RKMFILES CENTER FOR COMPREHENSIVE STUDIES

Room 309, 3rd Floor A-Building, Main AUF Campus, Angeles University Foundation Email: rkmfiles@yahoo.com Website: www.rkmfiles.net CP: 09088849680

REVIEW NOTES IN
CRIMINAL JURISPRUDENCE
CRIMINAL LAW (REVISED PENAL CODE
BOOK 1)

CRIMINAL LAW (REVISED PENAL CODE

BOOK 2)

CRIMINAL PROCEDURE CRIMINAL EVIDENCE SPECIAL LAWS

COMPILED BY: LUCIA M. HIPOLITO -- ROMMEL K. MANWONG -- ALFIE P. SARMIENTO

CRIMINAL LAW (REVISED PENAL CODE - BOOK I) CRIMINAL LAW DEFINED Criminal Law is that branch or division of law which defines crimes, treats of their nature, and provides for their punishment. When did the Revised Penal Code take effect? The Revised Penal Code took effect on January 1, 1932 (Art. 1, RPC). Characteristics of Criminal Law Criminal Law has three main characteristics, namely (1) general, (2) territorial, and (3) prospective. A. General Application It has General application because Criminal Law is binding on all persons who reside or sojourn in Philippine territory. Art. 2 of the Revised Penal Code states that the provisions of this Code shall be enforced within the Philippine Archipelago, including its atmosphere, interior waters and maritime zone, without reference to the person or persons who might violate any of its provisions. Art. 14 of the Civil Code provides that penal laws shall be obligatory upon all who live or sojourn in Philippine territory. Exceptions to the General Application of Criminal Law There are cases where our Criminal Law does not apply even if the crime is committed by a person residing or sojourning in the Philippines. They constitute the exceptions. (1) The opening sentence of Art. 2 of the Revised Penal Code says that the provisions of this Code shall be enforced within the Philippine Archipelago, except as provided in the treaties and laws of preferential application. Art. 14 of the Revised Penal Code provides that penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations. (a) Treaty or Treaty Stipulations

(2)

An example of treaty or treaty stipulation, as an exception to the general application of our Criminal Law is the Base Agreement entered into by and between the Philippines and the USA on March 14, 1947 stipulating that the Philippines consents that the US have the right to exercise jurisdiction over some particular offenses. However, the said Military Bases Agreement already expired on September 16, 1991. (b) Law on Preferential Application

Republic Act No. 75 may be considered a law of preferential application in favor of diplomatic representatives and their domestic servants. It is a law to penalize acts which would impair the proper observance by the Republic and inhabitants of the Philippines of the immunities, rights, and privileges of duly accredited foreign diplomatic representatives in the Philippines.

www.rkmfiles.net

Nota Bene: The law does not apply when the foreign country adversely affected does not provide similar protection to our diplomatic representatives. (c) Principles of Public International Law

Persons exempt from the operations of our criminal laws by virtue of the principles of public international law: 1) Sovereigns and other chiefs of state; 2) Ambassadors; 3) Ministers plenipotentiary; 4) Ministers resident; and 5) Charges d affaires. It is well established principle of international law that diplomatic representatives, such as ambassadors or public ministers and their official retinue, possess immunity from the criminal jurisdiction of the country of their sojourn and cannot be sued, arrested or punished by the law of that country. Nota Bene: A consul is not entitled to the privileges and immunities of an ambassador or minister. B. Territorial Application It is Territorial, in that criminal law undertakes to punish crimes committed within the Philippine territory. Art. 2 of the Revised Penal Code states that the provisions of this Code shall be enforced within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, which constitute the Philippine territory. Extent of Philippine Territory for Purposes of Criminal Law: Art. 2 of the Revised Penal Code provides that the provisions of said Code shall be enforced within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone. Art. 1 of the 1987 Constitution provides as follows: The 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. The 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. Exceptions to the Territorial Application of Criminal Law Art. 2 of the Revised penal Code provides: Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also 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 Philippine Islands or obligations and securities issued by the Government of the Philippine Islands; 3) Should be liable for acts connected with the introduction into these islands of the forged or counterfeited obligations and securities; 4) While being public officers or employees, should commit an offense in the exercise of their functions; or

www.rkmfiles.net

5) Should commit any of the crimes against national security and the law of nations; 6) Should destroy or cause destruction to the maritime/marine zone, the Exclusive Economic Zone (EEZ) and the natural resources within the EEZ of the Philippines. C. Prospectivity of Criminal Laws It is Prospective, in that a penal law cannot make an act punishable when committed. Crimes are punished under the laws in force at the time of their commission Art. 21 of the Revised Penal Code provides that no felony shall be punishable by any penalty not prescribed by law prior to its commission. Art. 366 of the Revised Penal Code provides that felonies are punishable under the laws enforced at the time of their commission. Exception to the Prospective Application of Criminal Laws Whenever a new statute dealing with crime establishes conditions more lenient or favorable to the accused, it can be given a retroactive effect. Exceptions to the Exception: This exception has no application in the following instances: (1) where the new law is expressly made inapplicable to pending actions or existing causes of actions. (2) Where the offender is a habitual delinquent/criminal under Art. 62 of the Revised Penal Code. Nota Bene: The new law can still be given a retroactive effect if the offender is a Recidivist. THEORIES IN CRIMINAL LAW There are three theories in criminal law, namely: (1) classical theory, (2) positivist theory, and (3) eclectic theory. A. CHARACTERISTICS OF CLASSICAL THEORY 1. The basis of criminal liability is human tree will and the purpose of the penalty it retribution. 2. That man is essentially a moral creature with an absolutely free will to choose between good and evil, thereby placing more stress upon the effect or result of the felonious act than upon the man, the criminal himself. 3. It has endeavoured to establish a mechanical and direct proportion between crime and penalty. 4. There is a scant regard to the human element. B. CHARACTERISTICS OF POSITIVIST THEORY 1. That man is subdued occasionally by a strange and morbid phenomenon which constraints him to do wrong, in spite of or contrary to his volition. 2. That crime is essentially a social and natural phenomenon, and as such, (a) it cannot be treated and checked by the application of abstract principles of law and jurisprudence nor by the imposition of a punishment fixed and determined a priori; (b) but rather through the enforcement of individual investigation conducted by a competent body of psychiatrist and social scientists. C. CHARACTERISTICS OF ECLECTIC THEORY What are felonies (Delitos)? Felonies are acts and omissions punishable by law (Art. 3, 1st par., RPC).

www.rkmfiles.net

What are the committed?

two

ways

of

committing

felonies?

How

are

felonies

Felonies are committed by means of deceit (dolo) or by means of fault (culpa). Elements of Felonies: 1. That there must be an act or omission. 2. That the act or omission must be punishable by the Revised Penal Code (RPC). culpa. 3. That the act is performed or the omission incurred by means of dolo or 4. That the act or omission must have been voluntarily.

When is there deceit? There is deceit when the act is performed with deliberate intent. Requisites of Intentional Felonies In order that an act or omission may be considered as having been performed or incurred with deliberate intent, the following requisites must concur: act; 1. The offender must have FREEDOM while doing an act or omitting to do an

2. The offender must have INTELLIGENCE while doing the act or omitting to do the act; and act. 3. The offender must have INTENT while doing the act or omitting to do the

NECESSITY OF FREEDOM When a person acts without freedom, he is no longer a human being but a tool. His liability is as much as that of the knife that wounds, or of the torch that sets fire, or of the key that opens a door, or of the ladder that placed against the wall of a house in committing robbery. Example: The following have no freedom: (a) a person who acts under the compulsion of an irresistible force, or (b) a person who acts under the impulses of an uncontrollable fear of an equal of greater injury. Thus, they are exempt from criminal liability under Art. 12, paragraphs 5 and 6 respectively of the Revised Penal Code. NECESSITY OF INTELLIGENCE Intelligence is a necessary factor in determining the morality of a particular act. Thus without this power, no crime can exist. Example: The following are exempt from criminal liability because of the absence of intelligence: (1) An imbecile or an insane person, unless the latter has acted during a lucid interval (Art. 12, (1), RPC); (2) A person under nine (9) years of age (Art. 12, (2), RPC); (3) A person over nine (9) years of age and under fifteen (15), unless he has acted with discernment (Art. 12, (3), RPC). NECCESSITY OF INTENT Intent to commit he act with malice, being purely a mental process, is presumed and the presumption arises from the proof of the commission of an unlawful act.

www.rkmfiles.net

Nota Bene: All the three requisites of voluntariness in intentional felony must be present because a voluntary act is a free, intelligent, and intentional act. When is there fault? There is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. Requisites of Culpa In order that the act or omission in felonies committed by means of fault or culpa may be considered voluntary, the following must concur: (1) The offender must have FREEDOM while doing the act or omitting to do the act; (2) The offender must have INTELLIGENCE while doing the act or omitting to do the act; and (3) The offender is IMPRUDENT, NEGLIGENT or LACKS FORESIGHT or SKILL while doing the act or omitting to do the act. Felonies are classified according to the means by which they are committed into: (1) Intentional Felonies or felonies committed with malice or deliberate intent, and (2) Culpable Felonies or felonies committed as a result of imprudence, negligence, lack of foresight or lack of skill. GENERAL CLASSES OF CRIMES 1. Intentional Felonies; 2. Culpable Felonies; and 3. Those crimes defined and penalized by special laws, which include crimes punishable by municipal or city ordinances. The first two are defined and penalized under the Revised Penal Code of the Philippines. Who incurs criminal liability? Criminal liability shall be incurred: (1) By any person committing a felony (delito) although the wrongful act done be different from that which he intended. (2) By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means (Art. 4, RPC). Notes: Under paragraph 1 of Art. 4, a person committing a felony is criminally liable although the wrongful act done be different from that which he intended. The causes which may produce a result different from that which the offender intended are: 1. error in personae or mistake in the identity of the victim; 2. aberratio ictus or mistake in the blow, that is, when the offender intending to do an injury to one person actually inflicts it on another; and 3. praeter intentionem or when the injurious result is greater than that intended or the act exceeds the intent. Requisites:

www.rkmfiles.net

In order that a person may be held criminally liable for a felony different from that which he intended to commit, the following must be present: (1) That an intentional felony has been committed; and (2) That the wrong done to the aggrieved party be the direct, natural and logical consequence of the felony committed by the offender. In simple words, the felony committed must be the proximate cause of the resulting injury. PROXIMATE CAUSE DEFINED That cause, which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. The felony committed is not the proximate cause of the resulting injury (1) when there is an active force that intervened between the felony committed and the resulting injury, and the active force is a distinct act or fact absolutely foreign from the felonious act of the accused, or (2) when the resulting injury is due to the intentional act of the victim. IMPOSSIBLE CRIME Paragraph 2 of Article 4 of the Revised Penal Code defines impossible crime, to wit, an act which would be an offense against persons or property. Were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. Why are impossible crimes punishable? The commission of an impossible crime is indicative of criminal propensity or criminal tendency on the part of the actor. Such person is a potential criminal. Objectively, the offender does not commit a felony, but subjectively he is a criminal. According to the positivist way of thinking, the community must be protected from anti-social activities, whether actual or potential, of the morbid type of man called socially dangerous person. Requisites of Impossible Crime (1) That the act performed would be an offense against persons or property. (2) That the act was done with evil intent. (3) That is accomplishment is inherently impossible, or that the means employed is either inadequate or ineffectual. (4) That the act performed should not constitute a violation of another provision of the Revised Penal Code. Example of an Impossible Crime, where the act performed by the offender would have been an offense against persons were it not for the inherent impossibility of its accomplishment. Stabbing a person lying on bed, the offender having the intent to kill him and thinking that he was only sleeping, when in fact that person had already been dead before he stabbed him. The act performed by the offender would have been murder, an offense against persons, were it not for the inherent impossibility of its accomplishment, it being impossible to kill a person who is already dead. Example of an impossible crime, where the act performed by the offender would have been an offense against property were it not for the inherent impossibility of its accomplishment. Picking the pocket of another, without his knowledge and consent, to take with intent to gain any personal property from that pocket which turned out to be empty. The act performed by the offender would have been theft, an offense against

www.rkmfiles.net

property, were it not for the inherent impossibility of its accomplishment, since theft cannot be committed when there is no personal property that could be taken. Case: A picked the pocket of B and succeeded in extracting Bs wallet. Once in possession of the wallet, A opened it, but finding it empty, he threw away the wallet. Is A guilty of an impossible crime? Ans: No, because the wallet has some value and the crime of theft is consummated from the moment the offender has taken possession of the wallet with intent to gain. Hence, that person is guilty, not of an impossible crime, but of theft. Nota Bene: In impossible crime, the act performed should not constitute another offense, specifically punished by law. Example of an impossible crime where the means employed is inadequate Using small quantity of arsenic or poison to kill a person. The small quantity of poison is inadequate to kill a person. But the one who used it to kill another is liable for impossible crime, because subjectively he is a criminal. Example of an impossible crime where the means employed is ineffectual. Believing that certain white powder was arsenic or poison, A mixed it with the coffee intended for B. When B drank it he was not injured at all, because the white powder was sugar. What is the penalty for impossible crime? The penalty for impossible crime is arresto mayor or a fine from 200 to 500 pesos (Art. 59, RPC). What factors must be considered by the court in determining the proper penalty for impossible crime? The factors that must be considered by the court in determining the proper penalty are: (1) the social danger and (2) the degree of criminality shown by the offender (Art. 59, RPC). Case: liable? Ans.: No. It is believed that A shows stupidity rather than dangerousness. According to the positivist theory, A should not be punished, because there is neither social danger nor any degree of criminality shown by him. Even subjectively, a man with little common sense will know that he cannot hit a person by firing a revolver one kilometer away. What is the duty of the court in connection with acts, which should be repressed, but which are not covered by the law? Whenever a court has knowledge of any act which it may deem proper to repress and which s not punishable by law, it shall render the proper decision, and shall 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 (Art. 5, 1st paragraph, RPC). What is the duty of the court in cases of excessive penalties? Whenever the court finds that a strict enforcement of the provisions of the Revised Penal Code would result in the imposition of a clearly excessive penalty, A fired his revolver at B from a distance of one kilometer. Is A criminally

www.rkmfiles.net

taking into consideration the degree of malice and the injury caused by the offense, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence (Art. 5, 2nd paragraph, RPC). What are the three stages of the acts execution of a felony? The three stages of execution of a felony are attempted, frustrated and consummated. Are these stages of execution punishable? Consummated felonies, as well as those which are frustrated and attempted, are punishable (Art. 6, 1st paragraph, RPC). Nota Bene: When the crime is punishable by a special law, the attempted and frustrated stages of the acts of execution are not punishable, unless the special law provides a penalty therefore. When is a felony attempted? A felony is attempted when the offender commences the commission of a felony directly by over 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 (Art. 6, 3rd paragraph, RPC). Elements of Attempted Felony 1. 2. 3. 4. The offender commences the commission of the felony directly by overt acts; He does not perform all the acts of execution which should produce the felony; The offenders act be not stopped by his own spontaneous desistance; and The non-performance of all the acts of execution was due to cause or accident other than his own spontaneous desistance.

The external acts must have a direct connection with the crime intended to be committed by the offender. What is an indeterminate offense? It is one where the purpose of the offender in performing an act is not certain. Its nature in relation to its objective is ambiguous. When is a felony frustrated? A felony is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator (Art. 6, 2 nd paragraph, RPC). Elements of Frustrated Felony 1. 2. 3. 4. The offender performs all the acts of execution; All the acts performed would produce the felony as a consequence; The felony is not produce ; By reason of causes independent of the will of the perpetrator.

Felony Distinguished from Attempted Felony 1. In both, the offender has not accomplished his criminal purpose. 2. In frustrated felony, the offender has performed all the acts of execution which would produce the felony, while in attempted felony, the offender merely commences the commission of a felony directly by overt acts and does not perform all the acts of execution.

www.rkmfiles.net

In other words, in frustrated felony, the offender has reached the objective phase; in attempted felony, the offender has not passed the subjective phase. SUBJECTIVE PHASE It is that portion of the execution of the crime, starting from the point where the offender begins to that point where he has still control over his acts, including their natural course. OBJECTIVE PHASE It is that portion of the acts of the offender, where he has no more control over the same. All the acts of execution have been performed by him. Attempted Felony/Frustrated Felony Distinguished from Impossible Crime 1. In attempted or frustrated felony and impossible crime, the evil intent of the offender is not accomplished. 2. In impossible crime, the evil intent of the offender cannot be accomplished; in attempted or frustrated felony the evil intent of the offender is possible of accomplishment. 3. In impossible crime, the evil intent of the offender cannot be accomplished or because the means employed by the offender is inadequate or ineffectual; in attempted or frustrated felony, what prevented its accomplishment is the intervention of certain cause or accident in which the offender had no part. Are there felonies that have no attempted or frustrated stages of execution? If yes what are they? are: Yes there are felonies that have no attempted and frustrated felonies. They (1) (2) (3) (4) (5) flight to enemy country, corruption of minors, formal crimes, lie slander ad false testimony; felonies by omission like misprision of treason; and treason.

The crime of flight to enemy country has no attempted and frustrated stages of execution because in flight to enemy country, the mere attempt to flee or go to enemy country consummates the crime. The same is true with the crime of corruption of minors. The mere proposal to the minor to satisfy the lust of another consummates the crime. In formal crimes, there are no attempted and frustrated stages of execution because they are consummated in one instant by a single act. In felonies by omission, there is either a felony when the offender fails to perform an act required by law to be done, or no felony, if the offender performs the act. In treason, the overt act I itself constitutes the crime. Nota Bene: In the case of People versus Orita, 184 SCRA 1905, the Supreme Court held there is no such crime as Frustrated Rape. Rape could either be attempted of consummated.

When is a felony consummated? A felony is consummated when all the elements necessary for its execution and accomplishment are present (Art. 6, 2nd paragraph, RPC). Every crime has its own elements which must all be present to constitute a culpable violation of a precept of law. What is an overt act?

10

www.rkmfiles.net

An overt act is physical activity, more than a mere planning or preparation, which evinces the intention of the offender to commit a particular felony. In what stage of the acts of execution is it important to determine the existence of the overt act? The existence of the overt act is important only in the attempted stage of the acts of execution. It is not necessary to determine the existence of overt act in the other stages of execution, because in frustrated stage, as well as in the consummated stage of execution, the offender has performed all the acts of execution which necessarily implies that the offender has done more than an overt act. What is a preparatory act? Give at least two examples. Preparatory acts are those initial acts of a person who has conceived the idea of committing a crime, but which cannot by themselves logically and necessarily ripen into a concrete offense. They are not even overt acts and hence, they do not constitute the attempted stage of the acts of execution. The examples of preparatory acts are (1) conspiracy and proposal to commit a felony, and (2) buying or securing weapon to commit a crime, i.e. murder, homicide, robbery, etc. Are preparatory acts punishable? Generally, preparatory acts are not punishable because the law regards the as innocent or at least permissible, except in rare and exceptional cases. The following preparatory acts are punishable: 1. conspiracy to commit treason, rebellion and sedition; 2. proposal to commit treason and rebellion; and 3. preparatory acts which are considered in themselves, by law, as independent crimes like the following: a) possession of picklocks which is preparatory to the commission of robbery with force upon things; b) possession of unlicensed firearm. Nota Bene: The above mentioned acts are punished by law not a preparatory acts but as a distinct crime i.e. possession of picklocks defined and punished under Art. 304 of the Revised penal Code and illegal possession of firearm defined and punished under P.D. 1866 as amended by R.A. 8294. When are light felonies punishable under the Revised Penal Code? As a general rule, light felonies are punishable only when they have been consummated (Art. 7, RPC). Example of light felonies which are punishable only when consummated. 1. Betting in sport contest, 2. Illegal cock-fighting, and 3. Intriguing against honor. Nota Bene: These light felonies are punishable only when consummated because they are not against persons or property and, hence, they are covered by the general rule. Reason for the rule: Light felonies produce such sight, such insignificant moral and material injuries that public conscience is satisfied with providing alight penalty for their

11

www.rkmfiles.net

consummation. If they are not consummated, the wrong done is so light that there is no need of providing a penalty at all. Is there any exception? Yes, there is. Light felonies committed against persons or properties are punishable even if they are only in the attempted or frustrated stage of execution (Art. 7, RPC). Reason for the exception The commission of felonies against persons or property presupposes in the offender some moral depravity WHEN IS THERE CONSPIRACY? A conspiracy exists when to or more persons come to an agreement concerning the commission of a felony and decide to commit it (Art. 8, 2 nd paragraph, RPC). Requisites of Conspiracy 1. That two pr more persons came to an agreement; 2. That the agreement concerned the commission of a felony; and 3. That the execution of the felony be decided upon. Is conspiracy punishable? Conspiracy is punishable only in the cases in which the law specially provides a penalty therefore (Art. 8, 1st paragraph, RPC). Distinguish conspiracy as a felony from conspiracy as a manner of incurring criminal liability: Conspiracy is a felony when the law especially provides a penalty therefore. In such cases, the mere agreement and decision to commit a particular felony is punished by law. Thus, conspiracy to commit treason, rebellion and sedition is punishable. However, if after the conspiracy the offenders actually committed treason, rebellion or sedition, the conspiracy ceases to be a felony and becomes only a manner of incurring criminal liability, that is, the act of one conspirator is the act of all the other conspirators. In other crimes, like murder or abduction, the mere agreement and decision to commit them is not punishable, as there is no provision in the RPC which punishes conspiracy to commit murder or abduction. The conspirators become liable only when the crime, like murder or abduction, is actually committed. But they are liable for the crime actually committed, not for conspiracy to commit it. The conspiracy will be considered only to make the offenders equally liable, that is, in the same degree and to the same extent. When is there a proposal to commit a felony? There is proposal when the person who has decided to commit e felony proposes its execution to some other person or persons (Art. 8, 3rd paragraph, RPC). Is proposal to commit a felony punishable? Proposal to commit a felony is punishable only in cases in which the law specially provides a penalty therefore (Art. 8, 1st paragraph, RPC). May a person be held liable for proposal to commit rebellion if the proposal is rejected by the person to whom the proposal is made? Why? Yes, because what the law punishes is the mere proposal to commit rebellion or treason by one who is decided to commit it. The acceptance of such proposal is not necessary.

12

www.rkmfiles.net

What are the three classifications of felonies according to gravity? According to gravity, felonies are classified as grave felonies, less grave felonies and light felonies. What are grave felonies? Grave felonies are those to which the law attaches the capita punishment or penalties which in any of their periods are afflictive, in accordance with Article 25 of the Revised Penal Code (Art. 9, 1st par., RPC). What are less grave felonies? Less grave felonies are those which the law punishes with penalties which in their maximum period are correctional, in accordance with Art. 25 of the Revised Penal Code (Art. 9, 2nd par. RPC). What are light felonies? Light felonies are those infractions of law for the commission of which a penalty of arresto menor or a fine not exceeding 200 pesos or both, is provided (Art. 9, 3rd par., RPC). Are Offenses defined and penalized by special laws subject to the provisions of the Revised Penal Code? What is the function of the RPC with regard to these offenses? No. Offenses, which are or in the future may be punishable under special laws are not subject to the provisions of the Revised Penal Code. The Revised Penal Code shall be supplementary to such laws, unless the latter should specially provide the contrary (Art 10, RPC). What are the circumstances which affect criminal liability? The circumstances which affect criminal liability are: (1) (2) justifying circumstances (Art. 11, RPC), exempting circumstances (Art. 12, RPC) and other absolutory causes (Art. 20, Art. 124, last paragraph, RPC), (3) mitigating circumstances (Art. 13, RPC), (4) aggravating circumstances (Art. 14, RPC), and (5) alternative circumstances (Art. 15, RPC). Justifying Circumstances Any person acting under any of the justifying circumstances does not incur criminal liability. The act of a person under any of the justifying circumstances is in accordance with law, so that such person is deemed not to have transgressed the law and is free from both criminal and civil liability. Exempting Circumstances Technically, one who acts by virtue of any of the exempting circumstances commits a crime, although by the complete absence of any of the conditions which constitute free will or voluntariness of the act, no criminal liability arises. Hence, there is wanting in the agent of the crime any of the conditions which make the act voluntary, or negligent. There is however, civil liability. Mitigating Circumstances These circumstances are based on the diminution of either the freedom of action, intelligence, or intent, or on the lesser perversity of the offender. Aggravating Circumstances

13

www.rkmfiles.net

These are based on the greater perversity of the offender manifested in the commission of the felony as 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 of the offended party. Alternative Circumstances The basis of these alternative circumstances is the nature and effects of the crime and the other conditions attending its commission. What are the justifying circumstances? The justifying circumstances provided for under Art. 11 are the following: (1) Anyone who acts in defense of his person or rights, provided that the following circumstances concur: 1. Unlawful aggression. 2. Reasonable necessity of the means employed to prevent or repel it. 3. Lack of sufficient provocation on the part of the person defending himself. (2) Any one who acts in defense of the person or rights of his spouse, ascendants, or legitimate natural or adopted brothers or sisters, or of his relatives by affinity in the same degrees and those by consanguinity within the fourth civil degree, provided the following requisites are present: 1. Unlawful aggression. 2. Reasonable necessity of the means employed to prevent or repel it. 3. In case the provocation was given by the person attacked, that the one making defense had no part therein. (3) Anyone who acts in defense of the person or rights of a stranger, provided that the following requisites concur: 1. Unlawful aggression. 2. Reasonable necessity of the means employed to prevent or repel it. 3. The person defending be not induced by revenge, resentment, or other evil motive. (4) Any person who, in order to avoid an evil or injury, does an act which causes damage to another, provided that the following requisites are present: 1. That the evil sought to be avoided actually exists. 2. That the injury feared be greater than that done to avoid it. 3. That there be no other practical and less harmful means of preventing it. (5) Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office. (6) Any person who acts in obedience to an order issued by a superior for some lawful purpose. What constitutes unlawful aggression? The act must be unjustified and sufficient to imperil ones life, limb or right. Is threat an unlawful aggression? Mere threatening attitude is not unlawful aggression. But if the threat is offensive and positively strong, showing the wrongful intent to cause an injury, that threat is an unlawful aggression.

14

www.rkmfiles.net

Who are exempt from criminal liability? The following are exempt from criminal liability: (1) An imbecile or an insane person, unless the latter has acted during a lucid interval. When the imbecile or an insane person has committed an act which the law defines as a felony (delito), 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. (2) A person under nine years of age. (3) A person over nine years of age and under fifteen, unless he has acted with discernment, in which case, such minor shall be proceeded against in accordance with the provisions of Article 80 of the Revised Penal Code. When such minor is adjudged to be criminally irresponsible, the court, in conformity with the provisions of this and the preceding paragraph, shall commit him to the care and custody of hi family who shall be charged with his surveillance and education otherwise, he shall be committed to the care of some institutions or person mentioned in said Art. 80. (4) Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it. Nota Bene: What is the penalty imposable when all the conditions required are not present? When all the conditions required to exempt from criminal liability (under circumstance number 4 of Art. 12) are not present, the penalty imposable upon the culprit is

(a)

arresto mayor in its maximum period to prision correccional in its minimum period if he shall have been guilty of a grave felony, and (b) arresto mayor in its minimum and medium periods, if of a less grave felony (Art. 67, RPC). (5) Any person who acts under the compulsion of irresistible force.

(6) Any person who acts under the impulse of an uncontrollable fear or an equal or greater injury. (7) Any person who fails to perform an act required by law, when prevented by some lawful insuperable cause. What are the mitigating circumstances? The following are mitigating circumstances: (1) Those justifying and exempting circumstances when all the requisites necessary to justify the act or to exempt from criminal liability in the respective cases are not attendant. That the offender is under eighteen years of age or over seventy years. In the case of the minor, he shall be proceeded against in accordance with the provisions of Article 80. That the offender had no intention to commit so grave a wrong as that committed.

(2)

(3)

15

www.rkmfiles.net

(4) (5)

That sufficient provocation or threat on the part of the offended party immediately preceded the act. That the act was committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse, ascendants, descendants, legitimate, natural, or adopted brothers or sisters, or relatives by affinity within the same degrees. That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation. That the offender had voluntarily surrendered himself to a person in authority or his agents, or that he had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution. That the offender is deaf and dumb, blind or otherwise suffering some physical defect which thus restricts his means of action, defense or communication with his fellow beings. Such illness of the offender as would diminish the exercise of the will power of the offender without however depriving him of the consciousness of his acts.

(6) (7)

(8)

(9)

(10) Any other circumstances of a similar nature and analogous to those above mentioned. What are the aggravating circumstances? The aggravating circumstances are the following: (1) That advantage be taken by the offender of his public position. (2) That the crime be committed in contempt of or with insult to the public authorities. (3) That the act be committed with insult or in disregard of the respect due the offended party on account of his rank, age, or sex, or that it be committed in the dwelling of the offended party, if the latter has not given provocation. (4) That the act be committed with abuse of confidence or obvious ungratefulness. (5) That the crime be committed in the palace of the chief executive, or in his presence, or where public authorities re engaged in the discharge of their duties, or in a place dedicated to religious worship. (6) That the crime be committed in the night time, or in an uninhabited lace, or by a band, whenever such circumstances may facilitate the commission of an offense. Whenever more than three armed malefactors shall have acted together in the commission of an offense, it shall be deemed to have been committed by a band. (7) That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune. (8) That the crime be committed with the aid of armed men or persons who insure or afford impunity. (9) That the accused is a recidivist. A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of this Code.

16

www.rkmfiles.net

(10) That the offender has been previously punished by 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. (11) That the crime be committed in consideration of a price, reward or promise. (12) That the crime be committed by means of inundation, fire, poison, explosion, stranding of a vessel or intentional damage thereto, derailment of a locomotive, or by the use of any other artifice involving great waste and ruin. (13) That the act committed with evident premeditation. (14) That craft, fraud or disguise be employed. (15) That advantage be taken of superior strength, or means be employed to weaken the defense. (16) That the act be committed with treachery (alevosia). There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. (17) That means be employed or circumstances brought about which add ignominy to the natural effects of the act. (18) That the crime be committed after an unlawful entry. There is an unlawful entry when an entrance is effected by way not intended for the purpose. (19) That as a means to the commission of a crime a wall, roof, floor, door, or window be broken. (20) That the crime be committed with the aid of persons under fifteen years of age or by means of motor vehicles, motorized watercraft, airships, or other similar means (as amended by RA 5438). (21) That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commission. What are alternative circumstances? What are they? Alternative circumstances are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and the other conditions attending its commission. The alternative circumstances are (1) relationship, (2) intoxication, and (3) the degree of instruction and education of the offender. When is the alternative circumstance of relationship be considered? The alternative circumstance of relationship shall be taken into consideration when the offended party is the (a) spouse, (b) ascendant (c) descendant, (d) legitimate, natural or adopted brother or sister, or (e) relative by affinity in the same degrees of the offender. When shall the alternative circumstance of intoxication mitigating? The intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender has committed a felony in a state of intoxication, if the same is (a) not habitual or (b) not subsequent to the plan to commit said felony.

17

www.rkmfiles.net

Nota Bene: For an accused to be entitled to the mitigating circumstance of intoxication, it must be shown that: (1) at the time of the commission of the criminal act, he has taken such quantity of alcoholic drinks as to blur his reason and deprive him of a certain degree of control; and (2) that such intoxication is not habitual, or subsequent to the plan top commit the felony. When is intoxication aggravating? The intoxication of the offender is aggravating (a) when the intoxication is habitual or intentional or (b) when it is intentional or subsequent to the plan to commit the crime. Habitual Drunkard One given to intoxication by excessive use of intoxicating drinks. The habit should be actual and confirmed. It is unnecessary that it be a matter of daily occurrence. DEGREE OF INSTRUCTION AND EDUCATION Low degree of instruction and education or lack of it is generally mitigating. High degree of instruction and education is aggravating when the offender avails himself of his learning in committing the crime. Nota Bene: Night time and dwelling are not qualifying aggravating circumstances. They are merely ordinary or generic aggravating circumstances that could elevate the impossible penalty to its maximum period. The qualifying aggravating circumstances are those provided for in Art. 248 of the Revised Penal Code. If any qualifying aggravating circumstance attended the commission of the crime it elevates the crime to a graver offense and gives it its proper designation. For example when the killing is attended with any of the qualifying aggravating circumstances like dwelling, the offender will be liable for murder and not merely homicide. NIGHT TIME That period of darkness beginning at end of dusk and ending at dawn. The Civil Code defines it as from sunset to sunrise. (Art. 13, Civil Code of the Philippines). Not all the time, night time may be appreciated as an aggravating circumstance. Night time may be appreciated as an aggravating circumstance in the following instances: 1) when it facilitated the commission of the crime; 2) when it is especially sought for by the offender to insure the commission of the crime; or 3) when the offender took advantage thereof for the purpose of impunity. Night time is not aggravating, even if the crime was committed during night time in the following instances: 1) When the crime was the result of a succession of acts which took lace within the period of two hours commencing at 5:00 p.m. to 7:00 p.m.;

18

www.rkmfiles.net

2) When treachery concurred with night time in the commission of the crime because night time is absorbed in treachery; and 3) When the meeting between the offender and the offended party at night time is causal and the idea of committing the crime came into the mind of the offender only at that time. The reason for this is that night time was not especially sought for by the offender. But, it may still be aggravating, if the darkness facilitated the commission of the crime or that the offender took advantage of it. DWELLING Dwelling is an aggravating circumstance when the crime is committed in the dwelling of the offended party. Why? Because of two reasons, namely: (1) when the offender was welcomed in the home of the offended party and the offender committed the crime against the latter, there was ABUSE OF CONFIDENCE; and (2) when the offender forced his way into the dwelling of the offended party to commit the crime therein, there was VIOLATION OF THE SANCTITY OF THE HOME. Dwelling is not aggravating in the following instances; 1) When the offended party in his dwelling gave sufficient and immediate provocation to the offender. The offended party loses his right to be respected in his home, because he gave sufficient provocation to the offender. But the provocation contemplated has three requisites: (a) it must be given in his dwelling; (b) it must be sufficient; and (c) it must be immediate. 2) When both the offender and the offended party are occupants of the same dwelling. 3) When dwelling is inherent in the crime, such as in robbery with force upon things and in trespass to dwelling. Pursuant to the 2000 Rules on Criminal procedure specifically Rule 110 qualifying aggravating circumstances as well as ordinary or generic aggravating circumstances must be alleged in the information in order to be appreciated. WHO ARE CRIMINALLY LIABLE? Ans.: The following are criminally liable for grave and less grave felonies: 1) Principals. 2) Accomplices. 3) Accessories. The following are liable for light felonies: 1) Principals. 2) Accomplices. WHO ARE CONSIDERED AS PRINCIPALS? The following are considered principals: (1) Those who take a direct part in the execution of the act; (2) Those who directly force or induce others to commit it; (3) Those who cooperate in the commission of the offense by another act without which it would not have been accomplished (Art. 17, RPC).

19

www.rkmfiles.net

Three Kinds of Principals: 1. Principal by Direct Participation (PDP) - Those who take a direct part in the execution of the act. 2. Principal by Induction (PI) - Those who directly force or induce others to commit a crime. 3. Principal by Indispensable Cupertino (PIC) - Those who cooperate in the commission of the offense by another act without which the crime would not have been accomplished. PRINCIPAL BY DIRECT PARTICIPATION The principal by direct participation personally takes part in the execution of the act constituting the crime. For example, one who with intent to gain, personally shoots another is liable as principal by direct participation in the crime of homicide or one who burns the house of another is a principal by direct participation in the crime of arson. Nota Bene: Two or more persons may take direct part in the execution of the act, in which case they may be principals by direct participation, provided, the following requisites are present: (1) That they participated in the criminal resolution. Absent this requisite, the offender cannot be made liable as principal. (2) That they carried out their plan and personally took part in its execution by acts, which directly tended to the same end. PRINCIPAL BY INDUCTION Becomes liable only as such when the participation committed the act induced. Requisites: In order that a person may be convicted as principal by inducement, the following requisites must be present: 1. That the inducement be made directly with the intention of procuring the commission of the crime; and 2. That such inducement be the determining cause of the commission of the crime by the material executor. principal by direct

Two Ways of Becoming a Principal by Induction 1. By directly forcing another to commit a crime, either (a) by using irresistible force, or (b) by causing uncontrollable fear. 2. By directly inducing another to commit a crime, either (a) by giving price, or offering reward or promise, or (b) by using words of command. PRINCIPAL BY INDISPENSABLE COOPERATION Cooperates with the principal by direct participation. Requisites: 1. Participation in the criminal resolution, that is, there is either anterior conspiracy or unity of criminal purpose and intention immediately before the commission of the crime charged; and

20

www.rkmfiles.net

2. Cupertino in the commission of the offense by performing another act without which the crime would not have been accomplished. Nota Bene: Determine the cooperation rendered by the offender whether dispensable or indispensable. If indispensable, liable as principal by indispensable cooperation, but if the cooperation is dispensable, liable as an accomplice. WHO ARE CONSIDERED AS ACCOMPLICES? Accomplices are those who, not being principals cooperate in the execution of the offense by previous or simultaneous acts (Art. 18, RPC). Requisites: In order that a person may be considered as accomplice, the following requisites must concur: 1. There must be a community of design; that is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose; 2. He cooperates in the execution of the offense by previous or simultaneous acts, with the intention of supplying material or moral aid in the execution of the crime in an efficacious way; and 3. There must be a relation between the acts done by the principal and those attributed to the person charged as accomplice. Examples of Cooperation by an Accomplice 1. By Previous Act -- Lending of a dagger or pistol to the murderer, knowing the latters criminal purpose. 2. By Simultaneous Act The defendant who held one of the hands of the victim and tried to take away the latters revolver, while his co-defendant was attacking him, is an accomplice for he cooperates in the execution of the crime by simultaneous act without any previous agreement or understanding.

Nota Bene: 1. An accomplice is neither a principal nor an accessory but who cooperates with the principal by direct participation by previous or simultaneous acts. 2. An accomplice concurs or approves the act of the principal by direct participation and performs other acts showing his conformity to the act of the principal by direct participation. 3. An accomplice is not a part of the plan or conspiracy. 4. The act or acts of the accomplice must be lesser than the act or acts done by the principal by direct participation, that is, they must not be equal to or graver than the act or acts of the principal by direct participation. 5. The cooperation of the accomplice is only necessary, not indispensable. How an Accomplice Acquires Knowledge of the Criminal Design of the Principal? 1. When the principal informs or tells the accomplice of the formers criminal purpose. 2. When the accomplice saw the criminal acts of the principal. Distinction between Conspirators and Accomplices

21

www.rkmfiles.net

1. Conspirators and accomplices have one thing in common; they know and agree with the criminal design. Conspirators, however, know the criminal intention because they themselves have decided upon such course of action. Accomplices come to know about after the principals have reached a decision and only then do they agree to cooperate in its execution. 2. Conspirators decide that a crime should be committed; accomplices merely concur in it. Accomplices do not decide whether a crime should be committed, they merely assent to the plan and cooperate in its accomplishment. 3. Conspirators are the authors of the crime; accomplices are merely their instruments who perform acts not essential to the perpetration o the offense. WHO ARE CONSIDERED AS ACCESSORIES? Accessories are those who having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners: (1) By profiting themselves or assisting the offender to profit by the effects of the crime. (2) By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery. (3) By harboring, concealing or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime (Art. 19, RPC). Paragraph 3 of Article 19 contemplates two kinds of accessories. They are: 1. Public officers who harbor, conceal or assist in the escape of the principal of ANY CRIME (except for light felony) with the abuse of his pubic functions. Requisites: (a) (b) (c) (d) The accessory is a public officer. He harbors, conceals, or assists in the escape of the principal; The public officer acts with abuse of his public functions. The crime committed by the principal is any crime, provided it is not a light felony.

2. Private persons who harbor, conceal or assist in the escape of the author of the crime or the principal: (1) who is guilty of (a) treason, (b) parricide, (c) murder, or (d) an attempt against the life of the Chief Executive, or (2) who is known to be habitually guilty of some other crime. Nota Bene: The accessory, to be liable, must have knowledge that the principal is habitually guilty of some other crime. Presidential Decree No. 1612 (Anti-Fencing Law of 1979) FENCING. DEFINED (Sec. 2, par. A, PD 1612) 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. FENCE, DEFINED (Sec. 2, par. B)

22

www.rkmfiles.net

Any person, firm, association, corporation or partnership or other organization who/which commits the act of fencing. WHO ARE THE ACCESSORIES THAT ARE EXEMPT FROM CRIMINAL LIABILITY? IS THERE ANY EXECPTION? Those accessories with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees. The only exception is those accessories who incurred such liability by profiting themselves or assisting the offender to profit by the effects of the crime. These accessories are criminally liable even if the principal be their spouse, ascendant, descendant, legitimate, natural and adopted brother or sister, or relative by affinity with in the same degree (Art. 20, RPC). Notes: 1. An accessory is exempt from criminal liability, when the principal is his-(a) spouse, or (b) ascendant, or (c) descendant, or (d) legitimate, natural or adopted brother or sister, or (e) relative by affinity within the same degrees. 2. Nephew or niece not included among such relatives. 3. Accessory is not exempt from criminal liability even if the principal is related to him, if such accessory: (a) profited by the effects of the crime, or (b) assisted the principal to profit by the effects of the crime.

PENALTIES Can you punish an act which is not defined and penalized by any statute at the time of its commission? No. Article 21 of the Revised Penal Code provides that No felony shall be punishable by any penalty not prescribed by law prior to its commission. The penalties under the Revised Penal Code have three-fold purposes, namely: 1. Retribution of Expiation the penalty is commensurate with the gravity of the offense. 2. Correction or Reformation those penalties consisting deprivation of liberty. 3. Social Defense shown by its inflexible severity to recidivists and habitual delinquents. May penal laws be given retroactive effect or application? Yes. Penal laws shall have retroactive effect insofar as they favor the persons guilty of a felony, who is not a habitual criminal, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same (Art. 22, RPC). What is the effect of pardon given by the offended party? A pardon by the offended party does not extinguish criminal action, but civil liability with regard to the interest of the injured party is extinguished by the express waiver of the offended party (Art. 23, RPC). However, if the pardon is given prior to the institution of the criminal action, it shall extinguish criminal liability

23

www.rkmfiles.net

What are the measures of prevention or safety which are not considered penalties? The following shall not be considered as penalties: (1) The arrest and temporary detention of accused persons, as well as their detention by reason of insanity or imbecility, or illness requiring their confinement in a hospital. (2) The commitment of a minor: (a) to a public or private, benevolent or charitable institution, established under the law for the care, correction or education of orphaned, homeless, defective, and delinquent children, or (b) to the custody or care of any other responsible person in any other place subject to the visitation and supervision by the Director of Public Welfare or any of his agents or representatives, if there be any, or otherwise by the Superintendent of Public Schools or his representatives. (3) Suspension from the employment or public office during the trial order to institute proceedings. (4) Fines and other corrective measures which, in the exercise of administrative disciplinary powers, superior officials may impose their subordinates. (5) Deprivation of rights and the reparations which the civil laws establish in penal form. or in their upon may

What are the different classes of penalties which may be imposed under the Revised Penal Code? The different classes of penalties which may be imposed under the Revised Penal Code are the following: 1. PRINCIPAL PENALTIES (1) Capital Punishment Death (2) Afflictive Penalties Reclusion Perpetua Reclusion Temporal Perpetual or Temporary Absolute Disqualification Perpetual or Temporary Special Disqualification Prision Mayor Fine Bond to Keep the Peace (3) Correctional Penalties Prision Correccional Arresto Mayor Suspension Destierro Fine Bond to Keep the Peace (4) Light Penalties Arresto Menor Public Censure Nota Bene: Penalties common to Afflictive penalties, Correctional Penalties and Light penalties are: (1) Fine, and (2) Bond to Keep the Peace 2. ACCESSORY PENALTIES (1) Perpetual or temporary absolute disqualification (2) Perpetual or temporary special disqualification

24

www.rkmfiles.net

(3) Suspension from public office, the right to vote and be voted for, the profession or calling (4) Civil interdiction (5) Indemnification (6) Forfeiture or confiscation of instruments and proceeds of the offense (7) Payment of costs (Art. 25, RPC). When is a penalty considered afflictive, correctional, or light? A fine whether imposed as a single or as an alternative penalty shall be considered:

(a) an afflictive penalty, if it exceeds 6,000 pesos; (b) a correctional penalty, if it does not exceed 6,000 pesos but is not less
than 200 pesos; and

(c) light penalty if it be less than 200 pesos (Art. 26, RPC).
DURATION OF PENALTIES (Art. 27, RPC as amended by RA 7659) Reclusion Perpetua 20 years and 1 day to 40 years Reclusion Temporal 12 years and 1 day to 20 years Prision Mayor and Temporary Disqualification 6 years and 1 day to 12 years, except when the penalty of disqualification is imposed as an accessory penalty, in which case, its duration shall be that of the principal penalty. Prision Correccional, Suspension, and Destierro 6 months and 1 day to 6 years, except when suspension is imposed as an accessory penalty, in which case, its duration shall be that of the principal penalty. Arresto Mayor 1 month and 1 day to 6 months Arresto Menor 1 day to 30 days Bond to Keep the Peace The bond to keep the peace shall be required as to cover such period of time as the court may determine.

COMPUTATION OF PENALTIES Rules: 1. If offender be in prison, the term of the duration of the temporary penalties shall be computed from the day on which the judgment of conviction shall have become final 2. If the offender be not in prison, the term of the duration of the penalty consisting of deprivation of liberty shall be computed from the day that the offender is placed at the disposal of the judicial authorities for the enforcement of the penalty. 3. The duration of other penalties shall be computed only from the day on which the defendant commences to serve his sentence (Art. 28, RPC). When may the period of preventive imprisonment be allowed to be deducted from the term of imprisonment? Offenders who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, (a) with the full time during which they have undergone preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners; or (b) four-fifths (4/5) of the time during which he has undergone preventive imprisonment if the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted persons (Art. 29, RPC as amended by RA 6127).

25

www.rkmfiles.net

Requisites: 1. The sentence imposed by the court consists of deprivation of liberty or imprisonment; 2. The offender has undergone preventive imprisonment during the pendency of the criminal proceeding until the finality of the judgment; and 3. The detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners. Who are not entitled to be credited with the full time or four-fifths of the time of preventive imprisonment? The following offenders are not entitled to be credited either with the full time or four-fifths of the time of preventive imprisonment: 1. Recidivist, or those convicted previously twice or more times of any crime; and 2. Those who, upon being summoned for the execution of the their sentence have failed to surrender voluntarily (Art. 29, RPC). Rule When Preventive Imprisonment for a Period Equal to or more than the Possible Maximum Imprisonment Whenever the accused has undergone preventive imprisonment or a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial thereto or the proceeding on appeal, if the same is under review (Art. 29, RPC as amended by EO 214, July 10, 1987).

Rule in Case the Maximum Penalty is Destierro In case the maximum penalty to which the accused may be sentenced is Destierro, he shall be released after 30 days of preventive imprisonment (Ibid). EFFECTS OF THE PENALTIES ACCORDING TO THEIR RESPECTIVE NATURE What are the effects of the penalties of Perpetual or Temporary Absolute Disqualification? The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects: 1. The deprivation of the public offices and employment which the offender may have held, even if conferred by popular election. 2. The deprivation of the right to vote in any election for any popular office or to be elected to such office. In case of temporary disqualification, the disqualification shall last during the term of the sentence. 3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned. In case of temporary disqualification, the disqualification shall last during the term of the sentence. 4. The loss of all rights to retirement pay or other pension for nay office formerly held (Art. 30, RPC). What are the effects of the penalties of perpetual or temporary special disqualifications? The penalties of perpetual or temporary special disqualification for public office, profession or calling shall produce the following effects:

26

www.rkmfiles.net

1. The deprivation of the office, employment, profession or calling affected. 2. The disqualification or holding similar offices or employments either perpetually or during the term of the sentence according to the extent of such disqualification (Art. 31, RPC). What are the effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage? The perpetual or temporary special disqualification for the exercise of the right of suffrage shall: (a) deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office; and (b) the offender shall not be permitted to hold any public office during the period of his disqualification (Art. 32, RPC). What are the effects of the penalties of suspension from any public office, profession or calling, or the right of suffrage? The penalties of suspension from any public office, profession or calling, or the right of suffrage shall disqualify the offender from holding such office or exercising such profession or calling or right of suffrage during the term of the sentence. The person suspended from holding public office shall not hold another having similar functions during the period of his suspension (Art. 33, RPC). What are the effects of civil interdiction? Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of the ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos (Art. 34, RPC). What are the effects of bond to keep the peace? It gives the person sentenced to give bond to keep the peace the duty to present two sufficient sureties who: (a) shall undertake that such person will not commit the offense sought to be prevented, and (b) in case such offense be committed they will pay the amount determined by the court in the judgment, or otherwise to deposit such amount in the office of the clerk of the court to guarantee said undertaking (Art. 35, RPC). What is the effect if the person sentenced failed to give the bond required by the court? Should the person sentenced fail to give the bond as required he shall be detained for a period which: (a) shall in no case exceed six (6) months, if he shall have been prosecuted or a grave or less grave felony, and (b) shall not exceed thirty (30) days if for a light felony (Art. 35, RPC). What is the period of duration of the bond? The period of duration of the bond depends upon the discretion of the court. The court shall determine, according to its discretion, the period of duration of the bond (Art. 35, RPC). What are the effects of pardon given by the President in the exercise of his pardoning power? The pardon given by the President have the following effects: (1) It shall not work the restoration of the right to hold pubic office, or the right of suffrage except when such rights were expressly restored by the terms of the pardon, and

27

www.rkmfiles.net

(2) It shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence (Art 36, RPC). What are included in the costs of the proceeding in criminal cases? Costs shall include fees and indemnities in the course of the judicial proceedings, whether they be fixed or unalterable amounts previously determined by law or regulations in force, or amounts not subject to schedule (Art. 37, RPC). What are pecuniary liabilities of a person guilty of a crime? The pecuniary liabilities of the offender are the following: (1) The reparation of the damage caused; (2) Indemnification of consequential damages; (3) The Fine; and (4) The cost of the proceedings. What is the order of payment in case the property of the offender is not sufficient for the payment of all his pecuniary liabilities? In case the property of the offender is not sufficient for the payment of all his pecuniary liabilities, the same shall be met in the following order: 1. The reparation of the damage caused. 2. Indemnification of consequential damages. 3. The fine. 4. The cost of the proceedings.

When should this order of payment be availed of? The order of payment provided for under Art. 28 of the Revised Penal Code should be availed of only when the offender is insolvent or his property is not sufficient for the payment of all his pecuniary liabilities. What is subsidiary penalty? Subsidiary penalty is a subsidiary personal liability to be suffered by the convict who has no property with which ti meet the pecuniary liabilities for the reparation of the damage caused, indemnification of consequential damages, and fine, at the rate of one day for each 8.00, subject to the rules provided for by law. Is subsidiary penalty deemed imposed in case the convict could not pay certain pecuniary liabilities by reason of insolvency? Explain. No, subsidiary penalty must be expressly imposed by the Court in order that the convict may be required to serve it. It is not an accessory penalty. It is imposed upon the accused and served by him in lieu of certain pecuniary liabilities which he fails to pay on account of insolvency. What are the rules relative to subsidiary penalty? The rules are: 1. If the penalty imposed if Prision Correccional or arresto and fine subsidiary imprisonment, not to exceed 1/3 of the term of the sentence, and in no case to continue for more than one year. Fraction or part of a day, not counted. 2. When the penalty imposed is fine only subsidiary imprisonment, not to exceed 6 months, if the offense is grave or less grave felony; and not to exceed 15 days, if light felony. 3. When the penalty imposed is higher than prision correccional no subsidiary imprisonment. 4. If the penalty imposed is not by confinement, but of fixed duration the nature of the subsidiary penalty is the same as that of the principal penalty under the same rules in number 1, 2, and 3 above. 5. In case the financial circumstances of the convict should improve he shall pay the fine (Art. 39, RPC as amended by RA 5465, April 21, 1969).

28

www.rkmfiles.net

Notes: In what case is there no subsidiary penalty, even if the offender cannot pay the pecuniary liabilities by reason insolvency? Even if the offender cannot pay the pecuniary liabilities by reason of insolvency, the offender cannot be required to undergo subsidiary penalty in the following instances:

1. When the penalty imposed is higher than Prision correccional, such as Prision
mayor, Reclusion temporal and Reclusion perpetua. In this case, there is no subsidiary penalty. 2. For failure to pay the costs of the proceedings there is no subsidiary penalty. 3. When the penalty imposed is fine and a penalty not to be executed by confinement in a penal institution and has no fixed duration, there is no subsidiary penalty. Nota Bene: Subsidiary penalty is possible only when any of the following penalties is imposed: prision correccional; suspension and fine; destierro arresto mayor; arresto menor; and fine only.

(1) (2) (3) (4) (5) (6)

What is the maximum duration of the subsidiary penalty? If the penalty imposed is prision correccional or arresto mayor and fine it shall not exceed one-third (1/3) of the term of the sentence, and in no case shall it continue for more than one (1) year. But if the penalty imposed if fine only, it shall not exceed six (6) months, if the offender is prosecuted for grave or less grave felony; and not more than fifteen (15) days, if prosecuted for a light felony. In what does the subsidiary penalty consist? Subsidiary penalty does not always consist of imprisonment. If the penalty imposed is prision correccional or arresto mayor and fine, the subsidiary penalty shall consist in imprisonment. If the penalty imposed is destierro, the subsidiary penalty is also destierro. If the penalty imposed is suspension, the subsidiary penalty is also suspension. What is an accessory penalty? An accessory penalty is that penalty which is deemed included in the imposition of the principal penalty. What are the accessory penalties of death? If the penalty of death is executed, it has no accessory penalties for obvious reasons. If the penalty of death not executed by reason of commutation or pardon, its accessory penalties are (1) perpetual absolute disqualification, and (2) civil interdiction during thirty (30) years EXCEPT when such accessory penalties have been expressly remitted in the pardon (Art. 40, RPC). What are the accessory penalties of Reclusion Perpetua and Reclusion Temporal? The accessory penalties of Reclusion Perpetua and Reclusion Temporal are (1) civil interdiction for life or during the period of the sentence as the case may be, and (2) perpetual absolute disqualification which the offender shall suffer even though

29

www.rkmfiles.net

pardoned as to the principal penalty EXCEPT when such accessory penalties have been expressly remitted in the pardon (Art. 41, RPC). What are the accessory penalties of Prision Mayor? The accessory penalties of prision mayor are (1) temporary absolute disqualification, and (2) perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty EXCEPT when such accessory penalties have been expressly remitted in the pardon (Art. 42, RPC). What are the accessory penalties of Prision Correccional? The accessory penalties of prision correccional are (1) suspension from public office, from the right to follow a profession or calling, and (2) perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen (18) months even though pardoned as to the principal penalty EXECPT when such accessory penalties have been expressly remitted in the pardon (Art. 43, RPC). What are the accessory penalties of arresto? The accessory penalties of arresto are (1) suspension of the right to hold office, and the right of suffrage during the term of the sentence (Art. 44, RPC). Note: Every penalty imposed for the commission of a felony carries with it the forfeiture of the proceeds of the crime and the instruments or tools with which it was committed. What should be done to the proceeds, instruments or tools? Such proceeds and instruments or tools are confiscated and forfeited in favor of the Government EXCEPT when such property belongs to a third person not liable for the offense. Those articles which are not subject of lawful commerce shall be destroyed (Art. 45, RPC). Is subsidiary penalty an accessory penalty? No. Subsidiary penalty is a personal penalty prescribed by law I substitution of the pecuniary liability when the latter cannot be satisfied because of the culprits insolvency. Hence, subsidiary imprisonment cannot be served unless the judgment so provides in case the accused is insolvent (People vs. Fajardo, 65 Phil. 539). APPLICATION OF PENALTIES Generally, the Penalty Imposed by Law is to be Imposed Upon Principals The penalty prescribed by law for the commission of a felony shall be imposed upon the principals in the commission of such felony (Art. 46, RPC). Penalty Imposed Applies to Consummated Felony Whenever the law prescribed a penalty for a felony in general terms, it shall be understood as applicable to the consummated felony (Art. 46, RPC). WHAT IS A COMPLEX CRIME? A complex crime is one where a single act constitutes two or more grave or less grave felonies or where an offense is a necessary means for committing the other (Art. 48, RPC). Two Kinds of Complex Crime

30

www.rkmfiles.net

(1) Delito Compuesto or Compound Crime - When a single act constitutes two
or more grave or less grave felonies.

(2) Delito Complejo or Complex Crime Proper - When an offense is a

necessary means for committing the other. Nota Bene: A complex crime is only one crime as contemplated by law because the offender has only one criminal intent. DELITO COMPUESTO (Compound Crime) Requisites: 1. That only a single act is performed by the offender. 2. That the single act produces two or more grave or less grave felonies. Examples: Murder with Homicide, Homicide with Frustrated Homicide DELITO COMPLEJO (Complex Crime Proper) Requisites: 1. That at least two offenses are committed. 2. That one or some of the offenses must be necessary means for committing the other. 3. That both or all the offenses must be punished under the same statute. Examples: Nota Bene: No complex crime when one of the offenses was committed for the purpose of concealing the commission of the other. Example: After committing homicide, the accused in order to conceal the crime, set fire to the house where it had been perpetrated. Setting fire to the house is arson (Art 321). But in this case, neither homicide nor arson was necessary to commit the other. Hence, the offender committed two separate crimes of Homicide and Arson. No complex crime where the offense is penalized by a special law. In the case of Reocdica versus Court of Appeals, a grave or less grave felony cannot be complex with a light felony. The light felony should be separated, no to be complexed. PENALTY TO BE IMPOSED IN CASE OF COMPLEX CRIMES The penalty for the more or most serious crime shall be imposed, the same to be applied in its maximum period (Art. 48, RPC). Nota Bene: The penalty to be imposed in case of complex crime is the penalty imposable to the gravest offense notwithstanding the presence of mitigating circumstances. This is so because the maximum of the maximum cannot be offset by any mitigating circumstance. This does not mean however that the Indeterminate Sentence Law does not apply to complex crimes. As long as the case does not belong to the exceptions provided for under Sec. 2 of Act 4103 as amended (Indeterminate Sentence Law), the provisions of such law shall be applied. Estafa through falsification of commercial documents. Malversation through falsification of a public document.

31

www.rkmfiles.net

However, in fixing the maximum penalty imposable to the offender, the maximum shall be imposed regardless of the presence of any mitigating circumstance. Penalty to be Imposed upon the Principals when the Crime Committed is Different from That Intended In cases in which the felony committed is different from that which the offender intended to commit, the following rules shall be observed:

(1)

If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit the penalty corresponding to the offense which the accused intended to commit shall be imposed in its maximum period. (2) If the penalty prescribed for the felony committed be lower than that corresponding to the one, which the accused intended to commit the penalty prescribed for the felony committed shall be imposed in its maximum period. (3) The rule established by the next preceding paragraph shall not be applicable if the acts committed by the guilty person shall also constitute an attempt or frustration of another crime, if the law prescribes a higher penalty for either of the latter offenses, in which case the penalty provided for the attempted or the frustrated crime shall be imposed in its maximum period (Art. 49, RPC). Nota Bene: Art. 49 does not apply to aberratio ictus because I this hypothesis there is a complex crime and Art. 48 applies. It does not apply also to praeter intentionem, because in this hypothesis, the crime befalls the same person, whereas Art. 49 has no application to cases where a more serious consequence not intended by the offender befalls the same person (People versus Alburquerque, 59 Phil. 150). ARTICLES 50 - 57 Penalty to be imposed upon PRINCIPALS of a FRUSTRATED CRIME: The penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon the principal in a frustrated felony (Art. 50, RPC). Penalty to be imposed upon PRINCIPALS of ATTEMPTED CRIMES: A penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the principals in an attempt to commit a felony (Art. 51, RPC). Nota Bene: Art. 250. Penalty for frustrated parricide, murder or homicide. The courts in view of the facts of the case may impose upon the person guilty of the frustrated crime of PARRICIDE, MURDER or HOMICIDE a penalty lower by one degree than that which should be imposed under the provisions of Art. 50. The courts, considering the facts of the case may likewise reduce by one degree the penalty which under Art. 51 should be imposed for an attempt to commit any of such crimes (Art. 250, RPC). Question: May the court impose a penalty lower by two degrees than hat prescribed by law for the consummated felony upon the principal in a frustrated felony? Answer: Yes. The court, in view of the facts of the case, may impose upon the person guilty of the frustrated crime of parricide, murder or homicide a penalty lower by one degree than that which should be imposed under the provisions of Art. 50 (Art. 250, RPC).

32

www.rkmfiles.net

Inasmuch as Art. 50 provides that the penalty next lower in degree than that prescribed by law for the consummated felony shall, and Art. 250 provides that the court may impose a penalty lower by one degree than that which should be imposed under Art. 50, it is clear that the court can impose a penalty lower by two degrees. Question: May the court impose a penalty lower by three degrees than that prescribed by law for the consummated felony upon the principal in an attempted felony? Answers: Yes. The court, considering the facts of the case, may likewise reduce by one degree the penalty which under Art. 51 should b imposed for an attempt to commit any of such crimes (Art. 250, 2nd par.). Inasmuch as Art. 51 provides that a penalty lower by two degrees than that prescribed b law for the consummated felony shall be imposed upon the principal in an attempt to commit a felony, and Art. 250 provides that the court may reduce by one degree the penalty which under Art. 51 should be imposed for a attempt to commit the crime of parricide, murder or homicide, it is clear that he court can impose a penalty lower by three degrees. Note that Art. 250 only applies in three crimes, namely: (1) PARRICIDE, (2) MURDER, and (3) HOMICIDE. Penalty to be imposed upon ACCOMPLICES in a CONSUMMATED CRIME: The penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon the accomplices in the commission of a consummated felony (Art. 52, RPC). Penalty to be imposed upon ACCESSORIES to the commission of a CONSUMMATED FELONY: The penalty lower by two degrees than that prescribed by law or the consummated felony shall be imposed upon the accessories to the commission of a consummated felony (Art 53, RPC). Penalty to be imposed upon ACCOMPLICES in a FRUSTRATED CRIME: The penalty next lower in degree than that prescribed by law for the frustrated felony shall be imposed upon the accessories to the commission of a frustrated felony (Art. 54, RPC). Penalty to be imposed upon ACCESSORIES of a FRUSTRATED CRIME: The penalty lower by two degrees than that prescribed by law for the frustrated felony shall be imposed upon the accessories to the commission of a frustrated felony (Art. 55, RPC). Penalty to be imposed upon ACCOMPLICES in an ATTEMPTED CRIME: The penalty next lower in degree than that prescribed by law for an attempt to commit a felony shall be imposed upon the accomplices I an attempt to commit the felony (Art. 56, RPC). Penalty to be imposed upon accessories of an ATTEMPTED CRIME: The penalty lower by two degrees than that prescribed by law for the attempted felony shall be imposed upon the accessories to the attempt to commit a felony (Art. 57, RPC). Exception to Arts. 50 57: The provisions contained in Articles 50 to 57 shall not be applicable to cases in which the law expressly prescribes the penalty provided for a frustrated or attempted felony, or to be imposed upon accomplices or accessories (Art. 60, RPC). Additional penalty to be imposed upon certain accessories: Those accessories falling within the terms of paragraph 3, Art 19 of the RPC who should act with abuse of their public functions, shall suffer the additional penalty for absolute perpetual disqualification of the principal offender hall e guilty of a grave

33

www.rkmfiles.net

felony, ad that of absolute temporary disqualification if he shall be guilty of a less grave felony (Art. 58, RPC). RULES FOR GRADUATING PENALTIES For the purpose of graduating the penalties which according to the provisions of Arts. 50 57 are to be imposed upon persons guilty as principals of any frustrated or attempted felony, or as accomplices or accessories, the following rules shall be observed: 1. When 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 Art. 71. 2. When the penalty prescribed for the crime is composed of two indivisible penalties, or of one or more divisible penalties to be imposed to heir full extent, the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale. 4. When the penalty prescribed for the crime 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 three medium and minimum periods of the proper indivisible penalty and the maximum period of that immediately following in said respective graduated scale. 5. 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, which shall be taken from the penalty prescribed, if possible; otherwise from the penalty immediately following in the above mentioned respective graduated scale. 6. When the law prescribes a penalty for a crime in some manner not especially provided for in the four preceding rules, the courts proceeding by analogy, shall impose corresponding penalties upon those guilty as principals of the frustrated felony, or of attempt to commit the same, and upon accomplices and accessories (Art. 61, RPC). What is a degree in relation to the penalties provided by the Revised Penal Code? A degree is one unit penalty or one of the penalties enumerated in the graduated scales in Art. 71 of the Revised Penal Code. Thus, Scale No. 1 of said article mentions the penalties in the following order: 1. Death, 2. Reclusion Perpetua, 3. Reclusion Temporal, 4. Prision Mayor, 5. Prision Correccional, 6. Arresto Mayor, 7. Destierro, 8. Arresto Menor, 9. Public Censure, 10. Fine. One of them is a degree in relation to the others. Prision mayor is one degree lower from reclusion temporal. Prision correccional is two degrees lower from reclusion temporal. Effects of the attendance of mitigating or aggravating circumstances and of habitual delinquency: Mitigating or aggravating circumstances and habitual delinquency shall be taken into account for the purpose of diminishing or increasing the penalty in conformity with the following rules: 1. Aggravating circumstances which in themselves constitute a crime especially punishable by law or which are included by the law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of increasing the penalty.

34

www.rkmfiles.net

(a). When in the commission of the crime, advantage was taken by the offender of his public position, the penalty to be imposed shall be in its maximum regardless of mitigating circumstances. The maximum penalty shall be imposed if the offense was committed by any person who belongs 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. 2. The same rule shall apply with respect to any aggravating circumstances inherent in the crime to such a degree that it must of necessity accompany the commission thereof. 3. 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. 4. The circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein. 5. Habitual delinquency shall have the following effects:

(a)

Upon a third conviction the culprit shall be sentenced to the penalty provided by law for the last crime of which he be found guilty and to the additional penalty of prision correccional in its medium and maximum periods; (b) Upon a fourth conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the additional penalty of prision mayor in its minimum and medium periods; and (c) Upon a fifth or additional conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the additional penalty of prision mayor in its maximum period to reclusion temporal in its minimum period. Notwithstanding the provisions of this Article, the total of the two penalties to be imposed upon the offender, in conformity herewith, shall in no case exceed 30 years. For the purpose of this article, a person shall be deemed to be habitual delinquent, if within a period of ten (10) years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification, he is found guilty of any of said crimes a third time or oftener (Art. 62, RPC as amended by RA 7659). Rules for the application of indivisible penalties In all cases in which the law prescribed a single indivisible penalty, t shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed. In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof: (1) When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied. (2) When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied. (3) When the commission of the act is attended by some mitigating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied.

35

www.rkmfiles.net

(4) When the litigating and aggravating circumstances attended the commission of the act, the court shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation (Art. 63, RPC). Rules for the application of penalties which contain three periods: In cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of Arts. 76 and 77, the court shall observe for the application of the penalty the following rules, according to whether there are or are not mitigating or aggravating circumstances: (1) When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period. (2) When only a mitigating circumstance is present in the commission of the act, they shall impose the penalty in its minimum period. (3) When only an aggravating circumstance is present in the commission of the act, they shall impose the penalty in its maximum period. (4) When both mitigating and aggravating circumstances are present, the court shall reasonably offset those of one class against the other according to their relative weight. (5) When there are tow or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances. (6) Whatever may be the number and nature of the aggravating circumstances, the courts shall not impose a greater penalty than that prescribed by law, in its maximum period. (7) Within the limits f each period, the court shall determine the extent of the penalty according to the number and nature of the aggravating and mitigating circumstances and the greater or lesser extent o the evil produced by the crime (Art. 64, RPC). Notes: What is a period n relation to a penalty? A period is one of the three equal portions of a divisible penalty known as minimum, medium and maximum. However, when the penalty prescribed by the Code is composed of three distinct penalties each forming a period, a period is one of those three penalties. What is a complex penalty? A complex penalty is a penalty prescribed by law, composed of three distinct penalties, each forming a period. The lightest of them shall be the minimum period; the next the medium period and the most severe shall be the maximum period. Example: Reclusion Temporal to Death. minimum period Reclusion temporal medium period Reclusion Perpetua maximum period Death Is a complex penalty the penalty for a complex crime? No, it is not the penalty for complex crime. The penalty for a complex crime is that provided for under Article 48 of the Revised Penal Code, that is, the penalty for the graver or gravest offense, the same to be imposed in its maximum period. Rules in cases in which the penalty is not composed of three periods In cases in which the penalty prescribed by law is not composed of three periods, the courts shall apply the rules provided under Art. 64, dividing into three

36

www.rkmfiles.net

equal portions of time included in the penalty prescribed and forming one period or each of the three portions (Art. 65, RPC). IMPOSITION OF FINES May the court impose a fine at its own discretion? Art. 66 provide that in imposing fines the courts may fix any amount within the limits established by law. Hence, even though the law authorizes the court to impose any amount of fine, said amount should be within the limits provided for by law. What are the factors that should be taken into consideration by the court in fixing the amount of fine? In fixing the amount in each case, attention shall be given, not only to the mitigating and aggravating circumstances, but more particularly to the wealth or means of the culprit (Art. 66, RPC).

Penalty to be imposed upon a person under eighteen years of age When the offender is a minor under eighteen years and his case s one coming under the provisions of the paragraph next to the last of Art. 80 of the Revised Penal Code, the following rules shall e observed: (1) Upon a person under fifteen but over nine years of age, who is not exempted from liability by reason of the court having declared that he acted with discernment discretionary penalty shall be imposed, but always lower by two degrees at least than that prescribed by law for the crime which he committed. (2) Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period (Art. 68, RPC). Penalty to be imposed when the crime committed is not wholly excusable: A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal ability in the several cases mentioned in Arts. 11 and 12 provided that the majority of such conditions are present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking (Art. 69, RPC). SERVICE OF SENTENCE How should the offender serve his penalties when he has to serve two or more penalties? When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit. If the nature of such penalties is not possible for simultaneous service, the order of their severity shall be followed so that they may be executed successively or as nearly as may be possible, should a pardon have been granted as to the penalty or penalties first imposed, or should they have been served out (Art. 70, 1 st and 2nd paragraphs, RPC). According to severity, what is the order of the penalties provided for by law? The respective severities of the penalties are arranged in the following scale: 1. Death, 2. Reclusion Perpetua,

37

www.rkmfiles.net

3. Reclusion Temporal, 4. Prision Mayor, 5. Prision Correccional, 6. Arresto Mayor, 7. Arresto Menor, 8. Destierro, 9. Perpetual Absolute Disqualification, 10. Temporary Absolute Disqualification 11. Suspension for public office, the right to vote and be voted for, the right to follow a profession or calling, 12. Public censure. What is the three-fold rule in Criminal Law? It is the rule providing that the maximum duration of the convicts sentence shall not be more than three-old the length of tie corresponding to the most severe of the sentence imposed. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the sae maximum period. Such maximum period shall in no case exceed forty (40) years (Art. 70, PRC). What is the duration of perpetual penalties (pena perpetua)? The duration of perpetual penalties (pena perpetua) shall be computed at thirty (30) years (Art. 70, RPC). GRADUATED SCALE In the case in which the law prescribed a penalty lower or higher by one or ore degrees than another given penalty, the rules prescribed in Art. 61 shall be observed in graduating such penalty. The lower or higher penalty shall be taken from the graduated scale in which s comprised the given penalty. The courts in apllying such lower or higher penalty shall observe the following graduated scales: SCALE NO. 1 1. Death, 2. Reclusion Perpetua, 3. Reclusion Temporal, 4. Prision Mayor, 5. Prision Correccional, 6. Arresto Mayor, 7. Destierro, 8. Arresto Menor, 9. Public Censure, 10. Fine. SCALE NO. 2 1. Perpetual absolute disqualification, 2. Temporary absolute disqualification, 3. Suspension from pubic office, the right to vote and bevoted for, and the right to follow a profession or calling, 4. Public censure, 5. Fine (Art. 71, RPC). What is the order of preference in the payment of civil liabilities of a person found guilty of two or more offenses? The civil liability of a person found guilty of two or more offenses shall be satisfied by following the chronological order of the dates of the judgments rendered against him, beginning with the first in order of time (Art. 72, RPC). What is the presumption in regard to the imposition of accessory penalties?

38

www.rkmfiles.net

Whenever the courts shall impose a penalty which, by provision of law, carries with it other penalties such as death if not executed by reason of commutation or pardon, reclusion perpetua, reclusion temporal, prision mayor, prision correccional, and arresto, it must be understood that the accessory penalties are also imposed upon the convict (Art. 73, RPC). Penalty higher than reclusion perpetua in certain cases In cases in which the law prescribe a penalty higher than another given penalty, without specifically designating the name of the former, if such higher penalty should be that of death, the same penalty and the accessory penalties of Art. 40, shall be considered as the next higher penalty (Art. 74, RPC).

DIFFERENTIATIONS 1. When is the discharge of firearm (1) alarm, (2) illegal discharge of firearm, or (3) attempted homicide, or attempted murder or attempted parricide?

The discharge of firearm is considered as an alarm when the offender merely discharges his firearm within a town or public place, which produces alarm or danger, without aiming the firearm at or against any person. It is illegal discharge of firearm when the offender discharges the firearm against or at a certain person, without any intent to kill, but merely to frighten the offended party. It is attempted homicide, or attempted murder or attempted parricide, when the firearm is discharged at or against another person with intent to kill the latter, but without hitting the offended party or without inflicting a mortal wound on him. 2. When is the killing of a child below seven years of age (1) murder, (2) parricide, or (3) infanticide?

The killing of a child less than seven years of age is murder when the relation of the offender with the child is not one of those mentioned in the definition of the crime of parricide and the child is at least three (3) days old. It is parricide when the victim is the child, whether legitimate or illegitimate or the legitimate other descendant of the offender and the age of the child is at least three (3) days old. It is infanticide when the child killed is less than three (3) days old, regardless of whether or not the offender is related to the child. c d 3. Distinctions of Reclusion Perpetua from Life Imprisonment

The penalty of life imprisonment is applicable to special laws, reclusion perpetua is applicable to felonies punished under the Revised Penal Code. Reclusion perpetua entails imprisonment for at least thirty (30) years after which convict becomes eligible for pardon; Life imprisonment has no definite extent or duration. Reclusion perpetua carries with it accessory penalties while life imprisonment does not carry with it any accessory penalty. 4. Distinguish Syndicated Crime Group from a Conspiracy of Two or More Persons. In syndicated crime group, an offense is committed by a group actually organized for gain purposes. Such is not necessary in the latter. A syndicate crime group is an organized group. Such oganization is not required in mere conspiracy.

39

www.rkmfiles.net

 In syndicate, there is a group that is actually organized for crime purposes. When two or more persons just agree to commit a crime, there is conspiracy. 5. Distinguish Piracy from Mutiny In piracy, the persons who attack a vessel or seize its cargo are strangers to said vessel. In mutiny, they are members of the crew or passengers. Gain is essential in piracy. In mutiny, the offenders may only intend to ignore the ships officers or to commit plunder. e 6. Distinguish Cuadrilla from Syndicate Syndicate involves two or more persons not necessarily armed. Cuadrilla refers to at least four (4) armed persons. Cuadrilla generally applies to all crimes. Syndicate applies to crimes committed for purposes of gain. 7. Distinction between general intent and specific intent. In felonies committed by dolus, the third element of voluntariness is a general intent; whereas, in some particular felonies proof of particular or specific intent is required. Thus in certain crimes against property, there must be the intent to gain (Art. 293, Robbery, Art 308, Theft). Intent to kill is essential in frustrated or attempted homicide (Art. 249). In forcible abduction (Art 342), the specific intent of lewd designs must be proved. 8. Intent to commit the crime and intent to perpetrate the act, distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act), it is enough that the prohibited act is done freely and consciously. 9. Mala in se and mala prohibita, distinguished. There is a distinction between crimes which are mala in se, or wrongful from their nature, such as theft, rape, homicide, etc., and those that are mala prohibita, or wrong merely because prohibited by statute, such as illegal possession of firearm. Crimes mala in se are those so serious in their effects to society as to call for the almost unanimous condemnation of its members; while crimes mala prohibita are violations of mere rules of convenience designed to secure a more orderly regulation of the affairs of society.

(1) In acts mala in se, the intent governs; but in those mala prohibita, the only
inquiry is, has the law been violated? Criminal intent is not necessary where the act is prohibited for reasons of public policy, as in illegal possession of firearm. The term mala in se refers generally to felonies defined and penalized by the RPC. The term mala prohibita refers generally to acts made criminal by special laws.

(2)

10. Intent distinguished from motive. Motive is the moving power which impels one to action for a definite result. Intent is the purpose to use a particular means to effect such result. 11. Distinguish conspiracy as a felony from conspiracy as a manner of incurring criminal liability.

40

www.rkmfiles.net

In both, two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Hence, the definition of conspiracy in Art 8 applies to both. When the conspiracy relates to crimes other than treason, rebellion or sedition, it is not a felony but only a manner of incurring criminal liability. When the felony is committed after the conspiracy, the act of one offender is the act of all the other offenders. Even if the conspiracy relates to the crime of treason, rebellion or sedition, if the latter is actually committed, the conspiracy is not a separate offense, but only a manner of incurring criminal liability in treason, rebellion or sedition. The offenders are liable for treason, rebellion or sedition as the case may be, and the conspiracy is absorbed. (12) Imbecility distinguished from insanity. While the imbecile is exempted in all cases from criminal liability, the insane is not so exempted if it can be shown that he acted during a lucid interval. (13) Entrapment and instigation, distinguished. There is a wide difference between entrapment and instigation, fir while in the latter case the instigator practically induces the would-be accused into the commission of the offense and himself becomes a co-principal, in entrapment ways and means are resorted to for the purpose of trapping and capturing the law-breakers in the execution of his criminal plan. Entrapment is no bar to the prosecution and conviction of the lawbreaker. But when there is instigation, the accused must be acquitted. (14) Ordinary mitigating distinguished. and privileged mitigating circumstances,

1) An ordinary mitigating circumstance is susceptible of being offset by any aggravating circumstance; while a privileged mitigating circumstance cannot be offset by aggravating circumstance. 2) Ordinary mitigating, if not offset by an aggravating circumstance, produces only the effect of applying the penalty provided by law in its minimum period; whereas, privileged mitigating produces the effect of imposing upon the offender the penalty lower by one or two degrees that that provided by law. (15) Qualifying aggravating circumstance distinguished from generic aggravating circumstance. 1) The effect of a generic aggravating circumstance, not offset by any mitigating circumstance, is to increase the penalty which should be imposed upon the accused to the maximum period, but without exceeding the limit prescribed by law; while that of a qualifying circumstance is not only to give the crime its proper and exclusive name but also to place the author thereof in such a situation as to deserve no other penalty than that specifically prescribed by law for said crime. 2) A qualifying aggravating circumstance cannot be offset by a mitigating circumstance; a generic aggravating circumstance may be compensated by a mitigating circumstance. 3) A qualifying aggravating circumstance to be appreciated must be allege in the information If it is not alleged, it becomes a generic aggravating circumstance only. (16) With the aid of armed men distinguished from by a band. By a band requires that at least four armed malefactors shall have acted together in the commission of an offense. Aid of armed men is present even if the principal offender merely relied on their aid, for actual aid not necessary.

41

www.rkmfiles.net

(17) Recidivism and reiteracion, distinguished. The circumstance of reiteracion may be distinguished from recidivism in the following ways: (a) In reiteracion, it is necessary that the offender shall have served his sentence; whereas, in recidivism it is enough that a final judgement has been rendered. (b) In reiteracion, the previous and subsequent offenses must not be defined in the sae title of the RPC; whereas, recidivism requires that the offenses be included in the sae title of the Code. (c) Reiteracion is not always an aggravating circumstance; whereas, recidivism is always o be taken into consideration in fixing the penalty to be imposed upon the accused. (18) Amnesty and pardon, distinguished. 1) Pardon includes any crime and is exercise individually by the President; amnesty is a blanket pardon granted o classes of persons or communities who may be guilty of political offenses. 2) Pardon is exercised when the person is already convicted; amnesty may be exercised even before trial or investigation is had. 3) 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 it does not work the restoration of the rights o hold public office or the right of suffrage, unless such rights be expressly restored by the terms of the pardon. On the other hand, amnesty looks backward and abolishes and puts oblivion the offense itself; it so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense. 4) Both do not extinguish the civil liability of the offender. 5) Pardon, being a private act of the President, must be pleaded and proved by the person pardoned; while amnesty being by Proclamation of the Chief executive with the concurrence of Congress is a public act of which he courts should take judicial notice. (19) Conditional pardon distinguished from parole. 1) Conditional pardon, which may be given at any time after final judgement is granted by the Chief Executive under the provisions of the Administrative Code; parole, which may be given after the prisoner has served the minimum penalty, is granted by the Board of Pardons and Parole under the provision of the Indeterminate Sentence Law. 2) For violation of the conditional pardon, the convict may be ordered rearrested or reincarcerated by the chief executive, or may be prosecuted under he RPC; for violation of the terms of the parole, the convict cannot be prosecuted under the RPC. He can be rearrested and incarcerated to serve the unserved portion of his original penalty. (20) Illegal association, distinguished from illegal assembly. (1) In illegal assembly, it is necessary that there is an actual meeting or assembly of armed persons for the purpose of committing any o the rimes punishable under the PRC, or of individuals who, although not armed, are incited to the commission of treason, rebellion, sedition, or assault upon a person in authority or his agent. Such requisite is not necessary in the crime of illegal association. (2) In illegal assembly, it is the meeting and attendance at such meeting that are punished. In illegal associations, it is ha act of forming or organising and membership of the association that are punished. (3) If the purpose of the meeting is to commit crimes punishable by special laws, such meeting is not an illegal assembly. In illegal association, the purpose may include the commission of crimes punishable by special laws, because when the purpose of the organization

42

www.rkmfiles.net

is contrary to public morals the acts which are contrary to public morals may constitute crimes punishable under the special laws. (21) Prevaricacion, distinguished from bribery. The third form of direct bribery is committed by refraining from doing something which pertains to the official duty of the officer. Prevaricacion is committed in the same way. In this regard, the two felonies are similar. But they differ in that in bribery the offender refrained from doing his official duty in consideration of a gift received or promised. This element is not necessary in the rime of prevaricacion. (22) Direct bribery, distinguished from indirect bribery. 1) In both, the public officer receives gift. 2) While in direct bribery there is an agreement between the public officer and the giver of the gift or present, in indirect bribery usually no such agreement exists. 3) In direct bribery, the offender agrees to perform or performs an act or refrains from doing something, because of the gift or promise; 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 e accepts gifts by reason of his office.

(23) Brigandage, distinguished from robbery in band. Both brigandage and robbery in band require that the offenders form a band of robbers. In brigandage, the purpose of the offenders is any of the following: (1) to commit robbery in the highway, or (2) to kidnap persons for the purpose of extortion or to obtain ransom, or (3) for any other purpose to be attained by means of force and violence; in robbery in band, the purpose of the offenders is only to commit a particular robbery not necessarily in the highway. If the agreement among more than three (3) armed men was to commit only a particular robbery, the offense is not brigandage, but only robbery in band. In brigandage, the mere formation of a band for any of the purposes mentioned in the law is sufficient as it would not be necessary to show that the band actually committed robbery in the highway, etc.; in robbery in band, it is necessary to prove that the band actually committed robbery, as a mere conspiracy to commit robbery is not punishable (24) Imprudence distinguished from negligence. Imprudence indicates a deficiency of action, negligence indicates a deficiency of perception. Hence, failure in precaution is termed imprudence. Failure in advertence is known as negligence. The wrongful acts may be avoided on two levels: (1) by paying proper attention and using due diligence in foreseeing them, and (2) by taking the necessary precaution once they are foreseen. Failure to do the first is negligence. Failure o do the second is imprudence. (25) Forcible abduction with rape, distinguished from kidnapping.

43

www.rkmfiles.net

A, B, C and others grabbed a girl, 16 years of age and then dragged her to a nearby forest. There she was brutally ravished, first by A and afterwards by B. Are they guilty of kidnapping with rape? Held: The crime is not kidnapping with rape, but forcible abduction with rape. When the violent taking of a woman is motivated by lewd designs, forcible abduction is the offense. When it is not so motivated, such taking constitutes kidnapping. Forcible abduction is against chastity; kidnapping is against personal liberty.

CASES 1. A entered the house of B through the window and once inside took money and jewelry belonging to B after intimidating him with a pistol. What kind of robbery was committed by A? Why? Answer: A committed a complex crime of Robbery with Force Upon Things with Robbery with Intimidation. This is in accordance with the ruling laid down by the Supreme Court in the case of Napoles versus Court of Appeals. 2. A broke the wooden gate of the stone wall around the premises of B and once inside took from the yard of B building materials, which were lying there. What crime was committed by A? Explain with reasons. Answer: Theft, because although he broke open the gate, he did not enter the house with force upon things. He entered the yard only. 3. A removed the radio of B from the car of the latter and began to leave the place. On the way, B met A and, having recognized the radio, B asked A where he had gotten it; but A drew out and opened his knife and threatened to kill B. What crime or crimes were committed by A? Explain your answer. Answer: A committed two distinct and separate crimes of Theft and Grave Threats. To constitute robbery with violence against or intimidation of persons, the taking of personal property belonging to another with intent to gain must be accomplished because of violence or intimidation. In this case, the taking of the radio was complete and, hence, the crime of theft was already consummated when the offended party was intimidated. The threat to kill B made by A is not a constitutive element of robbery because the violence or intimidation must be employed before the taking of personal property belonging to another is complete. 4. A pointed his knife at B and demanded for his money, and B pulled his wallet from his pocket and handed it to A who took hold of it, but a policemen suddenly appeared, collared A, and placed him under arrest. What crime did A commit? Explain your answer. Answer: The crime committed by A is consummated robbery with intimidation.

44

www.rkmfiles.net

5. While a woman was walking along Session Road, a man following her suddenly snatched her handbag and ran away with it. What crime was committed by that man? Explain your answer. Answer: The man committed the crime of theft, not robbery with violence against persons, because mere snatching of personal property from the hand of the offended party, although violence is used, it is not used on the person of the offended party, but on the thing taken. It is a rule that to constitute robbery with violence against persons, the violence must be on the person of the offended party, not upon the thing taken. 6. While A was looking for his lost pig, he happened to pass by the house of B and saw under the latters house a pig. A told B that that was his lost pig, but B said that that pig belonged to him. A unsheathed his bolo and threatened B with bodily harm, unless the latter would give to him the pig. Afraid that he might be injured, B gave the pig to A. A was prosecuted for robbery with intimidation. During the trial it was established by the prosecution that the pig really belonged to B and that it was not the lost pig of A. If you were the judge, would you convict or acquit A? In case you decide to convict him, of what crime will you find him guilty? Answer: Since A believed in good faith that the pig was his, even if his claim later on appeared to be untenable, there being no intent to gain on his part, he should be found guilty of grave coercion and not robbery with intimidation. One of the elements of robbery is that the offender took the personal property belonging to another with intent to gain.

7. What crime is committed by several persons, who, by means of intimidation used against the owner of a small house, succeeded in removing that small house from the lot of the owner and carried said house to the lot of one of the offenders? Explain your answer. Answer: The crime is robbery with intimidation. Although a house may be considered as real property when attached to the ground, the moment it is removed from the ground and carried away it ceases to be a real property and becomes personal property. One of the elements of robbery is that the property taken is personal property belonging to another. 8. A help-up B at the point of a revolver and succeeded in taking the watch from B. When he reached home, A found that the watch he had taken from B was his own property which he had lost a week before. What crime was committed by A? Answer: A committed grave coercion, because he compelled B to do something against his will by means of intimidation. While it is true that A had intent to gain and that ordinarily in coercion the offender should not act with intent to gain, the crime committed by A is not robbery with intimidation, because one of the elements of robbery is that the personal property must belong to another. Since the property belonged to him, A cannot be guilty of robbery, as no one can be held liable for robbery of his own property. This is not an impossible crime where the act performed would have been an offense against persons or property, because when the act performed also constitutes a violation of another provision of the RPC, impossible crime cannot exist. It is submitted that A is not liable for grave threats, because the intimidation produced immediate effect. 9. A passer-by noticed three persons inside the house of another taking personal property. The passer-by asked them why they were there. One of them shot and killed him. What crime was committed? Why? Answer: The crime committed is robbery with homicide, because the homicide was committed by reason of the robbery, that is, to do away with a witness.

45

www.rkmfiles.net

10. Would it be robbery with homicide if a robber killed his companion, another robber, on the occasion or by reason of the robbery? Why? Answer: Yes, because in robbery with homicide, it is only the result, without reference or distinction as to the persons intervening in the commission of the crime that must be taken into consideration.

oo

CRIMINAL LAW (REVISED PENAL CODE- BOOK 2) TREASON Any person who, owing allegiance to (the Philippine), not being a foreigner, levies war against them or adheres to their enemies, giving them aid or comfort within the Philippine Islands or elsewhere, shall be punished by reclusion temporal to death and shall pay a fine not to exceed P20, 000. No person shall be convicted of treason unless on the testimony of 2 witnesses at least to the same overt acts or on confession of the accused in open court. Likewise, an alien, residing in the Philippines Islands, who commits acts of treason as defined in par. 1 of this article shall be punished by prision mayor to death and shall pay a fine not to exceed P20, 000. Elements: 1. The offender owes allegiance to the Government of the Philippines; 2. There is a war in which the Philippines is involved; 3. The offender either: a. Levies war against the Government; or b. Adheres to the enemies, giving them aid or comfort. TREASON is a breach of allegiance, which is the obligation of fidelity and obedience one owes to the government or sovereign under which he lives, in return for the protection he receives. PERSONS LIABLE FOR TREASON 1. Filipino citizens owe permanent allegiance to the government. 2. Resident aliens owe temporary allegiance to government. TWO MODES OF COMMITTING TREASON

46

www.rkmfiles.net

1. BY LEVYING WAR actual assemblage of persons for the purpose of executing a treasonable design. 2. BY ADHERING TO THE ENEMY, GIVING HIM AID AND COMFORT ADHERENCE TO THE ENEMY a citizen intellectuality or emotionally favors the enemy and harbors sympathies or convictions disloyal to his countrys policy or interest. AID OR COMFORT an act which strengthens or tends to strengthen the enemy of the government in the conduct of war against the government or of the country to resist or to attack the enemies of the government or of the country. When the alleged treasonous acts consist only of giving aid and comfort, the law requires that it must be coupled with adherence. In other words, the mere giving of aid and comfort WITHOUT ADHERENCE is not treason. On the other hand, if the manner of committing treason by engaging the forces of the government in combat, there is no need to show that the offenders are doing so out of adherence to the enemy. If the aid or support given to the enemy is one which does not strengthen the enemy in the conduct of war, there must be an independents evidence of adherence, otherwise, the accused is entitled to acquittal. Basically, the mental condition cannot bring about the offense not until the offender has started committing an overt act.

EVIDENCE NEEDED FOR CONVICTION IN TREASON 1. Testimony of at least 2 witnesses to the same overt act; 2. Confession of guilt by the accused in open court. WHAT IS THE SO-CALLED TWO-WITNESS RULE? Under Art.114 of the RPC, no person shall be convicted of treason except upon the testimony of at least 2 witnesses by the same overt act or upon his confession in open court. The 2-witness rule refers to that portion of the provision which requires testimonies of 2 witnesses at least on the same overt act. Example: Supposing during the 2nd World War, A had cooperated with Japanese solders and A was seen by it in the company of such soldiers burning a certain barrio. A is again seen by C in the company of the same Japanese soldiers burning again another barrio. Under these set of facts, if B and C would testify of what they have respectively witnessed, may A be convicted of treason? Answer: No, it is not only the number of witnesses or the substance but at least 2 witnesses should testify on the same overt act, commission of the same treaso0nous act at the same place and at almost the same time. It is not enough that there be witnesses. It is necessary that the 2 witnesses have testified to the same overt act. OVERT ACT we mean acts committed in different places at times far remote from each other, you will need 2 witnesses to each of those places before a conviction may be done. So, even if there several witnesses testifying on the treasonous acts, one witness to 2 treasonous act and the other to another treasonous acts, if the acts testified to are not committed in the same place and at the same time, the 2witnesses rule is not complied with. The accused himself is entitled to freedom. EXCEPTION: When the accused himself pleads guilty to the accusation of treason. NOTE: The confession of guilt mentioned in this rule is not a confession of guilt in the ordinary sense of the word.

47

www.rkmfiles.net

The confession referred to here is a plea of guilty in open court. So, if a person accused of treason has previously executed a confession before the interrogating officer, but upon being arraigned in court, the pleaded not guilty, he cannot be convicted simply because he had that confession. But the confession is admissible in evidence. Only, it is not sufficient as a basis for conviction. Extra judicial confessions are admissible but they are not enough to sustain conviction. TREASON DISTINGUISHED FROM SEDITION: TREASON: Violation by a subject of his allegiance to his sovereign or the supreme authority of the state. SEDITION: The raising of commotion or disturbances in the state. TREASON DISTINGUISHED FROM REBELLION 1. An act of levying war to help the enemy is treason otherwise it would be rebellion. 2. In treason, the purpose is to deliver the government to the enemy or to pave the way for the coming of the enemy while in rebellion, the purpose is to substitute the government with their own.

IMPORTANT POINTS TO REMEMBER REGARDING TREASON: 1. Treason is committed only in time of war. It cannot be committed in time of peace. Treasonable acts may be actually during peace time, but there are no traitors until war has started. [LAUREL VS. MISA, 77 PHIL 856] 2. No matter how many acts of treason are committed by the offender, he will be liable for one crime of treason only. 3. There is no complex crime of treason with murder. Murder is an integral element of the crime of treason which correspond to the giving of aid and comfort to the enemy. The offender will be liable for treason only. 4. In the imposition of the penalty the course may disregard the attending mitigating and aggravating circumstances. It may consider only the number, nature and gravity of the treasonous acts proven. The imposition of the penalty, although indivisible, may rest largely on the exercise of judicial discretion. 5. Treachery, abuse of superior strength and evident premeditation are inherent in treason if there are killings. CONSPIRACY AN PROPOSAL TO COMMIT TREASON Elements of Conspiracy to Commit Treason: 1. There is a war in which the Philippines is involved; 2. Two or more persons come to an agreement to levy war against the government or to adhere to the enemies and to give them aid or comfort. 3. They decide to commit it. Elements of Proposal to Commit Treason: 1. There is war in which the Philippines is involved; 2. The accused has decided to levy war against the Government or to adhere to the enemies giving them aid or comfort. 3. He proposes its execution to some other person of persons. NOTE: If actual acts of treason are committed after the conspiracy or after the proposal is accepted, the crime committed will be treason. The conspiracy or proposal is considered as a means in the commission thereof. IMPORTANT: The co-conspirators or those persons involved in the proposal will be criminality liable to that extent only as long as none among them has committed treasonous acts.

48

www.rkmfiles.net

If anyone of the conspirators or person participating in the proposal have already done treasonous act even though unknown to the others, the crime of all of them will be treason and not merely conspiracy or proposal. NOTE: Bear in mind that in conspiracy, there must be an agreement with concurrence of decision; a mere agreement without decision is not conspiracy. So also, a mere proposal without acceptance, it is not criminal proposal. There must always be the CONCURRENCE of these 2 elements. One without the other is not punishable, even if it refers to treason. MISPRISION OF TREASON Elements: 1. Offender must owe allegiance to the Government of the Philippines; 2. Offender is not a foreigner; 3. He has knowledge of a conspiracy to commit treason against the said government; 4. He conceals or fails to disclose the same to the authorities of the province or city in which he resides.

For this crime to be committed, first of all, there must be a conspiracy to commit treason. Misprision of treason arises when a person who knew of such conspiracy does not report the same as soon as possible. Even though the offender has reported the conspiracy to the government, if by the time the report was made, the conspirators were already able to commit overt acts of treason, then the party knowing the conspiracy is nevertheless liable for misprision of treason because the report was not made as soon as possible. Misprision of treason is a felony by omission. The offender has knowledge of conspiracy to commit treason but he failed to report it to the authorities AS SOON AS POSSIBLE. NOTE: It is not enough that the report be made. What is required is that it must be reported as soon as possible, because if the report is delayed, this might ripen to an act of treason. The idea here is to make it obligatory on the part of all citizens of the Philippines to report it to the government as soon as possible any conspiracy to commit treason and that is known to them so that the government may quell the treason before it can ripen. Where the conspiracy has already ripened to an act of treason, the obligation to report does not exist anymore because that means that the government knew that there is treason going on. NOTE: The obligation to report does not cover aliens even if they are permanent resident of the Philippines. This crime can only be committed by citizens of the Philippines, unlike treason, which may be committed by aliens as long as they are permanent resident of the Philippines. ESPIONAGE There are 2 modes of committing espionage under the RPC. Elements of the first mode: 1. Offender, without any authority enters a warship, naval or military establishment or reservation, and 2. He obtains information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines. NOTE: The purpose of the offender in entering must be to get hold of such materials.

49

www.rkmfiles.net

If that is not the purpose, the crime committed is trespass to government property. Mere entering here will bring about a consummated espionage as long as the criminal intent of the offender is to get hold of those materials which are vital to the defense of the Philippines. Elements of the second mode: 1. Offender is a public officer; 2. He has in his possession articles, data or information referred to in the first mode of committing this crime; and 3. He discloses their contents to a representative of a foreign nation. NOTE: Where the offender is not a custodian, the crime committed is infidelity in the custody of public records, and it has nothing to do with national defense of the Philippines, the offender becomes liable only for infidelity in the custody of public records. ESPIONAGE DISTINGUISHED FROM TREASON ESPIONAGE - there is no need of war going on; - committed in more than 2 ways; - generally committed by an alien. citizens TREASON - there must be war - committed in 2 ways only; - may be committed by or resident aliens. INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS Elements: 1. Offender commits unlawful or unauthorized acts; 2. Said acts provide or give occasion for war involving or liable to involve the Philippines or expose Filipino citizens to reprisals on their persons or property. This is committed by any public officer or employee who, by unlawful or unauthorized acts provoke or gives occasion for a war or liable to involve the Philippines or exposes Filipino citizens to reprisals on their persons or property. There is no need of war going on. This may be committed in time of war or time of peace. VIOLATION OF NEUTRALITY Elements: 1. There is war in which the Philippines is not involved; 2. Competent authorities have issued regulations to enforce neutrality; and 3. The offender violates any of said regulations. There must be a war going on, but the Philippines is not a partly to the war. It cannot be committed as a crime if the government has not promulgated rules and regulations for the observance of neutrality. It is the violation of such rules that brings about the crime of violation of neutrality. CORRESPONDENCE WITH HOSTILE COUNTRY Elements: 1. There is war in which the Philippines is involved; 2. The offender shall have correspondence with an enemy country or territory occupied by enemy troops; and 3. Said correspondence is: a) prohibited by the government; b) the offender shall have correspondence with an enemy country or territory occupied by enemy troops; c) notice or information to be given thereby which might be useful to the enemy or intended by the offender to aid the enemy. This presupposes that, there is a war going on and the Philippines is a party to that war. Under this article, the mere sending or carrying on of correspondence from

50

www.rkmfiles.net

one who is in the enemy country or who is in the territory occupied by enemy troops is a crime under the circumstances specified in the article. The implication is that when a person writers to another in any enemy country and he makes use of ciphers and conventional signs he is hiding something and that is maybe one which is vital to the defense of the Philippines, so the mere sending of that under those conditions makes it a crime. FLIGHT TO ENEMY COUNTRY Elements: 1. Existence of war in which the Philippines is involved; 2. Offender owes allegiance to the Philippines; and 3. He attempts to flee to the enemy country, which is prohibited by the government. This crime can be committed only in times of war where the Philippines is a party. Mere attempt to flee to the side of the enemy will already consummate this crime. The law presupposes that in time of war, a person in the Philippines would try to go to the enemy line, that person must have something for the enemy to the prejudice of the Philippines and its forces. ATTEMPT TO FLEE TO ENEMY COUNTRY --- This is committed when a citizen of the Philippines or one owing allegiance to the Philippine government shall attempt to go to an enemy country. PIRACY Piracy is committed by any person who, on the high seas shall attack or seize a vessel or, not being a member of its complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or personal belongings of its complement or passengers. Piracy is robbery or forcible depredation on the high seas without lawful authority and done with animo furandi and in the spirit and intention of universal hostility. Piracy is regarded not as a crime of any particular country but a crime against the whole world so that whenever the offenders may go to one country they can be prosecuted there. REASON: The law they violated is not the law of a particular country but the law of the family of nations. 3 KINDS 1. 2. 3. OF PIRACY Piracy in the high seas punished in the RPC; Piracy in the Philippine waters punished in PD 532; and Air piracy punished in RA 6235.

PIRACY IN THE HIGH SEAS UNDER THE REVISED PLENAL CODE 1. By attacking or seizing a vessel on the high seas; 2. By seizing the whole or part of the cargo or equipment of the vessel while on the high seas or the personal belongings of its complement or passengers, the offenders not being of the complement or passengers. OFFENDERS OF PIRACY IN THE HIGH SEAS (RPC) - Strangers to the vessel - They are not passengers or members of the crew. For the purposes of determining whether one is a stranger to the vessel or not you only have to determine whether one is lawfully admitted to the vessel. If he is lawfully admitted to the vessel, other than a complement thereof, then he is a passenger. But if he boards the vessel without being lawfully admitted thereto, then he is a strange and therefore liable for piracy. HIGH SEAS refer to the body of water outside of the territorial waters of the Philippines, even if such is within the territorial waters of a foreign country. - Refers to that body of water beyond the three-mile limit of our jurisdiction. At this point therefore, it can be easily understood that piracy under the RPC begins where piracy under PD 532 ends. ROBBERY ON THE HIGH SEAS

51

www.rkmfiles.net

- Offender is a member of the complement or a passenger of the vessel and there is violence against or intimidation of persons or force upon things in taking the property in the vessel. PIRACY the offender is an outsider. NOTE: In both robbery on the high seas and piracy, there is 1. Intent to gain; and 2. Manner of committing the crime is the same. MUTINY MUTINY ON THE HIGH SEAS is the unlawful resistance to a superior officer or the raising of commosions and disturbances on board a ship against the authority of its commander. It may be committed by members of the crew and passengers of the vessel. NOTE: Mutiny must be committed on the high seas. When committed on board a vessel within the waters of the Philippine, the killing is punished as murder. PIRACY DISTINGUISHED FROM MUTINY: PIRACY - the persons who attack or seize passengers; the vessel on the high seas are said vessel; - there is an intent to gain MUTINY - they are members of the crew crew passengers; strangers to - there is usually no intent to gain as the offenders may only intend to ignore the strips officers or to commit plunder.

PIRACY IN THE PHILIPPINE WATERS (P.D. 532) If any of the acts described in Art. 122 and 123 is committed in Philippine waters, the same shall be considered as piracy under PD 532. Any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of its complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel in Philippine waters, shall be considered as piracy. In this kind of piracy, the offender may be any person. He may be a stranger to the vessel, a passenger or member of the crew of the vessel. 2 WAYS OF COMMITTING PIRACY IN PHILIPPINE WATERS (1) By seizing or attacking a vessel while in the Philippine waters with intent to gain by means of violence or intimidation; (2) By taking away the belongings of a member of a crew or passenger. Example: If in the course of the voyage of an inter-island vessel, a passenger at the point of a knife divested another passenger of his valuables, the former will be liable for piracy in Philippine waters, not for robbery. Q: What will be the crime committed is on the occasion of piracy in Philippine waters, only a person was killed by the by the pirates? - Crime will be piracy in Philippine waters only. PHILIPPINE WATERS refers to all bodies of water around, between and connecting each of the islands of the Philippine Archipelago, irrespective of its breadth, depth, length, dimension, and all other waters belonging to the Philippines

52

www.rkmfiles.net

by historic or legal title, including territorial sea, sea-bed, insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction. VESSEL - any vessel or watercraft for transport of passengers and cargo from one place to another through Philippine waters. Includes all kinds and types of vessels or boats used in fishing. ANY PERSON WHO AIDS OR PROTECTS PIRATES OR ABETS THE COMMISSION OF PIRACY SHALL BE CONSIDERED AS AN ACCOMPLLICE. Example: 1. Giving pirates information about the movement of police or other peace officers of the government; 2. Acquires or receives property taken by such pirates or in any manner derives any benefit therefrom; 3. Directly of indirectly abets the commission of piracy. Under the decree, when these acts are committed the crime is ABETTING PIRACY. These persons who participate by any of the acts mentioned above will be charged not for the crime of piracy but for a crime of abetting piracy under PD 532. On the other hand, if the piracy falls under the RPC because it was committed in the high seas, persons who participated in the loot of the piracy or who harbor or conceal or help the pirates escape will be accessories to the crime of piracy. The crime committed by them is not abetting piracy but piracy itself. So, under PD 532, the offender is a principal to the crime of abetting piracy although the nature of the act of participation is that of an accessory only and the penalty imposed under the same decree is only that of an accomplice. PRESUMPTION: any person who does any of the acts provided in this section has performed them KNOWINGLY, unless the contrary is proven. DISTINCTIONS BETWEEN PIRACY UNDER PD 532 AND RPC 1. Under the PRC, piracy can only be committed in the high seas meaning to say beyond the three mile limit of our territorial waters, whereas under the decree piracy can only be committed within Philippine waters. 2. Under the RPC, piracy is committed by attacking or seizing the vessel or of any of the cargo of personal belongings of the passengers or complements of the vessel. NOTE: An attack or seizure of the vessel presupposes the employment of force but it may be such degree of force that does not amount to robbery. Under the decree, piracy is committed not only be an attack or seizure of the vessel or cargo or personal belongings of the passengers or members of its complement thru the use of violence and intimidation. 3. Piracy under RPC is committed by attacking or seizing a vessel, or by seizing the whole or part of its cargo, its equipment or personal belongings of its complement or passengers, while such modes under PD 532 are accomplished by means of violence against or intimidation of persons or force upon things. NOTE: Under the RPC, use of force upon things does not bring about piracy unless it is an attack or seizure of the vessel or of the passenger and their belongings or of the complement of the vessel. To make the difference between piracy under the RPC and piracy under the decree easier to understand, take note of the following: NOTE: The essence of piracy under the decree is not alone the seizure or attack of the vessel but robbery committed on board a vessel while this is in Philippine waters.

53

www.rkmfiles.net

The crime of robbery under title x is different from the crime of theft although both crimes involve the taking of property. So, if the taking of the cargo of personal belongings of the passengers or complements of the vessel amounts only to theft, PO 532 will not apply. Without the use of violence or intimidation of persons or without the use of force upon things as this is understood under Art. 299 of the RPC, the decree will not apply unless there is a seizure of the vessel or an attack upon the vessel. Therefore, the taking must be with violence and intimidation or with the use of force upon things. If these are absent on the taking, the crime is only theft. R.A. 6235 ACT TO PROHIBIT CERTAIN ACTS INIMICAL TO CIVIL AVIATION Although RA 6235 is commonly referred to as the hijacking law, strictly the acts punished if this law are not purely of hijacking. When we say hijacking, we generally associate the idea with that of compelling the plane to land in the place other than its scheduled destination. This, however, is not the only meaning of hijacking. Hijacking generally refers to the taking of goods in transit through force. TWO KINDS OF AIRCRAFT MAY BE INVOLVED HERE: 1. Domestic 2. International PROHIBITED ACTS: IF AIRCRAFT IS OF PHILIPPINE REGISTRY (1.)To compel a change in the course or destination of an aircraft of Philippine registry, while in flight; or (2.)To seize or usurp the control thereof, while it is in-flight. (3.)To compel an aircraft of foreign registry to land in Philippine territory; or (4.)To seize or usurp the control thereof while it is within Philippine territory. AIRCRAFT IS IN FLIGHT An aircraft is IN FLIGHT from the moment all its external doors are closed following embarkation until any of such doors are opened for disembarkation. Under the law, air piracy regarding an international plane is committed if the offender compelled the plane to fly in Philippine territory, seized or usurped it. If the seizure or usurpation of an international plane, what is essential is that the plane must be in Philippine territory. NOTE: PROHIBITION IS ABSOLUTE a. IF OFFENDER IS 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; b. IF VIOLATION IS COMMITTED IN THE INTEREST OF A FOREIGN CORPORATION LEGALLY DOING BUSINESS IN THE PHILIPPINES 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. (1.) Section 4 --- The shipping, loading or carrying of any substance or material in any cargo aircraft operating as a public utility within the Philippines shall, be not in accordance with the regulations issued by the Civil Aeronautics Adm. NOTE: PROHIBITION IS NOT ABSOLUTE For any death or injury to persons or damage to property resulting from a violation of Sects. 3 and 4, the person responsible therefore may be held liable in accordance with the applicable provision of the RPC. - Injury / damage --- not absorbed in that crime.

54

www.rkmfiles.net

Offender may be prosecuted under the RPC as well.

NOTE: Aircraft companies which operate as public utilities or operators of aircraft which are or 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. PURPOSE: to help the authorities in the enforcement of the provisions of this Act.

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. QUALIFIED PIRACY Piracy is qualified if any of the following circumstances is present, to wit: 1. Whenever the offenders have seized the vessel by boarding or firing upon the same; or 2. Whenever the pirates have abandoned their victims without means of saving themselves; or 3. Whenever the crime is accompanied by murder, homicide, physical injuries, or rape. KIDNAPPING AND SERIOUS ILLEGAL DETENTION Elements: 1. Offender is a private individual 2. He kidnaps or detains another, or in any other manner deprives the latter of his liberty 3. The act of detention or kidnapping must be illegal 4. That in the commission of the offense, any of the following circumstances are present (becomes serious) a. that the kidnapping/detention lasts for more than 3 days b. that it is committed simulating public authority c. that any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made, or d. that the person kidnapped or detained is a minor (except if parent is the offender), female or a public officer Note: When death penalty is imposed: a. If kidnapping is committed for the purpose of extorting ransom either from the victim or from any other person even if none of the aforementioned are present in the commission of the offense (even if none of the circumstances are present) b. When the victim is killed or dies as a consequence of the detention or is raped or is subjected to torture or dehumanizing acts Illustration: If a private person commits the crime of kidnapping or serious illegal detention, even though a public officer conspires therein, the crime cannot be arbitrary detention. As far as that public officer is concerned, the crime is also illegal detention. In the actual essence of the crime, when one says kidnapping, this connotes the idea of transporting the offended party from one place to another. When you think illegal detention, it connotes the idea that one is restrained of his liberty without necessarily transporting him from one place to another. The crime of kidnapping is committed if the purpose of the offender is to extort ransom either from the victim or from any other person. But if a person is transported not for ransom, the crime can be illegal detention. Usually, the offended party is brought to a place other than his own, to detain him there.

55

www.rkmfiles.net

When one thinks of kidnapping, it is not only that of transporting one person from one place to another. One also has to think of the criminal intent. Forcible abduction -- If a woman is transported from one place to another by virtue of restraining her of her liberty, and that act is coupled with lewd designs. Serious illegal detention If a woman is transported just to restrain her of her liberty. There is no lewd design or lewd intent. Grave coercion If a woman is carried away just to break her will, to compel her to agree to the demand or request by the offender. If a woman is carried against her will but without lewd design on the part of the offender, the crime is grave coercion. Distinction between illegal detention and arbitrary detention Illegal detention is committed by a private person who kidnaps, detains, or otherwise deprives another of his liberty. Arbitrary detention is committed by a public officer who detains a person without legal grounds.

When the person is deprived of his liberty or is seized and forcibly taken to another place, the inquiry would, be what is the purpose of the offender in taking him or her away? 1. If the seizure is only to facilitate the killing of the victim the crime committed would either be homicide or murder and the crime of kidnapping is absorbed. 2. If the seizure or deprivation of liberty is only to compel the victim to perform an act, be it right or wrong, the crime committed would only be grave coercion. (People vs. Astorga, 283 SCRA 420). 3. If the deprivation of liberty is to take away the victim to satisfy the lewd design of the offender, the crime would only be forcible abduction. 4. If the seizure of the victim is solely to deprive him of his liberty, the crime is illegal detention. In the penultimate paragraph of Article 267, there is deprivation of liberty but not for any for the purposes enumerated above. It is for the purpose of extorting ransom from the victim or from any other person. The law classifies the crime committed by the offender as serious illegal detention even if none of the circumstances to make it serious is present in the commission of the crime. In this particular mode of committing the crime of serious illegal detention, demand for ransom is an indispensable element. (People vs. Bustamante, G. R. No. 66427, Dec. 4, 1991) If the victim was not kidnapped or taken away but was restrained and deprived of his liberty, like in the case of a hostage incident where the accused, who was one of the occupants of the house, grabbed a child, poked a knife on the latters neck, called for media people and demanded a vehicle from the authorities which he could use in escaping, as it turned out that there was an unserved arrest warrant against him, the proper charge is Serious Illegal Detention (without kidnapping anymore) but likewise under Article 267 of the Revised Penal Code. Where after taking the victim with her car, the accused called the house of the victim asking for ransom but upon going to their safehouse saw several police cars chasing them, prompting them to kill their victim inside the car, there were two crime committed Kidnapping for Ransom and Murder, not a complex crime of Kidnapping with Murder as she was not taken or carried away to be killed, killing being an afterthought . (People vs. Evanoria, 209 SCRA 577). SLIGHT ILLEGAL DETENTION Elements: 1. Offender is a private person 2. He kidnaps or detains another or in any other manner deprives him of his liberty / furnished place for the perpetuation of the crime 3. That the act of detention or kidnapping must be illegal

56

www.rkmfiles.net

4. That the crime is committed without the attendant of any of the circumstances enumerated in Art 267 One should know the nature of the illegal detention to know whether the voluntary release of the offended party will affect the criminal liability of the offender. When the offender voluntarily releases the offended party from detention within three days from the time the restraint of liberty began, as long as the offender has not accomplished his purposes, and the release was made before the criminal prosecution was commenced, this would serve to mitigate the criminal liability of the offender, provided that the kidnapping or illegal detention is not serious. If the illegal detention is serious, however, even if the offender voluntarily released the offended party, and such release was within three days from the time the detention began, even if the offender has not accomplished his purpose in detaining the offended party, and even if there is no criminal prosecution yet, such voluntary release will not mitigate the criminal liability of the offender. One who furnishes the place where the offended party is being held generally acts as an accomplice. But the criminal liability in connection with the kidnapping and serious illegal detention, as well as the slight illegal detention, is that of the principal and not of the accomplice. The prevailing rule now is Asistio v. Judge, which provides that voluntary release will only mitigate criminal liability if crime was slight illegal detention. If serious, it has no effect. In kidnapping for ransom, voluntary release will not mitigate the crime. This is because, with the reimposition of the death penalty, this crime is penalized with the extreme penalty of death. What is Ransom? It is the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases a person from captivity. UNLAWFUL ARREST Elements: 1. That the offender arrests or detains another person 2. That the purpose of the offender is to deliver him to the proper authorities 3. That the arrest or detention is not authorized by law or there is no reasonable ground therefor Notes: 1. Offender is any person, so either a public officer or private individual

The offender in this article can be a private individual or public officer. In the latter case, the offender, being a public officer, has the authority to arrest and detain a person, but the arrest is made without legal grounds. For him to be punished under this article, the public officer must make the arrest and detention without authority to do so; or without acting in his official capacity. This felony consists in making an arrest or detention without legal or reasonable ground for the purpose of delivering the offended party to the proper authorities. The offended party may also be detained but the crime is not illegal detention because the purpose is to prosecute the person arrested. The detention is only incidental; the primary criminal intention of the offender is to charge the offended party for a crime he did not actually commit. Generally, this crime is committed by incriminating innocent persons by the offenders planting evidence to justify the arrest a complex crime results, that is, unlawful arrest through incriminatory machinations under Article 363. 2. Refers to warrantless arrests

57

www.rkmfiles.net

If the arrest is made without a warrant and under circumstances not allowing a warrantless arrest, the crime would be unlawful arrest. If the person arrested is not delivered to the authorities, the private individual making the arrest incurs criminal liability for illegal detention under Article 267 or 268. If the offender is a public officer, the crime is arbitrary detention under Article 124. If the detention or arrest is for a legal ground, but the public officer delays delivery of the person arrested to the proper judicial authorities, then Article 125 will apply. Note: This felony may also be committed by public officers. 3. In art 125, the detention is for some legal ground while here, the detention is not authorized by law 4. In art 125, the crime pertains to failure to deliver the person to the proper judicial authority within the prescribed period while here, the arrest is not authorized by law KIDNAPPING AND FAILURE TO RETURN A MINOR Elements: 1. That the offender is entrusted with the custody of a minor person (whether over or under 7 but less than 18 yrs old) 2. That he deliberately fails to restore the said minor to his parents If any of the foregoing elements is absent, the kidnapping of the minor will then fall under Article 267. If the accused is any of the parents, Article 267 does not apply; Articles 270 and 271 apply. If the taking is with the consent of the parents, the crime in Article 270 is committed. In People v. Generosa, it was held that deliberate failure to return a minor under ones custody constitutes deprivation of liberty. Kidnapping and failure to return a minor is necessarily included in kidnapping and serious illegal detention of a minor under Article 267(4). In People v. Mendoza, where a minor child was taken by the accused without the knowledge and consent of his parents, it was held that the crime is kidnapping and serious illegal detention under Article 267, not kidnapping and failure to return a minor under Article 270. INDUCING A MINOR TO ABANDON HIS HOME Elements: 1. That the minor (whether over or under 7) is living in the home of his parents or guardians or the person entrusted with his custody 2. That the offender induces a minor to abandon such home Notes: The inducement must be actually done with malice and a determined will to cause damage. (People vs. Paalam, C.A., O.G. 8267-8268). But where the victims abandoned their respective homes out of an irresponsible spirit of restlessness and adventure, the crime is not committed. 1. Minor should not leave his home of his own free will 2. Mitigating if by father or mother

58

www.rkmfiles.net

The article also punishes the father or mother who commits the act penalized under the law. This arises when the custody of the minor is awarded by the court to one of them after they have separated. The other parent who induces the minor to abandon his home is covered by this article. SLAVERY Elements: 1. 2. That the offender purchase, sells kidnaps or detains a human being. That the purpose of the offender is to enslave such human being.

Slavery is the treatment of a human being as a mere property, stripped of dignity and human rights. The person is reduced to the level of an ordinary animal, a mere chattel with material value capable of pecuniary estimation and for which reason, the offender purchases and sells the same. This is distinguished from illegal detention by the purpose. If the purpose of the kidnapping or detention is to enslave the offended party, slavery is committed. The crime is slavery if the offender is not engaged in the business of prostitution. If he is, the crime is white slave trade under Article 341. EXPLOITATION OF CHILD LABOR Elements: 1. That the offender retains a minor in his service. 2. That it is against the will of the minor. 3. That it is under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of such minor. If the minor agrees to serve the accused, no crime is committed, even if the service is rendered to pay an ascendants alleged debt. SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT Element: 1. That the offender compels a debtor to work for him, either as household servant or farm laborer. 2. That it is against the debtors will. 3. That the purpose is to require or enforce the payment of a debt. Involuntary servitude or service - In this article, no distinction is made whether the offended is a minor or an adult. ABANDONMENT OF PERSON IN DANGER AND ABANDONMENT OF ONES OWN VICTIM Acts punishable: 1. By failing to render assistance to any person whom the offender finds in an inhabited place wounded or in danger of dying, when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense a. b. c. d. Elements That place is not inhabited. The accused found there a person wounded or in danger of dying. The accused can render assistance without detriment to himself. The accused fails to render assistance.

2. By failing to help or render assistance to another whom the offender has accidentally wounded or injured 3. By failing to deliver a child, under 7 whom the offender has found abandoned, to the authorities or to his family, or by failing to take him to a safe place ABANDONING A MINOR Elements: 1. That the offender has the custody of a child.

59

www.rkmfiles.net

2. That the child is under seven years of age. 3. That he abandons such child. 4. That he has no intent to kill the child when the latter is abandoned. In order to hold one criminally liable under this article, the offender must have abandoned the child with deliberate intent. The purpose of the offender must solely be avoidance of the obligation of taking care of the minor. ABANDONMENT OF MINOR BY PERSON ENTRUSTED WITH HIS CUSTODY; INDIFFERENCE OF PARENTS Acts punished: 1. By delivering a minor to a public institution or other persons w/o consent of the one who entrusted such minor to the care of the offender or, in the absence of that one, without the consent of the proper authorities Elements: a. That the offender has charged of the rearing or education of a minor. b. That he delivers said minor to a public institution or other persons. c. That the one who entrusted such child to the offender has not consented to such act, or if the one who entrusted such child to the offender is absent; the proper authorities have not consented to it. 2. By neglecting his (offenders) children by not giving them education which their station in life requires and financial condition permits Elements: a. That the offender is a parent. b. That he neglects his children by not giving them education. c. That his station in life requires such education and his financial condition permits it. Indifference of parents while they are financially capable of supporting the needs of their children, they deliberately neglect to support the educational requirements of these children through plain irresponsibility caused by wrong social values. EXPLOITATION OF MINORS Acts punished: 1. By causing any boy or girl under 16 to perform any dangerous feat of balancing, physical strength or contortion, the offender being any person 2. By employing children under 16 who are not the children or descendants of the offender in exhibitions of acrobat, gymnast, rope-walker, diver, or wild-animal tamer or circus manager or engaged in a similar calling 3. By employing any descendant under 12 in dangerous exhibitions enumerated in the next preceding paragraph, the offender being engaged in any of said callings 4. By delivering a child under 16 gratuitously to any person following any of the callings enumerated in par 2 or to any habitual vagrant or beggar, the offender being an ascendant, guardian, teacher or person entrusted in any capacity with the care of such child 5. By inducing any child under 16 to abandon the home of its ascendants; guardians, curators or teachers to follow any person engaged in any of the callings mentioned in par 2 or to accompany any habitual vagrant or beggar, the offender being any person The offender is engaged in a kind of business that would place the life or limb of the minor in danger, even though working for him is not against the will of the minor. Nature of the Business This involves circuses which generally attract children so they themselves may enjoy working there unaware of the danger to their own lives and limbs. Age Must be below 16 years. At this age, the minor is still growing. If the employer is an ascendant, the crime is not committed, unless the minor is less than 12 years old. Because if the employer is an ascendant, the law regards that he would look after the welfare and protection of the child; hence, the age is lowered to 12 years. Below that age, the crime is committed.

60

www.rkmfiles.net

But remember Republic Act No. 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act). It applies to minors below 18 years old, not 16 years old as in the Revised Penal Code. As long as the employment is inimical even though there is no physical risk and detrimental to the childs interest against moral, intellectual, physical, and mental development of the minor the establishment will be closed. Article 278 has no application if minor is 16 years old and above. But the exploitation will be dealt with by Republic Act No. 7610. If the minor so employed would suffer some injuries as a result of a violation of Article 278, Article 279 provides that there would be additional criminal liability for the resulting felony. QUALIFIED TRESPASS TO DWELLING Elements: 1. That the offender is a private person. 2. That he enters the dwelling of another. 3. That such entrance is against the latters will. Notes: Dwelling This is the place that a person inhabits. It includes the dependencies which have interior communication with the house. It is not necessary that it be the permanent dwelling of the person. So, a persons room in a hotel may be considered a dwelling. It also includes a room where one resides as a boarder. 1. Qualifying circumstance: if the offense is committed by means of violence or intimidation, the penalty is higher 2. There must be an opposition to the entry of the accused If the entry is made by a way not intended for entry, that is presumed to be against the will of the occupant (example, entry through a window). It is not necessary that there be a breaking. Lack of permission to enter a dwelling does not amount to prohibition. So, one who enters a building is not presumed to be trespasser until the owner tells him to leave the building. In such a case, if he refuses to leave, then his entry shall now be considered to have been made without the express consent of the owner. (People vs. De Peralta, 42 Phil. 69) Even if the door is not locked, for as long as it is closed, the prohibition is presumed especially if the entry was done at the late hour of the night or at an unholy hour of the day. (U. S. vs. Mesina, 21 Phil. 615) 3. Implied prohibition is present considering the situation late at night and everyones asleep or entrance was made through the window Against the will -- This means that the entrance is, either expressly or impliedly, prohibited or the prohibition is presumed. Fraudulent entrance may constitute trespass. The prohibition to enter may be made at any time and not necessarily at the time of the entrance. To prove that an entry is against the will of the occupant, it is not necessary that the entry should be preceded by an express prohibition, provided that the opposition of the occupant is clearly established by the circumstances under which the entry is made, such as the existence of enmity or strained relations between the accused and the occupant. 4. May be committed even by the owner (as against the actual occupant) Distinction between qualified trespass to dwelling and violation of domicile

61

www.rkmfiles.net

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

5. Not applicable to: a. entrance is for the purpose of preventing harm to himself, the occupants or a third person b. purpose is to render some service to humanity or justice c. place is a caf, tavern etc while open OTHER FORMS OF TRESPASS Elements: 1. That the offender enters the closed premises or the fenced estate of another. 2. That the entrance is made while either of them is uninhabited. 3. That the prohibition to enter be manifest. 4. That the trespasser has not secured the permission of the owner or the caretaker thereof. GRAVE THREATS Acts punishable: 1. By threatening another with the infliction upon his person, honor or property that of his family of any wrong amounting to a crime and demanding money or imposing any other condition, even though not unlawful and the offender (Note: threat is with condition) Elements a. That the offender threatens another person with the infliction upon the latters person, honor or property, or upon that of the latters family, of any wrong. b. That such wrong amounts to a crime. c. That there is a demand for money or that any other condition is imposed, even though not unlawful. d. That the offender attains his purpose. 2. By making such threat without the offender attaining his purpose 3. By threatening another with the infliction upon his person, honor or property or that of his family of any wrong amounting to a crime, the threat not being subject to a condition (Note: threat is without condition) Elements a. That the offender threatens another person with the infliction upon the latters person, honor or property, or upon that of the latters family, of any wrong. b. That such wrong amounts to a crime. c. That the threat is not subject to a condition Notes: Intimidation is an indispensable element in the crime of threat. The very essence of threat is to sow fear, anxiety and insecurity in the mind of the offended party. It is done by threatening to commit the crime upon the person, honor and property of the offended party. There is a promise of some future harm or injury. Threat is a declaration of an intention or determination to injure another by the commission upon his person, honor or property or upon that of his family of some wrong which may or may not amount to a crime: (1) Grave threats when the wrong threatened to be inflicted amounts to a crime. The case falls under Article 282.

62

www.rkmfiles.net

(2) Light threats if it does not amount to a crime. The case falls under Article 283. But even if the harm intended is in the nature of a crime, if made orally and in the heat of anger and after the oral threat, the issuer of the threat did not pursue the act; the crime is only other light threats under Article 285. To constitute grave threats, the threats must refer to a future wrong and is committed by acts or through words of such efficiency to inspire terror or fear upon another. It is, therefore, characterized by moral pressure that produces disquietude or alarm. The greater perversity of the offender is manifested when the threats are made demanding money or imposing any condition, whether lawful or not, and the offender shall have attained his purpose. So the law imposes upon him the penalty next lower in degree than that prescribed for the crime threatened to be committed. But if the purpose is not attained, the penalty lower by two degrees is imposed. The maximum period of the penalty is imposed if the threats are made in writing or through a middleman as they manifest evident premeditation. Distinction between threat and coercion: The essence of coercion is violence or intimidation. There is no condition involved; hence, there is no futurity in the harm or wrong done. In threat, the wrong or harm done is future and conditional. In coercion, it is direct and personal. Distinction between threat and robbery: (1) As to intimidation In robbery, the intimidation is actual and immediate; in threat, the intimidation is future and conditional. (2) As to nature of intimidation In robbery, the intimidation is personal; in threats, it may be through an intermediary. (3) As to subject matter Robbery refers to personal property; threat may refer to the person, honor or property. (4) As to intent to gain In robbery, there is intent to gain; in threats, intent to gain is not an essential element. (5) In robbery, the robber makes the danger involved in his threats directly imminent to the victim and the obtainment of his gain immediate, thereby also taking rights to his person by the opposition or resistance which the victim might offer; in threat, the danger to the victim is not instantly imminent nor the gain of the culprit immediate. LIGHT THREATS Elements: 1. That the offender makes a threat to commit a wrong. 2. That the wrong does not constitute a crime. 3. That there is a demand for money or that other condition is imposed, even though not unlawful 4. That the offender has attained his purpose or, that he has not attained his purpose In order to convict a person of the crime of light threats, the harm threatened must not be in the nature of crime and there is a demand for money or any other condition is imposed, even though lawful. BOND FOR GOOD BEHAVIOR The law imposes the penalty of bond for good behavior only in case of grave and light threats. If the offender can not post the bond, he will be banished by way of destierro to prevent him from carrying out his threat. Bond of good behavior means the posting of bond on the part of the accused in order to guarantee that he will not molest the offended party. It is in the nature of an additional penalty. Bond to keep peace under Article 35 is applicable to all cases and is treated as a distinct penalty. If the sentenced prisoner fails to give the bond, he shall be detained for a period not exceeding six months if the crime for which he was

63

www.rkmfiles.net

convicted is classified as grave felony or for a period not exceeding thirty days if convicted for a light felony.

OTHER LIGHT THREATS Elements: 1. Person shall threaten another with a weapon, or draw weapon in a quarrel unless in self-defense. 2. In the heat of anger, person orally threatens another with some harm constituting a crime, without persisting in the idea involved in the threat. Subsequent acts did not persist. 3. Person orally threatens another with harm not constituting a felony. In the crime of light threats, there is no demand for money and the threat made is not planned or done with deliberate intent. So threats which would otherwise qualify as grave threats, when made in the heat of anger or which is a product of a spur of the moment are generally considered as light threats. Whether it is grave or light threats, the crime is committed even in the absence of the person to whom the threat is directed. GRAVE COERCIONS Elements: 1. That a person prevented another from doing something OR not to do something against his will, be it right or wrong; 2. That the prevention or compulsion be effected by violence, of force as would produce intimidation and control the will. 3. That the person that restrained the will and liberty by another had not the authority of law or the right to do so, or, in other words, that the restraint shall not be made under authority of law or in the exercise of any lawful right. Acts punished 1. Preventing another, by means of violence, threats or intimidation, from doing something not prohibited by law; 2. Compelling another, by means of violence, threats or intimidation, to do something against his will, whether it be right or wrong. In grave coercion, the act of preventing by force must be made at the time the offended party was doing or was about to do the act to be prevented. Grave coercion arises only if the act which the offender prevented another to do is not prohibited by law or ordinance. If the act prohibited was illegal, he is not liable for grave coercion. If a person prohibits another to do an act because the act is a crime, even though some sort of violence or intimidation is employed, it would not give rise to grave coercion. It may only give rise to threat or physical injuries, if some injuries are inflicted. However, in case of grave coercion where the offended party is being compelled to do something against his will, whether it be wrong or not, the crime of grave coercion is committed if violence or intimidation is employed in order to compel him to do the act. No person shall take the law into his own hands. LIGHT COERCIONS Elements: 1. That the offender must be a creditor. 2. That he seizes anything belonging to his debtor. 3. That the seizure of the thing be accomplished by means of violence or a display of material force producing intimidation; 4. That the purpose of the offender is to apply the same to the payment of the debt.

64

www.rkmfiles.net

UNJUST VEXATION In unjust vexation, any act committed without violence, but which unjustifiably annoys or vexes an innocent person amounts to light coercion. As a punishable act, unjust vexation should include any human conduct which, although not productive of some physical or material harm would, however, unjustifiably annoy or vex an innocent person. It is distinguished from grave coercion under the first paragraph by the absence of violence. OTHER SIMILAR COERCIONS ELEMENTS OF NO. 1 - Forcing or compelling, directly or indirectly or knowingly permitting the forcing or compelling of the laborer or employee of the offender to purchase merchandise of commodities of any kind from him; 1. That the offender is any person, agent or officer of any association or corporation. 2. That he or such firm or corporation has employed laborers or employees. 3. That he forces or compels, directly or indirectly, or knowingly permits to be forced or compelled, any of his or its laborers or employees to purchase merchandise or commodities of any kind from his or from said firm or corporation. ELEMENTS OF NO. 2 - Paying the wages due his laborer or employee by means of tokens or object other than the legal tender currency of the Philippines, unless expressly requested by such laborer or employee. 1. That the offender pays the wages due a laborer or employee employed by him by means of tokens or objects. 2. That those tokens or objects are other than the legal tender currency to the Philippines. 3. That such employee or laborer does not expressly request that he be paid by means of tokens or objects. Under the Republic Act No. 602, known as the Minimum Wage Law, wages of laborers must be paid in legal tender. Accordingly, it is unlawful to pay the wages of the laborers in the form of promissory notes, vouchers, coupons, tokens, or any other forms alleged to represent legal tender. FORMATION, MAINTENANCE, AND PROHIBITION OF COMBINATION OF CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS Elements: 1. That the offender employs violence or threats, in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work 2. That the purpose is to organize, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employees. Peaceful picketing is part of the freedom of speech and is not covered by this article. Preventing employees or laborers from joining any registered labor organization is punished under Art. 248 of the Labor Code. DISCOVERY AND REVELATION OF SECRETS DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE Elements 1. That the offender is a private individual or even a public officer not in the exercise of his official function, 2. That he seizes the papers or letters of another. 3. That the purpose is to discover the secrets of such another person.

65

www.rkmfiles.net

4. That offender is informed of the contents or the papers or letters seized.

REVEALING SECRETS WITH ABUSE OF OFFICE Elements 1. That the offender is a manager, employee or servant. 2. That he learns the secrets of his principal or master in such capacity. 3. That he reveals such secrets. REVELATION OF INDUSTRIAL SECRETS Elements 1. That the offender is a person in charge, employee or workman of a manufacturing or industrial establishment. 2. That the manufacturing or industrial establishment has a secret of the industry which the offender has learned. 3. That the offender reveals such secrets. 4. That the prejudice is caused to the owner. A business secret must not be known to other business entities or persons. It is a matter to be discovered, known and used by and must belong to one person or entity exclusively. One who merely copies their machines from those already existing and functioning cannot claim to have a business secret, much less, a discovery within the contemplation of Article 292. ROBBERY IN GENERAL Elements 1. That there be personal property belonging to another. 2. That there is unlawful taking of that property. 3. That the taking must be with intent to gain, and 4. That there is violence against or intimidation of any person, or force upon anything. Robbery This is the taking or personal property belonging to another, with intent to gain, by means of violence against, or intimidation of any person, or using force upon anything. Two kinds of robbery: 1) robbery with violence or intimidation and 2) robbery with force upon things. 1. Belonging to another person from whom property was taken need not be the owner, legal possession is sufficient The property must be personal property and cannot refer to real property. 2. Name of the real owner is not essential so long as the personal property taken does not belong to the accused except if crime is robbery with homicide 3. Taking of personal property must be unlawful; if given in trust estafa 4. As to robbery with violence or intimidation from the moment the offender gains possession of the thing even if offender has had no opportunity to dispose of the same, the unlawful taking is complete 5. As to robbery with force upon things thing must be taken out of the building 6. Intent to gain presumed from unlawful taking - Intent to gain may be presumed from the unlawful taking of anothers property. However, when one takes a property under the claim of ownership or title, the taking is not considered to be with intent to gain. (U. S. vs. Manluco, et al., 28 Phil. 360)

66

www.rkmfiles.net

7. When theres no intent to gain but there is violence in the taking grave coercion 8. Violence or intimidation must be against the person of the offended party, not upon the thing 9. General rule: violence or intimidation must be present before the taking is complete, Exception: when violence results in homicide, rape, intentional mutilation or any of the serious physical injuries in par 1 and 2 of art 263, the taking of the property is robbery complexed with any of these crimes under art 294, even if taking is already complete when violence was used by the offender 10. Use of force upon things entrance to the building by means described in arts 299 and 302 (offender must enter) The other kind of robbery is one that is committed with the use of force upon anything in order to take with intent to gain, the personal property of another. The use of force here must refer to the force employed upon things in order to gain entrance into a building or a house. (People vs. Adorno, C. A. 40 O. G. 567) 11. When both violence or intimidation and force upon things concur it is robbery with violence Robbery and Theft, compared. 1. 2. 3. 4. Both robbery and theft involve unlawful taking as an element; Both involve personal property belonging to another; In both crimes, the taking is done with intent to gain; In robbery, the taking is done either with the use of violence or intimidation of person or the employment of force upon things; whereas in theft, the taking is done simply without the knowledge and consent of the owner. Grave threats No intent to gain Intimidation; promises some future harm or injury Grave coercion None Intimidation (effect) is immediate and offended party is compelled to do something against his will (w/n right or wrong) Bribery X has committed a crime and gives money as way to avoid arrest or prosecution Giving of money is in one sense voluntary Transaction is voluntary and mutual

Robbery with violence Intent to gain Immediate harm

Robbery X didnt commit crime but is intimidated to deprive him of his property Deprived of money thru force or intimidation Neither Ex. defendant demands payment of P2.00 with threats of arrest and prosecution, therefore, robbery because (a) intent to gain and (b) immediate harm ANTI CARNAPPING ACT ( RA # 6539 )

Carnapping is the taking, with intent to gain, of a motor vehicle belonging to another without the latters consent, or by means of violence against or intimidation of persons, or by using force upon things. Any vehicle which is motorized using the streets which are public, not exclusively for private use is covered within the concept of motor vehicle under the Anti-Carnapping Law. A tricycle which is not included in the enumeration of

67

www.rkmfiles.net

exempted vehicles under the Carnapping Law is deemed to be motor vehicle as defined in the law, the stealing of which comes within its penal sanction. If the vehicle uses the streets with or without the required license, the same comes within the protection of the law, for the severity of the offense is not to be measured by what kind of street or highway the same is used but by the nature of the vehicle itself and the case to which it is devoted. (Izon, et al., vs. People, 107 SCRA 118) ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSON Acts punished as robbery with violence against or intimidation of persons By reason or on occasion of the robbery, the following are committed: 1. homicide 2. robbery accompanied with rape or intentional mutilation, SPI insane, imbecile, impotent or blind 3. SPI lost the use of speech, hear, smell, eye, hand, foot, arm, leg, use of any such member, incapacitated for work habitually engaged in 4. Violence/intimidation shall have been carried to a degree clearly unnecessary for the crime or when in the cause of its execution SPI/deformity, or shall have lost any part of the body or the use thereof or shall have been ill or incapacitated for the performance of the work for > 90 days; > 30 days 5. Any kind of robbery with less serious physical injuries or slight physical injuries Case: A, B, C and D robbed a bank. When they were about to flee, policemen came, and they traded shots with them. If one of the policemen was killed, the offense is Robbery with Homicide. If one of the robbers was the one killed, the remaining robbers shall be charged also with Robbery with Homicide. If a bank employee was the one killed either by the robbers or by the policemen in the course of the latters action of arresting or trying to arrest the robbers, the crime is still Robbery with Homicide. As long as the criminal intent is to rob, that is, robbery was the real motive, the offense would still be classified as Robbery with Homicide even if the killing preceded or was done ahead of the robbing. (People vs. Tolentino, 165 SCRA 490). Thus, as a member of the agaw-armas gang whose plan and design is to rob a policeman of his service revolver, but because he fears that said policeman may beat him to the draw, first shoots the policeman fatally and only after when the latter lies dead, does he get the gun the crime is still considered Robbery with Homicide. This is a crime against property, and therefore, you contend not with the killing but with the robbery. The term homicide is used in the generic sense, and the complex crime therein contemplated comprehends not only robbery with homicide in its restricted sense, but also with robbery with murder. So, any kind of killing by reason of or on the occasion of a robbery will bring about the crime of robbery with homicide even if the person killed is less than three days old, or even if the person killed is the mother or father of the killer, or even if on such robbery the person killed was done by treachery or any of the qualifying circumstances. In short, there is no crime of robbery with parricide, robbery with murder, robbery with infanticide any and all forms of killing is referred to as homicide. Illustration 1: The robbers enter the house. In entering through the window, one of the robbers stepped on a child less than three days old. The crime is not robbery with infanticide because there is no such crime. The word homicide as used in defining robbery with homicide is used in the generic sense. It refers to any kind of death.

68

www.rkmfiles.net

Although it is a crime against property and treachery is an aggravating circumstance that applies only to crimes against persons, if the killing in a robbery is committed with treachery, the treachery will be considered a generic aggravating circumstance because of the homicide. When two or more persons are killed during the robbery, such should be appreciated as an aggravating circumstance. As long as there is only one robbery, regardless of the persons killed, you only have one crime of robbery with homicide. Note, however, that one robbery does not mean there is only one taking.

Illustration 2: Robbers decided to commit robbery in a house, which turned out to be a boarding house. Thus, there were different boarders who were offended parties in the robbery. There is only one count of robbery. If there were killings done to different boarders during the robbery being committed in a boarders quarter, do not consider that as separate counts of robbery with homicide because when robbers decide to commit robbery in a certain house, they are only impelled by one criminal intent to rob and there will only be one case of robbery. If there were homicide or death committed, that would only be part of a single robbery. That there were several killings done would only aggravate the commission of the crime of robbery with homicide. In robbery with homicide as a single indivisible offense, it is immaterial who gets killed. Even though the killing may have resulted from negligence, you will still designate the crime as robbery with homicide. Illustration 3: On the occasion of a robbery, one of the offenders placed his firearm on the table. While they were ransacking the place, one of the robbers bumped the table. As a result, the firearm fell on the floor and discharged. One of the robbers was the one killed. Even though the placing of the firearm on the table where there is no safety precaution taken may be considered as one of negligence or imprudence, you do not separate the homicide as one of the product of criminal negligence. It will still be robbery with homicide, whether the person killed is connected with the robbery or not. He need not also be in the place of the robbery. Note that the person killed need not be one who is identified with the owner of the place where the robbery is committed or one who is a stranger to the robbers. It is enough that the homicide was committed by reason of the robbery or on the occasion thereof. Illustration 4: There are two robbers who broke into a house and carried away some valuables. After they left such house these two robbers decided to cut or divide the loot already so that they can go of them. So while they are dividing the loot the other robber noticed that the one doing the division is trying to cheat him and so he immediately boxed him. Now this robber who was boxed then pulled out his gun and fired at the other one killing the latter. Would that bring about the crime of robbery with homicide? Yes. Even if the robbery was already consummated, the killing was still by reason of the robbery because they quarreled in dividing the loot that is the subject of the robbery. Remember also that intent to rob must be proved. But there must be an allegation as to the robbery not only as to the intention to rob. If the motive is to kill and the taking is committed thereafter, the crimes committed are homicide and theft. If the primordial intent of the offender is to kill and not to rob but after the killing of the victims a robbery was committed, then there are will be two separate crimes. Illustration 5:

69

www.rkmfiles.net

If a person had an enemy and killed him and after killing him, saw that he had a beautiful ring and took this, the crime would be not robbery with homicide because the primary criminal intent is to kill. So, there will be two crimes: one for the killing and one for the taking of the property after the victim was killed. Now this would bring about the crime of theft and it could not be robbery anymore because the person is already dead. For robbery with homicide to exist, homicide must be committed by reason or on the occasion of the robbery, that is, the homicide must be committed in the course or because of the robbery. Robbery and homicide are separate offenses when the homicide is not committed on the occasion or by reason of the robbery. Robbery with homicide need not be committed inside a building. What constitutes the crime as robbery with homicide is the killing of a person on the occasion or by reason of the taking of personal property belonging to another with intent to gain. The killing on the occasion of robbery may come in different forms. 1) It may be done by the offender for the purpose of suppressing evidence, like when the victim is killed because he happens to know the person of the offender; or 2) when the killing is done in order to prevent or remove any opposition which the victim may put up as regards the taking of his personal belongings. 3) The killing may also result from the offenders defense of his possession of the stolen goods. 4) Or it may be resorted to by the offender to facilitate his escape after the commission of the robbery. Robbery with Rape a. Intent to commit robbery must precede rape. b. Prosecution of the crime need not be by offended party fiscal can sign the information. c. When rape and homicide co-exist, rape should be considered as aggravating only and the crime is still robbery with homicide The rape committed on the occasion of the robbery is not considered a private crime because the crime is robbery, which is a crime against property. So, even though the robber may have married the woman raped, the crime remains robbery with rape. The rape is not erased. This is because the crime is against property which is a single indivisible offense. If the woman, who was raped on the occasion of the robbery, pardoned the rapist who is one of the robbers, that would not erase the crime of rape. The offender would still be prosecuted for the crime of robbery with rape, as long as the rape is consummated. If the rape is attempted, since it will be a separate charge and the offended woman pardoned the offender that would bring about a bar to the prosecution of the attempted rape. If the offender married the offended woman, that would extinguish the criminal liability because the rape is the subject of a separate prosecution. The intention must be to commit robbery and even if the rape is committed before the robbery, robbery with rape is committed. But if the accused tried to rape the offended party and because of resistance, he failed to consummate the act, and then he snatched the vanity case from her hands when she ran away, two crimes are committed: attempted rape and theft. The Revised Penal Code does not differentiate whether rape was committed before, during or after the robbery. It is enough that the robbery accompanied the rape. Robbery must not be a mere accident or afterthought. If the two (2) crimes were separated both by time and place, there is no complex crime of Robbery with Rape. Thus, when complainant went out of her room about 1:30 a.m. to urinate, one of the accused grabbed her, poked an icepick on her neck , and dragged her out of the house and was made to board a taxi; and before boarding, she saw the two (2) companions of the man carrying her typewriter and betamax and then joining them in the taxi, and that after alighting from the taxi, the

70

www.rkmfiles.net

two (2) companions left her, and the man who had grabbed her brought her to a motel, where by means of force and intimidation he was able to have sex with her, the crimes committed are Robbery and Forcible Abduction with Rape. The Rape committed cannot be complexed with Robbery. (People vs. Angeles, 222 SCRA 451). If rape was the primary objective of the accused and the taking of her jewelries was not done with intent to gain but as a token of her supposed consent to the sexual intercourse, the accused is guilty of two distinct crimes: rape and unjust vexation. (People vs. Villarino, C. A. G. R. No. 6342-R, Nov. 26, 1951) d. robbery with intimidation acts done by the accused which by their own nature or by reason of the circumstances inspire fear in the person against whom they are directed In the taking of personal property, it is necessary that violence must be employed by the offender in order that the taking may be considered as robbery. So, where the taking is without violence or intimidation and the same is complete, but the victim pursued the offender in order to recover the personal property taken and by the reason thereof, he suffers less serious or slight physical injuries in the hands of the offender, the violence employed on the victim which resulted to his injuries will not convert the taking of his personal property to robbery. In such a case, the offender is liable for two crimes, namely, theft and less serious or slight physical injuries. The intimidation must be present at the time of the taking before it is completed. If the taking is completed without intimidation and it is employed by the offender only to prevent the owner from recovering his stolen property, two crimes are committed by the offender: theft and grave threat. If violence is employed against the offended party in order to deprive him of his personal property and the violence resulted to the infliction of less serious or slight physical injuries, the crime committed would only be robbery. Hence, there is no crime of robbery with less serious or slight injuries. (U. S. vs. Barroga, 21 Phil 161) On Robbery with Physical Injuries To be considered as such, the physical injuries must always be serious. If the physical injuries are only less serious or slight, they are absorbed in the robbery. The crime becomes merely robbery. But if the less serious physical injuries were committed after the robbery was already consummated, there would be a separate charge for the less serious physical injuries. It will only be absorbed in the robbery if it was inflicted in the course of the execution of the robbery. The same is true in the case of slight physical injuries. Illustration 1: After the robbery had been committed and the robbers were already fleeing from the house where the robbery was committed, the owner of the house chased them and the robbers fought back. If only less serious physical injuries were inflicted, there will be separate crimes: one for robbery and one for less serious physical injuries. But if after the robbery was committed and the robbers were already fleeing from the house where the robbery was committed, the owner or members of the family of the owner chased them, and they fought back and somebody was killed, the crime would still be robbery with homicide. But if serious physical injuries were inflicted and the serious physical injuries rendered the victim impotent or insane or the victim lost the use of any of his senses or lost a part of his body, the crime would still be robbery with serious physical injuries. The physical injuries (serious) should not be separated regardless of whether they retorted in the course of the commission of the robbery or even after the robbery was consummated. On Robbery with Arson Another innovation of Republic Act No. 7659 is the composite crime of robbery with arson if arson is committed by reason of or on occasion of the robbery. The composite crime would only be committed if the primordial intent of the offender is to

71

www.rkmfiles.net

commit robbery and there is no killing, rape, or intentional mutilation committed by the offender during the robbery. Otherwise, the crime would be robbery with homicide, or robbery with rape, or robbery with intentional mutilation, in that order and the arson would only be an aggravating circumstance. It is essential that robbery precedes the arson, as in the case of rape and intentional mutilation, because the amendment included arson among the rape and intentional mutilation which have accompanied the robbery. Moreover, it should be noted that arson has been made a component only of robbery with violence against or intimidation of persons in said Article 294, but not of robbery by the use of force upon things in Articles 299 and 302. So, if the robbery was by the use of force upon things and therewith arson was committed, two distinct crimes are committed. QUALIFIED ROBBERY WITH VIOLENCE OR INTIMIDATION Qualifying circumstances in robbery with violence or intimidation of persons, if any of the offenses defined in subdivisions 3, 4 and 5 of Art 294 is committed: a. in an uninhabited place or b. by a band or c. by attacking a moving train, street car, motor vehicle or airship, or d. by entering the passengers compartments in a train, or in any manner taking the passengers thereof by surprise in the respective conveyances, or e. on a street, road, highway or alley and the intimidation is made with the use of firearms, the offender shall be punished by the max period of the proper penalties prescribed in art 294 Notes: 1. 2. 3. of art Must be alleged in the information Cant be offset by generic mitigating Art 295 will not apply to: robbery w/ homicide, rape or SPI under par 1 263

ROBBERY BY A BAND Band is defined as consisting of at least four armed malefactors organized with the intention of carrying out any unlawful design. Their participation in the commission of the crime must be actual. The offender must be principal by direct participation, so that, a principal by inducement cannot be convicted of this crime where the aggravating circumstance of band shall be appreciated against him, since the law requires as a condition to its commission the actual participation of the offender in the execution of the crime. In such a case, the conviction of a principal by inducement will only be limited to his criminal liability as a co-conspirator. 1. Liability for the acts of the other members of the band a. b. c. d. he was a member of the band he was present at the commission of a robbery by that band other members of the band committed an assault he did not attempt to prevent the assault

2. Conspiracy to commit robbery with homicide even if less than 4 armed men 3. Conspiracy to commit robbery only but homicide was committed also on the occasion thereof all members of the band are liable for robbery with homicide Even if the agreement refers only to the robbery, nonetheless, where the robbery is committed by a band and a person is killed, any member who was present at the commission of the robbery and who did not do anything to prevent the killing of the victim on the occasion of the robbery shall be held liable for the crime of robbery with homicide. (People vs. Cinco, 194 SCRA 535) 4. Conspiracy is presumed when 4 or more armed persons committed robbery

72

www.rkmfiles.net

5. Unless the others attempted to prevent the assault guilty of robbery by band only Band is a generic aggravating circumstance in the crime of robbery with homicide or rape. But in the other circumstances provided under Article 294 particularly paragraphs 3, 4 and 5, band is a special aggravating circumstance which must be alleged in the information. Band is a special aggravating circumstance if the robbery results in the infliction of serious physical injuries. The arms contemplated under this article refers to any deadly weapon and is not limited to firearms, whether long or short.

ATTEMPTED OR FRUSTRATED ROBBERY WITH HOMICIDE 1. Whether robbery is attempted or frustrated, penalty is the same When the robbery is attempted or frustrated, Art. 294 have no application because the robbery and the homicide must be both consummated. Where the homicide is only attempted or frustrated, Article 297 does not apply. In the same manner, where the attempted or frustrated robbery results in the commission of serious physical injuries, Article 297 has no application. In such a case, the crime shall be treated under the provisions of Article 48 on ordinary complex crimes. Consequently, the penalty prescribed by Article 48 shall be observed. EXECUTION OF DEEDS BY MEANS OF VIOLENCE OR INTIMIDATION Elements 1. That the offender has intent to defraud another. 2. That the offender compels him to sign, execute, or deliver any public instrument or document. 3. That the compulsion is by means of violence or intimidation. The element of intent to gain or fraudulent intent is what distinguishes this felony from grave coercion. Although both crimes share a common element which is the compelling of any person to do something against his will, nonetheless, in coercion, the fear created in the mind of the offended party is not immediate but remote. In this type of robbery, the fear is immediate and not remote. In coercion, there is no intent to gain whereas in this form of robbery, intent to gain is an indispensable element. ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP Elements 1. That the offender entered (a) an inhabited house, or (b) public buildings, or (c) edifice devoted to religious worship. 2. That the entrance was effected by any of the following means: a. Through an opening not intended for entrance or egress. b. By breaking any wall, roof, or floor or breaking any door or window. c. By using false keys, picklocks or similar tools or. d. By using any fictitious name or pretending the exercise of public authority. 3. That once inside the building, the offender took personal property belonging to another with intent to gain. Nota Bene: In this kind of Robbery, no violence or intimidation against persons is ever used.

73

www.rkmfiles.net

1.

Includes dependencies (stairways, hallways, etc.)

A small store located on the ground floor of a house is a dependency of the house, there being no partition between the store and the house and in going to the main stairway, one has to enter the store which has a door. (U.S. vs. Ventura, 39 Phil. 523). 2. Inhabited house any shelter, ship or vessel constituting the dwelling of one or more person even though temporarily absent dependencies, courts, corals, barns, etc. 3. NOT INCLUDED ORCHARD, LANDS FOR CULTIVATION.

4. Important for robbery by use of force upon things, it is necessary that offender enters the building or where object may be found. NO ENTRY, NO ROBBERY In the absence of evidence to show how bandits effected an entrance into the convent which they robbed, there can be no conviction under this article. The act would be treated as Theft. ( U.S. vs. Callotes, 2 PHIL 16 ) "Force upon things" has a technical meaning in law. Not any kind of force upon things will characterize the taking as one of robbery. The force upon things contemplated requires some element of trespass into the establishment where the robbery was committed. In other words, the offender must have entered the premises where the robbery was committed. If no entry was effected, even though force may have been employed actually in the taking of the property from within the premises, the crime will only be theft. The term force upon things has a legal meaning. It means the employment of force to effect entrance into the house or building by destroying the door, window, roof, wall or floor of the aforesaid house or building. In other words, the force upon things has no reference to personal property but to a house or building which is ordinarily classified as real property. 5. Entrance is necessary mere insertion of hand is not enough (whole body); not to get out but to enter therefore, evidence to such effect is necessary Two predicates that will give rise to the crime as robbery: a. By mere entering alone, a robbery will be committed if any personal property is taken from within; b. The entering will not give rise to robbery even if something is taken inside. It is the breaking of the receptacle or closet or cabinet where the personal property is kept that will give rise to robbery, or the taking of a sealed, locked receptacle to be broken outside the premises. If by the mere entering, that would already qualify the taking of any personal property inside as robbery, it is immaterial whether the offender stays inside the premises. The breaking of things inside the premises will only be important to consider if the entering by itself will not characterize the crime as robbery with force upon things. Modes of entering that would give rise to the crime of robbery with force upon things if something is taken inside the premises: entering into an opening not intended for entrance or egress, under Article 299 (a).

Illustration 1: The entry was made through a fire escape. The fire escape was intended for egress. The entry will not characterize the taking as one of robbery because it is an opening intended for egress, although it may not be intended for entrance. If the entering were done through the window, even if the window was not broken, that

74

www.rkmfiles.net

would characterize the taking of personal property inside as robbery because the window is not an opening intended for entrance. Illustration 2: On a sari-sari store, a vehicle bumped the wall. The wall collapsed. There was a small opening there. At night, a man entered through that opening without breaking the same. The crime will already be robbery if he takes property from within because that is not an opening intended for the purpose. Even of there is a breaking of wall, roof, floor or window, but the offender did not enter, it would not give rise to robbery with force upon things. Note that in the crime of robbery with force upon things, what should be considered is the means of entrance and means of taking the personal property from within. If those means do not come within the definition under the Revised Penal Code, the taking will only give rise to theft. Those means must be employed in entering. If the offender had already entered when these means were employed, anything taken inside, without breaking of any sealed or closed receptacle, will not give rise to robbery. Illustration 3: A found B inside his (As) house. He asked B what the latter was doping there. B claimed he is an inspector from the local city government to look after the electrical installations. At the time B was chanced upon by A, he has already entered. So anything he took inside without breaking of any sealed or closed receptacle will not give rise to robbery because the simulation of public authority was made not in order to enter but when he has already entered. 6. 7. P v. Lamahang intent to rob being present is necessary Place: house or building; not car

8. Public building every building owned, rented or used by the government (though owned by private persons) though temporarily vacant 9. Not robbery passing through open door but getting out of a window

If accused entered the house through a door, and it was while escaping that he broke any wall, floor or window after taking personal property inside the house there is no Robbery committed, only Theft. 10. Outside door must be broken, smashed. Theft if lock is merely removed or door was merely pushed Breaking of the door under Article299 (b) Originally, the interpretation was that in order that there be a breaking of the door in contemplation of law, there must be some damage to the door. Before, if the door was not damaged but only the lock attached to the door was broken, the taking from within is only theft. But the ruling is now abandoned because the door is considered useless without the lock. Even if it is not the door that was broken but only the lock, the breaking of the lock renders the door useless and it is therefore tantamount to the breaking of the door. Hence, the taking inside is considered robbery with force upon things. 11. False keys genuine keys stolen from the owner or any keys other than those intended by the owner for use in the lock 12. Picklocks specially made, adopted for commission of robbery

13. Key stolen not by force, otherwise, its robbery by violence and intimidation against persons 14. False key used in opening house and not furniture inside, otherwise, theft (for latter to be robbery., must be broken and not just opened)

75

www.rkmfiles.net

Use of picklocks or false keys refers to the entering into the premises If the picklock or false key was used not to enter the premises because the offender had already entered but was used to unlock an interior door or even a receptacle where the valuable or personal belonging was taken, the use of false key or picklock will not give rise to the robbery with force upon things because these are considered by law as only a means to gain entrance, and not to extract personal belongings from the place where it is being kept. 15. Gen. Rule: outside door. Exception: inside door in a separate dwelling

If in the course of committing the robbery within the premises some interior doors are broken, the taking from inside the room where the door leads to will only give rise to theft. The breaking of doors contemplated in the law refers to the main door of the house and not the interior door. But if it is the door of a cabinet that is broken and the valuable inside the cabinet was taken, the breaking of the cabinet door would characterize the taking as robbery. Although that particular door is not included as part of the house, the cabinet keeps the contents thereof safe. 16. E.g. pretending to be police to be able to enter (not pretending after entrance) When the robbery is committed in a house which is inhabited, or in a public building or in a place devoted to religious worship, the use of fictitious name or pretension to possess authority in order to gain entrance will characterize the taking inside as robbery with force upon things. If A and B told the occupant of the house that they were the nephews of the spouse of the owner of the house, and because of that, the closed door was opened, or that they were NBI agents executing a warrant of arrest, and so the occupant opened the door, any taking personal property thereat with intent to gain, would be Robbery. ELEMENTS OF ROBBERY WITH FORCE UPON SUBDIVISION (B) OR ART. 299 1. That the offender is inside a dwelling house, public building, or edifice devoted to religious worship, regardless of the circumstances under which he entered it 2. That the offender takes personal property belonging to another with intent to gain, under any of the following circumstances. a. by the breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle, or b. by taking such furniture or objects away to be broken or forced open outside the place of the robbery. Notes: 1. Entrance ( no matter how done)

If the entering does not characterize the taking inside as one of robbery with force upon things, it is the conduct inside that would give rise to the robbery if there would be a breaking of sealed, locked or closed receptacles or cabinet in order to get the personal belongings from within such receptacles, cabinet or place where it is kept. 2. Offender may be servants or guests

A friend who has invited in a house and who enters a room where he finds a closed cabinet where money is kept, is guilty of robbery if he forcibly opens the said cabinet and takes the money contained therein. 3. When sealed box is taken out for the purpose of breaking it, no need to open already consummated robbery

76

www.rkmfiles.net

4. 5.

Estafa if box is in the custody of accused Theft if box found outside and forced open

ROBBERY IN AN UNINHABITED PLACE AND BY A BAND When the robbery with force upon things is committed in an uninhabited place and by a band, the robbery becomes qualified. In the same manner, where robbery with violence against or intimidation of persons is committed by a band or in an uninhabited place, the crime becomes qualified. The place considered uninhabited when it is not used as a dwelling. It may refer to a building or a house which is not used as a dwelling. If a house is inhabited and its owners or occupants temporarily left the place to take a short vacation in another place, their casual absence will not make the place or house uninhabited. (U. S. vs. Ventura, 39 Phil. 523)

WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING OR BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES Nota Bene Inhabited house Any shelter, ship, or vessel constituting the dwelling of one or more persons, even though the inhabitants thereof shall temporarily be absent therefrom when the robbery is committed. Public building Includes every building owned by the government or belonging to a private person but used or rented by the government, although temporarily unoccupied by the same. 1. Dependencies are all interior courts, corrals, warehouses, granaries or enclosed places: a. contiguous to the building b. having an interior entrance connected therewith c. which form part of the whole 2. Garage must have 3 requirements. Exception: orchards/lands ROBBERY IN AN UNINHABITED PLACE OR IN A PRIVATE BUILDING Elements: 1. That the offender entered an uninhabited place or a building which was not a dwelling house, not a public building, or not an edifice devoted to religious worship. 2. that any of the following circumstances was present: a. That entrance was effected through an opening not intended for entrance or egress. b. A wall, roof, floor, or outside door or window was broken. c. The entrance was effected through the use of false keys, picklocks or other similar tools. d. A door, wardrobe, chest, or any sealed or closed furniture or receptacle was broken or e. A closed or sealed receptacle was removed, even if the same be broken open elsewhere. 3. That with intent to gain the offender took therefrom personal property belonging to another. Nota Bene: 1. Second kind of robbery with force upon things

It must be taken note of, that the entrance by using any fictitious name or pretending the exercise of public authority is not among those mentioned in Article 302 because the place is Uninhabited and therefore without person present.

77

www.rkmfiles.net

Likewise, in this class of Robbery, the penalty depends on the amount taken disregarding the circumstances of whether the robbers are armed or not as in the case in Robbery in Inhabited Place. 2. Uninhabited place is an uninhabited building (habitable, not any of the 3 places mentioned) 3. Ex. warehouse, freight car, store. Exception: pigsty A store may or may not be an inhabited place depending upon the circumstances of whether or not it is usually occupied by any person lodging therein at night. Although it may be used as a dwelling to sustain a conviction under Article 299, the information must allege that the same was used and occupied as a dwelling (People vs. Tubog, 49 Phil. 620), otherwise Art. 302 is applicable. 4. Same manner as 299 except that was entered into was an uninhabited place or a building other than the 3 mentioned in 299. Exception: does not include use of fictitious name or pretending the exercise of public authority 5. Breaking of padlock (but not door) is only theft 6. False keys genuine keys stolen from the owner or any other keys other than those intended by the owner for use in the lock forcibly opened ROBBERY OF CEREALS, FRUITS OR FIRE WOOD IN AN UNINHABITED PLACE OR PRIVATE BUILDING Under Article 303, if the robbery under Article 299 and 302 consists in the taking of cereals, fruits, or firewood, the penalty imposable is lower. The word cereals however must be understood to mean seedlings or semilla. It does not include hulled rice. It may include palay or unhulled palay. While the law uses the term uninhabited place, it however refers to uninhabited building and its dependencies. If the cereals, fruits or firewood were taken outside a building and its dependencies, the crime committed would only be theft even though the taking was done in an uninhabited place. ILLEGAL POSSESSION OF PICKLOCKS OR SIMILAR TOOLS Elements: 1. That the offender has in his possession picklocks or similar tools. 2. That such picklocks or similar tools are specially adopted to the commission of robbery. 3. That the offender does not have lawful cause for such possession. Nota Bene: Actual use of the same is not necessary The law also prohibits the manufacture or fabrication of such tools. If the manufacturer or maker or locksmith himself is the offender, a higher penalty is prescribed by law. Supposing that in the crime of robbery, the offender used a picklock to enter a building. Can he be charged of illegal possession of picklocks or similar tools? The answer is NO since the same possession of these tools is already absorbed in the graver crime of robbery. FALSE KEYS What constitutes false keys? 1. Picklocks, etc. 2. Genuine key stolen from owner. 3. Any key other than those intended by owner for use in the lock forcibly opened by the offender Nota Bene: 1. 2. Possession of false keys here not punishable If key was entrusted and used to steal, not robbery (not stolen)

78

www.rkmfiles.net

BRIGANDAGE Brigandage This is a crime committed by more than three armed persons who form a band of robbers for the purpose of committing robbery in the highway or kidnapping persons for the purpose of extortion or to obtain ransom, or for any other purpose to be attained by means of force and violence. WHO ARE BRIGANDS? Brigands more than three armed persons forming a band Elements of brigandage: 1. There are least four armed persons; 2. They formed a band of robbers; 3. The purpose is any of the following: a. To commit robbery in the highway; b. To kidnap persons for the purpose of extortion or to obtain ransom; or c. To attain by means of force and violence any other purpose. Presumption of Brigandage: a. if members of lawless band and possession of unlicensed firearms (any of them) b. possession of any kind of arms (not just firearm) BRIGANDAGE Purposes are given Mere formation of a band for the above purpose ROBBERY IN BAND Only to commit robbery, not necessarily in hiway If the purpose is to commit a part robbery Necessary to prove committed robbery that band actually

There is no need for the band robbers to execute the object of their association in order to hold them criminally liable for the crime of brigandage. The primary object on the law on brigandage is to prevent the formation of bands of robbers. Hence, if the formed band commits robbery with the use of force upon persons or force upon things, their criminal liability shall be limited to the commission of such crimes. Likewise, if the offenders are charged with robbery but the same is not established by the evidence and what appear clear are the elements of brigandage where the allegation in the information necessarily includes such offense, the offender can be convicted of the crime of brigandage. It does not mean however that to constitute violation of P.D. 532, there must be a band. One or two persons can be held liable under this law if they perpetrated their acts of depredation in Philippine Highways against persons who are not predetermined victims. If the agreement among more than three armed men is to commit a particular robbery, brigandage is not committed because the latter must be an agreement to commit robbery in general or indiscriminately. AIDING AND ABETTING A BAND OF BRIGANDS Elements: 1. That there is a band of brigands. 2. That the offender knows the band to be of brigands. 3. That the offender does any of the following acts: a. he in any manner aids, abets or protects such band of brigands, or b. he gives them information of the movements of the police or other peace officers of the government or c. He acquires or receives the property taken by such brigands. PD 532 Brigandage 1. Seizure of any person for: (a) ransom; (b) extortion or other unlawful purpose; (c) taking away of property by violence or intimidation or force upon things or other unlawful means

79

www.rkmfiles.net

2. 3.

Committed by any person On any Phil hi-way

Distinction between brigandage under the Revised Penal Code and highway robbery/brigandage under Presidential Decree No. 532: (1) Brigandage as a crime under the Revised Penal Code refers to the formation of a band of robbers by more than three armed persons for the purpose of committing robbery in the highway, kidnapping for purposes of extortion or ransom, or for any other purpose to be attained by force and violence. The mere forming of a band, which requires at least four armed persons, if for any of the criminal purposes stated in Article 306, gives rise to brigandage. (2) Highway robbery/brigandage under Presidential Decree No. 532 is the seizure of any person for ransom, extortion or for any other lawful purposes, or the taking away of the property of another by means of violence against or intimidation of persons or force upon things or other unlawful means committed by any person on any Philippine highway. THEFT Elements: 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. 5. That the taking be accomplished without the use of violence against or intimidation of persons or force upon things. PERSONS LIABLE: 1. Those who a) with intent to gain b) But without violence against or intimidation of persons nor force upon things c) take personal property of another d) without the latters consent The taking from an enclosed corral of a carabao belonging to another, after force is employed to destroy a part of the corral to enter the same, is considered merely as theft because corral is not a building nor a dependency of a building. (U. S. vs. Rosales, et al., 1 Phil. 300) 2. Those who a) having found lost property b) fail to deliver the same to local authorities or its owner Nota Bene: 1. Retention of money/property found is theft. Retention is failure to return (intent to gain) The word lost is used in the generic sense. It embraces loss by stealing or any act of a person other than the owner, as well as the act of the owner, or through some casual occurrence. (People vs. Rodrigo, 16 SCRA 475) The felony is not limited to the actual finder. Theft of a lost property may be committed even by a person who is not the actual finder. (People vs. Avila, 44 Phil. 720) 2. Knowledge of owner is not required, knowledge of loss is enough

It is not necessary that the owner of the lost property be known to the accused. What is important is that he knows or has reason to know that the property was lost and for this fact alone, it is his duty to turn it over to the authorities. If he does otherwise, like, if he sells the thing to another, then the crime of theft is committed. 3. Finder in law is liable

Hidden Treasure

80

www.rkmfiles.net

Under Article 438 and 439 of the Civil Code, the finder of hidden treasure on the property of another and by chance is entitled to one-half of the treasure that he found. His duty is to tell the owner about the treasure. If he appropriates the other half pertaining to the owner of the property, he is liable for theft as to that share. (People vs. Longdew, C. A. G. R. No. 9380-R, June 4, 1953) 3. Those who a) after having maliciously damaged the property of another b) remove or make use of the fruits or object of the damage caused by them Theft of damaged property occurs only after the accused has committed the crime of malicious mischief. In malicious mischief, the offender destroys the property of another because of hatred, resentment or other evil motive against the owner. So, a neighbor who shoots and kills a goat which has destroyed his flower plants and thereafter slaughters and eats the meat of the wandering goat is guilty of theft. 4. Those who a) enter an enclosed estate or a field where b) trespass is forbidden or which belongs to another and, without the consent of its owner c) hunts or fish upon the same or gather fruits, cereals or other forest or farm products Nota Bene: 1. Theft is consummated when offender is able to place the thing taken under his control and in such a situation as he could dispose of it at once (though no opportunity to dispose) i.e, the control test In the crime of theft, the law makes only of the term taking and not taking away. The non-inclusion of the word away is significant because it means that as soon as the culprit takes possession of the things taken by him, the crime of theft is already consummated since the law does not require that the thief be able to carry away the thing taken from the owner. (People vs. Jaranilla, 55 SCRA 563) The consummation of the crime of theft takes place upon the voluntary and malicious taking of the property belonging to another which is realized by the material occupation of the thing. The property need not be actually taken away by the thief. It is enough that he has obtained, at some particular moment, complete control and possession of the thing desired, adverse to the right of the lawful owner. (People vs. Naval, 46 O. G. 2641) 2. P v. Dino applies only in theft of bulky goods (meaning there has to be capacity to dispose of the things). Otherwise, P v. Espiritu full possession is enough 3. Servant using car without permission deemed qualified theft though use was temporary 4. Reyes says: there must be some character of permanency in depriving owner of the use of the object and making himself the owner, therefore must exclude joyride 5. Theft: if after custody (only material possession) of object was given to the accused, it is actually taken by him (no intent to return) e.g. felonious conversion. But it is estafa if juridical possession is transferred e.g., by contract of bailment Juridical possession of a thing is transferred to another when he receives the thing in trust or on commission or for administration, or under a quasi-contract or a contract of bailment. When possession by the offender is under any of these circumstances and he misappropriates the thing received, he cannot be held guilty of theft but of estafa because here, he has both the physical and juridical possession of the property. 6. Includes electricity and gas a. inspector misreads meter to earn

81

www.rkmfiles.net

b. one using a jumper Personal Property Personal property in the crime of theft includes electric current or properties that may have no material or concrete appearance. The test is not whether the subject is corporeal or incorporeal but whether it is incapable of appropriation by another from the owner. Hence, checks, promissory notes, and any other commercial documents may be the object of theft because while they may not be of value to the accused, they are without doubt of value to the offended party. (U. S. vs. Raboy, 25 Phil. 1) In such a case, the penalty shall be based on the amount of money represented by the checks or promissory note since, while it may not of value to the thief, it is undoubtedly of value to the offended party. (People vs. Koc Song, 63 Phil. 369).

7. Selling share of co-partner is not theft The personal property must belong to another. A joint owner or partner who sells the palay to other persons or a co-owner or co-heir who appropriates the whole property cannot be guilty of theft since the property cannot be said to belong to another. (U. S. Reyes, 6 Phil. 441) One who takes away the property pledged by him to another without the latters consent, does not commit theft for the simple reason that he is the owner of the thing taken by him. (L. B. Reyes)

8. Salary must be delivered first to employee; prior to this, taking of Php is theft 9. If offender claims property as his own (in good faith) not theft (though later found to be untrue. If in bad faith theft) 10. Gain is not just Php satisfaction, use, pleasure desired, any benefit (e.g. joyride) Gain means the acquisition of a thing useful for the purpose of life. It includes the benefit which in any other sense may be derived or expected from the act performed. 11. Actual gain is not necessary (intent to gain necessary) 12. Allege lack of consent in info is important Consent as an element of the crime of theft must be in the concept of consent that is freely given and not one which is inferred from mere lack of opposition on the part of the owner. Where the charge of theft under the first sentence of Article 308, the information must allege lack of consent. The allegation of lack of consent is indispensable under the first paragraph of Article 308 since the language or epigraph of the law expressly requires that the (unlawful) taking should be done without the consent of the owner. In view of the clear text of the law, an information which does not aver lack of consent of the owner would render the allegation insufficient and the information may be quashed for failure to allege an essential element of the crime. (Pua Yi Kun vs. People, G. R. No. 26256, June 26, 1968) Robbery and Theft distinguished. For robbery to exist, it is necessary that personal property be taken against the will of the owner; whereas in theft, it is sufficient that consent on the part of the owner is lacking. Presumption:

82

www.rkmfiles.net

A person found in possession of a thing taken in the recent doing of a wrongful act is the taker of the thing and the doer of the whole act. Possession is not limited to actual personal custody. One who deposits stolen property in a place where it cannot be found may be deemed to have such property in his possession. ELEMENTS OF HUNTING, FISHING OR GATHERING FRUITS, ETC. IN ENCLOSED ESTATE (PAR. NO.3, ART. 308) 1. That there is an enclosed estate or a field where trespass is forbidden or which belongs to another; 2. That the offender enters the same. 3. That the offender hunts or fishes upon the same or gathers fruits, cereals or other forest or farm products, and 4. That the hunting or fishing or gathering of products is without the consent of the owner. Nota Bene: Fish not in fishpond, otherwise, qualified Fencing under Presidential Decree No. 1612 is a distinct crime from theft and robbery. If the participant who profited is being prosecuted with person who robbed, the person is prosecuted as an accessory. If he is being prosecuted separately, the person who partook of the proceeds is liable for fencing. Burden of proof is upon fence to overcome presumption; if explanation insufficient or unsatisfactory, court will convict. This is a malum prohibitum so intent is not material. But if prosecution is under the Revised Penal Code, as an accessory, the criminal intent is controlling. When there is notice to person buying, there may be fencing such as when the price is way below ordinary prices; this may serve as notice. He may be liable for fencing even if he paid the price because of the presumption. Cattle Rustling and Qualified Theft of Large Cattle The crime of cattlerustling is defined and punished under Presidential Decree No. 533, the Anti-Cattle Rustling law of 1974, as the taking by any means, method or scheme, of any large cattle, with or without intent to gain and whether committed with or without violence against or intimidation of person or force upon things, so long as the taking is without the consent of the owner/breed thereof. The crime includes the killing or taking the meat or hide of large cattle without the consent of the owner. Since the intent to gain is not essential, the killing or destruction of large cattle, even without taking any part thereof, is not a crime of malicious mischief but cattle-rustling. The Presidential Decree, however, does not supersede the crime of qualified theft of large cattle under Article 310 of the Revised Penal Code, but merely modified the penalties provided for theft of large cattle and, to that extent, amended Articles 309 and 310. Note that the overt act that gives rise to the crime of cattle-rustling is the taking or killing of large cattle. Where the large cattle was not taken, but received by the offender from the owner/overseer thereof, the crime is not cattlerustling; it is qualified theft of large cattle. Where the large cattle was received by the offender who thereafter misappropriated it, the crime is qualified theft under Article 310 if only physical or material possession thereof was yielded to him. If both material and juridical possession thereof was yielded to him who misappropriated the large cattle, the crime would be estafa under Article 315 (1b). PENALTIES FOR QUALIFIED THEFT The basis of the penalty is the value of the things stolen.

83

www.rkmfiles.net

If the property has some value but is not proven with reasonable certainty, the minimum penalty shall be imposed under par. 6 of Art. 309 (People vs. Reyes, 58 Phil. 964). When there is no evidence as to the value of the property stolen, the court is allowed to take judicial knowledge of the value of such property. (People vs. dela Cruz, 43 O. G. 3206) When the resulting penalty for the accessory to the crime of theft has no medium period, the court can impose the penalty which is found favorable to the accused. (Cristobal vs. People, 84 Phil. 473). QUALIFIED THEFT THEFT IS QUALIFIED WHEN: 1. Committed by domestic servant, or 2. With grave abuse of confidence, or 3. Property stolen is: a. motor vehicle b. mail matter c. large cattle d. coconut from plantation e. fish from fishpond or fishery, or 4. On occasion of calamities and civil disturbance. Nota Bene: When the theft is committed by a domestic servant, the offended party may either be the employer where the offender is working as a household help, or a third person as a guest in the house. The roomboy is a hotel is embraced within the term domestic servant. 1. grave abuse high degree of confidence e.g. guests

In the case of abuse of confidence, the latter must be grave in order to comply with the requirement of the law because abuse of confidence is not enough. There must be an allegation in the information that there is a relation between the accused and the offended party wherein the latter confided his security as to his person, life and property to the accused with such degree of confidence and that the accused abused the same. Abuse of confidence is determined from the trust reposed by the offended party to the offender. It may also refer to the nature of the work of the offender which must necessarily involve trust and confidence. Abuse of confidence is also an element of estafa. To avoid confusion between theft with abuse of confidence (qualified theft) and estafa with abuse of confidence, where the offender misappropriates a thing after he receives it from the victim, the student must remember that in qualified theft, only the physical or material possession of the thing is transferred. If the offender acquires the juridical as well as the physical possession of the thing and he misappropriates it, the crime committed is estafa. Juridical possession of the thing is acquired when one holds the thing in trust, or on commission, or for administration or under any other obligation involving the duty to deliver or to return the thing received. If the possession of the offender is not under any of these concepts, the crime is qualified theft. 2. 3. no confidence, not qualified theft theft material possession estafa juridical possession

Where only the material possession is transferred, conversion of the property gives rise to the crime of theft. Where both the material and juridical possession is transferred, misappropriation of the property would constitute estafa. When the material and juridical possession of the thing transfers ownership of the property to the possessor, any misappropriation made by the possessor will not result in the commission of any crime, either for theft of estafa.

84

www.rkmfiles.net

4. Qualified: if done by one who has access to place where stolen property is kept e.g., guards, tellers 5. novation theory applies only if theres a relation 6. industrial partner is not liable for QT (estafa) 7. when accused considered the deed of sale as sham (modus) and he had intent to gain, his absconding is QT 8. motor vehicle in kabit system sold to another-theft. Motor vehicle not used as PU in kabit system but under K of lease-estafa On Carnapping and Theft of Motor Vehicle When the subject is motor vehicle, the Theft becomes qualified. Under R.A. 6539, Anti-Carnapping Act of 1972, the term motor vehicle includes, within its protection, any vehicle which uses the streets, with or without the required license, or any vehicle which is motorized using the streets, such as a motorized tricycle. (Izon vs. People, 107 SCRA 123) The taking with intent to gain of a motor vehicle belonging to another, without the latters consent, or by means of violence or intimidation of persons, or by using force upon things is penalized as carnapping under Republic Act No. 6539 (An Act Preventing and Penalizing Carnapping), as amended. The overt act which is being punished under this law as carnapping is also the taking of a motor vehicle under circumstances of theft or robbery. If the motor vehicle was not taken by the offender but was delivered by the owner or the possessor to the offender, who thereafter misappropriated the same, the crime is either qualified theft under Article 310 of the Revised Penal Code or estafa under Article 315 (b) of the Revised Penal Code. Qualified theft of a motor vehicle is the crime if only the material or physical possession was yielded to the offender; otherwise, if juridical possession was also yielded, the crime is estafa. 9. 10. mail matter private mail to be QT, Not postmaster Art. 226 theft of large cattle

OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY Acts punished: 1. Taking possession of any against or intimidation of 2. Usurping any real rights against or intimidation of ELEMENTS: 1. That the offender takes possession of any real property or usurps any real rights in property. 2. That the real property or real rights belong to another. 3. That violence against or intimidation of persons is used by the offender in occupying real property or usurpation real rights in property. 4. That there is intent to gain. Since this is a crime against property, there must be intent to gain. In the absence of the intent to gain, the act may constitute Coercion. Use the degree of intimidation to determine the degree of the penalty to be applied for the usurpation. Usurpation under Article 312 is committed in the same way as robbery with violence or intimidation of persons. The main difference is that in robbery, personal property is involved; while in usurpation of real rights, it is real property. (People v. Judge Alfeche, July 23, 1992) The possession of the land or real rights must be done by means of violence or intimidation. So, if the evidence of the prosecution shows that the accused entered the premises by means of strategy, stealth or methods other than the employment of real property belonging to another by means of violence persons; in property belonging to another by means of violence persons.

85

www.rkmfiles.net

violence, no crime was committed by the offender. (People vs. Alfeche, Jr., 211 SCRA 770) Usurpation of real rights and property should not be complexed using Article 48 when violence or intimidation is committed. There is only a single crime, but a two-tiered penalty is prescribed to be determined on whether the acts of violence used is akin to that in robbery in Article 294, grave threats or grave coercion and an incremental penalty of fine based on the value of the gain obtained by the offender. There is no crime of threat and usurpation of real property since threat is an indispensable element of usurpation of real rights. Hence, where threats are uttered to the owner of real property by one illegally occupying it, the crime committed is not the complex crime of usurpation of real property with grave threats because making a threat is an inherent element of usurpation of real property. (Castrodes vs. Cubelo, 83 SCRA 670) The complainant must be the person upon whom violence was employed. If a tenant was occupying the property and he was threatened by the offender, but it was the owner who was not in possession of the property who was named as the offended party, the same may be quashed as it does not charge an offense. The owner would, at most, be entitled to civil recourse only.

On Squatting According to the Urban Development and Housing Act, the following are squatters: 1. Those who have the capacity or means to pay rent or for legitimate housing but are squatting anyway; 2. Also the persons who were awarded lots but sold or lease them out; 3. Intruders of lands reserved for socialized housing, pre-empting possession by occupying the same. Note that violation of Article 312 is punishable only with fine. So, if physical injuries are inflicted on the victim due to the violence employed by the offender in the usurpation of real rights, the latter shall be punished separately for the crime of physical injuries. Violence employed results to the death of the offended party. When such eventuality does occur, then the crime may rightfully be denominated as usurpation of real rights resulting to homicide, murder, parricide, or infanticide as the case may be. ALTERING BOUNDARIES OR LANDMARKS Elements: 1. That there be boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same. 2. That the offender alters said boundary marks. FRAUDULENT INSOLVENCY (culpable insolvency) Elements: 1. That the offender is a debtor; that is, he was obligations due and payable. 2. That he absconds with his property. 3. That there be prejudice to his creditors. To be liable for fraudulent insolvency, the disposal of the merchandise must be done with malice. The mere circumstance that a person has disposed of his merchandise by removing them from the place where they were kept would necessarily imply fraud. What is required is actual prejudice to the creditor. The

86

www.rkmfiles.net

intention of the accused alone is not enough. (People vs. Guzman, C. A. 40 O. G. 2655) The law does not require the offender to be a merchant. The law says any person, and this refers to anyone who becomes a debtor and performs the acts made punishable by the law. SWINDLING AND OTHER DECEITS Estafa is embezzlement under common law. It is a well-known crime to lawyers and businessmen. It is a continuing crime unlike theft. Being a public crime, it can be prosecuted de officio. ESTAFA ELEMENTS OF ESTAFA IN GENERAL 1. That the accused defrauded another (a.) by abuse of confidence, or (b) or means of deceit and 2. That damage or prejudice capable of pecuniary estimation is caused to the offended party or third person The concept of damage under this article does not mean actual or real damage. It may consist in mere disturbance of the property rights of the offended party. However, the damage must be capable of pecuniary estimation. This requirement is important because in estafa, the penalty is dependent on the value of the property. Since estafa is a material crime, it can be divided into consummated, attempted or frustrated stages. In the latter case, the damage can be in the form of temporary prejudice or suffering, or inconvenience capable of pecuniary estimation. ELEMENTS OF ESTAFA WITH UNFAITHFULNESS 1. That the offender has an onerous obligation to deliver something of value. 2. That he alters its substance, quantity, or quality. 3. That damage or prejudice is caused to another. The accused does not receive the goods but delivers a thing under an onerous obligation which is not in accordance with the substance, quantity or quality agreed upon. It is the altering of the substance, quality or quantity of the thing delivered which makes the offender liable for the crime of estafa. The word onerous means that the offended party has fully complied with his obligations to pay. So, if the thing delivered whose substance was altered, is not yet fully or partially paid, then the crime of estafa is not committed. ELEMENTS OF ESTAFA WITH ABUSE OF CONFIDENCE UNDER SUBDIVISION NO.1 PAR. (B) 1. That money, goods, or other personal property be received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return, the same. 2. That there be misappropriation or conversion of such money or property by the offender, or dental on his part of such receipt. 3. that such misappropriation or conversion or dental is to the prejudice of another and 4. That there is a demand made by the offended party to the offender. (The fourth element is not necessary when there is evidence of misappropriation of the goods by the defendant. [Tubb v. People, et al., 101 Phil. 114] ). It is necessary in this kind of estafa, for the money, goods or personal property to have been received by the offender in trust, or on commission or for administration. He must acquire both material or physical as well as juridical possession of the thing received. In these instances, the offender, who is the

87

www.rkmfiles.net

transferee, acquires a right over a thing which he may set up even against the owner. A money market transaction however partakes of the nature of a loan, and non-payment thereof would not give rise to criminal liability for Estafa through misappropriation or conversion. In money market placements, the unpaid investor should institute against the middleman or dealer, before the ordinary courts, a simple action for recovery of the amount he had invested, and if there is allegation of fraud, the proper forum would be the Securities and Exchange Commission. (Sesbreno vs. Court of Appeals, et al., 240 SCRA 606). 2ND ELEMENT OF ESTAFA WITH ABUSE OF CONFIDENCE UNDER PARAGRAPH (B), SUBDIVISION N0.1, ART. 315 = 3 WAYS OF COMMITTING 1. By misappropriating the thing received. 2. By converting the thing received. 3. By denying that the thing was received. Nota Bene: 1. Unfaithfulness or Abuse of Confidence a. by altering the substance b. existing obligation to deliver even if it is not a subject of lawful commerce c. thing delivered has not been fully or partially paid for not estafa d. no agreement as to quality No estafa if delivery is unsatisfactory 2. By misappropriating and converting a. thing is received by offender under transactions transferring juridical possession, not ownership b. under PD 115 (Trust Receipts Law) failure to turn over to the bank the proceeds of the sale of the goods covered by TR Estafa c. same thing received must be returned otherwise estafa; sale on credit by agency when it was to be sold for cash estafa d. Estafa not affected by Novation of Contract because it is a public offense e. Novation must take place before criminal liability was incurred or perhaps prior to the filing of the criminal information in court by state prosecutors f. Misappropriating to take something for ones own benefit g. Converting act of using or disposing of anothers property as if it was ones own; thing has been devoted for a purpose or use different from that agreed upon h. There must be prejudice to another not necessary that offender should obtain gain There is no estafa through negligence. There is likewise no estafa where the accused did not personally profit or gain from the misappropriation. i. Partners No estafa of money or property received for the partnership when the business is commercial and profits accrued. BUT if property is received for specific purpose and is misappropriated estafa! j. Failure to account after the DEMAND is circumstantial evidence of misappropriation k. DEMAND is not a condition precedent to existence of estafa when misappropriation may be established by other proof l. In theft, upon delivery of the thing to the offender, the owner expects an immediate return of the thing to him otherwise, Estafa m. Servant, domestic or employee who misappropriates a thing he received from his master is NOT guilty of estafa but of qualified theft 3. When in the prosecution for malversation the public officer is acquitted, the private individual allegedly in conspiracy with him may be held liable for estafa ESTAFA WITH ABUSE OF CONFIDENCE Offenders are entrusted with funds property and are continuing offenses or MALVERSATION offenders are entrusted with funds or property and are continuing offenses

88

www.rkmfiles.net

Funds: always private Offender: private individual, or public officer not accountable Committed by misappropriating, converting, denying having received money

Funds: public funds or property Offender: public officer accountable for public funds Committed by appropriating, taking, misappropriating

ELEMENTS OF ESTAFA BY TAKING UNDUE ADVANTAGE OF THE SIGNATURE IN BLANK 1. That the paper with the signature of the offended party be in blank. 2. That the offended party should have delivered it to offender. 3. That above the signature of the offended party a document is written by the offender without authority to do so. 4. That the document so written creates a liability of, or causes damage to, the offended party or any third person. Note: If the paper with signature in blank was stolen Falsification if by making it appear that he participated in a transaction when in fact he did not so participate

ELEMENTS OF ESTAFA BY MEANS OF DECEIT 1. that there must be a false pretense, fraudulent means must be made or executed prior to or 2. That such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud. 3. That the 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. 4. That as a result thereof, the offended party suffered damage. Nota Bene: 1. False pretenses or fraudulent acts executed prior to or simultaneously with delivery of the thing by the complainant 2. There must be evidence that the pretense of the accused that he possesses power/influence is false The representation that accused possessed influence, to deceive and inveigle the complainant into parting with his money must however be false to constitute deceit under No. 2 of Article 315, RPC. (Dela Cruz vs. Court of Appeals, et al., 265 SCRA 299). ELEMENTS OF ESTAFA BY MEANS OF FALSE PRETENSES Acts punished under paragraph (a) 1. Using fictitious name; 2. Falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or 3. By means of other similar deceits. ELEMENTS OF ESTAFA BY POSTDATING A CHECK OR ISSUING A CHECK IN PAYMENT OF AN OBLIGATION 1. That the offender postdated a check, or issued a check in payment of an obligation. 2. That such postdatig or issuing a check was done when the offender had no funds in the bank or his funds deposited therein were not sufficient to cover the amount of the check. Note that this only applies if:

89

www.rkmfiles.net

(1) The obligation is not pre-existing; (2) The check is drawn to enter into an obligation; (Remember that it is the check that is supposed to be the sole consideration for the other party to have entered into the obligation. For example, Rose wants to purchase a bracelet and draws a check without insufficient funds. The jeweler sells her the bracelet solely because of the consideration in the check.) (3) It does not cover checks where the purpose of drawing the check is to guarantee a loan as this is not an obligation contemplated in this paragraph The check must be genuine. If the check is falsified and is cashed with the bank or exchanged for cash, the crime is estafa thru falsification of a commercial document. The general rule is that the accused must be able to obtain something from the offended party by means of the check he issued and delivered. Exception: when the check is issued not in payment of an obligation. If the checks were issued by the defendant and he received money for them, then stopped payment and did not return the money, and he had an intention to stop payment when he issued the check, there is estafa. Deceit is presumed if the drawer fails to deposit the amount necessary to cover the check within three days from receipt of notice of dishonor or insufficiency of funds in the bank. 1. If check was issued in payment of pre-existing debt no estafa It is therefore essential that the check be issued in payment of a simultaneous obligation. The check in question must be utilized by the offender in order to defraud the offended party. So, if the check was issued in payment of a promissory note which had matured and the check was dishonored, there is not estafa since the accused did not obtain anything by means of said check. (People vs. Canlas, O. G. 1092) If a bouncing check is issued to pay a pre-existing obligation, the drawer is liable under B. P. Blg. 22 which does not make any distinction as to whether a bad check is issued in payment of an obligation or to guarantee an obligation. (Que vs. People, 73217-18, Sept. 21, 1987) 2. Offender must be able to obtain something from the offended party by means of the check he issues and delivers The check must be issued in payment of an obligation. If the check was issued without any obligation or if there is lack of consideration and the check is subsequently dishonored, the crime of estafa is not committed. 3. If postdating a check issued as mere guarantee/promissory note no estafa ELEMENTS OF OFFENSE DEFINED IN THE FIRST PARAGRAPH OF SECTION 1: BP 22 1. That a person makes or draws and issues any check. 2. That the check is made or drawn and issued to apply on account or for value. 3. That the person who makes or draws and issues the check knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment. 4. That the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawee, without any valid reason, ordered the bank to stop payment. Note: Failure to make good within 5 banking days prima facie evidence of knowledge of lack and insufficiency ELEMENTS OF THE OFFENSE DEFINED IN THE SECOND PARAGRAPH OF SECTION 1: BP 22

90

www.rkmfiles.net

1. That a person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check. 2. That he fails to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon. 3. That the check is dishonored by the drawee bank. Nota Bene: Failure to make good within 5 banking days prima facie evididence of knowledge of lack and insufficiency Distinction between Estafa under Article 315 (2) (d) of the Revised Penal Code and violation of Batas Pambansa Blg. 22: (1) Under both Article 315 (2) (d) and Batas Pambansa Blg. 22, there is criminal liability if the check is drawn for non-pre-existing obligation. If the check is drawn for a pre-existing obligation, there is criminal liability only under Batas Pambansa Blg. 22. (2) Estafa under Article 315 (2) (d) is a crime against property while Batas Pambansa Blg. 22 is a crime against public interest. The gravamen for the former is the deceit employed, while in the latter, it is the issuance of the check. Hence, there is no double jeopardy. (3) In the estafa under Article 315 (2) (d), deceit and damage are material, while in Batas Pambansa Blg. 22, they are immaterial. (4) In estafa under Article 315 (2) (d), knowledge by the drawer of insufficient funds is not required, while in Batas Pambansa Blg. 22, knowledge by the drawer of insufficient funds is reqired. On issuance of a bouncing check The issuance of check with insufficient funds may be held liable for estafa and Batas Pambansa Blg. 22. Batas Pambansa Blg. 22 expressly provides that prosecution under said law is without prejudice to any liability for violation of any provision in the Revised Penal Code. Double Jeopardy may not be invoked because a violation of Batas Pambansa Blg. 22 is a malum prohibitum and is being punished as a crime against the public interest for undermining the banking system of the country, while under the Revised Penal Code, the crime is malum in se which requires criminal intent and damage to the payee and is a crime against property. In estafa, the check must have been issued as a reciprocal consideration for parting of goods (kaliwaan). There must be concomitance. The deceit must be prior to or simultaneous with damage done, that is, seller relied on check to part with goods. If it is issued after parting with goods as in credit accommodation only, there is no estafa. If the check is issued for a pre-existing obligation, there is no estafa as damage had already been done. The drawer is liable under Batas Pambansa Blg. 22. For criminal liability to attach under Batas Pambansa Blg. 22, it is enough that the check was issued to "apply on account or for value" and upon its presentment it was dishonored by the drawee bank for insufficiency of funds, provided that the drawer had been notified of the dishonor and inspite of such notice fails to pay the holder of the check the full amount due thereon within five days from notice. Under Batas Pambansa Blg. 22, a drawer must be given notice of dishonor and given five banking days from notice within which to deposit or pay the amount stated in the check to negate the presumtion that drawer knew of the insufficiency. After this period, it is conclusive that drawer knew of the insufficiency, thus there is no more defense to the prosecution under Batas Pambansa Blg. 22. The mere issuance of any kind of check regardless of the intent of the parties, whether the check is intended to serve merely as a guarantee or as a deposit, makes the drawer liable under Batas Pambansa Blg. 22 if the check bounces. As a matter of public policy, the issuance of a worthless check is a public nuisance and must be abated.

91

www.rkmfiles.net

ELEMENTS OF ESTAFA BY INDUCING ANOTHER TO SIGN ANY DOCUMENTS 1. 2. 3. 4. That That That That the offender induced the offended party to sign a document. deceit be employed to make him sign the document. the offended party personally signed the document. prejudice be caused.

Note: If offended party willingly signed the document and there was deceit as to the character or contents of the document falsification; but where the accused made representation to mislead the complainants as to the character of the documents estafa ELEMENTS OF DOCUMENTS ESTAFA BY REMOVING, CONCEALING OR DESTROYING

1. That there be court records, office files, documents or any other papers. 2. That the offender removed, concealed or destroyed any of them. 3. That the offender had intent to defraud another. In order to commit a crime, the offender must have the intention to defraud. In other words, the removal, concealment or destruction of the court record should be done with the intent to defraud the victim. This is distinguished from the crime of removal; concealment or destruction of documents under Article 226 wherein fraud is not an element of the crime, and which is committed only by public officers. What is punished under this Article is the damage to public interest. If the act of removing, concealing or destroying results from hatred, revenge, or other evil motive, the crime committed is malicious mischief under Article 327. Syndicated Estafa A syndicate of five or more persons formed with intent to carry out an unlawful or illegal act, transaction or scheme and defraudation which results in misappropriation of money contributed by stockholders or members of rural banks, cooperatives, samahang nayon or formers association; or funds contributed by corporations or associations for the general welfare. DAMAGE OR PREJUDICE CAPABLE OF PECUNIARY ESTIMATION: (315) (second element of any form of estafa) THE ELEMENTS OF DAMAGE OR PREJUDICE MAY CONSIST OF THE FF: 1. The offender party being deprived of his money or property, as a result of the defraudation. 2. Disturbance in property right or 3. Temporary prejudice. ELEMENTS OF SWINDLING (PAR.1) BY CONVEYING, SELLING, ENCUMBERING, OR MORTGAGING ANY REAL PROPERTY, PRETENDING TO BE THE OWNER OF THE SAME 1. That the thing be immovable, such as a parcel of land or a building. 2. That the offender who is not the owner of said property represented that he is the owner thereof. 3. That the offender should have executed an act of ownership (selling, leasing, encumbering or mortgaging the real property). 4. That the act be made to the prejudice of the owner or a third person. ESTAFA Private individual was entrusted Intent to defraud INFIDELITY IN THE CUSTODY OF DOCUMENTS Public officer entrusted No intent to defraud

ELEMENTS OF SWINDLING (PAR. 2) BY DISPOSING OF REAL PROPERTY AS FREE FROM ENCUMBRANCE, ALTHOUGH SUCH ENCUMBRANCE BE NOT RECORDED

92

www.rkmfiles.net

1. that the thing disposed of be real property. 2. That the offender knew that the real property was encumbered, whether the encumbrance is recorded or not. 3. That there must be express representation by the offender that the real property is free from encumbrance. 4. That the act of disposing of the real property be made to the damage of another. ELEMENTS OF SWINDLING (PAR.3) BY WRONGFULLY TAKING BY THE OWNER HIS PERSONAL FROM ITS LAWFUL POSSESSOR 1. 2. 3. 4. That That That That the offender is the owner of personal property. said personal property is in the lawful possession of another. the offender wrongfully takes it from its lawful possessor. prejudice is thereby caused to the possessor or third person.

ELEMENTS OF SWINDLING (PAR. 6) BY SELLING, MORTGAGING OR ENCUMBERING REAL PROPERTY OR PROPERTIES WITH WHICH THE OFFENDER GUARANTEED THE FULFILLMENT OF HIS OBLIGATION AS SURETY 1. That the offender is a surety in a bond given in a criminal or civil action. 2. That he guaranteed the fulfillment of such obligation with his real property or properties. 3. That he sells, mortgages, or, in any other manner encumbers said real property. 4. That such sale, mortage or encumbrance is (a) without express authority from the court, or (b) made before the cancellation of his bond, or (c) before being relieved from the obligation contracted by him. ELEMENTS OF SWINDLING A MINOR 1. That the offender takes advantage of the inexperience or emotions or feelings of a minor. 2. That he induces such minor (a) to assume an obligation, or (b) to give release, or (c) to execute a transfer of any property right. 3. That the consideration is (a) some loan of money (b) credit or (c) other personal property. 4. That the transaction is to the detriment of such minor. The property referred to in this article is not real property. It is limited to personal property since a minor cannot convey real property without judicial intervention. So, if what is involved is real property, the crime of swindling a minor under this article is not committed even if the offender succeeds in inducing the minor to deal with such real property since no damage or detriment is caused against the minor. ELEMENTS OF OTHER DECEITS 1. not mentioned above; 2. interpretation of dreams, forecast, future-telling for profit or gain. The meaning of other deceits under this article has reference to a situation wherein fraud or damage is done to another by any other form of deception which is not covered by the preceding articles. Another form of deceit would be in the nature of interpreting dreams, or making forecasts, telling fortunes or simply by taking advantage of the credulity of the public by any other similar manner, done for profit or gain. CHATTEL MORTGAGE A. SELLING OR PLEDGING PERSONAL PROPERTY ALREADY PLEDGED ELEMENTS: 1. That personal property is already pledged under the terms of the chattel mortgage law. 2. That the offender, who is the mortgagee of such property, sells or pledges the same or any part thereof.

93

www.rkmfiles.net

3. That there is no consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds. KNOWINGLY REMOVING MORTGAGED PERSONAL PROPERTY ELEMENTS: 1. that personal property is mortgaged under the chattel mortage law. 2. That the offender knows that such property is so mortaged. 3. That he removes such mortgaged personal to any province or city other than the one in which it was located at the time of the execution of the mortgage. 4. that the removal is permanent. 5. That there is no written consent of the mortgagee or his executors, administration or assigns to such removal. ARSON AND OTHER CRIMES INVOLVING DESTRUCTIONS Note: PD 1613 expressly repealed or amended Arts 320-326, but PD 1744 revived Art 320 A. ELEMENTS OF ARSONS OF PROPERTY OF SMALL VALUES 1. That an uninhabited hut, storehouse, barn, shed or any other property is burned 2. That the value of the property burned does not exceed 25 pesos 3. That the burning was done at a time or under circumstances which clearly exclude all danger of the fire spreading B. ELEMENTS OF CRIME INVOLVING DESTRUCTION 1. 2. a. b. c. d. e. f. g. h. That the offender causes destruction of the property That the destruction was done by means of: explosion discharge of electric current inundation sinking or stranding of a vessel damaging the engine of the vessel taking up rails from the railway track destroying telegraph wires and posts or those of any other system other similar effective means of destruction

C. ELEMENTS OF BURNING ONES PROPERTY AS A MEANS TO COMMIT ARSON 1. 2. cause 3. That the offender set fire to or destroyed his own property That the purpose of the offender in doing so was to commit arson or to a great destruction That the property belonging to another was burned or destroyed

D. ELEMENTS OF ARSON 1. That the property burned is the exclusive property of the offender 2. That (a) the purpose of the offender is burning it is to defraud or cause damage to another or (b) prejudice is actually caused, or (c) the thing burned is a building in an inhabited place Legal effect if death results from arson The crime committed is still arson. Death is absorbed in the crime of arson but the penalty to be imposed ranges from reclusion perpetua to death. (Sec. 5, P.D. No. 1613) How arson is established? Arson is established by proving the corpus delicti, usually in the form of circumstantial evidence such as the criminal agency, meaning the substance used, like gasoline, kerosene or other form of combustible materials which caused the fire. It can also be in the form of electrical wires, mechanical, chemical or electronic

94

www.rkmfiles.net

contrivance designed to start a fire; ashes or traces of such objects which are found in the ruins of the burned premises. Nota Bene: If the crime of arson was employed by the offender as a means to kill the offended party, the crime committed is murder. The burning of the property as the means to kill the victim is what is contemplated by the word fire under Article 248 which qualifies the crime to murder. (People vs. Villarosa, 54 O. G. 3482) When the burning of the property was done by the offender only to cause damage but the arson resulted to death of a person, the crime committed is still arson because the death of the victim is a mere consequence and not the intention of the offender. (People vs. Paterno, 47 O. G. 4600) There is no special complex crime of arson with homicide. What matters in resolving cases involving intentional arson is the criminal intent of the offender. There is such a crime as reckless imprudence resulting in the commission of arson. When the arson results from reckless imprudence and it leads to death, serious physical injuries and damage to the property of another, the penalty to be imposed shall not be for the crime of arson under P. D. No. 1613 but rather, the penalty shall be based on Article 365 of the Revised Penal Code as a felony committed by means of culpa. MALICIOUS MISCHIEF ELEMENTS 1. That the offender deliberately caused damage to the property of another. 2. That such act does not constitute arson or other crimes involving destruction. 3. That the act damaging anothers property be committed merely for the sake of damaging it. Nota Bene: 1. Malicious mischief willful damaging of anothers property for the sake of causing damage due to hate, revenge or other evil motive 2. No negligence 3. Example. Killing the cow as revenge 4. If no malice only civil liability Meaning of damage in malicious mischief. It means not only loss but a diminution of the value of ones property. It includes defacing, deforming or rendering it useless for the purpose for which it was made. 5. But after damaging the thing, he used it = theft

There is destruction of the property of another but there is no misappropriation. Otherwise, it would be theft if he gathers the effects of destruction. 6. Damage is not incident of a crime (breaking windows in robbery)

SPECIAL CASES OF MALICIOUS MISCHIEF 1. 2. 3. 4. Obstruct performance of public functions. Using poisonous or corrosive substances. Spreading infection or contagious among cattle. Damage to property of national museum or library, archive, registry, waterworks, road, promenade, or any other thing used in common by the public.

The cases of malicious mischief enumerated in this article are so-called qualified malicious mischief. The crime becomes qualified either because of the nature of the damage caused to obstruct a public; or because of the kind of substance used to cause the damage. The crime is still malicious mischief because the offender has no intent to gain but derives satisfaction from the act because of hate, revenge or other evil motive.

95

www.rkmfiles.net

Note: Qualified malicious mischief no uprising or sedition (#1) OTHER MISCHIEF ELEMENTS: 1. Not included in Art. 328 a. scattering human excrement b. killing of cow as an act of revenge The offender is punished according to the value of the damage caused to the offended party. If the damages cannot be estimated, the minimum penalty is arresto menor or a fine of not more than 200 pesos shall be imposed on the offender.

DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION done by damaging railways, telegraph, telephone lines, electric wires, traction cables, signal system of railways Notes: 1. removing rails from tracks is destruction (art 324) 2. not applicable when telegraph/phone lines dont pertain to railways (example: for transmission of electric power/light) 3. people killed as a result: a. murder if derailment is means of intent to kill b. none art 48 If the damage was intended to cause derailment only without any intention to kill, it will be a crime involving destruction under Article 324. If the derailment is intentionally done to cause the death of a person, the crime committed will be murder under Article 248. 4. circumstance qualifying the offense if the damage shall result in any derailment of cars, collision or other accident a higher penalty shall be imposed DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR PAINTINGS EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY Persons exempt from criminal liability 1. Spouse, ascendants and descendants or relatives by affinity in the same line 2. The widowed spouse with respect to the property w/c belonged to the deceased spouse before the same passed into the possession of another 3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together Offenses 1. 2. 3. involved in the exemption Theft ( not robbery ) Swindling Malicious mischief

Notes: 1. Exemption is based on family relations For the exemption to apply insofar as brothers and sisters, and brothers-in-law and sisters-in-law are concerned, they must be living together at the time of the commission of the crime of theft, estafa or malicious mischief. 2. Parties to the crime not related to the offended party still remains criminally liable 3. Persons exempt include: a. stepfather/mother (ascendants by affinity)

96

www.rkmfiles.net

b. adopted children (descendants) c. concubine/paramour (spouse) d. common law spouse (property is part of their earnings) Only the relatives enumerated incur no liability if the crime relates to theft (not robbery), swindling, and malicious mischief. Third parties who participate are not exempt. The relationship between the spouses is not limited to legally married couples; the provision applies to live-in partners.

ON CRIMES AGAINST CHASTITY The crimes of adultery, concubinage, seduction, abduction and acts of lasciviousness are the so-called private crimes. They cannot be prosecuted except upon the complaint initiated by the offended party. The law regards the privacy of the offended party here as more important than the disturbance to the order of society. For the law gives the offended party the preference whether to sue or not to sue. But the moment the offended party has initiated the criminal complaint, the public prosecutor will take over and continue with prosecution of the offender. That is why under Article 344, if the offended party pardons the offender, that pardon will only be valid if it comes before the prosecution starts. The moment the prosecution starts, the crime has already become public and it is beyond the offended party to pardon the offender. ADULTERY ELEMENTS 1. That the woman is married (even if marriage subsequently declared void) 2. That she has sexual intercourse with a man not her husband. 3. That as regards the man with whom she has sexual intercourses, he must know her to be married. Nota Bene: There are two reasons why adultery is made punishable by law. Primarily, it is a violation of the marital vow and secondarily, it paves the way to the introduction of a spurious child into the family. Adultery is a crime not only of the married woman but also of the man who had intercourse with a married woman knowing her to be married. Even if the man proves later on that he does not know the woman to be married, at the beginning, he must still be included in the complaint or information. This is so because whether he knows the woman to be married or not is a matter of defense and it is up to him to ventilate that in formal investigations or a formal trial. If after preliminary investigation, the public prosecutor is convinced that the man did not know that the woman is married, then he could simply file the case against the woman. The acquittal of the woman does not necessarily result in the acquittal of her co-accused. In order to constitute adultery, there must be a joint physical act. Joint criminal intent is not necessary. Although the criminal intent may exist in the mind of one of the parties to the physical act, there may be no such intent in the mind of the other party. One may be guilty of the criminal intent, the other innocent, and yet the joint physical act necessary to constitute the adultery may be complete. So, if the man had no knowledge that the woman was married, he would be innocent insofar as the crime of adultery is concerned but the woman would still be guilty; the former would have to be acquitted and the latter found guilty, although they were tried together. A husband committing concubinage may be required to support his wife committing adultery under the rule in pari delicto.

97

www.rkmfiles.net

For adultery to exist, there must be a marriage although it be subsequently annulled. There is no adultery, if the marriage is void from the beginning. Adultery is an instantaneous crime which is consummated and completed at the moment of the carnal union. Each sexual intercourse constitutes a crime of adultery. Adultery is not a continuing crime unlike concubinage. Illustration 1: Madamme X is a married woman residing in Pasay City. He met a man, Y, at Roxas Boulevard. She agreed to go with to Baguio City, supposedly to come back the next day. When they were in Bulacan, they stayed in a motel, having sexual intercourse there. After that, they proceeded again and stopped at Dagupan City, where they went to a motel and had sexual intercourse. There are two counts of adultery committed in this instance: one adultery in Bulacan, and another adultery in Dagupan City. Even if it involves the same man, each intercourse is a separate crime of adultery. 1. mitigated if wife was abandoned without justification by the offended spouse (man is entitled to this mitigating circumstance) Abandonment without justification is not exempting but only a mitigating circumstance. One who invokes abandonment in the crime of adultery hypothetically admits criminal liability for the crime charged. (U. S. vs. Serrano, et al., 28 Phil. 230) While abandonment is peculiar only to the accused who is related to the offended party and must be considered only as to her or him as provided under Article 62, paragraph 3, nonetheless, judicially speaking, in the crime of adultery, there is only one act committed and consequently both accused are entitled to this mitigating circumstance. (People vs. Avelino, 40 O.G. Supp. 11, 194) 2. attempted: caught disrobing a lover There is no frustrated adultery because of the nature of the offense. In the case of People vs. Pontio Guinucud, et al., (58 Phil. 621), a private agreement was entered into between the husband and wife for them to separate from bed and board and for each of them to go for his and her own separate way. Thereafter, the wife Rosario Tagayum lived with her co-accused Pontio Guinucud in a nearby barangay. Their love affair ultimately embroiled the spouses conservative and reputable families in a human drama exposed in legal battles and whispers of unwanted gossips. In dismissing the complaint, the Court ruled that while a private agreement between the husband and wife was null and void, the same was admissible proof of the express consent given by the condescending husband to the prodigal wife, a license for her to commit adultery. Such agreement bars the husband from instituting a criminal complaint for adultery. After filing the complaint for adultery and while the case is pending trial and resolution by the trial court, the offended spouse must not have sexual intercourse with the adulterous wife since an act of intercourse subsequent to the adulterous conduct is considered as implied pardon. (People vs. Muguerza, et al., 13 C.A. Rep. 1079) It is seldom the case that adultery is established by direct evidence. The legal tenet has been and still is circumstancial and corroborative evidence as will lead the guarded discretion of a reasonable and just man to the conclusion that the criminal act of adultery has been committed will bring about conviction for the crime. (U. S. vs. Feliciano, 36 Phil. 753) CONCUBINAGE ELEMENTS: 1. That the man must be married. 2. That he committed any of the following acts: a. Keeping a mistress in the conjugal dwelling.

98

www.rkmfiles.net

b. Having sexual intercourse under scandalous circumstances with a woman who is not his wife. c. Cohabiting with her in any other place. 3. That as regards the woman she must know him to be married. Note: Scandal consists in any reprehensible word/deed that offends public conscience, redounds to the detriment of the feelings of honest persons and gives occasions to the neighbors spiritual damage and ruin With respect to concubinage the same principle applies: only the offended spouse can bring the prosecution. This is a crime committed by the married man, the husband. Similarly, it includes the woman who had a relationship with the married man. It has been asked why the penalty for adultery is higher than concubinage when both crimes are infidelities to the marital vows. The reason given for this is that when the wife commits adultery, there is a probability that she will bring a stranger into the family. If the husband commits concubinage, this probability does not arise because the mother of the child will always carry the child with her. So even if the husband brings with him the child, it is clearly known that the child is a stranger. Not in the case of a married woman who may bring a child to the family under the guise of a legitimate child. This is the reason why in the former crime the penalty is higher than the latter. Unlike adultery, concubinage is a continuing crime. If the charges consist in keeping a mistress in the conjugal dwelling, there is no need for proof of sexual intercourse. The conjugal dwelling is the house of the spouse even if the wife happens to be temporarily absent therefrom. The woman however must be brought into the conjugal house by the accused husband as a concubine to fall under this article. Thus, if the co-accused was voluntarily taken and sheltered by the spouses in their house and treated as an adopted child being a relative of the complaining wife, her illicit relations with the accused husband does not make her a mistress. (People vs. Hilao, et al., (C.A.) 52 O.G. 904). It is only when a married man has sexual intercourse with a woman elsewhere that scandalous circumstances becomes an element of crime. For the existence of the crime of concubinage by having sexual intercourse under scandalous circumstances, the latter must be imprudent and wanton as to offend modesty and sense of morality and decency. When spies are employed to chronicle the activities of the accused and the evidence presented to prove scandalous circumstances are those taken by the detectives, it is obvious that the sexual intercourse done by the offenders was not under scandalous circumstances. (U.S. vs. Campos-Rueda, 35 Phil. 51) Causal sexual intercourse with a woman in a hotel is not concubinage. Likewise, keeping of a mistress in a townhouse procured and furnished by a married man who does not live or sleep with her in said townhouse does not constitute concubinage since there is no cohabitation. The rule is that, if a married mans conduct with a woman who is not his wife was not confined to occasional or transient interview for carnal intercourse but is carried n in the manner of husband and wife and for some period of time, then such association is sufficient to constitute cohabitation. (People vs. Zuniga, CA 57 O.G. 2497) If the evidence of the prosecution consists of a marriage contract between the offender and the offended party, and the additional fact of the birth certificate of a child showing the accused to be the father of the child with the alleged cocubine, the same will not be sufficient to convict the accused of concubinage since the law clearly states that the act must be one of those provided by law. RAPE

99

www.rkmfiles.net

This has been repealed by Republic Act No. 8353 or the Anti-Rape Law of 1997. Rape is classified as a Crime against Person. (See notes on Special Laws) ACTS OF LASCIVIOUSNESS ELEMENTS: 1. That the offender commits any act of lasciviousness or lewdness. 2. That it is done under any of the following circumstances: a. by using force or intimidation, or b. when the offended party is deprived of reason or otherwise unconscious, or c. when the offended party is under 12 years of age. 3. That the offended party is another person of either sex. Note: There are two kinds of acts of lasciviousness under the Revised Penal Code: (1) under Article 336, and (2) under Article 339. 1. Article 336. Acts of Lasciviousness Under this article, the offended party may be a man or a woman. The crime committed, when the act performed with lewd design was perpetrated under circumstances which would have brought about the crime of rape if sexual intercourse was effected, is acts of lasciviousness under this article. This means that the offended party is either (1) under 12 years of age; or (2) being over 12 years of age, the lascivious acts were committed on him or her through violence or intimidation, or while the offender party was deprived of reason, or otherwise unconscious. 2. Article 339. Acts of Lasciviousness with the Consent of the Offended Party: Under this article, the victim is limited only to a woman. The circumstances under which the lascivious acts were committed must be that of qualified seduction or simple seduction, that is, the offender took advantage of his position of ascendancy over the offender woman either because he is a person in authority, a domestic, a househelp, a priest, a teacher or a guardian, or there was a deceitful promise of marriage which never would really be fulfilled. Always remember that there can be no frustration of acts of lasciviousness, rape or adultery because no matter how far the offender may have gone towards the realization of his purpose, if his participation amounts to performing all the acts of execution, the felony is necessarily produced as a consequence thereof. Intent to rape is not a necessary element of the crime of acts of lasciviousness. Otherwise, there would be no crime of attempted rape. In the crime of acts of lasciviousness, the intention of the wrongdoer is not very material. The motive that impelled the accused to commit the offense is of no importance because the essence of lewdness is in the act itself. What constitutes lewd or lascivious conduct must be determined from the circumstances of each case. The demarcation line is not always easy to determine but in order to sustain a conviction for acts of lasciviousness, it is essential that the acts complained of be prompted by lust or lewd designs and the victim did not consent to nor encouraged the act. To be guilty of this crime however, the acts of lasciviousness must be committed under any of the circumstances that had there been sexual intercourse, the crime would have been Rape. Where circumstances however are such, indicating a clear intention to lie with the offended party, the crime committed as Attempted Rape. This crime (Art. 336) can be committed by either sex unlike in Acts of Lasciviousness with Consent under Article 339. Thus, a lesbian who toyed with the private part of an eleven-year-old girl who enjoyed it since she was given $50 dollars before the act, is guilty of Act of Lasciviousness under this Article as the victim is

100

www.rkmfiles.net

below twelve year old; and had sexual intercourse been possible and done, the act would have been Rape. SEDUCTION QUALIFIED SEDUCTION OF A VIRGIN Two classes of qualified seduction: 1. Seduction of a virgin over 12 and under 18 years of age by certain persons, such as a person in authority, priest, teachers etc and 2. Seduction of a sister by her brother or descendant by her ascendant, regardless of her age or reputation (incestuous seduction) Elements: 1. That the offended party is a virgin, (presumed if she unmarried and of good reputation.) 2. That she must be over 12 and under 18 years of age. 3. That the offender has sexual intercourse with her. 4. That there is abuse of authority, confidence or relationship on the part of the offender ( person entrusted with education or custody of victim; person in public authority, priest; servant) Persons liable: 1. Those who abuse their authority: a. persons in public authority b. guardian c. teacher d. person who, in any capacity, is entrusted with the education or custody of the woman seduced 2. Those who abused the confidence reposed in them: a. priest b. house servant c. domestic Those who abused their relationship: a. brother who seduced his sister b. ascendant who seduced his descendant The offended woman must be

3.

This crime also involves sexual intercourse. over 12 but below 18 years.

The distinction between qualified seduction and simple seduction lies in the fact, among others, that the woman is a virgin in qualified seduction, while in simple seduction, it is not necessary that the woman be a virgin. It is enough that she is of good repute. For purposes of qualified seduction, virginity does not mean physical virginity. It means that the offended party has not had any experience before. The virginity referred to here, is not to be understood in so material a sense as to exclude the idea of abduction of a virtuous woman of a good reputation. Thus, when the accused claims he had prior intercourse with the complainant, the latter is still to be considered a virgin (U.S. vs. Casten, 34 Phil. 808). But if it was established that the girl had a carnal relations with other men, there can be no crime of Seduction as she is not a virgin. Although in qualified seduction, the age of the offended woman is considered, if the offended party is a descendant or a sister of the offender no matter how old she is or whether she is a prostitute the crime of qualified seduction is committed. Illustration If a person goes to a sauna parlor and finds there a descendant and despite that, had sexual intercourse with her, regardless of her reputation or age, the crime of qualified seduction is committed.

101

www.rkmfiles.net

In the case of a teacher, it is not necessary that the offended woman be his student. It is enough that she is enrolled in the same school. Deceit is not necessary in qualified seduction. Qualified seduction is committed even though no deceit intervened or even when such carnal knowledge was voluntary on the part of the virgin. This is because in such a case, the law takes for granted the existence of the deceit as an integral element of the crime and punishes it with greater severity than it does the simple seduction, taking into account the abuse of confidence on the part of the agent. Abuse of confidence here implies fraud. The fact that the offended party gave her consent to the sexual intercourse is not a defense. Lack of consent on the part of the complainant is not an element of the crime. The term domestic refers to a person usually living under the same roof with the offended party. It includes all those persons residing with the family and who are members of the same household, regardless of the fact that their residence may only be temporary or that they may be paying for their board and lodging. A domestic should not be confused with a house servant. A domestic is not necessarily a house servant. Where the offended party is below 12 years of age, regardless of whether the victim is a sister or a descendant of the offender, the crime committed is rape. If the offended party is married and over 12 years of age, the crime committed will be adultery. An essential element of a qualified seduction is virginity (doncella). It is a condition existing in a woman who has had no sexual intercourse with any man. It does not refer to the condition of the hymen as being intact. One who is charged with qualified seduction can be convicted of rape. But one who is charged with rape cannot be convicted of qualified seduction under the same information. (People vs. Ramirez, 69 SCRA 144) Even if the woman has already lost her virginity because of rape, in the eyes of the law, she remains a virtuous woman even if physically she is no longer a virgin. SIMPLE SEDUCTION ELEMENTS 1. 2. 3. 4. That That That That the offended party is over 12 and under 18 years of age. she must be of good reputation, single or widow. the offender has sexual intercourse with her. it is committed by means of deceit.

Deceit generally takes the form of unfulfilled promise to marry. The promise of marriage must serve as the inducement. The woman must yield on account of the promise of marriage or other forms of inducement. (People vs. Hernandez, 29 Phil. 109) Where the accused failed to have sex with this sweetheart over twelve (12) but below eighteen (18) years old because the latter refused as they were not yet married, and the accused procured the performance of a fictitious marriage ceremony because of which the girlfriend yielded, he is guilty of Simple Seduction. (U.S. vs. Hernandez, 29 Phil. 109). Here, there was deceit employed. This act may now be considered Rape under R.A. 8353, Sec. 2 par. 6. A promise of material things in exchange for the womans surrender of her virtue does not constitute deceit. If a woman under 18 years of age but over 12 agrees to a sexual intercourse with a man who promised her precious jewelries but the man reneges on his promise, there is no seduction that the woman is of loose morals. (Luis B. Reyes)

102

www.rkmfiles.net

Promise of marriage must precede sexual intercourse. A promise of marriage made by the accused after sexual intercourse had taken place, or after the woman had yielded her body to the man by mutual consent will not render the man liable for simple seduction. The offended woman must be under 18 but not less than 12 years old; otherwise, the crime is statutory rape. Unlike in qualified seduction, virginity is not essential in this crime. What is required is that the woman be unmarried and of good reputation. Simple seduction is not synonymous with loss of virginity. If the woman is married, the crime will be adultery.

ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE OFFENDED PARTY ELEMENTS: 1. that the offender commits acts of lasciviousness or lewdness. 2. That the acts are committed upon a woman who is virgin or single or widow of good reputation, under 18 years of age but over 12 years, or a sister or descendant regardless of her reputation or age. 3. that the offender accomplishes the acts by abuse of authority, confidence, relationship, or deceit. When the acts of lasciviousness is committed with the use of force or intimidation or when the offended party is under 12 years of age, the object of the crime can either be a woman or a man. Where the acts of the offender were limited to acts of lewdness or lasciviousness, and no carnal knowledge was had; but had there been sexual intercourse, the offense would have been Seduction, he is guilty of Acts of Lasciviousness under this article. The crime of acts of lasciviousness under Article 339 is one that is done with the consent of the offended party who is always a woman. The lewd acts committed against her is with her consent only because the offender took advantage of his authority, or there was abuse of confidence, or the employment of deceit, or the offender is related to the victim. In the commission of the acts of lasciviousness either by force or intimidation, or with the consent of the offended party, there must be no sexual intercourse, or the acts performed are short of sexual intercourse. In the first situation, the crime would either be qualified seduction or simple seduction if the offender succeeds in having sexual intercourse with the victim. In these two cases, there is consent but the same is procured by the offender through the employment of deceit, abuse of confidence, abuse of authority or because of the existence of blood relationship. CORRUPTION OF MINORS Act punishable: by promoting or facilitating the prostitution or corruption of persons underage to satisfy the lust of another. It is not required that the offender be the guardian or custodian of the minor. It is not necessary that the minor be prostituted or corrupted as the law merely punishes the act of promoting or facilitating the prostitution or corruption of said minor and that he acted in order to satisfy the lust of another. A single act of promoting or facilitating the corruption or prostitution of a minor is sufficient to constitute violation of this article. What the law punishes is the act of pimp (bugaw) who facilitates the corruption of a minor. It is not the unchaste act of the minor which is being punished. So, a mere proposal to promote or facilitate the prostitution or corruption of a minor is sufficient to consummate the crime.

103

www.rkmfiles.net

Young minor should enjoy a good reputation. Apparently, a prostitute above 12 and under 18 years of age cannot be the victim in the crime of corruption of minors. WHITE SLAVE TRADE Acts penalized: 1. Engaging in the business of prostitution 2. Profiting by prostitution 3. Enlisting the service of women for the purpose of prostitution The person liable under Article 341 is the one who maintains or engages in the trade of prostitution. A white slave is a woman held unwillingly for purposes of commercial prostitution. A white slaver on the other hand is one engaged in white slave traffic, procurer of white slaves or prostitutes. The most common way of committing this crime would be through the maintenance of a bar or saloon where women engage in prostitution. For each intercourse, the women pay the maintainer or owner of a certain amount in this case, the maintainer of owner of the bar or saloon is liable for white slave trade. (People vs. Go Lo, 56 O.G. 4056) ABDUCTION FORCIBLE ABDUCTION ELEMENTS: 1. That the person abducted is any woman, regardless of her age, civil status, or reputation. 2. That the abduction is against her will. 3. That the abduction is with lewd designs. Note: Sexual intercourse is NOT necessary Crimes against chastity where age and reputation of victim are immaterial: rape, acts of lasciviousness, qualified seduction of sister/descendant, forcible abduction Forcible abduction defined It is the taking away of any woman against her will, from her house or the place where she may be, for the purpose of carrying her to another place with intent to marry or corrupt her. A woman is carried against her will or brought from one place to another against her will with lewd design. Unlike in Rape and Seduction, in the crime of Abduction, whether Forcible or Consented, there is no sexual intercourse. The acts are limited to taking away from a place the victim, but the same must be with lewd designs, that is, with unchaste design manifested by kissing and touching the victims private parts. If the element of lewd design is present, the carrying of the woman would qualify as abduction; otherwise, it would amount to kidnapping. If the woman was only brought to a certain place in order to break her will and make her agree to marry the offender, the crime is only grave coercion because the criminal intent of the offender is to force his will upon the woman and not really to restrain the woman of her liberty. Where lewd design was not proved or shown, and the victim was deprived of her liberty, the crime is kidnapping with Serious Illegal Detention under this Article 267, RPC. The element of lewd designs, which is essential to the crime of abduction through violence, refers to the intention to abuse the abducted woman. If such intention is lacking or does not exist, the crime may be illegal detention. It is necessary to establish the unchaste design or purpose of the offender. But it is

104

www.rkmfiles.net

sufficient that the intent to seduce the girl is present. The evil purpose of the offender may be established or inferred from the overt acts of the accused. If the offended woman is under 12 years old, even if she consented to the abduction, the crime is forcible abduction and not consented abduction. Where the offended woman is below the age of consent, even though she had gone with the offender through some deceitful promises revealed upon her to go with him and they live together as husband and wife without the benefit of marriage, the ruling is that forcible abduction is committed by the mere carrying of the woman as long as that intent is already shown. In other words, where the man cannot possibly give the woman the benefit of an honorable life, all that man promised are just machinations of a lewd design and, therefore, the carrying of the woman is characterized with lewd design and would bring about the crime of abduction and not kidnapping. This is also true if the woman is deprived of reason and if the woman is mentally retarded. Forcible abduction is committed and not consented abduction. Lewd designs may be demonstrated by the lascivious acts performed by the offender on her. Since this crime does not involve sexual intercourse, if the victim is subjected to this, then a crime of rape is further committed and a complex crime of forcible abduction with rape is committed. Lewd design does not include sexual intercourse. So, if sexual intercourse is committed against the offended party after her forcible abduction, the offender commits another crime separate and distinct from forcible abduction. In this case, the accused should be charged with forcible abduction with rape. (People vs. Jose, et al., 37 SCRA 450) If the accused carried or took away the victim by means of force and with lewd design and thereafter raped her, the crime is Forcible Abduction with Rape, the former being a necessary means to commit the latter. The subsequent two (2) other sexual intercourse committed against the will of the complainant would be treated as independent separate crimes of Rape. (People vs. Bacalso, 210 SCRA 206). If the main object of the offender is to rape the victim, and the forcible abduction was resorted to by the accused in order to facilitate the commission of the rape, then the crime committed is only rape. (People vs. Toledo, 83 Phil. 777) Where the victim was taken from one place to another, solely for the purpose of killing him and not detaining him for any legal length of time, the crime committed is murder. (People vs. Ong, 62 SCRA 174) True intention of the offender should be ascertained. If the detention is only incidental, the same should be considered as absorbed. Otherwise, it should be treated as a separate offense. When such a situation arises, we should consider the application of Article 48 on complex crimes. The taking away of the woman may be accomplished by means of deceit at the beginning and then by means of violence and intimidation later. The virginity of the complaining witness is not a determining factor in forcible abduction. In order to demonstrate the presence of the lewd design, illicit criminal relations with the person abducted need not be shown. The intent to seduce a girl is sufficient. If there is a separation in fact, the taking by the husband of his wife against her will constitutes grave coercion. Distinction between Forcible Abduction and Illegal Detention When a woman is kidnapped with lewd or unchaste designs, the crime committed is forcible abduction. When the kidnapping is without lewd designs, the crime committed is illegal detention.

105

www.rkmfiles.net

But where the offended party was forcibly taken to the house of the defendant to coerce her to marry him, it was held that only grave coercion was committed and not illegal detention. Forcible abduction must be distinguished from the crime of kidnapping. When the violent taking of a woman is motivated by lewd design, the crime committed is forcible abduction. But if the motive of the offender is to deprive the woman of her liberty, the crime committed is kidnapping. Abduction is a crime against chastity while kidnapping is a crime against personal liberty. CONSENTED ABDUCTION ELEMENTS: 1. That the offended party must be a virgin. 2. That she must be over 12 and under 18 years of age. 3. That the taking away of the offended party must be with her consent, after solicitation or cajolery from the offender. 4. That the taking away of the offended party must be with lewd designs. Virginity may be presumed from the fact that the offended party is unmarried and has been leading moral life. Virginity or maidenhood should not be understood in such a matter of fact as to completely exclude a woman who has had previous sexual intercourse. If the previous sexual intercourse was the result of the crime of rape, the intercourse committed with her against he will and over her violent objection should not render her unchaste and a woman of bad reputation. If the virgin is under 12 years old, the crime committed is forcible abduction because of the theory that a child below 12 years of age has no will of her own. The purpose of the law on consented abduction is to punish the offender for causing disgrace and scandal to the family of the offended party. The law does not punish the offender for the wrong done to the woman since in the eyes of the law, she consented to her seduction. The deceit which is termed by the law as solicitation or cajolery maybe in the form of honeyed promises of marriage. In consented Abduction, it is not necessary that the young victim, (a virgin over twelve and under eighteen) be personally taken from her parents home by the accused; it is sufficient that he was instrumental in her leaving the house. He must however use solicitation, cajolery or deceit, or honeyed promises of marriage to induce the girl to escape from her home. In consented abduction, the taking away of the virgin must be with lewd design. Actual sexual intercourse with the woman is not necessary. However, if the same is established, then it will be considered as strong evidence to prove lewd design. PROSECUTION OF ADULTERY, CONCUBINAGE, SEDUCTION, ABDUCTION RAPE AND ACTS OF LASCIVIOUSNESS 1. Adultery and concubinage must be prosecuted upon complaint signed by the offended spouse 2. Seduction, abduction, rape or acts of lasciviousness must be prosecuted upon complaint signed by: a. offended party b. by her parents c. grandparents d. guardians in the order in which they are named above The crimes of adultery and concubinage must be prosecuted upon a complaint signed by the offended spouse. In the complaint, the offended party must include both guilty parties if they are both alive. The word guardian as mentioned in the law refers to the guardian appointed by the court. (People vs. Formento, et al., 60 Phil. 434)

106

www.rkmfiles.net

What is the meaning of shall have consented which bars the institution of criminal action for adultery or concubinage? The term consent has reference to the tie prior to the commission of the crime. In other words, the offended party gives his or her consent to the future infidelity of the offending spouse. And so, while consent refers to the offense prior to its commission, pardon refers to the offense after its commission. (People vs. Schnekenburger, et al., 73 Phil. 413) Nota Bene: Marriage of the offender with the offended party extinguishes the criminal action or remit the penalty already imposed upon him. This applies as well to the accomplices, accessories-after-the-fact. But marriages must be in good faith. This rule does not apply in case of multiple rape In the crimes involving rape, abduction, seduction, and acts of lasciviousness, the marriage by the offender with the offended woman generally extinguishes criminal liability, not only of the principal but also of the accomplice and accessory. However, the mere fact of marriage is not enough because it is already decided that if the offender marries the offended woman without any intention to perform the duties of a husband as shown by the fact that after the marriage, he already left her, the marriage would appear as having been contracted only to avoid the punishment. Even with that marriage, the offended woman could still prosecute the offender and that marriage will not have the effect of extinguishing the criminal liability. Pardon by the offended woman of the offender is not a manner of extinguishing criminal liability but only a bar to the prosecution of the offender. Therefore, that pardon must come before the prosecution is commenced. When the prosecution is already commenced or initiated, pardon by the offended woman will no longer be effective because pardon may preclude prosecution but not prevent the same. Pardon in crimes against chastity, is a bar to prosecution. But it must come before the institution of the criminal action. (See the cases of People vs. Villorente, 210 SCRA 647; People vs. Avila, 192 SCRA 635) To be effective, it must include both accused. How about pardon declared by the offended party during the trial of the case? Such a declaration is not a ground for the dismissal of the case. Pardon is a matter of defense which the accused must plead and prove during the trial. (People vs. Riotes, C.A., 49 O.G.3403). CIVIL LIABILITY OF PERSONS GUILTY OF RAPE, SEDUCTION OR ABDUCTION 1. To idemnify the offended women 2. To acknowledge the offspring, unless the law should prevent him from doing so 3. In every case to support the offspring The civil liability of the adulterer and the concubine is limited to indemnity for damages caused to the offended spouse. The law does not mention the adulteress in the crime of adultery such that only the adulterer shall be held civilly liable. There is likewise no mention of the offender in the crime of acts of lasciviousness, as being held liable for civil damages under Article 345, the law only mentioned the crimes of rape, seduction and abduction. Under Article 2219 of the Civil Code, moral damages may be recovered in seduction, abduction, rape or other lascivious acts. The crimes of adultery and concubinage are also included. In the crimes of rape, abduction and seduction, if the offended woman had given birth to the child, among the liabilities of the offender is to support the child. This obligation to support the child may be true even if there are several offenders. As to whether all of them will acknowledge the child that is a different question because the obligation to support here is not founded on civil law but is the result of a criminal act or a form of punishment.

107

www.rkmfiles.net

It has been held that where the woman was the victim of the said crime could not possibly conceive anymore; the trial court should not provide in its sentence that the accused, in case a child is born, should support the child. This should only be proper when there is a probability that the offended woman could give birth to an offspring. ON CRIMES AGAINST CIVIL STATUS OF PERSON SIMULATION OF BIRTHS, SUBSTITUTION OF ONE CHILD FOR ANOTHER, AND CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD Acts Punished: 1. Simulation of births 2. Substitution of one child for another 3. Concealing or abandoning any legitimate child with the intent to cause such child to lose its civil status Requisites: 1. 2. 3. The child must be legitimate The offender conceals or abandons such child The offender has the intent to cause the child to lose its civil status

Elements of Simulation of Birth 1. Child is baptized or registered in the Registry of birth as hers 2. Child loses its real status and acquiires a new one 3. Actors purpose was to cause the loss of any trace as to the childs true filiation Simulation of birth takes place when a woman pretends to be pregnant when in fact she is not and on the day of the supposed delivery, she takes the child of another and declares the child to be her own. This is done by entering in the birth certificate of the child that the offender is the alleged mother of the child when in fact the child belongs to another. USURPATION OF CIVIL STATUS Committed by a person who represents himself as another and assumes the filiation or rights pertaining to such person 1. Notes: There must be criminal intent to enjoy the civil rights of another by the offender knowing he is not entitled thereto The term "civil status" includes one's public station, or the rights, duties, capacities and incapacities which determine a person to a given class. It seems that the term "civil status" includes one's profession. 2. Committed by asuming the filiation, or the parental or conjugal rights of another Usurpation is committed by assuming the filiation or parental (when maternal, paternal or conjugal) claim of another. To be liable for usurpation of civil status, the offender must have the intent to enjoy the rights arising from the civil status of another. 3. Circumstances qualifying the offense: penalty is heavier when the purpose of the impersonation is to defraud the offended party or his heirs BIGAMY ELEMENTS: 1. That the offender has been legally married. 2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the civil code. 3. That he contracts a second or subsequent marriage. 4. That the second or subsequent marriage has all the essential requisites for validity.

108

www.rkmfiles.net

Nota Bene: 1. The crime does not fall within the category of private crimes that can be prosecuted only at the instance of the offended party PUBLIC CRIME For the crime of bigamy to prosper the first marriage must be valid. If the first marriage is void from the beginning, such nullity of the marriage is not a defense in a charge of bigamy. Consequently, when raised as a defense, the accused should be convicted since until and unless annulled, the bond of matrimony remains or is maintained. Need for judicial declaration of nullity The second marriage must have all the essential requisites for validity were it not for the existence of the first marriage. 2. A simulated marriage is not marriage at all and can be used as a defense for bigamy Good faith is a defense in bigamy. One who, although not yet married before, knowingly consents to be married to one who is already married is guilty of bigamy knowing that the latters marriage is still valid and subsisting. 3. There must be a summary proceeding to declare the absent spouse presumptively dead for purposes of remarriage 4. Failure to exercise due diligence to ascertain the whereabouts of the 1st wife is bigamy through reckless imprudence 5. A judicial declaration of the nullity of a marriage void ab initio is now required 6. One convicted for bigamy may be prosecuted for concubinage as both are distinct offenses 7. One who vouches that there is no legal impediment knowing that one of the parties is already married is an accomplice Distinction between bigamy and illegal marriage Bigamy is a form of illegal marriage. The offender must have a valid and subsisting marriage. Despite the fact that the marriage is still subsisting, he contracts a subsequent marriage. Illegal marriage includes also such other marriages which are performed without complying with the requirements of law, or such premature marriages, or such marriage which was solemnized by one who is not authorized to solemnize the same. MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAWS ELEMENTS: 1. That the offender contracted marriage. 2. That he knew at the time that a. the requirement of the law were not complied with, or b. The marriage was in disregard of a legal impediment. Note: Circumstance qualifying the offense: if either of the contracting parties obtains the consent of the other by means of violence, intimidation or fraud The requirements of the law for a valid marriage are: 1. 2. 3. 4. The legal capacity of the contracting parties; Their consent freely given; Authority of the person performing the marriage; and Marriage license, except in marriage under exceptional circumstances.

The law further provides that for accused to be liable under this article, he should not be guilty of bigamy because otherwise, the crime punished under Article 350 is deemed absorbed in the bigamy.

109

www.rkmfiles.net

Marriages contracted against the provisions of laws 1. The marriage does not constitute bigamy. 2. The marriage is contracted knowing that the requirements of the law have not been complied with or in disregard of legal impediments. 3. One where the consent of the other was obtained by means of violence, intimidation or fraud. 4. If the second marriage is void because the accused knowingly contracted it without complying with legal requirements as the marriage license, although he was previously married. 5. Marriage solemnized by a minister or priest who does not have the required authority to solemnize marriages. PREMATURE MARRIAGE Acts punished: 1. A widow who within 301 days from death of husband, got married or before her delivery, if she was pregnant at the time of his death 2. A woman whose marriage having been dissolved or annulled, married before her delivery or within 301 days after the legal separation PERFORMANCE OF ILLEGAL MARRIAGE CEREMONY Act punished: Performance of any illegal marriage ceremony by a priest or minister of any religious denomination or sect or by civil authorities ON CRIMES AGAINST HONOR LIBEL ELEMENTS: 1. That there must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstances. 2. That the imputation must be made publicly. 3. That it must be malicious. 4. That the imputation must be directed at a natural or juridical person, or one who is dead. 5. That the imputation must tend to cause the dishonor, discredit or contempt of the person defamed. Libel is a public and malicious imputation of a crime, or a vice or defect, real or imaginary or any act, commission, condition, status or circumstances tending to cause the dishonor, discredit or contempt of a natural or juridical person, or to blacken the memory of one who is dead Character of the words used to make it defamatory Words calculated to induce suspicion are more effective in destroying reputation than false charges directly made. Ironical and metaphorical language is a favored vehicle for slander. A charge is sufficient if the words are calculated to induce the hearer to suppose and understand that the person against whom they are uttered is guilty of certain offenses, or are sufficient to impeach his honesty, virtue or reputation, or to hold him up to public ridicule. (U.S. vs. OConnell, 37 Phil. 767) Malice has been defined as a term used to indicate the fact that the defamer is prompted by personal ill or spite and speaks not in response to duty but merely to injure the reputation of the person defamed. Kinds of Malice Malice in law This is assumed and is inferred from the defamatory character of an imputation. The presumption of malice attaches to the defamatory statement especially if it appears to be insulting per se. The law presumes that the defamer made the imputation without good intention or justifiable motive.

110

www.rkmfiles.net

Malice in fact This refers to malice as a fact. The presence and existence of personal ill-will or spite may still appear even if the statement is not defamatory. So, where the defamatory acts may be presumed from the publication of the defamatory acts imputed refer to the private life of the individual, malice may be presumed from the publication of the defamatory statement because no one has a right to invade anothers privacy.

Distinction Malice in fact is the malice which the law presumes from every statement whose tenor is defamatory. It does not need proof. The mere fact that the utterance or statement is defamatory negates a legal presumption of malice. In the crime of libel, which includes oral defamation, there is no need for the prosecution to present evidence of malice. It is enough that the alleged defamatory or libelous statement be presented to the court verbatim. It is the court which will prove whether it is defamatory or not. If the tenor of the utterance or statement is defamatory, the legal presumption of malice arises even without proof. Malice in fact becomes necessary only if the malice in law has been rebutted. Otherwise, there is no need to adduce evidence of malice in fact. So, while malice in law does not require evidence, malice in fact requires evidence. Malice in law can be negated by evidence that, in fact, the alleged libelous or defamatory utterance was made with good motives and justifiable ends or by the fact that the utterance was privileged in character. In law, however, the privileged character of a defamatory statement may be absolute or qualified. When the privileged character is said to be absolute, the statement will not be actionable whether criminal or civil because that means the law does not allow prosecution on an action based thereon. In libel cases, the question is not what the offender means but what the words used by him mean. ( Sazon vs. CA, 255 SCRA 692) Praises undeserved are slander in disguise Where the comments are worded in praise of the plaintiff, like describing him with qualities which plaintiff does not deserve because of his social, political and economic status in the community which is too well known to all concerned, are which intended are intended to ridicule rather than praise him, the publication is deemed libelous (Jimenez vs. Reyes, 27 SCRA 52) Even if what was imputed is true, the crime of libel is committed unless one acted with good motives or justifiable end. Poof of truth of a defamatory imputation is not even admissible in evidence, unless what was imputed pertains to an act which constitutes a crime and when the person to whom the imputation was made is a public officer and the imputation pertains to the performance of official duty. Other than these, the imputation is not admissible. When proof of truth is admissible 1. When the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer; 2. When the offended party is a government employee, even if the act or omission imputed does not constitute a crime, provided if its related to the discharged of his official duties. Requisites of defense in defamation 1. If it appears that the matter charged as libelous is true; 2. It was published with good motives; 3. It was for justifiable ends.

111

www.rkmfiles.net

If a crime is a private crime, it cannot be prosecuted de officio. A complaint from the offended party is necessary. Libel -false accusation need not be made under oath Perjury -false accusation is under oath made

LIBEL BY MEANS OF WRITING OR SIMILAR MEANS A libel may be committed by means of Writing; Printing; Lithography; Engraving; Radio; Photograph; Painting; Theatrical exhibition; Cinematographic exhibition; or Any similar means. THREATENING TO PUBLISH LIBEL PUBLICATION FOR A COMPENSATION AND OFFER TO PREVENT SUCH

Acts punished 1. Threatening another to publish a libel concerning him, or his parents, spouse, child, or other members of his family; 2. Offering to prevent the publication of such libel for compensation or money consideration. It involves the unlawful extortion of money by appealing to the fear of the victim, through threats of accusation or exposure. It contemplates of two offenses: a threat to establish a libel and an offer to prevent such publication. The gravamen of the crime is the intent to extort money or other things of value. Blackmail In its metaphorical sense, blackmail may be defined as any unlawful extortion of money by threats of accusation or exposure. Two words are expressive of the crime hush money. (US v. Eguia, et al., 38 Phil. 857) Blackmail is possible in (1) light threats under Article 283; and (2) threatening to publish, or offering to prevent the publication of, a libel for compensation, under Article 356. PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS ELEMENTS: 1. That the offender is a reporter, editor or manager of a newspaper, daily or magazine. 2. That he publishes facts connected with the private life of another. 3. Those facts are offensive to the honor, virtue and reputation of said person. Note: Even though made in connection with or under the pretext that it is necessary in the narration of any judicial or administrative proceedings wherein such facts have been mentioned. With its provisions, Article 357 has come to be known as the Gag Law. It prohibits reporters, editors or managers of newspapers from publishing articles containing facts connected with the private life of an individual; facts which are offensive to the honor, virtue and reputation of persons. But these must refer to facts which are intimately related to the offended partys family and home. Occasionally, it involves conjugal troubles and quarrels because of infidelity, adultery or crimes involving chastity. ORAL DEFAMATION / SLANDER Two Kinds of Oral Defamation: 1. action of a serious and insulting nature (Grave slander) 2. light insult or defamation not serious in nature (simple slander) Factors that determine gravity of the offense:

112

www.rkmfiles.net

a) expressions used b) personal relations of the accused and the offended party c) circumstances surrounding the case Notes: The gravity of oral defamation depends not only on the expressions but also on the personal relation of the accused with the offended party. Other circumstances like the presence of important people when the crime was committed, the social standing and position of the offended party are factors which may influence the gravity and defamatory imputation (Victorio vs. Court of Appeals, 173 SCRA 645). Note that slander can be committed even if the defamatory remark was done in the absence of the offended party. (People vs. Clarin, C.A., 37 O.G. 1106) If the utterances were made publicly and were heard by many people and the accused at the same time levelled his finger at the complainant, oral defamation is committed (P v Salleque) The word puta does not impute that the complainant is prostitute. (People vs. Atienza, G.R. No. L-19857, Oct. 26, 1968 ) It is a common expression of anger or displeasure. It is seldom taken in its literal sense by the hearer. It is viewed more as a threat on the part of the accused to manifest and emphasize a point. (Reyes vs. People, 27 SCRA 686) SLANDER BY DEED ELEMENTS: 1. That the offender performs any act not included in any other crime against honor. 2. That such act is performed in the presence of other person or persons. 3. That such act casts dishonor, discredit or contempt upon the offended party. Notes: Slander by deed is a defamation committed by the offender against the complainant through the performance of any act which casts dishonor, discredit or contempt upon another person. Slander by deed refers to performance of an act, not use of words. Two kinds of slander by deed 1. Simple slander by deed; and 2. Grave slander by deed, that is, which is of a serious nature. Whether a certain slanderous act constitutes slander by deed of a serious nature or not, depends on the social standing of the offended party, the circumstances under which the act was committed, the occasion, etc. The acts of slapping and boxing the woman, a teacher, in the presence of many people has put her to dishonor, contempt and ridicule. (P v Costa). If the acts committed against the offended party caused her physical injury which did not require medical attendance, then the crime would be maltreatment which is classified as slight physical injuries. Distinctions a. Unjust Vexation-irritation or annoyance/anything that annoys or irritates without justification. b. Slander by Deed-irritation or annoyance + attendant publicity and dishonor or contempt. c. Acts of lasciviousness-irritation or annoyance + any of 3 circumstance provided in Art335 of RPC on rape - use of force or intimidation - deprivation of reason or rendering the offended unconscious - offended party under 12 yrs of age plus lewd designs PERSONS RESPONSIBLE FOR LIBEL Who are liable? a. person who publishes, exhibits or causes the publication or exhibition of any defamation in writing or similar means(par.1) b. author or editor of a book or pamphlet

113

www.rkmfiles.net

c. editor or business manager of a daily newspaper magazine or serial publication(par.2) d. owner of the printing plant which publishes a libelous article with his consent and all other persons who in any way participate in or have connection with its publication (US v Ortiz)

LIBELOUS REMARKS Libelous remarks or comments on privileged matters (under Art. 354) if made with malice in fact will not exempt the author and editor. (This article is a limitation to the defense of privileged communication) INCRIMINATORY MACHINATIONS INCRIMINATING INNOCENT PERSON ELEMENTS: 1. That the offender performs an act. 2. That by such act he directly incriminates or imputes to an innocent person the commission of a crime. 3. That such act does not constitute perjury. Two Kinds a. making a statement which is defamatory or perjurious (if made under oath and is false) b. planting evidence Note: article is limited to planting evidence and the like This crime cannot be committed through verbal incriminatory statements. It is defined as an act and, therefore, to commit this crime, more than a mere utterance is required. If the incriminating machination is made orally, the crime may be slander or oral defamation. If the incriminatory machination was made in writing and under oath, the crime may be perjury if there is a willful falsity of the statements made. If the statement in writing is not under oath, the crime may be falsification if the crime is a material matter made in a written statement which is required by law to have been rendered. As far as this crime is concerned, this has been interpreted to be possible only in the so-called planting of evidence. There is such a crime as incriminating an innocent person through unlawful arrest. (People vs. Alagao, et al., G.R. No. L-20721, April 30, 1966) INTRIGUING AGAINST HONOR How committed? By any person who shall make any intrigue which has for its principal purpose to blemish the honor or reputation of another person Notes: The crime is committed by resorting to any form of scheme or plot designed to blemish the reputation of a person. The offender does not employ written or spoken words, pictures or caricatures to ridicule the victim. Rather, he uses some ingenious, crafty and secret ploy which produces the same effect. Intriguing against honor is referred to as gossiping. The offender, without ascertaining the truth of a defamatory utterance, repeats the same and passes it on to another, to the damage of the offended party. Who started the defamatory news is unknown.

114

www.rkmfiles.net

Where the source of polluted information can be traced and pinpointed, and the accused adopted as his own the information he obtained, and passed it to another in order to cause dishonor to the complainants reputation, the act is Slander and not intriguing against Honor. But where the source or the author of the derogatory information can not be determined and the accused borrows the same, and without subscribing to the truth thereof, passes it to others, the act is one of Intriguing against Honor. Distinction between Intriguing Against Honor and Slander When the source of the defamatory utterance is unknown and the offender simply repeats or passes the same, the crime is intriguing against honor. If the offender made the utterance, where the source of the defamatory nature of the utterance is known, and offender makes a republication thereof, even though he repeats the libelous statement as coming from another, as long as the source is identified, the crime committed by that offender is slander. Distinction between Intriguing Against Honor and Incriminating an Innocent Person In intriguing against honor, the offender resorts to an intrigue for the purpose of blemishing the honor or reputation of another person. In incriminating an innocent person, the offender performs an act by which he directly incriminates or imputes to an innocent person the commission of a crime. R.A. 4200 The Anti - Wire Tapping Act Acts punished: 1) any person, not authorized by all the parties to any private communication or spoken word a) taps any wire of cable OR b) uses any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or walkie talkie or tape recorder 2) any person, whether or not a participant in the above-mentioned acts: a) knowingly possesses any tape record, wire record, disc record, or any other such record or copies thereof of any communication or spoken word b) replays the same for any other person c) communicates the contents thereof, whether complete or partial, to any other person Notes: Peace officer is exempt if acts done under lawful order of the court. You can only use the recording for the case for which it was validly requested. Information obtained in violation of the Act is inadmissible in evidence in any hearing or investigation. CRIMINAL NEGLIGENCE ELEMENTS OF RECKLESS IMPRUDENCE: 1. 2. 3. 4. 5. That the offender does or fails to do an act. That the doing of or the failure to do that act is voluntary. That it be without malice. That material damage results. That there is inexcusable lack of precaution on the part of the offender, taking into consideration a. his employment or occupation b. degree of intelligence, physical condition, and c. other circumstances regarding persons, time and place.

ELEMENTS OF SIMPLE IMPRUDENCE: 1. That there is lack of precaution on the part of the offender. 2. That the damage impending to be caused in not immediate or the danger is not clearly manifest.

115

www.rkmfiles.net

Quasi-offenses punished 1. Committing through reckless imprudence any act which, had it been intentional, would constitute a grave or less grave felony or light felony; 2. Committing through simple imprudence or negligence an act which would otherwise constitute a grave or a less serious felony; 3. Causing damage to the property of another through reckless imprudence or simple imprudence or negligence; 4. Causing through simple imprudence or negligence some wrong which, if done maliciously, would have constituted a light felony. Distinction between Reckless Imprudence and Negligence The two are distinguished only as to whether the danger that would be impending is easily perceivable or not. If the danger that may result from the criminal negligence is clearly perceivable, the imprudence is reckless. If it could hardly be perceived, the criminal negligence would only be simple. There is no more issue on whether culpa is a crime in itself or only a mode of incurring criminal liability. It is practically settled that criminal negligence is only a modality in incurring criminal liability. This is so because under Article 3, a felony may result from dolo or culpa. Nota Bene: Test for determining whether or not a person is negligent of doing of an act which results in injury or damages to another person or his property. Would a prudent man in the position of the person, to whom negligence is attributed, foresee harm to the person injured? If so, the law imposes on the doer, the duty to refrain from the course of action, or to take precaution against such result. Failure to do so constitutes negligence. Reasonable foresight of harm, followed by ignoring the admonition borne of this provision, is the constitutive fact of negligence. (Picart vs. Smith, 37 Phil. 809, 813) Test of Negligence Did the defendant, in doing the alleged negligent act, use the reasonable care and caution which an ordinary prudent person would have used in the same situation? If not, then he is guilty of negligence. The penalties under Article 365 has no application in the following cases: 6. When the penalty provided for the offense ifs equal or lower than that provided in pars.1 and 2 of Article 365. In this case, the penalty shall be that which is next lower in degree than that which should be imposed, in the period which the court may deem proper to apply. When by imprudence or negligence and with violation of the Automobile Law, the death of a person is caused, the penalty is prision correccional in its medium and maximum periods. a. Art.64 on mitigating and aggravating circumstances not applicable. b. Failure to lend on the spot assistance to victim of his negligence: penalty next higher in degree. c. Abandoning usually punishable under Art 275, if charged under Art 365 is only qualifying and if not alleged cannot even be an aggravating circumstance. d. Contributory negligencenot a defense, only mitigating The defense of contributory negligence does not apply in criminal cases committed through reckless imprudence. It is against public policy to invoke the negligence of another to escape criminal liability. (People vs. Quiones, C.A., 44 O.G. 1520) The above-mentioned doctrine should be reconciled with the doctrine of concurrent proximate cause of two negligent drivers.

7.

116

www.rkmfiles.net

In the case of People vs. Desalis, et al., C.A., 57 O.G. 8689, the two accused were drivers of two speeding vehicles which overtook vehicles ahead of them and even encroached on the others lane without taking due precaution as required by the circumstances. The court found the concurrent or successive negligent act or omission of the two drivers as the direct and proximate cause of the injury caused to the offended party. The court could not determine in what proportion each driver contributed to the injury. Both were declared guilty for the injury suffered by the third person. When negligence does not result in any injury to persons or damage to property, then no crime is committed. Negligence becomes punishable when it results in the commission of a crime. (Lantok, Jr. vs. Hon. Gorgonio, L-37396, April 30, 1979, 75 O.G. 7763) Last clear chance doctrine The contributory negligence of the injured party will not defeat the action if it be shown that the accused might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party Emergency rule An automobile driver, who, by the negligence of another, is suddenly placed in an emergency and compelled to act instantly to avoid a collision or injury is not guilty of negligence if he makes a choice which a person of ordinary prudence placed in such a position might make even though he did not make the wisest choice. Doctrine of Pre-emption It is a rule in collision cases which the driver of a motor vehicle to make a full stop when crossing a thru-street. Any accident therefore which takes place in said corner gives to rise to the presumption of negligence on the part driver of the motor vehicle running thru-street has already reached the middle part of the intersection. In such a case, the other driver who has the right of way has the duty to stop his motor vehicle in order to avoid a collision. (People vs. Taradji, 3 C.A. Rep. [25] 460) If the criminal negligence resulted, for example, in homicide, serious physical injuries and slight physical injuries do not join only the homicide and serious physical injuries in one information for the slight physical injuries. You are not complexing slight when you join it in the same information. It is just that you are not splitting the criminal negligence because the real basis of the criminal liability is the negligence. If you split the criminal negligence, that is where double jeopardy would arise. Accused is not criminally liable for the death or injuries caused by his negligence to trespassers whose presence in the premises he was not aware of. In the case of People vs. Cuadra, C.A., 53 O.G. 7265, accused was a truck driver. Unknown to him, several persons boarded his truck and while driving along a slippery road which has a declinations of 25 degrees, the left front wheel of the truck fell into a ditch. In his effort to return the truck to the center of the road, the truck turned turtle, throwing off two of the passengers who boarded the truck without his knowledge. As a consequence, one of them died. Cuadra was acquitted of the crime of reckless imprudence resulting in homicide and physical injuries. Overtaking of another vehicle is a normal occurrence in driving. But when the overtaking is done from right, it shows recklessness and disregard of traffic laws and regulations. It is likewise so when the overtaking is done while another vehicle is approaching from the opposite direction. This is a violation of Section 59(b) of the Motor Vehicle Law (People vs. Songalla, C.A., 67 O.G. 8330) Driving within the speed limit is not a guaranty of due care. Speed limits impose the maximum speed which should not be exceeded. The degree of care required of a motorist is not governed by speed limits but by the circumstances and conditions obtaining in the place at the particular time. So, if the maximum speed limit is 80 kilometers per hour and the vehicle driven at 30 kilometers per hour, but because of the very slow pace of the vehicle, an accident occurs, the observation of

117

www.rkmfiles.net

the speed limit will not be acceptable evidence of due care. (people vs. Caluza, C.A., 58 O.G. 8060) oo CRIMINAL PROCEDURE RULE 110 - PROSECUTION OF OFFENSES Institution of Criminal actions- Criminal actions shall be instituted as follows: (a) For offenses where a preliminary investigation is required pursuant to section I of Rule 112, by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation. (b) For all other offenses, by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters. The institution of the criminal action shall interrupt the running of the period of prescription of the offense charged unless otherwise provided in special laws. Complaint or Information The complaint or information shall be in writing, in the name of the People of the Philippines and against all persons who appear to be responsible for the offense involved. Complaint defined A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charge with the enforcement of the law violated. Information defined Information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court. Who must prosecute Criminal Actions? All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. However, in Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged with the enforcement of the law violated may prosecute the case. This authority shall cease upon actual intervention of the prosecutor or upon elevation of the case to the Regional Trial Court. The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders. The offenses of seduction, abduction and acts of lasciviousness shall not prosecuted except upon a complaint filed by the offended party or her parents, grandparents or guardian, nor, in any case, if the offender has been expressly pardoned by any of them. If the offended party dies or becomes incapacitated before she can file the complaint, and she has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf. The offended party, even if a minor, has the right to initiate the prosecution of the offense of seduction, abduction and acts of lasciviousness independently of her parents, grandparents, or guardian, unless she is incompetent or incapable of doing so. Where the offended party, who is a minor, fails to file the complaint, her parents, grandparents, or guardian may file the same. The right to file the action granted to parents, grandparents or guardian shall be exclusive of all other persons and shall be exercised successively in the order herein provided, except as stated in the preceding paragraph. No criminal action for defamation which consists in the imputation of any of the offenses mentioned above shall be brought except at the instance of and upon complaint filed by the offended party.

118

www.rkmfiles.net

The prosecution for violation of special laws shall be governed by the provisions thereof.

Sufficiency of complaint or information A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the stature; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When an offense is committed by more than one person, all of them shall be included in the complaint or information. Name of the accused The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. If his name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown. If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court, such true name shall be inserted in the complaint or information and record. 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 aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. 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 statue but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgement. Place of the commission of the offense The complaint or information is sufficient if it can be understood from its allegations that the offense was committed or some of its essential ingredients occurred at some place within the jurisdiction of the court, unless the particular place where it was committed constitutes an essential element of the offense charged or is necessary for its identification. Date of commission of the offense It is not necessary to state in the complaint or information the precise date the offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have been committed on a date as near as possible to the actual date of its commission. Name of the offended party The complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is known. If there is no better way of identifying him, he must be described under a fictitious name.

119

www.rkmfiles.net

(a) In offenses against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged. (b) If the name of the person against whom or against whose property the offense was committed is thereafter disclosed or ascertained, the court must cause such true name to be inserted in the complaint or information and the record. (c) If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is known or by which it may be identified, without need or averring that it is a juridical person or that it is organized in accordance with law. Duplicity of the offense A compliant or information must charge only one offense, except when the law prescribes a single punishment for various offenses. Amendment or substitution A complaint or information may be amended, in form or in substance, without leave or court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may be made with leave of court and when it can be done without causing prejudice to the rights or the accused. However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court, the court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19 Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial. Place where action is to be instituted (a) Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred. (b) Where an offense is committed in a train, aircraft, or other public or private vehicle in the course of its trip, the criminal action shall be instituted and ___ in the court of any municipality or territory where such train, aircraft, or other vehicle passed during its trip, including the place of its departure and arrival. (c) Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried in the court of the first port of entry or of any municipality or territory where the vessel passed during such voyage, subject to the generally accepted principles of international law. (d) Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal Code shall be cognizable by the court where the criminal action is first filed. Intervention of the offended party in criminal action Where the civil action for recovery of civil liability is instituted in the criminal action pursuant the Rule 111, the offended party may intervene by counsel in the prosecution of the offense. RULE 111 - PROSECUTION OF CIVIL ACTION Institution of criminal and civil actions

120

www.rkmfiles.net

(a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees therefor shall constitute a first lien on the judgment awarding such damages. Where the amount of damage, other than actual, is specified in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court. Except as otherwise provided in these Rules, no filing fees shall be required for actual damages. 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. (b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed. Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment. Where the civil action has been separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions. When separate civil is suspended After the criminal action has been commenced, the separate action arising therefrom cannot be instituted until final judgment has been entered in the criminal action. If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action without prejudice tot he right of the prosecution to cross-examine the witnesses presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided jointly. During the pendency of the criminal action, the running of the period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled. The extinction of the penal action does not carry with it extinction of the civil action. However, the civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist.

121

www.rkmfiles.net

When civil may proceed independently In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action. Effect of death on civil actions The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the independent civil action instituted under section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case maybe. The heirs of the accused may be substituted for the deceased without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of the deceased. If the accused dies before arraignment, the case shall be dismissed without deceased. Judgment in civil action not a bar A final judgment rendered in a civil action absolving the defendant from civil liability is not a bar to a criminal action against the defendant for the same act or omission subject of the civil action. Suspension by reason of prejudicial question A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conduction the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests. Elements of prejudicial question The elements of a prejudicial question are: (1) The previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed. RULE 112 - PRELIMINARY INVESTIGATION Preliminary investigation defined; when required. Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. Except as provided in section 7 of this Rule, a preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine. Officers authorized to conduct preliminary investigation. The following may conduct preliminary investigations: 1. Provincial or City Prosecutors and their assistants; 2. Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

122

www.rkmfiles.net

3. National and Regional State Prosecutors; and 4. Other officers as may be authorized by law. Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper court in their respective territorial jurisdictions. Procedure The preliminary investigation shall be conducted in the following manner: (a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents. The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense. Objects as evidence need not be furnished a partly but shall be made available for examination, copying, or photographing at the expense of the requesting party. (c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counteraffidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant. (e) The investigation officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned. The hearing shall be held within ten (10) days from submission of the counteraffidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days. (f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. Resolution of investigating prosecutor and its review If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.

123

www.rkmfiles.net

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandigangbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action. No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy. Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation. If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverse or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. Resolution of investigating judge and its review Within ten (10) days after the preliminary investigation, the investigating judge shall transmitted the resolution of the case to the provincial or city prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction, for appropriate action. The resolution shall state the findings of facts and the law supporting his action, together with the record of the case ;which shall include: (a) the warrant, if the arrest is by virtue of a warrant; (b) the affidavits, counter-affidavits and other supporting evidence of the parties; (c) the undertaking or bail of the accused and the order for his release; (d) the transcripts of the proceedings during the preliminary investigation; and (e) the order of cancellation of his bail bond, if the resolution is for the dismissal of the complaint. Within thirty (30) days from receipt of the records, the provincial or city prosecutor, or the Ombudsman or his deputy, as the case may be, shall review the resolution of the investigating judge on the existence of probable cause. Their ruling shall expressly and clearly state the facts and the law on which it is based and the parties shall be furnished with copies thereof. They shall order the release of an accused who is detained if no probable cause is found against him. When warrant of arrest may issue? (a) By the Regional Trial Court.- Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case of the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. (b) By the Municipal Trial Court. When required pursuant to the second paragraph of section 1 of this Rule, the preliminary investigation of cased falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by either the judge or the prosecutor. When conducted by the prosecutor, the procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section. When the investigation is conducted by the judge himself, he shall

124

www.rkmfiles.net

follow the procedure provided in section 3 of this Rule. If his findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds after an examination in writing under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice. (c) When warrant of arrest not necessary. A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 7 of this Rule or is for an offense penalized by fine only. The court shall then proceed in the exercise of its original jurisdiction. When accused lawfully arrested without warrant When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception. After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule. (7a; sec. 2 R.A. No. 7438) Records (a) Records supporting the information or complaint. An information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case. (b) Record of preliminary investigation. The record of the preliminary investigation, whether conducted by a judge or a prosecutor, shall not from part of the record of the case. However, the, court, on its own initiative or on motion of any party, may order the production of the record or any of its part when necessary in the resolution of the case or any incident therein, or when it is to be introduced as an evidence in the case by the requesting party. (8a) Cases not requiring a Preliminary Investigation nor covered by the Rule on Summary Procedure (a) If filed with the prosecutor. If the complaint is filed directly with the prosecutor involving an offense punishable by imprisonment of less than four (4) years. two (2) months and one (1) day, the procedure outlined in section 3 (a) of this Rule shall be observed. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing. (b) If filed with the Municipal Trial Court. If the complaint or information is filed with the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure in section 3 (a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same. He may, however,

125

www.rkmfiles.net

require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. if the judge still finds no probable cause despite the additional evidence, within ten (10) days from its submission or expiration of said period, dismiss the case. When he finds probable case, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest.

RULE 113 - ARREST Arrest defined Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. Arrest; how made An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest. No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention Duty of arresting officer It shall be the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay. Executive of warrant The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the reasons therefor. Arrest without warrant; when lawful A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to belief based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. (5a) Time of making arrest - An arrest may be made on any day and at any time of the day or night. Method of arrest by officer by virtue of warrant

126

www.rkmfiles.net

When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable. Method of arrest by officer without warrant When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees, or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. Method of arrest by private person When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him, or when the giving of such information will imperil the arrest. Officer may summon assistance An officer making a lawful arrest may orally summon as many persons as he deems necessary to assist him in effecting the arrest. Every person so summoned by an officer shall assist him in effecting the arrest when he can render such assistance without detriment to himself. Right of officer to break into building or enclosure An officer, in order to make an arrest either by virtue of a warrant, or without a warrant as provided in section 5, may break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he is refused admittance thereto, after announcing his authority and purpose. Right to break out from building or enclosure Whenever an officer has entered the building or enclosure in accordance with the preceding section, he may break out therefrom when necessary to liberate himself. Arrest after escape or rescue If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines. Right of attorney or relative to visit person arrested Any member of the Philippine Bar shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person in the jail or any other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise the same right. (14a) RULE 114 - BAIL Bail defined Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance. Conditions of the bail; requirements

127

www.rkmfiles.net

All kinds of the bail are subject to the following conditions: (a) The undertaking shall be effective upon approval, and unless cancelled, shall remain in force at all stage of case until promulgation of the judgement of the Regional Trail Court, irrespective of whether the case was originally filled in or appealed to it; (b) The accused shall appear before proper court whenever required by the court or these Rules; (c) The failure of the accused to appear at the trial without justification and despite due notice shall be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; and (d) The bondsman shall surrender the accused to the court for execution of the final judgment. The original papers shall state the full name address of the address of the accused, the amount of the undertaking and the conditions required by this section. Photographs (passport size) taken within the last six (6) months showing the face, left and right profiles of the accused must be attached to the bail. No release or transfer except on court or bail No person under detention by legal process shall be released or transferred except upon of the other court or when he is admitted to bail. Bail, a matter of right; exception All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trail Court, Municipal Trial Court in Cities, or Municipal Circuit Trail Court, and (b) before conviction by the Regional Trail Court of an offense not punishable by death, reclusion perpetua, or life imprisonment. Bail, when discretionary Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua , or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non bailable to bailable, the application for bail cab only be filed with and resolved by the appellate court. Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual deliquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal. The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case

128

www.rkmfiles.net

Capital offense defined A capital offense is an offense which, under the law existing at the time of its commission and of the application for admission to bail, may be punished with death. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable No person charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution. Burden of proof in bail application At the hearing of an application of bail filed by a person who is custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the persecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify. Amount of bail; guidelines The judge who is issued the warrant or granted the application shall fixed a reasonable amount of bail considering primarily, but not limited to the following factors: (a) Financial ability of the accused to give bail; (b) Nature and circumstances of the offense; (c) Penalty for the offense charged; (d) Character and reputation of the accused; (e) Probability of the accused appearing at the trial; (f) Weight of the evidence against the accused; (g) Age and health of the accused; (h) Forfeiture of the accused appearing at the trial; (i) Pendency of other cases where the accused is on bail. (j) The fact that the accused was a fugitive from justice when arrested; and Excessive bail shall not be required. Corporate surety Any domestic or foreign corporation, licensed as a surety in accordance with law and currently authorized to act as such, may provide bail by a bond subscribed jointly by the accused and an officer of the corporation duly authorized by its board of directors. Property bond how posted A property bond is an undertaking constituted as lien on the real property given as security for the amount of the bail. Within ten (10) days after the approval of the bond, the accused shall cause the annotation of the lien on the certificate of title on file with the Registry of Deeds if the land is registered, or if unregistered, in the Registration Book on the space provided therefor in the Registry of Deeds for the province or city where the land lies, and on the corresponding tax declaration in the office of the provincial, city and municipal assessor concerned. Within the same period; the accused shall submit to the court his compliance and his failure to do so shall be sufficient cause for the cancellation of the property bond his re-arrest and detention. Qualifications of sureties in property bond The qualifications of sureties in a property bond shall be as follows: (a) Each must be a resident owner of real estate within the Philippines; (b) Where there is only one surely, his real estate must be worth at least the amount of the undertaking;

129

www.rkmfiles.net

(c) If there are two or more sureties, each may justify in an amount less than that expressed in the undertaking but the aggregate of the justified sums must be equivalent to the whole amount of the bail demanded. In all cases, every surety must be worth the amount specified in his own undertaking over and above all just debts, obligations and properties exempt from execution: Justification of sureties Every surety justify by affidavit taken before the judge that he possesses the qualifications prescribed in the preceding section. He shall describe the property given as security, starting the nature of his title, its encumbrances, the number and amount of other bails entered into by him and still undischarged, and his other liabilities. The court may examine the sureties upon oath concerning their sufficiency in such manners as it may deem proper. No bail shall be approved unless the surety is qualified.

Deposit of cash as bail The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial city, or municipal treasure the amount of bail fixed by the court, or recommended by the prosecutor who investigated or filed the case. Upon submission of a proper certificate of deposit and a written undertaking showing compliance with the requirements of section 2 of this Rule, the accused shall be discharged from custody. The money deposited shall be considered as bail and applied to the payment of fine and costs while the excess, if any, shall be returned to the accused or to whoever made the deposit. Recognizance Whoever allowed by law or these Rules, the court may release a person in custody on his own recognizance or that of a responsible person. Bail, when not required; reduced bail or recognizance No bail shall be required when the law or these Rules so provide. When a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused may be sentences is destierro, he shall be released after thirty (30) days of preventive imprisonment. A person is custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court. Bail, where filed (a) Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city, or municipality. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any regional trial court of said place, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein. (b) Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, whether on preliminary investigation, trial, or appeal.

130

www.rkmfiles.net

(c)

Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held.

Notice of application to prosecutor In the application for bail under section 8 of this Rule, the court must give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation. Release on bail The accused must be discharged upon approval of the bail by the judge with whom it was filed in accordance with section 17 of this Rule. When bail is filed with a court other than where the case is pending, the judge who accepted the bail shall forward it, together with the order of release and other supporting papers, to the court where the case is pending, which ma, for good reason, require a different one to be filed. Increase or reduction of bail After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period. an accused held to answer a criminal charge, who is released without bail upon filing of the complaint or information, may, at any subsequent stage of the proceedings and whenever a strong showing of guilt appears to the court, the required to give bail in the amount fixed, or in lieu thereof, committed to custody. Forfeiture of bail When the presence of the accused is required by the court or these Rules, his bondsmen shall notified to produce him before the court on a given date and time. If the accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen given thirty (30) days within which to produce their principal and to show cause why no judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen must: (a) produce the body of their principal or give the reason for his nonproduction; and (b) explain why the accused did not appear before the court when first required to do so. Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted. Cancellation of bail Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death. The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of conviction. In all instances, the cancellation shall be without prejudice to any liability on the bail. Arrest of accused out on bail For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion. An accused released on bail may be re- arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending.

131

www.rkmfiles.net

No bail final judgment; exception No bail shall be allowed after a judgment of conviction has become final. If before such finality, the accused applies for probation, he may be allowed temporary liberty under his bail. When no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence. Court supervision of detainees The court shall exercise supervision over all persons in custody for the purpose of eliminating unnecessary detention. The executive judges of the Regional Trial Courts shall conduct monthly personal inspections of provincial, city, and municipal jails and the prisoners within their respective jurisdictions. They shall ascertain the number of detainees, inquire on their proper accommodation and health and examine the condition of the jail facilities. They shall order the segregation of sexes and of minors from adults, ensure the observance of the right of detainees to confer privately with counsel, and strive to eliminate conditions inimical to the detainees. In cities and municipalities to be specified by the Supreme Court, the municipal trial judges or municipal circuit trial judges shall conduct monthly personal inspections of the municipal jails in their respective municipalities and submit a report to the executive judge of the Regional Trial Court having jurisdiction therein. A monthly report of such visitation shall be submitted by the executive judges to the Court Administrator which shall state the total number of detainees, the names of those held for more than thirty (30) days, the duration of detention, the crime charged, the status of the case, the cause for detention, and other pertinent information. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable, but not later than the start of the trial of the case. RULE 115 - RIGHTS OF ACCUSED Rights of accused at the trial In all criminal prosecutions, the accused shall be entitled to the following rights: doubt. (a) To be presumed innocent until the contrary is proved beyond reasonable

(b) To be informed of the nature and cause of the accusation against him. (c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel. (d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him. (e) To be exempt from being compelled to be a witness against himself. (f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased,

132

www.rkmfiles.net

out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him. (g) To have compulsory, process issued to secure the attendance of witnesses and production of other evidence in his behalf. (h) To have speedy, impartial and public trial. (i) To appeal in all cases allowed and in the manner prescribed by law. RULE 116 - ARRAIGNMENT AND PLEA Arraignment and plea; how made (a) The accused must be arraigned before the court where the complaint or information was filed or assigned for trial. The arraignment shall be made in open court by the judge or clerk by furnishing the accused with a copy of the complaint or information, reading the same in the language or dialect known to him, and asking him whether he pleads guilty or not guilty. The prosecution may call at the trial witnesses other than those named in the complaint or information. (b) The accused must be present at the arraignment and must personally enter his plea. both arraignment and plea shall be made of record, but failure to do so shall not affect the validity of the proceedings. (c) When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for him. (1a) (d) When the accused pleads guilty but present exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him. (e) When the accused is under preventive detention, his case shall be raffled and its records transmitted to the judge to whom the case was raffled within three (30 days from the filing of the information r complaint. The pre-trial conference of his case shall be held within ten (10) days after arraignment. (f) The private offended party shall be required to appear at the arraignment for purposes of plea bargaining determination of civil liability, and other matters requiring his presence. In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone. (cir. 1-89) (g) Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period. (sec. 2, cir.38-98) Plea of guilty to a lesser offense At arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charge. After arraignment but before trial, the accused by still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. (sec. 4, circ. 38-98) Plea of guilty to capital offense; reception of evidence When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and shall require the prosecution to prove his guilt and the precise degree of culpability. The accused may present evidence in his behalf. Plea of guilty to non-capital offense; reception of evidence, discretionary When the accused pleads guilty to a non-capital offense, the court may receive evidence from the parties to determine the penalty to be imposed. Withdrawal of improvident plea of guilty

133

www.rkmfiles.net

At any time before the judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty. Duty of court to inform accused of his right to counsel Before arraignment, the court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court must assign a counsel de oficto to defend him. Appointment of counsel de oficio The court, considering the gravity of the offense and the difficulty of the questions that may arise, shall appoint as counsel de oficio such members of the bar in good standing who, by reason of their experience and ability, can competently defend the accused. But in localities where such members of the bar are not available, the court may appoint any person resident of the province and good repute for probity and ability, to defend the accused. Time for counsel de oficio to prepare for arraignment Whenever counsel de oficio is appointed by the court to defend the accused at the arraignment, he shall be given a reasonable time to consult with the accused as to his plea before proceeding with the arraignment.

Bill of particulars The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired. Production or inspection of material evidence in possession of prosecution\ Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing of any written statement given by the complainant and other witness in any investigation of the offense conducted by the prosecution or other investigating photographs, objects, or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in the possession or under the control of the prosecution, police, or other law investigating agencies. Suspension of arraignment Upon motion by the proper party, the arraignment shall be suspended in the following cases: (a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose; (b) There exists a prejudicial question; and (c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; provided that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office. RULE 117 - MOTION TO QUASH Time to move to quash At any time before entering his plea, the accused may moved to quash the complaint or information.

134

www.rkmfiles.net

Form and contents The motion to quash shall be in writing, signed by the accused or his counsel and shall distinctly specify its factual and legal grounds. The court shall consider no ground other than those stated in the motion, except lack of jurisdiction over the offense charged. Grounds The accused may move to quash the complaint or information on any of the following grounds: (a) That the facts charged do not constitute an offense; (b) That the court trying the case has no jurisdiction over the offense charged; (c) That the court trying the case has no jurisdiction over the person of the accused; (d) That the officer who filed the information had no authority to do so; (e) That it does not conform substantially to the prescribed form; (f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law; (g) That the criminal action or liability has been extinguished; (h) That it contains averments which, if true, would constitute a legal excuse of justification; and (i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.

Amendment of complaint or information If the motion to quash is based on an alleged defect of the complaint or information which can be cured by amendment, the court shall order that an amendment be made. If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment. Effect of sustaining the motion to quash If the motion to quash is sustained, the court may order that another complaint or information be filed except as provided in section 6 of this rule. If the order is made, the accused, if in custody, shall not be discharged unless admitted to bail. If no order is made or if having been made, no new information is filed within the time specified in the order or within such further time as the court may allow for good cause, the accused, if in custody, shall be discharged unless he is also in custody for another charge. Order sustaining the motion to quash not a bar to another prosecution; exception An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in section 3 (g) and (i) of this Rule. Former conviction or acquittal; double jeopardy When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any

135

www.rkmfiles.net

attempt to commit the or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information under any of the following instances: (a) the graver offense developed due to supervening facts arising from the act or omission constituting the former charge; (b) the facts constituting the graver charge became known or were discovered by after a plea was entered in the former complaint information; or (c) the plea of guilty to the lesser offense was made without the consent of the executor and of the offended party except as provided in section 1(f) of Rule 116. In any of the foregoing cases, where the accused satisfies or serves in whole or part of judgment, be shall be credited with the same in the event of conviction of the graver offense. Provisional Dismissal A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. The provisional dismissal of offenses punishable by imprisonment not proceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without case having been revived. Failure to move to quash or to allege any ground therefore The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same motion, shall be deemed a waiver of any objections used on the grounds provided for in paragraphs (a), (b), (g), and (i) of this Rule. RULE 118 - PRE-TRIAL Pre-trail; mandatory in criminal cases In all criminal cases recognizable by the Sandiganbayan, Regional Court, Metropolitan Trail Court, Municipal Trail Court in Cities, Municipal Trail Court and Municipal Circuit Trail Court, the court shall, after arraignment and within thirty (30) days from the date be court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court, order a pre-trail conference to consider the following: (a) plea bargaining; (b) stipulation of facts; (c) marking for identification of evidence of the parties; (d) waiver of objections to admissibility of evidence; (e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and (f) such matter as well as promote a fair and expeditious trial of the criminal and civil aspects of case. (Sec. 2 and 3, cir. 38-98) Pre-trial agreement All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court. (sec. 4, cir. 38-98) Non-appearance at pre-trial conference If the counsel for the accused or the prosecutor does not appear at the pretrial conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose proper sanction of penalties. (sec.5, cir, 38-98)

136

www.rkmfiles.net

Pre-trial order After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order-shall bind the parties, limit the trial to matters not disposed of, and control the course of the action during the trial to matters not disposed of, and control the course of the action during the trail, unless modified by the court to prevent manifest injustice. RULE 119 - TRIAL Time to prepare for trial After a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. The trial shall commence within thirty (30) days from receipt of the pre-trial order. (sec. 6, cir. 38-98) Continuous trial until terminated; postponements Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause. The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trial on a weekly or other shot-item trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the fi4rst day of trial, except as otherwise authorized by the Supreme Court. (sec. 8, cir.38-98). The time limitations provided under this section and the preceding section shall not apply where special laws of the Supreme Court provide for a shorter period of trial.

Exclusions The following periods of delay shall be exclude in computing the time within which trial must commence: (a) Any period of delay resulting from other proceedings concerning the accused, including but not limited to the following: Delay resulting from an examination of the physical and mental condition of the accused; Delay resulting from proceedings with respect to other criminal charges against the accused; Delay resulting from extraordinary remedies against interlocutory orders; Delay resulting from pre-trial proceedings; provided, that the delay does not exceed thirty (30) days; Delay resulting from orders of inhibition, or proceedings relating to change of venue of cases or transfer from other courts; Delay resulting from a finding of the existence of a prejudicial question; and Delay reasonably attributable to any period, not to exceed thirty (30) days, during which any proceeding concerning the accused is actually under advisement.

(b) Any period of delay resulting from the absence or unavailability of an essential witness. For purposes of this subparagraph, an essential witness shall be considered absent when his whereabouts are unknown or his whereabouts cannot be determined by due diligence. He shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence. (c) Any period delay resulting from the mental incompetence or physical inability of the accused to stand trial. (d) If the information is dismissed upon motion of the prosecution and thereafter to charge is filed against the accused for the same offense, any period of

137

www.rkmfiles.net

delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge. (e) A reasonable period of delay when the accused is joined for trial with a coaccused over whom the court has not acquired jurisdiction, or, as to whom the time for trial ha not run and no motion for separate trial has been granted. (f) Any period of delay resulting from a continuance granted by any court motu proprio, or on motion of either the accused or his counsel, or the prosecution, if the court granted the continuance on the basis of its findings set forth in the order that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial. (sec. 9, cir. 38-98) Factors for granting continuance The following factors, among others, shall be considered by a court in determining whether to grant a continuance under section 3 (f) of this Rule. (a) Whether or not the failure to grant a continuance in the proceeding would likely make a continuation of such proceeding impossible or result in a miscarriage of justice; and (b) Whether or not the case taken as a whole is so novel, unusual and complex, due to the number of accused or the nature of the prosecution, or that it is unreasonable to expect adequate preparation within the periods of time establish therein. In addition, no continuance under section 3 (f) of this Rule shall be granted because of congestion of the courts calendar or lack of diligent preparation or failure to obtain available witnesses on the part of the prosecutor. (sec. 10, cir. 38-98) Time limit following an order for new trial If the accused is to be tried again pursuant to an order for a new trial, the trial shall commence within thirty (30) days from notice of the order, provided that if the period becomes impractical due to unavailability of witnesses and other factors, the court may extend it but not to exceed one hundred eighty (180) days from notice of said order of a new trial. (sec. 1, cir. 38-98) Extended time limit Notwithstanding the provisions of section 1 (g) Rule 116 and the preceding section 1, for the first twelve-calendar-month period following its effectivity on September 15, 1998, the time limit with respect to the period from arraignment to trial imposed by said provision shall be one hundred eighty (180) days. for the second twelve-month period, the time limit shall be one hundred twenty (120) days, and for the third twelve-month period, the time limit shall be eighty (80) days. (sec. 7, cir. 38-98) Public attorneys duties where accused is imprisoned If the public attorney assigned to defend a person charged with a crime knows that the latter is preventively detained, either because he is charged with a bailable crime but has no means to post bail, or, is charge with a non-bailable crime, or, is serving a term of imprisonment in any penal institution, it shall be his duty to do the following: (a) Shall promptly undertake to obtain the presence of the prisoner for trial or cause a notice to served on the person having custody of the prisoner requiring such person to so advise the prisoner of his right to demand trial. (b) Upon receipt of that notice, the custodian of the prisoner shall promptly advise the prisoner of the charge and of his right to demand trial. If at anytime thereafter the prisoner informs his custodian that he demands such trial, the latter shall cause notice to that effect to be sent promptly to the public attorney. (c) Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the prisoner for trial. (d) When the custodian of the prisoner receives from the public attorney a properly supported request for the availability of the prisoner for purposes of trial, the prisoner shall be made available accordingly. (sec. 12, cir. 38-98)

138

www.rkmfiles.net

Sanctions In any case in which private counsel for the accused, the public attorney, or the prosecutor: (a) Knowingly allows the case to be set for trial without disclosing that a necessary witness would be unavailable for trial; (b) Files a motion solely for delay which he knows is totally frivolous and without merit; (c) Makes a statement for the purpose of obtaining continuance which he knows to be false and which is material tot he granting of a continuance; or (d) Willfully fails to proceed to trial without justification consistent with the provisions hereof, the curt may punish such counsel, attorney, or prosecutor, as follows: (1) By imposing on a counsel privately retained in connection with the defense of an accused, a fine not exceeding twenty thousand pesos (20,000.00); (2) By imposing on any appointed counsel de oficio, public attorney, or prosecutor a fine not exceeding five thousand pesos (P5,000.00); and (3) By denying any defense counsel or prosecutor the right to practice before the court trying the case for a period not exceeding thirty (30) days. The punishment provided for by this section shall be without prejudice to any appropriate criminal action or other sanction authorized under these rules. (sec. 13, cir. 38-98) Remedy where accused is not brought to trial within the time limit If the accused is not brought to trial within the time limit required by Section 1 (g), Rule 116 and Section 1, as extended by Section 7 of this rule, the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. The accused shall have the burden of proving the motion but t he prosecution shall have the burden of going forward with the evidence to establish the exclusion of time under section 3 of this Rule. The dismissal shall be subject to the rules on double jeopardy. Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under this section. (sec. 14, cir. 38-98) Law on speedy trial not a bar to provision on speedy in the Constitution No provision of law on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of denial of the right to speedy trial guaranteed by section 14 (2), article III, of the 1987 Constitution. (sec. 15, cir. 38-98) Order of trial The trial shall proceed in the following order: (a) The prosecution shall present evidence to prove the charge and, in ht proper case, the civil liability. (b) The accused may present evidence to prove his defense and damages if any, arising from the issuance of a provisional remedy in the case. (c) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue. (d) Upon admission of the evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda. (e) When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified Application for examination of witness for accused before trial When the accused has been held to answer for an offense, he may, upon motion with notice to the other parties, have witnesses conditionally examined in his behalf. The motion shall state: (a) the name and residence of the witness; (b) the substance of his testimony; and (c) that the witness is sick or infirm as to afford

139

www.rkmfiles.net

reasonable ground for believing that he will not be able to attend the trial, or resides more than one hundred (100) kilometers from the place of trial and has no means to attend the same, or that other similar circumstances exist that would make him unavailable or prevent him from attending the trial. The motion shall be supported by an affidavit of the accused and such other evidence as the court may require. Examination of defense witness; how made If the court is satisfied that the examination f a witness for the accused is necessary, an order shall be made directing that the witness be examined at a specific date, time and place and that a copy of the order be served on the prosecutor at least three (3) days before the schedule examination. the examination shall be taken before a judge, or, if not practicable, a member of the Bar in good standing so designated by the judge in the order, or if the order be made by a court of superior jurisdiction, before an inferior court to be designated therein. The examination shall proceed notwithstanding the absence of the prosecutor provided he was duly notified of the hearing. A written record of the testimony shall be taken. Bail to secure appearance of material witness When the court is satisfied, upon proof or oath that a material witness will not testify when required, it may, upon motion of either party, order the witness to post bail in such sum as may be deemed proper. Upon refusal to post bail, the court shall commit him to prison until he complies or is legally discharged after his testimony has been taken. Examination of witness for the prosecution When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf or against the accused. Trial of several accused When two or more accused are jointly charged with an offense, they shall be tried jointly unless the court, in its discretion and upon motion of the prosecutor or any accused, orders separate trial for one or more accused. Discharge of accused to be state witness When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that: (a) There is absolute necessity for the testimony of the accused whose discharge is requested; (b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; (c) The testimony of said accused can be substantially corroborated in its material points; (d) Said accused does not appear to be the most guilty; and (e) Said accused has not at any time been convicted of any offense involving moral turpitude. Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence. Discharge of accused operates as acquittal

140

www.rkmfiles.net

The order indicated in the preceding section shall amount to an acquittal of the discharge accused and shall be a bar to future prosecution for the same offense, unless the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge. When mistake has been made in charging the proper offense When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall upon the filing of the proper information. Appointment of acting prosecutor When a prosecutor, his assistant or deputy is disqualified to act due to any of the grounds stated in section 1 of Rule 137 of for any other reason, the judge or the prosecutor shall communicate with the Secretary of Justice in order that the latter may appoint an acting prosecutor. Exclusion of the public The judge may, motu proprio, exclude the pubic from the courtroom if the evidence to be produced during the trial is offensive to decency or public morals. He may also, on motion of the accused, exclude the public from the trial except court personnel and the counsel of the parties. Demurrer to evidence After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court. If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the court waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipts. If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipts. The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment. Reopening At anytime before finality of the judgment of conviction, the judge may, motu proprio or upon motion, with hearing in either case, reopens the proceedings to avoid a miscarriage of justice. The proceeding shall be terminated within thirty (30) days from the order granting it. RULE 120 - JUDGMENT Judgment: definition and form Judgment is the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any. It must be written in the official language, personally and directly prepared by the judge and signed by him an shall contain clearly and distinctly a statement of the facts and the law upon which it is based. Content of the judgment

141

www.rkmfiles.net

If the judgment is of conviction, it shall state (1) the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; (2) the participation of the accused in the offense, whether as principal, accomplice, or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived. In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove the guilt for the accused or merely failed to prove his guilty beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist. Judgment for two or more offense When two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense. Judgment in case of variance between allegation and proof Where there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. When an offense includes or is included in anther An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter. Promulgation of judgment The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered. However, if the conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or representative. When the judge is absent or outside the province or city, the judgment may be promulgated by the clerk of court. If the accused is confined or detained in another province or city, the judgment may be promulgated by the executive judge of the Regional Trial Court having jurisdiction over the place of confinement or detention upon request of the court which rendered the judgment. The court promulgating the judgment shall have authority to accept the notice of appeal and to approve the bail bond pending appeal; provided, that if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed and resolved by the appellate court. The proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel, requiring him to be present at the promulgation of the decision. If the accused was tried in absentia because he jumped bail or escaped from prison, the notice to him shall be served at his last known address. In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the promulgation shall be made by recording the judgment in the criminal docket and serving him a copy thereof at his last known address or thru counsel. If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in these rules against the judgment and the court shall order his arrest. Within fifteen (15) days from promulgation f judgment, however, the accused may surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence at the scheduled promulgation and if he proves that his absence was for a justifiable

142

www.rkmfiles.net

cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice. Modification of judgment A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment 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 when the accused has waived in writing his right to appeal, or has applied for probation. Entry of judgment After a judgment has become final, it shall be entered in accordance with Rule 36. Exiting provisions governing suspension of sentence, probation and parole not affected by this Rule Nothing in this Rule shall affect any existing provisions in the laws governing suspension of sentence, probation or parole. RULE 121 - NEW TIAL OR RECONSIDERATION New trial or reconsideration At any time before a judgment of conviction becomes final, the court may, on motion of the accused or at its own instance but with the consent of the accused, grant new trial or reconsideration. Grounds for a new trial The court shall grant a new trial on any of the following grounds: (a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial; (b) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produce at the trial and which if introduce and admitted would probably change the judgment. (2a) Ground for reconsideration The court shall grand consideration on the ground of errors of law or fact in the judgment, which requires no further proceedings. Form of motion and notice to the prosecutor The motion for new trial or reconsideration shall be in writing and shall state the grounds on which it is based. If based on newly-discovered evidence, the motion must be supported by affidavits copies of documents which are proposed to be introduced in evidence. Notice of the motion for new trial or reconsideration shall be given to the prosecutor. Hearing on motion Where a motion for new trial calls for resolution of any question of fact, the court may hear evidence thereon by affidavits or otherwise. Effects of granting a new trial or reconsideration The effects of granting a new trial or reconsideration are the following: (a) When a new trial is granted on the ground of errors of law or irregularities committed during the trial, all the proceedings and evidence affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence.

143

www.rkmfiles.net

(b) When a new trial is granted on the ground of newly-discovered, the evidence already adduced shall stand and the newly-discovered and such other evidence as the court may, in the interest of justice, allow to be introduced shall be taken and considered together with the evidence already in the record. (c) In all cases, when the court grants new trial or reconsideration, the original judgment shall be set aside or vacated and a new judgment rendered accordingly. RULE 122 - APPEAL Who may appeal? Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy. Where to appeal? The appeal may be taken as follows: (a) To the Regional Trial Court, in cased decided by the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court; (b) To the Court of Appeals or to the Supreme Court in the proper cases provided by law, in cases decided by the Regional Trial Court; and (d) To the Supreme Court, in cases decided by the Court of Appeals. How appeal is taken? (a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party. (b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42. (c) The appeal to the Supreme Court in cases where the penalty imposed by the Regional Trial Court is death, reclusion perpetua, or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed, shall be by filing a notice of appeal in accordance with paragraph (a) of this section. (d) No notice of appeal is necessary in cases where the death penalty is imposed by the Regional Trial Court. The same shall be automatically reviewed by the Supreme Court as provided in section 10 of this Rule. (e) Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45. Publication of notice of appeal If personal service of the copy of the notice of appeal can not be made upon the adverse party or his counsel, service may be done by registered mail or by substituted service pursuant to sections 7 and 8 Rule 13. Waiver of notice The appellee may waive his right to a notice that an appeal has been taken. The appellate court may, in its discretion, entertain an appeal notwithstanding failure to give such notice if the interest of justice so require. When appeal is to be taken? An appeal must be taken within fifteen (15) day from promulgation of the judgment or from notice of the final order appealed from. This period for perfecting an appeal shall be suspended from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motion has been served upon the accused or his counsel at which time the balance of the period begins to run. Transcribing and filing notes of stenographic reporter upon appeal

144

www.rkmfiles.net

When notice of appeal is filed by the accused, the trial court shall direct the stenographic reporter to transcribe his notes of the proceedings. When filed by the People of the Philippines, the trial court shall direct the stenographic reporter to transcribe such portion of his notes of the proceedings as the court, upon motion, shall specify in writing. The stenographic reporter shall certify to the correctness of the notes and the transcript thereof, which shall consist of the original and four copies, and shall file said original and four copies with the clerk without unnecessary delay. If death penalty is imposed, the stenographic reporter shall, within thirty (30) days from promulgation of the sentence, file with the clerk the original and four copies of the duly certified transcript of his notes of the proceedings. No extension of time for filing of said transcript of stenographic notes shall be granted except by the Supreme Court and only justifiable grounds. Transmission of papers to appellate court upon appeal Within five(5) days from the filing of the notice of appeal, the clerk of the court with whom the notice of appeal was filed must transmit to the clerk of court of the appellate court the compete record of the case, together with said notice. The original and three copies of the transcript of stenographic notes, together with the record, shall also be transmitted tot he clerk of the appellate court without undue delay. The other copy of the transcript shall remain in the lower court. Appeal to the Regional Trial Court (a) Within five (5) days from perfection of the appeal, the clerk of curt shall transmit the original record to the appropriate Regional Trial Court. (b) Upon receipt of the complete record of the case, transcripts and exhibits, the clerk of court of the Regional Trial Court shall notify the parties of such fact. (c) Within the fifteen (15) days from receipt of said notice, the parties may submit memoranda or briefs, or may be required by the Regional Trial Court to do so. After the submission of such memoranda or briefs, or upon the expiration of the period to file the same, the Regional Trial Court shall decide the case on the basis of the entire record of the case and of such memoranda or briefs as may have been filed Transmission of records in case of death penalty In all cases where the death penalty is imposed by the trial curt, the records shall be forwarded to the Supreme Court for automatic review and judgment within five (5) days after the fifteen (15) days following the promulgation of the judgment of notice of denial of a motion for new trial or reconsideration. The transcript shall also be forwarded within ten (10) days after the filing thereof by the stenographic reporter. Effect of appeal by any of several accused (a) 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. (b) The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from. (c) Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be stayed as to the appealing party. Withdrawal of appeal Notwithstanding perfection of the appeal, the Regional Trial Court, metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court, as the case may be, may allow the appellant to withdraw his appeal before the record has been forwarded by the clerk of court to the proper appellate court as provided in section 8, in which case the judgement shall become final. The Regional Trial Court may also, in its discretion, allow the appellant from the judgment of a Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court to withdraw his appeal, provided a motion to that effect is filed before rendition of the judgment in the case on appeal,

145

www.rkmfiles.net

in which case the judgment of the court of origin shall become final and the case shall be remanded to the latter court for execution of the judgment. Appointment of counsel de oficio for accused on appeal It shall be the duty of the clerk of court of the trial court, upon filing of a notice of appeal, to ascertain from the appellant, if confined in prison, whether he desires the Regional Trial Court, Court of Appeals or the Supreme Court to appoint a counsel de oficio to defend him and to transmit with the record on a form to be prepared by the clerk of court of the appellate court, a certificate of compliance with this duty and of the response of the appellant to his inquiry. RULE 123 - PROCEDURE IN THE MUNICIPAL TRIAL COURTS Uniform Procedure The procedure to be observed in the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall be the same as in the Regional Trial Courts, except where a particular provision applies only to either of said courts and in criminal cases governed by the Revised Rule on Summary Procedure. RULE 124 - PROCEDURE IN THE CURT OF APPEALS Uniform Procedure In all criminal cases appealed to the Court of Appeals, the party appealing the case shall be called the appellant and the adverse party the appellee, but the title of the case shall remain as it was in the court of origin.

Appointment of counsel de oficio for the accused If it appears from the record of the case as transmitted that (a) the accused confined in prison, (b) is without counsel de parte on appeal, or (c) has signed the notice of appeal himself, the clerk of court of the Court of Appeals shall designate a counsel de oficio. An appellant who is not confined in prison may, upon request, be assigned a counsel de oficio within ten (10) days from receipt of the notice to file brief and he establishes his right thereto. When brief for appellant to be filed Within thirty (30) days from receipt by the appellant or his counsel of the notice from the clerk of court of the Court of Appeal that the evidence, oral and documentary, is already attached to the record, the appellant shall file seven (7) copies of his brief with the clerk of court which shall accompanied by proof of service of two (2) copies thereof upon the appellee. When brief for appellee to be filed; reply brief of the appellant Within thirty (30) days from receipt of the brief of the appellant, the appellee shall file seven (7) copies of the brief of the appellee with the clerk of court which shall be accompanied by proof of service of two (2) copies thereof upon the appellant. Within twenty (20) days from receipt of the brief of the appellee, the appellant may file a reply brief traversing matters raised in the former but not covered in the brief of the appellant. Extension of time for filing briefs Extension of time for the filing of briefs will not be allowed except for good and sufficient cause and only if the motion for extension is filed before the expiration of the time sought to be extended.

146

www.rkmfiles.net

Form of briefs Briefs shall be printed, encoded or typewritten in double space on legal size good quality unglazed paper, 30 mm. in length by 216 mm. in width. Contents of brief The briefs in criminal cases shall have the same contents as provided in section 13 and 14 of Rule 44. A certified true copy of the decision or final order appealed from shall be appended to the brief of the appellant. (7a) Dismissal of appeal for abandonment of failure to prosecute The Court of Appeals may, upon motion of the appellee or motu proprio and with notice to the appellant in either case, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this Rule, except where the appellant is represented by a counsel de oficio. The Court of Appeals may also upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison or confinement, jumps, bail of flees to a foreign country during the pendency of the appeal. Prompt disposition of appeals Appeals of accused who are under detention shall be given precedence in their disposition over other appeals. The Court of Appeals shall hear and decide the appeal at the earliest practicable time with due regard to the rights of the parties. The accused need not be present in court during the hearing of the appeal.

Judgment not to be reversed or modified except for substantial error No judgment shall be reversed or modified unless the Court of Appeals, after and examination of the record and of the evidence adduced by the parties, is off the opinion that error was committed which injuriously affected the substantial rights of the appellant. Scope of judgment The Court of Appeals may reverse, affirm, or modify the judgment and increase or reduce the penalty imposed by the trial court, remand the case to the Regional Trial Court for new trial or retrial, or dismiss the case. Power to receive evidence The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases (a) falling within its original jurisdiction, (b) involving claims for damages arising from provisional remedies, or (c) where the court grants a new trial based only on the ground of newly discovered evidence. Quorum of the court; certification or appeal of cases to Supreme Court Three (3) Justices of the Court of Appeals shall constitute a quorum of the sessions of a division. The unanimous vote of the three (3) Justices of a division shall be necessary for the pronouncement of a judgment or final resolution, which shall be reached in consultation before the writing of the opinion by a member of the division. In the event that t he three (3 Justices can not reach a unanimous vote, the Presiding Justice shall direct the raffle committee of the Court to designate two (2) additional Justices to sit temporarily with them, forming a special division of five (5) members and the concurrence of a majority of such division shall be necessary for the pronouncement of a judgment or final resolution. The designation of such additional Justices shall be made strictly by raffle and rotation among all other Justices of the Court of Appeals.

147

www.rkmfiles.net

Whenever the Court of Appeals finds that the penalty of death, reclusion perpetua, or life imprisonment should be imposed in a case, the court after discussion of the evidence and the law involved shall render judgment imposing the penalty of death, reclusion perpetua, or life imprisonment as the circumstances warrant. However, it shall refrain from entering the judgment and forthwith certify the case and elevate the entire record thereof to the Supreme Court for review. Motion for new trial At any time after the appeal from the lower court has been perfected and before the judgment of the Court of Appeals convicting the appellant becomes final, the latter may move for a new trial on the ground of newly-discovered evidence material to his defense. The motion shall conform to the provision of section 4, Rule 121. (14a) Where new trial conducted When a new trial is granted, the Court of Appeals may conduct the hearing and receive evidence as provided in section 12 of this Rule or refer the trial to the court of origin. Reconsideration A motion for reconsideration shall be filed within fifteen (15) days from notice of the decision or final order of the Court of Appeals, with copies thereof served upon the adverse party, setting forth the grounds in support thereof. The mittimus shall be stayed during the pendency of the motion for reconsideration. No party shall be allowed a second motion for reconsideration of a judgment or final order.

Judgment transmitted and filed in trial court When the entry of judgment of the Court of Appeals is issued, a certified true copy of the judgment shall be attached to the original record which shall be remanded to the clerk of the court whom from which the appeal was taken. Application of certain rules in civil procedure to criminal cases The provisions of Rules 42, 44 to 46 and 48 to 56 relating to procedure in the Court of Appeals and in the Supreme Court in original and appealed civil cases shall be applied to criminal cases insofar as they are applicable and not inconsistent with the provisions of this Rule. RULE 125 - PROCEDURE IN THE SUPREME COURT Uniform procedure Unless otherwise provided by the Constitution or by law, the procedure in the Supreme Court in Original and in appealed cases shall be the same as in the Court of Appeal. Review of decisions of the Court of Appeals The procedure for the review by the Supreme Court of decisions in criminal cases rendered by the Court of Appeals shall be the same as in civil cases. Decision if opinion is equally divided When the Supreme Court en banc is equally divided in opinion or the necessary majority cannot be had on whether to acquit the appellant, the case shall again be deliberated upon and if no decision is reached after re-deliberation, the judgment of conviction of the lower court shall be reverse and the accused acquitted.

148

www.rkmfiles.net

RULE 126 - SEARCH AND SEIZURE Search warrant defined A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to peace officer, commanding him to search for personal property described therein and bring it before the court. Court where application for search warrant shall be filed An application for search warrant shall be filed with the following: 1. Any court within whose territorial jurisdiction a crime was committed. 2. For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforce. However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending. Personal property to be seized A search warrant may be issued for the search and seizure of personal property: (a) Subject of the offense; (b) Stolen or embezzled and other proceeds, or fruits of the offense, or (c) Used or intended to be used as the means of committing an offense. Requisites for issuing search warrant A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be any wherein the Philippine Examination of complainant; record The judgment, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. (4a) Issuance and form of search warrant If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. Right to bread door or window to effect search The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. Search of house, room, or premises to be made in presence of two witnesses No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. Time making search

149

www.rkmfiles.net

The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be search, in which case a direction may be inserted that it be served at any time of the day or night. Validity of search warrant A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void. Receipt for the property seized The officer seizing property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. Delivery of property and inventory thereof to court; return and proceedings thereon (a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. (b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with. (c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge. A violation of this section shall constitute contempt of court. Search incident to lawful arrest A person lawfully arrested may be searched for dangerous weapon or anything which may have been used or constitute proof in the commission of an offense without a search warrant. Motion to quash a search warrant or to suppress evidence; where to file A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in anther court, the motion shall be resolved by the latter court. RULE 127 - PROVISIONAL REMEDIES IN CRIMINAL CASES Availability of provisional remedies The provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action. Attachment When the civil action is properly instituted in the criminal action as provided in Rule 111, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases: (a) When the accused is about to abscond from the Philippines; (b) When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a

150

www.rkmfiles.net

public officer, officer of a corporation, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; (c) When the accused has concealed, removed, or disposed of his property, or is about to do so, and (d) When the accused resides outside the Philippines.

oo

CRIMINAL EVIDENCE WHAT IS EVIDENCE? Evidence is the means, sanctioned by the Revised Rules of Court, of ascertaining to a judicial proceeding the truth respecting a matter of fact (Sec. 1, Rule 128) DEFINE THE FOLLOWING TERM: Rule of Evidence - Material Evidence - Relevant Evidence - Competent Evidence - Direct and circumstantial evidence - Primary or best or secondary evidence - Positive and negative evidence - Export evidence - Cumulative evidence Corroborative evidence - Rebutting evidence - Prima facie evidence - Conclusive evidence - Real evidence - Testimonial evidence Rule of Evidence expresses the mode of manner of proving the facts and circumstances upon which the party relies to establish the fact in dispute (Ruporto Martin, Rules of Court in the Philippines. Vol. V. citing 20 Am. Jur. 34, p. 1) Material evidence tends to prove the fact in issue as that issue is determined by the rules of substantive law and pleadings (Jaime R. Nuevas, Remedial Law Reviewer, 1971 Ed., citing Wigmore, Students Ed., p. 530) Relevant evidence evidence is relevant when it has a tendency in reason to establish the probability or improbability if a fact in issue. (Vicente Francisco, The Revised Rules of Court in the Philippines, 1990 Ed., citing 1 Elliot on Evidence, p. 5) Competent evidence not excluded by law in a particular case (Bautista vs. Aparece, (CA ), 51 O.G. 805 ) Direct and circumstantial evidence direct evidence proves the fact in dispute without the aid of any inference or presumption., while circumstantial evidence is the proof of a fact or facts from which, taken either singly or collectively, the existence of the particular fact in dispute may be inferred as a necessary or probable consequence (5 Moran, Remedial Law Review, p. 2) Primary or best and secondary evidence primary or best evidence is that which the law regards as affording the greatest certainty of the fact in question, while secondary evidence is that which is inferior to the primary evidence and is permitted by the law only when the best evidence is not available ( 5 Moran, op. cit., p. 3 )

151

www.rkmfiles.net

Positive and negative evidence evidence is positive when the witness affirms that a fact did or did not occur, and negative when the witness states he did not see or know of the occurrence of a fact (People vs. Ramos, L-30420, Sept. 22, 1971) Expert evidence given by one possessing in regard to a particular subject or department of human activity knowledge does not usually acquired by other persons (U.S. vs. Gil, 13 Phil. 530) Cumulative evidence evidence of the same kind and character as that already given, and tends to prove the same proposition (Francisco, Ibid., citing Gardner vs. Gardner, 2 Gray (Mass. 434), p. 5) Corroborative evidence additional evidence of different kind and character, tending to prove the same [point (Francisco, supra, citing Wyne vs. Newman, 75, Va., 811, 817, p. 4) Rebutting evidence evidence given to repel, counteract or disprove facts proved by the other side ( Nuevas, citing State vs. Silva, 21 Ida. 247, p. 531 ) Prima facie evidence evidence which suffices for the proof of a fact in issue until rebutted or overcome by other evidence (Nuevas, citing Cal. Code of Civil Procedure, Sec. 1833, p. 531) Conclusive evidence evidence which is inconvertible (Nuevas, citing Wood vs. Chapin, 13 NY 509) Real evidence object (real) evidence is that which is addressed to the senses of the tribunal, as where objects are presented for the inspection of the court ( Franciso, citing 1 Jones on Evidence, 2nd ed., Sec. 16, p. 9 0) Testimonial evidence testimony given to the court of deposition by one who has observed that to which he is testifying; or one who, though who has not observed the facts, is nevertheless qualified to give an opinion relative to the fact ( Francisco, citing Gilbert, Law Summaries of Evidence, p. 9 ) WHERE ARE OUR RULES OF EVIDENCE FOUND? Court Our entire rule s of evidence have been incorporated in the Revised Rules of

DISTINGUISH EVIDENCE FROM PROOF Evidence is the means of proof: proof is the effect of evidence, the establishment of as fact by evidence. Proof results as a probative effect of evidence and is the conviction or persuasion of mind resulting from a consideration of the evidence (Jaime R. Nuevas, Remedial Law Reviewer, 1971 Ed., p. 531) WHAT IS THE SCOPE OF THE RULES OR LAW OF EVIDENCE? The law of evidence deals with the rules to be followed in presenting a matter of fact to a court for its use in the judicial investigation. (1) it prescribes the manner of presenting the evidence personally by one who knows the thing, the subject to cross-examination, or by means of a preposition (2) it fixes the qualification and the privileges of witnesses, and the mode of examining them (3) and chiefly, it determines, as among probative matter, what classes of things shall not be received (Ruperto Martin, Rules of Courts in the Philippines, Vol. V, 1978 Ed., pp. 1-2) WHAT IS THE OBJECT OF THE LAW OF EVIDENCE? The object of the law of evidence is to have a specific inquiry of the truth to establish the truth by the use of the perceptive and reasoning faculties (Martin, supra., p. 2) DISTINGUISH FACTUM PROBANDUM FROM FACTUM PROBANS

152

www.rkmfiles.net

Factum probandum is the ultimate fact or the fact to be established; factum probans is the evidentiary fact, or the fact by which the factum probandum is to be established ( Nuevas, citing Wigmore 5-9, p. 531-532 ) ARE THE RULES OF EVIDENCE THE SAME, IN CRIMINAL AS WELL AS IN CIVIL CASES? Yes, the rules of evidence shall be the same in all courts and in all trials and hearings except as otherwise provided by law or these rules (Sec. 2, Rule 128) WHEN IS EVIDENCE ADMISSIBLE? Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules (Sec. 3, Rule 128) WHAT ARE THE REQUISITES OF ADMISSIBILITY OF EVIDENCE? In order that the evidence may be admissible, two requisites must concur, namely: a. that is relevant to the issue; and b. that is competent. That is, that it does not belong to the class of evidence which is excluded by the law or Rules of Evidence ( Vicente Francisco, The Revised Rules of Court in the Philippines, Vol. VII, 1990 Ed., p. 19 )

WHEN IS EVIDENCE RELEVANT? Evidence to be relevant must throw light upon, or have logical relation to the facts in issues to be established by one party or disproved by the other ( Ruperto G. Martin, Rules of Court in the Philippines, Vol. V., 1987 ed., citing 20 Am. Jur. 240, p. 9) WHEN IS EVIDENCE COMPETENT? Evidence is competent when it is not excluded by any of the rules of evidence such as when it is hearsay or because it is not best evidence which is within the power of a party to produce. Evidence must not only be logically relevant, but must be of such character as to be receivable in courts of justice ( Ruperto G. Martin, Ibid., citing Gilbert Law Summaries on Evidence, p. 3 ) IS EVIDENCE ILLEGALLY OBTAINED ADMISSIBLE? WHY? Evidence illegally obtains is admissible, the reason being that exclusion of such kind of evidence is the only practical way of enforcing the constitutional right against unreasonable search and seizure ( Stonehill vs. Diokno, L-19550, June 19, 1967 ) WHAT ARE THE TWO AXIOMS OF ADMISSIBILITY WHICH UNDERLIE THE ENTIRE STRUCTURE OF THE LAW OF EVIDENCE? The following: none but facts having rational probative value are admissible, which is the axiom on relevancy; and all facts having rational probative value are admissible, unless some specific rule forbids, which is the axiom on competency ( Nuevas, citing 1 Wigmore 289-95, p. 532 ) WHAT ARE THE THREE KINDS OR CLASSES OF ADMISSIBILITY OF EVIDENCE? They are: a. multiple admissibility; b. conditional admissibility; c. curative admissibility WHAT IS MEANT BY MULTIPLE ADMISSIBILITY OF EVIDENCE?

153

www.rkmfiles.net

This means evidence which is [plainly relevant and competent for two or more purposes. When this happens, such evidence will be received if it satisfies all the requirements prescribed by law in order that it may be admissible for the purpose for which it is presented, even if it does not satisfy the other requisites for its admissibility for other purposes (People vs. Yatco. 97 Phil. 940) WHAT IS MEANT BY CONDITIONAL ADMISSIBILITY OF EVIDENCE? It means that the evidence which appear to be material is admitted by the court subject to the condition that its connection to other facts subsequently to be proved will be established (People vs. Yatco. Supra) WHAT IS MEANT BY CURATIVE ADMISSIBILITY OF EVIDENCE? This means that evidence, otherwise improper is admitted to contradict improper evidence introduce by the other party (Jaime R. Nuevas, Remedial Law reviewer, 1971 ed., A & J Publishing citing Wigmore 304-09, p. 533) STATE THE RULE OF RELEVANCY OF EVIDENCE Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matter shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact of issue (Sec. 4, Rule 128) WHAT IS THE PURPOSE OF THE RULE ON RELEVANCY? The purpose of the rule on relevancy is to restrict the field of inquiry to its proper scope and to prevent the issues of becoming beclouded. It also aims to prevent surprise on the litigant, or the subjection to the party to the necessity of meeting the evidence that is possibly prejudicial and of which he has no means of anticipating (Martin, p. 15 citing 2 Jones on Evidence, 2nd Ed., 1086, 1087) WHAT ARE COLLATERAL MATTERS? Collateral matters are those other than the facts in issue and which are offered as a basis for inference as to existence of the facts in issue (Sec. 4, Rule 129) WHEN MAY THE COURT ALLOW EVIDENCE ON COLLATERAL MATTERS? Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue (Sec. 4, Rule 128 ) GIVE THE CONCEPT OF (1) PROSPECTANT COLLATERAL MATTERS; (2) CONCOMITANT COLLATERAL MATTERS; (3) RETROSPECTANT COLLATERAL MATTERS a. b. Prospectant collateral matters are those preceding of the fact in issue but pointing forward to it, like moral character, motive; conspiracy, etc. Concomitant collateral matters are matters are those accompanying the fact in issue and pointing to it, like alibi, or opportunity and incompatibility; Retrospectant collateral matters are those succeeding the fact in issue but pointing forward to it, like flight and concealment, behavior of the accused upon being arrested; finger prints or foot prints; articles left at the scene of the crime which may identify the culprit ( Judge Ed Vincent S. Albano, Remedial Law Reviewer 1st Ed. 1995, Rex Book Store, p. 888 citing 1 Wigmore 442-43 )

c.

WHAT IS THE BASIS OF THE RULES OF EVIDENCE? The basis upon which all rules of evidence must rest, if they are to rest upon reason, is their adaptation to the successful development of the truth; and the rule of evidence at one time though necessary to the ascertainment of truth should yield to the experience has clearly demonstrate the fallacy or unwisdom of the old rule

154

www.rkmfiles.net

(Nuevas Remedial Law Reviewer, 1971 Ed., A & J Publishing, p. 534 citing Funk vs. U.S., 290 U.S. 391) DEFINE JUDICIAL NOTICE Judicial notice is the cognizance of certain facts which judges may properly take and act on without proof because they already know them. It means no more than that the court will bring to its aid and consider, without proof of the facts, its knowledge of those matter of public concern which are known by all well-informed persons ( Martin, Revised Rules of Evidence, 1985 Ed., Premium Book Store, p. 3 citing C.J.S. 509 ) WHAT IS THE FUNCTION OF JUDICIAL NOTICE? It displaces evidence since, as it stands for proof, it fulfills the object which evidence is designed to fulfill and make evidence unnecessary. (Nuevas, Ibid., p. 535 citing State vs. Main, 69 Conn 123) STATE THE PRINCIPLE ON WHICH JUDICIAL NOTICE IS BASED? The doctrine of judicial notice is based upon obvious reasons of convenience and expediency and operated to have trouble, expense and time which would be lost in establishing, in the ordinary way, facts which do not admit of contradiction (Nuevas, Ibid., p. 535 citing 20 Am., Jur. 47; Tracys Handbook, 62 ed., p. 44)

WHEN IS JUDICIAL NOTICE MANDATORY? A court shall take judicial notice without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time and the geographical divisions ( Sec. 1, Rule 129, Revised Rules on Evidence ) WHAT ARE THE REQUISITES OF JUDICIAL NOTICE? Generally speaking, matters of judicial notice have three material requisites, namely: d. the matter be common and general knowledge; e. the matter must be well and authoritatively settled and not doubtful or uncertain; and f. the matter must be known to be within the limits of jurisdiction of the court ( Martin, Ibid. p. 35 citing 1 Jones on Evidence, 2nd ed., 643; 20 Am. Jur. 48 ) WHEN IS JUDICIAL NOTICE DISCRETIONARY? A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions (Sec. 2, Rule 129 ) WHEN IS HEARING NECESSARY IN JUDICIAL NOTICE? During the trial, the court, on its own initiative, or on request of the party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case (Sec. 3, Rule 129 ) IS THERE ANY NEED TO PROVE ADMISSIONS IN THE COURT OF PROCEEDING IN COURT?

155

www.rkmfiles.net

An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof ( Sec. 4, Rule 129 ) HOW MAY AN ADMISSION BE CONTRADICTED? Through admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made ( Sec. 4, Rule 129 ) WHAT ARE THE OBJECTS AS EVIDENCE? Objects as evidenced are those addressed to the senses of the court. When an object is relevant to the fact in issue, it mat be exhibited to, examined or viewed by the court ( Sec. 1, Rule 130 ) WHAT IS THE PRO BATIVE VALUE OF OBJECT AS EVIDENCE? Proof which is addressed directly to the senses of the court is a most convincing and satisfactory class of proof (Martin, p. 57 citing 20 Am. Jur.), object evidence is usually the most trustworthy type of evidence (Martin, citing Gilbert Law Summaries on Evidence, p. 1) WHAT ARE THE LIMITATIONS TO THE ADMISSIBILITY OF OBJECT EVIDENCE? The following: c. the evidence must e relevant; ( Sec. 1, Rule 130 ) d. indecent or improper objects should be excluded, unless the same is necessary for ascertaining the truth; ( Brown vs. Swineford, 28 Am. Rep. 582 ) e. repulsive objects should also be excluded if not absolutely necessary for the administration of justice (Knowless vs. Crampton, 55 Conn. 366 ) WHAT IS THE SCOPE OB OBJECT OF EVIDENCE? It is the best and the highest form of proof (Gentry vs. Mominiss, 3 Dana, Ky. 382 ) WHAT IS THE EVIDENCE? PRE-REQUISITE FOR THE ADMISSION OF THE OBJECT

The object must be first identified, which means that it must be shown, by independent evidence, that the object offered is the thing in dispute ( People vs. Besold, 154 Cal. 363) WHAT ARE DOCUMENTS AS EVIDENCE? Documents as evidence consists of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents ( Sec. 2, Rule 130 ) STATE THE BEST EVIDENCE RULE When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself (Sec. 3, Rule 130 ) THE RULE IS THAT, NO EVIDENCE SHALL BE ADMISSIBLE OTHER THEN THE DOCUMENTS ITSELF, ARE THERE EXCEPTION? Yes, in the following cases: a. when the original has been lost or destroy, or cannot be produced in court, without bad faith on the part of the offeror; b. when the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; c. when the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and fact sought to be established from them is only the general result of the whole; and

156

www.rkmfiles.net

d. when the original is a public record in the custody of a public officer or is recorded in a public office ( Sec. 3, Rule 130 )

WHAT ARE CONSIDERED ORIGINALS OF A DOCUMENT? The following: a. the original of a document is one of the contents of which are the subject of inquiry b. when a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals c. when an entry is repeated in a regular course of business, one being copied from another at or near the time of transaction, all the entries are likewise equally regarded as originals ( Sec. 4, Rule 130 ) HOW MAY THE ORIGINAL OF A LOST OR DESTROYED DOCUMENT BE PROVED? When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on its part, may prove its contents by a copy or by a recital of its contents in some authentic documents, or by the testimony of witness in the order stated ( Sec. 5, Rule 130 ) WHEN MAY SECONDARY EVIDENCE BE SHOWN IF THE ORIGINAL OF A DOCUMENT IS IN THE POCESSION OF THE ADVERSE PARTY? If the document is in the custody or under the control of the adverse party he must have a reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce that document secondary evidence may be presented as in the case of its lost ( Sec. 6, Rule 130 ) HOW MAY A PUBLIC DOCUMENT BE PROVED? When the original of a document is in the custody of a public officer and is recorded in a public office, its contents may be proved by a certified copy issued by the public office in custody thereof ( Sec. 7, Rule 130 ) IS THE PARTY WHO CALLS FOR THE PRODUCTION OF A DOCUMENT BOUND TO OFFER IT IN EVIDENCE? No. A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence WHAT IS PAROL EVIDENCE? Parol evidence literally means oral or verbal testimony of a witness ( Ballentines Law Dict.., 2nd Ed., p. 932 ) However, in the application of the rule, it has been extended to writings other than the complete written agreement of the parties ( Phil. Sugar Estates Dev. Co. vs. Govt of P.I. 247 U.S. 385; Woodhous vs. Halili, 93 Phil. 526 ) Another term for parol evidence is intrinsic evidence or evidence aliunde ( Uy Coque vs. Sioca, 43 Phil. 405 ) STATE THE RULE WHEN THE TERMS OF AGREEMENT ARE PUT TO WRITING When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement ( Sec. 9, Rule 130 ) UNDER WHAT CIRCUMSTANCES MAY A PARTY PRESENT EVIDENCE TO MODIFY, EXPLAIN OR ADD TO THE TERMS OF THE WRITTEN EVIDENCE? A party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading;

157

www.rkmfiles.net

a. an intrinsic ambiguity mistake, or imperfection in the written agreement; b. the failure of the written agreement to express the true intent and agreement of the parties thereto; c. the validity of written agreement; d. the existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement The term agreement includes wills (Sec. 9, Rule 130 ) HOW SHALL THE LANGUAGE OF WRITING BE INTERPRETED? The language of writing is to be interpreted according to the legal meaning; it bears in the place of execution, unless the parties intended otherwise (Sec. 10, Rule 130) GIVE SOME RULES IN THE INTERPRETATION OF DOCUMENTS 1. In the construction of an instrument where there are several provision of particulars, such a construction is, if possible, to be adopted as will give effect to all ( Sec. 11, Rule 130 ) 2. In the construction of an instrument, the intention of the parties is to be pursued and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it (Sec.12, Rule 130) 3. For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be place in the position of those whose language he is to interpret ( Sec. 13, Rule 130 ) 4. The terms of writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be constructed accordingly ( Sec. 14, Rule 130 ) 5. When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter ( Sec. 15, Rule 130 ) 6. When the character in which the instruments are difficult to be deciphered, or the language is not understood by the court, the evidence of persons skilled in deciphering the character, or who understand the language is admissible to declare the characters or the meaning of the language ( Sec. 16, Rule 130 ) 7. When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which the most favorable to the party in whose favor the provision was made ( Sec. 17, Rule 130 ) 8. When an instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted ( Sec. 18, Rule 130 ) 9. An instrument may be construed according to usage, in order to determine its true character ( Sec. 19, Rule 130 ) WHO ARE COMPETENT TO BE WITNESSES? All persons who can perceive, and perceiving can make known their perception to others, may be witnesses Neither religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be a ground for disqualification.(Sec. 20, Rule 130 ) WHO MAY NOT BE A WITNESS BY REASON OF MENTAL INCAPACITY OR IMMATURITY? The following persons cannot be witnesses:

158

www.rkmfiles.net

a. those whose mental condition, at the time of there production for examination, is such that they are incapable of intelligently making known their perception to others; and b. children whose mental maturity is such to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully ( sec. 21, rule 130 ) WHEN ARE INSANE PERSONS INCOMPETENT TO TESTIFY? What renders insane persons incompetent to testify is their insanity at the time of their production Insanity at the time of the occurrence on which as witness is called upon to testify merely affects his credibility, not his competency ( Moran, Remedial Law Reviewer, p. 578 ) WHAT DEGREE OF INSANITY DISQUALIFIES A PERSON FROM TESTIFYING? A person is incompetent to testify if he is insane to such degree as to be incapable of perceiving and making known his perception to others. (Moran, ibid., p. 578 citing State v. Meyers, 46 Nebr. 152) IS A DEAF AND DUMB PERSON COMPETENT TO TESTIFY? A deaf and dumb person may testify in any manner satisfactory to the court, as by writing or signs through an interpreter. (People vs. De Leon 50 Phil. 539) If he testifies by signs, there must be an interpreter with whom he may have an understanding by such means (Territory vs. Duran 3 N.M. 189) Otherwise he cannot testify (People vs. Bustos, 51 Phil. 385) IS THE INTOXICATED PERSON COMPETENT TO TESTIFY? Drunkenness does not pursue disqualify a witness from testifying. The port of Pennsylvania said on this matter: The point of inquiry is the moment of examination. Is the witness then offered so besotted in his understanding as to be deprived of his intelligence? If he is, excluded him; even if he be a hard drinker or habitual drunkard yet, if at that time, he is sober, and possessed of a sound mind, he is to be perceived. (Gebhar vs. Shindle, 15 Serg. & R. (Pa 283)

IS A PERSON UNDER THE INFLUENCE OF OPIUM OR OTHER DRUGS, COMPETENT TO TESTIFY? If the witness at the time of his examination, is so intoxicated by opium or other drugs that he is deprived of his mental powers to such a degree as to be capable of making known his perceptions, he is disqualified from testifying. Otherwise, he is competent HOW CAN THE COMPETENCY OF AN INFANT BE DETERMINED? It is a doctrine laid down in modern decisions that the test of an infants competency to testify is his capacity to receive just impressions truly. If he possesses the necessary mental capacity to that effect and comprehends the obligation of an oath, he is a competent witness (Moran, Ibid., p. 579 citing Wheeler vs. U.S. 523) WHO ARE DISQUALIFIED TO BE WITNESS BY REASON OF MARRIAGE? During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other or the latters direct descendants or ascendants ( Sec. 22, Rule 130 ) WHAT IS THE REASON FOR THE RULE FORBIDDING ONE SPOUSE TO TESTIFY FOR OR AGAINST THE OTHER? The rule forbidding one spouse to testify or against the other is based on principles which are deemed important to preserve the marriage relation as one of

159

www.rkmfiles.net

full confidence and affection, and that this is regarded as more important in public welfare than that the exigencies of the lawsuits should authorize domestic peace to be disregarded for the sake of ferreting out some fact within the knowledge of strangers ( U.S. vs. Concepcion, 31 Phil 182 ) WHAT ARE THE REQUISITES OF THE RULE OF FORBIDDING ONE SPOUSE TO TESTIFY FOR OR AGAINST THE OTHER? There are three: a. that the spouse for or against whom the testimony of the other is offered, is a party to the case; b. that the spouse are legally married; and c. that the case is not by one against the other ( Moran, Remedial Law Reviewer, p. 584 ) IN ONE CASE, THE DEFENDANT, WHO WAS ACCUSEDOF KILLING HIS SON TESTIFIED IN HIS OWN BEHALF DID NOT LIMIT HIMSELF TO DENYING THAT HE WAS A KILLER BUT WENT FURTHER AND IMPUTED THE CRIME TO HIS WIFE. MAY THE WIFE BE ALLOWED TO TESTIFY IN REBUTTAL AGAINST THE HUSBANDS CONSENT? Yes. In giving such testimony, the husband must, in all fairness, be held to have intended all its natural and necessary consequences. By his said act, the husband himself exercising the very right which he would deny to his wife upon the ground of their marital relations must be taken to have waived all objections to the latters testimony upon rebuttal, even considering that such object would have been available at the outset. (People vs. Francisco, 78 Phil 694)

WHO ARE QUALIFIED TO BE WITNESS BY REASON OF DEATH OR INSANITY OF ADVERSE PARTY? Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such diseased person or before such person became of unsound mind. (Sec. 23, Rule 130) WHO MAY NOT BE A WITNESS AS TO MATTERS LEARNED IN CONFIDENCE? The following persons cannot testify as to matters learned in confidence in the following cases: a. The husband of the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in criminal case for a crime committed by one against the other or the latters direct descendants or ascendants; b. An attorney cannot, without the consent of his client, be examined as to any communication made by client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorneys secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity; c. A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient.

160

www.rkmfiles.net

d. A minister or priest cannot, without the consent of the person making the confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs; e. A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the courts find that the public interest would suffer by the disclosure. (Sec., Rule 130) GIVE THE REQUISITES OF THE RULE ON MARITAL COMMUNICATIONS a. The spouses are legally married; b. The communication, oral or written, is made during the marriage;. c. The communication is confidential. (Nuevas, Ibid., p. 559)

WHAT IS THE REASON FOR THIS PRIVELEGE? The reason is to preserve the peace of families and maintain the sacred institution of marriage. (Nuevas, Ibid., p. 559 citing Mever svs. State, 40 Fla. 216). MAY THE PRIVILEGE BE WAIVED AND IF SO, HOW AND BY WHOM? The privilege is claimable by the spouse not called as a witness, so that it is waivable only by him or her; and it is waivable by any act of such spouse which might be considered as an express or implied consent to the disclosure of the communication. (Neuvas, Ibid., citing People vs. Hayes, 140 N.Y. 484). GIVE THE REQUISITES OF THE PRIVILEGE OF ATTORNEY AND CLIENT The following: a) There must be a relation of attorney and client; b) There must be a communication by the client to the attorney, or advice thereon given by the latter to the former; c) The communication or advice must have been given confidentially; d) The communication must have been made in the course of professional employment. WHAT IS THE REASON FOR THIS PRIVILEGE? The reason is to promote the confidence of the people in attorneys for their work is essential to the administration of justice and to encourage the freedom of consultation of lawyers for clients. (Nuevas, Ibid., p. 561 citing Fosters vs. Hall, 12 Pick 89; Alexander vs. U.S., 138 U.S. 353) MAY THE LAWYER BE COMPELLED TO TESTIFY ON COMMUNICATIOS MADE TO HIM AS TO A FUTURE CRIME OR WRONG? WHY? YES, because those communications are not covered by the privilege for the reason that a lawyer is not supposed to be consulted on a future crime or wrong. (Matthews vs. Hoaglang, 21 Atl. 1054) MAY A LAWYER BE COMPELLED TO TESTIFY ON COMMUNICATIONS MADE TO HIM AS TO A PAST CRIME OR WRONG? WHY? NO, for those communications are protect by the privilege. (Alexander vs. U.S., 138 U.S. 353) WHAT IS THE DURATION OF THIS PRIVILEGE? Its duration is forever. (Carter vs. West, 93 Ky. 211) GIVE THE EXCEPTION TO THE APPLICATION OF THIS PRIVILEGE AND REASON THEREFOR.

161

www.rkmfiles.net

This privilege does not apply to an action filed by the lawyer against his client, and this exception is for the protection of the lawyer. (Hunt vs. Blackburn, 128 U.S. 464)

GIVE THE REQUISITES OF THE PRIVILEGE OF PHYSICIAN AND PATIENT. The following: a) That the privilege is claimed in a civil case; b) That the person against whom the privilege is claimed, is one duly authorized to practice medicine, surgery or obstetrics; c) That such person acquired the information while he was attending the patient in his professional capacity, which information was necessary to enable him to act in that capacity; and d) That the information was confidential, and if disclosed, shall tend to blacken the character of the patient. IS THE PRIVILEGE OF COMUNICATIONS BETWEEN PHYSICIAN AND PATIENT APPLICABLE IN CRIMINAL CASES? In criminal cases, the privilege does not apply. WHAT IS THE REASON FOR THIS PRIVILEGE? The reason is to facilitate and make safe, full and confidential disclosure by patient to physician of all symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand. (Nuevas, Ibid., 562 citing Will of Bruendl, 102 Wis. 47) WHEN IS THERE PROFESSIONAL EMPLOYMENT OF A PHYSICIAN? There is such employment of a physician when he is called for the purpose of treatment, whether curative, preventive or palliative. (Smart vs. Kansas City, 208 Mo. 162) There is no professional employment when a physician is consulted for an unlawful purpose, like the procuring of an abortion. (Nuevas, Ibd., p. 563 citing Seifert vs. State, 67 N.E. 100) WHAT IS THE SCOPE OF THIS PRIVILEGE? The privilege applies not only to the testimony of the physician on the stand, but also to affidavits, certificates, prescription, and hospital records. (Krap vs. Metropolitan Life Ins. Co., 143 Mich. 309) GIVE THE REQUISITES OF THE PRIVILEGE OF PRIEST AND PENITENT. The following: a)There must be a priest and a penitent; b) There must be a confession; c)The confession must have been given to the priest in his professional capacity; and d) The confession must have been made in the course of discipline enjoined by the church to which the penitent belongs. WHAT IS THE REASON FOR THE PRIVILEGE? The reason is to preserve the sanctity of the confessional institution. (Peoples vs. Philipps, 1 West L.J. 109) GIVE THE REQUISITES OF THE PRIVILEGE OF A PUBLIC OFFICER. The following: a) There must be a confidential official communication; b) The communication must have been made to a public officer; and

162

www.rkmfiles.net

c) The disclosure of the communication would affect public interest. WHAT IS THE PURPOSE OF THEPRIVILEGE? The privilege is intended not for the protection of public officers, but for the protection of public interest. (Morn, Ibid., p. 599 citing Vogel vs. Gruaz, 110 U.S. 311) WHAT IS THE DURATION OF THE PRIVILEGE? The public officer is privileged not to testify to official secrets, not only during his term of office, but also afterwards. The law, therefore, intends that secrecy be permanent. (Moran, Ibid., p. 509)

IS A DESCENDANT DISQUALIFIED TO TESTIFY, IN A CRIMINAL CASE, AGAINST HIS PARENTS OR HIS ASCENDANTS? A descendant is not disqualified to testify against his parents and descendants. The rule provides that No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. (Sec. 25, Rule 130) WHAT IS AN ADMISSION? The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (Sec. 26, Rule 130) AGAINST WHOM ARE ADMISSIONS RECEIVABLE? Admissions are receivable against the party who made them, but not in his favor, because then they would be self-serving evidence (5 Moran, Comments, p. 212, 1963 Ed.) DEFINE SELF-SERVING EVIDENCE AND STATE IF IT IS ADMISSIBLE. WHY? Self-serving evidence is an admission favorable to the party making it. (Lichauco vs. Atlantic Gulf, etc., 84 Phil. 330). It is not admissible in evidence because of its hearsay character, and for the further reason that a man may be safely believed if he declares against his own interest, but not if he advocates his interest. (Lichauco vs. Atlantic Gulf, etc., supra). CLASSIFY ADMISSIONS Admissions are generally divided into two classes: 1. Judicial or those made on the record, or in connection with the judicial proceeding in which it is offered; 2. Extra-judicial, or those made elsewhere, irrespective of time, place, or to whom made. (Martin, Revised Rules on Evidence, p. 209 citing The Chamberlayne Trial Evidence, p. 42) DISTINGUISH ADMISSION FROM A CONFESSION Admission operates equally in both civil and criminal cases and with the same effect, while confession is an admission by the person accused of having committed the act of which he is accused. It partakes largely of the nature of an offer to compromise with the criminal authorities. (Martin, Ibid., p 210 citing The Chamberlayen Trial Evidence, p. 441). STATE THE RULE ON OFFER OF COMPROMISE. In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.

163

www.rkmfiles.net

A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser offense, is not admissible in evidence against the accused who made the plea or offer. (Sec. 27, Rule 130). GIVE THE EFFECTS OF AN OFFER TO COMPROMISE. It depends on whether the offer is made in a civil or criminal case. It made in a civil case, it is not an admission that anything is due and, therefore, not admissible in evidence. (Obejera vs. Iga Sy, 76 Phil. 580) If made in a criminal case, it is an implied admission of guilt and, therefore, admissible in evidence, unless those involving quasi-offense(criminal negligence) or those allowed by laws to be compromised. (Sec. 27, Rule 130). DEFINE COMPROMISE A compromise is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end tone already commenced. (Art. 2028, Civil Code of the Philippines) WHAT CONSTITUTE AN OFFER OF COMPROMISE? It is often difficult to determine in a particular case what amounts to an ordinary admission and what constitutes an offer of compromise. The intention of the parties must be the guide in each case. If the proposal is tentative, and any statement made in connection with it is hypothetical if the offer was made to buy peace and in contemplation of mutual concessions, it is as to such point a mere offer of compromise. On the other hand, if the intention is apparently a liability recognized as such, the proposal is an ordinary admission. (Martin, Revised Rules on Evidence, 1985 Ed., p. 220 citing 31- A C.J.S. 728-729) STATE THE RULE OF RES INTER ALIOS ACTA AND THE EXCEPTIONS. The rights of a party cannot be prejudiced by an act, declaration, or omission of another (Sec. 28, Rule 130) except when between the party making the admission and the party against whom the admission is offered, the relation of (a) partnership, (b) agency, (c) joint interest, (d) conspiracy or (e) privity exists. (Secs. 29 to 33, Rule 130). GIVE THE REASON FOR THE RULE OF RES INTER ALIOS ACTA On the principle good faith and mutual convenience, a mans acts, conduct and declarations are binding upon him and, therefore, evidence, against him. Yet, it does not only seem inconvenient, but also manifestly, unjust, that a man should be bound by the acts of strangers, neither can their acts or conduct be used as evidence against him. (Nuevas, Ibid, p. 568 citing Stack on Evidence, 35d., pp. 58-59) WHEN MAY THE ACT OR DECLARATION OF CO-PARTNER OR AGENT BE ADMISSIBLE AS EVIDENCE AGAINST HIS PRINCIPAL? The act or declaration of a partner or agent of the party within the scoop of his authority and during the existence of the partnership or agency, may be given in evidence of the partnership or agency, against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (Sec. 29, Rule 130). WHEN MAY AN ADMISSION OF A PARTNER BE RECEIVED IN EVIDENCE AGAINST HIS CO-PARTNER? When the 1. 2. 3. following requisites occur: The partnership must be established by independent evidence; The statement refers to a matter within the scope of the partnership; and The statement was made during the existence of the partnership. (Sec. 29, Rule 130).

WHEN MAY THE ADMISSION OF AN AGENT BE RECEIVED IN EVIDENCE AGAINST HIS PRINCIPAL?

164

www.rkmfiles.net

When the 1. 2. 3.

following requisites concur: The agency must be established by independent evidence; The statement refers to a matter within the scope of the agency; and The statement was made during the existence of the agency. (Nuevas, Ibid., p. 569 citing Hitchman Coal etc. vs. Mithcell, 245 U.S. 229)

STATE THE RULE ON ADMISSION BY CONSPIRACTOR? The act or declaration of a conspiractor relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration. (Sec. 30, Rule 130). WHEN IS THE ADMISSION OF A CONSPIRACTOR RECEIVABLE IN EVIDENCE AGAINST HIS CO-CONSPIRACTOR? When the following requisites concur: a) The conspiracy must be established by independent evidence; b) The statement refers to the purpose or object of the conspiracy: and c) The statement was made during the existence of the conspiracy. (Sec. 30, Rule 130); People vs. Dacanay, 92 Phil. 873) This rule refers to extrajudicial acts and declarations of a conspiractor, and not to his testimony as a witness at the trial. (People vs. Dacanay, supra). GIVE THE RULE ON ADMISSION BY PRIVIES. Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. (Sec. 31, rule 130). DEFINE PRIVIES. The word privies denotes not only the idea of succession in right of heirship or testamentary legacy, but also succession by virtue of acts intervivos, as by assignment, subrogation, or purchase in fact any act whereby the successor is substituted in the place of the predecessor in interest. (Alpuerto vs. Pastor & Roa, 38 Phil. 785).

GIVE THE RULE ON ADMISSION BY SILENCE, THE REASON THEREFORE, AND THE EXCEPTION, IS ANY. An act or declaration made in the presence and within the hearing or observation of a party who does or say nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. (Sec. 32, Rule 130). This rule applies to both civil and criminal cases. The reason is the recognized rule that if a man remains silent when he ought to speak, he will be debarred from speaking later. Qui tacet consentire videtur or silent means consent. (Gabriel vs. Baens, 56 Phil. 314) The exceptions to this rule are the following: 1. Where no good reason exists for the party to comment on the act or declaration as when the act or declaration was not specifically directed to the party who remained silent (80 A.L.R., Anno., 1272) 2. When the party had no opportunity to comment on the act or declaration; (People vs. Ranario, 49 Phil. 220) 3. Where the act or declaration was made in the course of an official investigation; (U.S. vs Dela Cruz 12 Phil. 87) WHAT IS THE BASIS OF THE RULE ON ADMISSION BY SILENCE?

165

www.rkmfiles.net

The basis of such rule is that the natural reaction of one accused of the commission of a crime or of the implication therein is to deny the accusation if it is unjust or unfounded. (Martin, Revised Rules on Evidence, p. 252 citing Mathews vs. State, 55 Ala, 187, 28 Ann. Rep. 698) DEFINE CONFESSION The declaration of an accused acknowledging his guilt of the offense charged or of any offence necessarily included therein, may be given in evidence against him. (Sec. 33, Rule 130). DISTINGUISH CONFESSION FROM ADMISSION A confession as distinguished from an admission is a declaration made at any time by a person voluntarily, without compulsion or inducement, stating or acknowledging that he has committed or participated in the commission of a crime. The term admission on the other hand is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgement of the guilt of the accused or of criminal intent to commit the offense with which he is charged. (U.S. vs. Corraled, 28 Phil. 362; U.S. vs. Razon & Tayag, 37 Phil. 856) CLASSIFY CONFESSIONS AND DEFINE EACH A confession may be judicial or extra-judicial. A judicial confessions is that made in the trial court in the due course of legal proceedings, whereas an extrajudicial confession is that made elsewhere, either in a prior trial, in the preliminary investigation, or out of court to any person. (Nuevas, Ibid., p. 571 citing Underhill on Criminal Evidence, p. 241). WHEN IS A CONFESSION ADMISSIBLE? 695) A confession is admissible when it is voluntary. (People vs. Pulido, 85 Phil.

WHEN MAY A CONFESSION BE REJECTED? WHY? A confession may be rejected when the following requisites concur: 1. 2. 3. The confession is involuntary; and The confession is false (People vs. Villanueva, 98 Phi. 327; People vs. De Los Santos, 93 Phil. 83) The reason for the rule is that what the law abhors is compelling an accused, by means of force, violence, or intimidation, to tell a falsehood, and not compelling him by the same means to tell the truth. (People vs. Prias, L-13767, July 30, 1960) So that, even if a confession is involuntary, if it is proved or turns out to be true, the same is admissible. (Ibid).

IN ORDER TO RENDER A CONFESSION INVOLUNTARY ON THE GROUND OF FORCE AND VIOLENCE, IS IT REQUIRED THAT IT BE DIRECTLY EMPLOYED UPON THE PERSON OF THE ACCUSED? WHY? No, because it is enough that the force or violence were employed upon the person of his co-accused, in his presence and within his observation, such that he had reasonable grounds to believe that he would suffer the same maltreatment. (U.S. vs. Baluyot, 1 Phil. 451) WHEN IS THREAT SUFFICIENT TO RENDER A CONFESSION INVOLUNTARY? It must be a threat of bodily harm or injury and accompanied by overt acts showing determination to carry out the threat. (People vs. Cabrera, 82 Phil 839). WHEN IS A PROMISE OF REWARD OR LENIENCY SUFFICIENT TO RENDER A CONFESSION INVOLUNTARY? It must be a promise of immunity from or leniency in the criminal prosecution and made by a person who is in a position to grant the same. (People vs. Hernandez, 91 Phil. 334)

166

www.rkmfiles.net

AGAINST WHOM IS A CONFESSION ADMISSIBLE? WHY? GIVE THE EXCEPTIONS, IF ANY. A confession is admissible only against the accused who made it and not against his co-accused, for, as against the latter, the confession would be hearsay and res inter alios acta (People vs. Talledo, 85 Phil. 533) The exceptions to this rule are the following: a) When the confession of an accused implicating his co-accused is made judicially at a joint trial; (U.S. vs. Macamay, 36 Phil 893) b) When the offer in evidence of an extra judicial confession against a coaccused is not objected to; (People vs. Atienza, 83 Phil 576) c) When the co-accused against whom an extra-judicial confession is offered had, by his acts, conduct and declarations, adopted the confession as his own; (People vs. Atienza, supra) d) Where several accused, without collusion, made extra judicial confessions which are identical in essential details and corroborated by other evidence, each confession is admissible against the others; (People vs. Go, 88 Phil. 203) e) The confession of a conspirator is admissible against his co-conspirators provided it was made during the existence of the conspiracy; (People vs. Ramirez, L-5875), May 15, 1953) f) When the recitals in the extra judicial confession of an accused are corroborated in its important details by other proofs in the record, it may be admitted against the other accused. (People vs. Villanueva, L12687, July 31, 1962) WHAT IS THE EFFECT OF AN EXTRA JUDICIAL CONFESSION OF A THIRD PERSON TENDING TO EXCULPATE AN ACUSED? Unless such confession can be considered as part of the res gestae, it cannot be received in favor of the accused for the reason that the same is hearsay. (People vs. Catalino, L-25403, March 15, 1968) Besides, the court before which said extrajudicial confession is offered has ample power to determine its credibility, and the court may discard the same if it finds the confession in inherently improbable. (Ibid) WHAT IS THE PROBATIVE VALUE OF A CONFESSION? It depends on whether the confession is judicial or extrajudicial. A judicial confession, like a plea of guilty, is in law and in fact evidence of guilt of the most trustworthy kind, is conclusive upon the court and is sufficient to sustain a judgment of conviction. (People vs. Lastimoso, 83 Phil. 714) A extrajudicial confession is not sufficient for conviction unless corroborated by evidence of corpus delicti. (People vs. Mananla, L 13142, Jan. 30, 1959) STATE THE RULE ON SIMILAR ACTS AS EVIDENCE Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. (Section 34, Rule 130). WHAT IS THE REASON FOR THE RULE ON SIMILAR ACTS AS EVIDENCE? To admit the proof of crimes other that the particular one with the accused is charged would be unfair to the accused. It will compel the defendant to meet the charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issue, and thus diverts the attention of the court from the charge immediately before it. In fact it would be allowing evidence of collateral offenses as substantive evidence of the offense on trial (Martin, Revised Rules on Evidence, p. 290 citing 20 Am. Jur. 288-289 GIVE THE RULE ON UNACCEPTED OFFER. An offer in writing to pay a particular sum of money to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent

167

www.rkmfiles.net

to the actual production and tender of the money, instrument, or property. (Sec. 35, Rule 130) IN GENERAL, TO WHAT FACTS MAY A WITNESS TESTIFY? A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, exception as otherwise provided in these rules. (Sec. 36, Rule 130) WHAT IS HEARSAY EVIDENCE? Hearsay evidence is that which derives its value, not solely from the credit to be given to the witness upon the stand, but in part from the veracity and competency of some other person. (Clement vs. Packer, 125 U.S. 309) It is not limited to oral testimony; it also includes writings. (Nuevas, Ibid., p. 576 citing 20 Am. Jur. 400)? IS HEARSAY EVIDENCE ADMISSIBLE? WHY? Hearsay evidence is not admissible because it knows of his own knowledge a witness can testify only on facts which he knows of his own knowledge (Sec. 36, rule 130); and, furthermore, to preserve the right of parties to cross-examine the original witness or person claiming to have knowledge of the transaction or occurrence. (People vs. Pagkaliwagan, 76 Phil. 457) The right to cross-examine the adverse partys witnesses is essential in the administration of justice for it is the only means of testing the credibility of witnesses and their testimony, and this right is not available in respect of hearsay evidence since the declarant is not in court. (Nuevas, Ibid., p. 576 citing Donnelly vs. United States, 228 U.S. 243) GIVE THE EXCEPTIONS TO THE HEARSAY RULE. The following: a) b) c) d) e) f) g) h) i) j) k) Dying declaration; Declaration against interest; Act or declaration about pedigree; Family reputation or tradition regarding pedigree; Common reputation; Part of the res gestae; Entries in the course of business; Entries in official records; Commercial lists and the like; Learned treatises; and Testimony or disposition at a former proceeding.

GIVE THE RULE ON DYING DECLARATION The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. (Sec. 37, Rule 130, Revised Rules on Evidence) WHEN IS DYING DECLARATION ADMISSIBLE? When the following requisites concur: a) The declaration refers to the cause and surrounding circumstances of the declarants death; b) The declaration was made under consciousness of impending death; c) The declaration is offered in a criminal case wherein the subject of inquiry is the declarants death. (Sec. 37, Rule 130; People vs. Sagrario, L-18659, June 29, 1965) WHAT IS A DYING DECLARATION?

168

www.rkmfiles.net

A dying declaration is that made by a person at the point of death, concerning the case and circumstances of the injury from which he thereafter dies. (Moran, Remedial Law Review, p. 619) WHY IS A DYING DECLARATIN ADMISSIBLE? DISCUSS BRIEFLY. A dying declaration is admissible on two grounds, namely, (a) necessity and (b) trustworthiness. Necessity, because the declarantss death makes it impossible to obtain his testimony is the best evidence of the crime. (U.S. vs. Virrey, 37 Phil. 618) Trustworthiness, because it is made at the point of death, a situation so solemn and awful as creating an obligation equal to that created by a positive oath administered in a court of justice. (U.S. vs. Gil, 13 Phil. 530) WHAT IS THE PROBATIVE VALUE OF A DYING DECLARATION? It must be received with utmost care and given the same weight as the testimony of a living witness. (People vs. Almendralejo, 48 Phil. 268) IS IT NECESSARY THAT THE DECLARANT STATE EXPLICITY THAT HE HAD GIVEN HOPE OF LIVING? No. it is not necessary to the validity or admissibility of a declaration that the declarant expressly state that he has lost all hope of recovery; it is sufficient that the circumstances are such to lead inevitably to the conclusion that at the time the declaration was made, the declarant did not expect to survive the injury from which he actually died. (Peole vs. Serrano, 58 Phil. 669) IS THE INSTANTEOUS DEATH OF DECLARANT SHOULD FOLLOW IMEDIATELY AFTER MAKING HIS DYING DECLARATION? No. The force of dying declaration is not affected by the circumstances that the declarant did not die until many hours or days afterwards provided he finally did die from the wound, whose gravity did not diminish from the time he made his declaration until the hour of his death. (Ruperto Martin, Revised Rules on Evidence, Vol. IV, Premium Book Store, 1989 Ed., pp. 311-312 citing Moore vs. State, 96 Ten. 209 and U.S. vs. Mallari, 29 Phil. 14) WHAT IS THE EFFECT OF RECOVERY OF DECLARANT FATAL WOUND INFLICTED UPON HIM ON THE ADMISSIBILITY OF DYING DECLARATION? The admissibility of the dying declaration of a deceased person with respect to the person who inflicted the fatal injury depends upon whether at the time the declaration was made the deceased believed that the injury receive would be fatal. The circumstances that he thereafter recovered sufficiently to engender the belief that he was going to live, does not render the declaration inadmissible, where death in fact resulted from the same injury. (People vs. Lara, 54 Phil. 96). IS THE OPINION CONTAINED IN A DYING DECLARATION ADMISSIBLE? Opinions in dying declarations are inadmissible. Dying declarations should consist solely of facts, and not of conclusions, mental impressions or opinions. Thus, a dying statement that the deceased thought or believed the accused had shot him, or that he expected the accused would try to kill him, is inadmissible where the deceased did not see his assailant, but based his declaration wholly upon threats which had been made by the accused. (Ruperto Martin, Ibid., p. 318 citing state vs. Horn, 204, No. 528, 103 S.W. 96) EXPLAIN BRIEFLY THE MEANING OF CONSCIOUSNESS OF AN IMPENDING DEATH. The declarants belief must be that death was inevitable, not merely possible, nor even probably, but sure. In other words, the declarant, at the time he makes his declaration, must have no hope of recovery. If at the time he had an expectation, even only a little hope of recovery, the declaration would be inadmissible. Fear, or even belief, that illness end in death, if consistent with hope, is not sufficient. There must be a settled hopeless expectation. (Mora, Ibid., p. 621)

169

www.rkmfiles.net

GIVE THE RULE ON DECLARATION AGAINST INTEREST. The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarants own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third person. (Sec. 38, Rule 130) WHY IS A DECLARATION AGAINST INTEREST ADMISSIBLE? DISCUSS BRIEFLY. It is admissible on two grounds, name, (a) necessity, and (b) trustworthiness. Necessity, because the declarant is dead or not available as witness, and trustworthiness, because it is against the declarants interest, and therefore, a guarantee of its truth. (Jaime R. Nuevas, Remedial Law Reviewer, 1971 Ed., A & J Publishing, p. 581 citing Fitch vs. Chapman, 10 Conn. 11; Smith vs. Moore, 142 N.C. 277) WHAT ARE THE REQUIREMENTS FOR ADMISSION OF DECLARATION AGAINST INTEREST? To render a statement admissible as a declaration against interest the following requirements must be met: 1. Declarants must be unavailable as a witness 2. The declaration must have related a fact against the apparent pecuniary or proprietary or moral interest of declarant when his statement was made. 3. The declaration must have concerned a fact personally cognizable by declarant. 4. That circumstances must render it improbable that a motive to falsify existed . (Ruperto Martin, Ibid., p. 327 citing C.J.S. 959) GIVE THE RULE ON ACT OR DECLARATION ABOUT PEDIGREE. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occured before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. (Sec. 39, Rule 130) WHEN IS AN ACT OR DECLARATION ABOUT PEDIGREE ADMISSIBLE? When the following requisites concur: 1. 2. 3. 4. The declarant is related to the person whose pedigree is in question; Such relationship is shown by evidence other than the act or declaration; The act or declaration was made ante litem motam; and The declarant is dead or unable to testify. (Sec. 39, Rule 130)

WHY IS AN ACT OR DECLARATION ABOUT PEDIGREE ADMISSIBLE? DISCUSS BRIEFLY? It is admissible on two grounds, namely (a) necessity and (b) trustworthiness. Necessity, because facts about pedigree are usually those which occurred long before the trial and known to only a few persons, and trustworthiness, because those facts are matters which members of the family are presumed to be interested in ascertaining the truth. (J.Nuevas, Ibid., p. 582 citing Fulkenson vs. Holmes, 117 U.S. 389; III Wigmore 218; Tracys Handbook, 62 Ed., p. 259 WHAT IS THE SCOPE OF THE TERM PEDIGREE? The word pedigree includes:

170

www.rkmfiles.net

1. 2. 3. 4. 5. 6. 7. 8.

Relationship; Family genealogy; Birth; Marriage; Death; Dates when the places where these facts occurred; Names of relatives; and Facts of family history intimately connected with pedigree. (Sec. 39, Rule 130)

GIVE THE RULE ON FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE. The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. (Sec. 40, rule 130) WHEN IS FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE ADMISSIBLE? When the following requisites concur: 1. the reputation or tradition must refer to the pedigree of any member of such family; 2. the reputation or tradition must have been formed previous to the controversy, i.e., ante litem motam and 3. the witness testifying thereto must be a member of the familiy. (R. Martin, Ibid., p. 340) MAY FACTS OF PEDIGREE BE PROVED BY COMMON REPUTATION? No; fact of pedigree, if provable by reputation, can be proved only by reputation in the family, but not by reputation in the community, except marriage which is provable by both family and common reputation. (Sison vs. Amblada, 30 Phil. 118) GIVE THE RULE ON COMMON REPUTATION Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation. (Sec. 41, Rule 130) WHEN IS EVIDENCE OF COMMON REPUTATION ADMISSIBLE? When the following requisites concur: 1. The reputation refers to a matter of public or general interest more than thirty (30) years old; or to marriage or moral character; 2. The reputation is ancient: 3. The reputation was formed ante litem motam; and 4. The reputation is one formed in the community interested. (Sec. 41, Rule 130) WHY IS EVIDENCE OF COMMON REPUTATION ADMISSIBLE? DISCUSS BRIEFLY. It is admissible on two ground, namely, (a) necessity and (b)trustworthiness. Necessity, because the fact to be proved is of too ancient a date such that eyewitnesses are no longer available, and trustworthiness, because if the reputation had existed for so long a time, there be some truth to it. (J. Nuevas, Ibid., p. 584 Mc Kinnon vs. Bliss, 21 N.Y. 206; Reg. vs Bedforshire, 4E. 535)

171

www.rkmfiles.net

WHEN IS EVIDENCE OF COMMON REPUTATION NOT HEARSAY? EXPLAIN BRIEFLY. It is not hearsay if common reputation is the fact in issue, or part thereof. Thus, in a prosecution for maintenance of a house of ill-fame, a gambling house, or an opium joint, the reputation of the house itself is the issue, so that testimony of witnesses thereto is not hearsay. (U.S. vs. Choa Chick, 36 Phil. 831) GIVE THE RULE ON RES GESTAE. Statement made by a person while a startling occurrence is taking place or immediately prior to subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res getae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. WHAT STATEMENTS MAY BE ADMISSIBLE IN EVIDENCE AS PART OF THE RES GESTAE? They are of two classes: 1. Spontaneous statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof; and 2. Statements accompanying an equivocal act material to the issue, and giving it legal significance. 3. The former is referred to as spontaneous exclamations, while the latter as verbal acts. DEFINE RES GESTAE Res gestae literally means, thing done, and includes the circumstances, facts and declarations incidental to the main fact or transaction necessary to illustrate its character. It is so connected therewith as to constitute a part of the transaction. (R. Martin, Ibid., p. 349 citing Underhills Criminal Evidence, p. 348) WHAT IS ADMISSIBLE AS PART OF THE RES GESTAE? What is admissible as part of the res gestae is not the details of an occurrence, but the human assertions or statements about those details. WHAT ARE THE REQUISITES OF SPONTANEOUS STATEMENTS? The requisites for the admissibility of this kind of evidence as an exception to the rule excluding hearsay are the following: 1. Statements must have been made while a startling occurrence is taking place or immediately prior or subsequently thereto; 2. Such statements must be spontaneous; and 3. Such statements must relate to the circumstances of the startling occurrence. (R. Martin, Ibid., p. 350- 351 citing 32 C.J.S. and People vs. Ricaplaza, 23 SCRA 374) WHAT IS THE BASIS OF THE RULE ON RES GESTAE? The principle rests upon the common experience that utterances made under such circumstances are devoid of self-interest, and are in the same category as exclamations. The probability of falsehood is so remote as to be negligible. (People vs. Gondayao, 30 SCRA 226) WHAT ARE THE REQUISITES OF VERBAL ACTS? The requisites of verbal acts are: 1. The res gestae is an equivocal act; 2. The equivocal act must be material to the issue;

172

www.rkmfiles.net

3. The statement in question must be necessary for the understanding of the equivocal act; and 4. The statement must accompany the equivocal act. (J. Nuevas, Ibid., p. 587 citing Tracys Handbook, 62 Ed., p 22). WHY ARE SPONTANEOUS EXCLAMATIONS AND VERBAL ACTS ADMISSIBLE? DISCUSS BRIEFLY. They are admissible on two ground, namely, (a) necessity and (b) trustworthiness. Necessity, because such natural and spontaneous utterances are more convincing than the testimony of the same person on the stand; and trustworthiness, because those statements are made instinctively. (Jaime Nuevas, Ibid., p. 587 citing Mobile vs. Ascraft, 48 Ala. 31 and Wesley vs. State, 53 Ala. 182) DISTINGUISH BETWEEN A DYING DECLARATION AND A DECLARATION AS PART OF THE RES GESTAE. If the requsites of a dying declaration do not concur, the declaration may be admitted as part of the res gestae. (People vs. Talledo, 85 Phil. 533) WHAT IS AN EQUIVOCAL ACT FOR THE PURPOSE OF THE RULE ON VERBAL ACTS? An equivocal act is one susceptible of various interpretations. (Allen vs. Duncan, 11 pick 308) WHAT ARE VERBAL ACTS? ILLUSTRATE. Verbal acts are statements accompanying an equivocal act material to the issue and giving it legal significance. Such declarations are called verbal acts, because they are considered as verbal parts of the equivocal or ambiguous acts which they explain. For example, when one delivers money to another, such act does not by itself show whether the money is intended, say as a gift or as a payment of a debt. But if the act of delivery is accompanied by the statement that the money is for payment of a debt, or is a birthday gift, the statement gives legal significance to the act. MAY AN EQUIVOCAL ACT EXTEND OVER A LONG PERIOD OF TIME? MAY THE STATEMENTS NECESSARY FOR AN UNDERSTANDING OF SUCH EQUIVOCAL ACT BE ADMISSIBLE AS VERBAL ACTS? The equivocal act may extend over a long period of time, and during that period, those statements that are necessary for an understanding of the meaning of said equivocal act, are admissible as verbal acts. If a man and a woman are cohabiting together and for a certain period of time they have been appearing in public together, there is here an equivocal conduct which may be interpreted either as licit or illicit. According to the present rule, any statements made by the parties during such equivocal conduct showing it to be matrimonial, meretricious or otherwise, are admissible as verbal acts. (Morann, Ibid., p. 636 citing Matter of Taylor, 9 Paige (N.Y.), 611) GIVE THE RULE ON ENTRIES IN THE COURSE OF BUSINESS. Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to known the facts therein stated, maybe received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty (Sec. 43, Rule 130) WHEN ARE ENTRIES IN THE COURSE OF BUSINESS ADMISSIBLE? When the following requisites concur: 1. The entries must have been made at or near the time of the transaction to which they refer;

173

www.rkmfiles.net

2.

The person who made the entry must be, at the time the entry is presented as evidence, deceased, outside of the Philippines or unable to testify; 3. The person who made the entry must be in a position to know the facts there in stated at the time he made the entries; 4. The entries must have been made in his professional capacity or in the performance of duty; and 5. The entries must have been made in the ordinary or regular course of business. (Ruperto G. Martin, Revised Rules on Evidence, vol. IV. 1989 Ed., p. 363) WHY ARE ENTRIES IN THE COURSE OF BUSINESS ADMISSIBLE? DISCUSS BRIEFLY. They are admissible on two grounds, namely, (a) necessity, and (b trustworthiness. Necessity, because the entrant is dead or not available as witness, and no equally satisfactory proof of the entry can be had; and trustworthiness, because a man who makes regular entries for purposes of business or duty usually makes them with accuracy. As these entries are relied upon by businessmen everyday they can be relied upon the courts. (J. Nuevas, Ibid., p. 589 citing Welsh vs. Barret, 15 Mass. 380 and Tracys Handbook, 62 Ed., p. 276) IN SHORT, TO WHAT KIND OF ENTRIES DOES THIS RULE REFER? It refers to an entry made by a person whose business or duty it was to make the entry, and which appears to be part of a regular system of entries kept in that establishment. (Jaime Nuevas, Ibid., p. 590 citing ODay vs. Spencer, 189 Pac. 394; Kibbe vs. Bancraft, 77 III. 19) IF THE ENTRANT IS ALIVE WOULD HIS ENTRY BE RECEIVABLE AS INDEPENDENT EVIDENCE? No; the entrant must be presented as witness. However, while on the stand, he can refer to his entry as memorandum to refresh his memory. (Cang Ui vs. Gardner, 34 Phil. 376). But, if notwithstanding the aid of his entry as a memorandum, the entrant cannot recollect the facts stated therein, and then his entry is admissible as independent evidence, provided all the other requisites for its admissibility are present. (Shove vs. Wiley, 18 Mass. 558) GIVE THE RULE ON OFFICIAL ENTRIES. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty especially enjoined by law, are prima facie evidence of the facts therein stated. (Sec. 44, Rule 130) WHEN ARE ENTRIES IN OFFICIAL RECORDS ADMISSIBLE? To render such entries admissible the following requisites concur: 1. 2. 3. The entry must be made by a public officer or by another person especially enjoined by law to do so; It must be made by a public officer in the performance of a duty specially enjoined by law; and The entrant must have personal knowledge of the facts stated by him. (Ruperto Martin. Ibd., p. 370 citing V. Wigmore on Evidence, p.

WHY ARE ENTRIES IN OFFICIAL RECORDS ADMISSIBLE? DISCUSS BRIEFLY. They are admissible on two grounds, namely, (a) necessity, and (b) trustworthiness. Necessity, because litigations are numberless in which the testimony of public officials is required, and trustworthiness, because the law reposes a particular confidence in public officials such that is presumes that they will discharge their duties with fidelity and accuracy. (Antillon vs. Barcelon, 37 Phil. 148) WHAT IS THE PROBATIVE VALUE OF ENTRIES IN OFFICIAL RECORDS?

174

www.rkmfiles.net

They are prima facie evidence of the fact therein entered. (Sec. 44, Rule 130) GIVE THE RULE ON COMMERCIAL LISTS. Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to proved the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. (Sec. 45, Rule 130). WHEN ARE COMMERCIAL LIST AND THE LIKE ADMISSIBLE? When the following requisites concur: 1. 2. 3. such statements are contained in a list; the compilation is published for use by person engaged in that occupation; and it is generally used and relied upon by them therein. (Ruperto Martin, ibid., p. 378)

WHEN ARE THESE COMMERCIAL LISTS AND THE LIKE ADMISSIBLE? They are admissible if published for use by persons engaged in that occupation, and is generally used and relied upon by them. (Sec. 45, Rule 130) GIVE THE RULES ON LEARNED TREATISES. A published treatise, periodical or pamphlet on a subject of history, law, science or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise periodical or pamphlet is recognized in his profession or calling as expert in the subject. (Sec. 46, Rule 130) WHEN ARE LEARNED TREATISES ADMISSIBLE? They are admissible if the fact therein stated can be judicially noticed, or if another expert testifies that the author is a recognized expert on the subject. (Sec. 46, Rule 130). GIVE THE RULE ON TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING. The testimony or deposition of a witness deceased or unable to testify, given in a former case of proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. (Sec. 47, Rule 130) WHAT ARE THE REQUISITES IN ORDER THAT THE TESTIMONY OR DEPOSITION OF A WITNESS AT A FORMER PROCEEDING MAY BE ADMISSIBLE AS EVIDENCE IN A SUBSEQUENT PROCEEDING? There are five requisites: 1. 2. 3. 4. 5. That the testimony was rendered in a former case; Between the same parties; Relating to the same matter; That the witness is dead, out of the Philippines, or unable to testify in the subsequent proceeding; and That the adverse party has had an opportunity to cross-examine the witness. (Moran, Ibid., p. 645)

IS THE TESTIMONY GIVEN BEFORE A LEGISLATIVE OR ADMINSITRATIVE COMMITTEE ADMISSIBLE IN A SUBSEQUENT PROCEEDING?

175

www.rkmfiles.net

No, because they are not judicial in character. Besides, in legislative and administrative investigations, the rules of evidence are not binding. (Moran, Ibid., p. 645) DISCUSS BRIEFLY THE OPINION RULE. As a rule, a witness must confine his testimony to matters within his actual knowledge. He cannot be asked questions calling for his opinion or conclusions upon facts, which are for the court to make. (J. Nuevas, Ibid., p 595 citing 20 Am. Jur. 635). Hence, the opinion of a witness is not admissible. (Sec. 48, Rules 130) GIVE THE EXCEPTIONS TO THE OPINION RULE. The following are admissible: a) The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence. (Sec. 49, Rule 130) b) The opinion of a witness for which proper basis is given, may be received in evidence regarding. 1. The identity of a person about whom he has adequate knowledge; 2. A handwriting with which he has sufficient familiarity; and 3. The mental sanity of a person with whom he is sufficiently acquainted. c) The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person. (Sc. 50, Rule 130) WHEN IS EXPERT EVIDENCE ADMISSIBLE? When the following requisites concur: a) The fact to be proved is one requiring expert knowledge; and b) The witness is really an expert. (Nuevas, Ibid., p. 595 citing 20 Am. Jur. 647649) WHAT IS MEANT BY QUALIFYING THE WITNESS? HOW IS IT DONE? Qualifying the witness means proving that the witness presented is an expert, and this is done by asking him preliminary questions as to his education, training, experience, and the like. (Nuevas, Ibid., p. 596 citing Tracys Handbook, 62 Ed., p. 207) WHAT IS MEANT OF OPINION EVIDENCE? Opinion evidence as the term is used in law, means the testimony of a witness, given or offered in the trial of an action, that the witness is of the opinion that some fact pertinent to the case exists or does not exists, offered as proof of the existence or non-existence of the fact. (R. Martin, Ibid., p. 396 citing 20 Am. Jur. 634) WHAT IS THE PROBATIVE VALUE OF EXPERT TESTIMONY? Expert testimony no doubt constitutes evidence worthy of meeting consideration although not exclusive on questions of a professional character. Courts of justice, however, are not bound to submit their findings necessarily to such testimony. They are free to weigh, them, and they can give or refuse to give them any value as proof, or they can even counter-balance such evidence with the other elements of conviction which may have been adduced during the trial. (R. Martin, Ibid., p. 409 U.S. vs. Trono, et. al., 3 Phil. 219-220). DEFINE EXPERT EVIDENCE. Expert Evidence may be defined as the testimony of one possessing in regard to a particular subject or department of human activity, knowledge not usually acquired by other persons. (U.S.A vs Gil, 13 Phil. 530) WHEN IS EXPERT EVIDENCE NECESSARY?

176

www.rkmfiles.net

Expert evidence is necessary when there are certain matters which do not come within the knowledge of ordinary witnesses. (Moran, Ibid., p. 650) WHEN IS EXPERT EVIDENCE NECESSSARY TO PROVE THE GENUINENESS OF HANDWRITING? When the genuineness of handwriting is to be proven by comparison expert evidence is necessary. Whether or not the handwriting in questions is similar to other writings of the same person is a matter which requires the testimony of a man who has been trained, or has actual skill or knowledge on the same. (U.S. vs. Santiago, 41 Phil. 793,802) WHEN IS EXPERT EVIDENCE NECESSARY TO PROVE MENTAL INSANITY? Mental insanity may be proven by the opinion of ordinary witnesses, but when the mental disease is to be inferred from an examination and observation of its symptoms, the opinion of an expert is necessary. (Torres vs. Lopex, 48 Phil. 772) IS EXPERT EVIDENCE NECESSSARY IN THE IDENTIFICAITON OF FINGERPRINTS? Yes, because it is a science requiring close study. (People vs. Medina, 59 Phil. 330) GIVE THE RULES GOVERNING CHARACTER EVIDENCE IN CRIMINAL CASES. The following: a) The accused may prove his good moral character which is pertinent to the moral involved in the offense charged. b) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged. c) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. (Sec. 51, Rule 130). DEFINE CHARACTER Character is defined as that combination of properties, qualities or peculiarities which distinguishes one person from others. (Martin, Ibid., p. 420 citing The Cmaberlayne Trial Evidence, p. 578) IS EVIDENCE OF GOOD CHARACTER OF THE ACCUSED ADMISSIBLE IN CRIMINAL CASES? The good character of an accused is admissible in evidence to show that improbability of his doing the act charged. The principle upon which good character may be proven is, that it affords a presumption against the commission of crime. This presumption arises from the improbability, as a general rule, as proven by common observation and experience that a person who has uniformly pursued an honest and upright course of conduct will depart from it and do an act so inconsistent with it. Such a person may be overcome by temptation and fall into crime, and cases of that kind often occur, but they are exceptions; the general rule is otherwise. (Moran, p. 656 citing Cancemi vs. People, 16 N.Y. 501) MAY THE PROSECUTION PROVE THE BAD MORAL CHARACTER OF THE ACCUSED? The prosecution is not permitted to impeach the character of an accused, if the latter does not put it in issue by giving evidence in his support. (People vs. Hodges, 48 Phil. 592). The reason for the rule is that evidence of bad character may create an unfair prejudice against the acused who may be convicted not because he is guilty of the crime charged, but because of his being a crooked man. (Moran, Ibid., p. 657 citing People vs. Shen, 147 N. Y. 78, 41 N.E. 508) WHAT IS BURDEN OF PROOF?

177

www.rkmfiles.net

Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (Sec. 1, Rule 131)

DEFINE BURDEN OF EVIDENCE. Burden of Evidence is defined as that logical necessity which rests on a party at any particular time during a trial to create a prima facie case in his own favor, or to overthrow one when created against him. The burden of evidence is determined by the progress of the trial, and shifts to one party when the other party has produced sufficient evidence to be entitled as a matter of law to a ruling in his favor. (R. Martin, Ibid, p. 431 citing 2 Jones on Evidence. 2nd Ed., 355) WHO HAS THE BURDEN OF PROOF IN CRIMINAL CASES? WHY? In criminal cases, the burden of proof as to the offense charged lies on the prosecution (People vs. De Reyes, 82 Phil. 130), because the accused has in his favor the presumption of innocence. WHAT IS THE BURDEN OF PROOF TO REBUT THE PRESUMPTION OF CRIMINAL INTENT? When it has been proven that the accused committed the unlawful acts alleged, it is properly presumed that they were committed with full knowledge and with criminal intent, and it is incumbent upon them to rebut such presumption. (R. Martin, Ibid., p. 441 citing State vs. Sullivan, 34 Idaho 68, 199 p. 647, 17 A.L.R. 902) GIVE THE RULE ON CONCLUSIVE PRESUMPTION. The following are instances of conclusive presumptions: a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it; b) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of the landlord and tenant between them. (Sec. 2 Rule 131) WHAT IS A PRESUMPTION? A presumption is an inference as to the existence of a fact not actually known, arising from its usual connection with another which is known. (Jaime Nuevas, Ibid., p. 602 citing III C.R. Co. vs. Interstate Co., 206) WHAT ARE THE CLASSES OF PRESUMPTIONS OF LAW? There are two classes of presumptions of law: (a) conclusive presumptions or presumptions juris et de jure and (b) disputable presumption or presumption juris tantum. Conclusive presumptions are inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong. (Mercado vs. Santos, 66 Phil. 216) Disputable presumptions are those presumptions which may be disputed, opposed, refuted or rebutted. Such presumptions continue until overcome by proof to the contrary or by some stronger presumption. (R. Martin, Ibid., p 447 citing Annotation: Ann. Cas. 1917 E. 11221). IS PRESUMPTION EVIDENCE? No. The effect of a presumption is to do away with evidence. It is not evidence, even though it takes the place of it in the trial of causes. (R. Martin, Ibid., p. 448 citing The Chamberlayne Trial Evidence, p. 732) WHAT IS ESTOPPEL IN PAIS?

178

www.rkmfiles.net

Whenever a party has, by his own declaration, act or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it. (Sec. 2, par. (a)Rule 131) WHAT IS THE REASON FOR THE RULE ON ESTOPPEL IN PAIS? The doctrine of estoppel in pais or equitable estoppel is said to be dictated by the principles of morality and fair dealing and it intended to subserve the ends of justice. It concludes the truth in order to prevent fraud and falsehood and imposes silence on a party only when in conscience and honesty he should not be allowed to speak. (R. Martin, Ibid., p. 449 citing 19 Am. Jur. 641). Through estoppel an admission or presentation is rendered conclusive upon the person making it and cannot be denied or disproved as against the person relying thereon. (Art. 1431, New Civil Code of the Philippines) WHO MAY INVOKE ESTOPPEL? An equitable estoppel can only be invoked by one who is in a position to be misled by the misrepresentation with respect to which the estopped is invoked; and under circumstances where damage would result to him from the adoption by the person estopped of a position different from that which has been held out to be true. (Cristobal vs. Gomez, 50 Phil 810) GIVE THE INSTANCES WHERE THERE IS DISPUTABLE PRESUMPTIONS. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: 1. 2. 3. 4. That a person is innocent of crime or wrong; That an unlawful act was done with an unlawful intent; That a person intends the ordinary consequences of his voluntary act; That a person takes ordinary care of his concerns; That evidence wilfully suppressed would be adverse if produced; That money paid by one to another was due to the latter; That a thing delivered by one to another belonged to the latter; That an obligation delivered up to the debtor has been paid; That prior rents or instalments had been paid when a receipt for the latter ones is produced; That a person found in possession of a thing in the doing of a recent wrongful act is the taker and the doer of the act; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him; That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid, the money, or the delivery of anything, has paid the money or delivered the thing accordingly; That a person acting in a public office was regularly appointed or elected to it; That official duty has been regularly performed; That a court, or judge acting as such, whether in the Philippines or elsewhere was acting in the lawful exercise of jurisdiction; That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them; The private transactions have been fair and regular; That the ordinary course of business has been followed; That there was a sufficient consideration for a contract; That a negotiable instrument was given or indorsed for a sufficient consideration; That an endorsement of a negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; That a writing is truly dated; That a letter duly directed and mailed was received in the regular course of the mail; That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession.

5.
6. 7. 8.

9.
10. 11. 12. 13. 14. 15.

16. 17. 18. 19. 20. 21. 22. 23.

179

www.rkmfiles.net

WHAT IS THE REASON FOR THE PRESUMPTION OF INNOCENCE? A person accused of crime is presumed to be innocent until the contrary is proved and this presumption remains with him throughout the trial until it is overcome by proof of guilt beyond a reasonable doubt. The presumption of innocence is founded upon the first principles of justice and is not a mere form, but a substantial part of the law. The presumption of innocence is a conclusion of law in favor of the accused, whereby his innocence is not only established but continues until sufficient evidence is introduced to overcome the proof which the law has created namely, his innocence. When a doubt is created, it is the result of proof, and not the proof itself. The courts will not impute a guilty construction or inference compatible with innocence arises therefrom with equal force and fairness. In fact, it is always the duty of the court to resolve the circumstances of evidence upon a theory of innocence rather than upon a theory of guilt where it is possible to do so. The accused is not to be presumed guilty because the facts are consistent with his guilt; this will be done where the facts are inconsistent with his innocence. (Vicente J. Francisco, The Revised Rules of Court in the Philippines (Evidence), Vol, VII, Part I, 1990 Ed., p. 79-80 citing Whartons Criminal Evidence, 11th Ed., Sec. 72).

DISTINGUISH PRESUMPTION OF INNOCENCE FROM REASONABLE DOUBT. In making the distinction between the terms presumption of innocence and of reasonable doubt, it has been stated that presumption of innocence is a conclusion drawn by law in favor of a citizen , while reasonable doubt is a condition of mind produced by proof resulting from evidence in the case. The former is regarded as evidence, introduced by the law to be considered by the court, while the latter is the result of insufficient proof. (Vicente J. Francisco, Ibid., 81 citing 10 Encyclopedia of Evidence, 625). EXPLAIN THE PRESUMPTION THAT AN UNLAWFUL ACT WAS DONE WITH AN UNLAWFUL INTENT. The general rule is that, if it is proved that the accused committed an unlawful act charged, it will be presumed that the act was done with a criminal intention, and it is for the accused to rebut this presumption. The act in itself is evidence of the intent. (Vicente J. Francisco, Ibid., p. 82 citing 16 C.J. 81) EXPLAIN THE PRESUMTION THAT A PERSON INTENDS THE ORDINARY CONSEQUENCES OF HIS VOLUNTARY ACT. Though it is maxim of law, as well as the dictate of charity, that every person is to be presumed innocent until he is proved to be guilty, yet it is a rule equally sound that every sane person must be supposed to intended that which is the ordinary and natural consequences of his own purposed act. (V.J. Francisco, Ibid., p. 84 citing 3 Green Evidence, 15th ed., 13) EXPLAIN THE PRESUMPTION THAT A PERSON INTENDS THE ORDINARY CONSEQUENCES OF HIS VOLUNTARY ACT. Men of sound mind are presumed to intend the natural and necessary consequences of acts which they intentionally perform. (Ruperto G. Martin, Revised Rules on Evidence, Vol. IV 1989 ed., p. 465 citing 1 Jones on Evidence, 2 nd Ed., 210). It is said that man intends that consequence which he contemplates and which he expects to result from his act, and he, therefore, must be taken to intend every consequence which is the natural and immediate result of any act which he voluntarily does. (Ibid). IN ORDER THAT THE ADVERSE PRESUMPTION FROM SUPPRESSION OF EVIDENCE MAY ARISE, WHAT ARE THERE REQUISITES? The following must concur:

180

www.rkmfiles.net

a) b)

The suppression is wilful; (Sec. 3, Rule 131) The suppression is not in the exercise of a privilege; (U.S. vs. Melchir, 2 Phil. 588) c) The evidence suppressed is not merely corroborative or cumulative; (People vs. Tuazon, 56 Phil. 649) and d) The evidence is at the disposal only of the suppressing party. (People vs. Otero, 51 Phil 201) WHAT IS THE EFFECT OF NON-PRODUCTION OF MATERIAL EVIDENCE BY A PARTY? Non-production of evidence that would naturally have been produced by an honest and, therefore,, fearless claimant permits the inference that its tenor is unfavorable to the partys cause. (Marvel Corp. vs. David, 94 Phil. 376) IN ORDER THAT THE ADVERSE PRESUMPTION FROM POSSESSION OF STOLEN GOODS MAY ARISE, WHAT ARE THE REQUISITES? The following must concur: a) The crime of theft or robbery was committed; (U.S. vs. Carreon, 12 Phil.) 51). b) It was committed recently; (U.S. VS. Carlipio,, 18 Phil. 421) c) The property object of the crime was found in accuseds possession; (U.S. vs. Ungal, 37 Phil. 835) and d) The accccused is unable to explain his possession satisfactorily; (U.S. vs. Espia, 16 Phil. 506) and, or for the application of the presumption of doer of the whole act. e) It must be shown that the goods were looted at the same time, in the same place and on the same occasion. (People vs. De Jose, CA-GR. No. 02352- CR, Jan. 31, 1963) WHAT PRESUMPTION ARISES FROM FABRICATION OF EVIDENCE? The presumption arises that the case is groundless and affects the whole mass of evidence presented by the party. (De Leon vs. Layco, 73 Phil. 588) WHAT IS THE SCOPE OF THE PRESUMPTION OF REGULARITY OF OFFICAL ACTS? It includes regularity of appointment and performance of duty (Tolentino vs Catoy, 82 Phil. 300) and applies to corporate officers. (J. Nuevas, Remedial Law Reviewer, 1971 ed., p. 605) IN THOSE CASES WHERE DEATH MAY BE PRESUMED, IS THERE A PRESUMPTION AS TO THE EXACT DATE OF DEATH? None, the exact date of death is a matter of proof. (J. Nuevas, Ibid., p 607 citing Davis vs. Briggs, 97 U.S. 628) WHEN ARE PRESUMPTIONS ADMISSIBLE? They are admissible when the facts from which they may be deduced are fully proven; a presumption cannot be made to rest on another presumption. (Cuaycong vs. Rius, 86 Phil. 170) WHAT IS THE EFFECT OF PRESUMPTIONS? Presumptions do not constitute evidence and have no weight as such, but only determined the party who has the duty of presenting evidence, and when that duty is met, presumptions recede. (Nuevas, Ibd., p. 608 citing Anno. 15 A.L.R. 881) In other words, presumptions merely aid in establishing a prima facie case and have no probative effect when countervailing proof is offered. (J. Nuevas, Ibid., p. 608 citing 20 Am. Jur. 171)

181

www.rkmfiles.net

GIVE THE RULE ON THE PRESUMPTION OF LEGITIMACY OR ILLEGITIMACY OF A CHILD. There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissolution of the marriage of the separation of the spouses. Whoever alleged the legitimacy or illegitimacy of such child must prove his allegation. (Sec. 4, Rule 131) HOW MAY THE EXAMINATION OF A WITNESS BE DONE? The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witnesses shall be given orally. (Sec. 1) MUST A WITNESS ANSWER ANY QUESTION ASKED? Yes, a witness must answer questions, although establish a claim against him (Sec. 3) WHAT ARE THE RIGHTS OF A WITNESS? The rights of a witness are: a) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; b) Not to be detained longer than the interests of justice require; c) Not to be examined exception as to matters pertinent to the issue; d) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or e) Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issued to a fact from which the fact in issue would presumed. But a witness must answer to the fact of his previous final conviction for offenses. (Sec. 3) STATE THE ORDER OF EXAMINATION OF AN INDIVIDUAL WITNESS The order in which individual witnesses may be examined is as follows: a) b) c) d) Direct examination by the proponent; Cross-examination by the opponent; Re-direct examination by the proponent; Re-cross-examination by the opponents. (Sec. 4) his answer may tend to

GIVE THE CONCEPTS AND PURPOSES OF DIRECT EXAMINATION; CROSS EXAMINATION; REDIRECT EXAMINATION AND RE-CROSS-EXAMINATION. Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. (Sec. 5) Cross-examination; its purpose and extent. Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. (Sec. 6) Re-direct examination; its purpose and extent. After the cross-examination pf the witness has been concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the cross-examination, may be allowed by the court in its discretion. (Sec. 7) Re-cross-examination. Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion. (Sec. 8)

182

www.rkmfiles.net

WHEN MAY A WITNESS BE RECALLED? After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interest of justice may require. WHAT IS A LEADING QUESTION? A leading question is one which suggests to the witness the answer which the examining party desires. (Sec. 10) ARE LEADING QUESTIONS ALLOWED ON DIRECT EXAMINATION? As a general rule, they are not allowed, except in the following cases a) On cross examination; b) On preliminary matters; c) When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind or a deaf-mute; d) Of an unwilling or hostile witness; or e) Of a witness who is an adverse party, or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. (Sec. 10) WHAT IS A MISLEADING QUESTION? A misleading question is one which assumed as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. It is not allowed (Sec. 10) HOW MAY THE ADVERSE PARTYS WITNESS BE IMPEACHED? A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. (Sec. 11) WHAT IS IMPEACHMENT OF A WITNESS? It is simply an attack on the credibility of a witness. (J. Nuevas, Remedial Law Reviewer, 1971 Ed., P. 611 citing Ballentiness Law Dict. 2nd Ed., p. 610) MAY A PARTY IMPEACH HIS OWN WITNESS? As a rule, no, except, if the witness is an unwilling or hostile witness or if the witness is an adverse party of an officer, director, or managing agent of a public or private corporation or a partnership or association which is an adverse party. (Sec. 12) WHEN MAY A WITNESS MAYBE CONSIDERED AS UNWILLING OR HOSTILE? A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify of his having misled the party into calling him to the witness stand. (Sec. 12) HOW MAY A WITNESS BE IMPEACED BY EVIDENCE OF INCONSISTENT STATEMENTS? Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. (Sec. 13)

183

www.rkmfiles.net

MAY EVIDENCE OF GOOD MORAL CHARACTER OF AN ACCUSED BE PRESENTED? As a rule, no. Evidence of the good character of a witness is not admissible until such character has been impeached. (Sec. 14) STATE THE RULES ON THE EXCLUSION AND SEPARATION OF WITNESSES On any trial or hearing, the judge may exclude from the court any witness not at the time under examination so that he may not hear the testimony of other witnesses. The judge any also cause witnesses to be kept separate and to be prevented from conversing with one another until all shall have been examined. (Sec. 15)

WHEN MAY A WITNESS REFER TO A MEMORADUM AND STATE THE PROCEDURE? A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly written or recorded; but in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross-examined the witness upon it, and may read it in evidence. So, also, a witness may testify from such a writing or record, though he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. (Sec. 16) STATE THE RULE WHEN PART OF AN ACT, DECLARATION OR WRITING IS GIVEN IN EVIDENCE BY ONE PARTY. When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act declaration, conversation, writing or record necessary to its understanding may also be given in evidence. (Sec. 17). GIVE THE RULE ON THE RIGHT TO INSPECT WRITING SHOWN TO WITNESS. Whenever writing is shown to witness, it may be inspected by the adverse party. (Sec. 18) DEFINE AND CLASSIFY DOCUMENTARY EVIDENCE Documentary evidence refers to any tangible object capable of expressing a fact, or which tend to establish the truth or untruth of matters at issue, and includes all kinds of documents, records and writings. (Nuevas, Ibid., p 614 citing Curtis vs. Bradley, 65 Conn 99) It may be classified into public and private documents. (Sec. 19). WHAT ARE PUBLIC DOCUMENTS? PRIVATE DOCUMENTS? Public documents are: a) The written official acts, or records of official acts of the sovereign authority, official bodies and tribunals, and public officers whether of the Philippines, or of a foreign country. b) Documents acknowledged before a notary public except last wills and testaments; and c) Public records, kept in the Philippines, of private documents required by law to be entered therein. WHAT IS THE PRE-REQUISITE FOR THE ADMISSIBILITY OF A PRIVATE DOCUMENT?

184

www.rkmfiles.net

It must be authenticated, which means that its due execution and authenticity must first be proved. (Sec. 20) HOW MAY A PRIVATE DOCUMENT BE AUTHENTICATED? In any of the following modes: a) By anyone who saw the document executed or written; or b) By evidence of the genuineness of the signature or handwriting of the maker. (Sec. 20) WHAT IS AN ANCIENT DOCUMENT? A document is ancient if the following requisites concur: a) b) c) The document is more than thirty years old; It is produced from a custody in which it would naturally be found if genuine; and It is unblemished by any alterations or circumstances of suspicion. (Sec. 21).

HOW MAY THE HANDWRITING OF A PERSON PROVED? The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. (Sec. 22)

WHAT DOES A PUBLIC DOCUMENT PROVE? Document consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. (Sec. 23) HOW MAY AN OFFICIAL RECORD BE PROVED? The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose may be evidenced by an official publication thereof of by a copy attested by the officer having the legal custody of the record or by his deputy and accompanied if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept and authenticated by the seal of his office (Sec. 24) WHEN A COPY OF A WRITING IS ATTESTED FOR THE PURPOSE OF EVIDENCE, WHAT MUST THE ATTESTATION STATE? Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. (Sec. 25) WHAT IS MEANT BY IRREMOVABILITY OF PUBLIC RECORD?

185

www.rkmfiles.net

It means that any public record an official copy of which is admissible in evidence must not be removed from the office in which it is kept except upon order of a court where the inspection of the record is essential to the just determination of a pending case. (Sec. 26) HOW MAY THE AUTHORIZED PUBLIC RECORD OF A PRIVATE DOCUMENT BE PROVED? An authorized public record of a private document may be proved: a) By the original record; or b) By a coy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (Sec. 27) GIVE THE RULE ON PROOF OF LACK OF RECORD. A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such records or entry. (Sec. 28). HOW MAY A JUDICIAL RECORD BE IMPEACHED? Any judicial record may be impeached by evidence of: a) want of jurisdiction in the court or judicial officer; b) collusion between the parties or c) fraud in the party offering the record, in respect to the proceedings. (Sec. 29) STATE THE RULE ON PROOF OF NOTARIAL DOCUMENTS. Every instrument duly acknowledged or proved an certified as provided by law, may be presented in evidence without further proof the certificate of acknowledgement being prima facie evidence of the execution of the instrument of document involved. (Sec. 30) HOW MAY THE ALTERATIONS IN A DOCUMENT BE EXPLAINED BY THE PARTY PRODUCING IT? The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. He may show that the alteration was made by another without his concurrence, or was made with the consent of the parties affected by it or was otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that, the document shall not be admissible in evidence. (Sec. 31) GIVE THE RULE ON SEALED AND UNSEALED PRIVATE DOCUMENTS. There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned. (Sec. 32). WHEN MAY DOCUMENTS WRITTEN IN UNOFFICIAL LANGUAGE BE ADMISSIBLE? Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. (Sec. 33) WHAT IS THE REASON AND PURPOSE FOR THE OFFER OF EVIDENCE? The court shall consider no evidence which has not been formally offered. The purposes for which the evidence is offered must be specified. (Sec. 34)

186

www.rkmfiles.net

WHEN SHALL OFFER OF EVIDENCE BE MADE? As regards the testimony of a witness, the offer must be made at the time the witness is called to testify. Documentary and object evidence shall be offered after the presentation of a partys testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing. (Sec. 35) WHEN SHALL OBJECTIONS TO EVIDENCE OFFERED BE MADE? Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the coursed of the oral examination of a witness shall be made as soon as the grounds therefore shall become reasonably apparent. An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court. In any case, the grounds for the objections must be specified. (Sec. 36) WHEN IS OBJECTION TO EVIDENCE UNNECESSARY? When it becomes reasonably apparent in the course of the examination of a witness that the questions being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class of questions. (Sec. 37) DISTINGUISH BETWEEN A GENERAL AND SPECIFIC OBJECTION. An objection is general when the grounds thereof are not stated, or are generally stated. An objection that the evidence offered is irrelevant, incompetent, or inadmissible is a general one. (Moran, Remedial Law Reviewer, p. 690 citing Rush vs. French, 1 Ariz., 99, 25 Pac. 819) An objection is specific where it states wherein or how or why the evidence is irrelevant or incompetent. (Moran, Ibid., Rush vs. French, supra) The general rule is that an objection must be specified. (Sec. 36) WHAT IS THE EFFECT OF A GENERAL OBJECTION? A general objection is sufficient, if on the face of the evidence objected to units relation to the rest of the case, there appears no purpose whatever for which it would have been admissible. Thus, it has been held that where there is a general objection to evidence and it is overruled, and the evidence is received, the ruling will not be held erroneous unless the evidence, in its essential nature, is inadmissible. Where the general objection is sustained, and the evidence excluded, the ruling will not be upheld, unless any ground in fact existed for the exclusion (6 Moran, Comments, p. 128, 1963 ed.) WHEN SHALL THE COURT RULE ON THE OBJECTIONS TO THE OFFER OF EVIDENCE? The ruling of the court must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented by the ruling (Sec. 38) SHOULD THE COURT STATE THE REASON FOR ITS RULING IN CASE OF OBJECTION TO EVIDENCE? The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon. (Sec. 38) WHEN MAY THE COURT STRIKE OUT AN ANSWER OF A WITNESS DURING THE TRIAL?

187

www.rkmfiles.net

Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be striken off the record. On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant or otherwise improper. (Sec. 39) STATE THE PROCEDURE IF THE COURT EXCLUDES DOCUMENTS OR THINGS OFFERED IN EVIDENCE. If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. (Sec. 40) WHAT IS THE DEGREE OF PROOF IN CRIMINAL CASES? In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. (Sec. 2, Rule 133) WHAT IS PROOF BEYOND REASONABLE DOUBT? Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in unprejudiced mind. (Sec. 2)

WHAT DEGREE OF PROOF IS NECESSARY FOR CONVICTION IN CRIMINAL CASES? A defendant in a criminal action shall be presumed to be innocent until the contrary is proved, and in case of reasonable doubt that his guilt is satisfactorily shown, he shall be entitled to an acquittal. (People vs. Bequino, 77 Phil. 629) Therefore, the guilt of the accused must be established by the prosecution by proof beyond reasonable doubt. WHAT ARE THE FACTORS TO BE CONSIDERED ON THE WEIGHT AND SUFFICIENCY OF TESTIMONIAL EVIDENCE? In determining where the superior weight of evidence on the issues involved lies the court may consider all the facts and circumstances of the case including the following: a) the witness manner of testifying; b) the intelligence of the witnesses, their means and opportunity of knowing the facts to which they are testifying; c) the nature of the facts to which the witnesses testify; d) the probability or improbability of the testimony of witnesses; e) the interest or want of interest of the witnesses; f) the personal credibility of the witnesses so far as the same may legitimately appear upon the trial, and g) the number of witnesses. (U.S. vs. Lasada, 18 Phil. 90) WHEN IS THE EXTRAJUDICIAL CONFESSION OF AN ACCUSED SUFFICIENT TO CONVICT? An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. (Sec. 3) WHAT IS THE CORPUS DELICTI?

188

www.rkmfiles.net

It is the fact of specific loss or injury. In homicide, the fact of death, whether or not feloniously caused is the corpus delicti (Cortez vs. Court of Appeals, G.R. No. L-32246, June 2, 1988) WHAT MANNER OF PROOF IS REQUIRED IN SELF-DEFENSE? Accused who claims self-defense has the burden to prove its elements by clear and convincing evidence. That evidence must be clear, satisfactory and convincing. (People vs. Macariola, 120 SCRA 92) WHEN IS CIRCUMSTANTIAL EVIDENCE SUFFICIENT FOR CONVICTION? Circumstantial evidence is sufficient for conviction if: a) There is more than one circumstance; b) The facts from which the inferences are derived are proven; and c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (Sec. 4) GIVE THE RULE ON SUBSTANTIAL EVIDENCE In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (Sec. 5) WHAT IS SUBSTANTIAL EVIDENCE? Substantial evidence has been defined to be such relevant evidenced as a reasonable mind might accept as adequate to support a conclusion. (Berenguer, Jr. vs. Court of Appeals, G.R. No. L-60287, Aug. 17, 1988) WHEN MAY THE COURT STOP THE PRESENTATION OF FURTHER EVIDENCE? The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. (Sec. 6) GIVE THE RULE ON THE EVIDENCE ON MOTION When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (Sec. 7) HOW MAY A PERSON PERPETUATE HIS OWN TESTIMONY? A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines, may file a verified petition in the court of the province of the residence of any expected adverse party. (Sec. 1) WHAT SHALL BE ALLEGED IN THE PETITION? The petition shall be entitled in the name of the petitioner and shall show (a) that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; (b) the subject matter of the expected action and his interest therein; (c) the facts which is he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; (d) the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and (e) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony. (Sec. 2)

189

www.rkmfiles.net

WHAT SHALL THE NOTICE OF PETITION CONTAIN, AND UPON WHOM, WHEN AND HOW SHALL IT BE SERVED? The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) days before the date of hearing the notice shall be served in the manner provided for service of summons. (Sec. 3) WHAT SHALL THE COURT DO IF IT IS SATISFIED THAT THE PERPETUATION OF TESTIMONY MAY PREVENT A FAILURE OR DELAY OF JUSTICE? If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination, and whether the deposition shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with Rule 24 before the hearing (Sec. 4) For the purpose of applying Rule 24 to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. (Sec. 5) GIVE THE RULE ON THE USE OF DEPOSITION. If a deposition to perpetuate testimony is taken under this rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provision of Sections 4 and 5 of Rule 24. (Sec. 6) IN SUCH A CASE, HOW AND WHERE SHALL THE PETITION BE FILED? If an appeal has been taken from a judgment of the Regional Trial Court or before the taking of an appeal if the time therefore has not expired, the Regional Trial Court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said Regional Trial Court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. (Sec. 7) WHAT SHALL THE MOTION SHOW? The motion shall show (a) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony. (Sec. 7) WHAT SHALL BE ORDERED BY THE COURT? If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the Regional Trial Court. (Sec. 7)

oo

190

www.rkmfiles.net

SPECIAL LAWS Republic Act No. 7659 - Heinous Crimes Act What are HEINOUS CRIMES? Heinous crimes are grievous, odious and hateful offenses, which by reason of their inherent or manifest wickedness, viciousness atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society. The heinous crimes are: 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) 12) 13) 14) 15) 16) Treason; Qualified Piracy/Mutiny Qualified Bribery Parricide Murder Infanticide Kidnapping and Serious Illegal Detention Robbery with Homicide Robbery with Rape Robbery with Intentional Mutilation Robbery with Arson Destructive Arson Rape committed by two or more persons Rape committed with the use of deadly weapon Rape with Homicide or attempted Rape with Homicide Rape attended by any of the following circumstances: The victim thereby became insane;

191

www.rkmfiles.net

The victim is less than 18 years old and the offender is an ascendant, a step-parent, guardian, relative by consanguinity or affinity within the 3rd civil degree, or the common law spouse of the victims parent; The victim is under custody of police or military authorities; The victim is a religious or a child less than 7 years old; The rape was committed in full view of the husband, parent, children or relative within the 3rd civil degree of consanguinity; The offender is afflicted with AIDS and is aware of it; The offender is a member of the AFP or PNP or any law enforcement agency; or The victim thereby suffered permanent physical mutilation.

17. Plunder 18. Violations of the Dangerous Drugs Act of 1972 as amended when the quantity of drugs involved in the violation is equal to or more than that provided under Section 20. 19. Carnapping where the owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of carnapping or on the occasion thereof. Nota Bene: The Death Penalty Law has been superseded by Republic Act # 9346. Republic Act No. 7080 - (Anti-Plunder Law) What is PLUNDER? Plunder is the crime committed by any PUBLIC OFFICER who by himself or in connivance with members of his family, relative by consanguinity, business associates, subordinate or other persons amasses, accumulates or acquires ill-gotten wealth through a COMBINATION or SERIES of overt or criminal acts in the aggregate amount or total value of at least P50, 000,000.00 (as amended by R.A. No. 7659). Who is a PUBLIC OFFICER under R.A. No. 7080? Any person holding any PUBLIC OFFICE in the Government of the Republic of the Philippines by virtue of (a) (b) (c) an appointment; election; or contract

Government of the Republic of the Philippines includes the National Government, and Any of its subdivisions, agencies or instrumentalities, including GOCCs and their subsidiaries. Who is a PERSON as defined under R.A. No. 7080? PERSON includes any NATURAL or JURIDICAL person. NATURAL PERSON a human being JURIDICAL PERSON organizations, or entities recognized by law as a person such as LGUs, Registered Corporations and Partnerships. What is an ILL-GOTTEN WEALTH? ILL-GOTTEN WEALTH means any asset, property, business, and enterprise or material possession of any person, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates.

192

www.rkmfiles.net

What are the means of acquiring ILL-GOTTEN WEALTH? (Overt or Criminal Acts) ILL-GOTTEN WEALTH can be acquired through the following means and similar schemes: 1) Misappropriation, conversion, misuse or malversation of public funds or raids on the public treasury; 2) Receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; 3) Illegal or fraudulent conveyance or disposition of assets belonging to the Government; 4) Obtaining, receiving or accepting directly or indirectly any share of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; 5) Establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or 6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the R.P. What COURT has the JURISDICTION to hear and try PLUNDER CASES? All PLUNDER SANDIGANBAYAN. CASES are within the original jurisdiction of the

What is the PRESCRIPTIVE PERIOD of the crime of PLUNDER? A plunder case prescribes in 20 years. However, the right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees is not barred by prescription, laches, or estoppel (does not prescribe). Amendments to R.A. 7080 Introduced by R.A. 7659 What amendments did R.A. 7659 introduce to R.A. 7080? R.A. 7659

1) AMOUNT - Lowered the amount from at least P75 million (R.A. 7080) to at
least P50 million.

2) IMPOSABLE PENALTY - Changed the imposable penalty of life imprisonment

with reclusion perpetua to death. Will the acquisition or accumulation of ill-gotten wealth by a public official totalling to at least 50 million pesos made through a single act constitute plunder? Suggested Answer: This has not been decided. In our opinion, however, a single act does not constitute plunder because the Anti-Plunder Law provides that the acquisition of illgotten wealth by a public official must be made through a COMBINATION or SERIES of acts. Republic Act No. 9160 - Anti-Money Laundering Act of 2001 What is MONEY LAUNDERING?

193

www.rkmfiles.net

Money laundering is a crime whereby the proceeds of an UNLAWFUL ACTIVITY are transacted; thereby making them appear to have originated from legitimate sources. What constitutes an UNLAWFUL ACTIVITY? Sec. 3 (i) - unlawful activity refers to any act or omission or series or combination thereof involving or having relation to the following: 1) Kidnapping for ransom; 2) Plunder; 3) Robbery and Extortion; 4) Jueteng and Masiao punished as illegal gambling under P.D. 1602; 5) Piracy; 6) Qualified Theft; 7) Swindling or Estafa; 8) Smuggling; 9) Hijacking; and 10) many others. MONEY LAUNDERING is committed by the following: a) Any person knowing that any monetary instrument or property represents, involves, or relates to, the proceeds of any unlawful activity, transacts or attempts to transact said monetary instrument or property; a) Any person knowing that any monetary instrument or property represents or involves the proceeds of any unlawful activity, performs or fails to perform any act as a result of which he facilitates the offense of money laundering; a) Any person knowing that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti-Money laundering Council (AMLC), fails to do so. Which has jurisdiction over Money Laundering cases? REGIONAL TRIAL COURT (RTC): If the accused is a PRIVATE PERSON. SANDIGANBAYAN: When committed by PUBLIC OFFICERS and PRIVATE PERSONS in conspiracy with such public officers. Republic Act No. 3019 - Anti-Graft and Corrupt Practices Act What are the CORRUPT PRACTICES of a PUBLIC OFFICER? 1) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense. 2) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law. 3) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given. 4) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination.

194

www.rkmfiles.net

5) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. 6) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. 7) Entering on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. 8) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. 9) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group. 10) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled. 11) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. Is a Christmas or birthday gift received by a public officer considered a corrupt practice? ANSWER: No if the gift was (a) unsolicited (given by the giver voluntarily and not demanded by the public officer), and (b) of small or insignificant value, and (C) was given as a mere token of gratitude or friendship according to local customs or usage (Sec. 14). Prohibition on PRIVATE INDIVIDUALS: It is unlawful for ANY PERSON having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the Government, in which such public official has to intervene. FAMILY RELATION includes the SPOUSE or RELATIVES by consanguinity or affinity in the 3rd CIVIL DEGREE. CLOSE PERSONAL RELATION includes close personal relationship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer.

195

www.rkmfiles.net

It is unlawful for any person knowingly to induce or cause any public official to commit any of the CORRUPT PRACTICES. Prohibition on CERTAIN RELATIVES: It is unlawful for the SPOUSE or for ANY RELATIVE, by consanguinity or affinity, within the 3rd civil degree, of the 1) President of the Philippines, 2) Vice President of the Philippines, 3) Senate President, and 4) House Speaker to INTERVENE directly or indirectly, in any business, transaction, contract or application with the Government (subject to the exceptions provided for under Sec. 5). Prohibition on MEMBERS OF CONGRESS: It is unlawful for any member of the Congress, during his/her term of office to ACQUIRE or RECEIVE any personal pecuniary interest in any specific business enterprise which will be directly and particularly favored or benefited by any law or resolution AUTHORED by him/her previously approved or adopted by the Congress during his/her term. Statement of Assets and Liabilities Every public officer MUST fileWHAT? A detailed and sworn statement of assets and liabilities, amounts and sources of his/her income, amounts of his/her personal and family expenses and the amount of income taxes paid. WHEN? 1) within 30 days after assuming office, 2) on or before April 15 of every year, 3) upon the expiration of his/her term of office, or 4) upon his/her resignation or separation from office. What COURT has the jurisdiction to try complaints for violations of R.A. 3019? SANDIGANBAYAN - has the original jurisdiction to hear and decide complaints for Graft and Corruption. Is a public officer who is being investigated or is facing charges of graft and corruption allowed to resign or retire during the pendency of the investigation or the case against him? No public officer is allowed to resign or retire pending an investigation, criminal or administrative or pending a prosecution against him, for any offense under R.A. No. 3019 or under the provisions of the RPC on bribery (Sec. 12). What should be done to the public officer accused of violation of R.A. No. 3019 during the pendency of the investigation or during the trial of his case? The public officer who is under investigation or is being tried for graft and corruption should be SUSPENDED FROM OFFICE pending the investigation or trial of his case. Is a public officer who was found guilty of the charges entitled to his retirement or gratuity benefits? No. Should the public officer be convicted by final judgment, he loses all retirement or gratuity benefits under the law. What about if the public officer has already received his retirement or gratuity benefits and he was convicted of the charges?

196

www.rkmfiles.net

The said convicted public officer who was found guilty of the charges must return or restitute the amount received as retirement or gratuity benefit to the Government. What about if the public officer was found INNOCENT of the charges against him? The public officer is acquitted; he is entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension. Republic Act No. 7610 - (Anti-Child Abuse Law) Who are children under the Act? Children refers to persons: a) Below 18 years of age, or b) Over 18 years of age but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition (Sec. 3). What is CHILD ABUSE? CHILD ABUSE refers to the maltreatment, whether habitual or not, of the child which includes any of the following acts: a) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment; b) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; c) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or d) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or his permanent incapacity or death. Offenses under this Act 1) CHILD PROSTITUTION and OTHER CHILD ABUSE Who are considered children exploited in prostitution and other sexual abuse? Children, whether male or female, who for money, profit or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse (Sec. 5). Who are liable for Child Prostitution and other Child Abuse? The following are punished with reclusion temporal in its medium period to reclusion perpetua: 1) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to the following: - Acting as procurer of a child prostitute; - Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; - Taking advantage of influence or relationship to procure a child as a prostitute; - Threatening or using violence towards a child to engage him as a prostitute; or - Giving monetary consideration, goods or other pecuniary to a child with the intent to engage such child in prostitution.

197

www.rkmfiles.net

2) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; 3) Those who derive profit or advantage there from, whether as a manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment. ACTS PUNISHABLE AS AN ATTEMPT TO COMMIT CHILD PROSTITUTION Who are guilty of attempt to commit child prostitution? Any person who, not being a relative of the child is found ALONE with the child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar establishments, 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; and Any person who receives services from a child in a sauna parlor, massage clinic, health club and other similar establishments. 2) CHILD TRAFFICKING Consummated Act of CHILD TRAFFICKING Who are liable for consummated act of child trafficking? Any person who engages in trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter. Attempt to Commit CHILD TRAFFICKING: There is an attempt to commit Child Trafficking: - When a child travels alone to a foreign country without valid reason therefor and without clearance issued by the DSWD or written permission or justification from the childs parents or legal guardian; - When a pregnant mother executes an affidavit of consent for adoption for a consideration; - When a person, agency, establishment or child-caring institution recruits women or couples to bear children for the purpose of child trafficking; - When a doctor, hospital, or child clinic official or employee, nurse, midwife, local civil registrar or any other person simulates birth for the purpose of child trafficking; or - When a person engages in the act of finding children among low-income families, hospitals, clinics, nurseries, day-care centers, or other child-caring institutions who can be offered for the purpose of child trafficking. 3) OBSCENE PUBLICATIONS AND INDECENT SHOWS Who are liable? a) Any person who hires, employs, uses, persuades, induces, or coerces a child: 1) to perform in obscene exhibitions and indecent shows, whether live or in video; 2) to pose or model in obscene publications or pornographic materials.

198

www.rkmfiles.net

b) Any ascendant, guardian, or person entrusted in any capacity with the care of the child who causes and/or allows a child to be employed or to participate in an obscene play, scene, act, movie or show or in any other acts covered by Sec. 9 of R.A. 7610. Other ACTS of NEGLECT, ABUSE, CRUELTY or EXPLOITATION and other Conditions Prejudicial to the Childs Development: 1) Committing any other act of child abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the childs development; 2) Keeping or having in his company a minor, 12 years or under or who is 10 years or more younger than his junior in any public place or private place, hotel, motel, beer joint, discothque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places; 3) Inducing, delivering or offering a minor to anyone prohibited to keep or have in his company a minor as provided in the preceding paragraph; 4) Allowing by any person, owner, manager or one entrusted with the operation of any public or private place or accommodation, whether for occupancy, food, drink, or otherwise, including residential places any minor; 5) 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. Who may FILE a COMPLAINT for a VIOLATION of R.A. 7610? The complaint may be filed by any of the following: 1) 2) 3) 4) 5) 6) 7) Offended party; Parents or guardians; Ascendant or collateral relative within the third degree of consanguinity; Officer, social worker or representative of a licensed child-caring institution; Officer, social worker of the DSWD; Barangay Chairman; At least 3 concerned responsible citizens where the violation occurred.

Republic Act No. 6539 - Anti-Carnapping Act of 1972 What is CARNAPPING? It is the taking, with intent to gain, of a motor vehicle belonging to another without the latters consent, or by means of violence against or intimidation of persons, or by using force upon things. DEFINITION OF TERMS: MOTOR VEHICLE is any vehicle propelled by any power other than muscular power using the public highways EXCEPT the following: Road rollers; Bulldozers; Trolley cars; Graders; Street-Sweepers; Fork-lifts; Sprinklers; Amphibian Trucks, and Lawn mowers; Cranes NOT USED ON PUBLIC HIGHWAYS, Vehicles, which run only on rails or tracks, and Tractors, trailers and traction engines of all kinds used exclusively for agricultural purposes. What constitutes unlawful taking in the crime of CARNAPPING?

199

www.rkmfiles.net

UNLAWFUL TAKING in CARNAPPING takes place when the owner or juridical possessor does not give his consent to the taking, or, if consent was given, it was vitiated (People vs. Tan, 323 SCRA 30). TAKING OF A MOTOR VEHICLE can be: 1) CARNAPPING under R.A. 6538, or 2) QUALIFIED THEFT under Art. 310 of the RPC, or 3) ESTAFA under Art. 315 paragraph 1 (b) of the RPC. CARNAPPING vs. QUALIFIED THEFT vs. ESTAFA CARNAPPING 1) Taking 2) with intent to gain, 3) of a motor vehicle 4) belonging to another 5) (a) without the latters consent, or (b) by means of violence against or intimidation of person, or (c) by using force upon things. QUALIFIED THEFT A] Art. 310, RPC 1)Taking 2) with intent to gain 3) of a motor vehicle 4) belonging to another 5) Without the latters consent 6) But without violence against or intimidation of persons or force upon things. B] Jurisprudence 1) Material or physical possession of the motor vehicle was transferred to the accused; (e.g. borrowed) 2) He misappropriated the same. ESTAFA 1) Physical and Juridical possession of the motor vehicle was transferred to the accused; (e.g. agency to sale) 2) He misappropriated the same.

Republic Act No. 6235 - ANTI-HIJACKING LAW How is the crime of HIJACKING committed? Hijacking is committed by: 1) Compelling the pilot to change in course or destination of a DOMESTIC AIRCARFT; 2) Seizing or usurping the control of a DOMESTIC AIRCAFT while it is in flight; 3) Compelling a FOREIGN AIRCRAFT to land in the Philippine territory; and 4) Seizing or usurping the control of the FOREIGN AIRCRAFT while it is within Philippine territory. When is an aircraft considered in flight? An aircraft is considered in flight from the moment all its external doors are closed following embarkation until any of such doors is opened for disembarkation. Other acts punished by R.A. No. 6235: Shipping, loading, or carrying in any PASSENGER AIRCRAFT operating as a public utility within the Philippines any explosive, flammable, corrosive or poisonous substance or material. Republic Act No. 4200 - Anti-Wire Tapping Law What are the acts punished as wire-tapping?

200

www.rkmfiles.net

1) 2) 3) 4) 5)

Tapping any wire or cable, or Using any other device or arrangement, To secretly overhear, intercept, or record a Private communication/conversation or spoken word Without the knowledge or consent of all the parties.

Note: Private Communications Can Be Waived by SHOUTING Presidential Decree No. 533 - Anti-Cattle Rustling Law of 1974 What is a CATTLE RUSTLING? CATTLE RUSTLING is the 1. Taking away by any means, methods or scheme, without the consent of the owner/raiser, of a LARGE CATTLE whether or not for profit or gain, or whether committed with or without violence against or intimidation of any person or force upon things; 2. Killing of a large cattle, or taking its meat or hide without the consent of the owner/raiser.

What is a LARGE CATTLE? LARGE CATTLE includes the following: 1) 2) 3) 4) 5) 6) Cow; Carabao; Horse; Mule; Ass; or Other domesticated member of the bovine family.

WHO is considered as an OWNER/RAISER of a Large Cattle? OWNER/RAISER includes the herdsman, caretaker, employee or tenant of any firm or entity engaged in the raising of large cattle or other persons in lawful possession of such large cattle. Duty of OWNER/RAISER to Register the LARGE CATTLE - The owner/raiser is dutybound to register the large cattle belonging to him WHEN? Before the large cattle attains the age of 6 months. WHERE? With the office of the City/Municipality where the owner/raiser resides. After registration, a CERTIFICATE of OWNERSHIP is issued to the owner/raiser. Permit to BUY and SELL Large Cattle: Any person, partnership, association, corporation or entity engaged in the business of buying and selling large cattles MUST first secure a permit from (a) the Provincial Commander, and (b) the City/Municipal Treasurer of the place of residence of such person, partnership, association, corporation or entity.

Clearance for SHIPMENT of LARGE CATTLE Any person, partnership, association, corporation or entity desiring to ship or transport large cattle, its hides, or meat, from one province to another MUST secure a PERMIT from the Provincial Commander. PRESUMPTION of Cattle Rustling: FAILURE to exhibit or show the required PERMIT or CLEARANCE by any person having in his possession, control or custody of large cattle is a PRIMA FACIE

201

www.rkmfiles.net

EVIDENCE that the large cattle in his possession, control, or custody is the fruit of the crime of cattle rustling. Presidential Decree No. 1612 - Anti-Fencing Law of 1979 What is fencing? Fencing is the act of any person who, a) with intent to gain for himself or for another, b) BUY, RECEIVE, POSSESS, KEEP, ACQUIRE, CONCEAL, SELL, or DISPOSE of, or BUYS and SELLS, or in any other manner deal in c) any article, item, object or anything of value d) which HE KNOWS, or SHOULD BE KNOWN TO HIM, e) to have been derived from the proceeds of the crime of robbery or theft. Who is a FENCE? FENCE includes any person, firm, association, corporation or partnership, or other organizations who/which commits the act of fencing. Presumption of FENCING: Mere possession of any goods, article, item, object, or anything of value which has been the subject of robbery or theft is a PRIMA FACIE evidence of fencing. Presidential Decree No. 532 - Anti-Piracy and Anti-Highway Robbery Law What is PIRACY? Any attack upon or seizure of any vessel, or the taking away of the whole or part thereof, or its cargo, equipment, or the personal belonging of its complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things. Who may commit PIRACY? vessel. Any person, including a passenger or member of the crew/complement of the

Where may PIRACY be committed? Only in Philippine waters.

PIRACY: P.D. 532 VERSUS Art. 122 of the RPC P.D. No. 532 1) Piracy can only be committed on Philippine territorial waters. 2) Can be committed by ANY PERSON including a passenger or member of the complement of the vessel. ARTICLE 122, RPC 1) Piracy can be committed both on the high seas and on Philippine territorial waters. 2) Can only be committed by a person who is neither a passenger nor member of the complement of the vessel.

What is HIGHWAY ROBBERY or BRIGANDAGE? 1) The seizure of any person for ransom, extortion or other unlawful purposes,

202

www.rkmfiles.net

or 2) Taking away of the property of another by means of violence against or intimidation of persons or force upon things or other unlawful means. WHERE? On any PHILIPPINE HIGHWAY What is a PHILIPPINE HIGHWAY? Any road, street, passage, highway and bridges or other parts thereof, or railways or railroad within the Philippines used by persons, or vehicles, or locomotives or trains for the movement or circulation of persons or transportation of goods, articles, or property or both. What is the purpose of the accused in Highway Robbery or Brigandage? The purpose of brigandage is INDISCRIMINATE HIGHWAY ROBBERY (i.e. victim could be any person or persons that passes through a Philippine Highway). If the purpose is only a particular robbery (i.e. there is a predetermined or particular victim), the crime is only Robbery or Robbery in band if there are at least 4 armed participants. Is the number of perpetrators an essential element of Highway Robbery or Brigandage? No. The perpetrator could be a single person or a group of persons not necessarily at least four (4) armed persons. Is the fact that Robbery was committed on Philippine Highway makes it Highway Robbery or Brigandage? No. The mere fact that robbery was committed on Philippine Highway does not give rise to Highway Robbery or Brigandage. The intent of indiscriminate highway robbery must be present.

Republic Act No. 8049 - Anti-Hazing Act What is HAZING? It is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some EMBARRASSING or HUMILIATING situations such as forcing him to do menial, silly, foolish and similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury. Take NOTE: The term ORGANIZATION include any club, or the AFP, PNP, PMA, or officer and cadet corps of the Citizens Military Academy (CMT), or Citizens Army Training (CAT). Requirements before hazing or initiation rites may be conducted: 1) Prior written notice to the school authorities or head of organization (seven (7) days before the conduct of the said initiation rite. 2) The written notice shall a) indicate the period of the initiation activities which shall not exceed three (3) days; b) include the names of those to be initiated; c) contain an undertaking that no physical violence be employed by anybody during such initiation rites. Republic Act No. 7832 - Anti-Electricity Pilferage Act

203

www.rkmfiles.net

Punishes: 1) Illegal use of electricity (- e.g. illegal connection, tampering, use of jumpers) 2) Theft of electric power transmission lines and materials. What is MURO-AMI? It is the act of fishing with gear method or other physical or mechanical acts that destroy coral reefs, sea grass beds and other fishery marine life habitat It is punishable under The Philippine Fisheries Code of 1998 and R.A. 8550. R.A. 7438 - Act Defining Certain Rights of Persons Arrested, Detained or Under Custodial Investigation Rights of Persons Arrested, Detained or Under Custodial Investigation: 1) Right to be assisted by counsel at all times. 2) Right to remain silent. 3) Right to have a competent and independent counsel, preferably of his own choice. 4) Right to be visited by any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any NGO duly accredited by the CHR or by any international NGO duly accredited by the Office of the President. In what form shall the investigation report be? It shall be in written form to be signed or thumb marked by the person arrested, detained or under custodial investigation.

What should be done if the person arrested or detained does not know how to read and write? The contents of the investigation report shall be read and adequately explained to him by his counsel or by the assisting counsel in a language or dialect known to such arrested or detained person. Form of Extrajudicial Confession It shall be in (1) writing and (2) signed by the person (3) in the presence of his counsel or in the latters absence, upon a valid waiver, and in the presence of any of the parents, older brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him. Effect of non-compliance with the requirements of a valid extrajudicial confession: The extrajudicial confession made by the person arrested, detained or under custodial investigation will be INADMISSIBLE as evidence in any proceeding. Form of waiver by the person arrested, detained or under custodial investigation of Article 125 of the RPC: Any waiver under the provisions of Art. 125 of the RPC should be in WRITING and SIGNED by such person in the PRESENCE of his counsel, otherwise, such waiver shall be null and void and of no effect. What is CUSTODIAL INVESTIGATION?

204

www.rkmfiles.net

Includes the practice of issuing an invitation to a person who is being investigated in connection with an offense he is suspected to have committed. Republic Act No. 7438 imposes penalties to the following: 1) Any arresting public officer or employee, or any investigating officer who fails to inform any person arrested, detained or under custodial investigation of his right to remain silent and to have a competent and independent counsel preferably of his own choice; 2) Any pubic officer or employee or anyone acting upon orders of such investigating officer or in his place, who fails to provide a competent and independent counsel to a person arrested, detained or under custodial investigation for the commission of an offense if the latter cannot afford the services of his own counsel; 3) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, from visiting and conferring privately with him, or from examining and treating him, or from ministering to his spiritual needs, at any hour of the day, or in urgent cases, of the night. Batas Pambansa Bilang. 22 - Anti-Bouncing Check Law Who is liable for violation of B.P. 22? 1. Any person who makes or draws and issues any check to apply on account or value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such checks in full upon its presentment, which check is subsequently dishonored by the drawee bank. For what reason? For insufficiency of funds or credit or it would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. 2. Any person who made or drew and issued a check who failed to keep sufficient funds or to maintain a credit to cover the full amount of the check if said check was presented within a period of 90 days from the date appearing thereon, for which reason it is dishonored by the bank.

ELEMENTS OF THE CRIME 1. The accused makes, draws or issues any check to apply on account or value. 2. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or it would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. 3. The accused KNOWS at the time of issuance that he or she does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment. Republic Act No. 7877 - Anti-Sexual Harassment Act WHOM? By an 1) 2) 3) 4) EMPLOYER, EMPLOYEE, MANAGER, SUPERVISOR,

205

www.rkmfiles.net

5) AGENT OF THE EMPLOYER, 6) TEACHER, 7) INSTRUCTOR, 8) PROFESSOR, 9) COACH, 10) TRAINER, or 11) ANY OTHER PERSON HAVING AUHTORITY, INFLUENCE OR MORAL ASCENDANCY OVER ANOTHER in a work or training or education environment. IN WHAT WAY? By demanding, requesting or otherwise requiring any SEXUAL FAVOR from the other, regardless of whether the demand, request or requirement for submission is accepted by the victim.

oo

206

www.rkmfiles.net