was apparent as it has for its purpose the partial payment of the liability of one government agency 97


to another; and (3) if it were illegal, TT was not aware of its illegality. A r t . 12. Circumstances which exempt from criminal liability. — The following a r e exempt from criminal liability: 1.

An imbecile or an insane p e r s o n , unless the latter has acted d u r i n g a lucid interval. W h e n a n imbecile o r a n insane p e r s o n has committed an act w h i c h the l a w defines as a felony (delito), the court shall o r d e r his confinement in one of the hospitals or a s y l u m s established for p e r s o n s thus afflicted, w h i c h he shall not be p e r m i t t e d to leave w i t h o u t first o b t a i n i n g the p e r m i s s i o n of the same court.

2.

A p e r s o n u n d e r nine y e a r s of a g e .

3.

A p e r s o n o v e r nine y e a r s of a g e a n d u n d e r fifteen, unless he has acted w i t h d i s c e r n m e n t , in w h i c h case, such m i n o r shall be p r o c e e d e d a g a i n s t in a c c o r d a n c e w i t h the p r o v i s i o n s of A r t i c l e 80 of this Code. W h e n such m i n o r i s a d j u d g e d t o b e c r i m i n a l l y i r r e s p o n s i b l e , the court, in c o n f o r m i t y w i t h the p r o v i s i o n s o f this a n d the p r e c e d i n g p a r a g r a p h , shall commit h i m to the c a r e a n d custody of his family w h o shall b e c h a r g e d w i t h his s u r v e i l l a n c e a n d education; o t h e r w i s e , h e shall b e committed t o the c a r e of some institution or p e r s o n m e n t i o n e d in said A r t i c l e 80.

4.

A n y p e r s o n w h o , w h i l e p e r f o r m i n g a l a w f u l act w i t h d u e c a r e , causes a n i n j u r y b y m e r e a c c i d e n t w i t h o u t fault or intention of c a u s i n g it.

5.

A n y p e r s o n w h o acts u n d e r the c o m p u l s i o n o f a n irresistible force.

6.

A n y p e r s o n w h o acts u n d e r the i m p u l s e of an uncontrollable fear of an equal or greater injury.

7.

A n y p e r s o n w h o fails to p e r f o r m an act r e q u i r e d by l a w , w h e n p r e v e n t e d b y some l a w f u l o r i n s u p e r a b l e cause.


•

Is Article 80 of the Revised Penal Code still operative? N o . Article 80 was expressly repealed by Article 189 of P. D. 603. ( P . D . 603 itself has been modified by R . A . 9344 which was approved by the President on A p r i l 23, 2006, infra.)

•

What are exempting circumstances? These are circumstances by virtue of which, although the act is criminal, the law exempts the actor from liability. A crime is committed, but circumstances pertaining to the offender calls for his exemption from criminal liability. Since there is a crime, although there is no criminal liability, there is civil liability except in accident and insuperable cause which strictly are not criminal. T h e exempting circumstances are: a.

Imbecility/insanity;

b.

Minority [amended by R . A . 9344, A p r i l 23, 2006];

c.

Accident;

d.

Compulsion of irresistible force;

e.

Impulse of uncontrollable fear; and

f.

Insuperable or lawful cause.

(Refer to notes on absolutory causes.) •

Distinguish justifying from exempting circumstances. JUSTIFYING

EXEMPTING

1.

T h e act is legal, within the bounds of law.

T h e act is criminal,

2.

There is no crime, hence, no criminal.

There is a crime and a criminal.

3.

Since there is no crime, there is no criminal and no civil liability.

Since there is a crime, there is a criminal (but exempt from criminal liability) and there is civil liability.

4.

T h e emphasis of the law is on the act.

The emphasis of the law is on the actor.

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Insanity •

What is insanity? Section 1039 of the R A C defines insanity as "a manifestation in language or conduct of disease or defect of the brain or a more or less permanently diseased or disordered condition of the mentality, functional or organic, and characterized by perversion, inhibition, or disordered function of the sensory or of the intellective faculties or by impaired or disordered volition." Insanity exists when there is a complete deprivation of intelligence in committing the act, that is, the accused is deprived of reason, he acts without the least discernment because there is complete absence of power to discern, or there is a total deprivation of freedom of the will. M e r e abnormality of the mental faculties will not exclude imputability. (People v. Danao, G.R. No. 96832, November 19, 1992)

»

How is insanity manifested? Insanity is evinced by a deranged and perverted condition of the mental faculties which is manifested in language and conduct. An insane person has no full and clear understanding of the nature and consequences of his acts. Hence, insanity may be shown by the surrounding circumstances fairly throwing light on the subject, such as evidence of the alleged deranged person's general conduct and appearance, his acts and conduct consistent with his previous character and habits, his irrational acts and beliefs, as w e l l as his improvident bargains. The vagaries of the mind can only be known by outward acts, by means of which one reads thoughts, motives and emotions of a person, and through which can be determined whether the acts conform to the practice of people of sound mind. (People v. Villa, Jr., G.R. No. 129899, April 27, 2000)

*

How is insanity disproved? The following circumstances negate a complete absence of intelligence of the accused: ( a ) immediately after he killed the victims he thought of surrendering to the PC Detachment; (b) he showed remorse during his confinement at the M e n t a l Hospital; and (c) he was able to give a Sworn Statement before

100


the Prosecutor's Office immediately after the commission of the crimes narrating his version of the incident. These are hardly the acts of a person with a sick mind. Ambal held: "The fact that immediately after the incident (accused) thought of surrendering to the law-enforcement authorities is incontestable proof that he knew that what he had done was wrong and that he was going to be punished for it." Similarly, a feeling of remorse is inconsistent with insanity, as it is a clear indication that he was conscious of his acts, he acknowledged his guilt and was sorry for them, (id.) By the appellant's narration in his Sworn Statement, he slaughtered his victims in a fit of rage after D D , allegedly accused him of stealing chickens and cursed him. These negate insanity. T h e r e is a vast difference between a genuinely insane person and one who has worked himself up into such a frenzy of anger that he fails to use reason or good judgment in what he does. A man sometimes does crazy things when enraged but it does not necessarily and conclusively prove that he is insane. (id.) In Rafanan, the fact that the appellant threatened the victim with death in case she reported her ravishment indicated that he was aware of the reprehensible moral depravity of that assault and that he was not deprived of intelligence. In Dungo, that the accused knew the nature of what he had done negated his claim that he was insane when he fatally stabbed the victim. In Aquino, appellant who took 120 cc of cough syrup and consumed three marijuana sticks before raping his victim and hitting her head with a stone had some form of mental illness which did not deprive him of intelligence. •

What is the rule when insanity is interposed as a defense or a ground of a motion to quash? T h e burden rests upon the accused to establish that fact, for the law presumes every man to be sane. Hence, in the absence of sufficient evidence to prove insanity, the legal presumption of sanity stands. (Zosa v. CA, G.R. No. 105641, March 10, 1994) T h e defense of insanity, like self-defense, is in the nature of avoidance and confession, thus the burden rests with the accused to prove that he was insane at the time of the

101


commission of the offense. Allegations must be proved by the one making them. Article 800 of the N C C provides that the law presumes that every person is of sound mind, in the absence of proof to the contrary. The allegation of insanity must be clearly proved. The law presumes all acts to be voluntary. N o t every aberration of the mind or exhibition of mental deficiency is insanity, (id.) •

When should insanity occur to be exempting? An inquiry into the mental state of appellant should relate to the period immediately before or at the precise moment of doing the act which is the subject of the inquiry, and his mental condition after that crucial period or during the trial is inconsequential for purposes of determining his criminal liability. More concrete evidence is needed on the mental condition of the person alleged to be insane at the time of the perpetration of the crimes in order that insanity may be appreciated in his favor. Accused failed to discharge the burden of overcoming the presumption that he committed the crimes freely, knowingly and intelligently. It could be that he was insane at the time he was examined at the center. But, in all probability such insanity was contracted during his detention pending trial. He was without with his friends and relatives most of the time. He was troubled by his conscience, the realization of the gravity of the offenses and the thought of a bleak future for him. The confluence of these circumstances may have conspired to disrupt his mental equilibrium. (People v. Villa, Jr.)

•

Relate Article 12(1) to Article 79 of the Code. Article 79 refers to the insanity occurring after the commission of the crime, whereas, insanity in Article 12 refers to that at the very moment the crime is being committed. "When the convict shall become insane or an imbecile after final sentence has been pronounced, the execution of said sentence shall be suspended only with regard to the personal penalty, the provisions of the second paragraph of circumstance number 1 of Article 12 being observed in the corresponding cases. If at any time the convict shall recover his reason, his sentence shall be executed, unless the penalty shall have prescribed in accordance with the provisions of [the] Code." 102


W h e n insanity is alleged as a ground for exemption from criminal responsibility, the evidence on this point must refer to the time preceding the act under prosecution or to the very moment of its execution. If the evidence pointed to the insanity subsequent to the commission of the crime, the accused cannot be acquitted. He is presumed to be sane when he committed it (id.) What quantum of evidence is required to overthrow the presumption of sanity? Proof beyond reasonable doubt is required. Insanity is a defense in the nature of confession and avoidance, and as such must be proved beyond reasonable doubt. One who suffers from insanity at the time of the commission of the offense charged cannot in a legal sense entertain a criminal intent and cannot be held criminally responsible for his acts. His unlawful act is the product of a mental disease or defect. In order that insanity may relieve a person from criminal responsibility, it is necessary that there be a complete deprivation of intelligence in committing the act, i.e., that he be deprived of cognition; that he acts without the least discernment; that there be complete absence or deprivation of the freedom of the will. (People v. Dungo, G.R. No. 89420, July 31, 1991) Every man is presumed to be sane; hence, the burden of proof is with the accused to prove that he is insane at the very moment that the crime is committed. If the offender is known to be insane prior to the commission of the felony, the burden is with the prosecution to prove that he is sane at the time of the commission of the offense. T h e defense of insanity or imbecility must be clearly proved for there is a presumption that acts penalized by law are voluntary. Hence, in the absence of positive evidence that the accused had previously lost his reason or was demented moments prior to or during the perpetration of the crime, the courts will always presume that he was in a normal state of mind. (People v. Medina, G.R. No. 113691, February 1998) •

What should be done to an insane or imbecile who has committed a felony? 103


Where the imbecile or an insane person has committed an act which the law defines as a felony, the court shall order his confinement in one of the hospitals or asylums established for persons thus afflicted, which he shall not be permitted to leave without first obtaining the permission of the same court. (People v. Rafanan, Jr., G.R. No. L-54135, November 21, 1991) What are the tests or criteria for insanity? In this jurisdiction, there has been no case that lays down a definite test or criterion for insanity. However, the definition of insanity under Section 1039 of the R A C supplies the test or criterion. Imbecility or insanity is the complete deprivation of intelligence in the commission of the act. T h e two tests to determine this mental state are: (a)

Cognition test or complete deprivation of intelligence in committing the criminal act; and

(b)

Volition test or a total deprivation of the freedom of the will.

Philippine case law shows common reliance on the test of cognition, rather than on a test relating to "freedom of the will." Examination of the case law has failed to turn up any case where accused was exempted on the sole ground that he was totally deprived of "freedom of the will," i.e., without an accompanying "complete deprivation of intelligence." Logically so for a person's volition naturally reaches out only towards that which is presented as desirable by his intelligence, whether that intelligence is diseased or healthy. In any case, where the accused failed to show complete impairment or loss of intelligence it is at most a mitigating circumstance in accord with Article 13(9): such illness of the offender as would diminish the exercise of his will-power without however depriving him of the consciousness of his acts, (id.) What is schizophrenia? How does it affect criminal liability? Schizophrenia is chronic mental disorder characterized by inability to distinguish between fantasy and reality, and often accompanied by hallucinations and delusions. Formerly

104


called dementia praecox, it is said to be the most common form of psychosis and usually develops between the ages of 13 and 30. (id.) In previous cases where schizophrenia was interposed as an exempting circumstance, it has mostly been rejected. In each of these cases, the evidence presented tended to show that if there was impairment of the mental faculties, such impairment was not so complete as to deprive the accused of intelligence or the consciousness of his acts, (id.) In fact, schizophrenic persons can even be gainfully employed; hence, they are still conscious of their acts except for those aspects where they confuse reality and fantasy. Schizophrenic reaction may be considered as a mitigating circumstance under Article 13(9). Appellant should have been credited with this mitigating circumstance, although it would not have affected the penalty imposable upon him under Article 63: in all cases in which the law prescribes a single indivisible penalty, it shall be applied regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed, (id.) •

What is required for imbecility to be accepted as a defense? Imbecility, like insanity, is a defense which pertains to the mental condition of a person. Philippine case law projects the same standards in respect of both insanity and imbecility, that is, that the insanity or imbecility must constitute complete deprivation of intelligence in committing the criminal act, or a total deprivation of freedom of the will. Where the medical evidence does not show complete deprivation or even substantial deprivation of intelligence on the part of the accused he cannot be exempted from criminal liability. His behavior on the night he raped the victim showed that he was quite conscious of his acts and aware of the moral quality thereof. (People v. Buenaflor, G.R. No. 93752, July 15, 1992) •

How should lack of reason and failure to use reason affect criminal responsibility? Care must be taken to distinguish between lack of reason (insanity) and failure to use reason or good judgment due to 105


extreme anger (ion). Mere mental depravity or moral insanity which results not from any disease of mind, but from a perverted condition of the moral system, where the person is mentally sane, does not exempt one from the responsibility for crimes committed under its influence. Thus, before the defense of insanity may be accepted, there must be a complete deprivation of intelligence (test of cognition) — not only of the will — in committing the criminal act. The presence of his reasoning faculties, enabling him to exercise sound judgment and satisfactorily articulate matters, sufficiently discounted any intimation of insanity when he committed the felony. M e r e abnormality of the mental faculties does not exclude criminal culpability. (People v. Medina, G.R. No. 113691, February 6, 1998) •

Can the trial court determine whether or not an accused is insane? Estrada, G.R. No. 130487, June 19, 2000, nullified the trial proceedings and remanded the case for mental examination on accused, a determination of his competency to stand trial, and for further proceedings because the court took it solely upon itself to determine the sanity of accused. T h e judge is not a psychiatrist or psychologist equipped with the specialized knowledge of determining the state of a person's mental health. To determine the accused's competency to stand trial, the court should at least order the examination of accused, especially in the light of the latter's history of mental illness. In denying his examination by a medical expert, the trial court practically denied him a fair trial prior to conviction, in violation of his constitutional rights.

Minority •

How are penal laws to be construed as to minor offenders? Penal laws should be liberally construed in favor of the offender. Thus, considering the gravity of the offense and in the interest of justice, the Court has itted the birth certificate of an accused to prove minority although said birth certificates were not presented or offered in the trial court. Since the fact of minority is established by an official document prepared by

106


the Department of Social Services and Development in the exercise of its functions and incorporated in the records of the case judicial notice can be taken thereof ex mero motu. (People v. Regalario, G.R. No. 101451, March 23, 1993)

R e p u b l i c A c t N o . 9344 TITLE I — GOVERNING PRINCIPLES C H A P T E R 1—TITLE, P O L I C Y A N D D E F I N I T I O N OF S E C T I O N 1. Short Title and Scope. — This A c t shall be known as the "Juvenile Justice and Welfare A c t of 2006." It shall cover the different stages involving children at risk and children in conflict with the l a w from prevention to rehabilitation and reintegration. S E C . 2. Declaration of State Policy. — T h e following State policies shall be observed at all times: ( a ) T h e State recognizes the vital role of children and youth in nation building and shall promote and protect their physical, moral, spiritual, intellectual and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs. (b) T h e State shall protect the best interests of the child through measures that will ensure the observance of international standards of child protection, especially those to which the Philippines is a party. Proceedings before any authority shall be conducted in the best interest of the child and in a manner which allows the child to participate and to express himself/herself freely. T h e participation of children in the program and policy formulation and implementation related to juvenile justice and welfare shall be ensured by the concerned government agency. (c) T h e State likewise recognizes the right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty and exploitation, and other conditions prejudicial to their development. (d) Pursuant to Article 40 of the United Nations Convention on the Rights of the Child, the State recognizes the right of every 107


child alleged as, accused of, adjudged, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, taking into the child's age and desirability of promoting his/her reintegration. Whenever appropriate and desirable, the State shall adopt measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. It shall ensure that children are dealt with in a manner appropriate to their well-being by providing for, among others, a variety of disposition measures such as care, guidance and supervision orders, counseling, probation, foster care, education and vocational training programs and other alternatives to institutional care. (e) The istration of the juvenile justice and welfare system shall take into consideration the cultural and religious perspectives of the Filipino people, particularly the indigenous peoples and the Muslims, consistent with the protection of the rights of children belonging to these communities. (f) The State shall apply the principles of restorative justice in all its laws, policies and programs applicable to children in conflict with the law. S E C . 3. Liberal Construction of this Act. — In case of doubt, the interpretation of any of the provisions of this A c t , including its implementing rules and regulations ( I R R s ) , shall be construed liberally in favor of the child in conflict w i t h the law. SEC. 4. Definition of . — T h e following as used in this Act shall be defined as follows: (a) "Bail" refers to the security given for the release of the person in custody of the law, furnished by him/her or a bondsman, to guarantee his/her appearance before any court. Bail may be given in the form of corporate security, property bond, cash deposit, or recognizance. (b) "Best Interest of the Child" refers to the totality of the circumstances and conditions which are most congenial to the survival, protection and feelings of security of the child and most encouraging to the child's physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. 108


(c) years.

"Child" refers to a person under the age of eighteen (18)

(d) "Child at Risk" refers to a child who is vulnerable to and at the risk of committing criminal offenses because of personal, family and social circumstances, such as, but not limited to, the following: (1)

being abused by any person through sexual, physical, psychological, mental, economic or any other means and the parents or guardian refuse, are unwilling, or unable to provide protection for the child;

(2)

being exploited including sexually or economically;

(3)

being abandoned or neglected, and after diligent search and inquiry, the parent or guardian cannot be found;

(4)

coming from a dysfunctional or broken family or without a parent or guardian;

(5)

being out of school;

(6)

being a streetchild;

(7)

being a member of a gang;

(8)

living in a community with a high level of criminality or drug abuse; and

(9)

living in situations of armed conflict.

(e) "Child in Conflict with the L a w " refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. (f) "Community-based Programs" refers to the programs provided in a community setting developed for purposes of intervention and diversion, as well as rehabilitation of the child in conflict with the law, for reintegration into his/her family and/or community. ( g ) "Court" refers to a family court or, in places where there are no family courts, any regional trial court. (h) "Deprivation of Liberty" refers to any form of detention or imprisonment, or to the placement of a child in conflict with the law in a public or private custodial setting, from which the child in conflict with the law is not permitted to leave at will by order of any judicial or istrative authority.

109


(i) "Diversion" refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. (j) "Diversion Program" refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings. (k) "Initial With the Child" refers to the apprehension or taking into custody of a child in conflict with the law by law enforcement officers or private citizens. It includes the time when the child alleged to be in conflict with the law receives a subpoena under Section 3(b) of Rule 112 of the Revised Rules of Criminal Procedure or summons under Section 6(a) or Section 9(b) of the same Rule in cases that do not require preliminary investigation or where there is no necessity to place the child alleged to be in conflict with the law under immediate custody. (1) "Intervention" refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being. (m) "Juvenile Justice and Welfare System" refers to a system dealing with children at risk and children in conflict w i t h the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, reintegration and aftercare to ensure their normal growth and development. (n) "Law Enforcement Officer" refers to the person in authority or his/her agent as defined in A r t i c l e 152 of the Revised Penal Code, including a barangay tanod. (o) "Offense" refers to any act or omission whether punishable under special laws or the Revised Penal Code, as amended. (p) "Recognizance" refers to an undertaking in lieu of a bond assumed by a parent or custodian who shall be responsible for the appearance in court of the child in conflict with the law, when required. 110


( q ) "Restorative Justice" refers to a principle which requires a process of resolving conflicts with the maximum involvement of the victim, the offender and the community. It seeks to obtain reparation for the victim; reconciliation of the offender, the offended and the community; and reassurance to the offender that he/she can be reintegrated into society. It also enhances public safety by activating the offender, the victim and the community in prevention strategies. (r) "Status Offenses" refers to offenses which discriminate only against a child, while an adult does not suffer any penalty for committing similar acts. These shall include curfew violations; truancy, parental disobedience and the like. (s) "Youth Detention H o m e " refers to a 24-hour child-caring institution managed by accredited local government units ( L G U s ) and licensed and/or accredited nongovernment organizations ( N G O s ) providing short-term residential care for children in conflict with the law who are awaiting court disposition of their cases or transfer to other agencies or jurisdiction. (t) "Youth Rehabilitation Center" refers to a 24-hour residential care facility managed by the Department of Social Welfare and Development ( D S W D ) , L G U s , licensed and/or accredited N G O s monitored by the D S W D , which provides care, treatment and rehabilitation services for children in conflict with the law. Rehabilitation services are provided under the guidance of a trained staff where residents are cared for under a structured therapeutic environment with the end v i e w of reintegrating them into their families and communities as socially functioning individuals. Physical mobility of residents of said centers may be restricted pending court disposition of the charges against them. (u) "Victimless Crimes" refers to offenses where there is no private offended party.

C H A P T E R 2 — P R I N C I P L E S IN THE A D M I N I S T R A T I O N OF JUVENILE JUSTICE A N D W E L F A R E S E C . 5. Rights of the Child in Conflict with the Law. — Every child in conflict with the law shall have the following rights, including but not limited to: 111


(a) the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; (b) the right not to be imposed a sentence of capital punishment or life imprisonment, without the possibility of release; (c) the right not to be deprived, unlawfully or arbitrarily, of his/her liberty; detention or imprisonment being a disposition of last resort, and which shall be for the shortest appropriate period of time; (d) the right to be treated with humanity and respect, for the inherent dignity of the person, and in a manner which takes into the needs of a person of his/her age. In particular, a child deprived of liberty shall be separated from adult offenders at all times. No child shall be detained together with adult offenders. He/She shall be conveyed separately to or from court. He/She shall await hearing of his/her own case in a separate holding area. A child in conflict with the law shall have the right to maintain with his/her family through correspondence and visits, save in exceptional circumstances; (e) the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his/her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on such action; (f)

the right to bail and recognizance, in appropriate cases;

( g ) the right to testify as a witness in his/her own behalf under the rule on examination of a child witness; (h) the right to have his/her privacy respected fully at all stages of the proceedings; (i) the right to diversion if he/she is qualified and voluntarily avails of the same; (j) the right to be imposed a judgment in proportion to the gravity of the offense where his/her best interest, the rights of the victim and the needs of society are all taken into consideration by the court, under the principle of restorative justice; (k) the right to have restrictions on his/her personal liberty limited to the minimum, and where discretion is given by law to the judge to determine whether to impose fine or imprisonment, the imposition of fine being preferred as the more appropriate penalty; 112


(1)

in general, the right to automatic suspension of sentence;

( m ) the right to probation as an alternative to imprisonment, if qualified under the Probation L a w ; (n) the right to be free from liability for perjury, concealment or misrepresentation; and (o) other rights as provided for under existing laws, rules and regulations. T h e State further adopts the provisions of the United Nations Standard M i n i m u m Rules for the istration of Juvenile Justice or "Beijing Rules," United Nations Guidelines for the Prevention of Juvenile Delinquency or the "Riyadh Guidelines," and the United Nations Rules for the Protection of Juveniles Deprived of Liberty. S E C . 6. Minimum Age of Criminal Responsibility. — A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this A c t . A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. T h e exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. S E C . 7. Determination of Age. — The child in conflict with the law shall enjoy the presumption of minority. He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older. The age of a child may be determined from the child's birth certificate, baptismal certificate or any other pertinent documents. In the absence of these documents, age may be based on information from the child himself/herself, testimonies of other persons, the physical appearance of the child and other relevant evidence. In case of doubt as to the age of the child, it shall be resolved in his/her favor. A n y person contesting the age of the child in conflict with the law prior to the filing of the information in any appropriate court 113


may file a case in a summary proceeding for the determination of age before the Family Court which shall decide the case within twenty-four (24) hours from receipt of the appropriate pleadings of all interested parties. If a case has been filed against the child in conflict with the law and is pending in the appropriate court, the person shall file a motion to determine the age of the child in the same court where the case is pending. Pending hearing on the said motion, proceedings on the main case shall be suspended. In all proceedings, law enforcement officers, prosecutors, judges and other government officials concerned shall exert all efforts at determining the age of the child in conflict with the law. TITLE II — STRUCTURES IN THE A D M I N I S T R A T I O N OF JUVENILE JUSTICE A N D W E L F A R E X X X

SEC. 11. Child Rights Center (CRC). — T h e existing Child Rights Center of the Commission on Human Rights shall ensure that the status, rights and interests of children are upheld in accordance with the Constitution and international instruments on human rights. T h e C H R shall strengthen the monitoring of government compliance of all treaty obligations, including the timely and regular submission of reports before the treaty bodies, as well as the implementation and dissemination of recommendations and conclusions by government agencies as w e l l as N G O s and civil society.

TITLE III — P R E V E N T I O N OF J U V E N I L E D E L I N Q U E N C Y C H A P T E R 1—THE R O L E O F T H E D I F F E R E N T S E C T O R S X X X

CHAPTER 2 — COMPREHENSIVE JUVENILE INTERVENTION PROGRAM X X X

SEC. 19. Community-based Programs on Juvenile Justice and Welfare. — Community-based programs on juvenile justice and welfare shall be instituted by the L G U s through the L C P C , 114


school, youth organizations and other concerned agencies. The L G U s shall provide community-based services which respond to the special needs, problems, interests and concerns of children and which offer appropriate counseling and guidance to them and their families. These programs shall consist of three levels: ( a ) P r i m a r y intervention includes general measures to promote social justice and equal opportunity, which tackle perceived root causes of offending; (b) Secondary children at risk; and

intervention

includes

measures

to

assist

(c) T e r t i a r y intervention includes measures to avoid unnecessary with the formal justice system and other measures to prevent re-offending.

T I T L E rV — T R E A T M E N T O F C H I L D R E N B E L O W T H E AGE OF C R I M I N A L RESPONSIBILITY S E C . 20. Children Below the Age of Criminal Responsibility. — I f it has been determined that the child taken into custody is fifteen (15) years old or below, the authority which will have an initial with the child has the duty to immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child's nearest relative. Said authority shall give notice to the local social welfare and development officer who will determine the appropriate programs in consultation with the child and to the person having custody over the child. If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: a duly ed nongovernmental or religious organization; a barangay official or a member of the Barangay Council for the Protection of Children ( B C P C ) ; a local social welfare and development officer; or when and where appropriate, the D S W D . If the child referred to herein has been found by the Local Social Welfare and Development Office to be abandoned, neglected or abused by his parents, or in the event that the parents will not comply with the prevention program, the proper petition for involuntary commitment shall be filed by the D S W D or the Local Social Welfare and Development Office pursuant to Presidential Decree N o . 603, otherwise, known as "The Child and Youth Welfare Code."

115


TITLE V — JUVENILE JUSTICE A N D W E L F A R E SYSTEM CHAPTER 1 — INITIAL WITH THE CHILD SEC. 21. Procedure for Taking the Child into Custody. — From the moment a child is taken into custody, the law enforcement officer shall: (a) Explain to the child in simple language and in a dialect that he/she can understand why he/she is being placed under custody and the offense that he/she allegedly committed; (b) Inform the child of the reason for such custody and advise the child of his/her constitutional rights in a language or dialect understood by him/her; (c) Properly identify identification to the child;

himself/herself and

present

proper

(d) Refrain from using vulgar or profane words and from sexually harassing or abusing, or making sexual advances on the child in conflict with the law; ( e ) A v o i d displaying or using any firearm, weapon, handcuffs or other instruments of force or restraint, unless absolutely necessary and only after all other methods of control have been exhausted and have failed; (f) Refrain from subjecting the child in conflict with the law to greater restraint than is necessary for his/her apprehension; (g) (h) this Act;

A v o i d violence or unnecessary force; Determine the age of the child pursuant to Section 7 of

( i ) Immediately but not later than eight (8) hours after apprehension, turn over custody of the child to the Social Welfare and Development Office or other accredited N G O s , and notify the child's apprehension. T h e social welfare and development officer shall explain to the child and the child's parents/guardians the consequences of the child's act with a v i e w towards counseling and rehabilitation, diversion from the criminal justice system, and reparation, if appropriate; (j) T a k e the child immediately to the proper medical and health officer for a thorough physical and mental examination. T h e 116


examination results shall be kept confidential unless otherwise ordered by the Family Court. W h e n e v e r the medical treatment is required, steps shall be immediately undertaken to provide the same; ( k ) Ensure that should detention of the child in conflict with the law be necessary, the child shall be secured in quarters separate from that of the opposite sex and adult offenders; (1)

Record the following in the initial investigation: 1.

W h e t h e r handcuffs or other instruments of restraint w e r e used, and if so, the reason for such;

2.

T h a t the parents or guardian of a child, the D S W D , and the P A O have been informed of the apprehension and the details thereof; and

3.

T h e exhaustion of measures to determine the age of a child and the precise details of the physical and medical examination or the failure to submit a child to such examination; and

( m ) Ensure that all statements signed by the child during investigation shall be witnessed by the child's parents or guardian, social worker, or legal counsel in attendance who shall affix his/her signature to the said statement. A child in conflict with the law shall only be searched by a law enforcement officer of the same gender and shall not be locked up in a detention cell. S E C . 22. Duties During Initial Investigation. — The law enforcement officer shall, in his/her investigation, determine where the case involving the child in conflict with the law should be referred. T h e taking of the statement of the child shall be conducted in the presence of the following: (1) child's counsel of choice or in the absence thereof, a lawyer from the Public Attorney's Office; (2) the child's parents, guardian, or nearest relative, as the case may be; and (3) the local social welfare and development officer. In the absence of the child's parents, guardian, or nearest relative, and the local social welfare and development officer, the investigation shall be conducted in the presence of a representative of an N G O , religious group, or member of the B C P C .

117


After the initial investigation, the local social worker conducting the same may do either of the following: (a) Proceed in accordance with Section 20 if the child is fifteen (15) years or below or above fifteen (15) but below eighteen (18) years old, who acted without discernment; and (b) If the child is above fifteen (15) years old but below eighteen (18) and who acted with discernment, proceed to diversion under the following chapter. CHAPTER 2 — DIVERSION SEC. 23. System of Diversion. — Children in conflict with the law shall undergo diversion programs without undergoing court proceedings subject to the conditions herein provided: (a) Where the imposable penalty for the crime committee is not more than six (6) years imprisonment, the law enforcement officer or Punong Barangay with the assistance of the local social welfare and development officer or other of the L C P C shall conduct mediation, family conferencing and conciliation and, where appropriate, adopt indigenous modes of conflict resolution in accordance with the best interest of the child with a view to accomplishing the objectives of restorative justice and the formulation of a diversion program. T h e child and his/her family shall be present in these activities. (b) In victimless crimes where the imposable penalty is not more than six (6) years imprisonment, the local social welfare and development officer shall meet with the child and his/her parents or guardians for the development of the appropriate diversion and rehabilitation program, in coordination with the B C P C . (c) Where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may be resorted to only by the court. S E C . 24. Stages Where Diversion May be Conducted. — Diversion may be conducted at the Katarungang Pambarangay, the police investigation or the inquest or preliminary investigation stage and at all levels and phases of the proceedings including judicial level.

118


S E C . 25. Conferencing, Mediation and Conciliation. A child in conflict with law may undergo conferencing, mediation or conciliation outside the criminal justice system or prior to his entry into said system. A contract of diversion may be entered into during such conferencing, mediation or conciliation proceedings. S E C . 26. Contract of Diversion. — If during the conferencing, mediation or conciliation, the child voluntarily its the commission of the act, a diversion program shall be developed when appropriate and desirable as determined under Section 30. Such ission shall not be used against the child in any subsequent judicial, quasi-judicial or istrative proceedings. The diversion program shall be effective and binding if accepted by the parties concerned. T h e acceptance shall be in writing and signed by the parties concerned and the appropriate authorities. T h e local social welfare and development officer shall supervise the implementation of the diversion program. T h e diversion proceedings shall be completed within forty-five (45) days. T h e period of prescription of the offense shall be suspended until the completion of the diversion proceedings but not to exceed forty-five (45) days. T h e child shall present himself/herself to the competent authorities that imposed the diversion program at least once a month for reporting and evaluation of the effectiveness of the program. Failure to comply with the and conditions of the contract of diversion, as certified by the local social welfare and development officer, shall give the offended party the option to institute the appropriate legal action. T h e period of prescription of the offense shall be suspended during the effectivity of the diversion program, but not exceeding a period of two (2) years. S E C . 27. Duty of the Punong Barangay When There is No Diversion. — If the offense does not fall under Section 23(a) and (b), or if the child, his/her parents or guardian does not consent to a diversion, the Punong Barangay handling the case shall, within three (3) days from determination of the absence of jurisdiction over the case or termination of the diversion proceedings, as the case may be, forward the records of the case of the child to the law enforcement officer, prosecutor or the appropriate court, as the case may be. Upon the issuance of the corresponding document, certifying to the fact

119


that no agreement has been reached by the parties, the case shall be filed according to the regular process. SEC. 28. Duty of the Law Enforcement Officer When There is No Diversion. — If the offense does not fall under Section 23(a) and (b), or if the child, his/her parents or guardian does not consent to a diversion, the Women and Children Protection Desk of the P N P , or other law enforcement officer handling the case of the child under custody, to the prosecutor or judge concerned for the conduct of inquest and/or preliminary investigation to determine whether or not the child should remain under custody and correspondingly charged in court. The document transmitting said records shall display the word " C H I L D " in bold letters. SEC. 29. Factors in Determining Diversion Program. — In determining whether diversion is appropriate and desirable, the following factors shall be taken into consideration: (a)

The nature and circumstances of the offense charged;

(b)

T h e frequency and the severity of the act;

(c) The circumstances of the child (e.g., age, maturity, intelligence, etc.); (d) The influence of the family and environment on the growth of the child; (e)

The reparation of injury to the victim;

(f)

The weight of the evidence against the child;

(g)

T h e safety of the community; and

(h)

The best interest of the child.

SEC. 30. Formulation of the Diversion Program. — In formulating a diversion program, the individual characteristics and the peculiar circumstances of the child in conflict with the l a w shall be used to formulate an individualized treatment. T h e following factors shall be considered in formulating a diversion program for the child: (a) The child's feelings of remorse for the offense he/she committed; (b) T h e parents' or legal guardians' ability to guide and supervise the child; 120


(c) T h e victim's v i e w about the propriety of the measures to be imposed; and (d) T h e availability of community-based rehabilitation and reintegration of the child.

programs

for

S E C . 31. Kinds of Diversion Programs. — T h e diversion program shall include adequate socio-cultural and psychological responses and services for the child. At the different stages where diversion may be resorted to, the following diversion programs may be agreed upon, such as, but not limited to: (a)

At the level of the Punong Barangay: (1)

Restitution of property;

(2)

Reparation of the damage caused;

(3)

Indemnification for consequential damages;

(4)

W r i t t e n or oral apology;

(5)

Care, guidance and supervision orders;

(6)

Counseling for the child in conflict with the law and the child's family;

(7)

Attendance in trainings, seminars and lectures on: (i)

anger management skills;

(ii)

problem skills;

solving

and/or

conflict

resolution

( i i i ) values formation; and ( i v ) other skills which will aid the child in dealing with situations which can lead to repetition of the offense;

(b)

(8)

Participation in available community-based programs, including community service; or

(9)

Participation in education, vocation and life skills programs.

At the level of the law enforcement officer and the prosecutor: (1) Diversion programs specified under paragraphs (a) (1) to (a)(9) herein; and (2) Confiscation and forfeiture of the proceeds or instruments of the crime;

121


(c)

At the level of the appropriate court: (1)

Diversion programs specified under paragraphs (a) and (b) above;

(2)

Written or oral reprimand or citation;

(3)

Fine;

(4)

Payment of the cost of the proceedings; or

(5)

Institutional care and custody. CHAPTER 3 — PROSECUTION

SEC. 32. Duty of the Prosecutor's Office. — T h e r e shall be a specially trained prosecutor to conduct inquest, preliminary investigation and prosecution of cases involving a child in conflict with the law. If there is an allegation of torture or ill-treatment of a child in conflict with the law during arrest or detention, it shall be the duty of the prosecutor to investigate the same. SEC. 33. Preliminary Investigation and Filing of Information. — The prosecutor shall conduct a preliminary investigation in the following instances: ( a ) when the child in conflict with the law does not qualify for diversion; (b) when the child, his/her parents or guardian does not agree to diversion as specified in Sections 27 and 28; and (c) when considering the assessment and recommendation of the social worker, the prosecutor determines that diversion is not appropriate for the child in conflict with the law. Upon serving the subpoena and the affidavit of complaint, the prosecutor shall notify the Public Attorney's Office of such service, as well as the personal information, and place of detention of the child in conflict with the law. Upon determination of probable cause by the prosecutor, the information against the child shall be filed before the F a m i l y Court within forty-five (45) days from the start of the preliminary investigation. CHAPTER 4 — COURT PROCEEDINGS SEC. 34. Bail. — For purposes of recommending the amount of bail, the privileged mitigating circumstance of minority shall be considered.

122


S E C . 35. Release on Recognizance. — W h e r e a child is detained, the court shall order: ( a ) the release of the minor on recognizance to his/her parents and other suitable person; (b)

the release of the child in conflict with the law on bail; or

(c) the transfer of the minor to a youth detention home/youth rehabilitation center. T h e court shall not order the detention of a child in a jail pending trial or hearing of his/her case. S E C . 36. Detention of the Child Pending Trial. — Children detained pending trial may be released on bail or recognizance as provided for under Sections 34 and 35 under this Act. In all other cases and whenever possible, detention pending trial may be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home. Institutionalization or detention of the child pending trial shall be used only as a measure of last resort and for the shortest possible period of time. W h e n e v e r detention is necessary, a child will always be detained in youth detention homes established by local governments, pursuant to Section 8 of the F a m i l y Courts Act, in the city or municipality where the child resides. In the absence of a youth detention home, the child in conflict with the law may be committed to the care of the D S W D or a local rehabilitation center recognized by the government in the province, city or municipality within the jurisdiction of the court. T h e center or agency concerned shall be responsible for the child's appearance in court whenever required. SEC. 37. Diversion Measures. — W h e r e the maximum penalty imposed by law for the offense with which the child in conflict with the law is charged is imprisonment of not more than twelve (12) years, regardless of the fine or fine alone regardless of the amount, and before arraignment of the child in conflict with the law, the court shall determine whether or not diversion is appropriate. SEC. 38. Automatic Suspension of Sentence. — Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the 123


court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt. Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the L a w . SEC. 39. Discharge of the Child in Conflict with the Law. — Upon the recommendation of the social worker who has custody of the child, the court shall dismiss the case against the child whose sentence has been suspended and against whom disposition measures have been issued, and shall order the final discharge of the child if it finds that the objective of the disposition measures have been fulfilled. T h e discharge of the child in conflict with the law shall not affect the civil liability resulting from the commission of the offense, which shall be enforced in accordance with law. SEC. 40. Return of the Child in Conflict with the Law to Court. — If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the conditions of his/her disposition or rehabilitation program, the child in conflict with the l a w shall be brought before the court for execution of judgment. If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with this Act, to order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years. SEC. 41 Credit in Service of Sentence. — T h e child in conflict with the law shall be credited in the services of his/her sentence with the full time spent in actual commitment and detention under this Act. 124


S E C . 42. Probation as an Alternative to Imprisonment. T h e court may, after it shall have convicted and sentenced a child in conflict with the law, and upon application at any time, place the child on probation in lieu of service of his/her sentence taking into the best interest of the child. For this purpose, Section 4 of Presidential Decree N o . 968, otherwise known as the "Probation L a w of 1976," is hereby amended accordingly. C H A P T E R 5 — C O N F I D E N T I A L I T Y OF R E C O R D S A N D PROCEEDINGS S E C . 43. Confidentiality of Records and Proceedings. — A l l records and proceedings involving children in conflict with the law from initial until final disposition of the case shall be considered privileged and confidential. T h e public shall be excluded during the proceedings and the records shall not be disclosed directly or indirectly to anyone by any of the parties or the participants in the proceedings for any purpose whatsoever, except to determine if the child in conflict with the law may have his/her sentence suspended or if he/she may be granted probation under the Probation L a w , or to enforce the civil liability imposed in the criminal action. T h e component authorities shall undertake all measures to protect this confidentiality of proceedings, including non-disclosure of records to the media, maintaining a separate police blotter for cases involving children in conflict with the law and adopting a system of coding to conceal material information which will lead to the child's identity. Records of a child in conflict with the law shall not be used in subsequent proceedings for cases involving the same offender as an adult, except when beneficial for the offender and upon his/her written consent. A person who has been in conflict with the law as a child shall not be held under any provision of law, to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him/her for any purpose. TITLE VI — REHABILITATION A N D REINTEGRATION S E C . 44. Objective of Rehabilitation and Reintegration. — The objective of rehabilitation and reintegration of children 125


in conflict with the law is to provide them with interventions, approaches and strategies that will enable them to improve their social functioning with the end goal of reintegration to their families and as productive of their communities. SEC. 45. Court Order Required. — No child shall be received in any rehabilitation or training facility without a valid order issued by the court after a hearing for the purpose. The details of this order shall be immediately entered in a exclusively for children in conflict with the law. No child shall be itted in any facility where there is no such . SEC. 46. Separate Facilities from Adults. — In all rehabilitation or training facilities, it shall be mandatory that children shall be separated from adults unless they are of the same family. Under no other circumstance shall a child in conflict with the law be placed in the same confinement as adults. The rehabilitation, training or confinement area of children in conflict with the law shall provide a home environment where children in conflict with the law can be provided w i t h quality counseling and treatment. SEC. 47. Female Children. — F e m a l e children in conflict with the law placed in an institution shall be given special attention as to their personal needs and problems. T h e y shall be handled by female doctors, correction officers and social workers, and shall be accommodated separately from male children in conflict w i t h the law. SEC. 48. Gender-Sensitivity Training. — No personnel of rehabilitation and training facilities shall handle children in conflict with the law without having undergone gender sensitivity training. SEC. 49. Establishment of Youth Detention Homes. — T h e L G U s shall set aside an amount to build youth detention homes as mandated by the Family Courts A c t . Y o u t h detention homes m a y also be established by private and N G O s licensed and accredited by the D S W D , in consultation with the J J W C . SEC. 50. Care and Maintenance of the Child in Conflict with the Law. — T h e expenses for the care and maintenance of a child in conflict with the law under institutional care shall be borne by his/her parents or those persons liable to him/her: Provided,

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That in case his/her parents or those persons liable to him/ her cannot pay all or part of said expenses, the municipality where the offense was committed shall pay one-third (1/3) of said expenses or part thereof; the province to which the municipality belongs shall pay one-third (1/3) and the remaining one-third (1/3) shall be borne by the national government. Chartered cities shall pay two-thirds (2/3) of said expenses; and in case a chartered city cannot pay said expenses, part of the internal revenue allotments applicable to the unpaid portion shall be withheld and applied to the settlement of said obligations: Provided, further, That in the event that the child in conflict w i t h the law is not a resident of the municipality/city where the offense was committed, the court, upon its determination, may require the city/municipality where the child in conflict with the law resides to shoulder the cost. A l l city and provincial governments must exert effort for the immediate establishment of local detention homes for children in conflict with the law. S E C . 51. Confinement of Convicted Children in Agricultural Camps and other Training Facilities. — A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the B U C O R , in coordination with the D S W D . S E C . 52. Rehabilitation of Children in Conflict with the Law. — Children in conflict with the law, whose sentences are suspended may, upon order of the court, undergo any or a combination of disposition measures best suited to the rehabilitation and welfare of the child as provided in the Supreme Court Rule on Juveniles in Conflict with the L a w . If the community-based rehabilitation is availed of by a child in conflict with the law, he/she shall be released to parents, guardians, relatives or any other responsible person in the community. Under the supervision and guidance of the local social welfare and development officer, and in coordination with his/her parents/guardian, the child in conflict with the law shall participate in community-based programs, which shall include, but not limited to: (1)

Competency and life skills development;

127


(2)

Socio-cultural and recreational activities;

(3)

Community volunteer projects;

(4)

Leadership training;

(5)

Social services;

(6)

Homelife services;

(7)

Health services;

(8)

Spiritual enrichment; and

(9)

Community and family welfare services.

In accordance therewith, the family of the child in conflict with the law shall endeavor to actively participate in the communitybased rehabilitation. Based on the progress of the youth in the community, a final report will be forwarded by the local social welfare and development officer to the court for final disposition of the case. If the community-based programs are provided as diversion measures under Chapter I I , T i t l e V, the programs enumerated above shall be made available to the child in conflict with the law. SEC. 53. Youth Rehabilitation Center. — T h e youth rehabilitation center shall provide 24-hour group care, treatment and rehabilitation services under the guidance of a trained staff where residents are cared for under a structured therapeutic environment with the end v i e w of reintegrating them in their families and communities as socially functioning individuals. A quarterly report shall be submitted by the center to the proper court on the progress of the children in conflict with the law. Based on the progress of the youth in the center, a final report will be forwarded to the court for final disposition of the case. T h e D S W D shall establish youth rehabilitation centers in each region of the country. SEC. 54. Objectives of Community-Based Programs. The objectives of community-based programs are as follows:

—

(a) Prevent disruption in the education or means of livelihood of the child in conflict with the law in case he/she is studying, working or attending vocational learning institutions; (b) Prevent separation of the child in conflict with the law from his/her parents/guardians to maintain the system 128


fostered by their relationship and to create greater awareness of their mutual and reciprocal responsibilities; (c) Facilitate the rehabilitation and mainstreaming of the child in conflict with the law and encourage community and involvement; and (d) M i n i m i z e the stigma that attaches to the child in conflict with the law by preventing jail detention. S E C . 55. Criteria of Community-Based Programs. — Every L G U shall establish community-based programs that will focus on the rehabilitation and reintegration of the child. A l l programs shall meet the criteria to be established by the J J W C which shall take into the purpose of the program, the need for the consent of the child and his/her parents or legal guardians, and the participation of the child-centered agencies whether public or private. S E C . 56. After-Care Services for Children in Conflict with the Law. — Children in conflict with the law whose cases have been dismissed by the proper court because of good behavior as per recommendation of the D S W D social worker and/ or any accredited N G O youth rehabilitation center shall be provided after-care services by the local social welfare and development officer for a period of at least six (6) months. T h e service includes counseling and other community-based services designed to facilitate social reintegration, prevent re-offending and make the children productive of the community. TITLE VII — GENERAL PROVISIONS CHAPTER 1 — EXEMPTING PROVISIONS SEC. 57. Status Offenses. — A n y conduct not considered an offense or not penalized if committed by an adult shall not be considered an offense and shall not be punished if committed by a child. SEC. 58. Offenses Not Applicable to Children. — Persons below eighteen (18) years of age shall be exempt from prosecution for the crime of vagrancy and prostitution under Section 202 of the Revised Penal Code, of mendicancy under Presidential Decree No. 129


1563, and sniffing of rugby under Presidential Decree N o . 1619, such prosecution being inconsistent with the United Nations Convention on the Rights of the Child: Provided, That said persons shall undergo appropriate counseling and treatment program. SEC. 59. Exemption from the Application of Death Penalty. — The provisions of the Revised Penal Code, as amended, Republic Act N o . 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and other special laws notwithstanding, no death penalty shall be imposed upon children in conflict with the law. CHAPTER 2 — PROHIBITED ACTS SEC. 60. Prohibition Against Labeling and Shaming. — In the conduct of the proceedings beginning from the initial with the child, the competent authorities must refrain from branding or labeling children as young criminals, juvenile delinquents, prostitutes or attaching to them in any manner any other derogatory names. Likewise, no discriminatory remarks and practices shall be allowed particularly with respect to the child's class or ethnic origin. SEC. 61. Other Prohibited Acts. — T h e following and any other similar acts shall be considered prejudicial and detrimental to the psychological, emotional, social, spiritual, moral and physical health and well-being of the child in conflict with the law and therefore, prohibited: (a)

Employment of threats of whatever kind and nature;

(b) Employment of abusive, coercive and punitive measures such as cursing, beating, stripping, and solitary confinement; (c) Employment of degrading, inhuman end cruel forms of punishment such as shaving the heads, pouring irritating, corrosive or harmful substances over the body of the child in conflict with the law, or forcing him/her to walk around the community wearing signs which embarrass, humiliate, and degrade his/her personality and dignity; and (d) Compelling the child to perform involuntary servitude in any and all forms under any and all instances.

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CHAPTER 3 — PENAL PROVISION S E C . 62. Violation ofthe Provisions ofthis Act or Rules or Regulations in General. — A n y person who violates any provision of this A c t or any rule or regulation promulgated in accordance thereof shall, upon conviction for each act or omission, be punished by a fine of not less than T w e n t y thousand pesos (P20.000.00) but not more than Fifty thousand pesos (P50,000.00) or suffer imprisonment of not less than eight (8) years but not more than ten (10) years, or both such fine and imprisonment at the discretion of the court, unless a higher penalty is provided for in the Revised Penal Code or special laws. If the offender is a public officer or employee, he/ she shall, in addition to such fine and/or imprisonment, be held istratively liable and shall suffer the penalty of perpetual absolute disqualification. CHAPTER 4 — APPROPRIATION PROVISION X X X

TITLE VIII — TRANSITORY PROVISIONS S E C . 64. Children in Conflict with the Law Fifteen (15) Years Old and Below. — Upon effectivity of this Act, cases of children fifteen (15) years old and below at the time of the commission of the crime shall immediately be dismissed and the child shall be referred to the appropriate local social welfare and development officer. Such officer, upon thorough assessment of the child, shall determine whether to release the child to the custody of his/her parents, or refer the child to prevention programs as provided under this Act. Those with suspended sentences and undergoing rehabilitation at the youth rehabilitation center shall likewise be released, unless it is contrary to the best interest of the child. S E C . 65. Children Detained Pending Dial. — If the child is detained pending trial, the Family Court shall also determine whether or not continued detention is necessary and, if not, determine appropriate alternatives for detention. If detention is necessary and he/she is detained with adults, the court shall immediately order the transfer of the child to a youth detention home. 131


SEC. 66. Inventory of "Locked-up" and Detained Children in Conflict with the Law. — The P N P , the B J M P and the B U C O R are hereby directed to submit to the JJWC, within ninety (90) days from the effectivity of this Act, an inventory of all children in conflict with the law under their custody. SEC. 67. Children Who Reach the Age of Eighteen (18) Years Pending Diversion and Court Proceedings. — If a child reaches the age of eighteen (18) years pending diversion and court proceedings, the appropriate diversion authority in consultation with the local social welfare and development officer or the Family Court in consultation with the Social Services and Counseling Division (SSCD) of the Supreme Court, as the case may be, shall determine the appropriate disposition. In case the appropriate court executes the judgment of conviction, and unless the child in conflict the law has already availed of probation under Presidential Decree N o . 603 or other similar laws, the child may apply for probation if qualified under the provisions of the Probation L a w . SEC. 68. Children Who Have Been Convicted and are Serving Sentence. — Persons who have been convicted and are serving sentence at the time of the effectivity of this Act, and w h o were below the age of eighteen (18) years at the time the commission of the offense for which they w e r e convicted and are serving sentence, shall likewise benefit from the retroactive application of this A c t . They shall be entitled to appropriate dispositions provided under this Act and their sentences shall be adjusted accordingly. T h e y shall be immediately released if they are so qualified under this A c t or other applicable law. TITLE K — FINAL PROVISIONS X X X

SEC. 71. Repealing Clause. — A l l existing laws, orders, decrees, rules and regulations or parts thereof inconsistent with the provisions of this A c t are hereby repealed or modified accordingly. SEC. 72. Effectivity. — This A c t shall take effect after fifteen (15) days from its publication in at least two (2) national newspapers of general circulation. Approved: April 28, 2006.

132


•

W h o are minors? R . A . 9344 defines children as persons under the age of 18. T h e y are in turn classified as: a.

Children at risk — those who are vulnerable to and at the risk of committing criminal offenses because of personal, family and social circumstances; and

b.

Children in conflict with the law ( C I C L ) — those w h o are alleged as, accused of or adjudged as having committed an offense.

It is prohibited for authorities to brand or label these children as 'young criminals,'juvenile delinquents,' 'prostitutes' or attach to them any derogatory names in any manner. •

What are the features of R.A. 9344? a.

M i n i m u m age of criminal responsibility A child 15 years of age or under at the time of the commission of the offense shall be exempt from criminal liability. But he shall be subject to an intervention program pursuant to Section 20 thereof. A child over 15 years old but under 18 shall likewise be exempt from criminal liability and shall be subject to intervention program unless he acted with discernment in which case he shall undergo diversion program. Criminal irresponsibility does not include exemption from civil liability. T h e C I C L shall enjoy presumption of minority. In case of doubt as to the age of the child, it shall be resolved in his favor. Cases pending with court involving a C I C L shall undergo a hearing on the motion to determine the age of the child and during the pendency of such motion, the proceedings on the main case shall be suspended.

b.

System of diversion instead of prosecution and/or penalty T h e diversion programs for children over 15 but under 18 who acted with discernment shall be without

133


undergoing court proceedings. The crimes covered are categorized into: 1.

Where the imposable penalty is not more than six years (six years and below); and There is a victim of the crime — diversion shall be before the law enforcement officer or the Punong Barangay and shall be in the form of mediation, family conferencing and conciliation attended by the child and his family; The crime is victimless — diversion shall be conducted by the local social welfare and development officer ( S W D O ) with the child and his parents or guardians.

2.

Where the imposable penalty exceeds six years (six years and one day or more) diversion measures shall be by courts only. In case the penalty imposable is not more than 12 years, regardless of the fine, or fine only regardless of amount, and before arraignment of the child, the court shall determine whether or not diversion is appropriate. T h e period of prescription of the offense shall be suspended during the effectivity of the diversion program but not exceeding two years.

3.

If the offense does not fall under any of the above or if the child, his parents or guardian does not consent to a diversion, the authority handling the case shall forward the records to the prosecutor or court within three days from the determination of absence of jurisdiction or termination of the proceedings and shall be filed according to the regular process.

Detention of the child pending trial Institutionalization or detention shall be a measure of last resort and for the shortest possible period of time. Detention may be replaced by alternative measures such as close supervision, intensive care or placement with a family or in an educational setting or home. 134


d.

Automatic suspension of sentence A child under 18 at the time of commission of the crime who is found guilty of the offense charged shall be placed under suspended sentence without need of application even if the child is already 18 or more at the time of the pronouncement of guilt unless disqualified under P . D . 603. (Declador vs. Gubaton) If the child has reached 18 while under suspended sentence, the court shall determine whether: To discharge the child; To order execution of sentence; or To extend the suspended sentence for a certain period or until he reaches the maximum age of 21 years. T h e child shall be credited in full for the time spent in actual commitment and detention.

e.

Probation privilege Upon application at any time, the court shall place the child on probation in lieu of service of sentence. For this purpose, Section 4 of the Probation L a w is modified.

f.

Status offenses A n y conduct which is not an offense when committed by an adult shall not be considered an offense and shall not be punished if committed by a child. An example is violation of curfew ordinances.

g.

•

Offenses not applicable to persons below 18 1.

Vagrancy and prostitution under Article 202, R P C

2.

Mendicancy under P . D . 1563, and

3.

Sniffing rugby under P . D . 1619.

When shall a child in conflict with the law be subject to preliminary investigation and filing of information? Preliminary investigation shall be conducted by the Prosecutor in the following cases: a.

When the child does not qualify for diversion; 135


b.

When the child, his parents or guardian does not agree to diversion; and

c.

When the prosecutor determines that diversion is not appropriate for the C I C L , considering the assessment and recommendation of the social worker.

Upon determination of probable cause, the information against the child shall be filed with the Family Court within 45 days from the start of the preliminary investigation. •

•

Who are the minors exempt from criminal liability? 1.

A minor 15 years old or under is absolutely exempt from criminal liability. T h e age of exemption was increased from 9 to 15.

2.

A minor over 15 and under 18 who did not act with discernment. This likewise modified the provision of Article 12 on exemption of those over 9 but under 15 who did not act with discernment.

Who are the minors disqualified from suspension of sentence? Pursuant to P . D . 603 a minor w h o ( a ) has once enjoyed suspension of sentence under its provisions or (b) convicted for an offense punishable by death or life imprisonment or (c) by Military Tribunals cannot avail of suspended sentence. T h e law was reproduced in A . M . N o . 02-1-18-SC where, except for those under paragraph 3, Section 32 of the law, the sentence of the accused is automatically suspended: Sec. 32. Automatic Suspension of Sentence and Disposition Order. - T h e sentence shall be suspended without need of application by the juvenille in conflict with the law. T h e court shall set the case for disposition conference within fifteen (15) days from the promulgation of sentence which shall be attended by the social worker of the Family Court, the juvenile, and his parents or guardian ad litem. It shall proceed to issue any or a combination of the following disposition measures best suited to the rehabilitation and welfare of the juvenile: care, guidance, and supervision orders; Drug and alcohol treatment; Participation in group counseling and similar activities; 136


Commitment to the Youth Rehabilitation Center of the D S W D or other centers for juvenile in conflict with the law authorized by the Secretary of D S W D . T h e Social Services and Counseling Division ( S S C D ) of the D S W D shall monitor the compliance by the juvenile in conflict with the law with the disposition measure and shall submit regularly to the Family Court a status and progress report on the matter. T h e Family Court may set a conference for the evaluation of such report in the presence, if practicable, of the juvenile, his parents or guardian, and other persons whose presence may be deemed necessary. T h e benefits of suspended sentence shall not apply to a juvenile in conflict with the law who has once enjoyed suspension of sentence or to one who is convicted of an offense punishable by death, reclusion perpetua or life imprisonment, or when at the time of promulgation of judgment the juvenile is already 18 years of age or over. •

What is the meaning of "punishable" in the disqualification from suspension of sentence? "Punishable" is defined as "deserving of, or capable, or liable to punishment; liable to be punished; may be punished; liable to punishment. "It does not mean "must be punished," but "liable to be punished" Villalon defined it as "deserving of, or liable for, punishment." T h e term refers to possible, not to actual sentence. It is concerned with the penalty which may be, and not which is imposed. Disqualification is based on nature of crime charged and the imposable penalty therefor, and not on the penalty imposed by the court after trial. It is not the actual penalty imposed but the possible one which determines the disqualification of a juvenile. (Declarador v. Gubaton, G.R. No. 159208, August 18, 2006)

•

Did R.A. 9344 on automatic suspension of sentence repeal the grounds for disqualification under P.D. 603? N o . R . A . 9344 which took effect on M a y 20, 2006 merely amended Article 192 of P.D. 603 in that the suspension of 137


sentence shall be enjoyed by the juvenile even if he is already 18 years old or more at the time of the pronouncement of his guilt. The other disqualifications in Article 192 and Section 32 of A . M . No. 02-1-18-SC have not been deleted from Section 38 of R . A . 9344. Evidently, the intention of Congress was to maintain the other disqualifications in P . D . 603. Thus, juveniles convicted of a crime the imposable penalty for which is reclusion perpetua, life imprisonment, or reclusion perpetua to death or death, are disqualified from having their sentences suspended. Statutes in pari materia should be read and construed together because enactments of the same legislature on the same subject are supposed to form part of one uniform system; later statutes are supplementary or complimentary to the earlier enactments and in the age of its acts the legislature is supposed to have in mind the existing legislations on the subject and to have enacted the new act with reference thereto. Statutes in pari materia should be construed together to attain the purposes of an expressed national policy, (id.) •

When else can suspension of sentence not be availed of? Section 40 provides that once the child reaches 18, the court shall determine whether to discharge the child, order execution of sentence, or extend the suspended sentence for a certain specified period or until the child reaches the maximum age of 21. Petitioner already reached 21 or over and could no longer be considered a child. Thus, the application of Sections 38 and 40 appears moot and academic. (Padua v. People, G.R. No. 168546, July 23, 2008) In this case, PP was charged with drug trafficking, hence, disqualified for probation under the Dangerous Drugs L a w . He cannot argue that his right under R . A . 9344 was violated or that Section 32 of A . M . N o . 02-118-SC, "Rule on Juveniles in Conflict with the L a w " applies herein. Section 38 of R . A . 9344 and Section 32 of A . M . 02-1-18SC both pertain to suspension of sentence and not probation.

Accident •

What is the meaning of accident? An accident is an occurrence that "happens outside the sway of our will, and although it comes about through some 138


act of our will, lies beyond the bounds of humanly foreseeable consequences." It connotes the absence of criminal intent. Intent is a mental state, the existence of which is shown by a person's overt acts. Appellant got his shotgun and returned to the kitchen to shoot his son who had intervened in the quarrel between appellant and CC. A shotgun would not have fired off without first being cocked. Appellant cocked the shotgun before discharging it, showing a clear intent to fire it. (People v. Agliday, G.R. No. 140794, October 16, 2001) •

What is required for accident to be accepted? T h e following requisites must concur: (1)

Accused was performing a lawful act with due care;

(2)

T h e injury is caused by mere accident; and

(3)

T h e r e was no fault or intent of causing the injury. (People v. Mat-an, December 1992)

W h e n the act is with fault, it will fall under culpa; when with intent it will become an intentional felony. T h e accident must not be foreseeable or there will be fault or criminal negligence. •

What is the effect when accused claims the circumstance of accident? H a v i n g claimed that the shooting was accidental, petitioner must prove the same by clear and convincing evidence. H o w e v e r , the burden of proving the commission of the crime remained with the prosecution. (People v. CA, G.R. No. 1036613, February 23, 2001)

•

What is the basis for exemption from criminal liability for accident? Under Article 12, criminal liability does not arise in case a crime is committed by any person who while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it. The exemption from criminal liability under the circumstance showing accident is based on the lack of criminal intent. For an accident to be exempting, the act has to be lawful. The act of firing a shotgun at another is not a lawful act. (People v. Agliday) 139


Relate accident to self-defense. Accident and self-defense are two incompatible defenses. Accident presupposes lack of intention, while self-defense assumes voluntariness, but induced only by necessity. (People v. Lao-as, G.R. No. 126396, June 29, 2001) When an accused claims that the crime was the result of an accident, the burden of proving self-defense will not come into play. It is hardly a lawful act when accused struggled with the victim for the ax as the latter's act of taking hold of the ax was equivocal, and it cannot be deduced therefrom that he was under the threat of an unlawful aggression from her. T h e defense of accident, therefore, cannot exempt accused from liability. Although the Information charged frustrated murder, a finding of guilt for the lesser offense of less serious physical injuries may be made considering that the latter offense is necessarily included in the former since the essential ingredients of physical injuries constitute and form part of those constituting the offense of murder. Similarly, an accused may be convicted of slight, less serious or serious physical injuries in a prosecution for homicide or murder, inasmuch as the infliction of physical injuries could lead to any of the latter offenses when carried to its utmost degree despite the fact that an essential requisite of the crime of homicide or murder — intent to kill — is not required in a prosecution for physical injuries. (Aradillos v. CA, G.R. No. 135619, January 15, 2004) What is negligence? Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. (Raynera v. Hiceta, G.R. No. 120027, April 21, 1999) What is the presumption when a driver bumps the rear of another vehicle? Drivers of vehicle who bump the rear of another vehicle are presumed to be the cause of the accident, unless contradicted by other evidence. The rationale behind this presumption is that 140

JUSTIFYING CIRCUMSTANCES AND CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL LIABILITY

the driver of the rear vehicle has full control of the situation as he is in a position to observe the vehicle in front of him. Consequently, the responsibility to avoid the collision with the front vehicle lies with the driver of the rear vehicle. His is the last chance of avoiding the accident. (Raynera v. Hiceta) Irresistible Force •

•

What are the elements of irresistible force? compulsion a.

T h e force must be physical, must come from an outside source, and the accused must act not only without a will but even against his will.

b.

T h e actor must be reduced to a mere instrument, such that the element of freedom is wanting.

c.

T h e duress, force, fear or intimidation must be present, imminent and impending and of such a nature as to induce a well-grounded fear of death or serious bodily injury if the act is not done.

What is essential for duress to be a valid defense? For duress to be validly availed of as a defense, it should be anchored on a real, imminent or reasonable fear for one's own life or limb and should not be speculative, fanciful, or imagined. It is based on the complete absence of freedom on the part of the accused and has its roots in the maxim "Actus me invito factus non est meus actus" [an act done by me against my will is not my act]. T h e compulsion employed upon the accused must have been of such character as to leave no opportunity for him to spring an escape or to himself foist any act of defense for self-preservation. Thus, duress is unavailing where the accused had every opportunity to run away if he had wanted to or to resist any possible aggression because he was also armed. L i k e a bare denial, the defense of duress is a self-serving and negative device which judicial experience shows is conveniently conjured by felons to justify their participation in a crime. Hence, like a bare denial, it must fail if unsubstantiated by clear and convincing evidence and cannot be given greater evidentiary value than the testimony of credible witnesses who testify on affirmative matters. (People v. Salvatierra, G.R. No. 111124, June 20, 1996) 141


Uncontrollable Fear •

comes from within the person.

What are the elements of uncontrollable fear? 1.

Threat which caused the fear of an evil greater than or at least equal to that which the accused was required to commit.

2.

It promised an evil of such gravity and imminence that the ordinary man would have succumbed to it.

Just like irresistible force, uncontrollable fear is founded on duress or lack of voluntariness on the part of the actor. There must be no possibility of avoiding or escaping from the situation creating the fear, such as the case of the hostage who decapitated his fellow hostage because otherwise he shall be killed by his captors. The fear experienced by men who allege hearing voices or suspect other persons would kill or harm them cannot qualify as the fear that could exempt from criminal liability. At most, such fear which drive these persons suffering from nervous breakdown could be mitigating under Article 13 on illness or defect or circumstances analogous thereto. Insuperable Cause •

What is insuperable cause? It is an exempting circumstance which applies to felonies by omission. The law imposes a duty on the offender to perform an act but his failure to do so is due to a lawful or insuperable cause. There is no civil liability because his acts are lawful. For instance, Article 125 provides for the number of hours when a person arrested must be delivered to the judicial authorities. If the peace officers failed to do so because of circumstances beyond their control such as long holidays when the judicial offices are not open, that is insuperable cause and the peace officers will not be liable under Article 125.

142

Chapter Three CIRCUMSTANCES W H I C H MITIGATE C R I M I N A L LIABILITY A r t . 13. Mitigating circumstances. — T h e f o l l o w i n g a r e m i t i g a t i n g circumstances: 1.

T h o s e m e n t i o n e d in the p r e c e d i n g chapter, w h e n all the r e q u i s i t e s n e c e s s a r y to justify the act or to e x e m p t f r o m c r i m i n a l liability in the respective cases a r e not attendant.

2.

T h a t the o f f e n d e r is u n d e r 18 y e a r s of a g e or o v e r 70 y e a r s . In the case of the m i n o r , he shall be p r o c e e d e d a g a i n s t in a c c o r d a n c e w i t h the p r o v i s i o n s of Article 80.

3.

T h a t the o f f e n d e r h a d no intention to commit so g r a v e a w r o n g as that committed.

4.

T h a t sufficient p r o v o c a t i o n or threat on the p a r t of the o f f e n d e d p a r t y immediately p r e c e d e d the act.

5.

T h a t the act w a s committed in the immediate vindication of a g r a v e offense to the one committing the felony (delito), his spouse, ascendants, descendants, legitimate, n a t u r a l or a d o p t e d b r o t h e r s or sisters, or relatives by affinity w i t h i n the same degrees.

6.

T h a t of h a v i n g acted u p o n an impulse so p o w e r f u l as n a t u r a l l y to h a v e p r o d u c e d ion or obfuscation.

7.

T h a t the offender h a d voluntarily s u r r e n d e r e d himself to a p e r s o n in authority or his agents, or that he h a d voluntarily confessed his guilt before the court p r i o r to the presentation of the evidence for the prosecution.

8.

T h a t the offender is d e a f a n d d u m b , blind or o t h e r w i s e suffering some physical defect which 143


thus restricts his m e a n s of action, defense, communication w i t h his fellow beings.

•

or

9.

Such illness of the offender as w o u l d diminish the exercise of the w i l l - p o w e r of the offender w i t h o u t h o w e v e r d e p r i v i n g h i m of consciousness of his acts.

10.

A n d , finally, any other circumstance of a similar nature and a n a l o g o u s to those a b o v e mentioned.

What are mitigating circumstances? Mitigating circumstances show the lesser perversity of the offender and has the effect of lowering the penalty prescribed for the offense. T h e y are matters of defense which do not have to be alleged in the information. A r t i c l e 13 enumerates ordinary mitigating circumstances. T h e r e are circumstances, too, which have the effect of reducing the penalty but are not included in this article and are also called extenuating circumstances. Examples are concealment of dishonor on the part of the mother in infanticide and abandonment of the wife by the husband in adultery. U n l i k e aggravating circumstances, Article 13 allows analogous circumstances to mitigate the offender's liability.

•

What is the rationale for mitigating circumstances? The rationale behind the whole concept of mitigating circumstance is to show mercy and some extent of leniency in favor of an accused who has shown lesser perversity in the commission of an offense. W h e r e the evidence on record bespeaks of vileness and depravity, no mercy or leniency should be accorded an accused who should be made to suffer in full for acts perpetrated with complete voluntariness and intent for their tragic consequences. (People v. Santos)

•

What are the classifications of mitigating circumstances? a.

Ordinary — lowers the penalty to the minimum period. Article 13 enumerates ordinary mitigating as well as provisions on specific felonies where the penalty is lowered to the minimum period.

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b.

Privileged — lowers the imposable penalty, whether divisible or indivisible, by one or more degrees.

c.

Specific — applies to a specific felony like concealment of dishonor in the case of abortion by the pregnant woman herself. These circumstances can either be ordinary or privileged depending upon the effect on the penalty.

Distinguish ordinary from privileged mitigating circumstances. ORDINARY 1.

PRIVILEGED

Can be offset by a generic aggravating circumstance

cannot be offset by any aggravating circumstance

2. Penalty is lowered to the minimum period of the penalty prescribed

Penalty is lowered by one or two degrees

3. N o t considered when what is prescribed is single indivisible penalty

A l w a y s considered whether the penalty imposable is divisible or indivisible

M i t i g a t i n g circumstances are personal to an accused in whose favor they exist and cannot be enjoyed by his co-accused. R R , being below 18 at the time he committed the crime, is entitled to the privileged circumstance of minority notwithstanding that the penalty imposable is reclusion perpetua. (People v. Barreta, G.R. No. 120367, October 16, 2000) Paragraph 2 of Article 63 states that when what is imposed on the convict is a penalty made up of two indivisible penalties, ordinary mitigating circumstance shall operate to bring down the penalty to the minimum. R . A . 9346 banned the imposition of the death penalty, thus said provision is inoperatable. There is now only one indivisible penalty of reclusion perpetua. Ordinary mitigating lowers the penalty to the minimum period. As an exception, where there are two ordinary mitigating with no aggravating circumstance attendant, Article 64(5) allows the penalty is to be lowered by one degree.

145


Paragraph 1 — Incomplete justifying or exempting circumstances •

What are the requirements for the mitigating circumstance of incomplete justification/exemption to be present? In the incomplete justification of defense, there must always be unlawful aggression otherwise there is nothing to defend and consequently no occasion to justify the act in defense of self or relatives or strangers. Without unlawful aggression, there is neither complete nor incomplete defense. In accident, the requisites of due care and lack of fault are indispensable without which negligence will be present giving rise to culpable felony. If the requisites of lawful act and lack of intention of causing the injury are absent, an intentional act results taking the case out of the benefit of this mitigating circumstance.

•

When is incomplete defense ordinary mitigating? When privileged? Unlawful aggression is indispensable in self-defense, complete or otherwise. W h e n unlawful aggression alone is proved, such incomplete self-defense is appreciated as ordinary mitigating under Article 13(1). W h e n it is combined with another element, such incomplete self-defense becomes privileged mitigating under Article 69. Article 69 which provides for the imposition of a penalty lower by one or two degrees than that prescribed by law where the killing is not wholly excusable applies only where a majority of the conditions required to justify a criminal act or to exempt from liability are present. (People v. Deopante, G.R. No. 102772, October 30, 1996) It is necessary that there be present majority of the elements of the circumstance for Article 69 to apply. W h e n the circumstance requires only two elements, the presence of one is considered a majority. This is privileged mitigating which cannot be offset by any aggravating circumstance and is considered even if the penalty prescribed is single and indivisible under paragraph 1 of Article 63. If there is only one or less than majority of the elements present, the incompleteness is an ordinary mitigating circumstance under Article 13 and as such can be offset by a generic aggravating circumstance. 146


•

Is unlawful aggression a mitigating circumstance? N o . A n y first year law student knows that unlawful aggression is not mitigating. (Estoya v. Singson, A.M. RTJ91-758, September 1994) It is incomplete self-defense that is mitigating, not unlawful aggression which is a mere but indispensable component of defense of self, of relatives or of strangers.

Minority •

What amendment was introduced by P.D. 603 on Article 80? W h a t Article 189 of P . D . 603 modified Article 80 of the R P C on suspension of sentence; not Article 13(2) which treats of minority as a mitigating circumstance. Thus, for minority to be considered as a mitigating circumstance, the offender must be under 18 years of age at the time the crime was committed (id.). [But even then, minority is never ordinary mitigating notwithstanding its inclusion in Article 13. P . D . 603 has been superseded by R . A . 9344 in that minority up to age 15 in an absolute exempting circumstance Article 13(2) and Article 68 have been modified accordingly.]

•

What is the nature of minority as a mitigating circumstance? It is never an ordinary mitigating; it is always privileged mitigating because: a.

Article 47 dictates that if the death penalty is imposable, the penalty will be lowered to reclusion perpetua;

b.

R . A . 9344 mandates that if the minor is 15 or under, he shall be exempt from criminal liability; and

c.

Article 68(2) in relation to R . A . 9344 requires that if the minor is over 15 but under 18 and he acted with discernment he shall be entitled to a reduction of penalty to the next lower penalty but in the proper period.

A l l of these provisions have been modified by R.A. 9344 and 9346. Penal laws should be liberally construed in favor of the offender. Accordingly, the mitigating circumstance of minority should be appreciated in favor of DC who was clearly a minor when he committed the offense, especially in light 147


of the comionate liberty the Court has granted to minors involved in serious crimes. Thus, considering the gravity of the offense and in the interest of justice, the Court allowed the presentation of and itted the birth certificate of the accused to prove minority although said birth certificates were not presented or offered in the trial court. T h e same equitable consideration with respect to DC can be adopted since the fact of his minority is established by an official document prepared by the Department of Social Services and Development in the exercise of its functions and incorporated in the records of this case which can be taken judicial notice ex mero motu. (People v. Regalario, G.R. No. 101451, March 23, 1993) Praeter Intentionem •

What is praeter intentionem? It is the lack of intention to commit so grave a wrong as that committed. There should be a great disparity between the intent (means employed to accomplish the criminal act) and its consequences. Lack of intent to commit so grave a wrong is shown by the means employed by the accused, the nature and the location of the wound. Praeter intentionem should be appreciated where the accused had no intent to kill but only to inflict injuries when he attacked the victim. (People v. Flores, supra)

•

When can praeter intentionem not be invoked? Praeter intentionem cannot be invoked if the acts of the accused are sufficient to bring about the result intended or when the means employed would naturally result to the felony committed. It does not apply to culpa or to crimes not involving intent. T h e word "intentionem" denotes intentional felonies. T h e Anti-hazing law express prohibits the application of this circumstance in favor of the offender.

Sufficient Provocation •

What are the requirements for sufficient provocation? T h e provocation must be sufficient; immediate to the commission of the crime; and must originate from the offended 148


party. Provocation is immediate if no interval of time elapsed between the provocation and the commission of the crime. (People v. Pagal, 79 SCRA 570 [1977]) [See notes under selfdefense on the comparison between provocation as an element of self defense and as a mitigating circumstance.] Sufficient provocation could not mitigate the criminal liability of the accused. He cannot claim that he was provoked by 00 when the latter ran away from him because, the hapless victim feared for his life having been beaten up twice by his assailants that same evening. To flee when danger lurks is human and can never be regarded as a source of provocation sufficient to come within the ambit of the law. In fact, when an offended party flees from his aggressor, the latter has no reason to pursue and attack him. (People v. Padilla, G.R. No. 75508, June 10, 1994) Immediate Vindication of a Grave Offense •

Must the "offense" in immediate vindication be a crime? N o , but it may be any act or event which offends the accused causing mental agony to him and moves him to vindicate himself of such offense. For instance, insulting an old man (U.S. v. Ampar, 37 Phil. 301), or eloping with the offender's daughter. (People v. Diokno, 63 Phil. 601)

•

How should the word "immediate" be understood? "Immediate" means proximate and allows for a lapse of time as long as the offender is still suffering from the mental agony brought about by the "offense" to him. (People v. Parana, 64 Phil. 331) It is unlike in sufficient provocation where there should be no lapse of time between the provocation and the commission of the crime. This circumstance cannot be considered in favor of the accused when he had sufficient time to recover his serenity. (People v. Santos) Appellant should be credited with having acted in the immediate vindication of a grave offense committed by the deceased against his wife, consisting of a libidinous attempt against her virtue and a cowardly attack against her person. While the law speaks of an "immediate" vindication of a grave 149


offense, the same should be understood to mean "proximate." (People v. Babor, G.R. No. 106875, September 24, 1996) ion and Obfuscation •

What is necessary for ion or obfuscation to be considered? The ion or obfuscation must arise from accused's lawful sentiments. The offended must have done an act unlawful and sufficient to excite ion or obfuscation on the part of the accused. (People v. Tiongco, September 1994) For instance, a person who maintains an illicit relationship with the wife of another is courting the ion or obfuscation of the husband because his act of having an affair with the wife is unjust and sufficient to make the ion of the husband arise. As the relationship of the husband and the wife is legitimate, the ion or obfuscation of the husband would result from lawful sentiments.

»

When is ion and obfuscation not appreciated? The court will not appreciate ion and obfuscation where the anger did not arise from lawful sentiments. T h e delay of FF in obeying EE's request to buy a ball caster bearing is too trivial a matter as to fairly and justly cause such overreaction on the part of EE. (People v. Tiongco, September 1994) This circumstance cannot co-exist w i t h treachery or evident premeditation because ion or obfuscation must be a spur of the moment. It cannot be appreciated if the acts of the accused were done in the spirit of revenge and lawlessness, for which no mitigating circumstance can arise. (People v. CA, G.R. No. 103613, February 23, 2001). It cannot be claimed in addition to vindication of grave offense if the t w o circumstances arose from the same cause.

»

Will injury resulting from a quarrel constitute ion or obfuscation? N o . For ion and obfuscation to be mitigating, the same must originate from lawful feelings. T h e turmoil and unreason that naturally result from a quarrel or fight should not be confused with the sentiment or excitement in the mind of a person injured or offended to such a degree as to deprive

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C I R C U M S T A N C E S W H I C H M I T I G A T E C R I M I N A L LIABILITY

him of his sanity and self-control. T h e excitement which is inherent in all persons who quarrel and come to blows does not constitute obfuscation. (People v. Rabanillo, G.R. No 130010 May 26, 1999) For battered women, there is also the circumstance of having acted upon an impulse so powerful as to have naturally produced ion and obfuscation. This state of mind is present when a crime is the result of an uncontrollable burst of ion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome reason, as in acute battering incident. (People v. Genosa, supra) •

How further should the act that produces ion or obfuscation be from the commission of the crime? T h e act producing obfuscation must not be far removed from the commission of the crime by a considerable length of time, during which the accused might have regained his normal equanimity. Thus, where at least half an hour elapsed between the previous fight and the killing, the accused cannot be given the benefit of the attenuating circumstance of obfuscation. In this case, 30 minutes intervened between the fistfight and the killing of MM by R R . T h e attack cannot, therefore, be said to be the result of a sudden impulse of natural and uncontrollable fury. H a v i n g been actuated more by the spirit of revenge or by anger and resentment for having been publicly berated by M M , RR cannot be credited with the extenuating circumstance of ion and obfuscation. (People v. Rabanillo)

•

Compare sufficient provocation, immediate vindication of a grave offense and ion or obfuscation. These three mitigating circumstances are based on the same ground — the overwhelming emotion that blinds a person or causes him to lose reason and equanimity. Thus, the offender cannot be credited with three mitigating circumstances but only one if all of these are invoked in a case.

Voluntary Surrender •

What are the elements of voluntary surrender? a.

The offender surrendered to a person in authority or his agent; 151


b.

The offender surrendered before arrest is effected; and

c.

The surrender must be voluntary, i.e., spontaneous and must show the intent of the accused to submit himself unconditionally to the authorities, either because he acknowledges his guilt or he wishes to save them the trouble and expense incidental to his search and capture.

Taraya, G.R. No. 135551, October 27, 2000 added a fourth requisite, that there is no pending warrant of arrest or information filed. When AA learned that the police were looking for him, he immediately went to the police station where he confessed to killing SS in self-defense. However, the said surrender does not constitute as a mitigating circumstance for at the time of his surrender, he had a pending warrant of arrest issued five days before his surrender. His arrest by that time was imminent. Be Vera v. De Vera, G.R. No. 172832, April 7, 2009, clarified that the mere filing of an information and/or the issuance of a warrant of arrest w i l l not automatically make the surrender "involuntary." Oco, 458 S C R A 815 appreciated voluntary surrender because immediately upon learning that a warrant for his arrest was issued, and without the same having been served on him, the accused surrendered to the police. Notwithstanding the pendency of a warrant for his arrest, the accused may still be entitled to the mitigating circumstance in case he surrenders, depending on the actual facts surrounding the very act of giving himself up. Voluntary surrender is present even if the accused surrendered one week after the crime. T h e fact is they voluntarily surrendered to the police before arrest could be effected. (People v. Amaguin, G.R. No. 54344-45, January 10, 1994) What determines whether the surrender is voluntary? T h e surrender must be spontaneous and deliberate, that is, there must be intent to submit unconditionally to the authorities. Since it was the police officer who went looking for the accused immediately after obtaining information from eye witnesses as to who had perpetrated the crime, even if he did not resist arrest or deny his criminal act, this cannot be 152


equated with voluntary surrender. (People v. Rebamontan G.R. No. 125318, April 13, 1999) On the day following the killing, accused surrendered to the Provincial Commander. T h a t the latter announced over the radio that he would issue a "shoot to kill" order unless accused voluntarily surrenders, and that he was persuaded to surrender by his employer do not militate against the consideration of his voluntary surrender. T h e stubborn fact was he was not arrested and that he presented himself to the Provincial Commander to surrender. (People v. Morato, G.R. Nos. 95358-59, July 5, 1993) T h e mitigatingcircumstance of voluntary surrender should have been considered. T h e evidence shows that immediately after slaying C C , accused walked all the w a y straight to the Calinan Patrol Station in Davao City to surrender. (People v. Curaraton, G.R. No. 96765, July 5, 1993) T h a t accused itted that he surrendered because of fear of reprisal does not retract from the spontaneity of his surrender and the fact that he had saved the government of the time and trouble of searching for him. (People v. Amazon, G.R. No. 136251, January 16, 2001) T h e fact that accused yielded his weapon to his superior at the time of the incident, albeit w i t h some persuasion from the latter, should be considered in his favor. (People v. Amion, G.R. No. 140511, March 1, 2001) •

W h o should surrender? T h e offender himself should surrender. W h e r e the offender did not submit himself to the authorities investigating the commission of the crime, and it was his superior who surrendered him to the custody of the court, such is not the voluntary surrender contemplated by law. (People v. Acuram) T h e essence of voluntary surrender is spontaneity and the intent of accused to give up and submit unconditionally to the authorities either because he acknowledges his guilt or he wishes to save them the trouble and expense necessarily incurred in his search and capture. Here, it was appellant's commanding officer who surrendered him to the custody of the court. Being restrained by one's superiors to stay within the camp without submitting to the investigating authorities concerned is not tantamount to voluntary surrender, (id.) 153


Voluntary plea of guilt •

What are the elements of voluntary plea of guilt? Voluntary plea of guilt must be made: (1)

in open court;

(2)

spontaneously and unconditionally; and

(3)

prior to the presentation of the evidence of the prosecution.

An extra-judicial confession is not within the concept of voluntary plea of guilt because it is not made in open court. The court must be one of original jurisdiction because it must be made before the presentation of the prosecution's evidence, which means that the case is being tried for the first time. Likewise, the court must be possessed with jurisdiction to hear and decide the case for, if the court is acting without jurisdiction, all proceedings there are void for lack of jurisdiction, including the taking of the plea of the accused. •

Why is voluntary plea of guilt mitigating? It is mitigating because it is an act of repentance and respect for the law. It indicates a moral disposition in the accused favorable to his reform.

•

What is the effect of an improvident plea of guilt? T h e accused must be acquitted if the only evidence of his guilt is his improvident plea due to the prodding of his lawyer from the Public Attorney's Office. (People v. Mendoza, G.R. No. 80845, March 1994)

•

May voluntary plea of guilt and voluntary surrender be both considered in one case? Y e s . These two circumstances are separate and distinct from each other. T h e y do not arise out of the same facts and circumstances, hence, will entitle the offender to two mitigating circumstances when both are present.

•

Relate voluntary plea of guilt to plea bargaining. When accused did not plead to a lesser offense but pleaded guilty to the rape charges and only bargained for a lesser penalty, he did not plea bargain but made conditions on the 154


penalty to be imposed. This is erroneous because by pleading guilty to the offense charged, accused should be sentenced to the penalty to which he pleaded. It is the essence of a plea of guilty that the accused its absolutely and unconditionally his guilt and responsibility for the offense imputed to him. Hence, an accused may not foist a conditional plea of guilty on the court by itting his guilt provided that a certain penalty will be meted unto him. (People v. Magat, G.R. No. 130026 May 31, 2000) For voluntary confession to be appreciated as an extenuating circumstance it must not only be unconditional but the accused must it to the offense charged. (People v. Gano, G.R. No. 134373, February 28, 2001) Physical defects and illness •

What is required for the defect of the offender to be mitigating? T h e offender's being deaf and dumb or blind or otherwise suffering from some physical defect must relate to the offense because the law requires that the defect has the effect of restricting his means of action, defense, or communication to his fellow beings. T h e illness or defect is the contributory cause that moved him to commit the offense. Thus, rape committed by a deaf and dumb on the girl of his dreams to whom he cannot convey his feelings will mitigate his liability unless the circumstances justify the imposition of a single indivisible penalty where modifying circumstances have no effect. T h e fact that the offender suffers from a physical defect, a severed left hand does not automatically mean that he should be credited with this mitigating circumstance. In order for this condition to be appreciated, it must be shown that such physical defect limits his means of communication with his fellow beings to such an extent that he did not have complete freedom of action, consequently resulting in diminution of the element of voluntariness. Such cannot be appreciated where appellant's physical condition clearly did not limit his means of action, defense or communication, nor affect his free will. Despite his handicap, appellant managed to attack, overcome and fatally stab his victim. T h e fact that he had only one hand in no way limited his freedom of action to commit the crime. (People v. Deopante, G.R. No. 102772, October 30, 1996) 155


•

What is necessary for illness to be considered as mitigating? The illness must only diminish and not deprive the offender of the consciousness of his acts; otherwise he will be exempt from criminal liability. (People v. Rafaran) The defect or illness must be contributory to the commission of the crime. Without such relation, the defect or illness shall not be considered.

Analogous circumstances •

Is being a non-Christian an analogous mitigating circumstance? The appreciation of this circumstance lies within the sound discretion of the trial court considering all the facets of the case that would best serve the interest of justice. Even if their formal education be ignored, such attenuating circumstance is nonetheless unavailing. T h e fact that defendants belong to the cultural minorities cannot reduce from the subjective point of view the defendants' awareness of the gravity of their offense for robbery and killing are by their v e r y nature just as wrong to the ignorant as they are to the enlightened. W h a t e v e r may be the religious or cultural affiliation of a person, heinous crimes are universally regarded as evil. hip in a cultural minority is not expressly mentioned among the mitigating circumstances, nor would it come under Article 13(10) which speaks of "any other circumstances of a similar nature and analogous to those above mentioned." (People v. Macatanda)

•

Is extreme poverty an analogous mitigating circumstance? Extreme poverty is not among the mitigating circumstances enumerated in Article 13 and it is doubtful whether it may be considered as a circumstance of a similar nature or analogous to those mentioned in said Article. (Gallardo v. Tabamo, Jr., . Mat. RTJ-92-881, June 2, 1994)

•

Cite some examples of analogous circumstances. Restitution may be considered mitigating circumstance in malversation of public funds analogous to voluntary plea 156


of guilty. (Nizurtado December 7, 1994)

v.

Sandiganbayan,

G.R.

No.

107383,

T h a t the petitioner voluntarily took the cow to the municipal hall to place it unconditionally in the custody of the authorities and thus save them the trouble of recovering the cow, can be analogous to voluntary surrender and should be considered in his favor. (Canta v. People, G.R. No. 140937, February 28, 2001)

Chapter Four

CIRCUMSTANCES W H I C H AGGRAVATE CRIMINAL LIABILITY A r t . 14. Aggravating circumstances. — T h e f o l l o w i n g a r e a g g r a v a t i n g circumstances: 1.

T h a t a d v a n t a g e be t a k e n by the offender of his p u b l i c position.

2.

T h a t the crime be committed in contempt of or w i t h insult to the p u b l i c authorities.

3.

T h a t the act be committed w i t h insult or in d i s r e g a r d of the respect d u e the offended p a r t y on a c c o u n t of his r a n k , a g e , or sex, or that it be committed in the d w e l l i n g of the o f f e n d e d p a r t y , if the latter h a s not given provocation.

4.

T h a t the act be committed w i t h a b u s e of confidence or obvious ungratefulness.

5.

T h a t the c r i m e be committed in the p a l a c e of the C h i e f E x e c u t i v e , o r i n his p r e s e n c e , o r w h e r e p u b l i c authorities a r e e n g a g e d i n the d i s c h a r g e o f their duties or in a p l a c e d e d i c a t e d to r e l i g i o u s w o r s h i p .

6.

T h a t the c r i m e be c o m m i t t e d in the nighttime or in an uninhabited place, or by a b a n d , w h e n e v e r such circumstances m a y facilitate the c o m m i s s i o n of the offense. W h e n e v e r more than three a r m e d malefactors shall h a v e acted t o g e t h e r in the c o m m i s s i o n of an offense, it shall be d e e m e d to h a v e b e e n c o m m i t t e d by a b a n d .

7.

T h a t the crime be committed on the occasion of a conflagration, s h i p w r e c k , e a r t h q u a k e , e p i d e m i c , o r other calamity o r m i s f o r t u n e . 158

C I R C U M S T A N C E S W H I C H AGGRAVATE C R I M I N A L LIABILITY

8.

T h a t the c r i m e be committed w i t h the aid of a r m e d m e n o r p e r s o n s w h o i n s u r e o r afford impunity.

9.

T h a t the a c c u s e d is a recidivist. A recidivist is o n e w h o , at the time of his trial for one c r i m e , shall h a v e p r e v i o u s l y b e e n convicted by final j u d g m e n t of a n o t h e r c r i m e e m b r a c e d in the s a m e title of this C o d e .

10.

T h a t the o f f e n d e r h a s b e e n p r e v i o u s l y p u n i s h e d for an offense to w h i c h the l a w attaches an e q u a l or g r e a t e r p e n a l t y o r for t w o o r m o r e crimes t o w h i c h it attaches a lighter penalty.

11.

T h a t the c r i m e be committed in consideration of a price, r e w a r d , or promise.

12.

T h a t the c r i m e be committed by m e a n s of i n u n d a tion, fire, poison, explosion, s t r a n d i n g of a vessel or intentional d a m a g e thereto, d e r a i l m e n t of a locomotive, or by the use of a n y other artifice involving great waste and ruin.

13.

T h a t the act be committed w i t h evident p r e m e d i t a tion.

14.

T h a t craft, f r a u d , or disguise be e m p l o y e d .

15.

T h a t a d v a n t a g e be t a k e n of s u p e r i o r strength, or m e a n s be e m p l o y e d to w e a k e n the defense.

16.

T h a t the act be committed w i t h t r e a c h e r y (alevosia). T h e r e is t r e a c h e r y w h e n the offender commits a n y of the crimes against the p e r s o n , employing m e a n s , m e t h o d s or forms in the execution thereof w h i c h tend directly a n d specially to insure its execution, w i t h o u t risk to himself arising from the defense w h i c h the offended p a r t y might make.

17.

T h a t m e a n s be e m p l o y e d or circumstances b r o u g h t a b o u t w h i c h a d d ignominy to the natural effects of the act.

18.

T h a t the crime be committed after an u n l a w f u l entry. 159


T h e r e is u n l a w f u l entry w h e n an entrance is effected by a w a y not intended for the p u r p o s e .

•

19.

T h a t as a means to the commission of a crime a w a l l , roof, floor, door, or w i n d o w be b r o k e n .

20.

T h a t the crime be committed w i t h the a i d of persons u n d e r 15 y e a r s of a g e , or by m e a n s of m o t o r vehicles, motorized w a t e r c r a f t , a i r s h i p s , or other similar means. (As amended by R.A. No. 5438.)

21.

T h a t the w r o n g d o n e in the commission of the c r i m e b e deliberately a u g m e n t e d b y c a u s i n g other w r o n g not necessary for its commission.

Compare aggravating and mitigating circumstances. Mitigating circumstances consider the lesser perversity of the offender, hence, the penalty is reduced. T h e list in A r t i c l e 13 is not exclusive because there are analogous circumstances which manifest the liberal interpretation of the l a w in favor of the offender. A g g r a v a t i n g circumstances recognize that the offender is of greater perversity hence, the penalty is increased. The list in Article 14 is exclusive — there are no analogous circumstances and this is due to the strict interpretation of the law against the State. A g g r a v a t i n g circumstances must be alleged in the Information, because they increase the penalty and the offender must be given the opportunity to defend himself against these; mitigating are matters of defense, hence not required to be alleged in the Information. The rationale for the lack of analogous circumstance in Article 14 is that a penal law is liberally construed in favor of the offender and no person should be brought within its if he is not clearly made so by the statute. (People v. Regala, G.R. No. 130508, April 5, 2000) Immoral motive may not be considered as it does not fall under any of the aggravating circumstances in A r t i c l e 14. Unlike mitigating circumstances, there is no such thing as similar nature and analogous to those mentioned as aggravating circumstances. (People v. Villaver, G.R. No. L-32104, March 25, 1983)

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•

What are the different kinds of aggravating circumstances? 1.

2.

•

Generic aggravating circumstances which: a.

A p p l y generally to all crimes;

b.

Can be offset by an ordinary mitigating circumstance;

c.

Increase the penalty to the maximum period of the penalty prescribed in the law provided alleged in the information as required under the Revised Rules on Criminal Procedure ( R R C P ) .

Qualifying circumstances which: a.

cannot be offset by any mitigating circumstance;

b.

change the nature of the crime and the designation of the offense;

c.

must be alleged in the Information, otherwise, cannot be considered against the offender because it will violate his right to be informed of the nature of the accusation against him since a qualifying circumstance changes the nature of the offense; and

d.

must be proved as conclusively as the guilt of the offender because of its effect which is to change the nature of the offense and consequently increase the penalty by degrees.

3.

Special or specific aggravating circumstances which apply to a particular felony. They are found elsewhere than Article 14.

4.

Inherent circumstance which is an element of the felony committed thus no longer considered against the offender in the determination of the penalty. (Article 62, no. 1)

Do qualifying circumstances increase the penalty to a higher degree? N o . T h e penalty prescribed by the law cannot be increased because that will violate the rule that a penalty not prescribed by law cannot be imposed (Article 21). Also, the ex post facto rule prohibits the imposition of a penalty greater than that prescribed by law when the crime was committed.

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It is not the qualifying circumstance itself that increases the penalty by degree. What the qualifying circumstance does is to change the nature of the crime resulting to the increase in the penalty. Thus, homicide becomes murder and the penalty for murder is higher than for the homicide. The penalty for homicide is always reclusion temporal which can be lowered but not increased to reclusion perpetua. T h e homicide has to be changed by a qualifying circumstance to murder for the penalty to increase to reclusion perpetua. Qualifying circumstances proved during the trial but not alleged in the Information cannot be considered as generic aggravating because of the amendment made in the new R R C P . •

What is the nature of the circumstances in Article 14? The circumstances enumerated in Article 14 are generic circumstances although some are qualifying in particular crimes made so by specific provisions of the R P C . Treachery is qualifying for murder because Article 248 made it so but generic for parricide or less serious physical injuries because the provisions for these crimes are silent as to treachery, hence, Article 14 shall govern. There is no law providing that the additional rape/s or homicide/s should be considered as aggravating circumstance. The enumeration of aggravating circumstance under Article 14 is exclusive as opposed to Article 13 where there is,-a- specific paragraph (paragraph 10) providing for analogous mitigating circumstances. (People v. Regala) It is true that the additional rapes or killing would result in the "anomalous situation" where from the standpoint of the gravity of the offense, robbery with one rape or homicide would be on the same level as robbery with multiple rapes or homicides. However, the remedy lies with the legislature. A penal law is liberally construed in favor of the offender and no person should be brought within its if he is not clearly made so by the statute.

•

When is the term "aggravating circumstances" broadly construed to include those in Article 15? Catubig, G.R. No. 137842, August 23, 2001 considered the alternative circumstance of relationship as basis for an award 162


of exemplary damages because the term "aggravating circumstances" must be understood in its broad or generic sense. However, this interpretation is only applicable to the civil aspect, not the criminal aspect of rape, which involves the imposition of the proper penalty. W h e n the penalty to be imposed on the accused is teetering between reclusion perpetua and death, the term "aggravating circumstance" in Article 63 must be understood in the strictest sense. T h e "aggravating circumstance" that would spell the difference between life and death for the accused must be that listed in Article 14. In all other cases where the maximum penalty is not death, "aggravating circumstance" must be interpreted in its broad or generic sense so as to include the circumstances under Article 15. (People v. Orilla, G.R. Nos. 148939-40, February 13, 2004). (Moot and academic because of R . A . 9346J What is the new rule on the allegation of generic aggravating circumstances in the Information? T h e R R C P now requires that generic aggravating circumstances must be alleged in the information just like qualifying circumstances. In effect, the distinction between generic and qualifying circumstances as to the allegation in the Information has been obliterated. T h e rule that a qualifying circumstance proved during the trial but was not alleged in the Information can be considered as generic aggravating is no longer true. W h e n the circumstance was not alleged in the Information, the accused was not forewarned of, and could not have prepared his defense against, such circumstance. This constitutes violation of his right to be informed of the nature of the accusation against him. T h e rule on generic aggravating circumstances has now been formalized in the R R C P , which took effect on December 1, 2000. Sections 8 and 9 of Rule 110 now respectively provide that: Sec. 8. Designation of the offense. — The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravatins circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. 163


Sec. 9. Cause of the accusation. — The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying circumstances and aggravating circumstances and for the court to pronounce judgment, (emphasis supplied) Treachery attended the commission of the crime and it was merely a generic aggravating circumstance. However, it was not alleged in the information as mandated by Section 8, Rule 110. Treachery cannot be considered even as a generic circumstance. Although the crime took place before the R R C P took effect, it should be applied retroactively as it is favorable to the appellant. (Rugas v. People, G.R. No. 147789, January 14, 2004) •

What is the fundamental requirement before qualifying circumstances are considered? T h e fundamental requirement is that qualifying circumstances should be alleged in the information. To allow otherwise would be to deny the accused the right to be informed of the nature and the cause of the accusation against him. "There was abuse of superior strength, but it could not qualify the killing to murder because it has not been sufficiently alleged in the information." (People v. Feran, October 1992). T h e rationale for this requirement of the right to be informed of the existence of the qualifying circumstance is for the accused to prepare properly for his defense to meet head-on the qualifying circumstance and because such circumstance changes the nature of the charge against him. Due process requires that the accused be given fair notice of what he is being tried for. It is error to consider nighttime, use of fire and abuse of superior strength as "attendant qualifying aggravating circumstances." T h e information alleged only treachery and evident premeditation as qualifying circumstances. N i g h t t i m e , band, use of fire, craft, fraud or disguise and ignominy w e r e alleged as generic aggravating circumstances. T h e trial court cannot elevate the status of any of the generic circumstances

164


and consider them as qualifying for the crime of murder. (People v. Valeriano, September 1993) What is the requirement as to proof of qualifying circumstances? Qualifying circumstance must be proved beyond reasonable doubt as convincingly as the crime itself for it is not merely a modifying circumstance but an element of the crime. It changes the nature of the crime. An allegation of treachery changes the offense from homicide to murder and increases tremendously the penalty. Homicide is penalized with reclusion temporal (12 years and 1 day to 20 years), whereas, murder carries reclusion perpetua (20 years and 1 day to 40 years). In effect, this qualifying circumstance carries with it another reclusion temporal, hence, the requirement that it should be proved as convincingly as the crime itself. How many circumstances are required to be used as qualifying circumstance? Only one is required. W h e r e one of the aggravating circumstances has been used as a qualifying circumstance, the others w i l l be deemed as generic. Since treachery has already been used to qualify the crime to murder, evident premeditation should be considered as only a generic aggravating circumstance. (People v. Fabros, October 1992) What are special aggravating circumstances? Special aggravating circumstances are those applicable to specific crimes. T h e y do not change the character of the offense charged but guides the court in imposing the proper penalty. Agguihao, G.R. No. 104725, March 10, 1994 ruled that just like a generic aggravating the special circumstance of spite does not change the character of the arson charged. However, unlike generic aggravating which can be offset by an ordinary mitigating circumstance, special aggravating cannot be offset by an ordinary mitigating circumstance. (People v. De Leon, G.R. No. 179943, June 26, 2009) Give examples of special aggravating circumstances. R . A . 7659 added "organized/syndicated group" in Article 6 2 [ l ] [ a ] . This is a special aggravating circumstance because 165


Article 14 which contains generic aggravating circumstances was not correspondingly amended. The maximum penalty shall be imposed if the offense was committed by any person belonging to an organized/syndicated crime group. An organized/syndicated crime group means a group of two or more persons collaborating, confederating, or mutually helping one another for purposes of gain in the commission of any crime. The gain here refers not only to robbery or theft but to all criminal activities which are "profitable" to the offenders such as kidnapping for ransom, and estafa. Moreover, R . A . 7659 modified Article 62, no.l in relation to Article 64, no. 4 in that when advantage is taken by the public officer of his public position, Article 64, no. 4 on offsetting shall not operate; instead, Article 62, no 1 (a) shall be followed and regardless of the presence of mitigating circumstances, the penalty shall be imposed in its maximum period. T h e use of unlicensed firearm is a special aggravating circumstance for homicide or murder, pursuant to R . A . 8294. (People v. De Leon) •

Is conspiracy an aggravating circumstance? N o . Conspiracy is neither aggravating nor qualifying but rather a manner of incurring collective criminal hability among every co-conspirator in an equal degree, whereby the effect is that the act of one becomes the act of all. T h e presence of conspiracy cannot qualify a killing to murder. (People v. Feran)

Abuse of official position •

When is abuse or taking advantage of official position present? In the circumstance of taking advantage of official position, the test is: Did the accused abuse his office in order to commit the crime? If he did, then this circumstance is present. (Sanchez v. Demetriou) An example is when the offender falsifies a document in connection with the duties of his office which consist of either making or preparing or otherwise intervening in the preparation of a document. (Layno v. People, September 1992). T h e public official must use the influence, prestige and

166


ascendancy which his office gives him in realizing his purpose. T h e r e must be an intimate connection between the offense and the office of the accused. •

Is the offender's being a public officer ipso facto aggravating? N o . For such to be considered aggravating, the public official must use the influence, prestige and ascendancy which his office gives him in realizing his purpose. That accused used his service firearm in shooting the victim should not be considered as taking advantage of public position. (People v. Amion, G.R. No. 140511, March 1, 2001) T h e mere fact that accused was a member of the C A F G U and was issued an M - l Garand rifle is not sufficient to establish that he misused his public position in the commission of the crimes. (People v. Villa, Jr., G.R. No. 129899, April 27, 2000) T h e dual functions of a jail guard are to insure the safe custody and proper confinement of persons detained in the jail. T h e victim was a detention prisoner when the jail guard conspired with some inmates to kill him. Murder or homicide is never the main function of any public office. No public office w i l l ever be the constituent element of murder or homicide. Montejo, 108 Phil. 613, held that a public officer commits an offense in relation to his office if he perpetrates the offense while performing, though in an improper or irregular manner, his official functions and he cannot commit the offense without holding his public office. In such a case, there is an intimate connection between the offense and the office of the accused. As jailer, accused has access to the victim prisoner. Without his office he cannot have access to the prisoner because the latter is under the watchful eye of his jailer whose function is to insure the proper confinement of persons, access to whom is restricted by law. (Crisostomo u. Sandiganbayan, G.R. No. 152398, April 14, 2005)

Insult to public authorities •

Who are included by the term "public authority"? It covers not only persons in authority but also agents of persons in authority and other public officers. Rodriguez, 19 Phil 150; Siojo, 61 Phil. 307; and Verzo, 21 SCRA 1403, were

167


reconsidered in Rodil, G.R. No. L-35156, November 20, 198, because it is not justified by the employment of the term public authority in Article 14 (2) instead of the term person in authority which is specifically used in Articles 148 and 152. There is no extended reasoning of the doctrine enunciated in those three cases why the phrase public authority should comprehend only persons in authority. The lawmaker could have easily utilized the term "persons in authority" in Article 14 in much the same way that it employed the said phrase in Articles 148 and 152. The lawmaker must have intended a different meaning for the term public authority which may include but not limited to persons in authority. A municipal mayor, barangay captain, or barangay tanod is a person in authority or a public authority. Even a public school teacher is a person in authority under CA 578 amending Article 152. So is the town municipal health officer, or a nurse, a municipal councilor or an agent of the B I R . •

Relate this circumstance to the crime of direct assault. The circumstance of contempt of or insult to public authorities requires that the public- authority is engaged in the discharge of his duties and the offender knows that he is a public authority. This is an aggravating circumstance because it shows disrespect of the offender in the commission of the crime notwithstanding the presence of public authority. If the public authority is a person in authority or an agent of person in authority as the term is used in A r t i c l e 152, the crime committed against him is direct assault and as such, this aggravating circumstance will be deemed absorbed because it is inherent thereto. (See Article 62, no. 2)

Age, sex, rank, dwelling •

What are the common factors with regard to the circumstances of "insult or lack of regard due to the offended party by reason of age, sex, or rank or the crime is committed in the dwelling of the offended party"? These four circumstances show lack of respect to the offended. There must be proof that offender deliberately

168


intended to offend or insult the offended. These circumstances cannot co-exist with ion or obfuscation where the offender lost his control or reason. They are considered in crimes against persons, security, or honor but not in crimes against property. T h e circumstance of sex is not considered in crimes where being a woman is an element thereof as in parricide, rape, abduction, or seduction. T h e circumstance of disregard of the respect due the offended party on of his rank is unavailing. There is no showing that appellants intended to deliberately offend or insult the rank of the victim, which is the essence of said aggravating circumstance. This is so because the raiding police officers w e r e not even in uniform. (People u. Verchez, G.R. No. 82729-32, June 1994) What is the rationale for these aggravating circumstances? Those generally considered of high station in life, on of their rank, age or sex, deserve to be respected. Therefore, whenever there is a difference in social condition between the offender and the offended party, any of these circumstances sometimes is present. (People v. Rodil) What is the meaning of the word "rank" as used in the Article? T h e term "rank" should be given its plain, ordinary meaning, and as such, refers to a high social position or standing such as a grade in the armed forces; or to a graded official standing or social position or status; or to the order or place in which said officers are placed in the army and navy in relation to others; or to the designation or title of distinction conferred upon an officer in order to fix his relative position in reference to other officers in matters of privileges, precedence, and sometimes command or by which to determine his pay and emoluments as in the case of army officers; or to a grade or official standing, relative position in civil or social life, or in any scale of comparison, status, grade, including its grade, status, scale of comparison within a position, (id.) Give examples of cases where rank aggravated the crime committed.

169


1.

The killing of a staff sergeant by his corporal (People v. Mil, 92 SCRA 89)

2.

The killing of the Assistant Chief of Personnel Transaction of the CSC by a clerk (People v. Benito, 62 SCRA 351)

3.

The murder by a pupil of his teacher (People v. Aragon, 107Phil. 706)

4.

The murder of a municipal mayor (People v. Lopez de Leon, 69 Phil. 298)

5.

The murder of a city chief of police by the chief of the secret service division (People v. Hollero, 88 Phil. 167)

6.

Assault upon a 66-year old Judge of the C F I by a justice of the peace (People v. Torrecarreoni, CA 52 OG 7644);

7.

The killing of a Spanish consul by his subordinate (People v. Godinez, 106 Phil. 597) and

8.

The killing of an army general (People v. Torres, L-4642, May 29, 1953)(id.)

What consideration affects the appreciation of rank? The charge should not include rank as an element thereof. If the accused were charged with the complex crime of murder with assault against an agent of a person in authority, and not merely murder, then the aggravating circumstance of disregard of rank or contempt of or insult to public authority cannot be appreciated as aggravating because either circumstance is inherent in the charge of assault against a person in authority. If the accused is charged of murder only, then, either aggravating circumstance should be considered in the imposition of the penalty, (id.) Is the mere fact that the victim of the offense is a female an aggravating circumstance of disregard of sex? N o . It must also be shown that the offender specially saw to it that his victim would be a woman. T h e aggravating circumstance of sex is not sustained by the fact that the victim was a woman, unless it further appears that aside from the unlawful taking of her life, there was in the commission of the crime some specific insult or disrespect shown to her womanhood. (People v. Ursal, 121 SCRA)

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To what crimes do this group of circumstances pertain? T h e circumstance of insult or in disregard of the respect due the offended party can be appreciated only in crimes against person or honor — not in the special complex crime of robbery with homicide which is a crime against property. (People v. Paraiso, G.R. No. 127849, November 29, 1999) To be appreciated, it should be clearly demonstrated that the accused deliberately intended to act with insult or in disregard of the respect due the victim on of his rank. That the accused was cognizant of the rank of the deceased police officer or that he articulated hatred against all policemen in general does not by itself suffice to prove this aggravating circumstance. Does age pertain only to old age? N o , but it includes tender age. J V was barely six years old when ruthlessly stabbed 14 times before his body was submerged in the pail. It was error not to have considered his age as an aggravating circumstance. (People v. Lapan, G.R. No. 88300, July 6, 1992) What is included in dwelling? "Dwelling" includes dependencies, staircase, and enclosures under the house. It is not necessary that the house is owned by the offended. It may include a room in a boarding house, for home is that which the law seeks to protect or uphold whether the dweller is a lessee, a boarder or a bed spacer. A dwelling must be a building or structure, exclusively used for rest and comfort. W h e r e the crime was committed in a store, which is about 15 meters away from the complainant's house, dwelling cannot be considered. T h e store cannot be considered a dwelling or even a dependency of complainant's home. (People v. Joya, G.R. No. 79090, October 1, 1993) As dwelling must exclusively be used for rest and comfort, a combination store and dwelling is not a "dwelling" as used in the law. Why is dwelling (morada) an aggravating circumstance? The reason is that it reveals the offender's greater perversity in deliberately invading the tranquility of one's domicile. 171


The trial court erred in disregarding morada inasmuch as the crime took place and was committed by the accused in the house of the victims. The accused showed greater perversity in his deliberate invasion of the tranquility and privacy of P F s domicile. (People v. Lapan, G.R. No. 88300, July 6, 1992) To what situations is the circumstance of dwelling appreciated? The commission of the crime in the dwelling of the offended party who has not given any provocation is an aggravating circumstance. (People v. Banez, September 1992) In abduction and illegal detention, where the offended party is taken from his house, dwelling may be taken into as an aggravating circumstance. (People v. Grefiel, G.R. No. 77228, November 13, 1992) Dwelling should be taken into in the imposition of the proper penalty because robbery with homicide can be committed without necessarily transgressing the sanctity of the home. (People v. Delos Reyes, October 1992) Dwelling is aggravating since that the assailants w e r e in the sanctity of the victims' own home — which is perhaps the last bulwark of their safety. An unsuspecting knock on the door betrayed that trust of peace in the family who w e r e only conversing. Dwelling is aggravating when a crime is committed in the dwelling of the offended party who has not given provocation. Provocation in dwelling must be: ( a ) given by the offended party; (b) sufficient; and (c) immediate to the commission of the crime. (People v. Tiguman, supra) Must the offender enter the dwelling of the victim? N o . Although the triggerman fired the shot from outside the house, his victim was inside. For dwelling to be considered, it is not necessary that the accused should have entered the dwelling of the victim to commit the offense; it is enough that the victim was attacked inside his own house, although the assailant may have devised means to perpetrate the assault from without. Although the attack was made not from inside the house but from below the floor of the house, dwelling may be considered as attending the shooting, as in fact, the target victim was hit inside his own house. (People v. Dacibar, G.R. No. 111286, February 17, 2000) 172


BB was at the main door when he called W W . When WW refused to go with B B , it was there that he forced WW to go with him. WW was abducted while she was still in her house. Thus, dwelling may be appreciated considering that it is not necessary that the accused should have entered the dwelling of the victim. (People v. Magat, G.R. No.) •

When is dwelling not aggravating? Dwelling is not aggravating if the offended has given provocation or if both the offended and the offender live there or if inherent in the crime such as those which could be committed in no other place (tres to dwelling, robbery in an inhabited place). It is not appreciated separately as it is absorbed in treachery. (People v. Catapang, G.R. No. 128126, June 25, 2001)

Abuse of confidence •

What are the requisites of abuse of confidence/obvious ungratefulness? a.

T h e offended had trusted the offender;

b.

T h e offender abused such trust; and

c.

Such abuse of confidence facilitated the commission of the crime.

For abuse of confidence to exist, it is essential to show that the confidence between the parties must be immediate and personal as would give the accused some advantage or make it easier for him to commit the criminal act. The confidence must be a means of facilitating the commission of the crime, the culprit taking advantage of the offended party's belief that the former would not abuse said confidence. (People v. Arojado, 350 SCRA 679) Palace of Chief Executive •

Is performance of public function necessary in the appreciation of the aggravating circumstances in paragraph 5 of Article 14? Only in the third circumstance — where public authorities are engaged in the discharge of their duties — is performance 173


of function necessary. The other three circumstances require merely that the crime be committed in the places specified — in the palace of the Chief Executive, in his presence, or in a place dedicated to religious worship. It is necessary though that the offender must have sought the above places for the commission of the crime which shows his lack of respect for the places enumerated. Nighttime (Nocturnity) •

What is nocturnity and when is it aggravating? Nocturnity or nighttime, by and of itself, is not an aggravating circumstance. It becomes so only when it is especially sought by the offender, or taken advantage by him to facilitate the commission of the crime or to ensure his immunity from capture. If there was no proof that nighttime was deliberately sought by the accused in committing the crime, said circumstance should be disallowed. (People v. Pasiliao, G.R. No. 98152-53, October 26, 1992) Nighttime is appreciated as an aggravating circumstance, when:

•

(a)

Nighttime was especially sought by the offender;

(b)

It was taken advantage of by him;

(c)

It facilitated the commission of the crime by insuring the offender's immunity from capture; and

(d)

T h e place where the crime was committed was not illuminated. (People v. Espina)

What time period is covered by nocturnity? "Nighttime" is the period from sunset to sunrise. T h e crime must be committed exclusively at nighttime and not commenced at daytime because it is necessary that the time was especially chosen by the offender to commit the offense.

•

Is the commission of the offense at night per se aggravating? N o . Nocturnity cannot be considered where the prosecution established no more than the simple fact that the crime was committed at night. W h i l e nighttime must be deliberately sought in the perpetration of the crime, a close 174


examination of the records shows no factual that the appellants deliberately considered the cover of darkness as an indispensable factor in assaulting A A . (People v. Ferrer) •

What are the two tests for the appreciation of nocturnity? T h e objective test — that nocturnity facilitated the commission of the crime and the subjective test — that it was purposely sought by appellants in order to afford impunity. It is error to accept nocturnity as aggravating for during the incident the moon was shining brightly. T h e light was bright enough to see what was going on and to recognize the assailants. It, therefore, does not qualify as an aggravating circumstance under either the subjective or objective tests. (People v. Bigcas, G.R. No. 94534, July 2, 1992)

•

What factors will disallow nighttime as aggravating? W h e n nighttime is neither especially sought by the offender nor taken advantage of by him to facilitate the commission of the crime by ensuring the offender's immunity from capture. It is not especially sought when the notion to commit the crime was conceived only shortly before its commission or when the crime was committed at night upon a mere casual encounter. Here, other than the time of the crime, there is nothing else to suggest that accused deliberately availed or took advantage of the circumstance of nighttime. (People v. Labrador, G.R. No. 126787, May 24, 1999)

•

Is nighttime a qualifying circumstance? Nighttime is not qualifying under Article 248. (People v. Valeriano) It is absorbed in treachery if it is part of the treacherous means to insure execution of crime, otherwise nighttime is to be considered separately but as generic aggravating. (People v. Ong, January 1975)

Uninhabited Place •

What determines whether a place is uninhabited? T h e uninhabitedness of a place of locus delicti is determined not solely by the distance of the nearest house to the 175


scene but also whether or not in the place of the commission of the offense, there was reasonable possibility of the victim receiving some help. A place where there are no people or any number of houses within a perimeter of 200 meters is uninhabited. It is not only the distance to the nearest occupied habitation but also the possibility of securing assistance that should be considered. (People v. Balisteros, G.R. No. 110289, October 7, 1994)

Band •

What comprises a band (cuadrilla)? Band consists of: a.

More than three (four or more persons);

b.

A r m e d malefactors (bad elements, not males; at least four must be armed);

c.

Acting together in the commission of an offense (presupposing the presence of conspiracy.)

A crime is deemed committed by a band w h e n more than three armed malefactors acted together in the commission of the offense. (People v. Robiego, November 1993) •

Compare band under Article 14 and under Articles 295 and 296. Under Article 14, band is a generic aggravating circumstance whereas under Articles 295 and 296 it is a qualifying circumstance. T h e latter articles apply only to robbery with unnecessary violence or physical injuries under Article 263, paragraphs 2, 3, and 4 in relation to Article 294, paragraphs 3, 4 and 5. Article 294 enumerates five classes of robbery with violence against or intimidation of persons and prescribes the corresponding penalties. Article 295 provides that when the offenses described in subdivisions 3, 4, and 5 of Article 294 are committed by a band, the proper penalties must be imposed in the maximum period. Band is therefore qualifying only in robbery punished by subdivisions 3, 4, and 5 of Article 294. Consequently, Article 295 is inapplicable to robbery with homicide, rape, intentional mutilation, and lesiones graves resulting in insanity, imbecility, impotency or blindness. If the rob-

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bery in Article 294(1) and (2) are perpetrated by a band, they would not be punishable under Article 295, but then cuadrilla would be generic aggravating under Article 14. Hence, with the present wording of Article 295, there is no "robbery with homicide in band." If robbery with homicide were committed by a band, the indictable offense is "robbery with homicide" under Article 294(1), but band would be appreciated as an ordinary aggravating circumstance. (People v. Apduhan, Jr., G.R. No. L-19491, August 30, 1968) Under Article 14(6), a crime is deemed committed by a band when more than three armed malefactors acted together in the commission of the offense. In this case, there were only three culprits. T h e trial court incorrectly characterized the crime as robbery in band with homicide. It has not been shown that more than three persons perpetrated the crime. T h e crime committed is therefore the special complex crime of robbery with homicide. (People v. Robiego, November 1993) •

When is band not appreciated? T h e trial court erred in finding the presence of the aggravating circumstance of band. T h e circumstance that the crime was committed with the use of a deadly weapon or by two or more persons was already taken into when the law imposed the penalty of reclusion perpetua to death for such offense. (People v. Villagracia, G.R. No. 94311, September 14, 1993)

•

When conspiracy is proved, can band be appreciated? Y e s , because conspiracy is not an aggravating circumstance but a means to commit a crime. Hence, one cannot absorb the other.

Calamity or Misfortune •

To what does "other calamity or misfortune" refer? It refers to events similar in nature as conflagration, shipwreck, earthquake or epidemic. It cannot refer to "acts of men" because they are different from the events enumerated. Under the principle of "ejusdem generis," where general such as "other calamity or misfortune," follow the enumeration 177


of particular things, the general term will include only those classes of things or persons of the same class or nature as those mentioned in the preceding enumeration. •

Distinguish paragraph 7 from paragraph 12 of Article 14. Paragraph 12 refers to the means in the commission of the crime; paragraph 7 refers to the occasion or during any of the calamities mentioned when the crime is committed. These circumstances are aggravating because these are indicative of the greater perversity of the offender, who, instead of lending aid to the victims, adds to their sufferings. The offender should particularly seek the opportunity provided by the calamities mentioned to perpetrate his crime.

Aid of armed men •

What are the elements of aid of armed men? When is it not appreciated? 1.

That armed men or persons took part in the commission of the crime, directly or indirectly; and

2.

That the accused availed himself of their aid or relied upon them when the crime was committed.

A i d of armed men cannot be appreciated when there is conspiracy, accused acting under the same plan and for the same purpose. Hence, they are all principals in the commission of the crime. (People v. Amion, G.R. No. 140511, March 1, 2001) •

Compare "band," "aid of armed men," "organized crime syndicate," "syndicated estafa," and "illegal recruitment in a large scale." 1.

In band and organized crime syndicate, all the are principal; in aid of armed men, the armed men merely aided the principal offender and are accomplices.

2.

In band, there must be at least four armed men; in aid of armed men, their number is not specified nor required as long as there is more than one; in organized crime syndicate, there must be at least two who are not required to be armed.

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3.

In band and aid of armed men, the crimes are not specified; in organized crime syndicate, the purpose is to commit crimes for gain.

Syndicated estafa under P . D . 1689 is different from organized crime syndicate under Article 62 ( l a ) . T h e former requires at least five whereas the latter needs only two. Illegal recruitment in a large scale requires that it be committed by at least three offenders. Habituality •

What are the different forms of habituality? T h e y are recidivism (Article 14, no. 9), reiteration (Article 14, no. 10), habitual delinquency (Article 62, no. 5) and quasirecidivism (Article 160).

•

W h o is a recidivist? A recidivist is one who: a.

At the time of his trial for one crime;

b.

Shall have been previously convicted by final judgment;

c.

Of another crime embraced in the same title of the R P C .

Recidivism requires at least two convictions: the first must be by final judgment and must take place prior to the second conviction. Both must be felonies embraced in the same title of the R P C . "Final judgment" means executory, i.e., 15 days have elapsed from its promulgation without the convict appealing the conviction. (See Article 89) •

What is the nature of recidivism? Recidivism is a generic aggravating circumstance. There is no specific period between the prior conviction and the second conviction. Recidivism can be appreciated even if the convict was given absolute pardon, as pardon extinguishes the penalty only but not the effects of the offense.

•

What is required for recidivism to be appreciated? T h e prosecution must allege recidivism in the information and present certified true copy of the judgment of conviction in 179


the other case since the omission to do so is not cured by the failure of the accused to object to such lack of presentation. Recidivism is an affirmative allegation whenever alleged in the information and when the accused enters a plea of not guilty to such information, there is a der of issues not only as to his guilt or innocence but also as to the presence or absence of the modifying circumstances so alleged. (People v. Compendio, Jr., G.R. No. 114002, July 5, 1996) •

What is reiteration? In reiteracion, the offender has been previously punished (has served sentence.) T h e first offense must have been punished with an equal or greater penalty; or he has committed two or more crimes previously to which the law attaches a lighter penalty. It does not require that the offenses be covered under the same title of the R P C . The trial court erred in appreciating reiteracion. This circumstance is not alleged in the information. T h e prosecution did not prove it. Upon cross-examination of the accused by the Prosecutor, over the objection of the defense counsel, the only information elicited is that the accused had earlier been convicted for the crime of homicide, had served the sentence and had later been released. T h e fact of his being out on parole was brought out upon questioning by the court after the termination of the crossexamination. Besides, for the same to exist, it is necessary that the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty. Appellant was earlier convicted of homicide which is punishable by reclusion temporal. That penalty is not equal or greater but is definitely lower than that provided for rape which is reclusion perpetua. (People v. Race, Jr., G.R. No. 93143, August 4, 1992)

•

Distinguish recidivism from reiteracion. RECIDIVISM 1.

Antecedent

Previous conviction by final judgment

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REITERACION Service of sentence


2.

Offenses

Under the same T i t l e N e e d not be a of the R P C (felony) felony nor under the same Title

3.

Penalty

No requirement as to Prior crime must penalty imposed in have been penalized the prior conviction with an equal or greater penalty or two or more crimes was lighter penalty

What is habitual delinquency? Habitual delinquency is a special aggravating circumstance for which is imposed an additional penalty which escalates with the increase in the number of convictions. A person is a habitual delinquent if: a.

W i t h i n a period of 10 years from his release or last conviction;

b

Of the crimes of falsification, robbery, estafa, theft, serious or less serious physical injuries;

c.

He is found guilty of said crimes a third time or oftener.

T h e law requires three convictions. The third conviction for the covered crimes must be committed within 10 years from the second conviction. T h e 10-year period is counted from the date of release if he had been released when again convicted. This is a special aggravating circumstance because it is not included in Article 14. It is not an "ordinary" special aggravating circumstance because its effect is to impose an incremental penalty, that is, an additional penalty to that imposed for the crime actually committed. T w o penalties shall therefore be imposed — for the crime committed and for the habitual delinquency. T h e penalty for the habitual delinquency escalates with the number of conviction. It is not also a qualifying circumstance because although the increase in the penalty is significant, it does not change the nature of the offense committed.

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It is in effect a crime by itself because it has its own penalty. An offender can be a recidivist and a habitual delinquent at the same time if he were convicted for the third time of the crimes of estafa, robbery and theft which are all within T i t l e 10 or for serious and less serious physical injuries which are within Title 8. Distinguish between Recidivism and Habitual Delinquency. RECIDIVISM

HABITUAL DELINQUENCY

1. Convictions

T w o are enough

Three are required

2. Crimes covered

Must be both under the same T i t l e of the Code

Falsification, robbery, estafa, theft, serious and less serious physical injuries

3. Prescription

None as no time Prescribes after 10 limit given by law years between the 2 between the 1 and 3 convictions and 2 convictions st

n d

rd

n d

4. Nature

Generic; can be offset by ordinary mitigating circumstance

Special circumstance; cannot be offset

5. Penalty

Increase is to the M a x i m u m period

Entails additional penalty which increases with the number of convictions

What is Quasi-recidivism? Quasi-recidivism is a special aggravating circumstances wherein the offender has been previously convicted by final judgment and before beginning to serve such sentence, or while serving the same he committed a felony. It is not offset by ordinary mitigating circumstance.

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T h e new crime committed before or during service of sentence must be a felony. It has been held the felony need not be similar as the felony to be served or being served. Article 16 specifies that quasi-recidivism is in addition to habitual delinquency because of the opening phrase "Besides the provisions of Rule 5 of Article 62." T h e effect is to penalize the convict with the maximum period for the new felony committed before or during the service of sentence. If: (1) in the service of the first conviction, he reached the age of 70; or (2) he shall complete the service of the original conviction after that age, he shall be pardoned, unless he is a habitual criminal or his conduct or other circumstances show that he is not worthy of pardon. Price, Promise, Reward •

W h o are affected by the circumstance of price, promise, or reward? T h e y affect principal by direct participation who committed the crime for consideration. The other co-conspirators if there be any who did not benefit from the price, promise or reward will not have his penalty aggravated because this circumstance is personal to the receiver. T h e reward is the primary consideration in the commission of the crime for this circumstance to be aggravating.

Inundation, Fire, etc. •

Relate the circumstances of inundation, fire, poison, explosion, etc., with paragraph 1 of Article 62. These circumstances by themselves constitute a crime, hence, Article 62(1) shall apply. Thus, "aggravating circumstances which in themselves constitute a crime specially punished by law or which are included by the law in defining a crime and prescribing the penalty therefor shall not be taken into for the purpose of increasing the penalty." If one of these circumstances was a means to kill, the crime is murder, not homicide, hence, the penalty will be for murder. The circumstance will no longer be considered aggravating.

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Evident Premeditation •

What is evident premeditation? What are its elements? Evident premeditation indicates a stubborn adherence to a decision to commit a felony. It requires a showing of: (1) a previous decision by the accused to commit the crime; (2) overt act[s] manifestly indicating that the accused clung to his determination; and (3) a lapse of time between the decision to commit the crime and its actual execution sufficient to allow the accused to reflect upon the consequences of his acts. Evident premeditation connotes adherence to a plan to commit a crime. Returning to the scene of an earlier fight four hours later does not establish these elements. M e r e lapse of time is not equivalent to evident premeditation. It cannot be appreciated to qualify a killing to murder in the absence of evidence, not only of sufficient lapse of time, but also of the planning and preparation to kill when the plan was conceived. (People v. Nell) Otherwise stated, its elements are:

»

a.

T h e T I M E when the offender determined to commit the crime;

b.

An A C T manifestly indicating that he has clung to his determination; and

c.

Sufficient L A P S E of time between such determination and execution to allow him to reflect upon the consequences of his act.

What is the essence of evident premeditation? The criminal act must be preceded by cool thought and reflection of the resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment. Hence, it must be shown when the plan to execute the crime was hatched or what time elapsed before it was carried out. Evident premeditation means that a period sufficient in a judicial sense to afford full opportunity for meditation and reflection and sufficient to allow the conscience of the actor to overcome the resolution of his will if he desires to hearken to

184


its warnings has elapsed. In one case, 3 1/2 hours from the plan to the commission of the crime is sufficient time for the accused to disionately reflect upon the consequences of his act or to desist from its execution. •

When is evident premeditation not appreciated? W h e n it is an inherent element of a crime because then, it had already been considered by the law when it prescribed the penalty. (Article 62, paragraph 2) T h e r e is no evident premeditation if the attack was made in the heat of anger or the meeting of the accused and the victim was a chance encounter and not sought on purpose. T h e appellant did not even know the victim and vice versa prior to their confrontation at the place of the shooting incident. T a i l i n g the victims is not an overt act that reflects his determination to kill the victim. Appellant followed the jeep in order to arrest the women whom he suspected to be prostitutes. (People v. Peralta, G.R. No. 128116, January 24, 2001) Evident premeditation is not inherent in robbery with homicide. T h e premeditation must relate to the killing and not to the robbery. (People v. Manansala, G.R. No. 88752, July 3, 1992)

•

What evidence is required to establish evident premeditation? Evident premeditation must be clearly proven, established beyond reasonable doubt and must be based on external acts which are evident, not merely suspected, and which indicate deliberate planning. (People v. Florida, September 1992) W h e n there is no direct evidence of the planning and preparation to kill or when the plan was conceived, evident premeditation cannot be considered. The information that EW heard that AA was "hunting" him because of competition over a girl is not sufficient proof of evident premeditation. (People v. Wenceslao, G.R. No. 95583, August 12, 1992) Evident premeditation may not be appreciated against the accused, absent proof as to how and when the plan to kill was hatched or what time elapsed before it was carried out. (People v. Mallari, G.R. No. 94299, August 21, 1992) 185


Proof of alleged resentment does not constitute conclusive proof of evident premeditation. (People v. Padama, G.R. No. 132137, October 1, 1999) •

What is the relationship between conspiracy and evident premeditation? Under normal conditions, where conspiracy is directly established, with proof of the attendant deliberation and selection of the method, time and means of executing the crime, the existence of evident premeditation can be taken for granted. But in implied conspiracy, it may not be appreciated, in the absence of proof as to how and when the plan to kill the victim was hatched or what time elapsed before it was carried out, so that it cannot be determined if the accused had "sufficient time between its inception and its fulfillment disionately to consider and accept the consequences." There should be a showing that the accused has the opportunity for reflection and persisted in effectuating his criminal design. Absent such showing, this circumstance should be rejected. (People v. Manansala, G.R. No. 88752, July 3, 1992) Proof of conspiracy does not imply the existence of evident premeditation. It can be presumed only where conspiracy is directly established, not where conspiracy is only implied. (People v. Padlan, G.R. No. 111263, May 21, 1998)

Craft, Fraud, Disguise •

Distinguish among craft, fraud and disguise. Craft is cunning or intellectual trickery or chicanery resorted to by the accused to carry out his evil design. Example: The offender assumed position of authority to gain entry in a house; or feigning friendship to lure a victim to an uninhabited place. Fraud constitutes deceit and is manifested by insidious words or machinations. Disguise is resorted to conceal the identity. If in spite of the disguise, the offender was recognized, such cannot be aggravating. These circumstances are not aggravating if they did not facilitate the commission of the crime or not taken advantage of by the offender in the course of the assault. If they w e r e used to insure the commission of the crime against persons without risk to offender, they are absorbed by treachery. 186


Abuse of superior strength or means taken to weaken the defense •

When is there abuse of superior strength? T h e r e is abuse of superior strength where the offenders intentionally and purposely employ excessive force out of proportion to the means of defense available to the offended party. T h e r e must be a notorious inequality of forces between the victim and the aggressor. Superiority in number does not necessarily mean that the offenders abused their superior strength or that means are employed to weaken the defense. It must be proved that the attackers cooperated in such a w a y as to secure advantage from superiority of strength.

•

Cite examples of abuse of superior strength. 1.

T h e aggressors, who w e r e all armed, first hit the legs of their unarmed victim, causing the latter to fall kneeling; then, stabbed him above the knee; and, having deprived him of his means to stand or run, took turns in inflicting mortal wounds on him. (People v. Apelado, G.R. No. 114937, October 11, 1999)

2.

An attack by a man with a deadly weapon upon an unarmed and defenseless woman is abuse of superior strength which his sex and weapon afforded him. (People v. Olivo, G.R. No. 130335, January 18, 2001)

3.

W h e n the attack was not made with alevosia, the number of the assailants and the simultaneity of the attack upon a defenseless person may constitute abuse of force. By reason of the synchronal attack on the victim by the two armed persons, they cooperated and intended to use or to secure advantage from the superiority of their combined strength. This is manifest where the victim was unarmed and was trying to flee while the two felons were armed and used their weapons in perpetrating the crime. (People v. Alacar, G.R. No. 64725-26, July 10, 1992)

4.

Three persons assaulted the victim inside his house and the appellant stabbed the deceased while firmly held by the two companions. Treachery cannot be appreciated

187


because it is deemed included in abuse of superior strength, (id.) •

When is abuse of superior strength not appreciated? It is not taken into if the assault was characterized with ion or obfuscation or made during a quarrel or when the attack was made on the victim alternately and not simultaneously. (People v. Pablo, G.R. No. 120394-97, January 16, 2001) It is inherent in parricide as generally, the husband is stronger than the wife. It is inherent in rape or is absorbed in the element of force hence, it is already taken into in fixing the penalty. This circumstance absorbs band. L i k e the circumstance of "means taken to weaken the defense," this circumstance has the same essence, which is the utilization of the combined strength of the assailants to overpower the victim. Superior strength is not appreciated by mere superiority in the number of the malefactors, but by the deliberate employment of excessive force, which is out of proportion to the means of defense available to the person attacked. N o t e also that the victim was not alone. (People v. Nell)

Treachery (Alevosia) •

What is treachery? What are its preconditions? Treachery exists when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and especially to insure its execution, without risk to himself arising from the defense which the offended party might make. T h e offender must: (1) insure that the offended at the time of the attack was not in a position to put up any defense, not even token defense; and (2) the means, manner, and form was consciously and deliberately chosen. (People v. Magallanes, August 1997) T h e means, methods or forms of the execution of the crime must be consciously adopted because the law requires that the same insure its execution. T h e attack must be intended to facilitate the perpetration of the killing without risk to the offender from a defense that the other party might offer. 188


What is the essence of treachery? Its essence is the swiftness and the unexpectedness of the attack upon the unsuspecting and unarmed victim, who does not give the slightest provocation. T h e fact that CJ was facing accused at the same moment as the latter's attack did not erase its treacherous nature. Even if the assault were frontal, it was sudden or totally unexpected, thus giving the victim no opportunity at all to defend himself or to retaliate, definitely points to the presence of treachery. (People v. Rebamontan, G.R. No. 125318, April 13, 1999) When is treachery appreciated?

sudden and unexpected. frontal = general rule, no treachery.

An attack upon an unconscious victim who could not have put up any defense whatsoever; where the victim is a child of tender age and the assailant is an adult and therefore the child is helpless to put up any defense at all; where the victim was hogtied and therefore in a helpless condition before he was killed; where the victim was totally unconscious, dead drunk, lying on the pavement when accused istered strong, vicious and killing kicks at the belly of the victim. Totally unconscious, the victim could not have put up any defense whatsoever against the sudden assault by the accused. There was absolutely no risk to accused from any defense that the victim might have made. (People v. Flores, supra) When is treachery not appreciated? There is no treachery if the attack is an impulse of the accused or when the killing is due to ion or when the accused did not make any preparation to kill the deceased so as to insure the commission of the crime. It was not shown that there was that swift and unexpected attack of an unarmed victim, which is the essence of treachery. T h e victims were not defenseless, since they too were armed. RR had a 6o/o, while MM had a slingshot with darts. The sight of the accused at a distance must have sufficiently warned the them of the accused and their intentions; that was why they tried to evade them. Thus, an important condition has not been proved: that the means of execution employed was deliberately and consciously adopted so as to give the person attacked no opportunity to defend himself or to retaliate. (People v. Padlan) 189


The shooting was done at the spur of the moment. The victim had shouted damning curses at the driver and the engers of the jeepney. The shooting was an instantaneous response to the cursing. Treachery cannot be appreciated where the accused shot the victim as a result of a rash and impetuous impulse rather than from a deliberate act of the will. (People v. Acuram, G.R. No. 117954, April 27, 2000) There is no evidence that the appellant made preparation to kill the victim in such a manner as to insure the execution of the crime or to make it impossible or difficult for DD to defend himself or retaliate. T h e appellant shot the victim when he was peeved by DD's failure to give him duck eggs. T h e shooting was perpetrated at the spur of the moment. A killing done at the spur of the moment is not treacherous. (People v. Badajos, G.R. No. 139692, January 15, 2004) No one saw the killing or how it commenced. In the absence of any witness, the manner and mode of attack employed by accused could not be established with certitude. Treachery cannot be deduced from mere presumptions. (People v. Pagador, G.R. Nos. 140006-10, April 20, 2001) Can treachery be present in a chance encounter? N o . W h e r e the meeting between the accused and the victim was casual and the act was done impulsively, there is no treachery even if the attack was sudden and unexpected and while the victim was running a w a y with his back towards the accused. T h e accused could not have made preparations for the attack and the means, method and form thereof could not have therefore have been thought of by the accused, because the attack was impulsively done. Treachery cannot be presumed from the mere suddenness of the attack or from the fact that the victim was stabbed with his back towards the appellant. T h e suddenness of an attack does not of itself suffice to a finding of alevosia even if the purpose was to kill so long as the decision was made all of a sudden and the victim's hapless position was accidental. From the reaction of RR in running a w a y from the EE brothers the moment he saw them, he was not completely unaware that the accused posed a danger to him. This necessarily put him

190


on guard, with the opportunity to prevent or repel a possible assault. (People v. Escoto, G.R. No. 91756, May 11, 1995) T h e suddenness of attack must be preconceived by the accused, unexpected by the victim and without provocation on the part of the latter. Accordingly, chance encounters, impulse killing or crimes committed at the spur of the moment or that were preceded by heated altercations are generally not attended by treachery for lack of opportunity of the accused to deliberately employ a treacherous mode of attack. (People v. Abapo, 239 SCRA 469) •

M a y treachery be appreciated if the victim was warned of the danger? Y e s , for what is decisive is that the execution of the attack made it impossible for the victim to defend himself or retaliate. (People v. Landicho)

•

From whom should the "retaliation" in treachery come? T h e "retaliation" relevant in the appreciation of treachery must come from the victim, not from anyone else. That the site of the crime was heavily populated where others could thus intervene is not significant at all. (People v. Costelo, G.R. No. 134311, October 13, 1999)

•

At what stage in the attack must treachery exist? To appreciate treachery in a continuous aggression, the same must be present at the inception of the attack. Where the prosecution failed to definitively establish the manner in which the initial assault against the deceased victim was committed to justify the appreciation of treachery, this hiatus in the evidence cannot be substituted by mere suppositions. Treachery must be proved by clear and convincing evidence, or as conclusively as the killing itself. The shooting of peace officers, who were fully aware of the risks in pursuing the malefactors, when done in a spur of the moment, can hardly be characterized as treacherous where it was nowhere proved that the same was deliberately adopted to deny the victim the opportunity to defend himself. (People v. Porras)

191


Where the lone witness was not able to observe the commencement of the assault, he could not testify on how it all began and developed. Absent any particulars as to the manner in which the aggression commenced or how the act which resulted in the death of the victim unfolded, treachery cannot be appreciated to qualify the killing to murder. (People v. Lugaw, G.R. No. 85735, January 18, 1994) In order that alevosia may be considered as qualifying circumstance to raise the classification of the crime, or as an aggravating circumstance to augment the penalty, the treacherous acts must be present and preceded the commencement of the act which caused the injury complained of. After the commencement of such an attack, and before its termination, an accused may have employed means or methods which were of a treacherous character, and yet such means or methods would not constitute alevosia. One continuous attack cannot be broken up into two or more parts and made to constitute separate, distinct and independent attacks so that treachery may be injected therein, and considered as qualifying or aggravating circumstance. T h e second blow delivered on the victim when he was in such a position where he could not have defended himself cannot constitute treachery. Treachery must be present from the commencement of the attack. (People v. Peran, G.R. No. 95259, October 26, 1992) When the manner of the attack is not shown, does the fact that the wound is at the back show treachery? N o . T h e presence of treachery may not be simply assumed from the mere fact that the fatal wounds were found at the back of the deceased. In the absence of proof as to the manner the victim was attacked, the killing could not be considered as qualified by treachery. W h e r e no particulars are known as to the manner the aggression was made or how the act resulting to the death of the victim began and developed, it could not be established by mere suppositions that the accused perpetrated the killing with treachery. Being a qualifying circumstance, treachery must be proved as convincingly as the crime itself. Treachery cannot be presumed but must be proved by clear and convincing evidence, as conclusively as the killing itself. (People v. Borreros, May 1999) 192


•

When will a frontal attack constitute treachery? Generally, a frontal attack is not treachery. But when the attack although frontal is sudden and in a manner that tends directly and especially to insure its execution free from danger and without risk to oneself on of what the victim might make to defend himself, there is treachery. W h i l e even a frontal attack can be treacherous, as when it is sudden and unexpected and the victim is unarmed, where it appears that the aggressors did not employ means tending directly and especially to insure the execution of the crime without risk to themselves arising from the defense which the offended parties might make, there is no treachery. T h e assailants attacked a group of six individuals who could have been armed. It is highly probable that at least one of those attacked could offer resistance and could put the lives of the aggressor in danger. (People v. Amaguin, G.R. Nos. 54344-45, January 10, 1994)

•

What is the nature of treachery as an aggravating circumstance? It is a special aggravating circumstance in the sense that it applies only to crimes against persons. It is a qualifying circumstance in murder. In serious physical injuries, it is a specific aggravating circumstance. In less serious physical injuries it is a generic aggravating circumstance. It is usually given preference over other qualifying circumstances which then become generic. Since treachery is included in Article 14, it is a generic aggravating circumstance for crimes other than killing. It will only assume the form of a qualifying circumstance to upgrade killing to murder if it is alleged and proved. Treachery absorbs both nighttime and taking advantage of superior strength in the light of the circumstances of this case. Considering that treachery qualifies the killing of the four victims, the accused is guilty of four counts of murder. (People v. Bechayda, G.R. No. 72001, August 7, 1992) •

What proof is required if treachery is to qualify homicide to murder?

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It must be proved as convincingly as the crime itself for treachery cannot be presumed. It cannot be inferred just from the location of the wound because the evidence should show the manner of the attack and how the victim reacted thereto. But if the victim is a child of tender age, there is treachery even if the manner of the attack is not shown for a child cannot put up a defense against an adult assailant. Treachery changes the nature of the offense and increases tremendously the penalty. Homicide is penalized with reclusion temporal (12 years and 1 day to 20 years); murder, reclusion perpetua (20 years and 1 day to 40 years). In effect, treachery carries another reclusion temporal, hence, the requirement that it should be proved as convincingly as the crime itself. •

How is the allegation of "minor" in the information understood? The allegation that the victims are minors is compliance with the rule. It is commonly understood that when the victim in physical injuries, homicide or murder is a child of tender years, he is described in the information as a minor. Minority in such cases should not be equated with its statutory meaning — below 18 years of age. It is used not so much as to state the age of the victim (otherwise, the charging fiscal would have simply placed the exact a g e ) ; rather it is more of a description of the state of helplessness of the young victim. T h e information in this case is sufficient to inform the accused that the manner of his attack is alleged to be treacherous and as such he could be liable for murder. T h e killing of an 11-year old child who by reason of his tender years cannot be expected to put up a defense is considered attended by treachery even if the manner of attack is not precisely shown. T h e r e is a blatant inequality of strength between the offender and the victim, but abuse of superior strength cannot be appreciated as it is necessarily absorbed in treachery. (People v. Abuyen)

Ignominy •

What is involved in the circumstance of ignominy? This circumstance pertains to the moral attribute, which adds disgrace to the material injury caused by the crime. It 194


produces more suffering on of its humiliating effects. Ignominy relates to moral suffering whereas, cruelty refers to physical suffering. Ignominy is exemplified by the adage 'adding insult to the injury'; cruelty is compared to 'rubbing salt to the wound.' Ignominy pertains to the moral order, which adds disgrace and obloquy to the material injury caused by the crime. It was not appreciated where the sexual assault was not done to put the victim to shame before the killing. (People v. Diaz, October 1999) Unlawful entry/breaking of wall •

When is there unlawful entry? W h e n an entrance is through a way not intended for that purpose; the opening must be used to enter, not to escape. It qualifies the crime of theft to robbery. It is inherent in the crimes of tres and in robbery with force upon things thus should no longer be aggravating per Article 62, no. 2. Since paragraph 19 states that "as a means to the commission of the crime a wall, roof, floor, door, or window be broken," unlawful entry excludes ingress by means of such breaking.

Aid of minors/use of motor vehicles •

How are these circumstances treated? There are two distinct circumstances here: (1) the commission of crime with the aid of a minor under 15 years of age; and (2) its commission by means of motor vehicles, airships, motorized water craft or similar means. T h e use of a minor in the commission of the offense shows the greater perversity of the offender because he is educating the innocent in committing an offense. Especially so in view of R . A . 9346 exempting 15 year old and below from criminal liability. The use of motorized means of conveyance to commit the crime is penalized because they pose difficulty to the authorities in apprehending them. This circumstance is considered 195


when the motor vehicle was purposely used to facilitate the commission of the offense not when used to escape because the law used the phrase "committed x x x by means of." "Other similar means" should refer to other means of transportation that are similar to motor vehicles such as motorcycles under the principle of "ejusdem generis." Cruelty •

What are required to attend the commission of the cruel acts? To be aggravating there must be evidence to show that the cruel acts were done while the victim was alive and the offender delighted in the suffering of the victim. T h e mere fact that there were numerous stab wounds on the victim will not cause appreciation of cruelty because the offender may be overwhelmed by ion or obfuscation or it may be that the victim was already dead when the stab wounds w e r e inflicted and can no longer suffer pain in excess of that necessary to commit the crime. The test in appreciating cruelty is whether the accused deliberately and sadistically augmented the wrong by causing another wrong not necessary for its commission or inhumanly increased the victim's suffering or outraged or scoffed at his person or corpse. Cruelty cannot be appreciated where the prosecution failed to prove that the accused inflicted the 13 wounds upon the victim in such a w a y that he was made to agonize before they rendered any of the blows which snuffed out his life. T h e accused dealt the victim successive blows so that he must have died instantaneously, considering that nine of his wounds were fatal. (People v. Ferrer)

•

Is the presence of multiple wounds on the victim per se cruelty? N o . There is cruelty when the culprit delights in making his victim suffer slowly and gradually, causing unnecessary moral and physical pain in the consummation of the crime. T h e victim should still be alive when the cruel acts w e r e done. T h e number of wounds alone does not indicate cruelty as it is essential to show that these w e r e inflicted unnecessarily while the victim was alive to prolong his physical suffering.

196


T h e r e is cruelty when the wrong done in the commission of the crime is deliberately augmented by causing another wrong which is not necessary therefor. LL did not deliberately prolong the physical suffering of his victim; his repeated blows show that he intended to kill YY as soon as he could. (People v. Llabres, G.R. Nos. 74294-96, August 4, 1993) In the absence of cruelty, what may be present instead? Assuming that the victim was still alive during the entire period of the ordeal, there could possibly be cruelty since appellants deliberately augmented the wrong they committed. On the other hand, if the victim died immediately after he was stabbed, then appellants could be held to have outraged his corpse when they fiendishly slashed his intestines to pieces. H o w e v e r , neither of these alternative hypotheses was established and, further, the intervening time between the initial attack and subsequent acts was not sufficiently established to enable the Court to determine whether these were one continuous series of acts or w e r e so deliberately spaced as to constitute either cruelty or outrage. (People v. Balisteros) T h e killing was done with cruelty, by deliberately or inhumanly augmenting the suffering of the victim or outraging or scoffing at his person or corpse. No greater outrage, insult or abuse can a person commit upon a corpse than to sever the head from the body. T h e head represents the dignity of the person and any violence directed towards it cannot be interpreted in any other manner than an outrage to his corpse. (People v. Binondo, G.R. No. 97227, October 20, 1992) After the victim was ravished, appellant hacked her, almost splitting her face. Such bestiality is cruelty and perversity, it being unnecessary to its commission and manifestly an outrage on the victim's person. (People v. Nescio, G.R. No. 102008, December 28, 1994)

197

Chapter Five ALTERNATIVE CIRCUMSTANCES A r t . 15. Their concept. — A l t e r n a t i v e circumstances a r e those w h i c h must be t a k e n into c o n s i d e r a t i o n as a g g r a v a t i n g or mitigating a c c o r d i n g to the n a t u r e a n d effects of the c r i m e a n d the other conditions a t t e n d i n g its commission. T h e y a r e the relationship, intoxication, a n d the d e g r e e of instruction a n d education of the offender. T h e alternative c i r c u m s t a n c e of r e l a t i o n s h i p shall be taken into c o n s i d e r a t i o n w h e n the o f f e n d e d p a r t y is the spouse, ascendant, d e s c e n d a n t , legitimate, n a t u r a l , or a d o p t e d b r o t h e r or sister, or relative by affinity in the s a m e d e g r e e s of the offender. T h e intoxication of the o f f e n d e r shall be t a k e n into consideration as a m i t i g a t i n g c i r c u m s t a n c e w h e n the o f f e n d e r has committed a felony in a state of intoxication, if the s a m e is not h a b i t u a l or s u b s e q u e n t to the p l a n to c o m m i t s a i d felony; b u t w h e n the intoxication is h a b i t u a l or intentional, it shall be c o n s i d e r e d as an a g g r a v a t i n g c i r c u m s t a n c e .

•

What are alternative circumstances? They are circumstances, which are either aggravating or mitigating according to the nature and effects of the crime and other conditions attending its commission. T h e y are considered only when they influenced the commission of the crime. W h e n the nature of the circumstance has been proved, they are no longer called alternative circumstances but are denominated as aggravating or mitigating circumstances, as the case may be.

•

What are the three alternative circumstances? T h e y are relationship, intoxication, and degree of instruction and education of the offender. T h e relationship 198

ALTERNATIVE

CIRCUMSTANCES

included are exclusively that of spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister or relative by affinity in the same degrees. Stepparents and stepchildren are included by analogy, but not uncles and nieces for there is no mention of relatives by consanguinity other than those enumerated in the article. Compare the circumstances in Articles 14 and 15. T h e circumstances in Article 14 are per se aggravating whereas those in Article 15 are not for they could be at times mitigating. W h e n the term "aggravating" is strictly construed, it exclusively pertains to Article 14 and excludes Article 15. (People v. Sabredo, G.R. No. 126114, May 11, 2000; People v. Orilla) When is relationship aggravating and when mitigating? T h e R P C is silent as to when relationship is mitigating and when it is aggravating. In crimes against chastity such as acts of lasciviousness, relationship is aggravating. (People v. Marino, G.R. No. 141183, January 18, 2001) However, rape is no longer a crime against chastity but a crime against persons still relationship is aggravating in rape. Article 264 provides that if the injury is inflicted upon the father, mother or child, other ascendants or descendants and spouse, the penalty shall be one or two degrees higher, except when committed against the offender's child due to excessive chastisement, in which case it is not aggravating. When is relationship neither aggravating nor mitigating? W h e n they are elements of the crime, thus, in parricide, relationship is neither mitigating nor aggravating. For abortion practiced by a physician or midwife, their education and scientific skill are inherent in that crime hence no longer aggravating. This is because as an element of the felony, it has already been considered by the law when it prescribed the penalty therefor. Besides, Article 62 states that any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof shall no longer be considered in determining the penalty.

199


If what was charged was murder or homicide instead of parricide, relationship can no longer be considered even if proved because of the requirement of allegation of all aggravating circumstances in the information. •

What is the effect of the amendments by R.A. 7659 on rape? The father-daughter relationship in rape cases has been treated by Congress as a special circumstance. Hence, relationship as an alternative circumstance should no longer be applied in view of the amendments introduced by R . A . 7659. Without the foregoing amendment, relationship would still be aggravating in rape and acts of lasciviousness. (People v. Manhuyod, Jr., G.R. No. 124676, May 20, 1998)

•

When is intoxication mitigating and when aggravating? A person pleading intoxication as a mitigating circumstance must show that: (1) he has taken a quantity of alcoholic beverage prior to the commission of the crime sufficient to produce the effect of obfuscating reason; and (2) he is not a habitual drinker and did not take the alcoholic drink with the intention to reinforce his resolve to commit the crime. (People v. Pinca, G.R. No. 129256, November 17, 1999) T h e offender's mental faculties must be affected by drunkenness. M e r e drinking of liquor prior to the commission of the crime does not necessarily produce a state of intoxication. It is mitigating if it is not habitual, not intentional and selfcontrol is diminished as a result of the intoxication. Otherwise, it is aggravating. Therefore, an alcoholic who commits a felony while intoxicated will always suffer from this circumstance because either habitual or intentional intoxication w i l l suffice as the law used the disjunctive "or" in "habitual or intentional."

•

What should be the degree of intoxication to be mitigating? To be mitigating, the accused's state of intoxication should be proved or established by sufficient evidence. It should be such an intoxication that would diminish or impair the exercise of his willpower or the capacity to know the injustice of his act. T h e accused must then show that: (1) at the time of the commission of the criminal act, he has taken such 200

ALTERNATIVE

CIRCUMSTANCES

quantity of alcoholic drinks as to blur his reason and deprive him of a certain degree of self-control; and (2) such intoxication is not habitual or subsequent to the plan to commit the felony (intentional). (People v. Rabanillo) When is degree of instruction or education considered? Whether to be considered as aggravating or mitigating depends upon the nature of the crime committed. If the crime is basically wrong, such as parricide, robbery or rape, it is immaterial whether the offender is schooled or not. It is not illiteracy alone but the lack of intelligence of the offender that is considered. If one is not considered literate but is highly or exceptionally intelligent or mentally alert or comes from a family of professionals, so that he realizes the significance of his act, there is no mitigation. T h e mitigating circumstance of lack of instruction does not apply to crimes of theft and robbery. (People v. Macatanda) T h e high degree of learning should be taken in relation to the crime committed whether his education puts him in a better position than the ordinary offenders. For instance, falsification or estafa committed by a lawyer. However, the degree of instruction or education may already have been considered in the penalty prescribed such as abortion practiced by physician. In that case, it is not aggravating. L o w degree of education or instruction may be mitigating but is never aggravating; conversely, high degree may be aggravating but never mitigating.

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TITLE TWO

PERSONS CRIMINALLY LIABLE FOR FELONIES A r t . 16. Who are criminally liable. — T h e f o l l o w i n g a r e criminally liable for g r a v e a n d less g r a v e felonies: 1.

Principals.

2.

Accomplices.

3.

Accessories.

T h e f o l l o w i n g a r e c r i m i n a l l y l i a b l e for light felonies:

•

1.

Principals.

2.

Accomplices.

Who are criminally liable? 1.

For grave and less grave felonies: principals, accomplices and accessories.

2.

For light felonies: principals and accomplices; accessories are not liable. L i g h t felonies are punished with arresto menor; accessories are meted with penalty t w o degrees lower than the principal, hence, the logic of the rule. Under Article 9 in relation to Article 25: a.

Grave felonies are penalized with capital punishment or afflictive penalties in any of their periods;

b.

Less grave felonies are meted with penalties which in their maximum period are correctional;

c.

Light felonies carry arresto menor or fine not greater than P200.

A r t . 17. principals:

Principals.

— The

202

following

are

considered

P E R S O N S CRIMINALLY LIABLE FOR FELONIES

1.

T h o s e w h o t a k e a d i r e c t p a r t in the execution of the act;

2.

T h o s e w h o directly force or i n d u c e others to commit it;

3.

T h o s e w h o c o o p e r a t e in the commission of the offense b y a n o t h e r act w i t h o u t w h i c h i t w o u l d not have been accomplished.

Direct participator •

W h o are principals by direct participation? T h e y are those w h o materially execute the crime. They must appear at the scene of the crime and perform acts necessary in the commission of the offense to be liable. In conspiracy by prior agreement, if the principal by direct participation does not appear at the scene of the crime, he is not liable because: a.

Non-appearance is desistance which is favored and encouraged;

b.

Conspiracy is not a crime unless the law specially provides a penalty therefor. By merely conspiring, the co-conspirator has not yet committed any crime.

c.

T h e r e is no basis for criminal liability because there is no criminal participation.

Inducer •

When is an offender a principal by inducement? T h e principal by inducement must intend that his inducement be obeyed. M e r e careless comment of one who does not possess dominance or moral ascendancy over the offender will not make the former a principal by inducement. T h e inducer's utterances must be of such a nature and made in such a manner as to become the determining cause of the crime. Where the words uttered did not make any great dominance or influence on the offenders or is no longer necessary as the offenders were already determined to commit the offending acts, the utterance will not make the utterer an inducer. (People v. Parungao, G.R. No. 125812, January 1996)

203


The inducer is generally liable as an accomplice because the law favors a lesser penalty for if he were regarded as a principal, his penalty would be heavier. In fine, an inducer may be a principal, an accomplice or not criminally liable, in the latter case, if the inducement was a mere careless remark which is not meant to be obeyed. •

Must the principal by inducement appear at the scene of the crime? N o . Principals by inducement (or mastermind) are liable even if they did not appear in the scene of the crime because the crime would not have been committed without the inducement. That is why they induce others to commit the crime — so that they would remain in the background. The fact that it was MM and not petitioner who dealt directly with said fixers cannot exculpate petitioner from the charge of falsification. He is a principal by inducement in the commission of said crime, (id.)

•

How does an inducer "induce" another to commit a crime? One is induced to commit a crime either by a command (precepto) or for a consideration (pacto), or by any other similar act which constitutes the real and moving cause of the crime and which was done for the purpose of forcing or inducing such criminal act and which was sufficient for that purpose. (People v. Dumancas, G.R. No. 133527-28, December 13, 1999)

Indispensable cooperator •

Who is a principal by indispensable cooperation? To be a principal by indispensable cooperation, there must be direct participation in the criminal design by another act without which the crime could not have been committed. T h e prosecution failed to present any evidence tending to establish appellant's conspiracy with the evil designs of the of the N P A armed group. Neither was it established that his act was of such importance that the crime would not have been committed without him or that he participated in the actual killing. Under the circumstances, he cannot be considered a principal by indispensable cooperation. (People v. Fronda) 204


An indispensable cooperator may be a co-conspirator under the doctrine of implied conspiracy. T h e voluntary and indispensable cooperation of the offender is a concurrence of the criminal act to be executed. Consequently, he is a coconspirator by indispensable cooperation, although the common design or purpose was never bottled up by previous undertaking. (Subayco v. Sandiganbayan) >

How does the cooperator participate in the commission of the offense? A principal by indispensable cooperation participates by means of an act without which the crime would not have been committed. T h e cooperator need not be a party in the planning stage of a conspiracy for he may become a principal at the moment of the execution of the crime with the other principals. His common purpose and unity of design with the other conspirators may be inferred from the circumstances of the crime. T h e participation of the cooperator must be indispensable to the crime. If his participation is not indispensable, as when with or without his participation, the offense will be committed, his liability may only be that of an accomplice.

•

When is one an accomplice instead of an indispensable cooperator? W h e n his cooperation is not indispensable. Sotto, March 1996 involved the pumpboat owner who helped the offenders by pretending that his pumpboat needed towing by the ing boat of the victims. T h e offenders transferred to the boat of the victims and later robbed and killed them. T h e pumpboat owner was held as an accomplice for the principal offenders could have asked the help of other owners, hence, his cooperation was not indispensable as his participation in the criminal design is not by another act without which the crime could not have been committed.

•

Even if there is conspiracy, can the liability of the principals differ? Y e s . Notwithstanding conspiracy, the liability of the principals may be different. Since GG did not know the 205


treacherous manner by which CC was supposed to kill the victim, GG shall be liable for homicide while CC for murder. (People v. Cabillan, G.R. No. 131808, February 6, 2002) •

Describe the nature of the "cooperation" required to incur criminal liability. The cooperation that the law punishes is the assistance knowingly or intentionally rendered, which cannot exist without previous cognizance of the criminal act intended to be executed. It is required to be liable either as a principal by indispensable cooperation, or as an accomplice, that the accused unite with the criminal design of the principal by direct participation. Nothing on record shows that appellant knew that BB was going to stab P P , creating a doubt as to appellant's criminal intent. (People v. Jorge, G.R. No. 99379, April 22, 1994)

A r t . 18. Accomplices. — A c c o m p l i c e s a r e those p e r s o n s w h o , not b e i n g i n c l u d e d in A r t i c l e 17, c o o p e r a t e in the execution of the offense by p r e v i o u s or s i m u l t a n e o u s acts. •

Who are accomplices?

not a conspirator.

An accomplice is one who, not being a principal "cooperates in the execution of the offense by previous or simultaneous acts." A person is an accomplice if his role in the perpetration of the crime is of a minor character. If there is ample evidence of criminal participation but a doubt exists as to the nature of liability, courts should resolve to favor the milder form of responsibility, that of an accomplice. (People v. Fronda) M e r e presence does not of itself constitute a simultaneous act of cooperation sufficient to make one an accomplice. (People v. Lacao) To be an accomplice: a.

Offender should take part in the execution of the crime by previous or simultaneous acts; and

b.

He intends to take part in the commission of the crime.

206


Is conspiracy necessary for the liability of an accomplice? Conspiracy is not necessary for he is not a principal but he supplies material or moral aid to the principal in an efficacious w a y . He knows of the criminal design of the principal and he cooperates knowingly or intentionally but in a manner not indispensable to the commission of the crime, otherwise he w i l l be considered a principal by indispensable cooperation. If there is conspiracy, he ceases to be an accomplice but instead is considered a principal although his participation is such that, without the conspiracy, should have been that of an accomplice. PP and TT cooperated in the execution of the offense by simultaneous acts which, although not indispensable to the commission of the offense, bore a relation to the acts done by the principal. T h e y supplied material or moral aid in the execution of the crime in an efficacious way and since they w e r e aware of the criminal intent of the principals and having participated in such criminal design sans a conspiracy, they are guilty of the milder form of responsibility as accomplices. (People v. Lacao, Sr.)

Compare a principal and an accomplice. 1.

A principal by inducement induces the other offenders to commit an act in such a w a y that without the inducement, the crime would not be committed. He wills that his inducement be obeyed by exerting influence or moral ascendancy over the other malefactors. An accomplice's inducement or utterance is not indispensable for with or without such utterance, the crime would be committed as the principal is already determined to commit the crime.

2.

The cooperation of the principal in the offense is indispensable without which the crime would not be committed; that of the accomplice is minor.

207


A lookout who was not part of the conspiracy but participated only after such decision was reached is an accomplice since he is merely an instrument of the crime and cooperates after the decision to commit the same had already been made. (People v. De Vera, G.R. No. 128966, August 18, 1999) A "lookout" is a principal if he was a co-conspirator in the criminal design and in deciding the course of action to be taken in its commission. He is a coauthor of the crime and provides his companions effective means and encouragement to carry out the same. His being a lookout is a necessary part of the concerted action to achieve the desired result. (People v. Loreno) 3.

Both the principal and the accomplice act before or during the commission of the crime.

Conspirators decide that a crime should be committed; accomplices merely concur in it and cooperate in the accomplishment. Conspirators are the authors of the crime; accomplices are merely the instruments who perform acts not essential to the perpetration. Thus, mere knowledge and participation do not suffice to make one a conspirator, for such are required also of an accomplice, especially if even without his participation, the crime could have been accomplished. Where the acts of an accused show that he shared in the community of purpose with the principals and their acts collectively and individually demonstrate the existence of a common design toward the accomplishment of the same purpose, conspiracy is evident and all the perpetrators are liable as principal. Principals and accomplices are similar in that they know and agree with the criminal design. T h e y are different however in that conspirators know the criminal intention because they themselves have decided upon such course of action; accomplices come to know about it after the conspirators have reached the decision and only then do they agree to cooperate in its execution. A r t . 19. Accessories. — A c c e s s o r i e s a r e those w h o , h a v i n g k n o w l e d g e of the commission of the c r i m e , a n d without h a v i n g p a r t i c i p a t e d t h e r e i n , either a s p r i n c i p a l s o r 208


accomplices, t a k e p a r t s u b s e q u e n t to its commission in any o f the f o l l o w i n g m a n n e r s : 1.

By profiting themselves or assisting the offender to profit by the effects of the crime;

2.

By c o n c e a l i n g or d e s t r o y i n g the b o d y of the crime, or the effects or instruments thereof, in o r d e r to p r e v e n t its discovery;

3.

By h a r b o r i n g , c o n c e a l i n g , or assisting in the e s c a p e of the p r i n c i p a l of the c r i m e , p r o v i d e d the a c c e s s o r y acts w i t h a b u s e of his p u b l i c functions or w h e n e v e r the a u t h o r of the crime is guilty of t r e a s o n , p a r r i c i d e , m u r d e r , o r a n attempt t o take the life of the C h i e f E x e c u t i v e , or is k n o w n to be h a b i t u a l l y guilty of some other crime.

A r t . 20. Accessories who are exempt from criminal liability. — T h e p e n a l t y p r e s c r i b e d for accessories shall not b e imposed u p o n those w h o a r e s u c h w i t h respect t o their spouses, a s c e n d a n t s , d e s c e n d a n t s , legitimate, n a t u r a l , a n d a d o p t e d b r o t h e r s a n d sisters, or relatives by affinity w i t h i n the same d e g r e e s , w i t h the single exception of accessories falling w i t h i n the p r o v i s i o n s of p a r a g r a p h 1 of the next p r e c e d i n g article. •

W h o are accessories? T h e y are those who: a.

H a v e knowledge of the commission of the crime;

b.

Without having participated therein; and

c.

T a k e part subsequent to its commission in any of the following manners: 1.

By profiting or assisting the offender to profit from the effects of the crime.

2.

By concealing or destroying the body of the crime (corpus delicti) or effects or the instruments thereof to prevent its discovery.

3.

By harboring, concealing or assisting in the escape of the principal. 209


How do accessories profit by the effects of the crime? A person who received any property from another and used it, knowing that the same had been stolen is guilty as an accessory because he is profiting by the effects of the crime. By employing the carabaos in his farm, TT was profiting by the objects of the theft. TT has k n o w l e d g e of the crime and yet without having participated either as principal or as an accomplice, for he did not participate in the taking of the carabaos, he took part subsequent to the commission of the act of taking by profiting himself by its effects. TT is an accessory after the fact. (Taer v. CA) What is the effect of some special laws on accessories who profit by the effects of the crime? If the crime is robbery or theft and one bought, sold, possessed, or in any other manner dealt with the proceeds which he knew or should have known to be proceeds of robbery or theft, he is a principal in the crime of fencing. But he must be charged with fencing in another information, otherwise he is liable only as an accessory of the principals in robbery or theft. If the crime is brigandage and he profited from the loot, he should be charged with abetting brigandage — an accomplice of brigands. T h e procedural aspect should be observed, charging him in another information otherwise he w i l l be liable as an accessory. When will an accessory be liable as a principal in another crime? W h e n he is an accessory whose act or omission is also penalized in a special law. In violations of special laws or crimes mala prohibita, the offenders generally are penalized as principals unless otherwise provided. What is corpus delicti"? Corpus delicti is the body or substance of the crime and in its primary sense refers to the fact that a crime has actually been committed. As applied to a particular offense, it means the actual commission by someone of the particular crime charged. It is a compound fact made up of two things: 210


(1)

the existence of a certain act or result forming the basis of the criminal charge; and

(2)

the existence of a criminal agency as the cause of this act or result.

Otherwise stated, its elements are: a) the proof of the occurrence of a certain event; and b) some person's criminal responsibility. (People v. Boco, G.R. No. 129676, June 23, 1999) In of drug sale, an illegal sale of the regulated drug took place (criminal event); and the accused were the authors thereof (criminal agent). W h o are the two kinds of accessory by concealing or harboring the offender? a.

A public officer who acts with abuse of public functions is liable whatever crime may have been committed by the offender;

b.

A private individual if the author of the crime is guilty of treason, attempt on the life of the Chief Executive, murder, parricide or is known to be habitually guilty of some other crime.

A police officer who was present when the crime was committed abused his official function when he failed to immediately arrest the offender and conduct a speedy investigation of the crime, but instead left the scene of the crime together with the offender, thus assisting the offender to escape. Being a public officer, he is an accessory to the crime. (People v. Antonio, G.R. No. 128900, July 14, 2000) For one to be considered accessory, whom should he assist? T h e offender to be assisted must be a principal; assisting an accomplice is not included. Those who assist the principal to escape may be prosecuted under P . D . 1829 on obstruction of justice not as accessory but as a principal, provided that a separate information shall be prepared for the crime of obstruction. W h e n he is convicted, the penalty to be imposed is the higher penalty under P . D . 1829 or any other law, including the R P C . (Section 1, last paragraph)

211


P R E S I D E N T I A L D E C R E E N O . 1829 — OBSTRUCTION OF JUSTICE XXXXXXXXX SECTION 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates, or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts: a.

Preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offenders by means of bribery, misrepresentation, deceit, intimidation, force or threats;

b.

Altering, destroying, suppressing or concealing any paper, record, document, or object with intent to impair its verity, authenticity, legibility, availability or issibility as evidence in any investigation of or official proceedings in criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases;

c.

Harboring or concealing, or facilitating the escape of any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction;

d.

Publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes;

e.

Delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscals' offices, in Tanodbayan, or in the courts;

212


/.

Making, presenting or using any record, document, paper or object with knowledge of its falsity and with the intent to affect the course or outcome of the investigation of, or official proceedings in criminal cases;

g.

Soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discontinuing, or impeding the prosecution of a criminal offender;

h.

Threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or of his family in order to prevent a person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of, or in official proceedings in criminal cases;

i.

Giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by the investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or the court.

If any of the acts mentioned herein is penalized by any other law with a high penalty, the higher penalty shall be imposed. Section 2. If any of the foregoing acts are committed by a public official or employee, he shall, in addition to the penalties provided thereunder, suffev perpetual disqualification from holding public office. Section 3. This Decree shall take effect immediately. Done in the City of Manila, this 16th day of January, in the year of Our Lord, nineteen hundred and eighty-one.

213


Compare an accomplice to an accessory. ACCOMPLICE

ACCESSORY

1. When

Participates before or during the commission of the offense

Takes part subsequent to the commission of the offense

2. Knowledge

Knows the criminal design of the principal

Knows the commission of the offense

3. Acts

Provides material or moral aid in an efficacious w a y but not in a manner indispensable to the offense

Acts in the three specific ways in Article 19

4.

No exemption from liability

M a y be exempted liability per Articles 19 and 20 and for light felonies under Article 16

Liability

5. Penalty

one degree lower than two degrees lower the principal's than the principal's

As to when they participate, the accomplices are thus also known in other jurisdictions as accessories before the fact while accessories are denominated accessories after the fact. W h o are the accessories exempt from criminal liability? They are the offender's spouse, ascendant, descendant, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees as those enumerated. Relatives by consanguinity are not included hence sister in law is better situated than a niece/nephew of the offender which is not in keeping with normal, traditional filial affection in this jurisdiction.

214


•

For what acts are they exempt from liability? For those acts enumerated in Article 19 except for profiting by the effects of the crime. W h e n the relatives assist the principal by concealing or destroying the body of the crime or by assisting in the escape of the principal, the law recognizes that they are doing so because they are motivated by their natural affection for the offender. H o w e v e r , when they profit or assist the offender in profiting by the effects of the crime, they are doing so because of greed and not because of filial affection. Hence, they are not exempted from criminal liability.

•

Compare Articles 11, 15, 20, 266-B, 332 on relatives of the offender. Article 11 on defense of relatives includes relatives by consanguinity in the fourth civil degree. Article 15 does not include as offended party relatives by consanguinity that can mitigate or aggravate criminal liability of the offender. Article 20 w i l l not benefit relatives by consanguinity from exemption from criminal liability. Article 266-B on qualified rape includes relatives by consanguinity in the third civil degree as victims. Article 332 w i l l not exempt relatives by consanguinity from criminal liability for theft, estafa and malicious mischief.

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TITLE THREE

PENALTIES Chapter One PENALTIES IN G E N E R A L A r t . 21. Penalties that may be imposed. — No felony shall be p u n i s h a b l e b y a n y penalty not p r e s c r i b e d b y l a w p r i o r t o its commission. •

What are penalties? Penalties are the punishment imposed by lawful authority upon a person who commits a deliberate or negligent act (Moreno, Philippine L a w Dictionary, cf Moron, 44 Phil. 431) or for omitting to act when there is a duty to do so. T h e y are imposed as a result of judicial proceedings. (Santiago v. Sandiganbayan)

•

Who has the power to prescribe penalties? Penalties are prescribed by statutes and are essentially and exclusively legislative. Judges can only interpret and apply them and have no authority to modify them or revise their range as determined exclusively by the legislature. (People v. Dela Cruz, G.R. No. 100386, December 11, 1992)

•

What penalties may be imposed upon an offender? Only those penalties prescribed by law prior to its commission may be imposed. Unless there is a law defining an act or omission as a crime and prescribing a penalty therefor, that act or omission cannot be penalized, no matter how reprehensible it may be. Nullum crimen, nulla poena sine lege.

216

PENALTIES IN G E N E R A L

•

What is the effect of judicial decisions on the power of Congress to enact statutes? Decisions of the Court cannot limit the power of Congress to enact penal statutes. Hernandez, Enrile and other cases decreed that Article 48 cannot be invoked as the basis for charging and prosecuting the complex crime of rebellion with homicide for the purpose of obtaining imposition of the penalty for the more serious offense in its maximum period. Said cases did not prohibit the legislature from validly enacting statutes that would define and punish, as offenses sui generis crimes which, in the context of Hernandez and the other cases, may be v i e w e d as a complex of rebellion with other offenses. W h a t the court stated in said cases about rebellion "absorbing" common crimes committed in its course or furtherance may be viewed in light of the fact that at the time they were decided, there w e r e no penal provisions defining and punishing, as specific offenses, crimes like murder, etc., committed in the course or as part of a rebellion. This is no longer true as far as this case is concerned and there being no question that P . D . 1866 is a valid statute. (Baylosis v. Chavez, 202 SCRA 405) (But see the effect of the amendment by R . A . 8294 on P . D . 1866)

•

Will the favorable judgment on a co-accused be applied to a convict who did not appeal? Y e s , for, the present rule is that an appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter. T h e decision with respect to FF is favorable and applicable to R R . He should not be treated as the odd man out, but should also benefit from the more beneficial indeterminate sentence that will be imposed. In fact, under similar conditions and on the same ratiocination, the Rule has justified the extension of the judgment of acquittal "to the co-accused who did not appeal the judgment of the trial court. (Ladino v. Garcia)

A r t . 22. Retroactive effect of penal laws. — P e n a l laws shall h a v e a retroactive effect insofar as they favor the person guilty of a felony, w h o is not a h a b i t u a l criminal, as this term is defined in R u l e 5 of Article 62 of this Code, although at the 217


time of the publication of such l a w s a final sentence has b e e n pronounced a n d the convict is serving the same. •

May the favorable provisions of a law be given retroactive effect to entitle the offender to a lesser penalty? Yes. Article 22 provides the exception to the prospectivity characteristic of penal law. A n d this favorable application of penal laws applies equally whether the crime consists of violations of the R P C or of special penal laws. Although R . A . 6425 was enacted as a special law, by force of Article 10, the beneficent provisions of Article 22 applies to and shall be given retroactive effect to crimes punished by special laws. T h e exceptions in Article 22 would not apply to those convicted of drug offenses since habitual delinquency refers to convictions for falsification, robbery, estafa, theft, serious and less serious physical injuries. (People v. Simon)

•

Can the court on its own apply Article 22 when it was not invoked by the accused? Y e s . T h e plain precept of Article 22 would be useless and nugatory if the courts were not under obligation to fulfill such duty, irrespective of whether or not the accused has applied for it, just as would also all provisions relating to the prescription of the crime and the penalty, (id.) (But see Bon where there is a need for the filing of habeas corpus to benefit from a favorable law which reduced the penalty for the crime committed)

•

Can a law have both retroactive and prospective application? Y e s . T h e application of R . A . 8294 would not be beneficial to the accused, as it would increase the penalty for parricide. Hence, that law was not given retroactive application, as otherwise it would acquire the character of an ex post facto law. (People v. Macoy, G.R. No. 126253, August 16, 2000) On the other hand, a crime was committed before July 6, 1997 when R . A . 8294 took effect. This law is advantageous to the accused as it spares him from a separate conviction for illegal possession of firearm. Hence, said law was applied retroactively. (People v. Lazaro, G.R. No. 112090, October 26, 1999) Before, violation of P . D . 1866 should have been punished

218


separately under the ruling in Quijada. Nevertheless, P.D. 1866 was recently amended by R . A . 8294. T h e third paragraph of Section 1 provides that "if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance." Only one offense shall be punished, viz., either homicide or murder, and the use of the unlicensed firearm is aggravating circumstance. Being favorable, this provision may be given retroactive effect, as accused is not a habitual criminal. (People v. Bergante, G.R. No. 120369, February 27, 1998) •

What is the effect of an absolute repeal of penal laws? An absolute repeal of a penal law deprives a court of its authority to punish a person charged with violation of the law prior to its repeal because an unqualified repeal constitutes a legislative act of rendering legal what had been previously declared as illegal, such that the offense no longer exists and it is as if the person who committed it never did so. T h e exceptions are: a.

T h e inclusion of a saving clause in the repealing statute that provides that the repeal shall have no effect on pending actions.

b.

W h e r e the repealing act re-enacts the former statute and punishes the act previously penalized under the old law. In such instance, the act committed before the re-enactment continues to be an offense in the statute books and pending cases are not affected, regardless of whether the new penalty to be imposed is more favorable to the accused. (Benedicto v. CA, G.R. No. 125359, September 4, 2001)

A r t . 23. Effect of pardon by the offended party. — A p a r d o n by the offended p a r t y does not extinguish criminal action except as p r o v i d e d in Article 344 of this Code; but civil liabilities w i t h r e g a r d to the interest of the injured party is extinguished by his express w a i v e r . (Refer to notes under Article 89)

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A r t . 24. Measures of prevention or safety which are not considered penalties. — T h e f o l l o w i n g shall not be considered as penalties:

•

1.

The arrest persons, as insanity or confinement

a n d t e m p o r a r y detention of accused well as their detention by r e a s o n of imbecility, or illness r e q u i r i n g their in a hospital.

2.

T h e commitment of a m i n o r to a n y of the institutions mentioned in A r t i c l e 80 a n d for the p u r p o s e s specified therein.

3.

S u s p e n s i o n f r o m the e m p l o y m e n t or p u b l i c office d u r i n g the trial or in o r d e r to institute the p r o c e e d ings.

4.

Fines a n d other c o r r e c t i v e m e a s u r e s w h i c h , in the exercise o f their a d m i n i s t r a t i v e o r d i s c i p l i n a r y p o w e r s , s u p e r i o r officials m a y i m p o s e u p o n their subordinates.

5.

D e p r i v a t i o n of rights a n d the r e p a r a t i o n s w h i c h the civil l a w m a y establish i n p e n a l f o r m .

Why are the measures not considered penalties? The measures under Article 24 are not considered penalty because of the constitutional provision on presumption of innocence. T h e y are not imposed after trial on the merits but are mere preventive measures, hence cannot be considered as penalties. H o w e v e r , A r t i c l e 29 provides that the period of preventive imprisonment w i l l be deducted from the term of imprisonment when the accused is finally convicted. Preventive suspension is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during the suspension. (Santiago v. Sandiganbayan, April 2001)

*

What is the nature and rationale of preventive suspension of public officers pending investigation?

to

Preventive suspension pending investigation is intended enable the disciplining authority to investigate the 220


charges against respondent by preventing the latter from intimidating or in any w a y influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent w i l l be reinstated. If after investigation he is found innocent of the charges and is exonerated, he should be reinstated. (Gloria v. CA, G.R. No. 131012, April 21, 1999)

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Chapter Two CLASSIFICATION OF PENALTIES A r t . 25. Penalties which may be imposed. — T h e penalties w h i c h m a y be imposed, a c c o r d i n g to this C o d e , a n d their different classes, a r e those i n c l u d e d in the following:

SCALE PRINCIPAL PENALTIES Capital

punishment:

Death. Afflictive

penalties:

Reclusion

perpetua,

Reclusion

temporal,

P e r p e t u a l o r t e m p o r a r y a b s o l u t e disqualification, P e r p e t u a l o r t e m p o r a r y special disqualification, Prision

mayor.

Correctional

penalties:

Prision Arresto

correccional, mayor,

Suspension, Destierro. Light

penalties:

Arresto

menor,

P u b l i c censure. Penalties common to the last preceding: Fine, and B o n d to k e e p the p e a c e . ACCESSORY PENALTIES P e r p e t u a l o r t e m p o r a r y a b s o l u t e disqualification, P e r p e t u a l o r t e m p o r a r y special disqualification, 222

CLASSIFICATION OF PENALTIES

S u s p e n s i o n f r o m p u b l i c office, the r i g h t to vote a n d be voted for, the p r a c t i c e of profession or calling, Civil interdiction, Indemnification, F o r f e i t u r e o r confiscation o f instruments a n d proceeds of the offense, P a y m e n t o f costs. •

Characterize the penalties in the Revised Penal Code? Penalties in Book I I , R P C are:

•

a.

Graduated according to severity;

b.

Divided into periods except for reclusion perpetua;

c.

Classified into principal or accessory penalties;

d.

Deemed imposed for consummated crimes;

e.

Imposed against the principal offenders (Article 46);

f.

T h e maximum imposable for the particular crime to which they are respectively prescribed. Thus, the penalties prescribed for the respective felonies can never be increased by the court no matter how perverse the offender may be (Article 64, no. 6); and

g.

Understood to be a degree for purposes of lowering the penalty under the ISL, in case of the presence of privileged mitigating circumstances, and for applying the rules under Articles 50 to 57. For instance, the penalty of arresto mayor, minimum period for light coercion in Article 287 is one degree and the penalty next lower in degree is arresto menor, maximum period.

What are principal and accessory penalties? Principal penalties are the specific penalty for specific felony in the various provisions of Book II defining felonies and imposing penalties thereon, such as reclusion temporal for homicide. They must be imposed by the court expressly in the decision. Accessory penalties are those which follow the principal penalties by operation of law (Article 73). As such, they need not be expressly stated in the decision. 223


What are the three scales of penalties in the Code and their significance? 1.

Article 25 classifies the penalties into principal and accessories.

2.

Article 70 provides for the scale when there are two or more sentences to be served, including the 3-fold rule.

3.

Article 71 graduates the penalties into the order of severity for purposes of applying the rules under Article 61 in relation to Articles 50-57, the penalty imposable on principal, accomplices, and accessories for consummated, frustrated, and attempted felonies.

Did the 1987 Constitution abolish the death penalty? There is nothing in Section 19(1) of Article I I I of the 1987 Constitution that expressly declares the abolition of the death penalty. T h e provision merely says that the death penalty shall not be imposed unless for compelling reasons involving heinous crimes, the Congress thereafter provides for it and, if already imposed, shall be reduced to reclusion perpetua. If the language under construction is plain, it is neither necessary nor permissible to resort to extrinsic aids like the records of the constitutional convention, for its interpretation. (People v. Bon) When was the death penalty reimposed? R . A . 7659 which reimposed the death penalty took effect on December 31, 1993, fifteen days after its publication in the December 16, 1993 issues of the Manila Bulletin, Philippine Star, Malaya and Philippine T i m e s Journal; not on January 1, 1994, as is sometimes misinterpreted. (People v. Godoy, December 1995). ( R . A . 9346 abolished of the death penalty.) What was the effect on Article 248 of the 1987 Constitutional proscription on the death penalty? Article I I I , Section 19(1) does not change the periods of the penalty prescribed by Article 248 except only insofar as it prohibits the imposition of the death penalty and reduces it to reclusion perpetua. T h e range of the medium and the minimum penalties remains unchanged. (People v. Dela Cruz, 216 SCRA) 224


T h e r e being no generic or mitigating circumstance attending the commission of the offense, the applicable sentence is the medium period of the penalty prescribed by Article 248, which is still reclusion perpetua. (People v. Munoz, 170 SCRA; People v. Dela Cruz) [Prior to R . A . 7659, murderis penalized with reclusion temporal maximum to death; hence, reclusion perpetua was then the medium period.]

R E P U B L I C A C T N O . 9346 S E C T I O N 1. T h e imposition of the p e n a l t y of death is hereby prohibited. Accordingly, Republic Act N o . Eight T h o u s a n d O n e H u n d r e d Seventy-Seven ( R . A . N o . 8177), o t h e r w i s e k n o w n a s the A c t D e s i g n a t i n g D e a t h b y L e t h a l Injection, i s h e r e b y r e p e a l e d . R e p u b l i c A c t N o . Seven T h o u s a n d Six H u n d r e d Fifty-Nine ( R . A . N o . 7659), o t h e r w i s e k n o w n as the D e a t h P e n a l t y L a w , a n d all other l a w s , executive o r d e r s a n d d e c r e e s , i n s o f a r as they impose the d e a t h penalty are hereby repealed or amended accordingly. S E C . 2. In lieu of the d e a t h penalty, the f o l l o w i n g shall b e imposed: ( a ) the p e n a l t y of reclusion perpetua, w h e n the l a w violated m a k e s use of the n o m e n c l a t u r e of the penalties of the R e v i s e d P e n a l C o d e ; o r ( b ) the p e n a l t y of life imprisonment, w h e n the l a w violated does not m a k e use of the n o m e n c l a t u r e of the penalties of the R e v i s e d P e n a l C o d e . S E C . 3. P e r s o n s convicted of offenses reclusion perpetua, or w h o s e sentences will reclusion perpetua, by r e a s o n of this A c t , shall for p a r o l e u n d e r A c t N o . 4103, otherwise I n d e t e r m i n a t e Sentence L a w , a s a m e n d e d .

p u n i s h e d with be r e d u c e d to not be eligible k n o w n as the

S E C . 4. T h e B o a r d of P a r d o n s a n d P a r o l e shall cause the publication at least once a w e e k for three consecutive w e e k s in a n e w s p a p e r of general circulation of the names of persons convicted of offenses punished with reclusion perpetua or life imprisonment by reason of this Act w h o 225


are being considered or r e c o m m e n d e d for commutation or pardon; Provided, however, T h a t nothing h e r e i n shall limit the p o w e r of the P r e s i d e n t to g r a n t executive clemency u n d e r Section 19, Article V I I of the Constitution. S E C . 5. This Act shall take effect immediately after its publication in t w o national n e w s p a p e r s of g e n e r a l circulation. A p p r o v e d : June 24, 2006.

•

When did R.A. 9346 take effect? Although the letter of the law states that it shall take effect immediately upon its publication, practically, however, it took effect even prior thereto because it is a law favorable to the offender and the rule is that, "Penal laws shall have retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of the Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same." (Article 22) Even if the offender is a habitual delinquent, still this law shall benefit him for from the wordings of the law, the intent of Congress is to eliminate the death penalty without regard to whether or not the offender is a habitual delinquent. Indeed, the crimes covered by habitual delinquent, are not more heinous than rape, murder, or kidnapping and the rapists, murderers, etc., who are the primary beneficiaries of the retroactive application of the law cannot be more benign than falsifiers, robbers, or swindlers.

•

What provisions of the Revised Penal Code are affected by the law abolishing the death penalty? 1.

Article 25 — on the category of capital punishment;

2.

Article 47 — cases when the death penalty shall not be imposed; automatic review of death penalty cases;

3.

Paragraph 2 of Article 63 — rules for the application of indivisible penalties;

226


4.

Article 71 — order of severity of penalties (People v. Bon, infra);

5.

Article 74 — penalty higher than reclusion perpetua in certain cases.

These specific provisions should be deemed as inoperative due to the abolition of the death penalty. •

Are convicts, whose penalty were reduced to reclusion perpetua because of R.A. 9346, entitled to parole? N o . Section 3 of R . A . 9346 expressly bars the convict from benefiting from the I S L . It is however clear that such prohibition is a surplusage because the I S L is not applicable for offenders whose crimes are punishable with life imprisonment, death, or reclusion perpetua imposed as a single indivisible penalty under Article 63 in paragraph 1.

•

What is the effect of R.A. 9346 on R.A. 7659? It merely modifies the penalty imposable for the crime covered by R . A . 7659 but does not affect the provision itself on how the crime is committed. R . A . 9346 does not affect the provision of R . A . 7659 on Article 267 making the killing, rape, torture, ransom-payment, etc., of the victim as qualifying circumstances in kidnapping. It merely made the penalty imposable thereon as reclusion perpetua. However, for all intents and purposes, the graduation of penalty between simple kidnapping and kidnapping with homicide has been erased. Thus, it does not make any difference now whether or not the kidnap victim is killed or raped. It can therefore be asserted that the new law is an absolutory cause insofar as the penalty is concerned because the kidnapper can now go ahead and kill the victim after ransom is paid for impunity for the penalty will be the same anyway.

People v. Bon, G . R . N o . 166401, O c t o b e r 30, 2006 issues; 1.

Whether the penalty for attempted qualified rape should be two degrees lower from death penalty or from reclusion perpetua. 227


2.

Whether R . A . 9346 intended to delete the word "death" in the graduated scale of penalties under Article 71.

3.

Whether the debarring of the death penalty correspondingly declassified those crimes catalogued as heinous.

4.

Whether retroactive effect should be extended to this new ruling to persons previously convicted of crimes which, if consummated or participated in as a principal, would have warranted the solitary penalty of death.

Held: Mufioz, G.R. No. 38969-70, February 9, 1989 declined to acknowledge the constitutional abolition of the death penalty through the 1987 Constitution. Here, it is now necessary to determine whether R . A . 9346 resulted in the statutory interdiction of the death penalty. Resultantly, the issue is whether the penalty for attempted qualified rape should be computed from death or reclusion perpetua. Article 266-B prescribes the death penalty for qualified rape. The determination of two degrees lower than the death penalty entails the application of Articles 61 and 71. Article 71 provides that in the case in which the law prescribes a penalty lower or higher by one or more degrees than another given penalty, the rules prescribed in Article 61 shall be observed in graduating such penalty. T h e lower or higher penalty shall be taken from the graduated scale in Article 71. At the same time, the I S L prescribes that "the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall be that which, in v i e w of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." T h e purpose of the prescription of minimum and maximum periods is to effect the privilege granted under the same law, for prisoners who have served the minimum penalty to be eligible for parole. Thus, convicts sentenced to suffer death penalty or life imprisonment are ineligible under that law, as are persons sentenced to reclusion perpetua, an indivisible penalty without minimum or maximum periods. (People v. Tubongbanua) Prior to R . A . 9346, the death penalty was imposable under two different frames of reference under the R P C , as amended by R . A . 228


7653: (1) as the maximum penalty for "reclusion perpetua to death" imposable on several crimes, including murder, qualified piracy, and treason depending on the appreciation of the aggravating and mitigating circumstances; and (2) death itself as an automatic and exclusive penalty for the crimes of qualified bribery "if it is the public officer who asks or demands such gift or present;" kidnapping or detention "for the purpose of extorting ransom from the victim or any other person;" destructive arson wherein "death results;" and rape qualified by any of the several circumstances enumerated under the law. Under Article 6 1 ( 2 ) , " [w] hen the penalty prescribed for the crime is composed of two indivisible penalties ... the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale." Hence, in ing sentence on those convicted of attempted felonies which warranted the penalty of "reclusion perpetua to death" if consummated, it was consistently held that the penalty two degrees lower than "reclusion perpetua to death" is prision mayor. In contrast, if the penalty for the consummated crime is the single indivisible penalty of death, Article 61(1) provides that "the penalty prescribed for the felony is single and indivisible, the penalty next lower in degree shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71." Thus, the proper penalty two degrees lower than death is reclusion temporal. T h e negation of the word "death" in Article 71 will have the effect of appropriately downgrading the proper penalties attaching to accomplices, accessories, frustrated and attempted felonies to the level consistent with the rest of the penal laws. For example, the convicted accomplice in kidnapping for ransom, would now bear the penalty of reclusion temporal, the penalty one degree lower than that the principal would bear (reclusion perpetua). Such sentence would be consistent with Articles 52 and 71, as amended, to remove the reference to "death." T h e harmonization that would result if R . A . 9346 were construed as having eliminated the reference to "death" in Article 71 would run across the board in our penal laws. Consistent with Article 51 those convicted of attempted qualified rape would receive the penalty two degrees lower than that prescribed by R.A. 9346, for qualified rape.

229


Interpretare et concordare legibus est optimus interpretandi — a statute should be so construed not only to be consistent with itself, but also to harmonize with other laws on the same subject matter, as to form a complete, coherent and intelligible system—a uniform system of jurisprudence that would secure the rights of all persons affected by different legislative and quasi-legislative acts. There can be no harmony between R . A . 9346 and the R P C unless the later statute is construed as having downgraded those penalties attached to death by reason of the graduated scale under Article 71. Advocates of the theory that R . A . 9346 did not amend any of the penalties other than death in our penal laws would invoke Munoz which ruled that the constitutional bar on the imposition of the death penalty did not enact "a corresponding modification in the other periods [in penalties]," there being no expression of "such a requirement... in Article I I I , Section 19(1) of the Constitution or indication] therein by at least clear and unmistakable implication." It made the pronouncement that there was nothing in the 1987 Constitution "which expressly declares the abolition of the death penalty." Would Munoz as precedent, deter the Court from ruling that R . A . 9346 consequently downgraded penalties other than death? The accused in Munoz were found guilty of murder which carried the penalty of reclusion temporal in its maximum period to death. T h e subject murders therein w e r e not attended by any modifying circumstance, and thus penalized in the penalty's medium term. Jurisprudence previous to Munoz held that the proper penalty in such instances should be "the higher half of reclusion temporal maximum," with reclusion temporal maximum, divided into t w o halves for that purpose. Munoz rejected this formulation, holding instead that the penalty should be reclusion perpetua. Munoz inquired into the effects of the Constitution on the proper penalty for murder; while herein, the effects of R. A. 9346 on the proper penalty for attempted qualified rape are ascertained. Munoz may have pronounced that the Constitution did not abolish the death penalty, but that issue no longer falls into consideration herein, the correct query now being whether Congress has banned the death penalty through R . A . 9346. Otherwise framed, Munoz does not preclude the Court from concluding that with the express prohibition of the imposition of the death penalty Congress has unequivocally banned the same. 230


Munoz interpreted Section 19(1), Article I I I as prohibiting the actual imposition of the death penalty, as opposed to enacting an amendatory law that eliminates all references and applications of the death penalty in our statutes. At the time Munoz was decided, it would have been polemical to foster an unequivocal pronouncement that Section 19(1) abolished the death penalty, since the very provision itself acknowledged that Congress may subsequently provide for the penalty "for compelling reasons involving heinous crimes." No such language exists in R . A . 9346. It was that express stipulation in the Constitution that dissuaded the Court from recognizing the constitutional abolition of the death penalty; and there is no similar statutory expression in R . A . 9346 which could be construed as evocative of intent similar to that of the Constitution. T h e critical question is whether R . A . 9346 intended to delete the word "death" in the graduated scale of penalties under Article 71. Munoz did not engage in an analogous inquiry in relation to Article 71 and the Constitution, for what was relevant therein was not the general graduated scale of penalties, but the range of the penalties for murder. Herein, no provision in R . A . 9346 provides a context within which the concept of "death penalty" bears retentive legal effect, especially in relation to Article 71. Unlike the Constitution, R . A . 9346 does expressly stipulate the amendment of all extant laws insofar as they called for the imposition of the penalty of death. Munoz impressed that the use of the word "imposition" in the Constitution evinced the framer's intent to retain the operation of penalties under the R P C . One might try to construe the use of "imposition" in R . A . 9346 as a means of Congress to ensure that the "death penalty," as applied in Article 71, remain extant. If the use of "imposition" was implemented as a means of retaining "death" under Article 71, it would have been a most curious, roundabout means. T h e Court can tolerate to a certain degree the deliberate vagueness sometimes employed in legislation, yet constitutional due process demands a higher degree of clarity when infringements on life or liberty are intended. There is no material difference between "imposition" and "application," for both embody the operation in law of the death penalty. Since Article 71 denominates death as an element in the graduated scale of penalties, the operation of Article 71 involves the actual application of the death penalty as a means of determining the extent which a person's liberty is to be deprived. Since R.A. 231


9346 unequivocally bars the application of the death penalty, as well as expressly repeals all such statutory provisions requiring the application of the death penalty, such effect necessarily extends to its relevance to the graduated scale of penalties under Article 71. Following Munoz, the 1987 Constitution might not have willed the abolition of the death penalty and instead placed it under a suspensive condition. As such, the death penalty during the interregnum between the 1987 Constitution and its reimposition through law was "in a state of hibernation." No longer because R . A . 9346 banned the death penalty. R . A . 7659 classified the crimes listed therein as "heinous," within constitutional contemplation. Such reclassification was accompanied by certain legal effects other than the imposition of the death penalty, such as the increase in imposable fines attached to certain heinous crimes; it officially recognized that some crimes are more odious than others and consequently affected the proper pecuniary indemnities awarded to the victims of these crimes. Hence, a general inclination persists in levying a greater amount of damages on accused found guilty of heinous crimes. T h e debarring of the death penalty through R . A . 9346 did not correspondingly declassify those crimes catalogued as heinous. T h e amendatory effects of R . A . 9346 extend only to the application of the death penalty but not to the definition or classification of crimes which by their abhorrent nature, constitute a special category by themselves. Accordingly, R . A . 9346 does not serve as basis for the reduction of civil indemnity and other damages that adhere to heinous crimes. As to sentences not yet handed down, or affirmed with finality, the application is immediate. Henceforth, "death," as utilized in Article 71, shall no longer form part of the equation in the graduation of penalties. In the case of appellant, his penalty for attempted rape shall be reckoned two degrees lower than reclusion perpetua. Hence, the maximum term of his penalty shall be prision mayor. Both reclusion perpetua and death are indivisible penalties. Under Article 61(2) when the penalty prescribed for the crime is composed of two indivisible penalties the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale. T w o degrees lower than reclusion perpetua to death is prision mayor. 232


As R . A . 9346 downgraded the penalties for such crimes the benefit of A r t i c l e 22 has to apply, except as to "habitual criminal[s]." R . A . 9346 expressly recognized that its enactment would have retroactive beneficial effects, referring to "persons x x x whose sentences w e r e reduced to reclusion perpetua by reason of this Act." By operation of R . A . 9346 and Article 22, R P C , there may be convicts presently serving their original sentences whose actual served exceed their reduced sentences. This decision does not make operative the release of such convicts, especially as there may be other reasons that exist for their continued detention. There are remedies under l a w that could be employed to obtain the release of such prisoners, if warranted. T h e Public Attorney's Office and non-governmental organizations that assist detainees possess the capacity and acumen to help implement the release of such prisoners who are so entitled by reason of this ruling. •

Is reclusion perpetua the same as life imprisonment? N o . It is erroneous to impose 'life imprisonment' for felonies as it is nowhere in the scheme of penalties in the R P C nor is it a penalty similar to reclusion perpetua. istrative Circular 6-A-92 (June 21, 1993) which amended Circular 6-92 (October 12, 1992) ens trial judges to strictly observe the distinction between life imprisonment and reclusion perpetua to curb the practice of using them interchangeably in the imposition of penalty in serious offenses. (People v. Narca, G.R. No. 108488, July 21, 1997)

•

Distinguish life imprisonment and reclusion perpetua. Reclusion

Life Imprisonment a. b.

Violation of special laws

c.

No accessory penalties

No fixed duration

perpetua

of the R P C with fixed duration with accessory penalties

T h e penalty of reclusion perpetua is invariably imposed for serious felonies under the R P C . It carries with it imprisonment for at least 30 years, after which the convict becomes eligible for pardon, and also accessory penalties, e.g., perpetual special disqualification, etc. (Article 27)

233


Is there a penalty denominated "imprisonment for life"? None, for that would imply that the culprit will stay in prison for the rest of his life. It is ignorance of the law to impose this penalty on a convict. Courts must employ the proper nomenclature such as reclusion perpetua not life imprisonment or 10 days of arresto menor, not 10 days of imprisonment (People v. Latupan, G.R. Nos. 112453-56, June 28, 2001) because the penalties under the R P C are different from those prescribed by special penal laws. The former carries with it accessory penalties not obtaining in the latter. T h e system of penalties under the R P C is entirely different from the system of penalties under special penal laws. Why is there a need to employ the proper terminology of penalties? It is necessary to employ legal terminology in the imposition of penalties because of the substantial difference in their corresponding legal effects and accessory penalties. T h e R P C does not prescribe the penalty of life imprisonment for any of the felonies therein defined, that penalty being invariably imposed for serious offenses penalized by special law. Murder being penalized under the R P C , the proper imposable penalty should be reclusion perpetua instead of life imprisonment. (People v. Cabactulan, G.R. No. 84398, December 2, 1992) Mobe, 84 SCRA 167, reiterated in Pilones and in the concurring opinion of Justice Ramon Aquino in Sumadic, reclusion perpetua is not the same as imprisonment for life or life imprisonment. Every judge should take note of the distinction and not mistake one for the other. (People v. Narca) Does the suspension for the practice of profession apply to convicted prisoners only? N o . A l l prisoners whether under preventive detention or serving final sentence, cannot practice their profession or engage in any business or occupation, or hold office, elective or appointive, while in detention. This is a necessary consequence

234


of arrest and detention. As a matter of law, when a person indicted for an offense is arrested, he is deemed placed under the custody of law. He is placed in actual restraint of liberty in jail so that he may be bound to answer for the commission of the offense. He must be detained in jail during the pendency of the case against him unless he is authorized by the court to be released on bail or on recognizance. An attorney cannot practice law during that period except where he would appear in court to defend himself. (People v. Maceda, G.R. No. 8959196, January 24, 2000) »

What is the nature of disqualification and suspension as penalties? Disqualification and suspension are both principal and accessory penalties. T h e y are principal penalty when imposed by the R P C for a specific crime; otherwise, they are accessory penalty which need not be stated in the sentence but follows the principal penalty to which they are attached.

•

What is bond to keep the peace? Bond to keep the peace is a principal penalty yet there is no crime in Book II for which it can be imposed. Therefore, following Article 21, there is no occasion to impose this penalty. Compared with bond for good behavior:

•

a.

Bond to keep the peace is a principal penalty which is not restricted to any crime; Bond for good behavior is a penalty specifically applicable to grave and light threat only. (Article 284)

b.

Failure to post the former will make the accused suffer detention; failure to post the latter will make the accused suffer destierro.

What is the nature of public censure? Public censure is a light penalty and is considered under the graduated scale provided in Article 71 as a penalty lower than arresto menor. It follows that the offense of reckless imprudence resulting in slight physical injuries for which it is prescribed is a light felony. (Reodica v. CA, G.R. No. 125066, July 8, 1998) 235


In the scheme of penalties in the Revised Penal Code, cite examples where the lesser offense absorbs the graver offense. a.

The lesser offense of rebellion punished with reclusion temporal, absorbs the graver offense of murder punished with reclusion perpetua, if committed in furtherance of rebellion;

b.

The lesser offense of forcible abduction punished by reclusion temporal, absorbs the graver offense of illegal detention of a woman, by reclusion perpetua;

c.

The lower offense of slavery involving kidnapping of a person, punished by prision mayor, absorbs the higher offense of kidnapping punished by reclusion perpetua. (People v. Quijada, July 1996, dissenting opinion of Justice Regalado)

A r t . 26. Fine — When afflictive, correctional, or light penalty. — A fine, w h e t h e r i m p o s e d as a single or as an a l t e r n a t i v e penalty shall be c o n s i d e r e d an afflictive penalty, if it exceeds 6,000 pesos; a c o r r e c t i o n a l p e n a l t y , if it does not e x c e e d 6,000 pesos b u t is not less t h a n 200 pesos; a n d a light p e n a l t y , if it be less t h a n 200 pesos. •

Compare Article 9 and Article 26. In Article 9, a fine of P200 is a light penalty imposed for light felonies ("not exceeding 200 pesos") but in Article 26, it is a correctional penalty as it defines as light penalty fine of less than P200. The classification of fine as grave, less grave or light penalty holds true whether the fine is imposed as a single penalty or as an alternative for another principal penalty.

•

How can the two articles be harmonized? Article 9 should prevail when the issue is prescription of crime because it is within the T i t l e pertaining to felonies and how they are committed. Article 26 should prevail when the issue is prescription of penalty because it is included in the title on penalties.

236

Chapter Three D U R A T I O N A N D EFFECT OF PENALTIES S e c t i o n O n e . — Duration of Penalties A r t . 27. Reclusion perpetua. — T h e p e n a l t y of reclusion perpetua shall be f r o m 20 y e a r s a n d 1 d a y to 40 years. Reclusion temporal. — T h e p e n a l t y of reclusion temporal shall be f r o m 12 y e a r s a n d 1 d a y to 20 y e a r s . Prision mayor and temporary disqualification. — The d u r a t i o n of the penalties of prision mayor a n d t e m p o r a r y disqualification shall be f r o m 6 y e a r s a n d 1 d a y to 12 years, except w h e n the p e n a l t y of disqualification is imposed as an accessory p e n a l t y , in w h i c h case, its d u r a t i o n shall be that of the p r i n c i p a l penalty. Prision correctional, s u s p e n s i o n a n d destierro. — T h e d u r a t i o n of the penalties of prision correccional, suspension a n d destierro shall be f r o m 6 months a n d 1 d a y to 6 years, except w h e n s u s p e n s i o n is imposed as an accessory penalty, in w h i c h case, its d u r a t i o n shall be that of the p r i n c i p a l penalty. Arresto mayor. — T h e d u r a t i o n of the penalty of arresto mayor shall be f r o m 1 m o n t h a n d 1 d a y to 6 months. Arresto menor. — T h e d u r a t i o n of the penalty of arresto menor shall be f r o m 1 d a y to 30 days. Bond to keep the peace. — T h e b o n d to k e e p the peace shall be r e q u i r e d to cover such p e r i o d of time as the court may d e t e r m i n e . (As amended by R.A. No. 7659.) Reclusion perpetua •

When the law fixed the duration of reclusion perpetua, has it become a divisible penalty? N o . Although Section 17 of R . A . 7659 fixed the duration of reclusion perpetua from 20 years and 1 day to 40 years, there 237


was no clear legislative intent to alter its original classification as an indivisible penalty. If reclusion perpetua were reclassified as a divisible penalty, then Article 63 would lose its reason and the basis for existence. If Congress had intended to do so, then it should have amended Articles 63 and 76. There are also other provisions involving reclusion perpetua, such as Article 41 on its accessory penalties and Article 61 (2) and (3), which have not been correspondingly amended. (People v. Lucas, G.R. Nos. 108172-73, January 9, 1995) (This ruling modified the decision in the same case dated M a y 1994 which held that reclusion perpetua had become a divisible penalty.) Reclusion perpetua remains indivisible notwithstanding the fixing of its duration. Hence, it is error to impose 30 years of reclusion perpetua. Accused should suffer the entire extent of 40 years. (People v. Arrojado, G.R. No. 130492, January 31, 2001) What was the reason for fixing the duration of reclusion perpetua? In Reyes (decided prior to R . A . 7659), Articles 25, 70 and 71 list reclusion perpetua as the penalty immediately next higher to reclusion temporal. It follows by necessary implication that the minimum of reclusion perpetua is 20 years and one day with a maximum duration thereafter to last for the rest of the convict's natural life although pursuant to Article 70, the maximum period for the service of penalties shall not exceed 40 years. It would be absurd and violative of the scales of penalties to reckon the minimum of reclusion perpetua at 30 years since there would be a resultant lacuna (gap) whenever the penalty exceeds the maximum 20 years of reclusion temporal but is less than 30 years. In fixing a specific duration for reclusion perpetua, R . A . 7659 merely restated the existing jurisprudence. (id.) Is a penalty exceeding 20 years within the range of reclusion perpetua? Y e s . There is legal basis, both in law and logic for P . D . 818 to declare that any penalty exceeding 20 years is within the range of reclusion perpetua.

238

D U R A T I O N A N D EFFECT OF PENALTIES

The other applicable reference to reclusion perpetua is in Article 70 laying down the rule on successive service of sentences where the culprit has to serve more than three penalties. It provides that the maximum duration of the convict's sentence shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon him. In applying the provisions of this rule, the duration of perpetual penalties is computed at 30 years. Since as set out in Articles 25, 70 and 71, reclusion perpetua is immediately next higher to reclusion temporal, it follows by necessary implication that the minimum of reclusion perpetua is 20 years and 1 day. (People v. Reyes, G.R. Nos. 101127-31, August 7, 1992) •

M a y the convict sentenced to reclusion perpetua be allowed to remain on bail pending appeal? No bail shall be granted to those charged with an offense, which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua, when evidence of guilt is strong. Such unequivocal and explicit provisions in the Constitution and the Rules of Court it no exception, qualification or distinction, (id.)

•

What is the minimum period of imprisonment of reclusion perpetua? Reclusion perpetua entails imprisonment of at least 30 years. T h e statement in the dispositive portion of the decision of the trial court that the penalty is equivalent to 30 years gives the impression that after that period, the convict is to be immediately set free. This is not so; rather, he only becomes eligible for pardon. (People v. dela Pena, July 1997)

•

What is the rationale of the penalty of reclusion perpetua? T h e provision's intendment is that a person condemned to undergo the penalty of reclusion perpetua shall remain in prison perpetually, or for the rest of his natural life. However, he becomes eligible for pardon by the Chief Executive after he has been imprisoned for at least 30 years, unless he is deemed unworthy of such pardon. (This cannot preclude the President from pardoning a convict by final judgment sentenced to 239


reclusion perpetua at anv time pursuant to the constitutional prerogative to grant executive clemency.) This period of 30 years vis-a-vis reclusion perpetua is reiterated in Article 70. Said article pertinently provides that in applying the "three-fold rule"— that when the culprit has to serve two or more penalties, the maximum duration of the convict's sentence shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon him — the duration of perpetual penalties (pena perpetua) shall be computed at 30 years. The imputation of the 30-year duration to reclusion perpetua in Articles 27 and 70 is only to serve as the basis for determining the convict's eligibility for pardon or for the application of the three-fold rule in the service of multiple penalties. It is incorrect to specify the duration of 30 years in relation to the penalty of reclusion perpetua. (People v. Tena, October 1992) Reclusion Temporal •

Describe the penalty of reclusion temporal. Reclusion temporal is the most severe of the divisible penalties with duration of 12 years and 1 day to 20 years. Only one day separates the divisible penalty of reclusion temporal from the indivisible penalty of reclusion perpetua. Both have the same accessory penalties of civil interdiction and perpetual absolute disqualification. It is an afflictive penalty under Article 25 and therefore it is attached to grave felonies. It prescribes in 15 years.

Prision mayor •

What is the medium period of prision mayor? The medium period of prision mayor is from 8 years and 1 day to 10 years. It is entirely wrong to describe 12 years, 5 months, and 11 days as the medium period of prision mayor not only because it already exceeded prision mayor, but also because it is not the medium period of prision mayor. (Bernabe v. Memoracion, AM. No. RTJ-95-1303, August 11, 1997)

240


Prision Correctional •

M a y the penalty of reclusion temporal for homicide with no mitigating circumstance be reduced to prision correctional? N o , that is gross ignorance of the law since prision correccional is two degrees lower than reclusion temporal. T h e duration of prision correccional is from six months and one day to six years. T h e reduced penalty is therefore two degrees lower than that prescribed by law for homicide. Since no mitigating circumstance was found in the original decision, nothing could justify the reduction of the penalty to six years of prision correccional. N o t even the claim of the accused that they did not intend to commit the act of killing and harming the policemen could justify such reduction. Even if praeter intentionem w e r e appreciated, and still under the assumption that one single penalty under Article 249 is permissible, the said mitigating circumstance would be offset by any of the aggravating circumstance pursuant to Article 64(4). (id.)

Arresto mayor •

What is the duration and prescriptive period of arresto mayor? T h e duration of arresto mayor is 1 month and 1 day to 6 months. It is a correctional penalty and has accessory penalties of suspension of the right to hold office and the right of suffrage during the term of the sentence. For instance, less serious physical injuries carries arresto mayor; the indeterminate sentence law does not apply since the maximum penalty does not exceed one year. That penalty prescribes in five years.

•

Which between destierro and arresto menor is a more severe penalty? Uy Chin Hua v. Dinglasan, 86 Phil. 617 and Santos, 87 Phil. 687 explained that destierro is lighter than arresto mayor thusly: Destierro is not a higher penalty than arresto mayor which is imprisonment or complete deprivation of liberty, whereas destierro means banishment or only a prohibition from residing within a radius of 25 kilometers from the actual residence of the accused for a specified length of time. The respective severities of arresto mayor and destierro must not 241


be judged by the duration of each of these penalties, but by the degree of deprivation of liberty involved. Penologists have always considered destierro lighter than arresto mayor. Such criterion is reflected both in the old Spanish Penal Code and in the R P C . In the graduated scale of Article 71 the lawmaker has placed destierro below arresto mayor. There is, therefore, no basis in fact or in law for holding that destierro is a higher penalty than arresto mayor and that an offense penalized with destierro falls under the jurisdiction of the C F I . (People v. Eduarte, G.R. No. 88232, February 26, 1990) Uy Chin Hua and Santor were decided under the Judiciary Act of 1948 but there is no mention in said A c t of crimes for which the penalty is not imprisonment. These cases were decided on the premise that "there exists a gap in the law as to which court shall have original jurisdiction over offenses penalized with destierro or banishment." (id.) A r t . 28. Computation of penalties. — If the o f f e n d e r shall be in prison, the t e r m of the d u r a t i o n of the t e m p o r a r y penalties shall b e c o m p u t e d f r o m the d a y o n w h i c h the j u d g m e n t o f conviction shall h a v e b e c o m e final. If the offender be not in p r i s o n , the t e r m of the d u r a t i o n of the penalty consisting of d e p r i v a t i o n of l i b e r t y shall be computed f r o m the d a y that the o f f e n d e r is p l a c e d at the disposal of the j u d i c i a l authorities for the e n f o r c e m e n t of the penalty. T h e d u r a t i o n of the o t h e r penalties shall b e computed only f r o m the d a y o n w h i c h the d e f e n d a n t commences to serve his sentence. In computing the duration of penalty, regard should be had of the civil provision on the duration of days, weeks, months and years. The same rule is followed in the prescription of penalties and of crimes. Hence, one month and one day means 31 days not 28/29 plus one day of February though incarcerated on that month or 31 plus one day of July though imprisoned in July. In the same vein, six years and one day means 360 days multiplied by six plus one day, disregarding leap year or years in between. A r t . 29. Period of preventive imprisonment deducted from term of imprisonment. — O f f e n d e r s or a c c u s e d w h o h a v e u n d e r g o n e preventive i m p r i s o n m e n t shall be c r e d i t e d in the service 242


of their sentence consisting of d e p r i v a t i o n of liberty, with the full time d u r i n g w h i c h they h a v e u n d e r g o n e preventive i m p r i s o n m e n t , if the detention p r i s o n e r a g r e e s voluntarily in w r i t i n g to a b i d e by the s a m e d i s c i p l i n a r y rules imposed u p o n convicted p r i s o n e r s , except in the f o l l o w i n g cases: 1.

W h e n they a r e recidivists, or h a v e b e e n convicted p r e v i o u s l y t w i c e or m o r e times of a n y crime; and

2.

W h e n u p o n b e i n g s u m m o n e d for the execution of t h e i r sentence they h a v e failed to s u r r e n d e r voluntarily.

If the detention p r i s o n e r does not a g r e e to a b i d e by the s a m e d i s c i p l i n a r y r u l e s i m p o s e d u p o n convicted prisoners, he shall be c r e d i t e d in the service of his sentence w i t h 4/5 o f the time d u r i n g w h i c h h e has u n d e r g o n e preventive imprisonment. W h e n e v e r a n a c c u s e d has u n d e r g o n e preventive impriso n m e n t for a p e r i o d e q u a l to or m o r e than the possible maxim u m i m p r i s o n m e n t of the offense c h a r g e d to w h i c h he may be sentenced a n d his case is not yet terminated, he shall be r e l e a s e d i m m e d i a t e l y w i t h o u t p r e j u d i c e to the continuation of the trial t h e r e o f or the p r o c e e d i n g on a p p e a l , if the same is u n d e r r e v i e w . In case the m a x i m u m penalty to w h i c h the a c c u s e d m a y be sentenced is destierro, he shall be released after 30 d a y s of p r e v e n t i v e imprisonment. •

What is the purpose of preventive imprisonment? It is to prevent the flight of the accused and his going into hiding. T h e accused is detained if the offense is not bailable; if bailable he cannot post bail and he is not qualified for recognizance. T h e offense is not bailable if it is punishable with death or reclusion perpetua and the evidence of guilt is strong. T h e mere fact that it is a capital offense does not per se make it non-bailable. There is the other requirement that the evidence of guilt is strong.

•

How will the time spent in prison by the detention prisoner be credited? Full credit is given to the detention prisoner who agrees voluntarily in writing to abide by the same disciplinary rules 243


imposed on convicts unless: (1) he is a recidivist or (2) when upon being summoned for the execution of his sentence he failed to surrender voluntarily. Otherwise, he shall be given 4/5 credit. If the maximum penalty imposable is destierro, the accused shall be released after 30 days of preventive imprisonment because arresto menor (1-30 days) is a more severe penalty than destierro under Article 70. (People v. Eduarte) •

What is the remedy when the person has already served the maximum penalty imposable? The appropriate remedy is to file a petition for habeas corpus. In accordance with the resolution in Angeles January 4, 1995, and Agustin, September 5, 1995, which held that the rules on habeas corpus should be liberally applied in cases which are sufficient in substance, the motion can be considered as substantial compliance with the rules on habeas corpus. Having served more than the maximum imposable penalty, the accused should be released. (People v. Labriaga, G.R. No. 92418, November 20, 1995)

•

Will the convict who was imposed of the penalty of reclusion perpetua or destierro be credited of the time of his preventive imprisonment? Y e s . Article 29 on the deduction of the period of preventive imprisonment applies where the accused is sentenced to destierro because destierro also constitutes deprivation of liberty. (People v. Bastasa, February 1979) A n d so with offenders who have undergone preventive imprisonment even if the penalty imposed is reclusion perpetua because it does not make any distinction between temporal and perpetual penalties. (People v. Corpuz, March 1994). M o r e so, since reclusion perpetua now has a fixed period although still indivisible.

»

Can a convict be released on bail or recognizance? No. It is patently erroneous to release a convict on recognizance. Section 24, Rule 114 of the Rules of Court prohibits the grant of bail after conviction by final judgment and after the convict has started to serve sentence. T h e only exception thereto is when the convict has applied for probation 244


before he commences to serve sentence, provided the penalty and the offense are within the purview of the Probation L a w . (White v. Bugtas, A.M. No. RTJ-02-1738, November 17, 2005) In what instance can a convict be allowed to post bail pending appeal? Regardless of the nature of the appeal, whether it is on question of fact or on purely legal issues, the right to bail pending appeal remains unabridged. T h e right, after conviction, may be a matter of discretion, but it does not appear in this case that the lower court denied bail upon consideration of certain facts and circumstances that relate to the possibility of petitioner absconding to thwart the process of criminal justice, which is the primary consideration in granting or denying bail. For it is not so much in the imposition of an allegedly excessive penalty that habeas corpus might lie, for appeal is the proper remedy, but in the denial of bail, without sufficient warrant that the detention of petitioners is illegal. While the petitioners pleaded guilty, and their appeal is only on question of law, the questioned sentence has not become final as to give warrant to petitioners' detention pending appeal without right to bail. N o r may petitioners be said to have commenced service of a sentence since they have assailed their sentence as illegal. T h e lower court's reason for denying bail pending appeal is, therefore, legally untenable. Petitioners should have been allowed to post bail for their provisional liberty while their appeal is pending in Court. (Zafra v. City Warden, G.R. Nos. L-49602 & L-49938, May 17, 1980)

R E P U B L I C A C T N O . 6036 Section 1. Any provision of existing law to the contrary notwithstanding, bail shall not be requiredofa person charged with violation of a municipal or city ordinance, a light felony and/or a criminal offense the prescribed penalty for which is not higher than six months imprisonment and/or a fine of 2,000 pesos, or both, where said person has established to the satisfaction of the court or any other appropriate authority hearing his case that he is unable to post the required cash or bail bond, except in the following cases: 245


a.

When he flagrante;

b.

When he confesses to the commission of the offense unless the confession is later repudiated by him in a sworn statement or in open court as having been extracted though force or intimidation;

c.

When he is found to have previously escaped from legal confinement, evaded sentence, or jumped bail;

d.

When he is found to have previously violated provisions of Sec. 2 hereof;

e.

When he is found to be a recidivist or habitual delinquent or has been previously convicted for an offense to which the law or ordinance attaches an equal or greater penalty or for two or more offenses to which it attaches a lighter penalty;

f.

When he commits the offense while under parole or under conditional pardon; and

g.

When the accused has previously been pardoned by the municipal or city mayor for violation of municipal ordinance for at least two times. xxx

is

caught

committing

xxx

Approved, August 4,

the

offense

in

the

xxx 1969.

Section T w o . — Effects of the penalties according to their respective nature A r t . 30. Effects of the penalties of perpetual or temporary absolute disqualification. — T h e penalties of p e r p e t u a l or t e m p o r a r y absolute disqualification for p u b l i c office shall p r o d u c e the f o l l o w i n g effects: 1.

T h e d e p r i v a t i o n of the p u b l i c offices a n d e m p l o y ments w h i c h the o f f e n d e r m a y h a v e h e l d , e v e n i f c o n f e r r e d b y p o p u l a r election.

2.

T h e d e p r i v a t i o n of the r i g h t to vote in a n y election for a n y p o p u l a r elective office or to be elected to such office. 246


3.

T h e disqualification for the offices or p u b l i c emp l o y m e n t s a n d for the exercise of any of the rights mentioned. In case of t e m p o r a r y disqualification, such disqualification as is c o m p r i s e d in p a r a g r a p h s 2 a n d 3 of this A r t i c l e shall last d u r i n g the t e r m of the sentence.

4.

T h e loss of r i g h t s to r e t i r e m e n t p a y or other pension for a n y office f o r m e r l y held.

A r t . 31. Effects of the penalties of perpetual or temporary special disqualification. — T h e penalties of p e r p e t u a l or t e m p o r a r y special disqualification for p u b l i c offices, profession, or c a l l i n g shall p r o d u c e the f o l l o w i n g effects: 1.

T h e d e p r i v a t i o n of the office, employment, profession or c a l l i n g affected.

2.

T h e disqualification for h o l d i n g similar offices or e m p l o y m e n t s either p e r p e t u a l l y or d u r i n g the t e r m of the sentence, a c c o r d i n g to the extent of such disqualification.

A r t . 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. — T h e p e r p e t u a l or t e m p o r a r y special disqualification for the exercise of the r i g h t of suffrage shall d e p r i v e the offender p e r p e t u a l l y or d u r i n g the t e r m of the sentence, a c c o r d i n g to the n a t u r e of s a i d penalty, of the r i g h t to vote in a n y p o p u l a r election for a n y p u b l i c office or to be elected to such office. M o r e o v e r , the offender shall not be permitted to hold any p u b l i c office d u r i n g the p e r i o d of his disqualification. A r t . 33. Effects of the penalties of suspension from any public office, profession or calling, or the right of suffrage. — The suspension f r o m p u b l i c office, profession, or calling, or the exercise of the right of suffrage shall disqualify the offender f r o m h o l d i n g such office or exercising such profession or calling or right of suffrage d u r i n g the t e r m of the sentence. T h e p e r s o n suspended from h o l d i n g public office shall not hold another h a v i n g similar functions d u r i n g the period of his suspension. 247


A r t . 34. Civil interdiction. — Civil interdiction shall deprive the offender d u r i n g the time of his sentence of the rights of parental authority, or g u a r d i a n s h i p , either as to the person or p r o p e r t y of any w a r d , or m a r i t a l authority, of the right to m a n a g e his p r o p e r t y a n d of the r i g h t to dispose of such p r o p e r t y by any act or a n y conveyance inter vivos. •

What is civil interdiction? What rights does it cover? Under Article 38 of the N C C , civil interdiction is one of the restrictions on capacity to act but does not exempt the offender from certain obligations, as when the latter arise from his act or from property relations. It is an accessory penalty imposed upon a person sentenced to the principal penalties of reclusion perpetua and reclusion temporal. It covers deprivation of the following rights:

•

a.

Parental authority;

b.

Guardianship as to the person or property of any ward;

c.

Marital authority;

d.

To manage his property; and

e.

To dispose of such property by any act or conveyance inter vivos.

May a person civilly interdicted appoint an agent? N o , for the act of the agent is also the act of the principal. By acting through an agent, the civilly interdicted person is doing indirectly what the law prohibits to be done directly. Moreover, one of the causes for the extinction of agency is civil interdiction. Thus, Article 1919 of the N C C provides that agency is extinguished by the death, civil interdiction, insanity or insolvency of the principal or the agent.

•

Can the convict prepare his last will and testament? Y e s , for what the law prohibits is the disposition of property by an act inter vivos. Further, the will does not dispose of the property at the time of its making but at the time of his death subject to the legal requirements under the laws on succession and the Rules of Court.

248


A r t . 35. Effects of bond to keep the peace. — It shall be the d u t y of a n y p e r s o n sentenced to give b o n d to k e e p the peace, t o p r e s e n t t w o sufficient sureties w h o shall u n d e r t a k e that such p e r s o n w i l l not commit the offense sought to be p r e v e n t e d , a n d that in case such offense be committed they w i l l p a y the a m o u n t d e t e r m i n e d by the c o u r t in its j u d g m e n t , or o t h e r w i s e to d e p o s i t such a m o u n t in the office of the clerk of the c o u r t to g u a r a n t e e s a i d u n d e r t a k i n g . T h e c o u r t shall d e t e r m i n e , a c c o r d i n g to its discretion, the p e r i o d o f d u r a t i o n o f the b o n d . S h o u l d the p e r s o n sentenced fail to give the b o n d as r e q u i r e d he shall be d e t a i n e d for a p e r i o d w h i c h shall in no case e x c e e d 6 m o n t h s , if he shall h a v e b e e n p r o s e c u t e d for a g r a v e or less g r a v e felony, a n d shall not exceed 30 days, if for a light felony. •

Is the penalty of bond to keep the peace enforceable? N o , because, being a principal penalty, it must be specifically prescribed in Book II for a particular felony. There being none, the penalty is unenforceable by virtue of Article 21, which states that no felony shall be punishable by any penalty not prescribed by law prior to its commission.

A r t . 37. Costs — What are included. — Costs shall include fees a n d indemnities in the course of the j u d i c i a l proceedings, w h e t h e r they b e f i x e d o r u n a l t e r a b l e amounts previously d e t e r m i n e d by l a w or r e g u l a t i o n s in force, or amounts not subject to schedule. A r t . 38. Pecuniary liabilities — Order of payment. — In case the p r o p e r t y of the offender should not be sufficient for the p a y m e n t of all his p e c u n i a r y liabilities, the same shall be met in the f o l l o w i n g o r d e r : 1.

T h e r e p a r a t i o n of the d a m a g e caused.

2.

Indemnification of consequential damages.

3.

T h e fine.

4.

T h e costs of the proceedings.

249


•

What are the pecuniary liabilities of the offender? How are they to be paid? The pecuniary liabilities of an offender are those owing to the offended: reparation of the damage caused (restitution first if that is possible) and indemnification of consequential damages (Article 104); and those owing to the government: fine and costs of proceedings. They are to be settled in the order given: reparation, then indemnification, next fine and lastly costs of the proceedings, if the means of the convict are not enough to settle them all. Fine, however, is subject to subsidiary penalty in the proper cases.

•

What is a fine? Esler v. Ledesma, 52 Phil. 114, said that a fine is a pecuniary punishment imposed by a lawful tribunal upon a person convicted of a crime. T h e fine in B.P. 22 was intended as an additional penalty for the act of issuing a worthless check. This is the only logical conclusion since the law does not require that there be damage or prejudice to the individual complainant by reason of the issuance of the worthless check. (Lazaro v. CA, G.R. No. 105461, November 11, 1993) Being a penalty, fine is mandatory. In fact, although the culprit has suffered subsidiary penalty in case of insolvency, still he is not relieved of the obligation to pay the same if his circumstances should improve. (Article 39, N o . 5)

•

If a person is found guilty of several offenses, how is the order of payment of civil liabilities observed? The civil liabilities of a person found guilty of two or more offenses shall be satisfied by following the chronological order of the dates of the final judgments rendered against him, beginning with the first final judgment. (Article 73)

A r t . 39. Subsidiary penalty. — If the convict h a s no p r o p e r t y with w h i c h to meet the fine m e n t i o n e d in p a r a g r a p h 3 of the next p r e c e d i n g article, he shall be subject to a s u b s i d i a r y p e r s o n a l liability at the rate of 1 d a y for e a c h 8 pesos, subject to the f o l l o w i n g rules:

250


1. If the p r i n c i p a l p e n a l t y i m p o s e d be prision correccional or arresto a n d fine, he shall r e m a i n u n d e r confinem e n t until his fine r e f e r r e d in the p r e c e d i n g p a r a g r a p h is satisfied, b u t his s u b s i d i a r y i m p r i s o n m e n t shall not exceed 1/3 of the t e r m of the sentence, a n d in no case shall it continue for m o r e t h a n 1 y e a r , a n d no fraction or p a r t of a d a y shall b e c o u n t e d a g a i n s t the p r i s o n e r . 2. W h e n the p r i n c i p a l p e n a l t y i m p o s e d be only a fine, the s u b s i d i a r y i m p r i s o n m e n t shall not e x c e e d 6 months, if the c u l p r i t shall h a v e b e e n p r o s e c u t e d for a g r a v e or less g r a v e felony, a n d shall not e x c e e d 15 d a y s , if for a light felony. 3. W h e n the p r i n c i p a l penalty i m p o s e d is h i g h e r than prision correccional no s u b s i d i a r y i m p r i s o n m e n t shall be i m p o s e d u p o n the culprit. 4. If the p r i n c i p a l p e n a l t y i m p o s e d is not to be e x e c u t e d by confinement in a p e n a l institution, b u t such p e n a l t y is of fixed d u r a t i o n , the convict, d u r i n g the p e r i o d of time e s t a b l i s h e d in the p r e c e d i n g rules, shall continue to suffer the s a m e d e p r i v a t i o n s as those of w h i c h the p r i n c i p a l p e n a l t y consists. 5. T h e s u b s i d i a r y p e r s o n a l liability w h i c h the convict m a y h a v e s u f f e r e d by r e a s o n of his insolvency shall not relieve h i m f r o m the fine in case his financial circumstances should improve. •

What is subsidiary penalty? It is a penalty that takes the place of the fine for insolvent convicts. It is neither a principal nor accessory penalty, but a substitute penalty for fine only. The subsidiary penalty may be in the form of imprisonment or deprivation of right depending upon the principal penalty imposed on the convict. It is imposable whether the violation is under the R P C or under special laws such as B.P. 22.

•

How is subsidiary penalty computed? 1.

minimum daily wage

It is computed at l d a y for each P8.00 of fine but in no case to exceed 1 year. If the penalty is:

251


a.

b.

Purely a fine and the felony is: — the subsidiary imprisonment: -

grave or less grave.... shall not exceed 6 months

-

light

shall not exceed 15 days.

Fine and imprisonment of not more than Prision Correccional (6 years), the subsidiary imprisonment is computed at -

1/3 of the principal penalty;

-

the quotient of Fine divided by P8.00; or

-

1 year

whichever of these three is least.

•

c.

Fine and Destierro which must be of a fixed duration: destierro also computed in accordance w i t h the above rules.

d.

T h e same goes with Fine and Suspension.

When is subsidiary penalty served? Subsidiary penalty is proper when the penalty imposed upon the convict includes fine but he cannot pay the same. T h e court must expressly state that subsidiary penalty shall be served in case of insolvency because this is not an accessory penalty that follows the principal penalty as a matter of course. Also, the penalty imposed must be susceptible of subsidiary penalty.

•

When is subsidiary penalty not proper? a.

T h e principal penalty imposed is more than prision correccional (6 years and 1 day or more);

b.

T h e principal penalty is other than prison sentence which is not of fixed duration;

c.

Subsidiary penalty is not expressly stated in the sentence to take the place of fine in case of insolvency;

d.

T h e sentence imposed does not include fine; and

e.

Convict has the means to pay the fine.

252


How is the gravity of the fine classified? Fine whether imposed singly or alternatively is: a.

afflictive/grave if more than P6,000.00;

b.

correccionaJVless grave if P200.00 to P6,000.00; and

c.

light if less than P200.00. (Under Article 9, a P200 fine is imposed on light felonies.)

When the culprit who had served subsidiary penalty became solvent, is he still liable to pay the fine? Y e s . Paragraph 5 of Article 39 states that the subsidiary personal liability which the convict may have suffered shall not relieve him from the obligation to pay the fine in case his financial circumstances should improve. Is there subsidiary imprisonment in case of failure to pay the fine in violations of special laws? Y e s . T h e Supreme Court imposed subsidiary imprisonment in case of failure of the offender to pay the fine notwithstanding the absence of such provision in the law. It is now the policy to impose fines rather than imprisonment in violations of B.P. 22. (Diongzon v. CA, December 1999) Does subsidiary penalty apply to criminal negligence? Y e s . If the offender cannot pay the fine for damage resulting from the negligence, he will suffer subsidiary imprisonment provided that the same is expressed in the sentence. If the offense is grave or less grave, subsidiary imprisonment should not be more than 6 months; if light felony, not more than 15 days. Section T h r e e . — Penalties in which Other Accessory Penalties are Inherent Must accessory penalties be expressed in the court's decision? No for they are ipso facto imposed with the principal penalties to which these accessory penalties are attached. Thus, the Title of Section Three specifies that these accessory penalties are "inherent." Too, Article 73 states that: "whenever 253


the courts shall impose a penalty which, by provision of law, carries with it other penalties, according to the provisions of Articles 40, 41, 42, 43, 44, and 45 of this code, it must be understood that the accessory penalties are also imposed upon the convict." A r t . 40. Death—Its accessory penalties. — T h e death penalty, w h e n it is not executed by r e a s o n of commutation or p a r d o n shall c a r r y with it that of p e r p e t u a l absolute disqualification a n d that of civil interdiction d u r i n g 30 y e a r s f o l l o w i n g the date of sentence, unless such accessory penalties h a v e b e e n expressly remitted in the p a r d o n . A r t . 41. Reclusion perpetua and reclusion temporal — Their accessory penalties. — T h e penalties of reclusion perpetua a n d reclusion temporal shall c a r r y w i t h t h e m that of civil interdiction for life or d u r i n g the p e r i o d of the sentence as the case m a y b e , a n d that of p e r p e t u a l a b s o l u t e disqualification w h i c h the offender shall suffer e v e n t h o u g h p a r d o n e d as to the p r i n c i p a l penalty, unless the s a m e shall h a v e b e e n expressly remitted in the p a r d o n . •

When reclusion perpetua is imposed as a penalty next higher than that provided by law, what is to be the accessory penalty? W h e n the penalty imposed is reclusion perpetua as a penalty next higher in degree, the accessory penalty shall be that under Article 40 but the offender shall not be given the benefit of the provision of Article 27 until 40 years have elapsed, otherwise, there could be no difference at all between reclusion perpetua when imposed as a penalty next higher in degree and when it is imposed as a penalty fixed by law. (People v. Bago, G.R. No. 122290, April 6, 2000)

•

What are the accessory penalties of reclusion perpetua imposed as a penalty and reclusion perpetua imposed as next higher? T h e accessory of reclusion perpetua as a penalty is provided in Article 41: civil interdiction for life or during the period of the sentence as the case may be, and perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. 254


As a penalty next higher, the accessory penalties is that under Article 40 for the death penalty, when it is not executed by reason of commutation or pardon: perpetual absolute disqualification and that of civil interdiction during 30 years following the date of sentence, unless such accessory penalties have been expressly remitted in the pardon. (This distinction, has been obliterated by R . A . 9346 banning the death penalty.) A r t . 42. Prision mayor — Its accessory penalties. — T h e p e n a l t y of prision mayor shall c a r r y w i t h it that of t e m p o r a r y a b s o l u t e disqualification a n d that of p e r p e t u a l special disqualification f r o m the r i g h t of s u f f r a g e w h i c h the offender shall suffer a l t h o u g h p a r d o n e d as to the p r i n c i p a l penalty, unless the s a m e shall h a v e b e e n e x p r e s s l y remitted in the pardon. A r t . 43. Prision correccional — Its accessory penalties. — T h e p e n a l t y of prision correccional shall c a r r y with it that of s u s p e n s i o n f r o m p u b l i c office, f r o m the right to f o l l o w a p r o f e s s i o n or calling, a n d that of p e r p e t u a l special disqualification f r o m the r i g h t of suffrage, if the d u r a t i o n of s a i d i m p r i s o n m e n t shall exceed 18 months. T h e offender shall suffer the disqualification p r o v i d e d in this article a l t h o u g h p a r d o n e d as to the p r i n c i p a l penalty, unless the same shall h a v e b e e n e x p r e s s l y remitted i n the p a r d o n . A r t . 44. Arresto — Its accessory penalties. — T h e penalty of arresto shall c a r r y w i t h it that of suspension of the right to h o l d office a n d the r i g h t of suffrage d u r i n g the t e r m of the sentence. A r t . 45. Confiscation and forfeiture of the proceeds or instruments of the crime. — E v e r y penalty imposed for the commission of a felony shall c a r r y with it the forfeiture of the p r o c e e d s of the crime a n d the instruments or tools with w h i c h it w a s committed. S u c h p r o c e e d s a n d I n s t r u m e n t s or tools shall be confiscated a n d forfeited in favor of the G o v e r n m e n t , unless they be the p r o p e r t y of a third p e r s o n not liable for the offense, b u t those articles w h i c h a r e not subject of lawful commerce shall be destroyed.

255


What is required before the proceeds or instruments of the crime may be confiscated? The proceeds or instruments which are the property of third person who has no complicity in the crime cannot be confiscated unless the said articles are contraband or not subject of lawful commerce. Since confiscation is an accessory penalty, it is automatically imposed pursuant to Article 73.

Chapter Four A P P L I C A T I O N OF PENALTIES S e c t i o n O n e . — Rules for the application of penalties to the persons criminally liable and for the graduation of the same A r t . 46. Penalty to be imposed upon principals in general. — T h e p e n a l t y p r e s c r i b e d by l a w for the commission of a felony shall be i m p o s e d u p o n the p r i n c i p a l s in the commission of s u c h felony. W h e n e v e r the l a w p r e s c r i b e s a penalty for a felony in g e n e r a l , it shall be u n d e r s t o o d as a p p l i c a b l e to the c o n s u m m a t e d felony. T h e penalties in Book II are understood to be imposed on the principal offender and in the consummated stage. When the felony is frustrated or attempted and when accomplices or accessories participate in its commission, there is a need to lower the penalty by one or several degrees. Hence, the rules in this chapter. A r t . 47. In what cases the death penalty shall not be imposed; Automatic review of death penalty cases. — T h e death penalty shall be i m p o s e d in all cases in w h i c h it must be imposed u n d e r existing l a w s , except w h e n the guilty p e r s o n is b e l o w 18 y e a r s of a g e at the time of the commission of the crime or is m o r e t h a n 70 y e a r s of a g e or w h e n u p o n a p p e a l or automatic r e v i e w of the case by the S u p r e m e Court, the r e q u i r e d majority vote is not o b t a i n e d for the imposition of the death penalty, in w h i c h cases the penalty shall be reclusion perpetua. In all cases w h e r e the death penalty is imposed by the trial court, the r e c o r d s shall be f o r w a r d e d to the S u p r e m e C o u r t for automatic r e v i e w a n d j u d g m e n t by the court en banc, w i t h i n 20 d a y s b u t not earlier than 15 days after p r o m u l g a t i o n of the j u d g m e n t or notice of denial of any 257


motion for n e w trial or reconsideration. T h e transcript shall also be f o r w a r d e d within 10 days after the filing thereof by the stenographic reporter. (As amended by R.A. No. 7659)

Death Penalty •

What is the effect of R.A. 9346 on Article 47? Article 47 has become absolute because R . A . 9346 has proscribed again the imposition of the death penalty and in its stead shall be reclusion perpetua or life imprisonment as the case may be without any right of the offender to avail of the benefit of parole. (Section 3, R . A . 9346) As a matter of law, though, when a convict is below 18 when he committed the offense, with or without the death penalty law, the minor shall never be put to death because minority is a privileged mitigating circumstance, which is always considered and is never offset by any aggravating circumstance. (See Article 68)

•

Is there an automatic review of conviction where the penalty imposed is reclusion perpetua? None. It is only in cases where the penalty imposed is death that the trial court must forward the records of the case to the Supreme Court for automatic r e v i e w of the conviction. If the convicts did not file a notice of appeal or otherwise indicate their desire to appeal, the decision convicting them and imposing reclusion perpetua becomes final and unappealable. (Garcia v. People, G.R. No. 106581, November 18, 1999)

A r t . 48. Penalty for complex crimes. — W h e n a single act constitutes t w o o r m o r e g r a v e o r less g r a v e felonies, o r w h e n an offense is a necessary m e a n s f o r c o m m i t t i n g the other, the penalty for the most s e r i o u s c r i m e shall be i m p o s e d , the same to be a p p l i e d in its m a x i m u m p e r i o d . •

What are the two kinds of complex crimes? a.

Compound crime or delito compuesto - when a single act constitutes two or more grave or less grave felonies, and

258

APPLICATION OF PENALTIES

b.

complex crime proper or delito complejo - when an offense is a necessary means to commit the other.

What are the elements of compound crimes? 1.

A single act is committed by the offender

2.

T h a t single act resulted to t w o or more g r a v e and/or less g r a v e felonies

3.

T h e penalty provided is for the most serious in the m a x i m u m period.

T h e classic example of a single act constituting two homicides is that of a single bullet successively killing two victims. T h e felonies committed may be: [a] two or more grave felonies; [b] t w o or more less g r a v e felonies; or [c] one or more g r a v e and one or more less grave felonies. W h e n a light felony l i k e w i s e resulted, the light felony shall be treated as a separate offense. T h e basis of compound crimes is the singularity of the act, such as the single act of throwing hand grenade, killing some and seriously wounding a number of persons, thus, the single penalty. Give an example of a single act that does not result to a complex crime. T h e crime committed when a single act of pressing the trigger of an automatic sub-machine gun is not a complex crime. In v i e w of the special characteristic or mechanism of automatic machine guns and the offender knowing this fact, there are as many offenses as the numbers of victims of the bullets fired. It is error to impose a single penalty for the four murders committed relying on the doctrines enunciated in Pama, C.A., 44 O.G. 339; Lawas, 97 Phil. 975 [unrep., 1955]; and Pineda, 20 SCRA 748. (People v. Tabaco, G.R. Nos. 100382100385, March 19, 1997) t

In Pama, there was only one bullet that killed two persons. Hence, there was only a single act, which produced two crimes. In the instant case, TT fired the weapon, which contained 20 rounds of bullets, continuously. When the rifle

259


was recovered, the magazine was already empty. Moreover, several spent shells were recovered from the scene of the crime. Hence, the ruling Pama cannot be applied. W h a t is on all fours with these case is Desierto, C.A., 45 O.G. 4542 [1948] where accused killed five persons with a sub-machine gun which like an M-14, is capable of firing continuously. Desierto held that although the burst of shots was caused by one single act of pressing the trigger of the sub-machine gun, in view of its special mechanism, the person firing it has only to keep pressing the trigger with his finger and it would fire continually. Hence, it is not the act of pressing the trigger which should produce the several felonies, but the number of bullets which actually produced them. Pineda provided the definition of what a complex crime is. But Article 48 was not applied therein for there were actually several homicides committed by the perpetrators. It stated the "deeply rooted doctrine that when various victims expire from separate shots, such acts constitute separate and distinct crimes." "To apply the first half of Article 48, there must be singularity of criminal act; singularity of criminal impulse is not written into the law." T h e firing of several bullets by T T , although resulting from one continuous burst of gunfire, constitutes several acts. Each person, felled by different shots, is a victim of a separate crime of murder. T h e r e is no showing that only a single missile ed through the bodies of all four victims. T h e killing of each victim is thus separate and distinct from the other. Consequently, the four murders which resulted from a burst of gunfire cannot be considered a complex crime. T h e y are separate crimes. T h e accused must be held liable for each and every death he has caused, and sentenced accordingly to four reclusion perpetua. (People v. Tabaco) In another case, BB and CC fired at SB and R R . T h e bullet which killed SB was recovered from his head. RR suffered four gunshot wounds. There were here two offenders and two victims. T h e logical possibilities may be: (1) BB shot and killed SS (or JJ), while CC was fatally wounding JJ (or SS); or

260


(2) BB shot and killed both SS and JJ successively, i.e., with different shots; or (3)

CC successively and fatally hit SS and JJ.

Whichever scenario had actually materialized, the accused performed separate and distinct acts which were animated by a common criminal intent — to slay SS and the other of his group. Since BB and CC had acted in concert with each other, which of them had in fact fatally wounded SB and JJ becomes unimportant. T h e r e was no complex crime in the above scenario but two separate crimes because there was no singularity of acts. But since there was conspiracy, both of the accused are liable for the two homicides. They must be held guilty of two distinct crimes of homicide rather than the complex crime of double homicide. (People v. Caldito, G.R. Nos. 78432-33, February 9, 1992) (Contra: Lawas) Give an example of separate acts that constitute a complex crime. In Lawas, the accused and other of the Home Guard commenced firing at a large group of Maranaos at a signal from L L , and continued firing until he gave a cease-fire signal. About 50 Maranaos died in the slaughter. T h e accused w e r e found guilty of the compound crime of multiple homicide thusly: "One last question involves the determination of the number of crimes for which each of the appellants may be found guilty, whether each one should be considered as having committed as many crimes as there were persons who were killed, or only for one complex crime of multiple homicide. The information is for multiple murder, and no inference can be made therefrom, that the accused are being charged of as many offenses as there were victims. Then the evidence positively shows that the killing was the result of a single impulse, which was induced by the order of the leader to fire, and continued with the intention to comply therewith, as the firing stopped as soon as the leader gave the order to that effect. There was no intent on the part of the appellants either to fire at each and every one of the victims as separately and distinctly from each other. 261


"It has been held that if the act or acts resulted from a single criminal impulse, it constitutes a single offense. (People v. Acosta, 60 Phil. 158) So also it has been held that the act of taking two roosters belonging to two different persons in the same place and on the same occasion cannot give rise to two crimes having an independent existence of their own, because there are not two distinct appropriations nor two intentions that characterize two separate crimes. (People v. de Leon, 49 Phil. 237) A n d in Guillen, 47 O.G. No. 7, 3433, a single act, that of throwing a highly explosive hand grenade at President Roxas, resulting in the death of one victim and in physical injuries on others was considered as a single act, also falling under the first part of Article 48. It may be added that there is absolutely no evidence as to the number of persons killed by each and every one of the appellants, so even if we were induced to hold each appellant responsible for each and every death caused by him, it is impossible to carry that desire into effect as it is impossible to ascertain the individual deaths caused by each and everyone. We are, therefore, forced to find the appellants guilty of only one offense, that of multiple homicide for which the penalty to be imposed should be in the maximum period." (Why not 50 counts of homicide for each appellant in v i e w of conspiracy?) What are complex crimes proper? These are felonies denominated complex crime proper where when one offense is necessary to commit another. T h e two crimes thus committed comprise one complex crime. T h e first crime must be a necessary means to commit the other. This means that the first offense is committed to insure and facilitate the commission of the next crime. The bank's custodian of unissued Cashier's Checks, with grave abuse of confidence reposed in him as Assistant Cashier, forged the signature of officers authorized to sign the subject check and then deposited the check in the of a fictitious payee. Thereupon, the value of the check was taken by him. T h e forging of the signature of the officers authorized to sign the check was resorted to in order to obtain the amount of P36,480.30. Hence, the falsification of the check was a necessary means to commit qualified theft, resulting in a complex crime 262


of Qualified Theft Thru Falsification of Commercial Document. (People v. Salonga, June 2001). (The crime committed was not estafa but qualified theft because the Assistant Cashier did not have juridical possession of the funds involved.) What are cases where commission of two crimes will not result to complex crimes proper? a.

A crime to conceal another for the law requires a crime to commit another, not to conceal the other crime. If the cashier resorted to falsification to hide the taking of public funds, the falsification and the taking are separate offenses. W h e r e the treasurer effected payments to his co-accused for construction materials supposedly delivered to the province for various projects when in fact no such materials were delivered. To conceal the defraudation, accused used six vouchers which were intrinsically fake, the crimes committed are not complex but separate crimes of falsification and malversation. T h e falsifications cannot be regarded as constituting one continuing offense impelled by a single criminal impulse. Each falsification of a voucher constitutes one crime. T h e falsification of six vouchers results to six separate offenses; and each misappropriation as evidenced by a provincial voucher constitutes a separate offense. (People v. Sendaydiego, G.R. Nos. L-33252-54, January 20, 1978)

b.

A crime which is an element of the other for in that case, the former shall be absorbed by the latter such as tresing which is an element of robbery.

c.

A crime which has the same element as the other crime committed. Estafa and falsification of private documents have the same element of damage. T h e same damage cannot give rise to two crimes. Thus, there is no complex crime of estafa thru falsification of private documents.

d.

Where the intent is really to commit the second crime but the first act although also a crime is incidental to the commission of the second crime. For instance, in the taking away of a woman for the original intent to commit 263


rape on her, the taking is merely incidental to the crime of rape, hence, it is not complex crime of abduction with rape but only simple rape. What is the procedural requirement for the accused to be liable for a complex crime? It is a condition precedent that there is one information charging a complex felony. Although a single act resulted to two deaths, one murder and one homicide, the accused cannot be sentenced for a complex crime with one penalty where two separate informations were filed for said killings. This is true even though a t trial of the two criminal cases was held and a consolidated decision rendered. Accordingly, the accused should be meted a separate penalty for each of the crime charged in each information. (People v. De Vera, June 1999) Only one information should be filed for three murders and an attempted murder produced by an explosion caused by the hurling of a hand grenade into the bedroom of the victims. Article 48 on complex crimes governs inasmuch as all the felonies were produced by a single act. (People v. Carpo, G.R. No. 132676, April 4, 2001) Why is there only one penalty for complex crimes? T h e penalty for complex crimes for the most serious crime in the maximum period. Such penalty is beneficial to the accused for he is given a single penalty instead of as many penalties as there are crimes committed. T h e reason for the single penalty is that the basis of the felony is the singularity of the act. For instance, in the single act of shooting with a high-powered gun killing two persons with one bullet, without Article 48, the offender would have been penalized with two reclusion temporal. But with the provision on complex crimes, the penalty would be one reclusion temporal in the maximum period. What is the effect of R.A. 9346 on the penalty for complex crimes? T h e effect of the abolition of the death penalty on complex crimes is that the maximum period cannot be imposed on complex crimes punishable with reclusion perpetua to death. 264


•

What is the effect of complex crimes on the indeterminate sentence on the convict? T h e effect is that the minimum of the indeterminate sentence shall be imposed in the maximum period. Under the I S L , the minimum penalty should be within the whole range of the penalty next lower than that prescribed for the offense. However, under Article 48, the penalty shall be for the most serious in the maximum period. T a k e the case where the imposable penalty was prision mayor maximum to reclusion temporal minimum. One degree lower is prision mayor minimum to prision mayor medium being the next two periods in the scale of penalties, the full range of which is 6 years and 1 day to 10 years. This one degree lower penalty should be imposed in its maximum period or from 8 years and 1 day to 10 years. (Nizurtado v. Sandiganbayan, G.R. No. 107383, December 7, 1994)

•

Does Article 48 apply to imprudence? Y e s . Reckless imprudence resulting in damage to property is penalized with arresto mayor in its minimum and medium periods. Since arresto mayor is a correctional penalty, the quasi-offense is a less grave felony. Clearly, if a reckless, imprudent or negligent act results in two or more grave or less grave felonies, a complex crime is committed. However, where one of the resulting offenses in criminal negligence constitutes a light felony, there is no complex crime. T h e resulting offenses may be treated as separate or the light felony may be absorbed by the grave felony. Thus, the light felonies of damage to property and slight physical injuries, both resulting from a single act of imprudence, do not constitute a complex crime. T h e y cannot be charged in one information. T h e y are separate offenses subject to distinct penalties. Slight physical injuries is punishable by public censure only. Article 9, paragraph 3 defines light felonies as infractions of law carrying the penalty of arresto menor or a fine not exceeding P200, or both. Since public censure is classified under Article 25 as a light penalty, and is considered under the graduated scale provided in Article 71 as a penalty lower than arresto menor, it follows that the offense of reckless imprudence resulting in slight physical injuries is a light felony. 265


Where the single act of imprudence resulted in double less serious physical injuries, damage to property amounting to P 10,000 and slight physical injuries, it is correct to file a separate complaint for the slight physical injuries and another complaint for the lesiones menos graves and damage to property. (Reodica v. Memoracion) Can offenses be complexed with felonies? N o . Offenses punished in special laws cannot be complexed with felonies penalized under the R P C . For instance, rape cannot be complexed with violation of Section 5(b), Article I I , R.A. 7610 (sexual abuse of minor). Article 48 does not allow a felony to be complexed with an offense penalized by a special law. (People v. Araneta, 48 Phil. 650) Besides complex crime and compound crime, what are the other kinds of plurality of crimes where a single penalty is imposed? a.

Composite crimes or special complex crimes;

b.

Continued crime or delito continuado; and

c.

Continuing crimes or transitory crimes.

Article 312 on usurpation of real property or real rights therein is a distinct specie of plurality of crimes. It is a single felony composed of different felonies but which carries a twotiered penalty of fine for the resurpation and the proper penalty for the means used to commit the usurpation. What are composite crimes? These are crimes which in the eyes of the law are treated as single indivisible offenses although in reality are made up of more than one crime. T h e y are also called special complex crimes. There is only one provision of law violated which defines the specific crimes composing the single indivisible felony and imposing a specific penalty therefor. Examples of which are: 1.

Article 294 on robbery with homicide, robbery with rape, robbery with mutilation, robbery w i h serious physical injuries.

2.

Article 320 on arson with homicide.

266


3.

Article 267 on kidnapping with homicide, kidnapping with rape, kidnapping with serious physical injuries.

4.

Article 266-A on rape with homicide. Interestingly, rape with homicide was a complex crime under Article 48 in relation to Articles 335 and 249, prior to the amendment by R . A . 7659 and 8353.

Distinguish composite crimes from complex crimes. a.

Composite crime — the combination of the offenses is fixed by law, e.g., kidnapping with rape (Article 267) Complex crime — the combination is not specified but in general , that is, grave and/or less grave; or one offense being the necessary means to commit the other, e.g. forcible abduction with rape (Article 342 and 266-A)

b.

Composite crime — the penalty for the specified combination of crimes is also specific, e.g., kidnapping with rape which carries reclusion perpetua [to death]. Complex crime — the penalty is not specific but is for the most serious offense in the maximum period.

c.

Composite crimes — even if there are more than one count of the component crime such as several rapes or several homicides accompanying the kidnapping, there is just one composite crime to be charged. A l l the excess homicides/ rapes accompanying the kidnapping are absorbed in kidnapping with homicide/rape. Complex crime — if there is more than one count of the crime forming part of the complex crime, the first shall be complexed while the other counts may be treated as separate crime. In forcible abduction with rape only the first rape is complexed with the abduction and the subsequent rapes shall be charged separately. (People v. Jose)

d.

Composite crimes — if a light felony accompanied the commission of the composite offense, such fight felony is absorbed. Hence, robbery with serious physical injuries absorbs maltreatment or slight physical injuries committed in the course of the robbery.

267


Complex crime — if a light felony accompanies the commission of the complex crime, the light felony may be subject to separate information. e.

Composite crimes — penalized in a single provision of law, e.g.. Article 267 on kidnapping with rape and given a single specific penalty. Complex crimes — penalized by two provisions of law in relation to Article 48, e.g., rape under Article 266-A and forcible abduction under Article 342 and penalized under Article 48 for the most serious in the maximum period.

f.

Composite crimes — offenses under special law become composite, e.g., carnapping with homicide.

can

Complex crimes — It is not possible to complex under Article 48 two offenses; one felony and one offense. •

What is the effect when one of the crimes in the information charging complex crimes is not proved? The effect is that the accused can be convicted of the other. Although it is true that the term "homicide" as used in special complex crime of rape with homicide is to be understood in its generic sense, and includes murder and slight physical injuries committed by reason or on the occasion of rape, where a complex crime is charged and the evidence falls to the charge as to one of the component offense, the accused can be convicted of the other. In rape with homicide, to be convicted of murder in case the evidence fails to the charge of rape, the qualifying circumstance must be sufficiently alleged and proved. Otherwise, it would be a denial of the right of the accused to be informed of the nature of the offense with which he is charged. Every element of the offense must be alleged in the complaint or information. T h e main purpose of requiring the various elements of a crime to be set out in an information is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense.

268


An accused cannot be convicted of an offense higher than that for which he is tried. It matters not how conclusive and convincing the evidence of guilt may be, but an accused cannot be convicted of any offense, unless it is charged in the complaint or information for which he is tried, or is necessarily included in that which is charged. He has a right to be informed of the nature of the offense with which he is charged before he is put on trial. To convict an accused of a higher offense than that charged in the complaint or information under which he is tried would be an unauthorized denial of that right. (People v. Gallarde, G.R. No. 133025, February 17, 2000) W h i l e it may appear that forcible abduction was also committed, the appellant cannot be convicted of the complex crime of forcible abduction with rape. W h i l e the information sufficiently alleges the forcible taking of complainant from Cebu to Masbate, it fails to allege "lewd designs." When charging a complex crime such as forcible abduction with rape, the prosecution must allege and prove all the elements of forcible abduction, as w e l l as all the elements of rape. When appellant, using a blade, forcibly took away complainant for the purpose of sexually assaulting her, as in fact he did rape her, the rape may then absorb forcible abduction. T h e crime is simple rape only. (People v. Sabredo, G.R. No. 126114, May 11, 2000) Is arson with homicide a complex crime? N o . If death results by reason or on the occasion of arson, the crime is simply arson although the imposable penalty is mandatory death (now reclusion perpetua). The deaths here are not separate crimes but are merely qualifying circumstance (aggravated arson). (Article 320, as amended by R . A . 7659) Indeed, arson with homicide is in the nature of a special complex crime because the crimes composing this felony — arson and homicide (which is used in the generic sense) are specified and the penalty therefor is likewise specified — [death] reclusion perpetua. For instance, where four persons were killed first and an infant died as a result of the burning of their house thereafter, the crime committed is arson and four counts of murder, each count aggravated by dwelling. For the arson where death 269


resulted, they should be sentenced to a separate term of reclusion perpetua, and for the four counts of murder, four each of reclusion perpetua to be served successively in accordance with Article 70. (People v. Cedenio, January 1994) What are continued crimes? Continued crimes or delito continuado also known as continuous crimes, the offender, impelled by a single criminal impulse, commits a series of overt acts at about the same time in about the same place and all the overt acts violate one and the same provision of law. Santiago u. Garchitorena, G.R. No. L-109266, December 2, 1993, explained that technically, only one crime was committed, hence, only one information should be filed. T h e 32 Amended Informations charge what is known as "delito continuado" or "continued crime" and sometimes referred to as "continuous crime." The original information charged petitioner with performing a single criminal act — that of her approving the application for legalization of aliens not qualified under the law to enjoy such privilege. T h e original information also averred that the criminal act committed: [i] was in violation of a law — E.O. 324 dated A p r i l 3, 1988; [ii] caused undue injury to one offended party, the Government; and [iii] was done on a single day, i.e., on or about October 17, 1988. T h e 32 A m e n d e d Informations reproduced verbatim the allegation of the original information, except that instead of the word "aliens" in the original information each amended information states the name of the individual whose stay was legalized. T h e strong probability even exists that the approval of the application for the legalization of the stay of the 32 aliens was done by a single stroke of the pen, as when the approval was embodied in the same document. M a y the principle of delito continuado be applied to special laws? Y e s . T h e concept of delito continuado, although an outcrop of the Spanish Penal Code, has been applied to crimes penalized under special laws. Under Article 10, the R P C shall 270


be supplementary to special laws, unless the latter provide the contrary. Hence, legal principles developed therefrom may be applied in supplementary capacity to crimes punished under special laws, (id.) •

What is the "single larceny" doctrine? T h e trend in theft cases is to follow the "single larceny" doctrine, that is, the taking of several things, whether belonging to the same or different owners, at the same time and place constitutes but one larceny. T h e "separate larceny doctrine," under which there was a distinct larceny as to the property of each victim, has been abandoned. Also abandoned was the doctrine that the government has the discretion to prosecute the accused for one offense or for as many distinct offenses as there are victims, (id.)

•

•

Give some examples of cases of delito continuado. 1.

T h e theft of 13 cows belonging to different owners committed by the accused at the same place and at the same period of time. (People v. Tumlos, 67 Phil. 320)

2.

T h e theft of six roosters belonging to two different owners from the same coop and at the same period of time. (People v. Jaranillo, 55 SCRA 563)

3.

T h e illegal charging of fees for services rendered by a lawyer every time he collects veteran's benefits on behalf of a client, who agreed that the attorney's fees shall be paid out of said benefits. (People v. Sabbun, 10 SCRA 156) T h e collections of the legal fees were impelled by the same motive, that of collecting fees for services rendered, and all acts of collection were made under the same criminal impulse.

Give examples when the concept of delito continuado was not applied. 1.

T w o estafa cases one of which was committed during the period from January 19 to December 1955 and the other from January to July 1956. (People v. Dichupa, 113 Phil. 306) T h e said acts were committed on different occasions.

271


•

2.

Several malversations committed in M a y , June and July and falsifications to conceal the said offenses committed in August and October. The malversations and falsifications were not the result of only one purpose or of only one resolution to embezzle and falsify. (People v. Cid, 66 Phil. 354)

3.

T w o estafa cases, one committed in December involving the failure of the collector to turn over the installments for a radio and the other in June involving the pocketing of the installments for a sewing machine. (People v. Ledesma, 73 SCRA 77)

4.

Estafa cases committed by the conversion by the agent of collections from customers of the employer made on different dates. (Gamboa v. CA, 68 SCRA 308)

What is a continuing crime? 1.

In the Rules of Court it is one where any of the elements of the offense was committed in different localities such that the accused may be indicted in any of those localities.

2.

It may also refer to any offense which is continuing in time, e.g., rebellion which may have been started years ago by the offender and continuing up to the present.

Rebellion, insurrection, conspiracy and proposal to commit such crimes are in the nature of continuing offenses, which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. (Garcia-Padilla v. Enrile, 121 SCRA) Violation of B.P. 22 is in the nature of a continuing crime. Venue is determined by the place where the elements of making, issuing, or drawing of the check and delivery thereof are committed. Yabut, G.R. No. L-42847, April 29, 1977, explained that a person indicted with a transitory offense may be validly tried in any jurisdiction where the offense was in part committed. T h e place where the bills were written, signed or dated does not necessarily fix or determine the place where they were executed. What is of decisive importance is the delivery thereof which is the final act essential to its consummation as an obligation. (Ibasco v. CA ) 272


•

When an act or acts constitute more than one offense, for what shall the accused be liable? His liability may be for: a.

A single crime, with one crime absorbing the other offenses;

b.

A complex crime when the offenses constitute grave or less grave felonies;

c.

A special complex crime, with each offense constituting elements of the composite offense; or

d.

T w o separate crimes.

For instance, the taking of a woman forcibly and thereafter, rape was committed on her. H o w should the offenders be charged? a.

If the original intent is to rape, the taking is merely incidental to commit the intended offense the crime is simple rape.

b.

If the intention is to take the woman against her will with l e w d designs, complex crime of forcible abduction with rape provided the information will allege lewd designs.

c.

If the original intention is to kidnap the woman for ransom and thereafter, rape is committed, the offense committed is special complex crime of kidnapping with rape.

d.

If in (b) above, there were several counts of rape, the first rape shall be complexed with the forcible abduction and the subsequent rapes shall be treated as separate crimes.

A r t . 49. Penalty to be imposed upon the principals when the crime committed is different from that intended. — In cases in w h i c h the felony committed is different f r o m that which the offender intended to commit, the f o l l o w i n g rules shall be observed: 1.

If the penalty p r e s c r i b e d for the felony committed be h i g h e r than that c o r r e s p o n d i n g to the offense w h i c h the accused intended to commit, the penalty c o r r e s p o n d i n g to the latter shall be imposed in its maximum period. 273


•

2.

If the penalty p r e s c r i b e d for the felony committed be l o w e r than that c o r r e s p o n d i n g to the one w h i c h the accused intended to commit, the penalty for the former shall be imposed in its m a x i m u m p e r i o d .

3.

T h e rule established by the next p r e c e d i n g p a r a g r a p h shall not be a p p l i c a b l e if the acts committed by the guilty p e r s o n shall also constitute an attempt or frustration of a n o t h e r crime, if the l a w prescribes a h i g h e r penalty for either the latter offenses, in w h i c h case, the penalty p r o v i d e d for the attempted or the frustrated c r i m e shall be i m p o s e d in the m a x i m u m p e r i o d .

To what circumstance does Article 49 apply? A r t i c l e 49 applies to error in personae. It cannot apply to praeter intentionem which is covered by A r t i c l e 13. It does not apply to complex crimes resulting from aberratio ictus which are covered by A r t i c l e 48. Article 49 provides for the imposition of the lower penalty in the maximum period, whereas Article 48 prescribes the penalty for the most serious offense in the maximum period. The penalties for the intended crime and for the actual crime committed are compared and the lower penalty is imposed in the maximum period, unless the crime committed constitutes an attempt or frustration of another, and the law provides a higher penalty for the frustrated or attempted felony, the penalty for the latter shall be imposed in the maximum period. For instance, if the intended crime is homicide but due to error in personae, parricide was committed, the penalty for homicide shall be imposed. If parricide w a s intended, but homicide was committed, the lower penalty shall be imposed. In effect, error in personae is an extenuating circumstance. If, however the intended and the actual crimes committed are both homicides, there is no lower penalty to impose. Error in personae in such case is not extenuating.

A r t . 50. Penalty to be imposed upon principals of a frustrated crime. — T h e penalty next l o w e r in d e g r e e t h a n that p r e s c r i b e d 274


b y l a w for the c o n s u m m a t e d felony shall b e imposed u p o n the p r i n c i p a l s in a f r u s t r a t e d felony. A r t . 51. Penalty to be imposed upon principals of attempted crime. — A p e n a l t y l o w e r by t w o d e g r e e s t h a n that p r e s c r i b e d b y l a w for the c o n s u m m a t e d felony shall b e imposed u p o n the p r i n c i p a l s in an attempt to commit a felony. A r t . 52. Penalty to be imposed upon accomplices consummated crime. — T h e penalty next l o w e r in d e g r e e that p r e s c r i b e d b y l a w for the c o n s u m m a t e d felony be i m p o s e d u p o n the accomplices in the commission c o n s u m m a t e d felony.

in a than shall of a

A r t . 53. Penalty to be imposed upon accessories to the commission of a consummated felony. — T h e p e n a l t y l o w e r by t w o d e g r e e s t h a n that p r e s c r i b e d b y l a w for the c o n s u m m a t e d felony shall be i m p o s e d u p o n the accessories to the commission of a c o n s u m m a t e d felony. A r t . 54. Penalty to be imposed upon accomplices in a frustrated crime. — T h e p e n a l t y next l o w e r in d e g r e e than that p r e s c r i b e d b y the l a w for the f r u s t r a t e d felony shall b e imposed u p o n the accomplices in the commission of a frustrated felony. A r t . 55. Penalty to be imposed upon accessories of a frustrated crime. — T h e p e n a l t y l o w e r by t w o d e g r e e s than that p r e s c r i b e d b y l a w for the f r u s t r a t e d felony shall b e imposed u p o n the accessories to the commission of a frustrated felony. A r t . 56. Penalty to be imposed upon accomplices in an attempted crime. — T h e penalty next l o w e r in d e g r e e than that p r e s c r i b e d by l a w for an attempt to commit a felony shall be i m p o s e d u p o n the accomplices in an attempt to commit the felony. A r t . 57. Penalty to be imposed upon accessories of an attempted crime. — T h e penalty l o w e r by t w o degrees than that p r e s c r i b e d by l a w for the attempt shall be imposed upon the accessories to the attempt to commit a felony. A r t . 58. Additional penalty to be imposed upon certain accessories. — T h o s e accessories falling within the of p a r a g r a p h 3 of Article 19 of this C o d e w h o should act with abuse of their p u b l i c functions, shall suffer the additional penalty of absolute p e r p e t u a l disqualification if the principal offend275


er shall be guilty of a g r a v e felony, a n d that of absolute temp o r a r y disqualification if he shall be guilty of a less g r a v e felony. A r t . 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are impossible. — W h e n the person intending to commit an offense has a l r e a d y p e r f o r m e d the acts for the execution of the same but nevertheless the crime w a s not p r o d u c e d by r e a s o n of the fact that the act intended w a s by its n a t u r e one of impossible accomplishment or b e c a u s e the m e a n s e m p l o y e d by such person a r e essentially i n a d e q u a t e to p r o d u c e the result desired by him, the court, h a v i n g in m i n d the social d a n g e r a n d the d e g r e e o f criminality s h o w n b y the offender, shall impose u p o n h i m the penalty of arresto mayor or a fine r a n g i n g f r o m 200 to 500 pesos. A r t . 60. Exceptions to the rules established in Articles 50 to 57. — T h e provisions c o n t a i n e d in A r t i c l e s 50 to 57, inclusive, of this C o d e shall not be a p p l i c a b l e to cases in w h i c h the l a w expressly p r e s c r i b e s the p e n a l t y p r o v i d e d for a f r u s t r a t e d or attempted felony, or to be i m p o s e d u p o n a c c o m p l i c e s or accessories. •

Why are the rules in Articles 50-57 prescribed? T h e penalties in Book II are understood to be imposed upon the principal offender for the consummated felony. (Article 46) Hence, there is a need to provide for the rules when the crime is not consummated, and when the offenders include accomplices and/or accessories. An additional one-degree deduction from the penalty for frustrated and attempted parricide, murder or homicide is granted in Article 250 because of the gravity of the penalty on said felonies.

•

How are Articles 50-57 applied in relation to Article 61? Whenever the law prescribes a penalty for a felony in general , it shall be understood as applicable to the consummated felony and against the principal offender. Hence, every penalty in the R P C should be understood as imposed upon the principal for a consummated felony. 276


It is thus necessary that the penalty should be determined according to the degree of participation and the stage of accomplishment. A p p l y i n g Articles 50-57 in relation to Article 61 below is a table of reduction of penalties by degrees considering the participation in and the stage of accomplishment of a felony: CONSUMMATED PRINCIPAL ACCOMPLICE ACCESSORY

as provided -1 -2

FRUSTRATED ATTEMPTED -1 -2 -3

-2 -3 -4

In consummated homicide the principal gets reclusion temporal. T h e penalty of an accomplice shall be one degree lower or prision mayor; accessory shall get two degrees lower or prision correccional. If the homicide is the frustrated stage, the accomplice shall get two degrees lower than reclusion temporal or prision correccional and so on. Article 249 provides the penalty of reclusion temporal for homicide. U n d e r Article 51, the penalty for an attempted crime is two degrees lower than that prescribed by law. Attempted homicide is thus punishable by prision correccional. A r t . 61. Rules of graduating penalties. — F o r the p u r p o s e of g r a d u a t i n g the penalties w h i c h , a c c o r d i n g to the provisions of A r t i c l e s 50 to 57, inclusive, of this C o d e , a r e to be imposed u p o n p e r s o n s guilty as p r i n c i p a l s of any frustrated or attempted felony, or as accomplices or accessories, the f o l l o w i n g rules shall b e o b s e r v e d : 1.

W h e n the penalty p r e s c r i b e d for the felony is single a n d indivisible, the penalty next l o w e r in d e g r e e shall be that immediately f o l l o w i n g that indivisible penalty in the respective g r a d u a t e d scale p r e s c r i b e d in Article 71 of this Code.

2.

W h e n the penalty p r e s c r i b e d for the crime is composed of t w o indivisible penalties, or of one or more divisible penalties to be imposed to their full extent, the penalty next l o w e r in d e g r e e shall be that immediately f o l l o w i n g the lesser of the penalties p r e s c r i b e d in the respective g r a d u a t e d scale. 277


3.

W h e n the penalty p r e s c r i b e d for the crime is composed of one or t w o indivisible penalties a n d the m a x i m u m p e r i o d of another divisible penalty, the penalty next l o w e r in d e g r e e shall be composed of the m e d i u m a n d m i n i m u m periods of the p r o p e r divisible penalty a n d the m a x i m u m p e r i o d of that immediately f o l l o w i n g in said respective g r a d u a t e d scale.

4.

W h e n the p e n a l t y p r e s c r i b e d for the c r i m e is composed of several periods, corresponding to different d i v i s i b l e p e n a l t i e s , the p e n a l t y n e x t l o w e r i n d e g r e e s h a l l b e c o m p o s e d o f the p e r i o d i m m e d i a t e l y f o l l o w i n g the m i n i m u m p r e s c r i b e d a n d o f the t w o n e x t f o l l o w i n g , w h i c h s h a l l b e t a k e n f r o m the p e n a l t y p r e s c r i b e d , i f p o s s i b l e ; o t h e r w i s e f r o m the p e n a l t y i m m e d i a t e l y f o l l o w i n g i n the a b o v e m e n t i o n e d r e s p e c t i v e g r a d u a t e d scale.

5.

W h e n the l a w p r e s c r i b e s a penalty for a c r i m e in some m a n n e r not specially p r o v i d e d for in the f o u r p r e c e d i n g rules, the courts, p r o c e e d i n g b y a n a l o g y , shall impose c o r r e s p o n d i n g penalties u p o n those guilty as principals of the f r u s t r a t e d felony, or of attempt to commit the same, a n d u p o n accomplices a n d accessories.

Why is there a need for the rules in graduating penalties under Article 61? Article 61 is necessary to guide the courts how to lower the penalty. In the application of the rules therein, it is to be understood that each penalty prescribed by l a w for every felony is a degree. Thus, generally when the penalty imposed comprises of two periods, the two-period penalty is deemed as one degree and the penalty next lower in degree should be composed of two periods also. If the penalty is composed of one period only, that is a degree for purposes of the rules and the next lower penalty shall also be made up of one period. T h e scale of penalties provided in Article 71 is to be used in determining the penalty lower in degree than that prescribed.

278


Explain the rules in Article 6 1 . R u l e 1: W h e n the penalty imposed for the offense is single and indivisible, the penalty next lower in degree shall be that immediately following that indivisible penalty in the respective graduated scale in Article 71. T h e r e is now only one indivisible penalty - reclusion perpetua. T h e next lower in degree is the penalty immediately following it in which is reclusion temporal. R u l e 2: W h e n the penalty prescribed is two indivisible penalties, or one or more divisible penalties to be imposed to their full extent, the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed. There is no more two indivisible penalties because of R . A . 9346. Thus, the first part of the rule is no longer operative. T h e second part says that when the penalty prescribed is composed of one or more divisible penalties to be imposed to their full extent, the penalty next lower in degree shall be that immediately following the lesser of the penalties. For instance, when the penalty imposed is prision mayor to reclusion temporal the penalty next lower in degree is that immediately following prision mayor, which is prision correccional. R u l e 3: W h e n the penalty prescribed is composed of one or two indivisible penalties and the maximum period of another divisible penalty, the penalty next lower in degree shall be composed of the medium and minimum periods of the proper divisible penalty and the maximum period of that immediately following. This rule refers to a three-period penalty: reclusion temporal, maximum period to death and the next lower penalty is also composed of three periods - prision mayor, maximum period to reclusion temporal, medium period. [This is now academic due to the demise of the death penalty.] The rule can also apply to a two-period penalty composed of one indivisible penalty and the maximum period of a divisible penalty - reclusion temporal, maximum to reclusion perpetua. T h e penalty next lower is the same for the threeperiod penalty: prision mayor, maximum to reclusion temporal, medium, as expressly stated in Rule 3 of Article 61. 279


R u l e 4: When the penalty prescribed for the crime is composed of several periods, corresponding to different divisible penalties, the penalty next lower in degree shall be composed of the period immediately following the minimum prescribed and of the two next following, which shall be taken from the penalty prescribed, if possible; otherwise from the penalty immediately following in the respective graduated scale. The penalty for brigandage under Article 306 is prision mayor, medium to reclusion temporal, minimum, a penalty composed of several periods corresponding to different divisible penalties. The penalty next lower in degree shall likewise be composed of different divisible penalties - prision correccional, medium period to prision mayor, minimum. •

When the penalty prescribed is not provided for in the rules in Article 61, how should the court proceed in lowering the penalty? Article 61(5) provides that when the law prescribes a penalty in some manner not specially provided for in the four preceding paragraphs, the courts shall proceed by analogy. Hence, when the penalty prescribed for the crime consists of one or two penalties to be imposed in their full extent, the penalty next lower in degree shall likewise consist of as many penalties which follow the former in the scale in Article 71. For instance, R . A . 6425 as amended by R . A . 7659 imposes the complex penalty consists of three discrete penalties in their full extent - prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto menor, destierro and arresto mayor. There can be no further reduction, since only the penalties of fine and public censure remain in the scale. (People v. Simon, G.R. No. 930280, July 29, 1994) S e c t i o n T w o . — Rules for the application of penalties with regard to the mitigating and aggravating circumstances, and habitual delinquency

A r t . 62. Effects of the attendance of mitigating or aggravating circumstances and of habitual delinquency. — M i t i g a t i n g or a g g r a v a t i n g circumstances a n d h a b i t u a l d e l i n q u e n c y shall

280


be t a k e n into a c c o u n t for the p u r p o s e of d i m i n i s h i n g or i n c r e a s i n g the p e n a l t y in conformity w i t h the f o l l o w i n g rules: 1.

A g g r a v a t i n g c i r c u m s t a n c e s w h i c h in themselves constitute a c r i m e especially p u n i s h a b l e by l a w or w h i c h a r e i n c l u d e d by the l a w in defining a crime a n d p r e s c r i b i n g the p e n a l t y t h e r e f o r shall not b e t a k e n into a c c o u n t for the p u r p o s e of i n c r e a s i n g the p e n a l t y .

1 ( a ) . W h e n i n the c o m m i s s i o n o f the c r i m e , a d v a n t a g e w a s t a k e n b y the o f f e n d e r o f his p u b l i c position, the p e n a l t y to be i m p o s e d shall be in its m a x i m u m r e g a r d l e s s o f m i t i g a t i n g circumstances. T h e m a x i m u m p e n a l t y shall b e i m p o s e d i f the offense w a s c o m m i t t e d b y a n y p e r s o n w h o b e l o n g s to an organized/syndicated crime group. A n o r g a n i z e d / s y n d i c a t e d crime g r o u p m e a n s a g r o u p of 2 or m o r e p e r s o n s c o l l a b o r a t i n g , confede r a t i n g o r m u t u a l l y h e l p i n g one a n o t h e r for p u r poses of g a i n in the commission of any crime. (As amended by R.A. No. 7659.) 2.

T h e same r u l e shall a p p l y w i t h respect to any a g g r a v a t i n g circumstances inherent in the crime to such a d e g r e e that it must of necessity a c c o m p a n y the c o m m i s s i o n thereof.

3.

A g g r a v a t i n g or mitigating circumstances w h i c h arise f r o m the m o r a l attributes of the offender, or f r o m his p r i v a t e relations with the offended p a r t y , or f r o m a n y other p e r s o n a l cause, shall only serve to a g g r a v a t e or mitigate the liability of the p r i n c i p a l s , accomplices a n d accessories as to w h o m each circumstances a r e attendant.

4.

T h e circumstances w h i c h consist in the material execution of the act, or in the means employed to accomplish it, shall serve to a g g r a v a t e or mitigate the liability of those persons only w h o had k n o w l e d g e of them at the time of the execution of the act or their cooperation therein. 281


5.

H a b i t u a l delinquency shall have the effects:

following

a.

U p o n a 3rd conviction, the culprit shall be sentenced to the penalty p r o v i d e d by l a w for the last crime of w h i c h he be f o u n d guilty a n d to the a d d i t i o n a l penalty of prision correccional in its m e d i u m a n d m a x i m u m periods;

b.

U p o n a 4th conviction, the culprit shall be sentenced to the penalty p r o v i d e d for the last crime of w h i c h he be f o u n d guilty a n d to the a d d i t i o n a l p e n a l t y of prision mayor in its minimum and m e d i u m periods; and

c.

U p o n a 5th or a d d i t i o n a l conviction, the c u l p r i t shall be sentenced to the p e n a l t y p r o v i d e d for the last c r i m e o f w h i c h h e b e f o u n d guilty a n d to the a d d i t i o n a l p e n a l t y of prision mayor in its m a x i m u m p e r i o d to reclusion temporal in its m i n i m u m p e r i o d . N o t w i t h s t a n d i n g the p r o v i s i o n s of this article, the total of the t w o penalties to be imp o s e d u p o n the offender, in conformity h e r e w i t h , shall in no case e x c e e d 30 y e a r s . F o r the p u r p o s e of this article, a p e r s o n shall b e d e e m e d t o b e h a b i t u a l d e l i n q u e n t , i f w i t h i n a p e r i o d of 10 y e a r s f r o m the d a t e of his r e l e a s e or last conviction of the c r i m e s of serious or less serious p h y s i c a l i n j u r i e s , robo, hurto, estafa, or falsification, he is f o u n d guilty of a n y of said c r i m e s a 3rd time or oftener.

What are the different kinds of modifying circumstances in this article? a.

Those which in themselves constitute a crime such as "by means of fire" or arson

b.

Those included by law in defining a crime and prescribing the penalty, e.g., laying hands upon a person in authority which is direct assault. 282


c.

Those inherent in the crime, e.g., dwelling in tres to dwelling. These shall no longer be considered in imposing the penalty because in [a] and [b] they were already considered by the law in prescribing the penalty for the offense and in [c] the circumstance is absorbed by the crime committed.

d.

Those which are caused by the moral attributes of the offender or his relations with the offended or any other personal causes [paragraph 3] — only the offender having such attribute shall be affected. Thus, only the minor shall enjoy the privileged mitigating circumstance of minority. In parricide, only the relative-offender shall be liable therefor; the co-conspirator shall be liable for homicide or murder, as the case may be. Habitual delinquency w i l l be considered against the one to whom it pertains and w i l l not aggravate the crime of the other offenders.

What modifying circumstances were added by R.A. 7659 in this article? 1.

W h e n advantage is taken by the offender of his public position, the penalty shall be in its maximum period, regardless of the presence of mitigating circumstances. T h e rule in offsetting of aggravating and mitigating circumstances under Article 64 shall not apply when the offender abused his official position in the commission of the offense.

2.

An organized/syndicated crime group formed for purposes of gain. "Gain" here should not be taken to mean the technical word "gain" in theft or robbery but should pertain to those crimes where the offenders will profit, such as estafa, kidnapping for ransom, etc.

T h e phrase "same rule" in N o . 2 of this Article should be understood to refer to paragraph 1 without regard to paragraph 1(a) which is an amendment by R . A . 7659. Therefore, aggravating circumstances which are inherent to the crime

283


shall not increase the penalty to the maximum period and shall no longer be considered in the determination of the penalty. What is the essence of a syndicated or organized crime group? The essence is that it was organized for the general purpose of committing crimes for gain. It is not enough that accused and his companions confederate and mutually help one another for the purpose of gain, there must be proof that they were a group organized for that general purpose. They do not merely conspire (which is not aggravating) to commit a particular crime but formed to commit crimes for gain. They practically make it their industry or profession to commit such crimes. What emerges from the Senate deliberation of what is now Article 2 ( l ) ( a ) (S.B. N o . 891) is the deed of a group of persons, at least two in number, which is organized for the purpose of committing crimes for gain. W h i l e the evidence shows that the accused and his companions planned to rob SS, there is no evidence that they were organized to commit crimes for gain. There was a conspiracy to commit robbery but not a syndicate or organized crime group. (People v. Alberca, G.R. No. 117106, June 26, 1996) In the deliberation of S.B. 891 that became R . A . 7659, Senator Tolentino explained the difference between conspiracy and organized crime syndicate: "The difference, of course, is that in the case of syndicated crime, the group is an organized group, while such organization is not required in the case of mere conspiracy. Two or more persons just agree to commit a crime, we have a conspiracy, while in the case of a syndicate there is a group that is actually organized for crime purposes, "x x x "Well, in the case of a band that means all of them participate in the commission of the offense. All the , I think, four or more participate in the commission of the offense. But in the case of a syndicated crime, maybe one member of the group alone commits a crime, while in the organized group one or two may commit the crime." x x x "Senator Tolentino. Mr. President, I think the concept of syndicate here is different from conspiracy. Two or more persons may conspire to commit robbery. All right. That is a particular offense. But in the case of a syndicate, the

284


concept here is a group that is organized for commission of crimes, not only a particular crime, but of crimes. So, there is a big difference between the conspiracy and the syndicate." x x x "But when we talk of conspiracy, we mean an agreement between two or more persons to commit a particular crime. I do not think the Gentleman can raise that to a level of making it an aggravating circumstance because there is no reason for it. The reason in the syndicated crime is that it is practically a profession that is being adopted by a group." (cited in People v. Alberca) •

What are the elements of habitual delinquency and its effect? T h e elements of habitual delinquency are: 1.

T h e felonies must be any of falsification, robbery, estafa, theft, serious and less serious physical injuries;

2.

T h e r e must be at least three convictions; and

3.

T h e third conviction must take place within 10 years from the last conviction or release.

T h e effect of habitual delinquency is to impose upon the convict an additional penalty, which increases with the number of his convictions from the third and so forth, but the total of the two penalties (for the crime and for the habitual delinquency) should not be more than 30 years. Thus, habitual delinquency is in effect not a "regular" aggravating circumstance but is akin to a felony with its own escalating penalty. Another effect is that habitual delinquents are disqualified from the retroactive application of a favorable penal law. A r t . 63. Rules for the application of indivisible penalties. — In all cases in w h i c h the l a w p r e s c r i b e s a single indivisible penalty, it shall be a p p l i e d by the courts r e g a r d l e s s of any mitigating or a g g r a v a t i n g circumstances that may have attended the commission of the deed. In all cases in w h i c h the l a w prescribes a penalty composed of t w o indivisible penalties the following rules shall be o b s e r v e d in the application thereof:

285


•

1.

W h e n in the commission of the d e e d there is present only one a g g r a v a t i n g circumstance, the g r e a t e r penalty shall be a p p l i e d .

2.

W h e n there a r e neither mitigating n o r a g g r a v a t i n g circumstances in the commission of the deed, the lesser penalty shall be a p p l i e d .

3.

W h e n the commission of the act is attended by some mitigating circumstance a n d there is no a g g r a v a t i n g circumstance, the lesser penalty shall be applied.

4.

W h e n both m i t i g a t i n g a n d a g g r a v a t i n g c i r c u m stances a t t e n d e d the commission of the act, the courts shall r e a s o n a b l y a l l o w t h e m to offset one a n o t h e r i n c o n s i d e r a t i o n o f their n u m b e r a n d i m p o r t a n c e , for the p u r p o s e o f a p p l y i n g the p e n a l t y i n a c c o r d a n c e w i t h the p r e c e d i n g r u l e s , a c c o r d i n g to the result of s u c h c o m p e n s a t i o n .

What are the two kinds of penalties in this Article? They are the following: 1.

Single indivisible penalty of reclusion perpetua [or death] where the penalty imposed shall be applied regardless of the presence any mitigating or aggravating circumstances. However, "mitigating" here does not include privileged mitigating circumstances for these are always considered even in case of single indivisible penalty. Even assuming that aggravating or mitigating circumstances have been proven, the same cannot be taken into because the penalty for qualified rape is single and indivisible. (People v. Palermo, G.R. No. 120630, June 28, 2001)

2.

T w o indivisible penalties of reclusion perpetua to death where the higher penalty shall be imposed when an aggravating circumstance is present or left after offsetting. This paragraph is now inoperative due to R . A . 9346 that abolished the death penalty; there is now only one indivisible penalty of reclusion perpetua.

286


•

Why is reclusion perpetua still an indivisible penalty when it has now a fixed duration? If reclusion perpetua were reclassified as a divisible penalty, then Article 63 would lose its reason and basis for existence. T h e r e w e r e only two indivisible penalties — death and reclusion perpetua. Since the death penalty has been abolished, only reclusion perpetua is left as an indivisible penalty. W e r e it considered as divisible in v i e w of its having now a fixed period, A r t i c l e 63 w i l l have no more applicability. Since reclusion perpetua is an indivisible penalty, it has no m i n i m u m , medium or maximum period. A n d where the l a w prescribes a single indivisible penalty, it shall be applied, regardless of any modifying circumstance that attended the commission of the crime. Thus, the I S L is not applied when reclusion perpetua is imposed as a single indivisible penalty by virtue of A r t i c l e 63(1). (Infra)

•

To what kind of mitigating circumstances do Articles 63 and 64 refer? T h e mitigating circumstances referred to in Articles 63 and 64 are ordinary mitigating circumstances because privileged mitigating circumstances are always considered whether the penalty imposable is divisible or indivisible. Thus, privileged mitigating circumstances are first considered before the rules in said articles are applied to determine the proper penalty and/or period to be imposed on the convict.

A r t . 64. Rules for the application of penalties which contain three periods. — In cases in w h i c h the penalties p r e s c r i b e d by l a w contain three p e r i o d s , w h e t h e r it be a single divisible penalty or c o m p o s e d of three different penalties, each one of w h i c h forms a p e r i o d in a c c o r d a n c e w i t h the provisions of Articles 76 a n d 77, the courts shall o b s e r v e for the application of the penalty the f o l l o w i n g rules, a c c o r d i n g to whether there a r e or a r e no mitigating or a g g r a v a t i n g circumstances: 1.

W h e n there a r e neither a g g r a v a t i n g nor mitigating circumstances, they shall impose the penalty prescribed by l a w in its m e d i u m period.

287


2.

W h e n only a mitigating circumstance is present in the commission of the act, they shall impose the penalty in its minimum period.

3.

W h e n only an a g g r a v a t i n g circumstance is present in the commission of the act, they shall impose the penalty in its m a x i m u m p e r i o d .

4.

W h e n both mitigating a n d a g g r a v a t i n g c i r c u m stances a r e present, the c o u r t shall r e a s o n a b l y offset those of one class a g a i n s t the other a c c o r d i n g to their relative w e i g h t .

5.

W h e n there are t w o o r m o r e mitigating circumstances a n d no a g g r a v a t i n g circumstances a r e present, the court shall impose the penalty next l o w e r to that p r e s c r i b e d by l a w , in the p e r i o d that it m a y d e e m applicable, a c c o r d i n g to the n u m b e r a n d n a t u r e of such circumstances.

6.

W h a t e v e r m a y be the n u m b e r a n d n a t u r e of the a g g r a v a t i n g circumstances, the courts shall not impose a g r e a t e r p e n a l t y t h a n that p r e s c r i b e d by l a w , in its m a x i m u m p e r i o d .

7.

W i t h i n the limits of e a c h p e r i o d , the courts shall d e t e r m i n e the extent of the p e n a l t y a c c o r d i n g to the n u m b e r a n d n a t u r e o f the a g g r a v a t i n g a n d m i t i g a t i n g c i r c u m s t a n c e s a n d the g r e a t e r o r lesser extent of the evil p r o d u c e d by the c r i m e .

Summary of the rules when the penalty imposed is divisible. Modifying Circumstances

Proper —

Period

1.

No aggravating and no mitigating

2.

Mitigating only

minimum

3.

Aggravating only

maximum

4.

Some of both present

—

288

medium

offset then apply above rules


5.

•

T w o or more mitigating with no aggravating

—

lower the penalty by one degree in the proper period

What can the courts not do under these rules? Courts cannot: a.

L o w e r the penalty by a degree when there is an aggravating circumstance even if the net effect of the offsetting is that two or more mitigating circumstances are left;

b.

L o w e r by two degrees when there are four mitigating circumstances and no aggravating;

c.

Impose a greater penalty than that prescribed by l a w no matter how many aggravating circumstances are present.

T h e penalties in Book II are the maximum for the specific crimes. To impose a higher penalty, the crime must be upgraded by a qualifying circumstance but in such case, there is a different crime altogether. For instance, homicide can only be penalized with reclusion temporal. To increase it to reclusion perpetua, there must be a qualifying circumstance but the crime will no longer be homicide but murder. •

What is the relationship between Article 64 and the Indeterminate Sentence Law? Article 64 is important in the application of the I S L because the modifying circumstances are first considered in determining the maximum penalty. On the basis of the computed maximum penalty, the minimum penalty shall be within the whole range of the penalty next lower in degree in the period which the court may deem proper. Article 64 is not considered in determining the minimum penalty. Rather, the minimum is the whole range of the penalty next lower in degree than the computed maximum penalty.

•

When there are two or more mitigating, without any aggravating, what is the proper penalty? 289


The penalty next lower to that prescribed by the R P C shall be imposed in the period that the Court may deem applicable depending upon the number and nature of mitigating circumstances pursuant to Article 64 (5). Thus, in homicide which carries reclusion temporal, where there are present two mitigating without any aggravating circumstances, the maximum penalty should be one degree lower or prision mayor. Applying the I S L , the convict must suffer the penalty the minimum of which must be within the range of prision correccional and the maximum within prision mayor. (People v. Germina, May 1998) •

Do the rules under Article 64 apply to quasi-offenses under Article 365? N o , for paragraph 5 of Article 365 provides that in the imposition of the penalties for the quasi-offense, the courts shall exercise their sound discretion without regard to the rules prescribed in Article 64. Modifying circumstances substitute for the discretion of the judge in the imposition of the penalties such that when these circumstances are not applicable, the judge is given leeway to exercise his sound discretion. (People v. Simon) Modifying circumstances relate to the moral attribute of the offender which is irrelevant in quasi-offenses, intent being absent.

A r t . 65. Rule in cases in which the penalty is not composed of three periods. — In cases in w h i c h the p e n a l t y p r e s c r i b e d by l a w is not c o m p o s e d of t h r e e p e r i o d s , the courts shall a p p l y the rules c o n t a i n e d in the f o r e g o i n g articles, d i v i d i n g into three e q u a l portions the time i n c l u d e d in the p e n a l t y p r e s c r i b e d , a n d f o r m i n g one p e r i o d o f e a c h o f the t h r e e portions. •

What is the rule when a divisible penalty is imposed upon an offender? Article 76 gives the legal duration of divisible penalties, i.e., it shall be considered as divided into three periods: minimum, medium and maximum. W h e n the law prescribes a penalty that does not comply with this requirement, Article 65 directs that the penalty shall be made to comply therewith 290


by dividing it into three periods to conform to the rule that divisible penalty shall be deemed as divided into three periods. Robbery in an uninhabited place is penalized by prision correccional in its medium and maximum periods. T h e duration of this penalty is 2 years, 4 months and 1 day to 6 years. To conform to the rule under Article 76 on divisible penalties, the following steps are followed: a.

Get the duration of the penalty. 6 yrs minus 2 yrs, 4 mos. = 3 yrs, 8 mos. or 44 mos.

b.

Divide by 3 the result in (a) to get the duration of each period. 44 mos. /3 = 14 mos., 10 days per period or 1 yr, 2 mos. and 10 days

c.

A d d the quotient to the minimum of each period:

M i n i m u m period

2 yrs, 4 mos

Duration per period

+

M a x i m u m of minimum period

1 yr, 2 mos 10 days 3 yrs 6 mos. 10 days

Thus, Period

From

To

Minimum

2 yr 4 mo. 1 day

— 3 yr. 6 mo. 10 days

Medium

3 yr. 6 mo. 11 day

— 4 yr. 8 mo. 20 days

Maximum

4 yr. 8 mo. 21 day

— 6 yr.

This is also true if two full divisible penalties are imposable, e.g., arresto mayor to prision correccional. The same rule and procedure shall be followed. What is the significance of one day in the beginning of each penalty? One day separates the duration of penalty: a.

Between two periods, e.g., between arresto menor, minimum and arresto menor, medium

b.

Between two degrees, viz., 6 years of prision correccional from 6 years and 1 day of prision mayor 291


c.

Between divisible and indivisible penalties, thus up to 20 years is divisible (reclusion temporal). A d d one day and it becomes indivisible - reclusion perpetua

The effects of this are whether or not: offender is qualified for probation as the probationable penalty is up to six years or prision correccional; subsidiary penalty can be imposed or not, since it applies only if the prison term is not more than six years; Article 64 on divisible penalty (up to reclusion temporal) or Article 63 on indivisible penalty (up to reclusion perpetua) should apply. In the latter, modifying circumstances other than privileged mitigating affect the penalty whereas in the former, they do not. A r t . 66. Imposition of fines. — In i m p o s i n g the fines, the courts m a y f i x a n y a m o u n t w i t h i n the limits e s t a b l i s h e d b y l a w ; i n f i x i n g the a m o u n t i n e a c h case a t t e n t i o n shall b e given, not o n l y t o the m i t i g a t i n g a n d a g g r a v a t i n g c i r c u m stances, b u t m o r e p a r t i c u l a r l y t o the w e a l t h o r m e a n s o f the c u l p r i t . •

What factors are considered in the imposition of fines to the culprit? 1.

Presence of modifying circumstances. In one case, the P10,000 fine was reduced to P2,000 in v i e w of three mitigating circumstances. (Nizurtado v. Sandiganbayan)

2.

More particularly, the wealth or means of culprit. Thus, the fine to be imposed may be reduced if, notwithstanding the presence of aggravating circumstance, the culprit cannot afford the correct fine.

A r t . 67. Penalty to be imposed when not all the requisites of exemption of the fourth circumstance of Art. 12 are present. — W h e n all the conditions r e q u i r e d i n c i r c u m s t a n c e n u m b e r 4 of A r t i c l e 12 of this C o d e to e x e m p t f r o m c r i m i n a l liability a r e not present, the p e n a l t y of arresto mayor in its m a x i m u m p e r i o d to prision correccional in its m i n i m u m p e r i o d shall be imposed u p o n the culprit, if he shall h a v e b e e n guilty of a g r a v e felony, a n d arresto mayor in its m i n i m u m a n d m e d i u m periods, if of a less g r a v e felony. 292


A r t . 68. Penalty to be imposed upon a person under eighteen years of age. — W h e n the o f f e n d e r is e i g h t e e n y e a r s of a g e a n d his case is o n e c o m i n g u n d e r the p r o v i s i o n s of the p a r a g r a p h next to the last of A r t . 80 of this C o d e , the f o l l o w i n g rules shall b e o b s e r v e d :

•

1.

U p o n a p e r s o n u n d e r fifteen b u t o v e r nine years of a g e , w h o i s not e x e m p t e d f r o m liability b y reason of the c o u r t h a v i n g d e c l a r e d that he acted with d i s c e r n m e n t , a d i s c r e t i o n a r y penalty shall be i m p o s e d , b u t a l w a y s l o w e r b y t w o d e g r e e s a t least t h a n that p r e s c r i b e d b y l a w for the crime w h i c h h e committed.

2.

U p o n a p e r s o n o v e r fifteen a n d u n d e r e i g h t e e n y e a r s o f a g e the p e n a l t y n e x t l o w e r t h a n that p r e s c r i b e d b y l a w s h a l l b e i m p o s e d , b u t a l w a y s i n the p r o p e r p e r i o d . proper = medium

What is the effect of R.A. 9344 on Article 68? R . A . 9344 is wholly repugnant to Article 68 for the new law made a child 15 years of age or under at the time of the commission of the offense absolutely exempt from criminal liability. Instead he shall be subject to an intervention program. Thus, Article 68(1) is impliedly repealed for utter incompatibility with R . A . 9344. On the other hand, R . A . 9344 exempts a child 15 years old but under 18 from criminal liability. Instead he shall be subject to an intervention program unless he acted with discernment in which case he shall undergo diversion program. In effect, Article 68(2) is modified in that the minor shall only be criminally liable if he acted with discernment. The age of discernment was increased from nine to 15 years by the new law. If a child is criminally responsible and the diversion program does not apply, the case shall proceed as in other cases. In such event, the child shall enjoy the privileged mitigating circumstance under Article 68. •

Who has the burden of proving the circumstance of minority? Prior to R . A . 9344, Mendoza, July 1998, stated that the burden of proof that accused was a minor at the time of the 293


commission of the offense is on him. Upon the law's effectivity, the minor need not prove his minority because he enjoys the presumption of minority pursuant to Section 7 thereof. In case of doubt as to age, it shall be resolved in favor of minority. The law provides that the age of a child may be determined from the child's birth or baptismal certificate or any other pertinent documents. In the absence of documentary evidence, the age may be determined from information supplied by the child himself, testimonies of other persons, physical appearance of the child and other relevant evidence. A n y person contesting the age of the child in conflict with the law prior to the filing of the information in court may file a case in a summary proceeding for the determination of the age of the child before the Family Court which shall decide the case within 24 hours from receipt of the appropriate pleadings of all interested parties; or a motion in the court if and where a case is already pending. It shall suspend the proceedings in the main case while the motion is being heard. On March 28, 1981, when the crime was committed, accused was only 17 years old. In many cases, if the accused alleges minority and the prosecution does not disprove his claim by contrary evidence, such allegation can be accepted as a fact. In Bergantino, G.R. No. L-1441, December 29, 1903, the accused testified that she was below 15 when the crime was committed. This was corroborated by her mother and her husband. No other evidence such as baptismal certificate was presented to her claim. T h e prosecution did not offer any contradictory evidence. It was held therein that while the evidence to this point is not entirely satisfactory, yet it is sufficient to raise a reasonable doubt upon this material question in the case, to the benefit of which the defendant is entitled. T h e baptismal certificate or other evidence of this character would have been much more satisfactory to the court, and if obtainable, should have been introduced. (David v. CA, July 1998) A r t . 69. Penalty to be imposed when the crime committed is not wholly excusable. — A p e n a l t y l o w e r by o n e or t w o d e g r e e s than that p r e s c r i b e d by l a w shall be i m p o s e d if the d e e d is not w h o l l y e x c u s a b l e by r e a s o n of the lack of some of the 294


conditions r e q u i r e d to justify the s a m e or to exempt f r o m c r i m i n a l liability in the s e v e r a l cases m e n t i o n e d in Articles 11 a n d 12, p r o v i d e d that the m a j o r i t y of such conditions be present. T h e c o u r t s shall i m p o s e the penalty in the p e r i o d w h i c h m a y b e d e e m e d p r o p e r , i n v i e w o f the n u m b e r a n d n a t u r e of the conditions of e x e m p t i o n p r e s e n t or lacking. •

What kind of a mitigating circumstance is lack of complete requirement to exempt or justify? It is a privileged mitigating circumstance because the penalty may be reduced by one or two degrees if majority of the conditions required to justify the act committed or to exempt from criminal liability are present. Consequently, such mitigating circumstance cannot be offset by any aggravating circumstance. In the circumstance of defense of self, relatives or strangers under Article 11, if there is no unlawful aggression, Article 69 is not applicable because this is the condition sine qua non to justify the act. Without unlawful aggression there is nothing to defend; there is no justifying circumstance of defense, complete or incomplete. If there is present less than a majority of the conditions, it will be an ordinary mitigating circumstance, which will lower the penalty to the minimum period, under Article 13(1). Appellant is guilty of two homicides, there being no qualifying or aggravating circumstance, but extenuated by the privileged mitigating circumstance of incomplete self-defense — in view of the unlawful aggression on the part of the victims and lack of sufficient provocation on the part of the appellant — by two generic mitigating circumstance of voluntary surrender and ion and obfuscation. The penalty for homicide is reclusion temporal. Pursuant to Article 69, the penalty lower by one or two degrees shall be imposed if the deed is not wholly excusable. Considering that the majority of the requirements for defense of property are present, the penalty may be lowered by two degrees to prision correccional. A n d under Article 64(5), the same may further be reduced by one degree, that is, arresto mayor, because of the

295


presence of two mitigating circumstances and no aggravating circumstance. (People v. Narvaez, 121 SCRA) A r t . 70. Successive service of sentences. — W h e n the culprit has to serve t w o or m o r e penalties he shall serve t h e m simultaneously if the n a t u r e of the penalties w i l l so permit; otherwise, the following rules shall be o b s e r v e d : In the imposition of the penalties, the o r d e r of their respective severity shall be f o l l o w e d so that they m a y be executed successively or as n e a r l y as m a y be possible, s h o u l d a p a r d o n have b e e n g r a n t e d as to the penalty or penalties first imposed, or should they h a v e b e e n s e r v e d out. F o r p u r p o s e s of a p p l y i n g the p r o v i s i o n s of the next p r e c e d i n g p a r a g r a p h , the respective severity of the penalties shall be d e t e r m i n e d in a c c o r d a n c e w i t h the f o l l o w i n g scale: 1.

Death,

2.

Reclusion

perpetua,

3.

Reclusion

temporal,

4.

Prision

5.

Prision

6.

Arresto

mayor,

7.

Arresto

menor,

8.

mayor, Correccional,

Destierro,

9.

P e r p e t u a l a b s o l u t e disqualification,

10.

T e m p o r a r y a b s o l u t e disqualification,

11.

S u s p e n s i o n f r o m p u b l i c office, the r i g h t to vote a n d be voted for, the r i g h t to f o l l o w a p r o f e s s i o n or calling, a n d

12.

Public censure.

N o t w i t h s t a n d i n g the p r o v i s i o n s of the r u l e next p r e c e d i n g , the m a x i m u m d u r a t i o n of the convict's sentence shall not be m o r e t h a n t h r e e f o l d the length of time c o r r e s p o n d i n g to the most s e v e r e of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the s u m total of those imposed e q u a l s the s a m e m a x i m u m p e r i o d . 296


S u c h m a x i m u m p e r i o d shall in no case exceed forty years. In a p p l y i n g the p r o v i s i o n s of this r u l e , the d u r a t i o n of p e r p e t u a l penalties (pena perpetua) shall be computed at thirty y e a r s . (As amended by Commonwealth Act No. 217.) •

What is the rule when a convict is given multiple sentences? T h e general rule is that he shall serve them simultaneously if the nature of the penalties permits simultaneous service of sentence. Otherwise, the penalties shall be served successively in the order of severity as prescribed in this article. For instance, imprisonment and fine, multiple death sentences, and imprisonment and disqualification, among others shall be served simultaneously because these penalties permit simultaneous service. But several of imprisonment like several reclusion perpetua cannot be served simultaneously hence, they should be served successively, starting from the most severe.

•

When is simultaneous service of sentence allowed? What penalties can be served simultaneously? A r t i c l e 70 allows simultaneous service of two or more penalties only if the nature thereof so permits. T h e penalties that can be simultaneously served are: (1) perpetual absolute disqualification, (2) perpetual special disqualification, ( 3 ) temporary absolute disqualification, (4) temporary special disqualification, (5) suspension, (6) destierro, (7) public censure, (8) fine and bond to keep the peace, (9) civil interdiction, and (10) confiscation and payment of costs. These penalties, except destierro, can be served simultaneously with imprisonment. T h e penalties consisting in deprivation of liberty cannot be served simultaneously by reason of the nature of such penalties. W h e r e the accused is sentenced to two or more of imprisonment, the should be served successively. Petitioner was sentenced to one year imprisonment for every count of the offense committed. The nature of the sentence does not allow him to serve all the prison simul-

297


taneously. (In Re: Petition for Habeas Corpus of Pete Lagran, G.R. No. 147270, August 15, 2001) •

•

What are the limitations on the service of sentence? a.

The t h r e e - f o l d r u l e - the maximum duration of the convict's sentence shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the same maximum period. In other words, the maximum penalty is three times the most severe or the total of the penalties imposed, whichever is lower.

b.

Such maximum period shall in no case exceed 40 years. Whatever is lowest between the sum of the penalties and three times the most severe, it shall not be more than 40 years.

How is the three-fold penalty computed? Step 1 — Get the most severe penalty imposed following Article 70 2 — Multiply by 3 the duration of the most severe penalty 3 — A d d the duration of all the different sentences 4 — Compare the results of steps 2 and 3 and 5 — Accused to serve the lesser period which in no case shall exceed 40 years When the most severe penalty is reclusion perpetua, the imputed duration shall be 30 years, thus 30 x 3 = 90 years. T h e culprit shall serve not 90 but 40 years pursuant to Article 70.

•

What is the significance of the 30-year duration of penal perpetua in Article 70? Article 70 pertinently provides that in applying the threefold rule, the duration of perpetual penalties (pena perpetua) shall be computed at 30 years. But the imputation of the 30year duration to reclusion perpetua is only to serve as a basis

29B


for determining the convict's eligibility for pardon or for the application of the three-fold rule in the service of multiple penalties. (People v. Tena, October 1992) Pena perpetua covers reclusion perpetua and life imprisonment. •

When the penalty is indeterminate, how is the three-fold penalty computed? It is three times the indeterminate sentence also. For instance, in the service of 12 penalties meted to defendant, the maximum penalty that he should serve is three times the indeterminate sentence of 12 years to 17 years, or 36 years to 51 years. T h e maximum duration of his sentence should not exceed 40 years. (People v. Sendaydiego, G.R. Nos. L-33252-54, January 20, 1978)

•

Should the judge refrain from imposing the correct penalties if these would exceed the limitation of penalties in this article? N o . This article deals with service of sentence and not with imposition, hence, it is for the Director of Prisons to follow. T h e court should impose the correct penalties even if these will amount to more than the lifetime of the prisoner. Consequently, all the sentences on the prisoner imposed by any court for whatever crimes whenever decided should be covered by this rule. T h e Director of Prisons must have a record of all such sentences on a convict. T h e rationale for imposing the correct penalty is that when the convict is pardoned for one, he will still serve the other sentences meted on him.

•

If the penalties imposed are all equal, how should the threefold rule operate? If the penalties imposed are all equal, for instance, seven reclusion perpetua, the period thereof shall be considered as the most severe penalty for the purpose of applying the three-fold rule. Thus, 3 x 30 = 90, but the culprit is to serve a maximum of 40 years only.

A r t . 71. Graduated scales. — In the cases in which the l a w prescribes a penalty l o w e r or higher by one or more degrees

299


than another given penalty, the rules p r e s c r i b e d in Article 61 shall be o b s e r v e d in g r a d u a t i n g such penalty. The l o w e r or higher penalty shall be taken f r o m the g r a d u a t e d scale in w h i c h is c o m p r i s e d the given penalty. T h e courts, in a p p l y i n g such l o w e r or h i g h e r penalty, shall observe the f o l l o w i n g g r a d u a t e d scales: SCALE NO. 1 1.

Death,

2.

Reclusion

perpetua,

3.

Reclusion

temporal,

4.

Prision

5.

Prision

6.

Arresto

7.

Destierro,

8.

Arresto

9.

Public censure,

10.

Fine.

mayor, correccional, mayor,

menor,

SCALE NO. 2 1.

P e r p e t u a l a b s o l u t e disqualification,

2.

T e m p o r a r y a b s o l u t e disqualification,

3.

S u s p e n s i o n f r o m p u b l i c office, the r i g h t to vote a n d be voted for, the r i g h t to f o l l o w a profession or calling,

4.

Public censure,

5.

Fine.

(See notes under Articles 50 - 57 and Article 61.) What is the effect of R.A. 9346 as to the scale of penalty under this article? R . A . 9346 has expressly repealed all provisions of law in so far as they apply or impose the death penalty. Thus, it

300


has in effect deleted the penalty of death under the scales of penalty provided in the R P C . Hence, its effect is to reckon the lower degree of penalty for accomplices and accessories from the penalty actually imposed. For instance, for qualified rape punishable with death originally, the penalty on the principal under the amendatory law shall be reclusion perpetua; for the accomplice, it shall be reclusion temporal and for the accessory, prision mayor. •

Compare Articles 70 and 71; Destierro and Arresto Mayor. Article 70 is relevant to multiple service of sentence; Article 71 to graduating penalties in relation to Article 61. Under Article 71, the penalty next lower than arresto mayor is destierro and not arresto menor. On the other hand, in Article 70, destierro follows arresto menor in the degree of severity. T h e rationale for this is explained in Duarte, G.R. No. 88232, February 26, 1990. Destierro is not a higher penalty than arresto mayor which is imprisonment or complete deprivation of liberty, whereas destierro means banishment or only a prohibition from residing w i t h i n a radius of 25 kilometers from the actual residence of the accused for a specified length of time. T h e respective severities of arresto mayor and destierro must not be judged by the duration of each of these penalties, but by the degree of deprivation of liberty involved. Penologists have always considered destierro lighter than arresto mayor. Such criterion is reflected both in the old Spanish Penal Code and in the R P C . In the graduated scale of Article 71 the l a w m a k e r has placed destierro below arresto mayor. There is, therefore, no basis in fact or in law for holding that destierro is a higher penalty than arresto mayor and that an offense penalized w i t h destierro falls under the jurisdiction of the court of first instance.

A r t . 72. Preference in the payment of the civil liabilities. — T h e civil liabilities of a p e r s o n f o u n d guilty of t w o or more offenses shall be satisfied by f o l l o w i n g the chronological o r d e r of the dates of the final j u d g m e n t s r e n d e r e d against him, b e g i n n i n g w i t h the first in o r d e r of time.

301


Section T h r e e . — Provisions common to the last two preceding sections Art. 73. Presumption in regard to the imposition of accessory penalties. — W h e n e v e r the courts shall impose a penalty which, by provision of l a w , carries with it other penalties, according to the provisions of Articles 40, 41, 42, 43, 44, a n d 45 of this Code, it must be understood that the accessory penalties are also imposed upon the convict. •

Should a decision impose accessory penalties? No, authority penalties penalties

for accessory penalties are automatically imposed by of Article 73, which declares that whenever principal are imposed, it is understood that the accessory are likewise meted on the accused.

A r t . 74. Penalty higher than reclusion perpetua in certain cases. — In cases in w h i c h the l a w p r e s c r i b e s a p e n a l t y h i g h e r t h a n a n o t h e r g i v e n p e n a l t y , w i t h o u t specifically d e s i g n a t i n g the n a m e o f the f o r m e r , i f s u c h h i g h e r p e n a l t y s h o u l d b e that o f d e a t h , the s a m e p e n a l t y a n d the a c c e s s o r y penalties of A r t i c l e 40, s h a l l be c o n s i d e r e d as the n e x t higher penalty. A r t . 75. Increasing or reducing the penalty of fine by one or more degrees. — W h e n e v e r it m a y be n e c e s s a r y to i n c r e a s e or r e d u c e the penalty of fine by o n e or m o r e d e g r e e s , it shall be increased or r e d u c e d , respectively, for e a c h d e g r e e , by 1/4 of the m a x i m u m a m o u n t p r e s c r i b e d b y l a w , w i t h o u t h o w e v e r , c h a n g i n g the m i n i m u m . T h e same rules shall b e o b s e r v e d w i t h r e g a r d t o f i n e s that do not consist of a fixed a m o u n t , b u t a r e m a d e p r o p o r t i o n a l . •

How is the penalty of fine increased or reduced? Fines are reduced by one or two degrees when the felony is attempted or frustrated or when imposed upon the accessory or the accomplice. For each degree, 1/4 of the maximum amount is taken. T h e penalty as computed shall in no case be lower than the minimum prescribed by law. For instance, if the fine prescribed by law is P200 to P600, 1/4 of the maximum amount 302


of P600 or P150 is taken. If the penalty is to be reduced by two degrees, the penalty is computed as follows: Step 1 —

P600 divided by 4

=

P150

2 —

P150 x 2 degrees

=

P300

3 —

P600-P300

=

P300

T h e penalty lowered by two degrees is P200 to P300. A r t . 76. Legal period of duration of divisible penalties. — T h e l e g a l p e r i o d o f d u r a t i o n o f d i v i s i b l e penalties shall b e c o n s i d e r e d a s d i v i d e d into t h r e e p a r t s , f o r m i n g three p e r i o d s , the m i n i m u m , the m e d i u m , a n d the m a x i m u m i n the m a n n e r s h o w n i n the f o l l o w i n g table: •

How are the periods of a divisible penalty computed? Using as an example prision mayor with a period of 6 years and 1 day to 12 years, the period is determined as follows: Step 1

—

Get the duration of the penalty: End of the period [12 years] minus its beginning [6 years] = 6 years

Step 2

—

Divide by 3 periods the duration. 6 years divided by 3 = 2 years. Each period is 2 years long.

Step 3

— A d d the quotient in step B to the beginning of each period. 6 years + 2 years = 8 years.

Hence: Minimum

—

6 years and 1 day to 8 years

Medium

—


Maximum

—


A r t . 77. When the penalty is a complex one composed of three distinct penalties. — In cases in w h i c h the l a w prescribes a penalty c o m p o s e d of three distinct penalties, each one shall f o r m a p e r i o d ; the lightest of them shall be the minimum, the next the m e d i u m , a n d the most severe the m a x i m u m period. W h e n e v e r the penalty p r e s c r i b e d does not have one of the forms specially p r o v i d e d for in this Code, the periods 303


shall be distributed, a p p l y i n g by analogy the p r e s c r i b e d rules. •

What is a complex penalty? A complex penalty is one composed of three distinct penalties, each one forming a period, the lightest being the minimum; the next, the medium; and the most severe, the maximum. (This should not be confused with complex crime under Article 48.)

•

How is a law, which prescribes four distinct penalties, construed? It must be construed as a legislative oversight. Simon noted in R . A . 6425, an overlapping of penalties.' W h e r e the quantity of drugs is less than the limit in Section 20, the penalty prescribed was prision correccional to reclusion perpetua, whereas violations involving more than the limit in Section 20 is penalized with reclusion perpetua to death. Clearly, the overlapping of reclusion perpetua was a mere oversight. Moreover, it violates the rule in Section 77 on complex penalty which provides for only three separate and distinct penalties for a crime. Hence, Simon corrected the patent oversight in the law to conform to Article77.

•

What kind of penalty is reclusion temporal in its maximum period to reclusion perpetua? T h e first paragraph of Section 1 of P . D . 1866, prior to R . A . 8294 punishes the crime of simple illegal possession of firearm with reclusion temporal in its maximum period to reclusion perpetua. This is a complex and divisible penalty consisting of three periods. T h e second paragraph of Article 77 which deals with complex penalties, provides that "whenever the penalty prescribed does not have one of the forms specially provided for in this Code, the periods shall be distributed, applying by analogy the prescribed rules," that is, those in Articles 61 and 76. Hence, the minimum of the penalty of reclusion temporal maximum period to reclusion perpetua, is 17 years, 4 months and 1 day to 20 years; and the maximum period is reclusion perpetua. (People v. Lian) 304


INDETERMINATE SENTENCE LAW ( A c t 4103, as a m e n d e d by A c t 4225; Section 1. Hereafter, in imposing a prison sentence for an offense punishable by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. Section 2. This Act shall not apply to persons convicted of offenses punished with death penalty or life-imprisonment; to those convicted of treason, conspiracy or proposal to commit treason; to those convicted of misprision of treason, rebellion, sedition or espionage; to those convicted of piracy; to those who are habitual delinquents; to those who shall have escaped from confinement or evaded sentence; to those who having been granted conditional pardon by the Chief Executive shall have violated the thereof; to those whose maximum term of imprisonment does not exceed one year, nor to those already sentenced by final judgment at the time of approval of this Act, except as provided in Section 5 hereof. x x x x x x xxx Section 6. Every prisoner released from confinement on parole by virtue of this Act shall, at such times and in such manner as may be required by the conditions of his parole, as may be designated by the said Board for such purpose, report personally to such government officials or other parole officers hereafter appointed by the Board of Indeteminate Sentence for a period of surveillance equivalent to the remaining portion of the maximum sentence imposed upon him or until final release and discharge by the Board of Indeterminate Sentence as herein provided. The officials so 305


designated shall keep such records and make such reports and perform such other duties hereunder as may be required by the Board. The limits of residence of such paroled prisoner during his parole may be fixed and from time to time changed by the said Board in its discretion. If during the period of surveillance such paroled prisoner shall show himself to be a law-abiding citizen and shall not violate any of the laws of the Philippine Islands, the Board of Indeterminate Sentence may issue a final certification of release in his favor, which shall entitle him to final release and discharge. xxx xxx xxx Section 8. Whenever any prisoner released on parole by virtue of this Act shall, during the period of surveillance, violate any of the conditions of his parole, the Board of Indeterminate Sentence may issue an order for his arrest which may be served in any part of the Philippine Islands by any police officer. In such case the prisoner so rearrested shall serve the remaining unexpired portion of the maximum sentence for which he was originally committed to prison, unless the Board of Indeterminate Sentence shall, in its discretion, grant a new parole to the said prisoner. xxx xxx xxx •

What is the Indeterminate Sentence Law? It is a law which modified the imposition of penalties under the R P C and special laws. T h e courts are mandated in imposing a sentence to fix a minimum and a maximum period of penalty. The minimum sentence must be served and thereupon, the convict becomes eligible for parole. W h e n released, he is not actually discharged for the rest of his sentence is served out of prison under the supervision of a parole officer.

•

What are the objectives of the law? It is to avoid the unnecessary, prolonged imprisonment of convicts which may result in economic wastefulness. That is why after the prisoner has served the minimum and has shown that he has reformed, he is given parole. T h e philosophy underlying the I S L is that of redeeming valuable human material and preventing unnecessary deprivation of personal liberty and 306


economic usefulness with due regard to the protection of the social order. (Vaca v. CA, G.R. No. 131714, November 16, 1998) Why is there a need to specify the minimum and maximum periods? T h e need for specifying the minimum of the indeterminate sentence is to prevent the unnecessary and excessive deprivation of liberty and to enhance the economic usefulness of the accused, since he may be exempted from serving the entire sentence, depending upon his behavior and his physical, mental, and moral record. T h e requirement of imposing an indeterminate sentence in all criminal offenses with definite maximum and minimum , as the court may deem proper within the legal range of the penalty specified by the law, is mandatory. (Bacar v. de Guzman, Jr., 271 SCRA 328, 1997) After having served the minimum penalty, the convict shall be eligible for parole, and if qualified, may be exempt from serving the entire sentence in tail. The maximum penalty is necessary for purposes of the accessory penalties and in case the convict is not given parole because his conduct in prison did not show that he is worthy to be released from prison. The I S L is not only for the benefit of the convict but also the society in general whose welfare should not be prejudiced by his early release from jail. When is the law not applicable [What are the exceptions to the Indeterminate Sentence Law] [When shall a straight penalty be imposed] [Who are not covered by the Indeterminate Sentence Law]? T h e I S L is mandatory except in the following cases: a.

Offenses punished by death or life imprisonment;

b.

Those convicted of treason, conspiracy or proposal to commit treason [Articles 114 - 115];

c.

Those convicted of misprision of treason [Article 116], rebellion [Article 134], sedition [Article 139], or espionage [Article 117];

d.

Those convicted of piracy [Article 132];

e.

Habitual delinquents [Article 62, par. 5]; 307


Recidivists are entitled to an indeterminate sentence. (People v. Jaranilla, February 22, 1974) Offender is not disqualified even if the crime is committed while he is on parole. (People v. Calreon, C.A., 78 O.G. 6701, November 11, 1982); f.

Those who escaped from confinement or those who evaded sentence;

g.

Those granted conditional pardon and who violated its . (People v. Corral, 74 Phil. 359);

h.

Those whose maximum period of imprisonment does not exceed one year; Where the penalty imposed does not exceed one year, the accused cannot avail of the benefits of the law, the application of which is based upon the penalty actually imposed in accordance with law and not upon that which may be imposed in the discretion of the court. T h e I S L applies even if the penalty is a result of plea bargaining.

i.

Those who are already serving final judgment upon the approval of the I S L .

It is error to impose a straight penalty of 20 years of imprisonment for the crime of illegal fishing with the use of explosive. T h e I S L provides that if the offense is punished by a law other than the R P C , the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by the said law and the minimum shall not be less than the minimum term prescribed by the same. (Argoncillo v. CA, G.R. No. 118816, July 10, 1998) Since Section 1 states, "in imposing a prison sentence," therefore, when the penalty is other than prison sentence such destierro, suspension, and the like, the I S L does not apply, hence, there is no minimum and maximum penalty. T h e exceptions can be grouped into the following: a.

Penalties: death and life imprisonment; prison the maximum of which is not more than one year (one year or less); reclusion perpetua imposed as a 308


single indivisible penalty under Article 63; and nonprison sentences of fine, destierro, disqualification, etc. (Section 1).

•

b.

Offenses: Treason, Proposal or Conspiracy to Commit Treason, Misprision of Treason, Rebellion, Espionage, Sedition, Piracy.

c.

Offenders: habitual delinquents, escapees from confinement, evaders of sentence, violators of conditional pardon granted by the Chief Executive.

When the penalty imposed is reclusion perpetua, is the law applicable? For offenses in which the law prescribes the single, indivisible penalty of reclusion perpetua, it is the first paragraph of Article 63 and not the I S L that applies. Said article provides that "in all cases in which the law prescribes a single and indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed." (People v. Romua, G.R. No. 126175, May 29, 1997)

•

Is the requirement to impose an indeterminate sentence discretionary or mandatory? Since the requirement is to impose an indeterminate sentence in all criminal offenses whether punishable by the R P C or by special laws, with definite minimum and maximum , as the Court deems proper within the legal range of the penalty specified by the law, it must therefore be deemed mandatory.

•

How does the law operate? a.

T h e sentence must state: "Within the range of (for instance) prision mayor as minimum, and within the range of reclusion temporal as maximum." This is necessary because of the accessory penalties.

b.

The maximum period is determined by considering the presence of modifying circumstances applying the rules on Article 64. Privileged mitigating circumstances must first be considered before applying the said rules. 309


c

The minimum is fixed at one degree lower than that provided by the R P C . The minimum is within the whole range of the next lower penalty; not necessarily in the same period as the maximum penalty. In other words, the period of the minimum and the maximum penalty need not be the same.

The penalty is indeterminate not indeterminable. Once, a judge imposed a sentence where both the minimum and maximum penalty had minimum and maximum period. It was deemed ignorance of the law. •

What rules govern the computation of the penalty? In crimes punishable under the R P C , the maximum term of the indeterminate penalty is determined in accordance with the rules and provisions of the R P C exactly as if the I S L had never been enacted. The rules to determine the maximum term of the indeterminate penalty are those in Articles 46, 48, 50 to 57, 61, 62, 64, 65, 68, 69, and 71. However, the said rules, particularly those in Articles 50 to 57, 62, 64 and 65, are not applicable in fixing the minimum term of the indeterminate penalty. T h e Court has unqualified discretion to fix the term of the minimum. T h e only limitation is that it is within the range of the penalty next lower to that prescribed by the R P C for the offense committed, without regard to its three periods. T a k e for example homicide in which two mitigating circumstances. T h e penalty prescribed is reclusion temporal. Since two mitigating circumstances and no aggravating circumstance attended the commission of the offense, said penalty shall be lowered by one degree pursuant to Article 64 (5) or is prision mayor. This penalty shall be imposed in its medium period considering that no other modifying circumstance attended the commission of the offense, the two mitigating circumstances having been already taken into in reducing the penalty by one degree. (Basan v. People, L-39483, November 29, 1974) Applying the I S L , the minimum of the penalty shall be within the range of the penalty next lower in degree which is prision correccional and the maximum of which shall be within the 310


range of the medium period of prision mayor. (Nadjirul Takil v. Esina, 65 SCRA 378 [1975]; Bacar v. de Guzman Jr A M No. RTJ-96-1349, April 18, 1997) A t t e m p t e d homicide is punishable with prision correccional. A p p l y i n g the I S L , the minimum penalty should be anywhere within the range of 1 month and 1 day to 6 months of arresto mayor, and the maximum should be within the range of 6 months and 1 day to 6 years of prision correccional. Considering that no aggravating or mitigating circumstance attended the commission of the crime, the accused shall be sentenced to an indeterminate prison term of 2 months and 1 day of arresto mayor as minimum, to 2 years, and 4 months of prision correccional medium as maximum. (People v. Albacin, G.R. No. 133918, September 13, 2000) For offenses punished by special law, following the doctrine explained in Simon, a special law which uses the penalties under the R P C shall be covered by its rules for graduating by degrees for determining the proper period. (People v. Lian, G.R. No. 115988, March 29, 1996) •

Where should the penalty next lower than that prescribed by the Revised Penal Code for the offense be based? Gabres explains that under the I S L , the maximum term of the penalty shall be 'that which, in view of the attending circumstances, could be properly imposed' under the R P C , and the minimum shall be 'within the range of the penalty next lower to that prescribed' for the offense. The penalty next lower should be based on the penalty prescribed by the R P C for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. The fact that the amounts involved here exceed P22.000 should not be considered in the initial determination of the indeterminate penalty; instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum 311


term of the full indeterminate sentence. T h e interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. (People v. Saley, G.R. No. 121179, July 2, 1998) When the penalty is originally exempt from the Indeterminate Sentence Law, and after lowering it, the penalty is now within the law, shall the law apply? Yes, because what controls is the penalty imposed not what is imposable. Take the case of a 17 year-old boy who committed with discernment incestuous rape on his six-year old sister. The penalty therefor is now reclusion perpetua. Assume that he voluntarily surrendered and pleaded guilty to the felony. What is the proper penalty? (Although the penalty is single and indivisible, it shall be lowered notwithstanding Article 63, paragraph 1 because the mitigating circumstance of minority is privileged which is always considered.) In v i e w of his minority, pursuant to Article 68 ( 2 ) , his penalty should be lowered one degree to reclusion temporal. T w o mitigating without any aggravating circumstance is another degree reduction under Article 64 (5) or prision mayor. Since there is no more mitigating or aggravating circumstances left, the penalty should be in the medium period. T h e penalty should follow the I S L and the minimum penalty would be anywhere within the range of prision correccional. When the crime is a complex one, how should the penalty next lower in degree be determined? For purposes of determining the next lower degree, the full range of the penalty prescribed by law for the offense, not merely the imposable penalty because of its complex nature, should, a priori, be considered. T h e ruling in Gonzales, 73 Phil. 549, as opposed to that of Fulgencio, 92 Phil. 1069, is the correct rule. In fine, the one degree lower than prision mayor maximum to reclusion temporal minimum is prision mayor minimum to prision mayor medium the full range of which is 6 years and 1 day to 10 years. T h i s one degree lower penalty should, conformably w i t h A r t i c l e 48, be imposed in its maximum period or from 8 years and 1 day to 10 years. T h e presence of the third m i t i g a t i n g circumstance of praeter 312


intentionem would result in imposing a period the court may deem applicable. Considering, however, that the penalty has to be imposed in the m a x i m u m period, the only effect of this additional m i t i g a t i n g circumstance is to impose only the m i n i m u m portion of that m a x i m u m period, that is from 8 years, 8 months and 1 day to 9 years, 6 months and 10 days, from which r a n g e the m a x i m u m of the indeterminate sentence shall be taken. (Nizurtado v. Sandiganbayan) •

Is the Indeterminate Sentence Law applicable when the penalty imposed resulted from plea bargaining? T h e fact that the lesser offense, and its necessarily lower penalty, resulted from a plea bargaining agreement is of no moment as far as the penalty to be imposed is concerned. Pleabargaining is authorized by the Rules and is required to be considered at the pre-trial conference. T h e felony which must constitute the basis for the penalty to be imposed having been agreed upon among the parties and approved by the trial court, that downgraded offense and its lower penalty shall control the adjudgment of and any further proceedings before the court a quo. It follows that the I S L , shall necessarily apply. Also, the determination of whether an indeterminate sentence and not a straight penalty is proper, what is considered is the penalty actually imposed by the trial court, after considering the attendant circumstances, and not the imposable penalty. It would be an unduly strained postulate that a sentence arrived at by a court after a valid plea bargaining should constitute an exception to the I S L in addition to those enumerated in Section 2 thereof. (Ladino v. Garcia)

•

Does the Indeterminate Sentence Law cover offenses involving the Dangerous Drugs Law? Y e s , since drug offenses are not included in the exceptions to the application of the I S L as long as the penalty to be imposed does not involve life imprisonment or death, and that the penalty as ultimately resolved will exceed one year imprisonment. Moreover, the second clause of Section 1 provided for sentences under "any other law," hence, special laws are covered. 313


•

Compare parole and pardon. 1.

In parole, the minimum sentence must be served; in pardon, service is not required for the grant thereof.

2.

Parole is a benefit granted by law, specifically the ISL; pardon is an exercise of the power of the President under the Constitution. PROBATION LAW P . D . 968, as a m e n d e d by P . D . 1257, B . P . 76 a n d P . D . 1990

Section 1. Title and Scope of the Decree. — T h i s D e c r e e shall b e k n o w n a s the P r o b a t i o n L a w o f 1976. I t shall a p p l y to all offenders except those entitled to the benefits u n d e r the p r o v i s i o n s o f P . D . N o . 603 a n d s i m i l a r l a w s . Sec. 2. Purpose. — This D e c r e e shall be interpreted so as to: a.

P r o m o t e the c o r r e c t i o n a n d r e h a b i l i t a t i o n of an offender b y p r o v i d i n g h i m w i t h i n d i v i d u a l i z e d treatment;

b.

P r o v i d e an o p p o r t u n i t y for the r e f o r m a t i o n of a penitent offender w h i c h m i g h t b e less p r o b a b l e i f he w e r e to s e r v e a p r i s o n sentence; a n d

c.

P r e v e n t the c o m m i s s i o n of offenses.

Sec. 3. Meaning of . — As u s e d in this D e c r e e , the f o l l o w i n g shall, unless the context o t h e r w i s e r e q u i r e s , b e construed thus: a.

" P r o b a t i o n " is a disposition u n d e r w h i c h a defendant, after conviction a n d sentence, is r e l e a s e d subject to conditions i m p o s e d by the c o u r t a n d to the s u p e r v i s i o n of a p r o b a t i o n officer.

b.

" P r o b a t i o n e r " m e a n s a p e r s o n p l a c e d on p r o b a t i o n .

c.

" P r o b a t i o n Officer" m e a n s one w h o investigates for the court a r e f e r r a l for p r o b a t i o n or s u p e r v i s e s a probationer or both.

Sec. 4. Grant of Probation. — S u b j e c t to the p r o v i s i o n s of this D e c r e e , the trial court m a y , after it shall h a v e convicted 314


a n d sentenced a d e f e n d a n t a n d u p o n a p p l i c a t i o n by said def e n d a n t w i t h i n the p e r i o d for perfecting a n a p p e a l , suspend the e x e c u t i o n of the sentence a n d p l a c e the defendant on p r o b a t i o n for such p e r i o d a n d u p o n such a n d conditions as it m a y d e e m best: Provided, T h a t no application for p r o b a t i o n shall b e e n t e r t a i n e d o r g r a n t e d i f the defendant has perfected the a p p e a l f r o m the j u d g m e n t of conviction. P r o b a t i o n m a y b e g r a n t e d w h e t h e r the sentence imposes a t e r m of i m p r i s o n m e n t or a fine only. An application for p r o b a t i o n shall be filed w i t h the trial court. T h e filing of the a p p l i c a t i o n shall be d e e m e d a w a i v e r of the r i g h t to a p p e a l . A n o r d e r g r a n t i n g o r d e n y i n g the p r o b a t i o n shall not b e a p p e a l a b l e . ( A s a m e n d e d b y P . D . N o . 1257 a n d P . D . N o . 1990.) Sec. 5. Post-sentence Investigation. — No p e r s o n shall be p l a c e d o n p r o b a t i o n except u p o n p r i o r investigation b y the p r o b a t i o n officer a n d a d e t e r m i n a t i o n by the court that the e n d s of justice a n d the best interest of the p u b l i c as well as that o f the d e f e n d a n t w i l l b e s e r v e d t h e r e b y . xxx xxx xxx Sec. 8. Criteria for Placing an Offender on Probation. — In determining whether an offender may be placed on probation, the c o u r t shall c o n s i d e r all i n f o r m a t i o n r e l a t i v e to the c h a r a c t e r , a n t e c e d e n t s , e n v i r o n m e n t , m e n t a l a n d physical c o n d i t i o n o f the o f f e n d e r , a n d a v a i l a b l e institutional a n d c o m m u n i t y r e s o u r c e s . P r o b a t i o n shall be d e n i e d if the court finds that: a.

T h e offender is in need of correctional treatment that c a n be p r o v i d e d most effectively by his commitment to an institution; or

b.

T h e r e is an u n d u e risk that d u r i n g the period of p r o b a t i o n the offender will commit another crime; or P r o b a t i o n w i l l depreciate the seriousness of the offense committed.

c.

Sec. 9. Disqualified Offenders. — T h e benefits of this Decree shall not be extended to those: a.

Sentenced to serve a m a x i m u m term of imprisonment of m o r e than six (6) years; 315


b.

Convicted of subversion or any crime against the national security or the p u b l i c o r d e r ;

c.

W h o have previously b e e n convicted by final j u d g m e n t of an offense p u n i s h e d by i m p r i s o n m e n t of not less than one month a n d one d a y a n d / o r a fine of not less than 200 pesos;

d.

W h o have b e e n once o n p r o b a t i o n provisions of this D e c r e e ; a n d

e.

W h o a r e a l r e a d y s e r v i n g sentence at the time the substantive p r o v i s i o n s of this D e c r e e b e c a m e a p p l i c a b l e p u r s u a n t to Section 33 hereof. ( A s a m e n d e d b y P . D . N o . 1990.)

u n d e r the

Sec. 10. Conditions of Probation. — E v e r y p r o b a t i o n o r d e r issued by the court shall contain conditions r e q u i r i n g that the p r o b a t i o n e r shall: a.

P r e s e n t himself to the p r o b a t i o n officer d e s i g n a t e d to u n d e r t a k e his s u p e r v i s i o n at such p l a c e as m a y be specified in the o r d e r w i t h i n 72 h o u r s f r o m receipt of said o r d e r ;

b.

R e p o r t to the p r o b a t i o n officer at least once a m o n t h at s u c h time a n d p l a c e as specified by s a i d officer.

T h e court m a y also r e q u i r e the p r o b a t i o n e r to: a)

Cooperate with a p r o g r a m of supervision;

b)

M e e t his family responsibilities;

c)

D e v o t e h i m s e l f to a specific e m p l o y m e n t a n d not to c h a n g e said e m p l o y m e n t w i t h o u t the p r i o r w r i t t e n a p p r o v a l of the p r o b a t i o n officer;

d)

U n d e r g o medical, psychological o r psychiatric examination a n d treatment a n d enter a n d r e m a i n in a specified institution, w h e n r e q u i r e d for that purpose;

e)

P u r s u e a p r e s c r i b e d s e c u l a r study or v o c a t i o n a l training;

f)

A t t e n d or r e s i d e in a facility e s t a b l i s h e d f o r instruction, r e c r e a t i o n o r r e s i d e n c e o f p e r s o n s o n probation; 316


g)

R e f r a i n f r o m visiting houses o f ill-repute;

h)

A b s t a i n f r o m d r i n k i n g intoxicating b e v e r a g e s t o excess;

i)

P e r m i t the p r o b a t i o n officer or an a u t h o r i z e d social w o r k e r t o visit his h o m e a n d place o f w o r k ;

j)

R e s i d e a t p r e m i s e s a p p r o v e d b y i t a n d not t o change his r e s i d e n c e w i t h o u t its p r i o r w r i t t e n a p p r o v a l ; or

k)

Satisfy a n y o t h e r condition r e l a t e d to the rehabilitation of the d e f e n d a n t a n d not u n d u l y restrictive of his l i b e r t y or i n c o m p a t i b l e w i t h his f r e e d o m of conscience.

Sec. 11. Effectivity of Probation Order. — A p r o b a t i o n o r d e r shall t a k e effect u p o n its issuance, at w h i c h time the court shall i n f o r m the o f f e n d e r of the c o n s e q u e n c e s thereof a n d e x p l a i n that u p o n his f a i l u r e to c o m p l y w i t h any of the conditions p r e s c r i b e d in the said o r d e r or his commission of a n o t h e r offense, he shall serve the penalty imposed for the offense u n d e r w h i c h h e w a s p l a c e d o n p r o b a t i o n . xxx xxx xxx Sec.

14. Period of Probation. —

a.

T h e p e r i o d of p r o b a t i o n of a defendant sentenced to a t e r m of imprisonment of not m o r e than one year shall not exceed t w o years, a n d in all other cases, said p e r i o d shall not exceed six years.

b.

W h e n the sentence imposes a fine only a n d the offender is m a d e to serve s u b s i d i a r y imprisonment in case of insolvency, the p e r i o d of p r o b a t i o n shall not be less t h a n n o r m o r e t h a n twice the total n u m b e r of d a y s of s u b s i d i a r y imprisonment as c o m p u t e d at the rate established in A r t . 39 of the Revised Penal Code, as amended.

Sec. 15. Arrest of Probationer; Subsequent Dispositions. — At any time d u r i n g p r o b a t i o n , the court may issue a w a r r a n t for the a r r e s t of a p r o b a t i o n e r for any serious violation of the conditions of p r o b a t i o n . T h e p r o b a t i o n e r , once arrested a n d detained, shall immediately be b r o u g h t before the court 317


for a h e a r i n g of the violation c h a r g e d . T h e defendant m a y be itted to bail p e n d i n g such h e a r i n g . In such case, the provisions r e g a r d i n g release on b a i l of persons c h a r g e d w i t h a crime shall be a p p l i c a b l e to p r o b a t i o n e r s a r r e s t e d u n d e r this provision. In the h e a r i n g , w h i c h shall be s u m m a r y in n a t u r e , the p r o b a t i o n e r shall have the right to be i n f o r m e d of the violation c h a r g e d a n d to a d d u c e evidence in his favor. T h e court shall not be b o u n d by the technical rules of evidence but m a y inform itself of all the facts w h i c h a r e m a t e r i a l a n d relevant to ascertain the veracity of the c h a r g e . T h e State shall be represented by a p r o s e c u t i n g officer in a n y contested h e a r i n g . If the violation is e s t a b l i s h e d , the c o u r t m a y r e v o k e or continue his p r o b a t i o n a n d modify the conditions thereof. If r e v o k e d , the court shall o r d e r the p r o b a t i o n e r to s e r v e the sentence o r i g i n a l l y i m p o s e d . A n o r d e r r e v o k i n g the g r a n t o f p r o b a t i o n o r m o d i f y i n g the t e r m s a n d c o n d i t i o n s t h e r e o f shall not b e a p p e a l a b l e . ( A s a m e n d e d b y P . D . N o . 1257.) Sec. 16. Termination of Probation. — A f t e r the p e r i o d o f p r o b a t i o n a n d u p o n c o n s i d e r a t i o n o f the r e p o r t a n d r e c o m m e n d a t i o n of the p r o b a t i o n officer, the c o u r t m a y o r d e r the final d i s c h a r g e of the p r o b a t i o n e r u p o n finding that he has fulfilled the a n d conditions of his p r o b a t i o n a n d t h e r e u p o n , the case is d e e m e d t e r m i n a t e d . T h e final d i s c h a r g e of the p r o b a t i o n e r shall o p e r a t e to restore h i m to all civil rights lost or s u s p e n d e d as a r e s u l t of his conviction a n d to fully d i s c h a r g e his liability for a n y fine imposed a s t o the offense for w h i c h p r o b a t i o n w a s g r a n t e d . T h e p r o b a t i o n e r a n d the p r o b a t i o n officer shall e a c h b e f u r n i s h e d w i t h copy o f such o r d e r . xxx xxx xxx •

What is the nature of the benefit of probation? Probation is a privilege, not a right. Its benefits cannot extend to those expressly excluded. Probation is not a right of the accused, but rather an act of grace and clemency or immunity conferred by the State which may be granted by the court to a deserving defendant who thereby escapes the extreme rigors of 318


the penalty imposed by law for the offense of which he stands convicted. (Francisco v. CA, G.R. No. 108747, April 6, 1995) It is a disposition under which the defendant after conviction and sentence is released to serve his sentence outside of prison subject to the conditions imposed by the court and to the supervision by a probation officer. T h e Probation L a w is not a penal statute; the principle of liberal interpretation in favor of the accused does not apply. (Pablo v. Judge Castillo) »

What conditions should accompany a grant of probation? A.

B.

»

•

Mandatory conditions which are: 1.

To report to the designated probation officer within 72 hours after receipt of the order; and

2.

To report periodically to the officer at least once a month or sooner as the latter may deem.

Discretionary conditions which the court may impose. These must be constructive and not unduly restrictive of the liberty of the offender and not inconsistent with his conscience.

What are the objectives of Probation Law? a.

To promote correction and rehabilitation of the offender by giving him individualized treatment;

b.

To provide a better opportunity for the penitent offender to reform;

c.

To prevent further commission of crimes as he is placed under the supervision of probation officer;

d.

To decongest jails; and

e.

To save the government funds which would be spent on maintaining him inside the jail.

What is the probationable penalty? T h e penalty imposed must not exceed six years (prision correccional) imprisonment. An additional one day (prision mayor) would disqualify the offender from probation.

319


Because the accused is earlier imposed a fine of more than P200 in the first of the three cases charged against him arising from one act of issuing three bad checks, he is disqualified under Section 9(c) of P.D. 968. The word "previous" therein refers to conviction, not to the commission of the offense, notwithstanding the fact that the crime arose out of a single transaction. (Pablo v. Judge Castillo) •

Who are the disqualified offenders? Those who had been: a.

Sentenced to a maximum term of more than 6 years imprisonment;

b.

Convicted of subversion or any crime against national security or the public order;

c.

Previously convicted by final judgment of offense punished by imprisonment of not less than 1 month and 1 day and/ or fine of not less than P200;

d.

Granted probation for it is available only once;

e.

Already serving sentence upon the effectivity of the law;

f.

Perfected an appeal for appeal and probation are mutually exclusive remedies.

Disqualification is different from denial of the application. A qualified offender should not expect that his application w i l l be granted ipso facto. Petitioner is not entitled to probation because she has displayed a dubious and reprehensible character in trying to evade the implementation of the decision rendering the judgment against her ineffective. She executed a simulated deed of sale over her property. Instead of complying with the orders of the trial courts in the 54 counts of violations of B.P. 22, she resorted to artifice to evade the implementation of a writ of execution against her. To allow her to be placed on probation would be to depreciate the seriousness of her wrongdoing. (Santos v. CA, December 1999) •

M a y a convict who appealed his conviction still be qualified for probation? N o . Section 4 of the law is clear that "no application for probation shall be entertained or granted if the defendant 320


has perfected the appeal from the judgment of conviction." Therefore, that an appeal should not bar the accused from applying for probation if the appeal is taken solely to reduce the penalty to "qualify" for probation is contrary to the clear and express mandate of the law. (Francisco v. CA) T h e spirit of probation is irreconcilable and repugnant to appeal. T h e application for probation is akin to ission of guilt and manifestation of remorse whereas appeal is insistence of innocence on the part of the convict. Thus, they are mutually exclusive remedies. Probation forecloses the right to appeal. •

When shall the application for probation be filed? T h e application for probation must be filed within the period for perfecting an appeal (15 days). If the application was filed after the lapse of that period, the decision had attained finality; no appeal therefrom is possible under the law. The law simply does not allow probation after an appeal has been perfected for appeal and probation are mutually exclusive remedies, (id.)

•

Should multiple imposed against an accused in one decision be added up for purposes of probation? N o . Multiple prison are distinct from each other, and if none of the prison exceeds the limit set out in the law, that is, not more than six years, then he is entitled to probation, unless otherwise specifically disqualified. T h e number of offenses is immaterial as long as all the penalties imposed, taken separately, are within the probationable period. For, Section 9(a), P . D . 968, as amended, uses the word maximum, not total, when it says that the "benefits of this Decree shall not be extended to those x x x sentenced to serve a maximum prison term of imprisonment of more than six years." (id.)

•

To what does the word "previous" in the law refer? "Previous" in Section 9(c) refers to conviction, not to the commission of the offense. Where the accused issued three bad checks to one and the same complainant, three separate informations were filed and the three cases were not consolidated, one case was assigned to one Branch which convicted the accused and imposed a fine of P4.648, while the two other cases 321


were assigned to another Branch of the same court, which also found the accused guilty of the same violation and imposed a prison term of 30 days in each case, the accused should be disqualified for probation. The earlier conviction imposed a fine of more than P200 and under Section 9(c), the accused should be disqualified as the word "previous" refers to the conviction, not to the commission of the offense, notwithstanding that the crime arose out of a single act or transaction. T h e probation law is not a penal statute; the principle of liberal interpretation does not apply. (Pablo v. Judge Castillo) •

Does the grant of probation affect the applicability of Section 40(a) on disqualification of the Election Code? N o . The legal effect of probation is only to suspend the execution of the sentence. T h e conviction for fencing which involves moral turpitude subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case becomes ipso facto final when the accused applies for probation, although it is not executory pending resolution of his application. (Dela Torre v. Comelec)

•

Distinguish Probation and Indeterminate Sentence Law. Probation

ISL

1.

Sentence

must not be more than 6 years

maximum period must be more than 1 year

2.

Penalty

imprisonment or fine

imprisonment only

3.

Disposition

sentence is suspended

minimum to be served

4.

Violation

entire sentence shall be served

unexpired portion shall be served

5.

Appeal

forecloses probation

no effect on the operation of ISL

6.

Availability

Only once

Every time as long as offender is not disqualified

7.

Nature

a privilege; convict must applied for it

mandatory; convict need not apply for it

322

Chapter Five EXECUTION A N D SERVICE OF PENALTIES Section O n e . — General Provisions A r t . 78. When and how a penalty is to be executed. — No p e n a l t y shall be e x e c u t e d unless by v i r t u e of a final j u d g m e n t . A p e n a l t y shall not be executed in a n y other f o r m than that p r e s c r i b e d b y l a w , n o r w i t h a n y other circumstances o r incidents t h a n those e x p r e s s l y a u t h o r i z e d t h e r e b y . In a d d i t i o n to the p r o v i s i o n s of the l a w , the special r e g u l a t i o n s p r e s c r i b e d for the g o v e r n m e n t of the institutions i n w h i c h the penalties t o b e suffered shall b e o b s e r v e d w i t h r e g a r d to the c h a r a c t e r of the w o r k to be p e r f o r m e d , the time of its p e r f o r m a n c e , a n d o t h e r incidents connected t h e r e w i t h , the relations of the convicts a m o n g themselves a n d other p e r s o n s , the relief w h i c h they m a y receive, a n d their diet. T h e r e g u l a t i o n s shall m a k e p r o v i s i o n for the separation of the sexes in different institutions, or at least into different d e p a r t m e n t s , a n d also for the correction a n d r e f o r m of the convicts. A r t . 79. Suspension of the execution and service of the penalties in case of insanity. — W h e n a convict shall become insane or an imbecile after final sentence has b e e n p r o n o u n c e d , the execution of the said sentence shall be s u s p e n d e d only with r e g a r d to the p e r s o n a l penalty, the provisions of the second p a r a g r a p h of circumstance n u m b e r 1 of Article 12 being o b s e r v e d in the c o r r e s p o n d i n g cases. If at any time the convict shall recover his reason, his sentence shall be executed, unless the penalty shall have p r e s c r i b e d in a c c o r d a n c e with the provisions of this Code. T h e r e s p e c t i v e p r o v i s i o n s of this section shall also be o b s e r v e d if the insanity or imbecility occurs while the convict is s e r v i n g his sentence. [Art. 80. — REPEALED BY P.D. 323

603.]


Section T w o .

— Execution

of Principal Penalties

A r t . 81. When and how the death penalty is to be executed. — The death sentence shall be executed w i t h p r e f e r e n c e to any other penalty a n d shall consist in putting the p e r s o n u n d e r the sentence to death by lethal injection. T h e death sentence shall be executed u n d e r the authority of the D i r e c t o r of the B u r e a u of Corrections, e n d e a v o r i n g so far as possible to mitigate the sufferings of the p e r s o n u n d e r the sentence d u r i n g the lethal injection as w e l l as d u r i n g the p r o c e e d i n g s p r i o r to the execution. T h e D i r e c t o r of the B u r e a u of C o r r e c t i o n s shall take steps to ensure that the lethal injection to be a d m i n i s t e r e d is sufficient to cause the instantaneous d e a t h of the convict. P u r s u a n t to this, all p e r s o n n e l i n v o l v e d in the a d m i n i s tration of lethal injection shall be t r a i n e d p r i o r to the p e r f o r mance of such task. T h e a u t h o r i z e d p h y s i c i a n o f the B u r e a u o f C o r r e c t i o n s , after t h o r o u g h e x a m i n a t i o n , shall officially m a k e a p r o n o u n c e m e n t of the convict's d e a t h a n d shall certify thereto in the r e c o r d s of the B u r e a u of C o r r e c t i o n s . T h e death sentence shall b e c a r r i e d out not e a r l i e r t h a n one (1) y e a r n o r later t h a n e i g h t e e n (18) m o n t h s after the j u d g m e n t has b e c o m e final a n d e x e c u t o r y w i t h o u t p r e j u d i c e to the exercise by the P r e s i d e n t of his executive c l e m e n c y p o w e r s at all times. A r t . 82. Notification and execution of the sentence and assistance to the culprit. — T h e c o u r t shall d e s i g n a t e a w o r k i n g d a y for the execution, b u t not the h o u r thereof; a n d such designation shall not be c o m m u n i c a t e d to the o f f e n d e r b e f o r e sunrise of said d a y , a n d the execution shall not t a k e p l a c e until after the e x p i r a t i o n of at least 8 h o u r s f o l l o w i n g the notification, b u t b e f o r e sunset. D u r i n g the i n t e r v a l b e t w e e n the notification a n d the execution, the c u l p r i t shall, i n s o f a r as possible, be f u r n i s h e d s u c h assistance as he m a y r e q u e s t in o r d e r to be a t t e n d e d in his last m o m e n t s by priests or ministers of the r e l i g i o n he professes a n d to consult l a w y e r s , as w e l l as in o r d e r to m a k e a w i l l a n d confer w i t h m e m b e r s

324

EXECUTION A N D SERVICE OF PENALTIES

of his family or p e r s o n in c h a r g e of the m a n a g e m e n t of his b u s i n e s s , of the a d m i n i s t r a t i o n of his p r o p e r t y , or of the care of his d e s c e n d a n t s . ?? conjugal visits allowed?

A r t . 83. Suspension of the execution of the death sentence. — T h e d e a t h sentence shall not be inflicted u p o n a w o m a n w h i l e she is p r e g n a n t or w i t h i n 1 y e a r after delivery, nor u p o n a n y p e r s o n o v e r 70 y e a r s of a g e . In this last case, the d e a t h sentence shall be c o m m u t e d to the penalty of reclusion perpetua w i t h the a c c e s s o r y penalties p r o v i d e d in Article 40. In all cases w h e r e the d e a t h sentence has b e c o m e final, the r e c o r d s of the case shall be f o r w a r d e d immediately by the S u p r e m e C o u r t to the Office of the P r e s i d e n t for possible exercise of the p a r d o n i n g p o w e r . (As amended by Sec. 25, R.A. No. 7659.) A r t . 84. Place of execution and persons who may witness the same. — T h e e x e c u t i o n shall take place in the penitentiary or B i l i b i d in a space closed to the p u b l i c v i e w a n d shall be w i t n e s s e d only by the priests assisting the offender a n d by his l a w y e r s a n d by his relatives, not e x c e e d i n g six, if he so requests, by the p h y s i c i a n a n d the necessary personnel of the p e n a l establishment, a n d by such p e r s o n s as the D i r e c t o r of Prisons may authorize. A r t . 85. Provision relative to the corpse of the person executed and its burial. — U n l e s s c l a i m e d by his family, the corpse of the c u l p r i t shall, u p o n completion of the legal p r o c e e d i n g s s u b s e q u e n t to the execution, be t u r n e d o v e r to the institute of l e a r n i n g or scientific r e s e a r c h first a p p l y i n g for it, for the p u r p o s e of study a n d investigation, p r o v i d e d that such institute shall take c h a r g e of the decent b u r i a l of the remains. O t h e r w i s e , the D i r e c t o r of P r i s o n s shall o r d e r the b u r i a l of the b o d y of the culprit at g o v e r n m e n t expense, g r a n t i n g p e r m i s s i o n to be present thereat to the of the family of the culprit a n d the friends of the latter. In no case shall the b u r i a l of the b o d y of a person sentenced to d e a t h b e held w i t h p o m p . A r t . 86. Reclusion perpetua, reclusion temporal, prision mayor, prision correccional and arresto mayor. — The penalties of reclusion perpetua, reclusion temporal, prision mayor, prision correccional a n d arresto mayor, shall be executed and 325


served in the places a n d penal establishments p r o v i d e d by the istrative C o d e in force or w h i c h m a y be p r o v i d e d by l a w in the future. •

What is the constitutional policy on penalty as a whole? No excessive fines or cruel or inhuman punishment should be imposed. The counterpart of Section 19(1) in the 1935 Constitution reads: 'Excessive fines shall not be imposed, nor cruel and inhuman punishment inflicted.' In the 1973 Constitution, the phrase became 'cruel or unusual punishment.' The Bill of Rights Committee of the 1986 Constitutional Commission read the 1973 modification as prohibiting 'unusual' punishment even if not 'cruel.' It was thus seen as an obstacle to experimentation in penology. Consequently, the Committee reported out the present text which prohibits cruel, degrading or inhuman punishment as more consonant with the meaning desired and with jurisprudence on the subject. (Echegaray v. Sec. of Justice)

A r t . 87. Destierro. — A n y p e r s o n sentenced to destierro shall not be p e r m i t t e d to enter the p l a c e or places d e s i g n a t e d in the sentence, n o r w i t h i n the r a d i u s t h e r e i n specified, w h i c h shall be not m o r e t h a n 250 a n d not less t h a n 25 k i l o m e t e r s from the place d e s i g n a t e d . •

To what does the limitation of distance in the law pertain? It pertains to the place designated by the court in the decision. This means that the convict can go farther than the distance but not nearer than that specified by the court. Thus, if the court imposed the maximum of 250 km., the offender can go 300 km. away from the restricted area but not nearer. If he was restricted to 50 km., he can go 75 km. away but not within 50 km. The court cannot impose a distance lower than 25 km. or higher than 250 km.

•

If the offender violates the limitation of distance, is this evasion of service of sentence? At first blush, it would appear that this is not evasion for Articles 156 to 159 refer to evasion of sentence served 326

EXECUTION A N D SERVICE OF PENALTIES

by confinement in prison or penal institution. However, considering that destierro is a penalty, it should be considered mandatory. Therefore, the violation of distance by the offender getting within the prohibited area should be considered as evasion for otherwise, the offender would be encouraged to violate his penalty. A r t . 88. Arresto menor. — T h e penalty of arresto menor shall be s e r v e d in the m u n i c i p a l j a i l , or in the house of the d e f e n d a n t h i m s e l f u n d e r the s u r v e i l l a n c e of an officer of the l a w , w h e n the c o u r t so p r o v i d e s in its decision, t a k i n g into c o n s i d e r a t i o n the h e a l t h of the offender a n d other reasons w h i c h m a y s e e m satisfactory to it. T h e author believes that arresto menor should no longer be served in jail in keeping with the spirit and intent of the Probation L a w and the I S L . Rather, it should be converted to community service or fine as the court deems fit.

327

TITLE FOUR

EXTINCTION OF CRIMINAL LIABILITY Chapter One

TOTAL EXTINCTION OF CRIMINAL LIABILITY A r t . 89. How criminal liability is totally extinguished. — C r i m i n a l liability is totally extinguished: 1.

By the d e a t h of the convict, as to the p e r s o n a l penalties; a n d as to p e c u n i a r y penalties, liability therefor is e x t i n g u i s h e d o n l y w h e n the d e a t h of the offender occurs b e f o r e final j u d g m e n t ;

2.

By service of the sentence;

3.

By amnesty, w h i c h completely e x t i n g u i s h e s the penalty a n d all its effects;

4.

By absolute p a r d o n ;

5.

By p r e s c r i p t i o n of the c r i m e ;

6.

By p r e s c r i p t i o n of the penalty;

7.

By the m a r r i a g e of the o f f e n d e d w o m a n , as p r o v i d e d in A r t i c l e 344 of this C o d e .

[ A r t . 36. Pardon; its effects. — A p a r d o n shall not w o r k the restoration of the r i g h t to h o l d p u b l i c office, or the r i g h t o f s u f f r a g e , unless s u c h r i g h t s b e e x p r e s s l y r e s t o r e d b y the of the p a r d o n . A p a r d o n shall in no case e x e m p t the c u l p r i t f r o m the p a y m e n t o f the civil i n d e m n i t y i m p o s e d u p o n h i m b y the sentence. A r t . 23. Effect of pardon by the offended party. — A p a r d o n b y the offended p a r t y does not e x t i n g u i s h c r i m i n a l action except as p r o v i d e d in A r t i c l e 344 of this C o d e ; b u t civil 328

TOTAL EXTINCTION OF C R I M I N A L LIABILITY

liability w i t h r e g a r d to the interest of the i n j u r e d p a r t y i e x t i n g u i s h e d b y his e x p r e s s w a i v e r . ] •

What causes the total extinction of criminal liability? a.

Death of convict (pecuniary liability is extinguished if death occurs before final judgment)

b.

Service of the sentence

c.

Amnesty

d.

Absolute pardon

e.

Prescription of crime

f.

Prescription of penalty and

g-

M a r r i a g e of the offended woman under Articles 266-C and 344

Express repeal of penal law will also extinguish criminal liability subject to the provisions of Article 22, as the act is decriminalized. Death •

What is the effect of death of the offender on his criminal and civil liabilities? Death of convict extinguishes criminal liability at any stage of the proceeding but his civil liability shall be extinguished if death occurs before final judgment. T h e reason is that the penalty requires personal service of sentence. If death occurs, there will be nobody to serve the penalty for the crime (People v. Bayotas, G.R. No. 102007, September 2, 1994). T h e rule is that a person can act personally or thru an agent but there are certain acts which can only be done personally such as service of sentence, personal military service, and contracting marriage.

•

What is the final judgment in paragraph 1 of Article 89? "Sentencia firma" should be understood as one which is definite. Because it is only then that such judgment is confirmed. When a defendant dies before judgment is executory, there cannot be any determination by final judgment whether or not 329


the felony upon which the civil action might arise exists for the reason that there is no party defendant, (id.) The legal import of the term final judgment is similarly reflected in Articles 72 and 78, which mention the term final judgment in the sense that it is already enforceable. Also Section 7 of Rule 116 of the R R C P which states that a judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal or when the sentence has been partially or totally satisfied or served or the defendant has expressly waived in writing the right to appeal, (id.) Or by applying for probation because that constitutes an express waiver of the right to appeal. The term final judgment means judgment beyond recall. As long as the judgment has not become executory, it cannot be truthfully said that the accused is definitely guilty of the felony charged against him. (id.) Does Article 30 of the Civil Code authorize the appellate court to continue exercising jurisdiction over the civil liability ex-delicto when death occurs during appeal? N o . W h a t A r t i c l e 30 recognizes is an alternative and separate civil action, which may be brought to demand civil liability arising from a criminal offense independently of any criminal action. In the event that no criminal proceedings are instituted during the pendency of the civil case, the quantum of evidence needed to prove the criminal act w i l l have to be that which is compatible with civil liability and that is preponderance of evidence and not guilt beyond reasonable doubt. Whether asserted in a criminal action or in a separate civil action, civil liability ex-delicto is extinguished by the death of the accused while his conviction is on appeal. In recovering civil liability ex-delicto, the same has to be determined in a criminal action rooted as it is in the court's pronouncement of the guilt or innocence of the accused, (id.) What is the intendment of Article 100 on civil liability? Civil liability ex-delicto must be rooted in the court's pronouncement of the guilt or innocence of the accused. In such cases, extinction of the criminal action due to the death of the

330


accused pending appeal inevitably signifies the concomitant extinction of the civil liability. Mors omnia solvi. Death dissolves all things. In sum, in pursuing recovery of civil liability arising from crime, the final determination of the criminal liability is a condition precedent to the prosecution of the civil action such that when the criminal action is extinguished by the death of the accused pending appeal, said civil action cannot survive (id.) •

Relate Article 30 of the Civil Code to Articles 89(1) and 100 of the Revised Penal Code. Article 30 of the N C C refers to the institution of a separate civil action that does not draw its life from a criminal proceeding. T h e claim for civil action survives notwithstanding the death of the accused if the same may also be predicated on a source of obligation other than delict (e.g., quasi-delict, law, contract, quasi-contract.) (id.). Article 100 is civil liability based on delict or crime. Accused died while under detention. His death was reported by the provincial warden to the trial court, which should have dismissed the case against said accused. Under Article 89(1), the criminal liability of an offender is totally extinguished by his death as to the personal penalties; while the pecuniary liability therefor is extinguished when the offender dies before final judgment. (People v. Villagracia, G.R. No. 94311, September 14, 1993)

Service of Sentence •

Should the period of time during which the evader of sentence was at large be included in the service of his sentences? The period during which petitioner was not inside prison walls cannot be regarded as service of sentence. The sentences imposed on the petitioner consist of deprivation of his liberty. He cannot be said to have been deprived of his liberty during the periods he was at large. Moreover, Article 89 stipulates that penalties like those meted on the petitioner "shall be executed and served in the places and penal establishments provided by the istrative Code in force or which may be provided by law in the future." The Code thus requires that the service 331


of sentence be in a penal institution. (Martin v. Eduardo, 121 SCRA) •

In what instances may the sentence be served outside of prison? A convict may serve his sentence outside of prison if his penalty is destierro, arresto menor pursuant to Article 88, when he is granted probation or parole.

Pardon •

What are the effects of pardon by the offended party? It does not extinguish criminal liability. T h e only exception is valid marriage in Article 266-C and Article 344 between the offender and the victim to effect an extinguishment of criminal liability. But civil liability is extinguished by express waiver of the offended.

•

Compare pardon by the offended and pardon by the President. Pardon by the President extinguishes the criminal liability but not the civil; on the other hand, pardon by the offended does not so extinguish the liability except by the valid marriage of the victim and the offender in rape and in crimes against chastity under Articles 266-C and 344. But the offended can waive the civil liability. Pardon by the President is given after final judgment; that of the offended party must be given prior to the institution of the criminal case to be effective. But Article 266-C now allows pardon even after final judgment by the valid marriage between the offended and the offender. An affidavit of desistance is merely an additional ground to buttress the accused's defenses, not the sole consideration that can result in acquittal. T h e r e must be other circumstances which, when coupled with the retraction or desistance, create doubts as to the truth of the testimony given by the witnesses at the trial. (People v. Ballabare) A l l that the accused offered as defenses mainly consisted of denial and alibi which cannot outweigh the positive identification and convincing testimonies given by the prosecution. Hence, the affidavit of desistance which the victim herself intended to disregard must have no bearing on the prosecution against the accused particularly on the trial court's jurisdiction over the case. (People v. Echegaray) 332


What are the limitations on the pardoning power of the Chief Executive? 1.

That the power be exercised after final conviction, and

2.

That such power does not extend to cases of impeachment.

When does a judgment of conviction become final? 1.

W h e n no appeal is seasonably perfected

2.

W h e n the accused commences to serve the sentence

3.

W h e n the r i g h t to appeal is expressly w a i v e d in writing, (People v. Salle, Jr., G.R. No. 103567, December 4, 1995) and

4.

W h e n the accused applies for probation, thereby waiving his right to appeal.

What is the effect of an appeal on the power of the President to extend pardon? An appeal brings the entire case within the exclusive jurisdiction of the appellate court. The doctrine of separation of powers demands that such exclusive authority of the appellate court be fully respected and kept unimpaired. Had not the present Constitution adopted the "conviction by final judgment" limitation, the President could, at any time and even without the knowledge of the court, extend executive clemency to anyone whom he in good faith or otherwise believes to merit presidential mercy. There could be the risk not only of a failure of justice but also a frustration of istration of justice in v i e w of the derogation of the jurisdiction of the trial or appellate court. W h e r e the President is not so prevented by the Constitution, not even Congress can impose any restriction to prevent a presidential folly, (id.) What procedure should be followed in the grant of pardon to a convict who appealed his judgment? Before an appellant may be validly granted pardon, he must first ask for the withdrawal of his appeal, i.e., the appealed conviction must first be brought to finality. The "conviction by final judgment" limitation under Section 19, Article V I I of the Constitution prohibits the grant of pardon, whether full or 333


conditional, to an accused during the pendency of his appeal from his conviction by the trial court. Any application therefor should not be acted upon or the process toward its grant should not be begun unless the appeal is withdrawn. The agencies must require proof from the accused that he has not appealed from his conviction or that he has withdrawn his appeal. The acceptance of the pardon shall not operate as an abandonment or waiver of the appeal and the release of an accused by virtue of a pardon, commutation of sentence, or parole before the withdrawal of an appeal shall render those responsible therefor istratively liable. Accordingly, those who have custody of the accused must not solely rely on the pardon as a basis for the release of the accused from confinement, (id) •

In rape cases, does the pardon of the parents, without the concurrence of the minor victim herself effective? N o , pardon must be granted not only by the parents but also by the offended minor herself to be effective as an express pardon. Lacson, Jr., (CA) 55 OG 9460, held: "Neither must we be understood as ing the v i e w that the parents alone can extend a valid pardon. Far from it, for we too are of the belief that the pardon by the parents, standing alone, is inefficacious." It was also held in another case that: "The express pardon of a person guilty of attempted abduction of a minor, granted by the latter's parents, is not sufficient to remove criminal responsibility, but must be accompanied by the express pardon of the girl herself." (US v. Luna, 1 Phil. 360) The supposed pardon of the accused was granted by the mother without the concurrence of the minor. Hence, even if it be assumed that the initial desistance of the mother from taking any action against the accused constitutes pardon, such pardon is ineffective without the express concurrence of the minor herself. (People v. Tadulan, G.R. No. 117407, April 15, 1997).

Amnesty •

What is amnesty? What are its effects? Amnesty is one of the presidential prerogatives besides reprieve, commutation of sentence, pardon and remittance

334


of fines and forfeitures. But unlike the latter prerogatives, amnesty requires congressional action. It is an act of grace, which relieves the offender not only from suffering the penalty but obliterates the effects of the conviction as if the act were not criminal. It is usually given to political offenders. A m n e s t y looks backward and abolishes and puts into oblivion the offense itself; it so overlooks and obliterates the offenses with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense. (People v. Casido, G.R. No. 116512, March 7, 1997) It is a public act of the President which courts take judicial notice of especially since it is concurred to by Congress. Distinguish amnesty and absolute pardon. AMNESTY

PARDON

1. Application

generally to political crimes and offenders

generally to ordinary crimes and offenders

2.

Effect

obliterates the effects of conviction as if the act were not criminal

relieves the offender of penalty but the effects of conviction

3.

Congress

concurrence required

stay concurrence not needed

4.

When given

5.

Beneficiary

6.

Nature

after final conviction even before conviction usually a class of persons

a specific individual

public act of the President; courts must take judicial notice

private act of the President; no judicial notice

"Pardon is given by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned, because the courts take no notice thereof; while amnesty is by Proclamation of the Chief Executive with the concurrence of Congress, and it is a public act of which the courts should take judicial notice.

335


"Pardon is granted to one after conviction; while amnesty is granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction. "Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolishes or forgives the punishment, and for that reason does 'not work the restoration of the rights to hold public office, or the rights of suffrage, unless such rights be expressly restored by the of the pardon,' and it 'in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence.' W h i l e amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offenses with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense." (People v. Casido) •

Is novation a means of extinguishing criminal liability? N o . It is not a mode of extinguishing criminal hability. It may prevent the rise of criminal liability as long as it occurs prior to the filing of the criminal information in court. Here, the new agreement which petitioner claims he entered into with the complainant before the filing of the information in court never took effect, as petitioner did not comply with his undertaking to pay or make good the bad checks. (Diongzon v. CA, G.R. No. 114823, December 23, 1999)

A r t . 90. Prescription of crimes. — C r i m e s p u n i s h a b l e by death, reclusion perpetua or reclusion temporal shall p r e scribe in 20 years. C r i m e s p u n i s h a b l e b y o t h e r afflictive penalties shall p r e s c r i b e in 15 years. T h o s e p u n i s h a b l e by a c o r r e c t i o n a l p e n a l t y shall p r e s c r i b e in 10 years; w i t h the e x c e p t i o n of those p u n i s h a b l e by arresto mayor, w h i c h shall p r e s c r i b e in 5 y e a r s . T h e crime of libel p r e s c r i b e in 1 y e a r .

or

other

336

similar

offenses

shall


T h e offenses o f o r a l d e f a m a t i o n a n d s l a n d e r b y d e e d shall p r e s c r i b e in 6 months. L i g h t offenses p r e s c r i b e in 2 months. W h e n the p e n a l t y fixed by l a w is a c o m p o u n d one, the highest p e n a l t y shall be m a d e the basis of the application of the rules c o n t a i n e d in the first, second, a n d t h i r d p a r a g r a p h s of this article. (As amended by R.A. No. 4661, June 19, 1966) A r t . 91. Computation of prescription of offenses. — T h e p e r i o d of p r e s c r i p t i o n shall c o m m e n c e to r u n f r o m the day on w h i c h the c r i m e is d i s c o v e r e d by the offended party, the authorities, o r t h e i r agents, a n d shall b e i n t e r r u p t e d b y the filing of the c o m p l a i n t or i n f o r m a t i o n , a n d shall commence t o r u n a g a i n w h e n such p r o c e e d i n g s terminate w i t h o u t the a c c u s e d b e i n g convicted o r acquitted, o r a r e unjustifiably s t o p p e d for a n y r e a s o n not i m p u t a b l e to him. T h e t e r m o f p r e s c r i p t i o n shall not r u n w h e n the offender i s a b s e n t f r o m the P h i l i p p i n e A r c h i p e l a g o . •

What is prescription of crime? Prescription of crime refers to the loss of the right of the State to prosecute offenders. It is not waivable. Since it is for the benefit of the accused, the period of prescription cannot be extended. Once prescription has set in, the courts automatically lose jurisdiction over the case. The basis of prescription is the higher penalty if several were imposed pursuant to the last paragraph of Article 90.

•

What are the laws on prescription of crimes? For felonies under the R P C , the governing law on prescription is Articles 90 and 91. For offenses under special laws, the penal law may provide for the period and the rules for prescription of violations thereof. Otherwise, Act 3326, "An Act to Establish Periods of Prescription for Violations Penalized by Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin to Run" applies. Act 3326 governs the commencement of prescription of any act in violation of R . A . 3019: 337


"Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted when the proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy" (Presidential Ad Hoc Committee on Behest Loans v. Ombudsman, August 2001). •

When does the period of prescription start to run? The running of the period starts from the discovery of the crime by the offended or the authorities or their agents. This list is exclusive; discovery by other than the persons enumerated will not even make the period start to run. For instance, the discovery of the crime by a neighbor of the victim will not commence the running of the period.

•

What causes the interruption and the resumption of the running of the period? The running of the period of the complaint or information of the country. T h e period runs are terminated without acquittal attributable to the offender.

is interrupted by the filing or when the offender is out again when the proceedings or conviction for reasons not

T h e duration of the resumed period should be the unexpended portion only for to give the period a fresh start every time it is interrupted is prejudicial to the offender. •

Where should the complaint or information be filed to cause the interruption of the running of the period? In declaring that the prescriptive period "shall be interrupted by the filing of the complaint or information," Article 91 does not distinguish whether the complaint is filed for preliminary examination or investigation only or for an action on the merits. Francisco and Cuaresma, said that the filing of the complaint even with the fiscal's office suspends the running of the statute of limitations. (Reodica v. CA)

338


Zaldivia involved violation of a municipal ordinance. Thus, the applicable law was not Article 91, but Act 3326, as amended. Under its Section 2, the period of prescription is suspended only when judicial proceedings are instituted against the guilty party. Accordingly, it was held that the prescriptive period was not interrupted by the filing of the complaint with the Office of the Provincial Prosecutor, as such did not constitute a judicial proceeding; what could have tolled the prescriptive period there was only the filing of the information in the proper court, (id.) •

Relate Section 9 of the Rule on Summary Procedure on commencement of prosecution to the rules on prescription. Section 9 of the Rule on Summary Procedure, which provides that in cases covered thereby, such as offenses punishable by imprisonment not exceeding six months, "the prosecution commences by the filing of a complaint or information directly with the M e T C , R T C or M C T C without need of a prior preliminary examination or investigation; provided that in Metropolitan Manila and Chartered Cities, said cases may be commenced only by information." However, this Section cannot be taken to mean that the prescriptive period is interrupted only by the filing of a complaint or information directly with said courts. Prescription in criminal cases is a matter of substantive law. Pursuant to Section 5(5), Article V I I I of the Constitution, the Supreme Court, in the exercise of its rule-making power, is not allowed to diminish, increase or modify substantive rights. Hence, the R P C prevails in case of conflict with the Rule on Summary Procedure.

•

What is the effect of the delay in the reporting of crimes to its prosecution? None. T h e law on prescription would be meaningless if the proposition that delay in the prosecution of crimes would be fatal to the State and the offended party is countenanced. In fixing the different prescriptive periods on the basis of the gravity of the penalty prescribed, the law takes into or allows reasonable delays in the prosecution thereof. In a number of cases, a delay of 17 days, 35 days or even six months 339


by a victim of rape in reporting the crime does not detract from the veracity of her charge. (People v. Gecomo, G.R. No. 11503536, February 23, 1996) Who is the offended party in Article 91? Article 91 does not define the term offended party but its definition is found in Section 12, Rule 110 of the R R C P as "the person against whom or against whose property the offense was committed." More specifically, it is reasonable to assume that the offended is the party to whom the offender is civilly liable, in the light of Article 100 of the Code, which expressly provides that every person criminally liable for a felony is also civilly liable. Invariably then, the private individual to whom the offender is civilly liable is the offended party. It is true that bigamy is a public offense. But, it is entirely incorrect to state that only the State is the offended party in such case, as well as in other public offenses, and therefore, only the State's discovery of the crime could effectively commence the running of the period of prescription. Article 91 provides that the period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents. This rule makes no distinction between a public crime and a private crime. In both cases then, the discovery may be by the offended party, the authorities, or their agents. (Garcia v. CA, January 1997) Can brief trips abroad qualify as "absence" in Article 91? N o . These trips were very brief, and in every case, the private respondent returned to the Philippines. Besides, these were made long after the petitioner discovered the offense and even if the aggregate number of days of these trips were considered, still the information was filed well beyond the prescriptive period, (id.) What rule on prescriptive period applies in reckless imprudence resulting to variant felonies? Pursuant to Article 90, reckless imprudence resulting in slight physical injuries, being a light felony, prescribes in two months. On the other hand, reckless imprudence resulting in

340


damage to property in the amount of P8,542, being a less grave felony whose penalty is arresto mayor in its minimum and medium periods, prescribes in five years. •

Will the principle of constructive notice by registration apply to the crime of bigamy? N o , as judicial notice may be taken of the fact that a bigamous marriage is generally entered into by the offender in secrecy from the spouse of the previous subsisting marriage. Also, a bigamous marriage is generally entered into in a place where the offender is not known to be still a married person, in order to conceal his legal impediment to contract another marriage. In the case of real property, the registration of any transaction involving any right or interest therein is made in the of Deeds of the place where the said property is located. Verification in the Office of the of Deeds concerned of the transactions involving the said property can easily be made by any interested party. In the case of a bigamous marriage, verification by the offended person or the authorities of the same would indeed be quite difficult as such a marriage may be entered into in a place where the offender is not known to be still a married person. It should be noted that in the criminal cases cited by the petitioner wherein constructive notice was applied, involved therein were land or property disputes and certainly, marriage is not property. (People v. Reyes, July 1989)

•

Is the non-application to bigamy of the rule on constructive notice not contrary to the liberal construction of penal laws? N o , for to compute the prescriptive period for the offense of bigamy from registration would amount to almost absolving the offenders from liability therefor. While the celebration of the bigamous marriage may be open and of public record by its registration, the offender, however, is not truthful as he conceals from the officiating authority and those concerned the existence of his previous subsisting marriage. He does not reveal to them that he is still a married person. He likewise conceals from his legitimate spouse his bigamous marriage.

341


And for these, he contracts the bigamous marriage in a place where he is not known to be still a married person. A n d such a place may be anywhere making the discovery of the bigamous marriage quite difficult and would take time. It is thus reasonable that the prescriptive period for bigamy should be counted from the day of its discovery. Considering such concealment of the bigamous marriage, if the prescriptive period were to be counted from the date of registration, its prosecution would almost be impossible. Such interpretation would encourage fearless violations of a social institution cherished and protected by law. (id.) While Section 52 of P . D . 1529 provides for constructive notice to all persons of every conveyance, mortgage, lease, lien, attachment, order, judgment, instrument or entry affecting ed land filed or entered in the office of the of Deeds for the province or city where the land to which it relates lies from the time of such ing, filing or entering, there is no counterpart provision either in A c t 3753 (Act to Establish a Civil ) or in Articles 407 to 413 of the N C C , which leads to the conclusion that there is no legal basis for applying the constructive notice rule to the documents ed in the Civil . A r t . 92. When and how penalties prescribe. — T h e penalties imposed by final sentence p r e s c r i b e as follows: 1.

D e a t h a n d reclusion perpetua, in 20 y e a r s ;

2.

O t h e r afflictive penalties, in 15 y e a r s ;

3.

C o r r e c t i o n a l penalties, in 10 y e a r s , w i t h the exception of the p e n a l t y of arresto mayor, w h i c h p r e s c r i b e s in 5 years;

4.

L i g h t penalties, in 1 y e a r .

A r t . 93. Computation of the prescription of penalties. — T h e period of prescription of penalties shall c o m m e n c e to r u n from the date w h e n the culprit s h o u l d e v a d e the service of his sentence, a n d it shall be i n t e r r u p t e d if the d e f e n d a n t s h o u l d give himself u p , be c a p t u r e d , should go to some f o r e i g n country w i t h w h i c h his G o v e r n m e n t has no extradition treaty, or should commit a n o t h e r crime b e f o r e the e x p i r a t i o n of the period of prescription. 342


What is prescription of penalty? It is the loss of the right of the State to enforce the sentence imposed on the convict by the lapse of time. Prescription of penalty becomes operative when the convict escapes from detention or evades the service of his sentence. What are the prescriptive periods of felonies? a.

Reclusion perpetua

—

20 years

b.

Reclusion temporal, disqualification, and prision mayor

—

15 years

suspension and destierro

—

10 years

d.

Arresto mayor

—

5 years

e.

Arresto menor, public censure

—

1 year

c.

Prision

correccional,

How is the running of the period of prescription of penalty commenced? Tolled? T h e period of prescription begins to run when the convict evades service of sentence by escaping during the term of his sentence. If the convict has not suffered deprivation of liberty before his arrest and as a consequence, never evaded sentence by escaping during the term of his sentence, the period of prescription never began. (Pangan v. Gabalite, G.R. No. 141718, January 21, 2005) T h e tolling of period of prescription of penalty occurs when the convict: a.

gives himself up;

b.

is captured;

c.

goes to another country with which the Philippines has no extradition treaty; and

d.

commits another crime before the expiration of the period of prescription.

Compare prescription of crime and of penalty. Prescription of crime is the loss of the right to prosecute the offender whereas prescription of penalty is the loss of the 343


right to enforce the penalty for the crime committed. In the former, prosecution has not yet begun, whereas in the latter, trial on the merits has already been concluded. In prescription of crime, the culprit may not have been apprehended or taken into custody yet whereas in prescription of penalty, the convict has been under the custody of the law. In the former, the condition precedent is the discovery of the crime whereas in the latter, it is the evasion of service of sentence. •

What are the two kinds of repeal and their effect on the criminal liability of the accused/convict? 1.

Express or total repeal of penal laws, which decriminalizes the act such as repeal of the anti-squatting law or the anti-subversive law. Such repeal extinguishes criminal liability for the act is no longer criminal and its effect shall retroact favorably to offenders whose sentence has become final and even to those who are already serving sentence provided they are not habitual delinquents. (Article 22)

2.

Implied or partial repeal of penal laws which has favorable effect on the accused or convict such as R . A . 8294 which lowered the penalty on the basis of the caliber of the guns possessed. This has the effect of partial extinction of criminal liability for it reduces the penalty imposed on the accused or convict.

Chapter Two P A R T I A L EXTINCTION OF CRIMINAL LIABILITY A r t . 94. Partial extinction of criminal liability. — Criminal liability is e x t i n g u i s h e d partially:

•

1.

By c o n d i t i o n a l p a r d o n ;

2.

By c o m m u t a t i o n of the sentence; a n d

3.

F o r g o o d c o n d u c t a l l o w a n c e s w h i c h the culprit m a y e a r n w h i l e h e i s s e r v i n g his sentence.

What are the causes of partial extinction of criminal liabilities? Under Section 94: a.

Conditional pardon;

b.

Commutation of sentence; and

c.

Good conduct allowance.

In addition: d.

Parole under the I S L ;

e.

Probation under P . D . 968;

f.

Partial repeal of penal law.

A r t . 95. Obligation incurred by a person granted conditional pardon. — A n y p e r s o n w h o has b e e n g r a n t e d conditional p a r d o n shall i n c u r the obligation of c o m p l y i n g strictly w i t h the conditions i m p o s e d therein; otherwise, his noncompliance w i t h any of the conditions specified shall result in the revocation of the p a r d o n a n d the provisions of Article 159 shall be a p p l i e d to him. •

What are the requisites for conditional pardon? It must be given after final judgment and must be accepted because of the conditions which must be complied with strictly. For, if the offender violates the condition of his pardon and the penalty remitted is less than six years, he shall be meted an additional penalty, viz.: 345


"Art. 159. Other cases of evasion of service of sentence. — xxx. However, if the penalty remitted by the granting of such pardon be higher than six years, the convict shall then suffer the unexpired portion of his original sentence." What are the nature and effects of a conditional pardon? A conditional pardon is a contract between the Chief Executive and the convicted criminal to the effect that the former will release the latter subject to the condition that if he does not comply with the of the pardon, he will be recommitted to prison to serve the unexpired portion of the sentence or an additional one. (Alvarez v. Director of Prison, 80 Phil. 50) By the pardonee's consent to the stipulated in this contract, he has thereby placed himself under the supervision of the Chief Executive or his delegate who is dutybound to see to it that the pardonee complies with the and conditions of the pardon. Section 64(1) of the R A C , authorizes the Chief Executive to order "the arrest and reincarceration of any such person who, in his judgment, shall fail to comply with the condition, or conditions of his pardon, parole, or suspension of sentence." (Torres v. Dir. of Bureau of Corrections, G.R. No. 122338, December 29, 1995) Is the grant of pardon subject to judicial review? N o , this exercise of presidential judgment is beyond judicial scrutiny. T h e determination of the violation of the conditional pardon rests exclusively in the sound judgment of the Chief Executive. T h e pardonee, having consented to place his liberty on conditional pardon upon the judgment of the power that has granted it cannot invoke the aid of the courts, however erroneous the findings may be upon which his recommitment was ordered. It matters not that TT had allegedly been acquitted in two of the three criminal cases filed against him subsequent to his conditional pardon, and that the third case remains pending for 13 years in apparent violation of his right to a speedy trial. (Tesoro v. Dir. of Prisons, 68 Phil. 154) Is a petition for writ of habeas corpus the remedy for a person incarcerated for violation of conditional pardon? 346

PARTIAL EXTINCTION OF C R I M I N A L LIABILITY

Habeas corpus lies only where the restraint of a person's liberty has been judicially adjudged as illegal or unlawful. The incarceration of TT remains legal considering that, were it not for the grant of conditional pardon which had been revoked because of a breach thereof, the determination of which is beyond judicial scrutiny, he would have served his final sentence for his first conviction until November 2, 2000. Ultimately, solely vested in the Chief Executive, who in the first place was the exclusive author of the conditional pardon and of its revocation, is the corollary prerogative to reinstate the pardon if in his own judgment, the acquittal of the pardonee from the subsequent charges filed against him, warrants the same. Courts have no authority to interfere with the grant by the President of a pardon to a convicted criminal, (id.) •

What are the effects of conditional pardon on civil liability? A conditional pardon does not extinguish the civil liability arising from the crime. (Monsanto v. Factoran, Jr., 170 SCRA [1989]; People v. National, G.R. Nos. 111294-95, September 7, 1995)

•

W h o determines if there is violation of conditional pardon? T h e President solely determines if there is violation of conditional pardon. He can order the offender's arrest and incarceration pursuant to the R A C ; or offender can be prosecuted under Article 159. It has been the court's fortified ruling that a final judicial pronouncement as to the guilt of a pardonee is not a requirement for the President to determine whether or not there has been a breach of the of a conditional pardon. There is likewise nil a basis for the courts to effectuate the reinstatement of a conditional pardon revoked by the President in the exercise of powers undisputedly solely and absolutely lodged in his office. (Petition for habeas corpus of Wilfredo Torres) A r t . 96. Effect of commutation of sentence.—The commutation of the o r i g i n a l sentence for another of a different length and n a t u r e shall h a v e the legal effect of substituting the latter in the place of the former.

347


A r t . 97. Allowance for good conduct. — T h e good conduct of any prisoner in any penal institution shall entitle h i m to the following deductions f r o m the p e r i o d of his sentence: 1.

D u r i n g the first t w o y e a r s of his imprisonment, he shall be a l l o w e d a deduction of five d a y s for each month of good b e h a v i o r ;

2.

D u r i n g the 3rd to the 5th y e a r , inclusive, of his imprisonment, he shall be a l l o w e d a d e d u c t i o n of eight days for each m o n t h of g o o d b e h a v i o r ;

3.

D u r i n g the f o l l o w i n g y e a r s until the 10th y e a r , inclusive, of his i m p r i s o n m e n t , he shall be a l l o w e d a d e d u c t i o n of ten d a y s for e a c h m o n t h of g o o d behavior; and

4.

D u r i n g the 11th a n d successive y e a r s of his i m p r i s o n m e n t , he shall be a l l o w e d a d e d u c t i o n of fifteen d a y s for each m o n t h of g o o d b e h a v i o r .

A r t . 98. Special time allowance for loyalty. — A d e d u c t i o n of 1/5 of the p e r i o d of his sentence shall be g r a n t e d to a n y p r i s o n e r w h o , h a v i n g e v a d e d the service o f his sentence u n d e r the circumstances m e n t i o n e d in A r t i c l e 158 of this C o d e , gives himself up to the a u t h o r i t i e s w i t h i n 48 h o u r s f o l l o w i n g the issuance of a p r o c l a m a t i o n a n n o u n c i n g the ing a w a y o f the c a l a m i t y o r c a t a s t r o p h e r e f e r r e d t o i n said article. A r t . 99. Who grants time allowances. — W h e n e v e r l a w f u l l y justified, the D i r e c t o r of P r i s o n s shall g r a n t a l l o w a n c e s for g o o d conduct. S u c h a l l o w a n c e s once g r a n t e d shall not b e revoked. •

In what instances can a convict be released before he serves the full term of his sentence? A convict's release from prison before he serves the full term of his sentence is either due to good conduct allowances, as provided under A c t 1533 and Article 97 of the R P C , or through the approval of the convict's application for parole. A good conduct allowance may be granted by the Director of Prisons while the approval of an application for parole is sanctioned by the Board of Pardons and Parole. In addition, a convict may 348

PARTIAL EXTINCTION OF C R I M I N A L LIABILITY

be released from prison in cases where he is granted pardon by the President pursuant to Section 19, Article V I I of the Constitution. T h e provisions of Sections 5 and 16, Rule 114 of the R R C P on bail apply only to an accused undergoing preventive imprisonment during trial or on appeal. T h e y do not apply to a person convicted by final judgment and already serving sentence. (White v. Bugtas) •

When is special time allowance given? T h e r e must be the following requisites: 1.

T h e occurrence of disorder resulting from a conflagration, earthquake, explosion or similar catastrophe or a mutiny in which the prisoner did not participate;

2.

T h e convict must evade the service of his sentence;

3.

He must give himself up within 48 hours after the issuance of a proclamation by the Chief Executive announcing the ing a w a y of such calamity.

T h e offender who shall give himself up under those conditions shall be given a loyalty award equivalent to 1/5 of the period of his sentence by the Director of Prisons. •

What is the condition precedent for entitlement to the loyalty time allowance? To be entitled to the time allowance, the prisoner must evade his sentence by leaving the prison. If he does not leave, he does not belong to the class of convicts who, having evaded the service of their sentences by leaving the penal institution give themselves up within 48 hours. There is no assurance that had they left the penal institution, they would have returned voluntarily to take up the privations of prison life impelled by that sense of loyalty to the Government, which ought to be rewarded.

•

What calamities are covered in Article 158? Article 158 covers disorders resulting from conflagration, earthquake, explosion, or similar catastrophe (such as volcanic eruption, landslide) and mutiny. Under the principle of ejusdem generis, only circumstances of a nature similar to 349


those previously enumerated shall be covered by the general term of "similar catastrophe." Notice that mutiny is not given any analogous situation, hence, riots are not included in this provision but in Article 157 which uses "violence" as a means of escaping. •

How is evasion committed in Article 158? Evasion lies in the failure to return, not in leaving the penal establishment because leaving is encouraged in cases of disorders enumerated therein. This is shown by the fact that there is for those who leave and thereafter return after the disorder ceases but none for those who did not leave. Thus:

•

1.

Leaving without returning within the time period prescribed — 1/5 addition to the remaining sentence which should not be more than six months, that is, 1/5 of the balance of the sentence to be served or six months whichever is lesser.

2.

N o t leaving — no deduction, no addition to the penalty;

3.

L e a v i n g and returning within the period prescribed — 1/5 deduction from his sentence as provided under Article 98.

Compare the increase/decrease of penalty under Articles 158 and 159. Article 98 granting loyalty allowance states that the decrease in the penalty of the loyal convict shall be "1/5 of the period of his sentence," whereas A r t i c l e 158 imposes "an increase of one-fifth of the time still remaining to be served under the original sentence." W h e n the l a w is clear, there is no room for interpretation, only application. Moreover, if there be any doubt, it should be construed in favor of the offender and of the lesser penalty.

350

TITLE FIVE

CIVIL LIABILITY Chapter One PERSONS C I V I L L Y L I A B L E FOR FELONIES A r t . 100. Civil liability of a person guilty of felony. — E v e r y p e r s o n c r i m i n a l l y l i a b l e for a felony is also civilly liable. •

What is the basic principle in civil liability ex-delicto? Every person criminally liable is also civilly liable, crime being one of the five sources of obligation under the Civil Code. However, if a person is acquitted from a criminal charge, it does not mean that he is civilly free also because the quantum of proof required in criminal prosecution is beyond reasonable doubt whereas, in civil liability, it is merely preponderance of evidence. To be free from civil liability on of acquittal, therefore, this must be based on the fact that he did not commit the offense. For, if his acquittal is based merely on reasonable doubt, he may still be liable. In such case, it does not mean that he did not do the act complained of. It may only be that the facts proved did not constitute the offense charged or the prosecution failed to prove an element of the crime. Civil liability may be expressly waived by the offended.

•

What are the two kinds of acquittal and their effects on the civil liability of the accused? First is an acquittal on the ground that the accused is not the author of the act or omission complained of. This instance closes the door to civil liability, for a person who has been found to be not the perpetrator of any act or omission cannot be held liable for such act or omission. There being no delict, civil liability ex-delicto is out of the question, and the civil action, 351


which may be instituted must be based on grounds other than the debet complained of. This is the situation contemplated in Rule 111 viz.: "Sec. 2. Institution of separate civil action. — xxx (b) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist." The second instance is an acquittal based on reasonable doubt on the guilt of the accused. In this case, even if the guilt of the accused has not been satisfactorily established, he is not exempt from civil liability, which may be proved by preponderance of evidence only. This is the situation contemplated in Article 29, where the civil action for damages is "for the same act or omission." Although the two actions have different purposes, the matters discussed in the civil case are similar to those discussed in the criminal case. H o w e v e r , the judgment in the criminal proceeding cannot be read in evidence in the civil action to establish any fact there determined, even though both actions involve the same act or omission. T h e reason for this rule is that the parties are not the same and secondarily, different rules of evidence are applicable. Hence, notwithstanding petitioner's acquittal, the CA in determining whether Article 29 applied, was not precluded from looking into the question of petitioner's negligence or reckless imprudence. (Manantan v. CA, January 29, 2001) Article 29 of the N C C provides: "When the accused the ground that his guilt doubt, a civil action for may be instituted. Such evidence, xxx

in a criminal prosecution is acquitted on has not been proved beyond reasonable damages for the same act or omission action requires only a preponderance of

If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground." 352

P E R S O N S CIVILLY LIABLE FOR FELONIES

T h e acquittal of accused extinguished both criminal and civil liability as it is clear from the order acquitting them that the issuance of the checks did not constitute a violation of B.P. 22. Consequently, no civil liability arising from the alleged delict may be awarded. (Mansion Biscuit Corp. v. CA, G.R. No. 94713, November 23, 1995) Compare the effect of death on civil liability ex-delicto and civil liability based on quasi-delict. "Acquittal of the accused, even if based on a finding that he is not guilty, does not carry with it the extinction of the civil liability based on quasi-delict. vicarious liability " A separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally to recover damages on both scores. In such eventuality, he would be entitled only to the bigger award of the two, assuming the awards made in the two cases vary. "In other words, the extinction of civil liability referred to in paragraph [b], Section 2, Rule 111, refers exclusively to civil liability founded in Article 100 of the R P C . Whereas, the civil liability for the same act considered quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. ' T h e civil case for damages is not barred since the cause of action of the heirs is based on quasi-delict. Even if the damages are sought on the basis of crime and not quasi-delict, the acquittal of the bus driver will not bar recovery of damages because the acquittal was based not on a finding that he was not guilty but only on reasonable doubt." (Guaring, Jr. v. CA, March 1997) What is the effect of acquittal of the accused in a criminal action? Acquittal in a criminal action bars the civil action arising therefrom where the judgment of acquittal holds that: 1.

T h e accused did not commit the acts imputed to him; 353


2.

He was not guilty of criminal or civil negligence.

But, his acquittal will N O T bar a civil action in the following cases: 1.

Where the acquittal is based on reasonable doubt as only a preponderance of evidence is required in civil cases;

2.

Where the court declared that accused's liability is not criminal but only civil in nature;

3.

Where the civil liability does not arise from or is not based upon the criminal act of which the accused was acquitted.

An accused acquitted of a criminal charge may nevertheless be held in the same case civilly liable where the facts established by the evidence so warrants. (Sesbreno v. CA; Salazar v. People, G.R. No. 151931, September 23, 2003) Can the court trying a criminal case award damages to the accused in a counterclaim in the same case? N o . A court trying a criminal case cannot award damages in favor of the accused because its task is limited to determining the guilt of the accused and if proper, to determine his civil liability. A criminal case is not the proper proceeding to determine the private complainant's civil liability, if any. T h e trial court erred in ordering the petitioner and the prosecution witness, as part of the judgment in the criminal case, to reimburse the expenses and pay damages to the accused. Cabaero, 271 SCRA 391 (1997) directed the trial court to limit itself to the criminal and civil liability of the accused; the counterclaim and cross-claim or third party complaint should be set aside or refused cognizance without prejudice to their filing in separate proceedings at the proper time. (Maccay v. Nobela, G.R. No. 145823, March 31, 2005) The R R C P prohibit counterclaims in criminal cases. Section 1 of Rule 111 provides that no counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. This paragraph addresses the lacuna mentioned in Cabaero on the "absence of clear-cut rules governing the prosecution of impliedly instituted civil action and the necessary consequences

354


and implications thereof." T h e civil liability of petitioners for swindling respondent and for maliciously filing a baseless suit must be litigated in a separate proceeding, (id.) A r t . 101. Rules regarding civil liability in certain cases. — T h e e x e m p t i o n f r o m c r i m i n a l liability established in subdivisions 1, 2, 3, 5, a n d 6 of A r t i c l e 12 a n d in s u b d i v i s i o n 4 of Article 11 of this C o d e does not i n c l u d e e x e m p t i o n f r o m civil liability, w h i c h shall be e n f o r c e d subject to the f o l l o w i n g rules: First: In cases of s u b d i v i s i o n s 1, 2, a n d 3 of Article 12, the civil liability for acts committed by an imbecile or insane p e r s o n , a n d by a p e r s o n u n d e r 9 y e a r s of a g e , or o v e r 9 b u t u n d e r 15 y e a r s of a g e , w h o h a s acted w i t h o u t discernment, shall d e v o l v e u p o n those h a v i n g such a p e r s o n u n d e r their l e g a l a u t h o r i t y or control, unless it a p p e a r s that there w a s n o fault o r n e g l i g e n c e o n their p a r t . vicarious liability S h o u l d t h e r e b e n o p e r s o n h a v i n g such insane, imbecile, o r m i n o r u n d e r his a u t h o r i t y , legal g u a r d i a n s h i p , o r control, or if such p e r s o n be insolvent, said insane, imbecile, or m i n o r shall r e s p o n d w i t h their o w n p r o p e r t y , excepting p r o p e r t y e x e m p t f r o m execution, in a c c o r d a n c e w i t h the civil l a w . Second: In cases falling w i t h i n s u b d i v i s i o n 4 of Article 11, the p e r s o n s for w h o s e benefit the h a r m has b e e n p r e v e n t e d shall be civilly l i a b l e in p r o p o r t i o n to the benefit w h i c h they m a y h a v e r e c e i v e d . unjust enrichment T h e courts shall d e t e r m i n e , in their s o u n d discretion, the p r o p o r t i o n a t e a m o u n t for w h i c h each one shall be liable. W h e n the respective s h a r e s cannot b e equitably determ i n e d , e v e n a p p r o x i m a t e l y , or w h e n the liability also attaches to the G o v e r n m e n t , or to the majority of the inhabitants of the t o w n , a n d , in all events, w h e n e v e r the d a m a g e has been c a u s e d w i t h the consent of the authorities or their agents, indemnification shall be m a d e in the m a n n e r prescribed by special l a w s or regulations. Third: In cases falling within subdivisions 5 and 6 of Article 12, the persons using violence or causing the fear shall be p r i m a r i l y liable a n d secondarily, or, if there be no such persons, those doing the act shall be liable, saving 355


always to the latter that p a r t of their p r o p e r t y exempt f r o m execution. A r t . 102. Subsidiary civil liability of innkeepers, tavernkeepers, and proprietors of establishments. — In default of the persons criminally liable, innkeepers, t a v e r n k e e p e r s , a n d any other persons or corporations shall be civilly liable for crimes committed in their establishments, in all cases w h e r e a violation of municipal o r d i n a n c e s or some g e n e r a l or special police regulations shall h a v e b e e n committed by t h e m or their employees. I n n k e e p e r s a r e also s u b s i d i a r i l y l i a b l e for the restitution of goods taken by r o b b e r y or theft w i t h i n their houses f r o m guests l o d g i n g therein, or for the p a y m e n t of the v a l u e thereof, p r o v i d e d that such guests shall h a v e notified in a d v a n c e the innkeeper himself, or the p e r s o n r e p r e s e n t i n g h i m , of the deposit of such goods w i t h i n the inn; a n d shall f u r t h e r m o r e have f o l l o w e d the directions w h i c h such i n n k e e p e r o r his representative m a y h a v e g i v e n t h e m w i t h respect t o the c a r e o f a n d vigilance o v e r such g o o d s . N o liability shall attach in case of r o b b e r y w i t h violence a g a i n s t or i n t i m i d a t i o n of persons unless committed by the innkeeper's e m p l o y e e s . •

Give the rules on civil liability in particular cases. A.

B.

A person insane, imbecile, under 9, or over 9 but under 15 (Article 12, nos. 1, 2, and 3): 1.

Primary liability is on the person who has control or authority over them, unless he is without fault or negligence;

2.

Secondary liability is on the property of the minor or insane, if there be no such person, or if he is insolvent, except property exempt from liability.

One who avoided a greater evil or injury (Article 11, no. 4): Primary liability is on the one who benefited from such avoidance. If there were several persons benefited, the court shall determine their proportionate share.

356


C.

In irresistible force or uncontrollable fear (Article 12, nos 5 and 6): 1.

P r i m a r y liability is on the person employing the force or causing the fear;

2.

Secondary liability is on the person doing the act, save for their property exempt from execution.

A r t . 103. Subsidiary civil liability of other persons. — T h e s u b s i d i a r y civil liability e s t a b l i s h e d in the next p r e c e d i n g article shall also a p p l y t o e m p l o y e r s , teachers, persons, a n d c o r p o r a t i o n s e n g a g e d i n a n y k i n d o f i n d u s t r y for felonies c o m m i t t e d b y t h e i r s e r v a n t s , p u p i l s , w o r k m e n , apprentices, or e m p l o y e e s in the d i s c h a r g e of their duties. •

W h o are the persons subsidiarily liable for criminal offenses? T h e y are innkeepers, tavern keepers and proprietors of establishments (Article 102); employers, teachers, persons, and corporations engaged in any kind of industry for crimes committed by their servants, pupils, workmen or employees, respectively (Article 103). This subsidiary liability is based on employer-employee relationship. T h e employer should be engaged in any kind of industry, which means a habitual undertaking for profit where labor and capital are utilized.

•

What is the statutory basis for an employer's subsidiary liability? T h e statutory basis is found in Article 103. Courts have since sanctioned the enforcement of this subsidiary liability in the same criminal proceedings in which the employee is adjudged guilty, on the thesis that it really is a part of, and merely an incident in, the execution process of the judgment. Unacceptable is the assumption that since the petitioner did not aver any exculpatory facts in her motions which could have saved her from liability a hearing would be futile and a sheer rigmarole. T h e employer must be given her full day in court. (Yonaha v. CA, G.R. No. 112346, March 29, 1996)

•

What are the requirements for subsidiary civil liability of the employer? The employer's subsidiary liability authorized under Article 103 is enforceable in the same criminal proceeding 357


where the award is made. Before execution against an employer ensues, there must be a hearing set to determine: 1)

The existence of an employer-employee relationship

2)

That the employer is engaged in some kind of industry

3)

That the employee is adjudged guilty of the wrongful act and found to have committed the offense in the discharge of his duties (not necessarily any offense he commits while in the discharge of such duties)

4)

That said employee is insolvent as shown by the nonsatisfaction of the execution against the employee (Basilio v. CA, March 2001), and

5)

The decision finality.

of conviction

must have

attained

There must be proof that the employee is insolvent which can be supplied by the sheriffs return showing the nonsatisfaction of the writ of execution. T h e decision of conviction must have attained finality, otherwise, execution against the employer is premature. (Pangoronom v. People) Should a hearing for employer's subsidiary civil liability be conducted? Y e s . Execution against the employer must not issue as just a matter of course. It behooves the court, as a measure of due process to the employer, to determine and resolve a priori, in a hearing set for the purpose, the legal applicability and propriety of the employer's liability. T h e requirement is mandatory even when it appears, prima facie that execution against the employee cannot be satisfied. T h e Court must convince itself that the convicted employee is in truth in the employ of the employer; that the latter is engaged in an industry of some kind; that the employee has committed the crime to which civil liability attaches while in the performance of his duty as such; and that execution against the employee is unsuccessful by reason of insolvency. (Yonaha v. CA) What is the nature of the subsidiary liability of the persons secondarily liable?

358


T h e liability can either be [1] direct and criminal or [2] subsidiary and civil. It is a basic postulate in criminal law that the criminal act of one person cannot be charged to another without a showing that the other participated directly or constructively in the act or that the act was done in furtherance of a common design or purpose for which the parties w e r e united in intention. In cases of employer-employee relations, an employer is not criminally liable for the acts of his employee or agent unless he, in some ways, participates in, counsels or abets his employee's acts or omissions. In such case, the employer himself becomes a participant to the criminal act of his employee. His liability under the circumstances is direct and criminal. H o w e v e r , under Article 102, in relation to Article 103, the employer's liability for the criminal negligence of his employee is subsidiary in nature and is limited only to civil indemnity. (Fernando v. Ocampo) Thus, an employer is party to a criminal case for the criminal negligence of his employee by reason of his subsidiary civil liability under the law. (Yusay v. Adil) In what instances may the existence of the employer-employee relationship determined? There are two instances when the existence of an employer-employee relationship of an accused driver and the alleged vehicle owner may be determined — during the criminal proceeding and during the proceeding for the execution of the judgment. In both instances, petitioner should be given the opportunity to be heard, which is the essence of due process. (Basilio v. CA) Is there a need for the court to pronounce subsidiary liability of the employer? No because the provisions of Articles 102 and 103 are ipso facto applicable once the requisites therefor are satisfied. These provisions are deemed written into the judgments in cases to which they are applicable. (Pangoronom v. People)

359

Chapter Two WHAT CIVIL LIABILITY INCLUDES Art. 104. What is included in civil liability. — T h e civil liability established in Articles 100, 101, 102, a n d 103 of this C o d e includes: 1.

Restitution;

2.

R e p a r a t i o n of the d a m a g e caused;

3.

Indemnification for c o n s e q u e n t i a l d a m a g e s .

A r t . 105. Restitution — How made. — T h e restitution of the thing itself must be m a d e w h e n e v e r possible, with a l l o w a n c e for any deterioration or diminution of v a l u e as d e t e r m i n e d by the court. T h e thing itself shall be r e s t o r e d , e v e n t h o u g h it be found in the possession of a t h i r d p e r s o n w h o a c q u i r e d it by l a w f u l means, s a v i n g to the latter his action a g a i n s t the proper person w h o may be liable to him. This p r o v i s i o n is not a p p l i c a b l e in cases in w h i c h the thing has b e e n a c q u i r e d b y the t h i r d p e r s o n i n the m a n n e r a n d u n d e r the r e q u i r e m e n t s w h i c h , b y l a w , b a r a n action for its recovery. A r t . 106. Reparation — How made. — T h e c o u r t shall determine the a m o u n t o f d a m a g e , t a k i n g into c o n s i d e r a t i o n the price of the thing, w h e n e v e r p o s s i b l e , a n d its special sentimental v a l u e t o the i n j u r e d p a r t y , a n d r e p a r a t i o n shall be made accordingly. A r t . 107. Indemnification — What is included. — Indemnification of consequential d a m a g e s shall i n c l u d e not only those c a u s e d the i n j u r e d p a r t y , b u t also those s u f f e r e d b y his f a m ily or by a t h i r d p e r s o n by r e a s o n of the c r i m e .

360

W H A T CIVIL LIABILITY INCLUDES

•

Compare Articles 38 and 104. There are only two pecuniary liabilities in favor of the offended party — [1] Restitution or reparation and [2] indemnification. Reparation shall only be made if restitution is not possible. This is in accord with Article 38, which states that the pecuniary liabilities owing to the offended party are reparation of the damage caused and indemnification of consequential damages.

•

What are included in civil liability? 1.

Restitution which is the return of the thing itself whenever possible.

2.

If restitution is not possible, reparation of the damage caused shall be made. T h e court shall determine the amount of damage, taking into consideration the price of the thing, whenever possible, and its special sentimental value to the injured party.

3.

Indemnification for consequential damages which shall include not only those caused the injured party, but also those suffered by his family or by a third person by reason of the crime. T h e N C C enumerates cases when third persons can recover damages by reason of the crime.

Every person criminally liable for a felony is also civilly liable (Article 100). This civil liability, in case the felony involves death, includes indemnification for consequential damages (Article 104) and said consequential damages in turn include those suffered by his family or by a third person by reason of the crime. (Article 107) •

What is the relationship between the Civil Code and the Revised Penal Code on civil liability for the commission of crime? Article 2206 provides for the amount of damages for death caused by a crime or quasi-delict. In addition, it grants to the offended and others affected indemnity for loss of the earning capacity of the deceased paid to the heirs of the latter; , if the deceased was obliged to give it according to Article 291; and moral damages to the spouse, legitimate and

361


illegitimate descendants and ascendants of the deceased for mental anguish by reason of death. Article 2219 provides for the situations when moral damages may be recovered such as: (1)

A criminal offense resulting in physical injuries

(2)

Quasi-delicts causing physical injuries

(3)

Seduction, abduction, rape, or other lascivious acts

(4)

Adultery or concubinage

(5)

Illegal or arbitrary detention or arrest

(6)

Illegal search and

(7)

Libel, slander or any other form of defamation.

It also provides that the parents of the female seduced, abducted, raped, or abused in N o . 3 may also recover moral damages. When an unlawful act results in death, what are the civil obligations of the offender? When the commission of a crime results in death, the civil obligations are governed by penal laws, subject to the provisions of Article 2177, and of the pertinent provisions of Chapter 2, Preliminary Title on Human Relations, and of Title X V I I I of Book I V , regulating damages. (Article 1161). T h e following are the items of damages the offender shall be liable to the offended party: 1.

Indemnity for the death of the victim of the offense — fixed by the Court without the need of any evidence or proof of damages, and even though there may have been mitigating circumstances attending the crime

2.

Indemnity for loss of earning capacity of the deceased — fixed according to the circumstances of the deceased related to his actual income at the time of death and his probable life expectancy.The indemnity is assessed and awarded by the court as a matter of duty, unless the deceased had no earning capacity

362


at said time on of permanent disability not caused by the accused. If the deceased was obliged to give , under Article 291, Civil Code, the recipient who is not an heir, may demand from the accused for not more than five years, the exact duration to be fixed by the court. 3.

M o r a l damages for mental anguish — may be recovered even by the illegitimate descendants and ascendants of the deceased.

4.

Exemplary damages, when the crime is attended by one or more aggravating circumstances — fixed in the discretion of the court, to be considered separate from fines.

5.

Attorney's fees and expenses of litigation — the actual amount thereof (but only when a separate civil action to recover civil liability has been filed or when exemplary damages are awarded.) T h e recovery of attorney's fees in the concept of actual or compensatory damage is allowed under the circumstances provided for in Article 2208 of the Civil Code, one of which is when the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered. (People v. Bergante, G.R. Nos. 120369-70, February 27, 1998)

6.

Interests in proper cases. In addition to the above is either of the following alternative items of damages:

7.

Actual damages which must be ed by receipts such as hospitalization and funeral expenses, or temperate damages to substitute for actual damages.

T h e indemnities for loss of earning capacity of the deceased and for moral damages are recoverable separately from and in addition to the fixed sum corresponding to the indemnity for the sole fact of death, and that these damages may be increased or lessened according to the mitigating or aggravating circumstances. (People v. Teehankee, Jr.) 363


If the heirs cannot produce receipts to prove actual damages, what may be granted by the court as substitute? Temperate damages may be granted instead. T h e trial court erred in granting the heirs of the deceased victim an additional amount of P21.307 representing funeral expenses. Under Article 2199 of the Civil Code, a party is entitled to compensation only for such pecuniary loss suffered by him as proven. (People v. Lopez, 312 SCRA, 1999) T h e recovery thereof must be premised upon competent proof and the best evidence obtainable, such as receipts, by the injured party showing the actual expenses incurred in connection with the death, w a k e or burial of the victim. T h e list of expenses incurred for the wake, funeral, and burial of the victim amounting to P21,307 submitted by A A ' s father was not proved. (People v. Ereno 326 SCRA; People u. Nullan, 305 SCRA) However, A A ' s father was unable to present the receipt for the funeral parlor refused to issue a receipt until he had fully paid the entire amount, which he had not done at the time of the trial. Under Article 2224, temperate damages may be recovered if it is shown that such party suffered some pecuniary loss but the amount cannot, from the nature of the case, be approved with certainty. As there is no doubt the heirs of the victim incurred funeral expenses, although the amount thereof has not been proved, it is appropriate to award P15.000 by way of temperate damages. (People v. Principe, G.R. No. 135862, May 2, 2002) How is life expectancy computed? Net earning capacity? The life expectancy [ L E ] is equivalent to 2/3 the difference of 80 and the age of the deceased. Thus, LE = \ x [80 - age at death] N e t earning capacity [ N E C ] is the remainder if the gross annual income [ G A I ] is reduced by the necessary living expenses [ N L E ] which is 50% of the G E C . Thus, NEC = GEC - N L E N L E = G E C X 50% (or ^ )

364


T h e life expectancy is then multiplied by the net earning capacity to determine the total net earning capacity. (People v. Dando, February 2000) Formula for computing said damages: net earning capacity = life expectancy multiplied by gross annual income less necessary living expenses which is 50% of G A I (People v. More, December 1999), viz.: N E C = LE x N L E

= {J-x[80-age] or

•

-f- x [80 - age]

{GAI-

X

X

GAI 2

What is loss of earning capacity? When is it awarded? A w a r d for the loss of earning capacity partake of the nature of damages and must thus be proved not only by credible and satisfactory evidence but also by unbiased proof. (People v. Cotas, 332 SCRA) T h e loss or damage that dependents and intestate heirs of the deceased may sustain by reason of the latter's death is not the full amount of the deceased earnings, but the they received or would have received from him had he not died. (People v. Alvero, Jr., June 1993) T h e heirs are also entitled to moral damages of P50.000 in accordance with Article 2219 for the physical suffering, mental anguish, serious anxiety, and moral shock caused by the manner by which AA was raped and killed. (People v. Ronas, G.R. No. 128088 & 146639, January 2001)

•

Is it correct to award lump sum for actual and moral damages? N o . T h e two awards — one for actual damages and the other for moral damages — cannot be dealt with in the aggregate; neither being kindred nor governed by a coincident set of rules, each must be separately identified and independently justified. A requirement common to both is that an injury must have been sustained by the claimant. The 365


nature of that injury, however, differs for while it is pecuniary in actual or compensatory damages, it is nonpecuniary in the case of moral damages. Actual and moral damages belong to different planes: 1.

2.

In actual or compensatory damages a.

The pecuniary loss must not only be capable of proof but must actually be proved with a reasonable degree of certainty.

b.

Actual damages cannot be presumed and the courts in making an award must point out specific acts which could afford a basis for measuring whatever compensatory or actual damages are borne.

In moral damages — a.

The loss is incapable of exactness and no proof of pecuniary loss is necessary in order that moral damages may be awarded.

b.

T h e amount of indemnity is left to the discretion of the court. It is imperative, however, that 1.

Injury must have been suffered by the claimant and

2.

Such injury must have sprung from any of the cases in Articles 2219 and 2220. (People v. Morales)

T h e lower court erred in categorizing the award of P50,000 to the offended party as moral damages. In Gementiza, January 1998, the indemnity categorized by criminal law as civil liability ex-delicto for the offended party, in the amount authorized by the prevailing judicial policy and aside from other proven actual damages, is itself equivalent to actual or compensatory damages in civil law. It is not to be considered as moral damages, the latter being based on different jural foundations and assessed by the court in the exercise of sound discretion. (People v. Victor, G.R. No. 127903, July 9, 1998) T h e award of the civil indemnity for cases not calling for the application of death penalty is fixed by current jurisprudence at P50,000 (People v. Espanola, 271 SCRA), no other proof is necessary than the fact of the death of the victim and the accused's responsibility therefor. M o r a l

366


damages can be awarded only when the same is ed by evidence in the records. (People v. Ortega, Jr.) As to civil indemnity, payment should be made not only to the mother of each victim but also to all his heirs. (People v. Rimorin) M o r a l damages may not be imposed in substitution for civil indemnity. (People v. Maramara, October 1999) How much should be awarded as moral damages? Indictments for rape continue unabated and the legislative response has been in the form of higher penalties. On like considerations, the jurisprudential path on the civil aspect should also follow the same direction. Hence, if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is prescribed, the indemnity for the victim shall be in the increased amount of not less than P75,000. This is not only a reaction to the apathetic societal perception of the penal law and the financial fluctuations over time, but also an expression of the displeasure over the incidence of heinous crimes against chastity, (id.) T h e recent case law on rape permits the automatic grant of civil indemnity and moral damages to the victim once the fact of rape has been established. T h e award of civil indemnity is mandatory upon the finding of the fact of rape. The indemnification for the victim shall be in the increased amount of P75,000 if the crime of rape is effectively qualified by any of the circumstances under which the death penalty is authorized, and that moral damages may additionally be awarded to the rape victim without need of pleading or proof of the basis thereof as has heretofore been practiced. (People v. Palermo, G.R. No. 120630, June 28, 2001). T h e fact that complainant in rape has suffered the trauma of mental, physical, and psychological suffering which constitute the basis for moral damages are too obvious to still require recital thereof at the trial by the victim. (People v. Libo-on, G.R. No. 136737, May 23, 2001). (R.A. 9346 did not affect the categorization of heinous crimes for purposes of the award of proper amount of civil indemnity and moral damages.) T h e amount of P30.000 as indemnity for death should be increased to P50.000 pursuant to current rulings. But 367


the award of P37.000 for actual damages should be reduced to P22,000 ed by a receipt for funeral expenses. As held in Fuentes, Jr., only expenses ed by receipts and which appear to have been actually expended in connection with the death of the victim should be allowed. The award of actual damages cannot be based on the allegation of a witness without any tangible document to such claim. (David v. CA, June 1998). But the award of civil indemnity needs no documentary evidence to such award except for the occurrence of such death. (People v. Sol, May 1997) •

When are moral damages not imposed on the convict for homicide? Zulueta, 43 SCRA 397, reduced the moral damages because the plaintiff contributed to the gravity of the defendant's reaction. In the case at bar, the victims not only contributed but they actually provoked the attack by damaging appellant's property and business. Considering appellant's standing in the community, being married to a municipal councilor, the victims' actuations were designed to humiliate him and destroy his reputation. Thus, the moral and material suffering of the appellant and his family deserves leniency as to his civil liability. (People v. Narvaez)

•

When is exemplary damages imposed? Where the crime resulted in the death of the victim, the civil indemnity granted by the Court has commonly been P50,000 in the absence of unusual circumstances warranting a higher indemnity. In thfc instant case, a heavier indemnity is appropriate, bearing in mind the tender age of the victim and the close blood relationship (uncle and niece) that existed between appellant and the victim. These circumstances indicate an unusual degree of moral depravity. Accordingly, the grant of exemplary damages of P20.000 and moral damages, in addition to the regular indemnity for death of P50.000. (People v. Remolle, October 1993) T h e grant of exemplary damages is called for by the circumstances of the case. Under Article 2229, in addition to the award of moral damages, exemplary or corrective damages may be adjudged in order to deter the commission of 368


similar acts in the future. T h e award for exemplary damages is designed to permit the courts to mould behavior that has socially deleterious consequences. Its imposition is required by public policy to suppress the wanton acts of an offender. Appellant's unprovoked aggression snuffed the life of M M , a girl in the prime of her youth who as well as her companions was gunned down by appellant in cold-blood. Appellant's vicious criminality led to the suffering of his victims and their families. Considering the soaring crime rate, the imposition of exemplary damages to deter others from taking the lives of people without any sense of sin is proper. Moreover, since the killing was attended by treachery and pursuant to Article 2229 an award of P2 Million as exemplary damages is proper. (People vs. Teehankee, Jr.) Is relationship an aggravating circumstance that justifies the grant of exemplary damages? Even for the purpose of awarding exemplary damages, there was "lingering doubt" whether the alternative circumstance of relationship should be considered an aggravating circumstance to justify such an award. Catubig settled the "lingering doubt." T h e attendance of aggravating circumstances serves to increase the penalty (the criminal liability aspect), as w e l l as to justify an award of exemplary or corrective damages (the civil liability aspect), moored on the greater perversity of the offender manifested in the commission of the felony such as may be shown by (1) the motivating power itself, (2) the place of commission, (3) the means and ways employed, (4) the time, or (5) the personal circumstances of the offender or the offended party or both. There are various types of aggravating circumstances, among them, the ordinary and the qualifying. As a rule, relationship is held to be aggravating in crimes against chastity, such as rape and acts of lasciviousness, whether the offender is a higher or a lower degree relative of the offended party. Somehow doubts linger on whether relationship may then be considered to warrant an award for exemplary damages where it is used to qualify rape as a heinous crime, thereby becoming an element thereof, as would subject the offender to the maximum penalty. Heretofore, there has been no 369


categorical specific rule thereon, the issue treated on a case to case basis. Fundano, Ramos, Medina, Dimapilis, Calayca, Tabion, Bayona, Bayya, and Nunez, almost invariably appreciated relationship as an ordinary aggravating circumstance in simple rape and thereby imposed exemplary damages upon the offender whether or not the offense has been committed prior to or after the effectivity of R . A . 7659. Exceptionally, Decena, Perez, and Ambray denied the award of exemplary damages following the effectivity of that law. In qualified rape cases, Magdato, Arizapa, and Alicante, allowed exemplary damages to the offended party but it did not so do as in Alba, Mengote, and Maglente. Orilla abandoned the pro hac vice stance and provided a kind of standard on the matter. Also known as punitive or vindictive damages, exemplary or corrective damages are intended to serve as a deterrent to serious wrongdoings and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous conduct. These are generally, but not always, used interchangeably. In common law, there is preference in the use of exemplary damages when the award is to for injury to feelings and for the sense of indignity and humiliation suffered by a person as a result of an injury that has been maliciously and wantonly inflicted, the theory being that there should be compensation for the hurt caused by the highly reprehensible conduct of the defendant — associated with such circumstances as willfulness, wantonness, malice, gross negligence or recklessness, oppression, insult or fraud or gross fraud — that intensifies the injury. The punitive or vindictive damages are often used to refer to those species of damages that may be awarded against a person to punish him for his outrageous conduct. In either case, these damages are intended in good measure to deter similar conduct in the future. The term "aggravating circumstances" used by the Civil Code, the law not having specified otherwise, is to be understood in its broad or generic sense. T h e commission of an offense has a two-pronged effect, one on the public as it breaches the social 370


order and the other upon the private victim as it causes personal sufferings, each of which is addressed by, respectively, the prescription of heavier punishment for the accused and by an award of additional damages to the victim. The increase of the penalty or a shift to a graver felony underscores the exacerbation of the offense by the attendance of aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability, which is basically a State concern, the award of damages, however, is likewise, if not primarily, intended for the offended party who suffers thereby. It would make little sense for an award of exemplary damages to be due the private offended party when the aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within the unbridled meaning of Article 2230. In Catubig, the alternative circumstance of relationship serves as basis for an award of exemplary damages because the term "aggravating circumstances" must be understood in its broad or generic sense. However, this interpretation is only applicable to the civil aspect, not the criminal aspect of rape, which involves the imposition of the proper penalty. W h e n the penalty to be imposed on the accused is teetering between reclusion perpetua and death, the term "aggravating circumstance" in Article 63 must be understood in the strictest sense. T h e "aggravating circumstance" that would spell the difference between life and death for the accused must be that specifically listed in Article 14. Of course, the death penalty has been outlawed.) Relationship in this case serves to justify the award of exemplary damages of P25,000 plus P50.000 moral damages and P50.000 civil indemnity. Case law requires the automatic award of moral damages to a rape victim without need of proof because from the nature of the crime it can be assumed that she has suffered moral injuries entitling her to such award. Such award is separate and distinct from civil indemnity, 371


which case law also automatically awards upon proof of the commission of the crime. (People v. Orilla) What is the effect of the Revised Rules on Criminal Procedure on exemplary damages? Dalisay, G.R. N o . 188106, November 25, 2009 clarified the basis for and the amount of the exemplary damages Article 2229 provides that exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages. Article 2230 states that in criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party. Prior to the effectivity of the R R C P , courts generally awarded exemplary damages in criminal cases when an aggravating circumstance, whether ordinary or qualifying, had been proven to have attended the commission of the crime, even if the same was not alleged in the information. This is in accordance with Article 2230. However, with the promulgation of the Revised Rules, courts no longer consider the aggravating circumstances not alleged although proved in the determination of the penalty and in the award of damages. Nevertheless, Catubig laid down the principle that courts may still award exemplary damages based on Article 2230, even if the aggravating circumstance has not been alleged, so long as it has been proven, in criminal cases instituted before the effectivity of the Revised Rules which remained pending thereafter. Catubig reasoned that the retroactive application of the Revised Rules should not adversely affect the vested rights of the private offended party. Nevertheless, by focusing only on Article 2230 as the legal basis for the grant of exemplary damages—taking into simply the attendance of an aggravating circumstance in the commission of a crime, courts have lost sight of the very reason why exemplary damages are awarded. Also known as "punitive" or "vindictive" damages, exemplary or corrective damages are intended to serve as a deterrent to serious wrong

372


doings, and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous conduct. Being corrective in nature, exemplary damages, therefore, can be awarded, not only in the presence of an aggravating circumstance, but also where the circumstances of the case show the highly reprehensible or outrageous conduct of the offender. In much the same w a y as Article 2230 prescribes an instance when exemplary damages may be awarded, Article 2229, the main provision, lays down the very basis of the award. Thus, Matrimonio imposed exemplary damages to deter other fathers with perverse tendencies or aberrant sexual behavior from sexually abusing their own daughters. A l s o , Cristobal awarded exemplary damages on of the moral corruption, perversity and wickedness of the accused in sexually assaulting a pregnant married woman. Recently, Canada awarded exemplary damages to set a public example, to serve as deterrent to elders who abuse and corrupt the youth, and to protect the latter from sexual abuse. The Court used as basis Article 2229, rather than Article 2230, to justify the award of exemplary damages. •

What are the civil liabilities in rape? In rape, civil indemnity to the offended woman for the wrong done to her is separate and distinct from the award of moral damages. T h e indemnity provided in criminal law as civil liability, is the equivalent of actual or compensatory damages in civil law, and is distinct from moral damages. As currently fixed, the indemnity for rape is P50,000 but if qualified by any of the circumstances which would justify the imposition of the [death] penalty, the indemnity shall be not less than P75,000. T h e offended party in the crime of rape is entitled to moral damages in the amount of at least P50,000. Where multiple rapes were committed, as where the victim suffered four rapes by four men, the victim should be awarded no less than the amount of P200.000 [4 x P50.000] as moral damages. (People v. Malapo, G.R. No. 123115, August 25, 1988)

•

Can moral damages be increased if the victim dies, but the information charges forcible abduction with rape? 373


In spite of the death of the victim in this case, the heirs cannot get the higher amount of P100.000, the civil indemnity awarded in rape with homicide. The information in the case is for forcible abduction with rape, not for rape with homicide. Moral damages in the amount of P50,000 should also be granted to the heirs of the victim. T h e award of moral damages may be made to the heirs in a criminal proceeding without the need for pleading or proof of the basis thereof. The fact that they suffered the trauma of mental or physical and psychological sufferings which constitute the basis for moral damages are too obvious to still require recital thereof at trial. Here, the mother testified as to the inconsolable loss that she felt when her only daughter was abducted, ravished and killed. (People v. Magat, 332 SCRA 517) •

What is the civil liability of a person convicted of the crime of rape when an offspring results from the rape? Article 345 provides that persons guilty of rape, seduction or abduction shall be sentenced to: (a)

indemnify the offended woman;

(b)

acknowledge the offspring, unless the l a w should prevent him from doing so; and

(c)

in every case to the offspring.

Under Article 283, the father is obliged to recognize the child as his natural child in cases of rape, abduction, and seduction when the period of the offense coincides, more or less, with the period of conception. It has been held, however, that acknowledgment is disallowed if the offender is a married man, with only for the offspring as part of the sentence. Article 176 of the Family Code confers parental authority over illegitimate children on the mother and likewise provides for their entitlement to in conformity therewith. As such there is no more need for the prohibition against acknowledgment of the offspring of the offender who is a married man, which would vest parental authority in him. Therefore, under Article 345, a married offender in a rape case can only be sentenced to indemnify the victim and the offspring, if there be any. In the instant case then, the accused should also be ordered to his illegitimate offspring but 374

W H A T CIVIL LIABILITY I N C L U D E S

in the light of Article 201 of the Family Code, the amount and thereof are to be determined by the trial court only after due notice and hearing. (People v. Bayani, G.R. No. 120894 October 3, 1996) T h e award of civil indemnity is mandatory upon the finding of the fact of rape (People v. de Leon, December 1999) and in statutory rape (People v. Narido, October 1999). It should be awarded, without need of further evidence, except the conviction of the accused. (People v. Santiago, December 1999)

•

When is compulsory acknowledgment of the offspring of rape proper? Compulsory acknowledgment, as well as the of the child is indeed proper there being no legal impediment in doing so, as it appears that complainant and appellant are both single. T h e crime of rape committed by the accused carries with it, among others, the obligations to acknowledge the offspring if the character of its origin does not prevent it and to the same. (People v. Namayan, July 1995)

A r t . 108. Obligation to make restoration, reparation for damages, or indemnification for consequential damages and action to demand the same — Upon whom it devolves. — T h e obligation to m a k e r e s t o r a t i o n o r r e p a r a t i o n for d a m a g e s a n d indemnification for c o n s e q u e n t i a l d a m a g e s devolves u p o n the heirs of the p e r s o n liable. T h e action t o d e m a n d restoration, r e p a r a t i o n a n d indemnification l i k e w i s e descends to the heirs of the person injured. A r t . 109. Share of each person civilly liable. — If there are t w o or m o r e p e r s o n s civilly liable for a felony, the courts shall d e t e r m i n e the a m o u n t for w h i c h each must respond. A r t . 110. Several and subsidiary liability of principals, accomplices, and accessories of a felony — Preference inpayment. — N o t w i t h s t a n d i n g the provisions of the next preceding article, the principals, accomplices, a n d accessories, each within their respective class, shall be liable severally (in solidum) a m o n g themselves for their quotas, a n d subsidiarily for those of the other persons liable. 375


The subsidiary liability shall be enforced, first against the p r o p e r t y of the principals; next, against that of the accomplices; a n d lastly, against that of the accessories. W h e n e v e r the liability in solidum or the s u b s i d i a r y liability has b e e n e n f o r c e d , the p e r s o n b y w h o m p a y m e n t has b e e n m a d e shall h a v e a r i g h t of a c t i o n a g a i n s t the others for the a m o u n t of t h e i r r e s p e c t i v e s h a r e s . •

What is the nature of the civil liability of co-conspirators? When conspiracy among the accused was clearly established, each of the conspirators is liable for the criminal act of the others. The appellants should each suffer a threefold penalty of reclusion perpetua, as well as be held solidarily liable for the civil indemnity which, by reason of the added repugnance of the bestial act being committed on a pregnant woman in the presence of her husband, is increased to P50,000 for each rape committed on her. (People v. Reyes, July 1995)

A r t . 111. Obligation to make restitution in a certain case. — A n y p e r s o n w h o has p a r t i c i p a t e d g r a t u i t o u s l y in the proceeds of a felony shall be b o u n d to m a k e restitution in an a m o u n t e q u i v a l e n t to the extent of such p a r t i c i p a t i o n .

376

Chapter Three EXTINCTION A N D SURVIVAL OF CIVIL LIABILITY A r t . 112. Extinction of civil liability. — Civil liability e s t a b l i s h e d in A r t i c l e s 100, 101, 102, a n d 103 of this C o d e shall b e e x t i n g u i s h e d i n the s a m e m a n n e r as obligations, i n a c c o r d a n c e w i t h the p r o v i s i o n s o f the Civil L a w . A r t . 113. Obligation to satisfy civil liability. — E x c e p t in case of extinction of his civil liability as p r o v i d e d in the next p r e c e d i n g article the o f f e n d e r shall continue to be o b l i g e d to satisfy the civil liability r e s u l t i n g f r o m the crime committed by h i m , n o t w i t h s t a n d i n g the fact that he has not b e e n r e q u i r e d t o s e r v e the s a m e b y r e a s o n o f amnesty, p a r d o n , c o m m u t a t i o n o f sentence o r a n y other reason. •

What should be the effect of a decision in a criminal prosecution on the criminal and civil liability of the accused? As a rule, a criminal prosecution includes a civil action for the recovery of indemnity. Hence, a decision in such case disposes of both the criminal as well as the civil liabilities of an accused. In one case, the trial court promulgated only the civil aspect of the case, but not the criminal, thus, the promulgation of the decision was not merely incomplete; it was also void. In excess of its jurisdiction, the trial judge rendered a substantially incomplete promulgation on April 4, 1995, and he repeated his mistake in his A p r i l 12, 1996 Order. Thus, grave abuse of discretion rendered the aforementioned act of the trial court void. Since the criminal cases have not yet been terminated, the first jeopardy has not yet attached. Hence, double jeopardy cannot prosper as a defense. (Cuison v. Court of Appeals, G.R. No. 128540, April 15, 1998) 377


Is a court-approved compromise agreement as to the civil liability entered into by the culprit's lawyer without his express authorization valid? Without a special power of attorney, the counsel for the accused cannot bind nor compromise his client's civil liability. Both Article1878 of the Civil Code and Section 23 of Rule 138 o the Rules of Court require a special authority from the client for an attorney to validly compromise his client's liability. That the trial court approved the compromise did not legalize it and should not be given force and effect for being violative of law and jurisprudence. (People v. Carpo, April 2001)

BOOK TWO Crimes and Penalties


380

TITLE ONE

CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS Chapter One CRIMES A G A I N S T N A T I O N A L SECURITY What are the crimes comprising Title I of Book II?

•

a.

Treason (114);

b.

Conspiracy and proposal to commit treason (115);

c.

Misprision of treason (116);

d.

Espionage (117);

e.

Inciting to war and giving motives for reprisal (118);

f.

Violation of neutrality (119);

g-

Correspondence with hostile country (120);

h.

Flight to enemy country (121);

i.

Piracy and mutiny (122); and

J-

Qualified piracy (123)

Is rebellion a crime against national security? N o . Rebellion is included in crimes against public order. As such, it is not among the exceptions to the territoriality rule under Article 2 (5) which covers crime under this Title. Hence, rebellion planned and carried out outside of the Philippines is not within this jurisdiction. Section O n e . — Treason

and Espionage

A r t . 114. Treason. — A n y Filipino citizen w h o levies w a r against the P h i l i p p i n e s or a d h e r e s to her enemies, giving t h e m aid or comfort w i t h i n the Philippines or elsewhere, 381


shall be punished by reclusion perpetua to death a n d shall pay a fine not to exceed 100,000 pesos. No person shall be convicted of treason unless on the testimony of t w o witnesses at least to the same overt act or on confession of the accused in o p e n court. L i k e w i s e , an alien, r e s i d i n g in the P h i l i p p i n e s , w h o commits acts of treason as defined in p a r a g r a p h 1 of this Article shall be p u n i s h e d by reclusion temporal to d e a t h a n d shall p a y a fine not to exceed 100,000 pesos. (As amended by Sec. 2, R.A. No. 7659.) •

Who can be liable for the crime of treason? Both citizens and aliens can be liable for treason; for citizens, as they owe permanent allegiance to the Philippines as such. For aliens, because for their presence here, they owe temporary allegiance to this country which is bound to extend to them the same protection accorded its citizens.

•

What kind of allegiance do citizens and aliens owe this country? A citizen or subject owes, not a qualified or temporary, but an absolute and permanent allegiance, which consists in the obligation of fidelity and obedience to his government or sovereign; and that this absolute and permanent allegiance should not be confused with the qualified and temporary allegiance which a foreigner owes to the government or sovereign of the territory wherein he resides, so long as he remains there, in return for the protection he receives and which consists in the obedience to the laws of the government or sovereign. (Laurel v. Misa, January 1947)

•

What is allegiance? Allegiance is the obligation for fidelity and obedience which the individual owes to his government or to his sovereign in return for the protection which he receives, (id.)

•

What is the two-witness rule? No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act. If the overt

382

C R I M E S A G A I N S T NATIONAL SECURITY

act is separable, two witnesses must also testify to each part of the overt act for conviction. (People v. Adriano, 44 O.G • People v. Abad, 78 Phil.) T h e accused may also be convicted upon his confession in open court. •

When can the crime of treason be committed? A l l crimes against national security such as treason can only be committed in times of war except the following:

•

1.

Espionage;

2.

Inciting to w a r or giving motives for reprisal;

3.

Violation of neutrality; and

4.

M u t i n y and piracy.

What are acts of treason? "Acts of treason" include levying war against the Philippines or adhering to her enemies, giving them aid or comfort within the Philippines or elsewhere, (id.)

•

W h o are the enemies of State? T h e word "enemy" in Article 114 should refer to a foreign country (U.S. v. Lagnayon, 3 Phil 478), because this Article treats of circumstance of war. It cannot refer to rebels who are covered under Article 135.

A r t . 115. Conspiracy and proposal to commit treason—Penalty. — T h e c o n s p i r a c y or p r o p o s a l to commit the crime of treason shall be p u n i s h e d respectively, by prision mayor a n d a fine not e x c e e d i n g 10,000 pesos, a n d by prision correccionaland a fine not e x c e e d i n g 5,000 pesos. A r t . 116. Misprision of treason. — E v e r y person o w i n g allegiance to the G o v e r n m e n t of the P h i l i p p i n e Islands, w i t h o u t b e i n g a foreigner, a n d h a v i n g k n o w l e d g e of any conspiracy against them, w h o conceals or does not disclose a n d m a k e k n o w n the same, as soon as possible to the governor or fiscal of the province, or the m a y o r or fiscal of the city in w h i c h he resides, as the case m a y b e , shall be punished as an accessory to the crime of treason. 383


•

What kind of conspiracy is treated in Article 115? Article 115 treats of conspiracy as a crime by itself. The acts are not yet carried out. When the treasonous acts are executed, the conspiracy becomes a means to commit treason and shall be penalized as treason under Article 114.

•

Where are crimes against the law of nations triable? Crimes against the law of nations may be punished anywhere because they are considered crimes against the family of nations, such as piracy (Hosteshumani generis). Those against national security may be punished only in the country whose national security was offended.

•

What is misprision of treason? It is the failure of a citizen to report as soon as possible a conspiracy, which comes to his knowledge, against the government. But there must be a war in which the Philippines is involved. T h e offender shall be "punished as an accessory to the crime of treason."

A r t . 117. Espionage. — T h e p e n a l t y of prision correccional shall be inflicted u p o n a n y p e r s o n w h o : 1.

W i t h o u t a u t h o r i t y t h e r e f o r , enters a w a r s h i p , fort, or naval or military establishment or reservation to obtain any information, plans, photographs, or other d a t a of a confidential n a t u r e r e l a t i v e to the defense o f the P h i l i p p i n e A r c h i p e l a g o ; o r

2.

B e i n g in possession, by r e a s o n of the p u b l i c office he holds, of the articles, d a t a , or i n f o r m a t i o n r e f e r r e d to in the p r e c e d i n g p a r a g r a p h s , discloses their contents to a r e p r e s e n t a t i v e of a f o r e i g n nation.

T h e penalty next h i g h e r i n d e g r e e shall b e i m p o s e d i f the offender be a p u b l i c officer or e m p l o y e e . Section T w o . — Provoking war and disloyalty in case of war A r t . 118. Inciting to war or giving motives for reprisals. — T h e penalty of reclusion temporal shall be i m p o s e d u p o n a n y

384


p u b l i c officer or e m p l o y e e , a n d that of prision mayor u p o n any private individual, w h o , by unlawful or unauthorized acts, p r o v o k e s or gives occasion for a w a r i n v o l v i n g or liable to i n v o l v e the P h i l i p p i n e I s l a n d s or exposes Filipino citizens to reprisals on their persons or property. A r t . 119. Violation of neutrality. — T h e penalty of prision correccional shall be inflicted u p o n a n y o n e w h o , on the occasion of a w a r in w h i c h the G o v e r n m e n t is not involved, violates a n y r e g u l a t i o n issued b y competent authority for the p u r p o s e of e n f o r c i n g neutrality. A r t . 120. Correspondence with hostile country. — A n y person, w h o i n time o f w a r , shall h a v e c o r r e s p o n d e n c e w i t h a n e n e m y c o u n t r y o r t e r r i t o r y o c c u p i e d b y e n e m y troops shall be punished: 1.

By prision correccional, if the c o r r e s p o n d e n c e has b e e n p r o h i b i t e d b y the G o v e r n m e n t ;

2.

By prision mayor, if such c o r r e s p o n d e n c e be c a r r i e d on in c i p h e r s or conventional signs; a n d

3.

By reclusion temporal, if notice or information be g i v e n t h e r e b y w h i c h m i g h t be useful to the enemy. If the o f f e n d e r intended to aid the enemy by g i v i n g such notice or information, he shall suffer the penalty of reclusion temporal to death.

A r t . 121. Flight to enemy's country. — T h e penalty of a r r e s t o m a y o r shall b e inflicted u p o n a n y p e r s o n w h o , o w i n g allegiance to the G o v e r n m e n t , attempts to flee or go to an enemy c o u n t r y w h e n p r o h i b i t e d b y competent authority. This provisions should be reconciled with the policy on renunciation of war under the Incorporation Clause in Section 2, Article II of the 1987 Constitution that, "The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations." However, what is renounced is only the declaration of war, for Congress is empowered in Section 23, Article V I I to declare the existence of a state of war. Nonetheless, the outlawing of war itself is a United Nations declaration and thus is a generally

385


accepted principle of international law which is incorporated in our Constitution. Section T h r e e . — Piracy and mutiny on the high seas or in Philippine Waters A r t . 122. Piracy in general and mutiny on the high seas or in Philippine waters. — T h e penalty of reclusion perpetua shall be inflicted u p o n any p e r s o n w h o , on the h i g h seas or in P h i l i p p i n e w a t e r s shall attack or seize a vessel or, not b e i n g a m e m b e r of its complement n o r a p a s s e n g e r , shall seize the w h o l e or p a r t of the c a r g o of said vessel, its e q u i p m e n t , or personal b e l o n g i n g s of its c o m p l e m e n t or p a s s e n g e r s . The same penalty shall be inflicted in case of m u t i n y on the high seas or in P h i l i p p i n e w a t e r s . (As amended by Sec. 3, R.A. No. 7659.) •

Distinguish piracy and mutiny. 1.

In piracy, the offenders are neither of the complement of the vessel nor engers. In mutiny, they are the of the complement of the vessel.

2.

T h e essence of piracy is robbery and consists of the seizure of the vessel or cargo or personal belongings of the engers. In mutiny, the of the complement raise commotion to protest or go against the lawful command of the captain employing violence and endangering the safety of engers. A n y gain derived by the offenders is merely incidental.

P R E S I D E N T I A L D E C R E E N O . 532 ANTI-PIRACY A N D ANTI-HIGHWAY ROBBERY L A W O F 1974 xxx

XXX

xxx

Sec. 2. Definition of . — T h e f o l l o w i n g shall m e a n a n d be u n d e r s t o o d , as follows: a.

Philippine Waters. — It shall r e f e r to all b o d i e s of w a t e r , such as b u t not limited to seas, gulfs, b a y s a r o u n d , b e t w e e n a n d c o n n e c t i n g e a c h o f the 386


I s l a n d s o f the P h i l i p p i n e A r c h i p e l a g o , irrespective of its d e p t h , b r e a d t h , l e n g t h or dimension, a n d all o t h e r w a t e r s b e l o n g i n g to the P h i l i p p i n e s by historic or l e g a l title, i n c l u d i n g territorial sea, the s e a - b e d , the i n s u l a r shelves, a n d other s u b m a r i n e a r e a s o v e r w h i c h the P h i l i p p i n e s h a v e sovereignty or jurisdiction. b.

Vessel. — A n y vessel or w a t e r c r a f t u s e d for t r a n s p o r t o f p a s s e n g e r s a n d c a r g o f r o m one p l a c e t o another t h r o u g h P h i l i p p i n e W a t e r s . I t shall include all k i n d s a n d types o f vessels o r boats u s e d i n f i s h i n g . xxx

d.

xxx

xxx

Piracy. — A n y attack u p o n or seizure of a n y vessel, o r the t a k i n g a w a y o f the w h o l e o r p a r t t h e r e o f o r its c a r g o , e q u i p m e n t , or the p e r s o n a l b e l o n g i n g s of its c o m p l e m e n t or p a s s e n g e r s , irrespective of the v a l u e thereof, by m e a n s of violence against or i n t i m i d a t i o n of p e r s o n s or force u p o n things, committed by a n y p e r s o n , i n c l u d i n g a p a s s e n g e r or m e m b e r of the c o m p l e m e n t of said vessel, in P h i l i p p i n e w a t e r s , shall b e c o n s i d e r e d a s piracy. T h e offenders shall b e c o n s i d e r e d a s pirates a n d punished as hereinafter provided. xxx

xxx

xxx

Sec. 3. Penalties. — A n y p e r s o n w h o commits p i r a c y or h i g h w a y r o b b e r y / b r i g a n d a g e a s h e r e i n defined, shall, u p o n conviction by competent court be p u n i s h e d by: a.

Piracy. — T h e penalty of reclusion temporal in its m e d i u m a n d m a x i m u m periods shall b e imposed. If physical injuries or other crimes a r e committed as a result or on the occasion thereof, the penalty of reclusion perpetua shall be imposed. If r a p e , m u r d e r or homicide is committed as a result or on the occasion of piracy, or w h e n the offenders a b a n d o n e d the victims without means of saving themselves, on w h e n the seizure is accomplished by firing u p o n or b o a r d i n g a vessel, the mandatory penalty of death shall be imposed. 387


xxx

xxx

xxx

Sec. 4. Aiding pirates or highway robbers / brigands or abetting piracy or highway robbery/brigandage. — A n y p e r s o n w h o k n o w i n g l y a n d in any m a n n e r aids or protects pirates or h i g h w a y r o b b e r s / b r i g a n d s , such as g i v i n g t h e m information about the movement of police or other peace officers of the government, or a c q u i r e s or receives p r o p e r t y t a k e n by such pirates or b r i g a n d s or in any m a n n e r d e r i v e s a n y benefit therefrom; or any p e r s o n w h o directly or indirectly abets the commission o f p i r a c y o r h i g h w a y r o b b e r y o r b r i g a n d a g e , shall be considered as an accomplice of the p r i n c i p a l offenders a n d be p u n i s h e d in a c c o r d a n c e w i t h the R u l e s p r e s c r i b e d b y the R e v i s e d P e n a l C o d e . I t shall b e p r e s u m e d that a n y p e r s o n w h o does a n y o f the acts p r o v i d e d in this Section has p e r f o r m e d t h e m k n o w i n g l y , unless the c o n t r a r y is p r o v e n . xxx •

xxx

xxx

Compare piracy in the Revised Penal Code and in P.D. 532. In P . D . 532, the culprits include the crew or engers and the concept of vessel in Section 2[b] "shall include all kinds and types of vessels or boats used in fishing'' such as banca or raft. Hence, when robbery is committed in a banca or raft in Philippine waters, it is piracy. T h e situs is Philippine waters; abbettors are penalized as accomplices. In the R P C , the pirates are not crew or engers; they are "outsiders." T h e situs includes the high seas and Philippine waters. Abettors are accessories, unless charged as fence in which case they are principal for fencing, the essence of piracy being robbery. Upon its amendment by R . A . 7659 on January 1, 1994, the coverage of Article 122 was widened to include offenses committed "in Philippine waters." On the other hand, under P . D . 532 (issued in 1974), the coverage of the law embraces any person including "a enger or member of the complement of said vessel in Philippine waters." Hence, enger or not, a member of the complement or not, any person is covered by P . D . 532. (People v. Tulin, G.R. No. 111709, August 30, 2001)

388


Did R.A. 7659 obliterate the crime of piracy under P.D. 532? No. R.A. 7659 neither superseded nor amended the provisions on piracy under P.D. 532. There is no contradiction between the two laws. There is likewise no ambiguity and hence, there is no need to construe or interpret the law. All the P . D . did was to widen the coverage of the law, in keeping with the intent to protect the citizenry as well as neighboring states from crimes against the law of nations. As expressed in one of the "whereas" clauses of P.D. 532, piracy is "among the highest forms of lawlessness condemned by the penal statutes of all countries." For this reason, piracy under Article 122, as amended and piracy under P.D. 532 exist harmoniously as separate laws, (id.) If piracy was committed outside the Philippine waters, will the Philippine courts have jurisdiction over the offense? Yes, for piracy falls under Title I of Book 2. As such, it is an exception to the rule on territoriality in criminal law. The same principle applies even if the offenders were charged, not with a violation of qualified piracy under the RPC but under P.D. 532 which penalizes piracy in Philippine waters. Verily, P.D. 532 should be applied with more force since its purpose is precisely to discourage and prevent piracy in Philippine waters. (People v. Catantan, 278 SCRA 761) Regardless of the law penalizing the same, piracy is a reprehensible crime against the whole world (hosteshumani generis). (People v. Lol-lo, 43 Phil. 19) Thus, as regards the contention that the trial court did not acquire jurisdiction over the person of H H since the crime was committed outside Philippine waters, unquestionably, the attack on and seizure of "M/T Tabangao" (renamed "M/T Galilee" by the pirates) and its cargo were committed in Philippine waters, although the captive vessel was later brought by the pirates to Singapore where its cargo was offloaded, transferred, and sold. And such transfer was done under HH's direct supervision. Although P.D. 532 requires that the attack and seizure of the vessel and its cargo be committed in Philippine waters, the disposition by the pirates of the vessel and its cargo is still deemed part of the act of piracy, hence, the same need not be committed in Philippine waters. (People v. Tulin) 389


•

Can the accused be convicted as an accomplice in an information that charges him as a principal? Yes. If there is lack of evidence of conspiracy, the liability is that of an accomplice and not as principal (People v. Tolentino, 40 SCRA 514). A n y doubt as to the participation of an individual in the commission of the crime is always resolved in favor of lesser responsibility (People v. Corbes, 270 SCRA 465). Hence, the constitutional right of accused to be informed of the nature and cause of accusation against him was not violated.

•

What is presumption under Section 4, P.D. 532? Section 4 presumes that any person who does any of the acts provided in said section has performed them knowingly, unless the contrary is proved. In the case at bar, HH failed to overcome the legal presumption that he knowingly abetted or aided in the commission of piracy, received property taken by such pirates and derived benefit therefrom. T h e record discloses that he aided the pirates in disposing of the stolen cargo by personally directing its transfer from " M / T Galilee" to "M/T N a v i Pride." He profited therefrom by buying the hijacked cargo for N a v i M a r i n e Services, Pty., L t d . (id.)

Art. perpetua to any of the any of the

•

123. Qualified piracy. — T h e p e n a l t y of reclusion d e a t h shall be i m p o s e d u p o n those w h o commit crimes r e f e r r e d to in the p r e c e d i n g article, u n d e r f o l l o w i n g circumstances:

1.

W h e n e v e r they h a v e seized a vessel by b o a r d i n g or f i r i n g u p o n the same;

2.

W h e n e v e r the p i r a t e s h a v e a b a n d o n e d t h e i r victims w i t h o u t m e a n s o f s a v i n g themselves; o r

3.

W h e n e v e r the c r i m e is a c c o m p a n i e d by m u r d e r , homicide, physical i n j u r i e s , or r a p e . (As amended by Sec. 3, R.A. No. 7659.)

What is qualified piracy (Article 123)? Qualified piracy is committed under any of the following circumstances:


1.

Offenders seized the vessel by boarding or firing upon the same

2.

T h e y abandoned the victims without means of saving themselves

3.

T h e crime is accompanied by murder, homicide, physical injuries or rape

and carries the penalty of reclusion perpetua to death. R . A . 9346 deleted the death penalty, hence, Article 123 has become inoperative as simple piracy carriers reclusion perpetua also.

•

Is there qualified mutiny? Y e s . Article 123 specifies that it covers "any of the crimes referred to in the preceding article." Thus, it covers not only qualified piracy but also qualified mutiny. However, the first circumstance applies only to piracy because in mutiny, the offenders are "insiders" of the vessel. T h e second and third circumstances apply both to mutiny and piracy. T h e murder, homicide, rape, or physical injuries committed in the third circumstance are not crimes in themselves, but are qualifying circumstances. T h e crime is not complex under Article 48 but a special complex crime or composite crime. W h e n crimes, other than homicide, rape, murder or physical injuries are committed, such are crimes in themselves and not qualifying circumstances. Example: piracy with direct assault. R E P U B L I C A C T N O . 6235 Anti-Hijacking L a w

S E C T I O N 1. It shall be unlawful for any person to compel a change in the course or destination of an aircraft of Philippine registry, or to seize or usurp the control thereof, while it is in flight. An aircraft is in flight from the moment all its external doors are closed following embarkation until any of such doors is opened for disembarkation. It shall likewise be unlawful for any person to compel an aircraft of foreign registry to land in Philippine territory or to seize or usurp the control thereof while it is within the said territory.

391


S E C T I O N 2. A n y person violating any provision of the foregoing section shall be punished by an imprisonment of not less than twelve years but not more than twenty years, or by a fine of not less than twenty thousand pesos but not more than forty thousand pesos. The penalty of imprisonment of fifteen years to death, or a fine of not less than twenty-five thousand pesos but not more than fifty thousand pesos shall be imposed upon any person committing such violation under any of the following circumstances: 1.

Whenever he has fired upon the pilot, member of the crew or enger of the aircraft;

2.

Whenever he has exploded or attempted to explode any bomb or explosive to destroy the aircraft; or

3.

Whenever the crime is accompanied by murder, homicide, serious physical injuries or rape.

S E C T I O N 3. It shall be unlawful for any person, natural or juridical, to ship, load or carry in any enger aircraft operating as a public utility within the Philippines, any explosive, flammable, corrosive or poisonous substance or material. S E C T I O N 4. T h e shipping, loading or carrying of any substance or material mentioned in the preceding section in any cargo aircraft operating as a public utility within the Philippines shall be in accordance with regulations issued by the Civil Aeronautics istration. S E C T I O N 5. As used in this A c t — (1) "Explosive" shall mean any substance, either solid or liquid, mixture or single compound, which by chemical reaction liberates heat and gas at high speed and causes tremendous pressure resulting in explosion. T h e term shall include but not limited to dynamites, firecrackers, blasting caps, black powders, bursters, percussions, cartridges and other explosive materials, except bullets for firearm. (2) "Flammable" is any substance or material that is highly combustible and self-igniting by chemical reaction and shall include but not limited to acrolein, allene, aluminum dyethylmonochloride, and other aluminum compounds, ammonium chlorate and other ammonium mixtures and other similar substances or materials. 392


(3) "Corrosive" is any substance or material, either liquid, solid or gaseous, which through chemical reaction wears away, impairs or consumes any object. It shall include but not limited to alkaline battery fluid packed with empty storage battery, allylchloroformate, allytrichlorosilane, ammonium dinitro-orthocresolate and other similar materials and substances. (4) "Poisonous" is any substance or materials, except medicinal drug, either liquid, solid or gaseous, which through chemical reactions kills, injures or impairs a living organism or person, and shall include but not limited to allylisothiocyanate, ammunition (chemical, non-explosive but containing Class A, B or poison), aniline oil, arsine, bromobenzyle cyanide, bromoacetone and other similar substances or materials. S E C T I O N 6. A n y violation of Section three hereof shall be punishable by an imprisonment of at least five years but not more than ten years or by a fine of not less than ten thousand pesos but not more than twenty thousand pesos: Provided, That if the violation is committed by a juridical person, the penalty shall be imposed upon the manager, representative, director, agent or employee who violated, or caused, directed, cooperated or participated in the violation thereof: Provided, further, That in case the violation is committed in the interest of a foreign corporation legally doing business in the Philippines, the penalty shall be imposed upon its resident agent, manager, representative or director responsible for such violation and in addition thereto, the license of said corporation to do business in the Philippines shall be revoked. A n y violation of Section four hereof shall be an offense punishable with the minimum of the penalty provided in the next preceding paragraph. S E C T I O N 7. For any death or injury to persons or damage to property resulting from a violation of Sections three and four hereof, the person responsible therefor may be held liable in accordance with the applicable provisions of the Revised Penal Code. S E C T I O N 8. Aircraft companies which operate as public utilities or operators of aircraft which are for hire are authorized to open and investigate suspicious packages and cargoes in the presence of the owner or shipper, or his authorized representatives if present; in order to help the authorities in the enforcement of the

393


provisions of this Act: Provided, That if the owner, shipper or his representative refuses to have the same opened and inspected, the airline or air carrier is authorized to refuse the loading thereof. S E C T I O N 9. Every ticket issued to a enger by the airline or air carrier concerned shall contain among others the following condition printed thereon: "Holder hereof and his hand-carried luggage(s) are subject to search for, and seizure of, prohibited materials or substances. Holder refusing to be searched shall not be allowed to board the aircraft," which shall constitute a part of the contract between the enger and the air carrier. X XX

xxx

xxx

Approved: June 19, 1971 •

What acts are punished under the Anti-Hijacking Law? 1.

Compelling the pilot of an aircraft of Philippine registry to change course or destination or otherwise usurping or seizing control while it is in flight. The aircraft is "in flight" when all the exterior doors thereof are closed following embarkation until opened for disembarkation (although it has not moved a w a y ) .

2.

Compelling an aircraft of foreign registry to land in any part of Philippine territory or usurping or seizing control of such, while it is within Philippine territory. (There is no requirement that it be in flight.) In usurping control, it is not required that the aircraft be a public utility. T h e following are the qualifying circumstances in nos. (1) and (2):

3.

a)

Firing upon the pilot, crew, or enger;

b)

Exploding or attempting to explode any bomb or explosive to destroy the aircraft; or

c)

T h e crime is accompanied by murder, homicide, serious physical injuries, or rape.

Carrying or loading on board a enger aircraft operating as a public utility in the Philippines, substances which are corrosive, flammable, explosive, or poisonous. 394


Here, mere carrying or loading of explosive, corrosive, etc. brings about criminal liability, unlike in N o . 4. 4.

Shipping or loading such substances on a cargo aircraft operating as public utility in the Philippines in a manner not in accordance with the rules and regulations issued by the A i r Transportation Office ( A T O ) . W h a t is penalized here is carrying substances listed in N o . 3 not in accordance with the rules and regulations prescribed b y the A T O .

What are the four kinds of aircraft and their treatment in the law? 1.

Aircraft of Philippine registry - it must be in flight

2.

Aircraft of foreign registry - it need not be in flight

3.

Public utility enger aircraft - mere carrying of prohibited substance is criminal

4.

Public utility cargo aircraft - non-compliance with the A T O rules and regulations constitutes the criminal act

395

TITLE TWO C R I M E S A G A I N S T THE FUNDAMENTAL L A W S OF THE STATE •

Who are the offenders in Title II of Book II? A l l offenses other than those regarding religion require that the principal offender is a public officer. T h e civilians are merely accomplices or accessories. The crimes covered are: a.

Arbitrary detention (124)

b.

Delay in the delivery of detained persons to the proper judicial authorities (125)

c.

Delaying release (126)

d.

Expulsion (127)

e.

Violation of domicile (128)

f.

Search warrants maliciously obtained and abuse in the service of those legally obtained (129)

g.

Searching domicile without witnesses (130)

h.

Prohibition, interruption, meetings (131)

i.

Interruption of religious worship (132)

j.

Offending the religious feelings (133)

dissolution of peaceful

Chapter One ARBITRARY D E T E N T I O N OR EXPULSION, VIOLATION OF D W E L L I N G , PROHIBITION, INTERRUPTION, A N D D I S S O L U T I O N OF PEACEFUL MEETINGS A N D CRIMES AGAINST RELIGIOUS W O R S H I P Section

O n e . — Arbitrary Detention

and Expulsion

ARBITRARY DETENTION OR EXPULSION

A r t . 124. Arbitrary detention. — A n y p u b l i c officer or e m p l o y e e w h o , w i t h o u t legal g r o u n d s , detains a p e r s o n , shall suffer: 1.

T h e p e n a l t y of arresto mayor in its m a x i m u m p e r i o d to prision correccional in its m i n i m u m p e r i o d , if the detention has not e x c e e d e d three days;

2.

T h e p e n a l t y of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s , if the detention has cont i n u e d m o r e t h a n t h r e e b u t not m o r e t h a n f i f t e e n days;

3.

T h e p e n a l t y of prision mayor, if the detention has c o n t i n u e d for m o r e t h a n f i f t e e n d a y s b u t not m o r e t h a n six months; a n d

4.

T h a t of reclusion temporal, if the h a v e e x c e e d e d six months.

detention

shall

T h e c o m m i s s i o n of a c r i m e , or violent insanity or any other a i l m e n t r e q u i r i n g the c o m p u l s o r y confinement of the patient in a hospital, shall be c o n s i d e r e d legal g r o u n d s for the detention of a n y p e r s o n . •

W h o can commit the crime of arbitrary detention (Article 124)? Arbitrary detention can be committed by public officers whose official duties give them the authority to effect arrest and detain persons such as barangay chairman and police officers. If committed by other kinds of public officers, the crime is illegal detention. But a person is deemed a public officer only when he is acting within the bounds of his official authority or function. If not, he acts in his private capacity. T h e accused, being of the C A F G U at the time the alleged crime was committed, should not be charged of kidnapping and serious illegal detention under Article 267 for the reason that they are not private individuals, but public officers. They can only be liable for the crime of arbitrary detention defined in Article 124. It is essential, however, that there is actual confinement or restriction of the person of the offended party. There must be uncontroverted proof of both intent to deprive the victim of his liberty and actual confinement

397


or restriction. The fact that the aggrieved party has not been seen or heard of since he was last seen with the accused, does not prove that he has been detained and deprived of his liberty. (People v. Flores, G.R. No. 116488, May 31, 2001) •

How is arbitrary detention committed? The detention at the very start is unlawful because there is no warrant of arrest and there is no lawful cause as provided in the R R C P on warrantless arrests. A detention without lawful cause by barangay officials constitutes arbitrary detention because they are persons in authority or agents of persons in authority. T h e y are vested with authority to cause arrests in the maintenance of peace and order in the barangay. If the offender falsely imputes a crime against a person to be able to arrest him and appears not determined to file a charge against him, the crime is arbitrary detention through unlawful arrest. (Article 269) If they planted evidence to effect the arrest, it is arbitrary detention through incriminating innocent persons. (Article 363)

•

Compare arbitrary detention with unlawful arrest. Arbitrary detention is committed by a public officer authorized to arrest and detain a person but he does so without lawful cause. W h i l e unlawful arrest (Article 269) is by either private individual or public officer who feigned to arrest a person without any legal cause, the purpose, which is the essence of unlawful arrest is to bring him to authority and file a charge. If a charge is filed, the detention is deemed an incident of the arrest and the filing of charges against him. It is the arrest that is penalized in Article 269.

A r t . 125. Delay in the delivery of detained persons to the proper judicial authorities. — T h e penalties p r o v i d e d in the next p r e c e d i n g article shall b e i m p o s e d u p o n the p u b l i c officer o r employee w h o shall detain a n y p e r s o n for some l e g a l g r o u n d a n d shall fail to d e l i v e r such p e r s o n to the p r o p e r j u d i c i a l authorities w i t h i n the p e r i o d of: t w e l v e (12) h o u r s , for c r i m e s or offenses p u n i s h a b l e by light penalties, or their e q u i v a l e n t ;

398


eighteen (18) h o u r s , for c r i m e s or offenses p u n i s h a b l e by c o r r e c t i o n a l penalties, or their e q u i v a l e n t ; a n d thirty-six (36) h o u r s , for c r i m e s or offenses p u n i s h a b l e by afflictive or capital penalties, o r their e q u i v a l e n t . I n e v e r y case, the p e r s o n d e t a i n e d shall b e informed o f the c a u s e o f his detention a n d shall b e a l l o w e d , u p o n his request, to c o m m u n i c a t e a n d confer at a n y time w i t h his attorn e y or counsel. (As amended by E.O. No. 272, July 25, 1987.) •

Compare Articles 124 and 125. In both, there is no warrant of arrest but in Article 124 there are no legal ground; while in Article 125 there is a legal ground as provided by Rule 113(5) of the R R C P . If the cause of arrest without warrant is not any of such situations, the crime is arbitrary detention. A warrantless arrest under the circumstances contemplated under Section 5(a), Rule 113 has been denominated as one "in flagrante delicto," while that under Section 5(b) as a "hot pursuit" arrest. V a l i d warrantless searches, on the other hand, are limited to the following: (a) customs searches; (b) search of moving vehicles; (c) seizure of evidence in plain view; (d) consent searches; (e) a search incidental to a lawful arrest; and (f) a "stop and frisk." (Malacat v. CA, G.R. No. 123595, December 12, 1997)

•

How is the arrestee "delivered" as provided in Article 125? T h e article does not cover arrests pursuant to a warrant because a warrant is issued when there is already a case against the person hence, there is no need to deliver him to the court. "Deliver" means the filing of correct information with the proper court (or constructive delivery — turning over the arrestee to the jurisdiction of the court). T h e purpose is to determine whether the offense is bailable or not. If with warrant, the arresting officer need only make a return, not file a charge. T h e return should be made within a reasonable time after the arrest. The delivery of a detained person is a legal one and consists in making a charge or filing a complaint against the

399


prisoner with the proper justice of the peace or judge of Court of First Instance in provinces, and in filing by the city fiscal of an information with the corresponding city courts after an investigation if the evidence against said person warrants. (Sayo v. Chief of Police, 80 Phil.) Article 125 applies to persons arrested for violating both the R P C and special penal laws because of the phrase "or their equivalent." •

When does the detention become arbitrary? In Article 125, the detention becomes arbitrary only when the time required for the delivery of prisoner to the judicial authority lapses. T h e article contemplates that there was a legal cause for arresting but without a warrant of arrest. If the arrest is on the strength of a warrant, Article 125 does not apply. The 12-18-36 hours (for offenses punishable with light, correctional, and capital penalties, respectively) do not run when the courts are not open to receive the complaint or information being filed.

•

What is the rationale for the provision of Article 125? To prevent any abuse resulting from confining a person without informing him of his offense and without permitting him to go on bail. M o r e specifically, it punishes public officials or employees who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the periods prescribed by law. T h e continued detention of the accused becomes illegal upon the expiration of the periods provided for by Article 125 without such detainee having been delivered to the corresponding judicial authorities. (Agbay v. Omb., G.R. No. 134503, July 2, 1999)

•

To what do the words "judicial authority" refer? "Judicial authority" means "the courts of justices or judges of said courts vested with judicial power to order the temporary detention or confinement of a person charged with having committed a public offense, that is, 'the Supreme Court and other such inferior courts as may be established by law."' (id.) 400


•

When a municipal trial court judge conducts a preliminary investigation, is he taken out of the ambit of the "judicial authority"? N o . T h e power to order the release or confinement of an accused is determinative of the issue. In contrast with a city fiscal, a municipal court judge, even in the performance of his function to conduct preliminary investigations, retains the power to issue an order of release or commitment. Furthermore, upon the filing of the complaint with the Metropolitan Circuit T r i a l Court ( M C T C ) , the intent behind Article 125 is satisfied considering that by such act, the detained person is informed of the crime imputed against him and, upon his application with the court, he may be released on bail. Petitioner himself acknowledged this power of the M C T C to order his release when he applied for and was granted his release upon posting bail. Thus, the v e r y purpose underlying Article 125 has been duly served with the filing of the complaint with the M C T C . Such filing of the complaint with the M C T C interrupted the period prescribed in said Article. R E P U B L I C A C T N O . 7438

Section 1. Statement of Policy. — It is the policy of the State t o v a l u e the d i g n i t y o f e v e r y h u m a n b e i n g a n d g u a r a n t e e full respect for h u m a n rights. Sec. 2. Rights of Persons Arrested, Detained, or Under Custodial Investigation; Duties of Public Officers. — ( a ) A n y person a r r e s t e d , d e t a i n e d or u n d e r custodial investigation shall at all times be assisted by counsel. ( b ) A n y p u b l i c officer o r employee, o r anyone acting u n d e r his o r d e r or in his place, w h o arrests, detains, or investigates a n y p e r s o n for the commission of an offense shall i n f o r m the latter, in a l a n g u a g e k n o w n to a n d understood by him, of his rights to r e m a i n silent a n d to have competent and i n d e p e n d e n t counsel, p r e f e r a b l y of his o w n choice, w h o shall at all times be a l l o w e d to confer privately with the person a r r e s t e d , detained or u n d e r custodial investigation. If such p e r s o n cannot afford the services of his o w n counsel, he must be p r o v i d e d w i t h a competent a n d independent counsel by the investigating officer. 401


(c) T h e custodial investigation r e p o r t shall be r e d u c e d to w r i t i n g by the investigating officer, p r o v i d e d that b e f o r e such r e p o r t is signed, or t h u m b m a r k e d if the p e r s o n a r r e s t e d or detained does not k n o w h o w to r e a d a n d w r i t e , it shall be read a n d adequately e x p l a i n e d to h i m by his counsel or by the assisting counsel p r o v i d e d by the investigating officer in the l a n g u a g e or dialect k n o w n to such a r r e s t e d or d e t a i n e d person, otherwise, such investigation r e p o r t shall be null a n d void a n d of no effect w h a t s o e v e r . ( d ) A n y extrajudicial confession m a d e by a p e r s o n arrested, detained o r u n d e r custodial investigation shall b e in w r i t i n g a n d signed by such p e r s o n in the p r e s e n c e of his counsel or in the latter's a b s e n c e , u p o n a v a l i d w a i v e r , a n d in the presence of a n y of the p a r e n t s , o l d e r b r o t h e r s a n d sisters, his spouse, the m u n i c i p a l m a y o r , the m u n i c i p a l j u d g e , district school s u p e r v i s o r , or priest or minister of the g o s p e l as chosen by him; o t h e r w i s e , such e x t r a j u d i c i a l confession shall be inissible in e v i d e n c e in a n y p r o c e e d i n g . (e) A n y waiver by a person arrested or detained under the provisions of A r t i c l e 125 of the R e v i s e d P e n a l C o d e , or u n d e r custodial investigation, shall b e i n w r i t i n g a n d s i g n e d by such p e r s o n in the p r e s e n c e of his counsel; o t h e r w i s e such w a i v e r shall b e null a n d v o i d a n d o f n o effect. (f) A n y p e r s o n a r r e s t e d o r d e t a i n e d o r u n d e r c u s t o d i a l investigation shall b e a l l o w e d visits b y o r c o n f e r e n c e s w i t h any m e m b e r o f his i m m e d i a t e family, o r a n y m e d i c a l d o c t o r o r priest o r r e l i g i o u s minister c h o s e n b y h i m o r b y a n y m e m b e r o f his i m m e d i a t e f a m i l y o r b y his counsel, o r b y a n y national n o n - g o v e r n m e n t a l o r g a n i z a t i o n d u l y a c c r e d i t e d b y the Commission o n H u m a n R i g h t s o r b y a n y i n t e r n a t i o n a l n o n - g o v e r n m e n t a l o r g a n i z a t i o n d u l y a c c r e d i t e d b y the Office of the P r e s i d e n t . T h e person's "immediate family" shall include his o r h e r spouse, f i a n c e o r f i a n c e e , p a r e n t o r child, b r o t h e r o r sister, g r a n d p a r e n t o r g r a n d c h i l d r e n , u n c l e o r aunt, n e p h e w o r niece, a n d g u a r d i a n o r w a r d . As u s e d in this A c t , "custodial investigation" shall include the practice of issuing an "invitation" to a p e r s o n w h o is investigated in connection w i t h an offense he is s u s p e c t e d

402


to h a v e committed, w i t h o u t p r e j u d i c e to the liability of the "inviting" officer for a n y violation of l a w . Sec. 3. Assisting Counsel. — A s s i s t i n g counsel is any l a w y e r , except those directly affected by the case, those c h a r g e d w i t h c o n d u c t i n g p r e l i m i n a r y investigation o r those c h a r g e d w i t h the p r o s e c u t i o n o f crimes. x XX

xxx

xxx

In the a b s e n c e of a n y l a w y e r , no custodial investigation shall be c o n d u c t e d a n d the suspected p e r s o n can only be d e t a i n e d by the i n v e s t i g a t i n g officer in a c c o r d a n c e with the p r o v i s i o n of A r t i c l e 125 of the R e v i s e d P e n a l C o d e . Sec. 4. Penalty Clause. — ( a ) A n y a r r e s t i n g p u b l i c officer or e m p l o y e e , or a n y i n v e s t i g a t i n g officer, w h o fails to i n f o r m a n y p e r s o n a r r e s t e d , d e t a i n e d o r u n d e r custodial investigation of his r i g h t s to r e m a i n silent a n d to have c o m p e t e n t a n d i n d e p e n d e n t counsel p r e f e r a b l y o f his o w n choice, shall suffer a fine of six t h o u s a n d pesos (P6,000.00) or a p e n a l t y of i m p r i s o n m e n t of not less t h a n eight (8) years b u t not m o r e t h a n ten (10) years, or both. T h e penalty of p e r p e t u a l a b s o l u t e disqualification shall also be imposed u p o n the investigating officer w h o has b e e n previously convicted of a similar offense. T h e same penalties shall be imposed u p o n a public officer or e m p l o y e e , or a n y o n e acting u p o n o r d e r s of such investigating officer or in his place, w h o fails to p r o v i d e a competent a n d i n d e p e n d e n t counsel to a p e r s o n arrested, d e t a i n e d or u n d e r custodial investigation for the commission of an offense if the latter cannot afford the services of his o w n counsel. ( b ) A n y p e r s o n w h o obstructs, prevents o r prohibits any l a w y e r , any m e m b e r of the immediate family of a person arrested, detained or u n d e r custodial investigation, or any m e d i c a l doctor or priest or religious minister or by his counsel, f r o m visiting a n d c o n f e r r i n g privately chosen by h i m or by any m e m b e r of his immediate family with him, or f r o m e x a m i n i n g a n d treating him, or from ministering to his spiritual needs, at any h o u r of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less 403


than four (4) years nor more than six (6) years, a n d a fine of F o u r thousand pesos (P4,000.00). The provisions of the a b o v e Section notwithstanding, any security officer with custodial responsibility o v e r any detainee o r p r i s o n e r m a y u n d e r t a k e such r e a s o n a b l e measures as m a y be necessary to secure his safety a n d p r e v e n t his escape. •

What is custodial investigation? Custodial investigation involves any questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner. T h e rules on custodial investigation begin to operate as soon as the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect. W h e n the suspect is taken into custody and the police carry out a process of interrogations that tends itself to elicit incriminating statements, the rule begins to operate. R . A . 7438, reinforced the constitutional mandate protecting the rights of persons under custodial investigation, by providing that: "As used in this Act, 'custodial investigation' shall include the practice of issuing an invitation to a person who is being investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the 'inviting' officer for any violation of law." (People v. Tan, G.R. No. 117321, February 11, 1998)

•

What is the mandatory duty of arresting officers in R.A. 7438? R . A . 7438 makes it mandatory for any officer to inform the arrested of his right to avail of the services of an independent and competent counsel. (But note the section of R . A . 7438 on confession without the presence of counsel.) R . A . 7438 provides the following: 1.

A n y public officer who, by himself or through another, causes the arrest, detention and investigation of any person should at all times have the latter be assisted by counsel preferably of his own choice. He shall inform the person arrested, detained, and investigated that he has the right: (a) to remain silent; (b) to be assisted by 404

ARBITRARY D E T E N T I O N OR EXPULSION

counsel; and (c) to be provided with counsel if he cannot afford one. 2.

A n y report in custodial investigation of person so arrested, detained, and investigated must be in writing and explained to him before he is required to sign thereon. Otherwise, the report is null and void.

3.

If extra-judicial confession is made in the counsel's absence, it must be signed before his spouse, parents, older brothers or sisters or his priest. (This provision of allowing waiver without counsel but in the presence of relatives is of doubtful validity.)

4.

Person arrested, detained and investigated must be allowed visits with any of his family, doctors, priest, and non-government organization ( N G O ) duly accredited by the Commission on Human Rights ( C H R ) or international N G O accredited by the Office of the President.

How are persons under custody of the law variously classified? 1.

Subjects — those covered by a general inquiry into an unsolved crime; respondent = preliminary

2.

Suspects — it ceases to be a general inquiry and focuses on the person as the probable criminal agent. T h e rights on custodial investigation begins to operate;

3.

Accused — preliminary investigation may have been completed and an information filed in court. The right against self-incrimination, the right to be informed of the nature and cause of accusation against him, and similar rights under the Constitution accrue;

4.

Detainee or detention prisoner — one who is in prison who has yet to be charged or one whose case has not been terminated or decided;

5.

Convict — accused reasonable doubt.

investigation, not yet an accused.

who was

found

guilty beyond

Is an invitation equivalent to arrest? Y e s . Application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not 405


required. It is enough that there be an intent on the part of one of the parties to arrest the other and an intent on the part of the other to submit, under the belief and impression that submission is necessary. Where the invitation comes from a powerful group composed predominantly of ranking military officers and the designated interrogation site is a military camp, the same can be easily taken, not as a strictly voluntary invitation which it purports to be, but as an authoritative command which he can only defy at his peril. N o t e that under R . A . 7438, the requisites of custodial investigation are applicable to a person "invited" for questioning. (Sanchez v. Demetriou, November 1993) •

•

What are the elements of custodial investigation? 1.

A person is detained or deprived of his liberty in a significant manner;

2.

The questioning has ceased to be a general inquiry but has become inculpatory in nature and indicates that the detainee is considered as a suspect; and

3.

The inquiry is conducted by police officers.

What is the nature of searches, arrests and seizure from the Constitutional point of view? T h e Constitution provides that "the right of the people to be secured in their persons, houses, papers and effects against unreasonable search and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." T h e plain import is that searches, seizures and arrests are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection given by this provision is that between person and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest. (David v. Arroyo, G.R. No. 171396, May 2006)

406


People v. Uy, Jr., G.R. No. 157399, November 2005 •

Describe the circumstances occurring during custodial investigation. Custodial investigation refers to the stage when the investigation ceases to be a general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect. After a person is arrested and his custodial investigation begins a confrontation arises which is unequal. T h e detainee is brought to an army camp or police headquarters and there questioned and cross-examined not only by one but as many investigators as may be necessary to break down his morale. He finds himself in a strange and unfamiliar surrounding, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. T h e y employ all the methods and means that experience and study has taught them to extract the truth, or what may for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. A n d even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence.

•

What situations are n o t covered by custodial investigation? T h e rights enumerated by the constitutional provision are not available before government investigators enter the picture. issions made during the course of an istrative investigations do not come within the purview of Section 12. T h e protective mantle of the constitutional provision also does not extend to issions or confessions made to a private individual, or to a verbal ission made to a radio announcer who was not part of the investigation, or even to a mayor approached as a personal confidante and not in his official capacity. A videotaped interview showing the accused unburdening his guilt willingly, openly and publicly in the presence of newsmen is not covered by the provision although in so ruling, trial courts should take extreme caution in further itting similar confessions because of the distinct possibility that the police, with the connivance of unscrupulous media

407


practitioners, may attempt to legitimize coerced extrajudicial confessions and place them beyond the exclusionary rule by having an accused it an offense on television. Neither does the constitutional provision on custodial investigation extend to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby the accused orally its having committed the crime, nor to a person undergoing an audit examination because an audit examiner is not a law enforcement officer. Thus, the flaw in appellant's argument in this regard becomes immediately apparent considering that his statement was taken during the istrative investigation of N P C ' s audit team and before he was taken into custody. As such, the inquest was still a general inquiry into an unsolved offense at the time and there was, as yet, no specific suspect. Appellant cannot claim that he was in police custody because he was confined at the P H C and he gave this statement to N P C personnel, not to police authorities. Appellant can hardly claim that, under the prevailing circumstances at the time, whatever degree of compulsion may have existed went beyond the borders of the unobjectionable w h e r e impermissible levels of duress would force him into making false and incriminating declarations against his interest. W h i l e he may have been persuaded into doing so, he cannot feign that he was intimidated in such a w a y as to bring his statements within the ambit of the exclusionary constitutional provision. What is the essence of the constitutional safeguard? The essence of the constitutional safeguard is protection from coercion. T h e interview where the sworn statement is based was conducted by N P C personnel for the N P C ' s istrative investigation. A n y simultaneous investigation conducted by the N B I is a proceeding separate, distinct and independent from the N P C inquiry and should not be confused or lumped together with the latter. Although in Galman, the constitutional protection covers not only confessions but issions as well, it qualified the ruling with the statement that what is being eschewed is the evil of "extorting" a confession from the mouth of the person 408


being interrogated. As denned, "extortion" is an act or practice of taking or obtaining anything from a person by illegal use of fear, whether by force, threats or any undue exercise of power. In the context of obtaining an ission, "extorting" means "compelling or coercing a confession or information by any means serving to overcome his power of resistance, or making the confession or ission involuntary." W h i l e Galman taken together with the 1986 deliberations on what was later to become Section 12(1) of the 1987 Constitution may lead to the conclusion that the rights are available when the person is already in custody as a suspect, or if the person is a suspect even if he is not yet deprived in any significant w a y of his liberty, Fr. Bernas said that "[Jurisprudence under the 1987 Constitution, however, has consistently held, following Escobedo, the stricter view, that the rights begin to be available only when the person is already in custody." habeas corpus.

Art. 124. Arbitrary detention

A r t . 126. Delaying release. — T h e penalties p r o v i d e d for in A r t i c l e 124 shall be i m p o s e d u p o n a n y p u b l i c officer or e m p l o y e e w h o d e l a y s for the p e r i o d of time specified therein the p e r f o r m a n c e of a n y j u d i c i a l or executive o r d e r for the release of a p r i s o n e r or detention p r i s o n e r , or u n d u l y delays the service of the notice of s u c h o r d e r to s a i d p r i s o n e r or the p r o c e e d i n g s u p o n a n y petition for the l i b e r a t i o n of such person. •

What acts constitute delaying release under Article 126? This article deals with petitions for the release of detained person, e.g., habeas corpus proceeding. The same penalties provided for in Article 124 shall be imposed upon any public officer or employee who for the period of time specified therein delays: 1.

T h e performance of any judicial or executive order for the release of a prisoner or detention prisoner; or

2.

T h e service of the notice of such order to said prisoner; or

409


3.

The proceedings upon any petition for the liberation of such person.

A r t . 127. Expulsion. — T h e penalty of prision correccional shall be imposed u p o n any p u b l i c officer or employee w h o , not b e i n g thereunto a u t h o r i z e d by l a w , shall expel a n y person from the P h i l i p p i n e Islands or shall compel such p e r s o n to c h a n g e his residence. •

What is the crime of expulsion? This is a crime committed against the constitutional rights of abode and changing the same under the Bill of Rights. Villauicencio v. Lukban, 39 Phil. 778, warned that "Philippine penal law specifically punishes any public officer who, not being expressly authorized by law or regulation, compels any person to change his residence." Thus, the Manila Mayor's act of "deporting" 170 women believed to be of ill-repute was reversed. It is also violated when citizens or aliens are deported without an order of the President or Commissioner of Immigration and Deportation after due proceedings and for cause.

•

Who are the persons authorized by law to expel or compel persons to change abode? Only the President of the Philippines in the exercise of his power of deportation and the courts after final judgment sentencing the accused to destierro or as a condition in his probation. Section T w o . —

Violation of Domicile

A r t . 128. Violation of domicile. — T h e p e n a l t y of prision correccional in its m i n i m u m p e r i o d shall be i m p o s e d u p o n a n y p u b l i c officer o r e m p l o y e e w h o , not b e i n g a u t h o r i z e d b y j u d i c i a l o r d e r , shall enter a n y d w e l l i n g a g a i n s t the w i l l o f the o w n e r thereof, s e a r c h p a p e r s o r o t h e r effects f o u n d t h e r e i n w i t h o u t the p r e v i o u s consent o f such o w n e r , or, h a v i n g surreptitiously e n t e r e d s a i d d w e l l i n g , a n d b e i n g r e q u i r e d t o leave the premises, shall refuse to do so. If the offense be committed in the nighttime, or if a n y p a p e r s or effects not constituting e v i d e n c e of a c r i m e be not 410


r e t u r n e d i m m e d i a t e l y after the s e a r c h m a d e b y the offender, the p e n a l t y shall be prision correccional in its m e d i u m a n d maximum periods. •

How is violation of domicile committed and by whom? This crime may be committed by a public officer authorized to implement a search warrant or warrant of arrest but at the time of the incident he is not authorized to do so by judicial order. In other words, he is not armed with a warrant. T h e r e are three acts of violation of domicile, viz.: 1.

T h e public officer enters any dwelling against the will of the owner thereof.

2.

He searches papers or other effects found therein without the previous consent of the owner.

3.

H a v i n g surreptitiously entered said dwelling, and being required to leave the premises, he refuses to do so.

Entry in a domicile is "against the will" when the offender ignores the prohibition of the owner which may be express or implied as when the door is closed even though not locked. When a person who itted the public officer is one with sufficient discretion, the right to privacy is waived; hence, prohibition thereafter made can no longer constitute the crime of violation of domicile. Permission once given cannot be recalled as to constitute violation of the article. W h e n he is asked to leave and refuses to leave, it is unjust vexation. W h e n he is itted and he starts to search, the owner must stop him; otherwise, permission is deemed granted and it will be construed as a consented search, which is one of the valid warrantless searches. If he stops the public officer and the latter continues to search, there is violation of domicile. W h e n the entry is done surreptitiously, and the owner ordered the public officer to leave, refusal to leave would amount to violation of domicile. surreptitious = stealth, secret If the public officer is one whose function does not include the duty to effect search and seizure the crime is tres to dwelling. 411


one specific offense for each search warrant.

A r t . 129. Search warrants maliciously obtained, and abuse in the service of those legally obtained. — In addition to the liability attaching to the offender for the commission of any other offense, the penalty of arresto mayor in its m a x i m u m p e r i o d to prision correccional in its m i n i m u m p e r i o d a n d a fine not exceeding 1,000 pesos shall be imposed u p o n a n y p u b l i c officer or employee w h o shall p r o c u r e a s e a r c h w a r r a n t without just cause, or, h a v i n g legally p r o c u r e d the same, shall exceed his authority or use u n n e c e s s a r y severity in executing the same. A r t . 130. Searching domicile without witnesses. — T h e p e n a l t y of arresto mayor in its m e d i u m a n d m a x i m u m p e r i o d s shall be imposed u p o n a p u b l i c officer or e m p l o y e e w h o , in cases w h e r e a s e a r c h is p r o p e r , shall s e a r c h the domicile, p a p e r s or other b e l o n g i n g s of a n y p e r s o n , in the a b s e n c e of the latter, any m e m b e r of his family, or in their default, w i t h o u t the presence of t w o witnesses r e s i d i n g in the s a m e locality. •

Compare Article 128 with Articles 129 and 130. In Article 128, there is no warrant; in Article 129, the public officer is armed with a warrant but it was maliciously obtained; in Article 130, there was abuse in the implementation of a valid warrant. Even if the search warrant is valid there is violation of domicile in the following situations where: a.

T h e public officer exceeded his authority under the search warrant.

b.

T h e searching officer employed excessive severity or destruction in the house.

c

T h e search was made when the occupants w e r e absent and the search conducted without compliance with the requirement that it be made in the presence of at least two witnesses, who must come within the locality where the search was made. ( A r t . 130)

T h e law imposes additional liability for the perjury resorted to by the public officer in obtaining search warrant without probable cause.

412


•

Cite examples of provisions imposing additional liability? T h e R P C allows multiple prosecutions through the use of words: "besides," "in addition," "without prejudice," viz.:

•

1.

Article 129 on search warrants maliciously obtained in addition to the perjury;

2.

Article 160 on quasi-recidivism besides the provision on habitual delinquency;

3.

Article 209 on betrayal of public trust by an attorney or solicitor in addition to the proper istrative action;

4.

Article 210 on direct bribery in addition to the penalty to the crime agreed upon;

5.

Article 214 on other frauds in addition to the penalties prescribed in the provisions of Chapter 6, Title X;

6.

Article 235 on maltreatment of prisoners in addition to the liability for the physical injuries or damage caused;

7.

Article 279 on additional penalties for other offenses besides the penalties imposed on abandonment and exploitation of minors under Articles 275 to 278;

8.

Article 312 on occupation of real property in addition to the penalty incurred for the acts of violence executed;

9.

Article 315 which shall be without prejudice to the prosecution for B.P. 22, and illegal recruitment as expressly provided in such special laws;

10.

Article 330 on damage and obstruction to means of communication without prejudice to the criminal liability for the consequences of criminal act committed.

What procedures must be followed in searches and seizures? Rule 126 of the R R C P lays down the steps in the conduct of search and seizure: 1.

A search warrant is issued upon probable cause in connection with one specific offence to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce (Section 4);

413


2.

The search of a house, room, or any other premise be made in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in the same locality (Section 8); and

3.

The warrant must direct that it be served in the daytime, unless the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. (Section 9) (David v. Arroyo)

follow what is in the search warrant. lifetime ofSection search warrant days. T h r e e . is — 10 Prohibition,

dissolution

of peaceful

interruption, meetings

and

A r t . 131. Prohibition, interruption, and dissolution of peaceful meetings. — T h e penalty of prision correccional in its m i n i m u m p e r i o d shall b e i m p o s e d u p o n a n y p u b l i c officer o r e m p l o y e e w h o , w i t h o u t legal g r o u n d , shall p r o h i b i t o r i n t e r r u p t the h o l d i n g of a peaceful meeting, or shall dissolve the s a m e . T h e same p e n a l t y shall be i m p o s e d u p o n a p u b l i c officer o r employee w h o shall h i n d e r a n y p e r s o n f r o m j o i n i n g a n y l a w f u l association or f r o m a t t e n d i n g a n y of its meetings. T h e same p e n a l t y shall b e i m p o s e d u p o n a n y p u b l i c officer o r employee w h o shall p r o h i b i t o r h i n d e r a n y p e r s o n from a d d r e s s i n g , either a l o n e o r t o g e t h e r w i t h others, a n y petition to the authorities for the c o r r e c t i o n of a b u s e s or redress of g r i e v a n c e s . •

What are the acts punished under Article 131? 1.

Prohibiting or interrupting or dissolving the holding of a peaceful meeting.

2.

Hindering any person from ing any lawful association or from attending any of its meetings.

3.

Prohibiting or hindering any person from addressing, alone or with others, any petition to the authorities for the correction of abuses or redress of grievances.

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T h e assembly must be: a) peaceful; b) for legal purpose; c) the officer is not a member thereof; and d) he disturbs the same. T h e assembly must be a peaceful one because otherwise, the public officer is duty-bound to dissolve the same. It must be for a legal purpose otherwise the crime under Article 146 is committed. If initially peaceful and thereafter, the meeting becomes illegal, Article 146 is also violated and the meeting may be dissolved. Art. 146. Illegal assemblies

T h e right of the government to require permit for regulatory purposes has been upheld by the Supreme Court. T h e regulatory purpose covers the right to define the time and place where assembly is held to safeguard the right of the public and to protect them from inconvenience. (Reyes v. Bagatsing, 125 SCRA 553 [1983]; Tanada v. Bagatsing, August 1984) S e c t i o n F o u r . — Crimes against religious worship A r t . 132. Interruption of religious worship. — T h e penalty of prision correccional in its m i n i m u m p e r i o d shall be imposed u p o n a n y p u b l i c officer o r e m p l o y e e w h o shall p r e v e n t o r d i s t u r b the c e r e m o n i e s or manifestations of a n y religion. If the c r i m e shall h a v e b e e n committed w i t h violence or threats, the p e n a l t y shall be prision correccional in its medium and m a x i m u m periods. A r t . 133. Offending the religious feelings. — T h e penalty of arresto mayor in its m a x i m u m p e r i o d to prision correccional in its m i n i m u m p e r i o d shall be i m p o s e d u p o n anyone w h o , in a place d e v o t e d to religious w o r s h i p or d u r i n g the c e l e b r a t i o n of a n y religious c e r e m o n y shall p e r f o r m acts notoriously offensive to the feelings of the faithful. •

What are the religious ceremonies or manifestations covered by Articles 132 and 133? These articles refer to the exercise of religious ceremonies or manifestations. It does not cover quasi-religious ceremonies such as house-blessing. The crime under Article 133 is an exception in this Title where the offenders are public officers for it allows prosecution of private person ("anyone").

415


•

What is required for the act to constitute crimes against religious worship? If the act is directed to the religious belief itself and the act is notoriously offensive, the crime is offending the religious feelings. Otherwise, it is only unjust vexation. T h e construction of a fence, even though irritating and vexatious under the circumstances to those present, is not such an act as can be designated as "notoriously offensive to the faithful," as normally such an act would be a matter of complete indifference to those not present, no matter how religious a turn of mind they might be. (People v. Reyes, August 1934)Where the act is not directed to the belief itself and the meeting is interrupted by a public officer, the violation is against Article 132.

•

What is the meaning of the phrase "notoriously offensive"? "Notoriously offensive" is v i e w e d from the standard of any religion as being offensive. T h e act is offensive to a religious whether he is a member of the particular religion concerned or not; whether he is present or absent thereat. If it is offensive to a particular religion only, or only to those present at the religious meeting, the offense is unjust vexation. T h e disturbance or interruption of any ceremony of a religious character under the old Penal Code was denounced by Article 571 and was punished by arrest from 1 to 10 days and a fine of from 15 to 125 pesetas. But this article was omitted from the R P C and the offense, if any was committed by the appellants, is denounced in Article 287 as an "unjust vexation." (id.) what about satanism? if the act is not offensive to the religion of satanism?

416

TITLE THREE C R I M E S AGAINST PUBLIC ORDER •

What are included in Crimes against Public Order? 1.

Rebellion, insurrection, coup d'etat, sedition (134-142)

2.

Crimes against legislative bodies and similar bodies (143145)

3.

Illegal assemblies and associations (146-147)

4.

Direct/Indirect assault, resistance and disobedience (148152)

5.

Public disorders, tumults, alarms and scandals, delivery of prisoners (153-156)

6.

Evasion of service of sentence (157-159) and

7.

Quasi-recidivism (160)

Chapter One R E B E L L I O N , SEDITION, A N D DISLOYALTY A r t . 134. Rebellion or insurrection — How committed. — T h e c r i m e of r e b e l l i o n or i n s u r r e c t i o n is committed by rising p u b l i c l y a n d t a k i n g a r m s a g a i n s t the G o v e r n m e n t for the p u r p o s e of r e m o v i n g f r o m the allegiance to said G o v e r n m e n t or its l a w s , the territory of the R e p u b l i c of the Philippines or a n y p a r t thereof, or a n y b o d y of l a n d , n a v a l or other a r m e d forces, or d e p r i v i n g the C h i e f Executive or the Legislature, w h o l l y or partially, of a n y of their p o w e r s or prerogatives. (As amended by R.A. No. 6968.) prerogative = exclusive right A r t . 134-A. Coup d'etat — How committed. — T h e crime of coup d'etat is a swift attack, a c c o m p a n i e d by violence, intimidation, threat, strategy or stealth, directed against duly constituted authorities of the R e p u b l i c of the Philippines, or destablized, immobilized, paralyzed. 417


any military c a m p or installation, communications n e t w o r k s , public utilities or other facilities n e e d e d for the exercise a n d continued possession of p o w e r , singly or simultaneously carried out a n y w h e r e in the P h i l i p p i n e s by any p e r s o n or persons, b e l o n g i n g to the military or police or h o l d i n g any public office or employment, w i t h or w i t h o u t civilian s u p p o r t or participation, for the p u r p o s e of seizing or d i m i n i s h i n g state p o w e r . (R.A. No. 6968) A r t . 135. Penalty for rebellion, insurrection or coup d'etat. — A n y person w h o promotes, m a i n t a i n s o r h e a d s a r e b e l l i o n o r insurrection shall suffer the penalty of reclusion perpetua. A n y p e r s o n m e r e l y p a r t i c i p a t i n g o r e x e c u t i n g the commands of others in a r e b e l l i o n or i n s u r r e c t i o n shall suffer the penalty of reclusion temporal. A n y p e r s o n w h o leads o r i n a n y m a n n e r directs o r c o m m a n d s others to u n d e r t a k e a coup d'etat shall suffer the penalty of reclusion perpetua. A n y p e r s o n i n the g o v e r n m e n t service w h o p a r t i c i p a t e s , or executes directions or c o m m a n d s of others in u n d e r t a k i n g a coup d'etat shall suffer the p e n a l t y of reclusion temporal in its m a x i m u m p e r i o d . A n y p e r s o n not i n the g o v e r n m e n t service w h o participates, or in a n y m a n n e r s u p p o r t s , finances, a b e t s or a i d s in u n d e r t a k i n g a coup d'etat shall suffer the p e n a l t y of prision mayor in its m a x i m u m p e r i o d . W h e n the r e b e l l i o n , i n s u r r e c t i o n , o r coup d'etat shall b e u n d e r the c o m m a n d o f u n k n o w n l e a d e r s , a n y p e r s o n w h o i n fact directed the others, s p o k e for t h e m , s i g n e d receipts a n d other documents issued in their n a m e , or p e r f o r m e d s i m i l a r acts, on b e h a l f of the r e b e l s shall be d e e m e d a l e a d e r of such r e b e l l i o n , i n s u r r e c t i o n , or coup d'etat. (As amended by R.A. No. 6968.) A r t . 136. Conspiracy and proposal to commit coup d'etat, rebellion or insurrection. — T h e c o n s p i r a c y a n d p r o p o s a l to commit coup d'etat shall be p u n i s h e d by prision mayor in its m i n i m u m p e r i o d a n d a fine w h i c h shall not e x c e e d eight t h o u s a n d pesos (P8,000.00).

418

REBELLION, S E D I T I O N , A N D DISLOYALTY

T h e c o n s p i r a c y a n d p r o p o s a l t o commit r e b e l l i o n o r i n s u r r e c t i o n shall be p u n i s h e d , respectively, by prision correccional in its m a x i m u m p e r i o d a n d a fine w h i c h shall not e x c e e d five t h o u s a n d pesos (P5,000.00), a n d by prision correccional in its m e d i u m p e r i o d a n d a fine not exceeding t w o t h o u s a n d pesos (P2,000.00). (As amended by R.A. No. 6968.) A r t . 137. Disloyalty of public officers or employees. — T h e p e n a l t y of prision correccional in its m i n i m u m p e r i o d shall b e i m p o s e d u p o n p u b l i c officers o r e m p l o y e e s w h o have failed to resist a r e b e l l i o n by all the m e a n s in their p o w e r , or shall continue to d i s c h a r g e the duties of their offices u n d e r the c o n t r o l of the r e b e l s or shall accept a p p o i n t m e n t to office u n d e r them. (Restored by E.O. No. 187.) A r t . 138. Inciting to rebellion or insurrection. — T h e penalty of prision mayor in its m i n i m u m p e r i o d shall be imposed upon any person who, without taking arms or being in o p e n hostility a g a i n s t the G o v e r n m e n t , shall incite others to the e x e c u t i o n of a n y of the acts specified in Article 134 of this C o d e , by m e a n s of speeches, p r o c l a m a t i o n s , writings, e m b l e m s , b a n n e r s or o t h e r r e p r e s e n t a t i o n s t e n d i n g to the s a m e end. (Restored E.O. No. 187.) •

How is the crime of rebellion committed? T h e crime of rebellion is committed by rising publicly and taking up arms against the government for any of the purposes specified in Article 134 which are political in nature. Rising publicly and taking up arms against the Government is the very element of the crime of rebellion. It is a crime against public order. (People v. Asuncion, April 22, 1992) Thus, even without the amendatory law on illegal possession of firearm, the use of unlicensed firearm in the commission of rebellion or insurrection is absorbed as its element.

•

Compare rebellion and subversion. If it is conceded that force and violence are the very essence of subversion, then it loses its distinction from rebellion. Liwanag distinguished subversion from rebellion viz.:

419


1.

Rebellion is committed by rising publicly and taking up arms against the Government for any of the purposes under Article 134; while subversion is affiliation or hip in a subversive organization. Taking up arms against the government is but a circumstance which raises the penalty to be imposed upon the subversive.

2.

Subversion is a crime against national security; rebellion, against public order. Rising publicly and taking arms against the government is the very element of the crime of rebellion whereas R . A . 1700 was enacted to outlaw the C P P , other similar associations and its successors because their existence and activities constitute a clear, present and grave danger to national security. (R.A. 7636 repealed R.A. 1700 decriminalizing subversion.)

3.

Rebellion makes use of force and violence whereas subversive acts do not only constitute force and violence but may partake of other form as well, (id.)

What amendments were introduced by R.A. 6968 on rebellion? R . A . 6968 deleted the following acts from Article 135: a.

The offenders engage in war against the forces of government;

b.

The offenders being public officers commit serious violence or destruction of property;

c.

T h e offenders being public officers exact contribution for the of rebellion; and

d.

The offenders being public officers divest public funds from the purposes for which these w e r e appropriated.

T h e deletion is significant in that it signifies the intention to treat common crimes as distinct from rebellion. T h e amendment by deletion of certain words or phrases in a statute indicates that the legislature intended to change itsmeaning. T h e presumption is that the legislature would not have made the deletion had the intention been not to effect a change in its meaning. T h e amended statute should accordingly 420


be given a construction different from that previous to its amendment. (Gloria v. CA, G.R. No. 131012, April 21, 1999) •

What is the nature of the crime of rebellion? Rebellion is a continuing crime hence rebels can be arrested at anytime without a warrant. (Garcia-Padilla v. Enrile, 121 SCRA 472; Umil v. Ramos, 187SCRA 211). (Justice Isagani Cruz decried this as a dangerous doctrine for it allows warrantless arrest despite the innocence of the acts of accused at the time they are arrested.)

Office of the Provincial Prosecutor v. CA, December 2000 •

In order to make out a case of rebellion, what must be the motivation for the killing of the victim? It must be made in furtherance of rebellion. Merely because it is alleged in the affidavit that respondents were of the C C P / N P A who engaged government troops in a firefight resulting in the death of a government trooper and the wounding of four others does not necessarily mean that the killing and wounding of the victims were made in furtherance of a rebellion. Indeed, Ompad, 233 SCRA 1994 convicted an N P A commander of murder for the killing of a person suspected of being a government informer.

•

When a criminal act has elements common to more than one offense, who has the option to choose the case to file? T h e public prosecutor has the option to ascertain which prosecutions should be initiated on the basis of the evidence at hand. That a criminal act may have elements common to more than one offense does not rob the prosecutor of that option (or discretion) and mandatorily require him to charge the lesser offense although the evidence before him may warrant prosecution of the more serious one. It is the R P C in relation to the evidence in the hands of the public prosecutor, and not the latter's whim or caprice, which gives the choice. The R P C allows separate prosecutions for either murder or rebellion, although not for both where the indictment alleges that the former has been committed in furtherance of or in connection with the latter. 421


Who has the burden of proving the political motivation? The burden of proving that the motivation for the crime is political and not private is on the defense. Lovedorio, 250 SCRA 1995 held that in deciding if the crime is rebellion, not murder, it becomes imperative for the courts to ascertain whether or not the act was done in furtherance of a political end. T h e political motive of the act should be conclusively demonstrated. The burden of demonstrating political motive falls on the defense, motive being a state of mind which the accused better than any individual knows. It is not enough that the overt acts of rebellion are proven. Both purpose and overt acts are essential components of the crime. W i t h either of these elements wanting, the crime of rebellion legally does not exist. But a matter of defense should not be alleged in the information. If element of rebellion.why should the offender have the burden of proving political motivation? Enrile v. Salazar noted that in the light of contemporary events, the act of rebellion has lost that quintessentially quixotic quality that justifies the relative leniency with which it is regarded and punished by law, that present-day rebels are less impelled by love of country than by lust for power and have become no better than mere terrorists to whom nothing, not even the sanctity of human life, is allowed to stand in the w a y of their ambitions. Nothing so underscores these aberrations as the rash of senseless killings, bombings, kidnappings and assorted mayhem as often perpetrated against innocent civilians as against the military, but by and large, attributable to or even claimed by rebels to be part of an ongoing rebellion. M a y offenders be charged for "common crimes" such as murder and illegal possession of firearms separately from rebellion? Y e s . The R P C treats rebellion or insurrection as a crime distinct from murder, homicide, arson and other felonies that might conceivably be committed in the course of a rebellion. It allowsseparate prosecutions for either murder or rebellion, although not for both where the indictment alleges that the former has been committed in furtherance of, or in connection with the latter. It is within the power of the legislature to determine what acts or omissions other than that set out

422


in the R P C or other existing statutes are to be condemned as separate, individual crimes and what penalties should be attached thereto. T h e power is not diluted or improperly wielded just because at some prior time, the act or omission was but an element or ingredient of another offense, or might usually have been connected with another crime. (Baylosis v. Chavez) T h e ratio of Hernandez and Enrile is that Article 48 cannot be invoked as the basis for charging and prosecuting the complex crime of rebellion with homicide for the purpose of obtaining imposition of the penalty for the more serious offense in its maximum period. Said cases did not proscribe the legislative authority from validly enacting statutes that would define and punish, as offenses sui generis crimes which, in the context of Hernandez may be viewed as a complex of rebellion with other offenses. W h a t the court stated about rebellion "absorbing" common crimes committed in its course or furtherance may be viewed in light of the fact that at the time they w e r e decided, there were no penal provisions defining and punishing, as specific offenses, crimes like murder, etc. committed in the course or as part of a rebellion. This is no longer true as far as this case is concerned, and there being no question that P . D . 1866 is a valid statute. How is the crime of coup d'etat committed? T h e crime of coup d'etat is committed: 1.

How — by a swift attack accompanied by violence, intimidation, threat, strategy or stealth

2.

Against — the duly constituted authorities or any military camp or installation, communications networks, public utilities or other facilities needed for the exercise and continued possession of power

3.

Number of offenders — singly or simultaneously carried out anywhere in the Philippines

4.

By whom — by any person or persons, belonging to the military or police or holding any public office or employment, with or without civilian or participation

5.

Purpose — to seize or diminish state power 423


•

Distinguish rebellion from coup.

a. b. c. d. e.

In rebellion: The essence is rising publicly and taking up arms against the government; It involves a multitude of people; It does not require that the principal participants be of the AFP, PNP, or any public officers; Criminal objective is to overthrow the government and the offenders to establish their own; It is always committed through force and violence. In coup:

a.

b. c. d.

e.

The essence is a swift attack against the government, its military camps or installations, communication network, public facilities and utilities essential to the continued exercise of governmental powers; It may be committed singly or collectively; Requires as a principal offender a member of the AFP, PNP or a public officer, with or without civilian ; Criminal objective is to destabilize, immobilize or paralyze the existing government by taking over such facilities and utilities; May be committed not only through force or violence but also by threat, intimidation, strategy or stealth. (Note: No crime of inciting to coup d'etat.)

PEReDeS Art. 139. Sedition — How committed. — T h e c r i m e of sedition i s committed b y p e r s o n s w h o rise p u b l i c l y a n d t u m u l t u o u s l y i n o r d e r t o attain b y force, i n t i m i d a t i o n , o r b y o t h e r m e a n s outside of legal m e t h o d s , a n y of the f o l l o w i n g objects: 1.

To p r e v e n t the p r o m u l g a t i o n or e x e c u t i o n of a n y l a w o r the h o l d i n g o f a n y p o p u l a r election;

2.

To p r e v e n t the N a t i o n a l G o v e r n m e n t , or a n y p r o vincial o r m u n i c i p a l g o v e r n m e n t , o r a n y p u b l i c officer t h e r e o f f r o m freely e x e r c i s i n g its or his functions, o r p r e v e n t the e x e c u t i o n o f a n y a d m i n i s trative o r d e r ;

424


3.

To inflict a n y act of hate or r e v e n g e u p o n the p e r s o n o r p r o p e r t y o f a n y p u b l i c officer o r employee;

4.

To commit, for a n y political or social end, any act of hate or r e v e n g e a g a i n s t p r i v a t e persons or any social class; a n d

5.

To despoil, for a n y political or social end, any p e r s o n , m u n i c i p a l i t y or p r o v i n c e , or the N a t i o n a l G o v e r n m e n t ( o r the G o v e r n m e n t of the U n i t e d States) of all its p r o p e r t y or a n y p a r t thereof. (As amended by Com. Act No. 202.)

A r t . 140. Penalty for sedition. — T h e l e a d e r of a sedition shall suffer the p e n a l t y of prision mayor in its m i n i m u m p e r i o d a n d a fine not e x c e e d i n g 10,000 pesos. O t h e r p e r s o n s p a r t i c i p a t i n g t h e r e i n shall suffer the p e n a l t y of prision correccional in its m a x i m u m p e r i o d a n d a fine not e x c e e d i n g 5,000 pesos. (Restored by E.O. No. 187.) A r t . 141. Conspiracy to commit sedition. — P e r s o n s c o n s p i r i n g to c o m m i t the c r i m e of sedition shall be punished by prision correccional in its m e d i u m p e r i o d a n d a fine not e x c e e d i n g 2,000 pesos. (Restored by E.O. No. 187.) A r t . 142. Inciting to sedition. — T h e penalty of prision correccional in its m a x i m u m p e r i o d a n d a fine not exceeding 2,000 pesos shall be i m p o s e d u p o n any p e r s o n w h o , w i t h o u t t a k i n g a n y direct p a r t in the crime of sedition, should incite others to the a c c o m p l i s h m e n t of any of the acts w h i c h constitute sedition, by m e a n s of speeches, p r o c l a m a t i o n s , w r i t i n g s , e m b l e m s , cartoons, b a n n e r s , or other r e p r e s e n t a t i o n s t e n d i n g to the same end, or u p o n a n y p e r s o n o r p e r s o n s w h o shall utter seditious w o r d s o r speeches, w r i t e , p u b l i s h , or circulate scurrilous libels against the G o v e r n m e n t (of the U n i t e d States or the G o v e r n m e n t of the C o m m o n w e a l t h ) of the Philippines, or any of the duly constituted authorities thereof, or w h i c h tend to disturb or obstruct any l a w f u l officer in executing the functions of his office, or w h i c h tend to instigate others to cabal and meet together for u n l a w f u l purposes, or which suggest or incite rebellious conspiracies or riots, or which lead or tend to stir up the people against the lawful authorities or to 425


disturb the peace of the community, the safety a n d o r d e r of the Government, or w h o shall k n o w i n g l y conceal such evil practices. (As amended by Com. Act No. 202.) •

What is the nature of sedition? Sedition is a crime of dissent or protest by means outside of legal methods. The offenders rise publicly and tumultuously to attain their purpose by force, intimidation, or by other means outside of legal methods. It is done in excess of the legal means authorized under the freedoms of expression and assembly clauses of the Constitution.

•

Compare rebellion and sedition. In rebellion: a.

The purpose is political — to overthrow the duly constituted government.

b.

The use of firearm is essential; it is an ingredient of rebellion because the law specifies "taking arms against the government."

c.

The offender cannot be prosecuted for illegal possession of firearms because this is absorbed in rebellion.

In sedition:

•

a.

T h e purpose may be political or social for carrying out protest or disobedience from a governmental action and not for the purpose of overthrowing the government. T h e act may be against a social class.

b.

The use of firearm is not an essential ingredient of sedition. ( H o w e v e r , R . A . 8294 included sedition among the crimes which absorb the use of unlicensed firearm as an element thereof.)

c.

In view of R . A . 8294, the offenders can no longer be prosecuted for illegal possession of firearm, for it made the use of unlicensed firearm to be absorbed in sedition.

When disorderly conduct occurs during a rally, will it always result to sedition? Such instances of disorderly conduct by individual of the crowd should not be seized as an excuse to characterize the assembly as a seditious and tumultuous 426


rising against the authorities and render illusory the right to peaceable assembly. It is to be expected that disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasion, feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will the disciplinary control of the leaders over the irresponsible followers. If the prosecution be permitted to seize upon every instance of disorderly conduct by individual of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assembly and to petition for redress of grievances would become a delusion and snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they have sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor. [Justice Teehankee, dissenting opinion in Reyes v. Bagatsing][See David v. Arroyo] •

W h o can commit inciting to rebellion or sedition? Inciting to rebellion or sedition can be committed only by civilians who do not take part therein. If he does, his crime is rebellion or sedition. Rebels cannot commit this crime. T h e r e is no crime as proposal to incite to sedition, but only conspiracy. If the proposal is accepted, it is conspiracy.

•

Can direct assault be committed during a rebellion or sedition? N o , direct assault cannot be committed when there is rebellion or sedition as public uprising is an element of rebellion or sedition which should be absent in direct assault. Article 148 defines direct assault as "without public uprising."

•

Compare inciting to sedition (Article 142), tumults (Article 153), and direct assault (Article 148). In Article 153, the intent is not really to incite to sedition but to disturb public performance or create disturbance in 427


a public place. If any of the acts employed is one of those in Article 142 and the objective is any of those in Article 139, it is not merely disturbance but is elevated to inciting to sedition. Sedition is committed by those who: (a) rise publicly and tumultuously; (b) to attain by force, intimidation, or by other means outside of legal methods; (c) any of the objectives enumerated in Article 139. Direct assault of the first form is committed by those who: (a) without a public uprising; (b) shall employ force or intimidation; (c) for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition. •

Does wearing t-shirts printed with anti-government invectives amount to inciting to sedition? N o . During the inquest for the charges, all that the arresting officers could invoke was their observation that some rallyists were wearing t-shirts with the invective "Oust Gloria Now" and their erroneous assumption that petitioner D a v i d was the leader of the rally. Such fact is insufficient to charge him with inciting to sedition. (David v. Arroyo)

•

Is the warrantless arrest of persons suspected of rebellion valid? In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the R R C P , if the circumstances so warrant. T h e warrantless arrest feared by petitioners is not based on the declaration of a "state of rebellion" for Proclamation N o . 38 has been lifted. (Lacson v. Reyes, G.R. No. 147780, May 20, 2001)

•

What remedies are available to one suspected of rebellion and arrested without warrant? Petitioners' contention that they are under imminent danger of being arrested without warrant do not justify resort to the extraordinary remedies of mandamus and prohibition since an individual subjected to warrantless arrest has adequate remedies in the ordinary course of law. He may ask for a preliminary investigation where he may adduce evidence

428


in his defense, or he may submit himself to inquest proceedings to determine whether or not he should remain under custody and correspondingly be charged in court. Further, a person subject of a warrantless arrest must be delivered to the proper judicial authorities within the periods provided in A r t i c l e 125, otherwise the arresting officer could be held liable for delay in the delivery of detained persons. Should the detention be without legal ground, the person arrested can charge the arresting officer with arbitrary detention. A l l this is without prejudice to his filing an action for damages against the arresting officer under Article 32 of the N C C . (id.) Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

429

Chapter T w o

CRIMES AGAINST P O P U L A R REPRESENTATION Section O n e . — Crimes against legislative bodies and similar bodies A r t . 143. Acts tending to prevent the meeting of the Assembly and similar bodies. — T h e penalty of prision correccional or a fine r a n g i n g f r o m 200 to 2,000 pesos, or both, shall be i m p o s e d u p o n any p e r s o n w h o , b y force o r f r a u d , p r e v e n t s the m e e t i n g of the N a t i o n a l A s s e m b l y ( C o n g r e s s of the P h i l i p p i n e s ) or of any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or of a n y provincial b o a r d or city or m u n i c i p a l council or b o a r d . (As amended by Com. Act No. 264) (Restored by E.O. No. 187.) A r t . 144. Disturbance of proceedings. — T h e p e n a l t y of arresto mayor or a fine f r o m 200 to 1,000 pesos shall be imposed u p o n a n y p e r s o n w h o d i s t u r b s the m e e t i n g s o f the N a t i o n a l A s s e m b l y ( C o n g r e s s of the P h i l i p p i n e s ) or of any of its committees or s u b c o m m i t t e e s , constitutional commissions or committees or divisions thereof, or of a n y p r o v i n c i a l b o a r d o r city o r m u n i c i p a l council o r b o a r d , o r in the presence of a n y such b o d i e s s h o u l d b e h a v e in s u c h m a n n e r as to i n t e r r u p t its p r o c e e d i n g s or to i m p a i r the respect d u e it. (As amended by Com. Act No. 264.)(Restored by E.O. No. 187.) Section T w o . —

Violation

of parliamentary

immunity

Art. 145. Violation of parliamentary immunity. —The penalty of prision mayor shall be i m p o s e d u p o n a n y p e r s o n w h o shall use force, intimidation, t h r e a t s or f r a u d to p r e v e n t any m e m b e r of the N a t i o n a l A s s e m b l y ( C o n g r e s s of the P h i l i p p i n e s ) f r o m a t t e n d i n g the m e e t i n g s o f the A s s e m b l y ( C o n g r e s s ) or of any of its committees or subcommittees, constitutional commissions or committees or divisions

430

C R I M E S A G A I N S T POPULAR REPRESENTATION

thereof, f r o m e x p r e s s i n g his o p i n i o n s or casting his vote; a n d the p e n a l t y of prision correccional shall be imposed u p o n a n y p u b l i c officer o r e m p l o y e e w h o shall, w h i l e the A s s e m b l y ( C o n g r e s s ) is in r e g u l a r or special session, arrest o r s e a r c h a n y m e m b e r thereof, except i n case such m e m b e r h a s c o m m i t t e d a c r i m e p u n i s h a b l e u n d e r this C o d e by a p e n a l t y h i g h e r t h a n prision mayor. (As amended by Com. Act No. 264.)

431

Chapter Three ILLEGAL ASSEMBLIES A N D ASSOCIATIONS A r t . 146. Illegal assemblies. — T h e penalty of prision correccional in its m a x i m u m p e r i o d to prision mayor in its m e d i u m period shall b e i m p o s e d u p o n the o r g a n i z e r s o r leaders of any meeting attended by a r m e d p e r s o n s for the p u r p o s e of committingany of the crimes p u n i s h a b l e u n d e r this C o d e , or of any meeting in w h i c h the a u d i e n c e is incited to the commission of the c r i m e of t r e a s o n , r e b e l l i o n or insurrection, sedition or assault u p o n a p e r s o n in a u t h o r i t y or his agents. P e r s o n s m e r e l y p r e s e n t at such m e e t i n g shall suffer the penalty of arresto mayor, unless they a r e a r m e d , in w h i c h case the penalty shall be prision correccional. I f a n y p e r s o n p r e s e n t a t the m e e t i n g c a r r i e s a n unlicensed firearm, it shall be p r e s u m e d that the p u r p o s e of said meeting, insofar as he is c o n c e r n e d , is to c o m m i t acts p u n i s h a b l e u n d e r this C o d e , a n d he shall be c o n s i d e r e d a l e a d e r o r o r g a n i z e r o f the m e e t i n g w i t h i n the p u r v i e w o f the preceding p a r a g r a p h . A s used i n this article, the w o r d "meeting" shall b e u n d e r s t o o d to i n c l u d e a g a t h e r i n g or g r o u p , w h e t h e r in a fixed place or m o v i n g . (As amended by R.A. No. 12, September 5, 1946; Restored by E.O. No. 187.) •

What is the gravamen of illegal assembly? The gravamen of the offense is mere gathering for the unlawful purpose relating to a crime under the R P C . If the offense is punishable under special law, illegal assembly is not committed.

•

What are the two ways of committing illegal assembly? a.

Gathering of persons any or some of whom are armed for the purpose of committing any crime under the R P C .

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ILLEGAL A S S E M B L I E S A N D A S S O C I A T I O N S

b.

Gathering of persons where the audience is incited to commit treason, rebellion or insurrection, sedition or assault upon a person in authority or his agent even without the attendance of armed men.

If the intent of the leader or organizer in organizing the meeting is to incite the audience to sedition, the crime is inciting to sedition. If the inciting utterances were injected during and incidental to such meeting, it is illegal assembly. •

What are the penalties imposable for illegal assembly? 1.

On the organizers or leaders of any meeting, if attended by armed persons — prision correccional in its maximum period to prision mayor in its medium period;

2.

Persons merely present but armed — prision correccional

3.

Persons merely present but not armed — arresto mayor

T h e presence of any armed person at such meeting shall give rise to the twin presumptions that: 1.

T h e meeting, as far as he is concerned, is illegal; and

2.

He is a leader or organizer of such meeting. B. P. 880 - P U B L I C A S S E M B L Y A C T OF 1985 xxx

Sec. 3. Definition of . — F o r p u r p o s e s of this Act: ( a ) " P u b l i c assembly" m e a n s a n y rally, demonstration, m a r c h , p a r a d e , procession or a n y other f o r m of mass or concerted action held in a p u b l i c place for the p u r p o s e of p r e s e n t i n g a l a w f u l cause; or e x p r e s s i n g an opinion to the g e n e r a l p u b l i c on a n y p a r t i c u l a r issue; or protesting or influencing a n y state of affairs w h e t h e r political, economic or social; or petitioning the g o v e r n m e n t for redress of g r i e v ances. T h e processions, rallies, p a r a d e s , demonstrations, p u b l i c meetings a n d assemblages for religious purposes shall be g o v e r n e d by local ordinances: P r o v i d e d , however, T h a t the declaration of policy as p r o v i d e d in Section 2 of this A c t shall be faithfully observed. 433


The definition herein contained shall not include picketing a n d other concerted action in strike a r e a s by w o r k e r s a n d employees resulting f r o m a l a b o r dispute as denned by the L a b o r C o d e , its implementing rules a n d regulations, a n d by the B a t a s P a m b a n s a B i l a n g 227. ( b ) "Public place" shall include a n y h i g h w a y , b o u l e v a r d , avenue, r o a d , street, b r i d g e o r other t h o r o u g h f a r e , p a r k , plaza, s q u a r e , a n d / o r a n y o p e n space o f p u b l i c o w n e r s h i p w h e r e the people a r e a l l o w e d access. (c) " M a x i m u m tolerance" m e a n s the highest d e g r e e of restraint that the military, police a n d other p e a c e k e e p i n g authorities shall o b s e r v e d u r i n g a p u b l i c a s s e m b l y or in the dispersal of the same. x xx

xxx

xxx

Sec. 4. P e r m i t w h e n r e q u i r e d a n d w h e n not r e q u i r e d . — A written p e r m i t shall b e r e q u i r e d for a n y p e r s o n o r p e r s o n s to o r g a n i z e a n d h o l d a p u b l i c a s s e m b l y in a p u b l i c place. H o w e v e r , n o p e r m i t shall b e r e q u i r e d i f the p u b l i c a s s e m b l y shall be done or m a d e in a f r e e d o m p a r k d u l y e s t a b l i s h e d b y l a w o r o r d i n a n c e o r i n p r i v a t e p r o p e r t y , i n w h i c h case only the consent of the o w n e r or the o n e entitled to its l e g a l possession is r e q u i r e d , or in the c a m p u s of a g o v e r n m e n t o w n e d a n d o p e r a t e d e d u c a t i o n a l institution w h i c h shall be subject to the r u l e s a n d r e g u l a t i o n s of s a i d e d u c a t i o n a l institution. Political m e e t i n g s o r r a l l i e s h e l d d u r i n g a n y election c a m p a i g n p e r i o d a s p r o v i d e d for b y l a w a r e not covered by this Act. X XX

xxx

xxx

Sec. 6. A c t i o n to be t a k e n on the a p p l i c a t i o n . — ( a ) It shall be the d u t y of the m a y o r or a n y official acting in his b e h a l f to issue or g r a n t a p e r m i t unless t h e r e is clear a n d c o n v i n c i n g e v i d e n c e that the p u b l i c a s s e m b l y will create a clear a n d p r e s e n t d a n g e r to p u b l i c o r d e r , p u b l i c safety, p u b l i c convenience, p u b l i c m o r a l s o r p u b l i c health. ( b ) T h e m a y o r o r a n y official a c t i n g i n his b e h a l f shall act o n the a p p l i c a t i o n w i t h i n t w o (2) w o r k i n g d a y s f r o m the date the a p p l i c a t i o n w a s f i l e d , f a i l i n g w h i c h , the p e r m i t shall

434

ILLEGAL A S S E M B L I E S A N D ASSOCIATIONS

b e d e e m e d g r a n t e d . S h o u l d for a n y r e a s o n the m a y o r o r any official a c t i n g in his b e h a l f refuse to accept the application for a p e r m i t , s a i d a p p l i c a t i o n shall be posted by the a p p l i c a n t on the p r e m i s e s of the office of the m a y o r a n d shall be d e e m e d to h a v e b e e n filed. ( c ) If the m a y o r is of the v i e w that there is imminent a n d g r a v e d a n g e r of a s u b s t a n t i v e evil w a r r a n t i n g the denial or modification of the p e r m i t , he shall immediately inform the a p p l i c a n t w h o m u s t b e h e a r d o n the matter. ( d ) T h e action o n the p e r m i t shall b e i n w r i t i n g a n d s e r v e d o n the a p p l i c a t i o n w i t h i n t w e n t y - f o u r h o u r s . ( e ) If the m a y o r or a n y official acting in his b e h a l f denies the a p p l i c a t i o n or modifies the thereof in his p e r m i t , the a p p l i c a n t m a y contest the decision in an appropriate court of law. (f) In case suit is b r o u g h t b e f o r e the M e t r o p o l i t a n T r i a l C o u r t , the M u n i c i p a l T r i a l C o u r t , the M u n i c i p a l Circuit T r i a l C o u r t , the R e g i o n a l T r i a l C o u r t , o r the Intermediate A p p e l l a t e C o u r t , its decisions m a y be a p p e a l e d to the a p p r o p r i a t e c o u r t w i t h i n forty-eight (48) h o u r s after receipt o f the s a m e . N o a p p e a l b o n d a n d r e c o r d o n a p p e a l shall b e r e q u i r e d . A decision g r a n t i n g such p e r m i t or modifying it in satisfactory to the a p p l i c a n t shall, be immediately executory. ( g ) A l l cases filed in court u n d e r this section shall be d e c i d e d w i t h i n t w e n t y - f o u r (24) h o u r s f r o m date of filing. Cases filed h e r e u n d e r shall be immediately e n d o r s e d to the executive j u d g e for disposition or, in his absence, to the next in r a n k . ( h ) In all cases, any decision may be a p p e a l e d to the Supreme Court. ( i ) T e l e g r a p h i c a p p e a l s to be appeals are hereby allowed.

followed

by formal

Sec. 7. U s e of p u b l i c t h o r o u g h f a r e . — Should the p r o p o s e d p u b l i c assembly involve the use, for an appreciable length of time, of any public h i g h w a y , b o u l e v a r d , avenue, r o a d or street, the m a y o r or any official acting in his behalf 435


may, to prevent g r a v e p u b l i c inconvenience, designate the route thereof w h i c h is convenient to the participants or reroute the v e h i c u l a r traffic to a n o t h e r direction so that there will be no serious or u n d u e interference w i t h the free flow of commerce a n d t r a d e . Sec. 8. Responsibility of applicant. — It shall be the duty a n d responsibility of the l e a d e r s a n d o r g a n i z e r s of a p u b l i c assembly to take all r e a s o n a b l e m e a s u r e s a n d steps to the end that the intended p u b l i c a s s e m b l y shall be c o n d u c t e d peacefully in a c c o r d a n c e w i t h the of the permit. T h e s e shall include b u t not be limited to the following: (a)

T o i n f o r m the p a r t i c i p a n t s o f their r e s p o n s i b i l i t y u n d e r the permit;

( b ) To police the r a n k s of the d e m o n s t r a t o r s in o r d e r to p r e v e n t n o n - d e m o n s t r a t o r s f r o m d i s r u p t i n g the l a w f u l activities of the p u b l i c assembly; (c)

T o confer w i t h local g o v e r n m e n t officials c o n c e r n e d a n d l a w e n f o r c e r s t o the e n d that the p u b l i c a s s e m b l y m a y b e h e l d peacefully;

( d ) To see to it that the p u b l i c a s s e m b l y u n d e r t a k e n shall not go b e y o n d the time stated in the p e r m i t ; and (e)

T o take positive steps that d e m o n s t r a t o r s d o not molest a n y p e r s o n o r d o a n y act u n d u l y i n t e r f e r i n g w i t h the r i g h t s of other p e r s o n s not p a r t i c i p a t i n g in the p u b l i c a s s e m b l y .

Sec. 9. N o n - i n t e r f e r e n c e by l a w e n f o r c e m e n t authorities. — L a w enforcement a g e n c i e s shall not i n t e r f e r e w i t h the h o l d i n g of a p u b l i c a s s e m b l y . H o w e v e r , to a d e q u a t e l y e n s u r e p u b l i c safety, a l a w e n f o r c e m e n t c o n t i n g e n t u n d e r the c o m m a n d of a r e s p o n s i b l e police officer m a y be d e t a i l e d a n d stationed in a place at least o n e h u n d r e d (100) m e t e r a w a y f r o m the a r e a o f activity r e a d y t o m a i n t a i n p e a c e a n d o r d e r at all times. Sec. 10. Police assistance w h e n r e q u e s t e d . — It shall b e i m p e r a t i v e for l a w e n f o r c e m e n t a g e n c i e s , w h e n their assistance is r e q u e s t e d by the l e a d e r s or o r g a n i z e r s , to p e r f o r m their duties a l w a y s m i n d f u l that their r e s p o n s i b i l i t y 436


to p r o v i d e p r o p e r protection to those exercising their r i g h t p e a c e a b l y to a s s e m b l e a n d the f r e e d o m of expression is p r i m o r d i a l . T o w a r d s this e n d , l a w enforcement agencies shall o b s e r v e the f o l l o w i n g guidelines: ( a ) M e m b e r s o f the l a w e n f o r c e m e n t contingent w h o d e a l w i t h the d e m o n s t r a t o r s shall be in complete u n i f o r m w i t h their n a m e p l a t e s a n d units t o w h i c h they b e l o n g d i s p l a y e d p r o m i n e n t l y on the front a n d d o r s a l parts of their u n i f o r m a n d m u s t o b s e r v e the policy o f " m a x i m u m tolerance" as herein denned; ( b ) T h e m e m b e r s o f the l a w e n f o r c e m e n t contingent shall not c a r r y a n y k i n d o f firearms b u t m a y b e e q u i p p e d w i t h b a t o n o r riot sticks, shields, c r a s h helmets w i t h visor, g a s m a s k s , boots o r a n k l e h i g h shoes w i t h shin g u a r d s ; ( c ) T e a r gas, s m o k e g r e n a d e s , w a t e r cannons, o r any s i m i l a r anti-riot d e v i c e shall not be u s e d unless the p u b l i c a s s e m b l y is a t t e n d e d by actual violence or serious threats of violence, or d e l i b e r a t e destruction of p r o p e r t y . Sec. 11. D i s p e r s a l of p u b l i c a s s e m b l y w i t h permit. — No p u b l i c a s s e m b l y w i t h a p e r m i t shall be d i s p e r s e d . H o w e v e r , w h e n a n a s s e m b l y b e c o m e s violent, the police m a y disperse such p u b l i c a s s e m b l y as follows: ( a ) At the first sign of i m p e n d i n g violence, the r a n k i n g officer of the l a w e n f o r c e m e n t contingent shall call the attention of the l e a d e r s of the p u b l i c assembly a n d ask the latter to p r e v e n t a n y possible d i s t u r b a n c e ; ( b ) If actual violence starts to a point w h e r e rocks or other h a r m f u l objects f r o m the participants a r e t h r o w n at the police or at the non-participants, or at any p r o p e r t y causing d a m a g e to such p r o p e r t y , the r a n k i n g officer of the l a w enforcement contingent shall a u d i b l y w a r n the participants that if the d i s t u r b a n c e persists, the p u b l i c assembly will be dispersed; (c) If the violence or disturbances p r e v a i l i n g as stated in the p r e c e d i n g s u b p a r a g r a p h should not stop or abate, the r a n k i n g officer of the l a w enforcement contingent shall a u d i b l y issue a w a r n i n g to the participants of the public

437


assembly, a n d after a l l o w i n g a r e a s o n a b l e p e r i o d of time to lapse, shall immediately o r d e r it to forthwith disperse; ( d ) N o arrest o f any leader, o r g a n i z e r o r p a r t i c i p a n t shall also be m a d e d u r i n g the p u b l i c assembly unless he violates d u r i n g the assembly a l a w , statute, o r d i n a n c e or any provision of this Act. S u c h a r r e s t shall be g o v e r n e d by Article 125 of the Revised P e n a l C o d e , as a m e n d e d : ( e ) Isolated acts or incidents of d i s o r d e r or b r e a c h of the peace d u r i n g the p u b l i c a s s e m b l y shall not constitute a g r o u n d for dispersal. Sec. 12. D i s p e r s a l of p u b l i c a s s e m b l y w i t h o u t permit. — W h e n the p u b l i c a s s e m b l y is h e l d w i t h o u t a p e r m i t w h e r e a permit is r e q u i r e d , the said p u b l i c a s s e m b l y m a y be peacefully dispersed. Sec. 13. P r o h i b i t e d acts. — T h e f o l l o w i n g shall constitute violations of this Act: ( a ) T h e h o l d i n g o f a n y p u b l i c a s s e m b l y a s defined i n this A c t b y any l e a d e r o r o r g a n i z e r w i t h o u t h a v i n g f i r s t secured that w r i t t e n p e r m i t w h e r e a p e r m i t is r e q u i r e d f r o m the office c o n c e r n e d , or the use of s u c h p e r m i t for such p u r p o s e s in a n y p l a c e other t h a n those set out in s a i d permit: P r o v i d e d , h o w e v e r , T h a t n o p e r s o n c a n b e p u n i s h e d o r held c r i m i n a l l y l i a b l e for p a r t i c i p a t i n g i n o r a t t e n d i n g a n o t h e r w i s e peaceful assembly; ( b ) A r b i t r a r y a n d unjustified d e n i a l o r modification of a p e r m i t in violation of the p r o v i s i o n s of this A c t by the m a y o r or any other official acting in his behalf. ( c ) T h e unjustified a n d a r b i t r a r y r e f u s a l t o a c c e p t o r a c k n o w l e d g e receipt of the a p p l i c a t i o n for a p e r m i t by the m a y o r or a n y official acting in his behalf; (d) Obstructing, impeding, disrupting or otherwise d e n y i n g the exercise of the r i g h t to p e a c e f u l assembly; ( e ) T h e u n n e c e s s a r y firing of f i r e a r m s by a m e m b e r of any l a w e n f o r c e m e n t a g e n c y o r a n y p e r s o n t o d i s p e r s e the p u b l i c assembly;

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ILLEGAL A S S E M B L I E S A N D A S S O C I A T I O N S

(f)

A c t s in violation of Section 10 hereof;

( g ) A c t s d e s c r i b e d h e r e u n d e r i f committed w i t h i n one h u n d r e d (100) m e t e r s f r o m the a r e a of activity of the p u b l i c a s s e m b l y or on the occasion thereof: 1.

the c a r r y i n g of a d e a d l y or offensive w e a p o n or d e v i c e such as f i r e a r m , p i l l b o x , b o m b , a n d the like;

2.

the c a r r y i n g of a b l a d e d w e a p o n a n d the like;

3.

the m a l i c i o u s b u r n i n g of a n y object in the streets or thoroughfares;

4.

the c a r r y i n g of firearms by m e m b e r s of the l a w e n f o r c e m e n t unit;

5.

the i n t e r f e r i n g w i t h or intentionally d i s t u r b i n g the h o l d i n g of a p u b l i c a s s e m b l y by the use of a motor vehicle, its h o r n s a n d l o u d s o u n d systems.

Sec. 14. P e n a l t i e s . — A n y p e r s o n found guilty a n d convicted of a n y of the p r o h i b i t e d acts d e n n e d in the i m m e d i a t e l y p r e c e d i n g section shall be p u n i s h e d as follows: ( a ) violation o f s u b p a r a g r a p h ( a ) shall b e p u n i s h e d b y i m p r i s o n m e n t of one m o n t h a n d one d a y to six months; ( b ) violations o f s u b p a r a g r a p h s ( b ) , ( c ) , ( d ) , ( e ) , ( f ) , a n d item 4, s u b p a r a g r a p h ( g ) shall be p u n i s h e d by imprisonment of six m o n t h s a n d one d a y to six years; ( c ) violation of item 1, s u b p a r a g r a p h ( g ) shall be p u n i s h e d by i m p r i s o n m e n t of six months a n d one d a y to six y e a r s w i t h o u t p r e j u d i c e to prosecution u n d e r Presidential D e c r e e N o . 1866; ( d ) violations of item 2, item 3, or item 5 of s u b p a r a g r a p h ( g ) shall be p u n i s h e d by i m p r i s o n m e n t of one day to thirty days. xxx xxx Approved: October 22,1985 439


•

What is the meaning of "assembly"? " A s s e m b l y means a right of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary consequence of being a republican institution and complements the right of speech. (David v. Arroyo)

•

What is the only limitation on the freedom of assembly? Like freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. Just like other rights embraced in the freedom of expression, the right to assemble is not subject to previous restraint or censorship. It may not be conditioned upon the prior issuance of a permit or authorization from the government authorities except if the assembly is intended to be held in a public place, a permit for the use of such place, and not for the assembly itself, may be validly required, (id.)

•

Can participation in a peaceable assembly be a basis for warrantless arrest on a charge of sedition? N o . In 2006, DD was with others who w e r e exercising their right to peaceful assembly. T h e y w e r e not committing any crime, neither was there a showing of a clear and present danger that warranted the limitation of that right. T h e charges of inciting to sedition and violation of BP 880 w e r e mere afterthought. Peaceable assembly for lawful discussion cannot be made a crime. T h e holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question is not as to the auspices under which the meeting was held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge. 440


Tolerance is the rule and limitation is the exception. Only upon a showing that an assembly presents a clear and present danger that the State may deny the citizens' right to exercise it. Indeed, respondents failed to show that the rallyists committed acts amounting to lawless violence, invasion or rebellion. With the blanket revocation of permits, the distinction between protected and unprotected assemblies was eliminated. Moreover, under B.P. 880, the authority to regulate assemblies and rallies is lodged with the local government units. They have the power to issue permits and to revoke such permits after due notice and hearing on the determination of the presence of clear and present danger. Here, petitioners were not even notified and heard on the revocation of their permits. The first time they learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When a person's right is restricted by government action, it behooves a democratic government to see to it that the restriction is fair, reasonable, and according to procedure, (id.) A r t . 147. Illegal association. — T h e penalty of prision correccional in its m i n i m u m or m e d i u m p e r i o d s a n d a fine not e x c e e d i n g 1,000 pesos shall be i m p o s e d u p o n the founders, directors, a n d p r e s i d e n t s of associations totally or partially o r g a n i z e d for the p u r p o s e of committing a n y of the crimes p u n i s h a b l e u n d e r this C o d e o r for some p u r p o s e contrary to p u b l i c m o r a l s . M e r e m e m b e r s of said associations shall suffer the p e n a l t y of arresto mayor. (Restored by E.O. No. 187.) •

What is the essence of illegal association?

The gravamen of the offense is the forming of an organization, corporation, or association, for the purpose of criminal activities prohibited by the RPC or by special laws against public morals or any act prejudicial to public welfare. "Public morals" should be construed as a crime under special penal law because the preceding phrase already refers to "any of the crimes punishable under this Code." In view of the multi-million peso industry involving e-pornography, this provision should be made more relevant today. 441

Chapter Four

ASSAULT U P O N A N D RESISTANCE A N D DISOBEDIENCE TO PERSONS IN AUTHORITY A N D THEIR AGENTS A r t . 148. Direct assaults. — A n y p e r s o n or p e r s o n s w h o , without a public u p r i s i n g , shall e m p l o y force or intimidation for the attainment of a n y of the p u r p o s e s e n u m e r a t e d in defining the crimes of r e b e l l i o n a n d sedition, or shall attack, employ force, or seriously intimidate or resist a n y person in authority or a n y of his agents, w h i l e e n g a g e d in the p e r f o r m a n c e of official duties, or on occasion of such p e r f o r m a n c e , shall suffer the p e n a l t y of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s a n d a fine not e x c e e d i n g 1,000 pesos, w h e n the assault is committed w i t h a w e a p o n or w h e n the offender is a p u b l i c officer or e m p l o y e e , or w h e n the offender lays h a n d s u p o n a p e r s o n in a u t h o r i t y . If none of these circumstances be p r e s e n t , the p e n a l t y of prision correccional in its m i n i m u m p e r i o d a n d a fine not e x c e e d i n g P500 shall be imposed. A r t . 149. Indirect assaults. — T h e p e n a l t y of prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s a n d a fine not exceeding 500 pesos shall be i m p o s e d u p o n a n y p e r s o n w h o shall m a k e use o f force o r i n t i m i d a t i o n u p o n a n y p e r s o n coming to the aid of the authorities or their a g e n t s on occasion of the commission of a n y of the crimes defined in the next p r e c e d i n g article. A r t . 150. Disobedience to summons issued by the National Assembly, its committees or subcommittees, by the Constitutional Commissions, its committees, subcommittees or divisions. — T h e penalty of arresto mayor or a fine r a n g i n g f r o m t w o h u n d r e d t o one t h o u s a n d pesos, o r b o t h such f i n e a n d imprisonment, shall b e i m p o s e d u p o n a n y p e r s o n w h o , h a v i n g b e e n d u l y s u m m o n e d to attend as a w i t n e s s b e f o r e 442

ASSAULT U P O N A N D RESISTANCE A N D D I S O B E D I E N C E TO P E R S O N S IN AUTHORITY A N D THEIR AGENTS

the N a t i o n a l A s s e m b l y , its special or s t a n d i n g committees a n d subcommittees, the Constitutional Commissions a n d its committees, subcommittees, or divisions or before any commission o r committee c h a i r m a n o r m e m b e r authorized to s u m m o n witnesses, refuses, w i t h o u t legal excuse, to obey such s u m m o n s , o r b e i n g p r e s e n t b e f o r e a n y such legislative or constitutional b o d y or official, refuses to be s w o r n or p l a c e d u n d e r affirmation o r t o a n s w e r a n y legal i n q u i r y o r to p r o d u c e a n y b o o k s , p a p e r s , d o c u m e n t s , or r e c o r d s in his possession, w h e n r e q u i r e d by t h e m to do so in the exercise o f t h e i r functions. T h e s a m e penalty shall b e i m p o s e d u p o n a n y p e r s o n w h o shall r e s t r a i n a n o t h e r f r o m attending as a witness, or w h o shall i n d u c e d i s o b e d i e n c e to a s u m m o n or refusal to be s w o r n by a n y such b o d y or official. (As amended by Com. Act No. 52.) A r t . 151. Resistance and disobedience to a person in authority or the agents of such person. — T h e penalty of arresto mayor a n d a fine not e x c e e d i n g 500 pesos shall be imposed u p o n a n y p e r s o n w h o not b e i n g i n c l u d e d in the provisions of the p r e c e d i n g articles shall resist or seriously disobey any p e r s o n in authority, or the agents of such person, while e n g a g e d in the p e r f o r m a n c e of official duties. W h e n the disobedience to an agent of a person in authority is not of a serious n a t u r e , the penalty of arresto menor or a fine r a n g i n g f r o m 10 to 100 pesos shall be imposed u p o n the offender. A r t . 152. Persons in authority and agents of persons in authority — Who shall be deemed as such. — In a p p l y i n g the provisions of the p r e c e d i n g a n d other articles of this C o d e , any person directly vested w i t h jurisdiction, w h e t h e r as an individual or as a m e m b e r of some court or g o v e r n m e n t a l corporation, b o a r d or commission, shall be d e e m e d a person in authority. A b a r a n g a y captain a n d a b a r a n g a y c h a i r m a n shall also be d e e m e d a p e r s o n in authority. A n y p e r s o n w h o , b y direct provision o f l a w o r b y election or by a p p o i n t m e n t by competent authority, is charged with the maintenance of public o r d e r a n d the protection and security of life a n d property, such as a b a r r i o councilman, b a r r i o policeman a n d b a r a n g a y leader, and any person w h o 443


comes to the aid of persons in authority, shall be d e e m e d an agent of a person in authority. In a p p l y i n g the provisions of Articles 148 a n d 151 of this C o d e , teachers, professors, a n d persons c h a r g e d with the supervision of p u b l i c or duly r e c o g n i z e d p r i v a t e schools, colleges a n d universities, a n d l a w y e r s in the actual p e r f o r m a n c e of their professional duties or on the occasion of such p e r f o r m a n c e shall be d e e m e d p e r s o n s in authority. (As amended by B.P. Big. 837, approved June 12, 1985.)

•

What is the rationale for penalizing direct assault? Direct Assault ( D A ) is a crime manifesting offender's spirit of lawlessness displayed in the commission of an act indicative of utter lawlessness or spirit against the rule of law. This is shown by accused in attacking, injuring or assaulting a person in authority ( P A ) or an agent of a person in authority ( A P A ) who are the visible representatives of the law.

•

How is direct assault committed? There are two ways of committing D A : a.

By employing violence or force with for the purpose of attaining any of the objectives of rebellion or sedition except that the offenders are not numerous enough to constitute public uprisings. (Hence, this is also called rebellion by a handful.) T h e offended party or victim need not be a public officer but may be a certain social class.

b.

By attacking or laying hands upon a PA or an A P A .

There are two ways of committing atentados contra la autoridad o susagentes. T h e first is not a true atentadoas it is tantamount to rebellion or sedition, except that there is no public uprising. On the other hand, the second mode is the more common way of committing assault and is aggravated when: (1) there is a weapon employed in the attack, or (2) the offender is a public officer, or (3) the offender lays hands upon a public authority. (People v. Abalos, July 1996)

•

Define (a) person in authority; (b) agent of a person in authority. Person in authority — any public officer vested with jurisdiction recognized in law and clothed with authority in 444

ASSAULT U P O N A N D RESISTANCE A N D D I S O B E D I E N C E TO P E R S O N S IN AUTHORITY A N D THEIR A G E N T S

law, whether individually or as a member of board or corporate body. Section 388 of the Local Government Code expanded the definition of a P A by expressly providing that for purposes of the R P C , the punong barangay, sangguniang barangay , and of the lupongtagapamayapa in each barangay shall be deemed as persons in authority in their jurisdictions. (People v. Sion, G.R. No. 109617, August 11, 1997) Teachers, lawyers and heads of schools recognized by the government are PA solely for purposes of Articles 148 and 151 and in connection with their duties. Outside of this, they are not considered P A . A g e n t of a person in authority — A n y person who, by direct provision of law, by election or appointment by competent authority is charged with the maintenance of order and the protection and security of life and property, e.g., councilman or policeman and any person who comes to the aid of a person in authority. Security guards are not included for they are not public officials. •

What are the elements of the common form of direct assault? T h e elements of DA of the second form are:

•

(1)

there must be an attack, use of force or serious intimidation or resistance upon a PA or his agent;

(2)

the assault was made when the P A or A P A was performing his duties or on the occasion of such performance; and

(3)

the accused knew that the victim is a PA or A P A , that is, that the accused must have the intention to offend, injure or assault the offended party as a PA or an A P A . (id.)

Can direct assault be committed during rebellion or sedition? N o . This crime cannot be committed in times of rebellion or sedition because DA requires that there is no public uprising. Article 148 requires that the assault be "without a public uprising." (id.)

•

What is the effect of direct assault, on the felony? Generally, DA is complexed with other crimes resulting from the assault, e.g., DA with murder to be charged in one 445


information only. But when the consequence of the act is slight physical injury, it is DA only because the latter is the principal offense and the material result of the act (the slight physical injury) cannot be separated from the assault, as the defiant conduct against the law is the spirit behind the act. DA is a crime brought about by the spirit of lawlessness displayed in the commission of the act. The act must be indicative that the offender is utterly lawless or against the rule of law. When an attack is made to a PA or A P A while in the performance of duty, DA is committed whatever may be the offender's reason for attacking. •

Relate less serious physical injuries to direct assault. Article 265 makes the laying of hands upon a PA ( A P A not included) qualifying provided that the crime thereby committed is not D A . That is, if the laying of hands is not by reason of his being a PA or due to the performance of his function, the crime is qualified less serious physical injuries. If the laying of hands is during or by reason of the performance of duties of a PA and results to less serious physical injuries, a complex crime of DA with less serious physical injuries is committed. If the injury is other than less serious physical in griefs, and if is not D A , the generic aggravating circumstance of rank may be appreciated.

•

When the assault on the person in authority or his agent results to death, what crime is committed? T h e assault resulting in the killing of the PA or A P A , gives rise to the complex crime of DA with murder or homicide. LL was a member of the then I N P and thus was an A P A . He was in the actual performance of his duties when assaulted for he was maintaining peace and order during the fiesta. TT personally knew LL to be a policeman who in fact was wearing his uniform. LL was struck from behind while he was being confronted at the same time by the appellant's father. He deliberately went behind the victim whom he then hit with a piece of wood he deliberately got for the purpose. TT resorted to such means to avoid any risk to him knowing that his quarry was a policeman who could readily mount a defense. These should have sufficiently deterred the appellant from attacking him,

ASSAULT U P O N A N D RESISTANCE A N D D I S O B E D I E N C E TO P E R S O N S IN AUTHORITY A N D THEIR A G E N T S

and defiant conduct clearly demonstrates that he really had the criminal intent to assault and injure an agent of the law (id.) •

Relate "ignorance of law" and "ignorance of fact" to direct assault. Generally, the offender must be aware that the offended is possessed of authority. Hence, if he does not know that the offended is a public officer, direct assault is not committed. This is subject, however, to the rule of "ignorance of the law excuses no one": whether a public officer is a PA or an A P A within the meaning of Article 152 is a question of law, ignorance of which is not excused. T h a t means the offender does not have to know that victim is included in Article 152 as long as he knows that he is a public officer which is a question of fact, ignorance of which negatives liability for DA but not for the material result of the assault.

•

The qualifying circumstance of laying hand applies to whom? T h e circumstance applies to a PA only as expressly provided in the law. It does not include laying hand upon an A P A . Hence, physical violence such as pushing a PA qualifies the D A ; this is not necessarily true to an A P A . Under Article 151, resistance and disobedience to a PA is always serious; whereas, to an A P A , it may or may not be serious (paragraph 2). T h e act of the offender is merely a reaction not an aggression required in D A .

•

When is laying of hands upon a public officer not direct assault? Exceptionally, if in the exercise of his function, the PA or A P A acted illegally by overstepping the bounds of his authority, there is no DA because by so acting irregularly and illegally, he ceases to be a public officer. One is deemed a public officer only when acting within the scope of his authority. If the public officer assaulted is not a P A , (for example, a municipal ant) the assault on him is an aggravating circumstance under Article 14(2). If he is a P A , the crime is DA, thus, not anymore aggravating for the assault is the basis of DA and Article 62, no. 2 provides that circumstances which are crimes by themselves shall no longer be considered. 447


•

Who can become an agent of a person in authority? Article 152 says that a civilian who comes to the aid of a PA becomes an A P A . It did not mention A P A . It appears that if he came to the aid of an A P A , he does not become an A P A . But Article 149 says that indirect assault ( I A ) is committed by attacking or assaulting any PA or A P A showing that the civilian becomes an A P A even if the one aided is an A P A . Article 149 should prevail as far as criminal liability for IA is concerned for that article is the specific provision on how IA is committed whereas Article 152 is a general provision on who is an A P A .

•

When the offended is a civilian who aids a person in authority or his agent, what crime or crimes are committed? W h e n the civilian comes to the aid of a PA or an A P A , he himself becomes an A P A . Consequently, the assault on him constitutes IA under Article 149. Therefore, for IA to be committed there must be D A . Without D A , there can be no IA for there would be no occasion for the civilian to extend aid to a PA or A P A . Thus, two crimes committed — DA for the attack on the PA or A P A and IA for the attack on the aiding civilian. In fine, for IA to be committed there must be: 1.

Assault on the PA or A P A ( D A ) ;

2.

A civilian comes to the aid of the PA or A P A on the occasion of the assault on them; and

3.

T h e civilian who pro hac vice becomes an A P A is also assaulted.

Chapter Five P U B L I C DISORDERS A r t . 153. Tumults and other disturbances of public orders — Tumultuous disturbance or interruption liable to cause disturbance. — T h e p e n a l t y of arresto mayor in its m e d i u m p e r i o d to prision correccional in its m i n i m u m p e r i o d a n d a fine not exc e e d i n g 1,000 pesos shall be i m p o s e d u p o n a n y p e r s o n w h o shall c a u s e a n y s e r i o u s d i s t u r b a n c e in a p u b l i c place, office, o r establishment, o r shall i n t e r r u p t o r d i s t u r b p u b l i c perform a n c e s , functions or g a t h e r i n g s , or peaceful meetings, if the act is not i n c l u d e d in the p r o v i s i o n s of Articles 131 to 132. T h e p e n a l t y next h i g h e r i n d e g r e e shall b e imposed u p o n p e r s o n s c a u s i n g a n y d i s t u r b a n c e or i n t e r r u p t i o n of a tumultuous character. T h e d i s t u r b a n c e o r i n t e r r u p t i o n shall b e d e e m e d t o b e t u m u l t u o u s i f c a u s e d b y m o r e t h a n three persons w h o a r e a r m e d o r p r o v i d e d w i t h m e a n s o f violence. T h e p e n a l t y of arresto mayor shall be imposed u p o n any p e r s o n w h o i n a n y meeting, association, o r p u b l i c place, shall m a k e a n y o u t c r y t e n d i n g to incite r e b e l l i o n or sedition or in such place shall d i s p l a y p l a c a r d s o r e m b l e m s w h i c h p r o v o k e a d i s t u r b a n c e of the p u b l i c o r d e r . T h e p e n a l t y of arresto menor a n d a fine not to exceed 200 pesos shall be i m p o s e d u p o n those persons w h o in violation of the provisions contained in the last clause of Article 85, shall b u r y w i t h p o m p the b o d y of a p e r s o n w h o has been legally executed. A r t . 154. Unlawful use of means of publication and unlawful utterances. — T h e penalty of arresto mayor a n d a fine r a n g i n g f r o m 200 to 1,000 pesos shall be imposed upon: 1.

A n y p e r s o n w h o by means of printing, lithography, or any other means of publication shall publish or 449


cause to be p u b l i s h e d as n e w s any false n e w s w h i c h m a y e n d a n g e r the p u b l i c o r d e r , or cause d a m a g e to the interest or credit of the State;

•

2.

A n y person w h o by the same means, or by w o r d s , utterances or speeches, shall e n c o u r a g e disobedience to the l a w or to the constituted authorities or praise, justify, or extol a n y act p u n i s h e d by l a w ;

3.

A n y person w h o shall maliciously p u b l i s h or cause to be p u b l i s h e d a n y official resolution or d o c u m e n t without p r o p e r authority, o r b e f o r e they h a v e b e e n p u b l i s h e d officially; or

4.

A n y p e r s o n w h o shall p r i n t , p u b l i s h , or distribute or cause to be p r i n t e d , p u b l i s h e d , or d i s t r i b u t e d books, p a m p h l e t s , p e r i o d i c a l s , o r leaflets w h i c h d o not b e a r the r e a l printer's n a m e , o r w h i c h a r e classified as a n o n y m o u s . (As amended by Com. Act No. 202.)

What crimes are treated in Article 153? There are four acts constituting tumults disturbance of public order: in

any

public

and other

a.

Serious disturbance establishment.

place,

office

or

b.

Interruption or disturbance of public performance, function, or gathering if the act is not covered by: Article 131 — interruption of peaceful meeting or Article 132 — interruption of religious worship In Articles 131 and 132, the offender is a public officer and the act is prohibiting, preventing, or dissolving peaceful meeting or religious worship. When the acts in [a] and [b] are committed by more than three [at least four] armed persons or provided with means of violence the crime is tumultuous disturbance.

c.

M a k i n g any outcry tending to incite to rebellion or sedition, displaying placards or emblems which disturb public order; and

PUBLIC D I S O R D E R S

d.

•

Burying with pomp the body of a person legally executed (death penalty).

Acts of disturbance or interruption could result in what crimes? T h e disturbance is either of public order (Article 153) or inciting to rebellion or sedition (Articles 138, 142). If the person w h o makes statements tending to incite the listeners to rise to rebellion or sedition had that original criminal intent, it is inciting to rebellion or sedition; otherwise, it is simply disturbance of public order.

•

What is public disorder? Public disorder is a serious disturbance in a place where performance of public function is being held, if the disturbance is not covered by Articles 131 and 132. If the disturbance is not serious, the crime is alarms and scandals under Article 155. If the offenders are armed, the disturbance is designated tumultuous. "Arms" refers to clubs, stones, or any means of fatal violence, not exclusively firearms.

•

Burying a person legally put to death constitutes what crime? It constitutes violation of Article 153 (last paragraph). "Legally" means that the offender was imposed the death penalty, the conviction was affirmed with finality by the Supreme Court, and the convict was executed. This is penalized because by so burying with pomp a person legally executed, it shows the defiant attitude of the offenders and their lack of respect for the rule of law. However, R . A . 9346 had prohibited the imposition of the death penalty; thus, this crime can no longer be committed.

A r t . 155. Alarms and scandals. — T h e penalty of arresto menor or a fine not e x c e e d i n g 200 pesos shall be imposed upon: 1.

A n y p e r s o n w h o , w i t h i n any t o w n or public place, shall d i s c h a r g e any firearm, rocket, firecracker, or other explosive calculated to cause a l a r m or danger;

2.

A n y p e r s o n w h o shall instigate or take an active p a r t in any c h a r i v a r i or other disorderly meeting 451


offensive to tranquility;

•

•

another

or

prejudicial

to

public

3.

A n y person w h o , w h i l e w a n d e r i n g a b o u t at night or w h i l e e n g a g e d in any other nocturnal amusements, shall d i s t u r b the p u b l i c peace; or

4.

A n y person w h o , w h i l e intoxicated or o t h e r w i s e , shall cause a n y d i s t u r b a n c e or s c a n d a l in p u b l i c places, p r o v i d e d that the circumstances of the case shall not m a k e the p r o v i s i o n s of A r t i c l e 153 applicable.

What are the acts penalized as alarms and scandals? a.

Discharge of firearms, firecrackers, and other explosives in public place;

b.

Charivari;

c.

Engaging in nocturnal amusement disturbing the public place; or

d.

A n y disturbance or scandal in public places not amounting to tumults.

What variant crimes can arise from the use of firearms? a.

Alarms and scandals (Article 155) — offender discharges a firearm in a public place but the firearm is not pointed to a particular person when discharged.

b.

Illegal discharge of firearm (Article 254) — the firearm was directed to a particular person who was not hit if intent to kill is not proved.

c.

Attempted or frustrated homicide or murder — the offended was hit with intent to kill, automatically, the crime is at least attempted homicide or murder; frustrated if the wound is mortal. It has been held that when one uses a lethal weapon against another, intent to kill is inherent. Even if the offended was not hit, but it was proved that there was intent to kill, there is at least attempted homicide.

d.

Physical Injuries — if the person was injured but there was no intent to kill. 452

PUBLIC D I S O R D E R S

•

e.

Threat — if the weapon is not discharged but aimed at another. (Other light threat if drawn in a quarrel but not in self-defense.)

f.

Grave coercion — if the threat was direct, immediate and serious and the person is compelled or prevented to do something against his will.

g.

Illegal possession of firearm - if the firearm is unlicensed provided no other crime is committed by means of such firearm.

What is charivari? Charivari is a mock serenade where the offender actually disturbs the peace by using cans, pans, utensils, etc. This brings about the crime of alarms and scandals. This is equivalent to breach of the peace in municipal ordinances.

•

Creating noise and annoyance may bring about what offenses? a.

Alarms and scandals — Disturbing the public in general by playing or singing karaoke noisily during midnight in the neighborhood.

b.

Unjust vexation — If the noise is directed to a particular person or family (light coercion under Article 287).

A r t . 156. Delivery of prisoner from jail. — T h e penalty of arresto mayor in its m a x i m u m p e r i o d to prision correccional i n its m i n i m u m p e r i o d shall b e i m p o s e d u p o n a n y p e r s o n w h o shall r e m o v e f r o m any j a i l o r p e n a l establishment any person confined t h e r e i n or shall h e l p the escape of such person, by m e a n s of violence, intimidation, or b r i b e r y . If other means a r e used, the penalty of arresto mayor shall be imposed. If the escape of the p r i s o n e r shall take place outside of said establishments by t a k i n g the g u a r d s by surprise, the same penalties shall be i m p o s e d in their m i n i m u m period. (See notes under Articles 157 to 159.)

453

Chapter Six EVASION OF SERVICE OF SENTENCE A r t . 157. Evasion of service of sentence. — T h e penalty of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s shall be imposed u p o n a n y convict w h o shall e v a d e service of his sentence by escaping d u r i n g the t e r m of his i m p r i s o n m e n t by reason of final j u d g m e n t . H o w e v e r , if such e v a s i o n or escape shall h a v e t a k e n place by m e a n s of u n l a w f u l entry, b y b r e a k i n g d o o r s , w i n d o w s , gates, w a l l s , roofs, floors, o r by using picklocks, false keys, disguise, deceit, violence or intimidation, o r t h r o u g h c o n n i v a n c e w i t h o t h e r convicts or employees of the p e n a l institution, the p e n a l t y shall be prision correccional in its m a x i m u m p e r i o d . A r t . 158. Evasion of service of sentence on the occasion of disorders, conflagrations, earthquakes, or other calamities. — A convict, w h o shall e v a d e the service of his sentence, by leaving the p e n a l institution w h e r e h e shall h a v e b e e n confined, on the occasion of d i s o r d e r r e s u l t i n g f r o m a conflagration, e a r t h q u a k e , explosion, o r s i m i l a r c a t a s t r o p h e , or d u r i n g a mutiny in w h i c h he h a s not p a r t i c i p a t e d , shall suffer an increase of one-fifth of the time still r e m a i n i n g to be served u n d e r the o r i g i n a l sentence, w h i c h in no case shall exceed six months, if he shall fail to g i v e h i m s e l f up to the authorities w i t h i n forty-eight h o u r s f o l l o w i n g the issuance of a p r o c l a m a t i o n by the C h i e f E x e c u t i v e a n n o u n c i n g the ing a w a y o f such calamity. Convicts, w h o , u n d e r the c i r c u m s t a n c e s m e n t i o n e d i n the p r e c e d i n g p a r a g r a p h , shall g i v e themselves u p t o the authorities w i t h i n the a b o v e m e n t i o n e d p e r i o d of 48 h o u r s , shall be entitled to the d e d u c t i o n p r o v i d e d in A r t i c l e 98. A r t . 159. Other cases of evasion of service of sentence. — T h e penalty of prision correccional in its m i n i m u m p e r i o d shall b e imposed u p o n the convict w h o , h a v i n g b e e n g r a n t e d

454

E V A S I O N OF SERVICE OF SENTENCE

conditional p a r d o n b y the C h i e f E x e c u t i v e , shall violate any of the conditions of such p a r d o n . H o w e v e r , if the penalty remitted b y the g r a n t i n g o f s u c h p a r d o n b e h i g h e r than six y e a r s , the convict shall then suffer the u n e x p i r e d portion of his o r i g i n a l sentence. •

W h o is the offender in Article 156 (Delivery of Prisoner)? T h e offender is any person who is N O T the custodian of the prisoner. If it w e r e the custodian who connived in the escape or was negligent, he is liable for infidelity in the custody of prisoner, either through dolo or negligence under Articles 223, 224, and 225.

•

What is the crime if the escapee is a detention prisoner or serving final judgment? W h e r e the prisoner is serving sentence by final judgment, he is liable for evasion of service of sentence. If he is a detention prisoner, there is no sentence to evade, Article 157 is not applicable, for it specifies "convict." T h e offense of the detention prisoner should fall under Article 156 which refers to "any person confined therein" if there was conspiracy between the detention prisoner and the one who helped in his escape. T h e detention prisoner in that case is either a principal by inducement or by direct participation. In the latter case, he is a principal by direct participation if there was no prior agreement for his escape but he acquiesced at the time of escape which is implied conspiracy.

•

What is the condition precedent for entitlement to the loyalty time allowance provided in Article 98 in relation to Article 158? To be entitled to the time allowance, the prisoner must evade his sentence by leaving the institution. If he does not leave, he cannot belong to the class of convicts who, having evaded the service of their sentence by leaving the penal institution give up within 48 hours. There is no assurance that had they left the penal institution, they would have returned voluntarily to take up the privations of prison life impelled by that sense of loyalty to the Government which ought to be rewarded with a special allowance.

455


•

What calamities are covered in Article 158? Article 158 covers disorders resulting from conflagration, earthquake, explosion, or similar catastrophe (such as lahar flow, volcanic eruption, landslide), and mutiny. Only circumstances of a nature similar to those previously enumerated shall be covered by the general term of "similar catastrophe." (ejusdem generis)

•

What is mutiny? Does it include riot? Mutiny is an organized unlawful resistance to a superior; a sedition; a revolt. (Moreno, Philippine Law Dictionary) Riot is not included or analogous to mutiny and Article 158 does not provide for analogous situation for mutiny. Mutiny is the revolt of subordinates against their superiors. Since prisoners are not subordinates of prison authorities, riot is not among the causes for evasion which w i l l entitle the loyal prisoner who returns after its cessation, to the loyalty time allowance provided in Article 98. Rather, Article 157 should apply in case of riot for it uses the word "violence" as a means of escaping.

•

How is evasion committed in Article 158? Evasion lies in the failure to return, not in leaving the penal establishment because leavingis encouraged in cases of disorders enumerated therein. This is shown by the fact that there is for those w h o l e a v e and thereafter return after the disorder ceases. Thus: 1.

Leaving without returning - 1/5 addition to the remaining sentence which should not be more than six months, that is, 1/5 of the balance of the sentence to be served or six months whichever is lesser

2.

N o t leaving - no deduction, penalty as is

3.

L e a v i n g and thereafter returning within 48 hours - 1/5 deduction from his sentence as provided under A r t i c l e 98:

Art. 98. Special time allowance for loyalty. — A deduction of 1/5 of the period of his sentence shall be granted to any prisoner who, having evaded the service of his sentence under the circumstances mentioned in Article 158xxx."

456

E V A S I O N OF SERVICE OF SENTENCE

The deduction for loyalty under Article 98 should be based on the o r i g i n a l sentence as the article did not qualify the word "sentence" unlike in Article 158 which expressly stated that the sentence to be added shall be based on the period "still remaining to be served." When the law does not qualify, neither should the court do. Moreover, Article 158 specified that the additional sentence should not exceed six months showing the intent of Congress to limit the penalty to the accused, whereas in Article 98, there is no such qualification. Finally, is all doubts must be construed in favor of the accused. Since it is more favorable to him that the lowering is on the basis of the original sentence, then that construction should be followed. »

Why is violation of conditional pardon an evasion of sentence? It is evasion because when the prisoner accepted the condition, no matter how onerous, he must respect the condition. It is a contract between him and the President. Otherwise, he is deemed to have accepted the conditional pardon only to be relieved of the penalty. Further, conditional pardon is extended on the basis of good conduct in prison and the presumption that the pardonee shall not commit an offense any more. If he violates the condition of his pardon, it shows that he is not after all a reformed convict.

•

Is violation of conditional pardon a substantive offense? Violation of conditional pardon is not a substantive offense if the penalty remitted is more than six years since the pardonee is merely made to serve the balance of the penalty for the crime for which he was pardoned. But if the penalty remitted is six years or less, it is a substantive offense for there is a new penalty for the violation.

•

Summarize the interconnection among Articles 156, 157 and 158 vis-a-vis 223, 224 and 225. Delivery of prisoner from jail is committed by: 1.

Detention prisoner if he participated in the plan to make him escape or at least acquiesced thereto;

2.

A convict whose conviction is not yet final or on appeal under the same condition; and 457


3.

A person rescuing prisoner from jail. He can be a civilian or a public officer who is not the prisoner's custodian. Evasion of service of sentence is by:

1.

A prisoner in confinement by final judgment;

2.

A pardonee violating the conditions of his pardon; and

3.

A convict sentenced to destierro who entered the prohibited area.

Infidelity in the custody of prisoner: 1.

A public officer who consented or connived in the escape of convict or detention prisoner (Article 223) and is the custodian of the prisoner.

2.

A public officer-custodian of the prisoner whose negligence caused the evasion. (Article 224)

3.

A private person to whom the custody of the prisoner was confided who consented, connived, or was negligent, causing the evasion. (Article 225)

Thus, when a prisoner by final judgment is rescued from jail by his allies in connivance with a jail guard, the rescuing civilians are liable for delivery, the jail guard for infidelity and the prisoner for evasion.

Chapter Seven COMMISSION OF A N O T H E R CRIME D U R I N G SERVICE OF P E N A L T Y IMPOSED FOR A N O T H E R PREVIOUS OFFENSE A r t . 160. Commission of another crime during service of penalty imposed for another previous offense — Penalty. — Besides the p r o v i s i o n s of R u l e 5 of A r t i c l e 62, a n y p e r s o n w h o shall commit a felony after h a v i n g b e e n convicted by final j u d g m e n t , b e f o r e b e g i n n i n g t o s e r v e such sentence, o r w h i l e s e r v i n g the s a m e , shall b e p u n i s h e d b y the m a x i m u m p e r i o d o f the p e n a l t y p r e s c r i b e d b y l a w for the n e w felony. A n y convict of the class r e f e r r e d to in this article, w h o is not a h a b i t u a l c r i m i n a l , shall be p a r d o n e d at the a g e of seventy y e a r s if he shall h a v e a l r e a d y s e r v e d out his o r i g i n a l sentence, or w h e n he shall complete it after r e a c h i n g said a g e , unless b y r e a s o n o f his c o n d u c t o r other circumstances h e shall not b e w o r t h y o f such clemency. •

What is quasi-recidivism? It is the commission by the convict of another felony before beginning to serve sentence or while serving the same. The crime must be a felony although not necessary that it be the same as the original felony. T h e first crime may or may not be a felony .The liability is besides that for habitual delinquency. Its effect is to impose on the offender the maximum period of the penalty prescribed by law for the new felony plus the penalty for habitual delinquency if applicable.

•

Is quasi-recidivism a felony? N o . It is a special aggravating circumstance against an offender who has been convicted by final judgment and commits a felony thereafter, since it has no penalty of its own and its effect is to increase the penalty for the new felony to the maximum period. 459

TITLE FOUR C R I M E S AGAINST PUBLIC INTEREST Chapter One FORGERIES Section O n e . — Forging the seal of the Government of the Philippine Island, the signature or stamp of the Chief Executive A r t . 161. Counterfeiting the great seal of the Government of the Philippine Island, forging the signature of the Chief Executive. — T h e penalty of reclusion temporal shall be i m p o s e d u p o n a n y person w h o shall f o r g e the G r e a t S e a l o f the G o v e r n m e n t o f the P h i l i p p i n e I s l a n d s or the s i g n a t u r e or the s t a m p of the Chief Executive. A r t . 162. Using forged signature or counterfeit seal or stamps. — T h e penalty of prision mayor shall be i m p o s e d u p o n a n y person w h o shall k n o w i n g l y m a k e use o f the counterfeit seal o r forged s i g n a t u r e o r s t a m p m e n t i o n e d i n the p r e c e d i n g article. utter = put into circulation

Section T w o . — Counterfeiting coins A r t . 163. Making and importing and uttering false coins. — A n y p e r s o n w h o m a k e s , imports, o r utters false coins, i n connivance w i t h counterfeiters, i m p o r t e r s , shall suffer: 1.

Prision mayor in its m i n i m u m a n d m e d i u m p e r i o d s a n d a fine not to e x c e e d 10,000 pesos, if the counterfeited coin be silver coin of the P h i l i p p i n e s or coin of the C e n t r a l B a n k of the P h i l i p p i n e s of ten-centavo d e n o m i n a t i o n o r a b o v e .

2.

Prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s a n d a fine not to exceed 2,000 pesos, if the 460

FORGERIES

counterfeited coins be a n y of the m i n o r coinage of the P h i l i p p i n e s or of the C e n t r a l B a n k of the P h i l i p p i n e s b e l o w ten-centavo denomination. 3.

Prision correccional in its m i n i m u m p e r i o d a n d a fine not to e x c e e d 1,000 pesos, if the counterfeited coin be c u r r e n c y of a f o r e i g n country. (As amended by R.A. No. 4202, approved June 19, 1965.)

A r t . 164. Mutilation of coins — Importation and utterance of mutilated coins. — T h e p e n a l t y of prision correccional in its m i n i m u m p e r i o d a n d a fine not to exceed 2,000 pesos shall be i m p o s e d u p o n a n y p e r s o n w h o shall mutilate coins o f the legal c u r r e n c y o f the ( U n i t e d States o r o f the) P h i l i p p i n e I s l a n d o r i m p o r t o r utter m u t i l a t e d c u r r e n t coins, i n c o n n i v a n c e w i t h mutilators or importers. A r t . 165. Selling of false and mutilated coin, without connivance. — T h e p e r s o n w h o k n o w i n g l y , a l t h o u g h w i t h o u t the c o n n i v a n c e m e n t i o n e d in the p r e c e d i n g articles, shall possess false or m u t i l a t e d coin w i t h intent to utter the same, or shall actually utter such coin, shall suffer a penalty l o w e r by one d e g r e e t h a n that p r e s c r i b e d i n said articles. ( T h e c r i m e s o f counterfeiting, i m p o r t i n g a n d mutilating coins h a v e b e e n r e n d e r e d obsolete b y the economic reality that o u r coins h a v e n o m o r e intrinsic v a l u e . ) Section T h r e e . — Forging treasury or bank notes, obligations and securities; importing and uttering false or forged notes, obligations and securities A r t . 166. Forging treasury or bank notes or other documents payable to bearer; importing, and uttering such false or forged notes and documents. — T h e f o r g i n g or falsification of treasury or b a n k notes or certificates or other obligations a n d securities p a y a b l e to b e a r e r a n d the importation a n d uttering in connivance w i t h forgers or importers of such false or forged obligations a n d notes, shall be p u n i s h e d as follows: 1.

By reclusion temporal in its m i n i m u m period and a fine not to exceed 10,000 pesos, if the document w h i c h has b e e n falsified, counterfeited, or altered is an obligation or security of the Philippine Islands. 461


T h e w o r d s "obligation or security [of the U n i t e d States o r ] of the P h i l i p p i n e Islands" shall be held to m e a n all b o n d s , certificates of indebtedness, national b a n k notes, coupons, [ U n i t e d States o r ] P h i l i p p i n e Islands notes, t r e a s u r y notes, fractional notes, certificates of deposit, bills, checks, or drafts for money, d r a w n b y o r u p o n a u t h o r i z e d officers of the U n i t e d States or of the P h i l i p p i n e I s l a n d s , a n d other representatives of v a l u e , of w h a t e v e r denomination, w h i c h h a v e b e e n o r m a y b e issued u n d e r any A c t of the C o n g r e s s of the U n i t e d States or the P h i l i p p i n e L e g i s l a t u r e . 2.

By prision mayor in its m a x i m u m p e r i o d a n d a fine not to exceed 5,000 pesos, w h e n the f o r g e d or altered d o c u m e n t is a c i r c u l a t i n g note issued by any b a n k i n g association d u l y a u t h o r i z e d b y l a w t o issue the same.

3.

By prision mayor in its m e d i u m p e r i o d a n d a fine not to exceed 5,000 pesos, if the falsified or counterfeited d o c u m e n t w a s issued by a f o r e i g n government.

4.

By prision mayor in its m i n i m u m p e r i o d a n d a fine not to exceed 2,000 pesos, w h e n the f o r g e d or altered d o c u m e n t is a c i r c u l a t i n g note or bill issued by a f o r e i g n b a n k d u l y a u t h o r i z e d thereof.

A r t . 167. Counterfeiting, importing, and uttering instruments not payable to bearer. — A n y p e r s o n w h o shall f o r g e , i m p o r t or utter, in c o n n i v a n c e w i t h the f o r g e r s or i m p o r t e r s , a n y instrument p a y a b l e to o r d e r or o t h e r d o c u m e n t of credit not p a y a b l e to b e a r e r , shall suffer the penalties of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s a n d a fine not e x c e e d i n g 6,000 pesos. T h e reference i n the R e v i s e d P e n a l C o d e t o the U n i t e d States should n o w b e c o n s i d e r e d a s not w r i t t e n b e c a u s e the P h i l i p p i n e s is no l o n g e r p a r t of the C o m m o n w e a l t h thus there is no m o r e r e a s o n or l e g a l basis for the p r e f e r e n t i a l treatment to the U n i t e d States o v e r other countries. T h e R e p u b l i c of the P h i l i p p i n e s is an i n d e p e n d e n t nation. I n d e e d it should not be r e f e r r e d to as the P h i l i p p i n e I s l a n d s . 462

FORGERIES

A r t . 168. Illegal possession and use of false treasury or bank notes and other instruments of credit. — U n l e s s the act be one of those c o m i n g u n d e r the p r o v i s i o n s of a n y of the p r e c e d i n g articles, a n y p e r s o n w h o shall k n o w i n g l y use or have in his possession, w i t h intent to use, a n y of the false or falsified instruments r e f e r r e d to in this section, shall suffer the p e n a l t y next l o w e r i n d e g r e e t h a n that p r e s c r i b e d i n said articles. A r t . 169. How forgery is committed. — T h e f o r g e r y r e f e r r e d to in this section m a y be committed by a n y of the following means:

•

1.

By g i v i n g to a t r e a s u r y or b a n k note or any ins t r u m e n t p a y a b l e t o b e a r e r o r t o o r d e r mentioned t h e r e i n , the a p p e a r a n c e of a t r u e a n d g e n u i n e document.

2.

By e r a s i n g , substituting, counterfeiting, or altering b y a n y m e a n s the f i g u r e s , letters, w o r d s , o r signs contained therein.

When is counterfeiting not forgery? T h e subject of forgery should be treasury or bank notes. If the subject of forgery were a document other than these, the crime would be falsification. Section F o u r . — Falsification of legislative, public, commercial and private documents, and wireless telegraph and telephone messages

A r t . 170. Falsification of legislative documents. — T h e penalty of prision correccional in its m a x i m u m p e r i o d a n d a fine not e x c e e d i n g 6,000 pesos shall be imposed u p o n any person w h o , w i t h o u t p r o p e r a u t h o r i t y therefor alters any bill, resolution, o r o r d i n a n c e enacted o r a p p r o v e d o r p e n d i n g a p p r o v a l b y either H o u s e of the L e g i s l a t u r e or any provincial b o a r d or m u n i c i p a l council. A r t . 171. Falsification by public officer, employee, or notary or ecclesiastical minister. — T h e penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary w h o , taking advantage of 463


his official position, shall falsify a document by committing any of the following acts: 1.

Counterfeiting or imitating signature, or r u b r i c ;

any

handwriting,

2.

C a u s i n g it to a p p e a r that persons h a v e p a r t i c i p a t e d in any act or p r o c e e d i n g w h e n they d i d not in fact so participate;

3.

A t t r i b u t i n g to persons w h o h a v e p a r t i c i p a t e d in an act or p r o c e e d i n g statements other t h a n those in fact m a d e by them;

4.

M a k i n g untruthful statements in a n a r r a t i o n of facts;

5.

A l t e r i n g t r u e dates;

6.

M a k i n g a n y alteration or intercalation in a g e n u i n e d o c u m e n t w h i c h c h a n g e s its m e a n i n g ;

7.

Issuing in an a u t h e n t i c a t e d f o r m a d o c u m e n t p u r p o r t i n g to be a copy of an o r i g i n a l d o c u m e n t w h e n no such o r i g i n a l exists, or i n c l u d i n g in such a copy a statement c o n t r a r y to, or different f r o m , that of the g e n u i n e o r i g i n a l ; or

8.

I n t e r c a l a t i n g a n y i n s t r u m e n t or note r e l a t i v e to the issuance thereof in a protocol, r e g i s t r y , or official book. to interpose, insert.

T h e same penalty shall b e i m p o s e d u p o n a n y ecclesiastical minister w h o shall commit a n y of the offenses e n u m e r ated in the p r e c e d i n g p a r a g r a p h s of this article, w i t h r e s p e c t to a n y r e c o r d or d o c u m e n t of s u c h c h a r a c t e r that its falsification m a y affect the civil status of p e r s o n s . A r t . 172. Falsification by private individuals and use of falsified documents. — T h e p e n a l t y of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s a n d a fine of not m o r e than 5,000 pesos shall be i m p o s e d u p o n : 1.

A n y p r i v a t e i n d i v i d u a l w h o shall c o m m i t a n y of the falsifications e n u m e r a t e d in the next p r e c e d i n g article in a n y p u b l i c or official d o c u m e n t or letter

464

FORGERIES

of exchange or document; and 2.

any

other

kind

o f commercial

A n y p e r s o n w h o to the d a m a g e of a third party, or w i t h the intent to c a u s e such d a m a g e , shall in a n y p r i v a t e d o c u m e n t commit a n y of the acts of falsification e n u m e r a t e d in the next p r e c e d i n g article.

A n y p e r s o n w h o shall k n o w i n g l y introduce i n e v i d e n c e i n a n y j u d i c i a l p r o c e e d i n g o r t o the d a m a g e o f a n o t h e r o r w h o , w i t h the intent t o c a u s e such d a m a g e , shall use a n y of the false d o c u m e n t s e m b r a c e d in the n e x t p r e c e d i n g article, or in a n y of the f o r e g o i n g s u b d i v i s i o n s of this article, shall be p u n i s h e d by the penalty next l o w e r in degree. •

What is penalized in falsification of public document? T h e law punish the violation of the faith or trust of the public and the destruction of the truth as solemnly proclaimed in the document. T h e revocation of a falsified document is immaterial to the guilt of the one charged with falsification. (Hernando v. CA, May 1993) Consequently, damage or intent to cause damage is immaterial. T h e document falsified need not be an authentic official paper since its simulation, in fact, is the essence of falsification. (Nizurtado v. Sandiganbayan)

•

•

What are the elements of falsification under Article 171? a.

T h e offender is a public officer, a notary public or an ecclesiastical minister;

b.

He takes advantage of his official position; and

c.

He falsifies a document by any of the eight ways enumerated therein.

W h o is a public officer? How does he take advantage of his official position? Article 203 defines a public officer as any public servant from the highest to the lowest who is performing service to the

465


government or any of its branches or instrumentality by virtue of law, by election or by appointment by a competent authority. He performs public duties as a subordinate official, employee or agent whatever may be his rank or class. The public officer takes advantage of his official position by falsifying a document over which he has custody or by either making or preparing or otherwise intervening in the preparation of a document. Abuse of public office is considered present when the offender falsifies a document in connection with the duties of his office. (Enemecio v. Omb) •

What is a document? A document is any writing capable of creating rights or extinguishing obligations. It is one that can prove, evidence or set forth some disposition or agreement. A document is one issible in court as evidence. T h e writing must be complete, otherwise, there is no falsification because this crime can be committed only with respect to documents and an incomplete or unfilled-up form is not a document. (Dava v. People, September 1991) T h e crime in this case may only be possession of supplies and materials which may be used in falsification under Article 176.

•

How is a document falsified? A document is falsified by fabricating a previously inexistent document or by changing the contents of an existing one through any of the eight ways listed in Article 171.

•

What are the four kinds of documents? a.

Private — a deed between private individuals by which something is proved, evidenced or set forth and for which a notary public or authorized person has not intervened. A private document becomes public it had been notarized or made part of the public record.

b.

Public — a private document that has been notarized; one that has become part of the public record.

c.

Official — its issuance is mandated by law and in the performance of official duty.

466

FORGERIES

d.

Commercial — one that isprepared in accordance with mercantile laws.

A public document starts as a private document, whereas an official document is from the start an official document. Cite examples of public documents. A driver's license is a public document within the purview of Articles 171 and 172. T h e blank form of the driver's license becomes a public document the moment it is accomplished. Thus, when driver's license N o . 2706887 was filled up with petitioner's personal data and the signature of the L T O registrar was affixed therein, even if the same was simulated, the license became a public document. That being so, proof of the element of damage caused to another person or intent to cause such damage is immaterial. In falsification of public or official documents, the principal thing being punished is the violation of the public faith and the destruction of the truth proclaimed therein. (Dava v. People) T h e Daily T i m e Record that a public officer fills up is a public document but it has characteristics distinct from other public documents. T h e purpose of keeping D T R is to show the attendance of government employees in office and to be paid accordingly under the policy of no-work, no-pay. It is primarily intended to prevent damage or loss to the government that would result when it pays an employee who did not report for work. T h e integrity of the D T R as an official document is intact if the damage sought to be prevented has not been produced as when the employee did not collect salary for the days he did not work. T h e D T R is an official document but it is not criminally falsified if it does not pervert the avowed purpose. It is different in case of other public documents affecting continuing public interest which is naturally damaged if the document were falsified. (Layug v. Sandiganbayan, August 2000) L e a v e forms are public documents. What is in dispute is whether or not there is the legal requirement to disclose the reasons for the employee's leave failure of which amounts to a crime of falsification. There is none. The form itself does not require stating the reasons for going on leave. An employee simply indicates through check marks the nature of the leave 467


he is availing of, which in this case, respondent chose to avail of his forced and vacation leave credits. Nevertheless, the omission does not affect the validity of its approval. W h a t is indicated in the leave forms is only the need to specify the whereabouts of the employee who goes on leave. It is not required that specifics must be provided. The omission to state the location of a vacationing employee is not a condition sine qua non for its approval. There is no falsification of leave forms where there is no requirement for the indication of reasons for going on leave. Regardless of such a requirement, the need to indicate the whereabouts of a vacationing employee is not a necessity for its approval. (Enemecio v. Omb., G.R. No. 146731, January 13, 2004) •

In falsification under Article 171(2), should the document be an authentic official paper? N o . Paragraph 2 states: "Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate." T h e document need not be an authentic official paper since its simulation, in fact, is the essence of falsification. So, also, the signatures appearing thereon need not necessarily be forged, (id.)

•

Is good faith a defense in falsification? Y e s . There is no falsification of a public document if the acts of the accused are consistent with good faith. Misstatements or erroneous assertion in a public document w i l l not give rise to falsification as long as he acted in good faith and no one was prejudiced by the alteration or error. T h e integrity of the D T R as an official document is intact if the damage sought to be prevented has not been produced as when the employee did not collect salary for the days he did not work. T h e accused, in good faith, reported to work and filled up his D T R but he was not given work as he had been detailed to another office which he was contesting. (Layug v. Sandiganbayan)

•

What is the presumption in favor of a public document?

468

FORGERIES

It is prima facie evidence of the facts stated therein T h e same can only be rebutted by other competent evidence and cannot be overcome by the testimony of a single witness. Complainant never offered any evidence to contravene the presumption that the recitals in the municipal payroll giving his status as a head laborer w e r e true. T h e T i m e and Payroll Sheet, having been signed by the Municipal Treasurer, is clothed with the presumption of regularity, particularly since it was not objected to by the complainant. Complainant signed the payroll sheet indicating his status as a head laborer. Therefore, this representation is conclusive upon him and he cannot deny or disprove the same without violating the principle of estoppel. (Cosep v. People, G.R. No. 110353, May 21, 1998) •

What are the elements of falsification by making untruthful statements in a narration of facts? a.

T h e offender makes in a document untruthful statements in a narration of facts;

b.

He has a legal obligation to disclose the truth of the facts narrated by him; and

c.

T h e facts narrated by the offender are absolutely false. (Layno v. People, September 1992)

Enemecio added the requirement that the perversion of truth in the narration of facts was made with the wrongful intent to injure a third person. •

What is meant by "legal obligation to disclose the truth?" "Legal obligation" means that there is a law requiring the disclosure of the truth of the facts narrated. BB may not be convicted of falsification of public document by making false statements in a narration of facts absent any legal obligation to disclose where he would spend his vacation and forced leave. There is no law impoon BB the legal obligation to disclose where he was going to spend his leave of absence, (id.)

•

Compare falsification and perjury. T h e two important lines of demarcation between falsification by making untruthful statements, falsification by imitating a signature, and perjury are: 469


1.

Whether or not the document is required by law to be under oath; and

2.

Whether or not the statements on a material matter are false.

When the answer to both queries is in the affirmative, the crime is perjury. When either one is in the negative, it is falsification. The document must be required by law to be sworn to and was in fact sworn to ("in cases in which the law so requires" Article 183). If the statements are true, although the signature is false, even if under oath, the crime is falsification, not perjury. Otherwise stated, in falsification, the documents may or may not be under oath whereas in perjury, the document must be under oath and required by law to be under oath. In falsification, the contents of the document may be true but it is the signature that is false. In perjury, the contents of the document in its material aspect must be deliberately false. •

Is the fact that the entries in the public document were all true not exculpatory since there was no damage to the government? N o . In falsification of a public document, it is immaterial whether or not the contents set forth therein w e r e false. W h a t is important is that the signature of another was counterfeited. In falsification of a public or official document, the principal thing punished is the violation of the public faith and the destruction of the truth as therein solemnly proclaimed. Intent to gain or injure is immaterial. Even more so, the gain or damage is not necessary. (Caubang v. CA)

•

•

What are the acts punished under Article 172? a.

Falsification of public, official or commercial documents by a private person,

b.

Falsification of private document by any person, and

c.

Use of falsified document in (1) a judicial proceeding or (2) in any other proceedings.

Can falsification be committed through culpa? There is no falsification of private document by culpa because of the element of intent to cause damage. But, there 470

FORGERIES

is falsification of public, official and commercial document by culpa since intent to cause damage is not an element. (Samson v. CA, 103 Phil. 277; People v. Reyes, January 20, 1978) •

What are the elements of use of falsified documents? T h e elements of using a falsified document in any transaction (other than as evidence in a judicial proceeding) under the last paragraph of Article 172 are:

•

(a)

Offender knew that a document was falsified by another person

(b)

T h e false document is embraced in Article 171 or in any of subdivision N o s . 1 and 2 of Article 172;

(c)

He used such document (not in judicial proceedings); and

(d)

T h e use of the false document caused damage to another or at least it was used with intent to cause such damage.

Distinguish Article 171 from Article 172. a.

In 171, the offender is a public officer, notary public or ecclesiastical minister; in 172, the offender can be a private individual.

b.

In the former, the document falsified is any document; in the latter, the document falsified is classified into public, official, and commercial on the one hand, and private, on the other.

c.

In 171, damage is not an element but the erosion of public faith in the documents; in 172, damage is an element in the case of falsification of private document and in the use of falsified document not in judicial proceedings.

A public official who is not included in Article 171 may be punished under Article 172 because he may not have taken advantage of his official position in so doing. Moreover, a public official is considered such only when he is acting within the scope of his authority. When he falsifies a document, he is acting beyond his authority and in his private capacity. Article 171 relative to falsification by public officer or notary public presupposes that the officer or notary public is the custodian of the document. If he will issue authenticated copy, 471


he is liable under Article 171, not under Article 172. These two articles are similar except that in Article 172, the offender may be a public officer, notary public, or a private person. What is the presumption on the possession and use of falsified documents? The possessor and of a falsified document are presumed to be the falsifier thereof. No falsifier falsifies in the open. It could easily be consummated only by the falsifier alone or in the confidence of persons in connivance with him. In the absence of a credible and satisfactory explanation on how the document came into being and then filed with the S E C the accused is presumed to be the falsifier of the signature of P P , and the one who prepared doubtful information on the financial status of the proposed corporation. The filing of the statement of assets and liabilities remained unexplained. This fact, together with other proofs presented by the prosecution, is strong evidence tending to show that the accused either himself falsified the statements or caused it to be falsified by someone else. (Caubang v. People, June 1992) What crime should the of falsified document be charged with? He should be charged with falsification of documents because of the presumption that a person using of a falsified document is deemed to be the falsifier. This is especially true if the had benefited from the use thereof and the time between the falsification and the use is so close. W h e n he is acquitted therefrom he can be prosecuted for use of falsified document. These are two different felonies so that there is no double jeopardy. T h e fact that he is acquitted from falsification only shows that he was not the one who falsified the same but he is still liable for use of falsified document. If the false document w a s used in any judicial proceeding, criminal liability is incurred even without damage or intent to cause damage. Damage or intent to cause damage is necessary only in use of falsified document in any transaction other than judicial proceedings. W h e n intent to cause damage is absent, there may only be civil or istrative liability. 472

FORGERIES

»

In what instance will falsification not give rise to criminal liability? Where the intent to pervert the truth is absent. Intentional falsification requires criminal intent to falsify. Lack of criminal intent is shown by the following circumstances: a.

Accused did not benefit out of the falsification, and

b.

No damage has been caused either to the government or third person.

Although generally not an element of falsification, damage is material in determining whether there is intent to commit the crime of falsification. Falsification is also a felony. As such it requires criminal intent — to pervert the truth. Where: (1) the accused did not profit, and (2) no damage was caused to any private property or the government — the intent to pervert the truth is absent. There may be civil or istrative liability but not criminal liability. Where the mind is not criminal, the act cannot be criminal. Actus non facitreum, nisi mens sit rea. (Llamoso v. Sandiganbayan, August 1985) •

What is the effect when the document is private? public? If private document was falsified to commit estafa, even if it were the means to commit the estafa, there is no complex crime of estafa with falsification because deceit is the common element of both. One and the same deceit or damage cannot give rise to more than one crime. It is either estafa or falsification. If public, official or commercial document was falsified to commit estafa, a complex crime is committed, because damage is not an element of falsification of these documents. (See notes under Article 48.) If the crime was use of falsified document, the nature of the document is not controlling. In this crime, the purpose for knowingly using falsified document is essential. But if the document is presented in court, even if rejected, the mere offer thereof is criminal.

•

In falsification of private documents, what will determine whether the crime committed is estafa or falsification? 473


The view has been advanced that the criteria to determine whether the crime is estafa only or falsification only is that: if the falsification of the private document was essential in the commission of estafa because without the falsification, estafa cannot be committed, the crime is falsification; estafa becomes the consequence of the crime. If the estafa can be committed even without resorting to falsification which was done only to facilitate estafa, the main crime is estafa; falsification is merely incidental, since even without falsification, estafa can be committed. •

What is the value of the opinions of handwriting experts in forgery cases? The opinions of handwriting experts, even those from the N B I and the Police Commission, are not binding upon courts. This principle holds true especially when the question involved is mere handwriting similarity or dissimilarity, which can be determined by a visual comparison of specimens of the questioned signatures with those of the currently existing ones. (Punzalan v. COMELEC, 289 SCRA 702) Handwriting experts are usually helpful in the examination of forged documents because of the technical procedure involved in analyzing them. But resort to these experts is not mandatory or indispensable to the examination or the comparison of handwriting. (Heirs ofGregorio v. CA, 300 SCRA 565) A finding of forgery does not depend entirely on the testimonies of handwriting experts, because the judge must conduct an independent examination of the questioned signature to arrive at a reasonable conclusion as to its authenticity. Forgery cannot be presumed. It must be proved by clear, positive and convincing evidence. T h e burden of proof lies in the party alleging forgery. (Joven v. Carungin, G.R. No. 140472, June 10, 2002)

A r t . 173. Falsification of wireless cable, telegraph and telephone messages, and use of said falsified messages. — T h e p e n a l t y of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s shall b e i m p o s e d u p o n a n y officer o r e m p l o y e e o f the G o v ernment or of any private corporation or concern engaged in the service of s e n d i n g or r e c e i v i n g w i r e l e s s , c a b l e or tele474

FORGERIES

p h o n e m e s s a g e s w h o utters a fictitious w i r e l e s s , t e l e g r a p h or t e l e p h o n e m e s s a g e of a n y system or falsifies the same. A n y p e r s o n w h o shall use such falsified dispatch to the p r e j u d i c e of a t h i r d p a r t y or w i t h the intent to cause such p r e j u d i c e , shall suffer the p e n a l t y next l o w e r in d e g r e e . S e c t i o n F i v e . — Falsification of medical certificates, certificates of merit or service and the like A r t . 174. False medical certificates, false certificates of merit or service and the like. — T h e penalties of arresto mayor in its m a x i m u m p e r i o d to prision correccionalva. its m i n i m u m p e r i o d a n d a fine not to e x c e e d 1,000 pesos shall be imposed upon: 1.

A n y p h y s i c i a n o r s u r g e o n w h o , i n connection w i t h the p r a c t i c e of his profession, shall issue a false certificate; a n d

2.

A n y p u b l i c officer w h o shall issue a false certificate o f m e r i t o r service, g o o d c o n d u c t o r similar circumstances.

T h e p e n a l t y of arresto mayor shall be imposed u p o n a n y p r i v a t e p e r s o n w h o shall falsify a certificate falling w i t h i n the classes m e n t i o n e d in the t w o p r e c e d i n g subdivisions. A r t . 175. Using false certificates. — T h e penalty of arresto menor shall be i m p o s e d u p o n a n y one w h o shall k n o w i n g l y use a n y of the false certificates mentioned in the next p r e c e d i n g article. Section Six. — Manufacturing, importing and possession of instruments or implements intended for the commission of falsification Art. 176. Manufacturing and possession of instruments or implements for falsification. — T h e penalty of prision correccional in its m e d i u m a n d m a x i m u m periods a n d a fine not to exceed 10,000 pesos shall be imposed u p o n any person w h o shall m a k e or introduce into the P h i l i p p i n e Islands any stamps, dies, m a r k s , or other instruments or implements intended to be used in the commission of the offenses of counterfeiting or falsification mentioned in the preceding sections of this chapter. 475

C h a p t e r Two

OTHER FALSITIES Section O n e . — Usurpation of authority, rank, title, and improper use of names, uniforms, and insignia A r t . 177. Usurpation of authority or official functions. — A n y person w h o shall k n o w i n g l y a n d falsely r e p r e s e n t himself to be an officer, agent or r e p r e s e n t a t i v e of a n y d e p a r t m e n t o r agency o f the P h i l i p p i n e G o v e r n m e n t o r o f a n y f o r e i g n government, o r w h o , u n d e r p r e t e n s e o f official position, shall p e r f o r m a n y act p e r t a i n i n g to a n y p e r s o n in a u t h o r i t y o r p u b l i c officer o f the P h i l i p p i n e G o v e r n m e n t o r o f a n y foreign g o v e r n m e n t , o r a n y a g e n c y thereof, w i t h o u t b e i n g l a w f u l l y entitled to do so, shall suffer the p e n a l t y of prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s . (As amended by Rep. Act No. 379.)(Restored by E.O. No. 187.) What are the forms of usurpation under Article 177? 1)

Usurpation of public authority where mere false representation sufficient such as misrepresenting oneself as a B I R examiner.

2)

Usurpation of function by performing functions of a public officer under false pretense of public authority, such as one pretending to be a judge and solemnizing a marriage. Without the false pretense, there is no crime of usurpation of authority but mere civic spiritas when a civilian directed traffic to unwind traffic mess.

What is the essence of usurpation of public authority under R.A. 10? R . A . 10 penalizes any person who shall perform any act pertaining to the government, or to any person in authority or public officer, without being lawfully entitled to do so. Compared with Article 177, R . A . 10 does not require false pretense as an element. 476

OTHER FALSITIES

A r t . llS.Using fictitious name and concealing true name. T h e p e n a l t y of arresto mayor a n d a fine not to exceed 500 pesos shall b e i m p o s e d u p o n a n y p e r s o n w h o shall publicly use a fictitious n a m e for the p u r p o s e of concealing a crime, e v a d i n g the e x e c u t i o n of a j u d g m e n t , or c a u s i n g d a m a g e . A n y p e r s o n w h o conceals his t r u e n a m e a n d other p e r s o n a l c i r c u m s t a n c e s shall be p u n i s h e d by arresto menor or a fine not to e x c e e d 200 pesos.

C O M M O N W E A L T H A C T N O . 142 R E G U L A T I N G THE USE OF ALIASES Section 1. E x c e p t as a p s e u d o n y m solely for literary, c i n e m a , television, r a d i o o r other entertainment p u r p o s e s a n d in athletic events w h e r e the use of p s e u d o n y m is a n o r m a l l y a c c e p t e d p r a c t i c e , no p e r s o n shall use a n y name other t h a n his o r i g i n a l or r e a l n a m e unless the same is or a r e d u l y r e c o r d e d in the p r o p e r local civil registry, or such substitute n a m e as m a y h a v e b e e n a u t h o r i z e d by a competent court; Provided, T h a t p e r s o n s , w h o s e b i r t h h a v e not b e e n r e g i s t e r e d in a n y local civil registry a n d w h o have not b e e n b a p t i z e d , h a v e o n e y e a r f r o m the a p p r o v a l o f this A c t within w h i c h to r e g i s t e r their n a m e s in the civil registry of their resident. T h e n a m e shall c o m p r i s e the p a t r o n y m i c n a m e a n d one or t w o s u r n a m e s . (As amended by R.A. No. 6085.) Sec. 2. A n y p e r s o n d e s i r i n g to use an alias shall a p p l y for authority t h e r e f o r in p r o c e e d i n g s like those legally p r o v i d e d to obtain j u d i c i a l authority for a c h a n g e of n a m e , a n d no p e r s o n shall be a l l o w e d to secure j u d i c i a l authority for more t h a n one alias. T h e petition for an alias shall set forth the person's b a p t i s m a l a n d family name a n d the name recorded in the civil registry, if different, his immigrant's name, if an alien, a n d his p s e u d o n y m , if he has such names other than his o r i g i n a l or real n a m e specifying the reason or reasons for the use of the desired alias. T h e judicial authority for the use of alias, the Christian n a m e a n d the alien immigrant's name shall be r e c o r d e d in the p r o p e r local civil registry, and no person shall use any name or names other than his original or real name unless the same is or are duly ed in the p r o p e r local civil registry. 477


Sec. 3. No person h a v i n g b e e n b a p t i z e d with a n a m e different from that with w h i c h he w a s ed at b i r t h in the office of the local civil registry, or with w h i c h he w a s baptized for the first time, or in case of an alien, w i t h w h i c h he w a s ed in the B u r e a u of I m m i g r a t i o n u p o n entry or any person w h o o b t a i n e d j u d i c i a l authority to use an alias or w h o uses a p s e u d o n y m , shall r e p r e s e n t himself in any public or private transaction or shall sign or execute a n y public or private d o c u m e n t w i t h o u t stating or affixing his real o r original n a m e a n d all n a m e s o r aliases o r p s e u d o n y m he is or m a y h a v e b e e n a u t h o r i z e d to use. xxx Sec. 5. A n y violation of this A c t shall be p u n i s h e d w i t h imprisonment of f r o m 1 to 5 y e a r s a n d a fine of P5,000 to PIO.OOO (id.). Ursua v. CA, G.R. No. 116607, April 10,1996 •

What is the rationale for C A . 142? C A . 142 as amended was enacted primarily to curb the practice among the Chinese of adopting different names and aliases which created tremendous confusion in the field of trade. Such a practice almost bordered on the crime of using fictitious names which cannot be successfully maintained against the Chinese who claim they possessed a thousand and one names. C A . 142 penalizes using an alias unless the use of such alias was duly authorized by judicial proceedings and ed in the civil .

•

How should C A . 142 be construed? Being a penal statute, it should be construed strictly against the State and in favor of the accused. The reason for this principle is the tenderness of the law for the rights of the individuals and the object to establish a certain rule by conformity by which mankind would be safe and the discretion of the court limited. One's mind cannot rest easy on the proposition that the petitioner should be convicted on a law that does not clearly penalize the act done by him. There exists a valid presumption that undesirable consequences were never

478

OTHER FALSITIES

intended by a legislative measure and that a construction for which will avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious consequences. •

Will the use of another name in a single instance constitute use of an alias? N o . An alias is a name used by a person or intended to be used by him publicly and habitually, usually in business transactions in addition to his real name by which he is ed at birth or baptized the first time or substitute name authorized by a competent authority. A man's name is simply the sound or sounds by which he is commonly designated by others and by which they distinguish him but sometimes a man is known by several different names known as aliases. Hence, the use of a fictitious name or a different name belonging to a single person in a single instance without any sign or indication that the intends to be known by this name in addition to his real name from that day forth does not fall within the prohibition contained in C A . 142. OP is not an alias name of petitioner. There is no showing that he had used or intends to use that name as his second name or in addition to his real name. T h e use of the name OP was an isolated transaction where he is not even required to expose his real identity. For even if he had identified himself properly at the Office of the Ombudsman, he would still be able to get a copy of the complaint as a matter of right, and the Office of the Ombudsman could not refuse him because the complaint was part of the public record, hence, open to inspection and examination by anyone under the proper circumstances.

•

When can a resident Filipino citizen use an alias legally? a.

As a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events w h e r e the use of pseudonym is a normally accepted practice;

b.

A n y name other than an original or real name duly recorded in the proper loval civil registry; and

c.

Such substitute name as may have been authorized by a competent court. 479


A r t . 179. Illegal use of uniform and insignia. —The penalty of arresto mayor shall be imposed u p o n any p e r s o n w h o shall publicly a n d i m p r o p e r l y m a k e use of insignia, uniforms or dress pertaining to an office not held by such p e r s o n or to a class of persons of w h i c h he is not a m e m b e r . (Restored by E.O. No. 187.) Section T w o . — False Testimony A r t . 180. False testimony against a defendant. — A n y p e r s o n w h o shall give false testimony a g a i n s t the d e f e n d a n t in a n y criminal case shall suffer: in a judicial proceeding 1.

T h e penalty of reclusion temporal, if the d e f e n d a n t in said case shall h a v e b e e n sentenced to death;

2.

T h e penalty of prision mayor, if the d e f e n d a n t shall h a v e b e e n sentenced to reclusion temporal or reclusion perpetua;

3.

T h e penalty of prision correccional, if the d e f e n d a n t shall h a v e b e e n sentenced to a n y o t h e r afflictive penalty; a n d

4.

T h e penalty of arresto mayor, if the d e f e n d a n t shall h a v e b e e n sentenced to a c o r r e c t i o n a l p e n a l t y or a f i n e , o r shall h a v e b e e n a c q u i t t e d .

In cases p r o v i d e d in s u b d i v i s i o n s 3 a n d 4 of this article the offender shall f u r t h e r suffer a fine not to e x c e e d 1,000 pesos. A r t . 181. False testimony favorable to the defendant. — A n y p e r s o n w h o shall give false testimony i n f a v o r o f the d e f e n d a n t in a c r i m i n a l case, shall suffer the penalties of arresto mayor in its m a x i m u m p e r i o d to prision correccional in its m i n i m u m p e r i o d a n d a fine not to e x c e e d 1,000 pesos, if the prosecution is for a felony p u n i s h a b l e by an afflictive penalty, a n d the penalty of arresto mayor in a n y other case. A r t . 182. False testimony in civil cases. — A n y p e r s o n found guilty of false testimony in a civil case shall suffer the penalty of prision correccional in its m i n i m u m p e r i o d a n d a fine not to exceed 6,000 pesos, if the a m o u n t in c o n t r o v e r s y shall exceed 5,000 pesos, a n d the p e n a l t y of arresto mayor in 480

OTHER FALSITIES

its m a x i m u m p e r i o d to prision correccional in its m i n i m u m p e r i o d a n d a fine not to exceed 1,000 pesos, if the a m o u n t i n c o n t r o v e r s y shall not e x c e e d s a i d a m o u n t o r cannot b e estimated. •

What are the different forms of false testimony in court? These are: 1.

False testimony in criminal cases either ( a ) in favor or (b) against the defendant; and

2.

False testimony in civil cases.

T h e penalty to the false witness against the defendant in criminal cases is on the basis of the penalty imposed on the defendant witnessed against; whereas the penalty on the favorable testimony is on the basis of the charge against the defendant, whether it is penalized by an afflictive penalty or otherwise. T h e false testimony in civil cases is penalized on the basis of the amount involved in the civil case which should not exceed P5,000. This article is one of the many obsolete provisions due to the amount involved. •

What is the effect on prescriptive period when the false testimony is in favor of the accused? against the accused? Whether the testimony is in favor or against the accused determines when the prescriptive period begins to run, thus: In favor — right after the witness testified falsely, the period commences to run because the basis of the penalty on the false witness is the felony charged to the accused regardless of whether the accused was acquitted or convicted or the trial has terminated. Against — period will not begin to run as long as the case has not been decided with finality because the basis of the penalty on the false witness is the sentence on the accused. When the accused is acquitted, there is also a corresponding penalty on the false witness for his false testimony.

A r t . 183. False testimony in other cases and perjury in solemn affirmation. — T h e penalty of arresto mayor in its m a x i m u m 481


period to prision correccional in its m i n i m u m p e r i o d shall be imposed u p o n any person w h o , k n o w i n g l y m a k i n g untruthful statements a n d not b e i n g included in the provisions of the next preceding articles, shall testify u n d e r oath, or m a k e an affidavit, u p o n any material matter before a competent person authorized to ister an oath in cases in w h i c h the l a w so requires. A n y person w h o , in case of a solemn affirmation m a d e in lieu of an oath, shall commit a n y of the falsehoods m e n t i o n e d in this a n d the three p r e c e d i n g articles of this section, shall suffer the respective penalties p r o v i d e d therein. •

•

What are the elements of perjury? a.

The accused made statement under oath or executed an affidavit upon a material matter;

b.

The statement or affidavit was made before a competent officer authorized to receive and ister oath;

c.

In that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood; and

d.

The sworn statement or affidavit containing the falsity is required by law or made for a legal purpose. (Saavedra v. DOJ, September 1993)

Where is perjury committed? Perjury is committed in forums other than judicial for this is penalized as false testimony under Articles 180 to 182. Perjury is committed, for instance, in testimonies under oath given during istrative proceedings, Congressional hearings, and the like and in sworn statements required by law such Statement of Assets and Liabilities submitted by public officials and employees.

•

Will the mere assertion of falsehood constitute perjury? No. Mere assertion of falsehood is not enough to amount to perjury. The assertion must be deliberate and willful. In a case, the assertion of SS was done in good faith, in the belief that the non-payment of the last installment price was justified by the seller's non-compliance with their warranties. Thus, a finding of probable cause does not follow as a matter of course even 482

OTHER FALSITIES

if the Securities and Exchange Commission decides adversely against him, for such essential element of the crime appears to be wanting, (id) A mere assertion of a false objective fact, a falsehood, is not enough. The assertion must be deliberate and willful. Perjury being dolo, there must be malice on the part of the accused. Willfully means intentionally; with evil intent and legal malice, with the consciousness that the alleged perjurious statement is false with the intent that it should be received as a statement of what was true in fact. It is equivalent to "knowingly." "Deliberately" implies meditated as distinguished from inadvertent acts. The accused must know his statement to be false or consciously ignorant of its truth. (Villanueva v. Sec. of Justice, G.R. No. 162187, November 18, 2005) Will the fact that the document is under oath sufficient to make the affiant liable for perjury? No. As a rule, pleadings need not be verified unless otherwise required by the Rules of Court, and no rule requires complaints for damages to be under oath. That being so, another element of perjury is absent — that the sworn statement containing the falsity is required by law. (Saavedra v. DOJ) What is the nature of perjury? How should it be treated? Perjury is the willful and corrupt assertion of a falsehood under oath or affirmation istered by authority of law on a material matter. It is an obstruction of justice; its perpetration may affect the earnest concerns of the parties before a tribunal. The felony is consummated when the false statement is made. The seminal modern treatment of the history of perjury concludes that one consideration of policy overshadows all others — the measures taken against the offense must not be so severe as to discourage aggrieved parties from lodging complaints or testifying. (Villanueva v. Sec. of Justice) Is statement of belief or conviction considered perjurious? No. Perjury cannot be willful where the oath is according to belief or conviction as to its truth. A false statement of a belief is not perjury. Bona fide belief in the truth of a statement

483


is an adequate defense. A false statement which is obviously the result of an honest mistake is not perjury, (id.) When the affiant made two contradictory statements, can he be convicted of perjury? A conviction for perjury cannot be sustained merely upon the contradictory sworn statements of the accused. The prosecution must prove which of the two statements is false and must show the statement to be false by other evidence than the contradicting statement. T h e rationale of this principle is thus: ... Proof that accused has given contradictory testimony under oath at a different time will not be sufficient to establish the falsity of testimony charged as perjury, for this would leave simply one oath of the defendant as against another, and it would not appear that the testimony charged was false rather than the testimony contradictory thereof. The two statements will simply neutralize each other; there must be some corroboration of the contradictory testimony. Such corroboration, however, may be furnished by evidence aliunde tending to show perjury independently of the declarations of testimony of the accused, (id.) What is the meaning of the term "material matter" in perjury? T h e term "material matter" is the main fact subject of the inquiry, or any circumstance which tends to prove that fact, or any fact or circumstance which tends to corroborate or strengthen the testimony related to the subject of the inquiry, or which legitimately affects the credence of any witness who testified. In this case, a matter is material if it has a material effect or tendency to influence the Commission in resolving the motion of H T C one w a y or the other. T h e effects of the statement are weighed in of potentiality rather than probability. T h e prosecution need not prove that the false testimony actually influenced the Commission, (id.) What are the two essential elements of proof of perjury? There are two essential elements of proof for perjury: (1) the statement made by the defendants must be proven false; 484

OTHER FALSITIES

and (2) it must be proven that the defendant did not believe those statements to be true. K n o w l e d g e by the accused of the falsity of his statement is an internal act. It may be proved by his issions or by circumstantial evidence. T h e state of mind of the accused may be determined by the things he says and does, from proof of a motive to he and of the objective falsity itself, and from other facts tending to show that the accused really knew the things he claimed not to know. A r t . 184. Offering false testimony in evidence. — A n y p e r s o n w h o shall k n o w i n g l y offer in e v i d e n c e a false witness or testimony i n a n y j u d i c i a l o r official p r o c e e d i n g , shall b e p u n i s h e d as guilty of false testimony a n d shall suffer the r e s p e c t i v e penalties p r o v i d e d in this Section. •

What is subornation of perjury? Subornation of perjury refers to the act of procuring a false witness to testify and thereby commit perjury. It is the act of the procurer. T h e false witness must first be convicted of perjury before the suborner may be prosecuted for subornation (Hicks vs. State; State vs. Sailor, 40 Words and Phrases 640). He stands in the same position as a co-principal by inducement. This is w h y subornation of perjury is unnecessary because it is punishable as a crime of perjury via conspiracy. In Article 184, the law punishes mere offering of a false testimony or false witness. T h e conviction of the perjurer is unnecessary, unlike in subornation. In Article 184, the witness may not have actually perjured but the offeror is still liable for having offered the false witness.

485

Chapter Three FRAUDS Section O n e . — Machinations, monopolies and combinations A r t . 185. Machinations in public auctions. — A n y p e r s o n w h o shall solicit a n y gift or p r o m i s e as a consideration for r e f r a i n i n g f r o m taking p a r t i n a n y p u b l i c auction, a n d a n y person w h o shall attempt to c a u s e b i d d e r s to stay a w a y f r o m an auction by threats, gifts, p r o m i s e s , or a n y other artifice, with intent to cause the r e d u c t i o n of the p r i c e of the t h i n g auctioned, shall suffer the p e n a l t y of prision correccional in its m i n i m u m p e r i o d a n d a fine r a n g i n g f r o m 10 to 50 p e r centum of the v a l u e of the t h i n g auctioned. A r t . 186. Monopolies and combinations in restraint of trade. —The penalty of prision correccional in its m i n i m u m p e r i o d or a fine r a n g i n g f r o m 200 to 6,000 pesos, or b o t h , shall be imposed upon: 1. A n y p e r s o n w h o shall enter into contract or a g r e e ment o r shall take p a r t i n a n y c o n s p i r a c y o r c o m b i n a t i o n i n the f o r m of a trust or o t h e r w i s e , in r e s t r a i n t of t r a d e or commerce to p r e v e n t by artificial m e a n s free competition in the market; 2. A n y p e r s o n w h o shall m o n o p o l i z e a n y m e r c h a n d i s e o r object o f t r a d e o r c o m m e r c e , o r shall c o m b i n e w i t h a n y other p e r s o n o r p e r s o n s t o m o n o p o l i z e said m e r c h a n d i s e o r object in o r d e r to alter the p r i c e t h e r e o f by s p r e a d i n g false r u m o r s or m a k i n g use of a n y o t h e r artifice to r e s t r a i n free competition in the m a r k e t ; 3. A n y person who, being a manufacturer, producer, or processor of any merchandise or object of commerce or an i m p o r t e r o f a n y m e r c h a n d i s e o r object o f c o m m e r c e f r o m a n y foreign country, either a s p r i n c i p a l o r a g e n t , w h o l e s a l e r o r retailer, shall c o m b i n e , c o n s p i r e o r a g r e e i n a n y m a n n e r w i t h a n y p e r s o n l i k e w i s e e n g a g e d i n the m a n u f a c t u r e , p r o d u c t i o n , 486

FRAUDS

processing, a s s e m b l i n g o r i m p o r t a t i o n o f such m e r c h a n d i s e or object of c o m m e r c e or w i t h a n y other persons not so similarly e n g a g e d for the p u r p o s e o f m a k i n g transactions p r e j u d i c i a l to l a w f u l c o m m e r c e , or of i n c r e a s i n g the m a r k e t p r i c e i n a n y p a r t o f the P h i l i p p i n e s , o f a n y such m e r c h a n d i s e o r object o f c o m m e r c e m a n u f a c t u r e d , p r o d u c e d , processed, a s s e m b l e d in or i m p o r t e d into the P h i l i p p i n e s , or of any article i n the m a n u f a c t u r e o f w h i c h such m a n u f a c t u r e d , p r o d u c e d , p r o c e s s e d , o r i m p o r t e d m e r c h a n d i s e o r object o f c o m m e r c e is u s e d . If the offense m e n t i o n e d in this A r t i c l e affects a n y food substance, m o t o r fuel or l u b r i c a n t s , or other articles of p r i m e necessity, the p e n a l t y shall be that of prision mayor in its m a x i m u m a n d m e d i u m p e r i o d s , it b e i n g sufficient for the imposition t h e r e o f that the initial steps h a v e b e e n taken t o w a r d c a r r y i n g out the p u r p o s e s o f the combination. A n y p r o p e r t y possessed u n d e r a n y contract o r b y any c o m b i n a t i o n m e n t i o n e d i n the p r e c e d i n g p a r a g r a p h s , a n d b e i n g the subject thereof, shall be forfeited to the G o v e r n m e n t of the P h i l i p p i n e s . W h e n e v e r a n y of the offenses d e s c r i b e d a b o v e is committed by a c o r p o r a t i o n or association, the president a n d each one of or its a g e n t or r e p r e s e n t a t i v e in the P h i l i p p i n e s in case of a f o r e i g n c o r p o r a t i o n or association, w h o shall have k n o w i n g l y p e r m i t t e d or failed to p r e v e n t the commission of such offenses, shall be h e l d l i a b l e as p r i n c i p a l s thereof. (As amended by Rep. Act No. 1956.) Section T w o . — Frauds in commerce and industry A r t . 187. Importation and disposition of falsely marked articles or merchandise made of gold, silver, or other precious metals or their alloys. —The penalty of prision correccional or a fine r a n g i n g f r o m 200 to 1,000 pesos, or both, shall be imposed upon any p e r s o n w h o shall k n o w i n g l y import or sell or dispose of any article or m e r c h a n d i s e m a d e of gold, silver or other precious metals, or their alloys, with stamps, b r a n d s or m a r k s which fail to indicate the actual fineness or quality of said metal or alloys.

487


A n y stamp, b r a n d , label, or m a r k shall be d e e m e d to fail to indicate the actual fineness of the article on w h i c h it is e n g r a v e d , printed, stamped, l a b e l e d or attached, w h e n the test of the article s h o w s that the quality or fineness thereof is less by m o r e than one-half k a r a t , if m a d e of g o l d , a n d less by m o r e than four one-thousandth, if m a d e of silver, than w h a t i s s h o w n b y said stamp, b r a n d , label o r m a r k . B u t i n case of w a t c h cases a n d flatware m a d e of gold, the actual fineness of such gold shall not be less by m o r e t h a n three one-thousandth than the fineness indicated by said stamp, b r a n d , label o r m a r k . Articles 188 and 189 were expressly repealed by Republic Act 8293 — the Intellectual Property Code of the Philippines, June 6, 1997. •

What is the purpose of public auction? Public auction is fraught with public interest because its purpose is to give the best price to the public. If a person would manipulate to lower the price attainable, this crime is committed. Mere conspiracy or agreement is the essence of the crime. Where prime commodities are involved, it is enough that initial steps be taken that would bring about monopoly or restraint of trade. The managers or directors of the corporation who despite knowledge of the plan do not prevent the same are liable because from their silence can be presumed approval as they will benefit therefrom.

•

What is the new law on public bidding? R.A. 9184 - the Government Procurement Reform Act of 2002 was enacted to promote the ideals of good governance in all its branches, departments, agencies, subdivisions and instrumentalities including government-owned and controlled corporations and local government units. The law covers government infrastructure projects, goods and consulting services regardless of source of funds for all its agencies, branches and instrumentalities.

488

FRAUDS

•

•

What are the governing principles of R.A. 9184? 1.

Transparency in the procurement process and in the implementation of procurement contracts;

2.

Competitiveness by extending equal opportunity to enable private contracting parties who are eligible and qualified to participate in public bidding;

3.

Streamlined procurement process that will uniformly apply to all government procurement. T h e procurement process shall be simple and made adaptable to advances in modern technology to ensure an effective and efficient method;

4.

System of ability where both the public officials directly or indirectly involved in the procurement process as w e l l as in the implementation of procurement contracts and the private parties that deal with government are, when warranted, investigated and held liable for their actions relative thereto; and

5.

Public monitoring of the procurement process and the implementation of awarded contracts with the end in v i e w of guaranteeing that these contracts are awarded pursuant to the provisions of the public bidding law and its implementing rules and regulations ( I R R ) , and that all these contracts are performed strictly according to specifications.

What are the aims of public bidding? Public bidding aims to protect public interest by giving the public the best possible advantages through open competition that is legitimate, fair and honest; and, to avoid or preclude suspicion of favoritism and anomalies in the execution of public contracts. (Oani v. People, G.R. No. 139984, March 31, 2005) Danville Maritime, Inc. v. COA emphasized that — ... By its very nature and characteristic, a competitive public bidding aims to protect the public interest by giving the public the best possible advantages thru open competition. Another self-evident purpose of public bidding is to avoid or preclude suspicion of favoritism and anomalies in the execution 489


of public contracts. Public bidding of government contracts and public bidding for disposition of government assets have the same purpose and objectives. Their only difference, if at all, is that in the public bidding for public contracts the award is generally given to the lowest bidder while in the disposition of government assets the award is to the highest bidder. •

What are the three principles of public bidding? In a public bidding, there must be competition that is legitimate, fair and honest. Thus, the three principles of a public bidding are: 1.

the offer to the public;

2.

an opportunity for competition; and

3.

a basis for exact comparison of bids.

A contract granted without the competitive bidding required by law is void, and the party to whom it is awarded cannot benefit from it. •

What acts are penalized by R.A. 9184? Without prejudice to R.A. 3019, the acts prohibited by R.A. 9184 are: 1.

Opening any sealed bid and any and all documents required to be sealed, or divulging their contents prior to the appointed time for the public opening of bids and other documents;

2.

Delaying, without justifiable cause, the screening for eligibility, opening of bids, evaluation and post evaluation of bids, and awarding of contracts beyond the prescribed periods of action provided for in the IRR;

3.

Unduly influencing or exerting undue pressure on any member of the Bids and Awards Committee ( B A C ) or any officer or employee of the procuring entity to take a particular action which favors or tend to favor a particular bidder;

4.

Splitting of contracts which exceed procedural purchase limits and competitive bidding; and 490

FRAUDS

5. Abuse by the head of agency the exercise of his power to reject any and all bids with manifest preference to any bidder who is closely related to him which shall merit imprisonment of not less than 6 years and 1 day but not more than 15 years and shall be meted to private persons colluding with the public officer. In addition, the latter shall suffer temporary disqualification from office while the former shall be permanently barred from transacting with the government. Private persons and public officers conniving with them shall suffer the same penalty for the following acts: 1.

Two or more bidders agreeing and submitting different bids such that the contract will surely be awarded to the pre-arranged lower bidder.

2.

One bidder submitting more than one bid through different persons or entities to create the appearance of competition.

3.

Agreeing to refrain from bidding or to withdraw bids already submitted or which are otherwise intended to secure an advantage to anyone of them.

4.

Employing schemes tending to restrain the natural rivalry of the parties or operating to stifle or suppress competition.

5.

Submitting eligibility requirements containing false information or false documents to influence the outcome of the eligibility screening process or concealing such information which shall result to declaration of ineligibility from participating in the bidding.

6.

Submitting bidding documents containing false information or falsified documents or concealing such information in the bidding documents, in order to influence the outcome of the public bidding.

7.

Participating in a public bidding using the name of another or allowing another to use one's name for the purpose of participating in a public bidding, and 491


8.

Withdrawing a bid after it shall have qualified as the Lowest Calculated Bid/Highest Rated Bid or refusing to accept the award without just cause or for the purpose of forcing the agency to award the contract to another bidder. This shall include nonsubmission within the prescribed time or delaying the submission of requirements preparatory to the final award of contract.

When the bidder is a juridical entity, criminal liability and the accessory penalties shall be imposed on its directors, officers or employees who actually committed the prohibited act. N.B.: The acts listed in the law do not include the deliberate act of not conducting public bidding at all. The acts penalized are mostly those incurred in the course of or during the public bidding itself. ITFP v. COMELEC, G.R. No. 159139, January 13, 2004 •

When is grave abuse of discretion committed? There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or jurisprudence; or (2) when it is executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. The Comelec approved the assailed Resolution and awarded the subject Contract not only in clear violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and procedure. Comelec awarded the Contract to "Mega Pacific Consortium" an entity that had not participated in the bidding. Despite this, the poll body signed the actual automation contract with "Mega Pacific eSolutions, Inc.," a company that ed the bidding but had not met the eligibility requirements.

•

How was the bidding process violated in the automation contract? Comelec awarded this billion-peso undertaking with inexplicable haste, without adequately checking and observing mandatory financial, technical and legal requirements. It also accepted the proffered computer hardware and software even if, at the time of the award, they had undeniably failed to 492

FRAUDS

eight critical requirements designed to safeguard the integrity of elections, especially the following three items: T h e y failed to achieve the accuracy rating criteria of 99.9995% set-up by the Comelec itself. T h e y w e r e not able to detect previously ed results at various canvassing or consolidation levels and to prevent these from being inputted again. T h e y w e r e unable to print the statutorily required audit trails of the count/canvass at different levels without any loss of data. W h a t is the effect of such violations on the bidding process and the award of the contract? Because of the violations of law and grave abuse of discretion committed by Comelec, the Court has to void the Resolution and the Contract. Comelec flagrantly violated the public policy on public biddings (1) by allowing M P C / M P E I to participate in the bidding even though it was not qualified to do so; and (2) by eventually awarding the Contract to M P C / M P E I . N o w , with the latest explanation given by Comelec, it is clear that the Commission further desecrated the law on public bidding by permitting the winning bidder to change and alter the subject of the Contract (the software), in effect allowing a substantive amendment without public bidding. This stance is contrary to settled jurisprudence requiring the strict application of pertinent rules, regulations and guidelines for public bidding for the purpose of placing each bidder, actual or potential, on the same footing. The essence of public bidding is an opportunity for fair competition, and a fair basis for the precise comparison of bids. It aims to "level the playing field." That means each bidder must bid under the same conditions; and be subject to the same guidelines, requirements and limitations, so that the best offer or lowest bid may be determined, all other things being equal. •

What should be done when a substantive amendment to a contract is made after the bidding process was concluded? It is contrary to the very concept of public bidding to permit a variance between the conditions under which bids are invited and those under which proposals are submitted 493


and approved; or, the conditions under which the bid is won and those under which the awarded Contract will be complied with. The substantive amendment of the contract bidded out, without any public bidding — after the bidding process had been concluded — is violative of the public policy on public biddings, as well as the spirit and intent of R . A . 8436. T h e whole point in going through the public bidding exercise was completely lost. The very rationale of public bidding was totally subverted by the Commission. As a necessary consequence of such nullity and illegality, the purchase of the machines and all appurtenances thereto including the still-to-be-produced software, as well as all the payments made have no basis in law. T h e public funds expended pursuant to the void Resolution and Contract must be recovered from the payees and/or from the persons who made possible the illegal disbursements, without prejudice to criminal prosecutions against them. •

Who is liable for the amount expended under the void contract? Comelec and its officials concerned must bear full responsibility for the failed bidding and award, and held able for the electoral mess wrought by their grave abuse of discretion in the performance of their functions. T h e State is not bound by the mistakes and illegalities of its agents and servants. T h e Ombudsman shall determine the criminal liability, if any, of the public officials (and conspiring private individuals, if any) involved in the Resolution and Contract. T h e Solicitor General shall take measures to protect the government and vindicate public interest from the ill effects of the illegal disbursements made by reason of the void Resolution and Contract.

•

What is the test of unfair competition? T h e test to determine unfair competition is whether certain goods have been clothed with an appearance which is likely to deceive the ordinary purchaser exercising ordinary care. If the goods allegedly original branded products are so crudely made and the price so low it is obvious that these are imitation, the ordinary purchaser cannot possibly be deceived, there is no unfair competition. (Louis Vuitton S.A. v. Villanueva, November 1992) 494

TITLE FIVE

CRIMES RELATIVE TO OPIUM AND OTHER PROHIBITED DRUGS A r t s . 190-194. Repealed by R.A. No. 6425 as amended by R.A. 7659 and further amended by R.A. 9165.

R E P U B L I C A C T N O . 9165 xxx

xxx

xxx

ARTICLE I DEFINITION OF S E C . 3. Definitions. — As used in this Act, the following shall mean: (a) ister — A n y act of introducing any dangerous drug into the body of any person, with or without his/her knowledge, by injection, inhalation, ingestion or other means, or of committing any act of indispensable assistance to a person in istering a dangerous drug to himself/herself unless istered by a duly licensed practitioner for purposes of medication. (b) Board — Refers to the Dangerous Drugs Board under Section 77, Article IX of this Act. (c) Centers — A n y of the treatment and rehabilitation centers for drug dependents referred to in Section 75, Article V I I I of this Act. (d) Chemical Diversion — The sale, distribution, supply or transport of legitimately imported, in-transit, manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures or in concentrated form, to any person or entity engaged in the manufacture of any dangerous drug, and shall include packaging, repackaging, labeling, relabeling or concealment of such transaction 495


through fraud, destruction of documents, fraudulent use of permits, misdeclaration, use of front companies or mail fraud. (e) Clandestine Laboratory — A n y facility used for the illegal manufacture of any dangerous drug and/or controlled precursor and essential chemical. (f) Confirmatory Test — An analytical test using a device, tool or equipment with a different chemical or physical principle that is more specific which will validate and confirm the result of the screening test. ( g ) Controlled Delivery — T h e investigative technique of allowing an unlawful or suspect consignment of any dangerous drug and/or controlled precursor and essential chemical, equipment or paraphernalia, or property believed to be derived directly or indirectly from any offense, to into, through or out of the country under the supervision of an authorized officer, with a v i e w to gathering evidence to identify any person involved in any dangerous drugs related offense, or to facilitate prosecution of that offense. (h) Controlled Precursors and Essential Chemicals — Include those listed in Tables I and II of the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances as enumerated in the attached annex, which is an integral part of this Act. (i) Cultivate or Culture — A n y act of knowingly planting, growing, raising, or permitting the planting, growing or raising of any plant which is the source of a dangerous drug. (j) Dangerous Drugs — Include those listed in the Schedules annexed to the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, and in the Schedules annexed to the 1971 Single Convention on Psychotropic Substances as enumerated in the attached annex which is an integral part of this A c t . (k) Deliver — A n y act of knowingly ing a dangerous drug to another, personally or otherwise, and by any means, with or without consideration. (1) Den, D i v e or Resort — A place where any dangerous drug and/or controlled precursor and essential chemical is istered, delivered, stored for illegal purposes, distributed, sold or used in any form.

C O M P R E H E N S I V E D A N G E R O U S D R U G S ACT OF 2002 (Republic Act No. 9165)

(m) Dispense — A n y act of giving away, selling or distributing medicine or any dangerous drug with or without the use of prescription. (n) Drug Dependence — As based on the World Health Organization definition, it is a cluster of physiological, behavioral and cognitive phenomena of variable intensity, in which the use of psychoactive drug takes on a high priority thereby involving, among others, a strong desire or a sense of compulsion to take the substance and the difficulties in controlling substance-taking behavior in of its onset, termination, or levels of use. (o) Drug Syndicate — A n y organized group of two (2) or more persons forming or ing together with the intention of committing any offense prescribed under this A c t . ( p ) Employee of Den, D i v e or Resort — T h e caretaker, helper, watchman, lookout, and other persons working in the den, dive or resort, employed by the maintainer, owner and/or operator where any dangerous drug and/or controlled precursor and essential chemical is istered, delivered, distributed, sold or used, with or without compensation, in connection with the operation thereof. (q) Financier — A n y person who pays for, raises or supplies money for, or underwrites any of the illegal activities prescribed under this A c t . (r) Illegal Trafficking — T h e illegal cultivation, culture, delivery, istration, dispensation, manufacture, sale, trading, transportation, distribution, importation, exportation and possession of any dangerous drug and/or controlled precursor and essential chemical. (s) Instrument — Anything that is used in or intended to be used in any manner in the commission of illegal drug trafficking or related offenses. (t) Laboratory Equipment — T h e paraphernalia, apparatus, materials or appliances when used, intended for use or designed for use in the manufacture of any dangerous drug and/or controlled precursor and essential chemical, such as reaction vessel, preparative/purifying equipment, fermentors, separatory funnel, flask, heating mantle, gas generator, or their substitute. (u) Manufacture — The production, preparation, compounding or processing of any dangerous drug and/or controlled precursor 497


and essential chemical, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and shall include any packaging or repackaging of such substances, design or configuration of its form, or labeling or relabeling of its container; except that such do not include the preparation, compounding, packaging or labeling of a drug or other substances by a duly authorized practitioner as an incident to his/ her istration or dispensation of such drug or substance in the course of his/her professional practice including research, teaching and chemical analysis of dangerous drugs or such substances that are not intended for sale or for any other purpose. ( v ) Cannabis or commonly known as "Marijuana" or "Indian Hemp" or by its any other name — Embraces every kind, class, genus, or specie of the plant Cannabis sativa L. including, but not limited to, Cannabis americana, hashish, bhang, guaza, churrus and ganjab, and embraces every kind, class and character of marijuana, whether dried or fresh and flowering, flowering or fruiting tops, or any part or portion of the plant and seeds thereof, and all its geographic varieties, whether as a reefer, resin, extract, tincture or in any form whatsoever. (w) Methylenedioxymethamphetamine ( M D M A ) or commonly known as "Ecstasy," or by its any other name — Refers to the drug having such chemical composition, including any of its isomers or derivatives in any form. (x) Methamphetamine Hydrochloride or commonly known as "Shabu," "Ice," "Meth," or by its any other name — Refers to the drug having such chemical composition, including any of its isomers or derivatives in any form. ( y ) Opium — Refers to the coagulated juice of the opium poppy (Papaver somniferum L.) and embraces every kind, class and character of opium, whether crude or prepared; the ashes or refuse of the same; narcotic preparations thereof or therefrom; morphine or any alkaloid of opium; preparations in which opium, morphine or any alkaloid of opium enters as an ingredient; opium poppy; opium poppy straw; and leaves or wrappings of opium leaves, whether prepared for use or not. (z) Opium Poppy — Refers to any part of the plant of the species Papaver somniferum L., Papaver setigerum DC, Papaver 498

C O M P R E H E N S I V E D A N G E R O U S D R U G S ACT OF 2002 (Republic Act No. 916S)

orientate, Papaver bracteatum and Papaver rhoeas, which includes the seeds, straws, branches, leaves or any part thereof, or substances derived therefrom, even for floral, decorative and culinary purposes. (aa) P D E A — Refers to the Philippine Drug Enforcement Agency under Section 82, Article IX of this Act. (bb) Person — Any entity, natural or juridical, including among others, a corporation, partnership, trust or estate, t stock company, association, syndicate, t venture or other unincorporated organization or group capable of acquiring rights or entering into obligations. (cc) Planting of Evidence — The willful act by any person of maliciously and surreptitiously inserting, placing, adding or attaching directly or indirectly, through any overt or covert act, whatever quantity of any dangerous drug and/or controlled precursor and essential chemical in the person, house, effects or in the immediate vicinity of an innocent individual for the purpose of implicating, incriminating or imputing the commission of any violation of this Act. (dd) Practitioner — Any person who is a licensed physician, dentist, chemist, medical technologist, nurse, midwife, veterinarian or pharmacist in the Philippines. (ee) Protector/Coddler — Any person who knowingly and willfully consents to the unlawful acts provided for in this Act and uses his/her influence, power or position in shielding, harboring, screening or facilitating the escape of any person he/she knows, or has reasonable grounds to believe on or suspects, has violated the provisions of this Act in order to prevent the arrest, prosecution and conviction of the violator. (ff) Pusher — Any person who sells, trades, isters, dispenses, delivers or gives away to another, on any whatsoever, or distributes, dispatches in transit or transports dangerous drugs or who acts as a broker in any of such transactions, in violation of this Act. (gg) School — Any educational institution, private or public, undertaking educational operation for pupils/students pursuing certain studies at defined levels, receiving instructions from teachers, usually located in a building or a group of buildings in a particular physical or cyber site. 499


(hh) Screening Test — A rapid test performed to establish potential/presumptive positive result. (ii) Sell — A n y act of giving away any dangerous drug and/ or controlled precursor and essential chemical whether for money or any other consideration. (jj) Trading — Transactions involving the illegal trafficking of dangerous drugs and/or controlled precursors and essential chemicals using electronic devices such as, but not limited to, text messages, e-mail, mobile or landlines, two-way radios, internet, instant messengers and chat rooms or acting as a broker in any of such transactions whether for money or any other consideration in violation of this Act. (kk) Use — A n y act of injecting, intravenously or intramuscularly, of consuming, either by chewing, smoking, sniffing, eating, swallowing, drinking or otherwise introducing into the physiological system of the body, any of the dangerous drugs. ARTICLE II U N L A W F U L ACTS A N D PENALTIES S E C . 4. Importation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. — T h e penalty of life imprisonment to death and a fine ranging from F i v e hundred thousand pesos (P500,000.00) to T e n million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall import or bring into the Philippines any dangerous drug, regardless of the quantity and purity involved, including any and all species of opium poppy or any part thereof or substances derived therefrom even for floral, decorative and culinary purposes. The penalty of imprisonment ranging from t w e l v e (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to F i v e hundred thousand pesos (P500,000.00) shall be imposed upon any person, who, unless authorized by law, shall import any controlled precursor and essential chemical. The maximum penalty provided for under this Section shall be imposed upon any person, who, unless authorized under this Act, shall import or bring into the Philippines any dangerous drug and/or controlled precursor and essential chemical through the use 500


of a diplomatic port, diplomatic facilities or any other means involving his/her official status intended to facilitate the unlawful entry of the same. In addition, the diplomatic port shall be confiscated and canceled. T h e maximum penalty provided for under this Section shall be imposed upon any person, who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in this Section. T h e penalty of t w e l v e (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to F i v e hundred thousand pesos (P500,000.00) shall be imposed upon any person, w h o acts as a "protector/coddler" of any violator of the provisions under this Section. S E C . 5. Sale, Trading, istration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. — T h e penalty of life imprisonment to death and a fine ranging from F i v e hundred thousand pesos (P500.000.00) to T e n million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, ister, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. T h e penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100.000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, ister, dispense, deliver, give away to another, distribute, dispatch in transit or transport any controlled precursor and essential chemical, or shall act as a broker in such transactions. If the sale, trading, istration, dispensation, delivery, distribution or transportation of any dangerous drug and/or controlled precursor and essential chemical transpires within one hundred (100) meters from the school, the maximum penalty shall be imposed in every case. For drug pushers who use minors or mentally incapacitated individuals as runners, couriers and messengers, or in any other 501


capacity directly connected to the dangerous drugs and/or controlled precursors and essential chemicals trade, the maximum penalty shall be imposed in every case. If the victim of the offense is a minor or a mentally incapacitated individual, or should a dangerous drug and/or a controlled precursor and essential chemical involved in any offense herein provided be the proximate cause of death of a victim thereof, the maximum penalty provided for under this Section shall be imposed. The maximum penalty provided for under this Section shall be imposed upon any person who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in this Section. The penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500.000.00) shall be imposed upon any person, who acts as a "protector/coddler" of any violator of the provisions under this Section. S E C . 6. Maintenance of a Den, Dive or Resort. — The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10.000.000.00) shall be imposed upon any person or group of persons who shall maintain a den, dive or resort where any dangerous drug is used or sold in any form. The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100.000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person or group of persons who shall maintain a den, dive, or resort where any controlled precursor and essential chemical is used or sold in any form. The maximum penalty provided for under this Section shall be imposed in every case where any dangerous drug is istered, delivered or sold to a minor who is allowed to use the same in such a place. Should any dangerous drug be the proximate cause of the death of a person using the same in such den, dive or resort, the penalty of death and a fine ranging from One million (Pl,000,000.00) to Fifteen million pesos (Pl5,000,000.00) shall be imposed on the maintainer, owner and/or operator.

502

(Republic Act No. 9165)

If such den, dive or resort is owned by a third person, the lame shall be confiscated and escheated in favor of the government: Provided, That the criminal complaint shall specifically allege that iuch place is intentionally used in the furtherance of the crime: ^ovided, further, That the prosecution shall prove such intent on he part of the owner to use the property for such purpose: Provided, inally, That the owner shall be included as an accused in the ximinal complaint. The maximum penalty provided for under this Section shall >e imposed upon any person who organizes, manages or acts as a financier" of any of the illegal activities prescribed in this Section. The penalty of twelve (12) years and one (1) day to twenty (20) rears of imprisonment and a fine ranging from One hundred thousand >esos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as a "protector/coddler" )f any violator of the provisions under this Section. S E C . 7. Employees and Visitors of a Den, Dive or Resort. — The jenalty of imprisonment ranging from twelve (12) years and one 1) day to twenty (20) years and a fi.ie ranging from One hundred thousand pesos (P100.000.00) to Five hundred thousand pesos P500.000.00) shall be imposed upon: (a) Any employee of a den, dive or resort, who is aware of the lature of the place as such; and (b) Any person who, not being included in the provisions of ;he next preceding paragraph, is aware of the nature of the place as juch and shall knowingly visit the same. S E C . 8. Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. — The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500.000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall engage in the manufacture of any dangerous drug. The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine .ranging from One hundred thousand pesos (P100.000.00) to Five hundred thousand pesos (P500.000.00) shall be imposed upon any person, who, unless authorized by law, shall manufacture any controlled precursor and essential chemical. 503


The presence of any controlled precursor and essential chemical or laboratory equipment in the clandestine laboratory is a prima facie proof of manufacture of any dangerous drug. It shall be considered an aggravating circumstance if the clandestine laboratory is undertaken or established under the following circumstances: (a) Any phase of the manufacturing process was conducted in the presence or with the help of minor/s; (b) Any phase or manufacturing process was established or undertaken within one hundred (100) meters of a residential, business, church or school premises; (c) Any clandestine laboratory was secured or protected with booby traps; (d) Any clandestine laboratory was concealed with legitimate business operations; or (e) Any employment of a practitioner, chemical engineer, public official or foreigner. The maximum penalty provided for under this Section shall be imposed upon any person, who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in this Section. The penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as a "protector/coddler" of any violator of the provisions under this Section. S E C . 9. Illegal Chemical Diversion of Controlled Precursors and Essential Chemicals. — The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who, unless authorized by law, shall illegally divert any controlled precursor and essential chemical. S E C . 10. Manufacture or Delivery of Equipment, Instrument, Apparatus, and Other Paraphernalia for Dangerous Drugs and/ or Controlled Precursors and Essential Chemicals. — The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P 100,000.00) to Five hundred thousand pesos (P500,000.00) 504

(Republic Act No. 9165)

shall be imposed upon any person who shall deliver, possess with intent to deliver, or manufacture with intent to deliver equipment, instrument, apparatus and other paraphernalia for dangerous drugs, knowing, or under circumstances where one reasonably should know, that it w i l l be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal any dangerous drug and/or controlled precursor and essential chemical in violation of this Act. T h e penalty of imprisonment ranging from six (6) months and ane (1) day to four (4) years and a fine ranging from T e n thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed if it will be used to inject, ingest, inhale or otherwise introduce into the human body a dangerous drug in violation of this mule tot. T h e maximum penalty provided for under this Section shall be imposed upon any person, who uses a minor or a mentally incapacitated individual to deliver such equipment, instrument, apparatus and other paraphernalia for dangerous drugs. S E C . 11. Possession of Dangerous Drugs. — T h e penalty of life imprisonment to death and a fine ranging from F i v e hundred thousand pesos (P500,000.00) to T e n million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess any dangerous drug in the following quantities, regardless of the degree of purity thereof: (1)

10 grams or more of opium;

(2)

10 grams or more of morphine;

(3)

10 grams or more of heroin;

(4)

10 grams or more of cocaine or cocaine hydrochloride;

(5) "shabu;"

50 grams or more of methamphetamine hydrochloride or

(6)

10 grams or more of marijuana resin or marijuana resin

(7)

500 grams or more of marijuana; and

oil;

(8) 10 grams or more of other dangerous drugs such as, but not limited to, methylenedioxymethamphetamine ( M D M A ) or "ecstasy, 505


paramethoxyamphetamine ( P M A ) trimethoxyamphetamine ( T M A ) , lysergic acid diethylamine ( L S D ) , gamma hydroxybutyrate ( G H B ) , and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements, as determined and promulgated by the Board in accordance to Section 93, Article XI of this Act. Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows: (1) Life imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00) to F i v e hundred thousand pesos (P500,000.00), if the quantity of methamphetamine hydrochloride or "shabu" is ten (10) grams or more but less than fifty (50) grams; (2) Imprisonment of twenty (20) years and one (1) day to life imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00) to F i v e hundred thousand pesos (P500,000.00), if the quantities of dangerous drugs are five (5) grams or more but less than ten (10) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride or "shabu," or other dangerous drugs such as, but not limited to, M D M A or "ecstasy," P M A , T M A , L S D , G H B , and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or three hundred (300) grams or more but less than five hundred (500) grams of marijuana; and (3) Imprisonment of t w e l v e (12) years and one (1) day to twenty (20) years and a fine ranging from T h r e e hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride or "shabu," or other dangerous drugs such as, but not limited to, M D M A o r "ecstasy," P M A , T M A , L S D , G H B , and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or less than three hundred (300) grams of marijuana.

506


S E C . 12. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs. — T h e penalty of imprisonment ranging from six (6) months and one (1) day to four (4) years and a fine ranging from T e n thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess or have under his/her control any equipment, instrument, apparatus and other paraphernalia fit or intended for smoking, consuming, istering, injecting, ingesting, or introducing any dangerous drug into the body: Provided, T h a t in the case of medical practitioners and various professionals who are required to carry such equipment, instrument, apparatus and other paraphernalia in the practice of their profession, the Board shall prescribe the necessary implementing guidelines thereof. T h e possession of such equipment, instrument, apparatus and other paraphernalia fit or intended for any of the purposes enumerated in the preceding paragraph shall be prima facie evidence that the possessor has smoked, consumed, istered to himself/herself, injected, ingested or used a dangerous drug and shall be presumed to have violated Section 15 of this Act. S E C . 13. Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings. — A n y person found possessing any dangerous drug during a party, or at a social gathering or meeting, or in the proximate company of at least two (2) persons, shall suffer the maximum penalties provided for in Section 11 of this Act, regardless of the quantity and purity of such dangerous drugs. S E C . 14. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings. — T h e maximum penalty provided for in Section 12 of this A c t shall be imposed upon any person, who shall possess or have under his/her control any equipment, instrument, apparatus and other paraphernalia fit or intended for smoking, consuming, istering, injecting, ingesting, or introducing any dangerous drug into the body, during parties, social gatherings or meetings, or in the proximate company of at least two (2) persons. S E C . 15. Use of Dangerous Drugs. — A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a 507


minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article V I I I of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (P50,000.00) to T w o hundred thousand pesos (P200,000.00): Provided, That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply. S E C . 16. Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources Thereof. — T h e penalty of life imprisonment to death and a fine ranging from F i v e hundred thousand pesos (P500,000.00) to T e n million pesos (P10,000,000.00) shall be imposed upon any person, who shall plant, cultivate or culture marijuana, opium poppy or any other plant regardless of quantity, which is or may hereafter be classified as a dangerous drug or as a source from which any dangerous drug may be manufactured or derived: Provided, T h a t in the case of medical laboratories and medical research centers which cultivate or culture marijuana, opium poppy and other plants, or materials of such dangerous drugs for medical experiments and research purposes, or for the creation of new types of medicine, the Board shall prescribe the necessary implementing guidelines for the proper cultivation, culture, handling, experimentation and disposal of such plants and materials. The land or portions thereof and/or greenhouses on which any of said plants is cultivated or cultured shall be confiscated and escheated in favor of the State, unless the owner thereof can prove lack of knowledge of such cultivation or culture despite the exercise of due diligence on his/her part. If the land involved is part of the public domain, the maximum penalty provided for under this Section shall be imposed upon the offender. T h e maximum penalty provided for under this Section shall be imposed upon any person, who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in this Section. T h e penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to F i v e hundred thousand pesos (P500.000.00) 508


shall be imposed upon any person, who acts as a "protector/coddler" of any violator of the provisions under this Section. S E C . 17. Maintenance and Keeping of Original Records of Transactions on Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. — T h e penalty of imprisonment ranging from one (1) year and one (1) day to six (6) years and a fine ranging from T e n thousand pesos (P10,000.00) to Fifty thousand pesos (P50.000.00) shall be imposed upon any practitioner, manufacturer, wholesaler, importer, distributor, dealer or retailer who violates or fails to comply with the maintenance and keeping of the original records of transactions on any dangerous drug and/or controlled precursor and essential chemical in accordance with Section 40 of this Act. An additional penalty shall be imposed through the revocation of the license to practice his/her profession, in case of a practitioner, or of the business, in case of a manufacturer, seller, importer, distributor, dealer or retailer. S E C . 18. Unnecessary Prescription of Dangerous Drugs. — The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to F i v e hundred thousand pesos (P500,000.00) and the additional penalty of the revocation of his/ her license to practice shall be imposed upon the practitioner, who shall prescribe any dangerous drug to any person whose physical or physiological condition does not require the use or in the dosage prescribed therein, as determined by the Board in consultation with recognized competent experts who are authorized representatives of professional organizations of practitioners, particularly those who are involved in the care of persons with severe pain. S E C . 19. Unlawful Prescription of Dangerous Drugs. — The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500.000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall make or issue a prescription or any other writing purporting to be a prescription for any dangerous drug. S E C . 20. Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act, Including the Properties or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs 509


and/or Precursors and Essential Chemicals. — Every penalty imposed for the unlawful importation, sale, trading, istration, dispensation, delivery, distribution, transportation or manufacture of any dangerous drug and/or controlled precursor and essential chemical, the cultivation or culture of plants which are sources of dangerous drugs, and the possession of any equipment, instrument, apparatus and other paraphernalia for dangerous drugs including other laboratory equipment, shall carry with it the confiscation and forfeiture, in favor of the government, of all the proceeds and properties derived from the unlawful act, including, but not limited to, money and other assets obtained thereby, and the instruments or tools with which the particular unlawful act was committed, unless they are the property of a third person not liable for the unlawful act, but those which are not of lawful commerce shall be ordered destroyed without delay pursuant to the provisions of Section 21 of this Act. After conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and all the assets and properties of the accused either owned or held by him or in the name of some other persons if the same shall be found to be manifestly out of proportion to his/her lawful income: Provided, however, T h a t if the forfeited property is a vehicle, the same shall be auctioned off not later than five (5) days upon order of confiscation or forfeiture. During the pendency of the case in the Regional T r i a l Court, no property, or income derived therefrom, which may be confiscated and forfeited, shall be disposed, alienated or transferred and the same shall be in custodia legis and no bond shall be itted for the release of the same. T h e proceeds of any sale or disposition of any property confiscated or forfeited under this Section shall be used to pay all proper expenses incurred in the proceedings for the confiscation, forfeiture, custody and maintenance of the property pending disposition, as well as expenses for publication and court costs. T h e proceeds in excess of the above expenses shall accrue to the Board to be used in its campaign against illegal drugs. S E C . 21. Custody and Disposition of Confiscated, Seized, and/ or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, 510


Controlled Precursors and Essential Chemicals, Instruments/ Paraphernalia and/or Laboratory Equipment. — T h e P D E A shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) T h e apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice ( D O J ) , and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; (2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/ paraphernalia and/or laboratory equipment, the same shall be submitted to the P D E A Forensic Laboratory for a qualitative and quantitative examination; (3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours; (4) After the filing of the criminal case, the Court shall, within seventy-two (72) hours, conduct an ocufcur inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals, including the instruments/paraphernalia and/or laboratory equipment, and through the P D E A shall within 511


twenty-four (24) hours thereafter proceed with the destruction or burning of the same, in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender: Provided, That those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes: Provided, further, That a representative sample, duly weighed and recorded is retained; (5) The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s, which, together with the representative sample/s in the custody of the P D E A , shall be submitted to the court having jurisdiction over the case. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board; (6) The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an ission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within seventy-two (72) hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney's office to represent the former; (7) After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the P D E A for proper disposition and destruction within twenty-four (24) hours from receipt of the same; and X X X

S E C . 23. Plea-Bargaining Provision. — A n y person charged under any provision of this A c t regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining.

512


S E C . 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. — A n y person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation L a w or Presidential Decree N o . 968, as amended. SEC. 25. Qualifying Aggravating Circumstances in the Commission of a Crime by an Offender Under the Influence of Dangerous Drugs. — Notwithstanding the provisions of any law to the contrary, a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable. S E C . 26. Attempt or Conspiracy. — A n y attempt or conspiracy to commit the following unlawful acts shall be penalized by the same penalty prescribed for the commission of the same as provided under this Act: no attempt on use. ( a ) Importation of any dangerous drug and/or controlled precursor and essential chemical; (b) Sale, trading, istration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical; (c) Maintenance of a den, dive or resort where any dangerous drug is used in any form; (d) Manufacture of any dangerous drug and/or controlled precursor and essential chemical; and (e) Cultivation or culture of plants which are sources of dangerous drugs. S E C . 27. Criminal Liability of a Public Officer or Employee for Misappropriation, Misapplication or Failure to for the Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments / Paraphernalia and/or Laboratory Equipment Including the Proceeds or Properties Obtained from the Unlawful Act Committed. — T h e penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500.000.00) to T e n million pesos (P10,000,000.00), in addition to

513


absolute perpetual disqualification from any public office, shall be imposed upon any public officer or employee who misappropriates, misapplies or fails to for confiscated, seized or surrendered dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment including the proceeds or properties obtained from the unlawful acts as provided for in this Act. A n y elective local or national official found to have benefited from the proceeds of the trafficking of dangerous drugs as prescribed in this Act, or have received any financial or material contributions or donations from natural or juridical persons found guilty of trafficking dangerous drugs as prescribed in this Act, shall be removed from office and perpetually disqualified from holding any elective or appointive positions in the government, its divisions, subdivisions, and intermediaries, including government-owned or controlled corporations. S E C . 28. Criminal Liability of Government Officials and Employees. — T h e maximum penalties of the unlawful acts provided for in this Act shall be imposed, in addition to absolute perpetual disqualification from any public office, if those found guilty of such unlawful acts are governmenc officials and employees. S E C . 29. Criminal Liability for Planting of Evidence. — A n y person who is found guilty of "planting" any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death. SEC. 30. Criminal Liability of Officers of Partnerships, Corporations, Associations or Other Juridical Entities. — In case any violation of this Act is committed by a partnership, corporation, association or any juridical entity, the partner, president, director, manager, trustee, estate , or officer who consents to or knowingly tolerates such violation shall be held criminally liable as a co-principal. T h e penalty provided for the offense under this A c t shall be imposed upon the partner, president, director, manager, trustee, estate , or officer who knowingly authorizes, tolerates or consents to the use of a vehicle, vessel, aircraft, equipment or other facility, as an instrument in the importation, sale, trading, istration, dispensation, delivery, distribution, transportation 514


or manufacture of dangerous drugs, or chemical diversion, if such vehicle, vessel, aircraft, equipment or other instrument is owned by or under the control or supervision of the partnership, corporation, association or juridical entity to which they are d. S E C . 31. Additional Penalty if Offender is an Alien. — In addition to the penalties prescribed in the unlawful act committed, any alien who violates such provisions of this Act shall, after service of sentence, be deported immediately without further proceedings, unless the penalty is death. S E C . 32. Liability to a Person Violating Any Regulation Issued by the Board. — T h e penalty of imprisonment ranging from six (6) months and one (1) day to four (4) years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed upon any person found violating any regulation duly issued by the Board pursuant to this Act, in addition to the istrative sanctions imposed by the Board. S E C . 33. Immunity from Prosecution and Punishment. — Notwithstanding the provisions of Section 17, Rule 119 of the Revised Rules of Criminal Procedure and the provisions of Republic A c t N o . 6981 or the Witness Protection, Security and Benefit Act of 1991, any person who has violated Sections 7, 11, 12, 14, 15, and 19, Article II of this Act, who voluntarily gives information about any violation of Sections 4, 5, 6, 8, 10, 13, and 16, Article II of this Act as well as any violation of the offenses mentioned if committed by a drug syndicate, or any information leading to the whereabouts, identities and arrest of all or any of the thereof; and who willingly testifies against such persons as described above, shall be exempted from prosecution or punishment for the offense with reference to which his/her information of testimony were given, and may plead or prove the giving of such information and testimony in bar of such prosecution: Provided, That the following conditions concur: (1) T h e information and testimony are necessary for the conviction of the persons described above; (2) Such information and testimony are not yet in the possession of the State; (3) Such information and testimony can be corroborated on its material points; 515


(4) The informant or witness has not been previously convicted of a crime involving moral turpitude, except when there is no other direct evidence available for the State other than the information and testimony of said informant or witness; and (5) The informant or witness shall strictly and faithfully comply without delay, any condition or undertaking, reduced into writing, lawfully imposed by the State as further consideration for the grant of immunity from prosecution and punishment. Provided, further, That this immunity may be enjoyed by such informant or witness who does not appear to be most guilty for the offense with reference to which his/her information or testimony were given: Provided, finally, That there is no direct evidence available for the State except for the information and testimony of the said informant or witness. SEC.

34.

Termination of the

Grant of Immunity. — The im-

munity granted to the informant or witness, as prescribed in Section 33 of this Act, shall not attach should it turn out subsequently that the information and/or testimony is false, malicious or made only for the purpose of harassing, molesting or in any way prejudicing the persons described in the preceding Section against whom such information or testimony is directed against. In such case, the informant or witness shall be subject to prosecution and the enjoyment of all rights and benefits previously accorded him under this Act or any other law, decree or order shall be deemed terminated. In case an informant or witness under this Act fails or refuses to testify without just cause, and when lawfully obliged to do so, or should he/she violate any condition accompanying such immunity as provided above, his/her immunity shall be removed and he/she shall likewise be subject to contempt and/or criminal prosecution, as the case may be, and the enjoyment of all rights and benefits previously accorded him under this Act or in any other law, decree or order shall be deemed terminated. In case the informant or witness referred to under this Act falls under the applicability of this Section hereof, such individual cannot avail of the provisions under Article VIII of this Act. SEC. 35. Accessory Penalties. — A person convicted under this Act shall be disqualified to exercise his/her civil rights such as but not limited to, the rights of parental authority or guardianship, either as to the person or property of any ward, the rights to dispose 516


of such property by any act or any conveyance inter vivos, and political rights such as but not limited to, the right to vote and be voted for. Such rights shall also be suspended during the pendency of an appeal from such conviction. A R T I C L E III D A N G E R O U S D R U G S TEST AND RECORD REQUIREMENTS S E C . 36. Authorized Drug Testing. — Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the D O H to safeguard the quality of test results. T h e D O H shall take steps in setting the price of the drug test with D O H accredited drug testing centers to further reduce the cost of such drug test. T h e drug testing shall employ, among others, t w o (2) testing methods, the screening test which will determine the positive result as well as the type of the drug used and the confirmatory test which will confirm a positive screening test. Drug test certificates issued by accredited drug testing centers shall be valid for a one-year period from the date of issue which may be used for other purposes. T h e following shall be subjected to undergo drug testing: (a) Applicants for driver's license. — No driver's license shall be issued or renewed to any person unless he/she presents a certification that he/she has undergone a mandatory drug test and indicating thereon that he/she is free from the use of dangerous drugs; (b) Applicants for firearm's license and for permit to carry firearms outside of residence. — A l l applicants for firearm's license and permit to carry firearms outside of residence shall undergo a mandatory drug test to ensure that they are free from the use of dangerous drugs: Provided, That all persons who by the nature of their profession carry firearms shall undergo drug testing; (c) Students of secondary and tertiary schools. — Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing: Provided, That all drug testing expenses whether in public or private schools under this Section will be borne by the government; 517


(d) Officers and employees of public and private offices. — Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company's work rules and regulations, which shall be borne by the employer, for purposes of reducing the risk in the workplace. A n y officer or employee found positive for use of dangerous drugs shall be dealt with istratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law; (e) Officers and of the military, police and other law enforcement agencies. — Officers and of the military, police and other law enforcement agencies shall undergo an annual mandatory drug test; (f) A l l persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall have to undergo a mandatory drug test; and ( g ) A l l candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act. S E C . 37. Issuance of False or Fraudulent Drug Test Results. — A n y person authorized, licensed or accredited under this A c t and its implementing rules to conduct drug examination or test, who issues false or fraudulent drug test results knowingly, willfully or through gross negligence, shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to t w e l v e (12) years and a fine ranging from One hundred thousand pesos (P100,000.00) to F i v e hundred thousand pesos (P500,000.00). An additional penalty shall be imposed through the revocation of the license to practice his/her profession in case of a practitioner, and the closure of the drug-testing center. S E C . 38. Laboratory Examination or Test on Apprehended/ Arrested Offenders. — Subject to Section 15 of this Act, any person apprehended or arrested for violating the provisions of this A c t shall 518


be subjected to screening laboratory examination or test within twenty-four (24) hours, if the apprehending or arresting officer has reasonable ground to believe that the person apprehended or arrested, on of physical signs or symptoms or other visible or outward manifestation, is under the influence of dangerous drugs. If found to be positive, the results of the screening laboratory examination or test shall be challenged within fifteen (15) days after receipt of the result through a confirmatory test conducted in any accredited analytical laboratory equipment with a gas chromatograph/mass spectrometry equipment or some such modern and accepted method, if confirmed the same shall be prima facie evidence that such person has used dangerous drugs, which is without prejudice for the prosecution for other violations of the provisions of this A c t : Provided, T h a t a positive screening laboratory test must be confirmed for it to be valid in a court of law. S E C . 39. Accreditation of Drug Testing Centers and Physicians. — The D O H shall be tasked to license and accredit drug testing centers in each province and city in order to assure their capacity, competence, integrity and stability to conduct the laboratory examinations and tests provided in this Article, and appoint such technical and other personnel as may be necessary for the effective implementation of this provision. T h e D O H shall also accredit physicians who shall conduct the drug dependency examination of a drug dependent as well as the after-care and follow-up program for the said drug dependent. There shall be a control regulations, licensing and accreditation division under the supervision of the D O H for this purpose. For this purpose, the D O H shall establish, operate and maintain drug testing centers in government hospitals, which must be provided at least with basic technologically advanced equipment and materials, in order to conduct the laboratory examination and tests herein provided, and appoint such qualified and duly trained technical and other personnel as may be necessary for the effective implementation of this provision. S E C . 40. Records Required for Transactions on Dangerous Drugs and Precursors and Essential Chemicals. — (a) Every pharmacist dealing in dangerous drugs and/ or controlled precursors and essential chemicals shall maintain and keep an original record of sales, purchases, acquisitions and 519


deliveries of dangerous drugs, indicating therein the following information: (1)

License number and address of the pharmacist;

(2) Name, address and license of the manufacturer, importer or wholesaler from whom the dangerous drugs have been purchased; (3) Quantity and name of the dangerous drugs purchased or acquired; (4)

Date of acquisition or purchase;

(5) Name, address and community tax certificate number of the buyer; (6) Serial number of the prescription and the name of the physician, dentist, veterinarian or practitioner issuing the same; (7) Quantity and name of the dangerous drugs sold or delivered; and (8)

Date of sale or delivery.

A certified true copy of such record covering a period of six (6) months, duly signed by the pharmacist or the owner of the drugstore, pharmacy or chemical establishment, shall be forwarded to the Board within fifteen (15) days following the last day of June and December of each year, with a copy thereof furnished the city or municipal health officer concerned. (b) A physician, dentist, veterinarian or practitioner authorized to prescribe any dangerous drug shall issue the prescription therefor in one (1) original and t w o (2) duplicate copies. The original, after the prescription has been filled, shall be retained by the pharmacist for a period of one (1) year from the date of sale or delivery of such drug. One (1) copy shall be retained by the buyer or by the person to whom the drug is delivered until such drug is consumed, while the second copy shall be retained by the person issuing the prescription. For purposes of this Act, all prescriptions issued by physicians, dentists, veterinarians or practitioners shall be written on forms exclusively issued by and obtainable from the D O H . Such forms shall be made of a special kind of paper and shall be distributed in such quantities and contain such information and other data as the D O H may, by rules and regulations, require. Such forms shall only be issued by the D O H through its authorized employees to licensed

520


physicians, dentists, veterinarians and practitioners in such quantities as the Board may authorize. In emergency cases, however, as the Board may specify in the public interest, a prescription need not be accomplished on such forms. T h e prescribing physician, dentist, veterinarian or practitioner shall, within three (3) days after issuing such prescription, inform the D O H of the same in writing. No prescription once served by the drugstore or pharmacy be reused nor any prescription once issued be refilled. (c) A l l manufacturers, wholesalers, distributors, importers, dealers and retailers of dangerous drugs and/or controlled precursors and essential chemicals shall keep a record of all inventories, sales, purchases, acquisitions and deliveries of the same as well as the names, addresses and licenses of the persons from whom such items were purchased or acquired or to whom such items were sold or delivered, the name and quantity of the same and the date of the transactions. Such records may be subjected anytime for review by the Board. ARTICLE IV PARTICIPATION OF THE FAMILY, STUDENTS, TEACHERS A N D SCHOOL AUTHORITIES IN THE E N F O R C E M E N T OF THIS ACT XXX

XXX

x x x

S E C . 44. Heads, Supervisors, and Teachers of Schools. — For the purpose of enforcing the provisions of Article II of this Act, all school heads, supervisors and teachers shall be deemed persons in authority and, as such, are hereby empowered to apprehend, arrest or cause the apprehension or arrest of any person who shall violate any of the said provisions, pursuant to Section 5, Rule 113 of the Rules of Court. They shall be deemed persons in authority if they are in the school or within its immediate vicinity, or even beyond such immediate vicinity if they are in attendance at any school or class function in their official capacity as school heads, supervisors, and teachers. A n y teacher or school employee, who discovers or finds that any person in the school or within its immediate vicinity is liable for violating any of said provisions, shall have the duty to report the same to the school head or immediate superior who shall, in turn, report the matter to the proper authorities. 521


Failure to do so in either case, within a reasonable period from the time of discovery of the violation shall, after due hearing, constitute sufficient cause for disciplinary action by the school authorities. XXX.

ARTICLE VII PARTICIPATION OF LOCAL GOVERNMENT UNITS x x x. S E C . 52. Abatement of Drug Related Public Nuisances. — A n y place or premises which have been used on two or more occasions as the site of the unlawful sale or delivery of dangerous drugs may be declared to be a public nuisance, and such nuisance may be abated, pursuant to the following procedures: (1) A n y city or municipality may, by ordinance, create an istrative board to hear complaints regarding the nuisances; (2) A n y employee, officer, or resident of the city or municipality may bring a complaint before the Board after giving not less than three (3) days written notice of such complaint to the owner of the place or premises at his/her last known address; and (3) After hearing in which the Board may consider any evidence, including evidence of the general reputation of the place or premises, and at which the owner of the premises shall have an opportunity to present evidence in his/her defense, the Board may declare the place or premises to be a public nuisance. S E C . 53. Effect of Board Declaration. — If the Board declares a place or premises to be a public nuisance, it may declare an order immediately prohibiting the conduct, operation, or maintenance of any business or activity on the premise, which is conducive to such nuisance. An order entered under this Section shall expire after one (1) year or at such earlier time as stated in the order. T h e Board may bring a complaint seeking a permanent injunction against any nuisance described under this Section. This Article does not restrict the right of any person to proceed under the Civil Code against any public nuisance. 522


ARTICLE VIII P R O G R A M FOR TREATMENT A N D REHABILITATION OF DRUG DEPENDENTS S E C . 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation. — A drug dependent or any person who violates Section 15 of this A c t may, by himself/herself or through his/her parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity, apply to the Board or its duly recognized representative, for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court, which shall order that the applicant be examined for drug dependency. If the examination by a D O H accredited physician results in the issuance of a certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board for a period of not less than six (6) months: Provided, That a drug dependent may be placed under the care of a D O H accredited physician where there is no Center near or accessible to the residence of the drug dependent or where said drug dependent is below eighteen (18) years of age and is a first-time offender and non-confinement in a Center will not pose a serious danger to his/ her family or the community. Confinement in a Center for treatment and rehabilitation shall not exceed one (1) year, after which time the Court, as well as the Board, shall be apprised by the head of the treatment and rehabilitation center of the status of said drug dependent and determine whether further confinement will be for the welfare of the drug dependent and his/her family or the community. S E C . 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. — A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to the following conditions: (1) He/she has complied with the rules and regulations of the Center, the applicable rules and regulations of the Board, including the after-care and follow-up program for at least eighteen (18) months following temporary discharge from confinement in the Center or, in the case of a dependent placed under the care of the DOH-accredited physician, the after-care program and follow-up schedule formulated 523


by the D S W D and approved by the Board: Provided, That capabilitybuilding of local government social workers shall be undertaken by the DSWD; (2) He/she has never been charged or convicted of any offense punishable under this Act, the Dangerous Drugs Act of 1972 or Republic Act N o . 6425, as amended; the Revised Penal Code, as amended; or any special penal laws; (3) He/she has no record of escape from a Center: Provided, That had he/she escaped, he/she surrendered by himself/herself or through his/her parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity, within one (1) week from the date of the said escape; and (4) He/she poses no serious danger to himself/herself, his/ her family or the community by his/her exemption from criminal liability. S E C . 56. Temporary Release From the Center; After-Care and Follow-Up Treatment Under the Voluntary Submission Program. — Upon certification of the Center that the drug dependent within the voluntary submission program may be temporarily released, the Court shall order his/her release on condition that said drug dependent shall report to the D O H for after-care and follow-up treatment, including urine testing, for a period not exceeding eighteen (18) months under such and conditions that the Court may impose. If during the period of after-care and follow-up, the drug dependent is certified to be rehabilitated, he/she may be discharged by the Court, subject to the provisions of Section 55 of this Act, without prejudice to the outcome of any pending case filed in court. However, should the D O H find that during the initial after-care and follow-up program of eighteen (18) months, the drug dependent requires further treatment and rehabilitation in the Center, he/she shall be recommitted to the Center for confinement. Thereafter, he/she may again be certified for temporary release and ordered released for another after-care and follow-up program pursuant to this Section. S E C . 57. Probation and Community Service Under the Voluntary Submission Program. — A drug dependent who is discharged as rehabilitated by the DOH-accredited Center through 524


the voluntary submission program, but does not qualify for exemption from criminal liability under Section 55 of this Act, may be charged under the provisions of this Act, but shall be placed on probation and undergo a community service in lieu of imprisonment and/or fine in the discretion of the court, without prejudice to the outcome of any pending case filed in court. Such drug dependent shall undergo community service as part of his/her after-care and follow-up program, which may be done in coordination with nongovernmental civic organizations accredited by the D S W D , with the recommendation of the Board. S E C . 58. Filing of Charges Against a Drug Dependent Who is Not Rehabilitated Under the Voluntary Submission Program. — A drug dependent, who is not rehabilitated after the second commitment to the Center under the voluntary submission program, shall, upon recommendation of the Board, be charged for violation of Section 15 of this A c t and prosecuted like any other offender. If convicted, he/she shall be credited for the period of confinement and rehabilitation in the Center in the service of his/her sentence. S E C . 59. Escape and Recommitment for Confinement and Rehabilitation Under the Voluntary Submission Program. — Should a drug dependent under the voluntary submission program escape from the Center, he/she may submit himself/herself for recommitment within one (1) w e e k therefrom, or his/her parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity may, within said period, surrender him for recommitment, in which case the corresponding order shall be issued by the Board. Should the escapee fail to submit himself/herself or be surrendered after one (1) week, the Board shall apply to the court for a recommitment order upon proof of previous commitment or his/her voluntary submission by the Board, the court may issue an order for recommitment within one (1) week. If, subsequent to a recommitment, the dependent once again escapes from confinement, he/she shall be charged for violation of Section 15 of this Act and be subjected under Section 61 of this Act, either upon order of the Board or upon order of the court, as the case may be. S E C . 60. Confidentiality of Records Under the Voluntary Submission Program. — Judicial and medical records of drug depen525


dents under the voluntary submission program shall be confidential and shall not be used against him for any purpose, except to determine how many times, by himself/herself or through his/her parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity, he/she voluntarily submitted himself/herself for confinement, treatment and rehabilitation or has been committed to a Center under this program. S E C . 61. Compulsory Confinement of a Drug Dependent Who Refuses to Apply Under the Voluntary Submission Program. — Notwithstanding any law, rule and regulation to the contrary, any person determined and found to be dependent on dangerous drugs shall, upon petition by the Board or any of its authorized representative, be confined for treatment and rehabilitation in any Center duly designated or accredited for the purpose. A petition for the confinement of a person alleged to be dependent on dangerous drugs to a Center may be filed by any person authorized by the Board with the Regional Trial Court of the province or city where such person is found. After the petition is filed, the court, by an order, shall immediately fix a date for the hearing, and a copy of such order shall be served on the person alleged to be dependent on dangerous drugs, and to the one having charge of him. If after such hearing and the facts so warrant, the court shall order the drug dependent to be examined by two (2) physicians accredited by the Board. If both physicians conclude that the respondent is not a drug dependent, the court shall order his/her discharge. If either physician finds him to be a dependent, the court shall conduct a hearing and consider all relevant evidence, which may be offered. If the court finds him a drug dependent, it shall issue an order for his/her commitment to a treatment and rehabilitation center under the supervision of the D O H . In any event, the order of discharge or order of confinement or commitment shall be issued not later than fifteen (15) days from the filing of the appropriate petition. S E C . 62. Compulsory Submission of a Drug Dependent Charged with an Offense to Treatment and Rehabilitation. — If a person charged with an offense where the imposable penalty is imprisonment of less than six (6) years and one (1) day, and is found by the prosecutor or by the court, at any stage of the proceedings, 526


to be a drug dependent, the prosecutor or the court as the case may be, shall suspend all further proceedings and transmit copies of the record of the case to the Board. In the event the Board determines, after medical examination, that public interest requires that such drug dependent be committed to a center for treatment and rehabilitation, it shall file a petition for his/her commitment with the regional trial court of the province or city where he/she is being investigated or tried: Provided, That where a criminal case is pending in court, such petition shall be filed in the said court. T h e court shall take judicial notice of the prior proceedings in the case and shall proceed to hear the petition. If the court finds him to be a drug dependent, it shall order his/her commitment to a Center for treatment and rehabilitation. The head of said Center shall submit to the court every four (4) months, or as often as the court may require, a written report on the progress of the treatment. If the dependent is rehabilitated, as certified by the Center and the Board, he/she shall be returned to the court, which committed him, for his/her discharge therefrom. Thereafter, his/her prosecution for any offense punishable by law shall be instituted or shall continue, as the case may be. In case of conviction, the judgment shall, if the accused is certified by the treatment and rehabilitation center to have maintained good behavior, indicate that he/she shall be given full credit for the period he/she was confined in the Center: Provided, however, That when the offense is for violation of Section 15 of this Act and the accused is not a recidivist, the penalty thereof shall be deemed to have been served in the Center upon his/her release therefrom after certification by the Center and the Board that he/she is rehabilitated. S E C . 63. Prescription of the Offense Charged Against a Drug Dependent Under the Compulsory Submission Program. — The period of prescription of the offense charged against a drug dependent under the compulsory submission program shall not run during the time that the drug dependent is under confinement in a Center or otherwise under the treatment and rehabilitation program approved by the Board. Upon certification of the Center that he/she may temporarily be discharged from the said Center, the court shall order his/her release on condition that he/she shall report to the Board through the D O H for after-care and follow-up treatment for a period not 527


exceeding eighteen (18) months under such and conditions as may be imposed by the Board. If at anytime during the after-care and follow-up period, the Board certifies to his/her complete rehabilitation, the court shall order his/her final discharge from confinement and order for the immediate resumption of the trial of the case for which he/she is originally charged. Should the Board through the D O H find at anytime during the after-care and follow-up period that he/she requires further treatment and rehabilitation, it shall report to the court, which shall order his/her recommitment to the Center. Should the drug dependent, having been committed to a Center upon petition by the Board escape therefrom, he/she may resubmit himself/herself for confinement within one (1) week from the date of his/her escape; or his/her parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity may, within the same period, surrender him for recommitment. If, however, the drug dependent does not resubmit himself/herself for confinement or he/she is not surrendered for recommitment, the Board may apply with the court for the issuance of the recommitment order. Upon proof of previous commitment, the court shall issue an order for recommitment. If, subsequent to such recommitment, he/she should escape again, he/she shall no longer be exempt from criminal liability for use of any dangerous drug. A drug dependent committed under this particular Section who is finally discharged from confinement shall be exempt from criminal liability under Section 15 of this Act, without prejudice to the outcome of any pending case filed in court. On the other hand, a drug dependent who is not rehabilitated after a second commitment to the Center shall, upon conviction by the appropriate court, suffer the same penalties provided for under Section 15 of this A c t again without prejudice to the outcome of any pending case filed in court. S E C . 64. Confidentiality of Records Under the Compulsory Submission Program. — T h e records of a drug dependent who was rehabilitated and discharged from the Center under the compulsory submission program, or who was charged for violation of Section 15 of this Act, shall be covered by Section 60 of this Act. However, the records of a drug dependent who was not rehabilitated, or who escaped but did not surrender himself/herself within the prescribed period, shall be forwarded to the court and their use shall be 528


determined by the court, taking into consideration public interest and the welfare of the drug dependent. S E C . 65. Duty of the Prosecutor in the Proceedings. It shall be the duty of the provincial or the city prosecutor or their assistants or state prosecutors to prepare the appropriate petition in all proceedings arising from this Act. S E C . 66. Suspension of Sentence of a First-Time Minor Offender. — An accused who is over fifteen (15) years of age at the time of the commission of the offense mentioned in Section 11 of this Act, but not more than eighteen (18) years of age at the time when judgment should have been promulgated after having been found guilty of said offense, may be given the benefits of a suspended sentence, subject to the following conditions: (a) He/she has not been previously convicted of violating any provision of this A c t , or of the Dangerous Drugs A c t of 1972, as amended; or of the Revised Penal Code; or of any special penal laws; (b) He/she has not been previously committed to a Center or to the care of a DOH-accredited physician; and (c) T h e Board favorably recommends that his/her sentence be suspended. While under suspended sentence, he/she shall be under the supervision and rehabilitative surveillance of the Board, under such conditions that the court may impose for a period ranging from six (6) months to eighteen (18) months. Upon recommendation of the Board, the court may commit the accused under suspended sentence to a Center, or to the care of a DOH-accredited physician for at least six (6) months, with aftercare and follow-up program for not more than eighteen (18) months. In the case of minors under fifteen (15) years of age at the time of the commission of any offense penalized under this Act, Article 192 of Presidential Decree N o . 603, otherwise known as the Child and Youth Welfare Code, as amended by Presidential Decree No. 1179 shall apply, without prejudice to the application of the provisions of this Section. S E C . 67. Discharge After Compliance with Conditions of Suspended Sentence of a First-Time Minor Offender. — If the accused first time minor offender under suspended sentence 529


complies with the applicable rules and regulations of the Board, including confinement in a Center, the court, upon a favorable recommendation of the Board for the final discharge of the accused, shall discharge the accused and dismiss all proceedings. Upon the dismissal of the proceedings against the accused, the court shall enter an order to expunge all official records, other than the confidential record to be retained by the DOJ relating to the case. Such an order, which shall be kept confidential, shall restore the accused to his/her status prior to the case. He/she shall not be held thereafter to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to any inquiry made of him for any purpose. S E C . 68. Privilege of Suspended Sentence to be Availed of Only Once by a First-Time Minor Offender. — T h e privilege of suspended sentence shall be availed of only once by an accused drug dependent who is a first-time offender over fifteen (15) years of age at the time of the commission of the violation of Section 15 of this A c t but not more than eighteen (18) years of age at the time when judgment should have been promulgated. S E C . 69. Promulgation of Sentence for First-Time Minor Offender. —- If the accused first-time minor offender violates any of the conditions of his/her suspended sentence, the applicable rules and regulations of the Board exercising supervision and rehabilitative surveillance over him, including the rules and regulations of the Center should confinement be required, the court shall pronounce judgment of conviction and he/she shall serve sentence as any other convicted person. S E C . 70. Probation or Community Service for a First-Time Minor Offender in Lieu of Imprisonment. — Upon promulgation of the sentence, the court may, in its discretion, place the accused under probation, even if the sentence provided under this A c t is higher than that provided under existing law on probation, or impose community service in lieu of imprisonment. In case of probation, the supervision and rehabilitative surveillance shall be undertaken by the Board through the D O H in coordination with the Board of Pardons and Parole and the Probation istration. Upon compliance with the conditions of the probation, the Board shall submit a written report to the court recommending termination of probation and a 530


final discharge of the probationer, whereupon the court shall issue such an order. T h e community service shall be complied with under conditions, time and place as may be determined by the court in its discretion and upon the recommendation of the Board and shall apply only to violators of Section 15 of this Act. T h e completion of the community service shall be under the supervision and rehabilitative surveillance of the Board during the period required by the court. Thereafter, the Board shall render a report on the manner of compliance of said community service. T h e court in its discretion may require extension of the community service or order a final discharge. In both cases, the judicial records shall be covered by the provisions of Sections 60 and 64 of this Act. If the sentence promulgated by the court requires imprisonment, the period spent in the Center by the accused during the suspended sentence period shall be deducted from the sentence to be served. S E C . 71. Records to be kept by the Department of Justice. — The D O J shall keep a confidential record of the proceedings on suspension of sentence and shall not be used for any purpose other than to determine whether or not a person accused under this Act is a first-time minor offender. S E C . 72. Liability of a Person Who Violates the Confidentiality of Records. — T h e penalty of imprisonment ranging from six (6) months and one (1) day to six (6) years and a fine ranging from One thousand pesos (Pl.OOO.OO) to Six thousand pesos (P6,000.00), shall be imposed upon any person who, having official custody of or access to the confidential records of any drug dependent under voluntary submission programs, or anyone who, having gained possession of said records, whether lawfully or not, reveals their content to any person other than those charged with the prosecution of the offenses under this Act and its implementation. T h e maximum penalty shall be imposed, in addition to absolute perpetual disqualification from any public office, when the offender is a government official or employee. Should the records be used for unlawful purposes, such as blackmail of the drug dependent or the of his/her family, the penalty imposed for the crime of violation of confidentiality shall be in addition to whatever crime he/she may be convicted of.

531


S E C . 73. Liability of a Parent, Spouse or Guardian Who Refuses to Cooperate with the Board or any Concerned Agency. — A n y parent, spouse or guardian who, without valid reason, refuses to cooperate with the Board or any concerned agency in the treatment and rehabilitation of a drug dependent who is a minor, or in any manner, prevents or delays the after-care, follow-up or other programs for the welfare of the accused drug dependent, whether under voluntary submission program or compulsory submission program, may be cited for contempt by the court. XXX.

ARTICLE XI JURISDICTION OVER D A N G E R O U S DRUGS CASES S E C . 90. Jurisdiction. — The Supreme Court shall designate special courts from among the existing Regional Trial Courts in each judicial region to exclusively try and hear cases involving violations of this Act. T h e number of courts designated in each judicial region shall be based on the population and the number of cases pending in their respective jurisdiction. The D O J shall designate special prosecutors to exclusively handle cases involving violations of this Act. The preliminary investigation of cases filed under this A c t shall be terminated within a period of thirty (30) days from the date of their filing. W h e n the preliminary investigation is conducted by a public prosecutor and a probable cause is established, the corresponding information shall be filed in court within twenty-four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a probable cause is found to exist, the corresponding information shall be filed by the proper prosecutor within forty-eight (48) hours from the date of receipt of the records of the case. Trial of the case under this Section shall be finished by the court not later than sixty (60) days from the date of the filing of the information. Decision on said cases shall be rendered within a period of fifteen (15) days from the date of submission of the case for resolution. S E C . 91. Responsibility and Liability of Law Enforcement Agencies and other Government Officials and Employees in Testifying 532


as Prosecution Witnesses in Dangerous Drugs Cases. — A n y member of law enforcement agencies or any other government official and employee who, after due notice, fails or refuses intentionally or negligently, to appear as a witness for the prosecution in any proceedings, involving violations of this Act, without any valid reason, shall be punished with imprisonment of not less than twelve (12) years and one (1) day to twenty (20) years and a fine of not less than F i v e hundred thousand pesos (P500,000.00), in addition to the istrative liability he/she may be meted out by his/her immediate superior and/or appropriate body. T h e immediate superior of the member of the law enforcement agency or any other government employee mentioned in the preceding paragraph shall be penalized with imprisonment of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than T e n thousand pesos (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office if despite due notice to them and to the witness concerned, the former does not exert reasonable effort to present the latter to the court. T h e member of the law enforcement agency or any other government employee mentioned in the preceding paragraphs shall not be transferred or re-assigned to any other government office located in another territorial jurisdiction during the pendency of the case in court. However, the concerned member of the law enforcement agency or government employee may be transferred or re-assigned for compelling reasons: Provided, That his/her immediate superior shall notify the court where the case is pending of the order to transfer or re-assign, within twenty-four (24) hours from its approval: Provided, further, That his/her immediate superior shall be penalized with imprisonment of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than T e n thousand pesos (P 10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office, should he/she fail to notify the court of such order to transfer or re-assign. Prosecution and punishment under this' Section shall be without prejudice to any liability for violation of any existing law. S E C . 92. Delay and Bungling in the Prosecution of Drug Cases. — A n y government officer or employee tasked with the prosecution 533


of drug-related cases under this Act, who, through patent laxity, inexcusable neglect, unreasonable delay or deliberately causes the unsuccessful prosecution and/or dismissal of the said drug cases, shall suffer the penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years without prejudice to his/ her prosecution under the pertinent provisions of the Revised Penal Code. S E C . 93. Reclassification, Addition or Removal of Any Drug from the List of Dangerous Drugs. — T h e Board shall have the power to reclassify, add to or remove from the list of dangerous drugs. Proceedings to reclassify, add, or remove a drug or other substance may be initiated by the P D E A , the D O H , or by petition from any interested party, including the manufacturer of a drug, a medical society or association, a pharmacy association, a public interest group concerned with drug abuse, a national or local government agency, or an individual citizen. W h e n a petition is received by the Board, it shall immediately begin its own investigation of the drug. T h e P D E A also may begin an investigation of a drug at any time based upon the information received from law enforcement laboratories, national and local law enforcement and regulatory agencies, or other sources of information. T h e Board after notice and hearing shall consider the following factors with respect to each substance proposed to be reclassified, added or removed from control: (a)

Its actual or relative potential for abuse;

(b)

Scientific evidence of its pharmacological effect if known;

(c) T h e state of current scientific knowledge regarding the drug or other substance; (d)

Its history and current pattern of abuse;

(e)

T h e scope, duration, and significance of abuse;

(f)

Risk to public health; and

( g ) Whether the substance is an immediate precursor of a substance already controlled under this Act. T h e Board shall also take into accord the obligations and commitments to international treaties, conventions and agreements to which the Philippines is a signatory.

534


The Dangerous Drugs Board shall give notice to the general public of the public hearing of the reclassification, addition to or removal from the list of any drug by publishing such notice in any newspaper of general circulation once a week for two (2) weeks. T h e effect of such reclassification, addition or removal shall be as follows: (a) In case a dangerous drug is reclassified as precursors and essential chemicals, the penalties for the violations of this Act involving the two latter categories of drugs shall, in case of conviction, be imposed in all pending criminal prosecutions; (b) In case a precursors and essential chemicals is reclassified as dangerous drug, the penalties for violations of the Act involving precursors and essential chemicals shall, in case of conviction, be imposed in all pending criminal prosecutions; (c) In case of the addition of a new drug to the list of dangerous drugs and precursors and essential chemicals, no criminal liability involving the same under this A c t shall arise until after the lapse of fifteen (15) days from the last publication of such notice; (d) In case of removal of a drug from the list of dangerous drugs and precursors and essential chemicals, all persons convicted and/or detained for the use and/or possession of such a drug shall be automatically released and all pending criminal prosecution involving such a drug under this A c t shall forthwith be dismissed; and (e) T h e Board shall, within five (5) days from the date of its promulgation submit to Congress a detailed reclassification, addition, or removal of any drug from the list of dangerous drugs. X X X

X X X

X X X

A R T I C L E XIII FINAL PROVISIONS X X X

X X X

X X X

S E C . 98. Limited Applicability of the Revised Penal Code. — Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act N o . 3814), as amended, shall not apply to the provisions of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death. 535


XXX

S E C . 100. Repealing Clause. — Republic Act N o . 6425, as amended, is hereby repealed and all other laws, istrative orders, rules and regulations, or parts thereof inconsistent with the provisions of this Act, are hereby repealed or modified accordingly. S E C . 101. Amending Clause. — Republic Act N o . 7659 is hereby amended accordingly. •

What changes were introduced by R.A. 9165 on R.A. 6425? On Penalties 1.

The penalties under the special penal laws such as life imprisonment are revived, and the nomenclatures of penalties under the R P C were deleted. When R . A . 7659, amended R . A . 6425, the system of penalties of the R P C was adopted. Thus, by using the technical nomenclatures under the R P C , the duration, correlation and legal effects of penalties therein w e r e also adopted. Consequently, when the I S L applies, the first part of Section 1 for offenses under the R P C was also applied for drugs violation. However, because of the reversion of R . A . 9165 to the "non-RPC" penalties, the rules and principles applicable to purely special penal laws are also revived. Consequently, the first sentence of Article 10, which states that: "Offenses which are or in the future may be punishable under special laws are not subject to the provision of [the Revised Penal] Code" holds true to violations of R . A . 9165. Thus, Section 98 states that "the provisions of the Revised Penal Code (Act N o . 3815, as amended] shall not apply" except for minor offenders, in which case the penalty of Life Imprisonment to Death shall become Reclusion Perpetua to Death. Thus, when two things concur, viz.: a.

T h e offender is a minor; and

b.

T h e violation is punishable with life imprisonment to death

536


the imposable penalty on him shall be reclusion perpetua to death. Consequently, when the I S L applies, the rules under the R P C will be followed. This is modified by R . A . 9346 banning the death penalty and R . A . 9344 absolutely exempting minors 15 years old and below and qualifiedly exempting those over 15 and under 18 from criminal liability. 2.

T h e penalty is no longer based on the quantity except for possession, but the quantity involved is much lower than in the old law, hence, harsher.

3.

Use of dangerous drugs has graduated penalty. Thus, first time drug s are penalized with a minimum of six months rehabilitation in a government center. For the second offense, the culprit shall be suffer 6 years and 1 day to 12 years and a fine of P50,000 to P200,000. However, if the offender tested positive for drug use and at the same time possessed drugs of any quantity, Section 11 on possession shall apply and not Section 15 on use.

4.

A n y person charged under any provision of the law regardless of the imposable penalty cannot avail of the provision on plea bargaining. On the other hand, the disqualification for probation covers only drug trafficking or pushing.

5.

Accessory penalties of disqualification to exercise civil and political rights such as the rights of parental authority, guardianship, to dispose of property by any act or conveyance inter vivos, the right to vote and be voted for. Such rights are also suspended during the pendency of appeal from conviction under the Act.

-

Classification of drugs

The classification of drugs is now "Dangerous Drugs" and "Controlled Precursors and Essential Chemicals" which are also found in the U . N . Conventions list. -

New Offenders

1.

The "financier" who is any person who pays for, raises or supplies money for, or underwrites any of the illegal activities under the Act and penalized with the maximum penalty for the provision violated. 537


2.

The "protector/coddler" who can be "any person who knowingly and willfully consents to the unlawful acts provided for in the Act and uses his influence, power or position in shielding, harboring, screening or facilitating the escape of any person he knows, or has reasonable grounds to believe on or suspects, has violated the provisions of the Act in order to prevent the arrest, prosecution and conviction of the violator." He shall suffer imprisonment of 12 years and 1 day to 20 years and a fine ranging from P100,000 to P500,000. New Offenses

1.

Illegal chemical diversion of controlled precursors and essential chemicals ( C P E C ) penalized with imprisonment of from 12 years and 1 day to 20 years and fine of P100,000 to P500,000. Illegal diversion is committed through the sale, distribution, supply or transport of legitimately imported, in-transit, manufactured or procured C P E C in diluted, mixtures or in concentrated form, to any person or entity engaged in the manufacture of any dangerous drug. Diversion includes packaging, repacking, labeling, relabeling or concealment of such transaction through fraud, destruction of documents, fraudulent use of permits, misdeclaration, use of front companies or mail fraud.

2.

Failure to maintain and keep the original records of transactions on dangerous drugs and/or C P E C .

3.

Attempt or conspiracy which carries the same penalty as the consummated offense of: a.

Importation of any dangerous drugs and/or controlled precursor and essential chemical;

b.

Sale, trading, istration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical;

c.

Maintenance of a den, dive or resort where any dangerous drug is used in any form;

d.

Manufacture of any dangerous drug and/or controlled precursor and essential chemical; and 538


e.

Cultivation or culture of plants which are sources of dangerous drugs, controlled precursors and essential chemicals,

4.

Misappropriation, misapplication or failure by a public officer or employee to for the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, instruments/paraphernalia and/or laboratory equipment including the proceeds or properties obtained from the unlawful act committed. A n y elective official w h o benefited from the proceeds of illegal drug trafficking or have received any financial or material contributions/donations from natural or juridical person shall be removed from office and disqualified from holding any elective or appointive positions in the government.

5.

"Planting" as evidence any dangerous drug and/or C P E C regardless of the quantity and purity.

6.

Violation of any regulation issued by the Dangerous Drugs Board ( D D B ) .

7.

Issuance of false or fraudulent drug test results.

8.

Violation of confidentiality of records.

9.

Refusal of of law enforcement agencies or any government official or employee to testify as prosecution witness in dangerous drugs cases.

10.

Delay and bungling in the prosecution of drug cases by any government officer or employee tasked with their prosecution through patent laxity, inexcusable negligence, and unreasonable delay or deliberately causes the unsuccessful prosecution and/or dismissal of the drug cases. Qualifying/Aggravating

circumstances

1.

When a crime is committed under the influence of drugs, a positive finding thereof shall be a qualifying circumstance in such crime and the rules under the R P C shall apply [Will homicide become murder?]

2.

Possession of dangerous drugs during parties, social gatherings or meetings or in the proximate company of at least two persons (Section 13) and possession of equipment, 539


instrument, apparatus and other paraphernalia during parties, social gatherings or meetings or in the proximate company of at least two persons (Section 14), shall aggravate Possession of Dangerous Drugs under Section 11 and Possession of Equipment, Instrument, etc. under Section 12, respectively. •

What is the nature of violations of dangerous drugs law?

Violation of the dangerous drugs law is malum prohibitum because it is punished as an offense under a special law. It is wrong because it is prohibited by law. Without the law punishing the act, it cannot be considered a wrong. As such, the mere commission of said act constitutes the offense punished and suffices to validly charge and convict an offender regardless of criminal intent. (People v. Lo Ho Wing, G.R. No. 88017, January 21, 1991) TT was the one who presented for customs inspection the bag with a tag bearing her name and found to contain shabu. She is thus presumed to be its owner. T h e crime of transporting shabu being mala prohibita, the intent, motive or knowledge of the accused need not be shown. T h e crime is complete when it is shown that a person brings into the Philippines dangerous drug without legal authority. The ingenuity of those engaged in the illegal drug trade may often seem to have defeated or overtaken the effectiveness of legislation. Hence, there is a need for laws which provide prospective measures which do not depend on proof of criminal intent or knowledge. Said measures may be quite harsh but then extraordinary evils demand extraordinary remedies. (People v. Tang Wai Lan, G.R. Nos. 118736-37, July 23, 1997) •

Compare violations of dangerous drugs law with possession of unlicensed firearms.

Dangerous drugs is per se contraband unlike firearms, hence in the latter, the prosecution bears the burden of proving that the firearm is without license whereas in possession of drugs the accused has the burden of proving that he is authorized to possess. •

Definitions/Distinctions/Elements of the offense

" D r u g D e p e n d e n c e " means a state of psychic or physical dependence, or both, on a dangerous drug, arising in a person 540


following istration or use of that drug on a periodic and continuous basis. "Use" refers to the act of injecting, intravenously or intramuscularly, or of consuming, either by chewing, smoking, sniffing, eating, swallowing, drinking, or otherwise introducing into the physiological system of the body, any of the dangerous drugs. Appellant cannot evade liability for illegal possession of dangerous drugs by his ission that he sometimes uses shabu. Section 30 of R . A . 6425, [Section 55, R . A . 9165] which provides that a drug dependent who voluntarily submits himself for confinement, treatment and rehabilitation in a center shall not be criminally liable for any violation of Section 8 and 16 [Section 15, R . A . 9165], does not apply because occasional "use" of a dangerous drug, is not the same as "drug dependence." A n d even if appellant was a drug dependent, he did not voluntarily submit himself for rehabilitation as required by law. (People v. Dichoso, G.R. No. 101216-18, June 4, 1993) "Delivery" necessarily involves the knowledge on the part of the accused that what he is delivering is dangerous drugs. If there is no evidence to show this knowledge, he will be acquitted. Section 2[f], Article I of R . A . 6425 as amended (Section 3[k], R . A . 9165), defines the word "deliver" as a person's act of knowingly ing a dangerous drug to another personally or otherwise, and by any means, with or without consideration. (People v. Jumao-as, 48 SCAD 277) T h e act of delivering prohibited drugs is not limited to deliveries made personally by the accused but covers those through other means. Assuming that it was indeed another person, not accused who delivered the marijuana, such fact will not make the latter less liable since the delivery was at his behest. W h a t is material is that the giving of the prohibited drug was pursuant to the instruction of the accused even if he did not himself personally deliver the same. (People v. Santos, 57 SCAD 73) The elements necessary for a charge of illegal sale of drugs are (1) the identity of the buyer and the seller, the object and consideration; and (2) the delivery of the thing sold and the payment therefor. (People v. Rigodon, 56 SCAD; People v. Esguerra, April 1993) Utoh Lakibul and Simon: payment is not material. Illegal sale of prohibited drugs requires merely the consummation of the selling transaction which happens the moment the buyer receives the drug from the seller. (People v. Simon, 53 SCAD). Even 541


without the money to buy the marijuana so long as the police officer went through the motion as a buyer and his offer was accepted by the appellant and the marijuana delivered to police officer, the crime was consummated by the delivery of the goods. (People v. Utoh Lakibul, G.R. No. 94337, January 27, 1993) In order to sustain conviction for selling prohibited drugs, the element of sale must be unequivocally established. Also, what the law proscribes is not only the act of selling but also the act of delivering. The commission of the offense of illegal sale required merely the consummation of the selling transaction. W h a t is important is that the poseur-buyer received the drug from the accused. (People v. Ponferada, G.R. No. 101004, March 17, 1993) When the seller is apprehended, the quantity he is possessing must be equal to that sold by him. If so, it will be illegal sale only, possession absorbed by the sale. But if the quantity possessed by him is greater than the quantity negotiated, he is still liable for illegal possession equal to the excess amount. "They are two isolated acts punishable, each of them in themselves. Only in the event where all the amount of the opium possessed and seized be in its totality the same as that which was possessed with sole purpose of being delivered as the matter or subject of a sale previously agreed upon, could it be said, in the opinion of this court, that the possession of the opium was a necessary means to effect the delivery by reason of the sale, and that the sale agreed upon was the sole reason for the possession of the opium seized." (People v. Salamat, G.R. No. 103295, August 20, 1993) Accused cannot be convicted of possession of the shabu contained in a canister and allegedly seized at his house, for the charge against him was for selling shabu. (People v. Del Rosario, 53 SCAD) Unlawful possession of shabu is necessarily included in the crime of unlawful sale thereof. Similarly, unlawful possession of marijuana is necessarily included in unlawful sale of marijuana. (People v. Dichoso) Possession is part of illegal use because the latter necessarily requires the former and the law is comionate w i t h s; he is presumed to be a than a possessor; one information only will be made. But if the quantity is such as to show that it is not only for use prosecution will be for illegal possession [Section 11 in relation to Section 15]. 542


P o s s e s s i o n of instruments for istering drugs is punished separately. But if possession of pipe is when he is smoking the same, possession of pipe is absorbed. If he is found possessing the pipe and opium and he is not smoking, two crimes are committed: illegal possession of opium and illegal possession of opium pipe. •

What presumptions arise from mere possession of equipment, instrument, apparatus and other paraphernalia?

T h e possession of equipment, instrument, apparatus and other paraphernalia or dangerous drugs fit or intended for smoking, consuming, istering, injecting, ingesting or introducing any dangerous drug into the body shall be prima facie evidence that:

•

a.

T h e possessor has smoked, consumed, istered to himself, injected, ingested or used a dangerous drug, and

b.

He has violated Section 15 of R . A . 9165.

What are the new programs for treatment and rehabilitation of drug dependents? A drug dependent or any person who violates Section 15 may: a.

b.

A p p l y to the D D B under the Voluntary Submission Program for treatment and rehabilitation of the drug dependency. Upon such application, the D D B shall bring the matter to the Court, which shall order that the applicant be examined for drug dependency. If the examination shows that he is a drug dependent, he shall undergo treatment and rehabilitation for not less than six months, and be: 1.

Exempted from criminal liability

2.

Placed on probation and undergo community service or

3.

Charged for violation of Section 15

Be compulsorily confined under the Compulsory Submission Program. Here the compulsory confinement may either be through the petition by the D D B with the Regional Trial Court of the province or city where such person is found, or by the prosecutor/court where the drug dependent is charged with an offense punishable with a penalty less than six years and one day. The court or the 543


prosecutor shall suspend all proceedings at any stage and transmit copies of the record of the case to the D D B .

Outline the penalty on possession drugs.

vis-a-vis

the quantity of

There are four categories of penalties under Section 11 depending upon the quantity of dangerous drugs regardless of the degree of purity thereof: A.

B.

Life imprisonment P10,000,000:

to

death

D.

fine

of P'500,000

Marijuana

500 grams or more

Methamphetamine Hydrochloride or"shabu" Morphine, Marijuana resin, marijuana oil, opium, cocaine hydrochloride, Heroin, all others

50 grams or more

to

10 grams or more

Life imprisonment and fine of P400,000 to P500,000: Methamphetamine Hydrochloride or "shabu"

C.

and

10 to less than 50 grams

20 years and 1 day to life and fine of P400,000 to P500,000: Marijuana


A l l others


12 years and 1 day to 20 years and fine of P300.000 to P400.000: Marijuana

less than 300 grams

A l l others

less than 5 grams

Delineate the applicability of Section 11 and Section 15. Section 15 provides that: "x x x Provided, That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply. Clearly, Section 11 shall apply if the person who tested positive possesses "such quantity of any dangerous drugs provided for under Section 544


11." Since 1 gram is less than 5 grams/300 grams it follows that possession of any quantity of dangerous drugs should make the drug possessor who tested positive liable under Section 11. T h e letter of the law is clear that a person who tested positive should not possess any quantity of drugs in order to fall within Section 15. If in addition to testing positive for use, he possesses any quantity of drugs, he should be held liable for Section 11, not anymore Section 15 because there is no cutoff quantity between them and because the phrase "less than" in Section 11 is any quantity less than 5 grams and 300 grams, respectively. •

What actions shall be taken upon a minor drug violator? Minor drug violators may be given:

•

1.

Suspended sentence for the first offense

2.

Probation or community service for the first offense; or

3.

Service of sentence as any other convicted person if the accused first-time minor offender violates any of the conditions of his suspended sentence or any of the rules and regulations of the Center if confinement therein was required.

What are the conditions for the suspended sentence to a minor drug offender? Suspended sentence shall be given to a minor first time offender who is over 15 at the time of the commission of the offense of Possession but not more than 18 at the time of promulgation of judgment, subject to the following conditions: 1.

He has not been previously convicted of violations of any provision of R . A . 9165 or of R . A . 6425, as amended or of the R P C or of any special penal laws. In short, he has not committed any crime;

2.

He has not been previously committed to a Center or to the care of a DOH-accredited physician;' and

3.

T h e D D B favorably recommends suspension of his sentence.

The privilege of suspended sentence shall be availed of by the minor only once. If he complies with all the conditions of his 545


suspended sentence, the court, upon favorable recommendation of the DDB, shall discharge the accused and dismiss all the proceedings. Otherwise, the court shall pronounce judgment of conviction and the minor shall serve sentence as any other convicted person or in the discretion of the court, the minor shall undergo probation or community service in lieu of imprisonment. (But see R . A . 9346, on diversion programs for victimless crimes where the penalty imposable is over six years, and that entitles the minor to suspended sentence although he is over 18 at the time sentence is promulgated. Declarador v. Gubaton, however declared that suspension cannot be availed of the minor if the penalty imposable is life imprisonment, reclusion perpetua and/or death.) •

What procedures must be followed upon initial seizure of drugs? Section 21 of the law prescribes the procedures to be followed by the law enforcers having initial custody of the drugs. T h e P D E A shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, C P E C , as well as instruments/paraphernalia and/or laboratory equipment confiscated, seized and/or surrendered, for proper disposition in the following manner: (1)

The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items w e r e confiscated and/or seized, or his representative or counsel, a representative from the media and the DOJ, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof;

(2)

Within 24 hours upon seizure, the prohibited items shall be submitted to the P D E A Forensic Laboratory for a qualitative and quantitative examination;

(3)

A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within 24 hours after the receipt of the subject. W h e n the volume of these items does not allow the completion of testing within the time frame, a partial laboratory examination report shall be 546


provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory. A final certification shall be issued on the completed forensic laboratory examination within the next 24 hours; (4)

After the filing of the criminal case, the Court shall within 72 hours, conduct an ocular inspection of the confiscated materials and through the P D E A shall within 24 hours thereafter proceed with the destruction or burning of the same. A representative sample, duly weighed and recorded is retained;

(5)

T h e Board shall then issue a sworn certification as to the feet of destruction or burning of the subject items which, together with the representative sample in the custody of the P D E A , shall be submitted to the court;

(6)

T h e alleged offender or his representative shall be allowed to personally observe all of the above proceedings and his presence shall not constitute an ission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing within 72 hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney's office to represent the former.

What is the effect when the procedures are not complied with? It depends upon whether or not the identity of the drugs seized was compromised. Too, the official conduct of the law enforcers matters as follows: 1.

People v. Delmonte, G . R . N o . 179940, A p r i l 23, 2008 Pringas explained that non-compliance with Section 21 will not render an accused's arrest illegal or the items seized/confiscated from him inissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items as the same would be utilized in the determination of the guilt or innocence of the accused. Appellant never questioned the custody and disposition of the drug that was taken from him. In fact, he stipulated that the subject drug was forwarded to P N P Regional Crime Laboratory Office 3, Malolos, Bulacan for laboratory examination which examination 547


gave positive result for shabu. Thus the integrity and the evidentiary value of the drug seized from appellant have not been compromised. Non-compliance with Section 21 particularly the making of the inventory and the photographing of the drugs confiscated and/or seized, will not render the drugs inissible in evidence. Under Section 3 of Rule 128 of the R R C P , evidence is issible when it is relevant to the issue and is not excluded by the law or these rules. For evidence to be inissible, there should be a law or rule which forbids its reception. If there is no such law or rule, the evidence must be itted subject only to the evidentiary weight that will accorded it by the courts. There is no provision or statement in said law or in any rule that will bring about the non-issibility of the confiscated and/or seized drugs due to non-compliance with Section 21. T h e issue, if there is noncompliance with said section, is not of issibility, but of weight — evidentiary merit or probative value — to be given the evidence. T h e weight to be given by the courts on said evidence depends on the circumstances obtaining in each case. 2.

Mallillin v. People, G . R . N o . 172953, A p r i l 30, 2008 Section 21 of the I R R of R . A . 9165 outlines the postseizure procedure in taking custody of seized drugs the officer acquiring initial custody of drugs under a search warrant must photograph and physically inventory the item at the place where the warrant has been served. EE deviated from this procedure. At the close of the search of petitioner's house, he brought the seized items immediately to the police station for the alleged purpose of making a "true inventory" thereof, but there appears to be no reason w h y a true inventory could not be made in petitioner's house when in fact the apprehending team was able to record and mark the seized items and there and then prepare a seizure receipt therefor. T h e raiding team has had enough opportunity to cause the issuance of the warrant which means that it has had as much time to prepare for its implementation. W h i l e the final

548


proviso in Section 21 of the rules would appear to excuse noncompliance therewith, the same cannot benefit the prosecution as if failed to offer acceptable justification for EE's action. Likewise, EE's failure to deliver the seized items to the court demonstrates a departure from the directive in the search warrant that the items seized be immediately delivered to the trial court with a true and verified inventory of the same, required by Rule 126, Section 12 of the R R C P . This is mandatory to preclude substitution of or tampering with said items by interested parties. Thus, as a reasonable safeguard, the approval by the court which issued the search warrant is necessary before police officers can retain the property seized and without it, they would have no authority to retain possession thereof, more so deliver the same to another agency. M e r e tolerance by the trial court of a contrary practice does not make the practice right because it violates the mandatory requirements of the law and it thereby defeats the very purpose for the enactment. Given the foregoing deviations of EE from the standard hand normal procedure in the implementation of the warrant and in taking post-seizure custody of the evidence, reliance on the presumption of regularity in the conduct of police duty is manifestly misplaced. T h e presumption of regularity is just that — a mere presumption disputable by contrary proof and which when challenged by the evidence cannot be regarded as binding truth. This presumption cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt. T h e lack of conclusive identification of illegal drugs allegedly seized, coupled with the irregularity in the manner by which the same were placed under police custody before offered in court, strongly militates a finding of guilt. T h e burden of proving guilt lies on the prosecution which must rely on the strength of its own evidence and not on the weakness of the defense. The rule is invariable whatever may be the reputation of the accused, for the law presumes his innocence unless and until the contrary is shown. In dubio pro reo. When moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter of right.

549


3.

People v. Concepcion, G.R. N o . 178876, June 27,2008 The prosecution's failure to submit in evidence the required physical inventory of the seized drugs and the photograph pursuant to Section 21 will not exonerate appellants. Noncompliance with said section is not fatal and will not render an accused's arrest illegal or the items seized/confiscated from him inissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. T h e integrity of the drugs seized is intact. The chain of custody of the drugs subject matter of the case was shown not to have been broken. After seizure of the drugs from appellants' possession, P02 SS and P02 AA marked them with their initials and turned them over to S P O l LL who, on the same day, sent these plastic sachets containing white crystalline substance to P N P Provincial Crime Laboratory for examination to determine the presence of dangerous drugs. After a qualitative examination conducted on the specimens the Forensic Chemical Officer, conclhuded that the white crystalline substance was positive for shabu. T h e r e can be no doubt that the drugs seized from appellants w e r e the same ones examined in the crime laboratory. Appellants' assertion that the prosecution should have offered proof showing that they are drug traffickers and are notorious in the drug trade as proof of a proper buy-bust operation, is without basis. There is no law or jurisprudence that requires such evidence before it can be held that there was a legal buy-bust operation. Also, the absence of a prior surveillance or test buy does not affect the legality of the buy-bust operation. There is no textbook method of conducting buy-bust operations. T h e Court has left to the discretion of police authorities the selection of effective means to apprehend drug dealers. A prior surveillance, much less a lengthy one, is not necessary especially where the police operatives are accompanied by their informant during the entrapment. Flexibility is a trait of good police work. T h e operation was conducted without the necessity of any prior surveillance as the confidential informant, who was previously tasked by the buy-bust team leader to order dangerous drugs from appellant, accompanied the team to the person who was peddling the dangerous drugs. 550


T h e recording of marked money used in a buy-bust operation is not one of the elements for the prosecution of sale of illegal drugs. T h e recording or non-recording thereof in an official record w i l l not necessarily lead to an acquittal as long as the sale of the prohibited drug is adequately proven. In the prosecution for the sale of dangerous drugs, the absence of marked money does not create a hiatus in the evidence for the prosecution as long as the sale is adequately proven and the drug subject of the transaction is presented before the court. Neither law nor jurisprudence requires the presentation of any money used in the buy-bust operation. W h a t is material to a prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti as evidence. Bondad v. People, G.R. N o . 173804, December 10, 2008 For the failure to comply with the requirements of Section 21 in a manner that compromised the identity of the items seized, which is the corpus delicti of each of the crimes charged against a p p e l l a n t [violation of Section 5, paragraph 2(3), Article II and Section 11, paragraph 2(3)] his acquittal is in order. How should the accusatory portion of the information be worded? It should contain the Section and Article number violated. Here, the trial court failed to specify in the dispositive portion of its decision the Article number in R . A . 9165 to which Sections 5 and 11, under which appellant was charged and convicted, belong. T h e Article number - 11 - must be inserted. (People v. Navarro, G.R. No. 173790, October 11, 2007) What should the penalty on the convict include? T h e penalty imposed by the trial court and affirmed by the appellate court for possession of shabu is the indeterminate penalty of imprisonment of 12 years and 1 day as minimum to 14 years and 1 day as maximum. Section 11, Article II of R.A. 9165, however, penalizes the offense with both prison term and fine. A fine of P300.000 must be added to the prison imposed, (id.)

551

TITLE SIX C R I M E S A G A I N S T PUBLIC M O R A L S Chapter One GAMBLING A N D BETTING •

What crimes are included in Crimes against Public Morals? 1.

Gambling and illegal lottery; and

2.

Offenses against decency.

Offenses against decency are those which are offensive to morals, e.g., grave scandal which may be committed both in public and private places. A r t s . 195-199. R e p e a l e d a n d modified by P . D . N o s . 449, 483 a n d 1602, as a m e n d e d by Letters of Instructions N o . 816. R E P U B L I C A C T N O . 9287 ILLEGAL NUMBERS GAMES XXX

XXX

XXX

Sec. 2. Definition of . — A s used in this Act, the following shall mean: a.

Illegal Numbers Game. — A n y form illegal gambling activity, which uses numbers or combinations thereof as factors in giving out jackpots.

b.

Jueteng. — An illegal numbers g a m e that involves the combination of thirty-seven (37) numbers against thirtyseven (37) numbers from number one (1) to thirty seven (37) or the combination of thirty-eight (38) numbers in some areas, serving as a form of local lottery w h e r e bets are placed and accepted per combination, and its variants.

c.

Masiao. — An illegal numbers game where the winning combination is derived from the results of the last game of Jai Alai or the Special L l a v e portion or any result thereof 552

G A M B L I N G A N D BETTING

based on any fictitious Jai Alai game consisting often (10) players pitted against one another, and its variants. d.

Last T w o . — An illegal numbers game where the winning combination is derived from the last two (2) numbers of the first prize of the winning Sweepstakes ticket which comes out during the weekly draw of the Philippine Charity Sweepstakes Office ( P C S O ) , and its variants.

e.

Bettor ("Mananaya," "Tayador" or variants thereof.) — A n y person who places bets for himself/herself or in behalf of another person, or any person, other than the personnel or staff of any illegal numbers game operation.

f.

Personnel or Staff of Illegal Numbers Game Operation. — A n y person, who acts in the interest of the maintainer, manager or operator, such as, but not limited to, an ant, cashier, checker, guard, runner, table manager, usher, watcher, or any other personnel performing such similar functions in a building structure, vessel, vehicle, or any o^her place where an illegal numbers game is operated or conducted.

g.

Collector or A g e n t ("Cabo," "Cobrador," "Coriador" or variants thereof). — A n y person who collects, solicits or produces bets in behalf of his/her principal for any illegal numbers game who is usually in possession of gambling paraphernalia.

h.

Coordinator, Controller or Supervisor ("Encargado" or variants thereof). — A n y person who exercises control and supervision over the collector or agent.

i.

Maintainer, Manager or Operator. — A n y person who maintains, manages or operates any illegal number game in a specific area from whom the coordinator, controller or supervisor, and collector or agent take orders.

j.

Financiers or Capitalist. — A n y person who finances the operations of any illegal numbers game.

k.

Protector or Coddler. — A n y person who lends or provides protection, or receives benefits in any manner in the operation of any illegal numbers game.

Sec. 3. Punishable Acts. — A n y person who participates in any illegal numbers game shall suffer the following penalties: 553


a.

The penalty of imprisonment from thirty (30) days to ninety (90) days, if such person acts as a bettor;

b.

The penalty of imprisonment from six (6) years and one (1) day to eight (8) years, if such person acts as a personnel or staff of an illegal numbers game operation;

c.

The same penalty shall likewise be imposed to any person who allows his vehicle, house, building or land to be used in the operation of the illegal numbers game;

d.

The penalty of imprisonment from eight (8) years and one (1) day to ten (10) years, if such person acts as a collector or agent;

e.

The penalty of imprisonment from ten (10) years and one (1) day to t w e l v e (12) years, if such person acts as a coordinator, controller or supervisor;

f.

The penalty of imprisonment from t w e l v e (12) years and one (1) day to ten (10) fourteen (14) years, if such person acts as a maintainer, manager or operator;

g.

The penalty of imprisonment from fourteen (14) years and one (1) day to sixteen (16) years, if such person acts as a financier or capitalist; and

h.

The penalty of imprisonment from sixteen (16) years and one (1) day to twenty (20) years, if such person acts as protector or coddler.

Sec. 4. Possession of Gambling Paraphernalia or Materials. — The possession of any gambling paraphernalia and other materials used in the illegal numbers game operation shall be deemed prima facie evidence of any offense covered by this Act. Sec. 5. Officials. — a)

Liability

of Government

Employees

and/or Public

If the collector, agent, coordinator, controller, supervisor, maintainer, manager, operator, financier or capitalist of any illegal numbers game is a government employee and/ or public official, whether elected or appointed shall suffer the penalty of t w e l v e (12) years and one (1) day to twenty (20) years and a fine ranging from T h r e e million pesos (P3,000,000.00) to F i v e million pesos (P5,000,000.00) and perpetual absolute disqualification from public office.

554


In addition to the penalty provided in the immediately preceding section, the accessory penalty of perpetual disqualification from public office shall be imposed upon any local government official who, having knowledge of the existence of the operation of any illegal numbers game in his/her jurisdiction, fails to abate or to take action, or tolerates the same in connection therewith. b)

In the case of failure to apprehend perpetrators of any illegal numbers game, any law enforcer shall suffer an istrative penalty of suspension or dismissal, as the case may be, to be imposed by the appropriate authority.

Sec. 6. Liability of Parents/Guardians. — T h e penalty of imprisonment from six (6) months and one (1) day to one (1) year or fine ranging from One hundred thousand pesos (P100,000.00) to Four hundred thousand pesos shall be imposed upon any parent, guardian or person exercising moral authority or ascendancy over a minor, ward or incapacitated person, and not otherwise falling under any of the foregoing subsections, who induces or causes such minor, ward or incapacitated person to commit any of the offenses punishable in this A c t . Upon conviction, the parent, guardian or person exercising moral authority or ascendancy over the minor, ward or incapacitated person shall be deprived of his/her authority over such person in addition to the penalty imposed. Sec. 7. Recidivism. — T h e penalty next higher in degree as provided for under Section 3 hereof shall be imposed upon a recidivist who commits any of the offenses punishable in this Act. Sec. 8. Immunity from Prosecution. — A n y person who serves as a witness for the government or provides evidence in a criminal case involving any violation of this Act, or who voluntarily or by virtue of a subpoena testificandum or duces tecum, produces, identifies, or gives testimony shall be immune from any criminal prosecution, subject to the compliance with the provisions of Presidential Decree N o . 1732, otherwise known as Decree Providing Immunity from Criminal Prosecution to Government Witnesses and the pertinent provisions of the Rules of Court. Sec. 9. Prosecution, Judgment and Forfeiture of Property. — A n y person may be charged with or convicted of the offenses covered by this Act without prejudice to the prosecution of any act or acts penalized under the Revised Penal Code or existing laws.

555


During the pendency of the case, no property or income used or derived therefrom which may be confiscated and forfeited shall be disposed, alienated or transferred and the same shall be in custodia legis and no bond shall be itted for the release of the same. The trial prosecutors shall avail of provisional remedies provided for under the Revised Rules on Criminal Procedure. Upon conviction, all proceeds, gambling paraphernalia and other instruments of the crime including any real or personal property used in any illegal numbers game operation shall be confiscated and forfeited in favor of the State. A l l assets and properties of the accused either owned or held by him/her in his/her name or in the name of another person found to be manifestly out of proportion to his/her lawful income shall be prima facie presumed to be proceeds of the offense and shall likewise be confiscated and forfeited in favor of the State. X X X

X X X

X X X

Sec. 14. Amendatory Clause. — T h e pertinent provisions of Presidential Decree N o . 1602, in so far as they are inconsistent herewith, are hereby expressly amended or modified accordingly. X X X

X X X

X X X

Approved: A p r i l 2, 2004. •

What forms of gambling are prohibited by R.A. 9287? a.

Illegal numbers game ( I N G ) — uses numbers or their combinations.

b.

Jueteng — involves combination of 37 numbers us. 37 numbers from 1 to 37 (38 in other places) and its variants.

c.

Masiao — combination is derived from Jai-alai results.

d.

Last T w o — derived from the last two digits of sweepstakes.

Prosecution of the above offenses shall not bar prosecution of any act penalized under the R P C or other existing laws. •

W h o are the persons liable? a.

Bettor — places bet for himself or for another or any person other than the personnel of the operator.

556


b.

Personnel or staff of operator — acts in the interest of the maintainer, manager or operator, such as an ant, cashier, checker, guard, runner, table manager, usher, watcher, or any other personnel with such similar functions in a building, structure, vessel, vehicle, or any other place where an I N G is operated or conducted.

c.

One w h o allows his vehicle, house, building, land to be used in the gambling operation.

d.

Collector or agent — collects, solicits or produces bets in behalf of his principal who is usually in possession of gambling paraphernalia.

e.

Coordinator, controller or supervisor — exercises control and supervision over the collector or agent.

f.

Maintainer, manager or operator — maintains, manages or operates any I N G in a specific area from whom the coordinator, controller or supervisor, and collector or agent takes orders.

g.

Financier or capitalist — finances the operations of I N G .

h.

Protector or coddler — lends or provides protection, or receives benefits in any manner in the operation of any ING.

i.

Parents, guardians or any person exercising moral ascendancy or authority over a minor, ward or incapacitated person who induces or causes such minor, ward or incapacitated person to commit any of the offenses under the law.

If the offender in (d) to (e) is a government official or employee, the penalty is 12 years and 1 day to 14 years imprisonment and fine of P3 million to P5 million with perpetual absolute disqualification from office. T h e same rule applies to officials of local government units who know but fail to abate, take action against or tolerates illegal numbers game in his jurisdiction. The possession of gambling paraphernalia or materials used for I N G gives rise to a prima facie presumption of violation of the law. Recidivism is qualifying (not generic aggravating) hence the penalty is the next higher degree.

557

Chapter T w o

OFFENSES AGAINST DECENCY A N D GOOD CUSTOMS A r t . 200. Grave a n d public censure shall offend against scandalous conduct article of this C o d e . •

scandal. — T h e penalties of arresto mayor shall b e i m p o s e d u p o n a n y p e r s o n w h o decency or g o o d customs by a n y h i g h l y not expressly falling w i t h i n a n y other

What is grave scandal? Grave scandal is any highly scandalous act offensive to morals and good customs committed publicly or within the knowledge and view of the public (U.S. v. Samaniego, 16 Phil.). The offense must be directed to the sense of decency or good customs and not on property such as scattering human feces on buildings. (People v. Dumlao, [CA] 38 O.G. 3715) If committed in a public place, the act is deemed committed in public v i e w due to the possibility of being witnessed by third persons. An act committed in a public place cannot be private. If in a private place, the act must be committed in public v i e w , i.e., there must be at least one witness to the act.

•

What is required for the act to constitute grave scandal? T h e act must be highly scandalous and not expressly falling within any other article of the R P C . For instance, in conducts involving lasciviousness, it is grave scandal only where there is mutual consent. If the other party to the act is forced or intimidated, the crime is acts of lasciviousness. Scandalous acts can be done alone or by persons of different or similar sexes.

A r t . 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. — T h e p e n a l t y of prision mayor or a fine r a n g i n g f r o m six t h o u s a n d to t w e l v e t h o u s a n d pesos, or both such i m p r i s o n m e n t a n d fine, shall b e i m p o s e d u p o n : 558

OFFENSES A G A I N S T DECENCY AND GOOD CUSTOMS

1.

T h o s e w h o shall p u b l i c l y e x p o u n d or p r o c l a i m doctrines o p e n l y c o n t r a r y to p u b l i c morals;

2.

(a)

T h e a u t h o r s of o b s c e n e literature, p u b l i s h e d w i t h their k n o w l e d g e in a n y form; the editors p u b l i s h i n g such literature; a n d the o w n e r s / o p e r a t o r s of the establishment selling the same;

(b)

T h o s e w h o , i n the theaters, fairs, cinematog r a p h s , o r a n y other p l a c e , exhibit indecent o r i m m o r a l p l a y s , scenes, acts or s h o w s , it b e i n g u n d e r s t o o d that the o b s c e n e literature or indecent or i m m o r a l plays, scenes, acts or shows, w h e t h e r live or in film, w h i c h a r e p r e s c r i b e d by v i r t u e hereof, shall include those w h i c h : (1) glorify c r i m i n a l s or c o n d o n e crimes; (2) serve no o t h e r p u r p o s e b u t to satisfy the m a r k e t for violence, lust or p o r n o g r a p h y ; (3) offend any r a c e or religion; (4) tend to a b e t traffic in a n d use o f p r o h i b i t e d d r u g s ; a n d (5) a r e c o n t r a r y to l a w , p u b l i c o r d e r , m o r a l s , g o o d customs, est a b l i s h e d policies, l a w f u l o r d e r s , decrees a n d edicts.

3.

Those w h o shall sell, give a w a y or exhibit films, prints, e n g r a v i n g s , sculptures o r literatures w h i c h a r e offensive to m o r a l s . (As amended by P.D. Nos. 960 and 969, July 24, 1976.)

Other provisions of P.D. No. 960 are further amended by P.D. No. 969, promulgated July 24, 1976 and to take effect fifteen (IS) days after publication in two (2) newspapers of general circulation, provide: "Sec. 2. Disposition of the Prohibited Articles. — The disposition of the literature, films, e n g r a v i n g s , sculptures, paintings, or other materials involved in the violation r e f e r r e d to in Sec. 1 ( r e f e r r i n g to A r t . 201, R P C ) hereof shall be g o v e r n e d by the following rules: a.

U p o n conviction of the offender, to be forfeited in favor of the g o v e r n m e n t to be destroyed.

559


b.

W h e r e the criminal case against any violator of this decree results in an acquittal, the obscene/immoral literature, films, prints, e n g r a v i n g s , sculptures, painting or other materials a n d articles involved in the violation r e f e r r e d to in Sec. 1 ( r e f e r r i n g to A r t . 201, R P C ) h e r e o f shall nevertheless be forfeited in favor of the g o v e r n m e n t to be destroyed, after forfeiture p r o c e e d i n g s conducted by the C h i e f of Constabulary.

c.

T h e p e r s o n a g g r i e v e d by the forfeiture action of the Chief of C o n s t a b u l a r y m a y , w i t h i n fifteen (15) d a y s after his receipt of a copy of the decision, a p p e a l the matter to the Sec. of N a t i o n a l Defense for r e v i e w . T h e decision of the Sec. of N a t i o n a l D e f e n s e shall be final a n d u n a p p e a l a b l e . " (As amended by P.D. No. 969.)

"Sec. 3. Jurisdiction. — V i o l a t i o n s of Sec. 1 ( r e f e r r i n g to a m e n d e d A r t . 201, R P C ) h e r e o f shall b e subject t o trial b y the military t r i b u n a l s a n d the offenders shall be s u b j e c t to a r r e s t a n d detention p u r s u a n t t o existing l a w s , d e c r e e s , o r d e r s a n d instructions p r o m u l g a t e d p u r s u a n t t o P r o c l a m a t i o n s N o . 1081, d a t e d S e p t e m b e r 21, 1972 a n d N o . 1104, d a t e d J a n u a r y 17, 1973." "Sec. 4. Additional Penalties. shall be imposed as follows:

—

Additional

penalties

1. In case of the o f f e n d e r is a g o v e r n m e n t official or employee w h o a l l o w s the violation of Sec. 1 (id.) hereof, the penalty a s p r o v i d e d h e r e i n shall b e i m p o s e d i n the m a x i m u m p e r i o d a n d , in a d d i t i o n , the a c c e s s o r y p e n a l t i e s p r o v i d e d for in the R P C , as a m e n d e d , shall l i k e w i s e be imposed." (As amended by P.D. No. 969.) xxx

xxx

xxx

"Sec. 4-A. T h e C h i e f of C o n s t a b u l a r y shall, w i t h the a p p r o v a l of the Sec. of N a t i o n a l D e f e n s e , p r o m u l g a t e the necessary rules a n d r e g u l a t i o n s for the i m p l e m e n t a t i o n of this decree." (As amended by P.D. No. 969.)

560


•

Compare R.A. 3060 and Article 201 of the Revised Penal Code. Section 7 of R . A . 3060 makes it unlawful for any person or entity to exhibit or cause to be exhibited in any motion picture theater or public place, picture, including trailers, stills, and other pictorial ments in connection with motion pictures, not duly ed by the Board; or to print or cause to be printed on any motion picture to be exhibited in any theater, or public place or by television, a label or notice showing the same to have been previously ed by the said Board when the same has not been previously authorized, except motion pictures imprinted or exhibited by the Philippine Government and/or its departments and agencies, and newsreels. T h e elements of the two offenses are different: a.

T h e gravamen of the offense in R . A . 3060 is the public exhibition of any motion picture which has not been previously ed by the Board of Censors. T h e motion picture may not be indecent or immoral, but if it has not been previously approved by the Board, its public showing constitutes a criminal offense. Article 201(3) penalizes the public showing of indecent or immoral plays, scenes, acts, or shows, not just motion pictures.

b.

R . A . 3060 is malum prohibitum in which criminal intent is presumed; Article 201(3) is malum in se, where criminal intent is an indispensable ingredient. (People u. City Court of Manila, September 1987)

A r t . 202. Vagrants following a r e v a g r a n t s :

and prostitutes

—

Penalty.

—

The

1.

A n y p e r s o n h a v i n g no a p p a r e n t m e a n s of subsistence, w h o has the physical ability to w o r k a n d w h o neglects to a p p l y himself or herself to some lawful calling;

2.

A n y p e r s o n found loitering a b o u t public or semipublic b u i l d i n g s or places, or t r a m p i n g or w a n d e r ing a b o u t the country or the streets without visible means of :

561


3.

A n y idle or dissolute person w h o lodges in houses of ill-fame; ruffians or pimps a n d those w h o habitually associate with prostitutes;

4.

A n y person w h o , not b e i n g included in the provisions of other articles of this C o d e , shall be found loitering in any inhabited or u n i n h a b i t e d place b e l o n g i n g to a n o t h e r w i t h o u t a n y l a w f u l or justifiable p u r p o s e ;

5.

Prostitutes.

F o r the p u r p o s e s of this article, w o m e n w h o , for m o n e y or profit, habitually i n d u l g e in s e x u a l intercourse or lascivious conduct, a r e d e e m e d to be prostitutes. A n y p e r s o n f o u n d guilty of a n y of the offenses c o v e r e d by this article shall be p u n i s h e d by arresto menor or a fine not exceeding 200 pesos, a n d in case of r e c i d i v i s m , by arresto mayor in its m e d i u m p e r i o d to prision correccional in its m i n i m u m p e r i o d or a fine r a n g i n g f r o m 200 to 2,000 pesos, or both, in the discretion of the court. •

Who are vagrants? Vagrants are those who loiter around public or private places without any visible means of but who are physically able to work and do not apply themselves to some lawful calling, such as able-bodied beggars. Vagrants include ruffians and pimps who habitually associate with prostitutes.

•

What different crimes may be committed by "loitering around"? Loitering around constitutes vagrancy unless such act is not punishable under other articles of the R P C . W h e n a person enters the estate of another he may commit: 1.

Vagrancy if the estate is not enclosed or fenced because entry is not prohibited, hence, tres is not committed. (Article 202[4])

2.

Tres to property when the estate is uninhabited and there is manifest prohibition against entry. (Article 281)

562


3.

Theft, either attempted or consummated, when a person enters a fenced or enclosed estate without the consent of the owner or overseer to hunt, fish, or gather plant products. (Article 308, last paragraph)

What is prostitution? It is any lascivious or lewd act habitually done for profit by a woman. Its elements are: a.

T h e offender is a woman;

b.

She habitually indulges in sexual intercourse or lascivious conduct; and

c.

She does so for money or profit.

Some believe that actresses who, for money or profit, habitually play the role of one who engages in sexual acts satisfy all the above elements. Worse, they do it in public v i e w (movie houses) whereas "regular" prostitutes do it in private. T h e male partner may not be liable for prostitution under this paragraph but may be liable under N o . 3 (habitually associates with prostitutes). Habitually associating with prostitutes is vagrancy but when the offender engages in the business or profits by prostitution or enlists the services of any other person for the purpose of prostitution, the crime is white slavery under Article 341 or child abuse if involving minors.

563

TITLE SEVEN

C R I M E S COMMITTED B Y PUBLIC OFFICERS •

•

What are the different crimes committed by public officers? 1.

Malfeasance and Misfeasance (204 - 209)

2.

Bribery and Corruption of Public Officers (210 - 212)

3.

Frauds and Illegal Exactions and Transactions (216)

4.

Malversation of Public Funds and Property (217 - 222)

5.

Infidelity in the Custody of Prisoners (223 - 225)

6.

Infidelity in the Custody of Documents (226 - 228)

7.

Revelation of Secrets (229 - 230)

8.

Disobedience, refusal prisoners (231 - 235)

9.

Other offenses or irregularities by public officers (236 244)

10.

Abuses against chastity (245)

of assistance,

maltreatment

of

Who are the offenders in this Title? Generally, they are public officers for these are crimes committed by public officers. There are instances, however, where the offender is a private individual, for instance in Articles 212, 222 and 225.

564

Chapter One P R E L I M I N A R Y PROVISIONS A r t . 203. Who are public officers. — F o r the p u r p o s e of a p p l y i n g the p r o v i s i o n s of this a n d the p r e c e d i n g titles of this b o o k , a n y p e r s o n , w h o , b y d i r e c t p r o v i s i o n o f the l a w , p o p u l a r election o r a p p o i n t m e n t b y competent authority, shall t a k e p a r t in the p e r f o r m a n c e of p u b l i c functions in the G o v e r n m e n t o f the P h i l i p p i n e I s l a n d s , o r shall p e r f o r m i n said G o v e r n m e n t or in a n y of its b r a n c h e s p u b l i c duties as a n e m p l o y e e , a g e n t o r s u b o r d i n a t e official, o f a n y r a n k o r class, shall be d e e m e d to be a p u b l i c officer. •

W h o are public officers? To be a public officer, one must be —

•

(1)

T a k i n g part in the performance of public functions in the government, or performing in said Government or any of its branches public duties as an employee, agent, or subordinate official, of any rank or class; and

(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; or

b.

by popular election; or

c.

by appointment by competent authority. (Azarcon v. Sandiganbayan, February 1997)

May a laborer or casual be considered a public officer? It has been held that the definition is quite comprehensive, embracing as it does, every public servant from the highest to the lowest. For the purpose of the R P C , it obliterates the standard distinction in the law of public officers between officer and employee. A laborer in the Bureau of Posts temporarily detailed as filer of money orders is a public officer within the meaning of Article 203. Indeed, common sense indicates that 565

NOTES AND CASES ON THE REVISED PENAL CODE

the receipt of bribe money is just as pernicious when committed by temporary employees as when committed by permanent officials. For purposes of punishing bribery, the temporary performance of public functions is sufficient to constitute a person a public official.

Chapter Two M A L F E A S A N C E A N D MISFEASANCE •

Define malfeasance, misfeasance, and nonfeasance. Malfeasance is the doing of something which in the first place should not be done because it is wrong; Misfeasance is the performance of an act which the officer may perform but he does so erroneously. ( M e m o r y aid — miser) Nonfeasance is the omission to do an act which the officer should perform but does not do so. Section O n e . — Dereliction of Duty

A r t . 204. Knowingly rendering unjust judgment. — A n y j u d g e w h o shall k n o w i n g l y r e n d e r a n u n j u s t j u d g m e n t i n any case submitted to h i m for decision, shall be p u n i s h e d by prision mayor a n d p e r p e t u a l a b s o l u t e disqualification. •

How is knowingly rendering unjust judgment committed? The law requires that: (a) the offender is a judge; (b) he renders a judgment in a case submitted to him for decision; (c) the judgment is unjust; (d) he knew that said judgment is unjust. A judgment is unjust when it is contrary to the standards of conduct prescribed by law. The test to determine whether an order or judgment is unjust may be inferred from the circumstances that it is contrary to law or is not ed by evidence. (Louis Vuitton S.A. v. Villanueva, November 1992)

•

What is the nature of knowingly rendering unjust judgment? Knowingly rendering an unjust judgment is both criminal and istrative infraction. As a crime, it is punished under Article 204. The gist of the offense is that an unjust judgment be rendered maliciously or in bad faith, that is, knowing it to be unjust. An unjust judgment is one, which is contrary to law 567


or is not ed by the evidence or both. The source of an unjust judgment may be error or ill will. There is no liability at all for a mere error. A judicial officer, when required to exercise his judgment or discretion, is not liable criminally for any error which he commits, provided he acts in good faith. Bad faith is the ground for liability. If in rendering judgment, the judge fully knew that the same was unjust in the sense aforesaid, then he acted maliciously and must have been actuated and prevailed upon by hatred, envy, revenge, greed, or some other similar motive. (Dela Cruz v. Concepcion, 54 SCAD) •

What militates against a charge for rendering unjust judgment? A judge cannot be subjected to liability — civil, criminal or istrative — for any of his official acts, no matter how erroneous, as long as he acts in good faith. It is general principle of the highest importance to the proper istration of justice that in exercising the authority vested in him, a judicial officer shall be free to act upon his own convictions, without apprehension of personal consequence to himself. This concept of judicial immunity rests upon consideration of public policy, its purpose being to preserve the integrity and independence of the judiciary, (id.) Mendoza v. Villaluz declared that it is fundamental that a judicial officer when required to exercise his judgment or discretion is not criminally liable for any error he commits, provided he acts in good faith. T h a t in the absence of malice or any wrongful conduct, the judge cannot be held istratively responsible for no one called upon to try the facts or interpret the law in the process of istering justice can be infallible in his judgment. To hold a judge istratively able for every erroneous ruling or decision he renders assuming that he has erred, would be nothing short of harassment or would make his position unbearable.

A r t . 205. Judgment rendered through negligence. — A n y j u d g e w h o , b y r e a s o n o f i n e x c u s a b l e n e g l i g e n c e o r i g n o r a n c e , shall r e n d e r a manifestly unjust j u d g m e n t in a n y case s u b m i t t e d to h i m for decision shall be p u n i s h e d by arresto mayor a n d t e m p o r a r y special disqualification.

568

MALFEASANCE AND MISFEASANCE

A r t . 206. Unjust interlocutory order. — A n y j u d g e w h o shall k n o w i n g l y r e n d e r a n u n j u s t interlocutory o r d e r o r decree shall suffer the p e n a l t y of arresto mayor in its m i n i m u m p e r i o d a n d suspension; b u t i f h e shall h a v e acted b y r e a s o n o f i n e x c u s a b l e n e g l i g e n c e o r i g n o r a n c e a n d the interlocutory o r d e r o r d e c r e e b e manifestly unjust, the penalty shall b e suspension. A r t . 207. Malicious delay in the istration of justice. — T h e p e n a l t y of prision correccional in its m i n i m u m p e r i o d shall b e i m p o s e d u p o n a n y j u d g e guilty o f m a l i c i o u s d e l a y i n the a d m i n i s t r a t i o n of justice. A r t . 208. Prosecution of offenses; negligence and tolerance. — T h e p e n a l t y of prision correccional in its m i n i m u m p e r i o d a n d s u s p e n s i o n shall b e i m p o s e d u p o n a n y p u b l i c officer, or officer of the l a w , w h o , in dereliction of the duties of his office, shall m a l i c i o u s l y r e f r a i n f r o m instituting prosecution for the p u n i s h m e n t of violators of the l a w , or shall tolerate the commission of offenses. •

Who is liable for dereliction of duty? T h e offender is not any public officer but one whose functions relate to instituting prosecution of offenders, such as peace officers, fiscal or barangay captain.

A r t . 209. Betrayal of trust by an attorney or solicitor—Revelation of secrets. — In a d d i t i o n to the p r o p e r istrative action, the penalty of prision correccional in its m i n i m u m p e r i o d , or a fine r a n g i n g f r o m 200 to 1,000 pesos, or both, shall be imposed u p o n a n y attorney-at-law or solicitor (procurador judicial) w h o , by any malicious b r e a c h of professional duty or inexcusable negligence or i g n o r a n c e , shall prejudice his client, or reveal any of the secrets of the latter learned by h i m in his professional capacity. T h e same penalty shall be imposed u p o n an attorneyat-law or solicitor (procurador judicial) w h o , h a v i n g undertaken the defense of a client or h a v i n g received confidential information f r o m said client in a case, shall undertake the defense of the opposing party in the same case, without the consent of his first client. 569


Are all information confided to counsel classified as privileged? N o . A distinction must be made between confidential communications relating to past crimes and future crimes intended to be committed, by the client. T h e announced intention of a client to commit a crime is not included within the confidences which his attorney is bound to respect. If the client seeks his lawyer's advice with respect to a crime that he has theretofore committed, he is given the protection of a virtual confessional seal which the attorney-client privilege declares cannot be broken by the attorney without the client's consent. Said privileged confidentiality, however, does not attach with regard to a crime which a client intends to commit in the future and for purposes of which he seeks the lawyer's advice. Statements and communications regarding a crime already committed, made by a party who committed it, to an attorney, consulted as such, are privileged communications. Contrarily, communications having to do with the client's contemplated criminal acts, or in aid or furtherance thereof, are not covered by the cloak of privileges ordinarily existing in reference to communications between attorney and client. (People v. Sandiganbayan, G.R. Nos. 115439-41, July 16, 1997) A future crime is one which has not yet been committed when it was divulged to the counsel. What is essential for the communication to be clothed with the privilege? For a communication between a lawyer and his client may be privileged, it must be for a lawful purpose or in furtherance of lawful end. Every communication made to an attorney by a client for criminal purpose is a conspiracy or attempt at a conspiracy which is unlawful not to divulge and which the attorney under certain circumstances may be bound to disclose at once in the interest of justice, (id.)

570

MALFEASANCE A N D MISFEASANCE

Section T w o . — Bribery

A r t . 210. Direct bribery. — A n y p u b l i c officer w h o shall a g r e e to p e r f o r m an act constituting a c r i m e , in connection w i t h the p e r f o r m a n c e of his official duties, in consideration of a n y offer, p r o m i s e , gift or p r e s e n t r e c e i v e d by such officer, p e r s o n a l l y o r t h r o u g h the m e d i a t i o n o f a n o t h e r , shall suffer the p e n a l t y of prision mayor in its m e d i u m a n d m i n i m u m p e r i o d s a n d a fine not less t h a n t h r e e times the v a l u e of the gift, in a d d i t i o n to the p e n a l t y c o r r e s p o n d i n g to the crime a g r e e d u p o n , i f the s a m e shall h a v e b e e n committed. If the gift w a s a c c e p t e d by the officer in consideration of the execution of an act w h i c h does not constitute a crime, a n d the officer e x e c u t e d said act, he shall suffer the same penalty p r o v i d e d in the p r e c e d i n g p a r a g r a p h ; a n d if said act shall not h a v e b e e n a c c o m p l i s h e d , the officer shall suffer the penalties of prision correccional, in its m e d i u m p e r i o d a n d a fine of not less t h a n t w i c e the v a l u e of such gift. If the object for w h i c h the gift w a s r e c e i v e d or p r o m i s e d w a s t o m a k e the p u b l i c officer r e f r a i n f r o m d o i n g something w h i c h it w a s his official d u t y to d o , he shall suffer the penalties of prision correccional in its m a x i m u m p e r i o d to prision mayor in its m i n i m u m p e r i o d a n d a fine not less than three times the v a l u e of such gift. In a d d i t i o n to the penalties p r o v i d e d in the p r e c e d i n g p a r a g r a p h s , the culprit shall suffer the penalty of special t e m p o r a r y disqualification. T h e provisions contained in the p r e c e d i n g p a r a g r a p h s shall be m a d e a p p l i c a b l e to assessors, a r b i t r a t o r s , a p p r a i s a l a n d claim commissioners, experts or any other persons p e r f o r m i n g p u b l i c duties. (As amended by B.P. Big. 871, approved May 29, 1985.) •

What is bribery? Bribery is the crime of the public officer who receives a gift, present, offer or promise by reason or in connection with the performance of his official duties. It is the crime of the 571


receiver. The crime of the giver is corruption of public officers. Bribery requires concurrence of the will of the corruptor and the public officer otherwise, the crime cannot be consummated. It cannot thus be in the frustrated stage. •

What are the kinds of bribery? 1.

Direct bribery — the public officer will do an act which may or may not constitute a crime, or refrain from doing what he should do in consideration of what he will receive. The kinds of direct bribery in Article 210 are: a.

1st paragraph — the act constitutes a crime wherein mere agreement consummates direct bribery ("shall agree to perform an act constituting a crime.")

b.

2nd paragraph — the act agreed upon does not constitute a crime; here the officer must accept the gift, mere agreement will not suffice ("gift was accepted by the officer.") Under this paragraph:

c.

»

1.

If the act is executed — penalty is the same as in the first paragraph.

2.

If the act is not accomplished — penalty is lower.

3rd paragraph — nonfeasance; the officer refrains from doing what he is obliged to perform.

2.

Indirect bribery — the public officer does not have to do anything in consideration of what he receives. T h e gift is given to him by reason of his office without more.

3.

Qualified bribery — a law enforcement officer refrains from arresting or prosecuting an offender who commits an offense penalized with reclusion perpetua and/or death.

When the act performed by the officer constitutes a crime, what should be the penalty to the offender? T h e penalty shall be for the bribery and for the crime committed. Note in the last sentence of paragraph 1, "in addition to the penalty corresponding to the crime agreed upon, if the same shall have been committed." It is, thus, necessary to determine whether or not the act to be performed will amount

572


to a crime. If so, the mere agreement on the part of the officer will consummate direct bribery (and corruption of public officer). If he w e r e able to perform the act, he commits not only direct bribery but also the crime brought about by the act. For example, alteration of entry in the registry of the Land Registration Authority: On the part of the Officer: 1.

Direct bribery; and

2.

Falsification of public document.

On the part of the corruptor: 1.

Corruption of public officer; and

2.

Falsification of public document, as principal by inducement.

Bribery cannot be committed without the corresponding crime of corruption of public officer. Once there is consummated bribery, there is the crime of corruption. When the public officer refused to be corrupted, the corruptor is only liable for attempted corruption but there is no bribery. What are the essential elements of direct bribery? T h e four essential elements of the offense are: 1.

Accused is a public officer as defined in Article 203;

2.

He received by himself or thru another, some gift or present, offer or promise;

3.

Such gift, present or promise has been given in consideration of his commission of some crime or any act not constituting a crime; and

4.

The crime or act relates to the exercise of his functions.

Formilleza acquitted the accused for lack of acceptance ratiocinating that it was improbable for accused to accept bribe money in front of her officemates and in a public place, even if the money had been handed to her under the table. The accused shouted at the complainant, "What are you trying to do to me?" which is not the normal reaction of one with a guilty conscience. There must be a clear intention of the public officer to take 573


the gift so offered and consider it as his own property from then on. Mere physical receipt unaccompanied by any other sign, circumstance or act to show acceptance is not sufficient to conclude that the crime has been committed. To hold otherwise would encourage unscrupulous individuals to frame up public officers by simply putting within their physical custody gift, money or other property. A r t . 211. Indirect bribery. — T h e penalties of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s , suspension a n d p u b l i c censure shall be i m p o s e d u p o n any p u b l i c officer w h o shall accept gifts offered to h i m by r e a s o n of his office. (As amended by B.P. Big. 871, May 29, 1985.) •

What is indirect bribery? It is the crime of any public officer who shall accept gifts offered to him by reason of his office. In indirect bribery, the officer is not to do anything in consideration of what he may receive. M e r e acceptance of the gift because of his position constitutes indirect bribery. But if after receiving the gift, he does any act in favor of the giver, it ceases to be indirect but becomes direct bribery. W h e n anonymous gifts are received by the officer by reason of his office, he must do acts showing that he accepts the gift to be liable for indirect bribery.

•

How is indirect bribery committed? It is committed by a public officer who accepts a gift which was offered to him by reason of his office. T h e fact that the evidence is wanting as to direct connivance is of no moment since in indirect bribery it is not necessary that the officer should do any particular act or even promise to do an act, as it is enough that he accepts gifts offered to him by reason of his office. (Victoriano v. Alvior, March 1978)

•

What are the distinctions between Direct and Indirect Bribery? a.

In direct bribery, the public officer must do or omit the doing of something in consideration of the gift. In indirect bribery, there is no such requirement.

574

MALFEASANCE A N D MISFEASANCE

b.

M e r e agreement consummates the crime of direct bribery if the act agreed upon amounts to a crime. In indirect bribery, the public officer must accept the gift to consummate the crime of indirect bribery.

A r t . 211-A. Qualified Bribery. — If a n y p u b l i c officer is entrusted with l a w enforcement and he refrains from a r r e s t i n g o r p r o s e c u t i n g a n o f f e n d e r w h o h a s committed a crime p u n i s h a b l e by reclusion perpetua a n d / o r d e a t h in c o n s i d e r a t i o n of a n y offer, p r o m i s e , gift or present, he shall suffer the p e n a l t y for the offense w h i c h w a s not prosecuted. If it is the p u b l i c officer w h o asks or d e m a n d s such gift or present, he shall suffer the p e n a l t y of d e a t h . (As added by Sec. 4, R.A. No. 7659.) •

What are the elements of qualified bribery? a.

Offender must be a public officer charged with law enforcement;

b.

He refrains from arresting or prosecuting a person who has committed a crime;

c.

T h e crime committed must be punishable with reclusion perpetua A N D / O R death (i.e., [1] reclusion perpetua; [2] death; or [3] reclusion perpetua to death).

d.

Said officer refrained from prosecuting or arresting the offender because of money, gift or promise as consideration therefor. T h e penalty on the officer is the same as that of the offender. The second paragraph which states that if the public officer were the one who asked or demanded for the gift, death penalty will be imposed on him, is no longer enforceable because of the proscription for the imposition of the death penalty. ( R . A . 9346)

T h e penalty must be reclusion perpetua or death or reclusion perpetua to death. Otherwise, it becomes dereliction of duty under Article 208. If he refrained from prosecuting the offenders for a consideration, the crimes committed are dereliction of duty and direct bribery because Article 210, first paragraph, states that the penalty therefor is "in addition" to 575


the penalty for the crime committed. ( R . A . 9346 has no effect on the element of penalty because the article speaks of penalty prescribed for the crime committed by the offender who was not arrested or prosecuted.) A r t . 212. Corruption of public officials. — T h e same penalties imposed u p o n the officer c o r r u p t e d , except those of disqualification a n d suspension, shall b e imposed u p o n any p e r s o n w h o shall h a v e m a d e the offers o r promises o r g i v e n the gifts or presents as d e s c r i b e d in the p r e c e d i n g articles. •

When the officer refused to be corrupted, what is committed? It is attempted corruption of a public official. There is no frustrated corruption and frustrated bribery because these crimes involve concurrence of the will of the corruptor and the public officer. Hence, once they agreed, the crime is immediately consummated. If the public officer refused to be corrupted, the corruption is merely attempted but there is no bribery on the part of the officer who refused to be corrupted.

P R E S I D E N T I A L D E C R E E N O . 749 xxx

xxx

xxx

Section 1. A n y p e r s o n w h o v o l u n t a r i l y gives i n f o r m a tion a b o u t a n y violation of A r t i c l e s 210, 211, a n d 212 of the Revised P e n a l C o d e ; R e p u b l i c A c t N u m b e r e d T h r e e T h o u s a n d N i n e t e e n , as a m e n d e d ; Section 345 of the I n t e r n a l R e v e n u e C o d e a n d Section 3604 of the T a r i f f a n d C u s t o m s C o d e a n d other p r o v i s i o n s o f the s a i d C o d e s p e n a l i z i n g a b u s e o r dishonesty on the p a r t of the p u b l i c officials c o n c e r n e d ; a n d other l a w s , rules a n d r e g u l a t i o n s p u n i s h i n g acts o f graft, c o r r u p t i o n a n d other forms o f official a b u s e ; a n d w h o w i l l ingly testifies a g a i n s t a n y p u b l i c official or e m p l o y e e for such violation shall b e e x e m p t f r o m p r o s e c u t i o n o r p u n i s h ment for the offense w i t h r e f e r e n c e to w h i c h his i n f o r m a t i o n a n d testimony w e r e g i v e n , a n d m a y p l e a d o r p r o v e the g i v i n g of such prosecution: Provided, that this i m m u n i t y m a y be enj o y e d e v e n i n cases w h e r e the i n f o r m a t i o n a n d testimony a r e given a g a i n s t a p e r s o n w h o is not a p u b l i c official b u t w h o is a p r i n c i p a l , or accomplice, or a c c e s s o r y in the c o m m i s s i o n 576


of a n y of the a b o v e - m e n t i o n e d violations; Provided, further, that this i m m u n i t y m a y be e n j o y e d by such i n f o r m a n t or witness n o t w i t h s t a n d i n g that h e offered o r g a v e the b r i b e o r gift to the p u b l i c official or his a c c o m p l i c e for such gift or b r i b e - g i v i n g ; a n d , Provided, finally, that the f o l l o w i n g conditions concur: 1.

T h e i n f o r m a t i o n m u s t r e f e r to c o n s u m m a t e d violations of a n y of the a b o v e - m e n t i o n e d provisions of law, rules and regulation;

2.

T h e i n f o r m a t i o n a n d testimony a r e n e c e s s a r y for the conviction of the a c c u s e d p u b l i c officer.

3.

S u c h i n f o r m a t i o n a n d testimony a r e not yet in the possession of the State;

4.

S u c h i n f o r m a t i o n a n d testimony can be c o r r o b o r a t e d on its m a t e r i a l points; a n d

5.

T h e i n f o r m a n t or w i t n e s s h a s not b e e n p r e v i o u s l y convicted of a c r i m e i n v o l v i n g m o r a l t u r p i t u d e .

Sec. 2. T h e i m m u n i t y g r a n t e d h e r e u n d e r shall not attach s h o u l d it t u r n out s u b s e q u e n t l y that the i n f o r m a t i o n a n d / o r testimony is false a n d m a l i c i o u s or m a d e only for the p u r p o s e o f h a r a s s i n g , molesting o r i n a n y w a y p r e j u d i c i n g the p u b l i c officer so d e n o u n c e d shall be entitled to any action, civil or criminal, against said i n f o r m a n t or witness. Sec. 3. A l l p r e l i m i n a r y investigations c o n d u c t e d by a prosecuting fiscal, j u d g e or committee, a n d all p r o c e e d i n g s u n d e r t a k e n in connection t h e r e w i t h , shall be strictly confidential or p r i v a t e in o r d e r to protect the reputation of the official u n d e r investigation in the event that the r e p o r t proves to be u n f o u n d e d or no prima facie case is established. xxx

xxx

xxx

A p p r o v e d : July 18, 1975. •

Under P.D. 749, what are required for immunity? The corruptor may invoke immunity from prosecution by doing two things: 1.

Voluntarily giving information to the government of any corrupt transaction of an officer in violation of the R P C or any anti-graft law. 577


2.

Testifying in the case that may subsequently be filed against the public officer involved.

and complying with five conditions, viz.: 1.

The information must refer to a consummated violation.

2.

The information and testimony ( I T ) are necessary to bring about prosecution and punishment.

3.

These IT should not yet be in possession of the government.

4.

The IT can be corroborated in their material points.

5.

The informant or witness has not been convicted for any crime involving moral turpitude.

The immunity shall refer only to the transaction where the IT relates. It will not apply to any other transaction he had with the public officer. If the bribe-giver resorted to falsehoods in his testimony, he is not immune to the crime arising from the falsity such as perjury.

Chapter Three FRAUDS A N D I L L E G A L EXACTIONS A N D TRANSACTIONS A r t . 213. Frauds against the public treasury and similar offenses. — T h e p e n a l t y of prision correccional in its m e d i u m p e r i o d to prision mayor in its m i n i m u m p e r i o d , or a fine r a n g i n g f r o m 200 to 10,000 pesos, or b o t h , shall be imposed u p o n a n y p u b l i c officer w h o : 1.

In his official capacity, in d e a l i n g w i t h a n y p e r s o n w i t h r e g a r d t o f u r n i s h i n g supplies, the m a k i n g of contracts, or the a d j u s t m e n t or settlement of s r e l a t i n g to p u b l i c p r o p e r t y or funds, shall enter into a n a g r e e m e n t w i t h any interested p a r t y or s p e c u l a t o r or m a k e use of a n y other scheme, to d e f r a u d the G o v e r n m e n t ;

2.

B e i n g e n t r u s t e d w i t h the collection of taxes, licenses, fees a n d other imposts, shall be guilty of a n y of the f o l l o w i n g acts or omissions: a.

D e m a n d i n g , directly or indirectly, the payment o f sums different f r o m o r l a r g e r than those a u t h o r i z e d b y l a w .

b.

F a i l i n g v o l u n t a r i l y to issue a receipt, as p r o v i d e d b y l a w , for a n y s u m o f m o n e y collected by h i m officially.

c.

Collecting or receiving, directly or indirectly, by w a y of p a y m e n t or otherwise, things or objects of a n a t u r e different f r o m that p r o v i d e d by l a w .

W h e n the culprit is an officer or employee of the B u r e a u of Internal R e v e n u e or the B u r e a u of Customs, the provisions of the istrative C o d e shall be applied.

579


Who is the offender in illegal exaction? Illegal exaction under the second paragraph of Article 213 can only be committed by a collecting officer or a public officer whose official duty is to collect payments due to the government. The crime committed is aside from malversation of funds and pertains to the violation of the rules and regulations pertaining to collection such as issuance of official receipts. What are the three ways of committing illegal exaction? 1.

Demanding an amount different from what the law authorizes;

2.

Failing voluntarily to issue receipt; and

3.

Collecting or receiving as payment things of nature different from that required by law.

In the first way, illegal exaction is committed by mere demanding an amount different, bigger or smaller, than what should be paid, even if the debtor refuses. This provision is not applicable to personnel of the B I R and the Bureau of Customs because they are allowed to collect an amount different from that fixed since interests and surcharges are imposed. Moreover, they are authorized to compromise penalties. What are the elements of illegal exaction? 1.

The offender is a collecting officer;

2.

He is entrusted with the collection of taxes, licenses, fees and other imposts;

3.

He collected an amount different from that required by law or he failed voluntarily to issue a receipt or he collected things or objects different from that provided by law.

What crimes may be committed in relation to illegal exaction? If the collecting officer collected a bigger amount and the excess pocketed, there is an additional offense of malversation because the collecting officer is able for the amount 580

FRAUDS A N D ILLEGAL EXACTIONS A N D T R A N S A C T I O N S

collected. If to facilitate the taking of the excess amount he falsified the second copy of the official receipt which is to be submitted to the ing department, the crimes would be complex of malversation through falsification of document and illegal exaction. T h e whole amount becomes public fund because issuing receipt is the operative act making the whole amount public fund. It should be noted that both falsification of public document and malversation do not require damage as element, hence, complexing of these crimes is possible under Article 48, falsification being necessary to commit the other. However, if the falsification was resorted to hide the malversation, the crime is not complex but separate. (See Sendaydiego) Voluntary failure to issue a receipt is also penalized under Section 68 of P . D . 1445, the State Audit Code. A r t . 214. Other frauds. — In a d d i t i o n to t h e p e n a l t i e s p r e s c r i b e d in the provisions of C h a p t e r Six, Title Ten, B o o k T w o , o f this C o d e , t h e p e n a l t y o f t e m p o r a r y s p e c i a l d i s q u a l i f i c a t i o n i n its m a x i m u m p e r i o d t o p e r p e t u a l special disqualification shall be imposed u p o n any public officer w h o , t a k i n g a d v a n t a g e o f h i s official p o s i t i o n , s h a l l commit any of the f r a u d s or deceits e n u m e r a t e d in said provisions. A r t . 215. Prohibited transactions. — T h e penalty of prision correccional in its m i n i m u m p e r i o d or a fine r a n g i n g f r o m 200 to 1,000 pesos, or b o t h , shall be imposed u p o n any appointive p u b l i c officer w h o , d u r i n g his i n c u m b e n c y , shall directly or indirectly b e c o m e interested in any transaction of e x c h a n g e or speculation w i t h i n the territory subject to his jurisdiction. A r t . 216. Possession of prohibited interest by a public officer. — T h e penalty of arresto mayor in its m e d i u m p e r i o d to prision correccional in its m i n i m u m p e r i o d , or a fine r a n g i n g from 200 to 1,000 pesos, or both, shall be imposed u p o n a public officer w h o , directly or indirectly, shall become interested in any contract or business in w h i c h it is his official duty to intervene.

581


This provision is a p p l i c a b l e to experts, a r b i t r a t o r s a n d private ants w h o , in like m a n n e r , shall take p a r t in any contract or transaction connected w i t h the estate or p r o p e r t y in the a p p r a i s a l , distribution or a d j u d i c a t i o n of w h i c h they shall h a v e acted, a n d to the g u a r d i a n s a n d executors with respect to the p r o p e r t y b e l o n g i n g to their w a r d s o r estate. The crimes under this Section are all covered in Section 3(e) of the Anti-Graft and Corrupt Practices A c t or Republic Act N o . 3019.

Chapter Four M A L V E R S A T I O N OF P U B L I C FUNDS OR P R O P E R T Y A r t . 217. Malversation of public funds or property — Presumption of malversation. — A n y p u b l i c officer w h o , by r e a s o n of the duties of his office, is a c c o u n t a b l e for p u b l i c funds or p r o p e r t y , shall a p p r o p r i a t e the s a m e , or shall take or m i s a p p r o p r i a t e o r shall consent, o r t h r o u g h a b a n d o n m e n t o r negligence, shall p e r m i t a n y o t h e r p e r s o n to take such p u b l i c funds o r p r o p e r t y , w h o l l y o r p a r t i a l l y , o r shall o t h e r w i s e b e guilty of the m i s a p p r o p r i a t i o n or m a l v e r s a t i o n of such funds or p r o p e r t y , shall suffer: 1.

T h e penalty of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s , if the a m o u n t involved in the m i s a p p r o p r i a t i o n or m a l v e r s a t i o n does not exceed t w o h u n d r e d pesos.

2.

T h e penalty of prision mayor in its m i n i m u m a n d m e d i u m p e r i o d s , if the a m o u n t involved is m o r e t h a n 200 pesos b u t does not exceed 6,000 pesos.

3.

T h e penalty of prision mayor in its m a x i m u m p e r i o d to reclusion temporal in its m i n i m u m p e r i o d , if the a m o u n t i n v o l v e d is m o r e t h a n 6,000 pesos b u t is less t h a n 12,000 pesos.

4.

T h e penalty of reclusion temporal in its m e d i u m a n d m a x i m u m p e r i o d s , if the a m o u n t involved is m o r e than 12,000 pesos b u t is less than 22,000 pesos. If the a m o u n t exceeds the latter, the penalty shall be reclusion temporal in its m a x i m u m period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of p e r p e t u a l special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled. 513


T h e failure of a public officer to have duly forthcoming any public funds or p r o p e r t y w i t h w h i c h he is c h a r g e a b l e , upon d e m a n d by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or p r o p e r t y to personal uses. (As amended by R.A. No. 1060, approved June 12, 1954.) What are the elements of malversation? a.

The offender is a public officer;

b.

He has custody or control of funds or property by reason of the duties of his office;

c.

The funds or property involved are public funds or property for which he is able; and

d.

He has appropriated, taken or misappropriated, or has consented to, or through abandonment or negligence, permitted the taking by another person of such funds or property.

T h e delivery to QQ, by reason of the duties of his office as P N P Station Commander, of the firearms belonging to the Government, entailed the implicit obligation on his part to safely keep the firearms, use them for the purposes for which they were entrusted to him, and to return them to the proper authority at termination of tenure, or on demand. T h e duty is to for said firearms. His act of misappropriating, malversing, and converting the firearms to his own personal use and benefit, with abuse of trust and confidence completed the basic description of malversation attributed to him. (Quinon v. Sandiganbayan, April 1997) How is malversation committed? Malversation is committed in any of the following: (a)

Appropriating, taking or misappropriating; or

(b)

Consenting or permitting any other person, through abandonment or negligence, to take such public funds or property.

584

M A L V E R S A T I O N OF PUBLIC F U N D S OR PROPERTY

In ( a ) , it is the officer who put the funds or property to his own use and benefit; in (b), it is a third person who benefited therefrom. Malversation is based on the relation of the offender to the fund or property misappropriated. He must be an able public officer otherwise, the crime is estafa. Malversation is committed where the able officer or somebody else misappropriated public funds, in the latter case, by consent, negligence or abandonment of property the public officer is bound to . By virtue of Article 222, even private funds may be the subject of malversation if these were placed in the custody of an officer able therefor by reason of his office. •

W h o is an able officer? An able officer is he who, in the discharge of his office, receives money or property of the government which he is bound to later for. It is the nature of the duties of, not the nomenclature used for, or the relative significance of the title to, the position which controls in the determination. (Tanggote v. Sandiganbayan, 55 SCAD)

•

W h o could be liable for malversation? Both Articles 217 and 220 hold persons who are not able officers as such when they are, nonetheless, able for specific public property as when they have a duty to return the same or to dispose thereof as provided by law or by lawful regulation or orders of their superiors. (Azarcon v. Sandiganbayan, February 1996) There are public officers who technically are not able officers because they are not designated as such unlike cashiers, collecting officers, property officers who are per se able officers. Nonetheless, these officers may be able for specific government assets entrusted to them to enable them to perform their functions. Such entrustment is proved by a Memorandum Receipt, a government form evidencing receipt by a public officer of public property. Such public officials are able officers only with respect to such property entrusted to them, such as police officers for weapon issued, computer operators for the personal computers, printers and accessories held by them, and so on. 585


In what other instance may a person who is not an able officer be convicted of malversation? A public officer who is not in charge of public funds or property by virtue of official position, or even a private individual, may be liable for malversation or illegal use of public funds or property if such public officer or private individual conspires with an able public officer to commit malversation or illegal use of public funds or property. For instance, the public office of the Municipal Mayor is a constituent element of malversation and illegal use of public funds or property. T h e mayor's position is classified as salary grade ( S G ) 27. Since the Amended informations alleged that the petitioner conspired with her co-accused, the municipal mayor, in committing the said felonies, the fact that her position is municipal ant and as such she is not an able officer is of no moment. Also, the Sandiganbayan has exclusive original jurisdiction over the cases lodged against her although occupying SG 24 since one of the accused in the case occupies SG 27. Under Section 474 of the Local Government Code, a municipal ant is not obliged to receive public money or property, nor is she obligated to for the same; hence, she is not an able officer within the context of Article 217. Indeed, under the said article, an able public officer is one who has actual control of public funds or property by reason of the duties of his office. Even then, it cannot be necessarily concluded that a municipal ant cannot be convicted for malversation. T h e name or relative importance of the office or employment is not the controlling factor. (Quinon v. People, G.R. No. 136462, September 19, 2002) T h e nature of the duties of the public officer or employee, that as part of his duties he received public money for which he is bound to and failed to for it, is the factor which determines whether or not malversation is committed by the accused public officer or employee. Hence, a mere clerk in the provincial or municipal government may be held guilty of malversation if he or she is entrusted with public funds and misappropriates the same. (Barriga v. Sandiganbayan, G.R. Nos. 161784-86, April 26, 2005)


•

What is the condition precedent for any taking, appropriation, conversion or loss of public funds to amount to malversation? T h e r e must first be evidence of shortage. It was only the drawn check, based on the audit examination that brought about the shortage. It was error to conclude that the check which the audit team had pinpointed as the shortage due to its dishonor was at the same time, intended and used by EN and ES to "cover up" shortages in the funds allegedly in their custody. T h e shortage must be clearly established as a fact, i.e., that over and above the funds found by the auditor in the actual possession of the able officers, there is an additional amount which could no longer be produced or ed for at the time of audit. Evidence of shortage is necessary before there could be any taking, appropriation, conversion, or loss of public funds that would amount to malversation. It makes no sense for any bogus check to be produced to "cover up" an inexistent malversation. (Enriquez v. People, 331 SCRA)

•

What is the effect on the penalty if malversation is committed through negligence? N o n e . Generally, a felony by culpa is penalized lower than that by dolo. However, malversation is the only felony which has the same penalty whether committed by dolo or culpa. Even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. T h e dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper. (People v. Pepito, February 1997) An accused charged with willful malversation can be validly convicted of the same offense of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense. Unlike the other felonies wherein 587


a lower penalty is imposed when the offense is committed through negligence, either because it is so specified in the particular provision denning and punishing that felony or by force of Article 365, in malversation, the penalty is the same whether the mode of commission is with intent or by negligence. (Cabello v. Sandiganbayan, G.R. No. 93885, May 14, 1991) Samson convicted an accused charged with intentional falsification of falsification through negligence. W h i l e a criminal negligent act is not a simple modality of a willful crime but a distinct crime in itself, designated as a quasi-offense, a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. Appellant was charged with willful falsification but the evidence shows that in effecting the falsification which made possible the cashing of the checks in question, he did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. T h e information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and proof. T h e rationale also applies to malversation. (People v. Uy, Jr., G.R. No. 157399, November 2005) When will the presumption of malversation arise? For the presumption to arise, the following must be indubitably proved: 1.

T h e audit is complete, accurate and reliable;

2.

T h e amount of ability has been duly established;

3.

Demand is made on the able officer; and

4.

T h e funds or property is not duly forthcoming and he cannot explain the reason therefor.

W h e n demand is made to the able officer to for the funds and property and the same is not forthcoming, the presumption is that he misappropriated the funds. But before 588


the presumption arises, it must be proved that he is clearly able for the amount. T h e audit must be complete, thorough, and reliable, otherwise, the presumption shall not stand. Presumption does not arise simply because there is a shortage. It must be indubitably established that the fund exists; that he is able therefor; and he cannot explain the shortage. (Rizon v. CA, October 1991; Tinga v. Sandiganbayan, April 1988) T h e prima facie presumption arises only if there is no issue as to the accuracy, correctness, and regularity of the audit findings and if the fact that funds are missing is indubitably established. T h e audit team leader could not even equivocally state whether it was cash or check that was lost belying the accuracy and correctness of the team's audit report. (Enriquez v. People) •

Is direct evidence required in malversation? N o . Direct evidence is not necessary to establish the presumption but unless the audit is complete, thorough and reliable, the foundation for the presumption will not be established. Otherwise, direct evidence of misappropriation is necessary. (Quizo v. Sandiganbayan, 149 SCRA) Malversation may be committed either through a positive act of misappropriation of public funds or property or ively through negligence by allowing another to commit such misappropriation. Nonetheless, all that is necessary to prove in both acts are the following: (a) that the defendant received in his possession public funds or property; (b) that he could not for them and did not have them in his possession when audited; and (c) that he could not give a satisfactory or reasonable excuse for the disappearance of said funds or property. An able officer may thus be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is a shortage in his s which he has not been able to explain satisfactorily. (Cabello v. Sandiganbayan)

589


•

Is demand an element of malversation? No. Demand merely raises a prima facie presumption that missing funds have been put to personal use. The demand itself is not an element of, and not indispensable to constitute, malversation. Even without a demand, malversation can still be committed when enough facts are extant to prove it. The mere failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, is prima facie evidence that he has put such funds or property to personal use. To justify conviction for malversation of public funds, the prosecution has only to prove that the accused received public funds or property and that he could not for them or did not have them in his possession and could not give a reasonable excuse for the disappearance of the same.

•

If the disbursement of public funds is unauthorized, will that make up a case of malversation? N o t every unauthorized payment of public funds is malversation. T h e r e is malversation only if the public officer who has custody of public funds should appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take such public funds. W h e r e the payment of public funds has been made in good faith, and there is reasonable ground to believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed to have acted in good faith, there is no criminal intent, and the payment, it if turns out that it is unauthorized, renders him only civilly but not criminally liable. Compliance to a patently lawful order is rectitude far better than contumacious disobedience. T h e order emanated from the Office of the President and bears the signature of the President himself. It carries with it the presumption that it was regularly issued. A n d on its face, the memorandum is patently lawful for no law makes the payment of an obligation

590


illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia. •

Is good faith a valid defense in malversation? Y e s , for it would negate criminal intent on the part of the accused. To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent or by such negligence or indifference to duty or to consequences as, in law, is equivalent to criminal intent. Actus non facit reum, nisi mens sit rea — a crime is not committed if the mind of the person performing the act complained of is innocent. Ordinarily, evil intent must unite with an unlawful act for there to be a crime. T h e r e can be no crime when the criminal mind is wanting. Criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose. T h e accused may always introduce evidence to show he acted in good faith and that he had no intention to convert. (People v. Pepito, February 1997) But negligence must be absent for the defense of good faith to prosper.

•

What is the effect of the restitution of the amount malversed? Restitution does not affect criminal liability. It is in fact an implied ission of guilt. However, by analogy to voluntary plea of guilt, it is considered as a mitigating circumstance. Payment, for the disappearance of the same. (Dumagat v. Sandiganbayan) indemnification, or reimbursement of, or compromise as to, the amounts or funds malversed or misappropriated, affects only the civil liability of the offender but does not extinguish his criminal liability. (Felicilda v. Grospe, G.R. No. 102494, July 3, 1992)

Ml


•

What court has jurisdiction over malversation cases? R . A . 8249 which amended Section 4 of P.D. 1606 gives the Sandiganbayan original jurisdiction over crimes and felonies of public officers and employees, at least one of whom belongs to any of the five categories therein at the time of the commission of such crimes. (Inding v. Sandiganbayan, G.R. No. 143047, July 14, 2004) There are two classes of public office-related crimes under subparagraph (b), Section 4, R . A . 8249: 1.

Those in which the public office is element as defined by statute and between the crime and the offense is a legal sense, the offense committed without the office; and

a constituent the relation such that, in cannot exist

2.

Such offenses or felonies which are intimately connected with the public office and are perpetrated by the public officer or employee while in the performance of his official functions, through improper or irregular conduct. (Barriga v. Sandiganbayan)

T h e Sandiganbayan has original jurisdiction over criminal cases involving crimes and felonies under the first classification. Considering that the public office of the accused is by statute a constituent element of the crime charged, there is no need for the Prosecutor to state in the information specific factual allegations of the intimacy between the office and the crime charged, or that the accused committed the crime in the performance of his duties. However, the Sandiganbayan likewise has original jurisdiction over criminal cases involving crimes or felonies committed by the public officers and employees enumerated in Section (a)(1) to (5) under the second classification if the information contains specific factual allegations showing the intimate connection between the offense charged and the public office, and the discharge of official duties or functions — whether improper or irregular. T h e requirement is not complied with if

592


the information merely alleges that the accused committed the crime charged in relation to his office because such allegation is merely a conclusion of law. Malversation and illegal use of public funds or property belong to the first classification. T h e public office of the accused is a constituent element in both. •

•

Compare malversation, estafa and qualified theft. 1.

These crimes all involve abuse of confidence or betrayal of trust.

2.

T h e y can all be committed by public officers over public funds. H o w e v e r , malversation cannot be committed against private property except for private property in custodia legis. (Article 222)

3.

In estafa and qualified theft, the offender can be a private person or a public officer who should not be able for the fund or property taken; in malversation it is necessary that the offender is a public officer able over the funds or property appropriated.

4.

T h e taking of public funds or property is malversation if the public officer is able therefor; estafa, if the offender who is not able therefor has acquired juridical possession and taken it with abuse of confidence or deceit; qualified theft, if the offender who has mere physical or material possession took the property with abuse of confidence.

If falsification of documents was resorted to for the purpose of concealing malversation, is a complex crime committed? N o , for complex crimes require that one crime is used to commit another. If the falsification is resorted for the purpose of hiding the malversation, the falsification and malversation are separate offenses. Thus, where the provincial treasurer, as the custodian of the money forming part of the road and bridge fund, effected payments to his co-accused for construction materials supposedly delivered to the province for various projects when in fact no such materials were delivered, and to conceal the defraudation, the accused used six fake vouchers the crimes

593


committed are not complex but separate crimes of falsification and malversation. The falsifications cannot be regarded as constituting one continuing offense impelled by a single criminal impulse. Each falsification of a voucher constitutes one crime. The falsification of six vouchers constitutes six separate or distinct offenses; and each misappropriation as evidenced by a provincial voucher constitutes a separate offense. These are not cases where the execution of a single act constitutes two grave or less grave felonies or where the falsification was used as a means to commit malversation. If falsification was resorted to for the purpose of hiding the malversation, the falsification and malversation are separate offenses. (People v. Sendaydiego, G.R. Nos. L-33252-54, January 20,

1978)

A r t . 218. Failure of able officer to render s. — A n y p u b l i c officer, w h e t h e r in the service or s e p a r a t e d t h e r e f r o m b y r e s i g n a t i o n o r a n y other cause, w h o i s r e q u i r e d by l a w or r e g u l a t i o n to r e n d e r to the C o m m i s s i o n on A u d i t , or to a p r o v i n c i a l a u d i t o r a n d w h o fails to do so for a p e r i o d of t w o m o n t h s after such s s h o u l d be r e n d e r e d , shall be p u n i s h e d by prision correccional in its m i n i m u m p e r i o d , or by a fine r a n g i n g f r o m 200 pesos to 6,000 pesos or both. A r t . 219. Failure of a responsible public officer to render s before leaving the country. — A n y p u b l i c officer w h o u n l a w f u l l y leaves or attempts to l e a v e the P h i l i p p i n e I s l a n d w i t h o u t s e c u r i n g a certificate f r o m the C o m m i s s i o n on A u d i t s h o w i n g that his s h a v e b e e n finally settled, shall be p u n i s h e d by arresto mayor, or a fine r a n g i n g f r o m 200 to 1,000 pesos, or both. A r t . 220. Rlegal use of public funds or property. — A n y p u b l i c officer w h o shall a p p l y a n y p u b l i c f u n d o r p r o p e r t y u n d e r his a d m i n i s t r a t i o n to a n y p u b l i c use o t h e r t h a n that for w h i c h such fund o r p r o p e r t y w e r e a p p r o p r i a t e d b y l a w o r o r d i n a n c e shall suffer the p e n a l t y of prision correccional in its m i n i m u m p e r i o d or a fine r a n g i n g f r o m one-half to the total v a l u e of the s u m m i s a p p l i e d , if by r e a s o n of such

594


m i s a p p r o p r i a t i o n , a n y d a m a g e o r e m b a r r a s s m e n t shall h a v e resulted to the p u b l i c service. In either case, the offender shall also suffer the p e n a l t y of t e m p o r a r y special disqualification. If no d a m a g e or e m b a r r a s s m e n t to the p u b l i c service has resulted, the p e n a l t y shall be a fine f r o m 5 to 50 percent of the s u m m i s a p p l i e d . •

What are elements of illegal use of public funds or property (technical malversation)? 1.

T h e offender is a public officer;

2.

There is public fund or property under his istration;

3.

Such public fund or property has been appropriated by law or ordinance; and

4.

He applies the same to a public use other than that for which such fund or property has been appropriated.

There is no particular appropriation for salary differentials of teachers of the Sulu State College in R . A . 6688. T h e third element of the crime of technical malversation ( T M ) which requires that the public fund used should have been appropriated by law is therefore absent. T h e authorization given by the D B M for the use of the P40.000 allotment for payment of salary differentials of 34 teachers is not an ordinance or law contemplated in Article 220. Thus, appellant who used the remainder of the fund released by the D B M for salary differentials for the payment of the terminal leave benefits of other teachers of the College cannot be held guilty of TM in the absence of any provision in R . A . 6688 specifically appropriating said amount for payment of salary differentials only. In fine, the third and fourth elements of the crime defined in Article 220 are lacking in this case. (Abdulla v. People, G.R. No. 150129, April 6, 2005) •

Does the presumption of criminal intent automatically apply to technical malversation? N o . Criminal intent is presumed from the voluntary commission of an unlawful act. But such presumption of criminal intent will not automatically apply to all charges of 595


TM because disbursement of public funds for public use is per se not an unlawful act. Appellant cannot be said to have committed an unlawful act when she paid the obligation of the College in the form of terminal leave benefits to its employees who were entitled thereto. In the absence of any presumption of unlawful intent, the burden of proving by competent evidence that appellant's act of paying the terminal leave benefits of employees of the Sulu was done with criminal intent rests upon the prosecution, (id) The Sandiganbayan's improper reliance on Section 5(b) of Rule 131 does not save the day for the prosecution's deficiency in proving the existence of criminal intent nor could it ever tilt the scale from the constitutional presumption of innocence to that of guilt. Actus non facit reum, nisi mens sit rea - a crime is not committed if the mind of the person performing the act complained of be innocent. To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent. It is true that a presumption of criminal intent may arise from proof of the commission of a criminal act; and the general rule is that if it is proved that the accused committed the criminal act charged, it will be presumed that the act was done with criminal intention and that it is for the accused to rebut this presumption. But the act from which such presumption springs must be a criminal act. In the case at bar, the act is not criminal. Neither can it be categorized as malum prohibitum, the mere commission of which makes the doer criminally liable even if he acted without evil intent. (Manzanaris v. People, G.R. No. L-64750, January 30, 1984) Compare malversation and technical malversation. 1.

T h e offenders are able officers in both crimes.

2.

T h e offender in TM does not derive any personal gain or profit; in malversation, the offender in certain cases profits from the proceeds of the crime.

3.

In T M , the public fund or property is applied to another public use; in malversation, the public fund or property is applied to the personal use and benefit of the offender or of another person. 596


istrative case

•

4.

In T M , the act is not illegal per se because it is another public use; in malversation it is illegal per se for the public funds w e r e diverted to personal use.

5.

In the former, there must be an appropriation either by law such as a general appropriation law or an ordinance enacted by a local legislative body. In the latter, there is no such requirement. (Barriga v. Sandiganbayan)

What is required for technical malversation to exist? It is necessary that public funds or properties had been diverted to any public use other than that provided for by law or ordinance (Palma Gil v. People, 177 SCRA). The C R B I fund is a general fund, and the utilization of this fund specifically for the concreting of the Barangay Jalung Road was merely an internal arrangement between the D P W H and the Barangay Captain and was not particularly provided for by law or ordinance. There is no dispute that the money was spent for a public purpose — payment of the wages of laborers working on various projects in the municipality. It is pertinent to note the high priority which laborers' wages enjoy as claims against the employers' funds and resources. In the absence of a law or ordinance appropriating the C R B I fund for the concreting of the Barangay Jalung Road, the petitioner cannot be declared guilty of the crime of illegal use of public funds. (Parungao u. Sandiganbayan, G.R. No. 96025, May 5, 1991)

•

Can accused be convicted of technical malversation in an information charging malversation? N o . A comparison of the two articles reveals that their elements are entirely distinct and different from each other. In malversation, the offender misappropriates public funds for his own personal use or allows any other person to take such public funds for the latter's personal use. In T M , the public officer applies public funds under his istration to a public use other than that for which the fund was appropriated by law or ordinance. TM is, therefore, not included in nor does it necessarily include the crime of malversation of public funds charged in the information. Since the acts constituting TM were not alleged in the information, and since TM does not include, or is not included in the crime of malversation, accused cannot resultantly be convicted of T M . (id) 597

NOTES ANO CASES ON THE REVISED PENAL CODE

A r t . 221. Failure to make delivery of public funds or property. — A n y public officer u n d e r obligation to m a k e p a y m e n t f r o m G o v e r n m e n t funds in his possession, w h o shall fail to m a k e such payment, shall be p u n i s h e d by arresto mayor a n d a fine from 5 to 25 percent of the sum, w h i c h he failed to p a y . This provision shall a p p l y to any p u b l i c officer w h o , b e i n g o r d e r e d by competent authority to d e l i v e r any p r o p e r t y in his custody or u n d e r his istration, shall refuse to m a k e such delivery. T h e fine shall be g r a d u a t e d in such case by the v a l u e of the thing, p r o v i d e d that it shall not be less t h a n 50 pesos. A r t . 222. Officers included in the preceding provisions. — T h e provisions of this c h a p t e r shall a p p l y to p r i v a t e i n d i v i d u a l s w h o , i n any capacity w h a t e v e r , h a v e c h a r g e o f a n y N a t i o n a l , provincial o r m u n i c i p a l funds, r e v e n u e s , o r p r o p e r t y a n d to a n y a d m i n i s t r a t o r or d e p o s i t o r y of funds or p r o p e r t y attached, seized or d e p o s i t e d by p u b l i c a u t h o r i t y , e v e n if such p r o p e r t y b e l o n g s to a p r i v a t e i n d i v i d u a l . •

How is malversation committed by a private person? 1.

When a private person conspired with a public officer to commit malversation.

2.

W h e n he is an accomplice or accessory.

3.

Where the private person was constituted a custodian of public property in whatever capacity even without a public officer involved and he misappropriated the same. (But see Azarcon v. Batausa)

Where the officer was constituted a custodian of the fund or property or depository subject of seizure or attachment, such seizure or attachment brings the property in custodia legis and impresses the fund/property with the character of public property or ability of government. T h e crime is malversation not qualified theft because the property is under custodia legis as provided under Article 220. A private person conspiring with an able officer in committing malversation is also guilty of malversation. A different rule prevails with respect to a stranger taking part in the commission of parricide or qualified theft. In such cases, the

598


stranger is not guilty of parricide or qualified theft but only of murder or homicide and simple theft. (People v. Sendaydiego) Azarcon v. Batausa, F e b r u a r y 26,1997 AA was designated custodian of the distrained property of JJ by the Bureau of Internal Revenue ( B I R ) . H e assumed the specific undertakings which included the promise that he will preserve and protect the equipment. Subsequently, he reported to the B I R that JJ surreptitiously took the distrained property. •

Does a person become a public officer via his designation by the BIR as custodian of distrained property? N o . To be a public officer, one must be — 1.

Taking part in the performance of public functions in the government, or performing in said Government or any of its branches public duties as an employee, agent, or subordinate official, or any rank or class; and

2.

That 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; or

b.

by popular election; or

c.

by appointment by competent authority.

Rastrollo, 1 Phil. 22 (1901), is not applicable because the facts therein are not identical, similar or analogous to those obtaining here. That case involved a judicial deposit or the proceeds of the sale of attached property in the hands of the debtor; the case at bench dealt with the BIR's istrative act of effecting constructive distraint over alleged property of JJ in relation to his back taxes, property which was received by A A . It was clearly within the scope of that court's jurisdiction and judicial power to constitute the judicial deposit and give "the depositary a character equivalent to that of a public official." However, in the instant case, while the B I R had authority to require AA to sign a receipt for the distrained truck, the N I R C did not grant it power to appoint AA a public officer.

599


Section 206 of the N I R C authorizes the B I R to effect a constructive distraint by requiring "any person" to preserve a distrained property. However, there is no provision in the N I R C constituting such person a public officer by reason of such requirement. The BIR's power authorizing a private individual to act as a depositary cannot be stretched to include the power to appoint him as a public officer. •

Has the Sandiganbayan jurisdiction over a private person? To ascertain whether a court has jurisdiction or not, the provisions of the law should be inquired into. Furthermore, its jurisdiction must appear clearly from the statute law or it will not be held to exist. It cannot be presumed or implied. A n d for this purpose in criminal cases, the jurisdiction of a court is determined by the law at the time of commencement of the action. Section 4, P . D . 1606, prior to its amendment by R . A . 7975 on M a y 16, 1995 unequivocally specify the only instances when the Sandiganbayan w i l l have jurisdiction over a private individual, i.e., when the complaint charges the private individual either as a co-principal, accomplice or accessory of a public officer or employee who has been charged with a crime within its jurisdiction. A private individual who has in his charge any of the public funds or property enumerated therein and commits any of the acts denned in any of the provisions of Chapter 4, Title 7 of the R P C , should likewise be penalized with the same penalty meted to erring public officers. N o w h e r e in this provision is it expressed or implied that a private individual falling under said Article 222 is to be deemed a public officer.

R E P U B L I C A C T N O . 7080 - P L U N D E R Section 1. Definition of . — As u s e d in this A c t , the term: a.

"Public Officer" m e a n s a n y p e r s o n h o l d i n g a n y p u b l i c office in the G o v e r n m e n t of the R e p u b l i c of the P h i l i p p i n e s b y v i r t u e o f a n a p p o i n t m e n t , election o r contract. 600


b.

"Government" i n c l u d e s the N a t i o n a l G o v e r n m e n t , a n d any of its s u b d i v i s i o n s , a g e n c i e s or instrumentalities, i n c l u d i n g g o v e r n m e n t - o w n e d o r controlled c o r p o r a t i o n s a n d their s u b s i d i a r i e s .

c.

"Person" i n c l u d e s a n y n a t u r a l or j u r i d i c a l p e r s o n , unless the context indicates o t h e r w i s e .

d.

"Ill-gotten wealth" m e a n s a n y asset, p r o p e r t y , business e n t e r p r i s e o r m a t e r i a l possession o f a n y p e r s o n w i t h i n the p u r v i e w o f Section t w o (2) hereof, a c q u i r e d b y h i m directly o r indirectly t h r o u g h d u m m i e s , nominees, agents, s u b o r d i n a t e s a n d / o r b u s i n e s s associates b y a n y c o m b i n a t i o n or series of the f o l l o w i n g m e a n s or similar schemes: 1.

T h r o u g h m i s a p p r o p r i a t i o n , c o n v e r s i o n , misuse, or m a l v e r s a t i o n o f p u b l i c f u n d s o r r a i d s o n the p u b l i c treasury;

2.

By receiving, directly or indirectly, a n y commission, gift, s h a r e , p e r c e n t a g e , k i c k b a c k s or any/or entity in connection w i t h a n y g o v e r n m e n t contract or project or by r e a s o n of the office or position of the p u b l i c officer c o n c e r n e d ;

3.

By the illegal or f r a u d u l e n t conveyance or disposition of assets b e l o n g i n g to the N a t i o n a l g o v e r n m e n t or a n y of its subdivisions, agencies or instrumentalities or g o v e r n m e n t - o w n e d or controlled c o r p o r a t i o n s a n d their subsidiaries;

4.

By obtaining, r e c e i v i n g or accepting directly or indirectly a n y s h a r e s of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or u n d e r t a k i n g ;

5.

By establishing agricultural, industrial or commercial monopolies or other combinations and/ or implementation of decrees a n d o r d e r s intended to benefit p a r t i c u l a r persons or special interests; or

601


6.

By taking u n d u e a d v a n t a g e of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense a n d to the d a m a g e a n d prejudice of the Filipino people and the R e p u b l i c of the Philippines.

Sec. 2. Definition of the Crime of Plunder; Penalties. — A n y public officer w h o , by himself or in connivance w i t h m e m b e r s of his family, relatives by affinity or consanguinity, business associates, s u b o r d i n a t e s or other persons, amasses, accumulates or a c q u i r e s ill-gotten w e a l t h t h r o u g h a combination or series of overt criminal acts as d e s c r i b e d in Section 1(d) h e r e o f in the a g g r e g a t e a m o u n t or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of p l u n d e r a n d shall be p u n i s h e d by reclusion perpetua to death. A n y p e r s o n w h o p a r t i c i p a t e d with the said p u b l i c officer in the commission of an offense contributing to the c r i m e of p l u n d e r shall l i k e w i s e be p u n i s h e d for such offense. In the imposition of penalties, the d e g r e e of p a r t i c i p a t i o n a n d the a t t e n d a n c e of m i t i g a t i n g a n d extenuating circumstances, a s p r o v i d e d b y the R e v i s e d P e n a l C o d e , shall b e c o n s i d e r e d b y the court. T h e c o u r t shall declare a n y a n d all ill-gotten w e a l t h a n d their interests a n d other incomes a n d assets i n c l u d i n g the p r o p e r t i e s a n d s h a r e s of stocks d e r i v e d f r o m the deposit or investment t h e r e o f forfeited in f a v o r of the State. [ A s A m e n d e d by Section 12, R e p u b l i c A c t N o . 7659.] Sec. 3. Competent Court. — U n t i l o t h e r w i s e p r o v i d e d b y l a w , all prosecutions u n d e r this A c t shall b e w i t h i n the o r i g i n a l j u r i s d i c t i o n o f the S a n d i g a n b a y a n . Sec. 4. Rule of Evidence. — F o r p u r p o s e s of e s t a b l i s h i n g the c r i m e of p l u n d e r , it shall not be n e c e s s a r y to p r o v e each a n d e v e r y c r i m i n a l act d o n e by the a c c u s e d in f u r t h e r a n c e of the scheme or c o n s p i r a c y to a m a s s , a c c u m u l a t e or a c q u i r e ill-gotten w e a l t h , it b e i n g sufficient to establish b e y o n d r e a s o n a b l e d o u b t a p a t t e r n of o v e r t or c r i m i n a l acts indicative of the o v e r a l l u n l a w f u l scheme or c o n s p i r a c y .

602


Sec. 5. Suspension and Loss of Benefits. — A n y p u b l i c officer a g a i n s t w h o m a n y c r i m i n a l p r o s e c u t i o n u n d e r a valid i n f o r m a t i o n u n d e r this A c t in w h a t e v e r stage of execution a n d m o d e of p a r t i c i p a t i o n , is p e n d i n g in court, shall be s u s p e n d e d f r o m office. S h o u l d h e b e convicted b y final j u d g m e n t , he shall lose all r e t i r e m e n t or g r a t u i t y benefits u n d e r a n y l a w , b u t if he is a c q u i t t e d he shall be entitled to reinstated a n d to the s a l a r i e s a n d o t h e r benefits w h i c h he failed to receive d u r i n g s u s p e n s i o n , unless in the meantime, a d m i n i s t r a t i v e p r o c e e d i n g s h a v e b e e n filed a g a i n s t him. Sec. 6. Prescription of Crime. — T h e c r i m e p u n i s h a b l e u n d e r this A c t shall p r e s c r i b e i n t w e n t y (20) years. H o w e v e r , the r i g h t of the State to r e c o v e r p r o p e r t i e s u n l a w f u l l y a c q u i r e d b y p u b l i c officers f r o m t h e m o r f r o m their nominees o r transferees shall not b e b a r r e d b y p r e s c r i p t i o n , laches, o r estoppel. xxx

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Sec. 8. Scope. — T h i s A c t shall not a p p l y to or affect p e n d i n g prosecutions o r p r o c e e d i n g s , o r those w h i c h m a y b e instituted u n d e r E x e c u t i v e O r d e r N o . 1 issued a n d p r o m u l g a t e d o n F e b r u a r y 28,1986. xxx

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A p p r o v e d : J u l y 12, 1991. Estrada v. Sandiganbayan, G . R . N o . 148560, N o v e m b e r 2001 •

What is the crime of plunder and its nature? Plunder is the crime of public officers amassing wealth involving at least P50 Million by means of a combination or series of overt acts each of which may constitute different offenses. It does not require that each and every act be proved distinctly from each other. It is enough that the acts show a pattern of accumulation. T h e series of acts is in the nature of continued crime. R . A . 1379 prescribes the procedure for the forfeiture or confiscation of ill-gotten wealth. The right of the State to recover ill-gotten wealth is not subject to prescription. 603


Plunder is malum in se. Section 2 authorizing the application of mitigating and extenuating circumstances in the R P C to prosecutions under R . A . 7080 indicates that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal intent. It is true that Section 2 refers "to any person who participates with the said public officer in the commission of an offense contributing to the crime of plunder." There is no reason to believe, however, that it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: " W e agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean." The legislative declaration in R . A . 7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se and it does not matter that such acts are punished in a special law, especially since in the case of plunder, the predicate crimes are mainly mala in se. It would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of B.P. 22 or of an ordinance against jaywalking, without regard to the inherent wrongness of the acts. Is the Plunder Law void for being vague? N o . T h e law contains ascertainable standards and well-defined parameters, which would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of acts, conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide the judge in its application; the counsel, in defending one charged with its violation; and more importantly, the accused in identifying the realm of the proscribed conduct. Indeed, it can be understood 604


with little difficulty that what the law punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at least P50 Million through a series or combination of acts enumerated in Section 1(d) of the law. •

Does not the failure of the law to define certain make a case of vagueness or "overbreadth"? N o . A statute is not rendered uncertain and void merely because general are used therein, or because of the employment of some without denning them, much less is there a need to define every word used. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in the enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder L a w .

•

Define "series," "combination" and "pattern." "Combination" refers to at least two acts enumerated in Section 1(d), e.g., raids on the public treasury in sub-paragraph (1); and fraudulent conveyance of assets belonging to the National Government under sub-paragraph (3). On the other hand, a "series" comprises two or more overt or criminal acts falling under the same category in said section, say misappropriation, malversation and raids on the public treasury, all of which fall under sub-paragraph (1). Had the Legislature intended a technical or distinctive meaning for "combination" and "series," it would have taken greater pains in specifically providing for it in the law. "Pattern" is defined in Section 4 in relation to Sections 1(d) and 2. Under Section 1(d), a pattern consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6). In Section 2, the pattern of overt or criminal acts is directed towards a common purpose or goal —

605


to enable the public officer to amass, accumulate or acquire illgotten wealth. There must either be an overall unlawful scheme or conspiracy to achieve said common goal. Overall unlawful scheme" indicates a general plan of action or method which the principal accused and public officer and others conniving with him follow to achieve the common goal. In the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal. •

As applied to criminal law, define the "void-for-vagueness" rule. A statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. A statute is vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in t w o respects — it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. T h e first may be "saved" by proper construction, while no challenge may be mounted as against the second whenever directed against such activities. W i t h more reason that the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case.

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•

What is the facial challenge against a statute? A facial challenge ("on its face" invalidation of statute or invalidation of statute for being vague on its face) is allowed against a vague statute and to one, which is overbroad because of possible "chilling effect" upon protected speech. The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

•

Are the "void-for-vagueness" rule and the facial challenge applicable to criminal statutes? N o . Their rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. T h e overbreadth and vagueness doctrines have special application only to speech cases. They are inept for testing the validity of penal statutes.

•

What is the test in determining whether a criminal statute is void for uncertainty? T h e test is whether the language conveys a sufficiently definite warning as to the prescribed conduct when measured in common understanding and practice. The "vagueness" doctrine merely requires reasonable degree of certainty for the statute to be upheld — not absolute precision or mathematical exactitude. Flexibility, rather than meticulous specificity, is permissible, as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes. 607


Does Section 4 dispense with "reasonable doubt" requirement? N o . The use of "reasonable doubt" standard is indispensable to command the respect and confidence of the community in the application of criminal law. It is critical that the moral force of criminal law be not diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in a free society that every individual going about his ordinary affairs has confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper fact finder of his guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted statute in the realm of constitutional law as it gives life to the Due Process Clause which protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged. What does Section 4 dispense with in not requiring proof for each and every act in the pattern of accumulation? W h a t the prosecution needs to prove beyond reasonable doubt is only a number of acts sufficient to form a combination or series, which would constitute a pattern and involving an amount of at least P50 million. T h e r e is no need to prove each and every other act alleged in the information to have been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. T h e prosecution need not prove all 50 raids on the treasury it being sufficient to prove by pattern at least two of the raids beyond reasonable doubt provided only that they amounted to at least P50 million. Section 2 in conjunction with Section 4 shows that "pattern of overt or criminal acts indicative of the overall unlawful scheme of conspiracy" inheres in the v e r y act of accumulating, acquiring or amassing hidden wealth. T h e prosecution is thus not required to make a deliberate and conscious effort to prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts.

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•

What is the nature of Section 4 of the Plunder Law? Section 4 is a rule of evidence as shown by its epigraph. It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. It does not define or establish any substantial right in favor of the accused but only operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Even without invoking Section 4, a conviction for plunder may be had, for what is crucial is to present sufficient evidence to engender that moral certitude to prove the guilt of the accused beyond reasonable doubt. Thus, granting that Section 4 is flawed, it may be severed from the rest of the provisions without resulting in the demise of the law. "Pattern" is not an element of plunder. A l l the essential elements of plunder can be culled and understood from its definition in Section 2, in relation to Section 1(d), and pattern is not one of them.


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S E C T I O N 2. Definition of . — A s u s e d in this Act, that t e r m — (a)

"Government" includes the national government, the local g o v e r n m e n t s , the g o v e r n m e n t - o w n e d a n d government-controlled c o r p o r a t i o n s , a n d all other instrumentalities or agencies of the R e p u b l i c of the P h i l i p p i n e s a n d their b r a n c h e s .

( b ) "Public officer" includes elective a n d appointive officials a n d employees, p e r m a n e n t or t e m p o r a r y , w h e t h e r in the classified or unclassified or exempt service receiving compensation, even nominal, from the g o v e r n m e n t as defined in the preceding subparagraph. (c)

"Receiving any gift" includes the act of accepting directly or indirectly a gift f r o m a person other than a m e m b e r of the public officer's immediate family, in b e h a l f of himself or of any m e m b e r of his family 609


or relative within the fourth civil d e g r e e , either by consanguinity or affinity, even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is u n d e r the circumstances manifestly excessive. (d)

"Person" includes n a t u r a l a n d j u r i d i c a l persons, unless the context indicates o t h e r w i s e .

S E C T I O N 3. Corrupt practices of public officers. — I n addition to acts or omissions of p u b l i c officers a l r e a d y penalized by existing l a w , the f o l l o w i n g shall constitute c o r r u p t practices o f a n y p u b l i c officer a n d a r e h e r e b y d e c l a r e d to be u n l a w f u l : required by law to officially intervene. (a)

P e r s u a d i n g , i n d u c i n g o r influencing a n o t h e r p u b l i c officer to p e r f o r m an act constituting a violation o f rules a n d r e g u l a t i o n s d u l y p r o m u l g a t e d b y competent a u t h o r i t y or an offense in connection w i t h the official duties of the latter, or a l l o w i n g himself to be p e r s u a d e d , i n d u c e d , or influenced to commit such violation or offense.

( b ) Directly o r indirectly r e q u e s t i n g o r r e c e i v i n g a n y gift, present, s h a r e , p e r c e n t a g e , or benefit, for himself or for a n y other p e r s o n , in connection w i t h a n y contract o r t r a n s a c t i o n b e t w e e n the G o v e r n m e n t a n d a n y other p a r t , w h e r e i n the p u b l i c officer in his official c a p a c i t y h a s to i n t e r v e n e u n d e r the l a w . (c)

Directly o r indirectly r e q u e s t i n g o r r e c e i v i n g a n y gift, p r e s e n t or o t h e r p e c u n i a r y or m a t e r i a l benefit, for himself o r for a n o t h e r , f r o m a n y p e r s o n for w h o m the p u b l i c officer, i n a n y m a n n e r o r capacity, has s e c u r e d o r o b t a i n e d , o r w i l l s e c u r e o r o b t a i n , a n y G o v e r n m e n t p e r m i t o r license, i n c o n s i d e r a t i o n for the h e l p g i v e n o r t o b e g i v e n , w i t h o u t p r e j u d i c e to Section t h i r t e e n of this A c t .

( d ) A c c e p t i n g o r h a v i n g a n y m e m b e r o f his family accept e m p l o y m e n t in a p r i v a t e e n t e r p r i s e w h i c h has p e n d i n g official b u s i n e s s w i t h h i m d u r i n g the p e n d e n c y t h e r e o f or w i t h i n one y e a r after its termination. 610


(e)

Causing any u n d u e injury to any party, including the G o v e r n m e n t , o r g i v i n g a n y p r i v a t e p a r t y a n y u n w a r r a n t e d benefits, a d v a n t a g e o r p r e f e r e n c e in the d i s c h a r g e of his official a d m i n i s t r a t i v e or j u d i c i a l functions t h r o u g h manifest partiality, e v i d e n t b a d faith o r g r o s s i n e x c u s a b l e negligence. T h i s p r o v i s i o n shall a p p l y to officers a n d employees o f offices o r g o v e r n m e n t c o r p o r a t i o n s c h a r g e d w i t h the g r a n t o f licenses o r p e r m i t s o r other concessions.

(f)

N e g l e c t i n g o r r e f u s i n g , after d u e d e m a n d o r request, w i t h o u t sufficient justification, to act w i t h i n a r e a s o n a b l e time o n a n y m a t t e r p e n d i n g b e f o r e h i m for the p u r p o s e of o b t a i n i n g , directly or indirectly, f r o m a n y p e r s o n interested i n the m a t t e r some p e c u n i a r y o r m a t e r i a l benefit o r a d v a n t a g e , o r for the p u r p o s e o f f a v o r i n g his o w n interest o r g i v i n g undue advantage in favor of or discriminating a g a i n s t a n y o t h e r interested p a r t y .

(g)

E n t e r i n g , o n b e h a l f o f the G o v e r n m e n t , into any contract o r t r a n s a c t i o n manifestly a n d grossly d i s a d v a n t a g e o u s to the s a m e , w h e t h e r or not the p u b l i c officer profited or w i l l profit t h e r e b y .

(h)

D i r e c t o r o r indirectly h a v i n g f i n a n c i n g o r p e c u n i a r y interest in a n y b u s i n e s s , contract or transaction in connection w i t h w h i c h h e intervenes o r takes p a r t in his official capacity, or in w h i c h he is prohibited b y the Constitution o r b y a n y l a w f r o m h a v i n g any interest.

(i)

D i r e c t l y or indirectly b e c o m i n g interested, for p e r s o n a l gain, or h a v i n g a material interest in any transaction or act r e q u i r i n g the a p p r o v a l of a b o a r d , p a n e l or g r o u p of w h i c h he is a m e m b e r , a n d w h i c h exercises discretion in such a p p r o v a l , even if he votes against the same or does not participate in the action of the b o a r d , committee, or g r o u p . Interest for personal g a i n shall be p r e s u m e d against those public officers responsible for the

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a p p r o v a l of manifestly u n l a w f u l , inequitable, or i r r e g u l a r transaction or acts by the b o a r d , p a n e l or g r o u p to w h i c h they belong. (j)

K n o w i n g l y a p p r o v i n g o r g r a n t i n g any license, permit, privilege or benefit in favor of any p e r s o n not qualified for or not legally entitled to such license, permit, privilege or a d v a n t a g e , or of a mere representative or d u m m y of one w h o is not so qualified or entitled.

(k)

D i v u l g i n g v a l u a b l e information of a confidential character, a c q u i r e d by his office or by h i m on of his official position to u n a u t h o r i z e d persons, or r e l e a s i n g such information in a d v a n c e of its a u t h o r i z e d release date.

T h e p e r s o n g i v i n g the gift, present, s h a r e , p e r c e n t a g e or benefit r e f e r r e d t o i n s u b p a r a g r a p h s ( b ) a n d ( c ) ; o r o f f e r i n g or g i v i n g to the p u b l i c officer the e m p l o y m e n t m e n t i o n e d in s u b p a r a g r a p h ( d ) ; o r u r g i n g the d i v u l g i n g o r untimely r e l e a s e of the confidential i n f o r m a t i o n r e f e r r e d to in s u b p a r a g r a p h ( k ) of this section shall, together w i t h the o f f e n d i n g p u b l i c officer, be p u n i s h e d u n d e r Section nine of this A c t a n d shall be p e r m a n e n t l y or t e m p o r a r i l y disqualified in the d i s c r e t i o n of the C o u r t , f r o m t r a n s a c t i n g business in a n y f o r m w i t h the Government. S E C T I O N 4. Prohibition on private individuals. — ( a ) It shall be u n l a w f u l for a n y p e r s o n h a v i n g family or close p e r s o n a l relation w i t h a n y p u b l i c official to capitalize or exploit or take a d v a n t a g e of such family or close p e r s o n a l r e l a t i o n b y directly o r indirectly r e q u e s t i n g o r r e c e i v i n g a n y present, gift o r m a t e r i a l o r p e c u n i a r y a d v a n t a g e f r o m a n y other p e r s o n h a v i n g some b u s i n e s s , t r a n s a c t i o n , a p p l i c a t i o n , r e q u e s t o r contract w i t h the g o v e r n m e n t , i n w h i c h such p u b l i c official has to intervene. F a m i l y r e l a t i o n shall i n c l u d e the spouse or relatives by c o n s a n g u i n i t y or affinity in the t h i r d civil d e g r e e . T h e w o r d "close p e r s o n a l relation" shall include close p e r s o n a l f r i e n d s h i p , social a n d f r a t e r n a l connections, a n d professional e m p l o y m e n t all g i v i n g rise to intimacy w h i c h a s s u r e s free access to such p u b l i c officer.

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( b ) I t shall b e u n l a w f u l for a n y p e r s o n k n o w i n g l y t o i n d u c e or c a u s e a n y p u b l i c official to commit any of the offenses defined in Section 3 hereof. S E C T I O N 5. Prohibition on certain relatives. — It shall b e u n l a w f u l for the s p o u s e o r for a n y relative, b y consanguinity or affinity, w i t h i n the t h i r d civil d e g r e e , of the P r e s i d e n t of the P h i l i p p i n e s , the V i c e - P r e s i d e n t of the P h i l i p p i n e s , the P r e s i d e n t of the S e n a t e , or the S p e a k e r of the H o u s e of R e p r e s e n t a t i v e s , to i n t e r v e n e , directly or indirectly, in a n y business, t r a n s a c t i o n , contract or a p p l i c a t i o n w i t h the G o v e r n m e n t : Provided, T h a t this section shall not a p p l y to a n y p e r s o n w h o , p r i o r to the a s s u m p t i o n of office of a n y of the a b o v e officials t o w h o m h e i s r e l a t e d , h a s b e e n a l r e a d y d e a l i n g w i t h the G o v e r n m e n t a l o n g the s a m e line of business, n o r to a n y transaction, c o n t r a c t o r a p p l i c a t i o n a l r e a d y existing o r p e n d i n g at the time of such a s s u m p t i o n of p u b l i c office, n o r to a n y a p p l i c a t i o n filed by h i m the a p p r o v a l of w h i c h is not d i s c r e t i o n a r y on the p a r t of the official or officials c o n c e r n e d b u t d e p e n d s u p o n c o m p l i a n c e w i t h requisites p r o v i d e d b y l a w , or rules or r e g u l a t i o n s issued p u r s u a n t to l a w , n o r to a n y act l a w f u l l y p e r f o r m e d in an official capacity or in the exercise of a profession. S E C T I O N 6. Prohibition on of Congress. — It shall b e u n l a w f u l h e r e a f t e r for a n y M e m b e r o f the C o n g r e s s d u r i n g the t e r m for w h i c h he has b e e n elected, to a c q u i r e or receive a n y p e r s o n a l p e c u n i a r y interest in any specific business e n t e r p r i s e w h i c h w i l l b e directly a n d particularly f a v o r e d o r benefited b y a n y l a w o r resolution a u t h o r e d b y h i m previously a p p r o v e d o r a d o p t e d b y the C o n g r e s s d u r i n g the same term. T h e provision of this section shall a p p l y to any other public officer w h o r e c o m m e n d e d the initiation in Congress of the enactment or a d o p t i o n of a n y l a w or resolution, and acquires or receives any such interest d u r i n g his incumbency. It shall likewise be u n l a w f u l for such m e m b e r of Congress or other public officer, w h o , h a v i n g such interest p r i o r to the a p p r o v a l of such l a w or resolution authored or recommended by him, continues for thirty days after such a p p r o v a l to retain such interest. 613


S E C T I O N 7. Statement of assets and liabilities. — E v e r y public officer, within thirty days after the a p p r o v a l of this Act or after assuming office, a n d within the month of J a n u a r y of every other y e a r thereafter, as well as u p o n the e x p i r a t i o n of his t e r m of office, or u p o n his resignation or s e p a r a t i o n from office, shall p r e p a r e a n d file with the office of the c o r r e s p o n d i n g D e p a r t m e n t H e a d , or in the case of a H e a d of D e p a r t m e n t or chief of an i n d e p e n d e n t office, w i t h the Office of the President, or in the case of m e m b e r s of the C o n g r e s s a n d the officials a n d employees thereof, w i t h the Office of the Secretary of the c o r r e s p o n d i n g H o u s e , a t r u e detailed a n d s w o r n statement of assets a n d liabilities, i n c l u d i n g a statement of the a m o u n t s a n d sources of his income, the amounts of his p e r s o n a l a n d family expenses a n d the a m o u n t of income taxes p a i d for the next p r e c e d i n g c a l e n d a r year: P r o v i d e d , T h a t p u b l i c officers a s s u m i n g office less t h a n t w o months before the e n d of the c a l e n d a r y e a r , m a y file t h e i r statements in the f o l l o w i n g months of J a n u a r y . S E C T I O N 8. Dismissal due to unexplained wealth. — I f i n a c c o r d a n c e w i t h the p r o v i s i o n s o f R e p u b l i c A c t N u m b e r e d O n e t h o u s a n d t h r e e h u n d r e d seventy-nine, a p u b l i c official has b e e n f o u n d t o h a v e r e q u i r e d d u r i n g his i n c u m b e n c y , w h e t h e r in his n a m e or in the n a m e of o t h e r p e r s o n s , a n a m o u n t o f p r o p e r t y a n d / o r m o n e y manifestly out o f p r o p o r t i o n to his s a l a r y a n d to his o t h e r l a w f u l i n c o m e , that fact shall be a g r o u n d for dismissal or r e m o v a l . P r o p e r t i e s in the n a m e of the s p o u s e a n d u n m a r r i e d c h i l d r e n of such p u b l i c official m a y b e t a k e n into c o n s i d e r a t i o n , w h e n t h e i r acquisition t h r o u g h legitimate m e a n s c a n n o t b e satisfactorily s h o w n . B a n k deposits shall b e t a k e n into c o n s i d e r a t i o n i n the enforcement of this section, n o t w i t h s t a n d i n g a n y p r o v i s i o n of l a w to the c o n t r a r y . S E C T I O N 9. Penalties for violations. — ( a ) A n y p u b l i c officer o r p r i v a t e p e r s o n committing a n y o f the u n l a w f u l acts or omissions e n u m e r a t e d in Sections 3, 4, 5 a n d 6 of this A c t shall be p u n i s h e d w i t h i m p r i s o n m e n t for not less t h a n one y e a r n o r m o r e t h a n ten y e a r s , p e r p e t u a l disqualification f r o m p u b l i c office, a n d confiscation or f o r f e i t u r e in f a v o r of the G o v e r n m e n t o f a n y p r o h i b i t e d interest a n d u n e x p l a i n e d w e a l t h manifestly out of p r o p o r t i o n to his s a l a r y a n d other l a w f u l income. 614


A n y c o m p l a i n i n g p a r t y a t w h o s e c o m p l a i n t the criminal prosecution w a s initiated shall, in case of conviction of the accused, be entitled to r e c o v e r in the c r i m i n a l action w i t h priority o v e r the forfeiture in f a v o r of the G o v e r n m e n t , the a m o u n t of m o n e y or the t h i n g he m a y h a v e g i v e n to the accused, or the v a l u e of such thing. ( b ) A n y p u b l i c officer violation a n y o f the provisions of Section 7 of this A c t shall be p u n i s h e d by a fine of not less t h a n one h u n d r e d pesos n o r m o r e t h a n one t h o u s a n d pesos, o r b y i m p r i s o n m e n t not e x c e e d i n g one y e a r , o r b y b o t h such fine a n d i m p r i s o n m e n t , at the discretion of the C o u r t . T h e violation of said section p r o v e n in a p r o p e r istrative p r o c e e d i n g shall be sufficient cause for r e m o v a l or dismissal of a p u b l i c officer, even if no c r i m i n a l prosecution is instituted a g a i n s t h i m . S E C T I O N 10. Competent court. — U n t i l o t h e r w i s e p r o v i d e d b y l a w , all p r o s e c u t i o n s u n d e r this A c t shall b e w i t h i n the o r i g i n a l j u r i s d i c t i o n of the p r o p e r C o u r t of First Instance. S E C T I O N 11. Prescription of offenses. — A l l offenses p u n i s h a b l e u n d e r this A c t shall p r e s c r i b e in ten y e a r s . S E C T I O N 12. Termination of office. — No p u b l i c officer shall be a l l o w e d to r e s i g n or retire p e n d i n g an investigation, criminal or istrative, or p e n d i n g a prosecution against him, for any offense u n d e r this A c t or u n d e r the provisions of the Revised P e n a l C o d e on b r i b e r y . S E C T I O N 13. Suspension and loss of benefits. — A n y public officer against w h o m a n y criminal prosecution u n d e r a valid information u n d e r this A c t or u n d e r the provisions of the Revised P e n a l C o d e on b r i b e r y is p e n d i n g in court, shall be suspended f r o m office. S h o u l d he be convicted by final j u d g m e n t , he shall lose all retirement or gratuity benefits u n d e r any l a w , but if he is acquitted, he shall be entitled to reinstatement a n d to the salaries a n d benefits which he failed to receive d u r i n g suspension, unless in the meantime istrative proceedings have b e e n filed against him. S E C T I O N 14. Exception. — Unsolicited gifts or presents of small or insignificant value offered or given as a mere 615


o r d i n a r y token of gratitude or friendship a c c o r d i n g to local customs or usage, shall be excepted from the provisions of this Act. N o t h i n g in this A c t shall be interpreted to p r e j u d i c e or prohibit the practice of a n y profession, l a w f u l t r a d e or occupation by any private p e r s o n or by any p u b l i c officer w h o u n d e r the l a w m a y legitimately practice his profession, trade o r occupation, d u r i n g his incumbency, except w h e r e the practice of such profession, t r a d e or occupation involves conspiracy with a n y other p e r s o n or p u b l i c official to commit any of the violations p e n a l i z e d in this Act. xxx

xxx

xxx

A p p r o v e d : A u g u s t 17, 1960. •

What is the rationale for R.A. 3019? R . A . 3019 was enacted under the police power of the State to promote morality in public service, to deter public officials and employees from committing acts of dishonesty and improve the tone of morality in public service. (Morfe v. Mutuc, 22 SCRA) T h e law does not merely contemplate repression of acts that are unlawful or corrupt per se, but even those that may lead to or result in graft and corruption, (Marcos v. Sandiganbayan) e.g., violation of rules and regulations under Section 3(a).

•

Define the significant under R.A. 3019? "Office" applies to any which the officer charged may be holding, and not only the particular office under which he stands accused. (Segovia v. Sandiganbayan, 288 SCRA 328) "Public Officials" or "public officers" include elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service including military and police personnel, whether or not they receive compensation, regardless of amount. Section 2 of R . A . 3019 expressly limits the definition to the application of the law. It does not apply for purposes of determining the Ombudsman's jurisdiction, as defined by the Constitution and the Ombudsman Act of 1989. T h e question of whether one is a public officer under R . A . 3019 involves the appreciation

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of evidence and interpretation of law, matters that are best resolved at trial. To illustrate, the term "includes" in Section 2(b) indicates that the definition is not restrictive. Accordingly, all public officers, whether in the Career or Non-Career Service, who receive compensation even nominal, from the national government, the local governments, the GOCCs, and all other instrumentalities or agencies of the government may be charged and penalized under the antigraft law. Thus, the following may be charged under the law: a.

Contractual employees (Preclaro v. Sandiganbayan; 247 SCRA 454)

b.

Re-elected public officers (Luciano v. Governor, 28 SCRA 517)

Condonation of an officer's misconduct committed during his expired term applies only to his istrative but not to his criminal guilt. It does not in any w a y wipe out the criminal liabilities incurred by him in a previous term. Gross negligence refers to negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property. In cases involving public officials, there is gross negligence when a breach of duty is flagrant and palpable. (De la Victoria v. Mongaya, AM. No. P-00-1436, February 19, 2001) Is attempted or frustrated violation of R.A. 3019 punishable? The attempted or frustrated state of the offense is not punishable (Pecho v. Sandiganbayan, 56 SCAD) for the law punishes these acts as mala prohibita. What are the acts punishable under R.A. 3019? The following are among the acts punishable under R.A. 3019:

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A.

•

Sec. 3(b) — directly or indirectly requesting or receiving any gift or benefit in connection with any contract or transaction between a government agency and another person wherein the public officer in his capacity has to intervene under the law. Its elements are: 1.

The offender is a public officer

2.

He requested and/or received a gift, present, etc.

3.

The gift, present, etc. was for the benefit of said public officer

4.

He requested and/or received the gift, present, etc. in connection with a contract or transaction with the government, and

5.

He has the right to intervene in such contract or transaction in his official capacity under the law. (Osias v. CA, G.R. Nos. L-46148-49, April 10, 1996)

What kind of intervention is required of the public officer? Section 3(b) refers to a public officer whose official intervention is required by law in a contract or transaction. There is no law, which invests an assistant principal with the power to intervene in the payment of the salary differentials of teachers. Far from exercising any power, petitioner played the humble role of a supplicant whose mission was to expedite payment of the salary differentials of teachers. In his official capacity as assistant principal, he is not required by law to intervene in the payment of the salary differentials. Thus, he cannot be said to have violated the law although he exerted efforts to facilitate the payment of the differentials. (Jaravata v. Sandiganbayan, 127 SCRA) B.

Sec. 3(e) — Causing any undue injury to any party, including the Government or giving unwarranted benefits to any private party, or preference in the discharge of istrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. The elements of the offense are: (1)

T h e accused are public officers or private persons charged in conspiracy with them,

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(2)

Said public officers commited the prohibited acts during the performance of their official duties or in relation to their public positions,

(3)

They cause undue injury to any party, whether the Government or a private party,

(4)

Such injury is caused by giving unwarranted benefits, advantage or preference to such parties, and

(5)

The public officers acted with manifest partiality, evident bad faith or gross inexcusable negligence. (Morfe v. Mutuc, 22 SCRA)

What are the two ways of violating Section 3(e)? a)

Causing any undue injury to any party, including the government; or

b)

Giving any party any advantage or preference.

unwarranted

benefit,

The use of the distinctive term "or" connotes that either act qualifies as a violation of Section 3(e). The act of giving any party any unwarranted benefit, advantage or preference is not an indispensable element of the offense of causing any undue injury to any party as claimed by petitioners and vice versa, although there may be instances where both elements concur. (Santiago v. Garchitorena, 228 SCRA) •

What kind of bad faith would convict under Section 3(e)? It must be evident bad faith. Petitioner, in refusing to issue a certificate of clearance in favor of the private offended party did not act with "evident bad faith," because he was acting within the bounds of law in refusing to clear CC although the practice was that the clearance was nevertheless approved, and then the amount of the unsettled obligation was deducted from the gratuity benefits of the employee. But although petitioner did not act with evident bad faith he acted with bad

619


faith, nevertheless, for which he should respond for damages. (Llorente v. Sandiganbayan, G.R. No. 85464, October 3, 1991) •

Is lack of intent a defense against Section 3(e)? Y e s . Since the accusation is based on evident bad faith, it is just fair and inevitable to allow the accused to adduce evidence to negate bad faith as an exception to the rule that good faith or bad faith is immaterial to an offense malum prohibitum. C.

Sec. 3(f) — Neglecting or refusing after due demand without sufficient justification to act within a reasonable time on any matter pending before the officer for the purpose of obtaining directly or indirectly from any person interested in the matter some pecuniary or material benefit, or to favor his own interest, or discriminating in favor of any other interested party. T h e elements are: 1.

T h e offender is a public officer

2.

He neglected or refused to act without sufficient justification after due demand or request has been made on him

3.

Reasonable time elapsed from such demand or request without the public officer having acted on the matter pending before him, and

4.

Such failure to act is for the purpose of obtaining directly or indirectly, from any person interested in the matter some pecuniary or material benefits or advantage in favor of an interested party, or discriminating against another. (Coronado v. Sandiganbayan, 44 SCAD) Neglect or delay of public function must be accompanied by a demand impliedly or expressly of any benefit or consideration for himself or another. Absent such demand, the officer shall be liable istratively under the Civil Service L a w s , rules and regulations or under R . A . 6713.

D.

Sec. 3(g) — Entering on behalf of the government into any contract or transaction manifestly and grossly disadvantageous to the government whether or not the

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public officer profited or w i l l profit thereby. The elements of the crime are: (1)

T h e accused is a public officer

(2)

He entered into a contract or transaction in behalf of the government, and

(3)

Such contract or transaction is grossly and manifestly disadvantageous to the government.

T h e acts partake of the nature of a malum prohibitum, it is the commission of that act as defined by law, not the character or effect thereof, that determines whether or not the provision has been violated. A n d this construction would be in consonance with the announced purpose of R . A . 3019 — the repression of certain acts of public officers and private persons constituting graft or corrupt practices or which may lead thereto. The law does not merely contemplate repression of acts that are unlawful or corrupt per se, but even those that may lead to or result in graft and corruption. Thus, to require for conviction that the validity of the contract be first proved would be to enervate, if not defeat, the intention of the law. (Marcos v. Sandiganbayan, January 1998) How is the crime committed with abuse of public office? The phrase "offense committed in relation to the office" is described as follows: T h e relation has to be such that in legal sense the offense cannot exist without the office. T h e office must be a constituent element of the offense as defined in the statute, such Chapters II to V I , Title 7 of the R P C . (Sanchez v. Demetriou, G.R. Nos. 111771-77, November 9, 1993) When should the prescription period begin? In case where the violation "be not known at the time," it should be from the date of discovery thereof as stated in one case, as follows: "It was well-nigh impossible for the State, the aggrieved party, to have known the violations of R . A . 3019 at the time of the questioned transactions were made because, as alleged, the public officials connived or conspired with the 'beneficiaries 621


of the loans.' Thus, we agree with the C O M M I T T E E that the prescriptive period for the offenses with which the respondents in OMB-0-96-0968 were charged should be computed from the discovery of the commission thereof and not from the day of such commission." (Presidential Ad Hoc Committee on Behest Loans v. Omb, August 2001) What is the policy of the Supreme Court on the review of the exercise of the investigatory power of the Ombudsman, and the rationale therefor? It is beyond the Supreme Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before it. Such initiative and independence are inherent in the Ombudsman who, beholden to no one, acts as the champion of the people and preserver of the integrity of the public service. T h e rationale of this rule is based not only upon respect for the investigatory and prosecutory powers granted under the present Constitution, but upon practicality as well; otherwise, the functions of the courts would be perilously bound by numerous petitions assailing the result of the investigatory proceedings conducted by the Office, in much the same w a y that the courts would be saturated if compelled to review the prosecutors' exercise of discretion each time they decide to file an information or dismiss a complaint. T h e findings of facts of quasi-judicial bodies, like the Deputy Ombudsman and the Ombudsman, may be nullified on the ground of grave abuse of discretion amounting to excess or lack of jurisdiction. T h e r e is grave abuse of discretion when the power is exercised in an arbitrary, capricious, whimsical or despotic manner by reason of ion or personal hostility so patent and gross as to amount to evasion of positive duty or virtual refusal to perform a duty ened by or in contemplation of law. (Fuentes v. Omb, G.R. No. 16486, November 11, 2005) Does the Sandiganbayan have jurisdiction over officers of State corporations incorporated under the Corporation Code? It is not disputed that the Sandiganbayan has jurisdiction over presidents, directors or trustees, or managers of GOCCs with original charters whenever charges of graft and 622


corruption are involved. However, a question arises whether the Sandiganbayan has jurisdiction over the same officers in G O C C s organized and incorporated under the Corporation Code in v i e w of the delimitation provided for in Section 2(1), Article I X - B of the Constitution. T h e jurisdiction of the Sandiganbayan is separate and distinct from the Civil Service Commission ( C S C ) . The same is governed by Article X I , Section 4 of the 1987 Constitution which provides that "the present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. " R . A . 7975 enacted on March 30, 1995 maintained the jurisdiction of the Sandiganbayan over G O C C s without any distinction whatsoever. Thereafter, on February 5,1997, Congress enacted R . A . 8249 which preserved the subject provision. T h e legislature, in mandating the inclusion of presidents, directors or trustees, or managers of G O C C s within the jurisdiction of the Sandiganbayan, has consistently refrained from making any distinction with respect to the manner of their creation. T h e deliberate omission clearly reveals the intention of the legislature to include both types of corporations within the jurisdiction of the Sandiganbayan whenever its officers are involved in graft and corruption. H a d it been otherwise, it could have simply made the necessary distinction. But it did not. (People v. Sandiganbayan, G.R. Nos. 14 7706-07, February 16, 2005) •

What are government-owned or -controlled corporations? G o v e r n m e n t - o w n e d a n d / o r -controlled corporations for purposes of R . A . 3019 include those with or without original charters. Thus, as of the date of the acquisition by the Government using public funds, Petrophil, while retaining its corporate existence, became a G O C C within the Constitutional precept. Its employees are public servants falling within the investigatory and prosecutory jurisdiction of the Tanodbayan for purposes of R . A . 3019. (Quimpo v. Tanodbayan, 146 SCRA 137) 623


Section 2(13) of E.O. 292 defines G O C C as referring to any agency organized as a stock or non-stock corporation vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the government directly or indirectly or through its instrumentalities either wholly, or where applicable as in the case of stock corporations to the extent of at least 51% of its capital stock. From the foregoing, Philippine Postal Savings Bank ( P P S B ) fits the bill as a G O C C , organized and incorporated under the Corporation Code as a subsidiary of the P H I L P O S T . More than 99% of the authorized capital stock of P P S B belongs to the government while the rest is nominally held by its incorporators who are/were themselves officers of P H I L P O S T . The creation of P P S B was expressly sanctioned by Section 32 of R . A . 7354. Quimpo, mindful of the provisions of the 1987 Constitution, ruled that the officers of G O C C s , whether created by special law or formed under the Corporation Code, come under the jurisdiction of the Sandiganbayan for purposes of the Anti-Graft Act. Otherwise, a major policy of Government, which is to eradicate, or at least minimize, the graft and corruption that has permeated the fabric of the public service like a malignant social cancer, would be seriously undermined. In fact, Section 1 thereof embodies this policy of the government, that is, to repress certain acts not only of public officers but also of private persons constituting graft or corrupt practices or which may lead thereto. A G O C C can conceivably create as many subsidiary corporations under the Corporation Code as it might wish, use public funds, disclaim public ability and escape the liabilities and responsibilities provided by law. By including the concerned officers of G O C C s organized and incorporated under the Corporation Code within the jurisdiction of the Sandiganbayan, the legislature evidently seeks to avoid just that.

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R E P U B L I C T A C T N O . 8249 xxx Sec. 4. Jurisdiction — T h e Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a.

Violations of Republic A c t N o . 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic A c t N o . 1379, and Chapter I I , Section 2, T i t l e V I I , Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1)

Official of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification A c t of 1989 (Republic A c t N o . 6758), specifically including: (a)

Provincial governors, vice-governors, of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads;

(b)

City mayors, vice-mayors, of the sangguniang panlungsod, city treasurers, assessors, engineers and other city department heads;

(c)

Officials of the diplomatic service occupying the position of consul and higher;

(d)

Philippine army and air force colonels, naval captains, and all officers of higher rank;

(e)

Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; City and provincial prosecutors and their assistants, and official and prosecutors in

(f)

625


the Office of the Ombudsman and special prosecutor; and (g)

Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations.

(2)

of Congress and officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989;

(3)

of the judiciary without prejudice to the provisions of the Constitution;

(4)

Chairmen and of Constitutional Commissions, without prejudice to the provisions of the Constitution; and

(5)

A l l other national and local officials classified as Grade "27" and higher under the Compensation and Position Classification A c t of 1989.

Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection ( a ) of this section in relation to their office. Civil and criminal cases filed pursuant to and in connection with Executive Order N o s . 1, 2, 14 and 14-A, issued in 1986. In cases where none of the accused are occupying positions corresponding to Salary Grade "27" or higher, as prescribed in the said Republic A c t N o . 6758, or military and P N P officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Big. 129, as amended.

626


Can the Sandiganbayan preventively suspend a senator? Y e s . T h e authority of the Sandiganbayan to order the preventive suspension of an incumbent public official charged with violation of R . A . 3019 has both legal and jurisprudential . T h e validity of Section 13 — treating of the suspension pendente lite of an accused public officer — may 1.0 longer be put at issue, having been repeatedly upheld. T h e provision of suspension pendente lite applies to all persons indicted upon valid information under the Act, whether they are appointive or elective officials, permanent or temporary employees, or pertaining to the career or non-career service. It is ministerial to issue a suspension order upon determination of the validity of the information. Once the information is found to be sufficient in form and substance, the court is bound to issue the order as a matter of course, and there seems to be no ifs and buts about it. What is the nature of a preventive suspension? Preventive suspension is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during the suspension. (Santiago v. Sandiganbayan, April 2001) How is suspension of the officer mandatory but not automatic? Under Section 13, the suspension of a public officer is mandatory after the validity of the information has been upheld in a pre-suspension hearing conducted for that purpose. This pre-suspension hearing is conducted to determine basically the validity of the information, from which the court can have a basis to either suspend the accused and proceed with the trial on the merits of the case, or withhold the suspension of the latter and dismiss the case, or correct any part of the proceeding which impairs its validity. Upon a proper determination of the validity of the information, it becomes mandatory for the court to immediately issue the suspension order. The rule on the matter is specific and categorical. It leaves no room for interpretation. It is not within the court's discretion to hold in abeyance the suspension of the accused, (id)

627


•

May the official be suspended in a different office than where the act complained of was committed? Y e s . Section 13 does not state that the public officer concerned must be suspended only in the office where he is alleged to have committed the acts with which he has been charged. The use of the word "office" would indicate that it applies to any office which the officer charged may be holding, and not only the particular office under which he stands accused, (id)

•

How should the pre-suspension hearing be conducted? While the imposition of suspension is not automatic or self-operative as the validity of the information must first be determined in a pre-suspension hearing, there is no hard and fast rule as to the conduct thereof. No specific rules need be laid down for such pre-suspension hearing except that the accused should be given a fair and adequate opportunity to challenge the validity of the criminal proceedings against him, e.g., 1.

That he has not been afforded the right of due preliminary investigation;

2.

That the acts for which he stands charged do not constitute a violation of the provisions of R . A . 3019 or the bribery provisions of the R P C which would warrant his mandatory suspension from office; or

3.

He may present a motion to quash the information on any of the grounds provided for in Rule 117 of the R R C P . However, a challenge to the validity of the criminal proceedings on the first two grounds should be treated only in the same manner as a challenge to the criminal proceedings by way of a motion to quash on the ground provided in Paragraph ( a ) , Section 2 of Rule 117 of the Rules of Court, i.e., that the facts charged do not constitute an offense. In other words, a resolution of the challenge to the validity of the criminal proceeding, on such ground, should be limited to an inquiry whether the facts alleged in the information, if hypothetically itted, constitute the elements of an offense punishable under R . A . 3019 or the provisions on bribery of the R P C . (id)

628


•

What should and should not be proved in a pre-suspension hearing?

The law does not require that the guilt of the accused must be established in a pre-suspension proceeding before trial on the merits proceeds. Neither does it contemplate a proceeding to determine: (1) the strength of the evidence of culpability against him; (2) the gravity of the offense charged; or (3) whether or not his continuance in office could influence the witnesses or pose a threat to the safety or integrity of the records and other evidence before the court could have a valid basis in decreeing preventive suspension pending the trial of the case. All it secures to the accused is adequate opportunity to challenge the validity or regularity of the proceedings against him, such as that he has not been afforded the right to due preliminary investigation, that the acts imputed to him do not constitute a specific crime warranting his mandatory suspension from office under Section 13, or that the information is subject to quashal on any of the grounds set out in Section 3, Rule 117. (id) •

Does this power of the Sandiganbayan not encroach upon the doctrine of separation of powers?

The doctrine of separation of powers by itself may not be deemed to have effectively excluded of Congress from R.A. 3019 nor from its sanctions. The maxim simply recognizes that each of the three co-equal and independent, albeit coordinate, branches of the government has exclusive prerogatives and cognizance within its own sphere of influence and effectively prevents one branch from unduly intruding into the internal affairs of either branch. R.A. 3019 does not exclude from its coverage the of Congress and therefore, the Sandiganbayan did not err in decreeing the assailed preventive suspension order, (id) •

When would the Sandiganbayan have jurisdiction over common crimes committed by public officers?

Murder and homicide will never be the main function of any public office. No public office will ever be a constituent element of murder. When then would murder or homicide, committed by a public officer, fall within the exclusive and 629


original jurisdiction of the Sandiganbayan? Montejo, 108 Phil. 613, provides the answer: a public officer commits an offense in relation to his office if he perpetrates the offense while performing, though in an improper or irregular manner, his official functions and he cannot commit the offense without holding his public office. In such a case, there is an intimate connection between the offense and the office of the accused. If the information alleges the close connection between the offense charged and the office of the accused, the case falls within the jurisdiction of the Sandiganbayan. Montejo is an exception that Sanchez recognized. (Crisostomo v. Sandiganbayan, G.R. No. 152398, April 14, 2005)

630

Chapter Five I N F I D E L I T Y OF P U B L I C OFFICERS Section O n e . — Infidelity in the custody of prisoners A r t . 223. Conniving with or consenting to evasion. — A n y p u b l i c officer w h o shall consent to the escape of a p r i s o n e r in his custody or c h a r g e , shall be p u n i s h e d : 1.

By prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s a n d t e m p o r a r y special disqualification in its m a x i m u m p e r i o d to p e r p e t u a l special disqualification, if the fugitive shall h a v e b e e n sentenced by final j u d g m e n t to a n y penalty.

2.

By prision correccional in its m i n i m u m p e r i o d a n d t e m p o r a r y special disqualification, in case the fugitive shall not h a v e b e e n finally convicted b u t only h e l d as a detention p r i s o n e r for a n y crime or violation o f l a w o r m u n i c i p a l o r d i n a n c e .

A r t . 224. Evasion through negligence. — If the e v a s i o n o f the p r i s o n e r s h a l l h a v e t a k e n p l a c e t h r o u g h the n e g l i g e n c e o f the officer c h a r g e d w i t h the c o n v e y a n c e o r c u s t o d y of the e s c a p i n g p r i s o n e r , s a i d officer shall suffer the p e n a l t i e s of arresto mayor in its m a x i m u m p e r i o d to prision correccional in its m i n i m u m p e r i o d a n d t e m p o r a r y special d i s q u a l i f i c a t i o n . A r t . 225. Escape of prisoner under the custody of a person not a public officer. — A n y p r i v a t e p e r s o n to w h o m the conveyance or custody of a p r i s o n e r or p e r s o n u n d e r a r r e s t shall h a v e b e e n confided, w h o shall commit a n y of the offenses mentioned in the t w o p r e c e d i n g articles, shall suffer the penalty next l o w e r in d e g r e e t h a n that p r e s c r i b e d for the p u b l i c officer.

631


•

•

What are the elements of evasion through negligence? a.


b.

He is charged with the conveyance or custody of a prisoner, either detention prisoner or a prisoner by final judgment; and

c.

Such prisoner escapes through his negligence. (Rodillas v. Sandiganbayan, May 1988)

How is infidelity in the custody of prisoners committed? This crime may be committed through dolo (Article 223) or culpa (Article 224). When the offender allowed his prisoner to go to the bathroom to relieve himself it was mere laxity in the handling of prisoners which did not give rise to infidelity through negligence. Negligence here is one which approximates malice or deliberate non-performance of duty. He may be charged istratively but not criminally. (People v. Naua, 36 O.G. 316)(Contra: Rodillas)

•

Will mere laxity amount to negligence as defined in Article 224? Yes. "As a police officer who was charged with the duty to return the prisoner directly to jail, the deviation from his duty was clearly a violation of the regulations. In the first place, it was improper for the petitioner to take lunch with the prisoner and her family when he was supposed to bring his charge to the jail. He even allowed the prisoner and her husband to talk to each other at the request of a co-officer. It is the duty of any police officer having custody of a prisoner to take necessary precautions to assure the absence of any means of escape. A failure to undertake these precautions w i l l make his act one of definite laxity or negligence amounting to deliberate nonperformance of duty. His tolerance of arrangements whereby the prisoner and her companions could plan and make good her escape should have aroused the suspicion of a person of ordinary prudence." (Rodillas v. Sandiganbayan)

•

Does evasion through negligence require connivance between the officer and the prisoner? N o . Conniving or consenting to evasion is a distinct crime. Also, connivance and negligence are incompatible concepts. 632

INFIDELITY OF PUBLIC OFFICERS

T h e petitioner is not being charged under Article 224. It is, thus, not necessary that connivance be proved to hold him liable for the crime of infidelity in the custody of prisoners, (id.) •

How is infidelity committed by private persons? Under Article 225, infidelity can also be committed by a private person to whom the prisoner was entrusted and he connived with the prisoner or through his negligence the prisoner was able to escape ( N o t e the phrase "who shall commit any of the offenses mentioned in the two preceding articles.") If the escape was with consideration, bribery is committed in addition because he was performing a public function, hence at that instance, he is a public officer. It is not "delivering" under Article 156 because at that time, he was performing a public function. Delivery of prisoner from jail under Article 156 is committed by a private person; infidelity by an officercustodian. Section T w o . — Infidelity in the custody of documents

A r t . 226. Removal, concealment or destruction of documents. — A n y p u b l i c officer w h o shall r e m o v e , destroy or conceal documents or p a p e r s officially e n t r u s t e d to him, shall suffer: 1.

T h e p e n a l t y of prision mayor a n d a fine not e x c e e d i n g 1,000 pesos, w h e n e v e r serious d a m a g e shall h a v e b e e n c a u s e d t h e r e b y to a third p a r t y or to the p u b l i c interest.

2.

T h e penalty of prision correccional in its m i n i m u m a n d m e d i u m p e r i o d a n d a fine not exceeding 1,000 pesos, w h e n e v e r the d a m a g e c a u s e d to a third party or the p u b l i c interest shall not h a v e b e e n serious.

In either case, the a d d i t i o n a l penalty of t e m p o r a r y special disqualification in its m a x i m u m p e r i o d to perpetual special disqualification shall be imposed. A r t . 227. Officer breaking seal. — A n y public officer charged with the custody of p a p e r s or p r o p e r t y sealed by p r o p e r authority, w h o shall b r e a k the seals or permit them to be b r o k e n , shall suffer the penalties of prision correccional

633


in its m i n i m u m a n d m e d i u m periods, t e m p o r a r y special disqualification a n d a fine not exceeding 2,000 pesos. A r t . 228. Opening of closed documents. — A n y p u b l i c officer not included in the provision of the next p r e c e d i n g article w h o , without p r o p e r authority, shall o p e n or shall p e r m i t to be o p e n e d any closed p a p e r s , documents or objects entrusted to his custody, shall suffer the penalties of arresto mayor, t e m p o r a r y special disqualification a n d a fine not e x c e e d i n g 2,000 pesos. •

•

What are the elements of infidelity in the custody of documents? 1)


2)

There is a document abstracted, destroyed or concealed;

3)

The document destroyed or abstracted was entrusted to such public officer by reason of his office; and

4)

Damage or prejudice to the public interest or to a third person is caused by the removal, destruction or concealment of such document. (Fajelca v. Escareals, November 1988)

What are the ways of committing infidelity in the custody of documents? 1.

A n y public officer shall remove, destroy or conceal documents or papers officially entrusted to him. There must be prejudice or damage to public interest. T h e damage or prejudice is not limited to pecuniary damage. Where there is delay in rendering public service because the document is not located, there is damage. T h e custodian must have concealed, removed or destroyed the document. (Article 226)

2.

A n y public officer charged with the custody of papers or property sealed by proper authority shall break the seals or permit them to be broken. (Article 227)

3.

A n y public officer not included in N o . 2, without proper authority, shall open or permit to be opened any closed papers, documents or objects entrusted to his custody. (Article 228)

634

INFIDELITY OF PUBLIC OFFICERS

•

Distinguish infidelity from qualified theft. In infidelity, the mail matter is entrusted to the official custodian thereof and is deemed a document. Violation of that trust is a crime against public interest. In qualified theft, the mail matter was not entrusted, but in the course of the performance of the duty of the public employee he handles mail matter and he misappropriates the same. It is a crime against property.

•

Is mail matter property? Y e s , because it can be subject of theft under Article 310. Only property can be subject of theft, therefore, mail matter is property and all crimes involving property such as arson and estafa can be committed over mail matter. Section T h r e e . — Revelation of secrets

A r t . 229. Revelation of secrets by an officer. — A n y p u b l i c officer w h o shall r e v e a l a n y secret k n o w n t o h i m b y r e a s o n of his official capacity, or shall w r o n g f u l l y deliver p a p e r s or copies o f p a p e r s o f w h i c h h e m a y h a v e c h a r g e a n d w h i c h s h o u l d not be p u b l i s h e d , shall suffer penalties of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s , p e r p e t u a l special disqualification a n d a fine not e x c e e d i n g 2,000 pesos if the revelation of such secrets or the d e l i v e r y of such p a p e r s shall h a v e c a u s e d serious d a m a g e to the p u b l i c interest; o t h e r w i s e , the penalties of prision correccional in its m i n i m u m p e r i o d , t e m p o r a r y special disqualification a n d a fine not e x c e e d i n g 500 pesos shall be imposed. A r t . 230. Public officer revealing secrets of private individual. — A n y p u b l i c officer to w h o m the secrets of any private individual shall b e c o m e k n o w n by r e a s o n of his office w h o shall reveal such secrets, shall suffer the penalties of arresto mayor a n d a fine not exceeding 1,000 pesos.

635

Chapter Six

OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS Section O n e . — Disobedience, refusal of assistance and maltreatment of prisoners A r t . 231. Open disobedience. — A n y j u d i c i a l or executive officer w h o shall o p e n l y refuse to execute the j u d g m e n t , decision o r o r d e r o f a n y s u p e r i o r authority m a d e w i t h i n the scope of the jurisdiction of the latter a n d issued w i t h all the legal formalities, shall suffer the penalties of arresto mayor in its m e d i u m p e r i o d to prision correccional in its m i n i m u m p e r i o d , t e m p o r a r y special disqualification in its m a x i m u m p e r i o d a n d a fine not e x c e e d i n g 1,000 pesos. A r t . 232. Disobedience to order of superior officer, when said order was suspended by inferior officer. — A n y p u b l i c officer w h o , h a v i n g for any r e a s o n s u s p e n d e d the e x e c u t i o n o f the o r d e r s of his s u p e r i o r s , shall d i s o b e y such s u p e r i o r s after the latter h a v e d i s a p p r o v e d the s u s p e n s i o n , shall suffer the p e n a l t i e s of prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s a n d p e r p e t u a l special disqualification. A r t . 233. Refusal of assistance. — T h e penalties of arresto mayor in its m e d i u m p e r i o d to prision correccional in its m i n i m u m period, p e r p e t u a l special disqualification a n d a fine not exceeding 1,000 pesos, shall be imposed u p o n a p u b l i c officer w h o , u p o n d e m a n d f r o m competent authority, shall fail to lend his cooperation t o w a r d s the a d m i n i s t r a t i o n of justice or other public service, if such failure shall result in serious d a m a g e to the public interest, or to a t h i r d party; o t h e r w i s e , arresto mayor in its m e d i u m a n d m a x i m u m p e r i o d s a n d a fine not exceeding 500 pesos shall be imposed. •

Cite an example of the crime of refusal of assistance. Refusal of assistance is committed by investigators who refuse to appear to testify in court resulting in the dismissal of the case. Likewise, in case of medico-legal officers who refuse 636

OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS

to appear and testify after having been subpoenaed. R . A . 9165 penalizes the failure of public officials to testify in drugs violation. A r t . 234. Refusal to discharge elective office. — T h e penalty of arresto mayor or a fine not e x c e e d i n g 1,000 pesos, or both, shall b e i m p o s e d u p o n a n y p e r s o n w h o , h a v i n g b e e n elected by p o p u l a r election to a p u b l i c office, shall refuse w i t h o u t legal motive to be s w o r n in or to d i s c h a r g e the duties of said office. A r t . 235. Maltreatment of prisoners. — T h e penalty of prision correccional in its m e d i u m p e r i o d to prision mayor in its m i n i m u m p e r i o d , in a d d i t i o n to his liability for the physical injuries o r d a m a g e c a u s e d , shall b e i m p o s e d u p o n a n y p u b l i c officer o r e m p l o y e e w h o shall o v e r d o himself in the correction or h a n d l i n g of a p r i s o n e r or detention p r i s o n e r u n d e r his c h a r g e , b y the imposition o f p u n i s h m e n t s not a u t h o r i z e d by the r e g u l a t i o n s , or by inflicting such p u n i s h m e n t s in a c r u e l a n d h u m i l i a t i n g m a n n e r . If the p u r p o s e of the m a l t r e a t m e n t is to extort a confession, or to o b t a i n some i n f o r m a t i o n f r o m the prisoner, the offender shall be p u n i s h e d by prision mayor in its m i n i m u m p e r i o d , t e m p o r a r y a b s o l u t e disqualification a n d a fine not e x c e e d i n g 6,000 pesos, in a d d i t i o n to his liability for the physical injuries or d a m a g e c a u s e d . (As amended by E.O. No. 62, Nov. 7, 1986.) •

When a prisoner is maltreated, how many crimes may be committed? T h e crimes are for maltreatment under Article 235 and for physical injuries suffered. T h e two crimes are not to be complexed because the law specified that the penalty for maltreatment shall be "in addition to his liability for the physical injuries or damage caused." Prisoner here refers to both convicts and detention prisoners as the law specified "prisoner or detention prisoner under his charge."

•

To what does the word maltreatment refer to? Maltreatment refers not only to physical maltreatment but also moral, psychological and other kinds of maltreatment 637


because of the phrase "physical injuries or damage caused' and "cruel or humiliating manner." T h e practice of presenting captured persons in national television is a form of maltreatment because they are being presented to the public as suspected criminals even before they are charged causing them humiliation. The maltreatment in this article may be committed: 1.

By an officer overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge;

2.

By imposing regulations; or

3.

By inflicting punishments in a cruel and humiliating manner.

punishments

not

authorized

by

the

If the purpose of the maltreatment is to extort a confession, or to obtain some information from the prisoner, the penalty is higher. R . A . 9745 - A n t i - T o r t u r e A c t of 2009 •

What is torture as defined in R.A. 9745? Torture is an act by which severe pain or suffering, physical or mental, intentionally inflicted on a person to obtain from him or a third person information or a confession; punish him for an act he or a third person has committed or is suspected of having committed; or intimidate or coerce him or a third person; or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority. It does not include pain or suffering arising from, inherent in or incidental to lawful sanctions. Other cruel, inhuman and degrading treatment or punishment refers to a deliberate and aggravated treatment or punishment not included in the enumeration of acts of torture under Section 4 of the A c t , inflicted by the same persons against a person under his custody, which attains a level of

638


severity causing suffering, gross humiliation or debasement to the latter. T h e assessment of level of severity depends on all circumstances, including duration of treatment or punishment, its physical and mental effects, the sex, religion, age, and state of health of victim. Torture therefore involves the following: 1.

Severe pain or suffering either physical or mental;

2.

T h e pain or suffering is intentionally inflicted;

3.

T h e purposes are:

4.

•

a.

To obtain from the victim or a third person information or confession;

b.

To punish the victim for what he or a third person has or is suspected of having committed;

c.

To intimidate or coerce the victim or a third person;

d.

For any reason based on discrimination of any kind.

T h e act is by or at the instigation of or with consent or acquiescence of a person in authority or his agent.

Who are the offenders and victims of torture? T h e principal offender is a person in authority or his agent for the law states that the torture is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority or his agent. T h e following are deemed as principal: 1.

Direct participator, cooperator.

2.

Superior military, police or law enforcement officer or senior government official who ordered any lower ranking personnel to commit torture for any purpose.

3.

Immediate commanding officer of the unit of the A r m e d Forces of the Philippines ( A F P ) ; immediate senior public official of the Philippine National 639

inducer

and

indispensable


Police ( P N P ) and other law enforcement agencies for any act, omission, or negligence committed by him that led, assisted, abetted or allowed, directly or indirectly, the commission of torture. 4.

Commanding officer or senior public official who has knowledge of or should have known that said acts shall be, is being, or has been committed by his subordinates or others within his area of responsibility and, despite such knowledge, did not take preventive or corrective action before, during or immediately after its commission, when he has the authority to prevent or investigate allegations thereof but failed to do so, whether deliberately or due to negligence. T h e following are accessories: 1.

A n y public officer or employee who has knowledge that torture or other cruel, inhuman or degrading treatment or punishment is being committed and not being a principal or accomplice, takes part subsequent to its commission in any of the following ways: (a)

Profiting from or assisting offender to profit from the effects of the act of torture or other cruel, inhuman and degrading treatment or punishment,

(b)

Concealing the said acts and/or destroying the effects or instruments thereof to prevent its discovery, or

(c)

Harboring, concealing or assisting in the escape of the principal in the act of torture or other cruel, inhuman and degrading treatment or punishment provided that the acts are done with abuse of the official's public functions.

It appears that accomplices are punished as principals for paragraph 1 of Section 13 says that any person "who cooperated in the execution of the act of torture or other cruel, inhuman and degrading treatment or 640


punishment by previous or simultaneous acts shall be liable as principal." Moreover, Section 13 does not include accomplices. T h e victim of torture is the person subjected to torture or other cruel, inhuman and degrading treatment or punishment and any individual who has suffered harm as a result of any act of torture, or other cruel, inhuman and degrading treatment or punishment. Usually, the victim is a detainee or prisoner. •

What are the different kinds of torture? 1.

Physical torture - treatment or punishment inflicted by a person in authority or his agent upon another in his custody causing severe pain, exhaustion, disability or dysfunction of one or more parts of the body.

2.

Mental/psychological torture - affects or confuses the mind and/or undermines one's dignity and morale.

3.

Other cruel, inhuman and degrading treatment or punishment - deliberate and aggravated treatment or punishment other than acts of torture at a level of severity causing suffering, gross humiliation or debasement to the victim. T h e law includes as physical torture the following:

1.

Beating, head banging, punching, kicking, striking with truncheon, rifle butt or other similar objects, jumping on stomach;

2.

Food deprivation or forcible feeding with spoiled food, excreta and other stuff or substances not normally eaten;

3.

Electric shock;

4.

Cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound;

5.

The submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until the brink of suffocation;

641


6. Being tied or forced to assume fixed and stressful bodily position; 7. Rape and sexual abuse, including the insertion of foreign objects into the sex organ or rectum, or electrical torture of the genitals; 8. Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue; 9. Dental torture or the forced tooth extraction; 10.

Pulling out of fingernails;

11.

Harmful exposure to elements, e.g., sunlight and extreme cold;

12.

Placing plastic bag and other materials over the head to the point of asphyxiation;

13.

Use of psychoactive drugs to change perception, memory, alertness or w i l l of a person to induce confession, reduce mental competency, induce extreme pain or symptoms of disease;

14.

Other analogous acts of physical torture. Examples of mental or psychological torture are:

1. Blindfolding; 2. Threatening victim or his relatives with bodily harm, execution or other wrongful acts; 3. Confinement in solitary or secret detention places; 4. Prolonged interrogation; 5. Preparing prisoner for show trial, public display or public humiliation (presenting suspect in television); 6. Causing unscheduled transfer of one deprived of liberty from one place to another, creating the belief that he shall be summarily executed; 7. Maltreating member of a person's family; 8. Causing torture to be witnessed by family, relatives or any third party; 9. Denial of sleep/rest; 642


10.

Shame infliction such as stripping naked, parading in public places, shaving head or putting marks on body against his will;

11.

Prohibiting victim to communicate with family member;

12.

Other analogous acts.

What are the crimes punished in the law? T h e law defines the following as special complex crimes (except no. 5) and penalizes with reclusion perpetua: 1.

Torture resulting in the death of any person or torture with homicide;

2.

Torture resulting in mutilation;

3.

Torture with rape;

4.

Torture with other forms of sexual abuse and, in consequence of torture, the victim shall have become insane, imbecile, impotent, blind or maimed for life; and

5.

Torture committed against children.

T h e penalty is higher by one or two degrees than those in Articles 263/264 and 265 on serious and less serious physical injuries inflicted by wounding, beating, assaulting or employing injurious substances on the victim. T h e offender in the R P C is any person who may be private person or public official whereas here, the offender is mainly a person in authority or his agent, though private person can be liable also as principal by conspiracy. What is the relationship between the Revised Penal Code and other special laws, and the Anti-Torture Act? The R P C is suppletory as stated in Section 22. Moreover, if any of crimes against persons under Title 8 and against personal liberty and security in Title 9 is attended by the prohibited acts under the Anti-Torture Act, the penalty for the felony shall be in the maximum period. This is in addition to the penalty for the torture for Section 15 states that 'Torture as 643


a crime shall not absorb or shall not be absorbed by any other crime or felony committed as a consequence, or as a means in the conduct or commission thereof. In which case, torture shall be treated as a separate and independent criminal act whose penalties shall be imposable without prejudice to any other criminal liability provided for by domestic and international laws." The law regards torture as a very serious offense for Section 16 excludes the offender in the crime of torture from any special amnesty law or similar measures that will have the effect of exempting him from any criminal proceedings and sanctions. And, no person shall be expelled, returned or extradited to another State where there are substantial grounds to believe that he shall be in danger of being subjected to torture (Refouler rule). The Human Security Act, R . A . 9372 includes torture as one of the punishable acts of terrorism, as follows: 1.

Use of threat, intimidation, or coercion, or inflict physical pain or torment, or mental, moral, or psychological pressure, which shall vitiate the freewill of a charged or suspected person under investigation and interrogation for the crime of terrorism or conspiracy to commit terrorism.

2.

Death or serious permanent disability of detainee as a consequence of the use of such threat, intimidation, or coercion, or as a consequence of the infliction on him of such physical pain or torment, or as a consequence of the infliction on him of such mental, moral, or psychological pressure.

Section T w o . — Anticipation, prolongation and abandonment of duties and powers of public office A r t . 236. Anticipation of duties of a public office. — A n y p e r s o n w h o shall a s s u m e the p e r f o r m a n c e o f the duties a n d p o w e r s of a n y p u b l i c office or e m p l o y m e n t w i t h o u t first b e i n g s w o r n i n o r h a v i n g g i v e n the b o n d r e q u i r e d b y l a w , shall be s u s p e n d e d f r o m such office or e m p l o y m e n t until he 644


shall h a v e c o m p l i e d w i t h respective formalities a n d shall b e fined f r o m 200 to 500 pesos. A r t . 237. Prolonging performance of duties and powers. — A n y p u b l i c officer w h o shall continue to exercise the duties a n d p o w e r s of his office, e m p l o y m e n t or commission, b e y o n d the p e r i o d p r o v i d e d b y l a w , r e g u l a t i o n s o r special provisions a p p l i c a b l e to the case, shall suffer the penalties of prision correccional in its m i n i m u m p e r i o d , special t e m p o r a r y disqualification in its m i n i m u m p e r i o d a n d a fine not e x c e e d i n g 500 pesos. A r t . 238. Abandonment of office or position. — A n y p u b l i c officer w h o , b e f o r e the a c c e p t a n c e o f his r e s i g n a t i o n , shall a b a n d o n his office t o the d e t r i m e n t o f the p u b l i c s e r v i c e s h a l l s u f f e r the p e n a l t y of arresto mayor. If such office shall h a v e b e e n a b a n d o n e d in o r d e r to e v a d e the d i s c h a r g e of the duties of p r e v e n t i n g , p r o s e c u t i n g o r p u n i s h i n g a n y o f the crimes falling w i t h i n Title O n e , a n d C h a p t e r O n e o f Title T h r e e o f B o o k T w o o f this C o d e , the o f f e n d e r shall be p u n i s h e d by prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s , a n d by arresto mayor if the p u r p o s e of such a b a n d o n m e n t is to e v a d e the duty of p r e v e n t i n g , p r o s e c u t i n g o r p u n i s h i n g any other crime. Section T h r e e . — unlawful

Usurpation of powers and appointments

A r t . 239. Usurpation of legislative powers. — T h e penalties of prision correccional in its m i n i m u m p e r i o d , t e m p o r a r y special disqualification a n d a fine not e x c e e d i n g 1,000 pesos, shall be imposed u p o n any p u b l i c officer w h o shall encroach u p o n the p o w e r s of the legislative b r a n c h of the G o v e r n m e n t , either by m a k i n g g e n e r a l rules or regulations beyond the scope of his authority, or by attempting to repeal a l a w or s u s p e n d i n g the execution thereof. A r t . 240. Usurpation of executive functions. — A n y j u d g e w h o shall assume any p o w e r pertaining to the executive authorities, or shall obstruct the latter in the lawful exercise of their p o w e r s , shall suffer the penalty of arresto mayor in its m e d i u m period to prision correccional in its minimum period. 645


A r t . 241. Usurpation of judicial functions. — T h e penalty of arresto mayor in its m e d i u m p e r i o d to prision correccional in its m i n i m u m period shall be imposed u p o n any officer of the executive b r a n c h of the G o v e r n m e n t w h o shall assume judicial p o w e r s or shall obstruct the execution of a n y o r d e r or decision r e n d e r e d by any j u d g e within his jurisdiction. A r t . 242. Disobeying request for disqualification. — A n y public officer w h o , b e f o r e the question of jurisdiction is decided, shall continue a n y p r o c e e d i n g after h a v i n g b e e n lawfully r e q u i r e d to r e f r a i n f r o m so doing, shall be p u n i s h e d by arresto mayor a n d a fine not e x c e e d i n g 500 pesos. A r t . 243. Orders or requests by executive officers to any judicial authority. — A n y executive officer w h o shall a d d r e s s a n y o r d e r or suggestion to a n y j u d i c i a l authority w i t h respect to a n y case or business c o m i n g w i t h i n the exclusive j u r i s d i c t i o n of the courts of justice shall suffer the penalty of arresto mayor a n d a fine not e x c e e d i n g 500 pesos. A r t . 244. Unlawful appointments. — A n y p u b l i c officer w h o shall k n o w i n g l y n o m i n a t e or a p p o i n t to a n y p u b l i c office a n y p e r s o n l a c k i n g the legal qualifications t h e r e f o r , shall suffer the penalty of arresto mayor a n d a fine not e x c e e d i n g 1,000 pesos. Section F o u r . — Abuses against chastity A r t . 245. Abuses against chastity—Penalties. — T h e penalties of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s a n d t e m p o r a r y special disqualification shall b e i m p o s e d : 1.

U p o n a n y p u b l i c officer w h o shall solicit or m a k e i m m o r a l or indecent a d v a n c e s to a w o m a n interested in matters p e n d i n g b e f o r e such officer for decision, or w i t h respect to w h i c h he is r e q u i r e d to submit a r e p o r t to or consult w i t h a s u p e r i o r officer;

2.

A n y w a r d e n or other p u b l i c officer directly c h a r g e d w i t h the c a r e a n d custody of p r i s o n e r s or p e r s o n s u n d e r a r r e s t w h o shall solicit o r m a k e i m m o r a l o r indecent a d v a n c e s to a w o m a n u n d e r his custody.

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If the p e r s o n solicited be the w i f e , d a u g h t e r , sister or relative w i t h i n the s a m e d e g r e e of affinity of a n y p e r s o n in the custody of such w a r d e n or officer, the penalties shall be prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s a n d t e m p o r a r y special disqualification. •

W h o is the offended in Article 245? How is the law violated? T h e object of advances here is a woman prisoner except in the third situation where the prisoner is a man but the solicitation is on his female relatives. It should be noted that the R P C connects chastity to females and not to males. T h e r e are three ways that this crime is committed: 1.

A public officer solicits or makes immoral or indecent advances to a woman interested in matters pending before such officer for decision, or with respect to which he is required to submit a report to or consult with a superior officer. It is not required that the solicitation be accepted. M e r e soliciting consummates the offense. T h e solicitation is not the casual type but is persistent and threatening implying that the decision will be adverse if the woman refuses.

2.

A n y warden or other public officer directly charged with the care and custody of prisoners or persons under arrest who shall solicit or make immoral or indecent advances to a woman under his custody.

3.

T h e jail warden makes immoral advances or solicitation to the wife, daughter, sister or relative within the same degree of affinity of any person in the custody of such warden or officer. T h e prisoner in this instance is a male but the solicitation is on his female relatives.

The mother of the prisoner is not included. Express mention implies exclusion hence, if the female relative whose favors were desired was the mother of the prisoner, this article is not violated because the relations enumerated are exclusively that of the wife, daughter, sister or relative by affinity in the same degree.

TITLE EIGHT CRIMES AGAINST PERSONS Chapter One DESTRUCTION OF LIFE •

What crimes are covered by Title Eight? 1. Parricide (246) 2. Murder (248) 3. Homicide (249) 4. Death caused in a tumultuous affray (251) 5. Physical injuries inflicted in a tumultuous affray (252) 6. Giving assistance to suicide (253) 7. Discharge of firearms (254) 8. Infanticide (255) 9. Abortion (256 - 259) 10. Duel (260) 11.

Challenging to a duel (261)

12. Mutilation (262) 13. Physical injuries (263-266) 14. Rape (266 A to D) •

What kinds of offenses comprise crimes against persons? T h e y are those which involve killing and inflicting physical injuries. Between killing and inflicting injuries, the difference lies with respect to intent to kill. Intent to kill is considered only when the victim survived because the crime may yet constitute physical injuries only. It is immediately and conclusively presumed when death occurs for criminal intent is presumed conclusively from the voluntary commission of an unlawful act. Besides, a person is answerable for all the 648

D E S T R U C T I O N OF LIFE

consequences of his unlawful act. (See notes on Articles 3 and 4). T h e Anti-Rape L a w of 1997 added a third kind — rape which was reclassified from Crimes against Chastity under Title 11. •

How is intent to kill determined? Intent to kill is deduced from the weapons used by the offenders, the nature, location and number of wounds sustained by the victim and the words uttered by the malefactors before, at the time or immediately after the killing. If the victim dies because of a deliberate act of the malefactor, intent to kill is conclusively presumed. (People v. Delim, G.R. No. 142773, January 28, 2003) malefactor = criminal T h e disputable presumption of the existence of unlawful or criminal intent presupposes the commission of an u n l a w f u l act. Thus, intent to kill is presumed when the victim dies because the act of killing clearly constitutes an unlawful act. Gemoya, G.R. No. 132633, October 4, 2000, held: The intent to kill is presumed from the fact of death, unless the accused proves by convincing evidence that any of the justifying and exempting circumstances in Articles 11 and 12 is present. If the offender repeatedly cried "I will kill you" but he only keeps on boxing the offended and injuries resulted, the crime is not attempted or frustrated homicide because the overt act to kill must be established. Intent to kill cannot be manifested by oral threats. It is shown by overt acts. T h e crime is only for physical injuries.

•

What is the corpus delicti in taking of human life? In every criminal case, the evidence must be sufficient to prove the corpus delicti — that is, the actual offense committed. T h e prosecution must establish (a) that human life was taken and (b) that the death was occasioned by the accused's criminal act or agency. If the evidence clearly discloses that a certain person is dead, and that his death resulted from the use of violent and criminal means by another, then the corpus delicti is sufficiently proved. (People v. Matyaong, G.R. No. 140206, June 21, 2001) 649


When indictment is on the basis of proximate cause, what evidence on the nature of wound is required? The significance of evidence on the precise nature of the injuries sustained by the deceased is that it often leads the careful examiner to the real cause of death. The examination of a wound, from the legal point of view, should lead to the determination as to when the wound was inflicted, what the degree of danger of the wound is, with its dangers to life or function, whether the wound was given by the injured man himself, or by someone else, and with what manner of instrument the wound was produced, (id.) In Palalon, 49 Phil. 177, accused struck the victim with the back of his hand, a few hours after which the victim contracted a fever and died two days later. Accused was acquitted on the ground that the cause of death had not been established, despite the fact that a physician had conducted an examination of the deceased's body and had linked the blows sustained by the victim to his death. T h e Court held that it is extremely doubtful that the blow either directly or indirectly caused the death. It is not denied that fever was prevalent in the locality in July 1925, and it is quite probable that the death of the deceased was due entirely to natural causes. T h e theory of the prosecution is that the deceased, in falling down, received fatal internal injuries, and bases its conclusions on the testimony of Dr. Valero that he found ecchymosis on the right shoulder and on the stomach and that, as a result of the former, there was a congestion of the right lung which was the principal cause of death; that the blows causing the ecchymosis must have been of such force as to have made its effect felt immediately and that the victim could not have continued working. No proper autopsy of the body was made, and through the testimony of the witnesses, it has been proven conclusively that the deceased continued to work for more than a day after he received the blow. T h e ecchymosis may have been nothing but suggillations or 'death spots' formed after the death; the fact that the marks were found both on the stomach and on the back of the deceased so indicates.

690


In Matyaong, the examination of the body took place over 24 hours after the death and appears to have been v e r y incomplete; no incisions w e r e made and the examining physician, a young man of limited experience, itted that his conclusions w e r e partly based upon the statements of the of the family of the deceased. In these circumstances the conclusions cannot h a v e been much more than mere guesses. In cases of death under suspicious circumstances, it is the duty of the physician performing the post mortem examination to exercise the utmost care and not draw unwarranted conclusions from external appearances susceptible of different interpretations. In Ilustre, 54 Phil. 594, defendant was convicted for homicide on the basis of the opinion of three doctors w h o held that the death was caused by blows inflicted upon the deceased's right hypochondrium, which bruised the liver and produced an internal hemorrhage. Further, "[t]he fact that the deceased... suffered from incipient pulmonary tuberculosis does not affect the defendant's criminal liability, for even if it rendered the blow more fatal, the efficient cause of the death remains the same." Ulep, 162 SCRA 182, held accused liable for the death of his wife based primarily upon the autopsy report which described the cause of death as cardiac arrest and primary shock caused by strong pressure applied on the upper front chest bone, since it was conclusively established that accused had elbowed his wife on the chest. In light of the autopsy report, it said — "Even if the victim is suffering from an internal ailment, liver or heart disease, or tuberculosis, if the blow delivered by the accused (a) is the efficient cause of death; or (b) accelerated his death; or (c) is the proximate cause of death; then there is criminal liability." When there are other possible causes of death aside from proximate cause, what should be duly established? To hold a person liable for the death of another, the evidence must establish beyond reasonable doubt that the criminal act was the proximate cause of such death. Such proof is especially crucial when there are several possible causes of death. Here, even assuming that the victim was afflicted with 651


food poisoning, accused may still be liable for her death if there is proof that accused's act of beating his wife was the efficient or proximate cause of death, or had accelerated her death. No man is convicted on a probability. The accused is entitled to an acquittal, unless his guilt is shown beyond a reasonable doubt. The prosecution has the burden of establishing beyond reasonable doubt every element constituting the crime charged. This is premised upon the constitutionally guaranteed right to be presumed innocent. (People v. Matyaong) Section O n e . — Parricide, murder, homicide A r t . 246. Parricide. — A n y p e r s o n w h o shall kill his father, mother, or child, w h e t h e r legitimate or illegitimate, or a n y of his ascendants, or d e s c e n d a n t s , or his s p o u s e , shall be guilty o f p a r r i c i d e a n d shall b e p u n i s h e d b y the p e n a l t y o f reclusion perpetua to d e a t h . (Section 5, R.A. No. 7659.) •

How is parricide committed? It is committed when: (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 descendant, or the legitimate spouse of the accused. (People v. Malabago, G.R. No. 115686, December 2, 1996)

•

What is the basis of the crime of parricide? Parricide is based on the relationship of the offender and the offended. T h e relationship must be characterized by the following: a.

Legitimate except for parent/child where relationship may either be legitimate or illegitimate. For other ascendants or descendants, such as grandparent or grandchild, the relationship must be legitimate.

b.

In the direct line, either ascending (parents, grandparents) or descending (children, grandchildren). T h e r e is no parricide in the killing of brothers and sisters, uncles/ aunts and nephews/nieces because such relationship is collateral.

652


c.

By blood except for spouses. Thus, there is no parricide in the killing of adopter by adopted or vice versa for the relationship is not by blood. W i t h more reason should there be no parricide in the killing of step-parent and step-child. Besides, the enumeration of relationship in the article is exclusive. Expressio unius est exclusio alterius.

Indeed, the phrase "whether legitimate or illegitimate" characterizes the relationship between the accused and his victim who might be his father, mother, or child, but not the "spouse" who refers to either the legitimate husband or the lawful wife. Here, appellant not only declared in court that the victim was her fourth husband but she also swore that they w e r e married before a judge. T h e victim's son testified that his father and appellant were husband and wife, in much the same w a y that appellant's daughter, held the victim to be her mother's husband. Appellant's own ission that she was married to the victim was a confirmation of the semper praesumitur promatrimonio and the presumption that a man and a woman so deporting themselves as husband and wife had verily entered into a lawful contract of marriage. (People v. Ignacio, G.R. No. 105284, July 8, 1997) If the killing of the child less than three days old was committed by the parent, is the crime parricide or infanticide? Both parricide and infanticide can be committed by the parents. (See last paragraph of Article 255.) Infanticide is based on the age of the victim; parricide on the relationship. Therefore, the line separating parricide and infanticide committed by the parent is the age of the child. Thus, if the child is less than three days old, the crime is infanticide. Parricide yields to infanticide as far as the designation of the crime is involved. (People v. Morales) The penalty is the same for both crimes. Distinguish between parricide and infanticide. In parricide: a.

Its basis is the relationship of the offender and the victim.

b.

It can be committed only by the relatives enumerated.

653


c.

Conspiracy cannot be applied because the basis of the crime is the relationship between the offender and the victim. Separate information must be filed for the parricide and for the murder or homicide for the nonrelative conspirator.

d.

Concealment of dishonor of the mother is not mitigating. In infanticide:

•

a.

The basis is the age of the child-victim.

b.

Infanticide may be committed by any person whether relative or not of the victim.

c.

Conspiracy is applicable because the circumstance of age pertains to the victim; only one information shall be prepared for all the conspirators.

d.

Concealment of dishonor of the mother (and maternal grandparents) is mitigating.

Why is the rule on conspiracy that the act of one is the act of all not applicable in parricide? W h i l e infanticide may be committed by any person, parricide may be committed only by the specified relatives, thus relationship is a condition sine qua non. Therefore, conspiracy cannot be applied for Article 62, no. 3 states that: "Aggravating or mitigating circumstances which arise from the moral attributes of the offender, or from his private relations with the offended party, or from any other personal cause, shall only serve to aggravate or mitigate the liability of the principals, accomplices and accessories as to whom such circumstances are attendant." (Italics supplied) To illustrate: A mother asked her brother to kill her child. T h e brother did. W h a t crime or crimes w e r e committed? If the child is less than three-days old (72 hours), the mother and the brother are both guilty of infanticide. Relationship not being an element, the rule on conspiracy applies; only one information will be prepared. If for the mother it is to conceal dishonor, it is extenuating but only in her case. If the child is three-days old or over: the mother is liable for parricide; the brother, murder qualified by treachery. He 654


is not liable for parricide as parricide requires relationship in the direct line. His relationship to the child is collateral. To conceal dishonor is not mitigating for both the mother and brother. T w o informations must be prepared — for parricide against the mother and for murder against the brother. Killing a child of tender age is always qualified by treachery for the victim cannot defend itself. •

In killing of a spouse, how will the relationship be proved? T h e key element in parricide is the relationship of the offender with the victim spouse. T h e best proof of their relationship is the marriage certificate. In the absence of such certificate, however, oral evidence of the fact of marriage may be considered by the trial court if such proof is not objected to. (People v. Malabago, G.R. No. 115686, December 2, 1996) T h e relationship between spouses must be valid. But in the Family Code, nullity of marriage may be taken legal cognizance only after there has been judicial recognition of nullity. If a wife who was only 17 at the time of her marriage was killed by the husband, the latter cannot allege the nullity of the marriage as a defense. T h e nature and consequences of a marriage are not subject to the stipulation of the parties. There must be a judicial declaration of its nullity even for purposes of the liability under the R P C .

•

If the information failed to mention that offender and offended are married, can the former be convicted with parricide? N o . If the information failed to mention that the offender and the offended are married, the former cannot be convicted of parricide because that will violate his right to information of the nature of the charge against him. Moreover, since relationship is a qualifying circumstance and an element of the crime, failure to allege it is a fatal mistake.

A r t . 247. Death or physical injuries inflicted under exceptional circumstances. — A n y legally m a r r i e d person w h o , having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall 635


inflict u p o n them any serious physical injury, shall suffer the penalty of destierro. If he shall inflict u p o n them physical injuries of any other kind, he shall be exempt f r o m punishment. These rules shall be a p p l i c a b l e , u n d e r the same circumstances, to parents w i t h respect to their d a u g h t e r s u n d e r eighteen years of a g e , a n d their seducers, w h i l e the d a u g h t e r s a r e living w i t h their parents. A n y p e r s o n w h o shall p r o m o t e o r facilitate prostitution of his wife or d a u g h t e r , or shall o t h e r w i s e h a v e consented to the infidelity of the other spouse shall not be entitled to the benefits of this article. •

Does Article 247 define and penalize a felony? N o . Article 247 does not define and penalize a felony but grants a privilege or benefit to the accused. It is akin to an exempting circumstance. If it were a felony, its elements must be alleged in the information. But doing so and proving the same would in effect exempt the actor from liability. A n d a mitigating or an exempting circumstance, not being an integral part of the offense charged but a matter of defense need not be pleaded but must be proved by the accused. T h e rationale for this is that the killing or injury was without sufficient intelligence because of the overwhelming ion.

•

What are the requisites to be entitled to the benefit of Article 247? a.

A legally married person surprises his spouse in the act of committing sexual intercourse with another person;

b.

He kills any or both of them in the act or immediately thereafter; and

c.

He has not promoted or facilitated the prostitution of his wife nor consented to the infidelity of the other spouse. (People v. Oyanib, G.R. No. 130643, March 12, 2001)

656


•

What are the two time elements involved in this article? a.

The time of surprising the paramours which must be in the act itself of sexual intercourse; and

b.

T h e time of the killing or infliction of physical injuries which must also be in the act or immediately thereafter.

T h e surprising must be at the moment the sexual act is taking place. If it is only about to take place or has already taken place, no benefit can be availed of under this article. It is the I N F I D E L who must be surprised and not the innocent spouse, otherwise, the latter should have perfect timing so that he/she should be surprised at the very moment that intercourse is taking place. T h e law said "surprised his spouse in the act," not "was surprised." "Immediately thereafter" applies to the second. The killing must be at the time of surprising the paramours in the act or immediately after. If there was a time lag between the surprising and the killing, it must be shown that the surprising and the killing are one continuous sequence. •

What are the two issues involved in this article? They are: (1) W a s the surprising made while the intercourse is taking place; and (2) W a s the killing made during that time or immediately thereafter? T h e accused surprised his wife and her paramour in the act of illicit copulation, as a result of which, he went out to kill the deceased in a fit of ionate outburst. Article 247 prescribes the following elements: (1) that a legally married person surprises his spouse in the act of committing sexual intercourse with another person; and (2) that he kills any of them or both of them in the act or immediately thereafter. These elements are present in this case. The trial court, in convicting the accused of murder, therefore erred. (People v. Abarca, G.R. No. 74433, September 14, 1987) •

If a period of time such as one hour ed from the surpri to the killing, will the benefit still be available? Though about one hour had ed between the time the accused discovered his wife having sexual intercourse with the 657


victim and the time the latter was actually shot, the shooting must be understood to be the continuation of the pursuit of the victim by the accused. The R P C , in requiring that the accused shall kill any or both of them immediately after surprising his spouse in the act of intercourse, does not say that he should commit the killing instantly thereafter. It only requires that the death be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the basest act of infidelity. But the killing should have been actually motivated by the same blind impulse, and must not have been influenced by external factors. The killing must be the direct by-product of the accused's rage, (id.) •

Will the fact that the spouses were living separately militate against the accused? That the accused and the victim were living separately does not militate against the invocation of the absolutory cause under Article 247 provided that the death caused is the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the act of infidelity. As long the requisites are present, the accused is entitled to the benefit of this article, (id.)

•

What is the nature of the "penalty" of destierro? Destierro is not a penalty because there is no criminal liability. It is imposed for the protection of the accused against retaliation or vendetta. W h e r e physical injury is inflicted there is totally no criminal liability. Destierro is not a penalty because there is nothing to penalize. (People v. Abarca, supra) Article 247 does not define an offense. As may readily be seen from its provisions and its place in the Code, far from defining a felony, it merely provides or grants a privilege or benefit amounting practically to an exemption from an adequate punishment — destierro. This penalty is mere banishment and is intended more for the protection of the accused than a punishment. (People v. Coricor, 79 Phil. 672) W h e r e physical injuries other than serious are inflicted, the offender is exempted from punishment. In effect, Article 247 amount to an exempting circumstance, for even where 658


death or serious physical injuries is inflicted, the penalty is so greatly lowered as to result to no punishment at all. A different interpretation, i.e., that it defines and penalizes a distinct crime, would make the exceptional circumstances which practically exempt the accused from criminal liability integral elements of the offense, and thereby compel the prosecuting officer to plead, and it them, in the information. Such an interpretation would be illogical if not absurd, since a mitigating and much less an exempting circumstance cannot be an integral element of the crime charged. Only acts or omissions constituting the offense should be pleaded. A n d a circumstance which mitigates criminal liability or exempts the accused therefrom, not being an essential element of the offense charged but a matter of defense that must be proved need not be pleaded. (Sec. 5, Rule 106, RR; People v. Abarca) Should qualifying circumstances be appreciated in inflicting death under exceptional circumstances? N o . Punishment is not inflicted upon the accused. He is banished for his protection. Inflicting death under exceptional circumstances, not being a punishable act, cannot be modified by aggravating or mitigating or other qualifying circumstances. (id.) How should the requirements of the law be complied with? T h e requirements must be strictly complied with for the law itself does not punish the adulterer with death penalty. M o r e so as the wronged spouse is allowed to take the law into his hands. The privilege extends to the parents who surprised and killed/injured their daughter (son not included), who is less than 18 years old and living with them, and their daughter's paramour. When third persons are injured in the course of firing at the paramours, will the offender be free from criminal liability? The next question refers to the liability of the accused for the physical injuries suffered by LA and AA who were caught in the crossfire as the accused shot the victim. The Solicitor 659


General recommends double frustrated murder against the accused. Abarca rejected this theory saying that the accused did not have the intent to kill the AA couple. Although as a rule, one committing an offense is liable for all the consequences of his act, that rule presupposes that the act done amounts to a felony. Inflicting death under exceptional circumstances is not murder. Therefore accused cannot be held liable for frustrated murder for the injuries suffered by the A A s . This does not mean that the accused is totally free from any responsibility. Granting the fact that he was not performing an illegal act when he fired at the victim, he is not entirely without fault. W h i l e it appears that before firing at the deceased, he uttered warning words ("an waray labot kagawas") that is not enough precaution to absolve him for the injuries sustained by the A A s . There was negligence on his part. Accordingly, he was liable under the second paragraph of Article 365 for less serious physical injuries through simple imprudence. For the separate injuries suffered by the A A s , he was imposed arresto mayor in its medium and maximum periods, arresto being the graver penalty than destierro. A r t . 248. Murder. — A n y p e r s o n w h o , not f a l l i n g w i t h i n the provisions of A r t i c l e 246, shall kill a n o t h e r , shall be guilty of m u r d e r a n d shall be p u n i s h e d by reclusion perpetua to d e a t h if committed w i t h a n y of the f o l l o w i n g a t t e n d a n t circumstances: 1.

W i t h t r e a c h e r y , t a k i n g a d v a n t a g e of s u p e r i o r strength, w i t h the a i d o f a r m e d m e n , o r e m p l o y i n g m e a n s t o w e a k e n the defense, o r o f m e a n s o r persons to insure or afford impunity.

2.

In c o n s i d e r a t i o n of a p r i c e , r e w a r d or p r o m i s e .

3.

By m e a n s of i n u n d a t i o n , fire, poison, e x p l o s i o n , s h i p w r e c k , s t r a n d i n g of a vessel, d e r a i l m e n t or 660


assault u p o n a r a i l r o a d , fall of an a i r s h i p , or by m e a n s of m o t o r vehicles, or w i t h the use of any other m e a n s i n v o l v i n g g r e a t w a s t e a n d r u i n . 4.

On occasion of a n y of the calamities e n u m e r a t e d i n the p r e c e d i n g p a r a g r a p h , o r o f a n e a r t h q u a k e , e r u p t i o n of a v o l c a n o , destructive cyclone, epidemic o r o t h e r p u b l i c calamity.

5.

W i t h evident premeditation.

6.

W i t h cruelty, by d e l i b e r a t e l y a n d i n h u m a n l y a u g m e n t i n g the s u f f e r i n g of the victim, or o u t r a g i n g or scoffing at his p e r s o n or c o r p s e . (As amended by Section 6, R.A. No. 7659.) scoffing = to mock

»

How is murder committed? Homicide plus one qualifying circumstance under Article 248 will give rise to murder. T h e killing should be homicide because if it is against any of the persons in Article 246, it is parricide or if the victim is less than three days old, it is infanticide. T h e killing must otherwise be homicide, otherwise the circumstances in this article will be considered as merely generic which will affect the penalty but not the crime itself. For example: in parricide, ignominy, abuse of superior strength, poison, etc. are no longer qualifying circumstances but merely generic aggravating. A n y one of the qualifying circumstances in this article is an element of murder.

•

How many circumstances are necessary to qualify homicide to murder? Only one circumstance suffices to qualify homicide to murder. If a second circumstance is present, it w i l l operate as a generic aggravating provided alleged in the information. It w i l l , however, not affect the penalty because the maximum penalty of death has been abolished by R . A . 9346.

661


•

Can homicide be upgraded to murder by a subsequent act of the offender? Yes. When a person is killed without any qualifying circumstance but thereafter the offender does any act which insults or outrages the corpse of the victim, the crime is thereby qualified to murder. For instance, decapitating the victim or chopping off the corpse into several parts and scattering these in different locations.

•

When the qualifying circumstances were not those proved in the trial, can the accused be convicted for murder? If circumstances alleged in the information are not the circumstances proved in the trial, it is not murder because any of the qualifying circumstances in Article 248 is an ingredient of murder. T h e circumstances must be both alleged and proved in the trial, otherwise, they cannot be considered because the right of the accused to be informed of the charge against him will be violated.

>

Give some instances when treachery is not appreciated to qualify killing to murder. W h i l e even a frontal attack can be treacherous, as when it is unexpected and the victim is unarmed, it cannot be murder if the aggressors did not employ means tending directly and especially to insure the execution of the crime without risk to themselves arising from the defense which the offended parties might make. Here, the assailants attacked a group of six individuals who could have been armed. It is highly probable that at least one of them could offer resistance and put the aggressors in danger. Fuertes held that w h i l e it is not required that the acts constituting the offense must be stated in the of the statute defining the offense, it is necessary that the qualifying circumstances be specifically pleaded or alleged w i t h sufficient clarity as to be readily understood and not m e r e l y deduced. A b s e n t such an allegation, the conviction shall be for homicide. Lug-aw declared that where the lone witness was not able to observe the commencement of the assault, he could not testify on how it all began and developed. Absent any particulars as to 662


the manner in which the aggression commenced or how the act which resulted in the death of the victim unfolded, treachery cannot be appreciated to qualify the killing to murder. (People v. Amaguin, G.R. Nos. 54344-45, January 10, 1994) •

M a y treachery be appreciated in aberratio ictus? Y e s . W h e n the offender fired at his adversary but missed, the unintended victims were helpless to defend themselves. Their deaths were murders since the acts were qualified by treachery. (People v. Flora, G.R. No. 125909, June 23, 2000)

•

Are dwelling and nocturnity qualifying circumstance? N o . Dwelling and nocturnity are not qualifying circumstances in Article 248. But nocturnity can be a method or form of treachery. As such, it is treachery, not nighttime that is qualifying.

•

When the qualifying circumstance is the use of fire, what variant crimes may result? If the use of fire is: a.

To conceal the killing by burning the house where the victims were, two separate crimes are committed: homicide or murder and arson.

b.

As a means to kill: murder and even if property were burned as a consequence of the use of fire to kill — arson is still not committed. If in the course thereof, other houses were burned, it is a generic aggravating circumstance.

c.

T o burn a house but somebody inside was killed, the special complex crime of arson with homicide is committed.

d.

Resorted to merely as a joke, but death resulted, the crime was homicide because the use of fire must be specially chosen as the means to kill.

If fire was resorted to out of joke, the crime is not murder. The offender must have acted with specific intent to kill by means of fire to qualify the killing to murder. Pugay, G.R. No. L-74324, November 17, 1988, convicted PP for reckless imprudence resulting to homicide whereas SS was found guilty

663


of homicide, as he had no specific intent to kill through the use of fire. ZZ, BT and BB were stabbed and hacked before their house was burned. ZZ and BT died immediately while BB lived for a few days. The thesis of the prosecution is that the house was burned to conceal the stabbing and hacking. As a result of this fire, MM and TO suffered burns and MM died later. TO survived due to timely medical attention. Four separate crimes were committed: three separate murders for the deaths of ZZ, BT and BB, and arson under Section 5, P . D . 1613 for the death of MM and the injuries sustained by TO as a consequence of the burning of the house. [Note: R . A . 7659 which restored Article 320 was not yet effective.] Under the law, if by reason of or on the occasion of the arson death results, the penalty of reclusion perpetua to death shall be imposed. (People v. Basay, G.R. No. 86941, March 3, 1993) •

Is arson with homicide a complex crime? N o . T h e homicide in "arson with homicide" refers to any kind of killing and is an element of the composite or special complex crime. The use of fire to burn the corpse of victim, when the crime is murder already, is not a qualifying circumstance anymore but punishable as scoffing or desecrating the dead under the R A C . Scoffing is not a qualifying circumstance in case of ionate crimes because it is natural for the accused to do such scoffing acts in such crimes. Scoffing must be an independent act of the accused.

•

What determines whether the offense committed is frustrated or attempted murder? T h e nature of the wound determines w h e t h e r the crime is attempted or frustrated murders. T h e offenders are liable for attempted murder instead of frustrated murder as charged in the information because the injuries sustained by ME w e r e merely superficial and not capable of causing his

664


death even without t i m e l y medical intervention. No mortal wound h a v i n g been inflicted upon the victim, the offenders failed to perform all the acts of execution which would have produced the felony. T h e y are, therefore, guilty only of attempted murder. (People v. Pagal, G.R. Nos. 112620-21, May 14, 1997) A r t . 249. Homicide. — A n y p e r s o n w h o , not falling w i t h i n the p r o v i s i o n s of A r t i c l e 246, shall kill a n o t h e r w i t h o u t the a t t e n d a n c e of a n y of the c i r c u m s t a n c e s e n u m e r a t e d in the next p r e c e d i n g article, shall be d e e m e d guilty of homicide a n d be p u n i s h e d by reclusion temporal. •

What is homicide? Homicide is the killing of any person, which does not constitute parricide, murder or infanticide and is not attended by any justifying circumstance.

•

What is the rule on intent to kill when the victim dies? W h e n consummated, intent to kill is a general criminal intent which is presumed and hence need not be established; when the victim does not die, intent to kill becomes a specific criminal intent which must be established beyond reasonable doubt, otherwise, the crime shall fall under physical injuries. W h e n death results, intent to kill is presumed from the voluntary commission of an unlawful act.

•

What determines whether the offense is attempted/frustrated homicide and not physical injuries? Intent to kill, as shown by the weapon used, and the location and nature of the wound. The injury is at the back of the head, a vital part of the body, unmistakably showing intent to kill. But, for reasons other than his own spontaneous desistance, accused was not able to perform all the acts of execution necessary to consummate the killing, since the wound inflicted was not fatal. Accused ran away after delivering the blow at the back of the head of the victim. As all acts of execution necessary to produce the felony were not done, the crime is attempted. (People v. Balderas, G.R. No. 106582, July 31, 1997)

665


Slight physical injuries, was committed against D D . W fired at CC and not at D D . There is not the slightest indication that at that time W knew that DD was hiding under a table. DD itted that a stray bullet grazed the right parietal region of his head injuring him. The wound was diagnosed as superficial and required treatment only for three days. (People v. Violin, G.R. Nos. L-114003-06, January 14, 1997) •

Can attempted or frustrated homicide be committed through imprudence or negligence? N o . There cannot be reckless imprudence resulting to frustrated or attempted homicide because intent is inherent in frustrated or attempted felonies. In attempted felonies, the offender commences the commission of a felony directly by overt acts and the felony is not produced only because he was prevented by some cause or accident other than his own spontaneous desistance. On the other hand, in frustrated felonies, the offender has performed all the acts of execution which would produce the felony but was prevented by reason of causes independent of his will. Thus, by the definition of attempted or frustrated felonies, the intent to produce the felony is inherent because offender's w i l l is to commit the felony. This, besides the fact that culpa is punished as to the result of the culpable act or omission, is the reason w h y crime by culpa is always in the consummated stage. By the same token, mala prohibita are in the consummated stage as these are l i k e w i s e committed without intent. hornbook = a primer, a book of rudiments.

»

M a y a person charged with homicide by stabbing be convicted when the cause of death was drowning? N o , because it is a hornbook doctrine that an accused cannot be convicted of an offense unless it is clearly charged in the complaint or information. Constitutionally, he has the right to be informed of the nature and cause of the accusation against him. By parity of reasoning, GG cannot be convicted of homicide through drowning in the information that charges murder by means of stabbing. When appellant assisted OJ in carrying the body of MM to throw it to the well, he was committing a

666


felony, that of assisting in concealing the body of the crime to prevent its discovery, i.e., that he was an accessory in the crime of homicide. Although he was not aware that the victim was still alive when they threw the body into the well, he is still liable for the direct and natural consequence of the felonious act even if the resulting offense is worse than that intended. True, he merely assisted in concealing the body but the autopsy revealed that the cause of death is drowning. (People v. Ortega, Jr., G.R. No. 116736, July 24, 1997) P R E S I D E N T I A L D E C R E E N O . 1866, a s a m e n d e d b y R e p u b l i c A c t N o . 8294 xxx

xxx

xxx

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. — T h e penalty of prision correccional in its m a x i m u m p e r i o d a n d a fine of not less t h a n Fifteen t h o u s a n d pesos (P15,000) shall be imposed u p o n a n y p e r s o n w h o shall u n l a w f u l l y m a n u f a c t u r e , deal in, a c q u i r e , dispose, o r possess a n y l o w p o w e r e d f i r e a r m , such as rimfire h a n d g u n , .380 or .32 a n d other firearm of similar firepower, p a r t of f i r e a r m , a m m u n i t i o n , or m a c h i n e r y , tool or instrument u s e d or i n t e n d e d to be u s e d in the m a n u f a c t u r e of a n y firearm or a m m u n i t i o n : Provided, T h a t no other crime w a s committed. T h e penalty of prision mayor in its m i n i m u m p e r i o d a n d a fine of T h i r t y t h o u s a n d pesos (P30,000) shall be imposed if the firearm is classified as h i g h p o w e r e d firearm which includes those w i t h b o r e s b i g g e r in d i a m e t e r than .38 caliber a n d 9 millimeter such as c a l i b e r .40, .41, .44, .45 a n d also lesser c a l i b e r e d firearms b u t c o n s i d e r e d p o w e r f u l such as c a l i b e r .357 a n d c a l i b e r .22 center-fire m a g n u m a n d other firearms w i t h firing capability of full automatic and by burst of t w o or three: Provided, however, T h a t no other crime w a s committed by the p e r s o n arrested. If homicide or m u r d e r is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an a g g r a v a t i n g circumstance. 667


If the violation of this Section is in furtherance of or incident to, or in connection with the crime of r e b e l l i o n or insurrection, sedition, or attempted coup d'etat, such violation shall be a b s o r b e d as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat. T h e same penalty shall be imposed u p o n the o w n e r , president, m a n a g e r , director or other responsible officer of any p u b l i c or private firm, c o m p a n y , c o r p o r a t i o n or entity, w h o shall willfully or k n o w i n g l y a l l o w any of the firearms o w n e d by such firm, c o m p a n y , c o r p o r a t i o n or entity to be used by any person or persons f o u n d guilty of violating the provisions of the p r e c e d i n g p a r a g r a p h s or willfully or k n o w i n g l y a l l o w a n y of t h e m to use u n l i c e n s e d firearms or firearms w i t h o u t a n y legal a u t h o r i t y to be c a r r i e d outside of their residence in the course of their e m p l o y m e n t . T h e penalty of arresto mayor shall be i m p o s e d u p o n any p e r s o n w h o shall c a r r y a n y licensed f i r e a r m outside his residence w i t h o u t legal a u t h o r i t y therefor. (As amended by Rep. Act No. 8294, June 6, 1997.) Sec. 2. Presumption of Illegal Manufacture of Firearms or Ammunition. — T h e possession of a n y m a c h i n e r y , tool or instrument u s e d directly in the m a n u f a c t u r e of firearms or ammunition, b y a n y p e r s o n w h o s e b u s i n e s s o r e m p l o y m e n t does not l a w f u l l y d e a l w i t h the m a n u f a c t u r e o f f i r e a r m s o r a m m u n i t i o n , shall be prima facie e v i d e n c e that such article is intended to be used in the u n l a w f u l / i l l e g a l m a n u f a c t u r e of firearms or ammunition. Sec. 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives. — T h e p e n a l t y of prision mayor in its m a x i m u m p e r i o d to reclusion temporal a n d a fine of not less t h a n Fifty t h o u s a n d pesos (P50,000) shall b e i m p o s e d u p o n a n y p e r s o n w h o shall u n l a w f u l l y m a n u f a c t u r e , a s s e m b l e , d e a l in, a c q u i r e , d i s p o s e o r possess h a n d g r e n a d e ( s ) , rifle g r e n a d e ( s ) , a n d o t h e r explosives, i n c l u d i n g b u t not limited to 'pillbox,' 'molotov cocktail bombs,' 'fire bombs,' or other i n c e n d i a r y devices c a p a b l e of p r o d u c i n g destructive effect on c o n t i g u o u s objects for causing injury or death to any person. 668


W h e n a p e r s o n commits a n y of the crimes d e n n e d in the R e v i s e d P e n a l C o d e or special l a w s w i t h the use of the a f o r e m e n t i o n e d explosives, d e t o n a t i o n agents or i n c e n d i a r y devices, w h i c h results in the d e a t h of a n y p e r s o n or persons, the use of such explosives, d e t o n a t i o n agents or i n c e n d i a r y devices shall b e c o n s i d e r e d a s a n a g g r a v a t i n g circumstance. If the violation of this Section is in f u r t h e r a n c e of, or incident to, or in connection w i t h the c r i m e of rebellion, i n s u r r e c t i o n , sedition, or a t t e m p t e d coup d'etat, such violation shall be a b s o r b e d as an e l e m e n t of the crimes of r e b e l l i o n , i n s u r r e c t i o n , sedition or a t t e m p t e d coup d'etat. T h e s a m e p e n a l t y shall b e i m p o s e d u p o n the o w n e r , president, m a n a g e r , d i r e c t o r or other r e s p o n s i b l e officer of a n y p u b l i c or p r i v a t e firm, c o m p a n y , c o r p o r a t i o n or entity, w h o shall willfully o r k n o w i n g l y a l l o w a n y o f the explosives o w n e d by such firm, c o m p a n y , c o r p o r a t i o n or entity, to be used by a n y p e r s o n or p e r s o n s f o u n d guilty of violating the provisions of the p r e c e d i n g p a r a g r a p h s . (As amended by Rep. Act No. 8294, June 6, 1997.) Sec. 4. Presumption of Unlawful Manufacture. — T h e possession of a n y m a c h i n e r y , tool or instrument directly used in the m a n u f a c t u r e of explosives, by any person whose business or employment does not lawfully deal with the manufacture of explosives shall be prima facie evidence that such article is intended to be used in the unlawful/illegal manufacture of explosives. Sec. 5. Tampering of Firearm's Serial Number. — T h e penalty of prision correccional shall be imposed u p o n any person w h o shall u n l a w f u l l y t a m p e r , c h a n g e , deface o r erase the serial n u m b e r of a n y firearm. (As amended by Rep. Act No. 8294, June 6, 1997.) Sec. 6. Repacking or Altering the Composition of Lawfully Manufactured Explosives. — T h e penalty of prision correccional shall be imposed u p o n any person w h o shall unlawfully repack, alter or modify the composition of any lawfully manufactured explosives. (As amended by Rep. Act No. 8294, June 6, 1997.) Other provisions of R e p u b l i c A c t N o . 8294: 669


Sec. 7. Coverage of the Term Unlicensed Firearm. — T h e term unlicensed firearm shall include: 1.

firearms w i t h e x p i r e d license; or

2.

u n a u t h o r i z e d use of licensed commission of the crime.

firearm

in

the

Sec. 8. Unauthorized Issuance of Authority to Carry Firearm and/or Ammunition Outside of Residence. — T h e penalty of prision correccional shall be i m p o s e d u p o n a n y person, civilian or military, w h o shall issue authority to c a r r y firearm a n d / o r a m m u n i t i o n outside of residence, without authority. Sec. 9. Rules and Regulations, x x x Sec. 10. Repealing Clause. — T h e p r o v i s i o n s of R e p u b l i c A c t N o . 4, P r e s i d e n t i a l D e c r e e N o . 9 ( a m e n d e d by B . P . B i g . 6), P r e s i d e n t i a l D e c r e e N o . 1728 a n d all l a w s , decrees, o r d e r s , instructions, rules a n d r e g u l a t i o n s w h i c h a r e inconsistent with this D e c r e e a r e h e r e b y r e p e a l e d , a m e n d e d o r modified accordingly. •

What changes did R.A. 8294 make on P.D. 1866? 1.

T h e use of unlicensed firearm to commit homicide or murder is aggravating; one crime is committed: homicide or murder.

2.

Violation of Section 3 in furtherance of or incident to, or in connection with rebellion, insurrection, sedition or attempted coup d'etat, is absorbed as an element of said crimes thus such use has no effect on the penalty.

3.

T h e penalty for mere possession of unlicensed firearm shall be based on whether the firearm is low-powered or high-powered. High-powered firearms are those with bores bigger than .38 cal. and 9 mm and those with lesser bores but considered as powerful, such as a .357 cal. and .22 center-fire magnum, and firearms with firing capability of full automatic or by a burst of two or three.

4.

"Unlicensed firearm" includes: a) firearm with expired license or b) unauthorized use of licensed firearm in the commission of the crime. 670


5. Simple illegal possession of firearms can only be committed if no other crime was committed whether or not with the use of the firearm by the possessor. Unlicensed firearm no longer simply means a firearm without a license duly issued by lawful authority. T h e scope of the term has been expanded in Section 5 of R . A . 8294 to include unauthorized use of a weapon which has been duly licensed in the name of its owner/possessor, thus, may still aggravate the resultant crime. Although appellants have been issued their respective licenses to possess firearms, carrying of such weapons outside their residences and their unauthorized use thereof in the killing of BB may be appreciated as a special aggravating circumstance. (People v. Castillo, G.R. No. 13159293, February 15, 2000) •

What are the elements of illegal possession of firearm? In crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz.: (a)

T h e existence of the subject firearm; and

(b)

T h e accused who owned or possessed it does not have the corresponding license or permit to possess the same.

T h e latter is a negative fact which constitutes an essential ingredient of the offense of illegal possession, and it is the duty of the prosecution not only to allege it but also to prove it beyond reasonable doubt. (People v. Tiozon) The testimony of a representative of, or a certification from, the P N P - F i r e a r m s and Explosive Unit that petitioner was not a licensee of the firearm would suffice to prove beyond reasonable doubt the second element. (People v. Solayao, G.R. No. 119220, September 20, 1996) The absence of the foregoing is fatal to the prosecution and renders the conviction erroneous. (Mallari v. CA, G.R. No. 110569, December 9, 1996) •

If the killing was committed through the use of unlicensed firearm, with what crime should the offender be charged? Prior to the amendment of P.D. 1866, if the killing is committed with unlicensed firearm, the accused can be prosecuted for, and convicted of: (1) illegal possession of firearm 671


in the aggravated form; and (2) either murder or homicide. But pursuant to the amendment of R . A . 8294, the use of an unlicensed firearm in the commission of murder or homicide is treated as an aggravating circumstance. Therefore, the illegal possession or use of the unlicensed firearm is no longer separately punished. Only one offense should be punished, viz., either homicide or murder, and the use of the unlicensed firearm should be considered as aggravating. (People v. Nepomuceno, June 1999) The violation of P . D . 1866 should have been punished separately. Nevertheless, P . D . 1866 was amended by R . A . 8294 effective on June 6, 1997. Section 1 provides that "if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance." Being favorable to accused, this provision may be given retroactive effect. (People v. Bergante, G.R. Nos. 120369-70, February 27, 1998) •

What are the implications of the amendment on the use of unlicensed firearm being an aggravating circumstance of homicide or murder? This amendment has two implications: (1) the use of an unlicensed firearm in the commission of homicide or murder shall not be treated as a separate offense, but merely as a special aggravating circumstance; and (2) as only a single crime (homicide or murder with the aggravating circumstance of illegal possession of firearm) is committed under the law, only one penalty shall be imposed on the accused. (People v. Castillo) A l l pending cases involving illegal possession of firearm should continue to be prosecuted and tried if no other crime expressly indicated in R . A . 8294 is involved (murder or homicide; rebellion, insurrection, sedition or attempted coup d'etat). (People v. Lazaro, G.R. No. 112090, October 26, 1999)

•

What is the exception to the single offense rule in the commission of homicide/murder with the use of unlicensed firearm? W h e n the murder/homicide was filed and tried separately from the illegal possession case, conviction for both is proper.

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In Molina, 292 SCRA 742, separate informations for murder, frustrated murder and illegal possessions were filed, but the cases were consolidated and tly tried and decided. Molina however is not applicable where the cases were all separately filed and tried. Hence, the evidence as to the homicide and frustrated homicide cases were neither adopted nor presented before the trial court trying the illegal possession case. For this reason, there is a dearth of evidence to the finding of homicide and/or frustrated homicide in the illegal possession case. Conviction therein should be for simple illegal possession of firearms. (People v. Nunez, G.R. No. 112092, March 1, 2001) •

W h o are the offenders in ammunition and explosives?

illegal

possession of firearm,

T h e offenders violating the law against illegal possession of firearms, ammunitions and explosives are: 1.

2.

A n y person who shall unlawfully manufacture, deal in, acquire, dispose, or possess: a.

A n y low powered firearm, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition; or

b.

A n y high powered firearms and lesser calibered firearms but considered powerful such as rimfire handgun, .380 or .32 and other firearms with firing capability of full automatic and by burst of two or three.

The owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow a.

any of the firearms owned by such entities to be used by any person found guilty of no. 1 above; or

b.

the use of unlicensed firearms or firearms without any legal authority to be carried outside of residence in the course of their employment.

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•

•

3.

Any person who shall carry any licensed firearm outside his residence without legal authority therefor.

4.

A n y person who shall unlawfully manufacture, assemble, deal in, acquire, dispose, or possess hand grenade, rifle grenade, and other explosives, or other incendiary device capable of producing destructive effect on contiguous objects for causing injury or death to any person.

5.

The owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the explosives owned by such entities to be used by any person found guilty of no. 4 above.

What are the presumptions on illegal possession of firearm? 1.

Presumption of i l l e g a l manufacture of firearms or ammunition by mere possession of machinery, tool or instrument used directly in the manufacture of firearms or ammunition.

2.

Presumption of unlawful manufacture of explosives by the mere possession of any machinery, tool or instrument directly used in the manufacture of explosives by any person whose business or employment does not lawfully deal with the manufacture of explosives.

What is the relationship of the law on the felonies under the Revised Penal Code? T h e violation of law shall either aggravate the crime or be merely absorbed by the felony committed as follows: 1.

Use of unlicensed firearms, etc., is an aggravating circumstance in the commission of homicide or murder;

2.

Use of explosives, detonation agents or incendiary devices for the commission of any of the crimes defined in the R P C and special laws which shall result to injury or death of any person shall be aggravating;

3.

Use, possession, manufacture, etc. of firearms in furtherance of or in connection with or incident to the crime of rebellion, insurrection, sedition or 674


attempted coup d'etat shall not affect the penalty as said crimes absorb the violation of P . D . 1866; 4.

•

If the use of explosives, detonation agents or incendiary devices is in furtherance of or in connection with or incident to the crime of rebellion, insurrection, sedition or attempted coup d'etat, the same shall not affect the penalty for it shall be absorbed thereby.

Can the law be both prospectively and retroactively applied? Y e s . This law is advantageous to the accused as it spares him from a separate conviction for illegal possession of firearm. Hence, it should be applied retroactively. (People v. Lazaro) In parricide, the application of R . A . 8294 would not be beneficial to the accused, as it would increase the penalty from reclusion perpetua to death. Hence, the new law should be given prospective application, as otherwise it would acquire the character of an ex post facto law. (People v. Macoy, August 16, 2000)

•

What are covered by the phrase "homicide or murder" in paragraph 3, Section 1 of R.A. 8294? T h e term homicide or murder apparently was construed as referring not only to murder or homicide but to parricide as well. In Macoy, the offender was convicted for parricide with the use of unlicensed firearm. Insofar as the illegal possession of firearm was concerned the amendatory law was given retroactive application because that would be beneficial to the accused as he would be absolved from liability therefor. But insofar as the parricide charge was involved, the use of the unlicensed firearm would be aggravating as it would increase his penalty to death which was then the penalty for parricide. It appears that even with the clear wordings of the law that illegal possession of firearm shall be aggravating for homicide or murder, it should also be construed to cover parricide as well. For that matter, it should be made to apply to any crime involving the taking of life. Considering that accused was convicted for parricide, it follows that he should be acquitted in the case for illegal possession of firearm. (People v. Nepomuceno, June 1999) 675


What are the offenses penalized under the amendatory law? 1.

Simple illegal possession of firearm, whether low powered, high powered or fully automatic, part of firearm, ammunition, or machinery, or tool or instrument used or intended to be used in the manufacture of any firearm or ammunition provided no other crime is committed by the possessor.

2.

Carrying of licensed firearms outside of residence without legal authority therefor.

3.

Unlawful manufacturing, dealing in, acquiring, disposing or possessing part of firearm, ammunition, or machinery, or tool or instrument used or intended to be used in the manufacture of any firearm or ammunition provided no other crime is committed by the possessor.

4.

Unlawful manufacturing, assembling, dealing in, acquiring, disposing or possessing hand grenade, rifle grenade, and other explosives, or other incendiary device capable of producing destructive effect on contiguous objects for causing injury or death to any person.

5.

Tampering, changing, defacing or erasing the serial number of any firearm.

6.

Repacking, altering or modifying the composition of any lawfully manufactured explosives.

7.

Unauthorized issuance of authority to carry firearm and/ or ammunition outside of residence.

In other words, the possible crimes that may be committed involving unlicensed firearms are as follows: a.

M e r e possession of unlicensed firearm — simple illegal possession of firearm.

b.

Commission of homicide or murder with unlicensed firearm — homicide or murder; the use of unlicensed firearm is an aggravating circumstance. Note however, that if the information for the homicide or murder was filed and tried separately from the information for the illegal possession, the accused can be convicted for both.

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c.

Rebellion, insurrection, sedition or attempted coup — use of unlicensed firearm is absorbed as an element of these crimes. T h e r e shall be no effect on the penalty by the use of the unlicensed firearm.

d.

A n y other crimes committed such as alarms and scandal — only for that crime and the use of unlicensed firearm is absolved, i.e., no liability for such use and neither does it serve as an aggravating circumstance. T h e other crime need not be committed using the unlicensed firearm but could be any crime as the law did not specify that the other crime should involve the said firearm.

When the "other crime" is a slight felony, what is the effect on the criminal liability of the offender? It is absolutory for the illegal possession. T h e accused may evade conviction for illegal possession of firearms by using such weapons in committing an even lighter offense, like alarm and scandal or slight physical injuries, both of which are punishable by arresto menor. This consequence necessarily arises from the language of R . A . 8294 whose wisdom is not subject to the judicial review. (But recently, the Supreme Court said that the other crime need not be with the use of the unlicensed firearm.) Ladjaalam, G.R. Nos. 136149-51, September 19, 2000, is illustrative. L L fired an M-14 upon the approaching police officers clearly showing the existence of the firearm or weapon and his possession thereof. Sufficing to satisfy the second element was the prosecution's certification stating that he had not been given authority to carry any outside his residence. Further, his possession and use of an M-14 rifle were obviously unauthorized because this weapon could not be licensed in favor of, or carried by, a private individual. [Contra: Evangelista] Appellant is liable for the complex crime of direct assault with multiple counts of attempted homicide for the act of firing an M-14 at the policemen, who were about to enter his house to serve a search warrant. If an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the "other 677


crime" is murder or homicide, illegal possession of firearms becomes an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide (not just homicide) was committed, appellant can no longer be held liable for illegal possession of firearms, neither can it serve as an aggravating circumstance. Moreover, penal laws are construed liberally in favor of the accused. The plain meaning of R.A. 8294's simple language is most favorable to appellant. No other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide or murder. Since the crime committed was not murder or homicide, illegal possession of firearms cannot be deemed an aggravating circumstance. There is no justification for limiting the proviso in the second paragraph to murder and homicide. T h e law is clear: the accused can be convicted of simple illegal possession of firearms, provided that "no other crime was committed by the person arrested." If the intention in the second paragraph were to refer only to homicide and murder, it should have said so, as it did in the third paragraph. W h e r e the l a w does not distinguish, neither should the courts. This ruling effectively exonerates appellant of illegal possession of an M-14 rifle, an offense which normally carries a penalty heavier (prision mayor) than that for direct assault (prision correccional). Indeed, the accused may evade conviction for illegal possession of firearms by using such weapons in committing an even lighter offense, like alarm and scandal or slight physical injuries, both of which are punishable by arresto menor. When the gun is a paltik (a home-made gun), will that dispense of the necessity to prove that it is unlicensed? N o . Accused cannot be convicted even of simple illegal possession of firearm because of lack of evidence that the

678


firearm is unlicensed. T h e v i e w that a paltik cannot be licensed was rejected in Ramos. T h e court there did not say that paltiks can in no case be issued a license or permit, and that proof that a firearm is a paltik dispenses with the proof that it is unlicensed. (People v. Evangelista, G.R. Nos. 84332-33, May 8, 1996) (Since paltik has no serial number and proceeds from uned manufacturers, it is doubtful whether the P N P F E U shall it for lack of the necessary documentary requirement.) •

Where the information charged the accused for qualified illegal possession, can he be convicted for homicide? N o . Since the unlicensed firearm was used in committing a homicide, the accused can no longer be held liable for simple i l l e g a l possession of firearm; neither may he be convicted for homicide w i t h "the use of the unlicensed firearm as a g g r a v a t i n g " inasmuch as said felonies are not charged in the Information but only mentioned as the result of the use of the unlicensed firearm. T h e accused was charged under P . D . 1866 for qualified i l l e g a l possession of firearm for h a v i n g committed a homicide w i t h the use of an unlicensed firearm in 1991, and w a s convicted by the lower court in 1994. P e n d i n g appeal, R . A . 8294 took effect on July 6, 1997. Being favorable, the l a w w i l l be applied retroactively, even to violations prior to its effectivity. T h e accused was not arraigned for homicide and so cannot be sentenced for such crime without violating his constitutional right to be informed of the nature and cause of the accusation against him. Therefore, the case for qualified illegal possession of firearm should be dismissed. (People v. Avecilla, February 2001; People v. Molina) •

How is homicide using unlicensed firearm denominated? The crime is denominated homicide aggravated by illegal possession of firearm, and not illegal possession of firearm aggravated by homicide as it is the former offense which aggravates the crime of homicide under the amendatory law. (People v. Castillo)

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Who should own the unlicensed firearm? Ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual, but also constructive possession or the subjection of the thing to one's control and management. (Gonzales v. CA, August 1997) What are the kinds of possession punished by P.D. 1866? It punishes both actual physical possession and constructive possession of firearms, ammunition, and explosives without authority or license. Constructive possession refers to the subjection of the articles in question to one's control and management. Once the prosecution evidence points to possession without the authority or license, coupled with animus possidendi or intent to possess on the part of the accused, conviction must follow, (id.) How is the Indeterminate Sentence Law applied in crimes under P.D. 1866? In accordance with the doctrine regarding special laws as explained in Simon, although P . D . 1866 is a special law, the penalties therein were taken from the R P C , hence, the rules in the R P C for graduating by degrees or determining the proper period should be applied. Consequently, where there are no modifying circumstances, the penalty for simple illegal possession of firearm is in the medium period. (People v. Lian, G.R. No. 115988, March 29, 1996) What is the nature of the crime of illegal possession of firearm? Illegal possession of firearm is defined and punished by a special penal law. It is a malum prohibitum which the lawmaker so condemned not only because of its nature but also because of the larger policy consideration of containing or reducing, if not eliminating, the upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, ammunition, and explosives. If intent to commit the crime w e r e required, enforcement of the decree and its policy or purpose would be difficult to achieve. Hence, there is wisdom in punishing illegal

680


possession of firearm without taking into the criminal intent of possessor. A l l that is needed is intent to perpetrate the act prohibited by law, coupled by animus possidendi. However, it must be understood that this animus possidendi is without regard to any other criminal intent which an accused may have harbored in possessing the firearm. (People v. Quijada, G.R. Nos. 115008-09, July 24, 1996) R . A . 6539 — A n t i - C a r n a p p i n g L a w ( s e e a l s o n o t e s i n T i t l e 10) •

What amendments were made by R.A. 7659 on R.A. 6539? (1)

T h e change of the penalty of life imprisonment to reclusion perpetua,

(2)

T h e inclusion of rape, and

(3)

T h e change of the phrase "in the commission of the carnapping," to "in the course of the commission of the carnapping or on the occasion thereof."

T h e latter makes clear the intention of the law to make the offense a special complex crime, by analogy vis-avis paragraphs 1 to 4 of Article 294 on robbery with violence against or intimidation of persons. As such the killing or the rape merely qualifies the crime of carnapping which for lack of specific nomenclature may be known as qualified carnapping or carnapping in an aggravated form. Considering the phraseology of the amended Section 14, the carnapping and the killing/rape may be considered a single or indivisible crime or special complex crime outside of Article 48. (People v. Mejia, G.R. Nos. 118940-41 and 119407, July 7, 1997) •

Is it material whether the killing is homicide or murder? Since Section 14 uses the words "is killed," no distinction must be made between homicide and murder. Whether it is one or the other which is committed "in the course of carnapping or on the occasion t h e r e o f makes no difference insofar as the penalty is concerned. The killing of LL whether it be homicide or murder cannot be treated as a separate offense, but should only be considered to qualify the carnapping. (id.)

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A r t . 250. Penalty for frustrated parricide, murder or homicide. — The courts, in v i e w of the facts of the case, may impose u p o n the person guilty of the frustrated crime of p a r r i c i d e , m u r d e r or homicide, d e n n e d a n d penalized in the p r e c e d i n g articles, a penalty l o w e r by one d e g r e e than that w h i c h should be imposed u n d e r the provisions of Article 50. T h e courts, considering the facts of the case, m a y likewise r e d u c e by one d e g r e e the penalty w h i c h u n d e r Article 51 should be imposed for an attempt to commit a n y of such crimes. A r t . 251. Death caused in a tumultuous affray. — W h e n , while several persons, not c o m p o s i n g g r o u p s o r g a n i z e d for the common p u r p o s e of a s s a u l t i n g a n d attacking e a c h other reciprocally, q u a r r e l a n d assault each other in a confused a n d t u m u l t u o u s m a n n e r , a n d in the c o u r s e of the affray someone is killed, a n d it c a n n o t be a s c e r t a i n e d w h o actually killed the deceased, b u t the p e r s o n o r p e r s o n s w h o inflicted serious physical injuries c a n b e identified, such p e r s o n o r persons shall be p u n i s h e d by prision mayor. If it c a n n o t be d e t e r m i n e d w h o inflicted the serious physical injuries on the d e c e a s e d , the p e n a l t y of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s shall be imposed u p o n all those w h o shall h a v e u s e d v i o l e n c e u p o n the p e r s o n of the victim. A r t . 252. Physical injuries inflicted in a tumultuous affray. — W h e n in a tumultuous affray as r e f e r r e d to in the p r e c e d i n g article, only serious physical injuries a r e inflicted u p o n the participants thereof a n d the p e r s o n responsible therefor cannot be identified, all those w h o a p p e a r to h a v e used violence u p o n the p e r s o n of the offended p a r t y shall suffer the penalty next l o w e r in d e g r e e t h a n that p r o v i d e d for the physical injuries so inflicted. W h e n the physical i n j u r i e s inflicted a r e of a less serious n a t u r e a n d the p e r s o n r e s p o n s i b l e t h e r e f o r c a n n o t b e identified, all those w h o a p p e a r t o h a v e u s e d a n y violence u p o n the p e r s o n of the offended p a r t y shall be p u n i s h e d by arresto menor f r o m five to fifteen days. 682


•

Will the mere fact that the affray is tumultuous make the crime fall within Article 251? N o . W h a t controls the crime is the fact that the particular killer is not known. If the killer is known, even if the fighting was tumultuous, the crime is homicide or murder. Article 251 covers a situation where that the killer is unknown, thus those who inflicted serious physical injuries on the victim are made liable for his death. A tumultuous affray takes place when a quarrel occurs between several persons in a confused tumultuous manner, in the course of which a person is killed or wounded and the author thereof cannot be ascertained. (People v. Ferrer, November 16, 1995) Assuming that a rumble or free-for-all fight occurred, Article 251 cannot apply because the prosecution witnesses positively identified the killer. (People v. Maramara) W h e n a group of "Marcos loyalists" picked on one defenseless individual and attacked him repeatedly, causing his death, although there was a clash between two groups of rival political ers, murder qualified by abuse of superior strength, not death in a tumultuous affray is committed, because the offenders w e r e shown in a photograph that was unequivocally identified by witnesses. (People v. Ferrer)

•

If it cannot be shown who inflicted serious physical injuries or any form of violence on the victim, who should be liable? It is not correct to charge all who participated in the affray. If those w h o inflicted serious physical injuries are not known, those who employed any form of violence are liable. If the latter are also unknown, nobody shall be prosecuted. It is not enough that the killer is not yet determined. In such case, the accused will be prosecuted as John Doe. The killer must be undeterminable.


•

Who may be the victim in the affray? In Article 251, "someone" is killed who maybe a participant in the affray or a mere erby. In Article 251, the victim is a participant. The protagonists must not be identifiable or organized groups for in such case the crime will be homicide and the principles of conspiracy shall apply. The affray must be tumultuous and not concerted.

•

What is required of the "injuries" in Article 252? The same principles apply as in death caused in tumultuous affray. T h e physical injuries must be serious or less serious. If it were only slight, no crime is committed but if the offender is known in slight physical injuries, he w i l l be prosecuted therefor, not under Article 252. T h e law presumes that if a person participates in an affray, he is liable to be hurt. Hence, the lack of penalty for the slight physical injuries inflicted.

A r t . 253. Giving assistance to suicide. — A n y p e r s o n w h o shall assist a n o t h e r to commit suicide shall suffer the penalty of prision mayor; if such p e r s o n lends his assistance to a n o t h e r to the extent of d o i n g the k i l l i n g himself, he shall suffer the penalty of reclusion temporal. H o w e v e r , if the suicide is not c o n s u m m a t e d , the p e n a l t y of arresto mayor in its m e d i u m a n d m a x i m u m p e r i o d s , shall b e i m p o s e d . •

Is committing suicide a felony? N o , for there is no law penalizing the act of committing suicide. Logically so, for if the suicide is successful there will be nobody to punish. It is the giving of assistance to suicide that is penalized under this article.

•

What are the three acts punished under this article? 1.

A person assists another to commit suicide, for instance, a terminally ill patient asks him to remove his life- machine. T h e penalty is prision mayor;

2.

If he lends his assistance to the extent of doing the killing himself, such as when he is asked by an elderly person to shoot the latter, he shall suffer reclusion temporal;

684


3.

If the suicide in either case is not consummated, the penalty shall be arresto mayor in its medium and maximum periods.

If a person wants to jump from a bridge but is afraid to do so and he asks another to shove him off, if the latter does so, he shall be liable under this article. If, however, such person is teetering on the bridge, taking his time to think if he shall jump, and the offender voluntarily pushed him, the latter's act is not just assisting but actually murder qualified by treachery. A r t . 254. Discharge of firearms. — A n y p e r s o n w h o shall shoot at a n o t h e r w i t h a n y firearm shall suffer the penalty of prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s , unless the facts of the case a r e s u c h that the act can be held t o constitute f r u s t r a t e d o r attempted p a r r i c i d e , m u r d e r , h o m i c i d e or a n y o t h e r c r i m e for w h i c h a h i g h e r penalty is p r e s c r i b e d b y a n y o f the articles o f this C o d e . •

What are the elements of illegal discharge of firearm? a.

T h e accused shot at another person with a firearm; and

b.

There was no intent to kill.

There should be no intent to kill; otherwise, the crime would be frustrated or attempted parricide, murder, or homicide. If there was no intent to kill and the person shot at was hit, offender shall be liable under this article unless the gravity of the injuries inflicted carries a lower penalty in which case the crime will be for illegal discharge. In other words, the crime is either illegal discharge of firearms or physical injuries whichever carries a higher in penalty.

Section T w o . — Infanticide and Abortion A r t . 255. Infanticide. — T h e penalty p r o v i d e d for parricide in Article 246 a n d for m u r d e r in Article 248 shall be imposed u p o n any p e r s o n w h o shall kill any child less than three days of age.


If any crime penalized in this Article be committed by the mother of the child for the p u r p o s e of concealing h e r dishonor, she shall suffer the penalty of prision mayor in its m e d i u m a n d m a x i m u m periods, a n d if said crime be committed for the same p u r p o s e by the m a t e r n a l g r a n d p a r e n t s or either of them, the penalty shall be reclusion temporal. (As amended by Sec. 7, R.A. No. 7659.) •

What is infanticide? Infanticide is the killing of an infant less than three days old, which means less than 72 hours. This crime is committed by any person including the parents of the infant. Hence, when committed by the parent, the crime is either parricide or infanticide depending upon the age of the child. It is evident that infanticide is given priority over parricide and murder when the victim is an infant less than three days old. If the offender is the parent or a legitimate ascendant, it is infanticide, not parricide, for the basis of the crime is not the relationship but the child's age. If the offender is not such relatives, the crime is still infanticide, not murder for the same reason. Nonetheless, the penalty shall be for parricide or murder. T h e extenuating circumstance of concealment of dishonor is available only to the mother and maternal grandparents for only females are deemed by law to be dishonored.

•

What is required if the victim is a fetus? T h e fetus must be viable or breathing on its own; otherwise, the crime is not infanticide but abortion. If the fetus had an intra-uterine life of less than seven months and it was killed within 24 hours after complete separation from the womb, it did not gain personality (Article 41, N C C ) hence, it is still abortion.

A r t . 256. Intentional abortion. — A n y p e r s o n w h o shall intentionally cause an a b o r t i o n shall suffer: 1.

T h e penalty of reclusion temporal, if he shall use a n y violence u p o n the p e r s o n o f the p r e g n a n t woman.


2.

T h e p e n a l t y of prision mayor, if w i t h o u t using violence, he shall act w i t h o u t the consent of the woman.

3.

T h e p e n a l t y of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s , i f the w o m a n shall h a v e consented.

A r t . 257. Unintentional abortion. — T h e p e n a l t y of prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s shall be i m p o s e d u p o n a n y p e r s o n w h o shall c a u s e a n a b o r t i o n b y violence, b u t u n i n t e n t i o n a l l y . A r t . 258. Abortion practiced by the woman herself or by her parents. — T h e p e n a l t y of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s shall b e i m p o s e d u p o n a w o m a n w h o shall practice a n a b o r t i o n u p o n herself o r shall consent that a n y other p e r s o n s h o u l d d o so. A n y w o m a n w h o shall commit this offense t o conceal h e r d i s h o n o r shall suffer the p e n a l t y of prision correccional i n its m i n i m u m a n d m e d i u m p e r i o d s . If this c r i m e be committed by the p a r e n t s of the p r e g n a n t w o m a n or either of them, a n d they act w i t h the consent of said w o m a n for the p u r p o s e of c o n c e a l i n g h e r dishonor, the offender shall suffer the p e n a l t y of prision correccional in its medium and m a x i m u m periods. A r t . 259. Abortion practiced by a physician or midwife and dispensing of abortives. — T h e penalties p r o v i d e d in Article 256 shall be i m p o s e d in its m a x i m u m p e r i o d , respectively, u p o n a n y physician o r m i d w i f e w h o , t a k i n g a d v a n t a g e o f their scientific k n o w l e d g e or skill, shall cause an abortion or assist in c a u s i n g the same. A n y p h a r m a c i s t w h o , w i t h o u t the p r o p e r prescription f r o m a physician, shall dispense any abortive shall suffer arresto mayor a n d a fine not e x c e e d i n g 1,000 pesos. •

What are the different kinds of abortion? 1.

Intentional abortion; and

2.

Unintentional abortion 687


Intentional abortion is committed in any of three ways: 1.

With violence upon the person of the pregnant woman;

2.

Without violence but without the consent of the woman;

3.

With consent of the woman.

In no. 1, there must be no consent hence the use of violence on her person. In no. 3, when the woman consents, there is no need to use violence. Intentional abortion includes abortion by the pregnant woman herself or by her parents (Article 258), and abortion practiced by a physician or midwife (Article 259). For the physician, midwife or pharmacist, their high degree of education is an element of the crime, hence shall no longer be considered as generic aggravating circumstance. •

To what do the words "intentional" and "unintentional" refer? T h e "intentional" or "unintentional" refer to the kind of abortion and not to the mode of committing it whether by dolo or culpa. T h e r e must be intent to cause abortion to make it intentional abortion. If there is no such intent, then it is unintentional abortion. A person who subjects a woman to violence is liable for all its consequences. Unintentional abortion is committed if abortion results because of that violence whether the violence be intentional or culpable. If the violence is intentional but not for the purpose of abortion and abortion results, the crime is unintentional abortion under Article 257. This may be complexed with the result of the violence, for example, serious physical injuries with unintentional abortion. If the violence against a pregnant w o m a n results from imprudence, it is reckless or simple imprudence resulting to unintentional abortion under A r t i c l e 365 and may also be complexed with the result of the violence on the woman. For instance, in vehicular mishap w h e r e a pregnant w o m a n was injured seriously and abortion resulted, the crime is reckless imprudence resulting to serious physical injuries with unintentional abortion. 688


•

If the woman having abortion is not pregnant, what crimes are committed? If when committing intentional abortion, the woman turned out to be not pregnant, it is an impossible crime of abortion. If the non-pregnant w o m a n suffered physical injuries, then the l i a b i l i t y is for physical injuries and not for impossible crime which is a crime of last resort. (See notes under A r t i c l e 4, paragraph 2)

•

Can the woman commit unintentional abortion upon herself? T h e woman herself cannot commit unintentional abortion because it is always committed by violence inflicted upon a pregnant woman. If a woman shall inflict violence upon herself to commit abortion, the crime is intentional abortion. Note that it is required that the violence be voluntary which resulted in the intended abortion. Hence, it is always intentional abortion that the woman commits upon herself. For example: a pregnant w o m a n committed suicide. She did not die but abortion followed. W h a t crime was committed? N o n e . T h e r e is no unintentional abortion because this crime requires physical violence committed by another person. T h e r e is no intentional abortion because the woman's act of committing suicide is not intended to commit abortion but to kill her own self. T h e r e is no criminal liability under Article 4, paragraph 1 because she was not committing a felony when she attempted suicide, as suicide is not a felony.

•

Is there unintentional abortion by means of intimidation? None. Unintentional abortion results only from physical violence, not intimidation. Hence, thrusting a gun against a pregnant woman in a quarrel which caused abortion would give rise to the crime of other light threats, not unintentional abortion. In short, unintentional abortion is: a.

by violence (physical) and not intimidation;

b.

by another person, not by the pregnant woman.

689


Compare intentional abortion (IA) and unintentional abortion. (UA): a. How:

b. Who:

IA

—

UA

—

IA

—

with or without violence by violence (physical) by another person or by the woman herself

UA

—

by another person, not by the woman

c. Knowledge: IA UA

— —

offender knows of her pregnancy he may or may not know pregnancy

d. Modality:

IA

—

always dolo; intent to commit is inherent

UA

—

by dolo or culpa as "unintentional" refers to the abortion, not to the violence which may be intentional or culpable violence

of

Even if the offender does not know that the woman is pregnant, and abortion results from his felonious violent act, unintentional abortion is committed pursuant to Article 4(1). Distinguish between abortion and infanticide: In abortion — a.

The fetus is still drawing life from its mother; or

b.

T h e fetus is not yet breathing on its own; or

c.

T h e baby had an intra-uterine life of less than seven months and is killed within 24 hours In infanticide —

a.

The victim is already a person; or

b.

T h e umbilical chord is already cut and the infant is breathing on its own; or

c.

T h e baby had an intra-uterine life of less than seven months and it is killed after 24 hours.

690


In both cases, concealment of dishonor by the woman and the maternal grandparents is extenuating. As in infanticide, concealing dishonor is not available to the paternal side. •

W h o are the victims in abortion and in infanticide? T h e victim in abortion is still a fetus which is not yet viable. In infanticide, the victim is already viable. T h e determinable point of viability is if the baby is breathing on its own, then it is viable. If destroyed as a fetus and not as a person, it is abortion. If the fetus had an intrauterine life of less than seven months and it w a s destroyed w i t h i n 24 hours after its birth, it is still abortion. Section T h r e e . — Duel

A r t . 260. Responsibility of participants in a duel. — T h e p e n a l t y of reclusion temporal shall be i m p o s e d u p o n any p e r s o n w h o shall kill his a d v e r s a r y in a duel. If he shall inflict u p o n the latter physical injuries only, he shall suffer the p e n a l t y p r o v i d e d therefor, a c c o r d i n g to their n a t u r e . In a n y other case, the c o m b a t a n t s shall suffer the penalty of arresto mayor, a l t h o u g h no physical injuries have b e e n inflicted. T h e seconds accomplices.

shall

in

all

events

be

punished

as

A r t . 261. Challenging to a duel. — T h e penalty of prision correccional in its m i n i m u m p e r i o d shall be imposed upon a n y p e r s o n w h o shall challenge another, or incite another to give or accept a challenge to a duel, or shall scoff at or decry a n o t h e r publicly for h a v i n g refused to accept a challenge. •

What are the elements of a duel? 1.

There must be a previous agreement to engage in a combat;

691


2.

There must be two or more seconds for each combatant; and

3.

The choice of arms and other of agreement must be agreed upon by the seconds.

This article is obsolete, for duel and challenging to a duel do not happen here. Congress can remove these from statute books.

Chapter Two P H Y S I C A L INJURIES •

As to stage of execution, what is the nature of this felony? It is a formal crime; always in the consummated stage as the penalty is based on the gravity of the injury. It cannot be in the attempted or frustrated stage because there will be no basis for the penalty. T h e gravity of the injury, whether serious, less serious or slight will not be known unless and until the felony is consummated. T h e result can only be speculated and in criminal law, proof beyond reasonable doubt is required.

»

Distinguish physical injuries from attempted or frustrated homicide or murder. Physical injuries differ from attempted or frustrated homicide by the intent to kill. Intent to kill is determined by the kind of weapon used, the nature, number and the location of the wound, and the words uttered by the offender. It has been held that when a firearm or any deadly weapon is used, even if the victim was grazed only, the crime is at least attempted homicide; if the wound is fatal, at least frustrated because the choice of weapon shows one's intent. Intent to kill is a specific criminal intent that must conclusively be proved in case of injuries. When death results, intent to kill is a general intent which is conclusively presumed, hence, if death results, even if without intent to kill, the crime is at least homicide. Indeed, under Article 4(1), a person committing a felony is liable for its consequences although different from what he intended.

A r t . 262. Mutilation. — T h e penalty of reclusion temporal to reclusion perpetua shall be imposed u p o n any person w h o shall intentionally mutilate another by d e p r i v i n g him, either totally or partially, of some essential o r g a n of reproduction.

693


A n y other intentional mutilation shall be p u n i s h e d by prision mayor in its m e d i u m a n d m a x i m u m periods. •

What is mutilation? Mutilation is the intentional chopping-off of a part of the body which will not grow again. It cannot result from imprudence but is always by dolo because it requires a specific intent to chop-off a part of the body. If the organ cut off is that of reproduction, the penalty is even greater than that for homicide. If two people fight with bolo and a body part, e.g., an ear was cut-off, the crime is physical injuries and not mutilation, for lack of specific intent to chop-off the ear. There must be specific intent to cut that part to be mutilation.

A r t . 263. Serious physical injuries. — A n y p e r s o n w h o shall w o u n d , beat, o r a s s a u l t a n o t h e r , shall b e guilty o f the c r i m e of serious physical injuries a n d shall suffer: 1.

T h e p e n a l t y of prision mayor, if in c o n s e q u e n c e of the physical i n j u r i e s inflicted, the i n j u r e d p e r s o n shall b e c o m e insane, imbecile, impotent, or b l i n d ;

2.

T h e penalty of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d , i f i n c o n s e q u e n c e o f the physical i n j u r i e s inflicted, the p e r s o n i n j u r e d shall h a v e lost the use of speech or the p o w e r to h e a r or to smell, or shall h a v e lost an eye, a h a n d , a foot, an a r m , or a leg, or shall h a v e lost the use of a n y such m e m b e r , o r shall h a v e b e c o m e i n c a p a c i t a t e d for the w o r k i n w h i c h h e w a s t h e r e t o f o r e h a b i t u a l l y engaged;

3.

T h e penalty of prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s , if in c o n s e q u e n c e of the physical injuries inflicted, the p e r s o n i n j u r e d shall h a v e b e c o m e d e f o r m e d , o r shall h a v e lost a n y other p a r t of his b o d y , or shall h a v e lost the use thereof, or shall h a v e b e e n ill or i n c a p a c i t e d for the p e r f o r m a n c e o f the w o r k i n w h i c h h e w a s h a b i t u a l l y e n g a g e d for a p e r i o d of m o r e t h a n ninety days; 694

PHYSICAL INJURIES

4.

T h e penalty of arresto mayor in its m a x i m u m p e r i o d to prision correccional in its m i n i m u m p e r i o d , if the physical i n j u r i e s inflicted shall h a v e caused the illness or i n c a p a c i t y for l a b o r of the i n j u r e d p e r s o n for m o r e t h a n thirty d a y s . parricide and murder

I f the o f f e n s e s h a l l h a v e b e e n c o m m i t t e d a g a i n s t a n y of the persons e n u m e r a t e d in A r t i c l e 246, or w i t h attendance of a n y of the c i r c u m s t a n c e s mentioned in A r t i c l e 248, t h e c a s e c o v e r e d b y s u b d i v i s i o n n u m b e r 1 of this a r t i c l e s h a l l be p u n i s h e d by reclusion temporal i n its m e d i u m a n d m a x i m u m p e r i o d s ; t h e c a s e c o v e r e d by s u b d i v i s i o n n u m b e r 2 by prision correccional in its m a x i m u m p e r i o d to prision mayor in its m i n i m u m p e r i o d the c a s e c o v e r e d b y s u b d i v i s i o n n u m b e r 3 b y prision correccional i n its m e d i u m a n d m a x i m u m p e r i o d s ; a n d the c a s e c o v e r e d b y s u b d i v i s i o n n u m b e r 4 b y prision correccional i n its m i n i m u m a n d m e d i u m p e r i o d s . T h e p r o v i s i o n s o f the p r e c e d i n g p a r a g r a p h shall not be a p p l i c a b l e to a p a r e n t w h o shall inflict physical injuries u p o n his child by excessive chastisement. A r t . 264. istering injurious substances or beverages. — T h e penalties e s t a b l i s h e d by the next p r e c e d i n g article shall be a p p l i c a b l e in the respective case to a n y p e r s o n w h o , w i t h o u t intent to kill, shall inflict u p o n a n o t h e r a n y serious physical i n j u r y , b y k n o w i n g l y a d m i n i s t e r i n g t o h i m any i n j u r i o u s substances o r b e v e r a g e s , o r b y t a k i n g a d v a n t a g e of his w e a k n e s s of m i n d or credulity. also serious physical injuries

•

credulity = willingness to believe or trust.

How is serious physical injuries committed? Serious physical injuries is committed (1) by wounding, beating, or assaulting another or (2) by knowingly istering on him any injurious substances or beverages, or (3) by taking advantage of his weakness of mind or credulity. T h e penalty is based on the severity of the injury under any of such means as stated in Article 263.

695


How are the injuries inflicted to the victim classified? Paragraph

Result or kind of injury inflicted

1

mental — Insane, imbecile Physical — impotent, blind Blind means loss of sight of both eyes or the loss of both eyes. 2 lost the power — speech, hearing, smelling lost the use — eye, hand, foot, arm, leg lost the part — eye, hand, foot, arm, leg incapacity — work theretofore habitually engaged in (permanent) Only one eye or sight must be lost for if both were lost, the victim would be blind and would fall under paragraph 1. 3

4

deformity loss of any other part than in no. 2 or loss of use of such part illness or incapacity for work habitually engaged in for more than 90 days illness or incapacity for labor more than 30 days

Compare the incapacity and their duration in nos. 2,3 and 4. In no. 2, the victim is incapacitated for which he was theretofore habitually engaged; in ill or incapacitated for the performance of the habitually engaged for more than 90 days; in no. incapacitated for labor for more than 30 days.

the work in no. 3, he is work he was 4, he is ill or

In no. 2, the incapacity for work must be permanent as there is no time limitation in the law. It must be for work, not merely labor. For instance, if a pianist lost two fingers, he will no longer be able to work as a pianist which is his habitual employment before the injury. Hence, even if the part lost is classified under no. 3, the incapacity and level of injury will be under no. 2. In no. 3, the illness is for more than 90 days and pertains to work, not labor. It must be noted that in no. 2 and 3, the incapacity refers to work victim is habitually engaged, not only labor as in no. 4. Labor in this article should relate to any physical activity, not to gainful employment otherwise, those who are unemployed could not be victims under no. 4. 696

PHYSICAL INJURIES

Relate the physical injuries to robbery with physical injuries under Article 294, nos. 2 to 4 and Article 295/296

Items 2, 3 and 4 of Article 294 classify the robbery with physical injuries vis-a-vis paragraphs 1 to 4 of Article 263, viz.: A r t . 294

Par. 2

A r t . 263

infliction of injuries

Par. 1

by reason or on occasion Art. 295/296 of robbery does not apply 3 2 by reason or on occasion apply of robbery 4 3 in course of execution apply of robbery The significance of this classification is that Articles 295 and 296 apply if the robbery with physical injuries is within nos. 3 and 4 of Article 294 which in turn depends upon the nature of the injury as described in nos. 2, 3 and 4 of Article 263. Thus, in robbery where the victim became insane, imbecile, impotent or blind (no. 1, Article 263), Article 295 and 296 will not apply. "In the course of execution" means that the robbery as not yet accomplished when the injuries were inflicted. In nos. 2 and 3 of Article 294, the injury may be inflicted before, during or after the robbery. What is deformity?

1. 2.

When physical injuries resulted to: Ugliness upon the offended; and Such ugliness would not disappear through natural healing process (even if it was correctible by plastic surgery). Deformity is at once classified as serious physical injuries even if no incapacity from labor resulted.

What are the qualifying circumstances affecting this crime?

It is qualified serious physical injuries and the penalty is increased one or two degrees when: a. The victim is any of those of parricide except in the case of parents when the injuries result from excessive chastisement. 697


b.

Presence of any of the qualifying circumstances for murder.

A r t . 265. Less serious physical injuries. — A n y p e r s o n w h o shall inflict u p o n a n o t h e r physical i n j u r i e s not d e s c r i b e d in the p r e c e d i n g articles, b u t w h i c h shall incapacitate the offended p a r t y for l a b o r for ten d a y s or m o r e , or shall r e q u i r e m e d i c a l a t t e n d a n c e for the same p e r i o d , shall b e guilty of less serious physical i n j u r i e s a n d shall suffer the penalty of arresto mayor. W h e n e v e r less serious physical injuries shall h a v e b e e n inflicted w i t h the manifest intent to insult or offend the injured person, o r u n d e r circumstances a d d i n g i g n o m i n y t o the offense, in addition to the penalty of arresto mayor a fine not exceeding 500 pesos shall be imposed. A n y less serious physical i n j u r i e s inflicted u p o n the offender's p a r e n t s , a s c e n d a n t s , g u a r d i a n s , c u r a t o r s , teachers, o r persons o f r a n k , o r p e r s o n s i n authority, shall b e p u n i s h e d by prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s , p r o v i d e d that, in the case of p e r s o n s in a u t h o r i t y , the d e e d does not constitute the c r i m e of a s s a u l t u p o n such p e r s o n s . •

•

What circumstances qualify less serious physical injuries? a.

Manifest intent to insult or offend the victim w i l l impose an additional fine of not exceeding P500.

b.

The victim is the offender's parent, ascendant, guardian, curator, teacher or persons of rank or persons in authority where the penalty is the next higher degree.

Relate qualified less serious physical injuries with direct assault. When the victim is a person in authority ( P A ) , the crime must not amount to direct assault. N o t e that agent of a PA is not included. Thus, when the victim is a P A , the crime could be: 1.

Qualified less serious physical injuries - the injury must not be inflicted on the occasion of the performance of function of the PA or the offender does not know that the victim is a P A .

2.

Complex crime of direct assault with less serious physical injuries under Article 142 and Article 265 in relation 698

PHYSICAL INJURIES

to Article 48 - offender inflicted less serious physical injuries on the occasion or during the performance of official function of the P A . A r t . 266. Slight physical injuries and maltreatment. — T h e crime o f slight p h y s i c a l i n j u r i e s shall b e p u n i s h e d :

•

1.

By arresto menor w h e n the o f f e n d e r h a s inflicted physical i n j u r i e s w h i c h shall incapacitate the o f f e n d e d p a r t y for l a b o r f r o m o n e t o nine days, o r shall r e q u i r e m e d i c a l a t t e n d a n c e d u r i n g the same period;

2.

By arresto menor or a fine not e x c e e d i n g 200 pesos a n d c e n s u r e w h e n the o f f e n d e r h a s c a u s e d physical i n j u r i e s w h i c h d o not p r e v e n t the offended p a r t y f r o m e n g a g i n g i n his h a b i t u a l w o r k n o r r e q u i r e medical attendance;

3.

By arresto menor in its m i n i m u m p e r i o d or a fine not e x c e e d i n g 50 pesos w h e n the offender shall illtreat a n o t h e r b y d e e d w i t h o u t c a u s i n g a n y injury.

Can there be physical injuries without inflicting injury? Y e s . Ill-treatment no. 3) is committed by inflicting pain although there is no injury. T h e pain suffered gives rise to slight physical injuries denominated as ill-treatment.

•

Distinguish serious, less serious and slight physical injuries. In less serious and slight physical injuries the duration of incapacity from labor and of medical treatment are considered. The period of incapacity and of medical treatment should not be more than nine days. Otherwise, it is no longer slight. In serious physical injuries, incapacity from work is considered. But, the moment the incapacity from labor or work is over 30 days, it is serious; less serious if not over 30 days, thus:


Serious

incapacity from habitual work ill/incapacity from habitual work

over 90 days

ill/incapacity from labor

3 1 - 9 0 days

Less S e r i o u s incapacity from labor/medical attendance Slight

incapacity from labor/med. attendance

permanent

10 - 30 days 1 - 9 days

R E P U B L I C A C T N O . 8049 Section 1. H a z i n g as u s e d in this A c t is an initiation rite or practice as a p r e r e q u i s i t e for a d m i s s i o n into m e m b e r s h i p in a fraternity, sorority or o r g a n i z a t i o n by p l a c i n g the r e c r u i t , neophyte o r a p p l i c a n t i n s o m e e m b a r r a s s i n g o r h u m i l i a t i n g situations such as f o r c i n g h i m to do m e n i a l , silly, foolish a n d similar tasks o r activities o r o t h e r w i s e s u b j e c t i n g h i m t o physical o r p s y c h o l o g i c a l s u f f e r i n g o r i n j u r y . T h e t e r m o r g a n i z a t i o n shall i n c l u d e a n y c l u b o r the A r m e d F o r c e s o f the P h i l i p p i n e s , P h i l i p p i n e N a t i o n a l P o l i c e , P h i l i p p i n e M i l i t a r y A c a d e m y , o r officer a n d c a d e t c o r p s o f the Citizen's M i l i t a r y T r a i n i n g , o r Citizen's A r m y T r a i n i n g . T h e physical, m e n t a l a n d p s y c h o l o g i c a l testing a n d t r a i n i n g p r o c e d u r e a n d p r a c t i c e s t o d e t e r m i n e a n d e n h a n c e the physical, m e n t a l a n d p s y c h o l o g i c a l f i t n e s s o f p r o s p e c t i v e r e g u l a r m e m b e r s o f the A r m e d F o r c e s o f the P h i l i p p i n e s a n d the P h i l i p p i n e N a t i o n a l P o l i c e a s a p p r o v e d b y the S e c r e t a r y o f N a t i o n a l D e f e n s e a n d the N a t i o n a l P o l i c e C o m m i s s i o n d u l y r e c o m m e n d e d b y the C h i e f o f Staff, A r m e d F o r c e s o f the P h i l i p p i n e s a n d the D i r e c t o r G e n e r a l o f the P h i l i p p i n e N a t i o n a l Police shall not b e c o n s i d e r e d a s h a z i n g f o r the p u r p o s e s of this A c t . Sec. 2 . N o h a z i n g o r initiation rites i n a n y f o r m o r m a n n e r b y a fraternity, s o r o r i t y o r o r g a n i z a t i o n shall b e a l l o w e d w i t h o u t a p r i o r w r i t t e n notice to the school a u t h o r i t i e s or h e a d o f o r g a n i z a t i o n , seven (7) d a y s b e f o r e the c o n d u c t o f such initiation. T h e w r i t t e n notice shall indicate the p e r i o d of initiation activities w h i c h shall not e x c e e d t h r e e (3) d a y s ,

700

PHYSICAL INJURIES

shall i n c l u d e the n a m e s of those to be subjected to such activities, a n d shall f u r t h e r contain a n u n d e r t a k i n g that n o physical violence b e e m p l o y e d b y a n y b o d y d u r i n g such initiation rites. xxx

xxx

xxx

Sec. 4. If the p e r s o n s u b j e c t e d to h a z i n g or other forms of initiation rites suffers a n y p h y s i c a l i n j u r y or dies as a result thereof, the officers a n d m e m b e r s of the fraternity, sorority or o r g a n i z a t i o n w h o a c t u a l l y p a r t i c i p a t e d in the infliction o f physical h a r m shall b e l i a b l e a s p r i n c i p a l s . T h e p e r s o n o r p e r s o n s w h o p a r t i c i p a t e d i n the h a z i n g shall suffer: a)

T h e p e n a l t y of reclusion perpetua if death, s o d o m y o r m u t i l a t i o n results t h e r e f r o m .

b)

T h e p e n a l t y of reclusion temporal, in its m a x i m u m p e r i o d if in c o n s e q u e n c e of the h a z i n g the victim shall b e c o m e i n s a n e , imbecile, impotent o r b l i n d .

c)

T h e p e n a l t y of reclusion temporal in its m e d i u m p e r i o d if in c o n s e q u e n c e of the h a z i n g the victim shall h a v e lost the use of speech or the p o w e r to h e a r or to smell, or shall h a v e lost an eye, a h a n d , a foot, an a r m , or a leg or shall h a v e lost the use of any such m e m b e r , o r shall h a v e b e c o m e incapacitated for the w o r k i n w h i c h h e w a s h a b i t u a l l y e n g a g e d .

d)

T h e penalty of reclusion temporal in its m i n i m u m p e r i o d , if in c o n s e q u e n c e of the hazing, the victim shall b e c o m e d e f o r m e d or shall h a v e lost any other p a r t of his b o d y , or shall h a v e lost the use thereof, or shall h a v e b e e n ill or incapacitated for the p e r f o r m a n c e of the activity or w o r k in w h i c h he w a s h a b i t u a l l y e n g a g e d for a p e r i o d of more than ninety (90) days.

e)

T h e penalty of prision mayor in its m a x i m u m p e r i o d if in consequence of the hazing the victim shall h a v e b e e n ill or incapacitated for the activity or w o r k in w h i c h he w a s habitually engaged for m o r e than thirty (30) days.

f)

T h e penalty of prision mayor in its medium period if in consequence of the hazing the victim shall 701

rape,


have been ill or incapacitated for the performance of the activity or w o r k in w h i c h he w a s habitually engaged for ten (10) days or more, or that the injury sustained shall r e q u i r e medical attendance for the same period. g)

T h e penalty of prision mayor in its m i n i m u m p e r i o d if in consequence of the h a z i n g the victim shall h a v e b e e n ill or incapacitated for the p e r f o r m a n c e o f the activity o r w o r k i n w h i c h h e w a s h a b i t u a l l y e n g a g e d f r o m one (1) to nine (9) days, or that the injury sustained shall r e q u i r e m e d i c a l attendance for the same p e r i o d .

h)

T h e penalty of prision correccional in its m a x i m u m p e r i o d if in c o n s e q u e n c e of the h a z i n g the victim sustained physical i n j u r i e s w h i c h d o not p r e v e n t h i m f r o m e n g a g i n g i n his h a b i t u a l activity o r w o r k nor require medical attendance.

T h e r e s p o n s i b l e officials of the school or of the police, military o r citizen's a r m y t r a i n i n g o r g a n i z a t i o n , m a y i m p o s e the a p p r o p r i a t e a d m i n i s t r a t i v e sanctions o n the p e r s o n o r p e r s o n s c h a r g e d u n d e r this p r o v i s i o n e v e n b e f o r e their conviction. T h e m a x i m u m p e n a l t y h e r e i n p r o v i d e d shall b e i m p o s e d in a n y of the f o l l o w i n g instances: a)

W h e n the r e c r u i t m e n t i s a c c o m p a n i e d b y force, violence, threat, i n t i m i d a t i o n o r deceit o n the p e r s o n o f the r e c r u i t w h o r e f u s e s t o j o i n ;

b)

W h e n the r e c r u i t , n e o p h y t e o r a p p l i c a n t initially consents t o j o i n b u t u p o n l e a r n i n g that h a z i n g w i l l be committed on his p e r s o n , is p r e v e n t e d f r o m quitting;

c)

W h e n the r e c r u i t , n e o p h y t e o r a p p l i c a n t h a v i n g undergone hazing is prevented from reporting the u n l a w f u l act to his p a r e n t s or g u a r d i a n s , to the p r o p e r school authorities, or to the police authorities, t h r o u g h force, violence, t h r e a t o r intimidation;

702

PHYSICAL INJURIES

d)

W h e n the h a z i n g is committed outside of the school o r institution; o r

e)

W h e n the victim is b e l o w t w e l v e (12) y e a r s of a g e at the time of the h a z i n g .

T h e o w n e r o f the p l a c e w h e r e h a z i n g i s c o n d u c t e d shall be liable as an accomplice, w h e n he has actual knowledge of the h a z i n g c o n d u c t e d t h e r e i n b u t f a i l e d t o t a k e a n y action to p r e v e n t the s a m e f r o m o c c u r r i n g . If the h a z i n g is h e l d in the h o m e o f o n e o f the officers o r m e m b e r s o f the fraternity, g r o u p o r o r g a n i z a t i o n , the p a r e n t s shall b e h e l d l i a b l e a s p r i n c i p a l s w h e n t h e y h a v e a c t u a l k n o w l e d g e o f the h a z i n g c o n d u c t e d t h e r e i n b u t f a i l e d t o t a k e a n y action t o p r e v e n t the s a m e f r o m o c c u r r i n g . T h e school authorities i n c l u d i n g faculty m e m b e r s w h o consent t o the h a z i n g o r w h o h a v e actual k n o w l e d g e thereof, b u t failed to t a k e a n y action to p r e v e n t the same f r o m o c c u r r i n g shall be p u n i s h e d as accomplices for the acts o f h a z i n g committed b y the p e r p e t r a t o r s . T h e officers, f o r m e r officers, or a l u m n i of the o r g a n i z a t i o n , g r o u p , fraternity o r sorority w h o actually p l a n n e d the h a z i n g a l t h o u g h not p r e s e n t w h e n the acts constituting the h a z i n g w e r e committed shall be liable as principals. Officers o r m e m b e r s o f a n o r g a n i z a t i o n , g r o u p , fraternity o r sorority w h o k n o w i n g l y c o o p e r a t e d i n c a r r y i n g out the h a z i n g by i n d u c i n g the victim to be present thereat shall be liable as p r i n c i p a l s . A fraternity or sorority's adviser w h o is present w h e n the acts constituting the h a z i n g w e r e committed a n d failed to take a n y action to p r e v e n t the same from o c c u r r i n g shall be liable as p r i n c i p a l s . T h e presence of a n y p e r s o n d u r i n g the hazing is prima facie evidence of participation therein as a principal unless he prevented the commission of the acts punishable therein. A n y person c h a r g e d u n d e r this provision shall not be entitled to the mitigating circumstance that there w a s no intention to commit so g r a v e a w r o n g .

703


This section shall a p p l y to the president, m a n a g e r , director or other responsible officer of a corporation e n g a g e d in hazing as a r e q u i r e m e n t for employment in the m a n n e r p r o v i d e d herein. XXX

TT¥

•

XXX.

What is the nature of the violations of the anti-hazing law? They are mala in se. T h e penal provisions of the law were lifted almost verbatim from Articles 263 to 266 (physical injuries). The nomenclatures of penalties under the R P C were adopted and the penalties imposed therein w e r e two degrees higher than those provided in the R P C . Further, the persons criminally liable are principals and accomplices. Finally, modifying circumstances are made by law to be applicable, hence, mens rea is an element. T h e law intentionem.

•

expressly

disallows

entitlement

to praeter

Who are liable for violations of the law on hazing? 1.

For death or physical injury inflicted As principals a.

T h e officers and who actually participated,

b.

T h e parents of officers or when hazing was held in their home, with actual knowledge of hazing but failed to take any action to prevent it,

c.

T h e officers, former officers, or alumni of organization who actually planned hazing although not present,

d.

Those who knowingly cooperated by inducing the victim to be present, and

e.

T h e adviser who was present when hazing was committed and failed to take any action to prevent it.

M e r e presence during hazing is prima facie evidence of participation as a principal unless the one present prevented the commission of the prohibited acts.

704

PHYSICAL INJURIES

As accomplice a.

The school authorities/faculty who consent or have actual knowledge of the hazing, but failed to take any action to prevent it.

b.

The owner of the place who has actual knowledge of hazing conducted but failed to take any action against the prohibited acts.

705

Chapter Three

RAPE REPUBLIC A C T N O . 8353 Section 1. Short Title. — This A c t shall be k n o w n as "The A n t i - R a p e L a w of 1997." Sec. 2. Rape as a Crime Against Persons. — T h e c r i m e of r a p e shall hereafter be classified as a C r i m e a g a i n s t P e r s o n s u n d e r Title E i g h t of A c t N o . 3815, as a m e n d e d , o t h e r w i s e k n o w n a s the R e v i s e d P e n a l C o d e . A c c o r d i n g l y , t h e r e shall be i n c o r p o r a t e d into Title E i g h t of the same C o d e a n e w chapter t o b e k n o w n a s C h a p t e r T h r e e o n R a p e , t o r e a d a s follows: "Art. 266-A. Rape; When and How Committed. — R a p e is committed — 1)

2)

By a m a n w h o shall h a v e c a r n a l k n o w l e d g e of a w o m a n u n d e r a n y o f the f o l l o w i n g circumstances: a)

T h r o u g h force, t h r e a t o r intimidation;

b)

W h e n the o f f e n d e d p a r t y i s d e p r i v e d o f r e a s o n or otherwise unconscious;

c)

By means of fraudulent machination or grave a b u s e o f authority; a n d

d)

W h e n the o f f e n d e d p a r t y i s u n d e r t w e l v e (12) years of age or is demented, even though none o f the c i r c u m s t a n c e s m e n t i o n e d a b o v e b e present.

B y a n y p e r s o n w h o , u n d e r a n y o f the c i r c u m s t a n c e s m e n t i o n e d in p a r a g r a p h 1 hereof, shall commit an act of s e x u a l assault by i n s e r t i n g his penis into a n o t h e r person's m o u t h o r a n a l orifice, o r a n y i n s t r u m e n t or object, into the g e n i t a l or a n a l orifice of another person. 706

RAPE

A r t . 266-B. Penalties. — R a p e u n d e r p a r a g r a p h 1 of the next p r e c e d i n g article shall be p u n i s h e d by reclusion perpetua. W h e n e v e r the r a p e is committed w i t h the use of a d e a d l y w e a p o n o r b y t w o o r m o r e p e r s o n s , the penalty shall be reclusion perpetua to d e a t h . W h e n b y r e a s o n o r o n the occasion o f the r a p e , the victim has b e c o m e i n s a n e , the p e n a l t y shall be reclusion perpetua to death. W h e n the r a p e is a t t e m p t e d a n d a h o m i c i d e is committed b y r e a s o n o r o n the o c c a s i o n thereof, the p e n a l t y shall b e reclusion perpetua to d e a t h . W h e n b y r e a s o n o r o n the occasion o f the r a p e , homicide is committed, the p e n a l t y shall be d e a t h . T h e d e a t h p e n a l t y shall also be i m p o s e d if the c r i m e of r a p e is committed w i t h a n y of the f o l l o w i n g a g g r a v a t i n g / q u a l i f y i n g circumstances: 1)

W h e n the victim is u n d e r eighteen (18) y e a r s of a g e a n d the o f f e n d e r is a p a r e n t , a s c e n d a n t , step-parent, g u a r d i a n , r e l a t i v e b y c o n s a n g u i n i t y o r affinity w i t h i n the t h i r d civil d e g r e e , o r the c o m m o n l a w spouse of the p a r e n t of the victim;

2)

W h e n the victim is u n d e r the custody of the police o r military authorities o r a n y l a w enforcement o r p e n a l institution;

3)

W h e n the r a p e is committed in full v i e w of the spouse, p a r e n t , a n y of the c h i l d r e n or other relatives w i t h i n the t h i r d civil d e g r e e of consanguinity;

4)

W h e n the victim is a religious e n g a g e d in legitimate religious vocation or calling a n d is personally k n o w n to be such by the offender before or at the time of the commission of the crime;

5)

W h e n the victim is a child b e l o w seven (7) years old;

6)

W h e n the offender k n o w s that he is afflicted with H u m a n Immuno-Deficiency V i r u s (HTV)/Acquired 707


I m m u n e Deficiency S y n d r o m e ( A I D S ) o r any other sexually transmissible disease a n d the v i r u s or disease is transmitted to the victim; 7)

W h e n committed by a n y m e m b e r of the A r m e d Forces of the P h i l i p p i n e s or p a r a - m i l i t a r y units thereof o r the P h i l i p p i n e N a t i o n a l Police o r a n y l a w enforcement a g e n c y or p e n a l institution, w h e n the offender took a d v a n t a g e of his position to facilitate the commission of the crime;

8)

W h e n by r e a s o n or on the occasion of the r a p e , the victim has suffered p e r m a n e n t physical mutilation or disability;

9)

W h e n the offender k n e w of the p r e g n a n c y of the offended p a r t y at the time of the commission of the crime; a n d

10) W h e n the offender k n e w o f the m e n t a l disability, emotional d i s o r d e r a n d / o r physical h a n d i c a p of the offended p a r t y at the time of the c o m m i s s i o n of the crime. R a p e u n d e r p a r a g r a p h 2 of the next p r e c e d i n g article shall be p u n i s h e d by prision mayor. W h e n e v e r the r a p e is c o m m i t t e d w i t h the use of a d e a d l y w e a p o n o r b y t w o o r m o r e p e r s o n s , the p e n a l t y shall be prision mayor to reclusion temporal. W h e n the r a p e is a t t e m p t e d a n d a h o m i c i d e is c o m m i t t e d by r e a s o n or on the occasion thereof, the p e n a l t y shall be reclusion temporal to reclusion perpetua. W h e n b y r e a s o n o r o n the occasion o f the r a p e , h o m i c i d e is committed, the p e n a l t y shall be reclusion perpetua. Reclusion temporal shall also be i m p o s e d if the r a p e is committed w i t h a n y of the ten a g g r a v a t i n g / q u a l i f y i n g circumstances m e n t i o n e d in this article. A r t . 266-C. Effect of pardon. — T h e s u b s e q u e n t v a l i d m a r r i a g e b e t w e e n the o f f e n d e r a n d the o f f e n d e d p a r t y shall extinguish the c r i m i n a l action or the p e n a l t y i m p o s e d . 708

RAPE

In case it is the legal h u s b a n d w h o is the offender, the s u b s e q u e n t f o r g i v e n e s s by the w i f e as the offended p a r t y shall extinguish the c r i m i n a l action or the penalty: Provided, T h a t the c r i m e shall not be e x t i n g u i s h e d or the penalty shall not be a b a t e d if the m a r r i a g e is void ab initio. A r t . 266-D. Presumption. — A n y physical overt act manifesting resistance a g a i n s t the act of r a p e in a n y d e g r e e f r o m the o f f e n d e d p a r t y , o r w h e r e the offended p a r t y i s s o situated a s t o r e n d e r h e r / h i m i n c a p a b l e o f g i v i n g v a l i d consent, m a y be a c c e p t e d as e v i d e n c e in the p r o s e c u t i o n of the acts p u n i s h e d u n d e r A r t i c l e 266-A." Sec. 3. Separability Clause. — x x x Sec. 4. Repealing Clause. — A r t i c l e 335 of A c t N o . 3815, as a m e n d e d , a n d all l a w s , acts, p r e s i d e n t i a l decrees, executive orders, istrative orders, rules and regulations inconsistent w i t h or c o n t r a r y to the p r o v i s i o n s of this A c t a r e d e e m e d a m e n d e d , modified o r r e p e a l e d a c c o r d i n g l y . xxx A p p r o v e d : S e p t e m b e r 30,1997. •

When did the Anti-Rape Law of 1997 take effect? R . A . 8353 took effect on October 22, 1997. T h e penalty for rape in its unqualified form, as prescribed by R . A . 7659, remains the same. (People v. Tundag, G.R. No. 135695, October 12, 2000) This is significant in case of use of finger - before October 22, 1997, the crime is acts of lasciviousness; from that date onwards, it is rape. (People v. Marino, G.R. No. 132550, February 19, 2001) Inserting a finger into the genitals of a woman (and even of a man) is rape as the purpose of the new law is to expand the definition of the crime. Thus, "object" should be construed to include "finger." To exclude from the definition the insertion of a finger or fingers into the genital or anal orifice of the victim, whereas the insertion of a bottle, a ball pen, or even a toothpick is included would be an unintelligible, arbitrary, and capricious delimitation of what the law seeks to expand. There is no rhyme or reason in giving protection to the human person 709


against the degrading and perverse insertion of an instrument or object into the genital or anal orifice of the victim, and refuse such protection when it is a finger that was inserted. (Obana v. Soriano, CA-G.R. SP No. 60353, August 29, 2001) Whether the act is rape or acts of lasciviousness involving instrument or finger, the date of the effectivity of R . A . 8353 is material. Upon its effectivity, when the criminal act consists of inserting a finger into another's genital it is rape by sexual assault. The information must charge him correctly otherwise, he cannot be convicted of rape by means of sexual assault for that would violate his right to be informed of the nature of the charge against him. Since acts of lasciviousness is necessarily included in rape he could be convicted of the latter. (People v. Cabellos, G.R. No. 169642, September 12, 2008). What is the effect of the reclassification of rape into a crime against persons? 1.

T h e procedural requirement of consent of the offended to file the case is no longer needed. T h i s is now a "public crime" unlike when it was a crime against chastity. Thus, the case can be filed by the State motu proprio.

2.

T h e impossible crime of rape can now be committed.

3.

Rape can now be committed against males since it is no longer a crime against chastity w h e r e the victims are females only (except in acts of lasciviousness).

4.

T h e aggravating circumstances relevant to crime against persons shall apply. Indeed, Siao, G.R. No. 126021, March 3, 2000, considered ignominy or moral suffering as aggravating.

R . A . 8353 revolutionized the concept of rape in that it should include sexual violence on the woman's sex-related orifices other than her organ, and expanded to cover gender-free rape. T h e transformation consisted of reclassification of rape as a crime against persons and the introduction of rape by "sexual assault" otherwise called "instrument or object rape," also "gender-free rape," or the narrower "homosexual rape" as differentiated from the traditional "rape through carnal knowledge" or "rape through sexual intercourse "or "penile rape." (People v. Abulon, G.R. No. 174473, August 17, 2007) 710

RAPE

•

What are the differences between the two modes of rape? In traditional rape: 1.

T h e offender is always a man

2.

T h e offended party is always a woman

3.

Rape is committed through penile penetration of the vagina, and

4.

T h e penalty is higher than in sexual assault.

In rape by sexual assault:

•

1.

T h e offender may be a man or a woman

2.

T h e offended may be a man or a woman

3.

Rape is committed by inserting the penis into another person's mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person, and

4.

T h e penalty is lower than in traditional rape, (id.)

What is the effect of error in the mode of rape in the information? In v i e w of the material differences between the two modes of rape, the first is not necessarily included in the second, and vice-versa. Thus, if the charge in the information is rape through carnal knowledge, accused cannot be found guilty of rape by sexual assault without violating his right to be informed of the nature and cause of the accusation against him. Following the variance doctrine in Section 4, in relation to Section 5, Rule 120, R R C P he can be convicted of the lesser offense of acts of lasciviousness or abusos dishonestos necessarily included in rape, (id.)

•

How is rape committed and by whom? Rape is now committed: 1.

By a M A N who shall have carnal knowledge of a woman under any of the following circumstances: a.

Through force, threat, or intimidation;

b.

When the offended party is deprived of reason or otherwise unconscious; 711


2.

•

c.

By means of fraudulent machination or grave abuse of authority; and

d.

When the offended is under 12 or is demented even though none of the said circumstances are present.

By any P E R S O N [man or woman] who, under any of the above circumstances, shall commit an act of sexual assault by inserting his penis (man) into another person's (man or woman) mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person (man or woman).

What consummates the crime of rape? The mere introduction of the penis into the labia majora of the victim's genitalia engenders the crime of rape. Hence, it is the "touching" or "entry" of the penis into the labia majora or the labia minora of the pudendum of the victim's genitalia that consummates rape. (People v. Orilla, G.R. Nos. 148939-40, February 13, 2004) Appellant ejaculated twice during the time that he consummated the rape. He did not withdraw his penis to insert it again into the vagina or to "touch" the labia majora or the labia minora when he ejaculated the second time. It is not the number of times that appellant ejaculated but the penetration or "touching" that determines the consummation of the sexual act. Thus, appellant committed only one count of rape, (id.)

•

Under what circumstance will rape absorb forcible abduction? Rape absorbs forcible abduction where the accused intended at the very outset to rape the victim when he abducted her. (People v. San Pedro, G.R. No. 94128, February 3, 1993)

•

When is rape attempted? In rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to that of the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however slight, is not completed. (People v. Bon, G.R. No. 166401, October 30, 2006) 712

RAPE

T h e evidence disclosed that when BB's body was found, she still had her panties and her jogging pants on. The post mortem report also revealed that BB was "in (a) virgin state physically." T h e r e is no evidence to show that accused attempted to have carnal knowledge with her. (People v. Labrador, May 1999) Perez acquitted petitioner of attempted rape since in the crime of rape, penetration is an essential act of execution to produce the felony. For there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to that of the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however, slight, is not completed. Petitioner's act of lying on top of the complainant, embracing and kissing her, mashing her breasts, inserting his hand inside her panty and touching her sexual organ, while ittedly obscene and detestable acts, do not constitute attempted rape absent any showing that petitioner actually commenced to force his penis into the complainant's sexual organ. •

What is the meaning of "slightest penetration" that would consummate the crime of rape? It is carnal knowledge, not pain that is the element to consummate rape. Indeed pain may be deduced from the sexual act but accused cannot be convicted of rape by presuming carnal knowledge out of pain. Complete penetration is not necessary to convict for consummated rape since the slightest penetration will suffice. Campuhan clarified "slightest penetration" to mean that there must be sufficient and convincing proof that the penis indeed touched at the very least the labias of the female organ. M e r e epidermal between the penis and the external layer of the vagina (the stroking and the grazing of the male organ upon the female organ or the mons pubis) categorizes the crime as attempted rape or acts of lasciviousness. There must be positive proof of even the slightest penetration - the touching of the labias by the penis, before rape could be deemed consummated. When accused was trying to insert his penis into the child's organ, the act proved painful, which made him stop. Such fact shows that accused's penis failed to reach the labia 713


of the pudendum. There is no basis then to apply the rule that the introduction of the penis into the aperture of the female organ (thereby touching the labia of the pudendum) already consummates the case of rape. (People u. Bon) It would be too strained to construe petitioner's act of pressing a chemical-soaked cloth in the mouth of MM which would induce her to sleep as an overt act that will logically and necessarily ripen into rape. Petitioner did not commence at all the performance of any act indicative of an intent or attempt to rape M M . Petitioner was fully clothed and there was no attempt on his part to undress M M , let alone touch her private part. T h e CA maintained that if the petitioner had no intention to rape, he would not have lain on top of the complainant. Plodding on, it even anticipated the next step that the petitioner would have taken if the victim had been rendered unconscious. Thus, the court indulges in plain speculation, a practice disfavored under the rule on evidence in criminal cases. M e r e speculations and probabilities cannot substitute for proof required to establish guilt beyond reasonable doubt. (Baleros, Jr. v. People, G.R. No. 138033, January 30, 2007) Distinguish attempted rape from acts of lasciviousness. The difference lies in the intent shown by offender's external acts. W h e n the "touching" of the vagina by his penis is with the intent to penetrate, attempted rape is committed. Otherwise, it is acts of lasciviousness. (People v. Collado, March 2001) When multiple rapes are committed at about the same time and place, is the principle of delito continuado applicable? N o . Each and every charge of rape is a separate and distinct crime; each of the eight rapes should be proven beyond reasonable doubt. The prosecution is required to establish, by the necessary quantum of proof, the elements of rape for each charge. (People v. Dela Torre, G.R. Nos. 121213 and 121216-23, January 13, 2004) In what circumstance will the rape of a retardate victim fall? A mental retardate is classified as a person "deprived of reason" hence the rape of a mental retardate should fall under

714

RAPE

subparagraph ( b ) , not subparagraph (d) of Article 266-A ( 1 ) . (People v. Magabo, G.R. No. 139471, January 23, 2001) •

What is the nature of the 10 circumstances in Article 266-B? T h e circumstances introduced by R . A . 7659 and R . A . 8353 are in the nature of qualifying circumstances. These are not ordinary aggravating circumstances which merely increase the period of penalty. Rather, these are special qualifying circumstances which must be specifically pleaded or alleged with certainty in the information; otherwise, it is only simple rape. (People v. Libo-on, May 23, 2001) R . A . 7659 cannot be made to apply for two reasons: (1) at the time the rape was committed, complainant was already more than 18 years of age and (2) the information did not allege that offender and offended w e r e relatives within the third degree of consanguinity. T h e 10 circumstances in R . A . 7659 are in the nature of qualifying circumstances. In v i e w of the failure of the information to comply with the allegation requirement, said degree of relation could not be taken into . (People v. Sabredo)

•

If the rapist is merely a relation how should such fact be alleged in the information? If the offender is merely a relation — not a parent, ascendant, step-parent, or guardian or common-law spouse of the mother of the victim — it must be alleged in the information that he is "a relative by consanguinity or affinity (as the case may be) within the third civil degree." (People v. Banihit, G.R. No. 132045, August 25, 2000) T h e allegation that accused is the uncle of complainant is not specific enough to satisfy the special qualifying circumstance of relationship. The relationship between the complainant and the appellant was not alleged in the information. Even if it were so alleged, it was still necessary to specifically allege that such relationship was within the third civil degree. Due to the defect in the information, he can only be liable for simple rape even if it was proven that he was the uncle of the victim and thus, a relative by affinity of the victim within the third civil degree. (People v. Libo-on, May 23, 2001) 715


What relationships will not elevate the crime to qualified rape? A stepbrother or stepsister relationship cannot elevate the crime to "qualified rape" for they are not considered related by blood or affinity. (People v. Onabia, G.R. No. 128288, April 20, 1999) (contra: Mamac) Appellant is not a step-grandfather of B B . Appellant himself itted that he cohabited and lived with the maternal grandmother of BB without the benefit of marriage. T h e word "step," when used as prefix in conjunction with a degree of kinship, is repugnant to blood relationship and is indicative of a relationship by affinity. Since no relationship by affinity can be established between BB and appellant, he cannot be considered as the step-grandfather of B B . At the most, appellant can be described as the commonlaw husband of BB's grandmother. As such, appellant is not a "parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent" of B B . Courts must not bring cases within the provision of a law which are not embraced by it to the end that no person who is clearly not within the of statute can be brought within them. Expressio unius est exclusio alterius. (People v. Mamac, 332 SCRA) Although a common-law husband is subject to the maximum punishment in case he commits rape against his wife's daughter, nevertheless, the maximum penalty cannot be imposed as the relationship alleged in the information is different from that actually proven. [The information alleged that the accused is the stepparent of the victim. H o w e v e r , the evidence shows that accused is not the complainant's stepfather for he and complainant's mother w e r e not really married but only lived in a common law relationship.] (People v. Manggasin, G.R. No. 130599, April 21, 1999) T h e information accuses appellant of employing threat and intimidation and of abusing his moral ascendancy over BB to carry out the rape. It does not allege relationship and minority or the use of a deadly weapon. T h e information therefore does not charge appellant with qualified rape. T h e concurrence of the minority of the victim and her relationship to the offender is a special qualifying circumstance which 716

RAPE

should be alleged in the information. Minority and relationship are treated as special qualifying circumstances and not merely aggravating because they increase the imposable penalties by degrees. (People v. Mamac) •

What is the nature of a "step" relationship? A stepdaughter is the daughter of one's wife or husband by a former marriage; a stepfather is the husband of one's mother by virtue of a marriage subsequent to that of which the person spoken of is the offspring. T h e information described H H as the "stepdaughter" of CC. T h a t allegation is inaccurate. HH is not CC's "stepdaughter" and neither was he the "stepfather" of HH for step relationship presupposes a legitimate relationship, i.e., CC should have been married to W after the latter's previous marriage to H H ' s father was dissolved. (People v. Melendres, G.R. No. 133999-4001, August 31, 2000)

•

How is the circumstance of age or relationship proved? Although the age of the victim was alleged in the information, the birth certificate was not presented to prove beyond reasonable doubt the victim's age. Thus, the accused should be convicted for simple rape. T h e relationship of the accused to the victim as her stepfather was not established since the marriage certificate was not presented to prove the fact of marriage between the accused and the victim's mother. (People v. Francisco, January 2001)

•

How should the term force and violence be construed? The force and violence required in rape cases is relative; when applied, it need not be overpowering or irresistible. What is essential is that the force used is sufficient to consummate the purpose which the offender had in mind, or to bring about the result. The force and violence necessary in rape is naturally a relative term, depending on the age, size and strength of the parties and their relation to each other. A l l consideration of whether it was more or less irresistible is beside the point. At a tender age of 14, complainant is no match to the accused, a 41-year old married individual. The sheer force and strength of the accused would have easily overcome any resistance that 717


complainant could have put up. (People v. Errojo, G.R. No. 102077, January 4, 1994) •

What is the meaning of "force" in rape? 'Forcibly' does not mean violently, but with the description of force which must be exercised in order to accomplish the act for there is no doubt that unlawful connection with a woman in a state of unconsciousness, produced by profound sleep, stupor or otherwise amounts to rape. This force may be constructive where the female was an idiot, or had been rendered insensible by the use of drugs or intoxicating drinks; she was incapable of consenting, and the law implied force. In such a case, the force required by the statute is the wrongful act. A man who, knowing of a woman's insanity, takes advantage of her helpless condition to gratify his own lustful desires, is guilty of felonious rape, though he uses no force than that involved in the carnal act, and though the woman offers no resistance to the consummation of his purpose. (People v. Rosare, G.R. No. 118823, November 19, 1996) In rape cases alleged to have been committed by force, it is imperative to establish that the element of voluntariness on the part of the victim be absolutely lacking. T h e prosecution must prove that force or intimidation was actually employed by the offender upon his victim to achieve his end. Intimidation is very subjective and must be viewed in the light of the victim's perception and judgment at the time of the commission of the crime and not by any hard and fast rule. (People v. Clemente, October 1999)

*

What is "intimidation" in rape? Intimidation includes the moral kind, i.e., threatening the victim with knife. W h e n this kind of intimidation exists and the victim is cowed into submission as a result, thereby rendering resistance futile, it is unreasonable to expect her to resist with all her might and strength. Intimidation is addressed to the mind of the victim and is subjective. Its presence cannot be tested by any hard-and-fast rule, but must be v i e w e d in the light of the victim's perception and judgment at the time of the crime. T h e workings of the human mind under emotional stress are unpredictable. People react differently in such situations. 718

RAPE

Some may shout; some may faint; some may be shocked into insensibility; others may openly welcome their intrusion. (People v. Oarga, G.R. Nos. 109396-97, July 17, 1996) W h e n rape is committed by using force or intimidation, the victim does not have to be less than 12 years of age. Resistance is not an element of rape committed by use of force or intimidation. It is enough that the malefactor intimidated the complainant into submission. Failure to shout or offer tenacious resistance does not make voluntary the complainant's submission to the criminal act. It is not necessary that the force or intimidation employed be so great or of such character as could not be resisted for all that is required is that it be sufficient to consummate the purpose that the accused had in mind. (People v. Paranzo, G.R. No. 107800, October 26, 1999) Threatening the victim with a knife or pointing a gun at her is sufficient. (People v. Vergel, October 1999) Distinguish between force and intimidation in rape. In rape cases, the force may not be irresistible; all that is necessary is that the force used by the accused is sufficient to consummate his evil purpose, or that it was successfully used. It need not be so great or of such character that it could not be repelled. Intimidation, on the other end, must be viewed in light of the victim's perception and judgment at the time of the commission of the crime and not by any hard and fast rule; it is enough that it produces fear — fear that if the victim does not yield to the bestial demands of the accused, something would happen to her at that moment, or even thereafter as when she is threatened with death if she would report the incident. (People v. Be Guzman, G.R. No. 117217, December 2, 1996) In incestuous rape, is force or intimidation indispensable? N o . Even assuming that force and intimidation had not been actually employed, rape was nevertheless committed. The absence of violence or offer of resistance would not be significant because of the overpowering and overbearing moral influence of the father over the daughter which takes the place of violence and offer of resistance required in rape cases committed by an accused having no blood relationship with the victim. (People v. Mabunga, G.R. No. 96441, November 13, 1992) 719


•

Offender hacked the victim thrice on the face after raping her twice and left for dead. What crimes were committed? T w o counts of rape and frustrated murder — not rape attended by the qualifying circumstance of mutilation. Frustrated murder as she was left for dead but was saved by prompt medical treatment. The accused inflicted the wounds not only to maim but to kill her. (People v. Borce, G.R. No. 124131, April 22, 1998)

•

•

What facts do not constitute elements of rape? 1.

Resistance, when the accused is the father or is closely related to the victim, moral ascendancy and influence substituting for physical violence or intimidation. (People v. Abella, September 1999)

2.

Virginity. (People September 3, 1999)

3.

The absence of fresh lacerations in the hymen. A freshly broken hymen is not an element of rape and healed lacerations do not negate rape. A medical examination and medical certificate are merely corroborative and are not indispensable to rape prosecution. T h e credible disclosure of a minor that the accused raped her is the most important proof of the sexual abuse. (People v. Orilla)

4.

T h e absence of medical findings by a medico-legal does not disprove the commission of rape. Medical examination is not an element in a prosecution for rape, neither is presentation of the torn panty fatal to the prosecution's case, (id.)

5.

T h e accused's being younger than the victim is not relevant in rape. (People v. Bayron, September 1999)

v.

Sacapano,

G.R.

No.

130525,

What guiding principles must be considered in reviewing rape cases? Rape is essentially an offense of secrecy, not generally attempted except in dark or deserted and secluded places away from prying eyes. T h e crime usually commences solely upon the word of the offended and conviction invariably turns upon 720

RAPE

her credibility, as the single witness of the actual occurrence. (People v. De Guzman, G.R. No. 117217, December 2, 1996) Considering the severity of the penalty, courts should take extreme care in weighing the evidence to avoid doing injustice to the accused. Thus the three guiding principles in reviewing rape cases, viz.: (1) an accusation for rape can be made with facility, it is difficult to prove but more difficult for the accused, though innocent to disprove; (2) in v i e w of the intrinsic nature of the crime where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense. (People v. Excija, G.R. No. 119069, July 5, 1996) Give some doctrinal principles in rape. 1.

Full or complete penetration of the private parts is not necessary as the only essential point to prove is the entrance or at least the introduction of the male organ into the labia of the pudendum. (People v. Ligotan, G.R. No. 119219, September 30, 1996)

2.

W h e n a rape victim says she was defiled, she says in effect all that is necessary to show that rape has been inflicted on her; and, so long as her testimony meets the test of credibility, the accused may be convicted on the basis thereof. T h e application of this doctrine becomes more compelling when the culprit is the father or a close relative of the victim. (People v. Mario, October 1999; People v. Tabion, G.R. No. 132715, October 20, 1999)

3.

Absence of signs of external physical injuries does not signify lack of resistance on the part of the victim. Confronted with such frightful experience, not every victim can be expected to act conformably with mankind's expectation. Resistance from the victim need not be carried to the point of inviting death or sustaining physical injuries at the hands of rapist, (id)

4.

In incestuous rape of a minor, proof of force and violence is not essential. Moral ascendancy or parental authority of the accused over the complainant takes the place of violence. (People v. Tabion) 721


•

What are the elements of statutory rape? T w o elements must be established: (1) that the accused had carnal knowledge of a woman; and (2) that the woman is below 12 years of age. In this specie of rape, consent is immaterial. The mere fact of having sexual relations with a girl below 12 years old consummates the offense and consent is not a defense since the law presumes that a child below 12 years old cannot give consent to the sexual act. The "sweetheart defense" cannot be sustained in statutory rape where what is material is not the victim's consent but the fact that the victim was below 12 years old when it happened. The child's birth certificate is the best evidence of the date of her birth. Its evidentiary value is not affected by late registration. (People v. Apostil, December 1999)

•

How relevant is force and intimidation in statutory rape? T h e gravamen of statutory rape is the carnal knowledge of a woman below 12 years old. Sexual congress with a girl under 12 years is always rape. Force, intimidation or physical evidence of injury is immaterial. (People v. Palicte, 229 SCRA 543) When a girl under 12 years is the victim of rape, it is of no consequence that there is no force or intimidation or that she is not deprived of reason or rendered unconscious. It suffices that there is carnal knowledge of her, without more. (People v. Oarga) It is not necessary that the victim was intimidated or force used against her for in statutory rape, the law presumes that the victim, on of her age, does not have a will of her own. (People v. Garibaldi, October 1999; People v. Beggar, November 1999)

•

Can the accused be charged with seven homicides in rape with homicide considering that only two persons died? N o . W h e r e there are two or more offenders who committed rape, the homicide committed on the occasion or by reason of each rape, must be deemed as a constituent element of the special complex crime of rape with homicide as the rape

722

RAPE

committed. In effect, the presence of homicide committed on the occasion or by reason of the rape loses it character and function as an independent offense but assumes a new character like a qualifying circumstance. However, by fiction of law, it is merged with rape to constitute the element of a special complex crime of rape with homicide with a specific penalty. (Sanchez v. DemetHou, G.R. Nos. 111771-77, November 9, 1993) M a y a woman be guilty of rape against another woman? Y e s . One may be considered a principal by direct participation, by inducement, or by indispensable cooperation. This is true in a charge of rape against a woman, provided a man is charged together with her. Villamala found husband and wife guilty for raping their "kumare." T h e wife visited the victim at her home on the pretext of inquiring as to the whereabouts of her husband. Once inside, she whistled for her husband and he immediately appeared at the doorstep. T h e wife then suddenly pinned her "kumare" to the floor. T h e husband then forcefully consummated the rape. In Saba, the couple victimized a 14-year-old epileptic w h o stayed at their home for treatment by the wife who was a healer. On the pretext of conducting a healing session, the wife ordered the victim to lie down on the floor then pinned the victim's hands to the floor and covered her mouth while her husband raped the young girl. (People v. Dela Torre, G.R. Nos. 121213, 121216-23, January 13, 2004) What is necessary for an effective pardon by the offended? T h e valid marriage between the offender and the offended party shall extinguish the action or the penalty imposed. All elements for valid marriage should be present, hence, if the victim or the offender is under 18, or their marriage would be incestuous or contrary to public policy as provided in the Family Code, pardon cannot be granted by marriage. This is considering the fact that rape is now primarily against the State being a crime against person or a "public crime." As such, it may be prosecuted without the need of the consent of the private offended party for the institution of the suit. 723


Forgiveness by the wife as the offended victim shall extinguish the action or the penalty imposed unless the marriage is void ab initio. (In the Family Code, cohabitation is forgiveness.) •

What are the presumptions added by the new law? 1.

A n y physical overt act manifesting resistance against the act of rape in any degree from the offended party.

2.

Where the offended party is so situated as to render him/ her incapable of giving valid consent.

SEXUAL HARRASMENT R E P U B L I C A C T N O . 7877 xxx

xxx

xxx

Sec. 3. Work, Education or Training-related Sexual Harassment Defined. — W o r k , e d u c a t i o n or t r a i n i n g - r e l a t e d sexual h a r a s s m e n t i s committed b y a n e m p l o y e r , e m p l o y e e , m a n a g e r , s u p e r v i s o r , a g e n t o f the e m p l o y e r , t e a c h e r , instructor, p r o f e s s o r , coach, t r a i n o r , o r a n y o t h e r p e r s o n w h o , h a v i n g authority, influence o r m o r a l a s c e n d a n c y o v e r another in a w o r k or t r a i n i n g or e d u c a t i o n e n v i r o n m e n t , d e m a n d s , requests o r o t h e r w i s e r e q u i r e s a n y s e x u a l f a v o r f r o m the other, r e g a r d l e s s o f w h e t h e r the d e m a n d , r e q u e s t o r r e q u i r e m e n t for s u b m i s s i o n i s a c c e p t e d b y the object o f said act. (a)

In a work-related or employment environment, sexual h a r a s s m e n t is c o m m i t t e d w h e n : 1)

T h e s e x u a l f a v o r is m a d e as a c o n d i t i o n in the h i r i n g or in the e m p l o y m e n t , r e - e m p l o y m e n t or continued employment of said individual, or in granting said individual favorable c o m p e n s a t i o n , , conditions, p r o m o t i o n s , o r p r i v i l e g e s , o r the r e f u s a l t o g r a n t the s e x u a l f a v o r results in limiting, s e g r e g a t i n g <jr classifying the e m p l o y e e w h i c h in a n y w a y w o u l d discriminate, deprive or diminish

724

RAPE

employment opportunities or a d v e r s e l y affect s a i d e m p l o y e e ;

(b)

otherwise

2)

T h e a b o v e acts w o u l d i m p a i r the employee's r i g h t s o r p r i v i l e g e s u n d e r existing l a b o r l a w s ; or

3)

T h e a b o v e acts w o u l d result i n a n intimidating hostile, or offensive e n v i r o n m e n t for the employee.

I n a n e d u c a t i o n o r t r a i n i n g e n v i r o n m e n t , sexual h a r a s s m e n t is committed: 1)

A g a i n s t one w h o is u n d e r the c a r e , custody or s u p e r v i s i o n of the offender;

2)

Against one whose education, training, a p p r e n t i c e s h i p or t u t o r s h i p is entrusted to the offender;

3)

W h e n the s e x u a l f a v o r is m a d e a condition to the g i v i n g of a p a s s i n g g r a d e , or the g r a n t i n g of h o n o r s a n d s c h o l a r s h i p s , or the p a y m e n t of a stipend, a l l o w a n c e o r other benefits, privileges or considerations; or

4)

W h e n the s e x u a l a d v a n c e s result in an intimidating, hostile or offensive e n v i r o n m e n t for the student, t r a i n e e or a p p r e n t i c e .

What elements constitute the offense of sexual harassment? 1.

T h e employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person has authority, influence or moral ascendancy over another;

2.

T h e authority, influence or moral ascendancy exists in a working environment;

3.

T h e employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, or any other person having authority, influence or moral ascendancy makes a demand, request or requirement of a sexual favor.

725


Is a casual buss on the cheek by the superior on his subordinate sexual harassment? A mere casual buss on the cheek is not a sexual conduct or favor and does not fall within the purview of sexual harassment under R . A . 7877. In a work-related or employment environment, sexual harassment is committed when: 1.

T h e sexual favor is made as a condition in the hiring or in the employment, re-employment of said individual, or in granting said individual favorable compensation, , conditions, promotions or privileges; or the refusal to grant sexual favor results in limiting, segregating or classifying the employee which in anyway would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employees;

2.

The above acts would impair the employee's right or privileges under existing labor law; or

3.

T h e above acts would result in an intimidating, hostile, or offensive environment for the employee.

There is no showing that respondent demanded, requested or required any sexual favor from complainant in exchange for "favorable compensation, , conditions, promotion or privileges." N o r did he, by his actuations, violate the Canons of Judicial Ethics or the Code of Professional Responsibility. (Aquino v. Acosta, A.M. CTA-01-1, April 2, 2002) What is the philosophy underlying this gender-related law on sexual harassment? "Under our system of governance, the very tenets of our republican democracy presuppose that the w i l l of the people is expressed, in large part, through the statutes ed by the Legislature. Thus, the Court, in instances such as these, may take judicial notice of the heightened sensitivity of the people to gender-related issues as manifested through legislative issuances. It would not be remiss to point out that no less than the Constitution itself has expressly recognized the invaluable contributions of the women's sector to national development, thus the need to provide women with a working environment conducive to productivity and befitting their dignity. 726

RAPE

"In the community of nations, there was time when discrimination was institutionalized through the legislation of now prohibited practices. Indeed, even within this century, persons were discriminated against merely because of gender, creed, or the color of their skin, to the extent that the validity of human beings treated as mere chattel was judicially upheld in other jurisdictions. But in humanity's march towards a more refined sense of civilization, the law has stepped in and seen it fit to condemn this type of conduct for, at bottom, history reveals that the moving force of civilization has been to realize and secure a more humane existence. Ultimately, this is what humanity as a whole seeks to attain as we strive for a better quality of life or higher standard of living. Thus, in our nation's very recent history, the people have spoken through Congress, to deem conduct constitutive of sexual harassment or hazing, acts previously considered harmless by custom, as criminal. In disciplining erring judges and personnel of the Judiciary, then this Court can do no less." (Vedana v. Valencia, 295 SCRA 1)

VAWC R E P U B L I C A C T N O . 9262 S E C T I O N 1. Short Title. — T h i s A c t shall b e k n o w n as the "Anti-Violence A g a i n s t W o m e n a n d T h e i r C h i l d r e n A c t o f 2004." S E C T I O N 2. Declaration of Policy. — It is h e r e b y d e c l a r e d that the State v a l u e s the dignity of w o m e n a n d children a n d g u a r a n t e e s full respect for h u m a n rights. T h e State also recognizes the n e e d to protect the family a n d its m e m b e r s p a r t i c u l a r l y w o m e n a n d children, f r o m violence a n d threats to their p e r s o n a l safety a n d security. T o w a r d s this e n d , the State shall exert efforts to address violence committed a g a i n s t w o m e n a n d children in keeping with the f u n d a m e n t a l freedoms g u a r a n t e e d u n d e r the Constitution a n d the P r o v i s i o n s of the U n i v e r s a l Declaration of H u m a n Rights, the convention on the Elimination of all forms of discrimination A g a i n s t W o m e n , Convention on the Rights of the C h i l d a n d other international h u m a n rights instruments of w h i c h the Philippines is a party.

727


S E C T I O N 3. Definition of . — As used in this Act, (a) "Violence against women and their children" refers to any act or a series of acts committed by any p e r s o n against a w o m a n w h o is his wife, f o r m e r wife, or against a w o m a n with w h o m the person has or h a d a sexual or d a t i n g relationship, or with w h o m he has a common child, or against her child w h e t h e r legitimate or illegitimate, w i t h i n or without the family a b o d e , w h i c h result in or is likely to result in physical, sexual, psychological h a r m or suffering, or economic a b u s e i n c l u d i n g threats of such acts, b a t t e r y , assault, coercion, h a r a s s m e n t or a r b i t r a r y d e p r i v a t i o n of liberty. It includes, b u t is not limited to, the f o l l o w i n g acts: A.

"Physical Violence" refers to acts that include b o d i l y or physical h a r m ;

B.

"Sexual violence" refers to an act w h i c h is s e x u a l in n a t u r e , committed a g a i n s t a w o m a n or h e r child. It includes, b u t is not limited to: (a)

r a p e , s e x u a l h a r a s s m e n t , acts o f lasciviousness, t r e a t i n g a w o m a n or h e r child as a sex object, making demeaning and sexually suggestive r e m a r k s , physically a t t a c k i n g the s e x u a l p a r t s of the victim's b o d y , f o r c i n g h e r / h i m to w a t c h o b s c e n e p u b l i c a t i o n s a n d indecent s h o w s o r f o r c i n g the w o m a n o r h e r child t o d o indecent acts a n d / o r m a k e films thereof, f o r c i n g the w i f e a n d mistress/lover to live in the c o n j u g a l h o m e or sleep t o g e t h e r in the same r o o m w i t h the a b u s e r ;

( b ) acts c a u s i n g or a t t e m p t i n g to c a u s e the victim to e n g a g e in a n y s e x u a l activity by force, t h r e a t of force, physical o r o t h e r h a r m o r t h r e a t o f p h y s i c a l o r other h a r m o r coercion; (c) C.

P r o s t i t u t i n g the w o m a n o r child.

"Psychological violence" r e f e r s to acts or omissions c a u s i n g or likely to cause m e n t a l or e m o t i o n a l s u f f e r i n g of the victim such as b u t not limited to intimidation, h a r a s s m e n t , stalking, d a m a g e t o p r o p e r t y , p u b l i c r i d i c u l e o r humiliation, r e p e a t e d v e r b a l a b u s e a n d mental infidelity. It includes c a u s i n g or a l l o w i n g the 728

RAPE

victim to witness the physical, s e x u a l or psychological a b u s e of a m e m b e r of the family to w h i c h the victim belongs, o r t o w i t n e s s p o r n o g r a p h y i n any f o r m o r to witness a b u s i v e i n j u r y to pets or to u n l a w f u l or u n w a n t e d d e p r i v a t i o n of the r i g h t to custody and/or visitation of c o m m o n c h i l d r e n . D.

"Economic abuse" r e f e r s to acts that m a k e or attempt to m a k e a w o m a n financially d e p e n d e n t w h i c h includes, b u t is not limited to the f o l l o w i n g : 1.

w i t h d r a w a l of financial s u p p o r t or p r e v e n t i n g the victim f r o m e n g a g i n g i n a n y legitimate profession, o c c u p a t i o n , b u s i n e s s or activity, except in cases w h e r e i n the o t h e r s p o u s e / p a r t n e r objects o n v a l i d , serious a n d m o r a l g r o u n d s as defined in A r t i c l e 73 of the F a m i l y C o d e ;

2.

d e p r i v a t i o n or t h r e a t of d e p r i v a t i o n of financial r e s o u r c e s a n d the r i g h t to the use a n d enjoyment of the c o n j u g a l , c o m m u n i t y or p r o p e r t y o w n e d in common;

3.

destroying household property;

4.

controlling the victims' o w n m o n e y or properties or solely c o n t r o l l i n g the c o n j u g a l m o n e y or properties.

( b ) "Battery" refers to an act of inflicting physical h a r m u p o n the w o m a n or h e r child r e s u l t i n g to the physical a n d psychological or emotional distress. ( c ) "Battered Woman Syndrome" refers to a scientifically defined pattern of psychological a n d b e h a v i o r a l symptoms found in w o m e n living in b a t t e r i n g relationships as a result of cumulative a b u s e . ( d ) "Stalking" refers to an intentional act committed by a person w h o , k n o w i n g l y a n d w i t h o u t l a w f u l justification follows the w o m a n or h e r child or places the w o m a n or her child u n d e r surveillance directly or indirectly or a combination thereof. (e) "Dating relationship" refers to a situation w h e r e i n the parties live as h u s b a n d a n d wife without the benefit of m a r r i a g e or are romantically involved over time and on a 729


continuing basis d u r i n g the course of the relationship. A casual acquaintance or o r d i n a r y socialization b e t w e e n t w o individuals in a business or social context is not a dating relationship. (f) "Sexual relations" refers to a single sexual act which may or m a y not result in the b e a r i n g of a c o m m o n child. ( g ) "Safe place or shelter''' refers to a n y h o m e or institution maintained or m a n a g e d by the D e p a r t m e n t of Social W e l f a r e a n d D e v e l o p m e n t ( D S W D ) o r b y a n y other agency o r v o l u n t a r y o r g a n i z a t i o n accredited b y the D S W D for the p u r p o s e s of this A c t or a n y other suitable place the resident of w h i c h is w i l l i n g t e m p o r a r i l y to receive the victim. ( h ) "Children" refers to those b e l o w eighteen (18) y e a r s of a g e or o l d e r b u t a r e i n c a p a b l e of t a k i n g c a r e of themselves as defined u n d e r R e p u b l i c A c t N o . 7610. As u s e d in this A c t , it includes the b i o l o g i c a l c h i l d r e n of the victim a n d other children u n d e r h e r c a r e . S E C T I O N 4. Construction. — T h i s A c t shall be l i b e r a l l y construed to p r o m o t e the protection a n d safety of victims of violence a g a i n s t w o m e n a n d their c h i l d r e n . S E C T I O N 5. Acts of Violence Against Women and Their Children. — T h e c r i m e of violence a g a i n s t w o m e n a n d their children is committed t h r o u g h a n y of the f o l l o w i n g acts: (a)

C a u s i n g physical h a r m t o the w o m a n o r h e r child;

( b ) T h r e a t e n i n g t o cause the physical h a r m ;

w o m a n o r h e r child

(c) Attempting physical h a r m ;

woman

to

cause

the

or

her

child

( d ) P l a c i n g the w o m a n o r h e r child i n f e a r o f i m m i n e n t physical h a r m ; ( e ) A t t e m p t i n g t o compel o r c o m p e l l i n g the w o m a n o r h e r child t o e n g a g e i n conduct w h i c h the w o m a n o r h e r child has the r i g h t to desist f r o m or desist f r o m c o n d u c t w h i c h the w o m a n or h e r child has the r i g h t to e n g a g e in, or a t t e m p t i n g to restrict or restricting the w o m a n ' s or h e r child's f r e e d o m 730

RAPE

o f m o v e m e n t o r c o n d u c t b y force o r t h r e a t o f force, physical o r other h a r m o r t h r e a t o f p h y s i c a l o r other h a r m , o r intimidation d i r e c t e d a g a i n s t the w o m a n o r child. This shall include, b u t not limited to, the f o l l o w i n g acts committed w i t h the p u r p o s e or effect of c o n t r o l l i n g or restricting the w o m a n ' s o r h e r child's m o v e m e n t o r conduct: (1)

T h r e a t e n i n g to d e p r i v e or a c t u a l l y d e p r i v i n g the w o m a n o r h e r c h i l d o f c u s t o d y t o her/his family;

(2)

D e p r i v i n g o r t h r e a t e n i n g t o d e p r i v e the w o m a n o r her children of financial s u p p o r t legally due her or h e r f a m i l y , o r d e l i b e r a t e l y p r o v i d i n g the w o m a n ' s c h i l d r e n insufficient f i n a n c i a l s u p p o r t ;

(3)

D e p r i v i n g o r t h r e a t e n i n g t o d e p r i v e the w o m a n o r h e r child of a l e g a l right;

(4)

P r e v e n t i n g the w o m a n i n e n g a g i n g i n a n y legitimate p r o f e s s i o n , o c c u p a t i o n , business or activity o r c o n t r o l l i n g the victim's o w n m o n e y o r p r o p e r t i e s , or solely c o n t r o l l i n g the c o n j u g a l or common money, or properties;

(f) Inflicting or t h r e a t e n i n g to inflict physical h a r m on oneself for the p u r p o s e of c o n t r o l l i n g h e r actions or decisions; ( g ) C a u s i n g o r a t t e m p t i n g t o cause the w o m a n o r h e r child to e n g a g e in a n y s e x u a l activity w h i c h does not constitute r a p e , by force or t h r e a t of force, physical h a r m , o r t h r o u g h intimidation directed a g a i n s t the w o m a n o r her child or her/his immediate family; ( h ) E n g a g i n g i n p u r p o s e f u l , k n o w i n g , o r reckless conduct, p e r s o n a l l y or t h r o u g h a n o t h e r , that a l a r m s or causes substantial emotional or psychological distress to the w o m a n or her child. T h i s shall include, b u t not be limited to, the f o l l o w i n g acts: (1)

S t a l k i n g or f o l l o w i n g the w o m a n or her child in p u b l i c or private places;

(2)

P e e r i n g in the w i n d o w or l i n g e r i n g outside the residence of the w o m a n or her child;

731


(3)

E n t e r i n g or r e m a i n i n g in the d w e l l i n g or on the property of the w o m a n or her child against her/his will;

(4)

Destroying the p r o p e r t y a n d personal b e l o n g i n g s or inflicting h a r m to animals or pets of the w o m a n or her child; a n d

(5)

E n g a g i n g in any f o r m of h a r a s s m e n t or violence;

(i) C a u s i n g mental o r emotional a n g u i s h , p u b l i c ridicule or humiliation to the w o m a n or h e r child, including, but not limited to, r e p e a t e d v e r b a l a n d emotional a b u s e , a n d denial of financial s u p p o r t or custody of m i n o r c h i l d r e n of access to the woman's child/children. S E C T I O N 6. Penalties. — T h e crime of violence a g a i n s t w o m e n a n d their c h i l d r e n , u n d e r Section 5 h e r e o f shall be p u n i s h e d a c c o r d i n g to the f o l l o w i n g rules: ( a ) Acts falling u n d e r Section 5 ( a ) constituting attempted, f r u s t r a t e d o r c o n s u m m a t e d p a r r i c i d e o r m u r d e r o r homicide shall b e p u n i s h e d i n a c c o r d a n c e w i t h the provisions of the R e v i s e d P e n a l C o d e . If these acts resulted in mutilation, it shall be p u n i s h a b l e in a c c o r d a n c e w i t h the R e v i s e d P e n a l C o d e ; those constituting serious physical i n j u r i e s shall h a v e the p e n a l t y of p r i s o n m a y o r ; those constituting less s e r i o u s p h y s i c a l i n j u r i e s shall be p u n i s h e d by prision correccional; a n d those constituting slight physical injuries shall be p u n i s h e d by arresto mayor. Acts falling u n d e r Section 5 ( b ) shall b e p u n i s h e d b y i m p r i s o n m e n t o f t w o d e g r e e s l o w e r t h a n the p r e s c r i b e d penalty for the c o n s u m m a t e d c r i m e as specified in the p r e c e d i n g p a r a g r a p h b u t shall i n n o case b e l o w e r t h a n arresto mayor. ( b ) Acts falling u n d e r Section 5(c) a n d 5 ( d ) shall b e p u n i s h e d by arresto mayor; (c) prision

Acts falling u n d e r Section 5(e) shall b e p u n i s h e d b y correccional;

( d ) A c t s falling u n d e r Section 5(f) shall b e p u n i s h e d b y arresto mayor; 732

RAPE

( e ) Acts falling u n d e r Section 5 ( g ) shall b e p u n i s h e d b y prision mayor; (f) Acts falling u n d e r Section 5(h) a n d Section 5(i) shall be p u n i s h e d by prision mayor. I f the acts a r e committed w h i l e the w o m a n o r child is p r e g n a n t or committed in the p r e s e n c e of h e r child, the penalty t o b e a p p l i e d shall b e the m a x i m u m p e r i o d o f penalty p r e s c r i b e d in the section. In a d d i t i o n to i m p r i s o n m e n t , the p e r p e t r a t o r shall ( a ) p a y a fine in the a m o u n t of not less t h a n O n e h u n d r e d t h o u s a n d pesos (P100,000.00) b u t not m o r e t h a n t h r e e h u n d r e d t h o u s a n d pesos (P300,000.00); ( b ) u n d e r g o m a n d a t o r y psychological c o u n s e l i n g o r psychiatric t r e a t m e n t a n d shall r e p o r t c o m p l i a n c e to the court. S E C T I O N 7. Venue. — T h e R e g i o n a l T r i a l C o u r t d e s i g n a t e d as a F a m i l y C o u r t shall h a v e o r i g i n a l a n d exclusive j u r i s d i c t i o n o v e r cases of violence a g a i n s t w o m e n a n d their c h i l d r e n u n d e r this l a w . I n the a b s e n c e o f such court in the place w h e r e the offense w a s committed, the case shall be filed in the R e g i o n a l T r i a l C o u r t w h e r e the crime or any of its elements w a s committed at the option of the complaint. xxx

xxx

xxx

S E C T I O N 21. Violation of Protection Orders. — A complaint for a violation of a B P O issued u n d e r this A c t must b e f i l e d directly w i t h a n y m u n i c i p a l trial court, metropolitan trial court, or m u n i c i p a l circuit trial court that has territorial jurisdiction o v e r the b a r a n g a y that issued the B P O . Violation of a B P O shall be p u n i s h a b l e by imprisonment of thirty (30) days w i t h o u t p r e j u d i c e to a n y other criminal or civil action that the offended p a r t y m a y file for any of the acts committed. A j u d g m e n t of violation of a B P O m a y be a p p e a l e d a c c o r d i n g to the Rules of C o u r t . D u r i n g trial a n d upon j u d g m e n t , the trial court m a y motu proprio issue a protection o r d e r as it deems necessary without need of an application. Violation of any provision of a T P O or P P O issued u n d e r this A c t shall constitute contempt of court punishable u n d e r 733


Rule 71 of the Rules of C o u r t , without prejudice to any other criminal or civil action that the offended p a r t y m a y file for any of the acts committed. S E C T I O N 22. Applicability of Protection Orders to Criminal Cases. — T h e f o r e g o i n g provisions on protection o r d e r s shall be a p p l i c a b l e in impliedly instituted w i t h the criminal actions involving violence against w o m e n a n d their children. S E C T I O N 23. Bond to Keep the Peace. — T h e C o u r t m a y o r d e r any person against w h o m a protection o r d e r is issued to give a b o n d to keep the peace, to present t w o sufficient sureties w h o shall u n d e r t a k e that such p e r s o n w i l l not commit the violence s o u g h t to be p r e v e n t e d . S h o u l d the r e s p o n d e n t fail to give the b o n d as r e q u i r e d , he shall be detained for a p e r i o d w h i c h shall in no case exceed six (6) months, if he shall h a v e b e e n p r o s e c u t e d for acts p u n i s h a b l e u n d e r Section 5 ( a ) to 5(f) a n d not e x c e e d i n g thirty (30) days, if for acts p u n i s h a b l e u n d e r Section 5 ( g ) to 5(1). T h e protection o r d e r s r e f e r r e d to in this section a r e the T P O s a n d the P P O s issued only b y the courts. S E C T I O N 24. Prescriptive Period. — A c t s f a l l i n g u n d e r Sections 5 ( a ) to 5(f) shall p r e s c r i b e in t w e n t y (20) y e a r s . A c t s falling u n d e r Sections 5 ( g ) to 5(i) shall p r e s c r i b e in ten (10) years. S E C T I O N 25. Public Crime. — V i o l e n c e a g a i n s t w o m e n a n d their c h i l d r e n shall be c o n s i d e r e d a p u b l i c offense w h i c h m a y b e p r o s e c u t e d u p o n the f i l i n g o f a c o m p l a i n t b y a n y citizen h a v i n g p e r s o n a l k n o w l e d g e o f the c i r c u m s t a n c e s i n v o l v i n g the commission of the c r i m e . S E C T I O N 26. Battered Woman Syndrome as a Defense. — V i c t i m - s u r v i v o r s w h o a r e f o u n d b y the c o u r t s t o b e s u f f e r i n g f r o m b a t t e r e d w o m a n s y n d r o m e d o not i n c u r a n y c r i m i n a l a n d civil liability n o t w i t h s t a n d i n g the a b s e n c e of a n y of the elements for justifying c i r c u m s t a n c e s of self-defense u n d e r the R e v i s e d P e n a l C o d e . I n the d e t e r m i n a t i o n o f the state o f m i n d o f the w o m a n w h o w a s s u f f e r i n g f r o m b a t t e r e d w o m a n s y n d r o m e a t the 734

RAPE

time of the commission of the crime, the courts shall be assisted by e x p e r t psychiatrists/psychologists. S E C T I O N 27. Prohibited Defense. — B e i n g u n d e r the influence of alcohol, a n y illicit d r u g , or a n y other m i n d a l t e r i n g substance shall not be a defense u n d e r this Act. S E C T I O N 28. Custody of children. — T h e w o m a n victim of violence shall be entitled to the custody a n d s u p p o r t of h e r child/children. C h i l d r e n b e l o w seven (7) y e a r s old o l d e r b u t w i t h m e n t a l or physical disabilities shall automatically be given to the m o t h e r , w i t h r i g h t to s u p p o r t , unless the court finds compelling reasons to order otherwise. A victim w h o is s u f f e r i n g f r o m b a t t e r e d w o m a n s y n d r o m e shall not b e disqualified f r o m h a v i n g custody o f h e r c h i l d r e n . In no case shall custody of m i n o r c h i l d r e n be given to the p e r p e t r a t o r of a w o m a n w h o is suffering f r o m battered w o m a n syndrome. xxx

xxx

xxx

S E C T I O N 33. Prohibited Acts. — A Punong Barangay, Barangay Kagawad or the c o u r t h e a r i n g an application for a protection o r d e r shall not o r d e r , direct, force or in any w a y u n d u l y influence he a p p l i c a n t for a protection o r d e r to c o m p r o m i s e or a b a n d o n a n y of the reliefs sought in the application for protection u n d e r this A c t . Section 7 of the F a m i l y C o u r t s A c t of 1997 a n d Sections 410, 411, 412 a n d 413 of the L o c a l G o v e r n m e n t C o d e of 1991 shall not a p p l y in p r o c e e d i n g s w h e r e relief is sought u n d e r this Act. F a i l u r e to comply w i t h this Section shall r e n d e r the official or j u d g e istratively liable. S E C T I O N 34. Persons Intervening Exempt from Liability. — In every case of violence against w o m e n a n d their children as h e r e i n defined, any person, private individual or police authority or b a r a n g a y official w h o , acting in accordance with l a w , responds or intervenes without using violence or restraint g r e a t e r than necessary to ensure the safety of the victim, shall not be liable for any criminal, civil or istrative liability resulting therefrom. xxx

xxx 735

xxx


S E C T I O N 44. Confidentiality. — A l l records p e r t a i n i n g to cases of violence against w o m e n a n d their children including those in the b a r a n g a y shall be confidential a n d all public officers a n d employees a n d p u b l i c or private clinics to hospitals shall respect the right to p r i v a c y of the victim. W h o e v e r publishes or causes to be p u b l i s h e d , in any format, the n a m e , address, telephone n u m b e r , school, business address, employer, or other identifying information of a victim or an immediate family m e m b e r , w i t h o u t the latter's consent, shall be liable to the contempt p o w e r of the court. A n y p e r s o n w h o violates this p r o v i s i o n shall suffer the penalty of one (1) y e a r i m p r i s o n m e n t a n d a fine of not m o r e than F i v e H u n d r e d T h o u s a n d pesos (P500,000.00). xxx S E C T I O N 47. Suppletory Application. — F o r p u r p o s e s of this A c t , the R e v i s e d P e n a l C o d e a n d other a p p l i c a b l e l a w s , shall h a v e s u p p l e t o r y a p p l i c a t i o n . xxx

xxx

xxx

S E C T I O N 49. Repealing Clause. — A l l l a w s , P r e s i d e n t i a l decrees, executive o r d e r s a n d rules a n d r e g u l a t i o n s , o r p a r t s thereof, inconsistent w i t h the p r o v i s i o n s of this A c t a r e h e r e b y r e p e a l e d o r modified a c c o r d i n g l y . xxx S E C T I O N 50. Effectivity. — T h i s A c t shall t a k e effect fifteen (15) d a y s f r o m the date of its complete p u b l i c a t i o n in a t least t w o (2) n e w s p a p e r s o f g e n e r a l c i r c u l a t i o n . A p p r o v e d : M a r c h 08, 2004. (For the other provisions of the law and annotations, see Notes and Cases on Special Penal L a w s by the same author) •

What constitutes violence against women and children? "Violence against women and their children" covers any act or series of acts by any person against his wife, former wife, or with whom the person has or had sexual or dating

736

RAPE

relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. "Battery" is inflicting physical harm upon the woman or her child resulting to the physical and psychological or emotional distress. "Stalking" is the intentional act by one who knowingly and without lawful justification follows a woman or her child or places them under surveillance directly or indirectly or a combination thereof. "Dating relationship" is a situation wherein unmarried parties live as husband and wife or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship. "Sexual relations" refers to a single sexual act which may or may not result in the bearing of a common child. "Children" are those below 18 or older but are incapable of taking care of themselves as defined under R . A . 7610. T h e term includes biological children of victim and other children under her care. •

What are the acts of violence punished under the law? 1.

Sexual violence which includes: a)

rape, sexual harassment, acts of lasciviousness, treating a woman or her child as sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the ab;

b)

acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion; 737


c)

Prostituting the woman or her child.

Psychological violence or those acts or omissions causing or likely to cause mental or emotional suffering of the victim such as intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children. Economic abuse that make or attempt to make a woman financially dependent which includes: a.

withdrawal of financial or preventing victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds as defined in Article 73 of the Family Code;

b.

deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common;

c.

destroying household property;

d.

controlling the victim's own money or properties or solely controlling the conjugal money or properties.

Battering, assault, coercion, harassment or arbitrary deprivation of liberty committed as follows: a.

Causing physical harm to the woman or her child;

b.

Threatening to physical harm;

c.

Attempting to cause the woman or her child physical harm;

cause

738

the

woman

or

her child

RAPE

Placing the woman or her child in fear of imminent physical harm; Attempting to compel or compelling the woman or her child to engage in conduct which they have the right to desist from or to desist from conduct which they have the right to engage in, or attempting to restrict or restricting the their freedom of movement or conduct by force, threat of force, physical or other harm, threat thereof, intimidation directed against the woman or child. This includes the following acts for the purpose or effect of controlling or restricting the woman's or her child's movement or conduct: Threatening to deprive or actually depriving woman or her child of custody to her/his family; D e p r i v i n g or threatening to deprive them of financial legally due her or her family, or deliberately providing the woman's children insufficient financial ; Depriving or threatening to deprive them of a legal right; Preventing her from engaging in legitimate profession, occupation, business or activity or controlling her own money or properties, or solely controlling conjugal or common money, or properties; Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; Causing or attempting to cause woman or her child to engage in any sexual activity not constituting rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family; Engaging in purposeful, knowing or reckless conduct, personally or through another that alarms or causes substantial emotional or psychological distress, e.g.: 739


Stalking or following the woman or her child in public or private places; Peering in the window or lingering outside their residence Entering/remaining in their property against her will;

dwelling

or

Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and Engaging violence; i.

in

any

form

of harassment

Causing mental or emotional anguish, ridicule, humiliation to the woman or her including repeated verbal and emotional denial of financial or custody of children or access to her child/children.

or

public child, abuse, minor

If these acts are committed while the woman or her child is pregnant or committed in the presence of her child, the maximum period of the penalty prescribed shall be imposed. What protective policies were put in place under the law? 1.

Victims suffering from the battered w o m a n syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the R P C . (Section 26)

2.

Protection order shall be issued to prevent further acts of violence against a woman or her child and granting other necessary relief to be enforced by law enforcement agencies. These are the Barangay Protection Order, Temporary Protection Order and Permanent Protection Order. T h e relief shall be granted even in absence of decree of legal separation/annulment or declaration of absolute nullity of marriage. It granted ex parte.

3.

A petition for protection order may be filed by any of: the offended party; 740

RAPE

parents or guardians of the offended party; ascendants, descendants collateral relatives within fourth civil degree of consanguinity or affinity; officers or social workers of the D S W D or of L G U s ; police officers, preferably those in charge of women and children's desks; Punong Barangay or Barangay K a g a w a d ; lawyer, counselor, therapist or healthcare provider of the petitioner; at least t w o concerned responsible citizens of city/ municipality where committed and who has personal knowledge of the offense committed. T h e orders are enforceable anywhere in country. Violation thereof shall be punished with fine of P5,000 to P50,C00 and/or imprisonment of six months. People v. Genosa, G . R . N o . 135981, J a n u a r y 15, 2004 •

W h o is a battered woman? A battered woman ( B W ) is one who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. BW includes wives or women in any form of intimate relationship with men. To be classified as such, the couple must go through the battering cycle at least twice. A n y woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is a B W . BW exhibit common personality traits, such as low selfesteem, traditional beliefs about the home, the family and the female sex role; emotional dependence upon the dominant male; the tendency to accept responsibility for the batterer's actions; and false hopes that the relationship will improve.

741


• What are the characteristics of the "battered woman syndrome"? The battered woman syndrome ( B W S ) is characterized by the "cycle of violence," which has three phases: (1) the tensionbuilding phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase. At the tension-building phase, minor battering occurs — verbal, physical abuse or other form of hostile behavior. The woman tries to pacify the batterer but this placatory/ive behavior legitimizes her belief that the man has the right to abuse her. At some point, violence "spirals out of control" and leads to acute battering incident. Acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. T h e BW deems this incident as unpredictable, yet also inevitable. At this stage, she has a sense of detachment from the attack and the terrible pain. Acute battering incidents are often very savage and out of control, that bystanders or intervenors likely to get hurt. The final phase of cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. »

What effect does the recurrence of the cycle of violence have upon the woman victim? Because of the recurring cycles of violence experienced by the B W , her state of mind metamorphoses. In determining her state of mind, expert evidence on psychological effect of battering on wives and common law partners are relevant and necessary. Expert opinion is essential to clarify and refute myths and misconceptions about B W . "Overwhelming brutality, trauma" could result in post traumatic stress disorder, a form of "anxiety neurosis or neurologic anxcietism." After being repeatedly and severely abused, B W s believe that they are essentially helpless, lacking power to change their situation. Acute battering incidents can have the effect of stimulating the development of coping responses to the trauma at the expense of the victim's ability to muster an active response to try to

742

RAPE

escape further trauma. She ceases to believe that anything she can do will have a predictable positive effect. Just as she believes that she may be responsible for violent behavior of her partner, she also believes that he is capable of killing her and that there is no escape. She feels unsafe, suffers from pervasive anxiety, and usually fails to leave the relationship. •

What is the nature of the defense of battered woman syndrome? It is a form of self-defense which is a justifying circumstance. W h e r e the brutalized person is already suffering from the syndrome, further evidence of actual physical assault at the time of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To require the battered person to await an obvious, deadly attack before she can defend her life "would amount to sentencing her to 'murder by installment.'" Still, impending danger prior to defendant's use of deadly force must be shown. Threatening behavior or communication can satisfy the required imminence of danger. Considering such circumstances and the existence of the B W S , self-defense may be appreciated.

•

For the defense of battered woman syndrome to absolve the offender, what must the battered woman prove? T h e defense must prove that all three phases of cycle of violence have occurred at least twice. Here, the defense fell short of proving the cycle supposedly characterizing the relationship of BB and M M . There were acute battering incidents as she explained in detail typical characteristics of this stage. However, that single incident does not prove the existence of the B W S . She failed to prove that in at least another battering episode in the past, she had gone through a similar pattern. In criminal cases, all elements of modifying circumstance must be proven. The existence of the B W S in a relationship does not in itself establish legal right of woman to kill her partner. Evidence must still be considered in the context of self-defense. Crucial to this defense is her state of mind at the time of the offense — she must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life. The one who resorts to self-defense must face a real threat on his life; the peril sought to be avoided must be imminent and actual, not merely imaginary. 743


Unlawful aggression is the most essential element of selfdefense. It presupposes actual, sudden and unexpected attack — or an imminent danger thereof — on the life or safety of a person. According to M M , there was sufficient time interval between the unlawful aggression of BB and her fatal attack upon him. She had already withdrawn from his violent behavior and escaped to their children's bedroom. He apparently ceased his attack and went to bed. The reality or even the imminence of the danger he posed had ended altogether. Aggression, if not continuous, does not warrant selfdefense. In the absence of such aggression, there can be no selfdefense — complete or incomplete — on the part of the victim. Thus, M M ' s killing of BB was not completely justified. In fine, for B W S to justify the killing: 1.

Each of the phases of cycle of violence must be proved to have characterized at least two battering episodes.

2.

T h e final acute battering episode preceding the killing of batterer must have produced in her mind an actual fear of an i m m i n e n t harm from batterer and an honest belief that she needed to use force in order to save her life.

3.

At the time of killing, the batterer must have posed probable — not necessarily immediate and actual — grave harm to accused based on the history of violence by the former against the latter.

Taken altogether, these circumstances could satisfy the requisites of self-defense. (Section 26 of R . A . 9262 provides that the victim shall not incur any criminal liability despite the absence of any of the elements of justifying circumstance of self-defense in Article 11. Genosa was promulgated prior to R . A . 9262.) If the invocation of self-defense fails, what shall the battered woman syndrome amount to? It gives rise to two mitigating circumstances: (a) psychological paralysis or diminution of freedom of action, intelligence or intent analogous to illness that diminishes 744

RAPE

exercise of will power without depriving her of consciousness of her acts, and (b) ion and obfuscation, of having acted upon an impulse so powerful as to have naturally produced ion and obfuscation. This state of mind is present when a crime is the result of an uncontrollable burst of ion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome reason, as in acute battering incident. These two circumstances did not arise from the same set of facts. T h e first circumstance arose from the cyclical nature and severity of battery. T h e second is from violent aggression he had inflicted on her prior to the killing. T h a t the incident occurred when she was eight months pregnant was deemed by her as an attempt not only on her life, but likewise on that of the unborn child which naturally produced ion and obfuscation on her part.

745

TITLE NINE

C R I M E S A G A I N S T P E R S O N A L LIBERTY AND SECURITY What crimes are covered by Title 9? 1. Kidnapping and Serious Illegal Detention (267); 2. Slight Illegal Detention (268); 3. Unlawful arrest (269); 4. Kidnapping and failure to return a minor (270); 5. Inducing a minor to abandon his home (271); 6. Slavery (272); 7. Exploitation of child labor (273); 8. Services rendered in compulsion of payment of debt (274); 9. Abandonment of persons in danger and one's victim (275); 10. Abandoning a minor (276-77); 11.

Exploitation of minors (278-79);

12.

Qualified tres to dwelling (280);

13.

Other forms of tres (tres to property) (281);

14.

Grave threats, light threats, other light threats (282-85);

15.

Grave coercions, light coercions (286-89);

16.

Discovery and revelation of secrets (290-92).

746

Chapter One CRIMES A G A I N S T LIBERTY Section O n e . — Illegal detention A r t . 267. Kidnapping and serious illegal detention. — A n y p r i v a t e i n d i v i d u a l w h o shall k i d n a p o r d e t a i n another, o r i n any other m a n n e r d e p r i v e h i m of his liberty, shall suffer the penalty of reclusion perpetua to death: 1.

If the k i d n a p p i n g or detention shall h a v e lasted more than three days.

2.

If it shall h a v e b e e n committed s i m u l a t i n g p u b l i c authority.

3.

If a n y s e r i o u s p h y s i c a l injuries shall h a v e b e e n inflicted u p o n the p e r s o n k i d n a p p e d o r detained, or if threats to kill h i m shall h a v e b e e n m a d e .

4.

If the p e r s o n k i d n a p p e d or d e t a i n e d shall be a m i n o r , except w h e n the a c c u s e d is a n y of the p a r e n t s , female or a p u b l i c officer.

T h e penalty shall b e d e a t h w h e r e the k i d n a p p i n g or detention w a s committed for the p u r p o s e of extorting r a n s o m f r o m the victim or a n y other p e r s o n , even if none of the circumstances a b o v e m e n t i o n e d w e r e present in the commission of the offense. W h e n the victim is killed or dies as a consequence of the detention or is r a p e d , or is subjected to torture or d e h u m a n i z i n g acts, the m a x i m u m penalty shall be imposed. (As amended by Sec. 8, R.A. No. 7659.) •

What is the essence of kidnapping? The essence of kidnapping is restraint or deprivation of liberty, or that the victim was transported away against his will with the primary or original intent to effect that restraint or deprivation. 747


Cabanag, 8 Phil. 64(1907), said that in arbitrary or illegal detention, it is essential that there is actual confinement or restriction of the person of the offended party. T h e deprivation of liberty must be proved, just as the intent of the accused to deprive the victim of his liberty. Fajardo, G.R. Nos. 105954-55, September 28,1999, reiterated the above ruling that there must be uncontroverted proof of both intent to deprive the victim of his liberty, as well as actual confinement or restriction. An uncorroborated circumstantial evidence is insufficient for conviction when the evidence itself is in serious doubt. The prosecution was not able to prove a possible motive w h y accused would arbitrarily detain SS. (People v. Flores, G.R. No. 116488, May 31, 2001) The primary element of kidnapping is actual confinement, detention and restraint of the victim. T h e intent of the accused to deprive the victim of the latter's liberty, in any manner, must be established by indubitable proof. (People v. Ubongen, G.R. No. 126024, April 20, 2001) When shall deprivation of liberty fall under Article 267? Kidnapping may be committed whether or not the victim is transported from one place to another or just detained or deprived of liberty without transportation. Detention constitutes kidnapping and serious illegal detention if any one of the following attended its commission: 1.

The detention lasted more than three days;

2.

The offenders simulated public authority;

3.

Physical injuries w e r e inflicted on the victim;

4.

Threats to kill the victim w e r e made; or

5.

T h e victim is a female, public officer, or minor except when accused is any of the parents. T h e following are the qualifying circumstances:

1.

Ransom is demanded;

2.

T h e victim is killed or dies as a consequence;

3.

T h e victim is raped; or

4.

T h e victim is subjected to torture or dehumanizing acts.

748

C R I M E S A G A I N S T LIBERTY

Kidnapping for ransom was committed as the essential element that the victim must have been restrained or deprived of his liberty was present when both victims were tied and when the gun was brandished and fired to intimidate them. In addition, accused recorded a ransom demand with the intention of sending it to RR's parents. T h e records indicate that accused intended to detain only RR and hold him for ransom as he was the son of a gasoline owner. T h e same cannot be said of Q Q . They could not have possibly detained and held him for ransom as he was the son of a jeepney driver. Thus, the crime with respect to QQ should be homicide and not kidnapping with murder since they never intended to hold QQ for ransom. Accused's query as to his preference on the manner of his death shows the former's intent to kill the latter. As treachery was not alleged in the information, it could not have qualified the crime to murder. (People v. Nunez, G.R. Nos. 112429-30, July 23, 1997) •

Will any and all kinds of deprivation result to kidnapping? N o . For kidnapping to exist, there must be proof that the intent of the malefactors was to deprive the offended of her liberty, and not where such restraint of freedom of action was merely an incident in the commission of another offense primarily intended by the offenders. T h e detention or forcible taking of the victims even for an appreciable period of time but for the primary and ultimate purpose of killing them, holds the offenders liable for taking their lives or such other offenses they committed in relation thereto, but the incidental deprivation of the victims' liberty does not constitute kidnapping and serious illegal detention. (People v. Puno, G.R. No. 97471, February 17, 1993) The essential object is to kidnap or detain another or in any other manner deprive him of his liberty. The idea of kidnapping in this case has been the result of the continuous but uninformed use of that term by the peace officers involved in the investigation. The offense actually committed is robbery with homicide.

749


As far as SS understood it, and as far as may be deduced from the evidence, the plan was not so much to capture W and deprive him of liberty, even less to assassinate him, but to steal his Pajero by violent means. The kidnapping was not the principal objective; it was merely incidental to the forcible taking of the vehicle. Unfortunately, by reason or on the occasion of the seizure of the Pajero, its driver was killed, and the lone enger seriously wounded. (People v. Sinoc, G.R. No. 113511-12, July 11, 1997; People v. Astor, April 1987) (Had the crimes been committed after December 31, 1993 — the date of effectivity of R . A . 7659 — SS would have been penalized under Section 14 for carnapping with homicide.) Who should be the offender in kidnapping? The offender must be a private individual. Thus, accused cannot be charged with or convicted of kidnapping and serious illegal detention for they were of the C A F G U at the time the alleged crime was committed. (People v. Flores, G.R. No. 116488, May 31, 2001) What special complex crimes may arise in kidnapping? Kidnapping with homicide, kidnapping with rape, kidnapping with physical injuries are special complex crimes or composite crimes. T h e last paragraph of Article 267 provides that when the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. T h e killing, rape or physical injuries are not separate crimes but are circumstances which convert the kidnapping into special complex crime. These are not complex crimes under Article 48 for there is a specific provision specifying the penalty for the specific crimes composing the single indivisible felonies treated in this article. But this is only true if the kidnap victim was killed, raped or tortured. It is unlike in robbery with homicide where it does not matter whether it is the victim or one of the robbers themselves who is killed. In kidnapping if the one killed were a third person, there will be two separate offenses and

750


if such third person is a policeman rescuing the victim, the second crime will be direct assault with homicide because the policeman is an agent of a person in authority. •

What is the nature of the crime committed when the kidnapped victim was killed by his abductor? Ramos, 297 S C R A 618, citing Parodan v. Rodas, 78 Phil. 855 summarized the rules on the correct designation of the crime when the kidnapped victim is killed by his abductor. Prior to 31 December 1993, the date of effectivity of R . A . 7659, the rule was that where the kidnapped victim was subsequently killed by his abductor, the crime committed would either be a complex crime of kidnapping with murder under Article 48 or two separate crimes of kidnapping and murder. Thus, where the accused kidnapped the victim for the purpose of killing him, and he was in fact killed by his abductor, the crime committed was the complex crime of kidnapping with murder under Article 48, as the kidnapping of the victim was a necessary means of committing the murder. On the other hand, where the victim was kidnapped not for the purpose of killing him but was subsequently slain as an afterthought, two separate crimes of kidnapping and murder were committed. However, R . A . 7659 amended Article 267 by adding a last paragraph which provides that when the victim is killed or dies as a consequence of the detention, or raped, or subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. This amendment introduced the special complex crime of kidnapping with murder or homicide. It effectively eliminated the distinction drawn by the courts between those cases where the killing of the kidnapped victim was purposely sought by the accused, and those where the killing of the victim was not deliberately resorted to but was merely an afterthought. Consequently, the rule now is: Where the person kidnapped is killed in the course of the detention, regardless of whether the killing was purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no longer be complexed under Article 48 nor treated as separate crimes, but shall be punished as a special complex crime under the last paragraph of Article 267, as amended by R . A . 7659. (People v. Rimorin, 332 SCRA 178) 751


R . A . 9346 removed the distinction between simple kidnapping and kidnapping with homicide, for the penalty shall be the same — reclusion perpetua. Even if the kidnappers will kill the victim to eliminate possible witnesses against them or several persons will be killed or rapes will be committed against the victim, the penalty will just be the same — reclusion perpetua.) •

How should the composite crime be denominated? The crime is denominated kidnapping with homicide. Homicide is used in the generic sense and includes murder because killing is not a crime but a qualifying circumstance. This is a single indivisible offense, not a complex crime under Article 48. Regardless of the number of persons killed (who must be the kidnap victims) there is one crime only of kidnapping with homicide. T h e killing or death here is with reference only to the victim; if other persons were killed, killing is a separate crime. (Rimorin said that R.A. 7659 introduced kidnapping with murder or homicide. Since this is a special complex crime and the law says "is killed or dies," homicide should be used in the generic sense to include murder.)

•

When is the crime homicide or murder and not kidnapping? W h e r e the taking of the victim was incidental to the basic purpose to kill, the crime is murder, and this is true even if before the killing but for purposes thereof, the victim was taken from one place to another. Thus, where the evident purpose of taking the victim was to kill them, and from the acts of the accused it cannot be inferred that the purpose was actually to detain or deprive the victims of their liberty, the subsequent killing of the victims constitute the crime of murder, hence, the crime of kidnapping does not exist and cannot be considered as a component felony to produce the crime of kidnapping with homicide. T h e crime was murder qualified by treachery and abuse of superior strength. T h e essential element in kidnapping that the victim have been restrained or deprived of his liberty, or that he was transported away against his will with the primary or original intent to effect that restraint, is absent. The malefactors evidently had only murder in their hearts 752


when they invited FF to go with them, and not to confine or detain him for any length of time or for any other purpose. He was neither forced nor coerced in going along with his killers. He voluntarily boarded the car and went with the accused. That from the beginning of their criminal venture, accused intended to kill the victim can readily be deduced from the manner by which they swiftly and cold-bloodedly snuffed out his life once they reached the isolated plantation in Laguna. There was no evidence to show that from the outset, the accused intended to exchange his freedom for ransom. T h e ransom appears to be an afterthought, as it was relayed to the victim's family very late in the afternoon after a sufficient interval for consultation and deliberation among the felons who had killed the victims five hours earlier. (People v. Marajas, April 1993) •

Where detention and killing of the victim both occurred, what will determine the crime was committed? W h e r e the taking of the victim was incidental to the basic purpose to kill, the crime is only murder even if, before the killing but for purposes thereof, the victim was taken from one place to another. Although the accused had planned to kidnap the victim for ransom and they demanded and obtained the money, such demand for ransom did not convert the crime into kidnapping since no detention or deprivation of liberty was involved, hence, the crime committed was only murder, (id.) Where the detention of the victim is not shown to have been for the purpose of liquidating him, the crime is kidnapping under Article 267, not murder. Although the accused were charged for kidnapping with murder which was a complex crime before R.A. 7659 took effect the accused can be convicted for one of the component offenses included in the complex crime charged, when properly established, despite the failure of evidence to hold the accused for the other offense. The fact that two of the accused are organic of the N A R C O M and regular of the P N P still they are liable for kidnapping (not arbitrary detention) as they acted neither in furtherance of official function nor in pursuit of their authority but in purely private capacity. (People v. Santiano, December 1998)

753


•

Will the fact alone that ransom is demanded indicative of kidnapping? N o . Under Article 267, that the kidnapping is perpetrated for the purpose of ransom raises the imposable penalty. It is essential, however, that the element of deprivation or restraint of liberty of the victim be present. T h e fact alone that ransom is demanded would not per se qualify the act of preventing the liberty of movement of the victim into kidnapping, unless the victim is actually restrained or deprived of his liberty for some appreciable period of time or that such restraint was the basic intent of the accused. Absent such determinant intent and duration of restraint, the mere curtailment of freedom of movement would at most constitute coercion. (People v. Marajas, Jr., April 1993)

•

What is ransom? Is it an element of kidnapping? It is the money, price or consideration paid or demanded for the redemption of a captured person, a payment that releases from captivity. W h e n ransom is demanded, the crime is kidnapping under Article 267. Tomio, 202 SCRA 77 said that even if what is demanded is due to the offender such as debt or rent, it is still ransom because predicated on the release of the victim. If the ransom note is late, i.e., the victim has already been rescued, it is not an impossible crime of kidnapping because this is a crime against security. T h e crime is already kidnapping even without the ransom, for ransom is merely a qualifying circumstance and not an element of this crime.

•

When is demand for money robbery, not kidnapping for ransom? Ransom is the payment that releases one from captivity. It can hardly be assumed that when complainant readily gave the cash/checks demanded of her at gunpoint, what she gave under the circumstances can be equated with or was in the concept of ransom in kidnapping. These w e r e merely amounts involuntarily surrendered by the victim upon the occasion of a robbery or of which she was summarily divested by appellants. Accordingly, the crime committed is robbery. (People v. Puno,

754


February 1993) (Here, motive is material for when variant crimes may arise in a particular case the motive of the offender will determine what crime the accused should be convicted of. In this case, the motive of the offenders was not to detain the complainant as in kidnapping but to divest her of valuables. •

Distinguish kidnapping from grave coercion. T h e Spanish version of Article 267 uses the term "lockup" (encerrar) rather than "kidnap" (secuestar or raptar). Lockup is included in the broader term of "detention" which refers not only to the placing of a person in an enclosure but also to any other deprivation of liberty which does not necessarily involve locking up. Grave coercion or coaccion grave has three elements: (a)

A n y person is prevented by another from doing something not prohibited by law, or compelled to do something against his w i l l be it right or wrong;

(b)

T h e prevention or compulsion is effected by violence either by material force or such display of it as would produce intimidation and consequently, control over the will of the offended party; and

(c)

The person who restrains the will and liberty of another has no right to do so, or in other words, the restraint is not made under authority of a law or in the exercise of any lawful right.

When a person is prevented from leaving or going to another place, the crime could either be kidnapping or grave coercion. T h e difference would now depend on whether or not there was an actual confinement or lockup of the victim. W h e n appellant forcibly dragged and slapped Y Y , he took away her right to go home. Appellant's forcible dragging of YY to a place only he knew cannot be said to be an actual confinement or restriction on the person of Y Y . There was no lockup. Accordingly, he cannot be convicted of kidnapping under Article 267. (People v. Astorga, G.R. No. 110097, December 22, 1997) (Contra: Dela Cruz, where the refusal of the offender to let go of a child, without "dragging" the victim was held as attempted kidnapping.) 755


•

Cite an example of kidnapping in the attempted stage. The accused held the victim's hand and refused to let go when the child asked to go over to her neighbor, who saw what was happening. This happened for a very brief span of time. There was a number of people present at the time, a guard was stationed at the gate, and there was at least a teacher nearby. (People u. Dela Cruz, G.R. No. 120988, August 11, 1997) The attempted phase is that stage when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution, which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. T h e overt act must be an external one which has a direct connection with the felony, it being necessary to prove that said beginning of execution, if carried to its complete termination, following its natural course without being frustrated by external obstacles or by the voluntary desistance of the offender, w i l l logically and necessarily ripen to a concrete offense. Accused already commenced her criminal scheme by taking hold of WW by the hand and leading her out of the school premises. These do not sufficiently establish that kidnapping had been consummated. (id.)

•

What distinguishes kidnapping from forcible abduction? T h e difference between kidnapping and forcible abduction is the presence or absence of l e w d designs. If the taking is with lewd designs, the crime is forcible abduction. If the original intent is to detain or deprive her of liberty, it is kidnapping. Although forcible abduction may be more reprehensible than kidnapping because of the presence of l e w d designs, the penalty for the abduction is lighter than that for kidnapping. Kidnapping with rape is a composite crime if the victim kidnapped is also raped. Rape here is not a crime but a qualifying circumstance. If at the outset, the taking is with lewd designs and rape was committed, the crime is forcible abduction with rape. A n d , if the woman is raped several times, only one rape will be complexed with the forcible abduction and 756


the rest will be separate crimes of rape. (People v. Garcia, G.R. No. 141125, February 28, 2002). Whereas, in kidnapping with rape, no matter how many rapes there are, there is only one kidnapping with rape. T h e excess rapes are not aggravating because rape is not one of the circumstances under Article 14. (People v. Regala, G.R. No. 130508, April 5, 2000) In kidnapping w i t h rape, both should be consummated. If rape was merely attempted, there w i l l be two separate crimes, because in composite crimes, the two offenses must exactly be what the law specified and in the stage of accomplishment stated therein. In forcible abduction, if the rape was merely attempted, there is no complex crime and neither separate crimes but only forcible abduction because the attempt to rape is merely a manifestation of the l e w d design. (People v. Jose, February 1971)

Distinguish between kidnapping with rape and forcible abduction with rape. Kidnapping with Rape: 1.

This is a composite crime or special complex crime or a single indivisible felony.

2.

There is no lewd design

3.

Rape is not a separate crime but a qualifying circumstance.

4.

Even if there are multiple rapes, there is only one kidnapping with rape. T h e excess rapes are absorbed.

5.

If rape was merely attempted, two separate crimes — kidnapping and attempted rape. Forcible Abduction with Rape:

1.

The crime is complex under Article 48 since forcible abduction is a necessary means to commit the rape.

2.

At the outset, there is lewd design.

3.

Rape is also a crime, not merely qualifying circumstance

4.

If there are multiple rapes, only the first rape shall be complexed with forcible abduction because the abduction

757


is necessary to commit only the first rape, and the other rapes will be treated as separate crimes. 5.

If rape is merely attempted, there is only forcible abduction, the attempt to rape is merely a manifestation of lewd designs.

For instance, four men abducted a woman with lewd designs and raped her successively. There should be separate information for the complex crime of forcible abduction with rape plus three informations for each rape of the offenders. For each rape, the four are liable. (People v. Jose) If the taking of the woman was without lewd designs and the rapes were committed merely as an afterthought, there will be one kidnapping with rape. The crime committed is not the complex crime of forcible abduction with rape, for forcible abduction is absorbed in the crime of rape if the real objective of the accused is but to rape the victim. (People v. Mendi, G.R. Nos. 112978-81, February 19, 2001; People v. Albior, G.R. No. 115079, February 19, 2001) If the injuries inflicted were merely slight, may the crime be kidnapping with physical injuries? Y e s . 'Tortured or subjected to dehumanizing act" results in kidnapping with physical injuries even if the physical injury inflicted is only slight. N o t e that this is not a complex crime under Article 48 where it is required that the crimes are grave and/or less grave, or a separate crime even if the physical injury is merely slight because kidnapping with physical injuries is a composite crime. Will the victim's disappearance negative criminal liability? W h a t is important is to determine and prove the fact of seizure, and the subsequent disappearance of the victim will not exonerate an accused from prosecution therefor. Otherwise, kidnappers can easily avoid punishment by the simple expedient of disposing of their victim's bodies. For the charge of kidnapping to prosper, the deprivation of the victim's liberty, which is the essential element of the offense, must be duly proved. (People v. Bernal, G.R. No. 113685, June 19, 1997)

758


A r t . 268. Slight illegal detention. — T h e penalty of reclusion temporal shall b e i m p o s e d u p o n a n y p r i v a t e i n d i v i d u a l w h o shall commit the c r i m e s d e s c r i b e d in the next p r e c e d i n g article w i t h o u t the a t t e n d a n c e of a n y of the circumstances enumerated therein. T h e s a m e p e n a l t y shall b e i n c u r r e d b y a n y o n e w h o shall f u r n i s h the p l a c e for the p e r p e t r a t i o n of the crime. If the offender shall v o l u n t a r i l y r e l e a s e the p e r s o n s o k i d n a p p e d o r d e t a i n e d w i t h i n t h r e e d a y s f r o m the c o m m e n c e m e n t of the detention w i t h o u t h a v i n g attained the p u r p o s e i n t e n d e d , a n d b e f o r e the institution of c r i m i n a l p r o c e e d i n g s a g a i n s t h i m , the p e n a l t y shall be prision mayor in its m i n i m u m a n d m e d i u m p e r i o d s a n d a fine not e x c e e d i n g 700 pesos. (As amended by Rep. Act No. 18, approved September 25, 1946.) •

When is slight illegal detention committed? T h e crime is slight illegal detention if none of the circumstances in kidnapping and serious illegal detention are present. W h e n ransom, however, is demanded, although none of the circumstances in Article 267 are present, kidnapping and serious illegal detention, is committed for Article includes detention for "the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above mentioned were present in the commission of the offense."

•

Compare slight illegal detention, and kidnapping and serious illegal detention. 1.

In slight illegal detention, none of the circumstances in kidnapping and serious illegal detention are present.

2.

In the former, voluntary release can mitigate the liability but not in the latter.

3.

The same penalty as the principal is incurred by anyone who shall furnish the place (accomplice) in slight illegal detention; in kidnapping the general rule on the penalty for accomplice is observed which is one degree lower.

759


•

What are the requisites for the specific mitigating circumstance of voluntary release?

a.

The release should have been made within three days from the commencement of the detention;

b.

The release must be made before the offender has accomplished his purpose; and

c.

It must be made before criminal prosecution has been commenced

A fourth requisite is that the crime should be slight illegal detention, not kidnapping because in the latter, voluntary release is not mitigating. A r t . 269. Unlawful arrest. — T h e penalty of arresto mayor a n d a fine not e x c e e d i n g 500 pesos shall be i m p o s e d u p o n a n y p e r s o n w h o , i n a n y case o t h e r t h a n those a u t h o r i z e d b y l a w , o r w i t h o u t r e a s o n a b l e g r o u n d t h e r e f o r , shall a r r e s t or detain a n o t h e r for the p u r p o s e of d e l i v e r i n g h i m to the p r o p e r authorities. •

What is the essence of the crime of unlawful arrest?

The purpose of the arrest must be to deliver the person arrested to the proper authorities but it was made without any reasonable ground. The arrest is without a warrant but not under the circumstances in Rule 113(5) of the RRR. If the offender did not turn over the arrested to the judicial authority, the crime will be kidnapping because the element of turnover of the victim to the judicial authorities is missing. •

W h o can commit the crime of unlawful arrest?

Unlike kidnapping which is committed only by private persons, unlawful arrest can be committed by private persons and by public officers (Morales v. Enrile, G.R. No. L-61016, April 26, 1983) as long as the purpose of the arrest is to bring the victim to proper authority and file a charge. If a charge is filed, the detention is deemed an incident of the arrest and filing of charges against him. It is the arrest that is penalized.

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In Article 124, the public officer had no intention to bring the offended to proper authorities but merely to detain the victim. If the public officer falsely imputes a crime against a person to be able to arrest him and appears not determined to file a charge against him, the crime is arbitrary detention. If he plants evidence against the victim, it is arbitrary detention through incriminating innocent persons under Article 363. •

What are the grounds for a lawful arrest without a warrant? A warrantless arrest under the circumstances in Section 5(a), Rule 113 is one "in flagrante delicto/' that under Section 5(b), a "hot pursuit" arrest. V a l i d warrantless searches are limited to: ( a ) customs searches; (b) search of moving vehicles; (c) seizure of evidence in plain v i e w ; (d) consent searches; (e) search incidental to a lawful arrest; and (f) "stop and frisk." (Malacat v. CA, G.R. No. 123595, December 12, 1997)

Section T w o . — Kidnapping of Minors A r t . 270. Kidnapping and failure to return a minor. — T h e penalty of reclusion perpetua shall be i m p o s e d u p o n any p e r s o n w h o , b e i n g e n t r u s t e d w i t h the custody of a m i n o r p e r s o n , shall d e l i b e r a t e l y fail to r e s t o r e the latter to his p a r e n t s or g u a r d i a n s . (As amended by R.A. No. 18.) •

•

What are the elements of the crime of failure to return a minor? (a)

T h e offender has been entrusted with the custody of the minor; and

(b)

He deliberately fails to restore said minor to his parents or guardians. (People v. Gutierrez, G.R. No. 81020, May 28, 1991)

What is the gravamen of the crime of failure to return a minor? The essential element is that the offender is entrusted with the custody of the minor but what is actually punishable is not the kidnapping of the minor, as the title of the article seems to indicate, but rather the deliberate failure or refusal of the custodian of the minor to restore the latter to his parents or guardians. Said failure or refusal must not only be deliberate 761


but must also be persistent as to oblige the parents or the guardians of the child to seek the aid of the courts in order to obtain custody. The key word deliberate. (People v. Ty, G.R. No. 121519, October 30, 1996) •

What is shown by the phrase "deliberately fails"? Black's L a w Dictionary defines "deliberate" as "Well advised; carefully considered; not sudden or rash; circumspect; slow in determining; willful rather than merely intentional; formed, arrived at, or determined upon as a result of careful thought and weighing of considerations, as a deliberate judgment or plan." By the use of this word in describing the crime, the perpetrator weighs the motives for the act and its consequences, the nature of the crime, or other things connected with his intentions, with a view to a decision thereon; that he carefully considers all these, and that the act is not suddenly committed. It implies that the perpetrator must be capable of the exercise of such mental powers as are called into use by deliberation and the consideration and weighing of motives and consequences. Essentially, the word deliberate as used in the article must imply something more than mere negligence; it must be premeditated, obstinate, headstrong, foolishly daring or intentionally and maliciously wrong. (People v. Gutierrez) (In People v. Ty, deliberate means more than mere negligence; in People v. Reyes, wanton and gross negligence denotes deliberate and willful failure.)

A r t . 271. Inducing a minor to abandon his home. — T h e p e n a l t y of prision correccional a n d a fine not e x c e e d i n g 700 pesos shall be i m p o s e d u p o n a n y o n e w h o shall i n d u c e a m i n o r t o a b a n d o n the h o m e o f his p a r e n t s o r g u a r d i a n s o r the p e r s o n s e n t r u s t e d w i t h his custody. If the p e r s o n committing a n y of the c r i m e s c o v e r e d by the t w o p r e c e d i n g articles shall be the f a t h e r or the m o t h e r of the m i n o r , the penalty shall be arresto mayor or a fine not e x c e e d i n g 300 pesos, or both. (As amended by R.A. No. 18.)

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(Note the error of the phrase "the two preceding articles" in Article 271 which literally refers to Articles 270 and 269, a totally unrelated provision to this article as it deals with unlawful arrest. It should be read as "this and the next preceding article.") •

Relate kidnapping with inducing a minor to abandon his home. Kidnapping cannot be committed by the parents of the minor because paragraph 4 of Article 267 says, "except when the accused is any of the parents." In Article 271, a parent can commit the crime against his own child. Thus, the kidnapping of a minor by the parent should be under Article 271. T h e kidnapping by the parent of his adult child would fall within Article 267 as that provision specified "minor." Section T h r e e . — Slavery and Servitude

A r t . 272. Slavery. — T h e p e n a l t y of prision mayor a n d a fine of not e x c e e d i n g 10,000 pesos shall be i m p o s e d u p o n a n y o n e w h o shall p u r c h a s e , sell, k i d n a p or detain a h u m a n b e i n g for the p u r p o s e of e n s l a v i n g h i m . If the crime be committed for the purpose of asg the offended party to some immoral traffic, the penalty shall be imposed in its m a x i m u m period. A r t . 273. Exploitation of child labor. — T h e penalty ofprision correccional in its m i n i m u m a n d m e d i u m p e r i o d s a n d a fine not exceeding 500 pesos shall be, i m p o s e d u p o n a n y o n e w h o , u n d e r the pretext of r e i m b u r s i n g himself of a d e b t i n c u r r e d by an ascendant, g u a r d i a n or p e r s o n entrusted with the custody of a minor, shall, a g a i n s t the latter's will, retain him in his service. A r t . 274. Services rendered under compulsion in payment of debt. — T h e penalty of arresto mayor in its m a x i m u m period to prision correccional in its m i n i m u m p e r i o d shall be imposed u p o n any person w h o , in o r d e r to r e q u i r e or enforce the payment of a debt shall compel the d e b t o r to w o r k for him, against his will, as household servant or f a r m l a b o r e r .

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•

Compare Articles 272, 273 and 274 with Article 267. These articles, although of a graver nature than simple detention under Article 267 are punished with a considerably lesser penalty. They are examples of lesser felonies absorbing a graver one.

•

Compare Article 274 with Article 287. In Article 274, it is the debtor that is seized while in Article 287, his property is seized to be applied to the debt.

Chapter Two CRIMES A G A I N S T SECURITY Section

O n e . — Abandonment of Helpless Persons and Exploitation of Minors

A r t . 275. Abandonment of persons in danger and abandonment of one's own victim. — T h e p e n a l t y of arresto mayor shall be imposed u p o n :

•

•

1.

A n y o n e w h o shall fail to r e n d e r assistance to a n y p e r s o n w h o m h e shall find i n a n u n i n h a b i t e d place w o u n d e d o r i n d a n g e r o f d y i n g , w h e n h e can r e n d e r such assistance w i t h o u t detriment to himself, unless such omission shall constitute a m o r e serious offense.

2.

A n y o n e w h o shall fail to h e l p or r e n d e r assistance t o a n o t h e r w h o m h e has accidentally w o u n d e d o r injured.

3.

A n y o n e w h o , h a v i n g f o u n d a n a b a n d o n e d child u n d e r seven y e a r s of a g e , shall fail to d e l i v e r said child to the authorities or to his family, or shall fail to take h i m to a safe p l a c e .

What are the different kinds of abandonment? a.

Failure to render assistance to a person found in an uninhabited place;

b.

Abandonment of one's own victim in an accident; and

c.

Failure to render assistance to a child below seven years old.

How should the word "uninhabited" be construed? Paragraph 1 applies only if the place is uninhabited. "Uninhabited" should mean a place where no one is roaming 765


around unlike in uninhabited place in Article 14 which refers to a place where no one resides within a radius of 200 meters. A park cannot qualify as an uninhabited place for purposes of this article as help is immediately available. Hence, if a person chanced upon an injured person in a park and he abandoned the latter, he cannot be charged of this crime. Practically, no one can be charged with this crime for lack of possible witness to the crime and it has become too dangerous to render assistance to another in a remote area. •

•

Compare "abandonment" in Article 275 with that in Article 365. 1.

If a person caused injury to another through accident under Article 12(4), he is not criminally liable, but if he fails to render assistance to the victim, he will be liable under Article 275(2). In Article 365, offender will be criminally liable for the injury caused.

2.

T h e cause of the injury in this article is accident as defined under Article 12(4); in Article 365, the cause of the injury is imprudence or negligence.

3.

Abandonment in Article 365 is a qualifying circumstance where the penalty is two degrees higher. Abandonment in this article is a crime with its own penalty.

How old should be the abondoned child? T h e child in this and in the next article should be under seven years old. If it w e r e seven years old or over, the liability of the offender will be under R . A . 7610.

A r t . 276. Abandoning a minor. — T h e p e n a l t y of arresto mayor a n d a fine not e x c e e d i n g 500 pesos shall be i m p o s e d u p o n a n y o n e w h o shall a b a n d o n a c h i l d u n d e r seven y e a r s o f a g e , the custody of w h i c h is i n c u m b e n t u p o n h i m . W h e n the d e a t h o f the m i n o r shall r e s u l t f r o m s u c h a b a n d o n m e n t , the c u l p r i t shall be p u n i s h e d by prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s ; b u t if the life of the m i n o r shall h a v e b e e n in d a n g e r only, the p e n a l t y shall be prision correccional in its m i n i m u m a n d m e d i u m periods.

766

C R I M E S A G A I N S T SECURITY

T h e p r o v i s i o n s c o n t a i n e d i n the t w o p r e c e d i n g p a r a g r a p h s shall not p r e v e n t the imposition of the penalty p r o v i d e d for the act committed, w h e n the same shall constitute a m o r e s e r i o u s offense. If either Article 4, paragraph 1 or the doctrine of proximate cause would be followed, the penalty on the person abandoning a child less than seven who died as a result should be reclusion temporal for homicide. This is so for one committing a felony is liable for all the consequences of his unlawful act although different from that intended. H o w e v e r , under the second paragraph of this article, his penalty when death of the child supervenes in view of such abandonment is only prision correccional of a maximum of only six years, a probationable penalty. A r t . 277. Abandonment of minor by person entrusted with his custody; indifference of parents. — T h e p e n a l t y of arresto mayor a n d a fine not e x c e e d i n g 500 pesos shall be i m p o s e d u p o n a n y o n e w h o , h a v i n g c h a r g e o f the r e a r i n g o r e d u c a t i o n o f a m i n o r , shall d e l i v e r s a i d m i n o r to a p u b l i c institution or other p e r s o n s , w i t h o u t the consent of the one w h o entrusted such child to his c a r e or in the a b s e n c e of the latter, w i t h o u t the consent of the p r o p e r authorities. T h e same p e n a l t y shall b e i m p o s e d u p o n the parents w h o shall neglect their c h i l d r e n by not g i v i n g them the education w h i c h their station in life r e q u i r e s a n d financial condition permits. A r t . 278. Exploitation of minors. — T h e penalty of prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s a n d a fine exceeding 500 pesos shall be i m p o s e d u p o n : 1.

A n y p e r s o n w h o shall cause a n y b o y or girl u n d e r sixteen y e a r s of a g e to p e r f o r m any d a n g e r o u s feat of b a l a n c i n g , physical strength, or contortion.

2.

A n y p e r s o n w h o , b e i n g an acrobat, gymnast, r o p e w a l k e r , diver, w i l d - a n i m a l tamer or circus m a n a g e r or e n g a g e d in a similar calling, shall employ in exhibitions of these kinds, children u n d e r sixteen years of a g e w h o a r e not his children or descendants.

767


3.

A n y person e n g a g e d in any of the callings e n u m e r a t e d i n the next p r e c e d i n g p a r a g r a p h w h o shall employ any descendant of his u n d e r twelve years of age in such d a n g e r o u s exhibitions.

4.

A n y ascendant, g u a r d i a n , teacher or p e r s o n entrusted in any capacity w i t h the c a r e of a child u n d e r sixteen y e a r s of a g e , w h o shall d e l i v e r such child gratuitously to a n y p e r s o n f o l l o w i n g a n y of the callings e n u m e r a t e d in p a r a g r a p h 2 hereof, or to any habitual vagrant or beggar. If the d e l i v e r y shall h a v e b e e n m a d e in consideration of a n y p r i c e , c o m p e n s a t i o n or p r o m i s e , the p e n a l t y shall in e v e r y case be i m p o s e d in its m a x i m u m p e r i o d . I n either case, the g u a r d i a n o r c u r a t o r convicted shall also be r e m o v e d f r o m office as g u a r d i a n o r c u r a t o r ; a n d i n the case o f the p a r e n t s o f the child, they m a y b e d e p r i v e d , t e m p o r a r i l y o r p e r p e t u a l l y , in the discretion of the c o u r t , of their p a r e n t a l authority.

5.

•

A n y p e r s o n w h o shall i n d u c e a n y child u n d e r sixteen y e a r s of a g e to a b a n d o n the h o m e of its ascendants, g u a r d i a n s , c u r a t o r s o r t e a c h e r s t o follow a n y p e r s o n e n g a g e d i n a n y o f the callings m e n t i o n e d in p a r a g r a p h 2 hereof, or to a c c o m p a n y any habitual vagrant or beggar.

What kind of business does Article 278 speak of? This crime treats of the calling of persons engaged in the circus business and in no. 5 of mendicancy or begging. Under R . A . 7610, a higher penalty is imposed for exploitation of minor where the welfare and development of the minor was prejudiced by the establishment w h e r e he is employed.

A r t . 279. Additional penalties for other offenses. — T h e imposition of the penalties p r e s c r i b e d in the p r e c e d i n g articles, shall not p r e v e n t the imposition u p o n the s a m e 768


p e r s o n of the p e n a l t y p r o v i d e d for a n y other felonies d e n n e d a n d p u n i s h e d b y this C o d e . •

What penalties are imposable when the abandonment resulted to other crimes? T h e offender is liable not only for the abandonment or exploitation but also for all its consequences. If as a result, physical injuries or death resulted, another crime is committed by authority of Article 279.

R E P U B L I C A C T N O . 7610, a s a m e n d e d Child Abuse L a w Article I —

xxx

Title, Policy, Principles and Definition of xxx

xxx

Sec. 3. Definition of . — (a)

"Children" r e f e r s to p e r s o n s b e l o w 18 y e a r s of a g e o r those w h o a r e u n a b l e t o fully take c a r e o f themselves o r protect themselves f r o m a b u s e , neglect, cruelty, exploitation or discrimination b e c a u s e of a p h y s i c a l or mental disability or condition;

( b ) "Child Abuse" r e f e r s to the maltreatment, w h e t h e r h a b i t u a l or not, of the child w h i c h includes any of the following: (1)

P s y c h o l o g i c a l a n d physical a b u s e , neglect, cruelty, sexual abuse and emotional maltreatment;

(2)

A n y act b y deeds o r w o r d s w h i c h debases, d e g r a d e s o r d e m e a n s the intrinsic w o r t h a n d dignity of a child as a h u m a n being;

(3)

U n r e a s o n a b l e d e p r i v a t i o n of his basic needs for survival, such as food a n d shelter; or

(4)

F a i l u r e to immediately give medical treatment to an i n j u r e d child resulting in serious 769


impairment of his g r o w t h a n d d e v e l o p m e n t or in his p e r m a n e n t incapacity or death. "Circumstances which gravely threaten or e n d a n g e r the survival a n d n o r m a l d e v e l o p m e n t of children" include, b u t a r e not limited to, the following: (1)

B e i n g in a community w h e r e there is a r m e d conflict or b e i n g affected by a r m e d conflictrelated activities;

(2)

W o r k i n g u n d e r conditions hazardous to life, safety a n d morals w h i c h unduly interfere with their normal development;

(3)

L i v i n g in or f e n d i n g for themselves in the streets o f u r b a n o r r u r a l a r e a s w i t h o u t the c a r e of p a r e n t s or a g u a r d i a n or a n y a d u l t s u p e r v i s i o n n e e d e d for their w e l f a r e ;

(4)

Being a m e m b e r of an indigenous cultural c o m m u n i t y a n d / o r l i v i n g u n d e r conditions of extreme poverty or in an area which i s u n d e r d e v e l o p e d a n d / o r lacks o r h a s i n a d e q u a t e access to b a s i c services n e e d e d for a g o o d q u a l i t y of life;

(5)

B e i n g a victim of a m a n - m a d e or n a t u r a l disaster or calamity; or

(6)

C i r c u m s t a n c e s a n a l o g o u s t o that a b o v e s t a t e d w h i c h e n d a n g e r the life, safety o r n o r m a l development of children.

"Comprehensive p r o g r a m against child abuse, exploitation a n d d i s c r i m i n a t i o n " r e f e r s t o the c o o r d i n a t e d p r o g r a m o f services a n d facilities t o protect c h i l d r e n against: (1)

C h i l d prostitution a n d o t h e r s e x u a l a b u s e ;

(2)

C h i l d trafficking;

(3)

Obscene publications a n d indecent shows;

(4)

O t h e r acts o f a b u s e ; a n d 770


(5)

xxx

Circumstances which threaten or endanger the s u r v i v a l a n d n o r m a l d e v e l o p m e n t o f children. xxx

xxx

A r t . I l l — Child Prostitution and Other Sexual Abuse Sec. 5. Child Prostitution and Other Sexual Abuse. — C h i l d r e n , w h e t h e r m a l e o r f e m a l e , w h o for m o n e y , profit, o r a n y other c o n s i d e r a t i o n or d u e to the c o e r c i o n or influence of any a d u l t , syndicate o r g r o u p , i n d u l g e i n s e x u a l intercourse or lascivious c o n d u c t , a r e d e e m e d to be c h i l d r e n exploited in prostitution a n d o t h e r s e x u a l a b u s e . T h e p e n a l t y of reclusion temporal in its m e d i u m p e r i o d to reclusion perpetua shall be i m p o s e d u p o n the following: (a)

T h o s e w h o e n g a g e i n o r p r o m o t e , facilitate o r i n d u c e c h i l d prostitution w h i c h include, b u t a r e not limited to, the f o l l o w i n g : (1)

A c t i n g as a p r o c u r e r of a child prostitute;

(2)

I n d u c i n g a p e r s o n to be a client of a child prostitute b y m e a n s o f w r i t t e n o r o r a l a d v e r t i s e m e n t s or other similar means;

(3)

T a k i n g a d v a n t a g e o f influence o r relationship to p r o c u r e a child as a prostitute;

(4)

T h r e a t e n i n g or u s i n g violence t o w a r d s a child to e n g a g e h i m as a prostitute; or

(5)

G i v i n g m o n e t a r y consideration, goods or other p e c u n i a r y benefits to a child with the intent to e n g a g e such child in prostitution.

( b ) Those w h o commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, T h a t w h e n the victim is u n d e r 12 years of age, the p e r p e t r a t o r s shall be prosecuted u n d e r A r t . 335, par. 3, for r a p e a n d A r t . 336 of Act 3815, as a m e n d e d , the R P C , for r a p e or lascivious conduct, as the case may be: Provided, That the penalty

771


for lascivious conduct w h e n the victim is u n d e r 12 years of a g e shall be reclusion temporal in its m e d i u m period; and (c)

Those w h o derive profit or a d v a n t a g e therefrom, w h e t h e r as m a n a g e r or o w n e r of the establishment w h e r e the prostitution takes place, or of the sauna, disco, b a r , resort, place of entertainment or establishment s e r v i n g as a cover or w h i c h e n g a g e s in prostitution in a d d i t i o n to the activity for w h i c h the license has b e e n issued to said establishment.

Sec. 6. Attempt to Commit Child Prostitution. — T h e r e is an attempt to commit child prostitution u n d e r Sec. 5, p a r . ( a ) hereof w h e n any p e r s o n w h o , not b e i n g a relative of a child, is found alone w i t h the said child inside the r o o m or cubicle of a house, an inn, hotel, motel, p e n s i o n h o u s e , a p a r t e l l e or other similar establishments, vessel, vehicle or a n y other h i d d e n o r secluded a r e a u n d e r circumstances w h i c h w o u l d lead a r e a s o n a b l e p e r s o n to b e l i e v e that the child is a b o u t to b e exploited i n prostitution a n d other s e x u a l a b u s e . T h e r e is also an attempt to c o m m i t child prostitution, u n d e r p a r . ( b ) of Sec. 5 h e r e o f w h e n a n y p e r s o n is r e c e i v i n g services f r o m a child in a s a u n a p a r l o r or b a t h , m a s s a g e clinic, health c l u b a n d o t h e r s i m i l a r establishments. A penalty l o w e r b y t w o d e g r e e s t h a n that p r e s c r i b e d for the c o n s u m m a t e d felony u n d e r Sec. 5 h e r e o f shall be i m p o s e d u p o n the p r i n c i p a l s of the attempt to c o m m i t the c r i m e of child prostitution u n d e r this A c t , o r , i n the p r o p e r case, u n d e r the R P C . A r t . I V . — Child Trafficking Sec. 7. Child Trafficking. — A n y p e r s o n w h o shall e n g a g e in t r a d i n g a n d dealing with children including, b u t not limited to, the act of b u y i n g a n d selling of a child for money, or for any other consideration, or b a r t e r , shall suffer the penalty of reclusion temporal to reclusion perpetua. T h e penalty shall be imposed in its m a x i m u m p e r i o d w h e n the victim is u n d e r twelve years of age. Sec. 8. Attempt to Commit Child Trafficking. — T h e r e is an attempt to commit child trafficking u n d e r Sec. 7 of this Act:

772


a.

W h e n a child t r a v e l s a l o n e to a f o r e i g n country w i t h o u t v a l i d r e a s o n t h e r e f o r a n d w i t h o u t clearance issued b y the D S W D o r w r i t t e n p e r m i t o r justif i c a t i o n f r o m the child's p a r e n t s o r legal g u a r d i a n ;

b.

W h e n a p r e g n a n t m o t h e r executes an affidavit of consent for a d o p t i o n f o r a consideration;

c.

W h e n a p e r s o n , a g e n c y , e s t a b l i s h m e n t or child-cari n g institution r e c r u i t s w o m e n o r couples t o b e a r c h i l d r e n for the p u r p o s e of child trafficking;

d.

W h e n a d o c t o r , hospital or clinic official or employee, n u r s e , m i d w i f e , local civil r e g i s t r a r or a n y other p e r s o n simulates b i r t h for the p u r p o s e of child trafficking; or

e.

W h e n a p e r s o n e n g a g e s in the act of finding child r e n a m o n g l o w i n c o m e families, hospitals, clinics, n u r s e r i e s , d a y - c a r e centers, o r other child-caring institutions w h o c a n b e offered for the p u r p o s e o f child trafficking.

A penalty l o w e r b y t w o d e g r e e s t h a n that p r e s c r i b e d for the c o n s u m m a t e d felony u n d e r Sec. 7 h e r e o f shall be imposed u p o n the p r i n c i p a l s of the attempt to commit child trafficking u n d e r this A c t . A r t . V. — Obscene Publications and Indecent Shows Sec. 9. Obscene Publications and Indecent Shows. — A n y p e r s o n w h o shall h i r e , e m p l o y , use, p e r s u a d e , induce or coerce a child to p e r f o r m in obscene exhibitions a n d indecent s h o w s , w h e t h e r live or in v i d e o , pose, or model in obscene publications or p o r n o g r a p h i c materials or to sell or distribute the said m a t e r i a l s shall suffer the penalty of prision mayor in its m e d i u m p e r i o d . If the child u s e d as a p e r f o r m e r , subject or seller/ distributor is b e l o w 12 y e a r s of a g e , the penalty shall be imposed in its m a x i m u m p e r i o d . A n y ascendant, g u a r d i a n , or p e r s o n entrusted in any capacity w i t h care of a child w h o shall cause and/or allow such child to be e m p l o y e d or to participate in an obscene play, scene, act, movie or s h o w or in any other acts covered by this section shall suffer the penalty of prision mayor in its m e d i u m period. 773


A r t . V I . — Other Acts or Abuse Sec. 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development. — ( a ) A n y person w h o shall commit any other acts of child abuse, cruelty or exploitation or be responsible for other conditions p r e j u d i c i a l to the child's development i n c l u d i n g those c o v e r e d by A r t . 59 of P . D . N o . 603, as a m e n d e d , b u t not c o v e r e d by the R P C , as a m e n d e d , shall suffer the penalty of prision mayor in its m i n i m u m p e r i o d . ( b ) A n y p e r s o n w h o shall k e e p o r h a v e i n his c o m p a n y a m i n o r , 12 y e a r s or u n d e r or w h o is ten y e a r s or m o r e his j u n i o r in a n y p u b l i c or p r i v a t e place, hotel, motel, b e e r t, d i s c o t h e q u e , c a b a r e t , pension house, s a u n a o r m a s s a g e p a r l o r , b e a c h a n d / or other tourist r e s o r t or s i m i l a r places shall suffer the penalty of prision mayor in its m a x i m u m p e r i o d a n d a fine of not less t h a n fifty t h o u s a n d pesos: Provided, T h a t this p r o v i s i o n shall not a p p l y to a n y p e r s o n w h o i s r e l a t e d w i t h i n the f o u r t h d e g r e e o f c o n s a n g u i n i t y o r affinity o r a n y b o n d r e c o g n i z e d b y l a w , local c u s t o m a n d t r a d i t i o n , o r acts i n the p e r f o r m a n c e of a social, m o r a l or l e g a l duty. (c)

A n y p e r s o n w h o shall i n d u c e , d e l i v e r o r offer a m i n o r t o a n y o n e p r o h i b i t e d b y this A c t t o k e e p o r h a v e in his c o m p a n y a m i n o r as p r o v i d e d in the p r e c e d i n g p a r a g r a p h , shall suffer the p e n a l t y o f prision mayor in its m e d i u m p e r i o d a n d a fine of not less t h a n P50,000.00: Provided, however, T h a t s h o u l d the p e r p e t r a t o r b e a n a s c e n d a n t , s t e p p a r e n t o r g u a r d i a n o f the m i n o r , the p e n a l t y t o b e i m p o s e d shall be prision mayor in its m a x i m u m p e r i o d , a fine of not less that P50.000.00, a n d the loss of p a r e n t a l authority o v e r the m i n o r .

( d ) A n y person, o w n e r , m a n a g e r or one entrusted w i t h the o p e r a t i o n o f a n y p u b l i c o r p r i v a t e p l a c e o f a c c o m m o d a t i o n , w h e t h e r for o c c u p a n c y , food, d r i n k o r o t h e r w i s e , i n c l u d i n g r e s i d e n t i a l places, 774


w h o a l l o w s a n y p e r s o n t o take a l o n g w i t h h i m t o such p l a c e o r places a n y m i n o r h e r e i n d e s c r i b e d shall be i m p o s e d a p e n a l t y of prision mayor in its m e d i u m p e r i o d a n d a fine of not less t h a n P50,000.00, a n d the loss of the license to o p e r a t e such a place or establishment. (e)

A n y p e r s o n w h o shall use, coerce, force o r intimidate a street c h i l d or a n y o t h e r child to: (1)

B e g or use b e g g i n g as a m e a n s of living;

(2)

A c t a s c o n d u i t o r m i d d l e m a n i n d r u g trafficking or pushing; or

(3)

C o n d u c t a n y illegal activities, shall suffer the p e n a l t y of prision correccional in its m e d i u m p e r i o d to reclusion perpetua.

F o r p u r p o s e s of this A c t , the penalty for the commission of acts p u n i s h a b l e u n d e r A r t s . 248, 249, 262, p a r . 2, a n d 263, p a r . 1 of A c t 3815, as a m e n d e d , the R P C , for the crimes of m u r d e r , h o m i c i d e , other intentional mutilation, a n d serious physical injuries, respectively, shall be reclusion perpetua w h e n the victim is u n d e r 12 y e a r s of a g e . T h e penalty for the commission of acts p u n i s h a b l e u n d e r A r t s . 337, 339, 340 a n d 341 of A c t 3815, as a m e n d e d , the R P C , for the crimes of qualified seduction, acts of lasciviousness w i t h the consent of the offended p a r t y , c o r r u p t i o n of m i n o r s , a n d white slave t r a d e , respectively, shall be one d e g r e e h i g h e r than that imposed by l a w w h e n the victim is u n d e r 12 y e a r s of age. xxx

xxx

xxx

R E P U B L I C A C T N O . 9231 WORST FORMS OF CHILD LABOR xxx

xxx

xxx

Sec. 2. — Section 12 of the same Act, as a m e n d e d , is h e r e b y further a m e n d e d to r e a d as follows: "Sec. 2. Employment of Children. — C h i l d r e n b e l o w fifteen (15) years of a g e shall not be employed except: "1)

W h e n a child w o r k s directly u n d e r the sole responsibility of his/her parents or legal g u a r d i a n 775


and w h e r e only m e m b e r s of his/her family are employed: Provided, however, T h a t his/her employment neither e n d a n g e r s his/her life, safety, health, and morals, n o r impairs his/her n o r m a l development: Provided, further, T h a t the p a r e n t or legal g u a r d i a n shall p r o v i d e the said child w i t h the p r e scribed p r i m a r y and/or s e c o n d a r y education; "2)

W h e r e a child's e m p l o y m e n t or participation in public entertainment o r information t h r o u g h cinema, theater, r a d i o , television or other forms of m e d i a is essential: Provided, T h a t the e m p l o y m e n t contract is c o n c l u d e d by the child's p a r e n t s or legal g u a r d i a n , w i t h the express a g r e e m e n t of the child concerned, if possible, a n d the a p p r o v a l of the D e p a r t m e n t of L a b o r a n d E m p l o y m e n t : Provided, further, T h a t the f o l l o w i n g r e q u i r e m e n t s in all instances a r e strictly c o m p l i e d with: " ( a ) T h e e m p l o y e r shall e n s u r e the protection, health, safety, m o r a l s a n d n o r m a l d e v e l o p m e n t of the child; "(b) The employer shall institute measures to prevent the child's exploitation or d i s c r i m i n a t i o n t a k i n g into a c c o u n t the system a n d level o f r e m u n e r a t i o n , a n d the d u r a t i o n a n d a r r a n g e m e n t o f w o r k i n g time; a n d "(c) T h e e m p l o y e r shall f o r m u l a t e a n d i m p l e m e n t , subject t o the a p p r o v a l a n d s u p e r v i s i o n o f competent authorities, a c o n t i n u i n g p r o g r a m for t r a i n i n g a n d skills a c q u i s i t i o n of the child.

"In the a b o v e e x c e p t i o n a l cases w h e r e a n y such child m a y b e e m p l o y e d , the e m p l o y e r shall f i r s t s e c u r e , b e f o r e e n g a g i n g such child, a w o r k p e r m i t f r o m the D e p a r t m e n t o f L a b o r a n d E m p l o y m e n t w h i c h shall e n s u r e o b s e r v a n c e o f the a b o v e r e q u i r e m e n t s . "For p u r p o s e s of this A r t i c l e , the t e r m "child" shall a p p l y to all p e r s o n s u n d e r e i g h t e e n (18) y e a r s of age." Sec. 3. — T h e s a m e A c t , as a m e n d e d , is h e r e b y f u r t h e r a m e n d e d b y a d d i n g n e w sections t o b e d e n o m i n a t e d a s Sections 12-A, 12-B, 12-C, a n d 12-D to r e a d as follows:

776


"Sec. 12-A. Hours of Work of a Working Child. — U n d e r the exceptions p r o v i d e d in Section 12 of this Act, as a m e n d e d : "(1) A c h i l d allowed hours a be more

b e l o w fifteen (15) y e a r s of a g e m a y be t o w o r k for n o t m o r e t h a n t w e n t y (20) w e e k : Provided, T h a t the w o r k shall not t h a n f o u r (4) h o u r s a t a n y g i v e n day;

"(2) A child fifteen (15) y e a r s of a g e b u t b e l o w eighteen (18) shall not be a l l o w e d to w o r k for m o r e than eight (8) h o u r s a d a y , a n d in no case b e y o n d forty (40) h o u r s a w e e k ; "(3) No child b e l o w fifteen (15) y e a r s of a g e shall be a l l o w e d to w o r k b e t w e e n eight o'clock in the e v e n i n g a n d six o'clock in the m o r n i n g of the f o l l o w i n g d a y a n d n o child f i f t e e n (15) years o f age b u t b e l o w eighteen (18) shall b e a l l o w e d t o w o r k b e t w e e n ten o'clock in the e v e n i n g a n d six o'clock in the m o r n i n g of the f o l l o w i n g day." xxx

xxx

xxx

"Sec. 12-D. Prohibition against Worst Forms of Child Labor. — No child shall be e n g a g e d in the w o r s t forms of child l a b o r . T h e p h r a s e "worst forms of child l a b o r " shall refer to a n y of the following: "(1) A l l forms of slavery, as defined u n d e r the "Antitrafficking in P e r s o n s A c t of 2003," or practices similar to slavery such as sale a n d trafficking of children, d e b t b o n d a g e a n d s e r f d o m a n d forced or c o m p u l s o r y l a b o r , i n c l u d i n g recruitment of children for use in a r m e d conflict; or "(2) T h e use, p r o c u r i n g , offering or exposing of a child for prostitution, for the p r o d u c t i o n of p o r n o g r a p h y or for p o r n o g r a p h i c performances; or "(3) The use, p r o c u r i n g or offering of a child for illegal or illicit activities, including the production and trafficking of d a n g e r o u s drugs and volatile substances prohibited u n d e r existing laws; or "(4) W o r k w h i c h , by its nature or the circumstances in w h i c h it is carried out, is h a z a r d o u s or likely to be 777


h a r m f u l to the health, safety or m o r a l s of children, such that it: "a)

D e b a s e s , d e g r a d e s or d e m e a n s the intrinsic w o r t h a n d dignity of a child as a h u m a n being; or

"b)

Exposes the child to physical, emotional or sexual a b u s e , or is f o u n d to be h i g h l y stressful psychologically o r m a y p r e j u d i c e m o r a l s ;

"c)

Is p e r f o r m e d u n d e r g r o u n d , u n d e r w a t e r or at d a n g e r o u s heights;

"d)

Involves the use of d a n g e r o u s m a c h i n e r y , e q u i p m e n t a n d tools such a s p o w e r - d r i v e n o r explosive p o w e r - a c t u a t e d tools;

"e)

E x p o s e s the child to p h y s i c a l d a n g e r such as, b u t not limited to the d a n g e r o u s feats of b a l a n c i n g , physical s t r e n g t h o r contortion, o r w h i c h r e q u i r e s the m a n u a l t r a n s p o r t o f h e a v y loads; o r

"f)

Is p e r f o r m e d in an unhealthy environment exposing the child to h a z a r d o u s w o r k i n g conditions, elements, substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious components a n d the like, or to extreme temperatures, noise levels, or vibrations; or

"g)

Is performed conditions; or

"h)

E x p o s e s the child to b i o l o g i c a l a g e n t s s u c h as bacteria, fungi, viruses, protozoans, nematodes a n d other p a r a s i t e s ; o r

"i)

I n v o l v e s the m a n u f a c t u r e o r h a n d l i n g o f explosives a n d o t h e r p y r o t e c h n i c p r o d u c t s . "

Sec. 4.

xxx

under

xxx

particularly

difficult

xxx

Sec. 5. Section 14 of the s a m e A c t is h e r e b y a m e n d e d to r e a d as follows:

778


"Sec. 14. Prohibition on the Employment of Children in Certain ments. — No child shall be e m p l o y e d as a m o d e l in a n y a d v e r t i s e m e n t directly or indirectly p r o m o t i n g alcoholic b e v e r a g e s , intoxicating d r i n k s , tobacco a n d its b y p r o d u c t s , g a m b l i n g o r a n y f o r m o f violence o r pornography." Sec. 6. Section 16 of the s a m e A c t , is h e r e b y a m e n d e d to r e a d as follows: "Sec. 16. Penal Provisions. — "a)

A n y e m p l o y e r w h o violates Sections 12, 12-A, a n d Section 14 of this act, as a m e n d e d , shall be p e n a l i z e d b y i m p r i s o n m e n t o f six (6) months a n d one (1) d a y to six (6) y e a r s or a fine of not less t h a n Fifty t h o u s a n d pesos (P50,000.00) b u t not m o r e t h a n T h r e e h u n d r e d t h o u s a n d pesos (P300,000.00) or b o t h at the discretion of the court.

"b)

A n y p e r s o n w h o violates the p r o v i s i o n o f Section 12-D of this act or the e m p l o y e r of the s u b c o n t r a c t o r w h o e m p l o y s , o r the one w h o facilitates the e m p l o y m e n t of a child in h a z a r d o u s w o r k , shall suffer the p e n a l t y of a fine of not less t h a n O n e h u n d r e d t h o u s a n d pesos (P100,000.00) b u t not m o r e t h a n O n e million pesos (PI,000,000.00), or i m p r i s o n m e n t of not less t h a n t w e l v e (12) years a n d one (1) d a y to t w e n t y (20) y e a r s , or both such fine a n d i m p r i s o n m e n t at the discretion of the court.

"c)

A n y p e r s o n w h o violates Sections 12-D(1) a n d 12-D(2) shall be p r o s e c u t e d a n d penalized in a c c o r d a n c e w i t h the penalty p r o v i d e d for by R.A. 9208 o t h e r w i s e k n o w n as the "Anti-trafficking in P e r s o n s A c t of 2003": Provided, T h a t Such penalty shall be imposed in its m a x i m u m period.

"d)

A n y person w h o violates Section 12-D (3) shall be prosecuted a n d penalized in accordance with R.A. 9165, otherwise k n o w n as the "Comprehensive D a n g e r o u s D r u g s A c t of 2002"; Provided, That such penalty shall be imposed in its m a x i m u m period.

779


"e)

If a corporation commits any of the violations aforecited, the b o a r d of directors/trustees a n d officers, w h i c h include the president, t r e a s u r e r a n d secretary of the said c o r p o r a t i o n w h o participated in or k n o w i n g l y a l l o w e d the violation, shall be penalized accordingly as p r o v i d e d for u n d e r this Section.

"f)

Parents, biological or by legal fiction, a n d legal g u a r d i a n s found to be violating Sections 12, 12-A, 12-B a n d 12-C of this A c t shall p a y a fine of not less than T e n t h o u s a n d pesos (P10,000.00) b u t not m o r e than O n e h u n d r e d t h o u s a n d pesos (P100,000.00), or be r e q u i r e d to r e n d e r c o m m u n i t y service for not less than thirty (30) d a y s b u t not m o r e t h a n one (1) y e a r , or both such fine a n d c o m m u n i t y service at the discretion of the court: Provided, T h a t the m a x i m u m length o f c o m m u n i t y service shall b e i m p o s e d o n p a r e n t s o r l e g a l g u a r d i a n s w h o h a v e violated the p r o v i s i o n s o f this A c t t h r e e (3) times; Provided, further, T h a t in a d d i t i o n to the c o m m u n i t y service, the p e n a l t y of i m p r i s o n m e n t of thirty (30) d a y s b u t not m o r e t h a n o n e (1) y e a r o r both at the discretion of the c o u r t , shall be i m p o s e d o n the p a r e n t s o r l e g a l g u a r d i a n s w h o h a v e v i o l a t e d the p r o v i s i o n s of this A c t m o r e t h a n t h r e e (3) times.

"g)

T h e S e c r e t a r y , o f L a b o r a n d E m p l o y m e n t o r his/ h e r d u l y a u t h o r i z e d r e p r e s e n t a t i v e m a y , after d u e notice a n d h e a r i n g , o r d e r the c l o s u r e o f a n y b u s i n e s s firm or e s t a b l i s h m e n t f o u n d to h a v e v i o l a t e d a n y of the p r o v i s i o n s of this A c t m o r e t h a n t h r e e (3) times. He/she shall l i k e w i s e o r d e r the i m m e d i a t e c l o s u r e of such firm or e s t a b l i s h m e n t if: "(1) T h e violation of a n y p r o v i s i o n of this A c t has resulted in the d e a t h , insanity or serious physical i n j u r y of a c h i l d e m p l o y e d in such establishment; "(2) S u c h f i r m o r e s t a b l i s h m e n t i s e n g a g e d o r e m p l o y e d i n prostitution o r i n o b s c e n e o r l e w d shows. 780


"h)

xxx

In case of such c l o s u r e , the e m p l o y e r shall be r e q u i r e d t o p a y the e m p l o y e e ( s ) the s e p a r a t i o n p a y a n d o t h e r m o n e t a r y benefits p r o v i d e d for b y l a w . " xxx

xxx

A p p r o v e d : D e c e m b e r 19, 2003.


xxx

xxx

Sec. 3. Definition of . — As u s e d in this Act: (a)

Trafficking in Persons — r e f e r s to the recruitment, t r a n s p o r t a t i o n , t r a n s f e r o r h a r b o r i n g , o r receipt of p e r s o n s w i t h or w i t h o u t the victim's consent o r k n o w l e d g e , w i t h i n o r across national b o r d e r s by m e a n s of t h r e a t or use of force, or other forms o f coercion, a b d u c t i o n , f r a u d , deception, a b u s e of p o w e r or of position, t a k i n g a d v a n t a g e of the v u l n e r a b i l i t y of the p e r s o n , or, the g i v i n g or r e c e i v i n g of p a y m e n t s or benefits to achieve the consent of a p e r s o n h a v i n g control o v e r a n o t h e r p e r s o n for the p u r p o s e of exploitation w h i c h includes at a m i n i m u m , the exploitation or the prostitution of others or other forms of sexual exploitation, forced l a b o r or services, slavery, servitude or the r e m o v a l or sale of o r g a n s . T h e r e c r u i t m e n t , t r a n s p o r t a t i o n , transfer, h a r b o r i n g or receipt of a child for the p u r p o s e of exploitation shall also be c o n s i d e r e d as "trafficking in persons" even if it does not involve any of the m e a n s set forth in the p r e c e d i n g p a r a g r a p h .

( b ) Child — refers to a p e r s o n b e l o w eighteen (18) years of a g e or one w h o is o v e r eighteen (18) but is u n a b l e to fully take c a r e of or protect himself/ herself f r o m a b u s e , neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition. (c)

Prostitution — refers to any act, transaction, scheme or design involving the use of a person 781


by another, for sexual intercourse or lascivious conduct in exchange for money, profit or any other consideration. ( d ) Forced Labor and Slavery — refer to the extraction of w o r k or services f r o m any p e r s o n by m e a n s of enticement, violence, intimidation or threat, use of force or coercion, including d e p r i v a t i o n of freedom, a b u s e of authority or m o r a l a s c e n d a n c y , d e b t - b o n d a g e or deception. (e)

Sex Tourism — refers to a p r o g r a m o r g a n i z e d by travel a n d tourism-related establishments a n d individuals w h i c h consists of t o u r i s m p a c k a g e s or activities, utilizing a n d offering escort a n d s e x u a l services as enticement for tourists. T h i s includes sexual services a n d practices offered d u r i n g rest a n d r e c r e a t i o n p e r i o d s for m e m b e r s of the military.

(f)

Sexual Exploitation — refers to participation by a p e r s o n in prostitution or the p r o d u c t i o n of p o r n o g r a p h i c m a t e r i a l s as a result of b e i n g subjected to a threat, deception, coercion, a b d u c t i o n , force, a b u s e o f authority, d e b t b o n d a g e , f r a u d or t h r o u g h a b u s e of a victim's v u l n e r a b i l i t y .

(g)

Debt Bondage — refers to the p l e d g i n g by the d e b t o r o f his/her p e r s o n a l services o r l a b o r o r those of a p e r s o n u n d e r his/her control as security or p a y m e n t for a debt, w h e n the l e n g t h a n d n a t u r e of services is not clearly defined or w h e n the v a l u e of the services as r e a s o n a b l y assessed is not a p p l i e d t o w a r d the l i q u i d a t i o n o f the d e b t .

( h ) Pornography — r e f e r s to any representation, through publication, exhibition, cinematography, indecent s h o w s , i n f o r m a t i o n t e c h n o l o g y , o r b y w h a t e v e r m e a n s , of a p e r s o n e n g a g e d in r e a l or simulated explicit s e x u a l activities or a n y r e p r e s e n t a t i o n of the s e x u a l p a r t s of a p e r s o n for p r i m a r i l y sexual p u r p o s e s . (i)

Council — shall m e a n the I n t e r - A g e n c y C o u n c i l A g a i n s t Trafficking c r e a t e d u n d e r Section 2 0 o f this A c t . 782


Sec. 4. Acts of Trafficking in Persons. — It shall be u n l a w f u l for a n y p e r s o n , n a t u r a l o r j u r i d i c a l , t o commit any of the f o l l o w i n g acts: (a)

T o r e c r u i t , t r a n s p o r t , transfer; h a r b o r , p r o v i d e , or receive a p e r s o n by a n y m e a n s , i n c l u d i n g those d o n e u n d e r the p r e t e x t of domestic or overseas e m p l o y m e n t o r t r a i n i n g o r a p p r e n t i c e s h i p , for the p u r p o s e o f prostitution, p o r n o g r a p h y , sexual exploitation, f o r c e d l a b o r , slavery, i n v o l u n t a r y servitude or debt bondage;

( b ) T o i n t r o d u c e o r m a t c h for m o n e y , profit, o r m a t e r i a l , e c o n o m i c o r other consideration, any p e r s o n or, a s p r o v i d e d for u n d e r R e p u b l i c A c t N o . 6955, a n y F i l i p i n o w o m a n to a f o r e i g n national, for m a r r i a g e for the p u r p o s e o f a c q u i r i n g , b u y i n g , offering, selling or t r a d i n g h i m / h e r to e n g a g e in prostitution, p o r n o g r a p h y , sexual exploitation, f o r c e d l a b o r , s l a v e r y , i n v o l u n t a r y servitude o r d e b t bondage; (c)

T o offer o r contract m a r r i a g e , r e a l o r simulated, for the p u r p o s e of a c q u i r i n g , b u y i n g , offering, selling, or t r a d i n g t h e m to e n g a g e in prostitution, p o r n o g r a p h y , s e x u a l exploitation, forced l a b o r o r slavery, i n v o l u n t a r y s e r v i t u d e o r d e b t b o n d a g e ;

( d ) To undertake or organize tours a n d travel plans consisting of tourism packages or activities for the p u r p o s e of utilizing a n d offering persons for prostitution, p o r n o g r a p h y or sexual exploitation; (e)

To m a i n t a i n or h i r e a p e r s o n prostitution o r p o r n o g r a p h y ;

(f)

To a d o p t or facilitate the a d o p t i o n of persons for the p u r p o s e of prostitution, p o r n o g r a p h y , sexual exploitation, forced l a b o r , slavery, involuntary servitude o r d e b t b o n d a g e ;

(g)

To recruit, hire, adopt, t r a n s p o r t or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the p u r p o s e of r e m o v a l or sale of o r g a n s of said person; and 783

to

engage

in


(h)

To recruit, transport or adopt a child to e n g a g e in a r m e d activities in the Philippines or a b r o a d .

Sec. 5. Acts that Promote Trafficking in Persons. — T h e following acts w h i c h promote or facilitate trafficking in persons, shall be unlawful: (a)

To k n o w i n g l y lease or sublease, use or a l l o w to be used any house, b u i l d i n g or establishment for the p u r p o s e of p r o m o t i n g trafficking in persons;

( b ) T o p r o d u c e , print a n d issue o r distribute u n i s s u e d , tampered or fake counseling certificates, registration stickers and certificates of a n y g o v e r n m e n t a g e n c y w h i c h issues these certificates a n d stickers as p r o o f of c o m p l i a n c e w i t h g o v e r n m e n t r e g u l a t o r y a n d p r e - d e p a r t u r e r e q u i r e m e n t s for the p u r p o s e of p r o m o t i n g trafficking in persons; (c)

T o , p u b l i s h , print, b r o a d c a s t o r d i s t r i b u t e , or cause the ment, p u b l i c a t i o n , p r i n t i n g , broadcasting or distribution by any means, i n c l u d i n g the use of i n f o r m a t i o n t e c h n o l o g y a n d the internet, o f a n y b r o c h u r e , f l y e r , o r a n y p r o p a g a n d a m a t e r i a l that p r o m o t e s trafficking in persons;

(d)

To assist in the c o n d u c t of m i s r e p r e s e n t a t i o n or f r a u d for p u r p o s e s o f facilitating the a c q u i s i t i o n o f clearances a n d n e c e s s a r y exit d o c u m e n t s f r o m g o v e r n m e n t a g e n c i e s that a r e m a n d a t e d t o p r o v i d e p r e - d e p a r t u r e r e g i s t r a t i o n a n d services for d e p a r t i n g p e r s o n s for the p u r p o s e o f p r o m o t i n g trafficking in persons;

(e)

To facilitate, assist or h e l p in the exit a n d e n t r y of p e r s o n s from/to the c o u n t r y at i n t e r n a t i o n a l a n d local a i r p o r t s , t e r r i t o r i a l b o u n d a r i e s a n d s e a p o r t s w h o a r e i n possession o f u n i s s u e d , t a m p e r e d o r f r a u d u l e n t travel d o c u m e n t s f o r the p u r p o s e o f p r o m o t i n g trafficking in p e r s o n s ;

(f)

To confiscate, conceal, or d e s t r o y the p a s s p o r t , t r a v e l documents, o r p e r s o n a l d o c u m e n t s o r b e l o n g i n g s of trafficked p e r s o n s in f u r t h e r a n c e

784


of trafficking or to p r e v e n t t h e m f r o m leaving the c o u n t r y o r s e e k i n g r e d r e s s f r o m the g o v e r n m e n t o r a p p r o p r i a t e agencies; a n d (g)

T o k n o w i n g l y benefit f r o m , f i n a n c i a l o r o t h e r w i s e , or m a k e use of, the l a b o r or services of a p e r s o n h e l d to a condition of i n v o l u n t a r y servitude, forced l a b o r , o r slavery.

Sec. 6. Qualified Trafficking in Persons. — T h e f o l l o w i n g a r e c o n s i d e r e d as qualified trafficking: ( a ) W h e n the trafficked p e r s o n is a child; ( b ) W h e n the a d o p t i o n i s effected t h r o u g h R e p u b l i c A c t N o . 8043, o t h e r w i s e k n o w n as the "Inter-Country A d o p t i o n A c t of 1995" a n d said a d o p t i o n is for the p u r p o s e of prostitution, p o r n o g r a p h y , sexual exploitation, f o r c e d l a b o r , slavery, i n v o l u n t a r y servitude or debt bondage; (c)

W h e n the c r i m e is committed by a syndicate, or in l a r g e scale. T r a f f i c k i n g is d e e m e d committed by a syndicate if c a r r i e d out by a g r o u p of three (3) o r m o r e p e r s o n s c o n s p i r i n g o r confederating with one a n o t h e r . It is d e e m e d committed in l a r g e scale if committed a g a i n s t t h r e e (3) or m o r e persons, i n d i v i d u a l l y or as a g r o u p ;

(d)

W h e n the offender is an ascendant, p a r e n t , sibling, g u a r d i a n or a p e r s o n w h o exercises authority o v e r the trafficked p e r s o n or w h e n the offense is committed by a p u b l i c officer or employee;

(e)

W h e n the trafficked p e r s o n is r e c r u i t e d to engage in prostitution w i t h any m e m b e r of the military or l a w enforcement agencies;

(f)

W h e n the offender is a m e m b e r of the military or l a w enforcement agencies; a n d

(g)

W h e n by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with H u m a n Immunodeficiency V i r u s ( H I V ) o r the A c q u i r e d I m m u n e Deficiency S y n d r o m e ( A I D S ) . 785


Sec. 7. Confidentiality. — At any stage of the investigation, prosecution a n d trial of an offense u n d e r this Act, l a w enforcement officers, prosecutors, j u d g e s , court personnel and medical practitioners, as w e l l as parties to the case, shall recognize the right to p r i v a c y of the trafficked p e r s o n a n d the accused. T o w a r d s this e n d , l a w enforcement officers, prosecutors a n d j u d g e s to w h o m the complaint has b e e n referred may, w h e n e v e r necessary to e n s u r e a fair a n d i m p a r tial proceeding, a n d after c o n s i d e r i n g all circumstances for the best interest of the parties, o r d e r a closed-door investigation, prosecution or trial. T h e n a m e a n d p e r s o n a l circumstances of the trafficked p e r s o n or of the a c c u s e d , or a n y other information t e n d i n g to establish their identities a n d such circumstances or i n f o r m a t i o n shall not be disclosed to the public. In cases w h e n p r o s e c u t i o n or trial is c o n d u c t e d b e h i n d closed-doors, it shall be u n l a w f u l for a n y editor, p u b l i s h e r , a n d r e p o r t e r or columnist in case of p r i n t e d m a t e r i a l s , a n n o u n c e r o r p r o d u c e r i n case o f television a n d r a d i o , p r o d u c e r a n d d i r e c t o r of a film in case of the m o v i e i n d u s t r y , or any p e r s o n utilizing t r i - m e d i a facilities or i n f o r m a t i o n technology to cause p u b l i c i t y of a n y case of trafficking in persons. xxx

xxx

xxx

Sec. 10. Penalties and Sanctions. — T h e f o l l o w i n g penalties a n d sanctions a r e h e r e b y e s t a b l i s h e d for the offenses e n u m e r a t e d in this Act: ( a ) A n y p e r s o n f o u n d guilty o f c o m m i t t i n g a n y o f the acts e n u m e r a t e d in Section 4 shall suffer the p e n a l t y of i m p r i s o n m e n t of t w e n t y (20) y e a r s a n d a fine of not less t h a n O n e million pesos (P1,000,000.00) b u t not m o r e t h a n T w o million pesos (P2,000,000.00); ( b ) A n y p e r s o n f o u n d guilty o f c o m m i t t i n g a n y o f the acts e n u m e r a t e d in Section 5 shall suffer the p e n a l t y of i m p r i s o n m e n t of fifteen (15) y e a r s a n d a f i n e o f not less t h a n F i v e h u n d r e d t h o u s a n d pesos (P500,000.00) b u t not m o r e t h a n O n e m i l l i o n pesos (P1,000,000.00);

786


(c)

A n y p e r s o n f o u n d guilty o f qualified trafficking u n d e r Section 6 shall suffer the penalty of life i m p r i s o n m e n t a n d a fine of not less t h a n T w o million pesos (P2,000,000.00) b u t not m o r e than F i v e m i l l i o n pesos (P5,000,000.00);

( d ) A n y p e r s o n w h o violates Section 7 h e r e o f shall suffer the p e n a l t y of i m p r i s o n m e n t of six (6) years a n d a fine of not less t h a n F i v e h u n d r e d t h o u s a n d pesos (P500,000.00) b u t not m o r e t h a n O n e million pesos (P1,000,000.00); (e)

If the o f f e n d e r is a c o r p o r a t i o n , p a r t n e r s h i p , association, c l u b , e s t a b l i s h m e n t o r a n y j u r i d i c a l p e r s o n , the p e n a l t y shall b e i m p o s e d u p o n the o w n e r , p r e s i d e n t , p a r t n e r , m a n a g e r , a n d / o r any r e s p o n s i b l e officer w h o p a r t i c i p a t e d in the commission of the crime o r w h o shall h a v e k n o w i n g l y permitted o r failed to p r e v e n t its commission;

(f)

T h e r e g i s t r a t i o n w i t h the Securities a n d E x c h a n g e C o m m i s s i o n ( S E C ) a n d license to o p e r a t e of the e r r i n g a g e n c y , c o r p o r a t i o n , association, religious g r o u p , t o u r o r t r a v e l agent, c l u b o r establishment, or a n y p l a c e of e n t e r t a i n m e n t shall be cancelled a n d r e v o k e d p e r m a n e n t l y . T h e o w n e r , president, p a r t n e r or m a n a g e r t h e r e o f shall not be a l l o w e d to o p e r a t e s i m i l a r establishments in a different name;

(g)

If the offender is a f o r e i g n e r , he shall be immediately d e p o r t e d after s e r v i n g his sentence a n d be b a r r e d p e r m a n e n t l y f r o m e n t e r i n g the country;

( h ) A n y employee or official of g o v e r n m e n t agencies w h o shall issue or a p p r o v e the issuance of travel exit clearances, ports, registration certificates, counseling certificates, m a r r i a g e license, a n d other similar documents to persons, w h e t h e r juridical or n a t u r a l , recruitment agencies, establishments or other individuals or g r o u p s , w h o fail to observe the p r e s c r i b e d p r o c e d u r e s a n d the requirement as p r o v i d e d for by l a w s , rules a n d regulations, shall be held istratively liable, without prejudice

787


to criminal liability u n d e r this Act. T h e concerned government official or employee shall, u p o n conviction, be dismissed from the service a n d be b a r r e d permanently to hold public office. His/her retirement a n d other benefits shall likewise be forfeited; a n d (i)

Conviction by final j u d g m e n t of the a d o p t e r for any offense u n d e r this A c t shall result in the immediate rescission of the decree of adoption.

Sec. 11. Use of Trafficked Persons. — A n y p e r s o n w h o buys or e n g a g e s the services of trafficked p e r s o n s for prostitution shall be p e n a l i z e d as follows: (a)

First offense — six (6) months of c o m m u n i t y service as m a y be d e t e r m i n e d by the c o u r t a n d a fine of Fifty t h o u s a n d pesos (P50,000.00); a n d

( b ) Second a n d s u b s e q u e n t offenses — i m p r i s o n m e n t of one (1) y e a r a n d a fine of O n e h u n d r e d t h o u s a n d pesos (P100,000.00). Sec. 12. Prescriptive Period. — T r a f f i c k i n g cases u n d e r this A c t shall p r e s c r i b e in ten (10) years: Provided, however, T h a t trafficking cases committed by a syndicate or in a l a r g e scale as defined u n d e r Section 6 shall p r e s c r i b e in t w e n t y (20) years. T h e p r e s c r i p t i v e p e r i o d shall c o m m e n c e t o r u n f r o m the d a y on w h i c h the trafficked p e r s o n is d e l i v e r e d or r e l e a s e d f r o m the conditions o f b o n d a g e a n d shall b e i n t e r r u p t e d b y the filing of the c o m p l a i n t or i n f o r m a t i o n a n d shall c o m m e n c e t o r u n a g a i n w h e n such p r o c e e d i n g s t e r m i n a t e w i t h o u t the accused b e i n g convicted o r a c q u i t t e d o r a r e unjustifiably stopped for a n y r e a s o n not i m p u t a b l e to the a c c u s e d . Sec.

13. Exemption from Filing Fees, x x x

Sec. 14. Confiscation and Forfeiture of the Proceeds and Instruments Derived from Trafficking in Persons. — In a d d i t i o n to the penalty i m p o s e d for the v i o l a t i o n of this Act, the court shall o r d e r the confiscation a n d f o r f e i t u r e , in f a v o r of the g o v e r n m e n t , of all the p r o c e e d s a n d p r o p e r t i e s d e r i v e d f r o m the commission of the c r i m e , unless they a r e 788


the p r o p e r t y of a t h i r d p e r s o n not liable for the u n l a w f u l act; Provided, however, T h a t all a w a r d s for d a m a g e s shall be t a k e n f r o m the p e r s o n a l a n d s e p a r a t e p r o p e r t i e s of the offender; Provided, further, T h a t if such p r o p e r t i e s a r e insufficient, the b a l a n c e shall be t a k e n f r o m the confiscated a n d forfeited p r o p e r t i e s . W h e n the p r o c e e d s , p r o p e r t i e s a n d instruments o f the offense h a v e b e e n d e s t r o y e d , d i m i n i s h e d in v a l u e or o t h e r w i s e r e n d e r e d w o r t h l e s s b y a n y act o r omission, directly or indirectly, of the offender, or it has b e e n concealed, r e m o v e d , c o n v e r t e d or t r a n s f e r r e d to p r e v e n t the same f r o m b e i n g f o u n d or to a v o i d forfeiture or confiscation, the offender shall be o r d e r e d to p a y the a m o u n t e q u a l to the v a l u e of the p r o c e e d s , p r o p e r t y or instruments of the offense. xxx

xxx

xxx

Sec. 17. Legal Protection to Trafficked Persons. — Trafficked p e r s o n s shall be r e c o g n i z e d as victims of the act or acts of trafficking a n d as such shall not be penalized for crimes directly r e l a t e d to the acts of trafficking e n u m e r a t e d in this A c t or in o b e d i e n c e to the o r d e r m a d e by the trafficker in relation thereto. In this r e g a r d , the consent of a trafficked p e r s o n to the i n t e n d e d exploitation set forth in this A c t shall b e irrelevant. Sec. 18. Preferential Entitlement Under the Witness Protection Program. — A n y p r o v i s i o n of R e p u b l i c A c t N o . 6981 to the c o n t r a r y n o t w i t h s t a n d i n g , any trafficked p e r s o n shall be entitled to the witness protection p r o g r a m p r o v i d e d therein. Sec. 19. Trafficked Persons Who are Foreign Nationals. — Subject to the guidelines issued by the Council, trafficked persons in the P h i l i p p i n e s w h o a r e nationals of a foreign country shall also be entitled to a p p r o p r i a t e protection, assistance a n d services a v a i l a b l e to trafficked persons u n d e r this Act: Provided, T h a t they shall be permitted continued presence in the P h i l i p p i n e s for a length of time prescribed by the Council as necessary to effect the prosecution of offenders. xxx

xxx

A p p r o v e d : M a y 26, 2003. 789

xxx


Who are included in the definition of "children" in R.A. 7610? Children includes those who by reason of physical or mental disability which prevents them from fully taking care of themselves or protecting themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. The I R R of R . A . 7610 defines a "child" as one who is below 18 years of age or over said age who, upon evaluation of a qualified physician, psychologist or psychiatrist, is found to be incapable of taking care of herself fully because of a physical or mental disability or condition or of protecting herself from abuse. AA cannot be considered a child. W h i l e A A ' s polio is a physical disability that rendered her incapable of normal function, no evidence was presented showing compliance with the rules. There was no evidence of any medical evaluation or medical finding from a qualified physician, psychologist or psychiatrist attesting that A A ' s physical condition rendered her incapable of fully taking care of herself or of protecting herself against sexual abuse. Since R . A . 7610 is a special l a w referring to a particular class in society, it must be shown that the victim truly belongs to this particular class to warrant the application of its provisions. A n y doubt in this regard must be resolved in favor of the accused. (People v. Abello, G.R. No. 151952, March 25, 2009) What are the specific crimes penalized under R.A. 7610? 1.

Child prostitution and other sexual abuse under Section 5 which includes: (a)

Engaging in or promoting, facilitating or inducing child prostitution;

(b)

Committing the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; or

(c)

Deriving profit or advantage therefrom, as manager/ owner of the establishment where the prostitution takes place. 790


2.

A t t e m p t to commit child prostitution penalized under Section 5(a) when any person who, not being a relative of a child, is found alone with the said child inside a room, cubicle, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse. (Section 6)

3.

A t t e m p t to commit child prostitution under Section 5(b) when any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments. (Section 6)

4.

Child trafficking or trading and dealing with children. (Section 7)

5.

A t t e m p t to Commit Child Trafficking. (Section 8)

6.

Hiring, employing, using, persuading, inducing or coercing a child to perform in obscene exhibitions and indecent shows, pose, or model in obscene publications or pornographic materials or to sell or distribute the said materials. (Section 9)

7.

Commission of any other acts of child abuse, cruelty or exploitation or being responsible for other conditions prejudicial to the child's development. (Section 10)

8.

Keeping or having in his company a minor, 12 years or under or who is 10 years or more his junior in any public or private place, hotel, motel, beer t, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places unless he is related within the fourth degree of consanguinity or affinity or has any bond recognized by law, local custom and tradition, or acts in the performance of a social, moral or legal duty. (Section 10)

9.

Inducing, delivering or offering a minor to anyone prohibited to keep or have in his company a minor as provided in the preceding paragraph.

10.

Allowing any person to take along with him to such place or places any minor. (Section 10) 791


11.

Using, coercing, forcing or intimidating a street child or any other child to: (a)

Beg or use begging as a means of living;

(b)

Act as conduit or middleman in drug trafficking or pushing; or

(c) Conduct any illegal activities. (Section 10) To be free from liability under Article 6, Section 10(b), the child must be: 1) related to him within the fourth civil degree, or 2) there is legal, moral or social duty giving such person authority to have the minor with him in such places, or 3) the age difference between them is less than 10 years. A n y kind of employment which risks the physical, mental or spiritual development of the child is child exploitation. Under the R P C , the age must be less than 16 but under R . A . 7610, less than 18. What are the two kinds of child prostitution and other sexual abuse? Child prostitution and other sexual abuse penalized in paragraphs (a) and (b) of Section 5, A r t i c l e I I I are of two kinds. Paragraph (a) essentially punishes acts pertaining to or connected with child prostitution. It contemplates sexual abuse of a child exploited in prostitution. In other words, the child is abused primarily for profit. T h e offender does not engage in sexual relations w i t h the child but merely promotes the prostitution or sexual abuse of the child for profit. Paragraph (b) punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution but also with a child subjected to other sexual abuse. It covers not only a situation where a child is abused for profit but also one in which a child, through coercion, intimidation or influence, engages in sexual intercourse or lascivious conduct. (Malto v. People, G.R. No. 164733, September 21, 2007) T h e elements of paragraph ( a ) are: 1.

T h e accused engages in, promotes, facilitates or induces child prostitution;

792


2.

T h e act is done through, but not limited to, the following: a.

acting as a procurer of a child prostitute;

b.

inducing a person to be a client of a child prostitute by means of written or oral ments or other similar means;

c.

taking advantage of influence or relationship to procure a child as a prostitute;

d.

threatening or using violence towards a child to engage him as a prostitute; or

e.

giving monetary consideration, goods or other pecuniary benefit to a child with intent to engage such child in prostitution.

3.

T h e child is exploited or intended to be exploited in prostitution; and

4.

T h e child, male or female, is below 18 years of age.

The elements of paragraph (b) are: 1.

Accused commits the act of sexual intercourse or lascivious conduct;

2.

T h e act is performed w i t h a child exploited in prostitution or subjected to other sexual abuse; and

3.

T h e child, male or female, is below 18 years of age.

T h e first element pertains to the act or acts committed by the accused; the second refers to the state or condition of the offended party; and the third, to the minority or age of the offended party. T h e information against MM was that he committed sexual intercourse and lascivious conduct with A A , a minor; she was induced and/or seduced by MM who was her professor to indulge in sexual intercourse and lascivious conduct. These allegations a charge for violation of paragraph (b), not (a) as charged in the information. T h e designation in the information of the specific statute violated is imperative to avoid surprise and to afford accused the opportunity to prepare his defense accordingly. However, the failure to designate the offense by statute or to mention 793


the specific provision penalizing the act, or an erroneous specification of the law violated does not vitiate the information if the facts alleged clearly recite the facts constituting the crime charged. What controls is not the title of the information or the designation of the offense but the actual facts recited in the information. In fine, it is the recital of facts, not the nomenclature of offense that determines the crime charged in the information. Due to the influence of petitioner, AA indulged in lascivious acts with or allowed him to commit lascivious acts on her. This was repeated and she also indulged in sexual intercourse with petitioner as a result of his influence and moral ascendancy. Thus, she was a "child subjected to other sexual abuse." (id.) •

What situations are covered by sexual abuse of children under Section 5 of R.A. 7610? Section 5 does not merely cover a situation of a child being abused for profit, but also one in which a child engages in any lascivious conduct through coercion or intimidation. Intimidation need not necessarily be irresistible. It is sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the offended party. This is especially true in the case of young, innocent and immature girls who could not be expected to act with equanimity of disposition and with nerves of steel. Y o u n g girls cannot be expected to act like adults under the same circumstances or to have the courage and intelligence to disregard the threat. (People v. Larin, G.R. No. 128777, October 7, 1998)

•

Distinguish sexual abuse and child abuse. People v. CA, G.R. No. 171863, August 20, 2008 explained the difference between sexual abuse and child abuse. Child abuse is punished under Section 10(a) which treats of "Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development" and includes by reference those covered by Article 59 of P . D . 603, as amended.

794


Section 5(b) covers exclusively sexual abuse specifically sexual intercourse or lascivious conduct with a child exploited in prostitution or subject to other sexual abuse, provided that when the victim is under 12, the perpetrator shall be prosecuted under the R P C but with a higher penalty for lascivious conduct. Section 10 refers to acts of child abuse prejudicial to the child's development other than child prostitution and other sexual abuse under Section 5, attempt to commit child prostitution, child trafficking, attempt to commit child trafficking, and obscene publications and indecent shows. Sexual abuse is a completely distinct and separate offense from child abuse. Consensual sexual intercourse or even acts of lasciviousness with a minor who is 12 years old or older could constitute a violation of Section 5(b) of RA 7610. For it punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution but also with a child subjected to other sexual abuse. Section 2 ( g ) of the I R R defines "sexual abuse" as including "the employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children." For consensual sexual intercourse or lascivious conduct with a minor, who is not exploited in prostitution, to thus fall within the purview of Section 5(b), "persuasion, inducement, enticement or coercion" of the child must be present. Larin convicted accused for the information alleged that he took advantage of his authority, influence, and moral ascendancy as trainor of the minor victim which constituted "psychological coercion." In convicting the accused for lascivious acts, it held that the law covers not only a situation in which a child is abused for profit, but also one in which a child, through coercion or intimidation, engages in any lascivious conduct. Malto convicted accused under Section 5(b) as the information alleged that accused, the minor's professor, obtained her consent by taking advantage of his relationship and moral ascendancy to exert influence on her. 795


In the case at bar, even if respondent were charged under Section 5(b), instead of Section 10(a), respondent would be acquitted as there was no allegation that coercion or influence or intimidation attended its commission. Montinola, G.R. No. 178061, January 31, 2008 modified the conviction of MM by the lower court for acts of lasciviousness under Section 10 (a), RA 7610. T h e Court rather held him liable under Section 5(b), for Section 5(b) covers acts of lasciviousness while Section 10(a) covers other acts of abuse. Explain the relationship between rape and sexual abuse. Abay, G.R. No. 177752, February 24, 2009 explains that per Section 5(b), Article I I I of R . A . 7610 in relation to rape, if the victim is below 12 years old, the offender should not be prosecuted for sexual abuse but for statutory rape and penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse (sexual intercourse with a child subjected to abuse) under Section 5(b) or rape under Article 266-A (except paragraph l [ d ] ) . However, offender cannot be accused of both crimes for the same act because his right against double jeopardy w i l l be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. L i k e w i s e , rape cannot be complexed with violation of Section 5(b). A r t i c l e 48 of the R P C does not allow a felony to be complexed with an offense penalized by a special law. Here, the victim was over 12 years when the crime was committed against her. T h e Information against appellant stated that AA was 13 then. Therefore, he may be prosecuted either under Section 5(b), R . A . 7610 or for rape. Violation of Section 5(b) is an offense under a special law while rape is a felony under the R P C . T h e y have different elements; are separate and distinct crimes. Thus, one can be held liable for violation of R . A . 7610 despite a finding that he did not commit rape. How relevant is the sweetheart theory in rape; In R.A. 7610? T h e sweetheart theory applies in acts of lasciviousness and rape, felonies committed against or without the consent 796


of the victim. It operates on the theory that the act was consensual. It requires proof that accused and the victim were lovers and that she consented to the sexual relations. For purposes of sexual intercourse and lascivious conduct under R . A . 7610, the sweetheart defense is unacceptable. A child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual intercourse with another person. T h e l a w is clear: it punishes those who commit sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse. U n l i k e rape, therefore, consent is immaterial in cases involving violation of Section 5, Article I I I of R . A . 7610. The mere act of having sexual intercourse or committing lascivious conduct with a child exploited in prostitution or subjected to sexual abuse constitutes the offense. It is a malum prohibitum, an evil that is proscribed. People vs. CA, expounded that the child must be exploited in prostitution or subjected to other sexual abuse. If not, as long as the minor is not less than 12, the sweetheart theory is a valid defense. For consensual sexual intercourse or lascivious conduct with a minor, who is not exploited in prostitution, to fall within the Section 5(b), "persuasion, inducement, enticement or coercion" of the child must be present. What are required for conviction for child abuse through lascivious conduct under Section 5 of R.A. 7610? Before an accused can be convicted of child abuse through lascivious conduct on a minor below 12 years of age, the requisites for acts of lasciviousness under Article 336, R P C must be met in addition to the requisites for sexual abuse under Section 5 of R . A . 7610. (Amployo v. People, G.R. No. 157718, April 26, 2005) What is meant by the word lewd or lascivious? The term "lewd" is commonly defined as something indecent or obscene; it is characterized by or intended to excite crude sexual desire. That an accused is entertaining a lewd or unchaste design is necessarily a mental process the existence of which can be inferred by overt acts carrying out such 797


intention, i.e., by conduct that can only be interpreted as lewd or lascivious. The presence or absence of lewd designs is inferred from the nature of the acts themselves and the environmental circumstances. What is or what is not lewd conduct, by its very nature, cannot be pigeonholed into a precise definition. Gomez, G.R. No. 10341, March 3, 1915, conceded that — It would be somewhat difficult to lay down any rule specifically establishing just what conduct makes one amenable to the provisions of Article 439 of the Penal Code. W h a t constitutes lewd or lascivious conduct must be determined from the circumstances of each case. It may be quite easy to determine in a particular case that certain acts are lewd and lascivious, and it may be extremely difficult in another case to say just where the line of demarcation lies between such conduct and the amorous advances of an ardent lover. •

How is "lewd designs" defined for purposes of R.A. 7610? T h e Implementing Rules and Regulations ( I R R ) of R . A . 7610 defines lascivious conduct as — The intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person. (But the introduction of any object or thing into the genitalia or anus of another is now rape under R . A . 8353.)

•

Are sexually abused children entitled to moral damages even without proof of mental anguish, etc.? Y e s . Upon a finding of guilt of the accused for acts of lasciviousness, the amount of P30.000 as moral damages may be further awarded to the victim in the same w a y that moral damages are awarded to victims of rape even without need of proof because it is assumed that they suffered moral injury (Article 2210[3], N C C ) . Considering that the crime of acts of lasciviousness or abusos dishonestos is necessarily included in rape and both cases involve sexual assault albeit in different degrees, the rationale for foregoing with proof of

798


moral damages in rape cases applies with equal force to crimes of acts of lasciviousness, the rationale being: One other cognate development in the case law on rape is applicable to the present disposition. The Court has also resolved that in crimes of rape, such as that under consideration, moral damages may additionally be awarded to the victim in the criminal proceeding, in such amount as the Court deems just, without the need for pleading or proof of the basis thereof as has heretofore been the practice. Indeed, the conventional requirement of allegata et probate in civil procedure and for essentially civil cases should be dispensed with in criminal prosecutions for rape with the civil aspect included therein, since no appropriate pleadings are filed wherein such allegations can be made. (People v. Solmoro, G.R. No. 139187-94, November 27, 2002) That complainant has suffered the trauma of mental, physical and psychological sufferings which constitute the bases for moral damages are too obvious to require the recital thereof at the trial by the victim, since the Court itself assumes and acknowledges such agony on her part as a gauge of her credibility, (id.) •

What are the other laws on child trafficking? Aside from R . A . 7610, as amended, the following are the laws on protection to children: 1.

R . A . 9262 - Anti-violence against W o m e n and Children

2.

R . A . 9208 - on the Anti-Trafficking in Persons Act of 2003

3.

Article 340, R P C - on corruption of minors

4.

R . A . 9208 - Anti-Child Pornography Act

R A 9208 - A N T I - C H I L D P O R N O G R A P H Y A C T O F 2009 xxx

xxx

xxx

( F o r the text a n d annotations, see Notes a n d Cases on Special P e n a l L a w s b y the same a u t h o r )

799


•

What is child pornography and who are deemed children? Child pornography ( C P ) refers to any representation, whether visual, audio, or written combination thereof, by electronic, mechanical, digital, optical, magnetic or any other means, of child engaged or involved in real or simulated explicit sexual activity. In view of this definition of , R . A . 9775 expanded the definition of children as covering not only (1) minors because of age; (2) adults who cannot take care or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition; but to include: (3) a person regardless of age who is presented, depicted or portrayed as child as defined herein; and (4) computer-generated or digitally or manually crafted image or graphics of person presented or made to appear to be a child.

•

What are the punishable acts in the law? 1.

Section 4 on unlawful or prohibited acts by any person: (a)

Hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of any form of C P

(b)

Produce, direct, manufacture or create any form of

(c)

Publish, offer, transmit, sell, distribute, broadcast, , promote, export or import any form of

(d)

Possess any form of with the intent to sell, distribute, publish, or broadcast

(e)

Knowingly, willfully and intentionally provide a venue for the commission of prohibited acts such as dens, private rooms, cubicles, cinemas, houses or in establishments purporting to be a legitimate business

(f)

For film distributors, theaters and telecommunication companies, by themselves or in cooperation with other entities, to distribute any form of


(g)

For a parent, legal guardian or person having custody or control of a child to knowingly permit the child to engage, participate or assist in any form of

(h)

Engage in the luring or grooming of a child. Luring means communicating, by means of a computer system, w i t h a child or someone who the offender believes to be a child for the purpose of facilitating the commission of sexual activity or production of any form of

(i)

Engage in pandering by offering, advertising, promoting, representing, or distributing though any means any material or purported material that is intended to cause another to believe that the said material contains any form of C P , regardless of the actual content thereof

(j)

To willfully access any form of

(k)

To conspire to commit any of these prohibited acts; and

(1)

To possess any form of ;

2.

Syndicated committed by a group of three or more persons conspiring or confederating with one another;

3.

Violation of the rule on confidentiality or the right of the child to privacy;

4.

Willful and knowing failure by the Internet content host to comply with his duties, viz.: ( a ) not to host any form of ; (b) within seven days, report the presence of any form of C P , as well as the particulars of the person maintaining, hosting, distributing or in any manner contributing to such internet address, to the proper authorities; (c) preserve such evidence for purposes of investigation and prosecution by relevant authorities; and (d) upon the request of proper authorities, furnish the particulars of s who gained or attempted to gain access to an internet address that contains any form of ; 801


5.

Willful and knowing failure by the Internet service provider ( I S P ) to comply with its duties. The I S P must notify the P N P or the N B I within seven days from obtaining facts and circumstances that any form of is being committed using its service or facility and to install available software, program or technology to ensure that access to or transmittal of any form of will be blocked or filtered;

6.

Willful and knowing failure of mall owners/operators and owners or lessors of other business establishments to notify the P N P or the N B I within seven days from obtaining facts and circumstances that is being committed in their premises. Photo developers, information technology professionals, credit card companies, banks and any person with direct knowledge of any form of activities must report suspected materials or transactions to the proper authorities within seven days from discovery. T h e law makes the R P C apply suppletorily and uses R P C nomenclature of penalty.

•

What presumptions on child pornography are prescribed? 1.

Possession of three or more articles of the same form of is prima facie evidence of the intent to sell, distribute, publish or broadcast penalized under Section 4(d) on possession with intent to sell, distribute, publish or broadcast any form of child pornography.

2.

Knowledge by mall owners/ operators and owners or lessors of other business establishments is disputably presumed; that they should know or reasonably know that a violation of the law is being committed in their premises.

3.

Knowledge of the mall owners/operators and owners or lessors of other business establishments is conclusively presumed of the violation of the law when there is public display of any form of within their premises.

4.

Conclusive presumption of willful and intentional violation on the basis of the failure of the internet content host to remove any form of within 48 hours from receiving the notice that any form of is hitting its server. 802


Section T w o . — Tres to Dwelling A r t . 280. Qualified tres to dwelling. — A n y private p e r s o n w h o shall enter the d w e l l i n g o f a n o t h e r against the latter's will, shall be p u n i s h e d by arresto mayor a n d a fine not e x c e e d i n g 1,000 pesos. If the offense be c o m m i t t e d by m e a n s of violence or intimidation, the p e n a l t y shall be prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s a n d a fine not exceeding 1,000 pesos. T h e p r o v i s i o n s of this article shall not be a p p l i c a b l e to any p e r s o n w h o shall enter a n o t h e r person's d w e l l i n g for the p u r p o s e of p r e v e n t i n g some serious h a r m to himself, the occupants of the d w e l l i n g or a t h i r d p e r s o n , n o r shall it be a p p l i c a b l e to a n y p e r s o n w h o shall enter a d w e l l i n g for the p u r p o s e of r e n d e r i n g some service to h u m a n i t y or justice, n o r to a n y o n e w h o shall enter cafes, t a v e r n s , inns a n d other p u b l i c houses, w h i l e the s a m e a r e o p e n . A r t . 281. Other forms of tres. — T h e penalty of arresto menor or a fine not e x c e e d i n g 200 pesos, or both, shall be imposed u p o n a n y p e r s o n w h o shall enter the closed premises or the fenced estate of a n o t h e r , w h i l e either of them a r e u n i n h a b i t e d , if the p r o h i b i t i o n to enter be manifest a n d the treser h a s not s e c u r e d the p e r m i s s i o n of the o w n e r or the c a r e t a k e r thereof. •

What determines whether the crime committed is tres to dwelling or tres to property? The use of the place determines the crime committed. If the place is inhabited, the crime is tres to dwelling. Even if it is a residential place, if at the time of the commission of the felony it is not inhabited, e.g., vacant apartment for rent, the crime is tres to property. It is not the structure that determines whether the offense is tres to dwelling or to property. A garage used as a dwelling is covered by the law. In tres to property there is clear or manifest prohibition for entering. The offender enters without the consent of the overseer or owner (not occupant because there must be none). 803


A store used as dwelling will not give rise to tres to dwelling if the store is open for business. But if the portion used as dwelling is separate, entry without consent is tres to dwelling. What does the phrase "against the will of the owner" denote? "Against the will of the owner" denotes that there is prohibition against entering. T h e prohibition maintains the privacy of dwelling. Whenever one enters through an opening not intended for entering, there is violation of privacy or qualified tres to dwelling. It is qualified because use of force is implied from entry through an opening not used for ingress. If the purpose of the entry is to commit a more serious crime (e.g., rape or murder) and the treser has commenced overt acts directly related to the more serious offense, the proper offense to charge is the more serious offense. D w e l l i n g is aggravating except in robbery or other crimes against property. Is the occupant required to be the owner of the dwelling? N o , because the law used "dwelling" without qualification as to who should own the place. Thus, this crime may be committed against a boarder or a tenant. A n d this crime may be committed by the owner of the dwelling if his entry therein is against the will of the present occupant. A tenant or boarder has the better right of possession (juridical) over the property, hence, his privacy should be respected even by the owner. Under what instances is the crime of tres not committed? 1.

Purpose of entry to dwelling is to prevent some serious harm to the person entering, the occupants or third persons.

2.

Purpose of entry is to render some aid to humanity or justice.

3.

Places entered are cafes, taverns, inns and similar places while they are open. But these places are not dwelling, hence, the crime is tres to property if entry is when these are not open.


•

Relate the crime of tres with other crimes. Instead of the crime of tres, the crime may be: a.

violation of domicile (Title I I ) if committed by public officers whose function involves enforcement of warrants

b.

unjust vexation or light coercion ( A r t i c l e 287)

c.

other form of theft (Article 308, paragraph 3)

d.

vagrancy (Article 202, N o . 4)

In Article 308, no. 3, the purpose of entry is to fish, harvest or gather, cereals, etc. T h e crime is attempted or consummated theft. If the public officer is not one authorized to serve a warrant of arrest or search warrant or to enter the place, he may commit tres instead of violation of dwelling. If the vacant property is not fenced, and there is no prohibition to entry, the loiterer w i l l be liable for vagrancy. R . A . 8368 repealed P . D . 772, the Anti-Squatting Law; only civil action for ejectment remains. Therefore, if one merely enters or loiters a private land, there is a crime committed — either vagrancy or tres to property. But if he erects a house and live there, there may be no crime committed. •

W h o should give permission or prohibit entry to dwelling? Permission to enter may be given by a person of sufficient discretion, not necessarily adult member of the household. Once permission is given to enter, tres is no longer committed. Section T h r e e . — Threats and Coercion

A r t . 282. Grave threats. — A n y p e r s o n w h o shall threaten another w i t h the infliction u p o n the person, honor, or p r o p e r t y of the latter or of his family of any w r o n g amounting to a crime, shall suffer: 1.

T h e penalty next l o w e r in d e g r e e than that p r e s c r i b e d by l a w for the crime he threatened to commit, if the offender shall have m a d e the threat d e m a n d i n g money or imposing any other condition, 805


even though not u n l a w f u l , a n d said offender shall not have attained his p u r p o s e , the penalty l o w e r by t w o degrees shall be imposed. If the threat be m a d e in w r i t i n g or t h r o u g h a m i d d l e m a n , the penalty shall be imposed in its m a x i m u m period. 2.

T h e penalty of arresto mayor a n d a fine not exceeding 500 pesos, if the threat shall not h a v e b e e n m a d e subject to a condition.

A r t . 283. Light threats. — A t h r e a t to commit a w r o n g not constituting a crime, m a d e in the m a n n e r e x p r e s s e d in subdivision 1 of the next p r e c e d i n g article, shall be p u n i s h e d by arresto mayor. A r t . 284. Bond for good behavior. — In all cases falling within the t w o next p r e c e d i n g articles, the p e r s o n m a k i n g the threats m a y also be r e q u i r e d to give b a i l not to molest the p e r s o n t h r e a t e n e d , or if he shall fail to give s u c h b a i l , he shall be sentenced to destierro. A r t . 285. Other light threats. — T h e p e n a l t y of arresto menor in its m i n i m u m p e r i o d or a fine not e x c e e d i n g 200 pesos shall be i m p o s e d u p o n : 1.

A n y p e r s o n w h o , w i t h o u t b e i n g i n c l u d e d in the provisions of the next p r e c e d i n g article, shall threaten a n o t h e r w i t h a w e a p o n , o r d r a w such w e a p o n in a q u a r r e l , unless it be in l a w f u l selfdefense;

2.

A n y p e r s o n w h o , in the h e a t of a n g e r , shall o r a l l y threaten a n o t h e r w i t h some h a r m not constituting a crime, a n d w h o by s u b s e q u e n t acts s h o w s that he d i d not persist in the i d e a i n v o l v e d in his threat, p r o v i d e d that the c i r c u m s t a n c e s of the offense shall not b r i n g it w i t h i n the p r o v i s i o n s of A r t i c l e 282 of this C o d e ;

3.

A n y p e r s o n w h o shall o r a l l y t h r e a t e n t o d o a n y h a r m not constituting a felony.


•

Distinguish among the three kinds of threat. T h e three kinds of threat are grave threat, light threat, and other light threats. T h e distinctions among these are:

•

1.

Between grave and light threats: in grave wrong threatened amounts to a crime which not be accompanied by any condition. In the wrong threatened does not amount to a always accompanied with condition.

threats, the may or may light threats, crime but is

2.

Between light threat and other light threats: in light threat, the threat does not amount to a crime and there is a demand for conditions; in other light threat, the wrong does not also amount to a crime but there is no demand for money or other conditions.

3.

In grave threat, the harm or wrong threatened is in the nature of a crime like a threat to kill and there are indications that offender persists in that purpose. However, although in the nature of crime, if the threat was made in the heat of anger and subsequent event shows that he does not intend to pursue the threat, it is other light threat. (Article 285, N o . 2)

Compare Light Threat with blackmailing. Light threat is similar to blackmailing. T h e wrong threatened does not amount to a crime, but is always with a demand for money or other conditions. There are two possible crimes involving blackmailing: 1.

Article 283 (light threat), if the material is not defamatory. For instance, threatening a young movie star to pay or offender will publish that she is married and with kids;

2.

Article 356 (threatening to publish a libel), if the threat is to publish something defamatory unless money is paid. In the above example, threatening a young movie star to pay or offender will publish that she was a child prostitute. It is indispensable that there is a demand for money or any consideration to prevent the publication.

807


•

How should the phrase "some harm not constituting a crime" in Article 285, no. 2 be construed? The phrase should be "some harm constituting a crime" because the provision states in the ultimate phrase "provided that the circumstances of the offense shall not bring it within the provisions of Article 282 of this Code." If it were not constituting a crime, that phrase will become a mere surplusage because the act can never come within the provisions of Article 282 since this latter provision refers to a wrong "amounting to a crime." Moreover, no. 3 of Article 285 provides for the situation where the offender shall orally threaten to do "any harm not constituting a felony." It is easier to commit an error with one word (not) than an error with a whole phrase of "provided that the circumstances. . ."

•

What is bond for good behavior? In the crimes of grave threat and light threat, the law imposes in the discretion of the court bond for good behavior. This is different from bond to keep the peace. Failure to post bond to keep the peace will result to imprisonment while in bond for good behavior, it will rebut to destierro. T h e latter is limited to grave threat and light threat; bond to keep the peace is not limited to a specific felony.

•

What are the nature and the forms of other light threat? Other light threat is not subject to a demand for money or any material consideration. T h e wrong threatened does not always amount to a crime. It may be in the form of: 1.

Drawing a weapon during a quarrel but not in self-defense and the weapon is not discharged. ( I f discharged, illegal discharge of firearm if intent to kill is not established. If in self-defense, no crime is committed because it is a justifying circumstance.) The provision, "without being included in the provisions of the next preceding article," is erroneous. T h e next preceding article is on bond for good behavior and prior to that is on light threat which involves a wrong not constituting a crime. Drawing a weapon cannot but be a wrong constituting a crime. Hence, the article must refer to Article 282 on grave threat.


•

2.

Orally threatening another with an act constituting a crime in the heat of anger and subsequent acts show that he did not persist in the threat (grave threat if circumstances show that he means the threat made).

3.

Orally threaten to do another any harm not constituting a felony.

Is a threat to sue in court unlawful? N o , because the threatened act must be a "wrong" and threatening to sue is not a "wrong." Petitioner's demand that the private respondent return the proceeds of the check accompanied by a threat to file criminal charges was not improper. There is nothing unlawful on the threat to sue. It is a practice followed not only by banks but even by individuals to demand payment of their s with the threat that upon failure to do so an action would be instituted in court. Such a threat is proper within the realm of the law as a means to enforce collection. Such a threat cannot constitute duress even if the claim proves to be unfounded so long as the creditor believes that it was his right to do so. (Berg v. National City Bank of New York, 102 Phil. 309)

A r t . 286. Grave coercions. — T h e penalty of prision correccional a n d a fine not e x c e e d i n g P6,000 shall be imposed u p o n any p e r s o n w h o , w i t h o u t a u t h o r i t y o f l a w , shall, b y m e a n s of violence, threats or intimidation, p r e v e n t another f r o m d o i n g something not p r o h i b i t e d by l a w or compel h i m to do something a g a i n s t his w i l l , w h e t h e r it be right or w r o n g . If the coercion be committed in violation of the exercise of the right of suffrage or for the p u r p o s e of compelling another to p e r f o r m any religious act or to p r e v e n t h i m from exercising such or f r o m so d o i n g such act, the penalty next h i g h e r in d e g r e e shall be imposed. (As amended by R.A. No. 7890, February 20, 1995.) A r t . 287. Light coercions. — A n y p e r s o n , w h o by means of violence, shall seize anything b e l o n g i n g to his debtor for the p u r p o s e of a p p l y i n g the same to the payment of the debt, shall suffer the penalty of arresto mayor in its m i n i m u m period a n d a fine equivalent to the value of the thing, but in no case less than 75 pesos. 809


A n y other coercion or unjust vexation shall be punished by arresto menor or a fine r a n g i n g from 5 to 200 pesos, or both. •

What are the principal distinctions between threat and coercion? In threat: 1.

The threatened harm or wrong is future and conditional.

2.

It may be done through an intermediary or in writing.

3.

Generally, it is committed by means of intimidation which is future and conditional. In coercion:

1.

The threatened harm or wrong is immediate, personal and direct.

2.

It cannot be done by means of an intermediary or in writing.

3.

It is generally committed by violence, although it may also be by intimidation if it is serious enough, direct, immediate and personal, as for example, intimidation with firearm.

Illustrating the distinction: Threat:

" I f you are still here when I come back, I w i l l kill you."

Coercion: " I f you do not get out, I will kill you." ( N o t e that here, the intimidation is immediate.) In grave coercion, violence through force or such display of force that would produce intimidation and control the will of the offended party is an essential ingredient. In grave threats, the intimidation as distinguished from that in robbery and coercion — which is direct, immediate and personal — is conditional and may not be personal for it may be by an intermediary, (id.)

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•

What are the elements of grave coercion? Grave coercion or coaccion grave has three elements: (a)

A n y person is prevented by another from doing something not prohibited by law, or compelled to do something against his will be it right or wrong;

(b)

T h e prevention or compulsion is effected by violence either by material force or such display of it as would produce intimidation and consequently, control over the will of the offended party; and

(c)

T h e person who restrains the will and liberty of another has no right to do so, or the restraint is not made under authority of a law or in the exercise of any lawful right. (id.)

If it is compulsion, even if the offender has the right to compel the doing of the act, there can be coercion. (Lee v. CA) Whether F E N I C S is indebted to F T I is immaterial. It is elementary that in no case may possession be acquired through force or intimidation as long as there is a possessor who objects thereto, and that he whio believes that he has an action or a right to deprive another of the holding of a thing must invoke the aid of the competent court if the holder should refuse to deliver the thing. In Mena, the Court, affirming the conviction for coaccion under Article 497 of the old Penal Code, rejected the defense that accused owned the carabaos which he forced therein complaining witness to release. T h e defendant was not clothed with any judicial or istrative authority, and it is a maxim of the law that no man is authorized to take the law into his own hands and enforce his rights with threats of violence, except in certain well-defined cases, where one acts in the necessary defense of one's life, liberty, or property, against unlawful aggression, and manifestly the defendant canot successfully maintain that his action was taken in defense of life, liberty or property. The carabaos were in the possession of the complaining witness for the purpose of turning them over to the justice of the peace; the defendant denied the right of the complaining witness to this possession

811


and claimed the absolute right to possession in himself; but in forcibly depriving the complaining witness of possession of the carabaos the defendant was not acting in defense of his right to the possession of the carabaos fron unlawful aggression, but rather asserting his right to take the possession from another, and thus he himself became the agressor. (Navarro v. OMB, G.R. No. 176291, December 4, 2009) •

What are the kinds of grave coercion? Grave coercion is of two kinds: 1.

Preventive — the offender uses violence or intimidation to prevent the victim from doing what he wants to do, and

2.

Compulsive — the offender uses violence or intimidation to compel the offended to do what he does not want to do. The distinctions between the two are:

1.

Preventive — the act prevented is N O T prohibited by law Compulsive — the act compelled may or may not be prohibited by law.

2.

Preventive — if the act prevented is prohibited by law, there is no grave coercion, but some other crimes, e.g., physical injuries, if injuries resulted, or unjust vexation, if no injury resulted. T h e preventive act however, should not amount to defense of self or relatives or strangers. For example, in order to prevent Diether from entering in the house of Rosario against her will, Rico boxed Diether resulting to the loss of his t w o front teeth. Rico is liable for serious physical injuries and not grave coercion because the desired forcible entry is an act prohibited by law. But Diether can put up the justifying circumstance of defense of stranger. Compulsive — if the act compelled is prohibited by law, grave coercion is still committed. In compulsive coercion, whether the act is prohibited or not is immaterial; whether the offender has the right to compel another to do something not prohibited by law is immaterial. T h e purpose here is to prevent a person from putting the l a w into his hands.

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Why is the distinction between preventive and compulsive coercion significant? T h e distinction between preventive and compulsive coercion is significant in the sense that the violence or intimidation w i l l bring about grave coercion if the act prevented is not prohibited by law; if prohibited by law, the liability is for some other crime. In compulsive, whether prohibited or not, it is grave coercion. M a y coercion be in writing? N o , since it must be direct, immediate and personal. Only threat can be in writing as expressly provided for in Article 282(1) since threat is inherently future and conditional. What different crimes can arise from intimidation? Intimidation is: 1.

Robbery, if the intimidation is immediate but conditional with demand for money or any consideration which is intent to gain.

2.

Threat, if it is future or conditional.

3.

Coercion, if it is direct, immediate, and personal or serious enough like threatening with a weapon.

T h e offender may be liable for either: (a) robbery under Article 294(5) if the subject matter is personal property and there is intent to gain or animus furandi, or (b) grave coercion if such intent does not exist. (People v. Alfeche, Jr., G.R. No. 124213, August 17, 1998) What is required of intimidation to make the act grave coercion? If the act compelled is one which the offender has a right to demand, even though there may be some form of intimidation, there is no grave coercion unless the intimidation is carried out to a point that deprived the offended of his freedom of will. There is a need to make a distinction between a case where a person gives his consent reluctantly and against his good sense and judgment and where he gives no consent at all, as where he acts against his will under a pressure he cannot 813


resist. Thus, in Valles v. Villa, 35 Phil. 795: "It is clear that one acts as voluntarily and independently in the eye of the law when he acts reluctantly and with hesitation as when he acts spontaneously and joyously." Legally speaking, he acts as voluntarily and freely when he acts wholly against his better sense and judgment as when he acts in conformity with them. Between the two acts, there is no difference in law. But when his sense, judgment, and his will rebel and he refuses absolutely to act as requested, but is nevertheless overcome by force or intimidation to such an extent that he becomes a mere automaton and acts mechanically only, a new element enters, namely, a disappearance of the personality of the actor. He ceases to exist as an independent entity with faculties and judgment, and in his place is substituted another — the one exercising the force or making use of the intimidation. W h i l e his hand signs, the will which moves it is another's. W h i l e a contract is made, it has, in reality and in law, only one party to it; and, there being only one party, the one using force or the intimidation, it is unenforceable for lack of a second party. From these considerations, it is clear that every case of alleged intimidation must be examined to determine within which class it falls. If it is within the first class, it is not duress in law; if it falls in the second, it is. (Lee v. CA, G.R. No. 90423, September 6, 1991) What should characterize the force in grave coercion? The force which is claimed to have compelled criminal conduct against the will of the actor must be immediate and continuous and threaten grave danger to his person during all of the time the act is being committed. T h a t is, it must be a dangerous force threatened 'in praesenti.' It must be a force threatening great bodily harm that remains constant in controlling the will of the unwilling participant while the act is being performed and from which he cannot then withdraw in safety, (id.) When property of a debtor is seized, what crimes may result? Seizure of the property of a debtor may amount to: 1.

Light coercion, if by means of violence, the property is applied to the debt. (Article 287) 814


2.

Robbery, if the value of the property seized is greater than the debt (intent to gain is present) and violence or intimidation is employed.

3.

Estafa, if there is no obligation on the part of the offended but was feigned; the deceit caused damage to the offended.

In the law on obligation and contract, payment can be in the form of property instead of money (dacion en pago). In order that the creditor shall not be charged with light coercion when the transaction is actually dacion, public writing evidencing dacion should be executed for his protection. What is unjust vexation? Unjust vexation is a form of light coercion. It is any form of annoyance of another person. It is a crime against personal security and not against property. Malicious mischief is the crime against property. For instance, destruction of the property to annoy another is malicious mischief, not unjust vexation. T h e unjust vexation must not amount to dishonor of another, otherwise, the crime is slander by deed. (Article 359) For instance, slapping a person or kissing a girl in public can amount to: 1.

Unjust vexation if the purpose is to annoy the offended;

2.

Maltreatment (slapping) if the purpose is to injure;

3.

Acts of lasciviousness (kissing) if with lewd intent; or

4.

Slander by deed if the purpose is to humiliate the victim.

Relate unjust vexation and attempted rape. The information alleged that petitioner forcefully covered the face of MM with a piece of cloth soaked in chemical. While the series of acts committed do not determine attempted rape, they constitute unjust vexation (light coercion) under Article 287. In the context of the constitutional assurance to the right to be informed of the nature and cause of the accusation, petitioner was not kept in the dark of the inculpatory acts for which he was proceeded against. It contains sufficient details to enable him to make his defense. There is no need to allege malice, restraint or compulsion in an information for unjust vexation. Unjust vexation exists even without the element of restraint 815


or compulsion since this term is broad enough to include any human conduct which, although not productive of some physical or material harm, would unjustly annoy or irritate an innocent person. The paramount question is whether the offender's act causes annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is directed. That MM after the incident cried while relating to her classmates what she perceived to be a sexual attack and the fact that she filed a case for attempted rape proved that she was disturbed, if not distressed by the acts of petitioner. (Baleros, Jr. v. People, G.R. No. 138033, February 22, 2006) A r t . 288. Other similar coercions. — (Compulsory purchase of merchandise and payment of wages by means of tokens). — T h e penalty of arresto mayor or a fine r a n g i n g f r o m 200 to 500 pesos, o r both shall b e i m p o s e d u p o n a n y p e r s o n , agent, o r officer of any association or c o r p o r a t i o n w h o shall force or compel, directly o r indirectly, o r shall k n o w i n g l y p e r m i t any l a b o r e r o r e m p l o y e e e m p l o y e d b y h i m o r b y s u c h firm or c o r p o r a t i o n to be forced or c o m p e l l e d , to p u r c h a s e m e r c h a n d i s e o r commodities o f a n y k i n d . T h e same penalties shall b e i m p o s e d u p o n a n y p e r s o n w h o shall p a y the w a g e s d u e a l a b o r e r o r e m p l o y e e e m p l o y e d b y him, b y m e a n s o f tokens o r objects o t h e r t h a n the l e g a l tender c u r r e n c y o f the P h i l i p p i n e I s l a n d s , unless e x p r e s s l y requested b y the l a b o r e r o r e m p l o y e e . A r t . 289. Formulation, maintenance, and prohibition of combination of capital or labor through violence or threats. — T h e penalty of arresto mayor a n d a fine not e x c e e d i n g 300 pesos shall b e imposed u p o n a n y p e r s o n w h o , for the p u r p o s e o f organizing, maintaining, or p r e v e n t i n g coalition of capital or l a b o r , strike of l a b o r e r s , or lockout of e m p l o y e r s , shall e m p l o y violence or threats in such a d e g r e e to c o m p e l or force the l a b o r e r s or employers in the free a n d legal exercise of their industry or w o r k , if the act shall not constitute a m o r e serious offense in a c c o r d a n c e w i t h the p r o v i s i o n s of this C o d e . (See the provisions of the Labor Code.)

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R . A . 9995 A n t i - P h o t o V o y e u r i s m A c t of 2009 What is photo or video voyeurism and how is it committed? Photo or video voyeurism means: a.

T h e act of taking photo or video coverage of a person or group of persons performing sexual act or any similar activity or of capturing an image of the private area of a person or persons without the latter's consent, under circumstances in which such person has a reasonable expectation of privacy, or

b.

T h e act of selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the photo or video coverage or recordings of such sexual act or similar activity through V C D / D V D , internet, cellular phones and similar means or device without the written consent of the persons involved, notwithstanding that consent to record or take photo or video coverage of the same was given by such persons.

"Under circumstances in which a person has a reasonable expectation of privacy" means: a.

That the subject believes that he or she could disrobe in privacy, without being concerned that an image or a private area of said person was being captured; or

b.

Those circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public, regardless of whether that person is in a public or private place.

T h e prohibition to copy, reproduce, sell, distribute, publish or broadcast shall apply even if the parties or any of them consented to the recording or taking photo or video coverage of the same. In other words, if the parties consented to the taking of video or photo but not to the selling, etc., the law is still violated. On the other hand, if the parties consented to the recording and to the copying, selling or publishing of the recording, this is a crime under the RPC under Article 201(2)(b) for indecent shows.

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The law does not cover peeping toms who do not take photo or video recording but merely stares at a woman walking up the over where the stairs are not solid but have spaces in between the steps. Her undergarment clad private area may be visible to a person below or, in a public toilet, a male may use a mirror or a hole to peep through and watch a female in an undignified pose. These situations are not covered in the law for what is penalized are the capturing, photographing, recording or copying of sexual acts or private parts.

Chapter Three DISCOVERY A N D REVELATION OF SECRETS A r t . 290. Discovering secrets through seizure of correspondence. — T h e penalty of prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s a n d a fine not e x c e e d i n g 500 pesos shall be imposed upon any private individual w h o , in order to discover secrets of a n o t h e r , shall seize his p a p e r s or letters a n d r e v e a l the contents thereof. If the o f f e n d e r shall not r e v e a l such secrets, the penalty shall be arresto mayor a n d a fine not e x c e e d i n g 500 pesos. T h i s p r o v i s i o n shall not be a p p l i c a b l e to parents, g u a r d i a n s , or p e r s o n s e n t r u s t e d with the custody of m i n o r s w i t h respect to the p a p e r s or letters of the children or m i n o r s p l a c e d u n d e r their c a r e or custody, n o r to spouses w i t h respect to the p a p e r s or letters of either of them. A r t . 291. Revealing secrets with abuse of office. — T h e penalty of arresto mayor a n d a fine not e x c e e d i n g 500 pesos shall b e imposed u p o n a n y m a n a g e r , employee, o r servant w h o , in such capacity, shall l e a r n the secrets of his p r i n c i p a l or master a n d shall r e v e a l such secrets. A r t . 292. Revelation of industrial secrets. — T h e penalty of prision correccional in its m i n i m u m a n d m e d i u m periods a n d a fine not e x c e e d i n g 500 pesos shall be imposed upon the p e r s o n in c h a r g e , employee, or w o r k m a n of any m a n u f a c t u r i n g or industrial establishment w h o , to the prejudice of the o w n e r thereof, shall reveal the secrets of the industry of the latter. •

What are penalized in Article 290? Article 290 penalizes the acts of seizing correspondence, opening and reading the same. Whether offender revealed the contents or not is immaterial. But if he did, the penalty is higher. 819


The contents of the correspondence must be "secrets" which implies that the letter is of confidential character, e.g., enclosed in an envelope. If an open letter, such as post card, the crime cannot be committed because of the absence of confidentiality or secrecy. •

What

other

crimes

involving

correspondence

may

be

committed?

»

1.

Malicious mischief if the purpose of seizure is not to know the contents but simply to destroy the mail or letter to prevent the addressee from receiving it. Malicious mischief is the deliberate destruction of the property of another and mail is property as it can be the subject of theft under Article 310;

2.

Arson if the mail matter is burned for the value of the mail is irrelevant as the law on arson does not require a minimum value for the property and since mail matter is considered property;

3.

Estafa, under Article 315(3)(c) if the offender knew that the addressee must receive the mail, otherwise, the latter will be prejudiced; e.g., pawnshop notices or notice of disconnection of electric or water service;

4.

Qualified theft of mail matter if the purpose is to take valuables inside the mail;

5.

Infidelity in the custody of documents, if the mail matter is officially entrusted to the public officer for transmittal;

Who are exempted from the provisions of Article 290? Parents, guardians, and persons exercising legal authority over minors are exempt because it is within their authority to check the activities of minors. T h e same is true with respect to husband and wife to maintain fidelity with each other, provided they are not legally separated and living apart. T h e guardianship contemplated here is over the person of the ward as the guardian has the duty to know the ward's communications for the latter's protection. This is especially true today when text and internet messages have resulted to the rape of many minors by persons they got acquainted with thru such facilities.

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DISCOVERY A N D REVELATION OF SECRETS

R E P U B L I C A C T N O . 4200 ANTI-WIRE TAPPING ACT S E C T I O N 1. It shall be u n l a w f u l for a n y p e r s o n , not b e i n g a u t h o r i z e d b y all the p a r t i e s t o a n y p r i v a t e c o m m u n i c a t i o n o r s p o k e n w o r d , t o t a p a n y w i r e o r c a b l e , o r b y using any other device or a r r a n g e m e n t , to secretly o v e r h e a r , intercept, o r r e c o r d such c o m m u n i c a t i o n o r s p o k e n w o r d b y using a device c o m m o n l y k n o w n as a d i c t a p h o n e or d i c t a g r a p h or detectaphone or walkie-talkie or tape recorder, or however otherwise described. It shall also be u n l a w f u l for a n y p e r s o n , be he a p a r t i c i p a n t or not in the act or acts p e n a l i z e d in the next p r e c e d i n g sentence, t o k n o w i n g l y possess a n y t a p e r e c o r d , w i r e r e c o r d , disc r e c o r d , o r a n y other such r e c o r d , o r copies thereof, o f a n y c o m m u n i c a t i o n o r s p o k e n w o r d s e c u r e d either b e f o r e or after the effective d a t e of this A c t in the m a n n e r p r o h i b i t e d by this l a w ; or to r e p i a y the same for a n y other p e r s o n or persons; or to c o m m u n i c a t e the contents thereof, either v e r b a l l y or in w r i t i n g , or to f u r n i s h transcriptions thereof, w h e t h e r complete or p a r t i a l , to a n y other person: Provided, T h a t the use of such r e c o r d or any copies thereof as evidence in a n y civil, c r i m i n a l investigation or trial of offenses m e n t i o n e d in Section 3 hereof, shall not be covered by this p r o h i b i t i o n . S E C T I O N 2 . A n y p e r s o n w h o wilfully o r k n o w i n g l y does or w h o shall a i d , p e r m i t , or cause to be done any of the acts d e c l a r e d to be u n l a w f u l in the p r e c e d i n g section or w h o violates the p r o v i s i o n s of the f o l l o w i n g section or of any o r d e r issued t h e r e u n d e r , or aids, permits, or causes such violation shall, u p o n conviction thereof, be punished by imprisonment for not less t h a n six months or m o r e than six years a n d w i t h the accessory penalty of p e r p e t u a l absolute disqualification f r o m p u b l i c office if the offender be a public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings. S E C T I O N 3. N o t h i n g contained in this Act, however, shall r e n d e r it u n l a w f u l or p u n i s h a b l e for any peace officer, 821


w h o is authorized by a written o r d e r of the C o u r t , to execute any of the acts declared to be u n l a w f u l in the t w o p r e c e d i n g sections in cases involving the crimes of treason, espionage, p r o v o k i n g w a r a n d disloyalty in case of w a r , piracy, mutiny in the high seas, rebellion, conspiracy a n d p r o p o s a l to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, k i d n a p p i n g as defined by the Revised P e n a l C o d e , a n d violations of C o m m o n w e a l t h Act N o . 616, p u n i s h i n g e s p i o n a g e a n d other offenses against national security: Provided, T h a t such w r i t t e n o r d e r shall only be issued or g r a n t e d u p o n w r i t t e n a p p l i c a t i o n a n d the examination u n d e r oath or affirmation of the a p p l i c a n t a n d the witnesses he m a y p r o d u c e a n d a s h o w i n g : (1) that there a r e r e a s o n a b l e g r o u n d s to b e l i e v e that a n y of the crimes e n u m e r a t e d h e r e i n a b o v e has b e e n committed or is b e i n g committed or is a b o u t to be committed: Provided, however, T h a t in cases involving the offenses of r e b e l l i o n , c o n s p i r a c y a n d p r o p o s a l to commit r e b e l l i o n , inciting to r e b e l l i o n , sedition, c o n s p i r a c y to commit sedition, a n d inciting to sedition, such a u t h o r i t y shall b e g r a n t e d only u p o n p r i o r p r o o f that a r e b e l l i o n or acts of sedition, as the case m a y b e , have actually b e e n c r a r e b e i n g committed; ( 2 ) that there a r e r e a s o n a b l e g r o u n d s t o b e l i e v e that e v i d e n c e w i l l be o b t a i n e d essential to the conviction of a n y p e r s o n for, or to the solution of, or to the p r e v e n t i o n of, a n y such crimes; a n d ( 3 ) that there a r e n o o t h e r m e a n s r e a d i l y a v a i l a b l e for o b t a i n i n g such evidence. T h e o r d e r granted or issued shall specify: (1) the identity of the p e r s o n or p e r s o n s w h o s e communications, c o n v e r s a t i o n s , discussions, o r s p o k e n w o r d s are to be overheard, intercepted, or recorded and, in the case of t e l e g r a p h i c or t e l e p h o n i c c o m m u n i c a t i o n s , the t e l e g r a p h line o r the t e l e p h o n e n u m b e r i n v o l v e d a n d its location; ( 2 ) the identity of the p e a c e officer a u t h o r i z e d to o v e r h e a r , intercept, or r e c o r d the c o m m u n i c a t i o n s , conversations, discussions, o r s p o k e n w o r d s ; ( 3 ) the offense o r offenses committed o r s o u g h t t o b e p r e v e n t e d ; a n d (4) the p e r i o d o f the a u t h o r i z a t i o n . T h e a u t h o r i z a t i o n shall b e effective for the p e r i o d specified in the o r d e r w h i c h shall not exceed sixty (60) d a y s f r o m the d a t e of issuance of the o r d e r , unless e x t e n d e d o r r e n e w e d b y the c o u r t u p o n b e i n g satisfied that such extension or r e n e w a l is in the p u b l i c interest.

822


A l l r e c o r d i n g s m a d e u n d e r c o u r t a u t h o r i z a t i o n shall, w i t h i n forty-eight h o u r s after the e x p i r a t i o n of the p e r i o d fixed in the o r d e r , be d e p o s i t e d w i t h the c o u r t in a sealed e n v e l o p e o r sealed p a c k a g e , a n d shall b e a c c o m p a n i e d b y a n affidavit of the p e a c e officer g r a n t e d such a u t h o r i t y stating the n u m b e r o f r e c o r d i n g s m a d e , the dates a n d times c o v e r e d by each r e c o r d i n g , the n u m b e r of tapes, discs, or r e c o r d s included in the deposit, a n d certifying that no duplicates o r copies o f the w h o l e o r a n y p a r t t h e r e o f h a v e b e e n m a d e , or if m a d e , that all such d u p l i c a t e s or copies a r e included in the e n v e l o p e or p a c k a g e d e p o s i t e d w i t h the court. T h e envelope or p a c k a g e so d e p o s i t e d shall not be o p e n e d , or the r e c o r d i n g s r e p l a y e d , or u s e d in e v i d e n c e , or their contents r e v e a l e d , except u p o n o r d e r of the court, w h i c h shall not be g r a n t e d except u p o n motion, w i t h d u e notice a n d o p p o r t u n i t y to be h e a r d to the p e r s o n or p e r s o n s w h o s e c o n v e r s a t i o n or communications h a v e b e e n r e c o r d e d . T h e c o u r t r e f e r r e d to in this section shall be u n d e r s t o o d to m e a n the C o u r t of F i r s t I n s t a n c e w i t h i n w h o s e territorial jurisdiction the acts for w h i c h a u t h o r i t y is a p p l i e d for a r e to be executed. S E C T I O N 4 . A n y c o m m u n i c a t i o n o r s p o k e n w o r d , o r the existence, contents, s u b s t a n c e , p u r p o r t , effect, or m e a n i n g of the same or a n y p a r t thereof, or a n y information therein contained o b t a i n e d or s e c u r e d by a n y p e r s o n in violation of the p r e c e d i n g sections of this A c t shall not be issible in evidence in a n y j u d i c i a l , quasi-judicial, legislative or istrative h e a r i n g o r investigation. S E C T I O N 5. A l l l a w s inconsistent w i t h the provisions of this Act a r e h e r e b y r e p e a l e d or a c c o r d i n g l y a m e n d e d . S E C T I O N 6. T h i s A c t shall take effect u p o n its a p p r o v a l . A p p r o v e d : J u n e 19, 1965. •

What kind of communication is covered by R.A. 4200? Only private communication is expressly prohibited to be recorded secretly by any person including one party thereto. Therefore, recording of "public" conversations such as those held in barangay centers involving conversation between contending parties or in police stations during investigations cannot be considered as within the law's prohibition. 823


Ramirez v. CA, G.R.

No. 93833, September 28, 1995

SS filed a civil case for damages against EE because the latter allegedly vexed and humiliated her. She presented in evidence a verbatim transcript of the event culled from a tape recording made by SS of the confrontation. Is R.A. 4200 violated if the recording was done by a party to the conversation? Y e s . Section 1 of the law makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized is other than or different from those involved in private communication. T h e statute's intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier "any." Consequently, "even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter ( w i l l ) qualify as a violator" of R . A . 4200. There must be consent of all the parties to any private communication or spoken word to tap any w i r e or cable or to use any device or arrangement to hear, intercept or record. Should the conversation be alleged in the information? N o . W h a t R . A . 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means of the devices enumerated therein. T h e mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1 of R . A . 4200. Nowhere is it required that before one can be regarded as a violator, its substance as well as its communication to a third person should be professed. Does "private communication" include "private conversations"? It does. A contrary contention narrows the ordinary meaning of the word "communication" to a point of absurdity. In its ordinary signification, communication connotes the act of sharing or imparting, as in conversation, or signifies the 824


process by which meanings or thoughts are shared between individuals through common system or symbols (as language signs or gestures). These definitions are broad enough to include verbal or non-verbal, written or expressive communications of "meanings or thoughts." •

Are tape recorders among the prohibited devices? Y e s . T h e law expressly includes the unauthorized recording of private communications with the use of tape recorders among the acts punishable. Gaanan, which dealt with the issue of telephone wiretapping, held that the use of a telephone extension for the purpose of overhearing private conversation without authorization did not violate R . A . 4200. For, a telephone extension device was not among those "devices or arrangements" enumerated therein and the existence of telephone extension is so common that it can be taken for granted. T h e instant case turns on a different note, because the applicable facts and circumstance pointing to a violation of R . A . 4200 suffer no ambiguity.

825

TITLE TEN

CRIMES AGAINST PROPERTY What crimes are covered under this title? 1. Robbery with violence against or intimidation of persons (294) 2. Robbery in band (295-96) 3. Attempted and frustrated robbery with homicide (297) 4. Execution of deeds by means of violence or intimidation (298) 5. Robbery by the use of force upon things (299-303) 6. Possession of picklocks or similar tools (304-5) 7. Brigandage (306-7) 8. Theft (308-11) 9. Usurpation (312) 10. Altering boundaries or landmarks (313) 11. Culpable insolvency (314) 12. Swindling and other deceits (315-8) 13. Chattel mortgage (319) 14. Arson and other crimes involving destruction (320) and 15. Malicious mischief (327-23)

826

Chapter One ROBBERY I N G E N E R A L A r t . 293. Who are guilty of robbery. — A n y p e r s o n w h o , w i t h intent t o g a i n , shall take a n y p e r s o n a l p r o p e r t y b e l o n g i n g to another, by m e a n s of violence a g a i n s t or intimidation of a n y p e r s o n , o r u s i n g force u p o n a n y t h i n g , shall b e guilty o f robbery. •

Compare the crimes of robbery and theft. Robbery and theft are analogous crimes involving taking with intent to gain of personal property. T h e crime is robbery if committed with violence against or intimidation upon person or with force upon things. Otherwise, it is theft.

•

Can real property be subject of robbery? In a limited sense, yes. Articles 298 and 312 are two articles which may involve "taking" of real property. Article 298 holds liable for robbery any person who defrauds another by means of violence or intimidation by compelling the latter to sign, execute or deliver any public instrument or document. The law did not qualify what is involved in such public instrument or document, thus, may include real property. Alfeche said that usurpation under Article 312 which involves the occupation of real property or real rights is similar to robbery except that in the latter, the subject is personal property.

•

What is asportation? When is it present? Asportation is the taking of personal property out of the possession of the owner, without his privity and consent and without animus revertendi. Asportation is present once the property is in fact taken from the owner. Severance of goods from the possession of the owner and absolute control of the property by the taker, even for an instant, constitutes 827


asportation. (People v. Apolinario, G.R. No. 97426, June 3, 1993) Appellant was initially seen in the act of unlawfully taking away the bag of TT and that he succeeded in forcibly taking possession of the same. T h e element of taking or asportation was completed when appellant violently got hold of the bag, however momentarily. In robbery, the element of asportation — which requires the unlawful taking of personal property from the possession of its owner, without his privity and consent and without animus revertendi — is present once the property is in fact taken from the owner, even for just an instant. The subsequent disposition of the property taken, or the failure to dispose of the same, is irrelevant in so far as the characterization of the offense as robbery is concerned. (People v. Gavina, G.R. No. 118076, November 20, 1996) How is animus lucrandi determined? Animus lucrandi or intent to gain is an internal act which can be established through the overt acts of the offender. Sia Teb Ban, 54 Phil., said that "one's intention may be gathered from one's deeds." Appellant's act of obtaining possession of the victim's clutch bag through violence speaks for itself. A n d , the fact that the clutch bag of the victim contained a considerable amount of money confirms that appellant had intended to rob TT all along, (id.) What will give rise to the presumption of animus lucrandi? Intent to gain or animus lucrandi is presumed w h e n one is found in possession of stolen goods precisely because the taking of another's property is an unlawful act. Reyes, G.R. No. 135682, March 26, 2003, held: Appellant's contention that the animus lucrandi was not sufficiently established by the prosecution is devoid of merit. Animus lucrandi or intent to gain is an internal act which can be established through the overt acts of the offender. Although proof of motive for the crime is essential when the evidence of the robbery is circumstantial, intent to gain may be presumed from the furtive taking of useful property pertaining to another, unless special circumstances reveal a different

828

ROBBERY IN G E N E R A L

intent on the part of the perpetrator. T h e intent to gain may be presumed from the proven unlawful taking. CC's act of taking the victim's wristwatch while RR poked a knife behind him sufficiently gave rise to the presumption. •

When is robbery or theft consummated? W h e n the offender takes complete control of the property, robbery or theft is consummated. T h e r e is complete control when the offender has acquired and substituted his will over the property. It is not necessary that the offender has taken away the property or used the same. (Dunlao, Sr. v. CA, G.R. Nos. 117267-117310, August 22, 1996)

•

Can there be frustrated theft? N o n e . By its definition under Article 308, theft can only be attempted or consummated. It does not have a frustrated stage as its element of unlawful taking, or apoderamiento, is deemed complete from the moment the offended gains possession of the thing, even if he has no opportunity to dispose of the same. T h e difference between a frustrated and consummated crime lies in whether the felony itself was actually produced by the acts of execution because in both stages, all the elements have been completed by the offender. Therefore, the statutory definition of theft cannot it of a frustrated stage as theft is produced upon the completion of the element of unlawful taking. (Valenzuela v. People, G.R. No. 160188, June 21, 2007) Valenzuela lays to rest the controversy about the existence of frustrated theft created by Dino ( N o . 924-R, February 18, 1948, 45 O.G. 3446) and Flores (6 C A . Rep. 2d 835 [1964]). While Dino and Flores considered the mindset of the offended, the statutory definition of theft considers only the perspective of intent to gain on the part of the offender, compounded by the deprivation of property on the part of the victim. •

Must the person divested of personal property be its owner? N o . Article 293 employs the phrase "belonging to another" and this merely requires that the property taken does not belong to the offender. Actual possession of the property by 829


the person dispossessed thereof suffices. In fact, robbery may be committed against a bailee or a person who himself has stolen it (US v. Albao, 29 Phil. 1914). So long as there is apoderamiento of personal property from another against the latter's will through violence or intimidation, with animo de lucro, robbery is the offense imputable to the offender. And, if the victim is killed on the occasion or by reason of the robbery, the offense is converted into the composite crime of robbery with homicide, (id.) •

When is the element of "taking" not present? "Taking" as an element of robbery means depriving the offended party of ownership of the thing taken with the character of permanency. T h e taking of personal property belonging to another should not be under a claim of ownership. One who takes the property openly and avowedly under claim of title offered in good faith is not guilty of robbery even though the claim of ownership is untenable. T h e intent to gain, being an internal act, cannot be established by direct evidence, except in case of confession by the accused. It must, therefore, be deduced from the circumstances surrounding the commission of the offense. (Bernal v. CA, G.R. No. L-32798, August 30, 1988)

•

Compare robbery with violence against or intimidation of persons to robbery with force upon things. 1.

Robbery with violence against or intimidation of persons is deemed more serious than robbery with force upon things.

2.

T h e penalty on the former is based on the gravity of the violence or intimidation; on the latter upon the value of the thing taken.

3.

W h e n both kinds of robbery are present, the former shall take precedence over the latter for it is more serious, unless the penalty for robbery with force upon things is higher, in which case the crime shall be complexed. (Napolis v. CA)

830


Section 1. — Robbery with violence against or intimidation of persons A r t . 294. Robbery with violence against or intimidation of persons — Penalties. — A n y p e r s o n guilty of r o b b e r y with the use of violence a g a i n s t or intimidation of a n y p e r s o n shall suffer: 1.

T h e p e n a l t y of reclusion perpetua to death, w h e n b y r e a s o n o r o n occasion o f the r o b b e r y , the crime o f h o m i c i d e shall h a v e b e e n committed; o r w h e n the r o b b e r y shall h a v e b e e n a c c o m p a n i e d b y r a p e o r intentional m u t i l a t i o n o r a r s o n .

2.

T h e p e n a l t y of reclusion temporal in its m e d i u m p e r i o d to reclusion perpetua, w h e n or if by r e a s o n or on occasion of such r o b b e r y , a n y of the physical injuries p e n a l i z e d in s u b d i v i s i o n 1 of A r t . 263 shall h a v e b e e n inflicted.

3.

T h e penalty of reclusion temporal, w h e n by reason or on occasion of the r o b b e r y , a n y of the physical injuries p e n a l i z e d in s u b d i v i s i o n 2 of the article m e n t i o n e d in the next p r e c e d i n g p a r a g r a p h , shall h a v e b e e n inflicted.

4.

T h e p e n a l t y of prision mayor in its m a x i m u m p e r i o d to reclusion temporal in its m e d i u m p e r i o d , if the violence or intimidation e m p l o y e d in the commission of the r o b b e r y shall h a v e b e e n c a r r i e d to a d e g r e e clearly u n n e c e s s a r y for the commission of the crime, or w h e n in the course of its execution, the offender shall h a v e inflicted u p o n any person not responsible for its commission any of the physical injuries c o v e r e d by subdivisions 3 and 4 of said A r t . 263.

5.

T h e penalty of prision correccional in its m a x i m u m period to prision mayor in its m e d i u m period in other cases. (As amended by Sec. 9, R.A. No. 7659.)

831


What crimes are penalized under Article 294? Article 294 defines and penalizes the following: (a)

Robbery with homicide;

(b)

Robbery with rape, with intentional mutilation, or with physical injuries penalized in subdivision 1 of Article 263;

(c)

Robbery with physical injuries penalized in subdivision 2 of Article 263;

(d)

Robbery committed with unnecessary violence or with physical injuries covered by subdivisions 3 and 4 of Article 263; and

(e)

Robbery in other cases or simple robbery where the violence against or intimidation of persons cannot be subsumed by, or where it is not sufficiently specified so as to fall under the first four paragraphs. (People v. Alfeche, Jr.)

T h e first four are composite crimes or special complex crimes and the fifth is a separate crime. T h e above order should be observed. Thus, if both homicide and rape are present, the crime is robbery with homicide; the rape however is N O T aggravating because it is not an aggravating circumstance under Article 14. T H E R E I S N O " R O B B E R Y W I T H H O M I C I D E A N D RAPE." What is the nature of the homicide, rape, mutilation, arson or physical injuries committed with the robbery? T h e homicide, rape, etc. are not separate crimes but circumstances which are component elements of the special complex crimes of robbery with homicide, etc. T h e injuries treated in Article 294(2) to (4) composing the special complex crimes of robbery with physical injuries are serious physical injuries found in A r t i c l e 263. Therefore, the injuries comprising the simple robbery in Article 294(5) are those of less serious and slight physical injuries. Robbery with homicide is a crime primarily classified as one against property and not against persons. (People v. Esperraguerra, 248 SCRA) 832


•

What is the nature of the crime of robbery with homicide? This special complex crime is primarily a crime against property and not against persons, homicide being a mere incident of the robbery with the latter being the main purpose and object of the criminal. In robbery with homicide, what is essential is that there be a direct relation, an intimate connection between robbery and the killing, whether the latter is prior or subsequent to the former or whether both crimes are committed at the same time. (People v. Navales, Jr., G.R. No. 112977, January 23, 1997)

•

In charging the complex crime of robbery with homicide, what should the Information contain? T h e information should charge each element of the complex offense with the same precision as if the two constituent offenses w e r e the subject of separate prosecutions. (People v. Bulalayao, 48 SCAD) T h e elements of robbery are as follows: a.

T h e res be: (1) personal property; (2) belonging to another;

b.

There is (3) unlawful taking of that property;

c.

T h e taking must be (4) with intent to gain; and

d.

There is (5) violence against or intimidation of any person, or force upon anything. A n d the elements of homicide are as follows:

a.

A person was killed;

b.

T h e accused killed him without any justifying circumstance;

c.

T h e accused had the intention to kill, which is presumed;

d.

T h e killing was not attended by any of the qualifying circumstances of murder, parricide or infanticide. (However, homicide is used in the generic sense and includes murder, parricide, infanticide.)

833


In robbery with homicide, the following elements must be proved: 1.

The taking of personal property is committed with violence or intimidation against persons;

2.

The property taken belongs to another;

3.

The taking is done with animo lucrandi; and

4.

By reason of the robbery or on the occasion thereof, homicide (used in its generic sense) is committed.

It was proved that: (1) appellants asported a gun with violence and intimidation against the victim; (2) the gun belonged to the deceased; and (3) the security guard was killed. Animus lucrandi is presumed when there is proof of asportation. (People v. Salazar, G.R. No. 99355, August 11, 1997) Intimidation is present in the taking when acts are performed which, in their own nature or by reason of the circumstances under which they are executed, restrict or hinder the free exercise of the will of the victim or inspire him with fear. (People v. Pa-el, G.R. No. 108733, September 16, 1996) What does "homicide" in robbery with homicide encom? Homicide is used in the generic sense. A n y kind of death, even accidental w i l l bring about robbery with homicide. Both robbery and homicide must be consummated. If the robbery is merely attempted, the crime will be attempted robbery with homicide under Article 297. H o w e v e r , if there is intent to kill but not consummated, there w i l l be t w o separate crimes (use the correct term, e.g., attempted or frustrated homicide or murder, and attempted robbery). If accidental, hence, no intent to kill and injury resulted, attempted robbery with serious physical injuries under Article 48. T h e crime becomes robbery with homicide when by reason or on occasion of a robbery with the use of violence against or intimidation of person, the crime of homicide is committed. The term "homicide" is used in its generic sense, hence, it includes the commission of murder and slight injuries during the robbery. (People v. Camat, April 1994) 834


In fine, homicide in its generic sense includes parricide, infanticide, murder and absorbs physical injuries committed together with homicide on the occasion or by reason of the robbery. •

When the special complex crime of robbery with homicide is not proved, for what can the defendants be convicted? W h e r e a complex crime is charged and the evidence fails to one of the component offenses, the defendant can be convicted of the offense proved, (id.) As there w e r e no eyewitnesses to the alleged robbery, and although the evidence already showed that at the time of the killing the money in the bag of the deceased was missing, it cannot be presumed that there was robbery. (People v. Ambahang, 108 Phil. 325 [I960]) It is essential to prove intent to rob. This necessarily includes evidence to the effect that the accused carried away the effects or personalty of the deceased. In the instant case, there is absence of positive proof that appellant intended to rob the deceased or that he was the one who carried away the money belonging to the victim. His mere presence at the locus criminis is not sufficient to implicate him. (id.) To sustain a conviction for the complex crime of robbery with homicide, which is primarily an offense against property, it is essential that the robbery itself be proved beyond reasonable doubt. Proof of the homicide alone is not sufficient to a conviction for the crime of robbery with homicide. (People v. Pagal, 79 SCRA) •

What is the significance of the phrase "by reason" in Article 294 on robbery with homicide? T h e phrase "by reason" covers homicide committed before or after the taking of personal property of another, as long as the motive of the offender in killing a person before the robbery is to deprive the victim of his personal property which is sought to be accomplished by eliminating an obstacle or opposition or to defend the possession of the stolen property. (People v. Torres, G.R. No. 130661, June 27, 2001)

835


From all indications, accused, a C A F G U member, was primarily interested in taking the life of the two deceased whom he suspected of exacting quota from the Barangay Captain and the taking of the subject engine was merely an afterthought that arose subsequent to the killing of the victim. Such taking after the culprit has successfully carried out the primary criminal intent to kill the victim is theft for the use of violence or force is no longer necessary. (People v. Consejero, G.R. No. 118334, February 20, 2001) •

Is it necessary for the robbery to precede the killing for the crime to be "robbery with homicide"? Article 294(1) uses the term "by reason or on the occasion of the homicide (unlike in the case of rape, mutilation, etc.), therefore, the homicide may be before or after the robbery, provided, the taking is not merely an afterthought (People v. Pacapac, 248 SCRA). If the purpose of the offenders is to kill the victim and the taking is an afterthought, the crimes are homicide or murder as the case may be and theft, not robbery because a dead person cannot be intimidated.

•

In robbery with homicide, should robbery be the sole purpose of the offenders? N o , it is not necessary to show that the sole purpose was robbery and by reason thereof homicide was committed. Article 294 provides that there is robbery with homicide not only when "by reason of the robbery" homicide is committed but also when "on the occasion" thereof homicide is committed. If robbery and homicide are committed on the same occasion, the special complex crime is deemed committed. (People v. Alberca, G.R. No. 117106, June 26, 1996) In a case, it was held that to sustain conviction for the special complex crime of robbery with homicide, it must be established with certitude that the killing was a mere incident to the robbery, the latter being the main purpose and objective of the criminals. It contemplates a situation where the homicide resulted by reason or on the occasion of the robbery. In the case at bar, appellant can only be convicted of two counts of homicide, there being no proof with moral certainty that


the homicide was committed by reason or on the occasion of robbery. (People v. Evardo, G.R. No. 100724, December 1, 1992) Pamintuan, G.R. No. 100771, May 28, 1993, found guilty of robbery with homicide the prisoners who escaped from jail, killing the jail guards and taking firearms from the armory. In Tolentino, G.R. No. L-59097, September 20, 1988, three individuals w e r e creating trouble in a store. W h e n a policeman across the street was summoned for help by the storeowner, the three turned to him and ganged up on him. T h e accused took the service revolver of the policeman and shot him and then fled with the gun. It was contended that the taking of the gun was a mere afterthought and that to prove robbery with homicide the prosecution must show that the robbery preceded the killing. In rejecting this contention, the Court held: "The contentions of the accused-appellant are untenable. The testimony of Lourdes Santos clearly shows that there was an intent to rob the victim of his gun. The gun was first taken from the victim before he was killed. The gun was then taken away and hidden. Nevertheless, whether or not the taking was before or after the death of the victim is of no moment in this case. It is immaterial that homicide preceded the robbery where robbery was the real motive of the culprits. (People vs. Gapasin 145 SCRA 178) In the case at bar, the accused intended both to take the gun and kill the victim." In Hasiron, three individuals went to the house of the victim and, when told that he was asleep, left with the advice that they would return. An hour later they returned. They talked with the victim outside his house and after awhile one of the trio shot the victim, another one went inside his house and took his M-16 Armalite, while the accused took the victim's service pistol which was tucked in his waist. It was contended that robbery was not the primary motive because if this had been their intention, they would have robbed the victim of his guns the first time they came. Indeed, the trial court said that the groups' purpose in looking for the victim was to "confront [him] about something." T h e contention was dismissed. The accused convicted of robbery with homicide, thusly: "[TJhere is no reasonable doubt that a principal (though not necessarily the only) objective of the malefactors was to take 837


away the firearms in the possession of the deceased policeman. They evidently knew that Abdulmonim had a firearm in his house, apart from the handgun tucked in his waist; Jerry Hayudini promptly and unerringly went inside the Aspi house and secured the M-16 armalite, while appellant pulled out the handgun from Abdulmonim's waist." In Ga, G.R. No. L-49831, June 27,1990, the accused planned to rob a house at Forbes Park in Makati. They killed the house owner, his wife and houseboy and seriously wounded his daughter and, as help was coming, they fled without being able to take anything from the house. Instead they took a wristwatch and transistor radio belonging to a houseboy. The crime was robbery with homicide. In Balanag, G.R. No. 103225, September 15, 1994, the accused entered the house of L L and then killed him for having filed a case against one of the accused. They fled after taking with them a shoulder bag of L L ' s daughter. This was robbery with homicide. Accused-appellant is guilty of robbery with homicide. While he and his companions failed to rob SS, the fact is that they took the gun of the security guard for the purpose of gain. Since the group in addition killed the guard, the crime committed is the complex one of robbery with homicide. It is not necessary that the person robbed be the same person whom the malefactors originally intended to rob. N o r is it necessary to show that the sole purpose was robbery and by reason thereof homicide was committed. Article 294 provides that there is robbery with homicide not only when "by reason of the robbery" homicide is committed but also when "on the occasion" thereof homicide is committed. If robbery and homicide are committed on the same occasion, the special complex crime is deemed committed. (People v. Alberca) [But see Milliam] Does it necessarily follow that when a killing was done during a robbery, the offense committed is robbery with homicide? N o . A conviction for robbery with homicide requires certitude that the robbery was the main purpose and objective of the criminals and that the killing was merely incidental resulting merely by reason or on the occasion of the robbery. Article 294 specifically states that: "Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: 1. T h e penalty of reclusion perpetua 838


to death, when by reason or on the occasion of the robbery, the crime of homicide shall have been committed..." T h e Spanish version of Article 294(1) of the Code reads: "1.0 — Con la pena de reclusion perpetua a muerte, cuando con motivo o con occasion del robo resultare homicidio." Chief Justice Ramon C. Aquino explains that the use of the words "con motivo... del robo"permits no interpretation other than that the intent of the actor must supply the connection between the homicide and the robbery in order to constitute the complex offense. If that intent comprehends the robbery, it is immaterial that the homicide may in point of time immediately precede instead of follow the robbery. W h e r e the original design comprehends robbery and homicide is perpetrated by reason or on the occasion of the consummation of the former, the crime committed is the special complex offense even if homicide precedes the robbery by an appreciable interval of time. On the other hand, if the original criminal design does not clearly comprehend robbery but robbery follows the homicide as an afterthought or as a minor incident of the homicide, the criminal acts should be viewed as constitutive of two offenses and not of a single complex offense. Robbery with homicide arises only when there is a direct relation, an intimate connection, between the robbery and the killing even if the killing is prior to, concurrent with, or subsequent to the robbery, (id.) W h e r e the taking of the victim's gun was done to prevent the victim from retaliating, the crimes committed are homicide and theft, not robbery with homicide. (People v. Milliam, January 2000) (Alberca said that the robbery need not be the sole purpose of the malefactors.) Is there a crime of robbery with double homicide? None. Accused was wrongly charged with robbery with double homicide and was erroneously sentenced to two of reclusion perpetua. Such crime does not exist in the statute books. Article 294(1) imposes only one penalty for the special complex crime of robbery with homicide regardless of the number of persons killed (People v. Dulatre, 248 SCRA; People v. Visas, 232 SCRA). This special complex crime does not limit the homicide to one victim as to make the killings in excess of that number punishable as separate offense. A l l the homicides 839


are merged in the composite, integrated whole that is robbery with homicide so long as the killings were perpetrated by reason or on the occasion of the robbery. (People v. Fabula, G.R. No. 115401, December 16, 1996) THERE IS NO "ROBBERY WITH MULTIPLE H O M I C I D E " because this is not a complex crime but a single indivisible offense. Being a single indivisible offense, all who participated will be charged with robbery with homicide. Regardless of the number of homicides committed on the occasion of robbery, the crime is still robbery with homicide. In this special complex crime, the number of persons killed is immaterial and does not increase the penalty prescribed in Article 294. There is no crime of robbery with multiple homicide. The same crime is committed even if rape and physical injuries are also committed on the occasion of said crime. (People v. Pulusan, G.R. No. 110037, May 21, 1998) •

Is there robbery with homicide and frustrated homicide; robbery with homicide and physical injuries? None. Homicide in Article 294(1) is to be understood in its generic sense. It absorbs not only the act which results in death but also all other act producing anything short of death, assuming that death occurs by reason or on the occasion of the robbery. It is designated as robbery with homicide regardless of the number of homicides and physical injuries committed. Hence, the frustrated homicide aspect of the present charge is deemed merged in the special complex crime of robbery with homicide. Robbery with homicide is a single indivisible crime, a special complex crime with the specific penalty provided for in the law. Despite the physical injuries sustained by F F , the crime is still robbery with homicide. T h e word "homicide" is used in its generic sense as it includes murder and absorbs serious physical injuries committed during the robbery. (People v. Camat, G.R. No. 112262, April 2, 1996)

•

If the robbery was accompanied by homicide, will those who did not take part in the killing be liable? Y e s . Whenever the special complex crime of robbery with homicide is proven to have been committed, all those who took 840


part in the robbery are liable as principals therein although they did not actually take part in the homicide. (People v. Pulusan) W h e n e v e r a homicide has been committed as a consequence or on the occasion of a robbery, all those who took part as principals in the robbery will also be held guilty as principals in the special complex crime of robbery with homicide, even if they did not all actually take part in the homicide; unless it appears that those who did not do so endeavored to prevent the homicide. (People v. Lago, G.R. No. 21272, June 6, 2001) [It must be noted that Articles 295 and 296 are not applicable to robbery under Article 294(1) as the former articles are expressly limited to paragraphs 3, 4 and 5 of the latter article (People v. Apduhan). Therefore, it is submitted that the defense by the robbers who did not take part in the homicide of having "attempted to prevent" the commission of "any of the assaults committed by the band" should not be considered (Article 296, second paragraph^. As the crime of robbery with homicide is a single indivisible offense, it should not be divided into its component parts and make some liable for the whole while others liable for the parts thereof.] •

If the robbery was accompanied by killings (or rapes), will the other homicides (or rapes) be aggravating? N o . This ticklish issue was the subject of conflicting views when in some cases it was held that the additional rapes/ homicides committed on the occasion of robbery would not increase the penalty; while in other cases, the ruling was, the multiplicity of rapes/homicides committed would be appreciated as aggravating as it would be absurd to give the same penalty to a case where only one homicide/rape was committed to that where multiple rapes/homicides accompanied the robbery. Regala settled the issue and said that no law provides that the additional rape or homicide should be considered as aggravating circumstance. The enumeration of aggravating circumstances under Article 14 is exclusive, as opposed to the enumeration in Article 13 regarding mitigating circumstances, where paragraph 10 provides for analogous circumstances. (People v. Gano, G.R. No. 134373, February 28, 2001) 841


Distinguish the special complex crime of robbery with homicide from the complex crime under Article 48. Article 48 contemplates a situation where one offense is a necessary means to commit the other or where a single act results in two or more offenses. The homicide in Article 294 is not necessary for the accomplishment of the robbery. However, it could be committed to avoid future identification of the robbers or as a consequence or incident thereof, (id.) A special complex crime is different from a complex crime under Article 48. Therein, the crimes composing the complex crime are not specific but should meet the criteria of (1) being a grave or less grave felony or (2) being necessary to commit the other. Moreover, the penalty is also not specific, but rather the general description of "for the most serious offense in the maximum period." Special complex crimes are specifically provided for in the different provisions of Book I I , where the composite crimes are specified by the provision and the penalty is likewise specified. In composite crimes, the excess crimes are absorbed which is not the case in complex crimes under Article 48. What is the rationale for penalizing as a special complex crime, robbery with homicide? Robo con homicidio is an indivisible offense, a special complex crime. T h e penalty for robbery with homicide is more severe because the law sees in this crime that men place lucre above the value of human life, thus justifying the imposition of a more severe penalty than that for simple homicide or robbery. In view of the said graver penalty, jurisprudence exacts a stricter requirement before convicting the accused of this crime. W h e r e the homicide is not conclusively shown to have been committed for the purpose of robbing the victim, or where the robbery was not proven, there can be no conviction for robo con homicidio. (id.) Is the aggravating circumstance of dwelling appreciated in robbery with homicide? Although dwelling is considered as inherent in crimes which can be only committed in the abode of the victim, such

842

ROBBERY IN GENERAL

as tres to dwelling and robbery in an inhabited house, it is aggravating in robbery with homicide because the author thereof could have accomplished the heinous deed of snuffing out the victim's life without having to violate his domicile. (People v. Mesias, 199 SCRA 20 [1991]) •

Is the value of the stolen articles relevant to the criminal liability of the accused? As a matter of law and not on the excuse that after all appellant cannot satisfy his civil liability, the real value of the asported properties would nonetheless be irrelevant to the criminal liability of appellant. Insofar as the component crime of robbery is concerned, the same was committed through violence against or intimidation of persons, and not through force upon things, hence the value of the property subject of the crime is immaterial. T h e special complex crime of robbery with rape has, therefore, been committed by the felonious acts of appellant and his cohorts, with all acts of rape on that occasion being integrated in one composite crime. The value of the objects of the apoderamiento relates only to the civil aspect. (People v. Martinez, G.R. No. 116918, June 19, 1997)

•

When the detention of the victims was made by the robbers to shield themselves from the police, is illegal detention committed? T h e offenders after committing the robbery was surprised and trapped by the police and for their protection herded the of the household who were women and minors. The crime is robbery only because the detention was merely incidental. W e r e the offenders not trapped by the early arrival of the police at the scene of the crime, they would not have anymore detained the people inside. Obviously, they were left with no choice but to resort to the detention of these people as security, until arrangements for their safe age were made. This is not the crime of illegal detention punishable under the penal laws, but an act of restraint in order to delay the pursuit of the criminals by peace officers. Where the victims in a robbery case were detained in the course of robbery, the detention is absorbed by the crime of robbery. The victims were used only as a shield. (People v. Astor, April 1987) 843


If, however, the offenders used the detention to exact a bigger amount from the victim, the detention becomes a means to extort an amount which is in the nature of ransom, subject of robbery. Aside from robbery, serious illegal detention is also committed. The crime is complex because serious illegal detention is a means to commit robbery. What two principles of conspiracy are relevant in a conviction for robbery with rape? (a)

That in a conspiracy, the act of one is the act of all — a conspiracy being amply demonstrated by the proofs among the eight in this case; and

(b)

That when more than three armed malefactors take part in the commission of robbery, it shall be deemed to have been committed by a band, in which case, any member of the band who is present at the commission of a robbery by (said) band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the same. (Liang v. People, January 2000). [It should be noted that Articles 295 and 296 on robbery in band is not applicable to Article 294(1) as expressly provided in 295 and 296. Thus, this principle could not be relevant in robbery with rape.]

This notwithstanding, only CC should be held responsible for the crime because he alone perpetrated the rape. T h e others could not be held liable therefor. For while the evidence does convincingly suggest that the agreement was to commit robbery only, there is no evidence that the other of the band of robbers w e r e aware of CC's lustful intent and his consummation thereof so that they could have attempted to prevent the same. (People v. Villaruel, G.R. No. 105006, September 4, 1996). (But see Pulusan and Logo) In robbery with rape, when should the rape be committed? In the special complex crime of robbery with rape, the intent to take personal property of another must precede the rape. T h e taking of the cash and pieces of j e w e l r y against N N ' s will appears to be an afterthought. Dinola, held that if the intention of the accused was to rob but rape was also committed even before the asportation, the crime is robbery


with rape. But if the original plan was to rape but the accused after committing the rape also committed the robbery when the opportunity presented itself, the offenses should be viewed as separate and distinct. (People v. Faigano, 254 SCRA) •

What determines whether the crime committed is the special complex crime of robbery with rape or separate crimes for the taking and the rape? In the special complex crime of robbery with rape, the true intent of the accused must first be determined because it is his intent that determines the offense he has committed. Dinola, 183 S C R A 493, Canastre, 82 Phil. 480, and Faigano, 254 S C R A 10 held: "x x x if the intention of the accused was to rob, but rape was committed even before the asportation, the crime is robbery with rape. But if the original plan was to rape but the accused after committing the rape also committed the robbery when the opportunity presented itself, the offense should be viewed as separate and distinct. To be liable for the complex crime of robbery with rape the intent to take personal property of another must precede the rape." Article 294 used the word "accompanied" by rape. It does not distinguish whether the rape was committed before, during or after the robbery. T h e tricycle driver mauled D D . She was strangled, boxed and kicked then repeatedly stabbed on her face, head, and different parts of her body. H e r head was banged against the sidecar. She was brought to an abandoned place and after raping her, the driver took her valuables. It is obvious from the degree and character of the violence and intimidation which the appellant employed (and when he employed it) upon DD that his intent was to rape her. He applied such force as to render her resistance to his lust inutile. The kind of force used was unnecessary if he only planned to rob D D . Second, he transported her to an abandoned place. A l l the time that DD was helpless after her mauling, appellant did not concern himself with robbing DD even if he could have done so with ease if not with impunity. Lastly, at no time did the appellant ask for the belongings of D D . Neither did he search 845


her for valuables, except for the wallet in her pants. What is apparent is that he only: (1) took her watch and bracelet, both easily seen and noticeable, and (2) fled with her bag which was already in the tricycle. These overt acts only indicate that he decided to take DD's belongings as an afterthought and only when the opportunity presented itself. He should be convicted of theft because when he took the personal properties of D D , the element of violence and intimidation was no longer present. W h i l e it is true that he inflicted force upon her person, that was with the view and in pursuance of the rape, not of the taking. W h e n the asportation happened, DD was near lifeless, incapable of putting any form of opposition. (People v. Naag, G.R. No. 136394, February 15, 2001) •

What is required of the execution of the robbery and the rape? Both robbery and rape must be consummated. W h e n the robbery was merely attempted, there is no attempted robbery with rape unlike in robbery with homicide, where there is attempted robbery with homicide (Article 297).

•

If the sequence is: rape, homicide, then robbery, what crimes are committed? a.

If they raped, then killed the girl, then robbed the place (with force upon things), the crimes are (1) rape with homicide, and (2) robbery.

b.

If they raped, then killed the girl and took jewelry or other valuables from her person (or without force upon things), the crimes are (1) rape with homicide, and (2) theft because the dead can no longer be intimidated.

c.

If they robbed, then raped, then killed her, robbery homicide; rape is absorbed. T h e same if they raped, robbed then killed her as she was still alive when committed the robbery. Homicide takes precedence rape in the order of priority under A r t i c l e 294.

with then they over

T h e crime committed is not special complex crime of robbery with rape, instead, the crimes are separate crimes of rape and theft, for rape was the primary intent of the accused and his taking away of the belongings of the victim was a mere

ROBBERY IN GENERAL

afterthought. Accused should only be convicted of theft when he took the personal properties of the victim, as the element of violence and intimidation was no longer present. W h i l e he inflicted force upon her person, that was with the v i e w and in pursuance of rape, not of the taking. W h e n the asportation happened, the victim was near lifeless and incapable of putting any form of opposition. (People v. Naag) •

When several rapes are committed during a robbery, how many crimes are committed? Only one composite crime of robbery with rape. T h e special complex crime of robbery with rape covers cases of multiple rapes. T h e juridical concept of the crime does not limit the consummation of rape against one single victim or to one single act, making other rapes in excess of that number as separate, independent offenses. So long as the rapes accompanied the robbery, all rapes are merged in the composite, integrated whole that is robbery with rape and it does not matter whether the rape occurred before, during, or after the robbery. (People v. Seguis, G.R. No. 135034, January 18, 2001)

•

What should be the stage of execution in robbery with mutilation? Robbery and intentional mutilation must both be consummated to be classified as robbery with intentional mutilation. There must be intent to mutilate, for if mutilation merely resulted as a consequence of the injury inflicted, the crime would be robbery with serious physical injuries.

•

What is the peculiar nature of robbery with arson? Arson is directed against property. This is out of place in Article 294 for the violence there pertains to persons. Thus, in order to have robbery with arson, there must be violence and intimidation upon persons first and thereafter, the premises are burned and there is no killing, rape or mutilation. Take note of the sequence of priority of violence under Article 294. If robbery is with force upon things and thereafter the house was burned to cover up the crime, two crimes are committed: robbery and arson because robbery with arson is

847


under Article 294 whereas Article 299 is robbery with force upon things and it does not include arson. Arson is not a circumstance under Article 299 or 302 which should have been more logical. Under said articles, the crimes are robbery with force upon things and arson. Neither will it be complex under Article 48 because the arson is not to commit robbery but to conceal the crime. In robbery with serious physical injuries, what should be the nature of the physical injuries? The physical injuries must be serious to fall under Article 294. In paragraph 4, the serious physical injuries covered by Article 263 paragraphs 3 and 4 must be inflicted when robbery was not yet consummated because of the phrase in paragraph 4 of "in the course of its execution." If inflicted after the robbery was consummated, two separate crimes — for Article 294, no. 5 (simple robbery) and for the serious physical injuries. If what is inflicted is less serious or slight physical injuries, these are absorbed under paragraph 5 on simple robbery. Who is the victim in robbery with homicide, with serious physical injuries, and with less serious or slight physical injuries? Even if the person killed or injured is one of the robbers themselves, the crime is still robbery with homicide or robbery with serious physical injury, because the law does not distinguish. But not if under paragraph 4, for the law says the injuries should be inflicted while robbery is not yet consummated A N D on the persons not responsible for the crime. Here, if the persons injured are the robbers themselves, there is no robbery with physical injuries. Snatching may constitute what crime? Robbery if the snatcher employed force more than necessary upon the person whose valuables w e r e snatched; theft if no added force in taking is employed except that necessary to effect the snatching. A r t . 295. Robbery with physical injuries, committed in uninhabited place and by a band, or with the use of firearm a street, road or alley. — If the offenses m e n t i o n e d in


subdivisions 3, 4, a n d 5 of the next p r e c e d i n g article shall h a v e b e e n committed i n a n u n i n h a b i t e d place o r b y a b a n d or by attacking a m o v i n g t r a i n , street c a r , m o t o r vehicle or a i r s h i p , or by e n t e r i n g the p a s s e n g e r s ' c o m p a r t m e n t s in a t r a i n or, i n a n y m a n n e r , t a k i n g the p a s s e n g e r s thereof b y s u r p r i s e in the respective c o n v e y a n c e s , or on a street, r o a d , h i g h w a y , or alley, a n d the i n t i m i d a t i o n is m a d e w i t h the use of a firearm, the o f f e n d e r shall be p u n i s h e d by the m a x i m u m p e r i o d o f the p r o p e r penalties. In the s a m e cases, the p e n a l t y next h i g h e r in d e g r e e shall be i m p o s e d u p o n the l e a d e r of the b a n d . (As amended by R.A. No. 12 and 373.) A r t . 296. Definition of a band and penalty incurred by the thereof. — W h e n m o r e t h a n t h r e e a r m e d malefactors take p a r t in the c o m m i s s i o n of a r o b b e r y , it shall be d e e m e d t o h a v e b e e n committed b y a b a n d . W h e n a n y o f the a r m s used in the c o m m i s s i o n of the offense be an unlicensed firearm, the penalty to be i m p o s e d u p o n all the malefactors shall b e the m a x i m u m o f the c o r r e s p o n d i n g penalty p r o v i d e d by l a w , w i t h o u t p r e j u d i c e to the c r i m i n a l liability for illegal possession of such u n l i c e n s e d firearm. A n y m e m b e r of a b a n d w h o is p r e s e n t at the commission of a r o b b e r y by the b a n d , shall be p u n i s h e d as p r i n c i p a l of any of the assaults committed by the b a n d , unless it be s h o w n that he attempted to p r e v e n t the same. (As amended by R.A. No. 12.) •

What is the effect of R.A. 8294 on Article 296? R . A . 8294 provides that there is simple illegal possession provided no other crime is committed. On the other hand, Article 296 says that the liability of the malefactors is without prejudice to the liability for illegal possession. Article 296 should be deemed modified by R . A . 8294 in that there is no more separate liability for the unlicensed firearm.

People v. Apduhan, Jr., G . R . N o . L-19491, A u g u s t 30, 1968 •

In what kind of robbery do Articles 295 and 296 apply? Article 294 enumerates five classes of robbery with violence against or intimidation of persons and prescribes the 849


corresponding penalties. Article 295 provides that when the offenses in Article 294(3), (4) and (5) are committed by a band, the penalty must be imposed in the maximum period. Band is therefore qualifying only in robbery under Article 294(3), (4) and (5). Consequently, Article 295 is inapplicable to robbery with homicide, rape, intentional mutilation, and lesiones graves resulting in insanity, imbecility, impotency or blindness. If such classes of robbery described in Article 294(1) and (2) are perpetrated by a band, they would not be punishable under Article 295, but then cuadrilla would be a generic aggravating under Article 14. Hence, with the present wording of Article 295, there is no crime as "robbery with homicide in band." If robbery with homicide were committed by a band, the indictable offense would still be robbery with homicide but band would be a generic aggravating circumstance. •

How is Article 296 related to Articles 294 and 295? Article 296 defines "band," creates the special aggravating circumstance of use of unlicensed firearm, and provides the criminal liability incurred by the of the band. It is contended that in robbery with homicide committed by a band, the use of unlicensed firearm must be a special aggravating circumstance pursuant to A r t i c l e 296. Contrarily, the accused contends that the use of unlicensed firearm is only generic aggravating which may be offset by mitigating circumstances. Both contentions are untenable. A r t i c l e 296 is exclusively linked and singularly applicable to the immediately antecedent provision of Article 295 on robbery in band, as the latter article in turn is explicitly limited in scope to subdivisions 3, 4, 5 of Article 294. Consequently, although the use of unlicensed firearm is a special aggravating circumstance under Article 296, as amended by R . A . 12, it cannot be appreciated as such in relation to robbery with homicide. Article 295 provides that if any of the classes of robbery in Article 294(3), (4) and (5) is committed by a band, the offender shall be punished by the maximum period of the proper penalty. Correspondingly, the immediately following provisions of Article 296 define the term "band," prescribe the collective liability of the of the band, and state that "when any of the arms used in the commission of the offense 850


be an unlicensed firearm, the penalty to be imposed upon all the malefactors shall be the maximum of the corresponding penalty provided by law." •

To what does the word "offense" in Article 296 refer? V i e w e d from the contextual relation to Articles 295 and 296, the word "offense" logically means the crime of robbery committed by a band, as the phrase "all the malefactors" indubitably refers to the of the band and the phrase "the corresponding penalty provided by law" relates to the offenses of robbery described in the last three subdivisions of Article 294 which are all encomed within the ambit of Article 295. Evidently, therefore Article 296 in its entirety is designed to amplify and modify the provision on robbery in band which is nowhere to be found but in Article 295 in relation to Article 294 (3), (4) and ( 5 ) . In order that the special aggravating circumstance of use of unlicensed firearm may be appreciated to justify the imposition of the maximum period of the proper penalty, it is a condition sine qua non that the offense charged be robbery committed by a band within the contemplation of Article 295. Since Article 295 does not apply to subdivisions 1 and 2 of Article 294, the special aggravating factor in question, which is solely applicable to robbery in band under Article 295, cannot be considered in fixing the penalty imposable for robbery with homicide even if the said crime was committed by a band with the use of unlicensed firearms.

A r t . 297. Attempted and frustrated robbery committed under certain circumstances. — W h e n by r e a s o n or on occasion of an attempted or frustrated r o b b e r y a homicide is committed, the person guilty of such offenses shall be punished by reclusion temporal in its m a x i m u m period to reclusion perpetua, unless the homicide committed shall deserve a h i g h e r penalty u n d e r the provisions of this Code. •

Does the rule on liability for conspirators in robbery with homicide apply to attempted robbery with homicide? Yes. Appellant is liable for attempted robbery with homicide even if he was not himself the author of the killing, 851


for lack of evidence showing that he endeavored to prevent such slaying. Thus, the general rule applies that whenever homicide is committed on the occasion or as a consequence of robbery, all those who took part as principals in the robbery shall be held guilty of the special complex crime of robbery with homicide although they did not actually take part in the homicide (People v. Cobre, 239 SCRA). T h e same principle applies even if the crime committed is attempted robbery with homicide. (People v. Dalanon, 237 SCRA) How is attempted robbery committed? The failure to cart away the goods due to their weight may not be considered as voluntary desistance from the commission of the crimes as to remove the element of asportation from the special complex crime of attempted robbery with homicide. Such failure to consummate the robbery was not caused solely by the robbers' own volition and inability. It was likewise brought about by factors such as their unmasking and the arrival of neighbors who responded to EE's shouts for help. These circumstances forced them to flee, leaving behind the objects. Appellant is guilty of the crime of attempted robbery with homicide as defined in Article 297. Robbery was the intended purpose of the intruders' tres into the residence of JJ. JJ's killing was on the occasion of a robbery which, however, was not consummated. (People v. Pareja, G.R. No. 88043, December 9, 1996) (Since pursuant to jurisprudence theft is consummated when there is apoderamiento, by the same token, robbery should be deemed complete upon the unlawful taking. T h e r e should therefore be no frustrated robbery despite this A r t i c l e . ) If in the course of the attempted robbery, parricide, murder, or infanticide was committed, what will be the proper charge? If the robbery is attempted and the killing is in the character of parricide, murder or infanticide, there w i l l be two separate crimes. T h e killing must not be one punished with a higher penalty in order to fall under A r t i c l e 297 ("unless the homicide committed shall deserve a higher penalty under the provisions of this Code").

852


•

W h o should be the killer in attempted robbery with homicide? It must be one of the robbers also unlike in Article 294. Although an Information for attempted robbery contained the allegation that one of the robbers was killed during such attempt, this does not warrant a conviction for the special complex crime [or composite crime] of attempted robbery with homicide. Article 297 provides that the attempted robbery and killing should be perpetrated by the same person. Said article speaks of the same "person being guilty of such offenses," that is, robbery and homicide. In this case, it is clear that the dead robber was killed not by his cohorts but by one of the engers (People v. Manalili, G.R. No. 121671, August 1998). As long as the killer is one of the robbers, it does not matter whether the deceased is one of the victims or one of the robbers themselves.

A r t . 298. Execution of deeds by means of violence or intimidation. — A n y p e r s o n w h o , w i t h intent t o d e f r a u d a n o t h e r , b y m e a n s of violence or intimidation, shall c o m p e l h i m to sign, execute o r deliver a n y p u b l i c i n s t r u m e n t o r d o c u m e n t , shall b e held guilty o f r o b b e r y a n d p u n i s h e d b y the penalties respectively p r e s c r i b e d in this C h a p t e r . This article deals with robbery where the subject matter is covered by a public instrument or document. T h e law did not specify whether the public instrument involves real or personal property. Since the law did not distinguish, the coverage of the article must not be limited to personal property only. The public instrument or document must be a deed of conveyance of a thing of value to which offender is not entitled because his intention must be to defraud the victim. The crime is not grave coercion because of the presence of the element of intent to gain. It is not also estafa because the means is violence or intimidation, not deceit or unfaithfulness. Compared with Article 312, this article specifically deals with the mode of defrauding another by making the latter sign, execute or deliver any public instrument or document. Article 312 on the other hand treats of taking possession of real property or usurping real rights therein by violence or intimidation.

853


Section T w o . — Robbery by the use of force upon things •

If both violence against or intimidation of persons and force upon things are present, what is the proper crime to charge? If both violence against or intimidation upon persons ( V A I P ) and force upon things ( F U T ) are employed, it shall be considered as robbery with V A I P (Article 294) because this is more serious than robbery with F U T (Articles 299 or 302). But when the robbery under Article 294 falls within no. 4 and 5, the penalty is lower than in Article 299. In such case, a complex crime following Article 48 should be imputed so that the higher penalty will be the one imposed without sacrificing the principle that the robbery with V A I P is greater than robbery with F U T . Robbery with V A I P is evidently graver than ordinary robbery committed by F U T . (Napolis v. CA, February 1972) If the penalty for robbery with V A I P is higher, the charge should be under Article 294, and should not be complexed. T h e crime is a single indivisible offense or special complex crime, viz., robbery with homicide, robbery with rape, robbery with arson, or robbery with intentional mutilation.

A r t . 299. Robbery in an inhabited house or public building or edifice devoted to worship. — A n y a r m e d p e r s o n w h o shall commit r o b b e r y i n a n i n h a b i t e d h o u s e o r p u b l i c b u i l d i n g o r edifice devoted t o r e l i g i o u s w o r s h i p , shall b e p u n i s h e d b y reclusion temporal, if the v a l u e of the p r o p e r t y t a k e n shall exceed 250 pesos, a n d if — (a)

T h e malefactors shall enter the h o u s e o r b u i l d i n g i n w h i c h the r o b b e r y w a s committed, b y a n y o f the following means: 1.

T h r o u g h an o p e n i n g not i n t e n d e d for e n t r a n c e or egress;

2.

B y b r e a k i n g a n y w a l l , roof, o r floor o r b r e a k i n g any door or w i n d o w ;

3.

By u s i n g false keys, p i c k l o c k s or s i m i l a r tools;

4.

By u s i n g a n y fictitious n a m e or p r e t e n d i n g the exercise of p u b l i c a u t h o r i t y .

854


O r if — (b)

T h e r o b b e r y b e committed f o l l o w i n g circumstances:

under

any

o f the

1.

By the b r e a k i n g of d o o r s , w a r d r o b e s , chests, o r a n y o t h e r k i n d o f l o c k e d o r sealed furniture o r receptacle;

2.

By t a k i n g such f u r n i t u r e or objects a w a y to be b r o k e n or f o r c e d o p e n outside the place of the r o b b e r y . (As amended by R.A. No. 18.)

W h e n the o f f e n d e r s d o not c a r r y a r m s , a n d the v a l u e o f the p r o p e r t y t a k e n e x c e e d s 250 pesos, the p e n a l t y next l o w e r i n d e g r e e shall b e i m p o s e d . T h e same r u l e shall b e a p p l i e d w h e n the offenders a r e a r m e d , b u t the v a l u e of the p r o p e r t y t a k e n does not exceed 250 pesos. W h e n said o f f e n d e r s d o not c a r r y a r m s a n d the v a l u e of the p r o p e r t y t a k e n does not e x c e e d 250 pesos, they shall suffer the penalty p r e s c r i b e d in the t w o next p r e c e d i n g p a r a g r a p h s , in its m i n i m u m p e r i o d . If the r o b b e r y be committed in one of the dependencies o f a n i n h a b i t e d h o u s e , p u b l i c b u i l d i n g , o r b u i l d i n g dedicated to religious w o r s h i p , the penalties next l o w e r in d e g r e e than those p r e s c r i b e d in this article shall be imposed. •

•

What three places are covered by this article? 1.

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

2.

Public building referring to a building owned, used or rented by the Government although temporarily unoccupied by it.

3.

Edifice devoted to religious worship.

To be robbery, the taking must be done under what situations? 1.

By entering the premises. In entering the same, constructive force will suffice, e.g., through an opening not intend855


ed for ingress/egress, using picklocks and similar tools, and simulating public authority or false names; or actual force by breaking walls, floors, doors, roof, etc.; Basis: The means of entering. If he did not enter, it is theft only even if there are such destructions. T h e whole body must be inside because "entering" denotes that the entire body must have gone inside. 2.

By breaking walls, doors, and receptacles while inside to extract personal property. T h e offender may have entered without violence but inside actual force is required, not merely constructive force. T h e r e must be actual breaking of doors, walls, etc. If picklock and similar tools were used in this situation, it is theft only. T h e use of picklocks and similar tools would qualify theft to robbery if used to enter the premises.

3.

By taking furniture and receptacles to be broken outside. The receptacles must necessarily be locked or sealed otherwise there would be no necessity to break them. The mere taking of receptacles consummates the robbery since force w i l l be used to open it.

Outside of the above three situations, there will only be theft. These circumstances apply when the place robbed is an inhabited house, public building or edifice devoted to worship. In the case of other buildings, the circumstances under Article 302 govern. N o t e that in Article 302, the circumstances are the same except that there is no simulation of authority or use of fictitious name. If the entry under Article 302 was through simulation of public authority, the crime is theft only. Example, entry in warehouse to get goods simulating customs officials. When entry is through a window, it is not necessary that the offender broke the windows. Entering through an opening not for ingress/egress will be robbery if he took anything. Constructive force only is required in this case. In the circumstance of breaking of door although the door itself is not damaged, but the lock or accessory of the door was broken, robbery is still committed because the lock is a main part of the door which would be useless without it. 856


The use of fictitious name or simulation of authority must be done when the offender had not yet entered and such use was the necessary means that made the occupant let him inside. Use thereof while inside w i l l not elevate theft into robbery. •

When the offender is a family member or servant who broke a receptacle inside to take property of his housemate, what crime is committed? T h e crime is robbery with force upon things, not qualified theft because what qualifies the taking is the force upon things. Robbery is committed not only by strangers but also by household . If he did not break anything, then the crime is qualified theft since the abuse of confidence is the essential element. Both robbery and qualified theft can be committed by family or servant. T h e distinction is significant in determining the applicability of Article 332 which covers theft and not robbery.

A r t . 300. Robbery in an uninhabited place and by a band. — T h e r o b b e r y m e n t i o n e d in the next p r e c e d i n g article, if committed in an u n i n h a b i t e d place a n d by a b a n d , shall be p u n i s h e d b y the m a x i m u m p e r i o d o f the p e n a l t y p r o v i d e d therefor. Note the use of the conjunctive word "and" showing that the circumstances of uninhabited place and by a band should concur. A r t . 301. What is an inhabited house, public building, or building dedicated to religious worship and their dependencies. — I n h a b i t e d house m e a n s any shelter, ship, or vessel constituting the d w e l l i n g of one or m o r e persons, even t h o u g h the inhabitants thereof shall t e m p o r a r i l y be absent therefrom w h e n the r o b b e r y is committed. A l l interior courts, corrals, w a r e h o u s e , g r a n a r i e s , b a r n s , coach-houses, stables or other departments, or inclosed places contiguous to the b u i l d i n g or edifice, h a v i n g an interior entrance connected t h e r e w i t h a n d w h i c h form part of the w h o l e , shall be deemed dependencies of an inhabited house, public b u i l d i n g , or b u i l d i n g dedicated to religious worship. 857


O r c h a r d s a n d other lands used for cultivation or production a r e not included in the of the next p r e c e d i n g p a r a g r a p h , even if closed, contiguous to the b u i l d i n g , a n d having direct connection t h e r e w i t h . The t e r m "public b u i l d i n g " includes every b u i l d i n g o w n e d by the G o v e r n m e n t or b e l o n g i n g to a p r i v a t e p e r s o n but used or rented by the G o v e r n m e n t , a l t h o u g h t e m p o r a r i l y unoccupied by the same. A r t . 302. Robbery in an uninhabited place or in a private building. — A n y r o b b e r y committed in an u n i n h a b i t e d place or in a b u i l d i n g other t h a n those m e n t i o n e d in the first p a r a g r a p h of A r t i c l e 299, if the v a l u e of the p r o p e r t y t a k e n exceeds 250 pesos shall be p u n i s h e d by prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s , p r o v i d e d that a n y of the f o l l o w i n g circumstances is present: 1.

If the e n t r a n c e has b e e n effected t h r o u g h a n y o p e n i n g not i n t e n d e d for e n t r a n c e or egress;

2.

If a n y w a l l , roof, floor, or outside d o o r or w i n d o w has b e e n b r o k e n ;

3.

If the e n t r a n c e h a s b e e n effected t h r o u g h the use of false keys, picklocks, or other s i m i l a r tools;

4.

If a n y d o o r , w a r d r o b e , chest, or a n y s e a l e d or closed furniture or receptacle has been broken;

5.

If a n y closed or s e a l e d r e c e p t a c l e , as m e n t i o n e d in the p r e c e d i n g p a r a g r a p h , h a s b e e n r e m o v e d , e v e n i f the same b e b r o k e n o p e n e l s e w h e r e .

W h e n the v a l u e o f the p r o p e r t y t a k e n d o e s not e x c e e d 250 pesos, the p e n a l t y next l o w e r in d e g r e e shall be i m p o s e d . In the cases specified in A r t i c l e s 294, 295, 297, 299, 300, a n d 302 of this C o d e , w h e n the p r o p e r t y t a k e n is m a i l m a t t e r or l a r g e cattle, the o f f e n d e r shall suffer the penalties next h i g h e r in d e g r e e t h a n those p r o v i d e d in s a i d articles. (As amended by Com. Act No. 417.) A r t . 303. Robbery of cereals, fruits, or firewood in an uninhabited place or private building. — In the cases e n u m e r a t e d in Articles 299 a n d 302, w h e n the r o b b e r y consists in the 858


t a k i n g of cereals, fruits, or f i r e w o o d , the c u l p r i t shall suffer the penalty next l o w e r in d e g r e e t h a n that p r e s c r i b e d in said articles. •

What peculiar provisions on robbery should be amended? 1.

T h e value of the property is the same since 1932. In Article 299 that if the value of the property taken is over P250, such as P251, the penalty is reclusion temporal (12 - 20 years) if the robbers are armed and prison mayor ( 6 - 1 2 years) if not armed.

2.

In the last paragraph of Article 302, when the property taken is mail matter or large cattle, the penalty shall be next higher in degree than those provided for in Articles 294, 295, 297, 299, 300, and 302. Assuming there were large cattle in an inhabited dwelling place and the crime falls under Article 294(1), the penalty of reclusion perpetua can no longer be increased.

3.

In Article 303, the robbers shall take the risk of going inside a private building to take cereals, fruits, or firewood and suffer the penalty of one degree lower than reclusion temporal which is prision mayor (6 - 12 years).

4.

In a vintage case, uninhabited place was defined as a habitable building other than those mentioned in Article 299. Thus, if the unlawful taking was for instance from a parked car where valuables were left by the owner and its window was smashed by the malefactors to get the articles inside, it would seem that it is not robbery although there was force upon things because the "uninhabited place" should be a habitable building.

A r t . 304. Possession of picklocks or similar tools. — A n y person w h o shall w i t h o u t l a w f u l cause h a v e in his possession picklocks or similar tools specially a d o p t e d to the commission of the crime of r o b b e r y , shall be p u n i s h e d by arresto mayor in its m a x i m u m p e r i o d to prision correccional in its m i n i m u m period. T h e same penalty shall be imposed u p o n any person w h o shall m a k e such tools. If the offender be a locksmith, he shall suffer the penalty of prision correccional in its m e d i u m a n d m a x i m u m periods. 859


A r t . 305. False keys. — T h e t e r m "false keys" shall be deemed to include:

•

1.

T h e tools mentioned in the next p r e c e d i n g article;

2.

G e n u i n e keys stolen f r o m the o w n e r ;

3.

A n y keys other t h a n those intended by the o w n e r for use in the lock forcibly o p e n e d by offender.

What is the nature of the act of possessing picklocks? Possession of picklocks is a crime by itself. W h e n used in robbery, possession is absorbed. Article 304 covers only picklocks and similar tools; it does not include genuine keys stolen from the owner or any other keys not intended by the owner for use in the lock forcibly opened by the offender. N o t e that possession of picklocks is mentioned separately in Article 305 (no. 1) from stolen keys or any keys other than those intended by the owner of the lock and Article 304 specifies picklocks and similar tools the possession of which is criminally punishable.

Chapter Two BRIGANDAGE A r t . 306. Who are brigands — Penalty. — W h e n m o r e than three a r m e d p e r s o n s f o r m a b a n d o f r o b b e r s for the p u r p o s e o f committing r o b b e r y i n the h i g h w a y , o r k i d n a p p i n g p e r sons for the p u r p o s e of extortion or to o b t a i n r a n s o m , or for a n y other p u r p o s e t o b e a t t a i n e d b y m e a n s o f force a n d violence, they shall b e d e e m e d h i g h w a y r o b b e r s o r b r i g a n d s . P e r s o n s f o u n d guilty of this offense shall be p u n i s h e d by prision mayor in its m e d i u m p e r i o d to reclusion temporal in its m i n i m u m p e r i o d , if the act or acts committed by t h e m a r e not p u n i s h a b l e by h i g h e r penalties, in w h i c h case, they shall suffer such h i g h penalties. I f a n y o f the a r m s c a r r i e d b y a n y said p e r s o n s b e a n unlicensed f i r e a r m , it shall be p r e s u m e d that said persons a r e h i g h w a y r o b b e r s o r b r i g a n d s , a n d i n case o f conviction, the penalty shall be i m p o s e d in the m a x i m u m p e r i o d . (As amended by R.A. No. 12.) A r t . 307. Aiding and abetting a band of brigands. — A n y p e r s o n k n o w i n g l y a n d i n a n y m a n n e r a i d i n g , abetting, o r protecting a b a n d of b r i g a n d s as d e s c r i b e d in the next preceding article, or g i v i n g t h e m information of the movements of the police or other peace officers of the G o v e r n m e n t , or of the forces of the U n i t e d States A r m y , w h e n the latter are acting in aid of the G o v e r n m e n t , or a c q u i r i n g or receiving the p r o p e r t y taken by such b r i g a n d s , shall be punished by prision correccional in its m e d i u m p e r i o d to prision mayor in its m i n i m u m period. It shall be p r e s u m e d that the person p e r f o r m i n g any of the acts p r o v i d e d in this article has p e r f o r m e d them k n o w ingly, unless the contrary is proven. 861


Distinguish brigandage under the Code from P.D. 532. Article 306, R P C [ R o b b e r y in a H i g h w a y ]

P . D . 532 [Highway Robbery]

1.

Mere formation of band punishable.

Prohibited act is committed

2.

There are more than three

Only one suffices

malefactors 3.

There is preconceived victim

Anybody could be the victim

4.

That the robbery was committed for the first time is immaterial

Must not be an isolated case of robbery

5.

Those who profit from the loot liable under Article 307 or for fencing

Those who abet brigandage are accomplice under Section 4

Brigandage under P . D . 532 and Article 306 are the same except that what is penalized by the latter is the mere formation of a band whose purpose is to commit robbery in a highway. (People v. Puno) P . D . 532 is violated if the robbery is: ( a ) committed in a highway, (b) indiscriminately, i.e., against anybody, (c) by one or more offenders who commit such act with habituality, i.e., it is not an isolated case of robbery. P . D . 532 does not require that there be a group of persons; even one will do. Even then, the concept is the same because the basis is the brigandage under the R P C . In P . D . 532, however, the acts prohibited are committed. What is the purpose of the malefactors under P.D. 532? T h e accused were organized specifically for the purpose of committing robbery indiscriminately. T h e purpose of brigandage is inter alia indiscriminate highway robbery. If the purpose is only a particular robbery, the crime is only robbery or robbery in band if there are at least four armed participants. P . D . 532 punishes as highway robbery only acts of robbery perpetrated by outlaws indiscriminately against 862

BRIGANDAGE

any person or persons on Philippine highways, and not acts of robbery committed against only a predetermined or particular victim although in a highway. T h e number of perpetrators is no longer an essential element of brigandage as defined by P . D . 532. (People v. Mendoza, 254 SCRA) What is the gravamen of brigandage under Article 306? W h a t is penalized under the R P C is the mere formation of a band consisting of more than three armed persons whose purpose is to commit robbery in a highway. Under paragraph 2 of Article 306, if the unlawful acts are carried out, their being brigands is aggravating but the crime is for the illegal acts carried out. It is brigandage only under the R P C as long as they have not carried out their purpose. (People v. Puno, 219 SCRA) What is the liability of abettors of brigandage? In brigandage [highway robbery], those who participate in the loot commit the crime of abetting brigandage. They are neither accessory nor fence. T h e y are accomplices (Section 4, P . D . 532 is equivalent to Article 307). If the crime were robbery under Article 294 [robbery in a highway], they are principals, liable as fence under the anti-fencing law, or under Article 307 — aiding and abetting brigandage. (N.B.: T h e venue of antifencing law is where the property is found because fencing is distinct from theft or robbery and is not a continuing offense.) Whether the brigandage is under the R P C or under P.D. 532, there is the crime of abetting brigandage. However, under P . D . 532, the offender is an accomplice. Is highway robbery with homicide a heinous crime? N o . R . A . 7659, while having specifically imposed the death penalty or restored it for certain crimes, failed to do so for highway robbery with homicide — in fact, R . A . 7659 does not mention P . D . 532 at all. Clearly, by failing to squarely deal with this crime, Congress is deemed not to have considered highway robbery with homicide a "heinous crime." Does the situs determine whether the crime is highway robbery? It is not because the taking or robbery was perpetrated on a national highway that P.D. 532 would be the statute violated. 863


Puno ruled that it takes more than the situs of the robbery to bring it within the ambit of P . D . 532. A finding of brigandage or highway robbery involves not just the locus of the crime or the fact that more than three persons perpetrated it. It is essential to prove that the outlaws were purposely organized not just for one act of robbery but for several indiscriminate commissions thereof. (Filoteo, Jr. v. Sandiganbayan, G.R. No. 79543, October 16, 1996) •

What is the import of the word "indiscriminate" in P.D. 532? The robbery must be indiscriminate under P . D . 532. Indiscriminate means that the victim is not predetermined and that the malefactors have been habitually engaged in depredation of innocent inhabitants who travel from place to place. There is no evidence that the accused w e r e a band of outlaws organized for the purpose of "depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another." W h a t was proven is one isolated hijacking of a postal van. T h e r e was also no evidence of any previous attempts at similar robberies by the accused to show the "indiscriminate" commission thereof. T h e facts alleged in the information and proved by the evidence constitute the offense of robbery denned in Article 293 in relation to Article 295 and punished by Article 294(5). (Filoteo, Jr. v. Sandiganbayan)

Chapter Three THEFT A r t . 308. Who are liable for theft. — Theft is committed by a n y p e r s o n w h o , w i t h intent t o g a i n b u t w i t h o u t violence against, o r i n t i m i d a t i o n o f p e r s o n s n o r force u p o n things, shall take p e r s o n a l p r o p e r t y of a n o t h e r w i t h o u t the latter's consent. Theft is l i k e w i s e c o m m i t t e d by:

•

1.

A n y p e r s o n w h o , h a v i n g f o u n d lost p r o p e r t y , shall fail to d e l i v e r the s a m e to the local authorities or to its o w n e r ;

2.

A n y p e r s o n w h o , after h a v i n g maliciously d a m a g e d the p r o p e r t y of a n o t h e r , shall r e m o v e or m a k e use of the fruits or objects of the d a m a g e c a u s e d by him; a n d

3.

A n y p e r s o n w h o shall enter an enclosed estate or a field w h e r e t r e s p a s s is f o r b i d d e n or w h i c h belongs to a n o t h e r a n d w i t h o u t the consent of its o w n e r , shall h u n t o r f i s h u p o n the same o r shall g a t h e r fruits, cereals, o r other forest o r f a r m products.

What are the elements of theft? 1.

T h e taking of personal property;

2.

T h e property belongs to another;

3.

T h e taking was done with intent to gain;

4.

T h e taking was done without the consent of the owner; and

5.

T h e taking away is accomplished without violence or intimidation against persons or force upon things. T h e fifth element differentiates theft from robbery.

865


What is encomed by the element of intent to gain? Actual gain is irrelevant as the important consideration is the intent to gain (animus lucrandi). T h e term "gain" is not merely limited to pecuniary benefit but also includes the benefit which in any other sense may be derived or expected from the act which is performed. Thus, the mere use of the thing which was taken without the owner's consent constitutes gain. Intent to gain or animus lucrandi is an internal act, presumed from the unlawful taking of the thing. (People v. Gulinao, 179 SCRA 774). When one takes the motor vehicle of another without the latter's consent even if the motor vehicle is later returned, there is theft, there being intent to gain as the use of the thing unlawfully taken constitutes gain. (Association of Baptists for World Evangelism v. Fieldmen's Ins. Co., Inc., G.R. No. L-28772, September 21, 1983) Assuming, that the taking was "temporary" and for a "joy ride" the better v i e w is that which holds that when a person, either with the object of going to a certain place, or learning how to drive, or enjoying a free ride, takes possession of a vehicle belonging to another, without the consent of its owner, he is guilty of theft because by taking possession of the personal property belonging to another and using it, his intent to gain is evident since he derives therefrom utility, satisfaction, enjoyment and pleasure. (People v. Bustinera, G.R. No. 148233, June 8, 2004) What will make the crime theft and homicide, not robbery with homicide? When it cannot be said with moral certainty that the intention of the accused was to steal the valuables, and that the killing of the victim was a mere incident to the robbery. T h e offender hit the victim with a piece of wood and in his escape, he grabbed his transistor radio as a souvenir and the P i 0 0 bill as his fare. Thus, he cannot be convicted of the crime of robbery with homicide but of two specific crimes, that of homicide and theft. (People v. Alay-ay, G.R. No. 94310, June 30, 1993)

THEFT

•

Can theft be committed by a co-owner of the property? N o . Theft cannot be committed between co-owners when no division yet is made because they are co-owners as to each part of the property, and theft cannot be committed by the owner over his own property. PP took the sugarcane and bananas believing them to be her own. That being so, she could not have any criminal intent. To prove the crime of theft, it is necessary and indispensable to clearly identify who, as a result of a criminal act, without his knowledge and consent, was wrongfully deprived of a thing belonging to him.

•

What other circumstances may constitute theft? 1.

In case of lost property. A property is "lost" if the nature of the property is such that it must necessarily have an owner or claimant. If res nullius no theft can be committed. If hidden treasure, the government or the property owner has 1/2 share. If the findei keeps the whole thing, he is guilty of theft as to the 1/2. T h e "finder" may be either a finder in fact or a finder in law. A finder in fact is the actual finder who misappropriates lost personal property; a finder in law is one who did not actually find lost property but who received the same from the actual finder for the purpose of turning it over to the proper authorities. By fiction of law, he is considered its finder. If he instead misappropriates the same, he is liable for theft. (People v. Avila, 44 Phil.)

2.

A n y person who, after having maliciously damaged the property of another, shall remove or make use of the fruits of the damage caused by him. T h e crime is originally malicious mischief but with the added factor of use or removal, intent to gain is added making the crime theft. In case of large cattle, P . D . 533 punishes cattle rustling with or without intent to gain. The mere killing of large cattle constitutes cattle rustling. Therefore, there can be no theft or malicious mischief involving large cattle, except where the large cattle was not killed or taken but merely injured so that it could no longer become a beast of burden — malicious mischief is committed.

867


3.

A n y person who shall enter an enclosed estate or a field where tres is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish or shall gather fruits, cereals, or other forest or farm products. If he entered without the knowledge or consent of the caretaker but did not take anything, he commits tres to property. If however, it is a coconut plantation and coconut was taken, it is qualified theft. When property is received where only physical or material possession is acquiesced and he appropriates the same, theft is committed. T h e subsequent appropriation constitutes the unlawful taking of the property. If juridical possession is transferred, estafa is committed because the possession here is better than that of the owner. Juridical possession is one where the possessor can assert his right to possession even against the owner as the law gives him the right to possess.

What offenses are penalized by the Revised Forestry Law? "SEC. 68. Cutting, Gathering and/or Collecting Timber, or Other Forest Products Without License. — A n y person who shall cut, gather, collect, remove timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land, without any authority, or possess timber or other forest products without the legal documents as required under existing forest laws and regulations, shall be punished with the penalties imposed under Articles 309 and 310 of the Revised Penal Code: Provided, T h a t in the case of partnerships, associations, or corporations, the officers who ordered the cutting, gathering, collection or possession shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on the part of the Commission on Immigration and Deportation." ' T h e Court shall further order the confiscation in favor of the government of the timber or any forest products cut, gathered, collected, removed, or possessed, as w e l l as the machinery, equipment, implements and tools illegally used in the area where the timber or forest products are found." T h e r e are two distinct and separate offenses punished under Section 68 of P . D . 705:

THEFT

1.

Cutting, gathering, collecting, and removing timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land, or without any authority; and

2.

Possession of timber or other forest products without legal documents required under existing forest law regulations.

In the first offense, one can raise as a defense the legality of the acts of cutting, gathering, collecting or removing timber or other forest products by presenting the authorization issued by the D E N R . In the second, however, it is immaterial whether the cutting, gathering, collecting and removal of the forest products without the proper documents consummate the crime. Whether or not the lumber comes from a legal source is immaterial because E.O. 277 considers the mere possession of timber or other forest products without the proper legal documents as malum prohibitum. (People v. Que, G.R. No. 120365, December 17, 1996) •

What amendment was made by E.O. 277 on the Revised Forestry Law? Article 68 of the Revised Forestry L a w , as amended by E.O. 277 provides that any violation thereof shall be punished with the penalties imposed under Articles 309 and 310 of R P C . This amendment — which eliminated the phrase "shall be guilty of qualified theft as defined and punished under Articles 309 and 310 of the Revised Penal Code" — means that the acts of cutting, gathering, collecting, removing or possessing forest products without authority constitute distinct offenses that are now independent of the crime of theft but that the penalty to be imposed is that which is provided under these articles. The value of the lumber was PI2,000. Under Articles 309 and 310, the statutory penalty should be two degrees higher than prision correccional in its medium and maximum periods; or prision mayor in its maximum period to reclusion temporal in its minimum period. The ISL, however, reduces the sentence to an indeterminate penalty anywhere in the range of 6 years and 1 day of prision mayor, as minimum, to 14 years and 8 months of reclusion temporal as maximum. In view of the finding 869


that no mitigating or aggravating circumstance attended the commission of the offense, the penalty imposed should be more in accord with the liberal spirit of the law towards the accused. Hence, it shall be the indeterminate sentence of 7 years, 4 months and 1 day of prision mayor as minimum to 11 years, 6 months and 21 days of prision mayor as maximum. (Bon v. People, G.R. No. 152160, January 13, 2004) •

When is one who benefited in the loot without participating in the commission of the offense (1) a principal and (2) an accessory? He is a principal (as a fence) when charged in a separate information for fencing. Otherwise, he is merely an accessory under Article 19 even though he is actually a fence because fencing is a distinct crime from theft or robbery. To be liable as a fence he must be charged separately from the principals and specifically for fencing.

A r t . 309. Penalties. — A n y p e r s o n guilty of theft shall be p u n i s h e d by: 1.

T h e p e n a l t y of prision mayor in its m i n i m u m a n d m e d i u m p e r i o d s , if the v a l u e of the t h i n g stolen is m o r e t h a n 12,000 pesos b u t d o e s not e x c e e d 22,000 pesos; b u t if the v a l u e of the t h i n g stolen b u t if the v a l u e exceeds the latter a m o u n t , the p e n a l t y shall b e the m a x i m u m p e r i o d o f the o n e p r e s c r i b e d i n this p a r a g r a p h , a n d o n e y e a r for e a c h a d d i t i o n a l ten t h o u s a n d pesos, b u t the total of the p e n a l t y w h i c h m a y b e i m p o s e d shall not e x c e e d t w e n t y y e a r s . I n such cases, a n d i n c o n n e c t i o n w i t h the accessory penalties w h i c h m a y b e i m p o s e d a n d for the p u r p o s e of the o t h e r p r o v i s i o n s of this C o d e , the penalty shall be t e r m e d prision mayor or reclusion temporal, as the case m a y b e .

2.

T h e penalty of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s , i f the v a l u e o f the t h i n g stolen is m o r e t h a n 6,000 pesos b u t does not e x c e e d 12,000 pesos.

870

THEFT

3.

T h e p e n a l t y of prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s , if the v a l u e of the p r o p e r t y stolen is m o r e t h a n 200 pesos b u t does not exceed 6,000 pesos.

4.

Arresto mayor in its m e d i u m p e r i o d to prision correccional in its m i n i m u m p e r i o d , if the v a l u e of the p r o p e r t y stolen is o v e r 50 pesos b u t does not exceed 200 pesos.

5.

Arresto mayor in its full extent, if such v a l u e is over 5 pesos b u t does not e x c e e d 50 pesos.

6.

Arresto mayor in its m i n i m u m a n d m e d i u m p e r i o d s , if such v a l u e does not e x c e e d five pesos.

7.

Arresto menor or a fine not e x c e e d i n g 200 pesos, if the theft is committed u n d e r the circumstances e n u m e r a t e d in p a r a g r a p h 3 of the next p r e c e d i n g article a n d the v a l u e of the thing stolen does not e x c e e d 5 pesos. If such v a l u e exceeds said a m o u n t , the p r o v i s i o n s of a n y of the five p r e c e d i n g s u b d i v i s i o n s shall b e m a d e a p p l i c a b l e .

8.

Arresto menor in its m i n i m u m p e r i o d or a fine not e x c e e d i n g 50 pesos, w h e n the v a l u e of the thing stolen is not o v e r 5 pesos, a n d the offender shall h a v e acted u n d e r the impulse o f h u n g e r , proverty, or the difficulty of e a r n i n g a livelihood for the s u p p o r t of himself or his family.

A r t . 310. Qualified theft. — T h e crime of theft shall be punished by the penalties next h i g h e r by t w o degrees than those respectively specified in the next p r e c e d i n g articles, if committed by a domestic servant, or w i t h g r a v e abuse of confidence, or if the p r o p e r t y stolen is motor vehicle, mail matter or l a r g e cattle or consists of coconuts taken from the premises of a plantation or fish taken from a fishpond or fishery, or if p r o p e r t y is taken on the occasion of fire, e a r t h q u a k e , typhoon, volcanic eruption, or any other calamity, v e h i c u l a r accident or civil disturbance. (As amended by B.P. Big. 71, and R.A. No. 120, approved May 1980.) 871


A r t . 311. Theft of the property of the National Library and National Museum. — If the p r o p e r t y stolen be any p r o p e r t y of the N a t i o n a l L i b r a r y or of the N a t i o n a l M u s e u m , the penalty shall be arresto mayor or a fine r a n g i n g f r o m 200 to 500 pesos, or both, unless a h i g h e r penalty should be p r o v i d e d u n d e r other provisions of this C o d e , in w h i c h case, the offender shall be p u n i s h e d by such h i g h e r penalty. •

What circumstances can qualify theft? 1.

Those personal to the offender, e.g., domestic servant or with grave abuse of confidence. Only the offender with such circumstance shall be guilty of qualified theft. T h e others will be guilty of simple theft. The rules on conspiracy will not apply pursuant to Article 62, no. 3 which provides that circumstance which arise from the moral attributes of the offender, or from his personal relations with the offended party, or from any other personal cause shall serve to aggravate the liability of him to whom such circumstance is attendant.

2.

Those that refer to the object taken. A l l those who participated in the taking shall be liable for qualified theft. Coconut — taking from plantation whether from the tree or fallen on the ground because when fallen on the ground, the owner may still use the same for seedling purposes. It is qualified theft as long as the coconut is within the premises. Fish — qualified theft if taken from the pond. If fished out and then taken by the offender from the possessor even if still in the premises, simple theft because its use for breeding is already absent. Motor vehicle — now under R . A . 6539 and is malum prohibitum. L a r g e cattle — now penalized by P . D . 533 and remains a malum in se it being a mere amendment of Articles 308, 309 and 310. (Canta v. People) M a i l matter — the taking must be with intent to gain for there are other crimes involving mail matter such as estafa under Article 315(3)(c) and revelation and discovery of secrets under Article 290. 872

THEFT

3.

Circumstances during the taking such as calamity and misfortune. A l l who participated in the crime shall be liable for qualified theft.

Accused took P36,480.30 with grave abuse of confidence by forging the signature of officers authorized to sign the check and had it deposited in the of a fictitious payee without any legitimate transaction with the bank. Theft is qualified if committed with grave abuse of confidence. The fact that accused, as assistant cashier of the bank had custody of the checks and had access not only in the preparation but also in the release of cashier's checks, suffices to designate the crime as qualified theft. Falsification of the cashier's check was a necessary means to commit qualified theft resulting in a complex crime under Article 48, which provides that where an offense is a necessary means for committing the other, the penalty for the more serious crime in its maximum period shall be imposed. (People v. Salonga, G.R. No. 131131, June 21, 2001) •

What kind of confidence between employer and employee is required to bring about qualified theft? That the offender is an employee of the offended does not suffice to create the relation of confidence and intimacy required by law to designate the crime as qualified theft. Free access to the place where the taking was committed or to the article stolen is essential. A truck driver who steals the load of his truck belonging to his employer commits qualified theft. And such driver's use of the truck in transporting the stolen article to the place where they were sold makes the use of a motor vehicle in the commission of the crime a generic aggravating circumstance. (Cariaga v. CA, June 2001) T h e elements of the crime of theft as provided for in Article 308 are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things. Theft is qualified when any of the following circumstances is present: (1) the theft is committed by a domestic servant; (2) the theft is committed with grave abuse 873


of confidence; (3) the property stolen is either a motor vehicle, mail matter or large cattle; (4) the property stolen consists of coconuts taken from the premises of a plantation; (5) the property stolen is fish taken from a fishpond or fishery; and (6) the property was taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance. (People v. Bustinera) How is the offense of illegal fishing under P.D. 704 committed? Illegal fishing is committed when a person catches, takes or gathers or causes to be caught, taken or gathered fish, fishery or aquatic products in Philippine waters with the use of explosives, electricity, obnoxious or poisonous substances. T h e law presumes that the boat owner, operator or fishermen have engaged in illegal fishing when: a)

Explosives, obnoxious or poisonous substances, equipment or device for electric fishing are found in a fishing boat or in the possession of a fisherman; or

b)

Fish caught or killed with the use of explosives, obnoxious or poisonous substances or by electricity are found in a fishing boat.

Is the presumption of guilt contrary to the presumption of innocence? N o . Paragraph 3 of Section 33 of P . D . 704 creates a presumption of guilt based on facts proved and hence, constitutionally permissible. It makes the discovery of obnoxious or poisonous substances, explosives, or devices for electric fishing in any fishing boat or in the possession of a fisherman the basis of the presumption that he had used such substances in catching fish. T h e ultimate fact presumed is that the owner and operator of the boat or the fisherman w e r e engaged in illegal fishing and this presumption arose from the discovery of the substances and the contaminated fish in the possession of the fisherman in the fishing boat. T h e fact presumed is a natural inference from the fact proved. (Hizon v. CA, G.R. No. 119619, December 13, 1996)

874

THEFT

R E P U B L I C A C T N O . 6539, a s a m e n d e d

Section 1. Title. — T h i s A c t shall be k n o w n a n d m a y be cited as the " A n t i - C a r n a p p i n g A c t of 1972." Sec. 2. Definition of . — T h e "carnapping," "motor vehicle," "defacing or t a m p e r i n g with," "repainting," "body-building," "remodelling," "dismantling," and "overhauling," as u s e d in this A c t , shall be u n d e r s t o o d , respectively, to m e a n — " C a r n a p p i n g " is the t a k i n g , w i t h intent to g a i n , of a motor vehicle b e l o n g i n g to a n o t h e r w i t h o u t the latter's consent, or by m e a n s of v i o l e n c e a g a i n s t or intimidation of persons, o r b y u s i n g force u p o n things. "Motor vehicle" is a n y vehicle p r o p e l l e d by any p o w e r other t h a n m u s c u l a r p o w e r u s i n g the p u b l i c h i g h w a y s , b u t excepting r o a d r o l l e r s , trolley cars, streets-sweepers, s p r i n k l e r s , l a w n m o w e r s , b u l l d o z e r s , g r a d e r s , fork-lifts, a m p h i b i a n trucks, a n d c r a n e s if not used on p u b l i c h i g h w a y s , vehicles, w h i c h r u n only o n r a i l s o r tracts, a n d tractors, trailers a n d reaction e n g i n e s of all k i n d s used exclusively for a g r i c u l t u r a l p u r p o s e s . T r a i l e r s h a v i n g any n u m b e r o f wheels, w h e n p r o p e l l e d or i n t e n d e d to be p r o p e l l e d by attachment to a motor vehicle, shall be classified as s e p a r a t e m o t o r vehicle w i t h n o p o w e r rating. "Defacing or t a m p e r i n g with" a serial n u m b e r is the erasing, scratching, a l t e r i n g or c h a n g i n g of the original factory-inscribed serial n u m b e r on the motor vehicle engine, engine block or chassis of any motor vehicle. W h e n e v e r any motor vehicle is found to h a v e a serial n u m b e r on its motor engine, engine b l o c k or chassis w h i c h is different from that w h i c h is listed in the r e c o r d s of the B u r e a u of Customs for motor vehicles i m p o r t e d into the Philippines, that motor vehicle shall be considered to h a v e a defaced or tampered w i t h serial n u m b e r . "Repainting" is c h a n g i n g the color of a motor vehicle by means of painting. T h e r e is repainting w h e n e v e r the n e w color of a motor vehicle is different from its color as ed in the L a n d T r a n s p o r t a t i o n Commission. 875


"Body-building" is a j o b u n d e r t a k e n on a motor vehicle in o r d e r to replace its entire b o d y with a n e w b o d y . "Remodelling" is the introduction of some changes in the shape or form of the b o d y of the motor vehicle. "Dismantling" is the t e a r i n g a p a r t , piece by piece or p a r t by part, of a motor vehicle. "Overhauling" is the c l e a n i n g or r e p a i r i n g of the w h o l e engine of a motor vehicle by s e p a r a t i n g the motor engine a n d its parts from the b o d y of the m o t o r vehicle. Sec. 3. Registration of motor vehicle engine, engine block and chassis. — W i t h i n one y e a r after the a p p r o v a l of this A c t , every o w n e r o r possessor o f u n r e g i s t e r e d m o t o r vehicle o r parts thereof in k n o c k d o w n condition shall r e g i s t e r w i t h the L a n d T r a n s p o r t a t i o n C o m m i s s i o n the m o t o r vehicle e n g i n e , engine block a n d chassis in his n a m e or in the n a m e of the real o w n e r w h o shall b e r e a d i l y a v a i l a b l e t o a n s w e r a n y c l a i m over the ed m o t o r vehicle e n g i n e , e n g i n e b l o c k a n d chassis. T h e r e a f t e r , all m o t o r vehicle e n g i n e s , e n g i n e b l o c k a n d chassis not r e g i s t e r e d w i t h the L a n d T r a n s p o r t a t i o n Commission shall b e c o n s i d e r e d a s u n t a x e d i m p o r t a t i o n o r coming f r o m all illegal s o u r c e s o r c a r n a p p e d , a n d shall b e confiscated in f a v o r of the G o v e r n m e n t . A l l o w n e r s of m o t o r vehicles in all cities a n d municipalities a r e r e q u i r e d t o r e g i s t e r t h e i r c a r s w i t h the local police w i t h o u t p a y i n g a n y c h a r g e s . xxx

xxx

xxx

Sec. 5. Registration of sale, transfer, conveyance, substitution or replacement of a motor vehicle engine, engine block or chassis. — E v e r y sale, transfer, c o n v e y a n c e , substitution o r r e p l a c e m e n t of a m o t o r vehicle e n g i n e , e n g i n e b l o c k or chassis of a m o t o r vehicle, shall b e r e g i s t e r e d w i t h the L a n d T r a n s p o r t a t i o n Commission. M o t o r vehicles a s s e m b l e d a n d r e b u i l t o r r e p a i r e d b y r e p l a c e m e n t w i t h m o t o r vehicle e n g i n e s , engine b l o c k s a n d chassis not r e g i s t e r e d w i t h the L a n d T r a n s p o r t a t i o n C o m m i s s i o n shall not be issued certificates o f registration a n d shall b e c o n s i d e r e d a s u n t a x e d i m p o r t e d m o t o r vehicles o r m o t o r vehicles c a r n a p p e d o r p r o c e e d i n g f r o m illegal sources.

876

THEFT

X X X

Sec. 12. Defacing or tampering with serial numbers of motor vehicle engines, engine blocks and chassis. — It shall be u n l a w f u l for any p e r s o n to deface or o t h e r w i s e t a m p e r w i t h the o r i g i n a l o r ed serial n u m b e r o f m o t o r vehicle engines, engine blocks a n d chassis. Sec. 12-A. A l l c a r n a p p e d or stolen motor vehicle, r e c o v e r e d a n d i m p o u n d b y l a w e n f o r c e m e n t agencies w h i c h after a p e r i o d of t h r e e (3) m o n t h s f r o m the date of its seizure/ recovery have remained unclaimed or whose real owners could n o l o n g e r b e d e t e r m i n e d o r established b e c a u s e the o r i g i n a l n u m b e r s o f the m o t o r e n g i n e o r chassis n u m b e r s could no longer be determined and restored, are considered a s a b a n d o n e d m o t o r vehicles a n d shall b e sold a n d disposed of by the C h i e f of C o n s t a b u l a r y or his a u t h o r i z e d representative in a p u b l i c auction: Provided, T h a t , in all cases b e f o r e a n y p u b l i c auction is effected, there shall be p u b l i s h e d once a w e e k for t h r e e (3) consecutive w e e k s in a n e w s p a p e r of g e n e r a l c i r c u l a t i o n in the P h i l i p p i n e s or in the place w h e r e it w a s r e c o v e r e d or f o u n d , a description of the vehicles intended to be a u c t i o n e d w i t h a notice that after the lapse of one m o n t h f r o m the date of the last publication, should no p e r s o n file a c l a i m for the r e c o v e r y of the same, said motor vehicles w i l l be sold at p u b l i c auction: Provided, finally, T h a t the date a n d p l a c e of the p u b l i c auction to be conducted by the C h i e f of C o n s t a b u l a r y or his authorized representative shall a l r e a d y be fixed in the last publication aforementioned. (As inserted by P.D. No. 1911, prom. March 23, 1983.) Sec. 12-B. A f t e r the p u b l i c auction, the proceeds shall be a p p l i e d to a n s w e r for c h a r g e s i n c l u d i n g storage and cost of publication a n d related expenses i n c u r r e d in connection therewith: Provided, T h a t , the r e m a i n d e r , if any, shall be retained by the P h i l i p p i n e Constabulary/Integrated N a t i o n a l Police to be used for the operational expenses of the A n t i - C a r n a p p i n g T a s k F o r c e or any such unit as may hereinafter be created for a similar p u r p o s e for which the A n t i - C a r n a p p i n g T a s k Force w a s created. (As inserted by P.D. No. 1911.)

877


Sec. 13. Penal Provisions. — A n y person w h o violates any provision of this Act shall be p u n i s h e d with imprisonment for not less than t w o years n o r m o r e than six y e a r s a n d a fine equal in amount to the acquisition cost of the motor vehicle, motor vehicle engine or any p a r t involved in the violation: Provided, T h a t if the person violating any provisions of this Act is a j u r i d i c a l person, the penalty h e r e i n p r o v i d e d shall be imposed on its president or secretary a n d / o r m e m b e r s of the b o a r d of directors or any of its officers a n d employees w h o may have directly p a r t i c i p a t e d in the violation. A n y g o v e r n m e n t official o r employee w h o directly commits the u n l a w f u l acts defined in this A c t or is guilty of gross negligence of duty or connives w i t h or permits the commission of any of the said u n l a w f u l acts shall, in addition to the penalty p r e s c r i b e d in the p r e c e d i n g p a r a g r a p h , b e dismissed f r o m the service w i t h p r e j u d i c e t o his reinstatement a n d w i t h disqualification f r o m voting or b e i n g voted for in a n y election a n d f r o m a p p o i n t m e n t to a n y p u b l i c office. Sec. 14. Penalty for Carnapping. — A n y p e r s o n w h o is found guilty of c a r n a p p i n g , as this t e r m is defined in Section T w o of this A c t , shall, i r r e s p e c t i v e of the v a l u e of m o t o r vehicle taken, be p u n i s h e d by i m p r i s o n m e n t for not less than fourteen y e a r s a n d eight m o n t h s a n d not m o r e t h a n seventeen y e a r s a n d f o u r m o n t h s , w h e n the c a r n a p p i n g i s committed w i t h o u t violence or i n t i m i d a t i o n of p e r s o n s , or force u p o n things, a n d by i m p r i s o n m e n t for not less than seventeen y e a r s a n d f o u r m o n t h s a n d not m o r e t h a n thirty years, w h e n the c a r n a p p i n g i s committed b y m e a n s o f violence against o r i n t i m i d a t i o n o f a n y p e r s o n , o r force u p o n things; a n d the p e n a l t y of reclusion perpetua to d e a t h shall b e i m p o s e d w h e n the o w n e r , d r i v e r o r o c c u p a n t o f the c a r n a p p e d motor vehicle is k i l l e d or r a p e d in the c o u r s e of the commission of the c a r n a p p i n g or on the occasion thereof. (As amended by Sec. 20, R.A. No. 7659.) x

•

x

x

xxx

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Compare carnapping to robbery and qualified theft. Carnapping is defined in Section 2 of R.A. 6539 as 'the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence 878

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against or intimidation of persons, or by using force upon things.' Essentially it is robbery or theft of a motorized vehicle, the concept of unlawful taking in theft, robbery and carnapping being the same. But it is a special law different from robbery and theft. It particularly addresses the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things. A careful comparison of R . A . 6539 with robbery and theft readily reveals their common features and characteristics: unlawful taking, intent to gain, and that personal property belonging to another is taken without the latter's consent. However, R . A . 6539 particularly deals with the theft and robbery of motor vehicles. Hence a motor vehicle is said to have been carnapped when it has been taken, with intent to gain, without the owner's consent, whether the taking was done with or without the use of force upon things. Without R . A . 6539, such unlawful taking of a motor vehicle would fall within the purview of either theft or robbery which was certainly the case before its enactment. (People v. Bustinera) Unlawful taking is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of it. »

What are the elements of carnapping? (1)

Taking of a motor vehicle which belongs to another;

(2)

T h e taking is without the consent of the owner or by means of violence against or intimidation of persons or by using force upon things; and

(3)

It is done with intent to gain.

Since appellant is accused of the unlawful taking of a Daewoo sedan, R . A . 6539 would apply as the said motor vehicle does not fall within the exceptions mentioned in the law. (id.) •

What changes were introduced by R.A. 7659 on R.A. 6539? Three amendments to the anti-carnapping law, viz.: (1)

The change of life imprisonment to reclusion perpetua;

(2)

The inclusion of rape; and 879


(3) The change of "in the commission of the carnapping" to "in the course of the commission of the carnapping or on the occasion thereof." (People v. Latayada, G.R. No. 146865, February 18, 2004) R . A . 6539 imposes the penalty of life imprisonment to death when the owner, driver or occupant of the carnapped motor vehicle is killed in the commission of carnapping. R . A . 7659 amended R . A . 6539 by changing the penalty to reclusion perpetua to death when the owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof. (People v. Ellasos, June 6, 2001) During the commission of the crime on February 4, 1992, there was no carnapping with homicide. T h e proper denomination for the crime was carnapping under Sections 2 and 14, R . A . 6539. (People v. Sirad, G.R. No. 130594, July 5, 2000) •

What are the implications of the amendments by R.A. 7659? 1.

W i t h the amendment of the penalty of life imprisonment to reclusion perpetua, the provisions of the R P C is suppletory in qualified carnapping or carnapping in an aggravated form as defined in Section 14 of R . A . 6539, as amended by Section 20 of R . A . 7659 — whenever the owner, driver or occupant of the carnapped vehicle is killed in the course of the commission of the carnapping or on the occasion thereof. In Simon, 234 SCRA 555, when an offense is defined and punished under a special law but its penalty is taken from the R P C , then the provisions of the latter applies suppletorily. If the charge is simple carnapping, the penalty is imprisonment for not less than 14 years and 8 months and not more than 17 years and 4 months, thus, the R P C cannot be applied. (People v. Bustinera)

2.

T h e intention of the law is to make the offense a special c o m p l e x crime, by w a y of analogy vis-a vis Article 294 (1) to (4) on robbery with violence against or intimidation of persons. As such the killing or the rape merely qualifies the crime of carnapping which for lack of specific nomenclature may be known as qualified c a r n a p p i n g

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or c a r n a p p i n g in an a g g r a v a t e d form. Considering the phraseology of the amended Section 14, the carnapping and the killing or the rape may be considered a special complex crime not covered by Article 48. 3.

Since Section 14 uses the words "is killed" no distinction must be made between homicide and murder. Whether it is one or the other which is committed "in the course of carnapping or on the occasion t h e r e o f makes no difference insofar as the penalty is concerned. T h e killing whether homicide or murder cannot be treated as a separate offense, but to qualify the carnapping. (People v. Mejia, G.R. Nos. 118940-41, July 7, 1997)

Thus, under the last clause of Section 14 of R . A . 6539, the prosecution not only has to prove the essential requisites of carnapping and of the homicide or murder but more importantly, it must show that the original criminal design was carnapping and that the killing was perpetrated "in the course of the commission of the carnapping or on the occasion thereof." W h e r e the elements of carnapping are not proved, R . A . 6539 would cease to be applicable and the homicide or murder if proved would be punishable under the R P C . •

When is carnapping presumed to have been committed? Although only a wheel of a motor tricycle was found in the possession of the accused, such possession without any satisfactory explanation, raises the presumption that he authored the carnapping. T h e unlawful taking of the whole vehicle is already complete and consummated even if only a part thereof is taken or appropriated while the rest of it is abandoned. In the absence of an explanation of how a person has come into the possession of stolen effects belonging to another who was killed, the possessor of such effects must be considered the author of the killing and of the robbery. The chain of circumstances where the accused were seen riding with the driver of the tricycle, and two hours later they were seen riding the same tricycle minus the driver, who was later found dead/killed treacherously, and the next day, accused were found in possession of a wheel of the same tricycle, point to the conclusion that they are guilty of unlawfully taking the tricycle and killing its driver. (People v. Ellasos, June 6, 2001) 881


What should be the relationship between the carnapping and the killing? The original criminal design of the culprit must be carnapping and that the killing, if any, was perpetrated on the occasion thereof. The unlawful taking must be established. Although there is a presumption that a person found in possession of the personal effects belonging to a person robbed or killed is the author of the killing as well as the robbery, this presumption is limited to cases where the possession of the personal effects is unexplained or the proffered explanation is rendered implausible by independent evidence inconsistent thereto. Once an explanation is offered for the possession of such personal effects, the presumption arising from unexplained possession may not anymore be invoked; the burden shifts once more to the prosecution to present evidence that would render the defense of the accused improbable. Otherwise the guilt of the accused was not established beyond reasonable doubt. (People v. Santos, June 8, 2000)

May qualified theft of motor vehicle be committed despite R.A. 6539 as amended by R.A. 7659? Yes, but only as to those excepted from the coverage of the law such as road rollers, trolleys, street-sweepers, sprinklers, lawn mowers, amphibian trucks and cranes if not used on public highways, vehicles which run only on rails and tracks, and tractors, trailers and tractor engines of all kinds and used exclusively for agricultural purposes. The theft or robbery of the said vehicles would be covered by the RPC. Article 310 has been modified, with respect to certain vehicles, by R.A. 6539, as amended. In Tan, accused took a Mitsubishi Gallant and in Lobitania, which involved the taking of a motorized tricycle, the unlawful taking of motor vehicles is now covered by the anti-carnapping law and not by the provisions on qualified theft or robbery. (People v. Bustinera) May a person charged with qualified theft of motor vehicle be convicted of carnapping? Yes, for while it is necessary that the statutory designation be stated in the information, a mistake in the caption of an in-

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dictment in designating the correct name of the offense is not a fatal defect as it is not the designation that is controlling but the facts alleged in the information which determines the real nature of the crime. (People v. Bali-balita, 340 SCRA 450) •

What crime is committed when a public utility vehicle under the "boundary" system is appropriated by the driver? Neither qualified theft nor estafa but carnapping. Where the information was filed for estafa but the facts show that what was yielded was only physical possession of the motor vehicle, the crime is carnapping. T h e description of the motor vehicle must be alleged in the information, otherwise it is theft. Juridical possession of public utility vehicle cannot be legally transferred as there is a prohibition against such practice by the Public Service Commission. At most only physical possession is transferred. People v. Isaac, 96 Phil. 931 (1955), convicted a jeepney driver of theft and not estafa when he did not return the jeepney to its owner since the motor vehicle was in the juridical possession of its owner, although physically held by the driver. T h e accused was not a lessee or hirer of the jeepney because the Public Service L a w and its regulations prohibit a motor vehicle operator from entering into any kind of contract with any person if by the thereof it allows the use and operation of all or any of his equipment under a fixed rental basis. The contract with the accused being under the "boundary system," legally, the accused was not a lessee but only an employee of the owner. Thus, the driver's possession of the vehicle was only an extension of the owner's. Santos v. People, 181 SCRA 48, distinguished theft from estafa: "The principal distinction between the two crimes is that in theft the thing is taken while in estafa the accused receives the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property. If he was entrusted only with the material or physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa." 883


While the nature of appellant's possession of the taxi was initially lawful as he was hired as a taxi driver and was entrusted possession thereof, his not returning it to its owner, against the owner's consent transformed the character of the possession into an unlawful one. Has the Revised Penal Code suppletory effect on R.A. 6539? None except for qualified carnapping. W h i l e the information alleges that the crime was attended with grave abuse of confidence, the same cannot be appreciated as the suppletory effect of the R P C to special laws, cannot be invoked when there is a legal impossibility of application, either by express provision or by necessary implication. When the penalties under the special law are different from and are without reference or relation to those under the R P C , there can be no suppletory effect of the rules, for the application of penalties under the R P C or by other relevant statutory provisions are based on or applicable only to said rules for felonies under the R P C . Thus, Panida, 310 SCRA 66, where the penalty imposed was the indeterminate sentence of 14 years and 8 months, as minimum, to 17 years and 4 months, as maximum, did not apply the R P C as R . A . 6539 provides for its own penalties which are distinct and without reference to the R P C . The charge being simple carnapping, the imposable penalty is imprisonment for not less than 14 years and 8 months and not more than 17 years and 4 months. W h i l e it is true that such penalty is virtually equivalent to the duration of the medium period of reclusion temporal, such technical term under the R P C is not given to that penalty for carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances in the law do not correspond to those in the R P C . T h e rules on penalties in the R P C therefore, cannot suppletorily apply to R . A . 6539 and special laws of the same formulation. (But if the crime is carnapping in the aggravated form, the penalty will be reclusion perpetua which is taken from the R P C , hence, it shall have suppletory application in this limited sense only.)

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•

Whether or not attempted and frustrated murder/homicide are included in qualified carnapping. T h e answer must be in the negative in light of the use in said Section 14 of the words IS K I L L E D . The unmistakable import thereof is that it refers only to the consummated felnny of either murder or homicide. If attempted or frustrated murder or homicide is committed "in the course of the commission of the carnapping or on the occasion thereof," then it must be deemed to fall under the clause of Section 14, "when the carnapping is committed by means of violence against or intimidation of any person." (People v. Mejia)

•

Is a tricycle used within inner streets within the coverage of R.A. 6539? Y e s . 'Public' means 'common to all or many; general; open to common use.' (Black's L a w Dictionary 1393 [Revised 4th Ed.]) 'Highway' refers to a free and public road way, or street; one which every person has the right to use (id., at p. 862). It is clear that a street within a town is a public highway if it is used by the public. To limit the words 'public highways' to a national road connecting the various towns would create a distinction which the statute itself does not make. To limit the application of the A c t to motor vehicles traveling between different towns, may lead to absurd results. For example, privately-owned motorcycle used by its owner in traveling from one province to another would be covered by the law whereas a motorized tricycle which is more expensive than the former but operated within towns would not be protected by the law. "No unreasonable intendment should be read into a statute so that an injustice may be worked or an absurd result produced." (Izon v. People, G.R. No. L-51370, August 31, 1981) The enumeration of excepted vehicle show that any vehicle which is motorized using the streets which are public, not exclusively for private use, comes within the concept of motor vehicle. A tricycle is not included in the exception, thus is among the motor vehicles the stealing of which comes within its penal sanction, (id.) 885


Is license to use the public highways required in the law? Highways are always public, free for the use of every person. There is nothing in the law that requires a license to use a public highway to make the vehicle a "motor vehicle" within the definition given in R . A . 6539. If a vehicle uses the streets with or without the required license, same comes within the protection of the law, for the severity of the offense is not to be measured by what kind of streets or highway the same is used; but by the very nature of the vehicle itself and the use to which it is devoted. Otherwise, cars using the streets but still unlicensed or uned as when they have just been bought from the company, or only on test runs, may be stolen without the penal sanction of R . A . 6539, but only as simple robbery punishable. This could not have been the intention of the law. (id) What is the nature of the crime of carnapping? Carnapping is malum prohibitum. If homicide is committed, a special complex crime of carnapping with homicide, not falling within Article 48 is committed by virtue of the amendment made by R . A . 7659. (There is no complex crime of offense and felony under Article 48; there is special complex crime of offenses.)


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Sec. 2. Definition of . — T h e f o l l o w i n g t e r m s shall m e a n as follows: a.

"Fencing" is the act of a n y p e r s o n w h o , w i t h intent t o g a i n for himself o r for a n o t h e r , shall b u y , receive, possess, k e e p , a c q u i r e , conceal, sell or d i s p o s e of, or shall b u y a n d sell, o r i n a n y o t h e r m a n n e r d e a l i n a n y article, item, object o r a n y t h i n g o f v a l u e w h i c h he knows, or should be k n o w n to him, to have been d e r i v e d f r o m the p r o c e e d s o f the c r i m e o f r o b b e r y or theft.

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b.

"Fence" i n c l u d e s a n y p e r s o n , firm, association, c o r p o r a t i o n o r p a r t n e r s h i p o r other o r g a n i z a t i o n w h o / w h i c h commits the act of fencing.

Sec. 3. Penalties. — A n y p e r s o n guilty of fencing shall be p u n i s h e d as h e r e u n d e r indicated: a.

T h e p e n a l t y of prision mayor, if the v a l u e of the p r o p e r t y i n v o l v e d is m o r e t h a n 12,000 pesos b u t not e x c e e d i n g 22,000 pesos; if the v a l u e of such p r o p e r t y exceeds the latter s u m , the p e n a l t y p r o v i d e d in this p a r a g r a p h shall b e i m p o s e d i n its m a x i m u m p e r i o d , a d d i n g o n e (1) y e a r for e a c h a d d i t i o n a l 10,000 pesos, b u t the total p e n a l t y w h i c h m a y b e imposed shall not e x c e e d t w e n t y (20) y e a r s . In such cases, the p e n a l t y shall be t e r m e d reclusion temporal a n d the accessory p e n a l t y p e r t a i n i n g thereto p r o v i d e d in the R e v i s e d P e n a l C o d e shall also be imposed.

b.

T h e p e n a l t y of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s , if the v a l u e of the p r o p e r t y r o b b e d or stolen is m o r e t h a n 6,000 pesos b u t not e x c e e d i n g 12,000 pesos.

c.

T h e p e n a l t y of prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s , if the v a l u e of the p r o p e r t y i n v o l v e d is m o r e t h a n 200 pesos b u t not exceeding 6,000 pesos.

d.

T h e penalty of arresto mayor in its m e d i u m period to prision correccional in its m i n i m u m period, if the v a l u e of p r o p e r t y involved is over 50 pesos but not e x c e e d i n g 200 pesos.

e.

T h e penalty of arresto mayor in its m e d i u m period if such v a l u e is o v e r five (5) pesos b u t not exceeding 50 pesos.

f.

T h e penalty of arresto mayor in its m i n i m u m period, if such v a l u e does not exceed 5 pesos.

Sec. 4. Liability of Officials of Juridical Persons. — If the fence is a p a r t n e r s h i p , firm, corporation or association, the

887


president or the m a n a g e r or any officer thereof w h o k n o w s or should have k n o w n the commission of the offense shall be liable. Sec. 5. Presumption of Fencing. — M e r e possession of any good, article, item, object, or a n y t h i n g of v a l u e w h i c h has been the subject of r o b b e r y or thievery shall be prima facie evidence of fencing. xxx •

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What is fencing? Fencing is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object, or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. (Dunlao u. CA, G.R. No. 111343, August 22, 1996)

•

P.D. 1612 covers the proceeds of what crimes? The crime of fencing covers only proceeds of theft or robbery. It does not apply to other crimes of gain such as estafa. The act of a party who took a share of the proceeds of a crime other than robbery or theft would make him an accessory. Only in theft or robbery that one, with intent to gain, dealt with the proceeds that he becomes a fence. Because cattle rustling is a mere amendment of Article 310 on theft of large cattle, the accessory to cattle rustling thru profiting from the use of large cattle can be liable for fencing provided he is charged for the latter crime. (Taer)

•

What are the elements of the crime of fencing? (1)

A crime of robbery or theft has been committed;

(2)

T h e accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime;

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(3)

The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and

(4)

There is, on the part of accused, intent to gain for himself or for another. (D.M. Consunji, Inc. v. Esguerra, G.R. No. 118590, July 30, 1996; Tan u. People, August 1999)

T h e law does not require proof of purchase of the stolen articles by the petitioner, as mere possession thereof is enough to give rise to a presumption of fencing. It is incumbent upon the accused to overthrow this presumption by sufficient and convincing evidence. (Dunlao, Sr. v. CA) T h e offender in fencing should otherwise be an accessory to the crime of theft or robbery by profiting from the fruit or the instrument of the crime. •

Is fencing a continuing offense? Fencing is not a continuing crime but separate and distinct from the predicate crimes of theft and robbery. The offender may be prosecuted at the place where he took hold of the property and not at the place of the commission of the theft or robbery.


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Sec. 2. Definition of . — x x x : a.

Large cattle as h e r e i n used shall include the cow, c a r a b a o , h o r s e , m u l e , ass, or other domesticated m e m b e r of the b o v i n e family.

b.

Owner/raiser shall include the h e r d s m a n , caretaker, employee or tenant of a n y firm or entity e n g a g e d in the r a i s i n g of l a r g e cattle or other persons in lawful possession of such l a r g e cattle.

c.

Cattle ruatling is the taking a w a y by means, method or scheme, without the consent of the owner/raiser, of any of the a b o v e mentioned animals whether or 889


not for profit or g a i n , or w h e t h e r committed with or without violence against or intimidation of any person or force u p o n things. It includes the killing of l a r g e cattle, or taking its meat or h i d e without the consent of the o w n e r / r a i s e r . Sec. 3. Duty of owner /raiser to . — T h e o w n e r / r a i s e r shall, before the l a r g e cattle b e l o n g i n g to h i m shall attain the age of six months, the same w i t h the office of the city/municipal t r e a s u r e r w h e r e such l a r g e cattle a r e raised. T h e city/municipality c o n c e r n e d m a y impose a n d collect the fees, authorized by existing l a w s for such r e g i s t r a t i o n a n d the issuance of certificate of o w n e r s h i p to the o w n e r / r a i s e r . xxx

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Sec. 5. Permit to buy and sell large cattle. — No p e r s o n , p a r t n e r s h i p , association, c o r p o r a t i o n or entity shall e n g a g e in the business of b u y a n d sell of l a r g e cattle w i t h o u t first securing a p e r m i t for the said p u r p o s e f r o m the P r o v i n c i a l C o m m a n d e r of the p r o v i n c e w h e r e it shall c o n d u c t such business a n d the city/municipal t r e a s u r e r of the place of residence of such p e r s o n , p a r t n e r s h i p , association, c o r p o r a t i o n or entity. T h e p e r m i t shall o n l y be v a l i d in such province. xxx

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Sec. 7. Presumption of cattle rustling. — E v e r y p e r s o n h a v i n g in his possession, control, or custody of l a r g e cattle shall, u p o n d e m a n d b y c o m p e t e n t a u t h o r i t i e s , e x h i b i t the documents p r e s c r i b e d in the p r e c e d i n g sections. F a i l u r e to exhibit the r e q u i r e d d o c u m e n t s shall be prima facie e v i d e n c e that the l a r g e cattle in his possession, control a n d custody a r e the fruits of the c r i m e of cattle rustling. Sec. 8. Penal provisions. — A n y p e r s o n convicted of cattle r u s t l i n g as h e r e i n defined shall, i r r e s p e c t i v e of the v a l u e of the l a r g e cattle involved, be p u n i s h e d by prision mayor in its m a x i m u m p e r i o d to reclusion temporal in its m e d i u m p e r i o d if the offense is committed w i t h o u t violence a g a i n s t or intimidation of p e r s o n s or force u p o n things. If the offense is

THEFT

committed w i t h violence a g a i n s t or intimidation of persons or force u p o n things, the p e n a l t y of reclusion temporal in its m a x i m u m p e r i o d to reclusion perpetua shall be imposed. If a p e r s o n is seriously i n j u r e d or killed as a result or on the occasion of the c o m m i s s i o n of cattle rustling, the penalty of reclusion perpetua to d e a t h shall be i m p o s e d . W h e n the o f f e n d e r is a g o v e r n m e n t official or employee, he shall, in a d d i t i o n to the f o r e g o i n g penalty, be disqualified f r o m voting o r b e i n g voted u p o n a n y e l e c t i o n / r e f e r e n d u m a n d f r o m h o l d i n g a n y p u b l i c office o r e m p l o y m e n t . W h e n the o f f e n d e r i s a n alien, h e shall b e d e p o r t e d immediately u p o n the c o m p l e t i o n of the service of his sentence w i t h o u t f u r t h e r p r o c e e d i n g s . xxx

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Sec. 10. Repealing clause. — T h e p r o v i s i o n s of Articles 309 a n d 310 of A c t N o . 3815 o t h e r w i s e k n o w n as the R e v i s e d P e n a l C o d e , a s a m e n d e d , p e r t i n e n t p r o v i s i o n s o f the R e v i s e d A d m i n i s t r a t i v e C o d e , a s a m e n d e d , all l a w s , decrees, o r d e r s , instructions, r u l e s a n d r e g u l a t i o n s w h i c h a r e inconsistent w i t h this D e c r e e a r e h e r e b y r e p e a l e d o r modified a c c o r d i n g l y . (August 8, 1974.) xxx •

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What is cattle rustling? Cattle rustling is taking away by any means, methods or schemes, without the consent of the owner/raiser, of any of the large cattle whether or not for profit or gain, or whether committed with or without violence against or intimidation of person or force upon things. It includes the killing of large cattle, or taking its meat or hide without the consent of the owner/raiser. Intent to gain may be inferred from the deliberate failure to deliver the lost property to the proper person, the finder knowing that the property does not belong to him. In this case, the several circumstances enumerated constitute an unbroken chain of events which leads to one fair and reasonable conclusion — which is that the accused indeed took the calf with the intent to appropriate it. (Taer v. CA) 891


•

Is the Anti-Cattle Rustling Law a special penal law? N o . From the nature of the penalty imposed which is in of the classification and duration of penalties as prescribed in the R P C , the intent seems clear that P . D . 533 shall be deemed as an amendment of the R P C , with respect to the offense of theft of large cattle under Article 310, or otherwise to be subject to applicable provisions thereof such as Article 104 on civil liability of the offender, a provision which is not found in the decree but which could not have been intended to be discarded or eliminated by the decree. Article 64 should likewise be applicable under which the presence of two mitigating circumstances entitles the offender to a lowering by one degree of the penalty for the offense. (People v. Macatanda, G.R. No. L-51368, November 6, 1981) P . D . 533 is not a special law. T h e penalty for its violation is in of the classification and duration of penalties prescribed in the R P C , thus indicating the intent of the lawmaker to amend the R P C with respect to the offense of qualified theft of large cattle. (Canta v. People, G.R. No. 140937, February 28, 2001)

•

When homicide is committed during cattle rustling, are the offenders liable for cattle rustling and for homicide? N o . K i l l i n g is absorbed in cattle rustling because it is still malum in se being an amendment of Article 310. T h e crime is still cattle rustling albeit qualified cattle rustling. P . D . 533 is not a malum prohibitum but a modification of theft and malicious mischief. Therefore, the rules and system on penalties under the R P C applies. T h e cattle does not have to be taken whole. T h e taking of the meat or hide is enough. T h e killing without taking also falls thereunder for it is with or without intent to gain. P . D . 533 covers taking or killing the cattle or taking its meat or hide. Taer held TT as an accessory as cattle rustling is not a malum prohibitum. He should have been liable for fencing but since the crime charged is cattle rustling and not fencing, he cannot be convicted of the latter crime.

THEFT

•

Compare carnapping and cattle-rustling. 1.

Carnapping is malum in se.

malum

prohibitum;

cattle-rustling

is

2.

The penalties for carnapping is not from the R P C except for carnapping with homicide; for cattle-rustling is taken from the R P C .

3.

Resultantly, the R P C has no suppletory application to carnapping except for qualified carnapping; it is suppletory on cattle-rustling.

4.

In both, when the driver of motor vehicle or the possessor of cattle is killed, the crime is special complex crime of carnapping with homicide or qualified cattle rustling.

5.

Both involves moral turpitude.

Chapter Four USURPATION A r t . 312. Occupation of real property or usurpation of real rights in property. — A n y p e r s o n w h o , by m e a n s of violence against or intimidation of p e r s o n s , shall take possession of any r e a l p r o p e r t y o r shall u s u r p a n y r e a l r i g h t s i n p r o p e r t y b e l o n g i n g to another, in a d d i t i o n to the p e n a l t y i n c u r r e d for the acts o f violence e x e c u t e d b y h i m , shall b e p u n i s h e d b y a fine f r o m 50 to 100 p e r c e n t u m for the g a i n w h i c h he shall h a v e o b t a i n e d , b u t not less t h a n 75 pesos. If the v a l u e of the g a i n c a n n o t be a s c e r t a i n e d a fine f r o m 200 to 500 pesos shall be i m p o s e d . •

What penalties are provided under this provision? This article provides for a two-layered penalty: 1.

T h e penalty for the acts of violence, and

2.

T h e penalty of fine for the usurpation.

If the usurpation was committed with killing or physical injuries, the penalty for robbery with homicide or robbery with serious physical injuries w i l l be imposed. Usurpation of real property is similar to robbery except that in robbery, personal property is involved. (People v. Alfeche, Jr., July 1992, 211 SCRA) •

How should the violence or intimidation in usurpation be viewed? T h e intimidation or violence is a w a y of accomplishing the crime and should not be considered as a separate crime. T h e reference to the penalty for the result of the intimidation or violence means that whatever crime results therefrom is added to the fine but the crime is still usurpation of real property. (id.)

USURPATION

It is not correct to charge usurpation with homicide or usurpation with physical injuries. T h e crime is not complex under Article 48 because the article itself provides that the fine for usurpation shall be "in addition" to the penalty for the consequence of the violence or intimidation committed. Neither is it a special complex crime because there is no single penalty for the resulting crime composed of the usurpation and the result of the violence or intimidation. It is sui generis — one crime with two penalties corresponding to the usurpation and to the means employed to commit it. •

What is the nature of the crime of usurpation? It is one of the crimes against property and is committed in the same manner as the crime of robbery with violence against or intimidation of persons defined and penalized in Article 294. T h e main difference between these two crimes is that the former involves real property or real rights in property, while the latter involves personal property. In short, Article 312 would have been denominated as robbery if the object taken were personal property, (id.)

•

How should the phrase "by means of violence against or intimidation of persons" in Article 312 be construed? T h e phrase must be construed to refer to the same phrase used in Article 294. T h e r e are five classes of robbery under the latter, namely: (a)

Robbery with homicide;

(b)

Robbery with rape, intentional mutilation, or the physical injuries penalized in Article 263(1);

(c)

Robbery with the physical injuries penalized in Article 263(2);

(d)

Robbery committed with unnecessary violence or with physical injuries covered by Article 263(3) and (4); and

(e)

Robbery in other cases or simple robbery where the violence against or intimidation of persons cannot be subsumed by, or where it is not sufficiently specified so as to fall under the first four paragraphs.

895


Article 294(1) to (4) involve the use of violence against persons. The actual physical force inflicted results as therein enumerated. The simple robbery under paragraph five may cover physical injuries not included in paragraphs two to four. Thus, when less serious physical injuries or slight physical injuries are inflicted upon the offended party on the occasion of a robbery, the accused may be prosecuted for and convicted of robbery under paragraph five, (id.) •

What is intimidation? Black's L a w Dictionary defines intimidation as "unlawful coercion; extortion; duress; putting in fear." To take, or attempt to take by intimidation means "willfully to take, or attempt to take, by putting in fear of bodily harm." Osorio, 21 Phil. 237, showed that material violence is not indispensable for there to be intimidation; intense fear produced in the mind of the victim which restricts or hinders the exercise of the w i l l is sufficient. Intimidation is not encomed under paragraphs 1 to 4 of Article 294 if no actual physical violence is inflicted; evidently then, it can only fall under paragraph 5.

•

What crimes may result from intimidation? In an appropriate case, the offender may be liable for either: (a)

Robbery under Article 294(5) if the subject matter is personal property and there is intent to gain or animus furandi; or

(b)

Grave coercion under Article 286 if such intent does not exist.

(c)

Grave threats if the intimidation is conditional and not personal as when there is an intermediary or is writing.

In grave coercion, violence through force or such display of force that would produce intimidation and control the will of the offended party is an essential ingredient. In grave threats punished under Article 282, intimidation is also present. However, this intimidation as contra-distinguished from the intimidation in Article 294(5) or A r t i c l e 286 — which is actual, immediate and personal — is conditional and not necessarily personal because it may be caused by an intermediary, (id.)

USURPATION

•

Compare the penalty for robbery with homicide, etc. to that for usurpation. Article 294 (1) to (5) are single, special and indivisible felonies, not complex crimes as denned under Article 48. T h e penalties imposed do not take into the value of the personal property taken but the gravity of the effect or consequence of the violence or intimidation. Article 312 may also be considered as defining and penalizing the single, special and indivisible crime of occupation of real property or usurpation of real rights in property by means of violence against or intimidation of persons. It is likewise not a complex crime as defined under Article 48. However, while Article 294 provides a single penalty for each class of crime therein defined, Article 312 provides a single, albeit two-tiered penalty consisting of principal penalty, which is fine based on the value of the gain obtained by the accused. This is clear from the clause "in addition to the penalty incurred for the acts of violence executed by him." For want of a better term, the additional penalty may be designated as an incremental penalty, (id.)

•

How many Informations should be filed against the usurper? Only one. W h a t Article 312 means then is that when the occupation of real property is committed by means of violence against or intimidation of persons, the accused may be prosecuted under an information for the violation thereof, and not for a separate crime involving violence or intimidation. But, whenever appropriate, he may be sentenced to suffer the penalty for the acts of violence and to pay a fine based on the value of the gain obtained.

•

What possible crimes may accompany the act of usurpation? If by reason or on the occasion of such occupation or usurpation: (a)

The crime of homicide, or any of the physical injuries penalized in Article 263 (1) or (2) is committed; or

(b)

When the same shall have been accompanied by rape or intentional mutilation; or 897


(c)

When, in the course of its execution, the offender shall have inflicted upon any person not responsible for its commission any of the physical injuries covered by Article 263 (3) and (4); or

(d)

When it is committed through intimidation or through the infliction of physical injuries not covered by Article 263 (1) to (4), i.e., physical injuries penalized under Articles 265 and 266,

the accused may be convicted for the violation of Article 312. However, he shall be sentenced to: (a)

suffer the penalty for homicide, rape, intentional mutilation and physical injuries provided under Article 263(1) to (4), other physical injuries or for the intimidation, which may fall under Article 282 (grave threats) or Article 286 (grave coercion); and

(b)

to pay a fine based on the value of the gain obtained by him, which shall be an amount equivalent to 50% to 100% of such gain, but in no case less than P75, provided, however, that if such value cannot be ascertained, the fine shall be from P200 to P500. (id.)

Who is the offended party in Article 312? T h e real victim is not necessarily the owner but the person against whom the intimidation/violence w a s employed. If such person is not named in the information but the owner, the information may be dismissed because the facts charged do not constitute an offense. T h e liability to the owner is civil only. T h e tenant has, at the v e r y least, a real right over the property — that of possession — which both accused w e r e alleged to have usurped through the threat to kill. BB is, therefore, the offended party who was directly threatened by the accused; while the information expressly states this fact, BB is not made the offended party. T h e information did not even suggest that the accused threatened complainants or their families with the infliction upon their persons, honor or property of any wrong amounting to a crime so as to bring the former within the purview of Article 282. At most, the liability of the accused to the complainants would only be civil in nature.

USURPATION

Hence, to the extent that it limits the offended parties to just the co-owners of the property who were not even in possession thereof, the information in question does not charge an offense. It may therefore, be dismissed in accordance with Section 3(a), Rule 117 of the Rules of Court, (id.)

R E P U B L I C A C T N O . 8368 — R e p e a l i n g P . D . 772 xxx

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Sec. 2. Repeal. — P r e s i d e n t i a l D e c r e e N o . 772, entitled "Penalizing S q u a t t i n g a n d O t h e r S i m i l a r Acts" i s h e r e b y repealed. Sec. 3. Effect on Pending Cases. — A l l p e n d i n g cases u n d e r the p r o v i s i o n s of P r e s i d e n t i a l D e c r e e N o . 772 shall be dismissed u p o n the effectivity of this A c t . Sec. 4. Effect on Republic Act No. 7279. — N o t h i n g h e r e i n shall be c o n s t r u e d to nullify, eliminate or diminish in a n y w a y Section 27 of R e p u b l i c A c t N o . 7279 [Urban Development Act of 1992] or a n y of its p r o v i s i o n s relative to sanctions a g a i n s t professional s q u a t t e r s a n d s q u a t t i n g syndicates. xxx

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A r t . 313. Altering boundaries or landmarks. — A n y p e r s o n w h o shall alter the b o u n d a r y m a r k s o r m o n u m e n t s o f t o w n s , provinces, or estates, or a n y other m a r k s intended to designate the b o u n d a r i e s of the same, shall be p u n i s h e d by arresto menor or a fine not e x c e e d i n g 100 pesos, or both.

Chapter Five CULPABLE INSOLVENCY Art. 314. Fraudulent insolvency. — Any person who shall abscond with his property to the prejudice of his creditors, shall suffer the penalty of prision mayor, if he be a merchant, and the penalty of prision correccional in its maximum period to prision mayor in its medium period, if he be not a merchant. •

Who are liable for culpable insolvency? Culpable insolvency is committed by debtors who conceal property to avoid payment of legal debt. The penalty is higher if committed by merchants. (Refer to the law on insolvency under mercantile law.)

C h a p t e r Six

S W I N D L I N G A N D OTHER DECEITS A r t . 315. Swindling (estafa). — A n y p e r s o n w h o shall d e f r a u d a n o t h e r b y a n y m e a n s m e n t i o n e d h e r e i n b e l o w shall b e p u n i s h e d by: 1st. T h e p e n a l t y of prision correccional in its m a x i m u m p e r i o d to prision mayor in its m i n i m u m p e r i o d , if the a m o u n t of the f r a u d is o v e r 12,000 pesos b u t does not exceed 22,000 pesos; a n d if such a m o u n t e x c e e d s the latter sum, the penalty p r o v i d e d in this p a r a g r a p h shall be imposed in its m a x i m u m p e r i o d , a d d i n g one y e a r for each a d d i t i o n a l 10,000 pesos; b u t the total p e n a l t y w h i c h m a y be i m p o s e d shall not exceed t w e n t y y e a r s . I n such case, a n d i n connection w i t h the accessory penalties w h i c h m a y b e i m p o s e d a n d for the p u r p o s e of the o t h e r p r o v i s i o n s of this C o d e , the penalty shall be t e r m e d prision mayor or reclusion temporal, as the case m a y b e ; 2nd. T h e penalty of prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s , if the a m o u n t of the f r a u d is o v e r 6,000 pesos b u t does not e x c e e d 12,000 pesos; 3rd. T h e penalty of arresto mayor in its m a x i m u m p e r i o d to prision correccional in its m i n i m u m p e r i o d , if such amount is o v e r 200 pesos b u t does not exceed 6,000 pesos; a n d 4th. By arresto mayor in its m e d i u m a n d m a x i m u m periods, if such a m o u n t does not exceed 200 pesos, p r o v i d e d that in the four cases mentioned, the f r a u d be committed by any of the f o l l o w i n g means: 1.

W i t h unfaithfulness or a b u s e of confidence, namely: (a)

By altering the substance, quantity, or quality of anything of v a l u e w h i c h the offender shall deliver by virtue of an obligation to do so, even t h o u g h such obligation be based on an immoral or illegal consideration; 901


( b ) By m i s a p p r o p r i a t i n g or converting, to the prejudice of another, money, goods, or any other personal p r o p e r t y received by the offender in trust or on commission, or for istration, o r u n d e r a n y obligation involving the duty to m a k e delivery of, or to r e t u r n the same, even t h o u g h such o b l i g a t i o n be totally or p a r t i a l l y g u a r a n t e e d by a b o n d ; o r b y d e n y i n g h a v i n g r e c e i v e d such money, goods, or other p r o p e r t y ; (c)

2.

B y t a k i n g u n d u e a d v a n t a g e o f the s i g n a t u r e o f the offended p a r t y i n b l a n k , a n d b y w r i t i n g any d o c u m e n t a b o v e such s i g n a t u r e i n b l a n k , to the p r e j u d i c e of the o f f e n d e d p a r t y or a n y third person.

By m e a n s of a n y of the f o l l o w i n g false p r e t e n s e s or f r a u d u l e n t acts e x e c u t e d p r i o r to or s i m u l t a n e o u s l y w i t h the c o m m i s s i o n of the f r a u d : (a)

B y u s i n g f i c t i t i o u s n a m e , o r falsely p r e t e n d i n g to possess p o w e r , influence, qualifications, p r o p e r t y , credit, a g e n c y , b u s i n e s s o r i m a g i n a r y transactions; o r b y m e a n s o f o t h e r s i m i l a r deceits.

(b)

B y a l t e r i n g the q u a l i t y , f i n e n e s s , o r w e i g h t o f a n y t h i n g p e r t a i n i n g t o his a r t o r b u s i n e s s .

(c)

By pretending to have bribed any Government e m p l o y e e , w i t h o u t p r e j u d i c e to the action for c a l u m n y , w h i c h the o f f e n d e d p a r t y m a y d e e m p r o p e r t o b r i n g a g a i n s t the o f f e n d e r . I n this case, the o f f e n d e r s h a l l b e p u n i s h e d b y the m a x i m u m p e r i o d o f the p e n a l t y .

(d)

By p o s t d a t i n g a check, or i s s u i n g a c h e c k in p a y m e n t o f a n o b l i g a t i o n w h e n the o f f e n d e r h a d n o f u n d s i n the b a n k , o r his f u n d s d e p o s i t e d t h e r e i n w e r e not sufficient to c o v e r the a m o u n t o f the check. T h e f a i l u r e o f the d r a w e r o f the check to d e p o s i t the a m o u n t n e c e s s a r y to c o v e r his c h e c k w i t h i n t h r e e (3) d a y s f r o m r e c e i p t o f 902

S W I N D L I N G A N D OTHER DECEITS

notice f r o m the b a n k a n d / o r p a y e e o r h o l d e r that s a i d check h a s b e e n d i s h o n o r e d for lack or insufficiency of f u n d s shall be prima facie e v i d e n c e of deceit constituting false pretense or f r a u d u l e n t act. (As amended by R.A. No. 4885, approved June 17, 1967.) (e)

3.

B y o b t a i n i n g a n y food, r e f r e s h m e n t o r a c c o m m o d a t i o n at a hotel, inn, r e s t a u r a n t , b o a r d i n g house, lodging house, or apartment h o u s e a n d the like w i t h o u t p a y i n g therefor, w i t h intent t o d e f r a u d the p r o p r i e t o r o r m a n a g e r thereof, o r b y o b t a i n i n g credit a t a hotel, inn, r e s t a u r a n t , b o a r d i n g house, l o d g i n g h o u s e , o r a p a r t m e n t h o u s e b y the use o f a n y false p r e t e n s e , o r b y a b a n d o n i n g o r s u r r e p t i t i o u s l y r e m o v i n g a n y p a r t o f his b a g g a g e f r o m a hotel, inn, r e s t a u r a n t , b o a r d i n g h o u s e , l o d g i n g h o u s e , o r a p a r t m e n t house after o b t a i n i n g credit, food, r e f r e s h m e n t or a c c o m m o d a t i o n t h e r e i n w i t h o u t p a y i n g for his food, r e f r e s h m e n t , or a c c o m m o d a t i o n . (As amended by Com. Act No. 157.)

T h r o u g h a n y of the f o l l o w i n g f r a u d u l e n t means: (a)

B y i n d u c i n g a n o t h e r , b y m e a n s o f deceit, t o sign a n y d o c u m e n t ;

( b ) By r e s o r t i n g to some f r a u d u l e n t practice to i n s u r e success in a g a m b l i n g g a m e ; (c)

By r e m o v i n g , concealing, or destroying, in w h o l e or in p a r t , a n y court r e c o r d , office files, d o c u m e n t , o r a n y other p a p e r s .

How is estafa committed? There are two forms or ways of committing estafa: 1.

With abuse of confidence or unfaithfulness under no. 1 of Article 315; and

2.

Through deceit or false pretense in nos. 2 and 3 thereof with damage in either case. 903


In the second form, Article 315(2)(a), estafa is committed by: (1)

Using a fictitious name;

(2)

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

(3)

By means of other similar deceits.

Under this class of estafa, the element of deceit is indispensable (People v. Billaber, G.R. No. 114967-68, January 26, 2004). Also, in the second form, it is essential that the deceit or false pretense be prior to or simultaneous to the prejudice and that the same be the v e r y cause of the damage. People v. Lo, G.R. N o . 175229, January 2009 There are three ways of committing estafa under the under Article 315(2)(a); (1) by using a fictitious name; (2) by falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, and (3) by means of other similar deceits. Under this class of estafa, the element of deceit is indispensable. In the present case, the deceit consists of accused's false statement or fraudulent representation which was made prior to, or at least simultaneously within, the delivery of the money by the complainants. To convict for this type of crime, it is essential that the false statement or fraudulent representation constitutes the very cause or the only motive which induces the complainant to part w i t h the thing of value. Accused led private complainants to believe that they possessed the power, means and legal qualifications to provide the latter with work in Italy, when in fact they did not. P r i v a t e complaints parted with their hard-earned money and suffered damage by means of accusedappellants deceitful and illegal acts. T h e elements of deceit and damage for this form of estafa are indisputably present, hence their conviction for estafa and for illegal recruitment in large scale was proper. •

What is the nature of the damage suffered by the offended party? T h e damage is not limited to material damage; any disturbance or prejudice is constitutive of damage. Rlustration:


A check was issued out to an impostor who was not able to encash the same because it was made payable to the company. The crime was consummated estafa because in so issuing the check, the offended in effect set aside the amount thereof which he was not able to use for a certain period. To such extent he was damaged in his proprietary right. What are the elements of estafa through misappropriation or conversion in Article 315(l)(b)? 1.

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

2.

T h e r e was misappropriation or conversion of such money or property by the offender or denial on his part of such receipt;

3.

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

4.

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

T h e specific word "demand" need not be used to show that demand had indeed been made upon the person charged of the offense. A query as to the whereabouts of the money is tantamount to demand. Thus, the trial court validly exercised its jurisdiction over the crime charged against the accused inasmuch as one of the elements of estafa, of demand, occurred within its territorial jurisdiction. (Barrameda v. CA, G.R. No. 96428, September 2, 1999; People u. Moreno, September 1999) When will misappropriation of money or property entrusted to another constitute estafa? theft? T h e receipt of the offender of the personal property must give her juridical possession of the property or the crime committed will not be estafa. When a bank's cash custodian is found short of the cash under her primary responsibility her crime is not estafa but q u a l i f i e d theft. Her possession of the cash belonging to the bank is similar to the possession of a bank teller. Her possession is the possession of the bank. Thus, she only received physical and not juridical possession of the missing cash. 905


What constitutes juridical possession? Juridical possession means a possession which gives the transferee a right over the thing transferred and this he may set up even against the owner. A commission agent who receives goods in consequence of the agency has a right of retention over the proceeds thereof if the principal cannot reimburse the advances he had made for the agency and indemnify him for the damages he may have suffered thereby. His possession of the goods/proceeds is juridical possession (Burce v. CA, April 2000). The possession of tenant as against the landlord; the borrower as against the lender in commodatum; the lessee v. the lessor are examples of juridical possession. When the tenant, borrower, or lessee gained possession of the property and converted the same, he commits estafa, not theft. How are the words "convert" and "misappropriate" understood? The words "convert" and "misappropriate" in the Article connote an act of using or disposing of another's property as if it were one's own or of devoting it to a purpose or use different from that agreed upon. To misappropriate a thing of value for one's own use or benefit means not only the conversion to one's personal advantage but also every attempt to dispose of the property of another without a right. (Lee v. People, G.R. No. 157781, April 11, 2005) In estafa through conversion, the offended entrusted to the offender goods by w a y of istration or deposit where the obligation is to return the v e r y thing that was received. If money is the subject of transaction, there is no estafa through conversion unless the agreement is to return the same serial numbered currency because when money is deposited, the relationship is that of creditor-debtor. T h e obligation is civil not criminal. M a y a person who failed to liquidate his cash advance be convicted of estafa? In order that a person can be convicted of estafa under Article 3 1 5 ( l ) ( b ) it must be proved that he had the obligation to deliver or return the same money, goods or personal property that he had received.


Liquidation simply means the settling of indebtedness. An employee who liquidates a cash advance is in fact paying back his debt in the form of a loan of money advanced to him by his employer, as per diems and allowances. Similarly, if the amount of the cash advance he received is less than the amount he spent for actual travel he has the right to demand reimbursement from his personal funds. In other words, the money advanced by either party is actually a loan to the other. Hence, petitioner was under no legal obligation to return the same cash or money, i.e., the bills or coins, which he received from the respondent. In A r t i c l e 1953 of the N C C , a person who receives a loan of money or any other fungible thing acquires the ownership thereof, and is bound to pay to the creditor an equal amount of the same kind and quality. Since ownership of the money (cash advance) was transferred to petitioner, no fiduciary relationship was created. Absent this fiduciary relationship between petitioner and respondent, which is an essential element of estafa by misappropriation or conversion, estafa is not committed. (Yong Chan Kim v. People, G.R. No. 84719, January 25, 1991) Will delivery to a third person of the thing held in trust constitute a defense in estafa? Generally, the delivery to a third person of the thing held in trust is not a defense in estafa. However, this rule was modified in Nepomuceno and Trinidad hus: In cases of estafa, the profit or gain must be obtained by the accused personally, through his own acts, and his mere negligence in permitting another to take advantage or benefit from the entrusted chattel cannot constitute estafa under Article 3 1 5 ( l ) ( b ) ; unless the evidence should disclose that the agent acted in conspiracy or connivance with the one who carried out the actual misappropriation, when the accused would be answerable for the acts of his co-conspirators. If there is no such evidence, direct or circumstantial, and if the proof is clear that the accused herself was the innocent victim of her sub-agent's faithlessness, her acquittal is in order. (Lim v. CA, G.R. No. 102784, April 7, 1997)

907


•

How is misappropriation or conversion proved? Misappropriation or conversion may be proved by direct or by circumstantial evidence. Failure to upon demand, whether formal or verbal, for funds or property held in trust, is circumstantial evidence of misappropriation. (Lee v. People)

•

Will the return of the money to the victim free the accused from criminal liability? N o . The fact that accused returned their money will not negate estafa. Criminal liability for estafa is not affected by compromise or novation of contract, for it is a public offense which must be prosecuted and punished by the Government on its own motion even though complete reparation should have been made of the damage suffered by the offended party. A criminal offense is committed against the People, the offended party may not w a i v e or extinguish the criminal liability that the law imposes for the commission of the offense. (People v. Moreno, G.R. No. 130067, September 16, 1999)

•

What are the elements of estafa under Article 315(2)(a)? 1)

There must be a fraudulent means;

false

pretense,

fraudulent act or

2)

Such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud;

3)

T h e offended party must have relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act, or fraudulent means; and

4)

As a result thereof, the offended party suffered damage.

T h e act of the petitioner of deliberately and fraudulently misrepresenting that L P H of which he is the general manager is the owner of a lot in Baguio City on which the townhouse units would be built; that he has the authority to offer for sale the proposed townhouse units so that he could, as he did collect money as down payment for two townhouse units from the complainants; his failure to return the amounts he had collected from them despite several demands; and considering


that the townhouse units w e r e never constructed, constitute estafa under Article 315(2)(a). (Montano v. People, G.R. No. 141980, December 2001) Define fraud; deceit. Fraud, in its general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken of another. It is a generic term embracing all multifarious means which human ingenuity can device, and which are resorted to by one individual to secure an advantage over another by false suggestions or by suppression of truth and includes all surprise, trick, cunning, dissembling and any unfair w a y by which another is cheated. On the other hand, deceit is the false representation of a matter of fact whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury. (People v. Balasa, G.R. No. 106357, September 3, 1998) W h o should suffer the damage due to the fraud or deceit committed by accused? It must be the complainant. W h i l e it may be said that there was fraud or deceit committed by R R , when she used the surname " W " to give her semblance of authority to sell the house, such fraud or deceit was employed upon the CC spouses who were the ones who parted with their money when they bought the house. However, the information charging RR of estafa alleged damage or injury not upon the CC spouses, but upon complainant A A . Since the deceit or fraud was not the efficient cause and did not induce AA to part with her property, RR cannot be held liable for estafa. (Gonzaludo v. People, G.R. No. 150910, February 6, 2006) Is the principle of caveat emptor a defense in swindling? The fact that the buyer makes an independent investigation or inspection does not preclude him from relying 909


on the representation made by the seller where the seller has superior knowledge and the falsity of such representation would not be apparent from such examination or inspection. A fortiori, where the efforts of a buyer to learn the true profits or income of a business or property are thwarted by some device of the seller, such efforts do not preclude a recovery. The buyer of a business or property is entitled to rely on the seller's statements concerning its profits, income or rents. Where a speaker has knowingly and deliberately made a statement concerning a fact the falsity of which is not apparent to the hearer, and has thus accomplished a fraudulent result, he cannot defend against the fraud by proving that the victim was negligent in failing to discover the falsity of the statement. This rule is peculiarly applicable where the owner of the property or a business intentionally makes a false statement concerning its rents, profits or income. T h e doctrine of caveat emptor has been held not to apply to such a case. (People v. Balasa) What is the basis for the penalty for the crime of estafa? The penalty for estafa depends upon the amount defrauded. T h e opening paragraph of Article 315 provides the penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over P12,000 but does not exceed P22.000, and if such amount exceeds P22,000, the penalty shall be imposed in its maximum period, adding one year for each additional PIO.OOO; but the total penalty which may be imposed shall not exceed 20 years. In such case, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of the R P C , the penalty shall be termed prision mayor or reclusion temporal, as the case may be. (People v. Benemerito, G.R. No. 120389, November 21, 1996) Can estafa be committed thru negligence? No for the essence of estafa thru misappropriation is the appropriation or conversion of money or property received to the prejudice of the owner. T h e words "convert" and "misappropriate" connote an act of using or disposing of another's property as if it w e r e one's own or devoting it to a purpose or use different from that agreed upon. To 910


misappropriate for one's own use includes, not only conversion to one's personal advantage, but also every attempt to dispose of the property of another without right. For negligently assuming N N ' s authority to receive the ring, L L cannot be held criminally liable. There is no estafa through negligence. She may only be held civilly liable. Accordingly, she is liable to pay the full amount of the ring as actual damages plus legal interest of 6% from the time of extrajudicial demand. (Lim v. CA) •

How is estafa under P.D. 115 (trust receipt) committed? A n y violation of Section 13, P . D . 115 on trust receipt transaction constitutes estafa under Article 315(l)(b). Section 13 provides that: "SEC. 13. Penalty Clause. — T h e failure of an entrustee to turn over the proceeds of the sale of the goods, documents or instruments covered by a trust receipt to the extent of the amount owing to the entrustee or as appears in the trust receipt or to return said goods, documents or instruments if they were not sold or disposed of in accordance with the of the trust receipt shall constitute the crime of estafa, punishable under the provisions of Article [315] paragraph one (b) of Act Numbered [3815], as amended, otherwise known as the Revised Penal Code. If the violation or offense is committed by a corporation, partnership, association or other juridical entities, the penalty provided for in the Decree shall be imposed upon the directors, officers, employees or other officials or persons therein responsible for the offense, without prejudice to the civil liabilities arising from the criminal offense." (Prudential Bank v. IAC, G.R. No. 74886, December 8, 1992)

•

When the violator is a juridical entity, to whom is the penalty imposed? The penalty is upon the directors, officers, employees or other officials or persons therein responsible for the offense. The penalty is imprisonment, the duration of which would depend on the amount of the fraud as provided for in Article 315. The reason for this is that juridical entities cannot be put in jail. However, it is these entities which are made liable for 911


the civil liability arising from the criminal offense. This is the import of the clause "without prejudice to the civil liabilities arising from the criminal offense." A n d since that violation of a trust receipt constitutes fraud under Article 33 of the Civil Code, petitioner was acting well within its rights in filing an independent civil action to enforce the civil liability arising therefrom, (id.) •

Can a money market transaction give rise to estafa? N o . A money market transaction partakes of the nature of a loan and therefore nonpayment thereof would not give rise to criminal liability for estafa through misappropriation or conversion. Philfinance was not obliged under the money market transaction to return the same money the corporation received from petitioner. (Sesbreno v. CA, G.R. No. 108952, January 26, 1995)

•

Does estafa involve moral turpitude? Y e s . In re Vinzon disbarred the lawyer who had been convicted of estafa for "moral turpitude includes everything which is done contrary to justice, honesty or good morals. In essence and in all respects, estafa, no doubt, is a crime involving moral turpitude because the act is unquestionably against justice, honesty and good morals." (Ressurrecion v. Say son, December 1998)

•

How is estafa by post-dating a check committed? Article 315(2)(d) as amended by R . A . 4885 penalizes estafa when committed by means of the false pretense or fraudulent act executed prior to or simultaneously with the commission of the fraud, by postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein w e r e not sufficient to cover the amount of the check. T h e essential requirements of the above offense are that: (1)

A check is drawn or postdated in payment of an obligation contracted at the time the check was issued;

(2)

There are no funds sufficient to cover the check; and

(3)

T h e payee sustains damage thereby. 912


T h e law penalizes the issuance of a check only if it were itself the immediate consideration for the reciprocal receipt of benefits. T h e check must be issued concurrently with, and in exchange for, a material gain to make it punishable under the R P C . In the issuance of a check to pay a pre-existing obligation the drawer derives no such contemporary gain in return since the obligation sought to be settled is already incurred and outstanding before the check is issued. (Castro v. Mendoza, G.R. No. 50173, September 21, 1993) When the check was issued after the goods have been delivered, is estafa committed? N o . W h a t is punished in estafa is the deceit that brought about the damage. It is necessary then that the payee would not have released his consideration for the check if not for the check issued. W h e r e a seller parts with his goods even without the payment, it is a credit accommodation. T h e damage is already there when the deceit was employed. Recall the rulings as regards the condition precedent for conviction for estafa thru false pretenses or deceit. Mendezona (2 Phil. 353) held that accused may be convicted for estafa only when the deceit or false pretenses, committed simultaneously with the fraud, were the efficient cause or primary consideration which induced the offended party to part with his money or property. Lilius (2 Phil. 353) acquitted the accused of estafa because the deceit did not precede the defraudation, which means that the deceit was not the cause which could have induced the damage or prejudice to or loss of property suffered by the injured party. Quesada (60 Phil. 5154), Fortuno (73 Phil. 407) and Sabio (86 SCRA 568) over 45 years after Lilius, applied the same principle in determining criminal liability for estafa, i.e., that the deceit must have been committed prior to or simultaneous with the fraudulent act because this was the only way that said deceit could become the efficient cause or primary consideration which could have induced the offended party to part with his money or property. The doctrine remains the same 100 years after. (Gonzaludo v. People) 913


BOUNCING CHECKS L A W BATAS P A M B A N S A B L G . 22 Section 1. Checks without sufficient funds. — A n y person w h o makes or d r a w s a n d issues any check to a p p l y on or for value, k n o w i n g at the time of issue that he does not have sufficient funds in or credit w i t h the d r a w e e b a n k for the payment of such check in full u p o n its presentment, w h i c h check is subsequently d i s h o n o r e d by the d r a w e e b a n k for insufficiency of funds or credit or w o u l d h a v e b e e n d i s h o n o r e d for the same r e a s o n h a d not the d r a w e r , w i t h o u t any valid reason, o r d e r e d the b a n k to stop p a y m e n t , shall be p u n i s h e d by i m p r i s o n m e n t of not less t h a n thirty d a y s b u t not m o r e than one (1) y e a r or by a fine of not less t h a n b u t not m o r e t h a n d o u b l e the a m o u n t of the check w h i c h fine shall i n n o case exceed T w o h u n d r e d t h o u s a n d pesos, o r b o t h such fine a n d i m p r i s o n m e n t at the discretion of the court. T h e same p e n a l t y shall b e i m p o s e d u p o n a n y p e r s o n w h o , h a v i n g sufficient funds i n o r c r e d i t w i t h the d r a w e e b a n k w h e n he m a k e s or d r a w s a n d issues a check, shall fail to k e e p sufficient f u n d s or to m a i n t a i n a c r e d i t to cover the full a m o u n t of the check if p r e s e n t e d w i t h i n a p e r i o d of ninety (90) d a y s f r o m the d a t e a p p e a r i n g t h e r e o n , for w h i c h r e a s o n it is d i s h o n o r e d by the d r a w e e b a n k . W h e r e the check is d r a w n by a c o r p o r a t i o n , c o m p a n y or entity, the p e r s o n o r p e r s o n s w h o a c t u a l l y s i g n e d the check i n b e h a l f o f such d r a w e r shall b e l i a b l e u n d e r this A c t . Sec. 2. Evidence of knowledge of insufficient funds. — T h e m a k i n g , d r a w i n g a n d i s s u a n c e o f a check p a y m e n t o f w h i c h is refused by the d r a w e e b e c a u s e of insufficient f u n d s in or credit w i t h such b a n k , w h e n p r e s e n t e d w i t h i n ninety ( 9 0 ) d a y s f r o m the date of the check, shall be prima facie e v i d e n c e of k n o w l e d g e of such insufficiency of f u n d s or c r e d i t unless such m a k e r o r d r a w e r p a y s the h o l d e r t h e r e o f the a m o u n t due t h e r e o n , o r m a k e s a r r a n g e m e n t s for p a y m e n t i n full b y the d r a w e e o f such check w i t h i n f i v e (5) b a n k i n g d a y s after r e c e i v i n g notice that such check has not b e e n p a i d by the drawee. Sec. 3. Duty of drawee; rules of evidence. — It shall be the duty o f the d r a w e e o f a n y check, w h e n r e f u s i n g t o p a y the 914


s a m e to the h o l d e r t h e r e o f u p o n presentment, to cause to b e w r i t t e n , p r i n t e d o r s t a m p e d i n p l a i n l a n g u a g e thereon, o r attached thereto, the r e a s o n for d r a w e e ' s d i s h o n o r o r refusal to p a y the same: Provided, T h a t w h e r e there a r e no sufficient f u n d s o r c r e d i t w i t h such d r a w e e b a n k , such fact shall a l w a y s be explicitly stated in the notice of d i s h o n o r or refusal. In all p r o s e c u t i o n s u n d e r this A c t , the introduction i n evidence o f a n y u n p a i d a n d d i s h o n o r e d check, h a v i n g the d r a w e e ' s r e f u s a l t o p a y s t a m p e d o r w r i t t e n thereon, o r attached thereto, w i t h the r e a s o n t h e r e f o r as a f o r e s a i d , shall be prima facie e v i d e n c e of the m a k i n g or issuance of said check, a n d the d u e p r e s e n t m e n t to the d r a w e e for p a y m e n t a n d the d i s h o n o r thereof, a n d that the same w a s p r o p e r l y d i s h o n o r e d for the r e a s o n w r i t t e n , s t a m p e d o r attached b y the d r a w e e o n s u c h d i s h o n o r e d check. N o t w i t h s t a n d i n g r e c e i p t of an o r d e r to stop payment, the d r a w e e shall state in the notice that there w e r e no sufficient funds in or c r e d i t w i t h such b a n k for the p a y m e n t in full of such check, if such be the fact. Sec. 4. Credit construed. — T h e w o r d "credit" as used h e r e i n shall b e c o n s t r u e d t o m e a n a n a r r a n g e m e n t o r u n d e r s t a n d i n g w i t h the b a n k for the p a y m e n t of such check. Sec. 5. Liability under the Revised Penal Code. — Prosecution u n d e r this A c t shall be w i t h o u t p r e j u d i c e to a n y liability for violation of a n y p r o v i s i o n of the R e v i s e d P e n a l C o d e . xxx •

xxx

xxx

What are the distinctions between estafa and B.P. 22? In B.P. 22: 1.

Even though the check was issued in payment of preexisting obligation, liability is incurred.

2.

Damage or deceit is immaterial to criminal liability.

3.

Crime against public interest for the act is penalized due to the disastrous effect to the stability of the banking system and prejudice to the economy.

4.

Only the drawer is liable and if the drawer was a juridical entity, the officer thereof who signed the check shall be liable. The indorser is not liable. 915


5.

Drawer is given five banking days from notice of dishonor to make good the check to avoid criminal liability.

6.

This is a malum prohibitum. In estafa:

1.

The check is issued concurrently and reciprocally in payment of the exchange consideration. It must not be for a pre-existing obligation.

2.

Damage to the offended and deceit of offender are essential elements.

3.

It is a crime against property.

4.

Not only the drawer but even the indorsee may incur liability if he were aware at the time of the indorsement of the insufficiency of funds.

5.

Drawer is given three calendar days after notice of dishonor to make good the cash value to avoid liability.

6.

Malum in se.

Does prosecution for estafa preclude that for B.P. 22? N o . In the second form of estafa (deceit/false pretense) the common problem is bouncing check. B . P . 22 provides that its prosecution shall be without prejudice to the punishment under the R P C . There is no double jeopardy since B.P. 22 is a crime against public interest. Even if there is no deceit, mere dishonor of the check already creates public disturbance and prejudice to the banking system. Considering the volume of checks issued daily, serious disturbance in the banking system is caused. T h e fraud is against the public. In B.P. 22, one need not prove that the check was issued in payment of an obligation or that there was damage. T h e damage done is to the banking system. (Lim v. People) What are the elements of the offense under B.P. 22? 1.

Making, drawing, and issuing any check to apply to or for value;

2.

Knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; 916


3.

Subsequent dishonor of the check by the bank for insufficiency of funds or credit, or dishonor of the check for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment. (Vaca v. CA)

T h e reason for the dishonor must be insufficiency or lack of funds. If the cause of the dishonor is other than that, the law is not violated. What is the gravamen of the offense of B.P. 22? T h e gravamen of B.P. 22 is the act of making and issuing a worthless check or one that is dishonored upon its presentment for payment and the issuer failed to satisfy the amount of the check or make arrangement for its payment within five banking days from notice of dishonor. T h e act is malum prohibitum, pernicious and inimical to public welfare (People v. Chua, G.R. No. 130632, September 28, 1999). L a w s are created to achieve a goal intended to guide and prevent against an evil or mischief. W h y and to whom the check was issued is irrelevant in determining culpability. T h e and conditions surrounding the issuance of the checks are also irrelevant. (Lim v. People) Even if there had been payment, through compensation or some other means, there could still be prosecution for violation of B.P. 22. (Tan v. Mendez, Jr., G.R. No. 138669, June 6, 2002) How is knowledge of lack or insufficiency of funds established? T h e maker's knowledge is presumed from the dishonor of the check for insufficiency of funds (Vaca v. CA, G.R. No.131714, November 16, 1998). Section 2, B.P. 22 creates a presumption juris tantum that the second element prima facie exists when the first and third elements of the offense are present. If not rebutted, it suffices to sustain a conviction. (Rosa Lim) Because this element involves a state of mind which is difficult to establish, the law creates a prima facie presumption of such knowledge. T h e prima facie presumption arises when a check is issued. But the law also provides that the presumption does not arise when the issuer pays the amount of the check or makes arrangement for its payment "within five banking days after receiving notice that such check has not been paid by the drawee." (King v. People, G.R. No. 131540, December 2, 1999) 917


What are the requisites for the presumption of knowledge of insufficiency of funds? (a)

The check is presented to the bank within 90 days from the date of the check;

(b)

The drawer or maker receives notice that such check has not been paid by the bank; and

(c)

The drawer or maker fails to pay the holder of the check the amount due thereon, or make arrangements for payment in full within five banking days after receiving notice that such check has not been paid by the drawee.

The presumption is brought into existence only after it is proved that the issuer had received a notice of dishonor and that within five days from receipt thereof, he failed to pay the amount of the check or to make arrangements for its payment. (Yu Oh v. CA, G.R. No. 125297, June 6, 2003) Issuance of a check to replace the bad one 15 days after petitioners had been notified of the dishonor of their previous check cannot negate the presumption that they knew of the insufficiency of funds to cover the amount of their previous check. B.P. 22 requires that such replacement check be given within five days from the notice of dishonor. (Vaca v. CA) When should the knowledge of insufficiency of funds exist? The second element involves knowledge on the part of the issuer at the time of the checks issuance that he did not have enough funds or credit in the bank for payment thereof upon its presentment. Such knowledge is legally presumed from the dishonor of his checks for insufficiency of funds. But such presumption cannot hold if there is evidence to the contrary. In such event, the prosecution must prove every element of the offense charged. (Sycip, Jr. v. CA, March 2000) In Guilon, G.R. No. 141183, January 18, 2001, the issuer of the checks is not the lawful owner of the checking from which the checks w e r e drawn. At the time of issue, the payee would never recover from the checks because the drawee bank would not recognize the signature of the drawer. In this way, the dishonor of the checks will not only be on of lack or insufficiency of funds but also because the checks

918


are invalid for having been issued by an unauthorized person. Hence, there was no valid issuance of the checks. Y e t , the issuer of the checks may still be held liable for estafa under Article 315, (2) [d], even if he is not the owner of the checking , if it is shown that he conspired with the owner of the checking by knowingly g the latter's checks to ensure the payee's inability to encash the checks. •

What will prevent the presumption of knowledge of insufficiency of funds to arise? T h e presumption or prima facie evidence cannot arise if such notice of nonpayment by the drawee bank is not sent to the maker or drawer, or if there is no proof as to when such notice was received by the drawer, since there would simply be no w a y of reckoning the crucial five-day period. Absent such presumption, the burden of evidence shifts to the prosecution to prove such knowledge. It must be shown that the accused received a notice of dishonor and, within five banking days thereafter failed to satisfy the amount of the check or make arrangement for its payment. The absence of a notice of dishonor necessarily deprives an accused the opportunity to preclude a criminal prosecution. Accordingly procedural due process clearly ens that a notice of dishonor be actually served on him. (Oh v. CA)

•

Is an oral notice of dishonor sufficient? N o . A written notice of dishonor received by the maker or drawer of the check is indispensable. T h e notice may be sent by the offended party or the drawee bank. A mere oral notice to pay a dishonored check will not suffice. The lack of a written notice is fatal for the prosecution. (Domagsang v. CA, G.R. No. 139292, December 5, 2000) While, indeed, Section 2 of B.P. 22 does not state that the notice be in writing, taken in conjunction, however, with Section 3, i.e., "that where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal," a mere oral notice or demand to pay would appear to be insufficient for conviction. Both the spirit and letter of B.P. 22 require not only

919


that the accused issued a check that is dishonored, but that likewise the accused has actually been notified in writing of the fact of dishonor. Penal statutes have to be construed strictly against the State and liberally in favor of the accused. Ting G.R. No. 140665, November 13, 2000, citing Lao, June 20, 1997 said: The State, under this statute, actually offers the violator "a compromise by allowing him to perform some act which operates to preempt the criminal action, and if he opts to perform it the action is abated." This was also compared to certain laws allowing illegal possessors of firearms a certain period of time to surrender the illegally possessed firearms to the Government, without incurring any criminal liability. In this light, the full payment of the amount appearing in the check within five banking days from notice of dishonor is a "complete defense." T h e absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly ens that a notice of dishonor be actually served on petitioner. Petitioner has a right to demand - and the basic postulates of fairness require - that the notice of dishonor be actually sent to and received by her to afford her the opportunity to avert prosecution under B.P. 22. When should the notice of dishonor be sent to the maker or drawer? It must be after the dishonor of the check. T h e term "notice of dishonor" denotes that a check has been presented for payment and was subsequently dishonored by the drawee bank. This means that the check must necessarily be due and demandable because only a check that has become due can be presented for payment and subsequently dishonored. A postdated check cannot be dishonored if presented for payment before its due date. Hence, demand letter sent before the check's maturity date is not sufficient notice of dishonor. (Marigomen v. People, G.R. No. 153451, May 26, 2005) Postdating means that on the date indicated on its face, the check would be properly funded, not that the checks should be deemed as issued only then. (Sycip, Jr. v. CA, March 2000)

920


•

If the drawer or maker of the check is an officer of a corporation, how should notice be given? T h e notice of dishonor to the corporation is not notice to the employee or officer who drew or issued the check for and in its behalf. T h e postulate that the demand on the corporation serves as demand on the employee is erroneous. T h e corporation has no obligation to forward the notice addressed to it to the employee concerned, especially because the corporation itself incurs no criminal liability under B.P. 22. Responsibility is personal to the accused; hence, personal knowledge of the notice of dishonor is necessary. Consequently, constructive notice to the corporation is not enough to satisfy due process. Moreover, it is petitioner, as an officer of the corporation, who is the latter's agent for purposes of receiving notices and other documents, and not the other w a y around. It is axiomatic that notice to the corporation, which has a personality distinct and separate from the petitioner, does not constitute notice to the latter. (Lao v. CA)

»

How is the first element affected by a variance in the identity of the check issued? T h e variance in the identity of the check nullifies petitioner's conviction. T h e identity of the check enters into the first element of the offense under Section 1 of B.P. 22 — that a person draws or issues a check on or for value. There being a discrepancy in the identity of the checks described in the information and that presented in court, petitioner's constitutional right to be informed of the nature of the offense charged will be violated if his conviction is upheld. Neither can he be held civilly liable therefor considering that this is not the check described in the information. (Dico v. CA, G.R. No. 141669, February 28, 2005)

•

What is the effect when the "stop payment" order was not due to insufficiency of funds? It contradicts the prima facie presumption of knowledge of insufficiency of funds. The closure of petitioner's N o . 845515 with Citibank was not for insufficiency of funds.

921


It was made upon the advice of the drawee bank to avoid payment of hefty bank charges each time petitioner issued a "stop payment" order to prevent encashment of postdated checks in private respondent's possession. But it establishes petitioner's state of mind at the time said checks were issued — that he definitely had no knowledge that his funds or credit would be insufficient when the checks would be presented for encashment. He could not have foreseen that he would be advised by his own bank in the future to close his to avoid paying the hefty bank charges for each "stop payment" order issued. What the prosecution established is the closure of petitioner's checking . But this does not suffice to prove the second element which explicitly requires "evidence of knowledge of insufficiency of funds." (Sycip, Jr. v. CA) •

If a court acquires jurisdiction over the estafa, does it necessarily acquire jurisdiction over B.P. 22 violation? N o . Estafa and violation of B.P. 22 are two different offenses having different elements and necessarily, for a court to acquire jurisdiction each of the essential ingredients of each crime has to be satisfied. Hence, it is incorrect for the People to conclude that inasmuch as the court in Manila acquired jurisdiction over the estafa case, then it also acquired jurisdiction over the violations of B.P. 22. T h e two crimes have to be treated as separate offenses, and the essential ingredients of each have to be satisfied. (Uy v. CA, G.R. No. 119068, July 31, 1997)

•

What checks are covered by B.P. 22? Memorandum checks are also governed although they partake of the character of promissory notes. By so writing "mem" or "memo," the drawer assumes responsibility to pay the same. A memo check is also a check and when dishonored, the reason for B.P. 22 is also there. Guarantee payment or collateral check is also covered. But when such guarantee check was issued prior to August 8, 1984, B.P. 22 should not be applied (Co v. CA). A guaranty deposit check issued to guarantee the return of appliances or the payment thereof if not returned is not covered by B.P. 22 (Magno v. CA). Sec. 1 provides that check is issued to apply to or for value. Hence, if the seller has no right to the

922


check anymore and he deposits the same, it is he who commits the wrong and not the drawer. It is he who disturbs the banking system by depositing the check (utilitarian theory). •

What circumstances will negate conviction for violation of B.P.

22? 1.

T h e check was not issued to apply to an or for value but as a guarantee deposit. (Magno v. CA)

2.

T h e required notice of dishonor had not been given to give the drawer the opportunity to make good the value of the check within five banking days.

3.

T h e drawer had made credit arrangements with the bank but the bank overlooked the arrangement and dishonored the check.

4.

T h e issuer of the check is allowed by another statute to suspend payment and for this purpose gave an order to the bank to stop payment of the check.

5.

Issuer has told the creditor that he has no longer funds in the bank but the checks are issued only as evidence of the debt.

A buyer can rely on Section 23 of P . D . 957 to suspend payment until such time as the owner or developer had fulfilled its obligations to the buyer. This exercise of a statutory right to suspend installment payments is a valid defense against the purported violations of B.P. 22. Given the findings of the H L U R B as to incomplete features in the construction of petitioner's and other units of the subject condominium bought on installment, petitioner had a valid cause to order his bank to stop payment. The third element of "subsequent dishonor of the check . . . without valid cause" appears not established by the prosecution. The presumption of knowledge is unavailing, in the presence of a valid cause to stop payment, thereby negating the third element. Protection must be afforded the interest of townhouse buyers under P . D . 957. A statute must be construed in relation to other laws so as to carry out the legitimate ends and purposes intended by the legislature. Courts will not strictly follow the letter of one statute when it leads away from the 923


true intent of the legislature and when ends are inconsistent with the general purpose of the act. More so when it will mean the contravention of another valid statute. Both laws have to be reconciled and given due effect. Nothing in the text of B.P. 22 would prevent the Code from supplementing it. Following Article 11(5), petitioner's exercise of a right of the buyer under Article 23 of P . D . 957 is a valid defense to the charges against him. (Sycip, Jr. v. CA) The first and third elements of violation of B.P. 22 are absent in this case. T h e parties agreed at the time of the issuance and postdating of the checks that the same were not to be encashed or presented to the banks. Hence, the checks became mere evidence of indebtedness, which cannot give rise to a liability for estafa. Besides, the lending party could not have been deceived nor defrauded by petitioners who informed her that the against which the checks were drawn was already closed. Petitioners openly disclosed that they no longer had funds in the bank then. K n o w l e d g e by the complainant that the drawer does not have sufficient funds in the bank at the time the check was issued does not give rise to a case of estafa through bouncing checks. (Pacheco v. CA, G.R. No. 126670, December 2, 1999) Is the failure or lack of consideration a defense in B.P. 22? N o . T h e fact that the object of the contract was not of good quality is irrelevant in the prosecution of a case involving B.P. 22, for the said law was enacted to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. It is not the non-payment of an obligation which the law punishes, but the act of making and issuing a check that is dishonored upon presentment for payment. (Ibasco v. CA, G.R. No. 117488, September 5, 1996) In estafa with abuse of confidence or unfaithfulness, the illegality of the consideration is likewise immaterial. Only abuse of confidence or unfaithfulness is necessary here. T h e law punishes abuse of confidence even if the subject is contraband or prostitution. Rationale: T h e law punishes abuse of confidence or unfaithfulness because people should have trust for each other.

924


•

What is the proper penalty for B.P. 22 violations? T h e law provides a penalty of imprisonment of not less than 30 days but not more than one year or by a fine of not less than, but not more than double, the amount of the check. Such fine shall in no case exceed P200.000 or both such fine and imprisonment at the discretion of the Court. Petitioners are first-time offenders. T h e y are Filipino entrepreneurs who contribute to the economy. Apparently, they brought this appeal, believing in all good faith, although mistakenly, that they had not committed a violation of B.P. 22. Otherwise, they could simply have accepted the judgment of the trial court and applied for probation to evade a prison term. It would best serve the ends of criminal justice if in fixing the penalty within the range of discretion allowed by Section 1, paragraph 1, the same philosophy underlying the I S L is observed - that of redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness with due regard to the protection of the social order. A fine in an amount equal to double the amount of the check involved is an appropriate penalty to impose on each of the petitioners, (id.) SC A . C . 12-2000, as clarified by A . C . 13-2001 dated 14 February 2001, established a rule of preference in imposing penalties in B.P. 22 cases. Section 1 imposes the following alternative penalties for its violation, to wit: (a)

imprisonment of not less than 30 days but not more than one year; or

(b)

a fine of not less than but not more than double the amount of the check which fine shall in no case exceed P200.000; or

(c)

both such fine and imprisonment at the discretion of the court.

T h e rationale of A . C . 12-2000 is found in Vaca and Lim which held that it would best serve the ends of criminal justice if, in fixing the penalty to be imposed for violation of B.P. 22, the same philosophy underlying the Indeterminate Sentence law is observed, that of redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness with due regard to the protection of the social order. 925


It is not the intention to decriminalize violation of B.P. 22. Neither is it the intention to delete the alternative penalty of imprisonment. As clarified by A . C . 13-2001, the clear tenor and intention is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided therein. Where the circumstances clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone may be considered as the more appropriate penalty. This rule of preference does not foreclose the possibility of imprisonment for violators. Neither does it defeat the legislative intent behind the law. The determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the judge. Should the judge decide that imprisonment is the more appropriate penalty, A . C . 12-2000 ought not to be deemed a hindrance. (Lim v. People, G.R. No. 143231, October 26, 2002) T h e gravamen of the offense is the issuance of a worthless check. In case of insolvency to pay the fine for violation of special laws, subsidiary imprisonment shall be imposed, notwithstanding the absence of such provision in said laws. (Diongzon v. CA) Whether or not B.P. 22 is a continuing crime. It is. T h e acts involved in checking transactions are the making, issuing, delivery and presentment of check for payment. Venue is determined by the place where the elements of making, issuing, or drawing of the check and delivery thereof are committed. Yabut, 76 SCRA, explained that a person indicted with a transitory offense may be validly tried in any jurisdiction where the offense was in part committed. T h e place where the bills w e r e written, signed, or dated does not necessarily fix or determine the place w h e r e they were executed. W h a t is of decisive importance is the delivery thereof. T h e delivery of the instrument is the final act essential to its consummation as an obligation, (id.) How should the affidavit of desistance be appreciated? T h e affidavit of desistance of the G A R D S president deserves no more than ing mention. T h e claim that this case was simply the result of a misunderstanding between 926


G A R D S and petitioners and that the former did not really suffer any damage from the dishonor of the check is flimsy. After prosecuting the case below with tenacity, complainants going so far as to file another complaint after their first one had been dismissed, it is trifling with Court for complainants to now assert that the filing of their case was simply a mistake. It is for reasons such as this that affidavits of desistance, like retractions, are generally disfavored. T h e affidavit in this case, which was made after petitioners' conviction, is nothing but a last minute attempt to save them from punishment. Even if the payee suffered no damage as a result of the issuance of the bouncing check, the damage to the integrity of the banking system cannot be denied. D a m a g e to the payee is not an element of the crime punished in B.P. 22. (id.) Relate B.P. 22 and the Civil Code provision of obligations. Applying Article 1289 in relation to Article 1254 of the Civil Code, the unencashed checks amounting to P66,839.25 should have been applied to the earlier dishonored check amounting to P235,387.33 which is more onerous than the subject check amounting to only P58,237.75. (Tan v. Mendez, Jr., G.R. No. 138669, June 6, 2002) No compensation can take place between petitioners and respondent as respondent is not a debtor of petitioners insofar as the two checks representing collections from the Baao ticket sales are concerned. Article 1278 of the Civil Code requires, as a prerequisite for compensation, that the parties be mutually and principally bound as creditors and debtors (CKHIndustrial and Development Corp. v. CA, G.R. No. 111890, May 7, 1997). If they were not mutually creditors and debtors of each other, the law on compensation would not apply. (RP v. Mambulao Lumber Co., G.R. L-l 7725, February 28, 1962). In this case, the memorandum shows that some unencashed checks returned to respondent to allegedly offset the dishonored check were from the Baao ticket sales which are separate from the ticket sales of the respondent. Respondent only acted as an intermediary in remitting the Baao ticket sales and, thus, is not a debtor of petitioners, (id.)

927


R E P U B L I C A C T N O . 8042 MIGRANT WORKERS ACT xxx

xxx

xxx

Sec. 6. Definition. — F o r p u r p o s e s of this Act, illegal recruitment shall m e a n any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or p r o c u r i n g w o r k e r s a n d includes r e f e r r i n g , contract services, p r o m i s i n g or advertising for e m p l o y m e n t a b r o a d , w h e t h e r for profit or not, w h e n u n d e r t a k e n by a non-licensee or n o n - h o l d e r of authority contemplated u n d e r A r t i c l e 13(f) of P r e s i d e n t i a l D e c r e e N o . 442, a s a m e n d e d , o t h e r w i s e k n o w n a s the L a b o r C o d e of the Philippines: Provided, T h a t a n y such non-licensee or non-holder w h o , in a n y m a n n e r , offers or p r o m i s e s for a fee employment a b r o a d to t w o or m o r e p e r s o n s shall be d e e m e d so e n g a g e d . It shall l i k e w i s e i n c l u d e the f o l l o w i n g acts, committed by a n y p e r s o n , w h e t h e r a non-licensee, nonholder, licensee or h o l d e r of authority: xxx

xxx

xxx

Illegal r e c r u i t m e n t is d e e m e d committed by a syndicate if c a r r i e d out by a g r o u p of t h r e e (3) or m o r e p e r s o n s c o n s p i r i n g or c o n f e d e r a t i n g w i t h one a n o t h e r . It is d e e m e d committed in l a r g e scale if committed a g a i n s t t h r e e (3) or m o r e persons i n d i v i d u a l l y or as a g r o u p . T h e persons c r i m i n a l l y l i a b l e for the a b o v e offenses a r e the p r i n c i p a l s , a c c o m p l i c e s a n d accessories. I n case o f j u r i d i c a l persons, the officers h a v i n g control, m a n a g e m e n t o r direction o f their b u s i n e s s shall b e l i a b l e . Sec. 7. Penalties. — ( a ) A n y p e r s o n f o u n d guilty o f illegal r e c r u i t m e n t shall suffer the penalty of i m p r i s o n m e n t of not less t h a n six (6) y e a r s a n d one (1) d a y b u t not m o r e t h a n t w e l v e (12) y e a r s a n d a fine of not less t h a n T w o h u n d r e d t h o u s a n d pesos (P200,000.00) n o r m o r e t h a n F i v e h u n d r e d t h o u s a n d pesos (P500,000.00). ( b ) T h e penalty of life i m p r i s o n m e n t a n d a fine of not less t h a n F i v e h u n d r e d t h o u s a n d pesos (P500,000.00) n o r m o r e t h a n O n e million pesos (Pl,000,000.00) shall b e i m p o s e d if illegal r e c r u i t m e n t constitutes e c o n o m i c s a b o t a g e as 928


defined herein. Provided, however, T h a t the m a x i m u m penalty shall be imposed if the p e r s o n illegally r e c r u i t e d is less t h a n eighteen (18) y e a r s of a g e or committed by a non-licensee or nonh o l d e r of authority. Sec. 8. Prohibition on Officials and Employees. — It shall be u n l a w f u l for a n y official or e m p l o y e e of the D e p a r t m e n t of L a b o r a n d E m p l o y m e n t , the P h i l i p p i n e O v e r s e a s E m p l o y m e n t A d m i n i s t r a t i o n ( P O E A ) , o r the O v e r s e a s W o r k e r s W e l f a r e A d m i n i s t r a t i o n , o r the D e p a r t m e n t o f F o r e i g n A f f a i r s , o r other g o v e r n m e n t a g e n c i e s i n v o l v e d in the implementation of this A c t , or t h e i r relatives w i t h i n the f o u r t h civil d e g r e e of c o n s a n g u i n i t y or affinity, to e n g a g e directly or indirectly, in the b u s i n e s s of r e c r u i t i n g m i g r a n t w o r k e r s as d e n n e d in this Act. T h e penalties p r o v i d e d in the i m m e d i a t e p r e c e d i n g p a r a g r a p h shall b e i m p o s e d u p o n them. Sec. 9. Venue. — A c r i m i n a l action a r i s i n g f r o m illegal r e c r u i t m e n t as defined h e r e i n shall be filed w i t h the R e g i o n a l T r i a l C o u r t of the p r o v i n c e or city w h e r e the offense w a s committed or w h e r e the offended p a r t y actually resides at the time of the commission of the offense: Provided, T h a t the court w h e r e the c r i m i n a l action is first filed shall a c q u i r e jurisdiction to the exclusion of other courts: Provided, however, T h a t the aforestated p r o v i s i o n s shall a p p l y to those criminal actions that h a v e a l r e a d y b e e n filed in court at the time of the effectivity of this A c t . xxx xxx xxx Sec. 11. Mandatory Periods for Resolution of Illegal Recruitment Cases. — T h e p r e l i m i n a r y investigations of cases u n d e r this A c t shall be t e r m i n a t e d within a period of thirty (30) c a l e n d a r d a y s f r o m the date of their filing. W h e r e the p r e l i m i n a r y investigation is conducted by a prosecution officer a n d a prima facie case is established, the c o r r e s p o n d i n g information shall be filed in court within twenty-four (24) h o u r s f r o m the termination of the investigation. If the p r e l i m i n a r y investigation is conducted by a j u d g e a n d a prima facie case is found to exist, the c o r r e s p o n d i n g information shall be filed by the p r o p e r prosecution officer w i t h i n forty-eight (48) hours from the date of receipt of the records of the case. 929


Sec. 12. Prescriptive periods. — Illegal recruitment cases u n d e r this Act shall p r e s c r i b e in five ( 5 ) years: Provided, however, T h a t illegal recruitment cases involving economic sabotage as d e n n e d herein shall p r e s c r i b e in twenty ( 2 0 ) years. •

What are the kinds of illegal recruitment under the Labor Code? There are at least four kinds of illegal recruitment under the law:

•

a.

Simple illegal recruitment committed by a licensee or holder of authority.

b.

Recruitment by any person who is neither a licensee nor a holder of authority.

c.

That committed by offender alone or with another person against three or more persons individually or as a group.

d.

That committed by a syndicate or a group of three or more persons conspiring and confederating with one another in carrying out the act circumscribed by the law.

How are the different forms of illegal recruitment committed? Illegal recruitment is committed when two elements concur: 1.

T h e offender has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers; and

2.

T h e offender undertakes either activity within the meaning of recruitment and placement under Article 13(b), or any prohibited practices enumerated under Article 34.

T h e elements of the crime of illegal recruitment in large scale are: 1.

T h e offender is a non-licensee or non-holder of authority to engage in recruitment and placement activity;

2.

T h e offender undertakes recruitment and placement activity defined under Article 13(b) or any prohibited practices enumerated under Article 34; and

3.

Illegal recruitment is committed against three or more persons individually or as a group. 930


Article 38(b) of the Labor Code provides that any recruitment activity, including the prohibited practices encountered in A r t i c l e 34 of said Code, undertaken by a nonlicensee or non-holders of authority shall be deemed illegal and punishable under Article 39 thereof. T h e same article further provides that illegal recruitment shall be considered an offense involving economic sabotage if any of the qualifying circumstances exist, namely: a)

W h e n committed by a syndicate, that is, carried out by a group of three or more persons conspiring or confederating with one another.

b)

W h e n in large scale, that is, if committed against three or more persons individually or as a group. (People v. Diaz, G.R. No. 112175, July 26, 1996)

M a y offender be charged separately for illegal recruitment and for estafa under Article 315? Y e s . Illegal recruitment is malum prohibitum where the criminal intent of the accused is not necessary for conviction, while estafa is malum in se where the criminal intent of the accused is necessary for conviction. A person convicted under the Labor Code may be convicted of offenses punishable under other laws. However, any person or entity which in any manner offers or promises for a fee employment to two or more persons shall be deemed to be engaged in recruitment and placement. When the persons recruited are three or more, the crime becomes illegal recruitment in large scale under Article 38(b) of the Labor Code. In both cases, it is the lack of the necessary permit or license that renders such recruitment activities unlawful and criminal. T h e accused may be validly charged separately with estafa under the same set of facts in the illegal recruitment. Under Article 315 (2)(a), the elements of estafa are that: (1) the accused has defrauded another by abuse of confidence or by means of deceit, and (2) damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. Estafa and illegal recruitment are entirely different offenses and neither one necessarily includes or is necessarily 931


included in the other. (People v. Billaber, G.R. No. 114967-68, January 26, 2004) •

What is the relationship of the Revised Penal Code to the law on illegal recruitment? The R P C supplements the law on illegal recruitment. The last sentence of Section 6 of R . A . 8042 states that the persons who may be held liable for illegal recruitment are the principals, accomplices and accessories. Hence, the definition of the R P C on who are the principals, accomplices and accessories shall apply. (People v. Chowdury, G.R. Nos. 129577-80, February 15, 2000)

•

How is the participation of the employees of a corporation in the illegal recruitment determined? An employee of a company engaged in illegal recruitment may be held as principal, together with his employer, if it is shown that he actively and consciously participated in illegal recruitment. T h e existence of the corporate entity does not shield from prosecution the corporate agent who knowingly and intentionally causes the corporation to commit a crime. T h e corporation acts, and can act, only by and through its human agents and it is their conduct which the l a w must deter. The employee or agent of a corporation engaged in unlawful business naturally aids and abets in the carrying on of such business and will be prosecuted as principal if, with knowledge of the business, its purpose and effect, he consciously contributes his efforts to its conduct and promotion, however slight his contribution may be. T h e corporation also incurs criminal liability for the act of its employee or agent if: (1) the employee or agent committed the offense while acting within the scope of his employment; and (2) the offense was committed with at least some intent to benefit the employer. T h e liability is imputed to the corporation not because it actively participated in the malice or fraud but because the act is done for the benefit of the corporation while the employee or agent was acting within the scope of his employment in the business of the corporation, and justice

932


requires that the latter shall be held responsible for damages to the individual who suffered by such conduct. (People v. Chowdury) •

Is the law on agency applicable to criminal case? N o . T h e law on agency has no application in criminal cases, and no man can escape punishment when he participates in the commission of a crime upon the ground that he simply acted as an agent of any party. T h e culpability of the employee hinges on his knowledge of the offense and his active participation in its commission. W h e r e it is shown that the employee was merely acting under the direction of his superiors and was unaware that his acts constituted a crime, he cannot be held criminally liable for an act done for and in behalf of his employer. Agents or representatives appointed by a licensed recruitment agency whose appointments are not previously approved by the P O E A are considered "non-licensee" or "nonholder of authority" and therefore not authorized to engage in recruitment activity, (id.)

A r t . 316. Other forms of swindling. — T h e penalty o f a r r e s t o mayor in its m i n i m u m a n d m e d i u m p e r i o d s a n d a fine of not less t h a n the v a l u e of the d a m a g e c a u s e d a n d not m o r e than three times such v a l u e , shall be i m p o s e d upon: 1.

A n y p e r s o n w h o , p r e t e n d i n g to be the o w n e r of a n y r e a l p r o p e r t y , shall convey, sell, e n c u m b e r , or m o r t g a g e the same;

2.

A n y p e r s o n w h o , k n o w i n g that r e a l p r o p e r t y is e n c u m b e r e d , shall dispose of the same, although such e n c u m b r a n c e be not r e c o r d e d ;

3.

T h e o w n e r of a n y p e r s o n a l p r o p e r t y w h o shall w r o n g f u l l y take it f r o m its l a w f u l possessor, to the prejudice of the latter or a n y third person;

4.

A n y person w h o , to the prejudice of another, shall execute any fictitious contract;

5.

A n y p e r s o n w h o shall accept any compensation given h i m u n d e r the belief that it w a s in payment of services r e n d e r e d or l a b o r performed by him, w h e n 933


in fact he did not actually p e r f o r m such services or labor; 6.

A n y person w h o , w h i l e b e i n g a surety in a b o n d given in a criminal or civil action, w i t h o u t express authority from the court or b e f o r e the cancellation of his b o n d or before b e i n g relieved f r o m the obligation contracted by him, shall sell, m o r t g a g e , or, in any other m a n n e r e n c u m b e r the r e a l property or properties with which he guaranteed the fulfillment of such obligation.

How is estafa committed in case of selling of encumbered property? M e r e selling without disclosing the encumbrance will not give rise to estafa there is no law prohibiting the sale of encumbered property. Selling of mortgaged property is common practice. W h a t brings about criminal liability is the deceit in selling the property. A n d there is no deceit if the seller did not make any warranty in the deed that the property is free from encumbrance. T h e deed must have a statement of false warranty for estafa to be committed. May the owner of property commit estafa involving his own property? Y e s . Article 316(3) provides that the owner of any personal property who shall wrongfully take it from its lawful possessor, to the prejudice of the latter or any third person shall be guilty of this crime. In the contract of pledge for instance, the possession of the article pledged by the borrower is transferred to the creditor. If the former through deceit borrowed the article for instance a ring to be used on a special occasion and the debtor owner of the ring did not return the same and did not pay the debt, he is guilty of estafa involving his own property. T h e creditor has juridical possession over the ring and when it was taken through deceit he was unlawfully deprived of possession thereof.

934


INCREASING THE PENALTY FOR CERTAIN FORMS OF SWINDLING OR ESTAFA P R E S I D E N T I A L D E C R E E N O . 1689 W H E R E A S , t h e r e i s a n u p s u r g e i n the commission of swindling and other forms of frauds in rural banks, cooperatives, " s a m a h a n g n a y o n ( s ) , " a n d f a r m e r s ' associations or c o r p o r a t i o n s / a s s o c i a t i o n s o p e r a t i n g on f u n d s solicited f r o m the g e n e r a l p u b l i c ; W H E R E A S , such d e f r a u d a t i o n o r m i s a p p r o p r i a t i o n of funds contributed by stockholders or of such r u r a l b a n k s , c o o p e r a t i v e s , " s a m a h a n g nayon(s)," o r f a r m e r s ' associations, or of f u n d s solicited by corporations/ associations f r o m the g e n e r a l p u b l i c , e r o d e s the confidence of the p u b l i c in the b a n k i n g a n d c o o p e r a t i v e system, c o n t r a v e n e s the interest, a n d constitutes economic s a b o t a g e that t h r e a t e n s the stability of the nation; W H E R E A S , it is i m p e r a t i v e that the r e s u r g e n c e of said crimes be checked, or at least m i n i m i z e d by i m p o s i n g capital p u n i s h m e n t o n c e r t a i n f o r m s o f s w i n d l i n g a n d other f r a u d s i n v o l v i n g r u r a l b a n k s , c o o p e r a t i v e s , " s a m a h a n g nayon(s)," f a r m e r s ' associations or corporations/associations o p e r a t i n g on funds solicited f r o m the g e n e r a l public; xxx

xxx

xxx

Section 1. A n y p e r s o n or p e r s o n s w h o shall commit estafa or other forms of s w i n d l i n g as d e n n e d in Articles 315 a n d 316 of the R e v i s e d P e n a l C o d e , as a m e n d e d , shall be p u n i s h e d by life i m p r i s o n m e n t to death if the s w i n d l i n g (estafa) is committed by a syndicate consisting of five or m o r e persons f o r m e d w i t h the intention of c a r r y i n g out the u n l a w f u l or illegal act, transaction, enterprise or scheme, a n d the d e f r a u d a t i o n results in the m i s a p p r o p r i a t i o n of moneys c o n t r i b u t e d by stockholders or m e m b e r s of r u r a l b a n k s , cooperatives, " s a m a h a n g nayon(s)," or farmers' associations, or funds solicited by corporations/associations from the g e n e r a l public. W h e n not committed by a syndicate as above denned, the penalty i m p o s a b l e shall be reclusion temporal to reclusion perpetua if the a m o u n t of the f r a u d exceeds 100,000 pesos. 935


xxx •

xxx

xxx

What are the elements of syndicated estafa under P.D. 1689? Under this law, the elements of the crime are: (a) estafa or other forms of swindling as defined in Articles 315 and 316 of the R P C is committed; (b) the estafa or swindling is committed by a syndicate; and (c) defraudation results in the misappropriation of moneys contributed by stockholders, or of rural banks, cooperatives, "samahang nayon(s)," or farmers associations, or of funds solicited by corporations/ associations from the general public. Its third "whereas clause" states that it also applies to other "corporations/associations operating on funds solicited from the general public." T h e foundation fits into this category as it "operated on funds solicited from the general public." To construe the law otherwise would sanction the proliferation of minor-league schemes that operate in the countryside. To allow these crimes to go unabated could spell disaster for people from the lower income bracket, the primary target of swindlers. (People v. Balasa, September 1998)

•

May this crime be committed by only one offender? Y e s , for the last paragraph of states that, "When not committed by a syndicate as above defined, the penalty imposable shall be reclusion temporal to reclusion perpetua if the amount of the fraud exceeds 100,000 pesos."

A r t . 317. Swindling a minor. — A n y p e r s o n w h o , t a k i n g a d v a n t a g e o f the i n e x p e r i e n c e o r e m o t i o n s o r feelings o f a m i n o r to his d e t r i m e n t , shall i n d u c e h i m to a s s u m e a n y o b l i g a t i o n or to give a n y r e l e a s e or execute a t r a n s f e r of a n y p r o p e r t y r i g h t i n c o n s i d e r a t i o n o f some l o a n o f m o n e y , credit, o r other p e r s o n a l p r o p e r t y , w h e t h e r the l o a n c l e a r l y a p p e a r s in the d o c u m e n t or is s h o w n in a n y o t h e r f o r m , shall suffer the p e n a l t y of arresto mayor a n d a fine of a s u m r a n g i n g f r o m 10 to 50 p e r c e n t of the v a l u e of the o b l i g a t i o n c o n t r a c t e d by the m i n o r . A r t . 318. Other deceits. — T h e p e n a l t y of arresto mayor a n d a fine of not less t h a n the a m o u n t of the d a m a g e c a u s e d 936


and not more than twice such amount shall be imposed upon any person who shall defraud or damage another by any other deceit not mentioned in the preceding articles of this chapter. Any person who, for profit or gain, shall interpret dreams, make forecasts, tell fortunes, or take advantage of the credulity of the public in any other similar manner, shall suffer the penalty of arresto menor or a fine not exceeding 200 pesos. (This article is an example of notorious daily violations of the penal laws by fortune tellers who are even glorified in the television, popular magazines, and newspapers.) An example of the first paragraph is the double sale of property by its owner or possessor to the damage and prejudice of the buyer who did not the property or first took possession thereof.

937

Chapter Seven

CHATTEL MORTGAGE A r t . 319. Removal, sale or pledge of mortgaged property. — T h e penalty of arresto mayor or a fine a m o u n t i n g to twice the value of the p r o p e r t y shall be i m p o s e d u p o n :

•

1.

A n y p e r s o n w h o shall k n o w i n g l y r e m o v e any p e r s o n a l p r o p e r t y m o r t g a g e d u n d e r the Chattel M o r t g a g e L a w t o a n y p r o v i n c e o r city other than the one in w h i c h it w a s located at the time of the execution of the m o r t g a g e , w i t h o u t the w r i t t e n consent of the m o r t g a g e e or his executors, a d m i n i s t r a t o r s , or assigns.

2.

A n y m o r t g a g o r w h o shall sell or p l e d g e p e r s o n a l p r o p e r t y a l r e a d y p l e d g e d , o r a n y p a r t thereof, u n d e r the t e r m s o f the Chattel M o r t g a g e L a w , w i t h o u t the consent of the m o r t g a g e e w r i t t e n on the b a c k o f the m o r t g a g e a n d noted o n the r e c o r d t h e r e o f in the office of the r e g i s t e r of d e e d s of the p r o v i n c e w h e r e such p r o p e r t y i s located.

What is penalized under Article 319? 1.

Paragraph 1 penalizes mere removal of property from the place where the chattel mortgage was constituted. This constitutes fraud upon the mortgagee because foreclosure can only be made in the place where the mortgage is recorded. Removal will make the process difficult. T h e debtor must secure the consent of the creditor to escape liability. Intent to defraud will not be present if the debtor has transferred residence because he has to move his property.

2.

Before the mortgagor can sell or further encumber the personal property, the consent on the deed itself and on the registry thereof in the is needed to protect the mortgagee and the buyer or further mortgagee. Failure to secure such consent violates paragraph 2 of this article.

Chapter Eight A R S O N A N D OTHER CRIMES I N V O L V I N G DESTRUCTION A r t . 320. Destructive arson. — T h e p e n a l t y of reclusion perpetua to d e a t h shall be i m p o s e d u p o n a n y p e r s o n w h o shall b u r n : 1.

O n e or m o r e b u i l d i n g s or edifices, c o n s e q u e n t to one single act of b u r n i n g , or as a result of simultaneous b u r n i n g s , o r committed o n s e v e r a l o r different occasions;

2.

A n y b u i l d i n g of p u b l i c or p r i v a t e o w n e r s h i p , devoted to the p u b l i c in g e n e r a l or w h e r e people usually g a t h e r or c o n g r e g a t e fov a definite p u r p o s e such as, b u t not limited to official g o v e r n m e n t a l function o r business, p r i v a t e transaction, c o m m e r c e , t r a d e w o r k s h o p , m e e t i n g s a n d conferences, o r merely incidental to a definite p u r p o s e such as b u t not limited to hotels, motels, transient d w e l l i n g s , p u b l i c c o n v e y a n c e s or stops or terminals, r e g a r d l e s s of w h e t h e r the o f f e n d e r h a d k n o w l e d g e that there a r e persons in s a i d b u i l d i n g or edifice at the time it is set on fire a n d r e g a r d l e s s also of w h e t h e r the b u i l d i n g is actually i n h a b i t e d or not;

3.

A n y t r a i n or locomotive, ship or vessel, airship or a i r p l a n e devoted to t r a n s p o r t a t i o n or conveyance, or for p u b l i c use, entertainment or leisure;

4.

A n y b u i l d i n g , factory, w a r e h o u s e installation and any a p p u r t e n a n c e s thereto, w h i c h a r e devoted to the service of p u b l i c utilities;

5.

A n y b u i l d i n g , the b u r n i n g of w h i c h is for the p u r p o s e of concealing or destroying evidence of another violation of l a w , or for the purpose of concealing b a n k r u p t c y or d e f r a u d i n g creditors or to collect from insurance. 939


Irrespective of the application of the above enumerated qualifying circumstances, the penalty of reclusion perpetua to death shall likewise be imposed w h e n the a r s o n is p e r p e t r a t e d or committed by t w o or m o r e persons or by a g r o u p of persons, r e g a r d l e s s of w h e t h e r their p u r p o s e is merely to b u r n or destroy the b u i l d i n g or the b u r n i n g merely constitutes an overt act in the commission or a n o t h e r violation of l a w . T h e penalty of reclusion perpetua to d e a t h shall also be imposed u p o n any p e r s o n w h o shall b u r n : 1.

A n y a r s e n a l , s h i p y a r d , storehouse or military p o w e r o r f i r e w o r k s factory, o r d i n a n c e , storehouse, archives o r g e n e r a l m u s e u m o f the G o v e r n m e n t .

2.

In an i n h a b i t e d p l a c e , a n y s t o r e h o u s e or factory of inflammable or explosive m a t e r i a l s .

If as a c o n s e q u e n c e of the c o m m i s s i o n of a n y of the acts penalized u n d e r this article, d e a t h results, the m a n d a t o r y penalty of d e a t h shall be i m p o s e d . (As amended by Section 10, R.A. No. 7659.) P . D . 1613 - A M E N D I N G T H E L A W O N A R S O N Section 1. Arson. — A n y p e r s o n w h o b u r n s or sets fire to the p r o p e r t y of a n o t h e r shall be p u n i s h e d by prision mayor. T h e same p e n a l t y shall be i m p o s e d w h e n a p e r s o n sets fire t o his o w n p r o p e r t y u n d e r c i r c u m s t a n c e s w h i c h e x p o s e to d a n g e r the life or p r o p e r t y of a n o t h e r . Section 2. Destructive Arson. — T h e p e n a l t y of Reclusion Temporal in its m a x i m u m p e r i o d to Reclusion Perpetua shall be i m p o s e d if the p r o p e r t y b u r n e d is a n y of the f o l l o w i n g : 1.

A n y ammunition factory a n d other establishment w h e r e explosives, i n f l a m m a b l e o r c o m b u s t i b l e m a t e r i a l s a r e stored.

2.

A n y archive, museum, whether public or private, or a n y edifice d e v o t e d to c u l t u r e , e d u c a t i o n , or social services.

940

A R S O N A N D OTHER C R I M E S INVOLVING DESTRUCTION

3.

A n y c h u r c h o r p l a c e o f w o r s h i p o r other b u i l d i n g w h e r e people usually assemble.

4.

A n y t r a i n , a i r p l a n e or a n y aircraft, vessel or w a t e r c r a f t , or c o n v e y a n c e for t r a n s p o r t a t i o n of persons or property.

5.

A n y b u i l d i n g w h e r e e v i d e n c e is k e p t for use in any legislative, j u d i c i a l , a d m i n i s t r a t i v e or other official proceedings.

6.

A n y hospital, hotel, d o r m i t o r y , l o d g i n g house, h o u s i n g tenement, s h o p p i n g center, p u b l i c o r p r i v a t e m a r k e t , t h e a t e r o r m o v i e house o r any similar place or building.

7.

A n y b u i l d i n g , w h e t h e r u s e d as a d w e l l i n g or not, situated in a p o p u l a t e d or congested a r e a .

Sec. 3. Other Cases of Arson. — T h e penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if the p r o p e r t y b u r n e d i s a n y o f the following: 1.

A n y b u i l d i n g u s e d as offices of the g o v e r n m e n t or any of its agencies;

2.

A n y i n h a b i t e d h o u s e or d w e l l i n g ;

3.

A n y i n d u s t r i a l establishment, s h i p y a r d , oil w e l l or m i n e shaft, p l a t f o r m or tunnel;

4.

A n y plantation, f a r m , p a s t e u r l a n d , g r o w i n g crop, g r a i n field, o r c h a r d , b a m b o o g r o v e o r forest;

5.

A n y rice mill, s u g a r mill, cane mill, or mill central; and

6.

A n y r a i l w a y or b u s station, a i r p o r t , w h a r f or warehouse.

Sec. 4. Special Aggravating Circumstances in Arson. — T h e penalty in any case shall be imposed in its m a x i m u m period: 1.

If committed w i t h the intent to gain;

2.

If committed for the benefit of another;

3.

If the offender is motivated by spite or hatred t o w a r d s the o w n e r or occupant of the property burned; 941


4.

If committed by a syndicate.

The offense is committed by a syndicate if it is p l a n n e d or c a r r i e d out by a g r o u p of three or m o r e persons. Sec. 5. Where Death Result from Arson. — If by r e a s o n of or on the occasion of a r s o n death results, the penalty of Reclusion Perpetua to D e a t h shall be imposed. Sec. 6. Prima Facie Evidence of Arson. — A n y of the following circumstances shall constitute prima facie evidence of arson: 1.

If the fire started simultaneously in m o r e t h a n one p a r t of the b u i l d i n g or establishment.

2.

If the substantial a m o u n t of f l a m m a b l e substances or materials a r e stored w i t h i n the b u i l d i n g not necessary in the b u s i n e s s of the o f f e n d e r n o r for h o u s e h o l d use.

3.

If gasoline, k e r o s e n e , p e t r o l e u m or o t h e r f l a m m a b l e substances o r m a t e r i a l s s o a k e d t h e r e w i t h o r containers thereof, or a n y m e c h a n i c a l , electrical, chemical, or electronic c o n t r i v a n c e d e s i g n e d to start a fire, or ashes or traces of a n y of the f o r e g o i n g a r e f o u n d i n the r u i n s o r p r e m i s e s o f the b u r n e d building or property.

4.

If the b u i l d i n g or p r o p e r t y is i n s u r e d for substantially m o r e t h a n its a c t u a l v a l u e at the time of the issuance of the policy.

5.

If d u r i n g the lifetime of the c o r r e s p o n d i n g fire insurance policy m o r e t h a n t w o f i r e s h a v e o c c u r r e d in the same or other premises o w n e d or u n d e r the control of the offender a n d / o r the i n s u r e d .

6.

If shortly b e f o r e the fire, a s u b s t a n t i a l p o r t i o n of the effects i n s u r e d a n d s t o r e d in a b u i l d i n g or p r o p e r t y h a d b e e n w i t h d r a w n f r o m the p r e m i s e s except i n the o r d i n a r y c o u r s e o f b u s i n e s s .

7.

If a d e m a n d for m o n e y or other v a l u a b l e consideration w a s m a d e b e f o r e the f i r e i n e x c h a n g e for the desistance of the offender or for the safety of the p e r s o n or p r o p e r t y of the victim. 942


Sec. 7. Conspiracy to Commit Arson. — C o n s p i r a c y to commit a r s o n shall be p u n i s h e d by prision mayor in its minimum period. Sec. 8. Confiscation of Object of Arson. — T h e b u i l d i n g w h i c h is the o b j e c t of the a r s o n i n c l u d i n g the l a n d on w h i c h it is situated shall be confiscated a n d escheated to the State, unless the o w n e r t h e r e o f c a n p r o v e that he has no p a r t i c i p a t i o n in n o r k n o w l e d g e of such a r s o n despite the exercise of d u e d i l i g e n c e on his p a r t . xxx xxx xxx A p p r o v e d : M a r c h 7, 1979.

[Articles 320-326-B w e r e expressly repealed by P . D . 1613; thereafter Article 320 was restored by R . A . 7659.] •

What is arson and how is it committed? Arson is the destruction of property by fire. As long as fire is used, arson is committed for P . D . 1613 repealed Article 323 which regarded burning of property less than P25 as malicious mischief. This will affect Article 332 because burning of property of minimal value being arson, Article 332 will not apply for that article covers malicious mischief, not arson. T h e corpus delicti rule in arson is satisfied by proof of the bare occurrence of the fire and of its having been intentionally caused. Even if the whole house was not completely gutted by the fire, the crime is consummated arson. It is enough that a portion has been destroyed (People v. Gutierrez, G.R. No. 100699, July 5, 1996). Where the evidence establishes (1) the occurrence of a fire because of criminal agency; and (2) the identity of the defendants as the one responsible for the crime, proof of the crime charged is complete. Even the uncorroborated testimony of a single witness, if credible, may be enough to warrant conviction. •

Can arson be committed through negligence? Y e s . Where a person burns trash disregarding the strong wind blowing and the cinders landed on the property of another, the crime is reckless imprudence resulting to arson or simple 943


imprudence, depending upon the circumstance, place and how strong the wind is blowing. What is the basis for the penalty for arson? The enormity of the offense is not measured by the value of the property that may be destroyed but rather by the human lives exposed to destruction. It is indeed a heinous crime that the law seeks to suppress with the most serious penalty because of its grave anti-social character, (id.) Is there frustrated arson? None, because arson is defined as burning of property. If no burning resulted but offender commenced the commission of the felony directly by overt acts but was not able to produce the felony because of causes other than his spontaneous desistance, attempted arson is committed. Although the whole wood and galvanized iron house has not been completely gutted by the fire, the crime committed is still consummated arson. It is enough that a portion of the house had been destroyed. (People v. Gutierrez) What are the elements of arson under Section 3(2) of P.D. 1613? a.

There is intentional burning; and

b.

W h a t is intentionally burned is an inhabited house or dwelling. (People v. Agguihao, G.R. No. L- 104725, March 10, 1994)

Is conviction for circumstantial?

arson

proper

when

the

evidence

is

T h e applicability of PD 1613 is beyond cavil. T h e crime was committed in a placed w h e r e bakeries, barber shops, tailoring shops and other commercial and residential buildings were situated. In fact, other structures were razed by the fire that originated from petitioner's establishment. It is clear that the place was a residential and commercial building located in an urban and populate area. This qualifying circumstance places the offense within Sec. 2(7) of PD 1613, and converts it to destructive arson committed when what is burned is


any building, whether used as a dwelling or not, situated in a populated or congested area. T h e subject building was insured against fire for an amount substantially more than its market value, a fact that has given rise to the unrebutted prima facie evidence of arson, in Section 6 of PD 1613. Direct evidence is not the sole means of establishing guilt beyond reasonable doubt. Established facts that form a chain of circumstances can lead the mind intuitively or impel a conscious process of reasoning towards a conviction. Indeed, rules on evidence and principles in jurisprudence have long recognized that the accused may be convicted through circumstantial evidence. Circumstantial evidence is such evidence which goes to prove a fact or series of facts, other than the facts in issue, which, if proved, may tend by inference to establish the fact in issue. Circumstantial evidence may be resorted to when to insist on direct testimony would ultimately lead to setting felons free. But for circumstantial evidence to be sufficient for a convictions, the following requisites must be present: (a) there is more than one circumstance; (b) the facts from which the inferences are derived have been proven; and (c) the combination of all the circumstances results in a moral certainty that the accused, to the exclusion of all others, in the one who has committed the crime. T h e penalty prescribed fro the offense is reclusion temporal in its maximum period to reclusion perpetua. As no mitigating nor aggravating circumstance attended its commission, the proper imposable penalty, and thus the maximum term of the indeterminate penalty, is 18 years, 8 months and 1 day to 20 years. In determining the penalty next lower, Article 61(3) applies, when the penalty prescribed is composed of one or two indivisible penalties and the maximum period of another divisible penalty, the penalty next lower is the medium and minimum periods of the proper divisible penalty and the maximum period of that immediately following in said respective graduated scale. In the instant case, the penalty lower indegree is prision mayor maximum to reclusion temporal medium. (Amera v. People, G.R. No. 154466, January 28, 2008) 945


While it is true that "evidence that one did or did not do a certain thing at one time is not issible to prove that he did or did not do the same or similar thing at another time," it may be received "to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like." (id.) Who should be the owner of the property burned? It does not matter who may be the owner. Arson is committed even if offender burned his own property if it was made under circumstances which exposed the property or life of another to danger (Section 1, paragraph 2, P . D . 1613). Even if the owners of the properties burned are different, there is only one crime of arson. Under Article 320 and P . D . 1613, a person who acts under one criminal impulse and burned several buildings commits not distinct arsons but one crime of destructive arson. What is the nature of the crime arson results to death? It is a composite crime or special complex crime because Article 320 specifies that when in arson, a person dies, death (now reclusion perpetua, per R . A . 9346) shall be imposed. It is not a complex crime of arson with homicide under Article 48 but one crime of destructive arson because there is one specific provision defining the combination of crimes to form this composite crime and specifying its penalty. When is the crime murder, arson, or composite crime of arson with homicide? 1.

Murder — the use of fire was chosen primarily to kill. If the house or even several houses are burned because of the use of fire to kill, this w i l l be an aggravating circumstance of "great waste and ruin." T o o , murder is committed when the crime is homicide but the body was burned to scoff the corpse.

2.

Arson and murder/homicide — when the murder/ homicide has already been consummated and the house was burned to conceal the killing. Fire is not anymore the means to commit the crime. Neither is there a complex


crime under Article 48 because the crime is not a product of a single act. 3.

Arson with homicide — W h e n a house was burned but there was a person inside who was killed, the killing is a qualifying circumstance.

When the accused is charged with "violation of P.D. No. 1613" without specifying the particular provision thereof, what crime is committed? It is plain arson. Accused was charged with "violation of P . D . N o . 1613" without specifying the particular provision breached, and the information failed to allege whether the house is inhabited or not, and it has not been established that the house is situated in a populated or congested area, offender should be deemed to have been charged only with plain arson under Section 1 thereof. Kalookan City might be a densely populated area but its entire territory cannot be said to be congested. (People v. Gutierrez) When will the special aggravating circumstance of spite not be appreciated? The circumstance under Section 4(3) of the decree of the offender having been motivated by spite or hatred towards the owner or occupant of the property should not be appreciated where it appears to be more of impulse, heat of anger or risen temper rather than real spite or hatred that impelled the accused to give vent to his wounded ego. (People v. Gutierrez)

947

Chapter Nine

MALICIOUS MISCHIEF A r t . 327. Who are liable for malicious mischief. — A n y p e r s o n w h o shall deliberately cause to the p r o p e r t y of a n o t h e r any d a m a g e not falling w i t h i n the of the next p r e c e d i n g chapter, shall be guilty of malicious mischief. A r t . 328. Special cases of malicious mischief. — A n y p e r s o n w h o shall cause d a m a g e to obstruct the p e r f o r m a n c e of p u b l i c functions, or u s i n g a n y p o i s o n o u s or c o r r o s i v e substance; or s p r e a d i n g any infection o r c o n t a g i o n a m o n g cattle; o r w h o causes d a m a g e to the p r o p e r t y of the N a t i o n a l M u s e u m or N a t i o n a l L i b r a r y , o r t o a n y a r c h i v e o r registry, w a t e r w o r k s , r o a d , p r o m e n a d e , o r a n y other t h i n g u s e d i n c o m m o n b y the public shall be p u n i s h e d : 1.

By prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s , if the v a l u e of the d a m a g e c a u s e d exceeds 1,000 pesos;

2.

By arresto mayor, if such v a l u e does not e x c e e d the a b o v e - m e n t i o n e d a m o u n t b u t is o v e r 200 pesos; a n d

3.

By arresto menor, if s u c h v a l u e d o e s not e x c e e d 200 pesos.

A r t . 329. Other mischiefs. — T h e mischiefs not i n c l u d e d in the next p r e c e d i n g article shall be p u n i s h e d : 1.

By arresto mayor in its m e d i u m a n d m a x i m u m p e r i o d s , if the v a l u e of the d a m a g e c a u s e d exceeds 1,000 pesos.

2.

By arresto mayor in its m i n i m u m a n d m e d i u m p e r i o d s , if such v a l u e is o v e r 200 pesos b u t d o e s not exceed 1,000 pesos; a n d

3.

By arresto menor or fine of not less t h a n the v a l u e of the d a m a g e c a u s e d a n d not m o r e t h a n 200 pesos, if the a m o u n t i n v o l v e d does not e x c e e d 200 pesos or c a n n o t be estimated. (As amended by Com. Act No. 3999.)

MALICIOUS MISCHIEF

A r t . 330. Damage and obstruction to means of communication. — T h e p e n a l t y of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s shall b e i m p o s e d u p o n any p e r s o n w h o shall d a m a g e a n y r a i l w a y , t e l e g r a p h o r telephone lines. If the d a m a g e shall result in any derailment of cars, collision or other accident, the penalty of prision mayor shall be imposed, without prejudice to the criminal liability of the offender for the consequences of his criminal act. F o r the p u r p o s e of the p r o v i s i o n s of this article, the electric w i r e s , traction cables, s i g n a l system, a n d other things p e r t a i n i n g to r a i l w a y s , shall be d e e m e d to constitute an integral p a r t of a r a i l w a y system. A r t . 331. Destroying or damaging statues, public monuments, or paintings. — A n y p e r s o n w h o shall destroy or d a m a g e statues o r a n y o t h e r useful o r o r n a m e n t a l p u b l i c m o n u m e n t , shall suffer the p e n a l t y of arresto mayor in its m e d i u m p e r i o d to prision correccional in its m i n i m u m p e r i o d . A n y p e r s o n w h o shall d e s t r o y o r d a m a g e any useful or o r n a m e n t a l p a i n t i n g of a p u b l i c n a t u r e shall suffer the penalty of arresto menor or a fine not e x c e e d i n g 200 pesos, or both such fine a n d i m p r i s o n m e n t , in the discretion of the court. •

How is malicious mischief committed? Malicious mischief is the act of intentionally causing damage to the property of another without the use of fire. There must be specific intent to destroy the property of another. Malicious mischief is committed only by dolo and never by culpa because malice is inherent being an element.

•

Compare malicious mischief and cattle rustling. If the subject of destruction is large cattle, whether the offender took the large cattle or not, it is cattle rustling (P.D. 533) and not malicious mischief. Cattle rustling include the taking or deliberate killing of large cattle without the consent of the owner or possessor. If the cattle was not killed or taken but merely injured to render it useless to its owner, malicious mischief is committed.

949


•

Distinguish malicious mischief from unjust vexation. Unjust vexation is committed by causing annoyance to another. But if the means used to annoy is by destroying another's property, it is malicious mischief. Malicious mischief is against property; unjust vexation is against personal liberty and security.

•

Distinguish malicious mischief from theft. Malicious mischief is without intent to gain whereas, theft under Article 308, N o . 2 requires intent to gain. Illustration: Juan killed the goat of Pedro because the latter allows it to wander and destroy Juan's plants. W h a t crime was committed? 1.

Malicious mischief if the neighbor did not remove or take the carcass for himself. It is not cattle rustling because goat is small cattle.

2.

If the animal were not a goat but large cattle like cow or carabao, the crime is cattle rustling.

3.

Simple arson, if the neighbor used fire to kill the goat (Section 1, P . D . 1613).

4.

»

Theft if he "removed or made use of the object of the damage caused by him." (Article 308, N o . 2)

Distinguish malicious mischief from arson. 1.

In malicious mischief the cause of destruction should not be by fire; the moment fire is used to destroy property, it is arson.

2.

Malicious mischief is only by dolo; arson is by dolo or culpa.

3.

Malicious mischief by causing damage and obstruction to means of communication is without prejudice to the criminal liability for the consequences of offender's criminal act such as homicide, murder, mutilation and physical injuries; separate crimes are committed with separate penalties (Article 330). W h e n death results in arson, the crime is the special complex crime of arson with homicide and the penalty is death (now, reclusion perpetua under R . A . 9346). 950

MALICIOUS MISCHIEF

•

If in the course of the commission of malicious mischief death and injuries resulted, what crimes are committed? Article 330 provides that if the damage results in derailment of cars, collision or other accident, the penalty of prision mayor shall be imposed, without prejudice to the criminal liability for the consequences of offender's criminal act. Thus, bombings of means of transportation such as metro rails which result in wholesale killings and injuries should make the offender liable for separate crimes of malicious mischief for the damage caused and the complex crime of multiple murders and physical injuries under Article 48. This is because Article 330 provides that the penalty for the damage is without prejudice to the penalty for the result of the damage committed. T h e killings and injuries result to the compound crime under Article 48 because it is a result of a single act of bombing. It is not a special complex crime for the article did not provide a specific penalty for such combination of crimes.

951

Chapter Ten

EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY A r t . 332. Persons exempt from criminal liability. — No criminal, b u t only civil liability, shall result f r o m the commission of the crime of theft, s w i n d l i n g , or malicious mischief committed o r c a u s e d m u t u a l l y b y the f o l l o w i n g persons: 1.

Spouses, a s c e n d a n t s a n d d e s c e n d a n t s , or relatives by affinity in the s a m e line;

2.

T h e w i d o w e d s p o u s e w i t h r e s p e c t to the p r o p e r t y w h i c h b e l o n g e d t o the d e c e a s e d s p o u s e b e f o r e the same shall h a v e p a s s e d into the possession of another; a n d

3.

B r o t h e r s a n d sisters a n d b r o t h e r s - i n - l a w sisters-in-law, if l i v i n g t o g e t h e r .

and

T h e e x e m p t i o n e s t a b l i s h e d i n this article shall not b e a p p l i c a b l e to s t r a n g e r s p a r t i c i p a t i n g in the c o m m i s s i o n of the crime. •

Who are the relatives benefited by Article 332? 1.

Spouses. In relation to Articles 147 and 148, Family Code, common law spouses are co-owners of the property. As such exemption should be construed in favor of common law spouses.

2.

Ascendants and descendants and relatives by affinity in the same degree such as son- and daughter-inlaw, mother- and father-in-law. This should include stepparents and stepchildren because they are ascendants and descendants by legitimate affinity.

3.

Brothers/sisters who must be living in the same house because the law specified "living together." If living in the same compound but different houses, there is no 952

E X E M P T I O N F R O M C R I M I N A L LIABILITY IN C R I M E S A G A I N S T PROPERTY

exemption because then, they are living separately. This should include legitimate and illegitimate half-brothers/sisters for the law did not limit the term to legitimate and adopted full brothers and sisters. However, stepbrothers and stepsisters should be excluded for they are not relatives either by affinity or blood. In fact they can validly get married, not being among the void marriages under Article 38 of the Family Code. 4.

W i d o w if the property is not yet divided for then she is a co-owner.

T h e list is exclusive. N o t e that the last paragraph prohibits application of its benefit to strangers. •

For what crimes are they exempted? 1.

Theft including qualified theft but not robbery.

2.

Estafa but if complexed with other crimes, e.g., falsification of commercial documents, there is no exemption.

3.

Malicious mischief. T h e destruction must not be by means of fire because burning of property of whatever value is arson, hence, the exemption will not lie.

953

TITLE ELEVEN C R I M E S A G A I N S T CHASTITY Chapter One ADULTERY A N D CONCUBINAGE A r t . 333. Who are guilty of adultery. — A d u l t e r y is committed b y any m a r r i e d w o m a n w h o shall h a v e s e x u a l i n t e r c o u r s e with a m a n not h e r h u s b a n d a n d b y the m a n w h o h a s c a r n a l k n o w l e d g e o f h e r , k n o w i n g h e r t o b e m a r r i e d , e v e n i f the marriage be subsequently declared void. A d u l t e r y shall be p u n i s h e d by prision correccional in its medium and m a x i m u m periods. If the p e r s o n guilty of a d u l t e r y c o m m i t t e d this offense w h i l e b e i n g a b a n d o n e d w i t h o u t justification b y the offended spouse, the penalty next l o w e r i n d e g r e e t h a n that p r o v i d e d i n the next p r e c e d i n g p a r a g r a p h shall b e i m p o s e d . A r t . 334. Concubinage. — A n y h u s b a n d w h o shall k e e p a mistress in the c o n j u g a l d w e l l i n g , o r , shall h a v e s e x u a l intercourse, u n d e r s c a n d a l o u s c i r c u m s t a n c e s , w i t h a w o m a n w h o is not his w i f e , or shall c o h a b i t w i t h h e r in a n y other place, shall be p u n i s h e d by prision correccional in its minimum and medium periods. T h e c o n c u b i n e shall suffer the p e n a l t y of destierro. •

Will the doctrine of pari delicto be applicable in adultery? N o . T h e concept of pari delicto is not found in the R P C but in Article 1411 of the N C C . Said article relates to contracts with illegal consideration. In Guinucud, the complaining husband, by entering into an agreement with his wife that each of them w e r e to live separately and could marry another, and by filing complaint 954

ADULTERY A N D C O N C U B I N A G E

only about a year after discovering his wife's infidelity, had "consented to, and acquiesced in, the adulterous relations existing between the accused, and he is therefore, not authorized by law to institute the criminal proceedings." That case refers not to the notion of pari delicto but to consent as a bar to the institution of the criminal proceedings. In this case, no such acquiescence can be implied: the accused did not enter into any agreement with the offended spouse allowing each other to marry or cohabit with other persons and he promptly filed this complaint after discovering the illicit affair. (Arroyo, Jr. v. CA, G.R. No. 96602, November 19, 1991) •

Is there frustrated adultery? As in rape, adultery cannot be in the frustrated stage. It can only be attempted or consummated for the essence of adultery is sexual intercourse. Each instance is one count of adultery. T h e r e will be as many counts of adultery as there are sexual intercourse.

•

Distinguish pardon from consent. How will either benefit the accused? T h e rule on pardon is found on Article 344 which provides that the crime of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. T h e offended party cannot institute criminal prosecution without impleading both parties, if they are both alive, nor in any case, if he shall have consented or pardoned the offenders. W h i l e there is a conceptual difference between consent and pardon in the sense that consent is granted prior to the adulterous act while pardon is given after the illicit affair, nevertheless, for either consent or pardon to benefit the accused, it must be given prior to the filing of a criminal complaint, (id.)

•

How is concubinage committed? Concubinage is committed in any of three ways: 1.

By the husband's keeping a mistress in the conjugal dwelling,

2.

By having sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or 955


3. •

By cohabiting with her in any other place.

What is the penalty for and consequently which court has jurisdiction over the crime of concubinage? The penalty imposable on the husband who commits concubinage is prision correccional in its minimum and medium periods, which ranges from 6 months and 1 day to 4 years and 2 months. Hence, as regards the husband, there is no question that concubinage is within the exclusive original jurisdiction of the inferior courts. T h e problem concerns the concubine upon whom the imposable penalty is destierro. (People v. Eduarte, G.R. No. 88232, February 26, 1990) Uy Chin Hua v. Dinglasan, 86 Phil. 617 and Santos, 87 Phil. 687 held that a crime punishable with destierro is within the jurisdiction of the inferior courts. This is so because in the scale of penalties in Article 71, destierro comes after arresto mayor. A n d since under the Judiciary A c t of 1948 [ R . A . 296], crimes punishable with arresto mayor are within the jurisdiction of the inferior courts, it follows that crimes punishable with destierro are also within the jurisdiction of such courts. Concubinage has two penalties, one for the husband and another for the concubine. T h e penalty for the husband, prision correccional in its minimum and medium periods, is within the jurisdiction of the inferior courts. Considering that Article 344 states that the offended party in concubinage cannot institute criminal prosecution without including both the offenders, it is clearly in the interest of the orderly istration of justice that the concubine be tried with the erring husband before the inferior courts. T h e legislature could not have intended to allow the absurd situation wherein the inferior court has jurisdiction over concubinage only as regards the husband while the R T C has jurisdiction over the same crime with respect to the concubine, (id.)

>

W h o can initiate the action for adultery or concubinage? Complaint from the offended spouse is necessary. Only the offended spouse can initiate the action. T h e complainant must be a spouse at the time of the complaint. Otherwise, it is as if no complaint has been filed. 956

ADULTERY A N D C O N C U B I N A G E

Thus, where at the time of the filing of the complaint, an American husband had obtained a divorce abroad against his Filipino wife, although not valid here, he has no standing to file the complaint because he is no longer her husband. Although the paramour is not aware that the other party is married, for the purpose of filing the complaint, the paramour must be included in the complaint/information. M a y a husband be liable for concubinage and adultery for the same act of illicit intercourse with the wife of another man? W h e n a married man commits infidelity with a married woman, he offends his wife and the husband of the other woman. He also violates two provisions of law. Hence, he can be liable for adultery and concubinage for the same act of illicit intercourse if his wife and the offended husband of his paramour files a separate complaint against him and the offending wife.

957

Chapter Two RAPE A N D ACTS OF LASCTVIOUSNESS (Art. 335. Repealed by R.A. 8353) A r t . 336. Acts of lasciviousness. — A n y p e r s o n w h o shall commit any act of lasciviousness u p o n other p e r s o n s of either sex, u n d e r any of the circumstances m e n t i o n e d on the p r e c e d i n g article, shall be p u n i s h e d by prision correccional. ( A r t . 339. Acts of lasciviousness with the consent of the offended party. — T h e penalty of arresto mayor shall be i m p o s e d to punish a n y other acts of lasciviousness committed by the same p e r s o n s a n d the s a m e c i r c u m s t a n c e s a s those p r o v i d e d in Articles 337 a n d 338.) •

Compare Article 336 with Article 339. Acts of lasciviousness under A r t i c l e 336: 1.

Committed under circumstances of rape, i.e., without consent, there is force or intimidation, the woman is unconscious or deprived of reason, or under 12.

2.

The victim is a male or a female. This is one exception to the rule that the victim in crimes against chastity must be a female for they have chastity which must be protected.

3.

T h e female victim need not be a minor or a virgin. There is no age requirement because this is committed without consent. Consented acts of lasciviousness under A r t i c l e 339:

1.

Committed under circumstances of seduction, hence with consent secured by means of deceit;

2.

T h e victim must be a female;

3.

T h e female victim must be a minor over 12 or under 18 years of age and a virgin or at least of good reputation. A minor cannot give valid consist to sexual act under 958

RAPE A N D ACTS OF L A S C I V I O U S N E S S

the R P C . Acts of lasciviousness with consent of an adult female cannot be prosecuted because a woman of age can give valid consent to the act. T h e "preceding article" referred to in Article 336 is the original Article 335 unaffected by R . A . 7659 for when that amendatory law was ed, it did not touch Article 336. Considering that R . A . 7659 introduced qualifying circumstances to Article 335, such circumstances should not prejudice the offender in Article 336. •

Compare acts of lasciviousness under the RPC and R.A. 7610. R . A . 7610 penalizes acts of lasciviousness with a minor as child abuse. For prosecution under the special law, the elements of acts of lasciviousness under the Code must be proved as w e l l as the elements of sexual abuse under Section 5 of R. A. 7610. T h e victim in R . A . 7610 must be a child exploited in prostitution or subjected to other sexual abuse. W h e r e the child is under 12, the offender shall be prosecuted under the R P C but the penalty shall be reclusion temporal instead of prision correccional.

959

Chapter Three

SEDUCTION, CORRUPTION OF MINORS A N D WHITE SLAVE TRADE A r t . 337. Qualified seduction. — T h e seduction of a v i r g i n over t w e l v e years a n d u n d e r eighteen y e a r s o f a g e , committed by any person in authority, priest, home-servant, domestic, g u a r d i a n , teacher, o r a n y p e r s o n w h o , i n a n y capacity, shall be entrusted w i t h the e d u c a t i o n or custody of the w o m a n seduced, shall be p u n i s h e d by prision correccional in its minimum and medium periods. T h e penalty next h i g h e r i n d e g r e e shall b e i m p o s e d u p o n a n y p e r s o n w h o shall s e d u c e his sister o r d e s c e n d a n t , w h e t h e r or not she be a v i r g i n or o v e r e i g h t e e n y e a r s of a g e . U n d e r the p r o v i s i o n s of this C h a p t e r s e d u c t i o n is committed w h e n the o f f e n d e r h a s c a r n a l k n o w l e d g e o f a n y o f the persons a n d u n d e r the c i r c u m s t a n c e s d e s c r i b e d h e r e i n . A r t . 338. Simple seduction. — T h e s e d u c t i o n of a w o m a n w h o is single or a w i d o w of g o o d r e p u t a t i o n , o v e r t w e l v e b u t u n d e r e i g h t e e n y e a r s o f a g e , c o m m i t t e d b y m e a n s o f deceit, shall be p u n i s h e d by arresto mayor. A r t . 339. Acts of lasciviousness with the consent of the offended party. — T h e penalty of arresto mayor shall be i m p o s e d to p u n i s h a n y other acts of l a s c i v i o u s n e s s c o m m i t t e d by the same p e r s o n s a n d the s a m e c i r c u m s t a n c e s a s those p r o v i d e d in A r t i c l e s 337 a n d 338. •

What are the elements of qualified seduction? Qualified seduction requires that: 1.

T h e offended party is a virgin, which is presumed if she is unmarried and of good reputation;

2.

She must be over 12 and under 18 years of age;

3.

T h e offender has sexual intercourse with her; and

S E D U C T I O N , C O R R U P T I O N O F M I N O R S A N D WHITE SLAVE TRADE

4.

There is abuse of authority, confidence, or relationship on the part of the offender. (Gonzales v. CA, 51 SCAD)

"Virginity" is not physical but moral, i.e., that the woman does not have sexual experience. Seduction requires that the age must be over 12 because if the victim is under 12, it is always rape. If, however, the victim is exactly 12 years old, and there is consent thru cajolery or deceit, it is neither qualified nor simple seduction nor statutory rape. Offender could be prosecuted under the Child Abuse L a w . If there is no allegation that she was exploited in prostitution, subjected to other sexual abuse, or induced, forced, intimidated or moral ascendancy exerted and there is consent and the girl is 12 or over, no crime is committed. •

Compare rape and qualified seduction. In rape, the age can be less than 12 which is always rape; if 12 but less than 18, there should be force or intimidation. Virginity is not material. In qualified seduction, the girl must be more than 12 but less than 18 and the crime is by means of cajolery. Virginity is an element. There must be an age limitation in seduction for consent is an element and intimacy between consenting adults is not a punishable crime unless it constitutes adultery or concubinage.

•

What are the distinctions between simple (SS) and qualified seduction (QS)? 1.

SS — the woman is single or a widow of good reputation QS — she is a virgin (morally)

2.

SS — offender may be any person QS — offender is public authority, priest, house servant, domestic, guardian, teacher or any person entrusted with the education or custody of the woman seduced

3.

SS — the victim cannot be 18 or over QS — when the offender is the brother or an ascendant, the victim may be over 18.

961


If the offender is a brother or an ascendant, the age and moral reputation of the girl is not material — the crime is qualified seduction. It may be asked, however, if the father is 65 and the daughter is 45, can qualified seduction still be committed? At 45 years of age, can a woman still be considered gullible as to be deceived by the father or brother? If the offender is an older brother or an ascendant, jurisprudence states that moral ascendancy substitutes for the force or intimidation. In other words, it need not be proved that there was force or intimidation for the moral ascendancy over the victim constitutes the force or intimidation. T h e issue now is where does seduction end and rape begin since force or intimidation is not required in incestuous rape of this sort? In simple seduction, the woman may no longer be a virgin or may be a widow. Deceit employed is the very factor that persuaded the woman to yield. T h e woman may be single or widow of good reputation and is over 12 but less than 18. (Under the Family Code, a woman less than 18 cannot marry, hence, cannot become a w i d o w . ) •

What is the effect of carnal knowledge in certain crimes against chastity? The crimes of rape and seduction as well as adultery and concubinage carry the element of sexual intercourse. In forcible abduction, when sexual intercourse occurs, the crime is forcible abduction with rape (complex under Article 48) because forcible abduction does not involve sexual intercourse as an element and it is the means to commit the other.

A r t . 340. Corruption of minors. — A n y p e r s o n w h o shall p r o m o t e o r facilitate the p r o s t i t u t i o n o r c o r r u p t i o n o f persons u n d e r a g e to satisfy the lust of a n o t h e r , shall be p u n i s h e d by prision mayor, a n d if the c u l p r i t is a p u b l i c officer or e m p l o y e e , i n c l u d i n g those in g o v e r n m e n t - o w n e d or controlled c o r p o r a t i o n s , he shall also suffer the p e n a l t y of t e m p o r a r y a b s o l u t e disqualification. (As amended by B.P. Big. 92, December 24, 1980.) A r t . 341. White slave trade. — T h e p e n a l t y of prision mayor i n its m e d i u m a n d m a x i m u m p e r i o d s shall b e i m p o s e d u p o n any p e r s o n w h o , i n a n y m a n n e r , o r u n d e r a n y pretext, shall 962

S E D U C T I O N , C O R R U P T I O N O F M I N O R S A N D WHITE SLAVE TRADE

e n g a g e in the b u s i n e s s or shall profit by prostitution or shall enlist the services of a n y other p e r s o n for the p u r p o s e of prostitution. (As amended by B.P. Big. 186, March 16, 1982) •

How is corruption of minors committed? Corruption of minor is committed only if a minor is used to satisfy the lust of another and not the corruptor's own lust. Under R . A . 7610, the penalty is higher.

•

What is involved in white slave trade? As in corruption of minor, white slave trade does not require offender to have carnal knowledge with the persons under his control. But unlike in corruption, the offender here is engaged in an industry; the crime is committed for profit, and the persons used need not be minors.

963

Chapter Four

ABDUCTION A r t . 342. Forcible abduction. — T h e a b d u c t i o n of any w o m a n against h e r will a n d w i t h l e w d designs shall b e p u n i s h e d by reclusion temporal. T h e same penalty shall be i m p o s e d in e v e r y case, if the female a b d u c t e d b e u n d e r t w e l v e y e a r s o f a g e . A r t . 343. Consented abduction. — T h e a b d u c t i o n of a v i r g i n o v e r t w e l v e a n d u n d e r eighteen y e a r s o f a g e , c a r r i e d out w i t h h e r consent a n d w i t h l e w d designs, shall b e p u n i s h e d by the penalty of prision correccional in its m i n i m u m a n d medium periods. •

What are the elements of forcible abduction? The elements of forcible abduction are: 1.

the victim is any woman, regardless of age, civil status, or reputation;

2.

the abduction is against her will; and

3.

the abduction is with l e w d designs.

Victim was forcibly taken at knifepoint from Cebu by appellant and through threats and intimidation brought to various towns in Masbate, where he ed her off as his "wife." That appellant was moved by lewd designs was shown in regard to rape by his having carnal knowledge with complainant against her will. Forcible abduction was committed but appellant cannot be convicted of the complex crime of forcible abduction with rape, for while the information sufficiently alleges the forcible taking of complainant, the same fails to allege "lewd designs." When a complex crime under Article 48 is charged, such as forcible abduction with rape, the prosecution must allege and prove the presence of all the elements of forcible abduction, as well as all the elements of rape. When appellant, using a blade, forcibly took

ABDUCTION

away complainant for the purpose of sexually assaulting her, the rape may then absorb forcible abduction. Hence, the crime committed by appellant is simple rape only. (People v. Sabredo, G.R. No. 126114, May 11, 2000) •

When is forcible abduction complexed with rape? Forcible abduction w i t h rape is a complex crime that occurs when there is carnal knowledge with the abducted woman under the following circumstances: (1) by using force or intimidation; (2) w h e n the woman is deprived of reason or otherwise unconscious; and (3) when the woman is under 12 years of age or is demented. (People v. Magat, 332 SCRA) Forcible abduction is the taking of a woman against her will and with lewd designs, or of a girl below 12 years old. W h e n the accused forcibly took away the victim, for the purpose of raping her, l e w d and unchaste designs existed since the commencement of the crime. W h e n the accused raped the complainant, he committed the complex crime of forcible abduction with rape. (People v. Espiritu, G.R. No. 128870, October 27, 1999) Forcible abduction with rape is complex crime if the taking of the woman amounts to forcible abduction and thereafter she was abused. A n d in case of multiple rapes, Garcia, reiterating Jose, declared that only one rape shall be complexed with forcible abduction. T h e other rapes are to be charged separately as one count each. In contrast, kidnapping and serious illegal detention with rape is not a complex crime. W h e n the taking of the woman amounts to kidnapping and thereafter raped, the rape is a qualifying circumstance resulting to a special complex crime of kidnapping with rape. •

Is there a crime of forcible abduction with attempted rape or with acts of lasciviousness? The rape must be consummated for the complex crime of forcible abduction with rape. There is no complex crime of forcible abduction with acts of lasciviousness or with attempted rape because these are manifestations of lewd designs which is an element thereof; the crime then is simple forcible abduction. 965


What is "lewd design"? " L e w d " means obscene, lustful, indecent, lascivious, lecherous. It signifies that form of i m m o r a l i t y which has relation to moral impurity; or that which is carried on in a wanton manner. (People v. Grefiel, G.R. No. 77228, November 13, 1992) What will lead to the presumption of lewd designs? Since the victim was only 15 years old when she agreed to leave her employer's house to go with the accused and his mother, the crime committed was forcible abduction. T h e victim's virginity may be presumed from the fact that she was an unmarried barrio girl when the crime was committed. T h e element of lewd design on the part of the accused may also be inferred from the fact that while the victim was then a naive 15 year old, the accused was 10 years her senior and although unmarried, was much wiser in the ways of the world than she was. The accused's alleged desire to marry the victim is not a defense considering that no marriage license was presented and parental consent was wanting. (People v. Villorente, July 1992) Where the girl is under 12, what is the nature of abduction? Where the girl is under 12, the crime is always forcible abduction even if with consent of the girl and more so if without her consent. T h e law presumes that the abduction is against her will for a girl less than 12 cannot give a valid consent. Sexual intercourse is not an element of abduction. It is enough that the woman is taken against her will with lewd designs. When will the abduction be absorbed in the crime of rape? T h e forcible abduction is absorbed in rape if the main objective is to rape the victim. T h e offender held the victim by the arm, pushed her inside a waiting tricycle, and brought her to his house, where she was padlocked in a room to prevent her from escaping. T h e subsequent rapes on the victim who was released only on the tenth day of her abduction constitute as many counts of rape. (People v. Shariff Ali El Akhtar, G.R. No. 130640, June 21, 1999)

ABDUCTION

•

What various crimes can be committed with forcible taking of a woman? 1.

Forcible abduction if the taking is with lewd designs; forcible abduction with rape if she was raped thereafter;

2.

Kidnapping if the purpose is to deprive the woman of her liberty; kidnapping with rape if the woman was raped thereafter;

3.

Rape only and taking is absorbed if the taking is the means to carry out the intent to rape.

T h e information sufficiently alleged the elements of forcible abduction: the taking of complainant against her will and with lewd design. Accused is guilty of the complex crime of forcible abduction with rape and for the three counts of rape committed by his three co-accused, considering the clear conspiracy among them shown by their concerted efforts to perpetrate, one after the other, the crime. Each of them is responsible not only for the rape committed personally by him but for the rape committed by the others as well. However, there can only be one complex crime of forcible abduction with rape for forcible abduction was only necessary for the first rape. Thus, the subsequent acts of rape can no longer be considered as separate complex crimes of forcible abduction with rape. They should be detached from and considered independently of the forcible abduction. Therefore, accused should be convicted of one complex crime of forcible abduction with rape and three separate acts of rape. (People v. Garcia, G.R. No. 141125, February 28, 2002) (Now, reclusion perpetua only.) •

Can there be consented abduction with simple seduction? If the original intent was to induce the woman to sexual intercourse, the crime is simple seduction only, the taking is absorbed in simple seduction. There must be a significant time interval between the consented abduction and the seduction for both crimes to be committed.

•

Compare consented abduction and seduction. In consented abduction, the gravamen is the alarm and disturbance to the parents and the family of the victim and the infringement of their rights. In seduction, the gravamen is the wrong done to the woman. Seduction may be committed without the taking of the woman unlike in consented abduction. 967

Chapter Five

PROVISIONS RELATIVE TO THE PRECEDING CHAPTERS OF TITLE ELEVEN A r t . 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. — T h e crimes of adultery a n d c o n c u b i n a g e shall not be p r o s e c u t e d except u p o n a complaint filed by the offended spouse. T h e offended p a r t y c a n n o t institute c r i m i n a l prosecution without i n c l u d i n g b o t h the guilty parties, if they a r e b o t h alive, nor, in any case, if he shall h a v e consented or p a r d o n e d the offenders. T h e offenses of seduction, a b d u c t i o n , r a p e , or acts of lasciviousness, shall not be p r o s e c u t e d except u p o n a complaint filed by the o f f e n d e d p a r t y or h e r p a r e n t s , g r a n d p a r e n t s , or g u a r d i a n , n o r , in a n y case, if the offender has b e e n expressly p a r d o n e d b y the a b o v e - n a m e d persons, as the case m a y b e . In cases of seduction, a b d u c t i o n , acts of lasciviousness, a n d r a p e , the m a r r i a g e o f the o f f e n d e r w i t h the offended party shall e x t i n g u i s h the c r i m i n a l action or r e m i t the penalty a l r e a d y i m p o s e d u p o n h i m . T h e p r o v i s i o n s o f this p a r a g r a p h shall also b e a p p l i c a b l e t o the co-principals, accomplices, a n d accessories after the fact of the a b o v e m e n t i o n e d crimes. A r t . 345. Civil liability of persons guilty of crimes against chastity. — P e r s o n s guilty of r a p e , seduction, or a b d u c t i o n , shall also be sentenced: 1.

To indemnify the o f f e n d e d w o m a n ;

2.

To a c k n o w l e d g e the o f f s p r i n g , unless should prevent him from so doing;

3.

In e v e r y case to s u p p o r t the offspring.

the

law

R O V I S I O N S RELATIVE TO THE P R E C E D I N G CHAPTERS OF TITLE ELEVEN

T h e a d u l t e r e r a n d the c o n c u b i n a g e in the case p r o v i d e d for in A r t i c l e s 333 a n d 334 m a y also be sentenced, in the same p r o c e e d i n g or in a s e p a r a t e civil p r o c e e d i n g , to indemnify for d a m a g e s c a u s e d to the offended spouse. A r t . 346. Liability of ascendants, guardians, teachers, or other persons entrusted with the custody of the offended party. — T h e ascendants, g u a r d i a n s , c u r a t o r s , t e a c h e r s , a n d any p e r s o n w h o b y a b u s e o f a u t h o r i t y o r confidential relationships, shall c o o p e r a t e as a c c o m p l i c e s in the p e r p e t r a t i o n of the crimes e m b r a c e d in c h a p t e r s second, t h i r d a n d fourth of this title, shall b e p u n i s h e d a s p r i n c i p a l s . T e a c h e r s o r o t h e r p e r s o n s i n a n y other capacity e n t r u s t e d w i t h the e d u c a t i o n a n d g u i d a n c e of the youth, shall also suffer the p e n a l t y of t e m p o r a r y special disqualification in its m a x i m u m p e r i o d to p e r p e t u a l special disqualification. A n y p e r s o n f a l l i n g w i t h i n the t e r m s o f this article, a n d a n y other p e r s o n guilty of c o r r u p t i o n of m i n o r s for the benefit o f a n o t h e r , shall b e p u n i s h e d b y special disqualification from filling the office of g u a r d i a n . •

What is the nature of the indemnity awarded under Article 345? T h e indemnity under Article 345, paragraph 1 is absolute and is never conditioned upon the financial capacity of the accused. (People v. Saluna)

•

When should the pardon be given by the offended party? To be effective, pardon must be given before the prosecution of the crime. This does not apply to rape however because it is now a crime against person and R . A . 8353 states that the penalty imposed shall be remitted. Therefore, pardon is effective even if judgment had been rendered on the case.

•

What are the effects of pardon by the offended party? It does not extinguish criminal liability. The only exception are Articles 266-C and 344 which requires a valid marriage between the offender and the victim to effect an extinguishment of criminal liability. But civil liability is extinguished by express waiver of the offended.

969


•

In rape cases, will the pardon of the parents of the victim without the concurrence of the minor victim be effective? N o . Pardon must be granted not only by the parents of an offended minor but also by the minor herself to be effective as an express pardon under Article 344 (Article 266-C, R . A . 8353). Thus, Lacson, Jr., (CA) 55 OG 9460: 'Neither must we be understood as ing the v i e w that the parents alone can extend a valid pardon. Far from it, for we too are of the belief that the pardon by the parents, standing alone, is inefficacious.' It was also held in another case that: 'The express pardon of a person guilty of attempted abduction of a minor, granted by the latter's parents, is not sufficient to remove criminal responsibility, but must be accompanied by the express pardon of the girl herself.' (US v. Luna, 1 Phil.) T h e supposed pardon of the accused was granted by the mother without the concurrence of the offended minor. Hence, even if it be assumed that the initial desistance of the mother from taking any action against the accused constitutes pardon such is ineffective without the express concurrence of the minor herself. (People v. Tadulan, G.R. No. 117407, April 15, 1997)

•

Is an affidavit of desistance effective? An affidavit of desistance is merely an additional ground to buttress the accused's defenses, not the sole consideration that can result in acquittal. T h e r e must be other circumstances which, when coupled with the retraction or desistance, create doubts as to the truth of the testimony given by the witnesses at the trial and accepted by the judge. (People v. Ballabare, G.R. No. 108871, November 19, 1996). A l l that the accused offered as defenses mainly consisted of denial and alibi which cannot outweigh the positive identification and convincing testimonies given by the prosecution. Hence, the affidavit of desistance which the victim herself intended to disregard must have no bearing on the criminal prosecution against the accused particularly on the trial court's jurisdiction over the case. (People v. Echegaray, G.R. No. 117472, February 7, 1997)

•

What is the civil liability of a person convicted of the crime of rape when an offspring result from the rape? Article 345 provides that persons guilty of rape, seduction or abduction, shall be sentenced to: ( a ) indemnify the offended woman; (b) acknowledge the offspring, unless the law should 970

R O V I S I O N S RELATIVE TO THE P R E C E D I N G CHAPTERS OF TITLE ELEVEN

prevent him from doing so; and (c) in every case to the offspring. Under Article 283 of the Civil Code, the father is obliged to recognize the child as his natural child in cases of rape, abduction, and seduction when the period of the offense coincides, more or less, with the period of conception. However, acknowledgment was disallowed if the offender is a married man, with only for the offspring as part of the sentence. Article 176 of the Family Code confers parental authority over illegitimate children on the mother and likewise provides for their entitlement to in conformity therewith. As such, there is no more need for the prohibition against acknowledgment of the offspring of the offender who is a married man which would vest parental authority in him. Therefore, under Article 345, the offender in a rape case who is married can only be sentenced to indemnify the victim and the offspring, if there be any. In the instant case, the accused should also be ordered to his illegitimate offspring but in the light of Article 201 of the Family Code, the amount and thereof are to be determined by the trial court only after due notice and hearing. (People v. Bayani, G.R. No. 120894, October 3, 1996) (Article 176 was amended by R . A . 9255 allowing illegitimate children to use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil , or when an ission in a public document or private handwritten instrument is made by the father.) •

When is compulsory acknowledgment of the offspring of rape proper? Compulsory acknowledgment as well as the of the child is indeed proper if there is no legal impediment in doing so as when complainant and appellant are both single. The crime of rape committed by the accused carries with it, among others the obligation to acknowledge the offspring if the character of its origin does not prevent it and to the same. (People v. Namayan, G.R. No. 106539, July 18, 1995) The order of the trial court requiring accused to pay to complainant's child should be set aside. Under Article 345, those guilty of rape should be ordered to acknowledge and 971


the child born as a consequence of the rape. Here, however, accused is married, and, thus, cannot be made to acknowledge the child of complainant. T h e question is whether accused should be ordered to the child. In Bayani, for an accused to be made to pay such , it must be shown that the period of the commission of the rape coincides, more or less, with the period of conception of the child. In Malapo, G.R. No. 123115, August 25, 1998, the period of pregnancy is 37 weeks or roughly 9.3 months. In these cases complainant underwent the full term of her pregnancy and gave birth to a baby girl on July 9, 1983. She is thus estimated to have conceived the child sometime in October 1982. Accused, however, stands accused of three counts of rape, the last of which was committed on July 12, 1982. In v i e w of the difference of about three months between the date of the rape on July 12, 1982 and the date of birth of complainant's child on July 9, 1983, accused cannot be ordered to the child. This, however, does not affect the findings on the guilt of the accused with regard to the three counts of rape filed against him. N o t only is the impregnation of the rape victim not an element of rape but complainant stated that accused continued to rape her even after July 12, 1982. Although accused cannot be held liable for such rapes because these cases do not cover other incidents of rape after July 12, 1982, complainant's testimony on this point provides a possible explanation for her childbirth on July 9, 1983. (People v. Dichoson, G.R. No. 118986-89, February 19, 2001)

TITLE TWELVE

CRIMES AGAINST THE CIVIL STATUS OF PERSONS Chapter One S I M U L A T I O N O F BIRTHS A N D U S U R P A T I O N OF CDTIL STATUS A r t . 347. Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate child. — T h e s i m u l a t i o n of b i r t h s a n d the substitution of one child for a n o t h e r shall be p u n i s h e d by prision mayor a n d a fine of not e x c e e d i n g 1,000 pesos. T h e s a m e p e n a l t i e s shall b e i m p o s e d u p o n any p e r s o n w h o shall conceal o r a b a n d o n a n y legitimate child with intent to c a u s e s u c h child to lose its civil status. A n y p h y s i c i a n o r s u r g e o n o r p u b l i c officer w h o , i n violation of the duties of his profession or office, shall c o o p e r a t e in the execution of a n y of the crimes mentioned in the t w o next p r e c e d i n g p a r a g r a p h s , shall suffer the penalties t h e r e i n p r e s c r i b e d a n d also the p e n a l t y o f t e m p o r a r y special disqualification. A r t . 348. Usurpation of civil status. — T h e penalty of prision mayor shall be i m p o s e d u p o n a n y p e r s o n w h o shall u s u r p the civil status of a n o t h e r , s h o u l d he do so for the p u r p o s e of d e f r a u d i n g the offended p a r t y or his heirs; o t h e r w i s e , the penalty of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s shall be imposed. •

Where should the simulation of birth be made? Simulation of birth must be made in the record of birth; if in another document the crime is falsification. Likewise, if the record of birth reflects the true parents but simulation is in other documents, Article 347 is not violated. Under R . A . 7610, child trafficking is the crime committed if the parents should agree to the adoption of their child for a consideration; or when the physician falsely made it appear in the record of birth that the supposed parents are the natural parents. 973

C h a p t e r Two

ILLEGAL MARRIAGES A r t . 349. Bigamy. — T h e penalty of prision mayor shall be imposed u p o n any p e r s o n w h o shall contract a second o r subsequent m a r r i a g e b e f o r e the f o r m e r m a r r i a g e has b e e n legally dissolved, or b e f o r e the a b s e n t spouse has been d e c l a r e d p r e s u m p t i v e l y d e a d by m e a n s of a j u d g m e n t r e n d e r e d in the p r o p e r p r o c e e d i n g s . A r t . 350. Marriage contracted against provisions of laws. — T h e penalty of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s shall b e i m p o s e d u p o n a n y p e r s o n w h o , w i t h o u t b e i n g i n c l u d e d in the p r o v i s i o n s of the next p r e c e d i n g article, shall contract m a r r i a g e k n o w i n g that the r e q u i r e m e n t s o f the l a w h a v e not b e e n c o m p l i e d w i t h o r that the m a r r i a g e is in d i s r e g a r d of a l e g a l i m p e d i m e n t . If either of the c o n t r a c t i n g p a r t i e s shall o b t a i n the consent of the other by m e a n s of violence, intimidation, or f r a u d , h e shall b e p u n i s h e d b y the m a x i m u m p e r i o d o f the penalty p r o v i d e d i n the next p r e c e d i n g p a r a g r a p h . •

What are the elements of bigamy? 1.

Offender has been legally married.

2.

The marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the N C C .

3.

Offender contracts a second or subsequent marriage.

4.

Such second or subsequent marriage has all the essential requisites for validity.

W h e n the information was filed on January 22, 1993, all the elements of bigamy w e r e present. Petitioner married T H on A p r i l 10, 1976 in Cebu City. W h i l e that marriage was still subsisting, he contracted a second marriage, this time with respondent who subsequently filed the complaint for bigamy.

974

ILLEGAL M A R R I A G E S

A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statute as void. (Mercado v. Tan, August 2000). [This decision finally settled the "conflicting" decisions on the issue of whether or not it is still necessary for a judicial declaration of a subsisting marriage before contracting another one to avoid prosecution for bigamy: Mendoza, 95 Phil. 845; Aragon, 100 Phil. 1033; Vda. de Consuegra v. GSIS, 37 SCRA 315; Tolentino v. Paras, 122 SCRA 525; Wiegel v. Sempio-Diy, 143 SCRA 499; Yap, 145 SCRA 229; Domingo, 226 SCRA 572] •

Is the lack of judicial declaration of nullity of a void marriage a cause for conviction for bigamy? Y e s . In Domingo, G.R. No. 104818, September 17, 1993, the issue raised was whether a judicial declaration of nullity was still necessary for the recovery and the separation of properties of erstwhile spouses. Ruling in the affirmative, the Court declared: "The Family Code has settled once and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense; in fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her first marriage, the person who marries again cannot be charged with bigamy." Such declaration is necessary before one can contract a second marriage. Absent that declaration, one may be charged with and convicted of bigamy. (Mercado v. Tan, G.R. No. 137110, August 1, 2000) •

Distinguish bigamy from illegal marriage. If the second marriage is not perfectly valid for causes other than the existence of the first marriage, the crime is illegal marriage under Article 350. In bigamy, the second marriage would have been valid except that there is a subsisting previous marriage. 975


In bigamy: 1.

Subsequent marriage must be perfectly valid except that it is bigamous;

2.

It refers only to the contracting of a second marriage before the former marriage has been legally dissolved or before the absent spouse has been declared presumptively dead. In illegal

•

marriage:

1.

Subsequent marriage is annullable or void even if there is no first marriage;

2.

It covers all marriages which are otherwise voidable or void for causes other than bigamous marriage.

The judicial declaration of absolute nullity of a previous marriage is necessary for what purposes? There is a necessity for a judicial declaration of absolute nullity of marriage before contracting another. T h e requirement is also for the protection of the spouse who, believing that his marriage is illegal and void, marries again. W i t h the judicial declaration of the nullity of the first marriage, the person who marries again cannot be charged with bigamy. (Domingo v. CA)

•

M a y the nullity of the marriage be presumed by the parties? N o . W h e r e the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage to be free from legal infirmity is a final judgment declaring the previous marriage void (Section 40). Parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of its nullity before they can be allowed to remarry. Such final judgment declaring the previous marriage void need not be obtained only for purposes of remarriage. T h e r e are instances where a party might well invoke the absolute nullity of a previous marriage for purposes other than remarriage, such as in an action for separation of property or for custody and of common children and the delivery of the latter's 976


presumptive legitimes. In such cases, evidence must be adduced to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void. H o w e v e r , for purposes of remarriage, he may prove that the previous one was absolutely void based solely on a final judgment declaring such previous marriage void. W h y the distinction? Because marriage is a sacrosanct institution, declared by the Constitution as an inviolable social institution, the foundation of the family; as such, it shall be protected by the State. So crucial are marriage and family to the stability and peace of the nation that their nature, consequences, and incidents are governed by law and not subject to stipulation. As a matter of policy, therefore, the nullification of a marriage for the purpose of contracting another cannot be accomplished merely on the basis of the perception of either or both parties that their union is so defective as to render it void ipso jure — and nothing more. For such a socially significant institution, an official State pronouncement through the courts and nothing less, will satisfy the exacting norms of society, (id.) •

Will the declaration of nullity of the first marriage after the celebration of the second free the offender from the charge of bigamy? N o . T h e subsequent judicial declaration of nullity of marriage does not retroact to the date of celebration of marriage insofar as penal laws are concerned. One who contracts a subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent judicial declaration that the second marriage is void ab initio. To hold otherwise would render nugatory penal laws on bigamy as it would allow individuals to deliberately ensure that marital contract be flawed and thus escape the consequences of contracting multiple marriage. Article 349 penalizes the mere act of contracting a subsequent marriage during the subsistence of a previous marriage. As soon as the second marriage is celebrated bigamy is consummated. (Tenebro v. CA, G.R. No. 150758, February 18, 2004) 977


•

If a marriage ceremony was not held before a solemnizing officer the parties thereto merely signed a marriage contract, would such g operate to give validity to the marriage? No and therefore the first element of bigamy, that the accused must have been legally married, is not attendant. The mere private act of g a marriage contract bears no semblance to a valid or ostensibly valid marriage and thus needs no declaration of nullity. W h a t A r t i c l e 40 of the Family Code contemplates as the void marriage which must first be declared a nullity before a party can remarry is one which must exist although it is void. For, even if it is void, it is a legal impediment to marry such that if there is no prior declaration of its nullity, one cannot contract a subsequent marriage. Mercado v. Tan involves at least a first marriage which appeared to have been entered into although later declared void ab initio. (Morigo v. People, G.R. No. 145226, February 6, 2004)

>

Will the principle of constructive notice by registration be applicable to the crime of bigamy? The principle of constructive notice should not be applied in regard to the crime of bigamy as judicial notice may be taken of the fact that a bigamous marriage is generally entered into by the offender in secrecy from the spouse of the previous subsisting marriage. Also, a bigamous marriage is generally entered into in a place where the offender is not known to be still a married person, in order to conceal his legal impediment to contract another marriage. (People v. Reyes, G.R. Nos. 7422627, July 27, 1989) In the case of real property, the registration of any transaction involving any right or interest therein is made in the of Deeds of the place where the said property is located. Verification in the office of the of Deeds concerned of the transactions involving the said property can easily be made by any interested party. In the case of a bigamous marriage, verification by the offended person or the authorities of the same would indeed be quite difficult as such a marriage may be entered into in a place where the offender is not known to be still a married person. 978


Constructive notice has been consistently applied to land or property disputes and certainly, marriage is not property (id.) Prescriptive period is 15 years from the time of discovery of the second marriage. A r t . 351. Premature marriages. — A n y w i d o w w h o shall m a r r y w i t h i n t h r e e h u n d r e d a n d one d a y f r o m the date o f the d e a t h of h e r h u s b a n d , or b e f o r e h a v i n g d e l i v e r e d if she shall h a v e b e e n p r e g n a n t at the time of his death, shall be p u n i s h e d by arresto mayor a n d fine not e x c e e d i n g 500 pesos. T h e s a m e penalties shall b e i m p o s e d u p o n any w o m a n w h o s e m a r r i a g e shall h a v e b e e n a n n u l l e d o r dissolved, i f she shall m a r r y b e f o r e h e r d e l i v e r y o r b e f o r e the expiration of the p e r i o d of t h r e e h u n d r e d a n d one d a y after the legal separation. •

What is the reason for the law in premature marriage? T h e ratio legis for Article 351 is to prevent confusion as to the filiation of the child. Thus, the belief of the woman that she is not pregnant by the former husband, constitutes good faith; since this is dolo, there is no criminal liability. Absent the reason for the law, the law does not apply. If the woman is barren, the same principle holds true.

A r t . 352. Performance of illegal marriage ceremony. — Priests or ministers of a n y r e l i g i o u s d e n o m i n a t i o n or sect, or civil authorities w h o shall p e r f o r m o r a u t h o r i z e any illegal m a r r i a g e c e r e m o n y shall b e p u n i s h e d i n a c c o r d a n c e with the provisions o f the M a r r i a g e L a w . •

If a priest or minister who (a) has lapsed authority; or (b) is merely pretending to be one, officiated a marriage, what crime is committed? If the priest's authority (three years) to conduct marriage has lapsed, he may be prosecuted for illegal marriage. Any of the contracting parties aware of that fact will also be criminally liable. This is aside from the fact that the authority of the solemnizing person is an element of a valid marriage. A priest or minister can be authorized to officiate a marriage hence his liability is not for usurpation of function. 979


Persons who pretend to be priests will be liable not for illegal marriage but for usurpation of official function. The "priest" must really be a priest or an officer duly commissioned by the government. If the man connived with such person to be able to deceive the woman who did not know of such arrangement for the man to be able to have carnal knowledge with her, it is fraudulent machination. The person officiating the marriage is a co-principal by indispensable cooperation.

TITLE THIRTEEN C R I M E S AGAINST HONOR •

What are the different crimes of defamation? T h e y are oral defamation or slander; written defamation or libel; and defamation by overt acts or slander by deed.

Chapter One LIBEL Section O n e . — Definition, forms and punishment of this crime A r t . 353. Definition of libel. — A libel is a p u b l i c a n d malicious i m p u t a t i o n of a c r i m e , or of a vice or defect, real or i m a g i n a r y , or a n y act, omission, condition, status, or circumstance t e n d i n g to c a u s e the d i s h o n o r , discredit, or contempt of a n a t u r a l or j u r i d i c a l p e r s o n , or to b l a c k e n the m e m o r y o f one w h o i s d e a d . •

To find a person guilty of libel, what elements must be proved? T o be liablefor libel under Article353,thefollowingelements must be shown to exist: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice (Brillantes v. CA, 440 SCRA 541). Publication, in the law of libel, means the making of the defamatory matter, after it has been written, known to someone other than the person to whom it has been written. If the statement is sent straight to a person for whom it is written there is no publication of it (Alonzo v. CA, 441 SCRA 51). T h e reason for this is that a communication of the defamatory matter to the person defamed cannot injure his reputation though it may wound his self-esteem. A man's reputation is not the good opinion he has of himself, but the estimation in which others hold him. (Magno v. People, G.R. No. 133896, January 27, 2006)

981


An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead. (Vasquez v. CA, G.R. No. 118971, September 15, 1999) •

How should the defamatory words in a publication be construed? For the purpose of determining the meaning of any publication alleged to be libelous that construction must be adopted which will give to the matter such a meaning as is natural and obvious in the plain and ordinary sense in which the public would naturally understand what was uttered. T h e published matter alleged to be libelous must be construed as a whole. In applying these rules to the language of an alleged libel, the court will disregard any subtle or ingenious explanation offered by the publisher on being called to . The whole question being the effect the publication had upon the minds of the readers, and they not having been assisted by the offered explanation in reading the article, it comes too late to have the effect of removing the sting, if any there be, from the words used in the publication, (id.)

A r t . 354. Requirement of publicity. — E v e r y d e f a m a t o r y i m p u t a t i o n is p r e s u m e d to be m a l i c i o u s , e v e n if it be t r u e , if no g o o d i n t e n t i o n a n d j u s t i f i a b l e m o t i v e f o r m a k i n g it is s h o w n , e x c e p t i n the f o l l o w i n g cases: 1. A p r i v a t e c o m m u n i c a t i o n m a d e by a n y p e r s o n to a n o t h e r in the p e r f o r m a n c e of a n y l e g a l , m o r a l , or social duty; a n d 2. A fair a n d t r u e r e p o r t , m a d e in g o o d faith, w i t h o u t a n y comments o r r e m a r k s , o f a n y j u d i c i a l , legislative, o r other official p r o c e e d i n g s w h i c h a r e not of confidential n a t u r e , o r o f a n y statement, r e p o r t , o r s p e e c h d e l i v e r e d i n said p r o c e e d i n g s , o r o f a n y o t h e r act p e r f o r m e d b y p u b l i c officers in the exercise of t h e i r functions. •

How are the elements of publication and identification satisfied? There is publication if the material is communicated to a third person. It is not required that the person defamed has 982

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read or heard about the libelous remark. W h a t is material is that a third person has read or heard the libelous statement, for a man's reputation is the estimate in which others hold him, not the good opinion which he has of himself. On the other hand, to satisfy the element of identifiability, it must be shown that at least a third person or a stranger was able to identify him as the object of the defamatory statement. (Vasquez v. CA) In Silvela, 103 Phil. 773, sending an unsealed libelous letter to the offended party constitutes publication. In the present case, there is no dispute that the unsealed envelope containing the libelous letter was handed by DD to EE. Contextually, there was a reasonable probability that the contents of the unsealed envelope, particularly the libelous letter, could h a v e been exposed to be read by EE before delivering the same to C C . H o w e v e r , EE categorically itted not reading the letter at the first instance, reading it only after securing CC's permission. In as much as CC voluntarily disclosed the contents of D D ' libelous letter to EE, the act of publication cannot be ascribed to DD insofar as EE is concerned. H o w e v e r , it could not be said that there was no publication w i t h respect to Cerelito's wife, FF. W h i l e the letter in question was addressed to "Mr. Cerelito & Fe Alejandro," the invectives contained therein were directed against CC only. W r i t i n g to a person other than the person defamed is sufficient to constitute publication, for the person to whom the letter is addressed is a third person in relation to its writer and the person defamed therein. FF, the wife, is, in context, a third person to whom the publication was made. (Magno v. People, G.R. No. 133896, January 27, 2006) Does the issuance of an inter-office memorandum satisfy the element of publicity in libel? The key element of publicity found in the definition of libel in Article 353 is absent. Firstly, the assailed letter was part of the initial investigation surrounding the nonremittance of collections by Fortich. The phrase "Interoffice Memorandum," implies confidentiality. Secondly, the 983


letter was not publicized, much less read by officers of the corporation other than those involved in the investigation or those directly supervising Fortich's work. W h i l e imputation of a vice or defect on Fortich's character might have been apparent from the second to the last paragraph of the memorandum, the imputation was never really made publicly. (Fortich v. CA, G.R. No. 120769, February 12, 1997) A r t . 355. Libel by means of writings or similar means. — A libel committed by m e a n s of w r i t i n g , p r i n t i n g , l i t h o g r a p h y , engraving, radio, phonograph, painting, theatrical exhibition, c i n e m a t o g r a p h i c exhibition or a n y similar m e a n s , shall be p u n i s h e d by prision correccional in its m i n i m u m or m e d i u m p e r i o d s or a fine r a n g i n g f r o m 200 to 6,000 pesos, or both, in addition to the civil action w h i c h m a y be b r o u g h t by the offended party. •

What kind of defamation are utterances made in broadcast media? Pursuant to Article 355, these are libel, not oral defamation. For practical purposes, before such case can be filed in court, the offended must secure a written transcript of broadcast for presentation of the defamatory statement, hence it is libel, not oral defamation.

•

Can the court impose fine instead of imprisonment? Y e s . Evidently, Article 355 gives court the discretion to impose the penalty of imprisonment or fine or both. For humanitarian reasons and in the exercise of its sound judicial discretion the penalty imposed was changed because petitioner is a radio commentator who delivers commentaries affecting public interest. He has thus made some contributions to the cause of good government and is in effect rendering public service in his own way. Also, he has five children, four of whom are still minors fully dependent upon him for and who would one w a y or another bear the grudge of incarceration should the prison sentence be carried out. As the court is not only a court of law but of justice and comion, instead of a prison term, petitioner was ordered to pay fine of P3.000. (Torralba v. CA, October 1996)

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A r t . 356. Threatening to publish and offer to prevent such publication for a compensation. — T h e p e n a l t y of arresto mayor or a fine of f r o m 200 to 2,000 pesos, or b o t h , shall be imposed u p o n a n y p e r s o n w h o t h r e a t e n s a n o t h e r t o p u b l i s h a libel c o n c e r n i n g h i m o r the p a r e n t s , spouse, child, o r other m e m b e r s o f the f a m i l y o f the latter, o r u p o n a n y o n e w h o shall offer to p r e v e n t the p u b l i c a t i o n of such libel for a compensation or money consideration. I f the r e m a r k s t h r e a t e n e d a r e d e f a m a t o r y , the crime is u n d e r this article; if o t h e r w i s e , the c r i m e is light threats defined in A r t i c l e 283. A r t . 357. Prohibited publication of acts referred to in the course of official proceedings. — T h e p e n a l t y of arresto mayor or a fine f r o m 200 to 2,000 pesos, or b o t h , shall be imposed u p o n a n y r e p o r t e r , e d i t o r o r m a n a g e r o f a n e w s p a p e r , daily o r m a g a z i n e , w h o shall p u b l i s h facts connected w i t h the p r i v a t e life of a n o t h e r a n d offensive to the honor, virtue a n d r e p u t a t i o n o f s a i d p e r s o n , even t h o u g h said publication be m a d e in c o n n e c t i o n w i t h or u n d e r the pretext that it is necessary in the n a r r a t i o n of a n y j u d i c i a l or istrative p r o c e e d i n g s w h e r e i n such facts h a v e b e e n mentioned. A r t . 358. Slander. — O r a l d e f a m a t i o n shall be p u n i s h e d by arresto mayor in its m a x i m u m p e r i o d to prision correccional in its m i n i m u m p e r i o d if it is of a serious a n d insulting nature; o t h e r w i s e , the penalty shall be arresto menor or a fine not e x c e e d i n g 200 pesos. •

When is a defamatory remark serious and when slight? A doctrine of ancient respectability held that defamatory words will fall under serious or slight depending not only upon their sense, grammatical significance, and accepted ordinary meaning judging them separately, but also upon the special circumstances of the case, antecedents or relationships between the offended party and the offender, which might tend to prove the intention of the offender at the time. Considering the fact that the parties were also neighbors; that petitioner was drunk at the time he uttered the defamatory words; and the fact that petitioner's anger was instigated by what Atty. EE did when petitioner's father died, the oral defamation was not of serious or insulting nature. 985


Whether the offense committed is serious or slight oral defamation depends not only upon the sense and grammatical meaning of the utterances but also upon the special circumstances of the case, like the social standing or the advanced age of the offended party. When the offense has been qualified to grave oral defamation, it cannot be reduced to simple oral defamation by the claim that the slanderous words were said in the heat of anger. Besides, the slanderous words were uttered with evident intent to strike deep into the character of the victim. (Larobis v. CA, G.R. No. 104189, March 30, 1993) •

Is the expression "p... i.. mo" defamatory? N o . In Reyes v. People, 137 Phil., the expression "p... i.. mo" is a common enough utterance in the dialect that is often employed, not really to slander but rather to express anger or displeasure. In fact, more often, it is just an expletive that punctuates one's expression of profanity. (Pader v. People, G.R. No. 139157, February 8, 2000)

•

Is there frustrated or attempted defamation? None, because the acts constituting defamation cannot be performed without consummating the offense. It is a formal crime.

A r t . 359. Slander by deed. — T h e p e n a l t y of arresto mayor in its m a x i m u m p e r i o d to prision correccional in its m i n i m u m p e r i o d or a fine r a n g i n g f r o m 200 to 1,000 pesos shall b e i m p o s e d u p o n a n y p e r s o n w h o shall p e r f o r m a n y act not i n c l u d e d a n d p u n i s h e d in this title, w h i c h shall cast d i s h o n o r , discredit o r c o n t e m p t u p o n a n o t h e r p e r s o n . I f s a i d act is not of a serious n a t u r e , the p e n a l t y shall be arresto menor or a fine not e x c e e d i n g 200 pesos. Section T w o . — General Provisions A r t . 360. Persons responsible. — A n y p e r s o n w h o shall p u b l i s h , exhibit, o r c a u s e the p u b l i c a t i o n o r e x h i b i t i o n o f a n y d e f a m a t i o n i n w r i t i n g o r b y s i m i l a r m e a n s , shall b e r e s p o n s i b l e for the same.

LIBEL

T h e a u t h o r or editor of a b o o k or p a m p h l e t , or the editor or b u s i n e s s m a n a g e r of a d a i l y n e w s p a p e r , m a g a z i n e or serial p u b l i c a t i o n , shall be r e s p o n s i b l e for the defamations contained therein to the s a m e extent as if he w e r e the a u t h o r thereof. T h e c r i m i n a l a n d civil action for d a m a g e s in cases of w r i t t e n d e f a m a t i o n s as p r o v i d e d for in this chapter, shall b e f i l e d s i m u l t a n e o u s l y o r s e p a r a t e l y w i t h the C o u r t o f First Instance of the p r o v i n c e or city w h e r e the libelous article is p r i n t e d a n d first p u b l i s h e d or w h e r e a n y of the offended parties actually r e s i d e s at the time of the commission of the offense; Provided, however, T h a t w h e r e one of the offended parties is a p u b l i c officer w h o s e office is in the City of M a n i l a at the time of the c o m m i s s i o n of the offense, the action shall be filed in the C o u r t of F i r s t I n s t a n c e of the City of M a n i l a or of the city or p r o v i n c e w h e r e the l i b e l o u s article is printed a n d first p u b l i s h e d , a n d in case such p u b l i c officer does not h o l d office in the City of M a n i l a , the action shall be filed in the C o u r t of First I n s t a n c e of the p r o v i n c e or city w h e r e he held office at the time of the c o m m i s s i o n of the offense or w h e r e the libelous article is p r i n t e d a n d first p u b l i s h e d a n d in case one of the offended p a r t i e s is a p r i v a t e i n d i v i d u a l , the action shall be filed in the C o u r t of F i r s t Instance of the p r o v i n c e or city w h e r e he actually resides at the time of the commission of the offense or w h e r e the libelous matter is printed a n d first p u b l i s h e d : Provided, further, T h a t the civil action shall be filed in the same c o u r t w h e r e the c r i m i n a l action is filed a n d vice versa: Provided, furthermore, T h a t the court w h e r e the c r i m i n a l action or civil action for d a m a g e s is first filed, shall a c q u i r e j u r i s d i c t i o n to the exclusion of other courts: And provided, finally, T h a t this a m e n d m e n t shall not apply to cases of w r i t t e n defamations, the civil and/or criminal actions to w h i c h h a v e b e e n filed in court at the time of the effectivity of this l a w . P r e l i m i n a r y investigation of criminal actions for written defamations as p r o v i d e d for in the chapter shall be conducted by the p r o v i n c i a l or city fiscal of the province or city, or by the m u n i c i p a l court of the city or capital of the province w h e r e such actions m a y be instituted in accordance w i t h the provisions of this article. 987


No criminal action for defamation w h i c h consists in the imputation of a crime w h i c h cannot be prosecuted de officio shall b r o u g h t except at the instance of a n d u p o n complaint expressly filed by the offended party. (As amended by R.A. No. 1289, June 15, 1955; andR.A. No. 4363, June 19, 1965.) •

Who are the persons responsible for defamatory publications? Article 360 enumerates the persons responsible: 1.

A n y person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means; and

2.

The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof.

It is curious that the ones most obviously responsible for the publication of the a l l e g e d l y offensive news report — the editorial staff and the periodical itself — w e r e not impleaded. T h e charge w a s l e v e l e d against the petitioner and, "curio" still, his clients w h o h a v e nothing to do w i t h the editorial policies of the newspaper. T h e non-inclusion of the periodicals w a s not at all convincing pretense of respect for freedom of expression. (Vasquez v. CA, supra) What court has jurisdiction in libel case? W h i l e libel is punishable by imprisonment of 6 months and 1 day to 4 years and 2 months which imposable penalty is lodged within the Municipal T r i a l Courts' jurisdiction under R . A . 7691, said law, however, excludes therefrom "cases falling within the exclusive original jurisdiction of the Regional Trial Court." R T C s have the exclusive jurisdiction over libel cases, hence, the expanded jurisdiction conferred by R . A . 7691 to inferior courts cannot be applied to libel cases. istrative Order N o . 104-96 " D E S I G N A T I O N OF SPECIAL COURTS FOR K I D N A P P I N G , ROBBERY, C A R N A P P I N G , DANGEROUS DRUGS CASES A N D OTHER HEINOUS CRIMES; I N T E L L E C T U A L P R O P E R T Y RIGHTS V I O L A T I O N S A N D J U R I S D I C T I O N I N L I B E L CASES,"

LIBEL

October 21, 1996 by the Chief Justice upon the advice and consent of the Court En Banc, provides, that "Libel cases shall be tried by the Regional T r i a l Courts having jurisdiction over them to the exclusion of the metropolitan Trial Courts, Municipal T r i a l Courts in Cities, Municipal Trial Courts and Municipal Circuit T r i a l Courts." (People v. MTC of QC, December 1996) What is the effect of R.A. 7691 on the jurisdiction of the courts over libel cases? N o n e . T h e applicable law is still Article 360 which categorically provides that jurisdiction over libel cases are lodged w i t h the Courts of First Instance, now R T C . For, although R . A . 7691 was enacted to decongest the clogged dockets of the R T C by expanding the jurisdiction of first level courts, said l a w is of a general character. Even if it is a later enactment, it does not alter the provision of Article 360, a law of a special nature. " L a w s vesting jurisdiction exclusively with a particular court, are special in character, and should prevail over the Judiciary A c t defining the jurisdiction of other courts (such as the Court of First Instance) which is a general law." A later enactment like R . A . 7691 does not automatically override an existing law, because in case of conflict between a general law and a special law, the latter must prevail regardless of the dates of their enactment. Jurisdiction conferred by a special law on the R T C must therefore prevail over that granted by a general law on the M T C . (Manzano v. Valera, G.R. No. 122068, July 8, 1998) Moreover, from the provisions of R . A . 7691, there seems to be no manifest intent to repeal or alter the juris-diction in libel cases. If there was such intent, then the amending law should have clearly so indicated because implied repeals are not favored. As much as possible, effect must be given to all enactments of the legislature. A special law cannot be repealed, amended or altered by a subsequent general law by mere implication. Furthermore, for an implied repeal, a pre-condition must be found, that is, a substantial conflict should exist between the new and prior laws. Absent an express repeal, a subsequent law cannot be construed as repealing a prior one unless an irreconcilable inconsistency

989


or repugnancy exists in the of the new and the old laws. The two laws, in brief, must be absolutely incompatible. In the law which broadened the jurisdiction of the first level courts, there is no absolute prohibition barring R T C s from taking cognizance of certain cases over which they have been priorly granted special and exclusive jurisdiction. Such grant to the R T C was categorically contained in the first sentence of the amended Section 32 of B.P. Big. 129. T h e inconsistency referred to in Section 6 of R . A . 7691, therefore, does not apply to cases of criminal libel, (id.) Supreme Court istrative Order N o . 104-96 issued 21 October 1996 settled the matter with finality, (id.) Where is the venue of libel cases? T h e possible venues for the institution of the criminal and the civil aspects of libel cases are concisely outlined in Article 360 as amended by R . A . 4363. (Macasaet v. People, G.R. No. 156747, February 23, 2005) Agbayani v. Sayo, G.R. No. summarized the rules as follows:

L-47880, April 30,

1979,

1.

Whether the offended party is a public official or a private person, the criminal action may be filed in the Court of First Instance (now R T C ) of the province or city where the libelous article is printed and first published.

2.

If the offended party is a private individual, the criminal action may also be filed in the R T C of the province where he actually resided at the time of the commission of the offense.

3.

If the offended party is a public officer whose office is in Manila at the time of the commission of the offense, the action may be filed in the R T C of Manila.

4.

If the offended party is a public officer holding office outside of Manila, the action may be filed in the R T C of the province or city where he held office at the time of the commission of the offense.

In the case at bar, private respondent was a private citizen at the time of the publication of the alleged libelous article, hence, he could only file his libel suit in the City of Manila where Abante was first published or in the province 990

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or city where he actually resided at the time the purported libelous article was printed. T h e allegations contained in the information are utterly insufficient to vest jurisdiction on the Quezon City court. Other than perfunctorily stating "Quezon City" at the beginning of the information, the information did not indicate whether or not the jurisdiction of R T C Quezon City was invoked either because Abante was printed in that place or private respondent was a resident of said city at the time the claimed libelous article came out. As these matters deal with the fundamental issue of the court's jurisdiction, either one of these statements must be alleged in the information itself and the absence of both from the very face of the information renders the latter fatally defective. (Macasaet v. People, supra) •

What should the information contain to vest jurisdiction on a particular court? In order to obviate controversies as to the venue of the criminal action for written defamation, the complaint or information should contain allegations as to whether: 1.

at the time the offense was committed, the offended party was a public officer or a private individual; and

2.

where he was actually residing at that time.

Whenever possible, the place where the written defamation was printed and first published should likewise be alleged. That allegation would be a sine qua non if the circumstance as to where the libel was printed and first published is used as the basis of the venue of the action, (id.) W h i l e the general rule is that the information must set out the particular defamatory words verbatim and as published and that a statement of their substance is insufficient, Eguia, 38 Phil. 857, held that a defect in this regard may be cured by evidence. In this case, the article was presented in evidence, but petitioner failed to object to its introduction. Instead, he engaged in the trial of the entire article, not only of the portions quoted in the information, and sought to prove it to be true. In doing so, he waived objection based on the defect in the

991


information. Consequently, he cannot raise this issue at this late stage. (Vasquez, supra) A r t . 361. Proof of the truth. — In every criminal prosecution for libel, the truth m a y be given in evidence to the court a n d if it a p p e a r s that the matter c h a r g e d as libelous is true, a n d , moreover, that it w a s p u b l i s h e d w i t h g o o d motives a n d for justifiable ends, the defendants shall be acquitted. P r o o f of the truth of an i m p u t a t i o n of an act or omission not constituting a crime shall not be itted, unless the imputation shall h a v e b e e n m a d e a g a i n s t G o v e r n m e n t employees w i t h respect to facts r e l a t e d to the d i s c h a r g e of their official duties. In such cases if the d e f e n d a n t p r o v e s the truth of the imputation m a d e b y h i m , h e shall b e acquitted. •

When is the truth of a defamatory statement a defense? Article 354 provides: Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1.

A private communication made by any person to another in the performance of any legal, moral or security duty; and

2.

A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

and the Constitution allows: 3.

Fair commentaries on matters of public interest. (Flor v. People, G.R. No. 139987, March 31, 2005). These exceptions are qualifiedly privileged statements. T h e question is whether from the fact that the statements were defamatory, malice can be presumed so that it was incumbent upon petitioner to overcome such presumption. Under Article 361, if the defamatory 992

LIBEL

statement is made against a public official with respect to the discharge of his official duties and functions and the truth of the allegation is shown, the accused will be entitled to an acquittal even though he does not prove that the imputation was published with good motives and for justifiable ends. In denouncing the barangay chairman, petitioner and the other residents of the Tondo Foreshore A r e a were not only acting in their self-interest but engaging in the performance of a civic duty to see to it that public duty is discharged faithfully and well by those on whom such duty is incumbent. The recognition of this right and duty of every citizen in a democracy is inconsistent with any requirement placing on him the burden of proving that he acted with good motives and for justifiable ends. (Vasquez v. CA) The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. T h e sharp incision of its probe relieves the abscesses of officialdom. M e n in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and the dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less than the State, so must expected criticism be borne for the common good. Rising superior to any official or set of officials, to the Chief Executive, to the Legislature, to the Judiciary — to any or all the agencies of Government — public opinion should be the constant source of liberty and democracy. (Jalandoni v. Drilon, G.R. No. 11523940, March 2, 2000) May evidence proving the truthfulness of the imputation be received? N o . Evidence proving the imputation is objectionable because such is inissible. The exceptions are only in two cases:

993


1.

Imputation against a public officer and the same relates to his public function. (Article 361, paragraph 2[b]). The offender may adduce evidence of the truth of such imputation; and

2.

Imputation of a crime against any person, (id., par. 2[a].)

But the mere fact that the truth is proved, the accused must further show that he acted out of good motives and justifiable end. Truth alone is not enough. In all other cases, truth is not a defense at all. (Article 361, N o . 1; Article 354) •

What is the nature of fair commentaries on matters of public interest? They are privileged and constitute a valid defense in an action for libel or slander. T h e doctrine of fair comment means that while in general every discernible imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of an opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts. (People v. Velasco, 40 O.G.)

•

W h o is a public figure? He is one who, by his accomplishments, fame, mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character has become a 'public personage.' He is in other words a celebrity. To be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. T h e list is however broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, infant

LIBEL

prodigy, and no less a personage than the Great Exalted Ruler of the lodge. It includes, in short, anyone who has arrived at a position where the public attention is focused upon him as a person. (Ayers Production v. Capulong, G.R. Nos. 82380 and 82396, April 29, 1988) The F N L C T was an undertaking infused with public interest. It was promoted as a t project of the government and the private sector, and organized by top government officials and prominent businessmen. For this reason, it attracts media mileage and drew public attention not only to the conference itself but to the personalities behind as well. As its Executive Director and spokesman, private respondent consequently assumed the status of a public figure. But assuming that he would not qualify as a public figure, it does not follow that he could not validly be the subject of a public comment even if he was not a public official or at least a public figure for he could be, as long as he was involved in a public issue. If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or because in some sense the individual does not voluntarily choose to become involved. T h e public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect and significance of the conduct, not the participant's prior anonymity or notoriety. (Borjal v. CA, G.R. No. 126466, January 14, 1999) A r t . 362. Libelous remarks. — L i b e l o u s r e m a r k s or comments connected w i t h the m a t t e r p r i v i l e g e d u n d e r the provisions of A r t i c l e 354, if m a d e w i t h malice, shall not exempt the a u t h o r thereof n o r the editor or m a n a g i n g editor of a n e w s p a p e r f r o m c r i m i n a l liability. •

What is malice in law? It is malice which the law presumes to be present where the offender cannot establish justifiable reasons or good motives therefor. Hence, the complainant here does not have to prove the existence because it is presumed by law.

•

When is malice presumed? An imputation is legally malicious if done without any reason that would justify a normally conscientious man in 995


so making the imputation. While the law presumes every defamatory imputation to be malicious, there are exceptions to this rule. For instance, respondent's inter-office memorandum falls within the ambit of privileged communication rule. Carreon was Fortich's immediate supervisor. He was charged to enforce company rules and policies, including the duty to undertake initial investigation of possible irregularities in customer s. (Fortich v. CA, February 1997) •

What is malice in fact? It is malice which the complainant has to prove to exist. T h e offended must prove, w h e r e malice in l a w does not exist, the existence of malice in order to hold the offender criminally and c i v i l l y liable. T h i s malice is r e l e v a n t in qualified p r i v i l e g e d statements. E v e n if malice in fact actually exists and is proved, no criminal liability is incurred if the statements are absolutely p r i v i l e g e d in character.

•

What are privileged statements? Absolutely privileged statements are not actionable at all; qualified privileged statements require that the offended establish malice in fact. Absolutely privileged statements are those which in law is totally not actionable whether civilly or criminally. Statements by lawyers in pleadings which are defamatory may be absolutely privileged in character once he established that such statements are relevant to the case. Qualifiedly privileged statement allows proof of malice in fact. Even if malice in fact exists such can be adduced only if the privileged character of the statement is qualified. Defamatory statements must be quoted verbatim and the publication thereof alleged in the information. Motion to quash is proper since it will be a mere waste of time to go through the trial if on the face of the instrument, it is clear that the statement is relevant to the case. For instance — allegation of loose morals of the mother and sisters in a child custody case filed by the father. (Espiritu v. CA, G.R. No. 115640, March 15, 1995)

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•

What is the purpose of the doctrine of privileged communication? T h e doctrine has a practical purpose. As enunciated in Deles v. Aragona, Jr., March 28, 1969, the privilege is not intended so much for the protection of those engaged in the public service and in the enactment and istration of law, as for the promotion of public welfare, the purpose being that of the legislature, judges of courts, jurors, lawyers and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of criminal prosecution or an action for damages. (Navarette v. CA, G.R. No. 124245, February 2000, 325 SCRA)

•

In determining the issue of relevancy, what has been the attitude of the courts? In determining the issue of relevancy of statements made in judicial proceedings, courts have adopted a liberal attitude by resolving all doubts in favor of relevancy. People v. Aquino emphasized that "it is the rule that what is relevant or pertinent should be liberally considered to favor the writer and the words are not to be scrutinized with microscopic intensity." In this case, the allegations made by private respondent in her Amended Complaint stand the test of relevancy. T h e words "forging," "malicious and fraudulent" and "falsified" are clearly pertinent to the cause of action of private respondent which is to annul the Deed of Sale with Right of Repurchase wherein private respondent's signature was forged by an impostor, and to recover damages resulting from such forgery. The words "stupid," "bastards," "swindlers," and "plunderers" uttered by private respondent did not specifically pertain to petitioner to sufficiently identify him as the object of defamation, such identifiability being an element of a libelous imputation, (id.)

•

What is the "rule of actual malice"? Even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This 997


rule of actual malice was announced in the landmark case of New York Times v. Sullivan. In this case, the prosecution failed to prove not only that the charges made by petitioner were false but also that petitioner made them with knowledge of their falsity or with reckless disregard of whether they were false or not. A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for making such allegations would not only be contrary to Article 361. It would, above all, infringe on the constitutionally guaranteed freedom of expression. Such a rule would deter citizens from performing their duties as of a self-governing community. Without free speech and assembly, discussions of our most abiding concerns as a nation would be stifled. As Justice Brandeis has said, "public discussion is a political duty" and the "greatest menace to freedom is an inert people." (Vasquez, supra) What is the nature of statements made in judicial proceedings? It is a settled that statements made in the course of judicial proceedings are absolutely privileged. This absolute privilege remains regardless of the defamatory tenor and the presence of malice if the same are relevant, pertinent or material to the cause in hand or subject of the inquiry. Thus, the person who made these statements such as the judge, l a w y e r or witness does not thereby incur the risk of being found liable thereon in a criminal prosecution or an action for the recovery of damages. Sarcastic, pungent, and harsh allegations in a pleading although tending to detract from the dignity that should characterize proceedings in courts of justice, are absolutely privileged, if relevant to the issue. (Navarette v. CA, supra) Does an inter-office memo partake of the nature of privileged communication? Y e s . Such memorandum report was an official act done in good faith, an honest innocent statement arising from a moral and legal obligation which respondent owed to the company in the performance of his duties. T h e rule on privileged

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communications allows the latitude of expression embodied in the respondent's second memorandum (Fortich v. CA, February 1997). •

When a communication is privileged, what happens to the presumption of malice in defamatory imputations? W h i l e generally malice can be presumed from defamatory words, the privileged character of a communication destroys the presumption of malice. T h e onus of proving actual malice lies on plaintiff. He must bring home to the defendant the existence of malice as the true motive of his conduct. Furthermore, to be considered malicious, the libelous statement must be shown to have been written or published with the knowledge that they are false or in reckless disregard or whether they are false or not. "Reckless disregard of what is false or not" means that the defendant entertains serious doubt as to the truth of the publication, or that he possesses a high degree of awareness of their probable falsity. (Borjal v. CA)

•

How should imputations against public figures be treated? Even assuming that the contents of the articles are false, mere error, inaccuracy, or even falsity does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good faith and reasonable care, the press should not be held to , to a point of suppression, for honest mistakes or imperfections in the choice of the language. There must be some room for misstatement of facts as well as for misjudgment. Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy. To avoid self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. It is for the same reason that the N e w York Times doctrine requires that liability for defamation of a public official or public figure may not be imposed in the absence of proof of "actual malice" on the part of the person making the libelous statement, (id)

999


What is the requirement before public officers can demand damages from of the press? It must be shown that the statement was made with actual malice — with knowledge that it was false or with reckless disregard of whether it was false or not. (Rule of actual malice or New York Times Test) (Flor v. People, supra) How is reckless conduct measured? Reckless conduct is not measured by whether a prudent man would have published or would have investigated before publishing. There must be sufficient evidence that the defendant in fact entertained serious doubts as to the truth of his publication. False statements alone are not actionable. Maliciousness may be shown only through knowledge of falsity or reckless disregard of truth or falsity, (id.) W h o has the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for making such allegations? It cannot be placed on the accused as it would be contrary to Article 361 and more importantly it would infringe on the constitutional freedom of expression, (id.) Can the headline alone of the newspaper be libelous? N o . It must be read and construed with the language that follows. T h e wording of the headline may contain exaggeration but the same represents a fair index of the contents of the news story accompanying it. (id.)

1000

Chapter Two INCRIMINATORY MACHINATIONS A r t . 363. Incriminating innocent person. — A n y p e r s o n w h o , b y a n y act not c o n s t i t u t i n g p e r j u r y , shall directly i n c r i m i n a t e o r i m p u t e t o a n i n n o c e n t p e r s o n the c o m m i s s i o n of a c r i m e , s h a l l be p u n i s h e d by arresto mayor. A r t . 364. Intriguing against honor. — T h e p e n a l t y of arresto menor or fine not e x c e e d i n g 200 p e s o s s h a l l be i m p o s e d for a n y i n t r i g u e w h i c h h a s f o r its p r i n c i p a l p u r p o s e , t o b l e m i s h the h o n o r or r e p u t a t i o n of a p e r s o n . •

What is intriguing against honor?

Intriguing against honor is also known as tsismis. The author is unknown, the offender appears to be repeating only what he heard others say. The offender does not really want to assume responsibility for the statement but imputes it to another from whom he learned the statement ('They said . . ."). Otherwise, the crime is slander where the source of the statement is known. •

What is incriminating innocent person?

It is incriminating or imputing to an innocent person the commission of a crime. This is committed, for instance, by planting evidence on the subject innocent person. This practice is resorted to enable peace officers to arrest the subject, in which case the arrest is unlawful. In Morales v. Enrile, G.R. No. L-61016, April 26, 1983: "Where there is no justification for the arrest, the Public Officer can be liable for arbitrary detention or unlawful arrest." Planting of evidence or incriminating innocent person is committed by performing an act by which the offender directly incriminates or imputes to an innocent person the commission of a crime. (Huggland v. Lantin, A.M. No. MTJ-98-1153, February 29, 2000) 1001


Illustrations: 1. Jaime took the wallet from the pants of Rogelio and put it into the pocket of Mario. Thereby, Jaime is imputing that the latter committed theft. 2.

S P O l saw Joey on his way home. He stopped and frisked him. While doing so, he planted a marijuana stick and on that basis arrested him.

TITLE FOURTEEN QUASI-OFFENSES Sole Chapter CRIMINAL N E G L I G E N C E A r t . 365. Imprudence and negligence. — A n y p e r s o n w h o , b y reckless i m p r u d e n c e , shall commit a n y act w h i c h , h a d it b e e n intentional, w o u l d constitute a g r a v e felony, shall suffer the p e n a l t y of arresto mayor in its m a x i m u m p e r i o d to prision correccional in its m e d i u m p e r i o d ; if it w o u l d h a v e constituted a less g r a v e felony, the penalty of arresto mayor in its m i n i m u m a n d m e d i u m p e r i o d s shall be imposed; if it w o u l d h a v e constituted a light felony, the penalty of arresto m e n o r in its m a x i m u m p e r i o d shall be imposed. A n y p e r s o n w h o , b y simple i m p r u d e n c e o r negligence, shall commit an act w h i c h w o u l d , o t h e r w i s e , constitute a g r a v e felony, shall suffer the penalty of arresto mayor in its m e d i u m a n d m a x i m u m p e r i o d s ; if it w o u l d h a v e constituted a less serious felony, the p e n a l t y of arresto mayor in its m i n i m u m p e r i o d shall b e imposed. W h e n the execution of the act c o v e r e d by this article shall h a v e only resulted in d a m a g e to the p r o p e r t y of another, the offender shall be p u n i s h e d by a fine r a n g i n g from an a m o u n t e q u a l to the value of such d a m a g e s to three times such v a l u e , b u t w h i c h shall in no case be less than 25 pesos. A fine not exceeding 200 pesos a n d censure shall be imposed u p o n any p e r s o n w h o , b y simple imprudence or negligence, shall cause some w r o n g which, if done maliciously, w o u l d h a v e constituted a light felony. In the imposition of these penalties, the courts shall exercise their sound discretion, without r e g a r d to the rules p r e s c r i b e d in Article 64. T h e provisions contained in this article shall not be applicable: 1003


1.

W h e n the penalty p r o v i d e d for the offense is equal to or l o w e r than those p r o v i d e d in the first t w o p a r a g r a p h s of this article, in w h i c h case the courts shall impose the penalty next l o w e r in d e g r e e than that w h i c h should be imposed, in the p e r i o d w h i c h they may d e e m p r o p e r to a p p l y .

2.

W h e n , b y i m p r u d e n c e o r negligence a n d w i t h violation of the A u t o m o b i l e L a w (Act No. 3992), the death of a p e r s o n shall be c a u s e d , in w h i c h case the defendant shall be p u n i s h e d by prision correccional i n its m e d i u m a n d m a x i m u m p e r i o d s .

Reckless i m p r u d e n c e consists in v o l u n t a r i l y , b u t without malice, d o i n g o r failing t o d o a n act f r o m w h i c h material d a m a g e results b y r e a s o n o f i n e x c u s a b l e l a c k o f precaution on the p a r t of the p e r s o n p e r f o r m i n g or failing to p e r f o r m such act, t a k i n g into c o n s i d e r a t i o n his e m p l o y m e n t or occupation, d e g r e e of intelligence, p h y s i c a l conditions a n d other circumstances r e g a r d i n g p e r s o n s , time a n d place. S i m p l e i m p r u d e n c e consists in the l a c k of p r e c a u t i o n d i s p l a y e d in those cases in w h i c h the d a m a g e i m p e n d i n g to be c a u s e d is not i m m e d i a t e n o r the d a n g e r c l e a r l y manifest. T h e penalty next h i g h e r i n d e g r e e t o those p r o v i d e d for i n this article shall b e i m p o s e d u p o n the o f f e n d e r w h o fails to lend on the spot to the i n j u r e d p a r t i e s such h e l p as m a y be in his h a n d s to give. (As amended by Rep. Act No. 1790, approved June 21, 1957). •

What is reckless imprudence.

imprudence?

Compare

it

with

simple

Reckless imprudence is the inexcusable lack of precaution of a person taking into consideration his ( a ) employment or occupation, (b) degree of intelligence, (c) physical condition and (d) other circumstances regarding time, person, and place. Such inexcusable negligence results in material damage to another. (Pangonorom v. People, G.R. No. 143380, April 11, 2005) T h e gravamen of the offense of simple negligence is the failure to exercise the diligence necessitated or called for by situation which was not immediately life-destructive but which 1004

C R I M I N A L NEGLIGENCE

culminated, as in the present case, in the death of a person three days later. Simple negligence penalized under Article 365 is denned as a mere lack of prevision in a situation where either the threatened harm is not immediate or the danger not openly visible. (Carillo v. People, 47 SCAD) Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate or the danger clearly manifest. In reckless imprudence, the impending damage is immediate and the danger manifest. T h e issue of whether or not a person is negligent is a question of fact. (Pangonorom v. People) •

What are the elements of reckless imprudence? T h e elements of reckless imprudence are:

•

(1)

T h e offender does or fails to do an act;

(2)

T h e doing or the failure to do that act is voluntary;

(3)

Such is without malice;

(4)

Material damage results from the reckless imprudence; and

(5)

There is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place. (People v. Agliday, G.R. No. 140794, October 16, 2001)

Discuss the nature of culpa or imprudence. Culpa here is itself a crime whereas under Article 3, it is merely a modality of committing a crime. In the former, it is the imprudence or criminal negligence that is punished and the penalty is based on the result of that imprudence, whether grave, less grave or light and whether resulting in damage to property only. Regardless of what consequences resulted in reckless imprudence or simple negligence, only one information should be prepared because all the crimes will be included, 1005


the grave or less grave will be complexed while the slight will be subject of separate allegation. Reason: T h e r e is just one negligence, and the filing of several informations for a single negligence will amount to splitting the negligence. (Reodica v. CA, G.R. No. 125066, July 8, 1998) •

Does the principle of complex crimes apply to imprudence? Yes. If a reckless, imprudent or negligent act results in two or more grave or less grave felonies, a complex crime is committed. But where one of the resulting offenses in criminal negligence constitutes a light felony, there is no complex crime, thus: "Applying Article 48, it follows that if one offense is light, there is no complex crime. T h e resulting offenses may be treated as separate or the light felony may be absorbed by the grave felony. Thus, the light felonies of damage to property and slight physical injuries, both resulting from a single act of imprudence, do not constitute a complex crime. T h e y cannot be charged in one information. They are separate offenses subject to distinct penalties." "Where the single act of imprudence resulted in double less serious physical injuries, damage to property amounting to P10,000 and slight physical injuries, a chief of police did not err in filing a separate complaint for the slight physical injuries and another complaint for the lesiones menos graves and damage to property." (id.)

*

What is the proper penalty for imprudence resulting to slight physical injuries? According to the first paragraph of the A r t i c l e 365, the penalty for reckless imprudence resulting in slight physical injuries, a light felony, is arresto menor in its maximum period, with a duration of 21 to 30 days. If the offense of slight physical injuries is, however, committed deliberately or with malice, it is penalized under Article 266 with arresto menor with a duration of 1 day to 30 days. Plainly, the penalty under Article 266 may be either lower than or equal to the penalty prescribed under the first paragraph of Article 365. This being the case, the exception in the sixth paragraph of Article 365 applies. Hence, the proper penalty for reckless imprudence resulting in slight physical injuries is public censure, this being the penalty next lower in degree to arresto menor. (id.) 1006


•

What is the proper penalty for imprudence resulting to damage to property only? As to reckless imprudence resulting in damage to property in the amount of P8,542, the third paragraph of Article 365, which provides for the penalty of fine, does not apply since the reckless imprudence did not result in damage to property only. W h a t applies is the first paragraph of Article 365, which provides for arresto mayor in its minimum and medium periods for an act committed through reckless imprudence which, had it been intentional, would have constituted a less grave felony. If the damage to the extent of P8,542 w e r e caused deliberately, the crime would have been malicious mischief under Article 329, and the penalty would then be arresto mayor in its medium and maximum periods which is higher than that prescribed in the first paragraph of Article 365. If the penalty under Article 329 w e r e equal to or lower than that provided for in the first paragraph, then the sixth paragraph of Article 365 would apply, i.e., the penalty next lower in degree, which is arresto menor in its maximum period to arresto mayor in its minimum period or imprisonment from 21 days to 2 months. Accordingly, the imposable penalty for reckless imprudence resulting in damage to property to the extent of P8,542 would be arresto mayor in its minimum and medium periods, which could be anywhere from a minimum of one month and one day to a maximum of four months, at the discretion of the court, since the fifth paragraph of Article 365 provides that in the imposition of the penalties therein provided "the courts shall exercise their sound discretion without regard to the rules prescribed in Article 64." (id.) •

Does subsidiary penalty apply to reckless imprudence? Y e s . If the offender cannot pay the fine for damage to property resulting from the negligence, he will suffer subsidiary imprisonment provided that the same is expressed in the sentence. Under Article 39, if the offense is grave or less grave, subsidiary imprisonment should not be more than 6 months; if light felony, not more than 15 days.

1007


In cases of abandonment of the victim, what provision of the Code shall govern? The qualifying circumstance in the last paragraph (abandonment) resulting to a penalty next higher in degree applies in cases of imprudence resulting to injuries. If the predicate of the mishap is accident, abandonment is a crime under Article 275(2). Relate reckless imprudence to malice. Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which material damage results by reason of an inexcusable lack of precaution on the part of the person performing or failing to perform such act. Malice is the antithesis of reckless imprudence. Once malice is proved, recklessness disappears. W h e r e the accused took his gun and shot his son, imprudence is out of the question. A deliberate intent to do an unlawful act is inconsistent w i t h reckless imprudence. (People v. Agliday) Give examples of reckless acts which result to homicide. 1.

Exhibiting a loaded revolver to a friend, w h o got killed by the accidental discharge arising from negligent handling;

2.

Discharging a firearm from the window of one's house and killing a neighbor who, at just that moment, leaned over a balcony front; and

3.

Firing a .45 caliber pistol twice in the air to stop a fist fight; and, as the fight continued, firing another shot at the ground but, after the bullet ricocheted, hit a bystander who died thereafter, (id.)

Belbes, G.R. No. 124670, June 21, 2000, found no reckless imprudence in the shooting of a student who, in the act of destroying the school's bamboo w a l l , had been caught by a policeman who was responding to a report that somebody was causing trouble in a school affair. T h e policeman's action cannot be characterized as reckless imprudence, because the shooting was intentional. T h e accused had intended to fire at the victim and in fact hit the latter, (id.) 1008


To convict for medical malpractice, what evidence is required? In accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in his patients, he has a duty to use at least the same l e v e l of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. Inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to the conclusion as to causation. (Cruz v. CA, November 1997) Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances. In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would have done, or that he did something that a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the patient. (Garcia-Rueda v. Pascasio, 278 SCRA). There are thus four elements involved in medical negligence cases, namely: duty, breach, injury, and proximate causation. (Reyes v. Sis. of Mercy Hospital, October 2000) What is the exception to the requirement of expert witness for medical negligence? Expert testimony may be dispensed with under the doctrine of res ipsa loquitur. Ramos, G.R. No. 124354, December 29, 1999 said: although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitor is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within 1009


the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitor is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. W h e r e common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. W h e n the doctrine is appropriate, all that the patient must do is prove a nexus b e t w e e n the particular act or omission complained of and the injury sustained w h i l e under the custody and m a n a g e m e n t of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is a l l o w e d because there is no other w a y , under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. (id) Cite examples when the res ipsa loquitur rule was applied. 1.

L e a v i n g of a foreign object in the body of the patient after an operation;

2.

Injuries sustained on a healthy part of the body which was not under, or in the area, of treatment;

3.

Removal of the wrong part of the body when another part was intended;

1010


»

4.

Knocking out a tooth while a patient's jaw was under anesthetic for the removal of his tonsils; and

5.

Loss of an eye while the patient was under the influence of anesthetic, during or following an operation for appendicitis.

What are the requisites for the application of res ipsa loquitur? (1)

T h e accident was of kind which does not ordinarily occur unless someone is negligent;

(2)

T h e instrumentality or agency which caused the injury was under the exclusive control of the person in charge; and

(3)

T h e injury suffered must not have been due to any voluntary action or contribution of the person injured.

Res ipsa loquitur is not rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not such as would ordinarily have been followed if due care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or a surgeon which involves the merits of a diagnosis or of a scientific treatment. T h e physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. •

Is there Double Homicide through Reckless Imprudence with violation of the Motor Vehicle Law (R.A. 4136)? There is no such offense. The trial court was misled to sentence the accused to suffer two indeterminate penalties of four months and one day of arresto mayor, as minimum to 1011


three years, six months and 20 days of prision correccional, as maximum. This is erroneous because in reckless imprudence cases, the actual penalty for criminal negligence bears no relation to the individual willful crime or crimes committed, but is set in relation to a whole class or series of crimes. (Rafael Reyes Trucking v. People, G.R. No. 129029, April 3, 2000) •

What is the rule on double recovery in negligence cases? In negligence cases, the aggrieved party has the choice between (1) an action to enforce civil liability arising from crime under Article 100 of the R P C ; and (2) a separate action for quasi-delict under Article 2176 of the CC. Once the choice is made, the injured party cannot avail himself of any other remedy because he may not recover damages twice for the same negligent act or omission of the accused. This is the rule against double recovery. In other words, "the same act or omission can create two kinds of liability on the part of the offender; that is, civil liability ex delicto, and civil liability quasi delicto" either of which may be enforced against the culprit, subject to the caveat under Article 2177 of the Civil Code that the offended party cannot recover damages under both types of liability." Private respondents sued Rafael Reyes Trucking Corporation to be vicariously liable for the fault or negligence of the driver. Under the law, this vicarious liability of the employer is founded on at least t w o specific provisions, the first is expressed in Article 2176 in relation to Article 2180 of the CC, which would allow an action predicated on quasi-delict to be instituted by the injured party against the employer for an act or omission of the employee and would necessitate only a preponderance of evidence to prevail. H e r e , the liability of the employer for the negligent conduct of the subordinate is direct and primary, subject to the defense of due diligence in the selection and supervision of the employee. T h e enforcement of the judgment against the employer in an action based on Article 2176 does not require the employee to be insolvent since the nature of the liability of the employer with that of the employee, the two being statutorily considered t tortfeasors, is solidary. T h e second, predicated on Article 103 of the R P C , provides that an employer may be held subsidiarily civilly liable for a 1012


felony committed by his employee in the discharge of his duty. This liability attaches when the employee is convicted of a crime done in the performance of his work and is found to be insolvent that renders him unable to properly respond to the civil liability adjudged. (Rafael Reyes Trucking Corp. v. People, G.R. No. 129029, April 3, 2000) •

Should the offender whose single reckless act resulted to multiple offenses be charged with only one offense pursuant to the prohibition against multiplicity or duplicity of charges? N o . Duplicity or multiplicity of charges means a single complaint or information charges more than one offense. The Rules prohibit the filing of such information to avoid confusing the accused in preparing his defense. Here, however, the prosecution charged each petitioner with four offenses, with e a c h I n f o r m a t i o n c h a r g i n g o n l y o n e o f f e n s e . Thus, petitioners erroneously invoke duplicity of charges as a ground to quash the informations, (honey v. People, G.R. No. 152644, February 10, 2006)

•

What is the limitation to the rule that a single act or incident offending against two or more unrelated provisions of law justify prosecution for more than one offense? A single act or incident might offend against two or more entirely distinct and unrelated provisions of law thus justifying the prosecution of the accused for more than one offense (Nierras v. Dacuycuy, January 11, 1990, G.R. No. 595668). The only limit to this rule is the Constitutional prohibition that no person shall be twice put in jeopardy of punishment for "the s a m e o f f e n s e . " Doriquez (133 Phil. 295) held that two (or more) offenses arising from the same act are not "the same" — xxx if one provision [of law] requires proof of an additional fact or element which the other does not, xxx. Phrased elsewise, where two different laws (or articles of the same code) define two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both offenses arise from the same facts, if each crime involves some important act which is not an essential element of the other. In the instant case, double jeopardy is not at issue because not all of its elements are present. P.D. 1067, P.D. 1013


984, R . A . 7942, and Article 365 of the R P C show that in each of these laws on which petitioners were charged, there is one essential element not required of the others, thus: In P . D . 1067 (Philippines Water Code), the gravamen of the offense is the absence of the proper permit to dump said mine tailings. P.D. 984 (Anti-Pollution L a w ) punishes the pollution itself. R . A . 7942 (Philippine Mining A c t ) , requires willful violation and gross neglect to abide by the and conditions of the Environmental Compliance Certificate. On the other hand, Article 365 penalizes the lack of necessary or adequate precaution, negligence, recklessness and imprudence to prevent damage to property. Consequently, the filing of the multiple charges against petitioners, although based on the same incident, is consistent with settled doctrine. (Loney v. People) •

Does a felony {malum in se) "absorb" an offense [malum prohibitum)? On petitioners' claim that the charge for violation of Article 365 "absorbs" the charges for violation of P . D . 1067, P . D . 984, and R . A . 7942, suffice it to say that a malum in se felony (such as reckless imprudence resulting in damage to property) cannot absorb mala prohibita crimes (such as those violating P . D . 1067, P . D . 984, and R . A . 7942). W h a t makes the former a felony is criminal intent (dolo) or negligence (culpa); what makes the latter crimes are the special laws enacting them. (Loney v. People) Petitioners erroneously contend that their prosecution contravenes the pronouncement in Relova that the law seeks to prevent harassment of the accused by "multiple prosecutions for offenses which though different from one another are nonetheless each constituted by a common set or overlapping sets of technical elements." T h e issue in Relova is whether the charging with theft of electric power under the R P C after accused had been acquitted of violating a City Ordinance penalizing the unauthorized installation of electrical wiring, violated his right against double jeopardy. It did, not because the offenses punished by those two laws were the same but because the act giving rise to the charges was punished by an ordinance and a national

1014


statute, thus falling within the Constitutional proscription against multiple prosecutions for the same act, thus: "The u n a u t h o r i z e d installation p u n i s h e d by the o r d i n a n c e [of B a t a n g a s City] is not the same as theft of electricity [ u n d e r the R e v i s e d P e n a l C o d e ] ; that the second offense is not an attempt to commit the first or a frustration thereof and that the second offense is not necessarily included in the offense charged in the first information." T h e b a s i c difficulty w i t h the petitioner's position is that it m u s t be e x a m i n e d , not u n d e r the t e r m s of the first sentence of A r t i c l e IV(22) of the 1973 Constitution, b u t r a t h e r under the second sentence of the same section. T h e first sentence of Article rV(22) sets forth the general rule: the constitutional protection against double jeopardy is not available where the second prosecution is for an offense that is different from the offense charged in the first or prior prosecution, although both the first and second offenses may be based upon the same act or set of acts. T h e second sentence of A r t i c l e I V ( 2 2 ) e m b o d i e s as exception to the gene r a l proposition: the constitutional protection, a g a i n s t d o u b l e j e o p a r d y is a v a i l a b l e a l t h o u g h the p r i o r offense c h a r g e d u n d e r an o r d i n a n c e be different f r o m the offense c h a r g e d subsequently und e r a national statute such as the Revised P e n a l C o d e , provided that both offenses s p r i n g f r o m the same act or set of acts. Thus, Relova is no authority for petitioners' claim against multiple prosecutions based on a single act not only because the question of double jeopardy is not at issue here, but also because, petitioners are being prosecuted for an act or incident punished by four national statutes and not by an ordinance and a national statute. In short, petitioners, if ever, fall under the first sentence of Section 21, Article I I I which prohibits multiple prosecution for the same offense, and not, as in Relova, for offenses arising from the same incident.

1015

N O T E S A N D CASES ON THE REVISED PENAL CODE Act No. 3815, as amended

LEONOR D. BOADO (Books 1 a n d 2) and Special Penal L a w s

Author: Comprehensive Reviewer in Criminal Law; Compact Reviewer in Criminal Law; and Notes and Cases on Special Penal Laws 2012 E D I T I O N

Published & Distributed by

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Philippine Copyright, 2008, 2012

ISBN-978-971-23-6244-6 No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devices, or in any other form, for distribution or sale, without the written permission of the author, except brief quotations in books, articles, reviews, or legal pleadings and in judicial or other official proceedings with proper citation. A n y copy of this b o o k w i t h o u t the c o r r e s p o n d i n g number and not bearing the signature of the author on this page either proceeds from an illegitimate source or is in possession of one w h o has no authority to dispose the same.

ALL RIGHTS RESERVED BY THE AUTHOR N

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PREFACE

In an attempt to make this book as compact as possible without sacrificing substance, syntax and -friendliness, I utilized abbreviations and paraphrased some rulings. Students will find the language of the book simple and comprehensible but still "legalese." A n d handy so they can carry the book anytime, anywhere for ease of reference. A g a i n , my best wishes to all students and reviewees in attaining their dream to become worthy of the august profession of lawyers. A n d to professionals whom I urge to make the law serve not shackle justice.

L.D.B.

iii

PREFACE This book is dedicated to all students of criminal law and to bar reviewees. The book is very simple and concise purposely to aid students to have a clear grasp of the law. This is not however intended to be a substitute for reading the Code itself and very importantly, the original cases decided by the Supreme Court. There is no substitute for that. Special thanks to Judge Ed Vincent Albano who encouraged me to go ahead with the publication of this work, to Former Justice Secretary Artemio G. Tuquero and to Vice-President for Legal Affairs of UE, Atty. Carlos M. Ortega for having influenced so much my legal education/profession, and to Mesdames Raquel Belandres, Olivia Vinas and Jennifer Boado who helped in the encoding. My best wishes to all students and reviewees in attaining their dream to become worthy of the august profession of lawyers. L.D.B.

This textbook was written under the auspices of the Professorial Chair program of the "Supreme Court Senior Associate Justice (now Chief Justice) Reynato S. Puno Library," College of L a w , University of the East. The funds for research and syllabus of this book were provided by the UE Foundation for Research and Advanced Studies, Inc. ( U E FRASI). November 2004. Antonio R. Tupaz Dean U.E. College of Law

iv

CONTENTS Preface Fundamental Principles 1. What is criminal law? 2. What are the constitutional limitations on penal laws?.... 3. Describe due process as applied to penal laws 4. Who are entitled to the mantle of due process of law? 5. What is the effect of violation of the due process clause? .. 6. What makes a penalty cruel and unusual? 7. What is an ex post facto law? 8. Give examples of ex post facto law 9. Give examples of laws not covered by the ex post facto clause? 10. What is a bill of attainder? Why is it constitutionally proscribed? 11. What are the characteristics of penal law? 12. What is the generality characteristic of penal law? 13. Describe the territoriality characteristic of penal law 14. What does prospectivity rule mean? 15. Does the prospectivity rule cover only laws? 16. What effect does the court's interpretation upon a written law have? 17. What is the rationale against retroactivity of laws? 18. Enumerate the different philosophies underlying the criminal law system 19. Distinguish the classical (juristic) from the positivist (realistic) 20. What is meant by the ecclectic (or mixed) philosophy? 21. What does the utilitarian theory believe on the function of punishment? 22. When an act is perverse, but there is no law that punishes it, is there a crime committed? 23. What is the rule in the interpretation of penal laws in relation to the accused's culpability?

3 4 5 5 6 6 7 7 7 8 8 8 9 11 11 H 12

24.

25.

26. 27. 28. 29. 30. 31.

32. 33. 34. 35. 36. 37. 38.

39.

w n a i is t n e e q u i p o i s e r u i e :

What is the relationship of presumption of law and prima facie evidence on the constitutional presumption of innocence? Cite some provisions of the Revised Penal Code which apply the liberality of the law on the accused... What does actus non facit reum, nisi mens sit rea mean? How are crimes variously classified? What are crimes mala in set What are crimes mala prohibita? If a special law uses the nomenclatures of penalties in the Revised Penal Code, what is the effect on the nature of the crime covered by the special law? Which between malum in se and malum prohibitum involves moral turpitude? Compare mala in se and mala prohibita Can a malum in se absorb or be complexed with a malum prohibitum? Violation of what species of special laws is not deemed malum prohibitum? What is a heinous crime? What is the effect of the repeal of penal law on the accused? In case of conflict between the Spanish text and the English version of the Revised Penal Code, which should prevail? What is the finality-of-acquittal rule? Give its rationale and legal basis

1^

13 14 14 15 16 16

17 17 18 19 20 20 20

21 22

PRELIMINARY TITLE DATE OF EFFECTIVENESS A N D A P P L I C A T I O N OF THE PROVISIONS OF THIS CODE Article 1.

Time when Act takes effect

25

Article 2. Application of its provisions

•

How should the Government and the country be referred to today? What are the two scopes of application of the Revised Penal Code? What does the phrase "except as provided in treaties and laws of preferential application," mean? Who comprises the different heads and staff of diplomatic missions? Who among the heads and staff of diplomatic missions are entitled to immunity in the host sovereign and on what basis? What international principle forms the basis for granting immunity for diplomatic heads? What are the limitations to the immunity principle? Does immunity from suit of officers of international bodies include that for defamation? What comprises the Philippine Archipelago? What is a Philippine ship or airship? How is jurisdiction over crimes committed therein determined? What are the two recognized rules on jurisdiction over merchant vessels? Compare the English Rule and the French Rule on jurisdiction Who are public officers and employees within the purview of Art. 2, Revised Penal Code? What are included in the crimes against national security and the law of nations?

25 26 26 27 27

28 29 29 31 32

32 33 33 33 34

TITLE ONE FELONIES A N D CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY Chapter One — F E L O N I E S Article 3. Definitions • What are felonies? How are felonies committed? What are the elements of intentional felonies and of culpable felonies? vii

35 3

5

35 36

•

To which kind of felony is the principle that "the act cannot be criminal unless the mind is criminal" relevant? What i s intent? What is the rule on the existence of intent? How is intent manifested? May a crime be committed without criminal intent? What is motive? Is it determinative of criminal liability? When is motive material in determining the criminal agency? What factors affect intent and consequently the criminal liability of the actor or offender? What is mistake of fact? What is aberratio ictus? How does it affect criminal liability? May treachery be appreciated in aberratio ictus? Define error in personae. What is its effect on the liability of the offender? Distinguish mistake of fact from mistake in identity Compare aberratio ictus and error in personae What is praeter intentionem? How does it affect the offender's liability? What is proximate cause? How does it affect the intent and consequently, the criminal liability of the offender? Summarize the effect of the five factors on intent and criminal liability of the offenders Compare Arts. 3 and 365 on criminal negligence Relate reckless imprudence to malice When the information charges intentional felony but what is proved is culpable felony, can accused be convicted? Can negligence and conspiracy co-exist? Define intelligence within the purview of felonies What is the effect when the intelligence is lacking or diminished

Article 4. Criminal liability Compare Arts. 3 and 4 Who are liable for felonies? How many clauses are there in paragraph 1?

viii

36 3

6

37 37 38 38 39 39 40 41 42 42 42 43 43

43 44 45 45

45 45 46 46 46 46 46 47

Does the first clause refer only to intentional felony? What is the rule of proximate cause? What is the rule of proximate cause? What is an impossible crime? What are the two kinds of inherent impossibility? Is impossible crime a crime? If there is no crime committed, why is impossible crime punished? Is there an impossible crime of rape? Should the offender know of the impossibility of the crime? Article 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties What is the "proper decision" that the court should render if it tried a case for an act which is not yet punishable by law What is the duty of the court when the penalty prescribed for a felony is excessive? May the court prevent the grant of pardon to a convict when it feels that the crime committed is so reprehensible? Article 6. Consummated, frustrated, and attempted felonies When is a felony consummated? What are formal crimes? • When is a felony frustrated? What crimes cannot be committed in the frustrated stage? When is a felony attempted? What are overt acts? Preparatory acts? What is required for the "overt act" to be considered an attempt of a felony? What is desistance? Compare attempted and frustrated felonies What separates attempted from frustrated homicide/ murder? Compare frustrated and consummated felonies

47 47 47 49 49 49 50 50 50

50

51 51

52 53 53 53 53 54 55 55 55 56 56 58 58

Article 7. When light felonies are punishable What are light felonies? When are they punishable? Who are punishable in light felonies?

58 58 58

Article 8. Conspiracy and proposal to commit felony

59

ix

What is conspiracy? How is its existence determined? What quantum of proof is required for conspiracy? Does the finding of conspiracy require direct proof? To be liable for conspiracy, what is necessary to be done by a conspirator? Can conspiracy co-exist with culpa? What are the two concepts of conspiracy? Compare conspiracy as a crime and as a means of incurring criminal liability What are the kinds of conspiracy as a means of committing a crime? In conspiracy by pre-agreement who should be liable for a second unplanned crime committed by one or some of the perpetrators? What is implied conspiracy? When conspiracy involves a pre-conceived plan, what is required of a co-conspirator to incur liability? Is it necessary for the co-conspirators to perform equally each and every part of the acts constituting the offense? May a co-conspirator be acquitted while others convicted? What are the two structures of multiple conspiracies? Discuss the concept: "The act of one is the act of all." In the absence of a conspiracy, what is the liability of the offenders? Relate conspiracy and the aggravating circumstances of evident premeditation and price or reward Is the laxity of a public official in the performance of his duty iveof a finding of conspiracy? When may the head of office be held liable for the acts of his subordinates? What is the Arias doctrine?

59 59 60 61 62 62 62 63

63 65

65

66 67 68 68 68 69 70 70 71

Article 9. Grave felonies, less grave felonies and light felonies How are felonies classified as to severity? What is the significance of classifying felonies into grave, less grave or light?

71 72

Article 10. Offenses not subject to the provisions of this Code How are the first and second sentences of Art. 10 reconciled? What are special laws?

73

x

72

73 73

What is the relationship between dolo and special laws? When is the Revised Penal Code suppletory to special laws? When is the suppletory effect of the Code not available?... What principles of the Revised Penal Code are applicable to special penal laws?

73 74 75 75

Chapter T w o — J U S T I F Y I N G C I R C U M S T A N C E S A N D CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL LIABILITY Why is there a need for modifying circumstances? What are the different modifying circumstances? Is there any distinction between Arts. 14 and 15 What other factors affect criminal liability? Give examples of exempting/absolutory circumstances What is entrapment? Instigation? What is a buy-bust operation? How should allegation of frame-up and extortion be viewed? Can instigation and frame-up be both present in a case? Distinguish entrapment from instigation Why is Art. 247 on death inflicted during exceptional circumstances as extenuating? Article 11. Justifying circumstances What are justifying circumstances? What are the requisites of self-defense? What is unlawful aggression? What is the importance of unlawful aggression for the existence of self-defense? When the accused invokes self-defense, what is the effect on the burden of proof? What is the rule when aggression ceased to exist? What is the effect of presence of a large number of wounds on the victim on the claim of self-defense? When is there reasonable necessity of the means employed? What is "rational equivalence" in the reasonable necessity of the means employed? xi

77 77 78 78 79 79 79 80 80 81 82 83 84 84 85 85 86 86 87 87 87

What belies the reasonableness of the means employed? What is the paramount consideration in determining the reasonableness of the means employed? Discuss the concept of lack of sufficient provocation on the part of the defender What are the rules when a person is attacked? What is the effect when not all of the requisites for defense are present? What does defense of honor encom? Can there be justifying circumstance of defense when what is involved is property? Who should determine the existence of these justifying circumstances? What are the elements of defense of relatives? What are the elements of defense of strangers? Characterize a battered woman Define battered woman syndrome What is the effect on the battered woman of this cycle of violence? What should be proved by the battered woman who kills/injures her batterer? Is physical assault at the actual time of the killing indispensable for self-defense invocation to prosper? . In the absence of complete self-defense, what circumstances could be appreciated in favor of the battered woman? What are the elements of state of necessity? What is the civil liability of the person acting under a state of necessity? What are the elements of fulfillment of duty or exercise of right or office? When is obedience to superior order appreciated? Article 12. Circumstances which exempt from criminal liability.... Is Art. 80 of the Revised Penal Code still operative? What are exempting circumstances? Distinguish justifying from exempting circumstances Insanity What is insanity? How is insanity manifested?

88 88 89 89 89 90 90 91 91 91 92 92 93 93 94

95 95 96 96 97 98 99 99 99 100 100 100

H o w is insanity disproved?

100

W h a t is the rule w h e n insanity is interposed as a d e f e n s e or a g r o u n d of a m o t i o n to q u a s h ?

•

101

W h e n s h o u l d insanity occur to be exempting?

102

R e l a t e A r t . 12(1) to A r t . 79 of the C o d e

102

W h a t q u a n t u m of evidence is required to overthrow the p r e s u m p t i o n of sanity? •

103

W h a t should be done to an insane or imbecile w h o h a s c o m m i t t e d a felony? W h a t a r e t h e tests o r criteria for insanity? W h a t is

schizophrenia?

103 104

H o w d o e s it a f f e c t c r i m i n a l

liability?

104

W h a t is r e q u i r e d for imbecility to be accepted as a defense?

105

H o w should lack of reason a n d failure to use reason affect c r i m i n a l responsibility?

105

C a n the trial court determine w h e t h e r or not an accused is insane?

106

Minority

106

H o w are penal l a w s to be construed as to minor offenders?

•

106

R e p u b l i c A c t N o . 9344

107

W h o are minors?

133

W h a t a r e t h e f e a t u r e s o f R . A . 9344?

133

W h e n s h a l l a c h i l d a t conflict w i t h t h e l a w b e s u b j e c t to preliminary investigation a n d filing of i n f o r m a t i o n ?

135

W h o a r e the m i n o r s e x e m p t f r o m c r i m i n a l liability?

136

W h o are the minors disqualified from suspension of sentence?

136

W h a t is the m e a n i n g of "punishable" in the disqualification f r o m s u s p e n s i o n of sentence?

137

D i d R . A . 9344 on automatic suspension of sentence r e p e a l t h e g r o u n d s for disqualification u n d e r P . D . 603?

137

W h e n else c a n s u s p e n s i o n of sentence not be availed?

138 1

Accident

3

8

W h a t is the m e a n i n g of accident?

138

W h a t is r e q u i r e d for accident to be accepted?

139

W h a t i s t h e effect w h e n a c c u s e d c l a i m s t h e c i r c u m s t a n c e of accident?

xiii

139

What is the basis for exemption from criminal liability for accident? Relate accident to self-defense What is negligence? What is the presumption when a driver bumps the rear of another vehicle?

139 140 140 140

Irresistible Force What are the elements of irresistible force? What is essential for duress to be a valid defense?

141 141 141

Uncontrollable Fear What are the elements of uncontrollable fear?

142 142

Insuperable Cause What is insuperable cause?

142 142

Chapter Three — C I R C U M S T A N C E S W H I C H M I T I G A T E CRIMINAL LIABILITY Article 13. Mitigating circumstances What are mitigating circumstances? What is the rationale for mitigating circumstances? What are the classifications of mitigating circumstances? Distinguish ordinary from privileged mitigating circumstances Incomplete Justifying or Exempting Circumstances What are the requirements for the mitigating circumstance of incomplete justification/ exemption to be present? When is incomplete defense ordinary mitigating? When privileged? Is unlawful aggression a mitigating circumstance? Minority

143 144 144 144 145 146

146 146 147 147

What amendment was introduced by P.D. 603 on Art. 80? What is the nature of minority as a mitigating circumstance? Praeter Intentionem What is praeter intentionem?

xiv

147 147 148 148

When can praeter intentionem not be invoked?

148

Sufficient Provocation What are the requirements for sufficient provocation?

148 148

Immediate Vindication of a Grave Offense 149 Must the "offense" in immediate vindication be a crime? . 149 How should the word "immediate" be understood? 149 ion and Obfuscation What is necessary for ion or obfuscation to be considered? When is ion and obfuscation not appreciated? Will injury resulting from a quarrel constitute ion or obfuscation? How further should the act that produces ion or obfuscation be from the commission of the crime? Compare sufficient provocation, immediate vindication of a grave offense and ion or obfuscation

150 150 150 150 151

151

Voluntary Surrender 151 What are the elements of voluntary surrender? 151 What determines whether the surrender is voluntary? .... 152 Who should surrender? 153 Voluntary Plea of Guilt What are the elements of voluntary plea of guilt? Why is voluntary plea of guilt mitigating? What is the effect of an improvident plea of guilt? • May voluntary plea of guilt and voluntary surrender be both considered in one case? Relate voluntary plea of guilt to plea bargaining Physical Defects and Illness What is required for the defect of the offender to be mitigating? What is necessary for illness to be considered as mitigating Analogous Circumstances Is being a non-Christian an analogous mitigating circumstance? Is extreme poverty an analogous mitigating circumstance? Cite some examples of analogous circumstances

xv

154 154 154 154 154 154 155 155 156 156 156 156 156

Chapter Four — C I R C U M S T A N C E S W H I C H A G G R A V A T E CRIMINAL LIABILITY Article 14. Aggravating circumstances Compare aggravating and mitigating circumstances What are the different kinds of aggravating circumstances? Do qualifying circumstances increase the penalty to a higher degree? What is the nature of the circumstances in Art. 14? When is the term "aggravating circumstances" broadly construed to include those in Art. 15? What is the new rule on the allegation of generic aggravating circumstances in the Information? What is the fundamental requirement before qualifying circumstances are considered? What is the requirement as to proof of qualifying circumstances? How many circumstances are required to be used as qualifying circumstance? What are special aggravating circumstances? Give examples of special aggravating circumstances Is conspiracy an aggravating circumstance?

158 160 161 161 162 162 163 164 165 165 165 165 166

Abuse of Official Position When is abuse or taking advantage of official position present? Is the offender's being a public officer ipso facto aggravating?

166

Insult To Public Authorities Who are included by the term "public authority"? Relate this circumstance to the crime of direct assault

167 167 168

Age, Sex, Rank, Dwelling • What are the common factors with regard to the circumstances of "insult or lack of regard due to the offended party by reason of age, sex, or rank or the crime is committed in the dwelling of the offended party?' What is the rationale for these aggravating circumstances? What is the meaning of the word "rank" as used in the Article? Give examples of cases where rank aggravated the crime committed

168

xvi

166

167

168 169 169 169

What consideration affects the appreciation of rank? 170 Is the mere fact that the victim of the offense is a female an aggravating circumstance of disregard of sex? 170 To what crimes do this group of circumstances pertain?... 171 Does age pertain only to old age? 171 What is included in dwelling? 171 Why is dwelling (morada) an aggravating circumstance? .171 To what situations is the circumstance of dwelling appreciated? 172 Must the offender enter the dwelling of the victim? 172 When is dwelling not aggravating? 173 Abuse of Confidence What are the requisites of abuse of confidence/ obvious ungratefulness?

173

Palace of Chief Executive Is performance of public function necessary in the appreciation of the aggravating circumstances in paragraph 5 of Art. 14?

173

Nighttime (Nocturnity) What is nocturnity and when is it aggravating? What time period is covered by nocturnity? Is the commission of the offense at night per se aggravating? What are the two tests for the appreciation of nocturnity? What factors will disallow nighttime as aggravating? Is nighttime a qualifying circumstance?

174 174 174

175 175 175

Uninhabited Place What determines whether a place is uninhabited?

175 175

173

173

174

1

Band What comprises a band (cuadrilla)? Compare band under Art. 14 and under Arts. 295 and 296 When is band not appreciated? When conspiracy is proved, can band be appreciated? Calamity o r Misfortune To what does "other calamity or misfortune" refer? Distinguish paragraph 7 from paragraph 12 of Art. 14 xvii

7

6

176 7 6

I I 177

7 7

7 7

* 177 1

7

8

Aid o f Armed Men What are the elements of aid of armed men? When is it not appreciated? Compare "band," "aid of armed men," "organized crime syndicate," "syndicated estafa," and "illegal recruitment in a large scale." Habituality What are the different forms of habituality? Who is a recidivist? What is the nature of recidivism? What is required for recidivism to be appreciated? What is reiteration? Distinguish between recidivism from reiteration What is habitual delinquency? Distinguish between Recidivism and Habitual Delinquency What is Quasi-recidivism?

1

/

8

178

178 7 9

I 179 179 179 179 180 180 181 182 182

Price, Promise, Reward Who are affected by the circumstance of price, promise, or reward?

183

Inundation, Fire, Etc Relate the circumstances of inundation, fire, poison, explosion, etc., with paragraph 1 of Art. 62

183

Evident Premeditation What is evident premeditation? What are its elements? What is the essence of evident premeditation? When is evident premeditation not appreciated? What evidence is required to establish evident premeditation? What is the relationship between conspiracy and evident premeditation?

183

183 184 184 184 185 185 186

Craft, Fraud, Disguise Distinguish among craft, fraud and disguise

186 186

Abuse of Superior Strength or Means Taken to Weaken the Defense When is there abuse of superior strength? Cite examples of abuse of superior strength When is abuse of superior strength not appreciated?

187 187 187 188

Treachery (Alevosia)

188 xviii

What is treachery? What are its preconditions? What is the essence of treachery? When is treachery appreciated? When treachery not appreciated? Can teachery be present in a chance encounter? May treachery be appreciated even if the victim was warned of the danger? From whom should the "retaliation" in treachery come?... At what stage in the attack must treachery exist? When the manner of the attack is not shown, does the fact that the wound is at the back show treachery? When will a frontal attack constitute treachery? What is the nature of treachery as an aggravating circumstance? What proof is required if treachery is to qualify homicide to murder? How is the allegation of "minor" in the Information understood?

*

188 189 189 189 190 191 191 191

192 193 193 193 194

Ignominy What is involved in the circumstance of ignominy?

194 194

Unlawful Entry/Breaking of Wall When is there unlawful entry?

195 195

Aid of Minors/Use of Motor Vehicles How are these circumstances treated?

195 195

Cruelty

196 What are required to attend the commission of the cruel acts? 196 Is the presence of multiple wounds on the victim per se cruelty? 196 In the absence of cruelty, what may be present instead? ..197

Chapter F i v e — A L T E R N A T I V E C I R C U M S T A N C E S Article 15. Their concept What are alternative circumstances? What are the three alternative circumstances? Compare the circumstances in Arts. 14 and 15 When is relationship aggravating and when mitigating?.. When is relationship neither aggravating nor mitigating? xix

i

9

8

198 198 199 199 1

9

9

What is the effect of the amendments by R.A. 7659 on rape? 200 When is intoxication mitigating and when aggravating? 200 What should be the degree of intoxication to be mitigating? 200 When is degree of instruction or education considered?.... 201 TITLE TWO PERSONS C R I M I N A L L Y L I A B L E FOR FELONIES Article 16. Who are criminally liable Who are criminally liable?

202 202

Article 17. Principals

202

Direct Participator Who are principals by direct participation?

203 203

Inducer

203 203

When is an offender a principal by inducement? Must the principal by inducement appear at the scene of the crime? How does an inducer "induce" another to commit a crime?

204 204

Indispensable Cooperator Who is a principal by indispensable cooperation? How does the cooperator participate in the commission of the offense? When is one an accomplice instead of an indispensable cooperator? Even if there is conspiracy, can the liability of the principals differ? Describe the nature of the "cooperation" required to incur criminal liabiUty

204 204

Article 18. Accomplices Who are accomplices? Is conspiracy necessary for the liability of an accomplice? Compare a principal and an accomplice

206 206 207 207

Article 19. Accessories

208

Article 20. Accessories who are exempt from criminal liability

209

xx

205 205 205 206

Who are accessories? How do accessories profit by the effects of the crime? What is the effect of some special laws on accessories who profit by the effects of the crime? When will an accessory be liable as a principal in another crime? What is corpus delicti?' Who are the two kinds of accessory by concealing or harboring the offender? For one to be considered accessory whom should he assist?

209 210

210 210 210 211 211

P.D. 1829 212 Compare an accomplice to an accessory 214 Who are the accessories exempt from criminal liability? ..214 For what acts are they exempt from hability? 215 • Compare Arts. 11, 15, 20, 266-B, 332 on relatives of the offender 215 TITLE THREE PENALTIES Chapter One — P E N A L T I E S IN G E N E R A L Article 21. Penalties that may be imposed What are penalties? Who has the power to prescribe penalties? What penalties may be imposed upon an offender? What is the effect of the judicial decisions on the power of Congress to enact statutes? Will the favorable judgment on a co-accused be applied to a convict who did not appeal?

217

Article

217

Article

22. Retroactive effect of penal laws May the favorable provisions of a law be given retroactive effect to entitle the offender to a lesser penalty? Can the court on its own apply Art. 22 when it was not invoked by the accused? Can a law have both retroactive and prospective application? What is the effect of an absolute repeal of penal laws? 23.

Effect

of

pardon xxi

by

the

offended

party

216 216 216 216 217

218 218 2

1

8

219 219

Article 24. Measures of prevention or safety which are not considered penalties Why are the measures not considered penalties? What is the nature and rationale of preventive suspension of public officers pending investigation? Chapter T w o — C L A S S I F I C A T I O N O F P E N A L T I E S Article 25. Penalties which may be imposed 222 Characterize the penalties in the Revised Penal Code? .... 223 What are principal and accessory penalties? 223 What are the three scales of penalties in the Code and their significance? 224 Did the 1987 Constitution abolish the death penalty? 224 When was the death penalty reimposed? 224 • What was the effect on Art. 248 of the 1987 Constitutional proscription on the death penalty? 224 Republic Act No. 9346 225 • When did R.A. 9346 take effect? 226 What provisions of the Revised Penal Code are affected by the law abolishing the death penalty? 226 Are convicts, whose penalty were reduced to reclusion perpetua because of R.A. 9346, entitled to parole? 227 • What is the effect of R.A. 9346 on R.A. 7659? 227 People v. Bon 227 Is reclusion perpetua the same as life imprisonment? 233 Distinguish life imprisonment and reclusion perpetua 233 Is there a penalty denominated "imprisonment for life"? . 234 Why is there a need to employ the proper terminology of penalties? 234 Does the suspension for the practice of profession apply to convicted prisoners only? 234 What is the nature of disqualification and suspension as penalties? 235 What is bond to keep the peace? 235 What is the nature of public censure? 235 In the scheme of penalties in the Revised Penal Code, cite examples where the lesser offense absorbs the graver offense 236 xxii

Article 26. Fine — When afflictive, correctional, or light penalty.... 236 Compare Art. 9 and Art. 26 236 How can the two articles be harmonized? 236 Chapter Three — D U R A T I O N A N D E F F E C T O F P E N A L T I E S Section One — Duration of Penalties Article 27. Reclusion perpetua

237

Reclusion Perpetua When the law fixed the duration of reclusion perpetua, has it become a divisible penalty? What was the reason for fixing the duration of reclusion perpetua? Is a penalty exceeding 20 years within the range of reclusion perpetua? M a y the convict sentenced to reclusion perpetua be allowed to remain on bail pending appeal? What is the minimum period of imprisonment of reclusion perpetua? What is the rationale of the penalty of reclusion perpetua?

239

Reclusion Temporal Describe the penalty of reclusion temporal

240

Prision Mayor What is the medium period of prision mayor?

240

Prision

Correccional May the penalty of reclusion temporal for homicide with no mitigating circumstance be reduced to prision correccional?

237 238 238 239 239

241

Arresto Mayor What is the duration and prescriptive period of arresto mayor? Which between destierro and arresto menor is a more severe penalty?

241

Article

penalties

242

Article 29. Period of preventive imprisonment deducted from term of imprisonment What is the purpose of preventive imprisonment?

242 243

28.

Computation

xxiii

of

241

How will the time spent in prison by the detention prisoner be credited? What is the remedy when the person has already served the maximum penalty imposable? Will the convict who was imposed of the penalty of reclusion perpetua or destierro be credited of the time of his preventive imprisonment? Can a convict be released on bail or recognizance? In what instance can a convict be allowed to post bail pending appeal? Republic Act No. 6036

243 244

244 244 245 245

Section T w o — Effects of the Penalties According to their Respective N a t u r e Article 30. Effects of the penalties of perpetual or temporary absolute disqualification

246

Article 31. Effects of the penalties of perpetual or temporary special disqualification

247

Article 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage

247

Article 33. Effects of the penalties of suspension from any public office, profession or calling, or the right of suffrage

247

Article 34. Civil interdiction What is civil interdiction? What rights does it cover? May a person civilly interdicted appoint an agent? Can the convict prepare his last will and testament?

248 248 248 248

Article 35. Effects of bond to keep the peace

249

Is the penalty of bond to keep the peace enforceable?

249

Article 37. Costs — What are included

249

Article

249

38. Pecuniary liabilities — Order of payment What are the pecuniary liabilities of the offender? How are they to be paid? What is a fine?.. If a person is found guilty of several offenses, how is the order of payment of civil liabilities observed? xxiv

250 250

250

Article 39. Subsidiary penalty What is subsidiary penalty? How is subsidiary penalty computed? When is subsidiary penalty served? When is subsidiary penalty not proper? How is the gravity of the fine classified? When the culprit who had served subsidiary penalty became solvent, is he still liable to pay the fine? Is there subsidiary imprisonment in case of failure to pay the fine in violations of special laws? Does subsidiary penalty apply to criminal negligence?

250 251 251 252 252 253 253 253 253

Section T h r e e — Penalties in which Other Accessory Penalties are Inherent Must accessory penalties be expressed in the court's decision? Article 40. Death — Its accessory penalties Article 41. Reclusion perpetua and reclusion temporal — Their accessory penalties When reclusion perpetua is imposed as a penalty next higher than that provided by law, what is to be the accessory penalty? What are the accessory penalties of reclusion perpetua imposed as a penalty and reclusion perpetua imposed as next higher?

253 254 254

254

254

Article 42. Prision mayor — Its accessory penalties

255

Article 43. Prision correccional — Its accessory penalties

255

Article 44. Arresto — Its accessory penalties

255

Article 45. Confiscation and forfeiture of the proceeds or instruments of the crime What is required before the proceeds or instruments of the crime may be confiscated?

255 256

Chapter Four — A P P L I C A T I O N OF P E N A L T I E S Section One — Rules for the application of penalties to the persons criminally liable and for the graduation of the same Article 46. Penalty to be imposed upon principals in general XXV

257

Article 47. In what cases the death penalty shall not be imposed; Automatic review of death penalty cases Death Penalty • What is the effect of R.A. 9346 on Art. 47? Is there an automatic review of conviction where the penalty imposed is reclusion perpetua? Article 48. Penalty for complex crimes What are the two kinds of complex crimes? What are the elements of compound crimes? Give an example of a single act that does not result to a complex crime Give an example of separate acts that constitute a complex crime What are complex crimes proper? What are cases where commission of two crimes will not result to complex crimes proper? What is the procedural requirement for the accused to be liable for a complex crime? Why is there only one penalty for complex crimes? • What is the effect of R.A. 9346 on the penalty for complex crimes? What is the effect of complex crimes on the indeterminate sentence on the convict? Does Article 48 apply to imprudence? Can offenses be complexed with felonies? Besides complex crime and compound crime, what are the other kinds of plurality of crimes where a single penalty is imposed? What are composite crimes? Distinguish composite crimes from complex crimes What is the effect when one of the crimes in the information charging complex crimes is not proved? • Is arson with homicide a complex crime? What are continued crimes? May the principle of delito continuado be applied to special laws? What is the "single larceny" doctrine? Give some examples of cases of delito continuado Give examples when the concept of delito continuado was not applied What is a continuing crime? xxvl

257 258 258 258 258 259 259 261 262 263 264 264 264 265 265 266

266 266 267

268 269 270 270 271 271 271 272

When an act or acts constitute more than one offense, for what shall the accussed be liable?

273

Article 49. Penalty to be imposed upon the principals when the crime committed is different from that intended To what circumstance does Art. 49 apply?

273 274

Article 50. Penalty to be imposed upon principals of a frustrated crime

274

Article 51. Penalty to be imposed upon principals of attempted crime

275

Article 52. Penalty to be imposed upon accomplices in a consummated crime

275

Article 53. Penalty to be imposed upon accessories to the commission of a consummated felony

275

Article 54. Penalty to be imposed upon accomplices in a frustrated crime

275

Article 55. Penalty to be imposed upon accessories of a frustrated crime

275

Article 56. Penalty to be imposed upon accomplices in an attempted crime

275

Article 57. Penalty to be imposed upon accessories of an attempted crime

275

Article 58. Additional penalty to be imposed upon certain accessories

275

Article 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are impossible

276

Article 60. Exceptions to the rules established in Articles 50 to 57 Why are the rules in Arts. 50-57 prescribed? How are Arts. 50-57 applied in relation to Art. 61?

276 276 276

Article

277

61. Rules of graduating penalties Why is there a need for the rules in graduating penalties under Art. 61? Explain the rules in Art. 61 When the penalty prescribed is not provided for in the rules in Art. 61, how should the court proceed in lowering the penalty? xxvii

278 279

280

Section T w o — Rules for the application of penalties with regard to the mitigating and aggravating circumstances, and habitual delinquency Article 62. Effects of the attendance of mitigating or aggravating circumstances and of habitual delinquency What are the different kinds of modifying circumstances in this article? What modifying circumstances were added by R.A. 7659 in this article? What is the essence of a syndicated or organized crime group? What are the elements of habitual delinquency and its effect? Article 63. Rules for the application of indivisible penalties What are the two kinds of penalties in this Article? Why is reclusion perpetua still an indivisible penalty when it has now a fixed duration? To what kind of mitigating circumstances do Arts. 63 and 64 refer? Article 64. Rules for the application of penalties which contain three periods Summary of the rules when the penalty imposed is divisible What can the courts not do under these rules? What is the relationship between Art. 64 and the Indeterminate Sentence Law? When there are two or more mitigating, without any aggravating, what is the proper penalty? Do the rules under Art. 64 apply to quasi-offenses under Art. 365? Article 65. Rule in cases in which the penalty is not composed of three periods What is the rule when a divisible penalty is imposed upon an offender? What is the significance of one day in the beginning of each penalty? Article

66. Imposition of fines What factors are considered in the imposition of fines to the culprit?

xxviii

280 282 283 284 285 285 286 287 287 287 288 289 289 289 290 290 290 291 292 292

Article 67. Penalty to be imposed when not all the requisites of exemption of the fourth circumstance of Art. 12 are present Article 68. Penalty to be imposed upon a person under eighteen years of age • What is the effect of R.A. 9344 on Art. 68? Who has the burden of proving the circumstance of minority? Article 69. Penalty to be imposed when the crime committed is not wholly excusable • What kind of a mitigating circumstance is lack of complete requirement to exempt or justify? Article 70. Successive service of sentences What is the rule when a convict is given multiple sentences? When is simultaneous service of sentence allowed? What penalties can be served simultaneously? What are the limitations on the service of sentence? How is the three-fold penalty computed What is the significance of the 30-year duration of penal perpetua in Art. 70? When the penalty is indeterminate, how is the three-fold penalty computed? Should the judge refrain from imposing the correct penalties if these would exceed the limitation of penalties in this article? If the penalties imposed are all equal, how should the three-fold rule operate?

292 293 293 293 294 295 296 297 297 298 298 298 299

299 299

Article 71. Graduated scales • What is the effect of R.A. 9346 as to the scale of penalty under this article? Compare Arts. 70 and 71 Destierro and Arresto Mayor

300

Article 72. Preference in the payment of the civil liabilities

301

Section Three — Provisions common to the last two preceding Sections Article 73. Presumption in regard to the imposition of accessory penalties

xxix

299

301

Should a decision impose necessary penalties Article 74. Penalty higher than reclusion perpetua in certain cases Article 75. Increasing or reducing the penalty of fine by one or more degrees How is the penalty of fine increased or reduced? Article 76. Legal period of duration of divisible penalties How are the periods of a divisible penalty computed? Article 77. When the penalty is a complex one composed of three distinct penalties What is a complex penalty? How is a law, which prescribes four distinct penalties, construed? What kind of penalty is reclusion temporal in its maximum period to reclusion perpetua? Indeterminate Sentence Law What is the Indeterminate Sentence Law? What are the objectives of the law? Why is there a need to specify the minimum and maximum periods? When is the law not applicable [What are the exceptions to the Indeterminate Sentence L a w ] [When shall a straight penalty be imposed] [Who are not covered by the Indeterminate Sentence Law]? When the penalty imposed is reclusion perpetua, is the law applicable? Is the requirement to impose an indeterminate sentence discretionary or mandatory? How does the law operate? What rules govern the computation of the penalty? Where should the penalty next lower than that prescribed by the R P C for the offense be based? When the penalty is originally exempt from the Indeterminate Sentence Law, and after lowering it, the penalty is now within the law, shall the law apply? When the crime is a complex one, how should the penalty next lower in degree be determined? Is the Indeterminate Sentence Law applicable when the penalty imposed resulted from pleabargaining? xxx

302 302 302 302 303 303 303 304 304 304 305 306 306 307

307 309 309 309 310 311

312 312

313

Does the Indeterminate Sentence Law cover offenses involving the Dangerous Drugs Law? Compare parole and pardon Probation Law What is the nature of the benefit of probation? What conditions should accompany a grant of probation? What are the objectives of Probation Law? What is the probationable penalty? Who are the disqualified offenders? May a convict who appealed his conviction still be qualified for probation? When shall the application for probation be filed? Should multiple imposed aginst an accused in one decision be added up for purposes of probation? To what does the word "previous" in the Law refer? Does the grant of probation affect the applicability of Sec. 40(a) on disqualification of the Election Code Distinguish Probation and Indeterminate Sentence Law

313 314 314 318 319 319 319 320 320 321

321 321

322 322

Chapter Five — E X E C U T I O N A N D SERVICE OF PENALTIES Section One — General Provisions Article 78. When and how a penalty is to be executed

323

Article 79. Suspension of the execution and service of the penalties in case of insanity

323

Article 80. Suspension of sentence of minor delinquents [Repealed by P.D. No. 603]

323

Section T w o — Execution of Principal Penalties Article 81. When and how the death penalty is to be executed

324

Article 82. Notification and execution of the sentence and assistance to the culprit

324

Article 83. Suspension of the execution of the death sentence

325

Article 84. Place of execution and persons who may witness the same xxxl

3

2

5

Article 85. Provision relative to the corpse of the person executed and its burial Article 86. Reclusion perpetua, reclusion temporal, prision mayor, prision correccional and arresto mayor What is the constitutional policy on penalty as a whole? Article 87. Destierro To what does the limitation in the law pertain? If the offender violates the limitation of distance, is this evasion of service of sentence? Article 88. Arresto menor

325 325 3

2

6

3

2

6

326 326 327

TITLE FOUR EXTINCTION OF CRIMINAL LIABILITY Chapter One — T O T A L E X T I N C T I O N OF C R I M I N A L LIABILITY Article 89. How criminal liability is totally extinguished [Article 36. Pardon; its effects

328 328

Article 23. Effect of pardon by the offended party] What causes the total extinction of criminal liability? Death What is the effect of death of the offender on his criminal and civil liabilities? • What is the "final judgment" in par. 1 of Art. 89? Does Art. 30 of the Civil Code authorize the appellate court to continue exercising jurisdiction over the civil liability ex-delicto when death occurs during appeal? What is the intendment of Art. 100 on civil liability? • Relate Art. 30 of the Civil Code to Arts. 89(1) and 100 of the Revised Penal Code Service of Sentence Should the period of time during which the evader of sentence was at large be included in the service of his sentences? In what instances may the sentence be served outside of prison? Pardon

328 329 329 329 329

330 330 331 331

331 332 332

xxxii

What are the effects of pardon by the offended party? Compare pardon by the offended and pardon by the President What are the limitations on the pardoning power of the Chief Executive? When does a judgment of conviction become final? What is the effect of an appeal on the power of the President to extend pardon? What procedure should be followed in the grant of pardon to a convict who appealed his judgment? In rape cases, does the pardon of the parents, without the concurrence of the minor victim herself effective?

332 332 333 333 333 333

334

Amnesty What is amnesty? What are its effects? Distinguish amnesty and absolute pardon Is novation a means of extinguishing criminal liability?

334 334 335

Article 90. Prescription of crimes

336

Article

337 337 337 338

•

91. Computation of prescription of offenses What is prescription of crime? What are the laws on prescription of crimes? When does the period of prescription start to run? What causes the interruption and the resumption of the running of the period? Where should the complaint or information be filed to cause the interruption of the running of the period? Relate Sec. 9 of the Rules on Summary Procedure on commencement of prosecution to the rules on prescription What is the effect of the delay in the reporting of crimes to its prosecution? Who is the offended party in Art. 91? Can brief trips abroad qualify as "absence" in Art. 91? What rule on prescriptive period applies in reckless imprudence resulting to variant felonies? Will the principle of constructive notice by registration apply to the crime of bigamy? Is the non-application to bigamy of the rule on constructive notice not contrary to the liberal construction of penal laws? xxxiii

336

338

338

339 339 340 340 340 341

341

Article 92. When and how penalties prescribe

342

Article

342 343 343

93. Computation of the prescription of penalties What is prescription of penalty? What are the prescriptive periods of felonies? How is the running of the period of prescription of penalty commenced? Tolled? Compare prescription of crime and of penalty What are the two kinds of repeal and their effect on the criminal liability of the accused/convict?

343 343 344

Chapter T w o — P A R T I A L E X T I N C T I O N O F C R I M I N A L LIABILITY Article 94. Partial extinction of criminal liability What are the causes of partial extinction of criminal liabilities Article 95. Obligation incurred by a person granted conditional pardon What are the requisites for conditional pardon? What are the nature and effects of a conditional pardon? Is the grant of pardon subject to judicial review? Is a petition for writ of habeas corpus the remedy for a person incarcerated for violation of conditional pardon? What are the effects of conditional pardon on civil liability? Who determines if there is violation of conditional pardon?

345 345 345 345 346 346

346 347 347

Article 96. Effect of commutation of sentence

347

Article 97. Allowance for good conduct

348

Article 98. Special time allowance for loyalty

348

Article 99. Who grants time allowances

348

In what instances can a convict be released before he serves the full term of his sentence? When is special time allowance given? What is the condition precedent for entitlement to the loyalty time allowance?

348 349 349

What calamities are covered in Art. 158? How is evasion committed in Art. 158? Compare the increase/decrease of penalty under Arts. 158 and 159

349 350 350

TITLE FIVE — CIVIL LIABILITY Chapter One — P E R S O N S C I V I L L Y L I A B L E F O R F E L O N I E S Article

100. Civil liability of a person guilty of felony 351 What is the basic principle in civil liability ex-delicto? 351 What are the two kinds of acquittal and their effects on the civil liability of the accused? 351 Compare the effect of death on civil liability exdelicto and civil liability based on quasi-delict 353 What is the effect of acquittal of the accused in a criminal action? 353 Can the court trying a criminal case award damages to the accused in a counterclaim in the same case? 354

Article 101. Rules regarding civil liability in certain cases

355

Article 102. Subsidiary civil liability of innkeepers, tavernkeepers, and proprietors of establishments 356 Give the rules on civil liability in particular cases 356 Article 103. Subsidiary civil liability of other persons Who are the persons subsidiarily liable for criminal offenses? What is the statutory basis for an employer's subsidiary liability? What are the requirements for subsidiary civil liability of the employer? Should a hearing for employer's subsidiary civil liability be conducted? What is the nature of the subsidiary liability of the persons secondarily liable? In what instances may the existence of the employeremployee relationship determined? Is there a need for the court to pronounce subsidiary liability of the employer?

xxxv

357 357 357 357 358 358 359 359

Chapter T w o — W H A T C I V I L L I A B I L I T Y INCLUDES Article 104. What is included in civil liability

360

Article 105. Restitution — How made

360

Article 106. Reparation — How made

360

Article 107. Indemnification — What is included 360 • Compare Arts. 38 and 104 361 What are included in civil liability? 361 What is the relationship between the Civil Code and Revised Penal Code on Civil liability for the commission of crime? 361 When an unlawful act results in death, what are the civil obligations of the offender 362 If the heirs cannot produce receipts to prove actual damages, what may be granted by the court as substitute? 364 How is life expectancy computed? Net earning capacity?.. 364 What is loss of earning capacity? When is it awarded? 365 Is it correct to award lump sum for actual and moral damages? 365 How much should be awarded as moral damages? 367 When are moral damages not imposed on the convict for homicide? 368 When is exemplary damages imposed? 368 Is relationship an aggravating circumstance that justifies the grant of exemplary damages? 369 What is the effect of the Revised Rules on Criminal Procedure on exemplary damages? 372 What are the civil liabilities in rape? 373 Can moral damages be increased if the victim dies, but the information charges forcible abduction with rape? 373 What is the civil liability of a person convicted of the crime of rape when an offspring results from the rape? 374 When is compulsory acknowledgment of the offspring of rape proper? 375

Article 108. Obligation to make restoration, reparation for damages, or indemnification for consequential damages and action to demand the same — Upon whom it devolves

375

Article 109. Share of each person civilly liable Article 110. Several and subsidiary liability of principals, accomplices, and accessories of a felony Preference in payment What is the nature of the civil liability of co-conspirators?

375

376

Article 111. Obligation to make restitution in a certain case

376

375

Chapter Three — E X T I N C T I O N A N D S U R V I V A L OF CIVIL LIABILITY Article 112. Extinction of civil liability

377

Article 113. Obligation to satisfy civil liability What should be the effect of a decision in a criminal prosecution on the criminal and civil liability of the accused? Is a court-approved compromise agreement as to the civil liability entered into by the culprit's lawyer without his express authorization valid?

377

377

378

TITLE ONE CRIMES AGAINST NATIONAL SECURITY A N D THE L A W OF NATIONS Chapter One — C R I M E S A G A I N S T N A T I O N A L S E C U R I T Y What are the crimes comprising Title I of Book II? Is rebellion a crime against national security?

381 381

Section One — Treason and Espionage 3

Article 114. Treason

xxxvii

8

1

Who can be liable for the crime of treason? What kind of allegiance do citizens and aliens owe this country? What is allegiance? What is the two-witness rule? When can the crime of treason be committed? What are acts of treason? Who are the enemies of State?

382 382 382 382 383 383 383

Article 115. Conspiracy and proposal to commit treason — Penalty

383

Article 116. Misprision of treason What is kind of conspiracy is treated in Art. 115? Where can crimes against law of nations triable? What is misprision of treason?

383 384 384 384

Article 117. Espionage

384

Section T w o — Provoking w a r and disloyalty in case of w a r Article 118. Inciting to war or giving motives for reprisals

384

Article 119. Violation of neutrality

385

Article 120. Correspondence with hostile country

385

Article 121. Flight to enemy's country

385

Section Three — Piracy a n d mutiny on the high seas or in Philippine waters Article 122. Piracy in general and mutiny on the high seas or in Philippine waters Distinguish piracy and mutiny • Presidential Decree No. 532 Compare piracy in the Revised Penal Code and in P.D.532 Did R.A. 7659 obliterate the crime of piracy under P.D. 532? If piracy was committed outside the Philippine waters, will the Philippine courts have jurisdiction over the offense? Can the accused be convicted as an accomplice in an information that charges him as a principal?

386 386 386 388 389

389

390

What is the presumption under Section 4, P.D. 532? Compare piracy in the Revised Penal Code and in P.D. 532 Article 123. Qualified piracy What is qualified piracy (Art. 123)? Is there qualified mutiny?

390 390 390 390 391

Republic Act No. 6235 391 What acts are punished under the Anti-Hijacking Law?... 391 What are the four kinds of aircraft and their treatment in the law? 391 TITLE TWO CRIMES AGAINST THE F U N D A M E N T A L LAWS OF THE STATE •

Who are the offenders in Title II of Book II?

396

Chapter One — A R B I T R A R Y D E T E N T I O N O R E X P U L S I O N , VIOLATION OF DWELLING, PROHIBITION, INTERRUPTION, AND DISSOLUTION OF P E A C E F U L MEETINGS AND CRIMES AGAINST RELIGIOUS WORSHIP Section One — A r b i t r a r y Detention and Expulsion Article 124. Arbitrary detention Who can commit the crime of arbitrary detention?

397 397

How is arbitrary detention committed?

398

Compare arbitrary detention with unlawful arrest

398

Article 125. Delay in the delivery of detained persons to the proper judicial authorities •

398

Compare Arts. 124 and 125 399 How is the arrestee "delivered" as provided in Art. 125?... 399 When does the detention become arbitrary? What is the rationale for the provision of Art. 125? To what do the words "judicial authority" refer? When a municipal trial court judge conducts a preliminary investigation, is he taken out of the ambit of the "judicial authority"? Republic Act No. 7438 What is custodial investigation? xxxlx

400 400 400

401 404

•

What is the mandatory duty of the arresting officers in R.A. 7438? How are persons under custody of the law variously classified? Is an invitation equivalent to arrest What are the elements of custodial investigation? What is the nature of searches, arrests and seizure from the Constitutional point of view? People v. Uy, Jr Describe the circumstances occurring during custodial investigation What situations are not covered by custodial investigation? What is the essence of the constitutional safeguard?

404 405 405 406 406 407 407 407 408

Article 126. Delaying release What acts constitute delaying release under Article 126?

409

Article 127. Expulsion What is the crime of expulsion? Who are the persons authorized by law to expel or compel persons to change abode?

410 410

409

410

Section T w o — Violation of Domicile Article 128. Violation of domicile How is violation of domicile committed and by whom?

410 411

Article 129. Search warrants maliciously obtained, and abuse in the service of those legally obtained

412

Article 130. Searching domicile without witnesses Compare Art. 128 with Arts. 129 and 130 Cite examples of provisions imposing additional liability What procedures must be followed in searches and seizures?

412 412 413 413

Section Three — Prohibition, interruption, and dissolution of peaceful meetings Article 131. Prohibition, interruption, and dissolution of peaceful meetings What are the acts punishable under Art. 131?

414 414

Section F o u r — Crimes against religious worship Article 132. Interruption of religious worship

415

Article 133. Offending the religious feelings What are the religious ceremonies or manifestations covered by Articles 132 and 133? What is required for the act to contitute crimes against religious worship? What is the meaning of the phrase "notoriously offensive"?

415 415 416 416

TITLE THREE CRIMES AGAINST PUBLIC ORDER What are included in Crimes against Public Order?

417

Chapter One — R E B E L L I O N , S E D I T I O N , AND DISLOYALTY Article 134. Rebellion or insurrection — How committed

417

Article 134-A. Coup d'etat — How committed

417

Article 135. Penalty for rebellion, insurrection or coup d'etat

418

Article 136. Conspiracy and proposal to commit coup d'etat rebellion or insurrection Article

137.

Disloyalty

of

418

public

officers

or

employees

Article 138. Inciting to rebellion or insurrection How is the crime of rebellion committed? Compare rebellion and subversion What amendments were introduced by R.A. 6968 on rebellion? What is the nature of the crime of rebellion? Office of the Provincial Prosecutor v. CA In order to make out a case of rebellion, what must be the motivation for the killing of the victim? When a criminal act has elements common to more than one offense, who has the option to choose the case to file? Who has the burden of proving the political motivation? May offenders be charged for "common crimes," such as murder and illegal possession of firearms separately from rebellion?

xli

419 419 419 419 420 421 421

421

421 4

^2

422

How is the crime of coup d'etat committed?

423

Distinguish rebellion from coup

424

Article 139. Sedition — How committed

424

Article 140. Penalty for sedition

425

Article 141. Conspiracy to commit sedition

425

Article 142. Inciting to sedition What is the nature of sedition? Compare rebellion and sedition When disorderly conduct occurs during a rally, will it always result to sedition? Who can commit inciting to rebellion or sedition? Can direct assault be committed during a rebellion or sedition? Compare inciting to sedition (Art. 142), tumults (Art. 153), and direct assault (Art. 148) Does wearing t-shirts printed with anti-government invectives amount to inciting to sedition? Is warrantless arrest of persons suspected of rebellion valid? What remedies are available to one suspected of rebellion and arrested without warrant?

425 426 426 426 427 427 427 428 428 428

Chapter T w o — C R I M E S A G A I N S T P O P U L A R REPRESENTATION Section One — Crimes against legislative bodies and similar bodies Article 143. Acts tending to prevent the meeting of the Assembly and similar bodies

430

Article

430

144.

Disturbance

of

proceedings

Section T w o — Violation of parliamentary immunity Article 145. Violation of parliamentary immunity

430

Chapter Three — I L L E G A L A S S E M B L I E S A N D ASSOCIATIONS Article 146. Illegal assemblies What is the gravamen of illegal assembly? What are the two ways of committing illegal assembly? xiii

432 432 432

What are the penalties imposable for illegal assembly?.... Batas Pambansa Bilang 880 What is the meaning of "assembly"? What is the only limitation on the freedom of assembly? Can participation in a peaceable assembly be a basis for warrantless arrest on a charge of sedition? Article 147. Illegal association What is the essence of illegal association?

433 433 440 440 440 441 441

Chapter Four — A S S A U L T U P O N A N D R E S I S T A N C E A N D DISOBEDIENCE TO PERSONS IN AUTHORITY A N D THEIR AGENTS Article 148. Direct assaults

442

Article 149. Indirect assaults

442

Article 150. Disobedience to summons issued by the National Assembly, its committees or subcommittees, by the Constitutional Commissions, its committees, subcommittees or divisions

442

Article 151. Resistance and disobedience to a person in authority or the agents of such person

443

Article 152. Persons in authority and agents of persons in authority — Who shall be deemed as such What is the rationale for penalizing direct assault? How is direct assault committed? Define (a) person in authority; and (b) agent of a person in authority What are the elements of the common form of direct assault? Can direct assault be committed during rebellion or sedition? What is the effect of direct assault on the felony? Relate less serious physical injuries to direct assault When the assault on the person in authority or his agent results to his death, what crime is committed? Relate "ignorance of the law" and "ignorance of fact" to direct assault The qualifying circumstance of laying applies to whom? xliii

443 444 444 444 445 445 445 446

446 447 447

When is laying of hands upon a public officer not direct assault? Who can become an agent of a person in authority? When the offended is a civilian who aids a person in authority or his agent, what crime or crimes are committed?

447 448

448

Chapter F i v e — P U B L I C D I S O R D E R S Article 153. Tumults and other disturbances of public orders — Tumultuous disturbance or interruption liable to cause disturbance Article 154. Unlawful use of means of publication and unlawful utterances What crimes comprise Article 153? Acts of disturbance or interruption could result in what crimes? What is Public Disorder? Burying a person legally put to death constitutes what crime?

449 449 450 451 451 451

Article 155. Alarms and scandals What are the acts penalized as alarms and scandals? What variant crimes can arise from the use of firearms? What is charivari? Creating noise and annoyance may bring about what offenses?

451 452

Article

453

156.

Delivery

of

prisoner

from

jail

452 453 453

Chapter Six — E V A S I O N O F S E R V I C E O F SENTENCE Article 157. Evasion of service of sentence

454

Article 158. Evasion of service of sentence on the occasion of disorders, conflagrations, earthquakes, or other calamities

454

Article 159. Other cases of evasion of service of sentence Who is the offender in Art. 156 (Delivery of Prisoner)? What is the crime if the escapee is a detention prisoner or serving final judgement?

454 455 455

What is the condition precedent for entitlement to loyalty time allowance in Art. 98 in relation to Art. 158 What calamities are covered in Art. 158? What is mutiny? Does it include riot? How is evasion committed in Art. 158? Why is violation of conditional pardon an evasion of sentence? Is violation of conditional pardon a substantive offense? Summarize the interconnection among Arts. 156, 157 and 158 vis-a-vis 223, 224 and 225

455 456 456 456 457 457

457

Chapter Seven — C O M M I S S I O N O F A N O T H E R C R I M E D U R I N G SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE Article 160. Commission of another crime during service of penalty imposed for another previous offense — Penalty What is quasi-recidivism? • Is quasi-recidivism a felony?

459 459 459

TITLE FOUR CRIMES AGAINST PUBLIC INTEREST Chapter One — F O R G E R I E S Section One — Forging the seal of the Government of the Philippine Island, the signature or stamp of the Chief Executive Article 161. Counterfeiting the great seal of the government of the Philippine Island, forging the signature of the Chief Executive

460

Article 162. Using forged signature or counterfeit seal or stamps.. 460 Section T w o — Counterfeiting coins Article 163. Making and importing and uttering false coins

xiv

460

Article 164. Mutilation of coins — Importation and utterance of mutilated coins

461

Article 165. Selling of false and mutilated coin, without connivance

461

Section Three — Forging treasury or bank notes, obligations and securities; importing and uttering false or forged notes, obligations and securities Article 166. Forging treasury or bank notes or other documents payable to bearer; importing, and uttering such false or forged notes and documents

461

Article 167. Counterfeiting, importing, and uttering instruments not payable to bearer

462

Article 168. Illegal possession and use of false treasury or bank notes and other instruments of credit

463

Article 169. How forgery is committed When is counterfeiting not forgery?

463 463

Section F o u r — Falsification of legislative, public, commercial and private documents, a n d wireless telegraph and telephone messages Article 170. Falsification of legislative documents

463

Article 171. Falsification by public officer, employee, or notary or ecclesiastical minister

463

Article 172. Falsification by private individuals and use of falsified documents What is penalized in falsification of public document? What are the elements of falsification under Art. 171? Who is a public officer? How does he take advantage of his official position? What is a document? How is a document falsified? What are the four kinds of documents? Cite examples of public documents In falsification under Art. 171(2), should the document be an authentic official paper? Is good faith a defense in falsification xlvi

464 465 465 465 466 466 466 467 468 468

What is the presumption in favor of public document? What are the elements of falsification by making untruthful statements in a narration of facts? What is meant by "illegal obligation to disclose the truth"? Compare falsification and perjury Is the fact that the entries in the public document were all true not exculpatory since there was no damage to the government? What are the acts punished under Art. 172? Can falsification be committed through culpa? What are the elements of use of falsified documents? Distinguish Article 171 from Art. 172 What is the presumption on the possession and use of falsified documents? What crime should the of falsified document be charged with? In what instance will fasification not give rise to criminal liability? What is the effect when the document is private? Public? In falsification of private documents, what will determine whether the crime committed is estafa or falsification? What is the value of the opinions of handwriting experts in forgery cases? Article 173. Falsification of wireless cable, telegraph and telephone messages, and use of said falsified messages

468 469 469 469

470 470 470 471 471 472 472 473 473

473 474

474

Section Five — Falsification of medical certificates, certificates of merit or service and the like Article 174. False medical certificates, false certificates of merit or service and the like

475

Article 175. Using false certificates

475

Section Six — Manufacturing, importing and possession of instruments or implements intended for the commission of falsification Article 176. Manufacturing and possession of instruments or implements for falsification xlvii

475

Chapter T w o — O T H E R F A L S I T I E S Section One — Usurpation of authority, rank, title, and i m p r o p e r use of names, uniforms, and insignia Article 177. Usurpation of authority or official functions What are the forms of usurpation of Article 177? What is the essence of usurpation of authority under R.A. 10?

476 476 476

Article 178. Using fictitious name and concealing true name Commonwealth Act No. 142 • Ursua v. C A • What is the rationale for C A . 142? • How should C A . 142 be construed? Will the use of another name in a single instance constitute use of an alias? When can a resident Filipino citizen use an alias legally?

477 477 478 478 478

Article 179. Illegal use of uniform and insignia

480

479 479

Section T w o — False Testimony Article 180. False testimony against a defendant

480

Article 181. False testimony favorable to the defendant

480

Article 182. False testimony in civil cases What are the different forms of false testimony in court? What is the effect in prescriptive period when the false testimony is in favor of the accused against the accused?

480

Article 183. False testimony in other cases and perjury in solemn affirmation • What are the elements of perjury? Where is perjury committed? Will the mere assertion of falsehood constitute perjury?... Will the fact that the document is under oath sufficient to make the affiant liable for perjury? What is the nature of perjury? How should it be treated?

xlviii

481

481 481 482 482 482 483 483

Is statement of belief or conviction, considered perjurious? When the affiant made two contradictory statements, can he be convicted of perjury? What is the meaning of the term "material matter" in perjury? , What are the two essential elements of proof of perjury? Article 184. Offering false testimony in evidence What is subornation of perjury?

433 484 484 484 485

Chapter Three — F R A U D S Section O n e — Machinations, monopolies a n d combinations Article 185. Machinations in public auctions

486

Article 186. Monopolies and combinations in restraint of trade

486

Section T w o — F r a u d s in commerce and industry Article 187. Importation and disposition of falsely marked articles or merchandise made of gold, silver, or other precious metals or their alloys 487 Articles 188-189. Expressly repealed by Republic Act 8293 What is the purpose of public auction? What is the new law on public bidding? What are the governing principles of R.A. 9184? What are the aims of public bidding? What are the three principles of public bidding? • What acts are penalized by R.A. 9184? I T F P v. Comelec When is grave abuse of discretion committed? How was the bidding process violated in the automation contract? What should be done when a substantive amendment to a contract is made after the bidding process was concluded? Who is liable for the amount expended under the void contract? What is the test of unfair competition?

xlix

488 488 488 489 489 490 490 492 492 492

493 4

9

4

494

TITLE FIVE CRIMES RELATIVE TO O P I U M A N D OTHER PROHIBITED DRUGS Articles 190-194. Repealed by R.A. 6425 as amended by R.A. 7659 and further amended by R.A. 9165 • Republic Act No. 9165 What changes were introduced by R.A. 9165 on R.A. 6425? • On Penalties Classification of Drugs New Offenders New Offenses Quahfying/Aggravating Circumstances What is the nature of violations of dangerous drugs law? Compare violations of dangerous drugs law with possession of unlicensed firearms Definitions/Distinctions/Elements of the offense What presumptions arise from mere possession of equipment, instrument, apparatus and other paraphernalia? What are the new programs for treatment and rehabilitation of drug dependents? Outline the penalty on possession vis-a-vis the quantity of drugs Delineate the applicability of Sec. 11 and Sec. 15 What actions shall be taken upon a minor drug violator? What are the conditions for the suspended sentence to a minor drug offender? What procedures must be followed upon initial seizure of drugs? What is the effect when the procedures are not complied with? How should the accusatory portion of the Information be worded? What should the penalty on the convict include?

495 536 536 537 537 538 539 540 540 540

543 543 544 544 545 545 546 547 551 551

T I T L E SIX CRIMES AGAINST PUBLIC MORALS Chapter One — G A M B L I N G A N D B E T T I N G What crimes are include in Crimes against Public Morals? Articles 195-199. Repealed and modified by P.D. Nos. 449, 483 and 1602, as amended by LOINo. 816 • Republic Act N o . 9287 What forms of gambling are prohibited by R.A. 9287? Who are the persons liable?

552 552 552 556 556

Chapter T w o — O F F E N S E S A G A I N S T D E C E N C Y A N D GOOD CUSTOMS Article 200. Grave scandal What is grave scandal? What is required for the act to constitute grave scandal?

558

Article 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows • Compare R.A. 3060 and Art. 201 of the RPC

558 561

Article 202. Vagrants and prostitutes — Penalty Who are vagrants? What different crimes may be committed by "loitering around"? What is prostitution?

558 558

561 562 562 563

TITLE SEVEN CRIMES COMMITTED BY PUBLIC OFFICERS What are the different crimes committed by public officers? •

Who are the offenders in this Title?

5

6

4

564

Chapter One — P R E L I M I N A R Y P R O V I S I O N S Article 203. Who are public officers • Who are public officers? li

5

6

5

5

6

5

May a laborer or casual be considered a public officer? .... 565 Chapter Two — M A L F E A S A N C E A N D M I S F E A S A N C E Define malfeasance, misfeasance, nonfeasance

567

Section One — Dereliction of Duty Article 204. Knowingly rendering unjust judgment How is knowingly rendering unjust judgment committed? What is the nature of knowingly rendering unjust judgment? What militates against a charge for rendering unjust judgment?

567

Article 205. Judgment rendered through negligence

568

Article 206. Unjust interlocutory order

569

567 567 568

Article 207. Malicious delay in the istration of justice 569 Article 208. Prosecution of offenses; negligence and tolerance Who is liable for dereliction of duty? Article 209. Betrayal of trust by an attorney or solicitor — Revelation of secrets Are all information confided to counsel classified as privileged? What is essential for the communication to be clothed with the privilege?

569 569 569 570 570

Section T w o — B r i b e r y Article 210. Direct bribery 571 • What is bribery? 571 • What are the kinds of bribery? 572 When the act performed by the officer constitutes a crime, what should be the penalty to the offender?.. 572 • What are the essential elements of direct bribery? 573 Article 211. Indirect bribery What is indirect bribery? How is indirect bribery committed? • What are the distinctions between Direct and Indirect Bribery?

Hi

574 574 574 574

Article 211-A. Qualified bribery What are the elements of qualified bribery?

575 575

Article

576

212. Corruption of public officials When the officer refused to be corrupted, what is committed? Presidential Decree No. 749 Under P.D. 749, what are required for immunity?

576 576 577

Chapter Three — F R A U D S A N D I L L E G A L E X A C T I O N S A N D TRANSACTIONS Article 213. Frauds against the public treasury and similar offenses Who is the offender in illegal exaction? What are the three ways of committing illegal exaction? What are the elements of illegal exaction? What crimes may be committed in relation to illegal exaction?

579 580 580 580 580

Article 214. Other frauds

581

Article 215. Prohibited transactions

581

Article 216. Possession of prohibited interest by a public officer 581 Chapter Four — M A L V E R S A T I O N O F P U B L I C F U N D S OR PROPERTY Article 217. Malversation of public funds or property — Presumption of malversation What are the elements of malversation? How is malversation committed? Who is an able officer? Who could be liable for malversation? In what other instance may a person who is not an able officer be convicted of malversation? What is the condition precedent for any taking, appropriation, conversion or loss of public funds to amount to malversation? What is the effect on the penalty if malversation is committed through negligence?

liii

583 584 584 585 585

586

587 587

When will the presumption of malversation arise? Is direct evidence required in malversation? Is demand an element of malversation? If the disbursement of public funds is unauthorized, will that make up a case of malversation? Is good faith a valid defense in malversation? What is the effect of restitution of the amount malversed? What court has jurisdiction over malversation cases? Compare malversation, estafa and qualified theft If falsification of documents was resorted to for the purpose of concealing malversation, is a complex crime committed?

588 589 590 590 591 591 592 593

593

Article 218. Failure of able officer to render s

594

Article 219. Failure of a responsible public officer to render s before leaving the country

594

Article

594

220. Illegal use of public funds or property What are elements of illegal use of public funds or property (technical malversation)? Does the presumption of criminal intent automatically apply to technical malversation? Compare malversation and technical malversation What is required for technical malversation to exist? Can accused be convicted of technical malversation in an information charging malversation?

Article 221. Failure to make delivery of public funds or property Article 222. Officers included in the preceding provisions How is malversation committed by a private person? Azarcon v. Batausa Does a person become a public officer via his designation by the BIR as custodian by distrained property? Has the Sandiganbayan jurisdiction over a private person? Republic Act No. 7080 Estrada v. Sandiganbayan What is the crime of plunder and its nature Is the plunder law void for being vague?

liv

595 595 596 597 597 598 598 598 599

599 600 600 603 603 604

Does not the failure of the law to define certain make a case of vagueness or "overbreath"? Define "series," "combination" and "pattern." As applied to criminal law, define the "void-forvagueness" rule? What is the facial challenge against a statute? A r e the "void-for-vagueness" rule and the facial challenge applicable to criminal statutes What is the test in determining whether a criminal statute is void for uncertainty? Does Sec. 4 dispense with the "reasonable doubt" requirement? What does Sec. 4 dispense with in not requiring proof of each and every act in the pattern of accumulation? What is the nature of Sec. 4 of the Plunder Law? Republic Act 3019 • What is the rationale for R.A. 3019 Define the significant under R.A. 3019? Is attempted or frustrated violation of R.A. 3019 punishable? • What are the acts punishable under R.A. 3019? What kind of intervention is required of the public officer? What are the two ways of violating Sec. 3(e)? What kind of bad faith would convict under Sec. 3(e)? Is lack of intent a defense against Sec. 3(e)? How is the crime committed with abuse of public office? When should the prescriptive period begin? What is the policy of the Supreme Court on the review of the exercise of the investigatory power of the Ombudsman, and the rationale therefor? Does the Sandiganbayan have jurisdiction over officers of State corporations incorporated under the Corporation Code? What are government-owned or -controlled corporations? • Republic Act No. 8249 Can the Sandiganbayan preventively suspend a senator? Iv

605 605 606 607 607 607 608

608 609 609 616 616 617 617 618 619 619 620 621 621

622

622 623 625 6

2

7

What is the nature of preventive suspension? How is suspension of the officer mandatory but not automatic? May the official be suspended in a different office than where the act complained of was committed? How should the pre-suspension hearing be conducted? What should and should not be proved in a pre-suspension hearing? Does this power of the Sandiganbayan not encroach upon the doctrine of separation of powers? When would the Sandiganbayan have jurisdiction over common crimes committed by public officers?

627 627

628 628 629 629 629

Chapter Five — I N F I D E L I T Y OF P U B L I C O F F I C E R S Section One — Infidelity in the custody of prisoners Article 223. Conniving with or consenting to evasion

631

Article 224. Evasion through negligence

631

Article 225. Escape of prisoner under the custody of a person not a public officer What are the elements of evasion through negligence? How is infidelity in the custody of prisoners committed? Will mere laxity amount to negligence as defined in Art. 224? Does evasion through negligence require connivance between the officer and the prisoner? How is infidelity committed by private persons?

631 632 632 632 632 633

Section T w o — Infidelity in the custody of documents Article 226. Removal, concealment or destruction of documents

633

Article 227. Officer breaking seal

633

Article 228. Opening of closed documents • What are the elements of infidelity in the custody of documents? What are the ways of committing infidelity in the custody of documents? Distinguish infidelity from qualified theft Is mail matter property?

634

Ivi

634 634 635 635

Section Three — Revelation of Secrets Article 229. Revelation of secrets by an officer

635

Article 230. Public officer revealing secrets of private individual... 635 Chapter Six — O T H E R O F F E N S E S OR I R R E G U L A R I T I E S BY PUBLIC OFFICERS Section One — Disobedience, refusal of assistance and maltreatment of prisoners Article 231. Open disobedience

636

Article 232. Disobedience to order of superior officer, when said order was suspended by inferior officer

636

Article 233. Refusal of assistance

636

Cite an example of the crime of refusal of assistance

636

Article 234. Refusal to discharge elective office

637

Article

637

235. Maltreatment of prisoners When a prisoner is maltreated, how many crimes may be committed? To what does the word maltreatment refer to? R.A. 9745 - Anti-Torture Act • What is torture as defined in R.A. 9745? Who are the offenders and victims of torture? What are the different kinds of torture? What are the crimes punished in the law? What is the relationship between the RPC and other special laws, and the Anti-Torture Act?

637 637 638 638 639 641 643 643

Section T w o — Anticipation, prolongation and abandonment of duties and powers of public office Article 236. Anticipation of duties of a public office

644

Article 237. Prolonging performance of duties and powers

645

Article 238. Abandonment of office or position

645

Section Three — Usurpation of powers and unlawful appointments Article 239. Usurpation of legislative powers

645

Article 240. Usurpation of executive functions

645

Ivii

Article

241.

Usurpation

of

judicial

functions

646

Article 242. Disobeying request for disqualification

646

Article 243. Orders or requests by executive officers to any judicial authority

646

Article 244. Unlawful appointments

646

Section Four — Abuses against chastity Article 245. Abuses against chastity — Penalties Who is the offended in Art. 245? How is the law violated?

646 647

TITLE EIGHT CRIMES AGAINST PERSONS Chapter One — D E S T R U C T I O N OF L I F E What crimes are covered by Title Eight? What kinds of offenses comprise crimes against persons? How is intent to kill determined? What is the corpus delicti in taking of human life? When indictment is on the basis of proximate cause, what evidence on the nature of wound is required? When there are other possible causes of death aside from proximate cause, what should be duly established?

648 648 649 649

650

651

Section One — Parricide, M u r d e r , Homicide Article 246. Parricide How is parricide committed? What is the basis of the crime of parricide? If the killing of the child less than three days old was committed by the parent, is the crime parricide or infanticide? Distinguish between parricide and infanticide Why is the rule on conspiracy that the act of one is the act of all not applicable in parricide?

Ivlii

652 652 652

653 653 654

In killing of a spouse, how will the relationship be proved? If the information failed to mention that offender and offended are married, can the former be convicted with parricide? Article 247. Death or physical injuries inflicted under exceptional circumstances Does Art. 247 define and penalize a felony? What are the requisites to be entitled to the benefit of Art. 247? What are the two time elements involved in this article? What are the two issues involved in this article? If a period of time such as one hour ed from the surpri to the killing, will the benefit still be available? Will the fact that the spouses were living separately militate against the accused? What is the nature of the "penalty" of destierro? Should qualifying circumstances be appreciated in inflicting death under exceptional circumstances? How should the requirements of the law be complied with? When third persons are injured in the course of firing at the paramours, will the offender be free from criminal liability? Article 248. Murder How is murder committed? How many circumstances are necessary to qualify homicide to murder? Can homicide be upgraded to murder by a subsequent act of the offender? When the qualifying circumstances were not those proved in the trial, can the accused be convicted for murder? Give some instances when treachery is not appreciated to qualify killing to murder May treachery be appreciated in aberratio ictus? Are dwelling and nocturnity qualifying circumstance?

lix

655

655 655 656 656 657 657

657 658 658

659 659

659 660 661 661 662

6

6

2

662 663 663

When the qualifying circumstance is the use of fire, what variant crimes may result? Is arson with homicide a complex crime? What determines whether the offense committed is frustrated or attempted murder? Article 249. Homicide What is homicide? What is the rule on intent to kill when the victim dies? What determines whether the offense is attempted/ frustrated homicide and not physical injuries? Can attempted or frustrated homicide be committed through imprudence or negligence? May a person charged with homicide by stabbing be convicted when the cause of death was drowning? Presidential Decree No. 1866 • What changes did R.A. 8294 make on P.D. 1866 What are the elements of illegal possession of firearm? If the killing was committed through the use of unlicensed firearm, with what crime should the offender be charged? What are the implications of the amendment on the use of unlicensed firearm being an aggravating circumstance of homicide or murder? What is the exception to the single offense rule in the commission of homicide/murder with the use of unlicensed firearm? Who are the offenders in illegal possession of firearm, ammunition and explosives? What are the presumptions on illegal possession of firearm? What is the relationship of the law on the felonies under the Revised Penal Code? Can the law be both prospectively and retroactively applied? What are covered by the phrase "homicide or murder" in paragraph 3, Sec. 1 of R.A. 8294?

663 664 664 665 665 665

665 666

666 667 670 671

671

672

672 673 674 674 675 675

What are the offenses penalized under the amendatory law? When the "other crime" is a slight felony, what is the effect on the criminal liability of the offender? When the gun is a paltik (a home-made gun), will that dispense of the necessity to prove that it is unlicensed? Where the Information charged the accused for qualified illegal possession, can he be convicted for homicide? How is homicide using unlicensed firearm denominated? Who should own the unlicensed firearm? What are the kinds of possession punished by P.D. 1866? How is the Indeterminate Sentence Law applied in crimes under P.D. 1866? What is the nature of the crime of illegal possession of firearm? Republic Act N o . 6539 What amendments were made by R.A. 7659 on R . A . 6539 Is it material whether the killing is homicide or murder?

676 677

678

679 679 680 680 680 680 681 681 681

Article 250. Penalty for frustrated parricide, murder or homicide

682

Article 251. Death caused in a tumultuous affray

682

Article 252. Physical injuries inflicted in a tumultuous affray Will the mere fact that the affray is tumultuous make the crime fall within Art. 251? If it cannot be shown who inflicted serious physical injuries or any form of violence on the victim, who should be liable? Who may be the victim in the affray? • What is required of the "injuries" in Art. 252?

682

683 684 684

Article 253. Giving assistance to suicide Is committing suicide a felony? What are the three acts punished under this article?

684 684 684

Article 254. Discharge of firearms • What are the elements of illegal discharge of firearm?

685 685

Ixi

683

Section T w o — Infanticide and Abortion 6

8

5

Article 255. Infanticide What is infanticide? What is required if the victim is a fetus?

686 686

Article 256. Intentional abortion

686

Article 257. Unintentional abortion

687

Article 258. Abortion practiced by the woman herself or by her parent

687

Article 259. Abortion practiced by a physician or midwife and dispensing of abortives What are the different kinds of abortion? To what do the words "intentional" and "unintentional" refer? If the woman having abortion is not pregnant, what crimes are committed? Can the woman commit unintentional abortion upon herself? Is there unintentional abortion by means of intimidation? Compare intentional abortion and unintentional abortion Distinguish between abortion and infanticide Who are the victims in abortion and in infanticide?

687 687 688 689 689 689 690 690 691

Section Three — Duel Article

260.

Responsibility

of

participants

in

a

Article 261. Challenging to a duel

duel

691 691

What are the elements of a duel?

691

Chapter T w o — P H Y S I C A L I N J U R I E S As to stage of execution, what is the nature of this felony? Distinguish physical injuries from attempted or frustrated homicide or murder Article 262. Mutilation

693 693 693

What is mutilation?

694

Article 263. Serious physical injuries

694

Article 264. istering injurious substances or beverages

695

Ixii

How is serious physical injuries committed? How are the injuries inflicted to the victim classified? Compare the incapacity and duration in nos. 2, 3, and and 4 Relate the physical injuries to robbery with physical injuries under Art. 294, nos. 2 to 4 and Art. 295/296 What is deformity? What are the qualifying circumstances affecting this crime?

695 696 696

697 697 697

Article 265. Less serious physical injuries What circumstances qualify for less serious physical injuries? Relate qualified less serious physical injuries with direct assault

698

Article 266. Slight physical injuries and maltreatment Can there be physical injuries without inflicting injury? Distinguish serious, less serious and slight physical injuries Republic Act N o . 8049 What is the nature of the violations of the anti-hazing law? Who are liable for violations of the law on hazing?

699

698 698

699 699 700 704 704

Chapter Three — R A P E 706

Republic Act No. 8353 Article 266-A. Rape; When and How Committed

706

Article 266-B. Penalties

707

Article 266-C. Effect of pardon

708

Article 266-D. Presumption When did the Anti-Rape Law of 1997 take effect? .... What is the effect of the reclassification of rape into a crime against persons? What are the differences between the two modes rape? What is the effect of error in the mode of rape in the Information? How is rape committed and by whom?

709 709

Ixlll

710 711 711 711

•

What consummates the crime of rape? 712 Under what circumstance will rape absorb forcible abduction? 712 When is rape attempted? 712 What is the meaning of "slightest penetration" that would consummate the crime rape? 713 Distinguish attempted rape from acts of lasciviousness.... 714 When multiple rapes are committed at about the same time and place, is the principle of delito continuado applicable? 714 In what circumstance will the rape of a retardate fall? 714 What is the nature of the ten circumstances in Art. 266-B? 715 If the rapist is merely a relation how should such fact be alleged in the information? 715 What relationships will not elevate the crime to qualified rape? 716 What is the nature of a "step" relationship? 717 How is the circumstance of age or relationship proved?.... 717 How should the term force and violence be construed? 717 What is the meaning of "force" in rape? 718 What is "intimidation" in rape? 718 Distinguish between force and intimidation in rape 719 In incestuous rape, is force or intimidation indispensable? 719 Offender hacked the victim thrice on the face after raping her twice and left for dead. What crimes were committed? 720 What facts do not constitute elements of rape? 720 What guiding principles must be considered in reviewing rape cases? 720 Give some doctrinal principles in rape 721 What are the elements of statutory rape? 722 How relevant is force and intimidation in statutory rape? 722 Can the accused be charged with seven homicides in rape with homicide considering that only two persons died? 722 May a woman be guilty of rape against another woman? 723 What is necessary for an effective pardon by the offended? 723

Ixiv

What are the presumptions added by the new law? Republic Act No. 7877 What elements constitute the offense of sexual harassment? Is a casual buss on the cheek by the superior on his subordinate sexual harassment? What is the philosophy underlying this gender-related law on sexual harassment? Republic Act No. 9262 What constitutes violence against women and children? What are the acts of violence punished under the law? What protective policies were put in place under the law? People v. Genosa Who is a battered woman? What are the characteristics of the "battered woman syndrome"? What effect does the recurrence of the cycle of violence have upon the woman victim? What is the nature of the defense of battered woman syndrome? For the defense of battered woman syndrome to absolve the offender, what must the battered woman prove? If the invocation of self-defense fails, what shall the battered woman syndrome amount to? ,

724 724 725 726 726 727 736 737 740 741 741 742 742 743

743 744

TITLE NINE CRIMES AGAINST PERSONAL LIBERTY AND SECURITY What crimes are covered by Title 9?

746

Chapter One — C R I M E S A G A I N S T L I B E R T Y Section One — Illegal detention Article 267. Kidnapping and serious illegal detention What is the essence of kidnapping?

Ixv

747 ^7

7

When shall deprivation of liberty fall under Art. 267? Will any and all kinds of deprivation result to kidnapping? Who should be the offender in kidnapping? What special complex crimes may arise in kidnapping? What is the nature of the crime committed when the kidnapped victim was killed by his abductor? How should the composite crime be denominated? When is the crime homicide or murder and not kidnapping? Where detention and killing of the victim both occurred, what will determine the crime was committed? Will the fact alone that ransom is demanded indicative of kidnapping? What is ransom? Is it an element of kidnapping? When is demand for many robbery, not kidnapping for ransom? Distinguish kidnapping from grave coercion Cite an example of the crime of kidnapping in the attempted stage What distinguishes kidnapping from forcible abduction? Distinguish between kidnapping with rape and forcible abduction with rape? If the injuries inflicted were merely slight, may the crime be kidnapping with physical injuries? Will the victim's disappearance negative criminal liability? Article 268. Slight illegal detention When is slight illegal detention committed? Compare slight illegal detention, and kidnapping and serious illegal detention What are the requisite for the specific mitigating circumstances of voluntary release? Article 269. Unlawful arrest What is the essence of the crime of unlawful arrest? Who can commit the crime of unlawful arrest? • What are the grounds for a lawful arrest without a warrant?

Ixvl

748 749 750 750 751 752 752 753 754 754 754 755 756 756 757 758 758 759 759 759 760 760 760 760 761

Section T w o — K i d n a p p i n g of Minors Article 270. Kidnapping and failure to return a minor What are the elements of the crime of failure to return a minor? What is the gravamen of the crime of failure to return a minor? What is shown by the phrase "deliberately fails"? Article 271. Inducing a minor to abandon his home Relate kidnapping with inducing a minor to abandon his home

761 761 761 762 762 763

Section T h r e e — Slavery and Servitude Article 272. Slavery

763

Article 273. Exploitation of child labor

763

Article 274. Services rendered under compulsion in payment of debt • Compare Arts. 272, 273 and 274 with Art. 267 • Compare Art. 274 with Art. 287

763 764 764

Chapter T w o — C R I M E S A G A I N S T S E C U R I T Y Section O n e — A b a n d o n m e n t of Helpless Persons and Exploitation of Minors Article 275. Abandonment of persons in danger and abandonment of one's own victim What are the different kinds of abandonment? How should the word "uninhabited" be construed? Compare "abandonment" in Art. 275 with that in Art. 365

766

How old should be the abandoned child?

766

765 765 765

Article 276. Abandoning a minor

766

Article 277. Abandonment of minor by person entrusted with his custody; indifference of parents

767

Article 278. Exploitation of minors What kind of business does Art. 278 speak of?

767 768

Article 279. Additional penalties for other offense

768

Ixvii

What penalties are imposable when the abandonment resulted to other crimes? Republic Act No. 7610, as amended Republic Act No. 9231 Republic Act No. 9208 Who are included in the definition of "children" i n R . A . 7610? What are the specific crimes penalized under R.A. 7610 What are the two kinds of child prostitution and sexual abuse? What situations are covered by sexual abuse of children under Section 5 of R.A. 7610? Distinguish sexual abuse and child abuse Explain the relationship between rape and sexual abuse? How relevant is the sweetheart theory in rape; In R.A. 7610? What are required for conviction for child abuse through lascivious conduct under Sec. 5 of R.A. 7610? What is meant by the word lewd or lascivious? How is "lewd designs" defined for purposes of R.A. 7610? Are sexually abused children entitled to moral damages even without proof of mental anguish, etc.? What are the other laws on child trafficking? R.A. 9208 - Anti Child Pornography What is child pornography and who are deemed children? What are the punishable acts in the law? What presumptions on child pornography are prescribed?

769 769 776 781 790 790 792 794 794 796 796

797 797 798

798 799 799 800 800 802

Section T w o — Tres to D w e l l i n g Article 280. Qualified tres to dwelling

803

Article 281. Other forms of tres What determines whether the crime committed is tres to dwelling or tres to property?

803

Ixviii

803

What does the phrase "against the will of the owner" denote? Is the occupant required to be the owner of the dwelling? Under what instances is the crime of tres not committed? Relate the crime of tres with other crimes Who should give permission or prohibit entry to dwelling?

804 804 804 805 805

Section Three — Threats and Coercion Article 282. Grave threats

805

Article 283. Light threats

806

Article 284. Bond for good behavior

806

Article 285. Other light threats Distinguish among the three kinds of threat Compare light threat with blackmailing How should the phrase "some harm not constituting a crime" in Art. 285, no. 2 be construed What is bond for good behavior? What are the nature and the forms of other light threat? Is a threat to sue in court unlawful?

806 807 807

808 809

Article 286. Grave coercions

809

Article 287. Light coercions What are the principal distinctions between threat and coercion? What are the elements of grave coercion? What are the kinds of grave coercion? Why is the distinction between preventive and compulsive coercion significant? May coercion be in writing? What different crimes can arise from intimidation? What is required of intimidation to make the act grave coercion? What should characterize the force in grave coercion? When property of a debtor is seized, what crimes may result? What is unjust vexation? Relate unjust vexation and attempted rape

809

Ixix

808 808

810 811 812 813 813 813 813 814 8

^ 815 815

Article 288. Other similar coercions

816

Article 289. Formulation, maintenances, and prohibition of combination of capital or labor through violence or threats R.A. 9995 - Anti-Photo Voyeurism Act What is photo or video voyeurism and how is it committed?

816 817 817

Chapter Three — D I S C O V E R Y A N D R E V E L A T I O N OF SECRETS Article 290. Discovering secrets through seizure of correspondence

819

Article 291. Revealing secrets with abuse of office

819

Article 292. Revelation of industrial secrets • What is penalized in Art. 290? What other crimes involving correspondence may be committed? Who are exempted from the provisions of Art. 290? Republic Act No. 4200 What kind of communication is covered by R.A. 4200? Is R.A. 4200 violated if the recording was done by a party to the conversation? Should the conversation be alleged in the information?.... Does "private communication" include "private conversations"? Are tape recorders among the prohibited devices?

819 819 820 820 821 823 824 824 824 825

TITLE TEN CRIMES AGAINST PROPERTY What crimes are covered under this title?

826

Chapter One — R O B B E R Y I N G E N E R A L Article 293. Who are guilty of robbery Compare the crimes of robbery and theft Can real property be subject of robbery? What is asportation? When is it present? How is animus lucrandi determined? Ixx

827 827 827 827 828

What will give rise to the presumption of animus lucrandi? When is the crime of robbery or theft consummated? Can there be frustrated theft? Must the person divested of personal property be its owner? When is the element of "taking" not present? Compare robbery with violence against or intimidation of persons to robbery with force upon things ;

828 829 829 829 830

830

Section One — R o b b e r y with violence against or intimidation of persons Article 294. Robbery with violence against or intimidation of persons — Penalties What crimes are penalized under Art. 294? What is the nature of the homicide, rape, mutilation, arson or physical injuries committed with the robbery? What is the nature of the crime of robbery with homicide? In charging the complex crime of robbery with homicide, what should the Information contain? What does "homicide" in robbery with homicide encom? When the special complex crime of robbery with homicide is not proved, for what can the defendants be convicted? What is the significance of the phrase "by reason" in Art. 294 on robbery with homicide? Is it necessary for the robbery to precede the killing for the crime to be "robbery with homicide"? In robbery with homicide, should robbery be the sole purpose of the offenders? Does it necessarily follow that when a killing was done during a robbery, the offense committed is robbery with homicide? Is there a crime of robbery with double homicide? Is there robbery with homicide and frustrated homicide; robbery with homicide and physical injuries?

Ixxl

831 832

832 833 833 834

835 835 836 836

838 839 840

If the robbery was accompanied by homicide, will those who did not take part in the killing be liable? 840 If the robbery was accompanied by killings (or rapes), will the other homicides (or rapes) be aggravating?.... 841 Distinguish the special complex crime of robbery with homicide from the complex crime under Art. 48 842 What is the rationale for penalizing as a special complex crime, robbery with homicide? 842 Is the aggravating circumstance of dwelling appreciated in robbery with homicide? 842 Is the value of the stolen articles relevant to the criminal liability of the accused? 843 When the detention of the victims was made by the robbers to shield themselves from the police, is the crime of illegal detention committed? 843 What two principles of conspiracy are relevant in a conviction for robbery with rape? 844 In robbery with rape, when should the rape be committed? 844 What determines whether the crime committed is the special complex crime of robbery with rape or separate crimes for the taking and the rape? 845 What is required of the execution of the robbery and the rape? 846 If the sequence is: rape, homicide, then robbery, what crimes are committed? 846 When several rapes are committed during a robbery, how many crimes are committed? 847 What should be the stage of execution in robbery with mutilation? 847 What is the peculiar nature of robbery with arson? 847 In robbery with serious physical injuries, what should be the nature of the physical injuries? 848 Who is the victim in robbery with homicide, with serious physical injuries, and with less serious or slight physical injuries? 848 Snatching may constitute what crime? 848

Article 295. Robbery with physical injuries, committed in an uninhabited place and by a band, or with the use of firearm on a street, road or alley

848

Article 296. Definition of a band and penalty incurred by the thereof • What is the effect of R.A. 8294 on Art. 296? People v. Apduhan In what kind of robbery do Arts. 295 and 296 apply? • What is Art. 296 related to Arts. 294 and 295? To what does the word "offense" in Art. 296 refer?

849 849 849 849 850 851

Article 297. Attempted and frustrated robbery committed under certain circumstances 851 Does the rule on liability for conspirators in robbery with homicide apply to attempted robbery with homicide? 851 How is attempted robbery committed? 852 If in the course of the attempted robbery, parricide, murder, or infanticide was committed, what will be the proper charge? 852 Who should be the killer in attempted robbery with homicide? 853 Article 298. Execution of deeds by means of violence or intimidation

853

S e c t i o n T w o — R o b b e r y b y the use of force upon things If both violence against or intimidation of persons and force upon things are present, what is the proper crime to charge? Article 299. Robbery in an inhabited house or public building or edifice devoted to worship What three places are covered by this Article? To be robbery, the taking must be done under what situations? When the offender is a family member or servant who broke a receptacle inside to take property of his housemate, what crime is committed? Article 300. Robbery in an uninhabited place and by a band

Ixxiii

854 854 855 855

857 857

Article 301. What is an inhabited house, public building, or building dedicated to religious worship and their dependencies

857

Article 302. Robbery in an uninhabited place or in a private building

858

Article 303. Robbery of cereals, fruits, or firewood in an uninhabited place or private building What peculiar provisions on robbery should be amended? Article

304.

Possession

of

picklocks

or

similar

858 859 tools

Article 305. False keys

859 860

What is the nature of the act of possessing picklocks?

860

Chapter T w o — B R I G A N D A G E Article 306. Who are brigands — Penalty

861

Article 307. Aiding and abetting a band of brigands Distinguish brigandage under the Code from P.D. 532 What is the purpose of the malefactors under P.D. 532? What is the gravamen of brigandage under Art. 306? What is the liability of abettors of brigandage? Is highway robbery with homicide a heinous crime? Does the situs determine whether the crime is highway robbery? What is the import of the word "indiscriminate" in P.D. 532?

861 862 862 863 863 863 863 864

Chapter T h r e e — T H E F T Article 308. Who are liable for theft What are the elements of theft? What is encomed by the element of intent to gain? What will make the crime theft and homicide, not robbery with homicide? Can theft be committed by a co-owner of the property? What other circumstances may constitute theft?

Ixxiv

865 865 866 866 867 867

What offenses are penalized by the Revised Forestry Law? What amendment was made by E.O. 277 on the Revised Forestry Law? When is one who benefited in the loot without participating in the commission of the offense (1) a principal and (2) an accessory?

ggg 869

870

Article 309. Penalties

870

Article 310. Qualified theft

871

Article 311. Theft of the property of the National Library and National Museum What circumstances can qualify theft? What kind of confidence between employer and employee is required to bring about qualified theft?... How is the offense of illegal fishing under P.D. 704 committed? Is the presumption of guilt contrary to the presumption of innocence? Republic Act No. 6539, as amended Compare carnapping to robbery and qualified theft What are the elements of carnapping? What changes were introduced by R.A. 7659 on R . A . 6539? What are the implications of the amendments b y R . A . 7659? When is carnapping presumed to have been committed? What should be the relationship between the carnapping and the killing? May qualified theft of motor vehicle be committed despite R.A. 6539 as amended by R.A. 7659? May a person charged with qualified theft of motor vehicle be convicted of carnapping? What crime is committed when a public utility vehicle under the "boundary" system is appropriated by the driver? Has the Revised Penal Code suppletory effect o n R . A . 6539? Whether or not attempted and frustrated murder/ homicide are included in qualified carnapping

Ixxv

872 872 873 874 874 875 878 879 879 880 881 882 882 882

883 8

8 8

8

4

5

Is a tricycle used within inner streets within the coverage of R.A. 6539 Is license to use the public highways required in the law? What is the nature of the crime of carnapping? Presidential Decree No. 1612 What is fencing? P.D. 1612 covers the proceeds of what crimes? What are the elements of the crime of fencing Is fencing a continuing offense? Presidential Decree No. 533 What is cattle rustling? Is the Anti-Cattle Rustling Law a special penal law? When homicide is committed during cattle rustling, are the offenders liable for cattle and for homicide? Compare carnapping and cattle-rustling

885 886 886 886 888 888 888 889 889 891 892

892 893

Chapter Four — U S U R P A T I O N Article 312. Occupation of real property or usurpation of real rights in property What penalties are provided under this provision? How should the violence or intimidation in usurpation be viewed? What is the nature of the crime of usurpation? How should the phrase "by means of violence against or intimidation of persons" in Art. 312 be construed? • What is intimidation? What crimes may result from intimidation? Compare the penalty for robbery with homicide, etc. to that for usurpation How many Informations should be filed against the usurper? What possible crimes may accompany the act of usurpation? Who is the offended party in Art. 312? Republic Act No. 8368 - repealing P.D. 772 Article 313. Altering boundaries or landmarks

894 894 894 895

895 896 896 897 897 897 898 898 899

Chapter Five — C U L P A B L E I N S O L V E N C Y Article 314. Fraudulent insolvency

900

Who are liable for culpable insolvency?

900

C h a p t e r Six — S W I N D L I N G A N D O T H E R D E C E I T S Article 315. Swindling (estafa)

901

How is estafa committed? What is the nature of the damage suffered by the offended party? What are the elements of estafa through misappropriation or conversion in Art. 315(l)(b)? When will misappropriation of money or property entrusted to another constitute estafa? theft? What constitute juridical possession? How are the words "convert" and "misappropriate" understood? M a y a person who failed to liquidate his cash advance be convicted of estafa? Will delivery to a third person of the thing held in trust constitute a defense in estafa? How is misappropriation or conversion proved? W i l l the return of the money to the victim free the accused from criminal liability? What are the elements of estafa under Art. 315(2)(a)? , Define fraud; deceit Who should suffer the damage due to the fraud or deceit committed by accused? Is the principle of caveat emptor a defense in swindling? What is the basis for the penalty for the crime of estafa? Can estafa be committed thru negligence? How is estafa under P.D. 115 (trust receipt) committed? When the violator is a juridical entity, to whom is the penalty imposed? Can a money market transaction give rise to estafa?

Ixxvii

903 904

905 905 906 906 906 907 908 908 908 909 909 909 910 910 911 911 912

Does estafa involve moral turpitude? How is estafa by post-dating a check committed? When the check was issued after the goods have been delivered, is estafa committed? Recall the rulings as regards the condition precedent for conviction for estafa thru false pretenses or deceit Batas Pambansa Big. 22 What are the distinctions between estafa and B.P. 22? Does prosecution for estafa preclude that for B.P. 22? What are the elements of the offense under B.P. 22? What is the gravamen of the offense of B.P. 22? How is knowledge of lack or insufficiency of funds established? What are the requisites for the presumption of knowledge of insufficiency of funds? When should the knowledge of insufficiency of funds exist? What will prevent the presumption of knowledge of insufficiency of funds to arise? Is an oral notice of dishonor sufficient? When should the notice of dishonor be sent to the maker or drawer? If the drawer or maker of the check is an officer of a corporation, how should notice be given How is the first element affected by a variance in the identity of the check issued? What is the effect when the "stop payment" order was not due to insufficiency of funds? If a court acquires jurisdiction over the estafa, does it necessarily acquire jurisdiction over B.P. 22 violation? What checks are covered by B.P. 22? What circumstances will negate conviction for violation of B.P. 22? Is the failure or lack of consideration a defense in B.P. 22? •

What is the proper penalty for B.P. 22 violations? Whether or not B.P. 22 is a continuing crime How should the affidavit of desistance be appreciated?

912 912 913

913 914 915 916 916 917 917 918 918 919 919 920 921 921 921

922 922 923 924 925 926 926

Relate B.P. 22 and the Civil Code provision of obligations Republic Act No. 8042 What are the kinds of illegal recruitment under the Labor Code? How are the different forms of illegal recruitment committed? May offender be charged separately for illegal recruitment and for estafa under Art. 315? What is the relationship of the R P C to the law on illegal recruitment? How is the participation of the employees of a corporation in the illegal recruitment determined? Is the law on agency applicable to criminal case?

927 928 930 930 931 932

932 933

Article 316. Other forms of swindling How is estafa committed in case of selling of encumbered property? May the owner of property commit estafa involving his own property? Presidential Decree No. 1689 What are the elements of syndicated estafa under P.D. 1689? May this crime be committed by only one offender?

933

936 936

Article 317. Swindling a minor

936

Article 318. Other deceits

936

934 934 935

Chapter Seven — C H A T T E L M O R T G A G E Article 319. Removal, sale or pledge of mortgaged property What is penalized under Art. 319?

938 938

Chapter Eight — A R S O N A N D O T H E R CRIMES INVOLVING DESTRUCTION Article 320. Destructive arson Presidential Decree No. 1613 What is arson and how is it committed? Can arson be committed through negligence? What is the basis for the penalty for arson?

Ixxix

939 940 943 943 944

Is there frustrated arson? What are the elements of arson under Sec. 3(2) of P.D. 1613? Is conviction for arson proper when the evidence is circumstantial? Who should be the owner of the property burned? What is the nature of the crime when arson results to death? When is the crime murder, arson, or composite crime of arson with homicide? When the accused is charged with "violation of P.D. 1613" without specifying the particular provision thereof, what crime is committed? When will the special aggravating circumstance of spite not be appreciated?

944 9

4

4

944 946 946 946

947 947

Chapter Nine — M A L I C I O U S M I S C H I E F Article 327. Who are liable for malicious mischief

948

Article 328. Special cases of malicious mischief

948

Article 329. Other mischiefs

948

Article 330. Damage and obstruction to means of communication

949

Article 331. Destroying or damaging statues, public monuments, or paintings How is malicious mischief committed? Compare malicious mischief and cattle rustling Distinguish malicious mischief from unjust vexation Distinguish malicious mischief from theft Distinguish malicious mischief from arson If in the course of the commission of malicious mischief death and injuries resulted, what crimes are committed?

949 949 949 950 950 950

951

Chapter Ten — E X E M P T I O N F R O M C R I M I N A L L I A B I L I T Y IN CRIMES AGAINST P R O P E R T Y Article 332. Persons exempt from criminal liability • Who are the relatives benefited by Art. 332? For what crimes are they exempted?

Ixxx

952 952 953

TITLE ELEVEN CRIMES AGAINST CHASTITY Chapter O n e — A D U L T E R Y A N D C O N C U B I N A G E Article 333. Who are guilty of adultery

954

Article 334. Concubinage Will the doctrine of pari delicto be applicable in adultery? Is there frustrated adultery? Distinguish pardon from consent. How will either benefit the accused? How is concubinage committed? What is the penalty for and consequently which court has jurisdiction over the crime of concubinage? Who can initiate the action for adultery or concubinage? May a husband be liable for concubinage and adultery for the same act of illicit intercourse with the wife of another man?

954 954 955 955 955 956 956

957

Chapter T w o — R A P E A N D A C T S O F L A S C I V I O U S N E S S Article 335. When and how rape is committed. Repealed by R . A . No. 8353 — The Anti-Rape Law of 1997 Article 336. Acts of lasciviousness with the consent of the offended party • Compare Art. 336 with Art. 339 Compare acts of lasciviousness under the R P C andR.A. 7610

958 958 958 959

Chapter Three — S E D U C T I O N , C O R R U P T I O N OF MINORS A N D WHITE SLAVE TRADE Article 337. Qualified seduction

960

Article 338. Simple seduction

960

Article 339. Acts of lasciviousness with the consent of the offended party What are the elements of qualified seduction? Compare rape and qualified seduction

960 960 961

Ixxxi

What are the distinctions between simple (SS) and qualified seduction (QS)? What is the effect of carnal knowledge in certain crimes against chastity?

961 962

Article 340. Corruption of minors

962

Article 341. White slave trade How is corruption of minors committed? What is involved in white slave trade?

962 963 963

Chapter F o u r — A B D U C T I O N Article 342. Forcible abduction

964

Article 343. Consented abduction What are the elements of forcible abduction? When is forcible abduction complexed with rape? Is there a crime of forcible abduction with attempted rape or with acts of lasciviousness? • What is "lewd design"? What will lead to the presumption of lewd designs? Where the girl is under 12, what is the nature of abduction? When will the abduction be absorbed in the crime of rape? What various crimes can be committed with forcible taking of a woman? Can there be consented abduction with simple seduction? Compare consented abduction and seduction

964 964 965 965 966 966 966 966 967 967 967

Chapter F i v e — P R O V I S I O N S R E L A T I V E T O T H E PRECEDING CHAPTERS OF TITLE ELEVEN Article 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness

968

Article 345. Civil liability of persons guilty of crimes against chastity

968

Article 346. Liability of ascendants, guardians, teachers, or other persons entrusted with the custody of the offended party

969

Ixxxii

What is the nature of the indemnity awarded under Art. 345? When should the pardon be given by the offended party? What are the effects of pardon by the offended party? In rape cases, will the pardon of the parents of the victim without the concurrence of the minor victim be effective? Is an affidavit of desistance effective? What is the civil liability of a person convicted of the crime of rape when an offspring result from the rape? When compulsory acknowledgement of the offspring of rape proper?

969 969 969

970 970

970 971

TITLE TWELVE CRIMES AGAINST THE CIVIL STATUS OF PERSONS Chapter One — S I M U L A T I O N OF B I R T H S A N D U S U R P A T I O N O F CRVIL S T A T U S Article 347. Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate child

973

Article 348. Usurpation of civil status

973

Where should the simulation of birth be made?

973

Chapter T w o — I L L E G A L M A R R I A G E S Article 349. Bigamy

974

Article 350. Marriage contracted against provisions of laws What are the elements of bigamy? Is the lack of judicial declaration of nullity of a void marriage a cause for conviction for bigamy? Distinguish bigamy from illegal marriage The judicial declaration of absolute nullity of a previous marriage is necessary for what purposes? May the nullity of the marriage be presumed b y the parties?

974 974

Ixxxiii

975 975 976 9

7

6

Will the declaration of nullity of the first marriage after the celebration of the second free the offender from the charge of bigamy? 977 If a marriage ceremony was not held before a solemnizing officer the parties thereto merely signed a marriage contract, would such g operate to give validity to the marriage? 978 Will the principle of constructive notice by registration be applicable to the crime of bigamy? 978 Article 351. Premature marriages 979 What is the reason for the law in premature marriage? ... 979 Article 352. Performance of illegal marriage ceremony If a priest or minister who (a) has lapsed authority; or (b) is merely pretending to be one, officiated a marriage, what crime is committed?

979

979

TITLE THIRTEEN CRIMES AGAINST H O N O R What are the different crimes of defamation?

981

Chapter One — L I B E L Section One — Definition, Forms a n d Punishment of this Crime Article 353. Definition of libel To find a person guilty of libel, what elements must be proved? How should the defamatory words in a publication be construed?

982

Article

982

354. Requirement of publicity How are the elements of publication and identification satisfied? Does the issuance of an inter-office memorandum satisfy the element of publicity in libel?

Article 355. Libel by means of writings or similar means What kind of defamation are utterances made in broadcast media? Can the court impose fine instead of imprisonment?

981 981

982 983 984 984 984

Article 356. Threatening to publish and offer to prevent such publication for a compensation

985

Article 357. Prohibited publication of acts referred to in the course of official proceedings

985

Article 358. Slander 985 When is a defamatory remark serious and when slight? .. 985 Is the expression "p...i..mo" defamatory? 986 Is there frustrated or attempted defamation? 986 Article 359. Slander by deed

986

Section T w o — General Provisions Article 360. Persons responsible Who are the persons responsible for defamatory publications? What court has jurisdiction in libel case? What is the effect of R . A . 7691 on the jurisdiction of the courts over libel cases? Where is the venue of libel cases? What should the information contain to vest jurisdiction on a particular court? Article 361. Proof of the truth When is the truth of a defamatory statement a defense? M a y evidence proving the truthfulness of the imputation be received? What is the nature of fair commentaries on matters of public interest? Who is a public figure? Article 362. Libelous remarks What is malice in law? What is malice presumed? What is malice in fact? What are privileged statements? What is the purpose of the doctrine of privileged communication? In determining the issue of relevancy, what has been the attitude of the courts? • What is the "rule of actual malice"? What is the nature of statements made in judicial proceedings? Ixxxv

986 988 988 989 990 991 992 992 993 994 994 995 995 995 996 996 997 9

9

7

9

9

7

Does an inter-office memo partake of the nature of privileged communication? When a communication is privileged, what happens to the presumption of malice in defamatory imputations? How should imputations against public figures be treated? What is the requirement before public officers can demand damages from of the press? How is reckless conduct measured? Who has the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for making such allegations? Can the headline alone of the newspaper be libelous?

998

999 999 1000 1000

1000 1000

Chapter T w o — I N C R I M I N A T O R Y M A C H I N A T I O N S Article 363. Incriminating innocent person

1001

Article 364. Intriguing against honor What is intriguing against honor? What is incriminating innocent person?

1001 1001 1001

TITLE FOURTEEN QUASI-OFFENSES Sole Chapter — C R I M I N A L N E G L I G E N C E Article 365. Imprudence and negligence What is reckless imprudence? Compare it with simple imprudence What are the elements of reckless imprudence? Discuss the nature of culpa or imprudence Does the principle of complex crimes apply to imprudence? What is the proper penalty for imprudence resulting to slight physical injuries? What is the proper penalty for imprudence resulting to damage to property only? Does subsidiary penalty apply to reckless imprudence?.... • In cases of abandonment of the victim, what provision of the Code shall govern?

1003 1004 1005 1005 1006 1006 1007 1007 1008

Relate reckless imprudence to malice Give examples of reckless acts which result to homicide To convict for medical malpractice, what evidence is required? What is the exception to the requirement of expert witness for medical negligence? Cite examples when the res ipsa loquitur rule was applied What are the requisites for the application of res ipsa loquitur ? Is there Double Homicide through Reckless Imprudence with violation of the Motor Vehicle Law (R.A. 4136)? What is the rule on double recovery in negligence cases? Should the offender whose single reckless act resulted to multiple offenses be charged with only one offense pursuant to the prohibition against multiplicity or duplicity of charges? What is the limitation to the rule that a single act or incident offending against two or more unrelated provisions of law justify prosecution for more than one offense? Does a felony (malum in se) "absorb" an offense (malum prohibitum)? 1

Ixxxvii

1008 1008 1009 1009 1010 1011

1011 1012

1013

1013 1014

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